NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210269-U
Order filed November 15, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Marshall County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0269 v. ) Circuit No. 98-CF-32 ) BRET A. SHERWOOD, ) Honorable ) James A. Mack, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice O’Brien and Justice Daugherity concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court had jurisdiction to correct the defendant’s sentencing order to include an express finding of great bodily harm where the court’s findings at sentencing rendered the act ministerial.
¶2 The defendant, Bret A. Sherwood, appeals the order granting the State’s motion to correct
the mittimus. The defendant argues the Marshall County circuit court lacked jurisdiction to
amend the sentencing order 22 years after it was entered, and the amendment was not a
correction but a substantial change which improperly increased his sentence. ¶3 I. BACKGROUND
¶4 On September 2, 1998, the defendant was indicted on four counts of aggravated criminal
sexual assault (720 ILCS 5/12-14(a)(2) (West 1998)) and one count of home invasion (id. § 12-
11(a)(2)). On March 17, 1999, the defendant entered a partially negotiated plea wherein he pled
guilty to one count of home invasion and two counts of aggravated criminal sexual assault in
exchange for an aggregate sentencing cap of 30 years’ imprisonment.
¶5 At the sentencing hearing on May 25, 1999, the victim, in a written statement, indicated
that the defendant had struck her repeatedly with a baseball bat, tied her up with extension cords,
and sexually assaulted her anally and vaginally. The defendant placed a pillowcase over the
victim’s head and tied a belt around her neck and choked her. The victim could not see or
breathe. She lost consciousness for a time. Police Chief Paul Kelly of the Wenona Police
Department testified that he observed the victim with broken blood vessels in her eyes, a bruised
and swollen face, and a cracked and swollen lip. The presentence investigation report (PSI)
conveyed that the victim suffered pulled tendons in her right arm and lost the use of that arm for
approximately three weeks. Her eyes were bruised and swollen, with the right eye swollen
completely shut. The victim had blood clots in both eyes, a broken tooth, and bruises on her legs,
back, arms, face, and rectal area. She also suffered from blurred vision and tooth pain after the
incident.
¶6 After reviewing the defendant’s PSI, and considering the live testimony and victim
impact statement, the court sentenced the defendant to three consecutive terms of 10 years’
imprisonment. The court stated that it specifically considered the victim impact statement, “the
nature of this horrible offense,” and “the physical harm that it has caused to the victim.” The
court found that the truth-in-sentencing statute applied to the case and “entitled [the defendant] to
2 no more than four and one half days of good conduct credit for each month of your sentence of
imprisonment. Therefore, you will serve at least 85 percent of your sentence.” The court
estimated that the defendant would serve 25 years and 6 months in prison on the aggregate 30-
year sentence. The written sentencing order detailed the terms of the sentence as stated by the
court and made no great bodily harm finding nor did it apply the truth-in-sentencing provisions.
No postplea motions were filed.
¶7 Initially, the Department of Corrections (DOC) calculated the defendant’s release date as
if he were serving 50% of his home invasion sentence. In September 2020, the defendant sent
letters to the circuit clerk indicating that the DOC had recalculated his release date at 85% based
on information provided to them by the circuit clerk. On February 3, 2021, the DOC sent a
request for clarification to the State’s Attorney’s office, asking whether the court made a great
bodily harm finding since no such indication had been made on the written sentencing order. The
State sent the DOC transcripts from the sentencing hearing to which the DOC replied that they
could not calculate the defendant’s home invasion sentence at 85% without an amended order
indicating a finding of great bodily harm.
¶8 On February 11, 2021, the court issued an amended sentencing order with a finding that
“the conduct leading to conviction for the offenses enumerated in counts III, IV, and V resulted
in great bodily harm to the victim” entered nunc pro tunc from May 25, 1999. Thereafter, the
State filed a motion to correct the mittimus. On May 25, 2021, the court issued a written order
granting the State’s motion. The court indicated that it reviewed the transcript of the sentencing
hearing. It noted that the parties agreed that the truth-in-sentencing statute was applicable to all
three of the defendant’s convictions. The State argued that the defendant’s conduct “caused both
physical and emotional harm to the extent of a tragedy.” The evidence presented was sufficient
3 to establish great bodily harm. The sentencing court made clear that it found that truth-in-
sentencing applied to all three counts with his oral pronouncement. The court found the
correction of the sentencing order was a ministerial act which did not change the original
sentence. The defendant appeals.
¶9 II. ANALYSIS
¶ 10 The defendant contends that the court lacked jurisdiction to amend the sentencing order
22 years after it was entered, and that the amendment constituted a substantial change that
impermissibly increased his sentence. We review de novo the issue of whether a sentencing order
should be amended. People v. Lewis, 2012 IL App (1st) 102089, ¶ 23.
