People v. Tolliver

2024 IL App (4th) 230810-U

• Court: Appellate Court of Illinois
• Decided: December 6, 2024
• Docket: 4-23-0810
• Status: Unpublished

Opinion

NOTICE 2024 IL App (4th) 230810-U FILED This Order was filed under December 6, 2024 Supreme Court Rule 23 and is NO. 4-23-0810 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County DEWAYNE TOLLIVER, ) No. 20CF952 Defendant-Appellant. ) ) Honorable ) Debra D. Schafer, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Steigmann and Lannerd concurred in the judgment.

ORDER

¶1 Held: Defendant’s curfews of 11 hours or less did not qualify him for home detention presentence custody credit.

¶2 In May 2022, defendant, Dewayne Tolliver, pleaded guilty to unlawful possession

of a weapon by a felon, a Class 2 felony. He was sentenced to 7 years’ incarceration, with

presentence custody credit for the 24 days he was in custody prior to his release on bond with

restrictions. Defendant filed a motion to correct the mittimus, arguing he was entitled to

presentence custody credit for the period he was subject to a curfew while released, which the

trial court denied.

¶3 Defendant appeals from the denial of his motion to correct the mittimus. We

affirm.

¶4 I. BACKGROUND ¶5 Defendant was arrested on May 18, 2020, and charged with being an armed

habitual criminal, a Class X felony (720 ILCS 5/24-1.7(a), (b) (West 2020)) (count I), unlawful

possession of a weapon by a felon, a Class 2 felony (id. § 24-1.1(a)) (count II), unlawful

possession of a weapon by a felon, a Class 3 felony (id.) (count III), and resisting a peace officer,

a Class A misdemeanor (id. § 31-1(a)) (count IV). A May 27, 2020, superseding grand jury

indictment charged defendant with the same offenses. Defendant was initially held with bail set

at $250,000.

¶6 Defendant filed a motion for a bond reduction. Following a June 9, 2020, hearing

on the motion, the trial court reduced defendant’s bond to $50,000. The bond order stated

defendant was to be released “ONLY to Pretrial Services” and “only with proof of landline

phone at mother’s residence.” The order also stated defendant was subject to a curfew from

8 p.m. to 7 a.m. Defendant was released on June 11, 2020. On September 1, 2020, the court

modified defendant’s curfew to 8 p.m. to 5 a.m. to accommodate his work schedule.

¶7 On May 12, 2022, defendant entered a partially negotiated guilty plea to count II.

In exchange for pleading guilty to the Class 2 felony, the other charges were dismissed. There

was no agreement as to defendant’s sentence. After admonishments, the trial court accepted

defendant’s guilty plea. Defendant remained out on bond with conditions until sentencing.

¶8 On August 26, 2022, the trial court held defendant’s sentencing hearing. The

presentence investigation report indicated defendant had been in custody from May 18, 2020, to

June 11, 2020, and was required to serve three days in jail in August 2021 as a sanction for

pretrial service violations (for which he could not receive presentence custody credit). The court

sentenced defendant to seven years’ incarceration. The court inquired as to the presentence

custody credit, asking, “Based on my calculation, he has credit for 24 days; is that accurate?”

-2- The State respondent, “I believe so, [Y]our Honor.” Neither defense counsel nor defendant

commented on the presentence custody credit calculation. The written order stated defendant was

entitled to credit for his time actually served in custody from May 19, 2020, to June 11, 2020.

Defendant did not file a postplea motion or appeal his sentence.

¶9 On April 10, 2023, defendant filed a pro se motion to receive sentencing credit for

program participation. Defendant’s motion argued he should receive a sentencing credit of 806

days for his participation in pretrial release from June 11, 2020, to August 25, 2022.

¶ 10 The same day, defendant also filed a pro se motion for an order nunc pro tunc,

similarly arguing he was entitled to 806 days of sentencing credit because he was “incarcerated

at the Winnebago County Jail from 6/11/2020 to 8/26/2022.” An attachment to the motion

argued he “was not credited” for the time he spent on pretrial release with a curfew. Defendant

stated, “From my knowledge I was still Imprison[ed] 7 days a week from 6/11/2020 to

8/26/2020.” The attachment also argued he should be eligible for day-per-day credit, for a total

of 1612 days of sentencing credit.

