Appeal from the Circuit Court of Lake County. No. 11-CF-1962 Honorable James K. Booras, Judge, Presiding.
JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.
¶ 1 After a bench trial, defendant, Raymond C. Smith, was convicted of escape, a Class 2 felony (720 ILCS 5/31-6(c) (West 2010)). The trial court sentenced him to seven years' imprisonment, the maximum nonextended term (see 730 ILCS 5/5-4.5-35(a) (West 2010)), and ordered him to pay a $200 DNA analysis fee (730 ILCS 5/5-4-3(j) (West 2010)) and $341 in other assessments. On defendant's motion, the court reduced his prison sentence to six years. Defendant appeals, arguing that (1) his sentence was tainted because the trial judge erroneously assumed that defendant was eligible for an extended-term sentence; (2) the DNA analysis fee must be vacated; and (3) he must receive a monetary credit, against various fines, for time spent in custody before sentencing. We affirm as modified in part and vacate in part.
¶ 2 On November 15, 2011, the trial court held a bench trial. The evidence showed that, on June 18, 2011, defendant was in a jail holding cell on charges of knowingly discharging a firearm in the direction of another person and unlawfully possessing a firearm (case No. 11-CF-1536). He complained of illness, so a police officer called an ambulance. While riding in the ambulance, defendant escaped and ran away. The trial court found defendant guilty of escape.
¶ 3 On May 15, 2012, and June 15, 2012, the trial court held a sentencing hearing. Defendant's mother testified in mitigation and requested that defendant receive probation. A detective who had investigated the events in case No. 11-CF-1536 testified in aggravation. In arguments, the prosecutor noted, "The sentencing option here is obviously 3 to 7 year [sic] and it's probationable. I don't believe—I haven't been able to determine so at this point I don't believe—because most of his prior felonies have been Class 4s and 3s, I don't believe he is extendible [sic]." The prosecutor continued that defendant's escape had endangered the public; that defendant's criminal history dated back to 2000; and that several sentences of probation and one parole term had been terminated unsatisfactorily. The prosecutor then referenced case No. 11-CF-1536 as proof of defendant's dangerousness and requested that the court sentence defendant to seven years in prison.
¶ 4 Defendant's attorney noted that the State had dismissed the charges in case No. 11-CF-1536. Further, defendant had successfully completed parole in 2005 and, between then and the present case, he had committed only traffic offenses. Defendant's attorney urged a sentence of probation.
¶ 5 In sentencing defendant, the trial judge explained as follows. Defendant had an extensive criminal history and had several terms of probation that were terminated unsatisfactorily, as well as one parole revocation. By escaping from the ambulance, he had threatened the public and himself with serious harm. Also, although the charges in case No. 11-CF-1536 were dismissed, defendant had possessed a gun although he was a felon. To protect the public, and given defendant's dubious rehabilitative prospects, the judge concluded that seven years' imprisonment was proper. The judge did not mention anything about the possibility, or desirability, of an extended-term sentence.
¶ 6 On June 21, 2012, at a hearing, defendant orally moved to reconsider the sentence. Defendant's attorney argued that the court had placed too much weight on case No. 11-CF-1536 and too little weight on defendant's relatively limited record since 2005. The prosecutor countered that defendant's criminal history was substantial and that his escape had been a reckless and dangerous act. The trial judge stated that he had considered case No. 11-CF-1536 solely as proof that defendant, as a felon, had unlawfully possessed a firearm. He also stated that defendant had never completed probation successfully. Defendant's attorney maintained that defendant had successfully completed one probation term. The following colloquy then ensued:
"THE COURT: Tell me which probation term he completed. And you mentioned I gave him the maximum. You know why I gave him the maximum? So I wouldn't have given him an extended term because he deserves it.
MR. RINEHART [defendant's attorney]: He doesn't qualify for an extended term.
THE COURT: Well, I said he deserves.
MR. RINEHART: He doesn't qualify for an ...