¶ 11 A circuit court’s jurisdiction “to reconsider and modify their judgments is not indefinite.
Normally, the authority of a trial court to alter a sentence terminates after 30 days.” People v.
Flowers, 208 Ill. 2d 291, 303 (2003). However, the court retains jurisdiction to correct certain,
enumerated sentencing errors at any time following the judgment, including “[c]lerical errors in
the written sentencing order or other part of the record resulting in a discrepancy between the
record and the actual judgment of the court.” Ill. S. Ct. R. 472(a)(4) (eff. May 17, 2019).
“ ‘Clerical errors or matters of form are those errors, mistakes or omissions which
are not the result of the judicial function. Mistakes of the court are not necessarily
judicial errors. The distinction between a clerical error and a judicial one does not
depend so much upon the source of the error as upon whether it was the deliberate
result of judicial reasoning and determination.’ ” Harbeck v. Holland, 81 Ill. App.
3d 250, 253 (1980) (quoting Dauderman v. Dauderman, 130 Ill. App. 2d 807, 810
(1970)).
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NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 210269-U
Order filed November 15, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Marshall County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-21-0269 v. ) Circuit No. 98-CF-32 ) BRET A. SHERWOOD, ) Honorable ) James A. Mack, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice O’Brien and Justice Daugherity concurred in the judgment. ____________________________________________________________________________
ORDER
¶1 Held: The circuit court had jurisdiction to correct the defendant’s sentencing order to include an express finding of great bodily harm where the court’s findings at sentencing rendered the act ministerial.
¶2 The defendant, Bret A. Sherwood, appeals the order granting the State’s motion to correct
the mittimus. The defendant argues the Marshall County circuit court lacked jurisdiction to
amend the sentencing order 22 years after it was entered, and the amendment was not a
correction but a substantial change which improperly increased his sentence. ¶3 I. BACKGROUND
¶4 On September 2, 1998, the defendant was indicted on four counts of aggravated criminal
sexual assault (720 ILCS 5/12-14(a)(2) (West 1998)) and one count of home invasion (id. § 12-
11(a)(2)). On March 17, 1999, the defendant entered a partially negotiated plea wherein he pled
guilty to one count of home invasion and two counts of aggravated criminal sexual assault in
exchange for an aggregate sentencing cap of 30 years’ imprisonment.
¶5 At the sentencing hearing on May 25, 1999, the victim, in a written statement, indicated
that the defendant had struck her repeatedly with a baseball bat, tied her up with extension cords,
and sexually assaulted her anally and vaginally. The defendant placed a pillowcase over the
victim’s head and tied a belt around her neck and choked her. The victim could not see or
breathe. She lost consciousness for a time. Police Chief Paul Kelly of the Wenona Police
Department testified that he observed the victim with broken blood vessels in her eyes, a bruised
and swollen face, and a cracked and swollen lip. The presentence investigation report (PSI)
conveyed that the victim suffered pulled tendons in her right arm and lost the use of that arm for
approximately three weeks. Her eyes were bruised and swollen, with the right eye swollen
completely shut. The victim had blood clots in both eyes, a broken tooth, and bruises on her legs,
back, arms, face, and rectal area. She also suffered from blurred vision and tooth pain after the
incident.
¶6 After reviewing the defendant’s PSI, and considering the live testimony and victim
impact statement, the court sentenced the defendant to three consecutive terms of 10 years’
imprisonment. The court stated that it specifically considered the victim impact statement, “the
nature of this horrible offense,” and “the physical harm that it has caused to the victim.” The
court found that the truth-in-sentencing statute applied to the case and “entitled [the defendant] to
2 no more than four and one half days of good conduct credit for each month of your sentence of
imprisonment. Therefore, you will serve at least 85 percent of your sentence.” The court
estimated that the defendant would serve 25 years and 6 months in prison on the aggregate 30-
year sentence. The written sentencing order detailed the terms of the sentence as stated by the
court and made no great bodily harm finding nor did it apply the truth-in-sentencing provisions.
No postplea motions were filed.
¶7 Initially, the Department of Corrections (DOC) calculated the defendant’s release date as
if he were serving 50% of his home invasion sentence. In September 2020, the defendant sent
letters to the circuit clerk indicating that the DOC had recalculated his release date at 85% based
on information provided to them by the circuit clerk. On February 3, 2021, the DOC sent a
request for clarification to the State’s Attorney’s office, asking whether the court made a great
bodily harm finding since no such indication had been made on the written sentencing order. The
State sent the DOC transcripts from the sentencing hearing to which the DOC replied that they
could not calculate the defendant’s home invasion sentence at 85% without an amended order
indicating a finding of great bodily harm.
