Opinion filed June 29, 2023 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Plaintiff-Appellee, ) Whiteside County Illinois. ) v. ) Appeal No. 3-21-0612 ) Circuit No. 19-CF-328 ) JAMES A. MALONE, ) The Honorable ) Patricia Ann Senneff, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HETTEL delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Davenport concurred in the judgment and opinion. ___________________________________________________________________________

OPINION

¶1 Defendant was charged with one count of armed violence, five counts of possession of a

controlled substance with intent to deliver and two counts of possession of a weapon by a felon.

Defendant entered into a negotiated plea with the State, pleading guilty to one count of possession

of a weapon by a felon in exchange for a 10-year prison sentence, dismissal of all the other charges

against him, and credit for time he served in county jail. Two weeks later, defendant filed a pro se

motion to amend his mittimus, seeking additional credit toward his prison sentence for completing substance abuse and behavior modification programs while in county jail. The trial court denied

defendant’s motion. Defendant appeals the denial of his motion. We vacate and remand.

¶2 I. BACKGROUND

¶3 On November 4, 2019, police executed a search warrant on a residence in Rock Falls

occupied by defendant and his girlfriend. As a result of their search, police found a firearm,

ammunition, and drugs, including cocaine, heroin, and Alprazolam. Police arrested defendant. The

following day, the State charged defendant in an eight-count information with one count of armed

violence (720 ILCS 5/33A-2(a) (West 2018)) (count I), five counts of unlawful possession of a

controlled substance with intent to deliver (720 ILCS 570/401, 402 (West 2018)) (counts II, III,

IV, VII and VIII), and two counts of possession of a weapon by a felon (720 ILCS 5/24-1.1(a)

(West 2018)) (counts V and VI).

¶4 On October 6, 2021, the State, represented by Terry Costello, and defendant, represented

by Jennifer Kelly, appeared in court. The following exchange occurred between the court,

defendant, and the parties’ attorneys:

“THE COURT: *** I am told by the parties that they have a fully negotiated plea

agreement. Mr. Costello, if you’d state the terms of that plea agreement, please.”

MR. COSTELLO: I will, Your Honor and thank you for taking this plea. The Defendant

will be pleading guilty to Count 5, possession of a weapon by a felon. In exchange for that

plea he’ll be sentenced to ten years in the Illinois Department of Corrections, followed by

one year of mandatory supervised release. He would have credit for 703 days served. He’d

be assessed assessments per Criminal Schedule 1 which totals out to be $549. He would be

assessed a fine of $75. He’d waive his credit against bailable offenses. He would pay a—I

think they call them discretionary assessments now—conditional assessment, I’m sorry, of

2 $100 for the unlawful use or possession of a weapon by a felon. I believe that used to be

called a Trauma Center Fund fee back in the day. Also, as part of the plea agreement, Your

Honor, the State would be dismissing all other counts. So counts 1, 2, 3, 4, 6, 7, 8 would

all be dismissed on the plea. In addition, Mr. Malone would be waiving any forfeiture—or

excuse me—he’d be waiving any interest or claim that he has to $5,780 United States

currency in Whiteside County Case 19 MR 150. That would be my understanding of the

plea, Your Honor.

THE COURT: Ms. Kelly, is that your understanding of the plea agreement?

MS. KELLY: Your Honor, that is my understanding of the plea agreement, but for

clarification of the record, I do not represent Mr. Malone in the MR case, but that is my

understanding of the agreement.

THE COURT: Mr. Malone, is that your agreement?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about the agreement itself?

THE DEFENDANT: No, sir.”

¶5 Both parties agreed that the evidence would substantially show that when police executed

the search warrant on defendant’s home on November 4, 2019, they found defendant in a hallway

near the master bedroom. They also found a loaded handgun in the master bedroom closet, which

defendant admitted was his.

¶6 Defendant executed and filed a “Plea and Waiver” indicating that he was pleading guilty

to count V of the information (possession of a weapon by a felon) and waiving his right to a trial.

Defendant also signed a “Waiver of Sentencing Hearing and Pre-Sentence Report” which stated

in pertinent part:

3 “The undersigned defendant in the above entitled cause, having been found guilty on

his plea of guilty heretofore entered, does hereby waive a sentencing hearing and a pre-

sentence report.

***

I understand that I may waive that right because I have agreed to a negotiated sentence

and know what that sentence will be.”