¶ 11 The trial court denied both of defendant’s motions, stating defendant’s curfew

“was less than 12 hours, so he’s not entitled to credit for it, and he’s certainly not entitled to have

it doubled.” The court stated it would enter a written order, though no corresponding written

order appears in the record.

¶ 12 On July 11, 2023, defendant filed a motion to correct the mittimus. The motion

stated the trial court failed to credit defendant for the “approximately 27 months” defendant

spent on “pre-trial home detention.” Defendant argued the court was a “ ‘supervising

authority,’ ” which placed “significant restrictions on his liberty” by placing him under a curfew

and requiring him to obtain a landline telephone.

-3- ¶ 13 The trial court denied defendant’s motion, stating, “I believe it is limited to if the

in-home detention is 12 hours or more.” The written order similarly stated defendant’s curfew

was for “11 hours or less while on bond” and defendant was therefore not eligible for additional

presentence custody credit.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues the trial court erred by denying his motion to correct

the mittimus. He maintains, while released on bond with a curfew, he was under home detention

as defined by section 5-8A-2 of the Unified Code of Corrections (Unified Code) (730 ILCS

5/5-8A-2(C) (West 2022)) and was therefore eligible for additional presentence custody credit

pursuant to section 5-4.5-100(b) of the Unified Code (id. § 5-4.5-100(b)). “Whether a defendant

should receive presentence custody credit against his sentence is reviewed under the de novo

standard of review.” People v. Jones, 2015 IL App (4th) 130711, ¶ 12.

¶ 17 A. Jurisdiction

¶ 18 Defendant filed his motion on July 11, 2023, nearly a year after his sentencing.

Generally, a trial court loses jurisdiction to hear a cause after the expiration of the 30-day period

following the entry of a final judgment. People v. Bailey, 2014 IL 115459, ¶ 8. However, Illinois

Supreme Court Rule 472(a)(3) (eff. May 17, 2019) authorizes a trial court, at any time after

judgment and after notice to the parties, to correct “[e]rrors in the calculation of presentence

custody credit.” Even where the defendant does not reference Rule 472, a trial court retains

jurisdiction to consider motions not properly styled as Rule 472 motions. See People v. Angelini,

2021 IL App (4th) 190309-U, ¶ 18 (“This jurisdiction extended to defendant’s motion even

though he improperly styled his filing as a ‘[n]unc [p]ro [t]unc [m]otion to [a]mend [m]ittimus’

-4- instead of as a motion to amend the sentencing judgment.”). Defendant’s motion requested a

recalculation of the presentence custody credit he was entitled to. “[T]he trial court’s jurisdiction

to amend the amount of presentence custody credit to which a defendant is entitled is not limited

to the 30-day period after entry of the sentencing judgment.” Id. Thus, the trial court retained

jurisdiction to consider defendant’s claim under Rule 472.

¶ 19 B. Home Detention

¶ 20 At the time of defendant’s sentencing, section 5-4.5-100(b) of the Unified Code

stated:

“[T]he offender shall be given credit on the determinate sentence *** for the

number of days spent in custody as a result of the offense for which the sentence

was imposed. *** The trial court shall give credit to the defendant for time spent

in home detention on the same sentencing terms as incarceration as provided in

Section 5-8A-3 [citation]. Home detention for the purposes of credit includes

restrictions on liberty such as curfews restricting movement for 12 hours or more

per day and electronic monitoring that restricts travel or movement.” 730 ILCS

5/5-4.5-100(b) (West 2022).

The Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/100-1 et seq. (West

2022)) governs the release of criminal defendants pretrial. The Procedure Code provides the trial

court may impose conditions when releasing a defendant pretrial, including for the defendant to

“[b]e placed under direct supervision of the Pretrial Services Agency, Probation Department or

Court Services Department in a pretrial bond home supervision capacity with or without the use

of an approved electronic monitoring device subject to Article 8A of Chapter V of the [Unified

Code].” 725 ILCS 5/110-10(b)(14) (West 2020)).

