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People v. Morrison

Court of Appeals of Illinois, Fourth District

September 30, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JOSE R. MORRISON, Defendant-Appellant.

         Appeal from Circuit Court of Coles County No. 11CF449 Honorable Mitchell K. Shick, Judge Presiding.

          JUSTICE POPE delivered the judgment of the court, with opinion. Justice Turner concurred in the judgment and opinion.

          OPINION

          POPE JUSTICE

         ¶ 1 Defendant, Jose R. Morrison, appeals the first-stage dismissal of his postconviction petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2014)). Defendant argues he is entitled to (1) one additional day of credit against his sentence and (2) a $5-per-day credit for time he spent in presentence custody. We affirm but remand with directions for the clerk of the circuit court to correct the fines, fees, and costs order to reflect the $5-per-day monetary credit.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was arrested on October 15, 2011. On October 17, 2011, the State charged defendant with home invasion (720 ILCS 5/12-11(a)(2), 5-1 (West 2010)) (count I) (charging defendant "or one for whose conduct he [was] legally accountable, *** knowingly and without authority, entered the dwelling place of [the victims] *** knowing persons to be present within that dwelling place, and intentionally caused injury to [the victim]"), robbery (720 ILCS 5/18-1(a) (West 2010)) (count II), and residential burglary (720 ILCS 5/19-3(a) (West 2010)) (count III).

         ¶ 4 On January 31, 2013, defendant pleaded guilty but mentally ill to home invasion and residential burglary (counts I and III) in exchange for a sentence of 22 years in the Department of Corrections for the home invasion count (count I), a concurrent sentence of 15 years for the residential burglary count (count III), and dismissal of the robbery count (count II). In addition, defendant agreed (1) the trial court would find great bodily harm resulted from the offenses and (2) to testify truthfully against a codefendant. Defendant would be assessed court costs and restitution in the amount of $17, 088.42. Defendant indicated his agreement with the terms of the negotiated plea.

         ¶ 5 The trial court admonished defendant regarding the charges against him on an accountability basis, the fact he was eligible for an extended term due to the age of the victim, the possible penalties, and his right to a trial. Defendant indicated his understanding and willingness to waive his right to a trial. Defendant also advised the court he had not been threatened or forced to plead guilty, nor had any other promises been made. The court determined defendant was waiving his rights voluntarily. After finding a factual basis for the charges and the restitution amount, the court accepted defendant's guilty plea and sentenced him in accordance with the plea agreement. Defendant was given 473 days of sentence credit. The circuit clerk imposed a $50 court-finance assessment, a $10 child-advocacy assessment, and a $5 drug-court assessment. Defendant did not request, and the record does not reflect the court ordered, a $5-per-day credit for time in custody prior to sentencing to be applied against the fines.

         ¶ 6 The trial court admonished defendant he had the right to appeal; however, before he could file an appeal, he would have to first file a motion to withdraw his guilty plea and vacate the judgment.

         ¶ 7 On May 6, 2013, defendant filed a pro se motion for a reduction of his sentence. On May 8, 2013, the trial court denied the motion as untimely. Defendant did not file a direct appeal.

         ¶ 8 On June 6, 2014, defendant filed the pro se postconviction petition, which is the subject of the instant appeal. In his petition, defendant claimed he received ineffective assistance of trial counsel when counsel (1) misinformed him the home invasion conviction would be served at 50% instead of 85% and (2) encouraged him to just say "okay" during the plea admonishments even though counsel knew defendant could not understand the admonishments because he was mentally handicapped. The petition made no reference to any sentencing-credit errors. On July 24, 2014, the trial court summarily dismissed the petition as frivolous and patently without merit.

         ¶ 9 This appeal followed.

         ¶ 10 II. ANALYSIS

         ¶ 11 On appeal, defendant has abandoned the claims in his postconviction petition and instead contends (1) the trial court failed to credit him properly for time he spent in custody awaiting trial, arguing he is entitled to one additional day of credit under the provisions of section 5-4.5-100(b) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-4.5-100(b) (West 2012)) (formerly section 5-8-7(b) of the Corrections Code (730 ILCS 5/5-8-7(b) (West 2008)) and (2) he is entitled to a $5-per-day credit for time spent in ...


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