People v. Caballero

Docket No. 104216.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

EDUARDO CABALLERO, Appellee.

Opinion filed February 7, 2008.

JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Justices Fitzgerald, Kilbride, and Garman concurred in the

judgment and opinion.

Chief Justice Thomas dissented, with opinion, joined by Justices

Freeman and Burke.

OPINION

The issues presented by this appeal are: (1) whether a reviewing

court may grant the per diem monetary credit conferred by section

110–14 of the Code of Criminal Procedure of 1963 (725 ILCS

5/110–14 (West 2002)) to a defendant who first applies for it on

appeal from the dismissal of his postconviction petition; and (2)

whether a defendant may receive the per diem monetary credit

conferred by section 110–14 for the time he was incarcerated upon

revocation of his bail after conviction until his sentencing.

BACKGROUND

Defendant Eduardo Cabellero was indicted for unlawful

possession with intent to deliver 100 to 400 grams of a substance

containing cocaine. After his arrest, he spent two day in jail, posted

bail, and was released. A jury in the circuit court of Du Page County

later convicted him of the offense and his bond was revoked the same

day. He was remanded to jail, where he remained for an additional 116

days prior to sentencing. He was sentenced to 14 years’ imprisonment

and, among other things, fined $6,300 based on the “street value” of

the narcotics he was convicted of possessing. On direct appeal

defendant did not raise any issue involved in this appeal and the

appellate court affirmed his conviction and sentence. People v.

Caballero, No. 2–03–0299 (2004) (unpublished order under Supreme

Court Rule 23).

Defendant later filed a pro se petition for postconviction relief,

which was dismissed by the trial court as frivolous and patently

without merit. On appeal, defendant argued that the trial court erred

in dismissing his petition because it sufficiently alleged the gist of a

constitutional claim of ineffective assistance of counsel. Defendant

also claimed that pursuant to section 110–14, his street-value fine

should be reduced by $590, which is $5 for each of the 118 days he

was in custody prior to sentencing. The appellate court affirmed the

trial court’s dismissal of defendant’s petition, but held that defendant

was entitled to a $590 credit against his street-value fine and ordered

the clerk of the circuit court to modify the defendant’s sentence. No.

2–05–0384 (unpublished order under Supreme Court Rule 23). We

granted the State’s petition for leave to appeal. 210 Ill. 2d R. 315. For

the reasons that follow, the judgment of the appellate court is

affirmed.

STANDARD OF REVIEW

Both of the issues raised on this appeal involve the interpretation

of Illinois statutes. The interpretation of state statutes is a question of

law, which this court reviews de novo. People v. Harris, 224 Ill. 2d

115, 123 (2007); People v. Brooks, 221 Ill. 2d 381, 388 (2006).

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ANALYSIS

Section 110–14 provides in pertinent part: “Any person

incarcerated on a bailable offense who does not supply bail and against

whom a fine is levied on conviction of such offense shall be allowed

a credit of $5 for each day so incarcerated upon application of the

defendant.” 725 ILCS 5/110–14 (West 2002). In People v. Woodard,

175 Ill. 2d 435, 457-58 (1997), we held that the per diem monetary

credit allowed upon application by the defendant under section

110–14 is mandatory, it cannot be waived and it can be raised for the

first time on appeal.

The State argues, however, that defendant’s claim under section

110–14 involves a statutory right and it is not cognizable in a

postconviction proceeding. The Post-Conviction Hearing Act (725

ILCS 5/122–1 et seq. (West 2000)) provides a means by which a

defendant may collaterally attack his conviction or sentence for

violations of federal or state constitutional rights. People v.

Pendleton, 223 Ill. 2d 458, 471 (2006). To demonstrate entitlement

to postconviction relief, a defendant must show that he has suffered

a substantial deprivation of federal or state constitutional rights in the

proceedings that produced the conviction or sentence being

challenged. Pendleton, 223 Ill. 2d at 471. The monetary per diem

credit conferred by section 110–14 is a statutory right. Woodard, 175

Ill. 2d at 457. The State concludes from this that defendant’s claim

involves a statutory right, not a constitutional right, and it is,

therefore, not cognizable in a postconviction proceeding.

