NOTICE

FILED This Order was filed under NO. 4-22-0552 January 18, 2023 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County EMANUEL WELLS, ) No. 20CF1103 Defendant-Appellant. ) ) Honorable ) J. Casey Costigan, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court. Presiding Justice DeArmond and Justice Doherty concurred in the judgment.

ORDER ¶1 Held: The trial court did not commit error by denying defendant’s motion seeking additional presentence credit for time spent in home detention.

¶2 After the trial court sentenced defendant Emanuel Wells pursuant to the terms of a

fully negotiated plea agreement, which included a provision giving defendant credit against his

sentence of incarceration for time spent in presentence custody, he filed a pro se motion seeking

additional credit for time spent in home detention while released on bond. The court denied the

motion. In this appeal, defendant asserts the court erred because (1) he is entitled by statute (730

ILCS 5/5-4.5-100(b) (West 2020)) to an additional presentence custody credit of 208 days and

(2) he did not explicitly agree to waive the additional credit. We affirm.

¶3 I. BACKGROUND ¶4 On October 21, 2020, in the circuit court of McLean County, a grand jury indicted

defendant for unlawful possession of cannabis with the intent to deliver (720 ILCS 550/5(g) (West

2020)), in addition to several other offenses. On or about December 3, 2020, defendant posted

bond. The orders setting the terms of defendant’s release conditioned such release on “GPS

Monitoring with 24 hour Home Confinement.” The trial court advised defendant other than work,

church, medical appointments, and emergencies, the conditions confined him to his home and

subjected him to a curfew. Over a period of several months, the court increasingly relaxed the

terms of defendant’s release, permitting him to go to the gym, transport his child, seek

employment, and work full-time. Eventually, the court eliminated the curfew and GPS monitoring.

¶5 On November 5, 2021, the parties presented the trial court with a fully negotiated

written plea agreement, which defendant signed. The plea agreement provided in pertinent part

(1) defendant would plead guilty to the charge of unlawful possession of cannabis with the intent

to deliver, (2) the State would move to dismiss the other two counts of the indictment, (3) the court

would impose an agreed sentence of 6 years’ incarceration, and (4) defendant would receive credit

for 54 days spent in presentence custody.

¶6 In open court, the trial court reviewed the terms of the plea with defendant,

including those described above. Upon defendant’s acknowledgement of the terms as recited, the

court accepted defendant’s plea. Thus, the court entered judgment consistent with the agreement

of the parties, imposing a 6-year term of imprisonment with credit for 54 days spent in

presentence custody. In addition, the court dismissed the other counts of the indictment pursuant

to the State’s motion.

¶7 On March 31, 2022, defendant filed a pro se motion seeking additional credit for

166 days spent on “GPS Monitoring” prior to the trial court’s imposition of his sentence. On April

-2- 12, 2022, the court denied defendant’s motion, noting he “was given the correct pretrial detention

credit on this case.”

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 Defendant asserts, because he was subject to continuous GPS monitoring and could

not leave his home without the trial court’s authorization, he is entitled to presentence custody

credit for that home detention pursuant to section 5-4.5-100(b) of the Unified Code of Corrections

(Unified Code) (730 ILCS 5/5-4.5-100(b) (West 2020)). In response to the State’s claim that

defendant is bound by the plea agreement providing for 54 days of credit, defendant also posits

the record does not demonstrate he “agreed to forgo” the additional presentence custody credit.

Thus, the threshold issue is whether defendant waived his right to the additional credit.

¶ 11 A. Standard of Review

¶ 12 We utilize a de novo standard of review when considering whether a defendant

should receive presentence custody credit against his period of incarceration. People v. Jones,

.

¶ 13 B. A Fully Negotiated Guilty Plea Waives the Right to Presentence Custody Credit

¶ 14 The trial court sentenced defendant on November 5, 2021. As of July 1, 2021, the

pertinent statutory section provides:

“The trial court shall 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 [of the

Unified Code] (730 ILCS 5/5-8A-3 [(West 2020)]). Home detention for purposes

of credit includes restrictions on liberty such as curfews restricting movement for

12 hours or more per day and electronic monitoring that restricts travel or

-3- movement. Electronic monitoring is not required for home detention to be

considered custodial for purposes of sentencing credit.” 730 ILCS 5/5-4.5-100(b)

(West 2020).

