Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. No. 08 CR 20482. The
Honorable Timothy Joseph Joyce, Judge, presiding.
APPELLANT: Michael J. Pelletier, State Appellate Defender,
Patricia Mysza, Deputy Defender, Jonathan Krieger, Assistant
Appellate Defender, Office of the State Appellate Defender,
APPELLEE: Anita Alvarez, State's Attorney, Alan J.
Spellberg, Assistant State's Attorney, Michelle Katz,
Assistant State's Attorney, John J. Sviokla II, Assistant
State's Attorney, Chicago, Illinois.
GORDON delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice Palmer concurred in the
judgment and opinion.
[¶1] Defendant Lamarr Maxey pled guilty to
attempted aggravated robbery and was sentenced to 11 years
with the Illinois Department of Corrections (IDOC).
[¶2] On this direct appeal, defendant asks
us to vacate as void a prior bond order. Specifically,
defendant argues that the trial court erroneously placed him
on bond during a prior appeal by the State, although Illinois
Supreme Court Rule 604(a)(3) provides that " [a]
defendant shall not be held in jail or to bail during the
pendency of an appeal by the State." Ill. S.Ct. R.
604(a)(3) (eff. Dec. 11, 2014). As a result of this
order, defendant received consecutive sentences in another
case. Section 5-8-4(d)(8) of the Unified Code of Corrections
(Code) provides that, " [i]f a person charged with a
felony commits a separate felony while on pretrial release
*** then the sentences imposed upon conviction of these
felonies shall be served consecutively regardless of the
order in which the judgments of conviction are entered."
730 ILCS 5/5-8-4 (West 2014).
[¶3] Defendant asks us to declare the prior
bond order void and to vacate the consecutive sentences
entered in the other case, which is not before us on this
appeal. For the following reasons, we do not find
defendant's arguments on this issue persuasive.
[¶4] In the alternative, defendant asks us
to allow him to withdraw his guilty plea in the case at bar,
because it was allegedly based on a misunderstanding that his
guilty plea would not prevent him from subsequently
challenging the prior bond on appeal. Again, for the reasons
explained below, we are not persuaded by defendant's
[¶5] Lastly, defendant asks us to correct
the mittimus to reflect the 1,045 days of credit served. In
response, the State asks us to reduce the days of credit to
951 days. Pursuant to our supreme court's decision issued
last month in People v. Castleberry, 2015 IL 116916,
398 Ill.Dec. 22, 43 N.E.3d 932, we must deny the State's
request. We do order the mittimus corrected to reflect the
trial court's order.
[¶7] Since the issue before us is purely
procedural, we provide here the procedural history of the
[¶8] After being indicted for attempt
aggravated robbery, defendant filed a motion to quash arrest
and suppress evidence. After an evidentiary hearing, the
trial court granted defendant's motion on October 7,
2009. On November 4, 2009, the parties appeared in court and
the State indicated its intent to file, on the same day, a
certificate of substantial impairment and notice of appeal.
Defense counsel " object[ed] to the filing of that"
and also " ask[ed] for an appeal bond because *** this
[could] take two years while it pends." The parties
then agreed to a continuance to November 10, 2009. As it
stated it would do, the State filed both a notice of appeal
and a certificate of substantial impairment on November 4,
[¶9] On November 10, 2009, the parties
agreed to another short continuance, and appeared again on
November 24, 2009. The State argued that the trial court
lacked jurisdiction to reconsider its ruling on
defendant's motion, and that the appeal had to proceed.
Defense counsel responded: " I would ask you to set that
$10,000 I-bond, as this case could linger for several
years before ultimately being resolved in Mr. Maxey's
favor and it is punitive to hold him in custody while waiting
[¶10] Defense counsel then paraphrased
Illinois Supreme Court Rule 604(a)(3) (eff. Dec. 11, 2014),
stating: " The defendant shall not be held in jail or to
bail during pending [ sic ] a pendency of an appeal
by the State or of a petition or appeal by the State under
Rule 315 A, unless there are compelling reasons for his or
her continued detention or being held for bail."
[¶11] The assistant State's Attorney
(ASA) then responded: " I think I gave you compelling
reasons." However, the trial court held: " I
don't think so." The court then instructed defense
counsel: " Draft the order." To which, defense
counsel responded: " Yes, sir."
[¶12] The half-sheet entry for November 24,
2009, states: " PD (Vern) State Files Certificate of
Impairment nunc pro tunc 11/01/09[.] [B]ail set at $10,000 I
Bond # 6698202 off call." An order, dated November 24,
2009, also stated: " Bail set at $10,000 I Bond #
[¶13] While the State's appeal was
pending, defendant was arrested in another case (No. 11 CR
07414-01). On May 27, 2011, this court reversed the trial
court's grant of defendant's motion to quash and
suppress evidence and remanded for further proceedings in the
case on appeal before us (No. 08 CR 20482). People v.
Maxey, 2011 IL App. (1st) 100011, 949 N.E.2d 755, 350
Ill.Dec. 963. On December 20, 2012, after a bench trial,
defendant was found guilty in case No. 11 CR 07414-01 of
aggravated fleeing and eluding and residential
burglary. The sentencing was scheduled for a
[¶14] Prior to defendant's sentencing in
case No. 11 CR 07414-01, the parties appeared in court in
case No. 08 CR 20482 on January 10, 2013, and defense counsel
filed a motion to vacate the bond in case No. 08 CR 20482,
which had been entered several years earlier in 2009. The
trial court denied the motion, holding: " I do not think
that Rule 604 *** requires, quote, compelling reasons,
unquote, for someone to be held on an I-bond or on a
[¶15] The trial court further stated: "
And pending resolution of this case, if it comes up to argue
this again, should he be found guilty of this offense, you
can make whatever argument you see fit on his behalf, but I
agree you are entitled to have a decision now in order to
make whatever decisions you want to make hereafter."
[¶16] Then the parties proceeded to discuss
the pending plea offer from the State and defendant's
pending suppression motion. The trial court described the
State's plea offer of 11 years as " extremely
generous," in light of the 6 to 30 year sentencing range
and defendant's lengthy criminal history. Defense counsel
stated that defendant wanted to know if they could proceed on
the suppression motion and then, if it was denied, could he
still accept the State's plea offer of 11 years. The
court responded: " If he wants the 11, he can have the
11 right now. If he wishes to reject the 11, and you're
absolutely entitled to reject the 11, but we are going to
fish or cut bait, which means we're going to make a
[¶17] The parties went off the record and
then the following colloquy between defendant and the trial
court ensued on the record:
" DEFENDANT: Your Honor, I just feel like, you know, the
caselaw and everything, you know, based on Supreme Court Rule
604(a)(3), you know, I was supposed to be released
unconditionally. I mean, bail is bail, you know.
And as [the other trial judge] stated on the 24th of November
when he let me go, he said--[ASA] asked a compelling reason.
He said I don't think so. I mean, you read the
transcript. You know, I'm saying absent a compelling
reason, you know, I was entitled to unconditional release
under [Rule] 604(a)(3). And I feel like--you know, I
understand that I was out on bond and--I mean, I was out on
bond, but if I got my unconditional release, I wouldn't
have--you know, I wouldn't be out on bond. So that's
why I just don't feel like, you know, a consecutive
sentence is in order, you know, based on the fact that I was
out on a bond that I shouldn't have been out on, you
THE COURT: I appreciate that, that is the effect of the
ruling. I got that, Mr. Maxey. I didn't not take that
seriously. I ...