People v. Rinehart

NO. 4-09-0283 Filed 12/17/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Coles County
THOMAS S. RINEHART, ) No. 06CF664
Defendant-Appellant. )
) Honorable
) Gary W. Jacobs
) Judge Presiding.
_________________________________________________________________

PRESIDING JUSTICE KNECHT delivered the opinion of the

court:

In December 2007, a jury convicted defendant, Thomas S.

Rinehart, of criminal sexual assault, a Class 1 felony (720 ILCS

5/12-13(a)(3) (West 2006)). In February 2008, the trial court

sentenced him to 28 years' imprisonment, with 334 days' sentence

credit. The written sentencing order did not indicate a manda-

tory supervised release (MSR) period.

Defendant appeals, arguing (1) he was denied a fair

trial where the State improperly questioned the venire, (2) the

sentencing judgment should be amended to reflect a two-year term

of MSR, and (3) he is entitled to two additional days' sentence

credit. We affirm as modified and remand with directions.

I. BACKGROUND

During defendant's December 2007 trial, A.A. (born

September 15, 1988) testified that in August 2006, she was

helping her mother's boyfriend, defendant, move some friends from

Mattoon, Illinois. According to A.A.'s testimony, defendant was
driving her mother's van. A.A. was alone in the van with defen-

dant. Defendant drove the van off of Route 316 onto a small side

road. Defendant told A.A., then 17 years old, to get into the

back of the van and to take her clothes off. A.A. testified

defendant placed his penis in her vagina. Defendant then told

A.A. not to tell anybody about what happened. The incident was

not reported to police for two to three weeks. At trial, defen-

dant presented no evidence on his behalf.

In December 2007, a jury convicted defendant of crimi-

nal sexual assault. The trial court's sentencing judgment

reflected defendant's sentence of 28 years' imprisonment and 334

days' sentence credit. However, the sentencing judgment did not

include a term of MSR. Thereafter, defendant received a natural-

life MSR term from the Department of Corrections (DOC).

In March 2008, defendant filed a motion for reduction

of sentence, which the trial court denied.

This appeal followed.

II. ANALYSIS

On appeal, defendant argues (1) the State's improper

questions to prospective jurors asked them to prejudge the

victim's credibility and predisposed them to believe her testi-

mony; (2) because defendant was convicted of a Class 1 felony, he

should only receive a two-year MSR term; (3) because only the

trial court--and not DOC--is authorized to impose sentence, DOC

did not have the authority to set his MSR term at natural life;

and (4) defendant is entitled to two additional days' sentence

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credit because he was not taken into custody until the day after

sentencing.

The State argues (1) the prosecutor's questioning

during voir dire was proper and (2) defendant's MSR term of

natural life was within the correct statutory range, but (3)

concedes defendant is entitled to two additional days' sentence

credit.

A. State's Questioning of the Venire

Defendant first argues he was denied a fair trial where

the State improperly questioned the venire. We agree the ques-

tions were improper but conclude defendant was not denied a fair

trial.

1. Forfeiture

The State argues, and defendant concedes, defendant

failed to properly preserve this issue for appellate review by

failing to object to the State's voir dire questions or raise the

issue in a posttrial motion. See People v. Coleman, 227 Ill. 2d

426, 433, 882 N.E.2d 1025, 1028-29 (2008). Defendant argues this

issue should be considered under a plain-error analysis. How-

ever, before determining whether plain error occurred, we must

first determine whether any error occurred at all. People v.

Owens, 372 Ill. App. 3d 616, 620, 874 N.E.2d 116, 118 (2007).

2. Standard of Review

Trial courts have broad discretion in conducting and

managing voir dire. People v. Klimawicze, 352 Ill. App. 3d 13,

25, 815 N.E.2d 760, 773 (2004). Accordingly, the standard of

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review applied to the manner in which the trial court conducts

voir dire is abuse of discretion. People v. Boston, 383 Ill.

App. 3d 352, 355, 893 N.E.2d 677, 680 (2008). An abuse of

discretion occurs where the conduct of the trial court thwarted

the selection of an impartial jury. People v. Gardner, 348 Ill.

