People v. Revell

NOS. 4-04-0835, 4-04-0854 cons. Filed 4/18/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DAVID D. REVELL, ) Nos. 03CF654
Defendant-Appellant. ) 03CF2156
)
) Honorable
) Thomas J. Difanis,
) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In April and May 2004, defendant, David D. Revell,

pleaded guilty to possession of child pornography (720 ILCS 5/11-

20.1(a)(6) (West 2002)) and predatory criminal sexual assault of

a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) in two separate

cases. Following a consolidated sentencing hearing, the trial

court sentenced defendant to 5 years' imprisonment for possession

of child pornography to run consecutive to a 40-year prison term

for predatory criminal sexual assault of a child. The court

awarded defendant 463 days of sentence credit.

Defendant appealed, arguing (1) the penalty for subsec-

tion (a)(1) of the predatory-criminal-sexual-assault-of-a-child

statute (720 ILCS 5/12-14.1(a)(1) (West 2002)) violates the

proportionate-penalties and due-process clauses of the Illinois

Constitution and (2) he is entitled to 15 additional days of
sentence credit. We affirm as modified and remand with direc-

tions.

I. BACKGROUND

This case involves consolidated appeals of Champaign

County case Nos. 03-CF-654 and 03-CF-2156. However, the

sentence-credit issue also requires an examination of Champaign

County case No. 03-CF-580, and defendant has provided the record

of that case on appeal.

On April 2, 2003, defendant was arrested for aggravated

criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 2002)) in

Champaign County case No. 03-CF-580. On April 3, 2003, he was

released on his own recognizance. The indictment alleged that

from August 2, 2002, until April 3, 2003, defendant committed

acts of sexual conduct with a seven-year-old female by rubbing

her vaginal area through her clothes with his hands.

On April 11, 2003, defendant was arrested for child

pornography in Champaign County case No. 03-CF-654. The indict-

ment alleged that on April 11, 2003, defendant knowingly pos-

sessed a photograph of a female child engaging in sexual penetra-

tion with an adult male and that defendant reasonably should have

known the female was under the age of 18.

In November 2003, defendant pleaded guilty in case No.

03-CF-580.

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 On December 15, 2003, the State charged defendant by

information with two counts of predatory criminal sexual assault

of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) and four counts

of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2002))

in case No. 03-CF-2156. On December 29, 2003, defendant moved to

withdraw his guilty plea in case No. 03-CF-580 on the basis that

new charges were filed against him that deprived him of any

benefit he could receive from pleading guilty. On January 7,

2004, the trial court allowed defendant to withdraw his guilty

plea.

In January 2004, the grand jury indicted defendant on

two counts of predatory criminal sexual assault of a child (720

ILCS 5/12-14.1(a)(1) (West 2002)), four counts of criminal sexual

assault (720 ILCS 5/12-13(a)(1) (West 2002)), and two counts of

child pornography (720 ILCS 5/11-20.1(a)(1)(ii) (West 2002)) in

case No. 03-CF-2156. As is relevant to this appeal, count I,

charging defendant with predatory criminal sexual assault,

alleged that from June 2002 until March 31, 2003, defendant, a

person 17 years of age or older, committed an act of sexual

penetration on a person under 13 years of age by placing his sex

organ in the victim's sex organ. The same victim was involved in

case No. 03-CF-580 and case No. 03-CF-2156.

In April 2004, defendant entered an open plea to the

possession-of-child-pornography charge in case No. 03-CF-654.

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Before accepting the plea, the trial court informed defendant

that the offense was a Class 3 felony punishable by not less than

two nor more than five years' imprisonment. After admonishments,

confirming the voluntariness of the plea, and hearing a factual

basis, the court accepted defendant's plea.

In May 2004, defendant pleaded guilty to count I,

predatory criminal sexual assault, in case No. 03-CF-2156. The

State informed the trial court that in exchange for defendant's

plea of guilty to count I, the State would dismiss the remaining

counts and also dismiss case No. 03-CF-580. The State also

agreed to limit its recommendation at the sentencing hearing to a

term of 50 years' imprisonment in case No. 03-CF-2156.

