People v. Werner

2023 IL App (5th) 220725-U

• Court: Appellate Court of Illinois
• Decided: September 26, 2023
• Docket: 5-22-0725
• Status: Unpublished

Opinion

2023 IL App (5th) 220725-U NOTICE NOTICE Decision filed 09/26/23. The This order was filed under text of this decision may be NO. 5-22-0725 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Pope County. ) v. ) No. 16-CF-1 ) MATTHEW C. WERNER, ) Honorable ) Joseph M. Leberman, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Presiding Justice Boie and Justice Vaughan concurred in the judgment.

ORDER

¶1 Held: By statute, defendant’s sentence in Kentucky for crimes committed there was presumptively consecutive to his previously imposed Illinois sentence and the record does not reflect an order making the sentences concurrent. Thus, the circuit court properly dismissed defendant’s postconviction petition contending that the sentences were concurrent. Further, no procedural error occurred where the circuit court and defense counsel complied with applicable supreme court rules. As any argument to the contrary would lack merit, we grant defendant’s appointed counsel on appeal leave to withdraw and affirm the circuit court’s judgment.

¶2 Defendant, Matthew C. Werner, appeals the circuit court’s order summarily dismissing his

postconviction petition. His appointed appellate counsel, the Office of the State Appellate

Defender (OSAD), has concluded that there is no reasonably meritorious argument that the circuit

court erred. Accordingly, it has filed a motion to withdraw as counsel along with a supporting

memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD has notified defendant

1 of its motion, and this court has provided him with ample opportunity to respond. However, he

has not done so. After considering the record on appeal and OSAD’s motion supporting brief, we

agree that this appeal presents no reasonably meritorious issues. Thus, we grant OSAD leave to

withdraw and affirm the circuit court’s judgment.

¶3 BACKGROUND

¶4 In 2016, defendant pleaded guilty to residential burglary in case No. 16-CF-1 in exchange

for an eight-year prison sentence. The circuit court gave him a “furlough” until 7:30 p.m. to turn

himself in. The court cautioned him that if he failed to report he would be charged with escape

and any sentence imposed for that offense would be consecutive to the burglary sentence.

¶5 Although the facts are not included in the record, it appears that defendant failed to report

as scheduled and was charged with escape. In case No. 16-CF-23, he pleaded guilty to escape. He

was sentenced to three years’ imprisonment to run consecutive to the sentence in 16-CF-1. In the

meantime, he had been sentenced to prison in Kentucky for crimes he committed there. The escape

sentence was to be consecutive to that term as well.

¶6 On September 19, 2022, defendant filed a postconviction petition claiming that the

Department of Corrections (DOC) had miscalculated his release date. Defendant apparently

believed that his sentence in 16-CF-1 was running concurrently with his Kentucky sentence, but

was surprised to learn, after completing his sentence in Kentucky, that the DOC was requiring him

to complete his burglary sentence before beginning his sentence for escape. The circuit court

summarily dismissed the petition and defendant timely appealed.

¶7 ANALYSIS

¶8 OSAD concludes that neither Illinois law nor the record in this case supports an argument

that defendant’s Kentucky sentence was to be concurrent to his Illinois sentences and, thus, there

2 is no reasonably meritorious argument that the circuit court erred in dismissing his petition. We

agree.

¶9 Defendant’s claim proceeds from the premise that his burglary sentence was to be served

concurrently with his Kentucky sentence. Section 5-8-4(e) of the Unified Code of Corrections

provides as follows:

“If an Illinois court has imposed a sentence of imprisonment on a defendant and the

defendant is subsequently sentenced to a term of imprisonment by a court of another state

or a federal court, then the Illinois sentence shall run consecutively to the sentence imposed

by the court of the other state or the federal court. That same Illinois court, however, may

order that the Illinois sentence run concurrently with the sentence imposed by the court of

the other state or the federal court, but only if the defendant applies to that same Illinois

court within 30 days after the sentence imposed by the court of the other state or the federal

court is finalized.” 730 ILCS 5/5-8-4(e) (West 2020).

¶ 10 OSAD represents that information received from Kentucky shows that defendant’s

sentence in that state was imposed for crimes committed there after the Illinois burglary. Thus,

section 5-8-4(e) provides that defendant’s Illinois sentence is consecutive to that sentence unless

defendant filed a motion in Illinois asking that they run concurrently. Nothing in the record shows

that defendant filed such a motion. Thus, the circuit court properly held that the sentences are

consecutive.

¶ 11 To the extent defendant’s argument could be construed as seeking credit against his Illinois

sentence for time spent in Kentucky custody, this argument also fails. “[A] defendant is not

entitled to credit for time spent in custody while incarcerated in another state as a result of a crime

committed there.” People v. Evans, 391 Ill. App. 3d 470, 472-73 (2009) (citing People v. Clinard,

3 242 Ill. App. 3d 414, 417 (1993)). As there is no basis for defendant’s claim that he discharged

his burglary sentence while imprisoned in Kentucky, the circuit court properly dismissed the

petition.

¶ 12 OSAD further contends that there is no meritorious argument that the court committed

procedural error in dismissing the petition. A circuit court may summarily dismiss a

postconviction petition only within the first 90 days after filing. 725 ILCS 5/122-2.1(a) (West

2020). Furthermore, the State is precluded from providing input at this stage. People v. Gaultney,

174 Ill. 2d 410, 418 (1996). Here, defendant filed his petition on September 19, 2022. The court

summarily dismissed it on October 17, 2022, without input from the State, well within the 90-day

limit.

¶ 13 CONCLUSION

¶ 14 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and

affirm the circuit court’s judgment.

¶ 15 Motion granted; judgment affirmed.