App. 3d 479, 488, 810 N.E.2d 180, 188 (2004).

3. Voir Dire

"A defendant's right to a jury trial mandates a fair

trial by a panel of impartial jurors." People v. Gay, 377 Ill.

App. 3d 828, 834, 882 N.E.2d 1033, 1038 (2007). "The purpose of

voir dire is to assure the selection of an impartial panel of

jurors free from either bias or prejudice." People v. Williams,

164 Ill. 2d 1, 16, 645 N.E.2d 844, 850 (1994). "[V]oir dire

questions should confirm a prospective juror's ability to set

aside feelings of bias and decide the case on the evidence

presented." Gay, 377 Ill. App. 3d at 835, 882 N.E.2d at 1038.

They must "not directly or indirectly concern matters of law or

instructions." Official Reports Advance Sheet No. 8 (April 11,

2007), R. 431(a), eff. May 1, 2007. "[V]oir dire 'is not to be

used as a means of indoctrinating a jury, or impaneling a jury

with a particular predisposition.'" Boston, 383 Ill. App. 3d at

354, 893 N.E.2d at 680, quoting People v. Bowel, 111 Ill. 2d 58,

64, 488 N.E.2d 995, 998 (1986).

In this case, the State questioned the venire as

follows:

"[MS. KIGER (Assistant State's Attor-

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 ney):] Can you think of some reasons why a

sexual[-]assault victim might not immediately

report an incident?

[PROSPECTIVE JUROR:] Why they would not

report an incident?

[MS. KIGER:] Right away.

[PROSPECTIVE JUROR:] The victim?

[MS. KIGER:] Correct.

[PROSPECTIVE JUROR:] Well, they probably

may say it really didn't happen, and then the

falling out with the parents. Maybe there

was a relationship, you know, age difference

relationship. Then the parents found out

about it, convinced, you know. Children are

children.

[MS. KIGER:] Can you think of a reason

why a victim who had had some things happen

to them might not immediately go to an adult

or report it?

[PROSPECTIVE JUROR:] Scared."

The State continued questioning other potential jurors

as follows:

"[MS. KIGER:] Can you think of some

reasons why a victim of sexual assault might

not immediately report it to someone?

[PROSPECTIVE JUROR:] Fear, shame.

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 * * *

[MS. KIGER:] Can you think of a reason

why a victim might delay in reporting being

raped or being a victim of sexual assault?

[PROSPECTIVE JUROR:] Shame, embarrass-

ment, fear.

* * *

[MS. KIGER:] Can you think of some rea-

sons why a sexual[-]assault victim might not

automatically come forward?

[PROSPECTIVE JUROR:] Oh, I think maybe

fear, and [thoughts] you would be a lesser

person if something like that happened to

you.

* * *

[MS. KIGER:] Can you think of some rea-

sons why a sexual[-]assault victim might not

immediately report that?

[PROSPECTIVE JUROR:] Yeah.

[MS. KIGER:] Can you tell me what some

of those reasons would be?

[PROSPECTIVE JUROR:] Same, fear and

scared to come forward."

Defendant argues these questions were not for determin-

ing potential juror bias but rather for preeducating jurors as to

aspects about the victim's forthcoming testimony and as a means

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to engender sympathy for the victim. The State maintains these

questions simply inquired about prospective jurors' biases. We

find these questions improperly asked jurors to put themselves in

the victim's shoes.

In this case, the victim did not immediately report the

assault. The State asked prospective jurors whether they could

think of any reasons why a sexual-assault victim would not

immediately report the assault. The topic was designed to expose

whether a juror would automatically perceive a delay in reporting

to mean the victim was lying about the incident. A negative

response to the State's question could have indicated potential

bias against the veracity of the victim's testimony. While

questions designed to discover bias are proper, these questions

to prospective jurors asked jurors to speculate as to reasons why

a victim might not come forward. While the subject could be

raised in voir dire through artful questions, the questions asked

by the prosecutor crossed the boundary of acceptable voir dire.

Since there was no objection, we will consider whether the plain-

error doctrine applies.

