No. 2-20-0252 Opinion filed December 14, 2020

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-3157 ) MELVIN ANTONI FORD, ) Honorable ) Robert R. Wilt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Brennan concurred in the judgment and opinion.

OPINION

¶1 Defendant, Melvin Antoni Ford, 1 appeals from an order of the circuit court of Winnebago

County denying his motion under Illinois Supreme Court Rule 472 (eff. May 17, 2019) to correct

the calculation of pretrial credit in a case in which he entered into a fully negotiated plea agreement.

Because the record does not establish whether the plea agreement excluded the additional credit

for time served, we vacate the trial court’s order and remand for further proceedings.

1 We note that defendant’s appellate brief uses the name Melvin Ford-El. However, because

the indictment refers to defendant as Melvin Antoni Ford, we will use that name.

¶2 I. BACKGROUND

¶3 On March 5, 2017, defendant called police to his residence after T.M.P., a friend’s child

whom defendant was babysitting, drowned in defendant’s bathtub and died. Later that same day,

defendant was arrested for aggravated battery of his son (case No. 17-CF-573). On December 28,

2017, defendant was indicted on one count of endangering the life of a child, in connection with

T.M.P.’s death (720 ILCS 5/12C-5(a)(1) (West 2016) (case No. 17-CF-3157). Defendant was still

in custody in case No. 17-CF-573 when he was indicted in case No. 17-CF-3157.

¶4 On March 9, 2018, defendant entered an open plea of guilty in case No. 17-CF-3157. The

factual basis for the plea established that, on March 5, 2017, defendant was babysitting T.M.P., his

friend’s one-year-old daughter. After placing the infant in a bathtub, he went into another room to

locate a diaper bag. When he returned, he discovered the infant lying face down in the water,

unconscious. He called 911 and tried to resuscitate the infant. Later, medical authorities

determined that the infant had drowned.

¶5 Pursuant to the guilty plea, the State agreed to the dismissal of case No. 17-CF-573. The

court continued the matter for sentencing.

¶6 On the day of sentencing, the prosecutor advised the trial court that defendant had agreed

to a sentence of “7 years in the Department of Corrections with 172 days credit for time served.”

The court asked defendant if he wished to present the “fully negotiated plea” rather than proceed

to a sentencing hearing. Defendant confirmed that he wished to proceed with the plea. When the

court asked him if he had spoken to his attorney about the guilty plea, defendant said yes and did

not need additional time.

¶7 The court admonished defendant that he had a right to a sentencing hearing but that there

would be no such hearing if he proceeded with the plea. The court asked defendant if he was

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entering into the fully negotiated guilty plea of his own free will, and defendant said yes. When

the court asked defendant if he had any questions, defendant responded, “Just for clarification,

because I did speak with my attorney about it.” Defendant added that he was a “tad bit confused.”

Defendant then stated that he had been in continuing custody since March 5, 2017, on his other

case. After noting dismissal of his other case as part of the plea agreement, defendant asked if he

would “receive credit for the time [he] spent in [jail] since March 5th, 2017.” The court answered

that he could “only receive credit legally on the case [he was] sentenced for, so that’s what that

is.” Defendant responded “[o]kay” and that he had no other questions. The prosecutor and defense

counsel did not comment on the additional-credit issue or discuss exclusion under the plea

agreement. The court then accepted the plea agreement and sentenced defendant to 7 years in

prison with credit for 172 days served.

¶8 Defendant subsequently filed an appeal. On January 9, 2020, this court granted the

appellate defender’s motion to withdraw and dismiss the appeal pursuant to Anders v. California,

(1967). See People v. Ford, No. 2-19-0051 (2020) (unpublished summary order

under Illinois Supreme Court Rule 23(c)).

¶9 On November 21, 2019, while his appeal was pending, defendant filed a motion in the trial

court, pursuant to Rule 472, seeking to have the judgment corrected to include additional days of

credit for the time he was in custody in case No. 17-CF-573 (March 5, 2017, through December

27, 2017). Defendant claimed that, because the conduct for which he was charged in case No. 17-

CF-3157 had been committed before he was arrested on March 5, 2017, in case No. 17-CF-573,

he was entitled to the additional credit under section 5-4.5-100(c) of the Unified Code of

Corrections (Code) (730 ILCS 5/5-4.5-100(c) (West 2016)).

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¶ 10 On March 3, 2020, the State filed a motion under Rule 472, agreeing with defendant that

section 5-4.5-100(c) entitled him to additional credit. On March 5, 2020, the State filed a motion

to amend its Rule 472 motion to calculate the additional days.

