from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois. Circuit No. 08-CF-1420 Honorable Edward A.
Burmila, Jr., Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court, with
opinion. Justice O'Brien concurred in the judgment and
opinion. Justice McDade dissented, with opinion.
1 Defendant, Ronald A. Scalise, appeals from the dismissal of
his petition for relief from judgment. On appeal,
defendant's sole issue is a request for the application
of the $5-per-day presentence incarceration credit. We
3 On October 22, 2009, defendant entered a plea of guilty to
two counts of predatory criminal sexual assault of a child
(720 ILCS 5/12-14.1(a)(1) (West 2008)). The two counts
alleged that defendant committed the charged offenses between
1998 and 2000. In exchange for his guilty plea to the two
predatory criminal sexual assault of a child charges, the
State filed a motion to nolle prosequi four other
charges and recommended sentences of two consecutive terms of
12 years' imprisonment to be followed by two consecutive
terms of 2 years' mandatory supervised release (MSR). The
State advised the court that defendant would receive credit
for nine days spent in presentence custody and pay $6056 in
costs. Defendant agreed to forfeit part of his $50, 000 bond
to pay the costs. The court accepted defendant's plea and
imposed the recommended sentences. The judgment awarded
defendant nine days of presentence incarceration credit. A
criminal cost sheet detailed the $6056 in costs, which
included a $50 "Court Systems Fee." Application of
defendant's $50, 000 bond resulted in a refund of $43,
4 On September 6, 2011, defendant filed a postconviction
petition. After second-stage proceedings, the court dismissed
defendant's petition. On appeal, we vacated
defendant's $500 sex crimes assessment, imposed two
statutorily mandated $100 sexual assault fines (730 ILCS
5/5-9-1.7(b)(1) (West 1998)), and remanded the cause with
directions for the clerk to issue a $300 refund. People
v. Scalise, 2015 IL App (3d) 130720.
5 On March 12, 2015, defendant filed a pro se
petition for relief from judgment pursuant to section 2-1401
of the Code of Civil Procedure. 735 ILCS 5/2-1401 (West
2014). Defendant argued that his plea was void because it did
not include two mandatory sex crime fines, the clerk of the
court imposed several unauthorized costs, and the court
lacked authority to impose a four-year term of MSR. The State
filed a motion to dismiss the petition. The court granted the
State's motion, finding the petition was untimely and the
claims alleged were without merit. Defendant appeals.
Defendant abandons these issues on appeal and argues only,
and for the first time, that he is entitled to a statutory
$5-per-day presentence incarceration credit. 725 ILCS
5/110-14(a) (West 2014).
7 For the first time on appeal, defendant applies for the
$5-per-day presentence incarceration credit. Defendant does
not challenge the dismissal of his section 2-1401 petition,
and therefore, this appeal is limited to the applicability of
the $5-per-day credit. Defendant argues he is entitled to
offset $45 of his $50 "court systems fine" with
credit earned during his nine-day presentence incarceration.
Defendant acknowledges that a 2005 amendment to section
110-14 of the Code of Criminal Procedure of 1963 (Code) (725
ILCS 5/110-14(b) (West 2006)) renders the per diem
credit unavailable to individuals incarcerated for predatory
criminal sexual assault of a child, but he argues that
application of this section would violate the prohibition
against ex post facto laws. See People v.
Prince, 371 Ill.App.3d 878, 880-81 (2007). We find the
ex post facto prohibition does not apply to
subsection 110-14(b) because it is not a punitive statute and
does not have a punitive effect.
8 The United States Constitution (U.S. Const., art. I,
§§ 9, 10) and Illinois Constitution (Ill. Const.
1970, art. I, § 16) prohibit the enaction of laws that
retroactively increase the punishment for a criminal act.
People ex rel. Birkett v. Konetski, 233 Ill.2d 185,
208 (2009). A law that is retroactive and disadvantageous to
a defendant is ex post facto. Id. at 208-09. A
disadvantageous law "criminalizes an act innocent when
performed, increases the punishment for an offense previously
committed, or alters the rules of evidence making a
conviction easier." Id. at 209. The ex post
facto prohibition only applies to punitive laws. See
People v. Dalton, 406 Ill.App.3d 158, 164 (2010)
(finding ex post facto principles did not apply to
the imposition of two fees but applied to the imposition of a
fine); see also People v. Ruback, 2013 IL App (3d)
110256, ¶ 48 (ex post facto principles
prohibited the imposition of a $500 fine).
9 We first examine section 110-14 to determine if it is a
punitive statute or possesses a punitive effect which would
subject it to an ex post facto challenge. Section
110-14 was enacted as part of the Code and became effective
January 1, 1964. At that time, the statute broadly provided
that defendants held in presentence custody were to receive
credit against their fines. "Any person incarcerated on
a bailable offense who does not supply bail and against whom
a fine is levied on conviction of such offense shall be
allowed a credit of $5 for each day so incarcerated
prior to conviction except that in no case shall the amount
so allowed or credited exceed the amount of the fine."
(Emphasis added.) Ill. Rev. Stat. 1965, ch. 38, ¶
1977, the legislature amended section 110-14 to state the
credit is available "upon application of the
defendant" and "[t]he clerk of the court shall
notify the defendant in writing of this provision of the Act
at the time he is convicted." Pub. Act 80-666, § 1
(eff. Oct. 1, 1977) (amending Ill. Rev. Stat. 1975, ch. 38,
¶ 110-14). Senator Carroll described the amendment as a
"The problem *** that most [defendants] are not aware of
the provisions of this nor is it capable for the county
clerks or the clerks of the circuit courts of the various
counties to enforce the provisions of the bill as it now
stands for they don't always know at the time of trial
who is on bail, et cetera. So this is a change in that to
provide that the clerk shall notify the defendant in writing
and then he will then make ...