¶8 On February 11, 2021, the court issued an amended sentencing order with a finding that
“the conduct leading to conviction for the offenses enumerated in counts III, IV, and V resulted
in great bodily harm to the victim” entered nunc pro tunc from May 25, 1999. Thereafter, the
State filed a motion to correct the mittimus. On May 25, 2021, the court issued a written order
granting the State’s motion. The court indicated that it reviewed the transcript of the sentencing
hearing. It noted that the parties agreed that the truth-in-sentencing statute was applicable to all
three of the defendant’s convictions. The State argued that the defendant’s conduct “caused both
physical and emotional harm to the extent of a tragedy.” The evidence presented was sufficient
3 to establish great bodily harm. The sentencing court made clear that it found that truth-in-
sentencing applied to all three counts with his oral pronouncement. The court found the
correction of the sentencing order was a ministerial act which did not change the original
sentence. The defendant appeals.
¶9 II. ANALYSIS
¶ 10 The defendant contends that the court lacked jurisdiction to amend the sentencing order
22 years after it was entered, and that the amendment constituted a substantial change that
impermissibly increased his sentence. We review de novo the issue of whether a sentencing order
should be amended. People v. Lewis, 2012 IL App (1st) 102089, ¶ 23.
¶ 11 A circuit court’s jurisdiction “to reconsider and modify their judgments is not indefinite.
Normally, the authority of a trial court to alter a sentence terminates after 30 days.” People v.
Flowers, 208 Ill. 2d 291, 303 (2003). However, the court retains jurisdiction to correct certain,
enumerated sentencing errors at any time following the judgment, including “[c]lerical errors in
the written sentencing order or other part of the record resulting in a discrepancy between the
record and the actual judgment of the court.” Ill. S. Ct. R. 472(a)(4) (eff. May 17, 2019).
“ ‘Clerical errors or matters of form are those errors, mistakes or omissions which
are not the result of the judicial function. Mistakes of the court are not necessarily
judicial errors. The distinction between a clerical error and a judicial one does not
depend so much upon the source of the error as upon whether it was the deliberate
result of judicial reasoning and determination.’ ” Harbeck v. Holland, 81 Ill. App.
3d 250, 253 (1980) (quoting Dauderman v. Dauderman, 130 Ill. App. 2d 807, 810
(1970)).
4 Thus, the court had jurisdiction to correct the defendant’s sentencing order provided that the
correction accurately reflected the sentence originally imposed.
¶ 12 In 2021, the court issued an amended sentencing order to include an express finding of
great bodily harm, nunc pro tunc. “An amendment sought by an order nunc pro tunc must be
premised upon some note, memorandum or memorial remaining in the files or upon the records
of the court. [Citations.] Any item in the record, including transcripts, may provide a proper basis
for the order.” Gagliano v. 714 Sheridan Venture, 144 Ill. App. 3d 854, 857 (1986). In making its
ruling, the court reviewed transcripts of the 1999 sentencing hearing. Those transcripts reflect
that sufficient evidence was presented to support a finding of great bodily harm. See People v.
Cisneros, 2013 IL App (3d) 110851, ¶¶ 20-21 (finding great bodily harm where the victim
received several lacerations, one of which required two stitches); People v. Matthews, 126 Ill.
App. 3d 710, 714-15 (1984) (finding great bodily harm where the victim was struck several
times on the head and arms with a gun and baseball bat, and received a bruise on her head which
did not require medical attention).
¶ 13 When a defendant is convicted of home invasion and the court finds that the conduct
leading to that conviction resulted in great bodily harm to a victim, the defendant is ineligible to
receive day-for-day credit and the DOC is allowed to give that prisoner “no more than 4.5 days
of good conduct credit for each month of his or her sentence of imprisonment.” 730 ILCS 5/3-6-
3(a)(2)(iii) (West 1998). “Truth-in-sentencing” is the label given to this statutory change in good
conduct credit. People v. Salley, 373 Ill. App. 3d 106, 109 (2007). In other words, following a
great bodily harm finding, truth-in-sentencing requires a defendant serve 85% of his sentence.
¶ 14 While the sentencing court made no explicit finding of great bodily harm, it specifically
considered the significant evidence of physical harm to the victim and expressly found that truth-
5 in-sentencing applied. The court also explained that the defendant would serve a minimum of 25
years and 6 months—approximately 85% of his 30-year sentence. Therefore, we conclude the
court implicitly found that the conduct leading to the defendant’s home invasion conviction
resulted in great bodily harm to the victim. Accordingly, the reissued sentencing order with the
nunc pro tunc finding of great bodily harm was merely a correction of the written sentencing
order to expressly state the court’s prior implicit finding of great bodily harm. Such a correction
is a ministerial act which did not impermissibly increase the defendant’s sentence.
¶ 15 III. CONCLUSION
¶ 16 The judgment of the circuit court of Marshall County is affirmed.
¶ 17 Affirmed.