Appeal from the Circuit Court of Winnebago County. Nos. 05-CF-1003 05-CF-1320 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Hutchinson concurred in the judgment and opinion.
¶ 1 Defendant Daniel L. Clark brings this appeal following the denial of his motion to withdraw his negotiated plea of guilty to a single count each of residential burglary (720 ILCS 5/19-3 (West 2004)) and attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 2004)). Defendant contends that his sentence of eight years' imprisonment for the latter offense must be reduced in order to afford him the benefit of his bargain with the State as it concerns sentencing credit for time served in custody before he entered his plea. We agree and we modify the mittimus by reducing defendant's prison term for attempted armed robbery to 6 years and 108 days.
¶ 2 Defendant was arrested on April 5, 2005, and was subsequently charged by indictment with several offenses, including residential burglary, in case No. 05-CF-1003. He remained in custody for 28 days before being released on bond on May 2, 2005. Two days later, defendant was arrested and charged with armed robbery (720 ILCS 5/18-2 (West 2004)) in case No. 05-CF-1320. Thereafter, he remained in custody for 331 days before entering a negotiated plea of guilty to the residential burglary charge and to a reduced charge of attempted armed robbery. Pursuant to his agreement with the State, defendant was sentenced to an eight-year prison term for each offense and the trial court ordered the sentences to run consecutively. Defendant argues that under the plea agreement, as it was stated at the hearing at which he entered his plea, he is entitled to a total of 650 days' credit toward his aggregate 16-year prison term-339 days' credit for time served toward his sentence for residential burglary, plus 311 days' credit toward the sentence for attempted armed robbery. At the hearing on his motion to withdraw his plea, defendant testified that, before he entered his plea, his attorney had told him that the State had agreed that sentencing credit would be calculated in this manner. That testimony was contradicted by the testimony of defendant's attorney, who indicated that he had informed defendant that the State would not agree to a 650-day sentencing credit. Defendant maintains, however, that discussions that did not occur in open court may not be considered in ascertaining the terms of the plea agreement. Defendant acknowledges that the statute governing credit for time served does not permit him to receive double credit for the 311 days during which he was simultaneously in custody for both residential burglary and attempted armed robbery. See People v. Latona, 184 Ill. 2d 260, 271 (1998) ("[T]o the extent that an offender sentenced to consecutive sentences had been incarcerated prior thereto on more than one offense simultaneously, he should be given credit only once for actual days served."). He maintains, however, that he is still entitled to the benefit of his bargain with the State and that, in lieu of awarding the promised credit, his prison term for attempted armed robbery should be reduced.
¶ 3 In People v. Whitfield, 217 Ill. 2d 177 (2005), our supreme court explained that "[w]hen seeking relief from a guilty plea, either directly or collaterally, there are two separate, though closely related, constitutional challenges that may be made: (1) that the plea of guilty was not made voluntarily and with full knowledge of the consequences, and (2) that defendant did not receive the benefit of the bargain he made with the State when he pled guilty." Id. at 183-84. The latter challenge is rooted in the holding of Santobello v. New York, 404 U.S. 257 (1971), that the due process clause mandates that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262.
¶ 4 Illinois Supreme Court Rule 402(b) (eff. July 1, 1997) provides in pertinent part, "If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court." Illinois Supreme Court Rule 402(a)(2) (eff. July 1, 1997) provides that the trial court shall not accept a guilty plea without first informing the defendant of and determining that he or she understands "the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences." In Whitfield, the defendant entered a guilty plea in exchange for a 25-year prison term. However, in stating the terms of the plea agreement, the prosecutor did not indicate that the defendant would be subject to a three-year period of mandatory supervised release (MSR) after completing his prison term. The trial court ratified the plea agreement as stated by the prosecutor and failed to admonish the defendant, as required by Rule 402(a)(2) (see People v. Wills, 61 Ill. 2d 105, 109 (1975)), that the MSR term was part of his sentence. Our supreme court held that "[u]nder these circumstances *** adding the statutorily required three-year MSR term to defendant's negotiated 25-year sentence amounts to a unilateral modification and breach of the plea agreement by the State, inconsistent with constitutional concerns of fundamental fairness." Whitfield, 217 Ill. 2d at 190.
¶ 5 In this case, the prosecutor described the plea agreement as follows:
"The defendant would be sentenced to 8 years in the Department of Corrections on each charge. The sentences are consecutive. ***
On the attempt armed robbery the defendant has 311 days' credit for time served. On the residential burglary charge the defendant has 339 days' credit for time served.
And that's the full agreement."
Thus, the State represented in open court that it had been agreed that defendant was entitled not only to 339 days' credit toward his sentence for residential burglary, but also to 311 days' credit toward his sentence for attempted armed robbery. Because the sentences were consecutive, the most natural interpretation of the prosecutor's description of the agreement is that defendant would serve a prison term of 8 years, less 339 days, for residential burglary, followed by a prison term of 8 years, less 311 days, for attempted armed robbery. The prosecutor never indicated that, although defendant's sentences were to run consecutively, the sentencing credits would, in effect, apply concurrently, such that the 311-day credit would essentially merge into the 339-day credit.
¶ 6 The trial court ratified the agreement as stated by the prosecutor, never clarifying that defendant would, in fact, receive a total credit of only 339 days-not 650-toward his aggregate sentence. Indeed, the trial court could have only reinforced the notion that the credits would apply separately when it pronounced sentence as follows:
"I am going to sentence you *** to 8 years in the Department of Corrections on 05-CF-1003. On that case you will receive ...