Appeal from the Circuit Court OF ILLINOIS, of Winnebago County.No. 01-CF-1783 Honorable Rosemary Collins, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Jorgensen and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, William H. Purcell, appeals from the dismissal of his successive petition under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)). His sole contention on appeal is that he is entitled to 815 days of credit against his sentence of natural life incarceration for first-degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 2000)). The State contends that defendant forfeited his claim because he failed to raise it in any of his post-conviction petitions. We determine that a sentence of natural life incarceration is a determinate sentence and that, as a result, defendant is entitled to the credit. Accordingly, we modify the mittimus to reflect the credit.
¶ 3 Defendant was arrested on August 3, 2001, and remained in custody. In 2003, he was convicted and sentenced to a term of natural life in prison. No credit was given for time spent in presentence custody. Defendant did not raise any issues concerning sentencing credit on appeal, and his conviction and sentence were affirmed. People v. Purcell, 364 Ill. App. 3d 283 (2006). Since then, defendant has filed multiple post-conviction petitions, none of which raised an issue concerning sentencing credit.
¶ 4 In June 2011, defendant filed another post-conviction petition. Like the others, that petition did not raise an issue about sentencing credit. The trial court denied leave to file the petition, and defendant appeals.
¶ 6 Defendant contends that he is entitled to credit against his sentence for time spent in presentence custody. The State contends that he forfeited the issue by failing to raise it in any of his post-conviction petitions.
¶ 7 "A defendant has a right to one day of credit for each day or portion of a day spent in custody before sentencing." People v. Flores, 378 Ill. App. 3d 493, 495 (2008) (citing 730 ILCS 5/5-8-7(b) (West 2004)). "In the context of a direct appeal, we have held that '[b]ecause sentence credit for time served is mandatory, a claim of error in the calculation of that credit cannot be waived.' " Id. (quoting People v. Whitmore, 313 Ill. App. 3d 117, 121 (2000)). " '[T]he trial court retains jurisdiction to amend the mittimus to reflect additional sentencing credit.' " Id. (quoting People v. O'Neill, 367 Ill. App. 3d 439, 440 (2006)). "In addition, we can modify the mittimus, at least when the issue is raised on direct appeal." Id.
¶ 8 Likewise, when the issue is raised for the first time on appeal from the dismissal of a post-conviction petition, we have construed the request as a motion to amend the mittimus and have awarded the credit. Id. at 496-97. This is consistent with our supreme court's holding that, while a claim for credit is not a constitutional claim cognizable under the Act, it is a statutory "application of the defendant" that may be raised at any stage of court proceedings, even on appeal in a post-conviction proceeding. People v. Caballero, 228 Ill. 2d 79, 87-88 (2008). Thus, the appellate court, in the interests of an orderly administration of justice, may grant the relief requested. Id. at 88. "We review de novo the calculation of the number of days a defendant served in presentence custody, as resolving that issue does not require us to defer to the trial court's reasoning." People v. Gomez, 409 Ill. App. 3d 335, 341 (2011).
¶ 9 Here, pursuant to Caballero, defendant may raise for the first time on appeal his claim that he is entitled to sentencing credit. The State contends that the supreme court indicated a change in the law in People v. Petrenko, 237 Ill. 2d 490, 502 (2010). But that case does not address the issue of sentencing credit and is not applicable.
¶ 10 The State also argues that, because applying the credit would be meaningless, we should not grant the request. Defendant, however, argues that the credit is mandatory against any determinate sentence and that a sentence of natural life is a determinate sentence. We agree with defendant.
¶ 11 The Unified Code of Corrections (Code) states that a defendant "shall be given credit on the determinate sentence *** for time spent in custody as a result of the offense for which the ...