Opinion filed June 23, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 13th Judicial Circuit, ) Grundy County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-13-0548 v. ) Circuit No. 09-CF-189 ) JASON E. SMITH, ) ) Honorable Lance R. Peterson, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices McDade and O'Brien concurred in the judgment and opinion.

OPINION

¶1 The State charged and convicted the defendant, Jason Smith, with two counts of

felonious aggravated driving under the influence (625 ILCS 5/11-501(a)(4), 11-501(a)(5), 11-

501(d)(1)(C), 11-501(d)(2)(F) (West 2008)) and one count of misdemeanor driving under the

influence (625 ILCS 5/11-501(a)(6) (West 2008)). The trial court found the counts merged into

the most serious offense and sentenced defendant to three years' incarceration. The court

released defendant on bond pending the resolution of his direct appeal. This court affirmed

defendant's conviction and sentence. People v. Smith,

. Thereafter,

defendant moved for sentencing credit for the time he spent released pending the conclusion of his appeal. Defendant claimed that the conditions of his release entitled him to day-for-day

credit against his three-year sentence of incarceration. The trial court denied defendant's motion

and remanded him to the custody of the Illinois Department of Corrections. Defendant appeals

that ruling, claiming the trial court erred when finding his time spent released on bond pending

appeal did not entitle him to credit against his sentence of incarceration.

¶2 BACKGROUND

¶3 The facts of this matter are not in dispute. Witnesses testified that they observed

defendant traveling at approximately 90 miles per hour on Interstate 80 at 5:30 a.m. in December

of 2009. After swerving from the shoulder toward the left-hand lane, defendant's vehicle

collided with another, forcing the other vehicle into a ditch. An emergency room physician

treated defendant following the accident, collecting blood in the process. The blood, collected at

6:43 a.m., indicated a blood alcohol content of .067. Urine collected at 7:40 a.m. following the

accident tested positive for cannabis, amphetamines, and phenylpropanol.

¶4 A jury convicted the defendant in January of 2011 of driving under the influence (625

ILCS 5/11-501(a)(4), (a)(5) (West 2008)) and sentencing took place in October of 2011. On

October 20, 2011, the trial court sentenced defendant to three years' incarceration. The State

took defendant into custody on October 27, 2011. Defendant filed a timely motion to reconsider

sentence, as well as a motion for release pending the conclusion of his appeal. The trial court

denied defendant's motion to reconsider sentence, but ultimately granted defendant's motion for

release.

¶5 The order granting defendant's motion for release states as follows:

"Standard conditions of bond apply except that the Defendant

is allowed to travel to Wisconsin and Indiana for Work/Apprenticeship

2 Program only.

Special Conditions of Appellate Bond:

(1) Defendant is on home confinement and may leave only

for Work/Apprenticeship Program.

(2) Defendant must maintain a SCRAM/GPS monitoring

bracelet at all times, to be monitored by the Grundy County Probation

Department.

(3) Defendant is to consume no alcohol.

(4) Defendant is not permitted to drive a motor vehicle.

(5) Defendant is to remain enrolled in the Apprenticeship

Program. If he is no longer enrolled in the Apprenticeship Program he

is to notify the State's Attorney's Office or Probation Department within

48 hours of the disenrollment.

(6) Defendant will reside at 1315 Susan Circle, Morris, IL 60450.

Bond is set in the amount of $30,000.00, 10% to apply."

¶6 Upon learning that the probation department did not have the ability to monitor defendant

as directed, the trial court modified its order, noting defendant "is to be at his residence from 7

pm Mon to 4am Tues, 7 pm Tues to 4 am Wed, 7 pm Wed to 4 am Thurs, 7 pm Thur to 4 am Fri

and 7 pm Fri to 4 am Mon. SCRAM to be monitored by the Traffic School for behavior

change."

¶7 On May 14, 2013, this court affirmed defendant's conviction and sentence. Smith,

. Thereafter, defendant filed a motion to amend the mittimus to reflect

credit for "time served pursuant to 730 ILCS 5/4-4.5-100." In his motion, defendant argued he

3 was entitled to credit against his sentence for each day that he was released on the appeal bond.

The trial court denied defendant's motion on June 21, 2013. Defendant filed a motion to

reconsider, which the trial court denied via minute order on July 9, 2013, and written order on

July 11, 2013. Defendant filed his notice of appeal on July 24, 2013. This appeal followed.