Before accepting the plea, the trial court informed

defendant that the offense was a Class X felony with a minimum

sentence of 6 years and a maximum sentence of 60 years in prison.

The court also reminded defendant that he had already pleaded

guilty to possession of child pornography, a Class 3 felony,

carrying a sentence of two to five years' imprisonment. The

State informed the court of its belief that the child-pornography

sentence would have to be served consecutively to the predatory-

criminal-sexual-assault sentence. After giving defendant his

admonishments, confirming the voluntariness of the plea, and

hearing a factual basis, the court accepted the plea.

The trial court consolidated case Nos. 03-CF-654 and

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03-CF-2156 for sentencing and postsentencing. At the July 2004

sentencing hearing, the court sentenced defendant to 5 years'

imprisonment for possession of child pornography to run consecu-

tively to a 40-year prison term for predatory criminal sexual

assault. The court awarded defendant 463 days of sentence credit

for the period of April 11, 2003, through July 29, 2004. The

court applied all of defendant's sentence credit to the

predatory-criminal-sexual-assault conviction and none to the

possession-of-child-pornography conviction. In September 2004,

defendant filed, and the trial court denied, motions to withdraw

the guilty pleas and motions to reconsider the sentences.

This appeal followed.

II. ANALYSIS

A. Extended-Term Sentencing

Defendant argues the penalty for a violation of section

12-14.1(a)(1) of the Criminal Code of 1961 (Criminal Code)

violates the proportionate-penalties and due-process clauses of

the Illinois Constitution. Specifically, defendant claims that

the offense for which he was convicted, predatory criminal sexual

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)),

carries a harsher penalty than the more serious crimes of preda-

tory criminal sexual assault of a child while armed with a

firearm (720 ILCS 5/12-14.1(a)(1.1) (West 2002)) and predatory

criminal sexual assault of a child involving the discharge of a

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firearm (720 ILCS 5/12-14.1(a)(1.2) (West 2002)).

Defendant acknowledges that this court, in People v.

Dunn, 365 Ill. App. 3d 292, 296-97, 849 N.E.2d 148, 151 (2006),

rejected the same proportionate-penalties argument but asks this

court to overrule Dunn. Defendant alternatively asks this court

to find that the statute violates the due-process clause of the

Illinois Constitution (Ill. Const. 1970, art. I, §2), an issue

neither raised nor addressed in Dunn.

In Dunn, this court rejected the same proportionate-

penalties argument defendant raises in this case. Dunn, 365 Ill.

App. 3d at 296-97, 849 N.E.2d at 151. Specifically, we held that

the penalty for predatory criminal sexual assault of a child did

not violate the proportionate-penalties clause under the

identical-elements test. Dunn, 365 Ill. App. 3d at 296-97, 849

N.E.2d at 151. We decline to overrule Dunn. However, the

defendant in Dunn did not challenge the penalty for predatory

criminal sexual assault of a child on the basis of due process, a

claim defendant raises here.

For the reasons that follow, we conclude that no

disproportionate penalty exists at all. The crux of defendant's

argument is that the extended-term sentencing provisions apply

only to section 12-14.1(a)(1) of the Criminal Code and not to

sections 12-14.1(a)(1.1) and (a)(1.2). We find the extended-term

sentencing provisions also apply to sections 12-14.1(a)(1.1) and

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(a)(1.2).

1. Statutory Background

An examination of the relevant statutory provisions is

required. As late as 1994, the statute for aggravated criminal

sexual assault included two crimes: (1) our now predatory crimi-

nal sexual assault and (2) our now aggravated criminal sexual

assault. See 720 ILCS 5/12-14(b) (West 1994). Former section

12-14(b)(1) of the Criminal Code provided a person commits

aggravated criminal sexual assault when:

"(1) the accused was 17 years of age or

over and commits an act of sexual penetration

with a victim who was under 13 years of age

when the act was committed." 720 ILCS 5/12-

14(b)(1) (West 1994).

