Appeal from the Circuit Court of Cook County No. 10 CR 18925 Honorable Domenica Stephenson, Matthew E. Coghlan, Judges Presiding.
The opinion of the court was delivered by: Justice Pierce
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Sterba and Hyman concurred in the judgment and opinion.
¶ 1 This appeal involves two issues: (1) whether defendant, Milton Lenoir, received the benefit of his negotiated plea agreement calling for credit for time served in custody prior to entering his guilty plea, and; (2) whether, as a defendant eligible for sentencing as a Class X offender, the mandatory supervisory release term is that dictated by the underlying felony or the term mandated under the Class X sentencing statute (730 ILCS 5/5-4.5-95(b) (West 2010)). For the following reasons, we affirm in part and pursuant to our supervisory authority under Illinois Supreme Court Rule 615(b)(4), modify and reduce defendant's sentence to 6 years and 56 days' imprisonment.
¶ 2 Defendant was on bond on a separate felony charge, No. 08 C6 60762, when he was arrested for the instant offense and subsequently charged with two counts of unlawful use or possession of a weapon by a felon and four counts of aggravated unlawful use of a weapon. On July 22, 2011, defendant pled guilty and was sentenced in No. 08 C6 60762 to 7 years' imprisonment with credit for 633 days of presentence custody.
¶ 3 On August 15, 2011, defendant pled guilty, in this case, to unlawful use or possession of a weapon by a felon. Judge Domenica Stephenson was advised of the terms of the negotiated plea agreement. Judge Stephenson informed defendant that the parties had agreed that, although the charge of unlawful use or possession of a weapon is a Class 2 felony, because of his background defendant would be sentenced as a Class X offender to seven years' imprisonment followed by 3 years of mandatory supervised release (MSR). In addition, the court informed defendant that he would be required to pay fines and costs in the amount of $405 and would be given 309 days of presentence credit. Defendant indicated that this was his understanding of the agreement.
¶ 4 After defendant formally entered his plea of guilty, the court again explained to defendant that he was being sentenced as a Class X offender based on his background and that the possible sentence was 6 to 30 years and a fine up to $25,000, as well as 3 years of MSR. Defendant indicated that he understood that he had the right to continue to plead not guilty and require the State to prove him guilty beyond a reasonable doubt. The court further explained to defendant that he would receive seven years' imprisonment consecutive to the sentence he received in No. 08 CR 60762. The court then obtained defendant's affirmance to the waiver of his trial rights.
¶ 5 A factual basis for the plea was provided and the court found that a factual basis for the plea existed. The court entered a finding of guilty of unlawful use or possession of a weapon by a felon and entered judgment on the finding. Defendant waived his right to a presentence investigation report and the court immediately moved to sentencing.
¶ 6 In aggravation, the State informed the court that defendant had nine prior felony convictions dating back to the late 1980s. Defendant offered nothing in mitigation. The court then sentenced defendant to 7 years' imprisonment to be served at 50% followed by 3 years of MSR, 309 days time considered served, and $405 in fines and fees, to be served consecutive to the sentence imposed in No. 08 CR 60762. The court informed defendant of his appeal rights.
¶ 7 Sometime after he began serving his sentence, defendant was told by the Department of Corrections that he was not going to receive the agreed-upon 309 days' credit because he was already receiving this credit against the sentenced imposed in No. 08 CR 60762. Not knowing the proper procedure, defendant filed a timely motion to withdraw his guilty plea and a motion to correct his mittimus. He alleged that he did not receive the credit for 309 days in presentence custody which was agreed to in this case. Defendant claimed that between his two cases, this case and No. 08 C6 60762, he was entitled to 942 days credit: 633 days he received in No. 08 C6 60762 plus 309 days he received in this case.
¶ 8 These motions were heard by Judge Matthew Coghlan. Defendant, pro se, explained that he had not filed a grievance or appeal with the Department of Corrections requesting that it recalculate his presentence credit and he filed both motions because he was not sure how to proceed. After the court reviewed defendant's Department of Corrections calculation sheet and his court file, the following colloquy was had:
"THE COURT: So you do not get double credit. You don't get 309 on the first one, plus 633 on the second one.
You pled guilty on July 22nd of 2011 on the case in front of Judge Panicchi [sic]. DEFENDANT: Yes, sir.
THE COURT: You were in custody already on this case when you did that. DEFENDANT: Yes.
THE COURT: So you're not going to get double credit for the time up to the 22nd. You already got credit for that.
But then you pled guilty in this case on August 15th. So that would be an additional 24 days.
THE COURT: So you would get an aggregate credit of 657 days. That's the 633 you got from Judge Panicchi [sic], plus the 24, for 657.
THE COURT: If you wish, I will issue a corrected mittimus giving you 657 days of aggregate credit reflecting that this case ...