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People v. Brown

Court of Appeals of Illinois, Third District

January 31, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CHRISTOPHER BROWN, Defendant-Appellant.

         Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CF-732, Honorable Carla Alessio-Policandriotes, Judge, Presiding.

          O'BRIEN JUSTICE delivered the judgment of the court, with opinion. Presiding Justice Holdridge concurred in the judgment and opinion. Justice Wright dissented, with opinion.

          OPINION

          O'BRIEN JUSTICE.

         ¶ 1 Defendant, Christopher Brown, appeals the denial of his request to correct the mittimus to reflect additional presentence custody credit. We vacate and remand with directions.

         ¶ 2 FACTS

         ¶ 3 On March 29, 2012, the State filed a complaint against defendant. The circuit court in Will County issued an arrest warrant the same day. At the time, defendant was in the custody of Cook County. On May 2, 2012, the circuit court issued a petition for habeas corpus asking the Cook County sheriff's department to deliver defendant to the circuit court in Will County on May 9, 2012. Defendant appeared on that day in the custody of the Cook County sheriff's department and a public defender was appointed.

         ¶ 4 On May 9, 2013, the parties entered a plea agreement in which defendant would plead guilty to home invasion (720 ILCS 5/12-11(a)(1) (West 2010)) and receive a sentence of 11 years' imprisonment. At sentencing, the court asked if the mittimus indicated that defendant would receive presentence custody credit from May 9, 2012, to May 9, 2013. Defense counsel agreed. The court sentenced defendant pursuant to the plea agreement and gave him credit for time served from May 9, 2012, to May 9, 2013. Defendant was also ordered to pay monetary assessments, including, inter alia: (1) $30 Children's Advocacy Center fee (55 ILCS 5/5-1101(f-5) (West 2012)), (2) $50 court systems fee (55 ILCS 5/5-1101 (West 2012)), (3) $10 specialized court fee (55 ILCS 5/5-1101(d-5) (West 2012)), (4) $100 crime laboratory analysis fee (730 ILCS 5/5-9-1.4 (West 2012)), and (5) $100 Trauma Center Fund fee (730 ILCS 5/5-9-1.10 (West 2012)).

         ¶ 5 Defendant did not file a motion to reconsider sentence or a direct appeal, but on October 27, 2014, he filed a pro se motion for order nunc pro tunc requesting the circuit court correct the mittimus to reflect credit for time he spent in custody in Cook County. The court asked the State to review the motion, and the prosecutor stated, "[Defendant] is looking for time credit when he was in Cook County. However, the time he is looking for was before he was even charged with this crime. He is certainly not entitled to it on this case." The circuit court denied the motion.

         ¶ 6 ANALYSIS

         ¶ 7 On appeal, defendant argues that (1) he should receive presentence custody credit beginning on the date he was charged and the arrest warrant was issued, equaling an additional 41 days of presentence custody credit, (2) his $100 Trauma Center Fund and crime laboratory analysis fees must be vacated because he was not convicted of any offense that required the imposition of those fees, and (3) he should receive $5-per-day presentence custody credit against his fines.

         ¶ 8 At the outset, we note that defendant incorrectly labeled his request for additional presentence custody credit as a "Motion for Order Nunc Pro Tunc." As nunc pro tunc orders may not be used to challenge a court's previous decision, we will construe defendant's motion as a motion to correct the mittimus. See People v. White, 357 Ill.App.3d 1070, 1072-73 (2005).

         ¶ 9 Section 5-4.5-100(b) of the Unified Code of Corrections states, "[an] offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for the number of days spent in custody as a result of the offense for which the sentence was imposed." 730 ILCS 5/5-4.5-100(b) (West 2012). Sentencing credit for time served is mandatory and a claim of error in calculating such credit cannot be forfeited. People v. Hill, 2014 IL App (3d) 120472, ¶ 27;[1] see also People v. Johnson, 401 Ill.App.3d 678, 680 (2010).

         ¶ 10 Here, defendant was charged and a warrant was issued on March 29, 2012, while defendant was in the custody of Cook County. While the dissent takes issue with the fact that defendant did not provide any certified records with regard to his custodial standing, we note the State does not dispute that defendant was in the custody of the Cook County sheriff. In fact, the State's appellee brief provides, "The defendant was in the custody of Cook County until his first appearance with Will County on May 9, 2012." We also note that the report of proceedings from the trial court below reveals that both the court and the defense attorney specifically acknowledged that defendant was in Cook County's custody. The report of proceedings and the State's affirmation of the fact are consistent with the information on the Department of Corrections' website. Accordingly, we hold defendant was in simultaneous custody for his Cook and Will County offenses on March 29, 2012.

         ¶ 11 An offender who is in simultaneous custody on two offenses is entitled to presentence custody credit on the newer offense beginning on the date he or she was charged and became subject to arrest. White, 357 Ill.App.3d at 1075; People v. Robinson, 172 Ill.2d 452, 463 (1996); Johnson, 401 Ill.App.3d at 681-83. Therefore, defendant is entitled to an additional 41 days of presentence custody credit ...


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