¶ 11 On March 6, 2020, the trial court conducted a hearing on the Rule 472 motions. At the

hearing, the State withdrew its motion to recalculate, explaining that the sentencing judgment

correctly stated the days of credit. The court then noted that it had looked at defendant’s motion

and “couldn’t see that there was a miscalculation.” Because the court believed that the calculations

were correct, it denied defendant’s motion. Defendant filed this timely appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant contends that, under section 5-4.5-100(c) of the Code, he was eligible

for credit for time served in case No. 17-CF-573 because (1) the conduct for which he pled guilty

in case No. 17-CF-3157 occurred before his arrest in case No. 17-CF-573, (2) he never otherwise

received credit for time served in case No. 17-CF-573, and (3) the plea agreement in case No. 17-

CF-3157 did not exclude such credit. The State responds that defendant is not entitled to any

additional credit, because he entered into a fully negotiated guilty plea where he agreed to credit

for only the 172 days served in case No. 17-CF-3157.

¶ 14 Before addressing the merits, we note that neither party has raised any issue regarding the

trial court’s jurisdiction under Rule 472 to consider defendant’s motion. However, we have an

independent duty to consider our jurisdiction, regardless of whether either party has done so.

People v. Scheurich,

(citing People v. Smith,

(2008)). Filing a notice of appeal puts the cause beyond a trial court’s jurisdiction—our jurisdiction

attaches instanter. Scheurich,

. Accordingly, after the filing of a

notice of appeal, a trial court is divested of jurisdiction to enter any additional substantive orders

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in the case. Scheurich,

. The trial court retains the power only to

(1) enforce the judgment or (2) correct clerical errors or matters of form so that the record

conforms to the judgment. People v. Flowers,

(2003). A ruling by a trial

court in the absence of subject-matter jurisdiction is void. Flowers,

.

¶ 15 Here, defendant filed his Rule 472 motion while his first appeal was pending. Ordinarily,

once the appeal was filed, the trial court would not have had jurisdiction to consider any request

to substantively amend the judgment. However, Rule 472 provides that the trial court retains

jurisdiction to correct certain sentencing errors at any time following judgment. Among the

enumerated sentencing errors are those related to the “calculation of presentence custody credit.”

Ill. S. Ct. R. 472(a)(3) (eff. May 17, 2019). Although no case has interpreted the meaning of

“calculation of presentence custody credit,” that language does encompass a denied-credit claim

under section 5-4.5-100(c) for “time spent in custody” (730 ILCS 5/5-4.5-100(c) (West 2016)).

¶ 16 We turn to the merits. Section 5-4.5-100(c) provides, in pertinent part, that an offender

“arrested on one charge and prosecuted on another charge for conduct that occurred prior to his or

her arrest shall be given credit *** for time spent in custody under the former charge not credited

against another sentence.” 730 ILCS 5/5-4.5-100(c) (West 2016).

¶ 17 Under the plain language of section 5-4.5-100(c), defendant was eligible to receive, in case

No. 17-CF-3157, credit for the time he spent in custody in case No. 17-CF-573. The conduct for

which defendant was prosecuted in case No. 17-CF-3157 occurred on March 5, 2017, before he

was arrested in case No. 17-CF-573. Further, defendant never otherwise received credit for time

served in case No. 17-CF-573. Thus, under section 5-4.5-100(c), he was eligible to receive credit

for time spent in custody from March 5, 2017, the date of his arrest in case No. 17-CF-573, through

December 27, 2017, the date he was charged in case No. 17-CF-3157.

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¶ 18 However, the State maintains that, because defendant—as part of a fully negotiated plea—

agreed to only 172 days of credit in case No. 17-CF-3157, he cannot now seek additional credit

for time served in case No. 17-CF-573. We disagree.

¶ 19 In contending that defendant’s fully negotiated plea bars his claim for additional credit for

time served, the State relies on People v. Evans,

(2009), and People v.

Williams,

(2008). However, under the particular facts of this case, those cases

do not support the State’s position.

¶ 20 In Evans, the defendant entered into a fully negotiated guilty plea. Evans,

. The plea agreement provided for an agreed amount of credit for time served. Evans,

. After being sentenced under the plea agreement, the defendant filed a motion

for correction of credit for time served, contending that he was entitled to additional credit for

when he was in out-of-state custody on the same offense. Evans,

. In denying

the defendant’s motion, the trial court found that (1) the parties had disputed whether the defendant

was eligible for the credit for the out-of-state custody, (2) the defendant was fully aware of the

dispute, and (3) the ultimate amount of credit for time served was specifically contemplated by the

parties. Evans,

. The appellate court held that allowing the defendant to

agree to a particular sentence, including the amount of credit for time served, only to later allow

him a reduction of the agreed-upon credit would be unfair. Evans,

(citing

Williams,

). Thus, the court affirmed the dismissal of the defendant’s motion

for correction of time-served credit. Evans,

.

¶ 21 In Williams, the defendant was found guilty of unlawful possession with the intent to

deliver cannabis. Williams,

. The State then presented an agreed sentence,

expressly including no time for presentence credit. Williams,

. The trial

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court accepted the agreement and sentenced the defendant accordingly with no credit for time

served. Williams,

. On appeal, the defendant contended that he should have

received two days’ credit for time served. Williams,

. Relying on the invited-

error doctrine, the appellate court rejected that argument. It held that it would be unfair to allow a

defendant, who had agreed to a sentence that included no presentencing credit, to then on appeal

ask for such credit. Williams,

. The court added that, because the defendant

had received the benefit of his bargain, he could not later repudiate it. Williams,

. Thus, the court affirmed the defendant’s sentence. Williams,

.