¶8 ANALYSIS

¶9 Defendant argues that the trial court erred in "refusing to give defendant credit for his

time spent in home confinement on appellate bond." Defendant's argument is based on his

interpretation of section 5-4.5-100 of the Unified Code of Corrections (the Code) (730 ILCS 5/5-

4.5-100 (West 2012)), as well as his analysis of two supreme court cases: People v. Beachem,

(2008), and People v. Ramos,

(1990). As the resolution of this

appeal requires us to interpret the language of the sentencing credit statute, our review is de

novo. People v. Beachem,

.

¶ 10 Section 5-4.5-100 of the Code became effective on July 1, 2009. See Pub. Act 95-1052

(eff. July 1, 2009) (repealing 730 ILCS 5/5-8-7 and adding 730 ILCS 5/5-4.5-100). As such, it

has been effective from five months prior to defendant committing this crime until today. The

statute has been amended twice since its inception. See Pub. Act 96-1000 (eff. July 2, 2010);

Pub. Act 97-697 (eff. June 22, 2012).

¶ 11 In December of 2009, when defendant committed this crime, section 5-4.5-100 stated as

follows:

"(a) COMMENCEMENT. A sentence of imprisonment shall

commence on the date on which the offender is received by the

Department or the institution at which the sentence is to be served.

(b) CREDIT; TIME IN CUSTODY; SAME CHARGE. The

4 offender shall be given credit on the determinate sentence or maximum

term and the minimum period of imprisonment for time spent in custody

as a result of the offense for which the sentence was imposed, at the rate

specified in Section 3-6-3 (730 ILCS 5/3-6-3). Except when prohibited

by subsection (d), the trial court may give credit to the defendant for time

spent in home detention, or when the defendant has been confined for

psychiatric or substance abuse treatment prior to judgment, if the court

finds that the detention or confinement was custodial." 730 ILCS

5/5-4.5-100 (West 2008).

¶ 12 The 2010 amendments to the statute did not significantly change the wording relevant to

this appeal. See Pub. Act 96-1000 (eff. July 2, 2010).

¶ 13 The most recent amendments, however, which became effective June 22, 2012, changed

the statute as follows:

"(b) CREDIT; TIME IN CUSTODY; SAME CHARGE.

Except as set forth in subsection (e), the offender shall be given

credit on the determinate sentence or maximum term and the

minimum period of imprisonment for the number of days time

spent in custody as a result of the offense for which the sentence

was imposed. *** [T]he trial court shall may give credit to the

defendant for time spent in home detention on the same sentencing

terms as incarceration as provided in Section 5-8A-3 (730 ILCS

5/5-8A-3)." Pub. Act 97-0697 (eff. June 22, 2012).

5 ¶ 14 Defendant argues that the legislature's latest amendment evinces its long held belief that

defendants released under the condition of home confinement are entitled to the same credit for

time served as those sitting in a county jail who could not secure their release. As noted above,

to further support his contention that his release pending appeal equates to custody under the

Code, defendant cites to Ramos and Beachem. We find both cases support affirmation of the

trial court's order.

¶ 15 A. Ramos

¶ 16 In Ramos, the State charged defendant with residential burglary. Ramos,

. Following his arrest, defendant posted bond and was released. A condition of the bond

included home detention.

Defendant pled guilty to the offense, and the trial court sentenced

him to four years' imprisonment.

Defendant moved, pursuant to section 5-8-7(b) of the Code

(Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b)), for a finding that he was entitled to credit against his

sentence for time spent in pretrial release, which carried with it the condition of home

confinement. Ramos,

.

¶ 17 The trial court denied defendant's motion, finding he was not entitled to credit for time

released on bond prior to his sentencing.

This court reversed the trial court's decision, noting

that defendant "was permitted to leave his confinement only with the consent of the court or his

probation officer. *** Moreover, [defendant] was not permitted to work or to attend school.

Though it may not have amounted to imprisonment, Ramos' home detention was not far from it."

People v. Ramos,

(1989). Therefore, this court concluded "that

during his home detention the defendant was in custody for purposes of sentence credit, and the

circuit court erred in holding otherwise."

Our supreme court disagreed.