On the same date, the State filed a motion to dismiss counts I, II, III, IV, VI, VII and VIII of the

information because of the “negotiated plea to count 5.” The trial court accepted and approved the

terms of the plea agreement, finding defendant guilty of possession of a weapon by a felon as

alleged in count V of the information, sentencing defendant to 10 years in prison followed by 1

year of mandatory supervised release (MSR), and giving defendant credit for time served of 703

days. The court also dismissed the remaining counts of the information.

¶7 On October 19, 2021, defendant filed a pro se motion to amend mittimus. In his motion,

defendant alleged that he “has been in substance abuse and [r]ational [e]motive [b]ehavior therapy

treatment from April 12, 2021 until October 6, 2021” in Whiteside County Jail. Defendant asserted

he

“successfully completed a full time 60 days or longer substance abuse and behavior

modification course(s) provided by the county jail through Lutheran Social Services of

Illinois while held in pretrial detention prior to this commitment and is eligible and shall

be awarded additional sentence credit in accordance with 730 ILCS 5/3-6-3(a)(4) [(West

2020)] for a total of 177 days for substance abuse and 177 days for behavior modification.”

Defendant asked the trial court to amend the mittimus to reflect additional sentence credit of 354

days.

4 ¶8 On October 22, 2021, the parties appeared in court. Before seeking a continuance to

respond to defendant’s motion, the State reminded the court that “this was a fully negotiated plea.”

Thereafter, defendant provided to the court a letter dated October 27, 2021, from Barbara Richter

of Lutheran Social Services of Illinois, which stated in pertinent part:

“Mr. Malone started participating in the Whiteside County Treatment Program on April

19, 2021 and continues to voluntarily attend and verbally participate to this date. During

treatment, he has been open and appears to be honest, taking responsibility for is actions,

as well as talking openly about his struggles and his desire to change his life by making

better choices.

Mr. Malone has encouraged others to attend treatment and has supported them while

in the program. I believe it is important to mention that Mr. Malone was informed from the

start that there are no benefits for him participating in treatment. The jail program is a

presentence program that is completely voluntary and offers no benefits to the individual

participating other than assisting the [sic] with addressing substance abuse addiction (both

for dealing and misusing drugs) issues and learning how to make better choices through

changing their thinking.

***

During the course, Mr. Malone completed Anger Management, Stress Management,

Criminal Thinking, Cognitive Distortions, Grief, Assertive Communication,

Communicating with I Messages, Identifying Feelings/Emotions, Behavior Management

Basics, Criminal and Addiction History, Healthy Lifestyles and Balance, Healthy Coping

Skills, and Parenting Classes.”

5 ¶9 The parties appeared in court again on December 8, 2021. At that time, defendant waived

his right to counsel, and the following colloquy took place between defendant, the court, and

State’s Attorney Costello on behalf of the State:

“THE DEFENDANT: I believe that I’m entitled to the six months that I served in the

county jail for the, credits for the drug program I took in the county jail. Where on mittimus

it states that if the Defendant successfully completed a [full] time, 60-day or longer

substance abuse treatment that he shall be awarded additional sentences credit under the,

in accordance with 730 ILCS 5[/]3[-]6[-]3.

And I believe that the six months I served was [full] time. I believe I earned those

credits, and I believe that I should have been awarded that. But my attorney, she says she

had no knowledge that I completed the course and I had no knowledge that this statute

existed for me to receive those credits.

So, I’m asking the court that I be at least compensated the six months of good time

credits that, that I feel I should receive based on serving the treatment program at Lutheran

Social Services.

***

MR. COSTELLO: Your Honor, this was a negotiated disposition. The Defendant was

present and agreed to the time and, at the time of the sentencing.

***

THE DEFENDANT: I understand he say it was a negotiated plea. I have nothing in

negotiated plea states that I’m not eligible for any time credits, anything. The only thing

that was in there was I waived my, my fees. I was sentenced to ten years and I get credit

for the time served and he would dismiss counts.

6 There was nothing in there that stated that I was challenging, that I was not eligible. In

fact, I’m not challenging the plea agreement or negotiated plea, I’m just asking for

additional time credits.”

¶ 10 The court denied defendant’s request to amend the mittimus to reflect additional credits

finding that (1) defendant entered into “a negotiated agreement” that the court could not change

and (2) it did not know whether the programs defendant completed would qualify for credit even

if the court could modify the plea agreement.

¶ 11 II. ANALYSIS

¶ 12 Defendant argues that he is entitled to credit toward his negotiated sentence pursuant to

section 3-6-3 of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3 (West 2020)).

The State responds that defendant is not entitled to any additional credit because he entered into a

fully negotiated plea that did not include the credit he is now seeking.