4. Plain Error

The plain-error doctrine, a limited and narrow excep-

tion to the general forfeiture rule, permits appellate review of

otherwise procedurally forfeited matters. See 134 Ill. 2d R.

615(a). Under the doctrine, this court may review an unpreserved

or forfeited error when there is a clear and obvious error that

occurs in one of two situations: (1) "the evidence is closely

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balanced" or (2) the "error is so serious *** it affected the

fairness of the defendant's trial and challenged the integrity of

the judicial process." People v. Bannister, 232 Ill. 2d 52, 65,

902 N.E.2d 571, 580 (2008). The defendant carries the burden of

establishing plain error; if he or she is unable to do so, "the

'procedural default must be honored.'" Bannister, 232 Ill. 2d at

65, 902 N.E.2d at 580-81, quoting People v. Keene, 169 Ill. 2d 1,

17, 660 N.E.2d 901, 910 (1995).

Defendant cannot prove plain error under either situa-

tion. First, the evidence in this case is not closely balanced.

Defendant must prove "the evidence was so closely balanced that

the error alone severely threatened to tip the scales of justice

against him." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d

467, 479 (2005). At trial, the victim testified defendant drove

her to a small side road and sexually assaulted her. She de-

scribed the offense and the location. Defendant presented no

evidence. The evidence was not so closely balanced that the

error by itself "severely threatened to tip the scales of justice

against" defendant.

Second, defendant cannot prove the "error is so serious

*** it affected the fairness of the defendant's trial and chal-

lenged the integrity of the judicial process." Bannister, 232

Ill. 2d at 65, 902 N.E.2d at 580. Defendant, citing People v.

Bean, 137 Ill. 2d 65, 81, 560 N.E.2d 258, 265 (1990), simply

contends the error affects a substantial right and should be

reviewed.

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 Defendant's argument falls far short of establishing

plain error. Defendant's lone case on this issue is distinguish-

able. Bean involves a defendant's claim his absence during in

camera voir dire amounted to plain error. Bean, 137 Ill. 2d at

78-81, 560 N.E.2d at 264-65. The court reasoned, although the

right to an impartial jury is a substantial right for purposes of

plain-error review, "defendant's absence from the in camera voir

dire did not, in fact, have the slightest effect on the impar-

tiality of the jury selected." Bean, 137 Ill. 2d at 81, 560

N.E.2d at 265.

In this case, while the voir dire questions crossed the

line of propriety, they did not indoctrinate the jury and deny

defendant a fair trial. The State's questions, though improper,

were not pervasive. In addition, the jurors, during the same

questioning, recognized defendant's innocence until proved guilty

and asserted they would be impartial. During trial, the jurors

heard the victim testify she was afraid to tell her mother, who

was defendant's live-in paramour, because she feared her mother

would not believe her and would punish her. The jurors did not

have to rely on speculation for determining the reason for A.A.'s

delay in reporting the offense.

Defendant cannot prove plain error, and his procedural

default stands. See Bannister, 232 Ill. 2d at 65, 902 N.E.2d at

580-81.

5. Ineffective Assistance of Counsel

Defendant further argues this court should not consider

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the voir dire issue forfeited because trial counsel was ineffec-

tive for not raising the error before the trial court and pre-

serving the matter for appeal. This argument fails.

To establish his ineffective-assistance-of-counsel

claim, defendant must show (1) his counsel's performance was

inadequate "in that it fell below an objective standard of

reasonableness," and (2) a reasonable probability exists the

outcome of the proceeding would have been different absent

counsel's deficient performance. People v. Moore, 189 Ill. 2d

521, 535, 727 N.E.2d 348, 355-56 (2000), citing Strickland v.

Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698,

104 S. Ct. 2052, 2064, 2068 (1984). Because defendant must prove

both prongs of Strickland to prevail on this claim, we may

resolve the issue "solely on the ground that the defendant did

not suffer prejudice without deciding whether counsel's perfor-

mance was constitutionally deficient." People v. Little, 335

Ill. App. 3d 1046, 1052, 782 N.E.2d 957, 963 (2003).