"The State contends that the phrase 'time spent in custody,'

6 as used in section 5-8-7(b), does not include the period of time

during which a defendant is released on bond, regardless of the

restrictions that might be imposed as conditions of release. Relying

on this court's decision in People ex rel. Morrison v. Sielaff (1974),

, the State argues that the legislature intended in section

5-8-7(b) to distinguish institutional custody from release on bond and

to allow sentencing credit for only the former. The State maintains

that defendant was released from institutional custody when he was

admitted to bond and that home detention was merely a condition of

release and did not constitute custody within the meaning of the

statute. We agree." Ramos,

-57.

¶ 18 The Ramos court then recapped its holding in Morrison, noting that the Morrison court

ruled "that the period of pretrial release was not 'time spent in custody' within the contemplation

of section 5-8-7(b)."

. The Morrison court, as recalled by the Ramos court, made that

finding despite acknowledging that "the term 'custody' has been used in various contexts to

denote both confinement in a penal institution [citation] and time spent outside an institution

[citation]. The court believed, however, that for purposes of section 5-8-7(b) the inmate's pretrial

release on bond was not 'custody' within the meaning of the statute."

¶ 19 The Ramos court stated:

"Home confinement, though restrictive, differs in several

important respects from confinement in a jail or prison. An offender

who is detained at home is not subject to the regimentation of penal

institutions and, once inside the residence, enjoys unrestricted

7 freedom of activity, movement, and association. Furthermore, a

defendant confined to his residence does not suffer the same

surveillance and lack of privacy associated with becoming a

member of an incarcerated population."

.

¶ 20 Thereafter, the court found that the "legislature intended in section 5-8-7(b) of the

Unified Code of Corrections to distinguish between defendants who are in custody and those

who are released on bond, subject to the conditions of the bond. We therefore cannot conclude

that the term 'custody,' as it is used in section 5-8-7(b), was intended to encompass the period of

time during which a defendant is released on bond, regardless of the restrictions that might be

imposed on him during that time."

.

¶ 21 At all times relevant during Ramos, the Unified Code read as follows:

"Calculation of Term of Imprisonment. (a) A sentence of

imprisonment shall commence on the date on which the offender

is received by the Department or the institution at which the

sentence is to be served.

(b) The offender shall be given credit on the determinate

sentence or maximum term and the minimum period of imprisonment

for time spent in custody as a result of the offense for which the

sentence was imposed, at the rate specified in Section 3-6-3 of this

Code." Ill. Rev. Stat. 1987, ch. 38, ¶ 1005-8-7(b).

¶ 22 B. Beachem

¶ 23 In Beachem, the State charged defendant with possession of a controlled substance with

intent to deliver. Beachem,

. Our supreme court noted that, prior to the

8 defendant's trial and conviction, he "was assigned to the Sheriff's Day Reporting Center program

(Program) for 258 days and actually reported to the Day Reporting Center (Center) on 171 days."

. Upon entry into the program, each participant must complete an eight-day

orientation. Thereafter, each participant is placed on a track, which varies from nine hours per

day to three hours per day. The concept is to acclimate the participant to the daily routine of

reporting to a strictly supervised environment.

.

¶ 24 At sentencing, the trial court credited defendant with 26 days toward his sentence of

incarceration for the time he spent in "actual physical confinement."

.

¶ 25 Ultimately, however, our supreme court found the defendant was in custody within the

meaning of section 5-8-7 on the days he reported to the Center.

. At all times relevant

to the Beachem decision, section 5-8-7 stated: "(b) [t]he offender shall be given credit on the

determinate sentence or maximum term and the minimum period of imprisonment for time spent

in custody as a result of the offense for which the sentence was imposed." 730 ILCS 5/5-8-7(b)

(West 2004); Beachem,

.

¶ 26 The Beachem court found the statutory langue in section 5-8-7 ambiguous "because the

term 'custody' has several definitions and nothing in the context of the statute provides any

indication as to the appropriate definition."

. The Beachem court then discussed

Morrison and Ramos, commenting at length on the difference between being entered into the

Day Reporting Program and being released on bond.

. The Beachem court detailed

in depth the rights of a defendant who is released on bond, including the right of being "entitled

to judicial procedure before being arrested or having the terms of his liberty modified."