¶ 13 Plea agreements, especially negotiated plea agreements where the parties have agreed on

the appropriate sentence, are considered contracts between the State and the defendant and are

generally governed by contract law. People v. Lenoir,

. A defendant

is entitled to have his mittimus amended to reflect additional presentence credit following a

negotiated plea only when (1) he receives less credit than what he was promised (id. ¶¶ 12-13;

People v. Clark,

)), or (2) he has not been awarded mandatory

presentence credit (People v. Johnson,

(2010); People v. White,

(2005); People v. Holt,

(1986)). Whether a

mittimus should be amended is a purely legal issue subject to de novo review. People v. Carlisle,

.

7 ¶ 14 Section 3-6-3(a)(1) of the Unified Code provides: “The Department of Corrections shall

prescribe rules and regulations for awarding and revoking sentence credit for persons committed

to the Department which shall be subject to review by the Prisoner Review Board.” 730 ILCS 5/3-

6-3(a)(1) (West 2020). Section 3-6-3(a)(4)(A) provides in pertinent part:

“[T]he rules and regulations shall also provide that any prisoner who is engaged full-time

in substance abuse programs, correctional industry assignments, educational programs,

work-release programs ***, behavior modification programs, life skills courses, or re-entry

planning provided by the Department under this paragraph (4) and satisfactorily completes

the assigned program as determined by the standards of the Department, shall receive one

day of sentence credit for each day in which that prisoner is engaged in the activities

described in this paragraph. The rules and regulations shall also provide that sentence credit

may be provided to an inmate who was held in pre-trial detention prior to his or her current

commitment to the Department of Corrections and successfully completed a full-time, 60-

day or longer substance abuse program, educational program, behavior modification

program, life skills course, or re-entry planning provided by the county department of

corrections or county jail. Calculation of this county program credit shall be done at

sentencing as provided in Section 5-4.5-100 of this Code and shall be included in the

sentencing order.”

§ 3-6-3(a)(4)(A).

Section 5-4.5-100(c-5) of the Unified Code provides: “The trial court shall give the defendant

credit for successfully completing county programming while in custody prior to imposition of

sentence at the rate specified in Section 3-6-3 (730 ILCS 5/3-6-3).” Id. § 5-4.5-100(c-5).

¶ 15 The legislature’s use of the words “shall” in sections 3-6-3 and 5-4.5-100 of the Unified

Code indicates that the sentence credits mentioned therein are mandatory. See People v. Montalvo,

8

(“the trial court was required to give defendant credit for his

successful completion of the anger management program at the rate specified in section 3-6-3”

(emphasis added)); see also People v. Woodard,

(1997) (sentencing provisions

that “employ the word ‘shall’ to confer a statutory right to credit” appear to be mandatory); People

v. Scheib,

(1979) (statute providing that “ ‘[t]he offender shall be given credit

*** for time spent in custody’ ” requires that credit be given (emphasis omitted)); People v. Gallas,

(1985) (finding “mandatory language” in statute providing that

“ ‘time spent in treatment shall be deducted from any sentence imposed’ ”).

¶ 16 Sections 3-6-3 and 5-4.5-100 of the Unified Code place the obligation on the trial court to

determine whether a defendant is eligible for sentence credit for participating in and successfully

completing a full-time, 60 day or longer substance abuse program, educational program, behavior

modification program, life skills course, or re-entry planning and, if so, how much sentence credit

the defendant is entitled to receive. Montalvo,

. The Unified Code

does not define what constitutes a “full-time” program, but the Illinois Administrative Code

(Administrative Code) does. See id. ¶ 23. According to the Administrative Code, “[b]ehavioral

modification, life skills, re-entry planning, self-improvement program and volunteer activity

programming shall be considered full-time if they include a minimum of three-hours of

programming.” 20 Ill. Adm. Code 107.520(j)(1) (2022). “Substance use programming shall be

considered full-time if the participant is *** [n]ormally scheduled to participate in a minimum of

15 hours of substance use programming per week.” 20 Ill. Adm. Code 107.520(j)(3)(B) (2022).

¶ 17 To be entitled to sentence credit under section 3-6-3(a)(4)(A) of the Unified Code, “an

offender must actively partake in the particular program on each day for which he seeks credit.”

Montalvo,

. “This interpretation is consistent with the legislative

9 intent to give sentence credit to encourage offenders to participate in rehabilitative programs.”

