People v. Williams

Opinion

Filed 7/18/08 NO. 4-07-0889

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Douglas County CHRISTOPHER WILLIAMS, ) No. 06CF8 Defendant-Appellant. ) ) Honorable ) Michael G. Carroll, ) Judge Presiding. _________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

On February 2, 2006, the State charged defendant,

Christopher Williams, with unlawful possession with intent to

deliver cannabis, a Class 3 felony (720 ILCS 550/5(d) (West

2006)) (count I), and unlawful possession of cannabis, a Class 4

felony (720 ILCS 550/4(d) (West 2006)) (count II). On October

22, 2007, after a stipulated bench trial, the trial court con-

victed defendant on count I, unlawful possession with intent to

deliver. The court sentenced defendant to 24 months' probation

with 60 days in jail as a condition, no presentence credit, and

payment of various fines and costs. Defendant appeals, arguing

(1) he is entitled to two days' sentencing credit and (2) a $5-

per-day credit against his fines. We affirm.

On February 1, 2006, Heather Welch, an officer with the

Illinois State Police, stopped a car on Interstate 57 after a random check showed the car's plates were suspended for lack of

insurance. During the stop, Officer Welch noticed an excessive

odor of air freshener as well as a green leafy substance on the

floor. Welch called a canine unit to sniff the car. The canine

did not alert to the vehicle, but it showed a strong interest in

the trunk of the vehicle. Officer Welch completed the traffic

stop and cited defendant for operation of a vehicle with sus-

pended registration. Welch advised the driver he was free to go

and asked for consent to search the vehicle. Defendant consented

to the search, exited his car, and sat in the squad car passenger

seat.

During the search, officers found cannabis scattered

throughout the vehicle, and a blue plastic bag behind the speaker

in the trunk containing 432 grams or approximately a pound of

cannabis. Welch read defendant his Miranda rights (Miranda v.

Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966))

at the scene. Williams was held in Douglas County jail that day,

February 1, 2006. He posted bond on February 2, 2006.

Defense counsel filed a motion to suppress evidence.

After a hearing, the trial court denied it by order. Defendant

proceeded to a stipulated bench trial and was found guilty of

unlawful possession with intent to deliver cannabis. Both

parties waived preparation of a presentencing report. The State

presented an agreed sentence of 24 months' probation, 60 days in

- 2 - Douglas County jail, "with no days['] pre-sentence credit," a

substance-abuse evaluation and treatment, and the payment of

enumerated fines, costs, and fees. Defense counsel agreed the

sentence included a 60-day jail term, "no credit for previous

time in custody." The court agreed to the sentencing agreement

and sentenced defendant consistent with the parties' agreement to

24 months' probation, 60 days in jail, "with no credit." This

appeal followed.

Defendant argues the trial court failed to grant

defendant credit for at least the two days of time served prior

to sentencing, February 1 and 2, 2006, and also a $5-per-day

credit against his fines.

The Unified Code of Corrections provides: "The offender

shall be given credit on the determinate sentence or maximum term

and the minimum period of imprisonment for time spent in custody

as a result of the offense for which the sentence was imposed."

730 ILCS 5/5-8-7(b) (West 2006). Although it is unclear how many

days defendant spent in jail, he was in custody on February 1 and

February 2, 2006. Defendant requests the cause be remanded for a

hearing to determine the proper amount of sentencing credit and

credit against fines.

The State argues defendant is not entitled to sentenc-

ing credit because the defendant agreed to a sentence that did

not reflect credit for time served. At sentencing, the State

- 3 - represented to the court that the parties had agreed to a sen-

tence of 24 months' probation, 60 days in jail, no presentence

credit, substance-abuse treatment, and a delayed sentencing

judgment. Defense counsel joined in the recommendation and

stated there was agreement on the sentence. The State contends

that under the doctrine of invited error, defendant is not

entitled to sentence credit. Defendant "'may not request to

proceed in one manner and then later contend on appeal that the

course of action was in error.'" People v. Harvey, 211 Ill. 2d

368, 385, 813 N.E.2d 181, 192 (2004), quoting People v. Carter,

208 Ill. 2d 309, 319, 802 N.E.2d 1185, 1190 (2003). Allowing

defendant to agree to a sentence that included consideration of

his presentencing credit, then on appeal get his agreed-upon

sentence reduced, would be unfair. See In re Detention of Swope,

213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004). We agree.

Defendant received benefits in this bargain. At

sentencing, the trial court stated, "[I]t's a very favorable

disposition for your client [(defense counsel)], but the court is

going to concur. The State's Attorney is a very diligent prose-

cutor and he feels this is adequate, then it's adequate for this

court." The agreement not only provided for a term of probation

with minimal jail time, but the State agreed to a delayed sen-

tencing judgment, allowing defendant to begin serving his sen-

tence two weeks after sentencing. People v. Woodard, 175 Ill. 2d

- 4 - 435, 677 N.E.2d 935 (1997), is not applicable in this case; the

State did not argue defendant had forfeited the issue via proce-

dural default. A defendant has the right to first request

sentencing credit at any time unless, as here, he agreed to

forego it as part of a plea or other sentencing agreement. See

People v. Maltimore, 268 Ill. App. 3d 532, 535, 644 N.E.2d 478,

481 (1994) (a defendant who received the benefit of his bargain

cannot be heard to repudiate it).

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we grant the State its $50

statutory assessment against defendant as costs of this appeal.

Affirmed.

TURNER and STEIGMANN, JJ., concur.

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