Neither the State nor the defendant has cited any Illinois cases

dealing with a claim for a monetary per diem credit under section

110–14 being initially raised on an appeal in a postconviction

proceeding and we have found none. However, People v. Wren, 223

Ill. App. 3d 722 (1992), People v. Andrews, 365 Ill. App. 3d 696

(2006), and People v. Brown, 371 Ill. App. 3d 972 (2007), are

appellate court cases dealing with a sentencing credit under section

5–8–7(b) of the Unified Code of Corrections (730 ILCS 5/5–8–7(b)

(West 2002)) being raised for the first time on appeal in a

postconviction proceeding.

Section 5–8–7(b) provides that the offender shall be given credit

against his prison sentence for time spent in custody as a result of the

offense for which the sentence was imposed. In Woodard, 175 Ill. 2d

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at 457, we noted and cited a number of cases in which the sentencing

credit in section 5–8–7(b) was treated similarly to the monetary per

diem credit in section 110–14. We find that the rationale of Wren,

Andrews and Brown is persuasive to the issue of an application for a

monetary credit under section 110–14 being raised for the first time

on an appeal in a postconviction hearing.

In Wren the court stated:

“Finally, defendant contends that he is entitled to credit for

the original day spent in custody in this matter and argues that

counsel’s failure to raise this issue in post-conviction

proceedings constitutes ineffective assistance. A sentencing

credit issue of this type is not appropriately considered in an

appeal from the dismissal of a post-conviction petition which

did not raise the issue, but instead should be raised by filing a

motion to amend mittimus in the trial court. However, ‘in the

interests of an orderly administration of justice’ [citation], we

will treat defendant’s request as a motion to amend mittimus

and consider it because an amended mittimus may be issued at

any time. [Citation.]” Wren, 223 Ill. App. 3d at 731.

The court then decided that defendant was entitled to an additional

day of credit. It affirmed the judgment of the trial court dismissing

defendant’s postconviction petition and remanded the cause to the

circuit court for issuance of an amended mittimus. Wren, 223 Ill. App.

3d at 731.

In Andrews defendant was entitled to 113 days of sentencing

credit, but due to a clerical error in the presentence investigation, he

was only given a presentence credit of 112 days. Andrews, 365 Ill.

App. 3d at 697. The claim for the additional day of presentence credit

was not made in the trial court or on direct appeal of his criminal

conviction. Defendant filed a pro se postconviction petition and later

his appointed counsel filed an amended petition for postconviction

relief. Andrews, 365 Ill. App. 3d at 698. Neither petition made

reference to the sentencing-credit error. The trial court denied

defendant’s postconviction petition. The sole issue raised on appeal of

the denial of the postconviction petition was the sentencing-credit

error. The State argued that defendant waived this issue because he

failed to raise it in his postconviction petition. Andrews, 365 Ill. App.

3d at 698.

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The Andrews court held that unlike the defendants in People v.

Jones, 211 Ill. 2d 140 (2004), and People v. Jones, 213 Ill. 2d 498

(2004), who were attempting to raise new constitutional challenges,

Andrews was merely attempting to assert a different and purely

statutory right to full credit for his presentence incarceration.

Andrews, 365 Ill. App. 3d at 699. The court stated that its holding is

in accord with, and quoted, the holding in Wren. Andrews, 365 Ill.

App. 3d at 699-700. The Andrews court also noted that People v.

Reed, 335 Ill. App. 3d 1038 (2003), held that an issue of a sentence

credit did not involve a substantial deprivation of a constitutional

right, and deemed the issue waived where it was first raised on appeal

from the dismissal of a postconviction petition. The court concluded

that the better reasoned and more judicially efficient procedures follow

the logic announced in Wren. Andrews, 365 Ill. App. 3d at 700.

