2024 IL App (5th) 230431-U
NOTICE
NOTICE
Decision filed 03/11/24. The
This order was filed under
text of this decision may be NO. 5-23-0431
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cumberland County.
)
v. ) No. 21-CF-62
)
KEITH R. MYERS, ) Honorable
) Jonathan T. Braden,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
PRESIDING JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: The circuit court properly denied defendant’s motion for additional pretrial custody
credit as he was not entitled to credit against each of his consecutive sentences. As
any argument to the contrary would lack merit, we grant defendant’s appointed
counsel on appeal leave to withdraw and affirm the circuit court’s judgment.
¶2 Defendant, Keith R. Myers, appeals the circuit court’s orders denying two motions seeking
additional pretrial custody credit against his sentence. His appointed appellate counsel, the Office
of the State Appellate Defender (OSAD), concluded there is no reasonably meritorious argument
that reversible error occurred and filed a motion to withdraw as counsel along with a supporting
memorandum. See Pennsylvania v. Finley, 481 U.S. 551 (1987). OSAD notified defendant of its
motion, and this court has provided him with ample opportunity to respond. Defendant, however,
failed to file a response. After considering the record on appeal and OSAD’s supporting brief, we
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agree this appeal presents no reasonably meritorious issues. Thus, we grant OSAD leave to
withdraw and affirm the circuit court’s judgment.
¶3 BACKGROUND
¶4 Following a trial in a different case, Cumberland County case No. 21-CF-50, defendant
was convicted of domestic battery. He subsequently pled guilty to criminal damage to state-
supported property in the current case. Because he committed criminal damage to state-supported
property while in custody for the domestic battery conviction, the sentences were required to run
consecutively. See 730 ILCS 5/5-8-4(d)(8) (West 2020).
¶5 Following a combined sentencing hearing, the circuit court sentenced defendant to five
years’ imprisonment for domestic battery and three years’ imprisonment for criminal damage. The
court also ordered defendant be credited with 324 days of time served in case No. 21-CF-50.
¶6 Defendant filed two pro se motions for orders nunc pro tunc in the instant case. The first
motion, filed on December 1, 2022, requested that the mittimus on the criminal damage charge be
amended to reflect 323 days of pretrial custody credit. The second motion, filed on February 6,
2023, alleging that he was “rightfully given 323 days served *** [b]ut was not awarded the
additional days pursuant to 730 ILCS 130/3” and therefore requested that the mittimus be corrected
to reflect another 323 days based on the County Jail Good Behavior Allowance Act. See 730 ILCS
130/3 (West 2020).
¶7 The court denied both motions, noting that the applicable statute provides that consecutive
sentences are to be served as a single term, with pretrial custody credit applying to the aggregate
term rather than each component sentence. The court noted that the mittimus for defendant’s
domestic battery conviction correctly provided him with 324 days’ credit. Defendant timely
appealed.
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¶8 ANALYSIS
¶9 OSAD concludes there is no reasonably meritorious argument that the circuit court erred
in denying defendant’s motions for additional sentence credit where the court correctly determined
that presentence custody credit applies to the aggregate sentence. We agree.
¶ 10 “Because decisions issued without subject matter jurisdiction are void, we have an
independent duty to ensure that the trial court and this court have jurisdiction over a case.” People
v. Arriaga, 2023 IL App (5th) 220076, ¶ 12. The appellate court has no jurisdictional authority to
consider an appeal from a void order. See People v. Flowers, 208 Ill. 2d 291, 307 (2003).
¶ 11 “Normally, the authority of a trial court to alter a sentence terminates after 30 days”
following the entry of a final judgment. Id. at 303. However, the trial court possesses the continuing
power to enforce the judgment or correct “clerical errors or matters of form so that the record
conformed to the judgment actually rendered.” Id. at 306-07. Nunc pro tunc orders are a means to
allow the court to correct the record to reflect that which was already done previously. People v.
Adams, 144 Ill. 2d 381, 394 (1991).
¶ 12 Defendant here designated his motions as motions for a “nunc pro tunc” order. However,
the substance of the motions did not request the court to correct the record to reflect what the court
previously ordered. Rather, the motions alleged the court’s presentence custody credit was
incorrect. As such, defendant improperly utilized a motion for a nunc pro tunc order to request
modification of the sentencing order. See People v. Coleman, 2017 IL App (4th) 160770, ¶ 22.
Previously, under these circumstances, we would have been required to vacate the court’s
judgment and dismiss defendant’s appeal for lack of jurisdiction. See People v. Scheurich, 2019
IL App (4th) 160441, ¶ 22; People v. Blancas, 2019 IL App (1st) 171127, ¶ 17.
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¶ 13 However, effective March 1, 2019, Illinois Supreme Court Rule 472 now provides the trial
court with retained jurisdiction to correct—inter alia—“[e]rrors in the calculation of presentence
custody credit” on the court’s own motion or on the motion of any party. Ill. S. Ct. R. 472(a)(3)
(eff. Mar. 1, 2019). While the court and defendant’s motion did not refer to Rule 472, the rule
nevertheless afforded the court jurisdiction to determine the issue. Id.
¶ 14 Turning to the merits, an offender “shall be given credit *** for the number of days spent
in custody as a result of the offense for which the sentence was imposed.” 730 ILCS 5/5-4.5-100(b)
(West 2020). When a defendant is sentenced to consecutive terms, he or she is treated as though
sentenced to a single term and awarded pretrial custody credit against the aggregate of all
consecutive sentences. Id. § 5-8-4(g)(4); People v. Latona, 184 Ill. 2d 260, 270-71 (1998) (pretrial
custody credit for each sentence when a defendant receives consecutive sentences violates the
statute’s plain meaning). In other words, a defendant sentenced to multiple consecutive terms is
entitled to only one credit for pretrial custody.
¶ 15 Here, defendant received 324 days of pretrial custody credit for his domestic battery
conviction. Because that sentence is mandatorily consecutive to that for criminal damage to state-
supported property, the circuit court correctly held that the 324 days’ credit can be applied only to
the aggregate term for both convictions. 730 ILCS 5/5-8-4(g)(4) (West 2020). Accordingly, the
court did not err by denying defendant additional credit.
¶ 16 CONCLUSION
¶ 17 As this appeal presents no issue of arguable merit, we grant OSAD leave to withdraw and
affirm the circuit court’s judgment.
¶ 18 Motion granted; judgment affirmed.
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