Aggravated criminal sexual assault was a Class X felony (720 ILCS

5/12-14(d) (West 1994)) with a sentencing range of 6 to 30 years'

imprisonment. 730 ILCS 5/5-8-1(a)(3) (West 1994). However,

section 5-5-3.2(c) of the Unified Code of Corrections (Unified

Code) allowed a trial court to impose an extended-term sentence

upon any offender convicted of aggravated criminal sexual assault

when the victim was under 18 years of age at the time the offense

was committed. 730 ILCS 5/5-5-3.2(c) (West 1994). The extended

term for a Class X felony was, and remains, not less than 30 nor

more than 60 years' imprisonment. 730 ILCS 5/5-8-2(a)(2) (West

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1994); 730 ILCS 5/5-8-2(a)(2) (West 2004).

Effective December 13, 1995, the legislature divided

the aggravated-criminal-sexual-assault statute. See Pub. Act 89-

428, art. 2, §260, eff. December 13, 1995 (1995 Ill. Laws 4453,

4506) (amending 720 ILCS 5/12-14.1(a) (West 1994)); see also In

re Donald A.G., 221 Ill. 2d 234, 247, 850 N.E.2d 172, 179 (2006).

The language formerly contained in section 12-14(b)(1) was named

"predatory criminal sexual assault of a child" and became section

12-14.1(a)(1) of the Criminal Code. See 720 ILCS 5/12-14.1(a)(1)

(West 1996); Donald A.G., 221 Ill. 2d at 247, 850 N.E.2d at 179.

Effective July 15, 1999, the legislature also amended

section 5-5-3.2(c) of the Unified Code to specifically reference

the predatory-criminal-sexual-assault-of-a-child statute. Pub.

Act 91-120, §5, eff. July 15, 1999 (1999 Ill. Laws 1995, 1995-96)

(amending 730 ILCS 5/5-5-3.2(c) (West 1998)). Section 5-5-3.2(c)

provided, and continues to provide, as follows:

"The court may impose an extended[-]term

sentence under [s]ection 5-8-2 upon any of-

fender who was convicted of aggravated crimi-

nal sexual assault or predatory criminal

sexual assault of a child under subsection

(a)(1) of [s]ection 12-14.1 of the Criminal

Code of 1961 where the victim was under 18

years of age at the time of the commission of

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 the offense." (Emphasis added.) 730 ILCS

5/5-5-3.2(c) (West 2000).

Effective January 1, 2000, the legislature added two

additional subsections to the predatory-criminal-sexual-assault-

of-a-child statute. See Pub. Act 91-404, §5, eff. January 1,

2000 (amending 720 ILCS 5/12-14.1(a) (West 1998)). Pursuant to

the amendment, the statute provided, and continues to provide, as

follows:

"(a) The accused commits predatory

criminal sexual assault of a child if:

(1) the accused was 17 years

of age or over and commits an act

of sexual penetration with a victim

who was under 13 years of age when

the act was committed; or

(1.1) the accused was 17 years

of age or over and, while armed

with a firearm, commits an act of

sexual penetration with a victim

who was under 13 years of age when

the act was committed; or

(1.2) the accused was 17 years

of age or over and commits an act

of sexual penetration with a victim

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 under 13 years of age when the act

was committed and, during the com-

mission of the offense, the accused

personally discharged a firearm."

720 ILCS 5/12-14.1(a)(1), (a)(1.1),

(a)(1.2) (West 2000).