¶ 15 Our supreme court has long held plea agreements are governed in part by contract

law principles, though with constitutionally based underpinnings reflecting concerns

fundamentally different than those bearing on commercial contract disputes. People v. Evans,

(1996). In Evans, which involved consolidated cases, both defendants had pleaded

guilty pursuant to negotiated plea agreements providing the State would move to dismiss other

charges and recommend particular sentences.

. The trial courts accepted the agreements

and sentenced the defendants in accordance with the negotiated dispositions, after which the

defendants filed motions for reconsideration seeking to reduce their sentences.

¶ 16 The supreme court noted the use of plea bargains is “vital to and highly desirable

for our criminal justice system.”

. As such, the court held, “the defendants’ efforts

unilaterally to reduce their sentences while holding the State to its part of the bargain cannot be

condoned.”

. Had the court held otherwise, it would have encouraged “ ‘gamesmanship

of a most offensive nature.’ ”

Specifically, if a court were to permit a defendant to negotiate a

favorable disposition, benefitting from the State’s agreement to dismiss charges and agree to a

lighter sentence than would be likely after trial or upon an open plea, and then receive a further

reduction by “reneging on the agreement,” the State would not be interested in negotiated

agreements.

. Such a result would be inconsistent with the policy of encouraging

negotiated dispositions.

.

¶ 17 The guilty plea and sentence are “material elements of the plea bargain.”

.

Thus, if a trial court enters judgment pursuant to a negotiated guilty plea, and the defendant wishes

-4- to challenge his sentence, he must move to withdraw the plea such that “the parties are returned to

the status quo.”

Because the defendants in Evans did not do so, they were “not entitled to a

reduction of [their] negotiated sentences because they had been bargained for in [their] plea

agreement[s].”

.

¶ 18 We have reaffirmed the foregoing principles, and held they encompass negotiated

plea agreements providing for presentence credit. See People v. Williams,

(2008). There, the parties presented the trial court with an agreement providing for a stipulated

bench trial and an “agreed sentence” including 24 months’ probation, 60 days’ county jail

incarceration with no presentence credit, and other specific terms.

. The defendant

appealed from the judgment adopting the agreement, asserting he was entitled to credit for days

he served in custody prior to sentencing.

We noted the version of section 5-4.5-100(b) of the

Unified Code in effect at the time provided a defendant “shall be given credit” for time held in

presentence custody.

(referring to 730 ILCS 5/5-8-7(b) (West 2006)). However, defendant

“received benefits in this bargain.”

. Thus, we held a defendant can request presentence

custody credit at any time, unless “he agreed to forego [sic] it as part of a plea or other sentencing

agreement.”

¶ 19 Shortly thereafter, we clarified it “would be unfair” to permit a defendant to agree

to a specific sentence and subsequently receive a reduction from the sentence to which the parties

have agreed. People v. Evans,

(2009). There, the plea agreement was

“fully negotiated” because it provided for a specified amount of presentence custody credit.

. After the trial court sentenced defendant in conformity with that agreement, the defendant

filed a pro se motion seeking additional presentence credit, which the court denied “because it was

a negotiated term of the plea agreement.”

. We again noted trial courts are “statutorily

-5- mandated” to give credit for the period a defendant spends in presentence incarceration.

.

But, because the defendant “bargained for his sentence,” which provided for the precise amount

of presentence credit he would receive, we found “no reason to modify the terms of

defendant’s negotiated plea agreement.”

.

¶ 20 And finally, albeit in an order entered pursuant to Illinois Supreme Court Rule

23(e)(1) (eff. Jan. 1, 2021), we recently held “a defendant may not request presentence custody

credit if he agreed to forego [sic] it as part of a plea agreement.” People v. Getty,

, ¶ 20. Therein, a written plea agreement, filed with the court, provided for an

11-year sentence of imprisonment, which was one year less than the maximum, and presentence

credit for 0 days.