We find defendant cannot show a reasonable probability

exists the proceeding's outcome would have been different had

counsel objected to the State's voir dire questions. As we

reasoned above, the voir dire questions did not deprive defendant

of a fair trial. The jurors were provided testimony showing the

reason A.A. hesitated in reporting the rape. The jurors stated

they could be impartial. Moreover, during closing argument,

defense counsel emphasized the reporting delay as a basis for

finding defendant not guilty, and the evidence at trial supports

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the conviction.

B. Defendant's MSR Term

Defendant next argues (1) the trial court erred in

finding he was required to serve a minimum three-year MSR term,

and (2) because the trial court, and not DOC, is authorized to

impose sentence, the lifetime MSR term imposed by DOC is void.

1. Standard of Review

The imposition of MSR is statutorily required. See 730

ILCS 5/5-8-1(d)(4) (West 2006). The proper construction of a

statute is a question of law which we review de novo. See People

v. Cardamone, 232 Ill. 2d 504, 511, 905 N.E.2d 806, 810 (2009).

"It is well settled that the primary objective of this court when

construing the meaning of a statute is to ascertain and give

effect to the intent of the General Assembly." Southern Illi-

noisan v. Illinois Department of Public Health, 218 Ill. 2d 390,

415, 844 N.E.2d 1, 14 (2006). The General Assembly's intent is

best gleaned from the statute itself, and "where the statutory

language is clear and unambiguous, it must be given effect."

Orlak v. Loyola University Health System, 228 Ill. 2d 1, 8, 885

N.E.2d 999, 1004 (2007).

2. Defendant Is Statutorily Eligible
for a Minimum Three Years' MSR

Defendant initially argues the trial court erred in

finding he was required to serve a minimum three-year MSR term.

Specifically, defendant contends, because he was convicted of a

Class 1 felony, he should only serve a two-year MSR term. We

disagree.

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 Section 5-8-1(d)(2) of the Unified Code of Corrections

(Unified Code) provides for a two-year term of MSR for a Class 1

or a Class 2 felony except where the offense is criminal sexual

assault. 730 ILCS 5-8-1(d)(2) (West 2006). Where, as here, the

offense is criminal sexual assault, section 5-8-1(d)(4) of the

Unified Code provides the following:

"for defendants who commit the offense

of predatory criminal sexual assault of a

child, aggravated criminal sexual assault, or

criminal sexual assault *** the term of [MSR]

shall range from a minimum of 3 years to a

maximum of the natural life of the defen-

dant[.]" (Emphases added.) 730 ILCS 5/5-8-

1(d)(4) (West 2006).

Defendant was convicted of criminal sexual assault, a

Class 1 felony. Ordinarily, a Class 1 felony would result in two

years' MSR. However, the Unified Code provides an exception for

criminal sexual assault. As a result, defendant was eligible for

a minimum of three years' MSR. Defendant's argument that he

should receive two years' MSR fails.

3. Authority To Set Defendant's MSR Under
Section 5-8-1(d) of the Unified Code

During sentencing, the trial court did not specifically

pronounce defendant's MSR term. Instead, the court stated the

following:

"I further order that the defendant will

serve a period of [MSR] after serving his

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 sentence as mandated by statute.

Counsel, [it is] a little bit unclear to

me what that period would be. There's been

some recent legislation that would suggest to

me that the applicable time upon the defen-

dant for this offense is not less than three

and could be up to natural life, as the stat-

ute indicated, regarding the [MSR] period. I

don't think I have to make that as part of my

finding. It's what [DOC] will impose upon

him, but there is a minimum three-year [MSR]

period. As I understand the statute, it

could be beyond that period."

The written sentencing judgment did not mention MSR. Thereafter,

defendant received an MSR term of natural life from DOC.

Defendant argues because the trial court, and not DOC,

is authorized to impose his sentence, the lifetime term of MSR is

void. We understand defendant's argument to be that upon convic-

tion for criminal sexual assault, the court must sentence the

defendant to a specific MSR term within the range of three years

to natural life.

The State argues when the trial court fails to include

MSR in the sentencing judgment, DOC may impose it. Implicit in

the State's argument is DOC also possesses the discretion to

determine where within the statutory range defendant's MSR term

should fall.

