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People v. Scalise

Court of Appeals of Illinois, Third District

June 14, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
RONALD A. SCALISE, Defendant-Appellant.

         Appeal 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.

          OPINION

          SCHMIDT, JUSTICE

         ¶ 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 affirm.

         ¶ 2 FACTS

         ¶ 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, 944.

         ¶ 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).

         ¶ 6 ANALYSIS

         ¶ 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, ¶ 110-14.

         In 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 resolution to

"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 ...

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