. At the plea hearing, the trial court engaged in a colloquy with the State

and the defendant concerning the presentence credit calculation, which the defendant

acknowledged.

. The trial court sentenced the defendant consistently with the terms of the

plea agreement.

. Subsequently, after the court mistakenly modified the mittimus in

response to a motion filed by the defendant awarding presentence credit, the defendant filed a

motion seeking additional presentence credit.

. The court found because the defendant

agreed to forgo his right to presentence credit pursuant to the plea agreement, he was not entitled

to such credit.

.

¶ 21 We affirmed and rejected the defendant’s contention because he was not

specifically admonished about his right to presentence credit, or the consequences of waiving it,

and as such, there was no affirmative waiver of the right.

. Notably, the defendant provided

no authority for such proposition.

Because the record demonstrated defendant entered into a

plea agreement providing for a reduced sentence of incarceration with no presentence credit, we

found “sufficient evidence that he waived the credit.”

-6- ¶ 22 We now reaffirm the principle that a fully negotiated guilty plea constitutes a

waiver of presentence custody credit not provided for in the plea agreement.

¶ 23 C. Defendant Waived Entitlement to Additional Presentence Credit

¶ 24 Defendant repeatedly posits he is entitled to the additional credit because the record

does not demonstrate or even suggest he agreed to waive the credit for the time spent on home

detention.

¶ 25 Defendant signed a fully negotiated plea agreement, which provided for (1) the

dismissal of two charges, (2) an agreed period of imprisonment of 6 years, and (3) presentence

credit of 54 days. The trial court reviewed the terms with defendant, and defendant acknowledged

he understood the terms, including that the agreement provided for the specified custodial credit.

The court then entered judgment reflecting all the terms of the plea agreement and dismissed the

two remaining charges.

¶ 26 The scenario here fits squarely within the principles discussed above, to wit:

(1) defendant entered into a fully negotiated plea agreement providing for a specified amount of

presentence credit; (2) he received the benefit of an agreed sentence of 6 years, which was the

minimum, having faced a sentencing range of 6 to 30 years; (3) he benefitted from the dismissal

of the two remaining charges of the indictment; and (4) the trial court sentenced defendant pursuant

to the terms of the agreement. In short, because defendant bargained for a disposition providing

for a specified amount of presentence credit and other significant benefits, he waived the right to

any additional credit. Defendant is not entitled to renege on the agreement and receive additional

presentence credit.

¶ 27 D. Amendment of the Statute

-7- ¶ 28 Defendant also contends the recent amendment to section 5-4.5-100(b) of the

Unified Code (730 ILCS 5/5-4.5-100(b) (West 2020)) makes it “more likely that the parties did

not realize” he was entitled to additional credit, and thus buttresses his argument.

¶ 29 However, the section has provided since June 22, 2012, that the sentencing court

“shall” award credit “for time spent in home detention.” 730 ILCS 5/5-4.5-100(b) (West 2012).

The section’s predecessor as well provided the trial court “shall” award presentence credit. See,

e.g., Williams,

(the court referred to the 2006 version, cited as 730 ILCS

5/5-8-7(b) (West 2006)). Thus, it is difficult to comprehend how the addition of language further

defining home detention would cause defendant to be unaware he could be entitled to presentence

credit or that it is subject to waiver. But more to the point, the foregoing mandatory language has

long been subject to waiver by a fully negotiated guilty plea, and the recent addition of language

clarifying what constitutes home detention does not change the analysis. And lastly, the new

language does not alter the contractual nature of plea agreements. Defendant cannot reap the

benefit of his bargain with the State and then turn to the trial court to further sweeten the deal.

¶ 30 We find defendant waived the right to any additional presentence credit. Having

done so, we do not reach any of the other issues, including whether defendant qualified for

presentence credit for the period he spent on home detention.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 33 Affirmed.

-8-