Opinion filed June 14, 2017 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-15-0299 v. ) Circuit No. 08-CF-1420 ) RONALD A. SCALISE, ) ) Honorable Edward A. Burmila, Jr., Defendant-Appellant. ) 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

¶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,

.

¶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).

2 ¶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,

(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,

(2009). A law that is

retroactive and disadvantageous to a defendant is ex post facto.

. 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.”

. The

ex post facto prohibition only applies to punitive laws. See People v. Dalton,

(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,

(ex post facto principles prohibited the imposition of a $500 fine).

3 ¶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 application based on that writing for

the five dollar a day credit.” 80th Ill. Gen. Assem., Senate

4 Proceedings, May 23, 1977, at 47-48 (statements of Senator

Carroll).

This written notice requirement was removed in 1994, but the “upon application” clause

remained. Pub. Act 88-287, § 5 (eff. Jan. 1, 1994) (amending 725 ILCS 5/110-14 (West 1992)).

In 2005, the legislature added subsection 110-14(b) which made individuals convicted of certain

sexual assaults ineligible for the credit. Pub. Act 93-699, § 5 (eff. Jan. 1, 2005) (adding 725

ILCS 5/110-14(b)). Presently, section 110-14 of the Code states:

“(a) 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 upon application of the defendant. However, in

no case shall the amount so allowed or credited exceed the amount

of the fine.

(b) Subsection (a) does not apply to a person incarcerated

for sexual assault as defined in paragraph (1) of subsection (a) of

Section 5-9-1.7 of the Unified Code of Corrections.” (Emphasis

added.) 725 ILCS 5/110-14 (West 2014).

¶ 10 Starting with the 1977 amendment, the legislature clearly indicated that the per diem

credit only applies where it is sought by a defendant. Senator Carroll’s comment that “most

[defendants] are not aware of the provisions” exemplifies the legislature’s intent to treat the

credit as optional until a defendant makes an application. 80th Ill. Gen. Assem., Senate

Proceedings, May 23, 1977, at 47-48 (statements of Senator Carroll). Importantly, the “upon

application” language remained after the legislature removed the written notice requirement,

5 thereby placing the burden to apply for the credit solely on defendant. In fact, it made it a

defendant’s sole responsibility to even learn about the ability to apply for the credit.

¶ 11 Together, the plain language of and modifications to section 110-14 establish that it is not

a punishment and has no punitive effect. Rather, this section confers a benefit to those

defendants who actively seek to offset their fine. Because a defendant must make an

“application” for this credit, it is not automatically a part of a criminal sentence. 725 ILCS 5/110-

14(a) (West 2014). Therefore, the retroactive preclusion of the per diem credit is not prohibited

by ex post facto concerns.

¶ 12 Here, defendant applied for the per diem credit for the first time in his appellant’s brief,

which was filed on November 23, 2016. At that time, subsection 110-14(b) made defendant

ineligible for the credit because of his predatory criminal sexual assault of a child conviction.

725 ILCS 5/110-14(b) (West 2014); 730 ILCS 5/5-9-1.7(a) (West 2014). Defendant is not

entitled to the credit.

¶ 13 Defendant argues that Prince controls the outcome of this case. In Prince, the Fifth

District found application of subsection 110-14(b) violated the prohibition against ex post facto

laws. We are not bound by the Prince decision, and for the reasons that follow, we disagree with

its holding. See In re May 1991 Will County Grand Jury,

(1992) (appellate

court is not bound to follow the decisions of other districts).

¶ 14 In 2004, the defendant in Prince pled guilty to two counts of predatory criminal sexual

assault. Prince,

. As part of his sentence, the court ordered the defendant

to pay a $100 sexual assault fine and a $100 domestic violence fine.

The court granted the

defendant sentencing credit for 264 days of presentence custody but did not grant per diem credit

against the defendant’s fines.

On appeal, the defendant applied for the per diem credit for the

6 first time.

The State argued the defendant was ineligible for the credit under subsection 110-

14(b) because he was incarcerated for a qualifying sexual assault.

The Fifth District found “a

denial of the credit against the defendant’s fines would increase the punishment for a previously

committed offense.”

. The court reasoned:

“That credit was a part of the equation that made up the overall

punishment possible for the offense, and a denial of that credit now

would alter that equation to the defendant’s detriment because it

would increase the punishment possible for the defendant’s

previously committed offense by denying the defendant the ability

to use credit for time spent in custody prior to sentencing to offset

the defendant’s fine. In this case, it would increase the defendant’s

punishment by $200 more than the identical offense, with the

identical fine and time spent in presentencing custody, would have

been punishable at the time it was committed. That result is not

permissible under ex post facto jurisprudence. See, e.g., People v.

Delgado,

(2006) (the defendant was

entitled to elect to be sentenced under the preamendment version

of section 110-14); In re Hunt, 28 Tex. App. 361,

(1890) (a statute reducing the rate per day allowed a county

convict as credit on a fine is an ex post facto law if applied

retroactively).” Prince,

.