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 Section 5-8-1(d) of the Unified Code states, "every

sentence shall include as though written therein a term [of MSR]

in addition to the term of imprisonment." 730 ILCS 5/5-8-1(d)

(West 2006). As previously stated, the MSR term for the offense

of criminal sexual assault ranges from a minimum term of three

years to a maximum term of the length of defendant's natural

life. See 730 ILCS 5/5-8-1(d)(4) (West 2006).

Section 3-3-8(b) of the Unified Code provides the

Prisoner Review Board (Review Board) the power to terminate MSR

early. See 730 ILCS 5/3-3-8(b) (West 2006) ("[t]he *** Review

Board may enter an order releasing and discharging one from

parole or [MSR], and his commitment to the [DOC], when it deter-

mines that he is likely to remain at liberty without committing

another offense"). Although the Unified Code authorizes DOC--

through the Review Board--to make final determinations involving

the actual amount of time a defendant spends under MSR, section

5-8-1(d)(4) specifically designates an MSR sentencing range for

the offense of criminal sexual assault. See 730 ILCS 5/5-8-

1(d)(4) (West 2006). It is implicit in authorizing a sentencing

range that the trial court has the authority to sentence a

defendant within that range.

In this case, the legislature carved out a limited

exception for the crimes listed in section 5-8-1(d)(2). Every

other period of MSR in section 5-8-1(d) is set as a specific

number of years by the legislature. As a result, a trial court

could fail to include MSR as part of sentencing and have the

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error remedied by operation of law. See 730 ILCS 5/5-8-1(d)

(West 2006) ("every sentence shall include as though written

therein a term [of MSR] in addition to the term of imprison-

ment").

However, if the legislature intended for the maximum

term of natural life to be automatically included in the sentence

for defendants convicted of crimes included in section 5-8-1(d),

it would have so stated instead of giving a range. Moreover, to

find that defendant's MSR term would be automatically set at an

indeterminate range of "three years to natural life" would be

inconsistent with the determinate sentence structure of section

5-8-1(a). See 730 ILCS 5/5-8-1(a) (West 2006) ("[e]xcept as

otherwise provided in the statute defining the offense, a sen-

tence of imprisonment for a felony shall be a determinate sen-

tence set by the court under this [s]ection").

In addition, the grant of authority to impose the MSR

term is structurally located in the section of the Unified Code

authorizing the sentencing power of the trial court and not

within the section concerning the powers and duties of the Review

Board. In fact, nowhere in section 3-3-2 does the legislature

grant the Review Board the discretion to determine the range of a

defendant's MSR term under section 5-8-1(d)(4). See 730 ILCS

5/3-3-2 (West 2006). Further, while the legislature has autho-

rized the Review Board to promulgate its own rules regarding the

conduct of its work (730 ILCS 5/3-3-2(d) (West 2006)), the Review

Board has not adopted any rule concerning its discretion to

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impose MSR pursuant to section 5-8-1(d)(4). See 20 Ill. Adm.

Code §§1610.10 through 1610.180, as amended by 13 Ill. Reg. 3063,

eff. February 28, 1989.

We find the legislature intended the trial court have

the authority to impose MSR terms for the offenses listed in

section 5-8-1(d)(4). Because section 5-8-1(d)(4) contains an MSR

term range for criminal sexual assault, the court also possesses

the duty to exercise its discretion and impose MSR within that

range. The trial court, and not DOC, is in the best position to

assess and weigh the factors relevant to determine whether a

defendant should serve three years' MSR, natural life, or a term

in between. See People v. Stacey, 193 Ill. 2d 203, 209, 737

N.E.2d 626, 629 (2000).

In this case, the trial court was afforded the discre-

tion to determine defendant's MSR term within the range provided

for by section 5-8-1(d)(4). The court should have exercised that

discretion. If the legislature wanted to give DOC or the Review

Board the discretion to determine defendant's MSR term where the

court fails to impose MSR, it would have so stated. It did not.

As a result, defendant's natural-life MSR term, as imposed by

DOC, is void.