¶ 27 Acknowledging that the Ramos defendant was only allowed to leave his residence 3

times in 168 days, the Beachem court found its ruling consistent with Ramos and emphasized the

9 significant differences between the Ramos defendant's release on bond with the condition of

home confinement and that of Beachem, who entered the Day Reporting Program.

"By

contrast [to being released on bond], a defendant in the Program has no statutory entitlement to

any of the foregoing procedures and protections. For instance, there is no requirement that the

sheriff obtain a warrant prior to defendant's rearrest. *** Further, a defendant in the Program

does not have a statutory right to challenge the terms, conditions, or rules of his participation in

the Program. There is no established judicial procedure for a defendant to challenge the sheriff's

selection of inmates for the Program, nor to contest the terms or the track to which he is

assigned. There is no right to a hearing and no right to counsel. A defendant must simply adhere

to the sheriff's unilaterally imposed conditions of participation."

.

¶ 28 The Beachem court saw such a significant distinction between being released on bond

and being a participant in the Day Reporting Program, it actually used the phrase, "Unlike a

defendant who is actually released on bond ***."

.

¶ 29 Beachem continued, noting the defendant therein "was still subject to confinement, albeit

limited confinement, while at the Center. Defendant spent between three and nine hours a day in

a state-run 'strictly supervised environment.' [Citation.] The amount of time defendant spent

there, the program track defendant was placed on, and the services provided to him were all at

the discretion of the sheriff. Defendant was not free to come and go as he pleased. He was not

free to structure his day as he saw fit. He was obligated to report at an established time to and

participate in a state-run program. He was not given the ability to decline attending on any given

day. In fact, defendant's failure to report could result in his immediate arrest and reincarceration.

Thus, unlike a defendant on a traditional bond, a defendant in the Program is not only under the

'constructive custody' of the sheriff, he is also under the sheriff's physical custody for several

10 hours a day. Thus, we hold that defendant was in 'custody' while participating in the Program for

the purposes of section 5-8-7."

.

¶ 30 C. Defendant's Argument

¶ 31 Initially, we must note that the parties quarrel over which version of the crediting statute,

section 5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2008)) or section 5-4.5-100 (730 ILCS

5/5-4.5-100 (West 2012)), applies to defendant's claims. The parties agree that the language

contained in the most recent version of the statute is the most favorable to defendant's argument

that his release on appeal equates to custody under the crediting statute. We need not decide this

quarrel regarding which statute applies to defendant's case as we hold, for the reasons stated

below, that defendant's home confinement while released on appeal bond does not equate to

custody as defined by the either version of the statute.

¶ 32 Defendant notes that our supreme court decided Beachem in 2008. Without citation to

any legislative history, defendant claims the legislature's most recent amendment to the crediting

statute "was a codification of the Illinois Supreme Court's ruling in Beachem." Defendant

continues, claiming that "credit for time on home detention has gone full circle from the blanket

prohibition outlined in the 1990 decision in Ramos, to a discretionary standard adopted in 2010,

and now mandatory credit as of June 22, 2012."

¶ 33 We disagree with defendant's assertion that Beachem or the current version of the statute

mandates awarding him credit toward his sentence for the days he was released on appeal bond.

¶ 34 As the State aptly notes, be it section 5-4.5-100 (730 ILCS 5/5-4.5-100 (West 2012)) or

section 5-8-7 (730 ILCS 5/5-8-7 (West 2006)), the crediting statute has stated that the offender

shall be given credit "for time spent in custody as a result of the offense for which the sentence

was imposed." (Emphasis added.) 730 ILCS 5/5-8-7 (West 2006); see also 730 ILCS 5/5-4.5-

11 100 (West 2012). The State claims that defendant's home confinement does not equate to

custody as a result of the offense for which the sentence was imposed. Instead, the State

characterizes the home confinement as a self-requested condition necessary to secure his release

from the custody which resulted from the offense defendant committed.

¶ 35 We agree with the State. Reading Beachem in conjunction with section 5-4.5-100 as

presently constituted, we find that home confinement pursuant to an appeal bond does not

qualify as custody entitling one to credit against his sentence under the statute.

¶ 36 Beachem supports our holding and serves to guide us in interpreting section 5-4.5-100.