It would be inconsistent with the statute’s legislative intent to give a defendant credit for days he

did not attend programming. Id. ¶ 26. It is also inconsistent with the legislative intent to not give

a defendant credit for days he attended programming if the programming exceeds the minimums

set forth in the Administrative Code of 15 hours for substance use and 3 hours for all other

programs. Id. ¶ 27. Thus, a defendant is entitled to receive credit for the days he actually attended

programming even if the program exceeds the minimum hours of participation required in the

Administrative Code. See id. ¶¶ 22, 25, 27 (defendant granted 12 days of sentence credit for

participation in 24-hour anger management program even though program exceeded minimum 15-

hour requirement, which defendant could have satisfied in 8 days).

¶ 18 If a reviewing court can determine that the defendant was eligible for sentence credit under

section 3-6-3(a)(4) of the Unified Code and how much credit the defendant was entitled to receive,

it may amend the mittimus to reflect the proper credit. See id. ¶ 20; Ill. S. Ct. R. 366(a) (eff. Feb.

1, 1994). However, if it is not clear from the record the number of days the defendant spent in

programming, the case should be remanded to the circuit court to consider further evidence on the

issue. See Gallas,

.

¶ 19 “A defendant has the right to first request sentencing credit at any time unless *** he agreed

to forego it as part of a plea or other sentencing agreement.” People v. Williams,

(2008). Where the record shows that the parties discussed specific sentence credits during

plea negotiations and intentionally chose not to include them in the plea agreement, the defendant

received what he bargained for and is not entitled to have his mittimus amended to reflect those

credits. See id.; People v. Evans,

(2009). However, where the record

does not conclusively show that the parties agreed to exclude credit as part of the plea agreement,

10 the circuit court should not deny a defendant’s motion to amend the mittimus to reflect the credit.

See People v. Ford,

; Johnson,

. Instead, the

circuit court must determine if the defendant agreed to exclude the credit as part of the plea

negotiations. See Ford,

. If the court determines the defendant

agreed, the court should deny the defendant’s motion to amend the mittimus. See

If the court

determines the defendant did not agree, the court should grant the defendant’s motion and award

the defendant the appropriate credit. See

¶ 20 Here, defendant entered into a fully negotiated plea with the State that provided he would

receive 703 days credit for time served. The record is devoid of any discussion by the parties about

defendant’s eligibility for credits for behavioral modification or substance use programs, pursuant

to section 3-6-3(a)(4)(A) of the Unified Code. According to defendant, the credits were not

discussed because he did not know the credits were available and his attorney did not know he

completed any programs. Thus, this case is unlike Williams,

, and Evans,

, where the parties were aware of the credits and defendant agreed to forego

them as part of the plea agreement.

¶ 21 Because the record in this case does not show that the parties agreed to exclude the sentence

credit defendant is now seeking, the circuit court erred in denying defendant’s motion to amend

the mittimus. See Ford,

. Instead, the circuit court should have

fulfilled its obligation under sections 3-6-3 and 5-4.5-100 of the Unified Code to determine

whether the defendant was eligible for sentence credit and, if so, how much credit defendant was

entitled to receive. See Montalvo,

.

¶ 22 Thus, we vacate the trial court’s denial of defendant’s motion to amend the mittimus and

remand the cause to the circuit court to determine what, if any, credits defendant is entitled to for

11 his completion of behavioral modification and/or substance use programming. See Gallas,

. To be entitled to credit for behavioral modification, defendant must show that he

attended a minimum of three hours of programming. See 20 Ill. Adm. Code 107.520(j)(1) (2022).

To receive credit for substance use programming, defendant must show he participated “in a

minimum of 15 hours of substance use programming per week.” 20 Ill. Adm. Code

107.520(j)(3)(B) (2022). If defendant meets these requirements, he must also present evidence of

the number of days he actively participated in each program. See Montalvo,

. The circuit court must then amend the mittimus to give defendant credit for each

day he participated in programming. See

However, if defendant fails to present evidence

establishing that he participated in programming that meets the requirements of section 3-6-

3(a)(4)(A) of the Unified Code and its accompanying regulations or does not present evidence of

the number of days he participated in such programming, the trial court may deny defendant’s

mittimus.

¶ 23 III. CONCLUSION

¶ 24 For the reasons stated, we vacate the judgment of the circuit court of Whiteside County

and remand for further proceedings consistent with this opinion.

¶ 25 Vacated and remanded.

12 People v. Malone,

Decision Under Review: Appeal from the Circuit Court of Whiteside County, No. 19-CF- 328; the Hon. Patricia Ann Senneff, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Anne R. Brenner, of for State Appellate Defender’s Office, of Ottawa, for appellant. Appellant:

Attorneys Terry A. Costello, State’s Attorney, of Morrison (Patrick Delfino for and Thomas D. Arado, of State’s Attorneys Appellate Prosecutor’s Appellee: Office, of counsel), for the People.

13