We note that once the trial court has set defendant's

MSR term, the Review Board retains the power to set the condi-

tions of MSR, and to ultimately reduce or terminate defendant's

MSR period where it determines defendant "is likely to remain at

liberty without committing another offense." 730 ILCS 5/3-3-8(b)

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(West 2006).

We recognize the Second District reached a contrary

decision in People v. Schneider, 403 Ill. App. 3d 301, 308-09,

933 N.E.2d 384, 391 (2010). The Schneider court, also interpret-

ing section 5-8-1(d)(4), found the legislature intended trial

courts impose an indeterminate MSR sentence and DOC to, there-

fore, decide when a prisoner may be released from MSR. Schnei-

der, 403 Ill. App. 3d at 308-09, 933 N.E.2d at 391. We respect-

fully disagree with the holding in Schneider and decline to

follow it.

C. Defendant's Sentence Credit

Defendant last argues he is entitled to two days'

additional sentence credit. The State concedes the sentencing

error. While defendant argues two days' credit against his

sentence are at issue, for reasons that follow we will direct the

trial court on remand to add only one day to the sentencing

judgment.

Two sentencing errors are alleged in this case. First,

defendant argues the date of sentencing should be included

because he was not transferred to the custody of DOC until one

day after sentencing. Second, defendant argues, not counting the

date of sentencing, the trial court gave him credit for 334 days

when he was incarcerated for 335 days.

We begin with the issue of whether we will remand to

the trial court to apply credit for the day defendant spent in

county jail awaiting transfer to DOC custody. As defendant

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acknowledges, the case law establishes trial courts should not

issue credit for the date of sentencing if the defendant is

remanded to DOC custody the same day. People v. Elder, 392 Ill.

App. 3d 133, 138, 910 N.E.2d 202, 206 (2009). Defendant distin-

guishes Elder's holding by emphasizing he was not remanded to DOC

custody the same day of sentencing. After pronouncing defen-

dant's sentence, the trial court specifically "remanded [defen-

dant] to the Coles County Safety and Detention Center." Defen-

dant was not taken into DOC custody on February 28, 2008.

Instead, he was transported one day later, on February 29, 2008.

If we accept defendant's argument, we give every

criminal defendant who is not transferred to DOC on the date of

sentencing a sentence-credit issue for appeal. This action is

inconsistent with the goal of judicial economy. Trial courts

cannot predict or control when DOC will take custody of a crimi-

nal defendant after sentencing. They should determine sentencing

as if DOC will take custody the day of sentencing. DOC then

should add any additional days the defendant remained in custody

at the county jail awaiting transfer to DOC's custody in deter-

mining the time-served credit to which the defendant is entitled.

In this case, we find no error in the trial court's

failure to predict defendant's February 29, 2008, transfer to DOC

in calculating the presentence credit. We leave the matter to

DOC to include that day in defendant's time-served calculation.

Moreover, we note it seems DOC may already be providing the post-

sentencing, pre-DOC-custody credit to its inmates' sentences. In

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People v. Mitchell, 403 Ill. App. 3d 707, 708-09, 936 N.E.2d 659,

661 (2010), we refused to remand with directions to add five days

of credit for time served between sentencing and the defendant's

transfer to DOC custody, because the DOC website indicated the

defendant had been given credit for those days. Similarly, in

this case, the same Web site indicates DOC gave defendant more

days' credit than the 334 ordered by the trial court and may have

already calculated the day defendant seeks.

Turning to the second issue, both sides agree the

remaining days were improperly calculated. The record shows

defendant was in custody 36 days from December 29, 2006, through

February 2, 2007, and 299 days from May 5, 2007, until his

February 28, 2008, sentencing date. Not counting the sentencing

date, defendant should have received credit for 335 days. The

trial court only awarded credit for 334. Defendant is entitled

to one additional day of sentence credit on remand.

III. CONCLUSION

For the reasons stated, we (1) affirm defendant's

conviction; (2) vacate defendant's MSR term; and (3) affirm

defendant's sentence as modified but remand with directions to

(a) set defendant's term of MSR and (b) amend the sentencing

judgment to add one additional day of sentence credit.

Affirmed as modified and remanded with directions.

STEIGMANN and POPE, JJ., concur.

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