-5- ¶ 21 In People v. Donahue, 2022 IL App (5th) 200274, and People v. Currey, 2024 IL

App (2d) 230099, Illinois courts considered whether a defendant subject to pretrial bond home

supervision was eligible for presentence custody credit.

¶ 22 In Donahue, the defendant was released on bail bond with restrictions. Donahue,

2022 IL App (5th) 200274, ¶ 4. The trial court imposed conditions which placed the defendant

on electronic home monitoring and required him to remain in his residence, except for work or

other approved reasons. Id. On appeal, the defendant argued he was eligible for sentencing credit

for time spent under home detention. The Appellate Court, Fifth District, examined the statutes

and found “home supervision” under the Procedure Code was distinct from “home detention”

under the Unified Code. Id. ¶ 23. The Fifth District further determined the definition of “home

detention” required the defendant be confined “ ‘under the terms and conditions established by

the supervising authority.’ ” Id. ¶ 29 (quoting 730 ILCS 5/5-8A-2(C) (West 2020)). It found the

trial court, which set the conditions for the defendant’s release, was not included in the definition

of “supervising authority” as contemplated by the Unified Code. Id. ¶ 32. Therefore, as the

defendant was under home supervision and not under home detention as established by a

supervising authority, the defendant was ineligible for sentencing credit. Id. ¶ 25.

¶ 23 In Currey, the Appellate Court, Second District, similarly determined the

defendant, who spent time pretrial “confined to his parent’s home on electronic monitoring,” had

“commingled and conflated two key phrases: ‘home detention’ under section 5-4.5-100(b) of the

[Unified Code] [citation], and ‘home supervision’ under the pretrial release provisions of section

110-10(b)(14) of the [Procedure Code].” Currey, 2024 IL App (2d) 230099, ¶ 21. Agreeing with

the Fifth District’s decision in Donohue, the Second District found the defendant did not meet

the definition of “home detention” when he was released on bail bond with restrictions. The

-6- court noted this determination was “consistent with prior decisions holding that pretrial

conditions never automatically qualify as ‘custody’ or ‘confinement’ for home detention

sentence credit.” Id. ¶ 23 (collecting cases).

¶ 24 Defendant argues these cases were wrongly decided and asks us to not follow the

precedent set by Donahue and Currey. Specifically, defendant argues “home supervision” is not

exclusive of “home detention,” and, therefore, if home supervision is a significant restriction on

his liberty, it can qualify as home detention for purposes of pretrial custody credit.

¶ 25 However, here, we need not determine whether Donahue and Currey correctly

differentiated home supervision and home detention, as defendant’s curfew was not such a

restriction on his liberty, as contemplated by the Unified Code, sufficient to entitle him to

additional presentence custody credit.

¶ 26 Indeed, section 5-4.5-100 of the Unified Code provides “[h]ome detention for

purposes of credit includes restrictions on liberty such as curfews restricting movement for 12

hours or more per day and electronic monitoring that restricts travel or movement.” 730 ILCS

5/5-4.5-100(b) (West 2022). Similarly, the Unified Code defines “home detention” as:

“[T]he confinement of a person convicted or charged with an offense to his or her

place of residence under the terms and conditions established by the supervising

authority. Confinement need not be 24 hours per day to qualify as home

detention, and significant restrictions on liberty such as 7pm to 7am curfews shall

qualify. Home confinement may or may not be accompanied by electronic

monitoring, and electronic monitoring is not required for purposes of sentencing

credit.” Id. § 5-8A-2(C).

-7- Defendant focuses on the “restrictions on liberty” language in both provisions to argue his

curfews qualified as home detention, entitling him to pretrial custody credit.

¶ 27 However, the examples provided by the Unified Code are simply that: examples.

