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People v. Willer

OPINION FILED APRIL 15, 1985.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GARY A. WILLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. James K. Robinson, Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Defendant entered a plea of guilty in the circuit court of Vermilion County to the offenses of indecent liberties with a child, attempted aggravated incest, and two counts of aggravated incest (Ill. Rev. Stat. 1983, ch. 38, pars. 11-4(a)(2), 8-4(a), 11-10(a)(1), 11-10(a)(2)) on June 5, 1984, before Judge Robinson. On July 24, 1984, Judge Robinson imposed concurrent terms of imprisonment of seven years for indecent liberties with a child, seven years for aggravated incest, and two years for attempted aggravated incest. On July 26, 1984, defendant filed a motion to withdraw his plea of guilty because of the sentences imposed. The motion was denied on August 8, 1984, and this appeal followed, challenging the sentences imposed and requesting sentence credit.

• 1 We first consider defendant's argument that the trial court abused its discretion in imposing sentences beyond the statutory minimum. The defendant pleaded guilty to the offenses of indecent liberties with a child, a Class 1 felony providing for a term of imprisonment of from four to 15 years; aggravated incest, a Class 2 felony providing for a term of imprisonment of from three to seven years; and attempted aggravated incest, a Class 3 felony providing for a term of imprisonment of from two to five years. (Ill. Rev. Stat. 1983, ch. 38, pars. 11-4(a)(2), 11-10(a)(2), 8-4(a), 1005-8-1.) The only sentencing restriction under the plea agreement was that the sentences imposed by the court be concurrent. As the sentences were made concurrent, and were within the statutory range for the offenses and the sentencing range as described to the defendant prior to the court's acceptance of his guilty plea, which plea was reaffirmed by the defendant at the inception of the sentencing hearing, imposition of sentences beyond the statutory minimum does not, of itself, require that he be allowed to withdraw his plea of guilty. In People v. Stacey (1977), 68 Ill.2d 261, 266-67, 369 N.E.2d 1254, 1256-57, it was stated:

"As a part of such [a plea] agreement the defendant implicitly undertakes to accept the sentence of the court and to admit that the sentence is fair and justified under the circumstances of the case. (People v. Whitehead (1975), 32 Ill. App.3d 615, 616; People v. Melvin (1975), 27 Ill. App.3d 269, 273; People v. Edwards (1974), 18 Ill. App.3d 379, 380.) This agreement applies to both a negotiated and nonnegotiated sentence imposed after a plea of guilty. * * *

As we have observed, Rule 604(d) is more than a simple procedural step. It is one which goes to the heart of the agreement entered into between the People and the defendant. To allow the defendant to appeal by attacking only the sentence would make for the unwholesome situation of the accused, through negotiation with the State, obtaining modification or dismissal of the more serious charges, entering a plea of guilty, and then attacking not his admission of the crime but only the sentence imposed."

Although the above language in Stacey was in the context of holding compliance with Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)) condition precedent to appeal after sentencing upon a plea of guilty, we find it likewise applicable here. The defendant's dissatisfaction is with the sentences imposed, but this dissatisfaction does not render involuntary his admissions of the crimes, and therefore does not require vacating the pleas of guilty. Moreover, we have reviewed the evidence presented in aggravation at the sentencing hearing, and find no abuse in the sentences imposed. People v. Cox (1980), 82 Ill.2d 268, 412 N.E.2d 541.

• 2 Defendant also argues that he is entitled to sentence credit pursuant to the terms of section 5-8-7(b) of the Unified Code of Corrections (Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-7(b)), first, for nine days served in jail on this charge prior to his release on recognizance bond (from May 8, 1984, to May 17, 1984); and second for 68 days of "total home confinement," with release for employment and medical purposes, imposed as a condition of his release on recognizance bond, from the time of his release through the date of sentencing. Section 5-8-7(b) 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, at the rate specified in Section 3-6-3 of this Code." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-7(b).)

The State concedes defendant's entitlement to sentence credit for the nine days served in the Vermilion County jail, but argues he has waived the issue of his entitlement for the 68 days of "total home confinement" by failing to raise it in his motion to withdraw his plea of guilty, citing Supreme Court Rule 604(d) (87 Ill.2d R. 604(d)).

