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People v. Latona

November 19, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
JOHN LATONA, APPELLEE. -THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ANZIO R. MARTINEZ, APPELLEE. -THE PEOPLE OF THE STATE OF ILLINOIS EX REL. DEPARTMENT OF CORRECTIONS, PETITIONER,
v.
HON.AMY M. BERTANI ET AL., RESPONDENTS.



The opinion of the court was delivered by: Justice Harrison

September 10, 1998

The central issue presented for our review in these three consolidated appeals concerns the interrelationship and proper application of sections 5-8-7(b) and 5-8-4(e)(4) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-7(b), 5-8-4(e)(4) (West 1994)) in a determination of custodial sentence credit for defendants sentenced to consecutive sentences. Subsidiary issues include the propriety of the circuit court's order amending the mittimuses of defendant Larry Williams and of the severity of the sentences imposed upon defendant Anzio Martinez. In cause No. 84102, defendant, John Latona, was charged in the circuit court of Lee County with solicitation of murder and solicitation of murder for hire in violation of sections 8-1.1(a) and 8-1.2(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, pars. 8-1.1(a), 8-1.2(a)). At the time the crimes allegedly took place, defendant was an inmate at the Dixon Correctional Center, serving an unrelated sentence for murder. A warrant was served on defendant at the correctional facility on July 31, 1989, the same day the charges were filed. As shown on the face of the warrant, bail was set in the amount of $500,000. Defendant did not post bail.

Defendant appeared in the circuit court several times on pretrial matters from July 1989 to January 8, 1990. Docket entries indicate that defendant was accompanied by Department of Corrections personnel in each instance and he was remanded to the Department of Corrections at the Conclusion of the day's proceedings. On December 27, 1989, the trial court suppressed certain incriminating statements defendant had made to an undercover police officer in Dixon Correctional Center. The State appealed. The appellate court reversed and remanded the cause for further proceedings. People v. Latona, 218 Ill. App. 3d 1093 (1991).

On remand, the trial court dismissed the count alleging solicitation of murder for hire, and the remaining count was tried before the court. Defendant was found guilty of solicitation of murder, and the matter was set over for sentencing. Having served his sentence of imprisonment on the prior murder conviction, defendant was released from the custody of the Department of Corrections in June of 1992. He was immediately taken into the custody of Lee County authorities pursuant to an order of the circuit court entered on June 2, 1992. On July 8, 1992, defendant was sentenced to 40 years' imprisonment. Defendant appealed. The appellate court affirmed defendant's conviction, but vacated his sentence and remanded the cause for a new sentencing hearing. People v. Latona, 268 Ill. App. 3d 718 (1994).

Defendant was resentenced to 36 years' imprisonment. A sentencing order entered May 31, 1995, indicates that the 36-year sentence was to be served consecutively to the defendant's prior sentence for murder. Defendant was given credit for time he had served in county custody after his release from prison on the murder conviction. An amended sentencing order entered June 9, 1995, specified that defendant was not to receive credit for time served on the sentence for murder.

Defendant again appealed, arguing that: (1) the trial court had considered an improper aggravating factor in sentencing, and (2) the court had erred in denying him credit for time he had spent in custody in the county jail on the solicitation charge following his release from the Department of Corrections. The appellate court concluded that defendant's first issue was meritorious and reduced his sentence to 30 years. The court did not address defendant's second issue. Latona, No. 2-95-0947 (unpublished order under Supreme Court Rule 23).

Defendant petitioned for leave to appeal to this court. Although that petition was ultimately denied, this court issued an order in the exercise of its supervisory authority, remanding the cause to the appellate court "to address the question of whether and to what extent defendant is entitled to credit for time served in custody prior to conviction, or to explain why the question cannot be reached." People v. Latona, 173 Ill. 2d 536 (1997).

In response, the appellate court issued a supplemental order on September 19, 1997, briefly discussing section 5-8-7(b) of the Unified Code of Corrections (730 ILCS 5/5-8-7(b) (West 1994)) and this court's opinion in People v. Robinson, 172 Ill. 2d 452 (1996). The appellate court determined that the "basis of defendant's custody" was, for periods of time, "ambiguous." The panel held that the trial court had "erred in denying credit for time served in custody awaiting trial, sentencing and resentencing on his conviction for solicitation of murder," concluding that the cause should be remanded for a determination of "the number of days credit the defendant is to receive." Indeed, with respect to the offense of solicitation, the time spent in county custody, and the basis for that custody, are matters unclear from the record in this case.

In any event, following the appellate court ruling, the State timely filed a petition for leave to appeal to this court pursuant to Supreme Court Rule 315 (166 Ill. 2d R. 315). This court granted that petition on December 3, 1997.

In cause No. 84125, defendant, Anzio Martinez, pled guilty to attempted murder and armed robbery in the circuit court of Du Page County. The trial court sentenced defendant to consecutive terms of 30 years' imprisonment for the attempted murder and 15 years' imprisonment for the armed robbery. The defendant appealed and the appellate court remanded for trial counsel's failure to comply with the certification requirements of Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). On remand, defense counsel filed an obligatory certificate, and the trial court subsequently denied defendant's motion to reconsider sentence. When the cause again came before the appellate court, the court rejected defendant's contention that his sentences were excessive, but determined that the trial court had erred when it failed to grant him a 379-day credit against each sentence for the 379 days he had spent in custody prior to sentencing, citing our decision in Robinson, 172 Ill. 2d 452. The appellate court modified the judgment of the circuit court, allowing defendant a 379-day credit on each of his consecutive sentences. Martinez, No. 2-95-0165 (unpublished order under Supreme Court Rule 23). The State subsequently filed a timely petition for leave to appeal pursuant to Supreme Court Rule 315 (166 Ill. 2d R. 315) which this court granted on December 3, 1997. The cause was consolidated with Latona for review because of a similar sentence-credit issue presented therein. In considering the issue of presentence custodial credit in the context of consecutive sentencing, we begin with an examination of the relevant statutes.

Section 5-8-4(e) of the Code provides in pertinent part:

"In determining the manner in which consecutive sentences of imprisonment *** will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents:

(4) the offender shall be awarded credit against the aggregate maximum term and the aggregate minimum term of imprisonment for all time served in an institution since the commission of the offense or offenses and as a consequence thereof *** ." 730 ILCS 5/5-8-4(e) (West 1996). Section 5-8-7(b) of the Unified Code of Corrections provides:

"The offender shall be given credit on the determinate sentence *** for time spent in custody as a result of the offense for which sentence was imposed ...


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