The legislature articulated its intent in enacting these provi-

sions in sections 33A-1(a) and (b) of the armed-violence section

of the Criminal Code. See 720 ILCS 5/33A-1(a), (b) (West 2004);

People v. Sharpe, 216 Ill. 2d 481, 531-32 n.5, 839 N.E.2d 492,

523 n.5 (2005) (noting that while the provisions articulating the

legislature's intent are contained in the armed-violence statute,

the findings were enacted as part of Public Act 91-404 and

expressed the legislature's intent in enacting the firearm

enhancements). Section 33A-1 provides as follows:

"(a) Legislative findings. The legisla-

ture finds and declares the following:

(1) The use of a dangerous

weapon in the commission of a fel-

ony offense poses a much greater

threat to the public health,

safety, and general welfare, than

when a weapon is not used in the

commission of the offense.

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 (2) Further, the use of a

firearm greatly facilitates the

commission of a criminal offense

because of the more lethal nature

of a firearm and the greater per-

ceived threat produced in those

confronted by a person wielding a

firearm. Unlike other dangerous

weapons such as knives and clubs,

the use of a firearm in the commis-

sion of a criminal felony offense

significantly escalates the threat

and the potential for bodily harm,

and the greater range of the fire-

arm increases the potential for

harm to more persons. Not only are

the victims and bystanders at

greater risk when a firearm is

used, but also the law enforcement

officers whose duty it is to con-

front and apprehend the armed sus-

pect.

(3) Current law does contain

offenses involving the use or dis-

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 charge of a gun toward or against a

person, such as aggravated battery

with a firearm, aggravated

discharge of a firearm, and reck-

less discharge of a firearm; how-

ever, the General Assembly has

legislated greater penalties for

the commission of a felony while in

possession of a firearm because it

deems such acts as more serious.

(b) Legislative intent.

(1) In order to deter the use

of firearms in the commission of a

felony offense, the General Assem-

bly deems it appropriate for a

greater penalty to be imposed when

a firearm is used or discharged in

the commission of an offense than

the penalty imposed for using other

types of weapons and for the pen-

alty to increase on more serious

offenses.

(2) With the additional ele-

ments of the discharge of a firearm

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 and great bodily harm inflicted by

a firearm being added to armed

violence and other serious felony

offenses, it is the intent of the

General Assembly to punish those

elements more severely during com-

mission of a felony offense than

when those elements stand alone as

the act of the offender." 720 ILCS

5/33A-1(a), (b) (West 2002).

When the legislature added subsections (a)(1.1) and

(a)(1.2), the legislature also created penalties for the of-

fenses. Violations of subsections (a)(1), (a)(1.1), and (a)(1.2)

all constitute Class X felonies. 720 ILCS 5/12-14.1(b) (West

2002). However, a term of 15 and 20 years respectively shall be

added to the term of imprisonment imposed by the court for

violations of subsections (a)(1.1) and (a)(1.2). 720 ILCS 5/12-

14.1(b) (West 2002).

2. Extended-Term Sentencing Applies to Subsections (a)(1),
(a)(1.1), and (a)(1.2)

Defendant argues that despite predatory criminal sexual

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) consti-

tuting a lesser-included offense of predatory criminal sexual

assault of a child while armed with a firearm (720 ILCS 5/12-

14.1(a)(1.1) (West 2002)) and predatory criminal sexual assault

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of a child involving the discharge of a firearm (720 ILCS 5/12-

14.1(a)(1.2) (West 2002)), a violation of subsection (a)(1)

carries a more severe penalty than a violation of subsection

(a)(1.1) or (a)(1.2). Defendant contends that under the express

terms of section 5-5-3.2(c), only section 12-14.1(a)(1) of the

Criminal Code is subject to an extended-term sentencing range of

30 to 60 years. Because, according to defendant, sections 12-

14.1(a)(1.1) and (a)(1.2) are not subject to an extended-term

sentence, a person convicted of those crimes faces only an

additional 15 or 20 years respectively added to the general Class

X sentence range. That is, predatory criminal sexual assault of

a child while armed with a firearm only carries a possible

sentence of 21 to 45 years' imprisonment (the minimum 6 years

plus 15 years and the maximum 30 years plus 15 years) and preda-

tory criminal sexual assault of a child involving the discharge

of a firearm only carries a possible sentence of 26 to 50 years

(the minimum 6 years plus 20 years and the maximum 30 years plus

20 years).