¶ 15 Contrary to Prince, we find the per diem credit is not a part of defendant’s sentencing

calculus, and therefore, its exclusion does not increase the available punishment. Respectfully,

7 Prince overlooks the critical language in subsection 110-14(a) that requires a defendant to make

an “application” for the credit. 725 ILCS 5/110-14(a) (West 2014). Absent an application of the

defendant, the credit is never a factor in the sentence. Moreover, because the credit only applies

“upon application of the defendant,” it does not, by itself, automatically decrease a defendant’s

fine. Rather, defendant’s application for the credit decreases the penalty and serves as a benefit.

Here, when defendant applied for the credit, over 7 years after his conviction and 11 years after

the legislature made the credit unavailable to individuals convicted of sexual assault, he was no

longer entitled to it. Pub. Act 93-699, § 5 (eff. Jan. 1, 2005) (adding 725 ILCS 5/110-14(b)). In

further support, we note the legislature has placed the burden on defendant to be cognizant of

this statute and apply for the per diem credit as he desires. Supra ¶¶ 9-11. Had the pre-1977

statute been in effect, we would agree with Prince. That is, were the credit mandatory without

any precondition, then we would agree that the change here would have an impermissible ex post

facto effect.

¶ 16 As a potential benefit that is not automatically part of a defendant’s sentence, subsection

110-14(b) is not barred by ex post facto concerns. Therefore, subsection 110-14(b) renders

defendant ineligible to receive the per diem credit. Credit denied.

¶ 17 CONCLUSION

¶ 18 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 19 Affirmed.

¶ 20 JUSTICE McDADE, dissenting.

¶ 21 I respectfully dissent from the majority’s analysis and its conclusion that section 110-

14(b) is not subject to ex post facto prohibition because it is not punitive. Subsection 110-14(a)

confers a statutorily mandated benefit to all defendants who apply for the $5-per-day credit. In

8 People v. Caballero,

(2008), our supreme court, citing People v. Woodard,

(1997), stated: “[T]he per diem monetary credit allowed upon application by

the defendant under section 110-14[1] is mandatory, it cannot be waived and it can be raised for

the first time on appeal.” The majority’s analysis in the instant case initially overemphasizes

subsection (a) because subsection (b), by its plain language, prohibits a defendant from even

applying for the credit. Scalise’s claim on appeal is that subsection (b) is, as to him, an ex post

facto law.

¶ 22 I would find that subsection (b) is punitive. “The best indication of legislative intent is the

statutory language, given its plain and ordinary meaning.” People v. Bonutti,

(2004) (citing Illinois Graphics Co. v. Nickum,

(1994)). Subsection 110-

14(b) states: “[s]ubsection (a) does not apply to a person incarcerated for [specifically identified

sexual offenses].” (Emphasis added.) 725 ILCS 5/110-14(b) (West 2014). Subsection (b)

eliminates Scalise’s otherwise mandatory statutory right (Caballero,

, Woodard,

) to apply for and receive the $5-per-day credit. The plain language of

subsection (b) establishes that its intent is unabashedly punitive—it expressly prohibits Scalise,

who was convicted of a covered sexual offense, from even applying for the credit with no

discernible rational basis.

¶ 23 The punitive effect of subsection (b) renders it ex post facto as applied to Scalise. The

subsection retroactively denies his right to apply for the $5-per-day credit because his sexual

assault offenses occurred more than five years before its addition to the statute. Prior to that

enactment, Scalise, like every other criminal defendant, was entitled to offset his fines by

application for the credit. Now, subsection (b) penalizes Scalise, who was convicted of one of the

1 Section 110-14 became 110-14(a) when the statute was amended in 2005 to add subsection 110- 14(b). Pub. Act 93-699, § 5 (eff. Jan. 1, 2005). 9 specified sexual offenses, by eliminating his right to apply for and receive the credit. 725 ILCS

5/110-14(b) (West 2014). Effectively, this raises the potential fines that he is subject to because

he cannot offset the amount of his fines with the otherwise mandatory $5-per-day credit. Prince,

. Subsection (b) cannot apply to Scalise.

¶ 24 I would further find that (1) because of the supreme court’s decision in Woodard and (2)

because application of subsection 110-14(b) is ex post facto as to Scalise and (3) because the

statutory claim made at any time and at any stage of the court proceedings, even an appeal in a

postconviction proceeding may be considered as an “application of the defendant” (Caballero,

) and (4) because, analogous to Caballero, Scalise applied for the credit for the

first time on appeal from the dismissal of his section 2-1401 petition, his application for credit is

not barred by principles of forfeiture or untimeliness. Therefore, I conclude and would find that

Scalise is entitled to offset his fines by $45 based on $5-per-day credit for his nine days spent in

presentence custody. 725 ILCS 5/110-14(a) (West 2014).

10