¶ 22 As in Evans and Williams, defendant here clearly agreed to a fully negotiated guilty plea

that expressly provided that he would receive credit for 172 days of time served. However, unlike

in Evans and Williams, it is unclear whether defendant agreed to exclude any credit for time served

in case No. 17-CF-573. At sentencing, the parties noted that they had agreed to a sentence of 7

years’ imprisonment with 172 days’ credit for time served. In presenting those terms, neither

counsel mentioned anything about credit for case No. 17-CF-573. Indeed, the subject went

unraised until defendant asked the court if he was eligible for such credit. When defendant asked

that question, neither counsel commented. Significantly, neither counsel remarked that the plea

agreement excluded credit for case No. 17-CF-573 or that such credit was even discussed. Thus,

though the plea agreement expressly included credit for time served, the record is unclear whether

the parties reached an agreement about credit for case No. 17-CF-573.

¶ 23 Further, we cannot conclude that defendant himself (apart from counsel) agreed to a

sentence that excluded credit for case No. 17-CF-573. In response to defendant’s question—Am I

eligible for credit for case No. 17-CF-573?—the court told him, without mentioning section 5-4.5-

100(c), that he was entitled to credit for only case No. 17-CF-3157. In response, defendant said

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okay and that he had no further questions. Again, neither the prosecutor nor defense counsel

commented. Considering that defendant’s counsel did not object when the court told defendant

that he was not eligible for credit for case No. 17-CF-573, it is not surprising that defendant had

nothing further to say. Under those circumstances, defendant’s silence cannot be interpreted as an

agreement to a sentence that excluded credit for case No. 17-CF-573.

¶ 24 The State also asserts that, because there was no concern that there was any “manipulation

of jail credit,” such as that in People v. Revell,

(2007), and People v.

Hernandez,

(2004), defendant should not receive any additional credit.

Neither of those cases, however, supports the State.

¶ 25 In Revell, the State asserted that the defendant was not entitled to additional credit under

section 5-8-7(c) of the Code 2 (730 ILCS 5/5-8-7(c) (West 2004)). Revell,

.

Relying on legislative history, the State argued that the purpose of the statute was to prevent the

State from defeating a defendant’s right to credit for presentence custody by dropping one charge

in favor of another based on the same conduct. Revell,

. However, the

appellate court, relying on the statute’s plain language, held that the defendant was entitled to time-

served credit from another case because the conduct for which he was being sentenced occurred

before his arrest in the other case. Revell,

. In so holding, the appellate court

did not state that the additional credit was available only in a case where the State tried to eliminate

such credit or where the two cases arose out of the same conduct.

2 Section 5-8-7(c) was the former crediting statute, but its language was the same as its

successor, section 5-4.5-100(c). People v. Clark,

(noting that the

language is identical).

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¶ 26 In Hernandez, we held that the trial court erred in denying the defendant’s motion for

additional credit under section 5-8-7(c). There, we noted that the State had manipulated the

defendant’s liberty by allowing him to remain in custody for approximately four months without

bail before finally charging him with violating his bail bond. Hernandez,

.

However, we did not state that only in circumstances where the State manipulated a defendant’s

custody could a defendant receive credit under section 5-8-7(c).

¶ 27 Because neither Revell nor Hernandez limited additional credit under section 5-8-7(c) to

those situations where the State has manipulated the charges to prevent the defendant from

obtaining such credit, neither case supports the State. Here, even though there was no indication

of manipulation by the State, defendant was eligible under the plain language of section 5-4.5-

100(c) for credit for time served in case No. 17-CF-573.

¶ 28 In conclusion, had the fully negotiated guilty plea excluded any credit for time served in

case No. 17-CF-573, defendant’s argument would fail. However, because the record does not

conclusively show that the parties agreed to exclude such credit, we vacate the trial court’s denial

of the Rule 472 motion. Further, we remand for the court to determine if defendant agreed to

exclude the additional credit. If the defendant agreed, the court should deny defendant’s Rule 472

motion. If the defendant disagreed, the court should grant defendant the appropriate time-served

credit for case No. 17-CF-573.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we vacate the judgment of the circuit court of Winnebago County

and remand for further proceedings consistent with this order.

¶ 31 Vacated and remanded.

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No. 2-20-0252

Cite as: People v. Ford,

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 17- CF-3157; the Hon. Robert R. Wilt, Judge, presiding.

Attorneys James E. Chadd and Thomas A. Lilien, of State Appellate for Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Marilyn Hite Ross, State’s Attorney, of Rockford (Patrick for Delfino, Edward R. Psenicka, and David S. Friedland, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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