Citing People v. Bradley, 79 Ill. 2d 410, 403 N.E.2d

1029 (1980), defendant argues that the disparity in sentencing

between committing predatory criminal sexual assault of a child

with and without a firearm violates the due-process clause of the

Illinois Constitution. In Bradley, the supreme court found that

section 402(b) of the Illinois Controlled Substances Act (Ill.

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Rev. Stat. 1977, ch. 56 1/2, par. 1402(b)) violated the due-

process clause of the Illinois Constitution because it provided a

greater penalty for possession of the controlled substance than

for delivery of the same controlled substance under section

401(e) (Ill. Rev. Stat. 1977, ch. 56 1/2, par. 1401(e)).

Bradley, 79 Ill. 2d at 418, 403 N.E.2d at 1032. Such result was

clearly contrary to the legislature's intent to punish traffick-

ing more severely than possession. Bradley, 79 Ill. 2d at 418,

403 N.E.2d at 1032.

After examining defendant's due-process argument and

the relevant statutory provisions, we conclude that no dispropor-

tionate penalty exists at all because section 5-5-3.2(c) of the

Unified Code also applies to sections 12-14.1(a)(1.1) and

(a)(1.2).

Issues of statutory construction and the constitution-

ality of statutes are questions of law reviewed de novo. Dunn,

365 Ill. App. 3d at 294, 849 N.E.2d at 149; Donald A.G., 221 Ill.

2d at 246, 850 N.E.2d at 179. As this court stated in Dunn:

"A statute carries a strong presumption of

constitutionality, and thus the party chal-

lenging the statute must clearly establish it

violates the constitution. Moreover, we

generally give deference to the legislature

on sentencing matters because 'the legisla-

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 ture is institutionally better equipped to

gauge the seriousness of various offenses and

to fashion sentences accordingly.'" Dunn,

365 Ill. App. 3d at 294, 849 N.E.2d at 149,

quoting Sharpe, 216 Ill. 2d at 487, 839

N.E.2d at 497.

The primary consideration in construing a statute is to

determine and give effect to the legislature's intent. People v.

Skillom, 361 Ill. App. 3d 901, 906, 838 N.E.2d 117, 122 (2005).

A court must consider the statute in its entirety. People v.

Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). "The

most reliable indicator of legislative intent is the language of

the statute, which, if plain and unambiguous, must be read

without exception, limitation, or other condition." Davis, 199

Ill. 2d at 135, 766 N.E.2d at 644.

However, courts should also consider "the 'reason and

necessity for the law, the evils to be remedied, and the objects

and purposes to be obtained.'" People v. Parker, 123 Ill. 2d

204, 209, 526 N.E.2d 135, 137 (1988), quoting People v. Haywood,

118 Ill. 2d 263, 271, 515 N.E.2d 45, 49 (1987). Further, "if the

intent and purpose of the legislature can be determined from a

statute, 'words may be modified, altered, or even supplied so as

to obviate any repugnancy or inconsistency with the legislative

intention.'" Parker, 123 Ill. 2d at 210-11, 526 N.E.2d at 138,

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quoting People v. Bratcher, 63 Ill. 2d 534, 543, 349 N.E.2d 31,

35 (1976). Finally, "[w]hile penal statutes are to be strictly

construed in favor of an accused, they must not be construed so

rigidly as to defeat the intent of the legislature." Parker, 123

Ill. 2d at 213, 526 N.E.2d at 139. "[W]e are not bound by the

literal language of a statute if that language produces absurd or

unjust results not contemplated by the legislature." Donald

A.G., 221 Ill. 2d at 246, 850 N.E.2d at 179.

