Modified upon denial of rehearing February 21, 2017
from the Circuit Court of Coles County, No. 11-CF-577; the
Hon. Mitchell K. Shick, Judge, presiding.
in part and vacated in part; cause remanded with directions.
Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V.
Kimmel, of State Appellate Defender's Office, of
Springfield, for appellant.
Bower, State's Attorney, of Charleston (Patrick Delfino,
David J. Robinson, and Thomas R. Dodegge, of State's
Attorneys Appellate Prosecutor's Office, of counsel), for
JUSTICE TURNER delivered the judgment of the court, with
opinion. Presiding Justice Knecht and Justice Steigmann
concurred in the judgment and opinion.
1 In December 2011, the State charged defendant, Devin M.S.
Daily, by information with one count of aggravated driving
under the influence of alcohol (625 ILCS 5/11-501(d)(1)(F)
(West 2010)), one count of aggravated driving under the
influence of drugs (625 ILCS 5/11-501(d)(1)(F) (West 2010)),
one count of aggravated driving under the influence of a
combination of alcohol and drugs (625 ILCS 5/11-501(d)(1)(F)
(West 2010)), one count of theft (720 ILCS 5/16-1(a)(1)(A)
(West 2010) (text of section effective July 1, 2011)), one
count of driving while license revoked (625 ILCS 5/6-303(a),
(d-3) (West 2010) (text of section effective July 1, 2011)),
one count of unlawful possession of drug paraphernalia (720
ILCS 600/3.5(a) (West 2010)), and unlawful possession of
cannabis (720 ILCS 550/4(a) (West 2010)). In September 2013,
the State filed another count of aggravated driving under the
influence (DUI) (625 ILCS 5/11-501(d)(1)(F) (West 2010)) and
one count of unlawful possession of a converted motor vehicle
(625 ILCS 5/4-103(a)(1) (West 2010)) against defendant.
Pursuant to a plea agreement, defendant pleaded guilty to
aggravated DUI and unlawful possession of a converted motor
vehicle. The Coles County circuit court sentenced defendant
to concurrent prison terms of 24 years for DUI and 14 years
for unlawful possession of a converted motor vehicle.
Defendant filed a motion to reconsider his sentence, which
the court denied.
2 Defendant appeals, asserting (1) his 24-year sentence for
aggravated DUI was outside the sentencing range, (2) he was
entitled to 750 days of sentencing credit, (3) the
assessments imposed by the circuit clerk should be vacated,
and (4) he is entitled to monetary credit against his fines.
We affirm in part, vacate in part, and remand the cause with
3 I. BACKGROUND
4 All of the charges in this case relate to defendant's
actions on December 10, 2010, while he was on furlough before
beginning a six-year prison term for burglary (People v.
Daily, No. 11-CF-425 (Cir. Ct. Coles Co.)). On that date,
defendant, who was under the influence of alcohol, stole a
truck and later crashed into a car, resulting in the death of
the car's driver. On December 12, 2011, defendant was
released from the hospital and taken to the Coles County
jail. The State filed the initial seven charges against
defendant on December 23, 2011. The record on appeal does not
contain a warrant for defendant's arrest on the charges
in this case. Moreover, the record contains no mention of
bond in this case until defendant's guilty plea hearing.
5 On September 27, 2013, the State filed the last two charges
of aggravated DUI and unlawful possession of a converted
motor vehicle. That same day, the circuit court held
defendant's guilty plea hearing. The court found
defendant was subject to Class X sentencing under section
5-4.5-95(b) of the Unified Code of Corrections (Unified Code)
(730 ILCS 5/5-4.5-95(b) (West 2010)) based on his prior
felony convictions. Pursuant to a plea agreement, defendant
pleaded guilty to aggravated DUI and theft, and the State
agreed to cap its sentence recommendation at 21 years for
aggravated DUI and 7 years for theft and seek the dismissal
of the other charges, as well as the charges in Coles County
case Nos. 11-DT-228 and 11-DT-338. The court accepted
defendant's guilty plea and the terms of the parties'
plea agreement. Thereafter, the prosecutor asked for a bond
to be set so defendant would be brought back to Coles County
upon his release from prison. It was noted defendant had
received notice of a bond payment in one of his cases.
Defense counsel clarified bond had not been set in this case
because defendant was taken directly from the hospital to
jail to serve his prison term for burglary. The circuit court
ordered defendant "held without bond for purposes of
6 At defendant's December 27, 2013, sentencing hearing,
the parties noted defendant had pleaded guilty to the wrong
count. Instead of the theft charge, defendant was to have
pleaded guilty to unlawful possession of a converted motor
vehicle. The circuit court vacated defendant's guilty
plea to the theft charge, and defendant pleaded guilty to
unlawful possession of a converted motor vehicle. At the
conclusion of the hearing, the court sentenced defendant to
concurrent prison terms of 24 years for aggravated DUI and 14
years for unlawful possession of a converted motor vehicle.
The court also ordered defendant to pay $5500 in restitution;
a $100 Violent Crime Victims Assistance Fund fine; a $5 drug
court fee; and a $1000 fee to the Mattoon police department,
which is the DUI equipment fine (625 ILCS 5/11-501.01(f)
(West 2010)). The court dismissed the remaining counts.
Defense counsel asked for 746 days of sentencing credit,
which the court denied because defendant was in prison on
another conviction during that period. On December 30, 2013,
the court issued the written sentencing judgment, which is
also referred to as the mittimus.
7 On January 27, 2014, defendant filed a motion to reconsider
his sentence, asserting his sentence was excessive and he was
not subject to Class X sentencing. After a September 22,
2014, hearing, the circuit court denied defendant's
motion. Defendant appealed, and upon the parties' agreed
motion, this court remanded the cause for a new proceeding in
strict compliance with Illinois Supreme Court Rule 604(d)