The provisions both note the list is “restrictions on liberty such as” a 12-hour curfew. (Emphasis

added.) Id. §§ 5-4.5-100(b), 5-8A-2(C). Therefore, the relevant determination is whether

defendant’s 11-hour and 9-hour curfews were significant restrictions on liberty under the statute.

¶ 28 When tasked with interpreting a statute, our main goal is to ascertain and give

effect to legislative intent. Marsh v. Sandstone North, LLC, 2020 IL App (4th) 190314, ¶ 63. The

most reliable indicator of that intent is the statute’s language, to which we give its plain and

ordinary meaning. Id. (citing Van Dyke v. White, 2019 IL 121452, ¶ 46). When the language of

the statute is clear and unambiguous, we must give the statute the effect as written and not resort

to other aids of statutory construction. Thomann v. Department of State Police, 2016 IL App

(4th) 150936, ¶ 25.

¶ 29 The catchall term “such as,” by its very nature, makes the list which follows

ambiguous. See Illinois Central R.R. Co. v. Franklin County, 387 Ill. 301, 315 (1944) (“ ‘[T]he

term “including” is not one of all-embracing definition, but connotes simply an illustrative

application of the general principle.’ ”) (quoting Federal Land Bank of St. Paul v. Bismarck

Lumber Co., 314 U.S. 95, 100 (1941)). “When a statute contains an enumeration of certain things

to which an act applies and also a general term or expression concerning the application of the

act, the general term may be given full effect if the context shows the enumeration was not

intended to be exclusive.” Greyhound Lines, Inc. v. City of Chicago, 24 Ill. App. 3d 718, 727

(1974) (citing People ex rel. County of DuPage v. Smith, 21 Ill. 2d 572 (1961)). “Such as” is an

idiom, which is “used to introduce an example or series of examples.” Merriam-Webster Online

-8- Dictionary, https://www.merriam-webster.com/dictionary/such%20as (last visited Nov. 1, 2024).

Therefore, the “such as” provision of the statutory texts demonstrates we should read the list

broadly.

¶ 30 This does not mean, however, the list provides no restrictions on what constitutes

a significant restriction on liberty. The statutes provide examples of what the legislature

considered significant restrictions on liberty. Therefore, other restrictions on liberty which

qualify as home detention for the purposes of presentence custody credit should be like a 12-hour

or more curfew or electronic monitoring.

¶ 31 As the legislature provided specific examples, we also consider the examples they

provided with a discerning eye. “Statutes should be read as a whole with all relevant parts

considered, and they should be construed, if possible, so that no term is rendered superfluous or

meaningless.” In re Marriage of Kates, 198 Ill. 2d 156, 163 (2001). If we were to accept

defendant’s contention curfews under 12 hours are significant restrictions on liberty, it would

render meaningless the language declaring “curfews restricting movement for 12 hours or more”

(emphasis added) (730 ILCS 5/5-4.5-100(b) (West 2022)) as significant restrictions on liberty.

The statute does not simply state a “significant” curfew should be considered as a restriction on

liberty, but it specifically articulated those of 12 hours or more should be considered. Further, the

legislature also included a reference to a 12-hour curfew in the definition of “home detention” by

stating “significant restrictions on liberty such as 7pm to 7am curfews shall qualify.” (Emphasis

added.) Id. § 5-8A-2(C). The legislature’s affirmative statements on curfews of 12 hours or more

must be given their plain meaning. The statute’s plain meaning shows the legislature intended to

include in “significant restrictions on liberty” only those curfews over 12 hours in length.

-9- ¶ 32 In this case, defendant began with an 11-hour curfew, which was reduced to a

9-hour curfew. His curfews were not significant restrictions on liberty as contemplated by the

statute. Therefore, regardless of whether defendant’s bond restrictions otherwise met the

definition of home detention, he was not eligible for additional presentence custody credit for the

time he spent released while under a curfew. Accordingly, the trial court did not err in denying

defendant’s motion to correct the mittimus.

¶ 33 III. CONCLUSION

¶ 34 For the reasons stated, we affirm the trial court’s judgment.

¶ 35 Affirmed.

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