Given the legislature's stated intent, it is clear that

the legislature's failure to amend section 5-5-3.2(c) to specifi-

cally include reference to sections 12-14.1(a)(1.1) and (a)(1.2)

was merely an oversight. Section 5-5-3.2(c) allows a trial court

to impose an extended-term sentence upon a defendant convicted of

"predatory criminal sexual assault of a child under subsection

(a)(1) of [s]ection 12-14.1." 730 ILCS 5/5-5-3.2(c) (West 2002).

A person commits predatory criminal sexual assault of a child

when a person 17 years old or older commits an act of sexual

penetration on a victim under 13 years old. 720 ILCS 5/12-

14.1(a)(1) (West 2002). The only additional element involved in

subsections (a)(1.1) and (a)(1.2) is the presence or discharge of

a firearm, a factor the legislature specifically intended to

punish more severely. See 720 ILCS 5/33A-1(b)(2) (West 2004).

The legislature specifically stated it intended to impose a

greater penalty for the commission of a felony while in the

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possession of a firearm. See 720 ILCS 5/33A-1(a)(2), (b)(1),

(b)(2) (West 2002).

This case is analogous to Donald A.G. In Donald A.G.,

the supreme court found that the statutory presumption of deprav-

ity in section 1(D)(i) of the Adoption Act (750 ILCS 50/1(D)(i)

(West 2002)) applied to a parent convicted of predatory criminal

sexual assault of a child, despite that offense not being enumer-

ated therein. Donald A.G., 221 Ill. 2d at 247-48, 850 N.E.2d at

179-80. The supreme court noted that when the legislature

enacted section 1(D)(i) of the Adoption Act, section 12-

14.1(a)(1) of the Criminal Code did not exist. Donald A.G., 221

Ill. 2d at 246, 850 N.E.2d at 179. Moreover, the language

contained in section 12-14.1(a)(1) was identical to the language

of the crime specifically enumerated in section (1)(D)(i) of the

Adoption Act, section 12-14(b)(1), aggravated criminal sexual

assault. Donald A.G., 221 Ill. 2d at 247, 850 N.E.2d at 179.

Consequently, the court concluded as follows:

"In sum, our review of the legislative

history leads us to conclude that the legis-

lature made an inadvertent drafting error in

stating that the presumption of depravity

applied to the offense of aggravated criminal

sexual assault. The legislature intended for

the presumption to apply to the conduct which

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 now comprises the offense of predatory crimi-

nal sexual assault of a child." Donald A.G.,

221 Ill. 2d at 250, 850 N.E.2d at 180-81.

Similarly here, when the legislature amended section 5-

5-3.2(c) to include section 12-14.1(a)(1) as a basis for imposing

an extended term, sections 12-14.1(a)(1.1) and (a)(1.2) did not

exist. After the legislature created sections 12-14.1(a)(1.1)

and (a)(1.2), the legislature inadvertently failed to amend

section 5-5-3.2(c) to include specific reference to sections 12-

14.1(a)(1.1) and (a)(1.2). Given the legislature's stated intent

to treat certain crimes involving the presence or discharge of

firearms more harshly, and given the fact that sections 12-

14.1(a)(1.1) and (a)(1.2) involve the same underlying offense as

section (a)(1), the omission of a reference to sections 12-

14.1(a)(1.1) and (a)(1.2) is simply a result of legislative

oversight, and reference to said sections should be read into the

statute. See People v. Chandler, 129 Ill. 2d 233, 253, 543

N.E.2d 1290, 1298 (1989) (noting that the "judiciary possesses

the authority to read language into a statute which has been

omitted through legislative oversight"); People v. Smith, 307

Ill. App. 3d 414, 421, 718 N.E.2d 640, 644 (1999) (finding that

the absence of the language "predatory criminal sexual assault of

a child" from the sentencing provisions of the indecent-

soliciation statute was simply legislative oversight and such

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language should be read into the statute); Parker, 123 Ill. 2d at

210, 526 N.E.2d at 138 (finding that although the sexual-

relations-within-families statute did not specifically identify

"stepparents," stepparents were clearly within the group of

persons covered by the statute). Finally, the penalty for a

violation of section 12-14.1(a)(1) is not more severe than the

penalty for a violation of sections 12-14.1(a)(1.1) and (a)(1.2),

and defendant has not been denied due process.