The Beachem court found section 5-8-7 was "ambiguous because the term 'custody' has several

definitions and nothing in the context of the statute provides any indication as to the appropriate

definition." Beachem,

. While the legislature amended the crediting statute,

repealing section 5-8-7 and creating section 5-4.5-100, it did nothing to provide a definitive

definition of what it considers "custody" under the statute. As such, Beachem's analysis still

guides us to determine whether this defendant was in custody for purposes of the crediting

statute.

¶ 37 As noted above, when differentiating between the defendant required to report to the Day

Reporting Center in Beachem from the defendants released on bond in Morrison and Ramos, the

Beachem court discussed all the protections afforded someone released on bond, such as the

ability to challenge the conditions of release. The Beachem court further focused on the fact that

it was the sheriff's department, not the court, which "unilaterally imposed conditions of

participation" upon the participant in the Day Reporting Program. (Internal quotation marks

omitted.) Beachem,

. The Beachem court stressed that any violation of the

12 conditions imposed by the sheriff's department "could result in his immediate arrest and

reincarceration."

.

¶ 38 Conversely, the conditions of this defendant's home confinement were not set by the

executive branch but, instead, by the court. A violation of those conditions, as noted in the

court's order, would not result in immediate arrest but instead, "Any violation is to be reported to

the on-call Grundy County State's Attorney *** and defense counsel office of Jeff Tomzcack."

¶ 39 Unlike the Beacham defendant, who had no recourse but to accept the terms of the Day

Reporting Program, the defendant herein could and, in fact, did petition the court to change his

terms of home confinement. After learning the Grundy County probation department did not

have the technology to provide the SCRAM device as originally ordered, defendant petitioned

the court and was allowed to have the "Traffic School" monitor his device.

¶ 40 Defendant does not address any of the substantive differences from the conditions of

Beachem's Day Reporting Program to his conditions of release on appeal bond. He merely states

that his home confinement while released on bond equates to home detention under the

Electronic Home Detention Law (730 ILCS 5/5-8A-1 et seq. (West 2012)) and that the current

crediting statute mandates the court "shall give credit to the defendant for time spent in home

detention" (730 ILCS 5/5-4.5-100(b) (West 2012)). Therefore, defendant argues he is entitled to

the credit. Again, we disagree.

¶ 41 The Home Detention Law defines home detention as "the confinement of a person

convicted or charged with an offense to his or her place of residence under the terms and

conditions established by the supervising authority." 730 ILCS 5/5-8A-2(C) (West 2012).

"Supervising authority" is defined as "the Department of Corrections, probation supervisory

13 authority, sheriff, superintendent of municipal house of corrections or any other officer or agency

charged with authorizing and supervising home detention." 730 ILCS 5/5-8A-2(E) (West 2012).

¶ 42 Defendant argues that the terms of his release satisfy all the necessary elements to be

considered home detention under the Home Detention Law. Specifically, he states that

defendant's electronic monitoring was "supervised by probation." It was not. It was supervised

by a private traffic school. Even if defendant's home confinement was supervised by the

probation department, it would not meet the definition of home detention under the law. To

satisfy the definition of home detention, the confinement must be "under the terms and

conditions established by the supervising authority." 730 ILCS 5/5-8A-2(C) (West 2012).

¶ 43 What authority did the probation department have to set the terms and conditions of

defendant's release on appeal bond? The answer, of course, is none. It was the trial court that

"established" the "terms and conditions" of defendant's release. Defendant possessed the same

right as the probation department to request that the court change the conditions and terms of his

release. The absence of a similar right weighed heavily in the Beachem court's decision to find

one ordered to report to a Day Reporting Program is "in custody" for purposes of the crediting

statute. The bottom line is that the whole point of the appeal bond, like every other bond, was to

avoid custody. Virtually every bond has restrictions, this one more than some. That does not

change the very simple premise that the Code does not anticipate sentencing credit for time spent

while released on bond. Our supreme court was unequivocal when holding that for purposes of

sentencing credit, time spent in custody does not include that period of time during which a

defendant is released on bond, regardless of the restrictions imposed as a condition of release.

Ramos,

. We hold that defendant was not in custody within the meaning of

section 5-4.5-100(b) (730 ILCS 5/5-4.5-100(b) (West 2012)) while released on appeal bond.

14 ¶ 44 CONCLUSION

¶ 45 For the foregoing reasons, the judgment of the circuit court of Grundy County is

affirmed.

¶ 46 Affirmed.

15