Rule 604(d) provides that "[u]pon appeal any issue not raised by the defendant in the motion to withdraw the plea of guilty and vacate the judgment shall be deemed waived." At the outset, the State's waiver argument, if applicable at all, applies with equal force to both periods for which defendant requests sentence credit. We hold that the waiver language of Rule 604(d) does not apply to issues of sentence credit raised for the first time on direct appeal from denial of a motion to withdraw a guilty plea.

• 3 Section 5-8-7 of the Code does not specify which authority is to compute the credit the defendant should be accorded for "time spent in custody" on a given charge. In People v. Johnson (1974), 23 Ill. App.3d 886, 895, 321 N.E.2d 38, 46, the court commented that although it appeared the Department of Corrections could more conveniently perform the calculation, it had been the practice of some trial judges to compute and allow this credit. Johnson stated that, so long as the credit was given as required, it did not matter how it was accomplished. In People v. Miles (1983), 117 Ill. App.3d 257, 259-60, 453 N.E.2d 68, 69-70, this court considered a case which demonstrated the obstacles which can arise when the calculation of jail credit is left to non-judicial personnel. It is the judgment of the court which is the authority for the detention of the prisoner. (Ill. Rev. Stat. 1983, ch. 110, par. 701.) Further, it is fundamental that "`[a] sentence should be * * * so complete that it will not be necessary for a non-judicial or ministerial officer to supplement the written words to ascertain its meaning.'" (People v. Miles (1983), 117 Ill. App.3d 257, 259, 453 N.E.2d 68, 69, citing People v. Walton (1969), 118 Ill. App.2d 324, 333, 254 N.E.2d 190, 194-95.) Here, the record does not show that defendant was given any credit toward the sentences imposed by the trial judge. It is preferable for a defendant to request that the trial judge grant the sentencing credit to which he is entitled, and present any argument thereon, but the statute does not require that this procedure be followed.

Under Johnson, the Department of Corrections may be left to perform the calculation of credit, but any error, or the failure to perform the calculation, would not necessarily be known to a defendant at the time for filing the motion to withdraw his guilty plea. Section 5-4-1(e)(4) of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 1005-4-1(e)(4)) provides that the clerk shall transmit to the department or institution to which the defendant is committed the number of days, if any, which he has been in custody and for which he is entitled to credit against the sentence, which information shall be provided to the clerk by the sheriff. Neither would any resulting error, or the failure to comply with this section, necessarily be known to a defendant at the time for filing the motion to withdraw his guilty plea. As the right to sentence credit derives wholly from statute and is not a constitutional right, it does not appear that sentencing credit would be the subject for relief in proceedings under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1983, ch. 38, par. 122-1 et seq.; People v. Owens (1966), 34 Ill.2d 149, 150-51, 214 N.E.2d 749, 750.) We see little point in requiring a defendant to initiate additional proceedings when sentencing credit issues may as well be raised on direct appeal from the denial of a motion to withdraw a plea of guilty. Also, since the statute does not mandate that the trial court compute and announce sentence credit to which a defendant is entitled, it cannot be said that sentence credit is within the scope of the plea agreement within the meaning of Stacey. We therefore consider the merits of the issue raised.

• 4 Upon a review of the record, we concur that defendant is entitled to sentence credit for the nine days served in jail prior to his release on recognizance bond. We reject defendant's argument as to his entitlement to an additional 68 days' sentence credit.

On May 16, 1984, defendant filed a motion to modify bail conditions, stating that he had been placed on "work release" bond with confinement in the county jail when not working, but had now arranged a place to live apart from his spouse and step-children within walking distance of his employment, and that he had no criminal record and was employed in the community. He sought modification of his bail conditions to permit his release. At hearing on May 17, 1984, defendant testified that if released, he would stay at a hotel within three blocks of his employment. The State opposed the motion. The court allowed the motion and ordered defendant's release from the public safety building, substituting as a bond condition "total home confinement" at the hotel indicated, with a release for employment and medical purposes, e.g., counseling. The no-contact provisions, of which the defendant had previously been advised, were continued. The trial judge further informed the defendant that if the conditions were ...


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