B. Sentence Credit

The trial court awarded defendant 463 days of sentence

credit for time spent in custody from April 11, 2003, the date

defendant was arrested in case No. 03-CF-654, until July 29,

2004, the date of sentencing. Defendant argues he is entitled to

(1) an additional 13 days of sentence credit for the time period

between April 11, 2003, and July 29, 2004, and (2) 2 days of

sentence credit for time spent in custody on case No. 03-CF-580.

1. April 11, 2003, through July 29, 2004

Defendant first argues that counting the first and last

day between April 11, 2003, and July 29, 2004, and taking into

account that 2004 was a leap year, he is entitled to an addi-

tional 13 days of sentence credit for that time period. The

State correctly concedes defendant is entitled to an additional

12 days for that time period but disputes defendant's entitlement

to sentence credit for the day of sentencing, July 29, 2004.

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 Here, defendant was sentenced to imprisonment on July

29, 2004. At the conclusion of the sentencing hearing, the trial

court remanded defendant to the custody of the sheriff for

transportation to the Department of Corrections (DOC). In

addition, the preprinted judgment forms in both cases contain the

following provision: "That the [s]heriff take the [d]efendant

into custody and deliver him to the [DOC] which shall confine

said [d]efendant until expiration of his sentence or until he is

otherwise released by operation of law." See 730 ILCS 5/5-8-7(c)

(West 2004).

In People v. Foreman, 361 Ill. App. 3d 136, 157, 836

N.E.2d 750, 768 (2005), the First District stated that "while a

defendant is entitled to credit for each day he or she spends in

custody prior to being sentenced, a defendant will not be cred-

ited for the day of sentencing in which he is remanded to the

Department of Corrections." See also People v. Stewart, 217 Ill.

App. 3d 373, 377, 577 N.E.2d 175, 177 (1991) (Third District);

People v. Leggans, 140 Ill. App. 3d 268, 270-71, 488 N.E.2d 614,

615 (1986) (Fifth District). The "purpose of the 'credit-

against-sentence' provision contained in section 5-8-7(b) is to

ensure that defendants do not ultimately remain incarcerated for

periods in excess of their eventual sentences." People v.

Latona, 184 Ill. 2d 260, 270, 703 N.E.2d 901, 906 (1998). By not

crediting a defendant for the day of sentencing in which he is

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remanded to prison, a defendant will not ultimately remain

incarcerated for a period in excess of his sentence. Instead,

his prison sentence will begin, and he will no longer be in

custody "prior to sentencing."

The issue is less clear when a defendant's transfer to

DOC does not occur immediately, since section 5-8-7(a) of the

Unified Code (730 ILCS 5/5-8-7(a) (West 2004)) provides "[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." Although defendant recog-

nizes the likelihood that a defendant will not be transported to

DOC on the date of sentencing, he does not argue that he was in

fact remanded to DOC's custody later than July 29, 2004. In-

stead, defendant simply argues that by following Foreman, this

court increases the likelihood that a defendant will lose a day

of sentence credit and the $5 fine credit for the day of sentenc-

ing.

However, a prisoner may remain in the county jail and

still be in the custody of DOC. See, e.g., People v. King, 366

Ill. App. 3d 552, 557, 852 N.E.2d 559, 563 (2006) (because DOC

essentially had authority over defendant, the county jail was the

equivalent of a DOC institution; therefore, the intrastate-

detainer statute was the applicable speedy-trial provision).

However, without any indication that defendant was not received

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by DOC on July 29, 2004, and without DOC's affidavit of its

calculation of credit, this court is unable to address whether

defendant received credit from DOC toward his term of imprison-

ment for any days served before he was received by DOC.

2. Credit for Days Served in Case No. 03-CF-580

Defendant also seeks the two additional days of sen-

tence credit for the time he served in custody in case 03-CF-580.

Defendant was arrested in case No. 03-CF-580 on April 2, 2003,

and released on his own recognizance on April 3, 2003.

Section 5-8-7(c) of Unified Code provides as follows:

"An offender arrested on one charge and

prosecuted on another charge for conduct

which occurred prior to his arrest shall be

given credit on the determinate sentence or

maximum term and the minimum term of impris-

onment for time spent in custody under the

former charge not credited against another

sentence." 730 ILCS 5/5-8-7(c) (West 2004).

The State argues defendant is not entitled to the two

days of credit relating to case No. 03-CF-580 because the

aggravated-criminal-sexual-abuse charge in case No. 03-CF-580 was

not based upon the same conduct as the predatory-criminal-sexual-

assault charge in case No. 03-CF-2156, to which defendant pleaded

guilty and on which he was sentenced. In support of its argu-

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ment, the State points to the Council Commentary to section 5-8-

7(c) stating that subsection (c) "provides for the case, not

covered under former law, where all confinement since arrest is

credited against the sentence even if the original charge is

dropped in favor of a new charge with results in conviction and

imprisonment." 730 ILCS Ann. 5/5-8-7, Council Commentary--1973,

at 622 (Smith-Hurd 1997). The State also notes, citing People v.

Kane, 136 Ill. App. 3d 1030, 1036, 484 N.E.2d 296, 300 (1985),

that the purpose of subsection (c) is to prevent the State from

defeating a defendant's right to credit for jail time by dropping

one charge in favor of another charge based on the same conduct.

When construing a statute, the primary consideration is

to determine and give effect to the legislature's intent.

Skillom, 361 Ill. App. 3d at 906, 838 N.E.2d at 122. A court

must consider the statute in its entirety. Davis, 199 Ill. 2d at

135, 766 N.E.2d at 644. "The most reliable indicator of legisla-

tive intent is the language of the statute, which, if plain and

unambiguous, must be read without exception, limitation, or other

condition." Davis, 199 Ill. 2d at 135, 766 N.E.2d at 644.

Here, the plain language of the statute provides

defendant is entitled to the two days spent in custody in case

No. 03-CF-580. The facts underlying the aggravated-criminal-

sexual-abuse charge in case No. 03-CF-580 occurred between August

2, 2002, and April 3, 2003. Although defendant pleaded guilty to

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the charge, he successfully moved to withdraw his guilty plea

after the State filed new charges against him. The predatory-

criminal-sexual-abuse charge alleged conduct in case No. 03-CF-

2156 occurring between June 2002 until March 31, 2003--all

conduct prior to defendant's arrest in April 2003 in case No. 03-

CF-580. Therefore, because defendant (1) was arrested in case

No. 03-CF-580, (2) was prosecuted in case No. 03-CF-2156 which

involved conduct that occurred prior to his arrest in case No.

03-CF-580, and (3) did not receive credit for the time spent in

custody in No. 03-CF-580 against another sentence, defendant is

entitled to an additional two days' credit. Although the State

did not expressly drop the initial charge and recharge defendant

with another crime, that was the end result. That is, the

predatory-criminal-sexual-assault charge essentially replaced the

aggravated-criminal-sexual-abuse charge. See, e.g., People v.

Rowell, No. 4-04-0481, slip op. at 4 (December 15, 2006) (wherein

the State conceded that where the misdemeanor charge was dis-

missed and replaced with a felony charge, the defendant was

entitled to sentencing credit for the two days he spent in

custody for the misdemeanor charge). Therefore, defendant is

entitled to two additional days' credit for time served.

III. CONCLUSION

For the reasons stated, we affirm defendant's convic-

tion and sentence and modify the sentence to reflect an addi-

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tional 14 days of sentence credit and remand for issuance of an

amended judgment of sentence. As part of our judgment, we grant

the State its statutory assessment of $50 against defendant as

costs of this appeal.

Affirmed as modified; cause remanded with directions.

APPLETON and KNECHT, JJ., concur.

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