In Brown the defendant contended for the first time in a

supplemental brief on appeal in his postconviction proceeding that he

was entitled to 419 days of presentence credit, rather than the 355

days reflected in the mittimus. The State did not respond to this

supplemental brief. The appellate court in its original opinion (People

v. Brown, No. 1–04–1943 (2006) (unpublished order under Supreme

Court Rule 23)) noted that the sentencing credit is a right created by

statute and held it was not an issue of constitutional magnitude subject

to scrutiny in a postconviction proceeding, citing People v. Reed, 335

Ill. App. 3d 1038, 1039-40 (2003), and People v. Bates, 179 Ill. App.

3d 705, 709 (1989). The Brown court also noted that despite several

opportunities to raise the issue, defendant never raised it in the trial

court, on direct appeal, or in his postconviction petition or

supplemental postconviction petition, and that he raised it for the first

time in the supplemental brief. The court, therefore, found the issue

had been forfeited and distinguished People v. Woodard, 175 Ill. 2d

435, on the ground that Woodard was not based upon proceedings

under the Post-Conviction Hearing Act and that it merely held that the

credit may be allowed if requested for the first time on a direct appeal.

Defendant in the Brown case filed a petition for leave to appeal

and argued, among other matters, that the sentencing-credit issue

could be raised for the first time on appeal from the dismissal of his

postconviction petition and that the issue had not been forfeited. This

court denied defendant’s petition for leave to appeal and entered a

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supervisory order directing the appellate court to allow the State

another opportunity to respond to defendant’s request for additional

sentencing credit; to determine the merits of defendant’s sentencing-

credit request and to grant him further sentencing credit, if required.

The order also directed that the resolution of the sentencing-credit

issue be incorporated into the appellate court judgment addressing all

of the other issues. People v. Brown, 222 Ill. 2d 579 (2006) (table).

The Brown court upon remand examined the Andrews case, in

which the court held that it had the authority under Supreme Court

Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)) to modify the trial court’s

order to give the defendant credit for all of his presentence custody

although he raised the issue for the first time on appeal in his

postconviction proceeding. The Brown court, after acknowledging

that the State did not dispute the merits of the sentencing-credit issue,

ordered the mittimus be corrected to reflect that defendant was

entitled to 419 days of presentence credit.

Appellate court cases which hold that a claim for sentencing credit

under section 5–8–7(b) of the Unified Code involves a statutory right

and is not cognizable in a postconviction proceeding are People v.

Bates, 179 Ill. App. 3d 705 (1989), People v. Uran, 196 Ill. App. 3d

293 (1990), and People v. Reed, 335 Ill. App. 3d 1038 (2003). Each

of those cases refused to consider the sentencing-credit issue. Reed

also holds that a defendant who makes a sentencing-credit claim for

the first time on appeal from the dismissal of a postconviction petition

has forfeited the right (Reed, 335 Ill. App. 3d at 1040) and Bates

holds that he has waived his right (Bates, 179 Ill. App. 3d at 709).

We hold that a claim for per diem monetary credit conferred by

section 110–14 of the Code of Criminal Procedure of 1963 is a

statutory right (People v. Woodard, 175 Ill. 2d at 457) and is not

cognizable under the Post-Conviction Hearing Act. See People v.

Pendleton, 223 Ill. 2d at 471. Each of the appellate court cases which

we have discussed above also holds that a claim for sentencing credit

under section 5–8–7(b) involves a statutory right and is not cognizable

in a postconviction proceeding.

The defendant in this case is not, however, attempting to raise a

new constitutional issue in his postconviction proceeding but is simply

applying for a different and purely statutory monetary credit under

section 110–14. See Andrews, 365 Ill. App. 3d at 699. In Woodard we

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noted that “[s]ection 110–14 is silent concerning any time frame or

procedural stage during which such application either must or can be

made” (Woodard, 175 Ill. 2d at 444) and quoted with approval the

statement from People v. Scott, 277 Ill. App. 3d 565 (1996), that

“ ‘[g]ranting the credit is a simple ministerial act that will promote

judicial economy by ending any further proceedings over the

matter.’ ” Woodard, 175 Ill. 2d at 456-57, quoting Scott, 277 Ill. App.

3d at 566. The Wren case and the Andrews case each granted a claim

for sentencing credit raised for the first time on appeal in a

postconviction proceeding based on the rationale of a “ministerial act”

and the “interests of an orderly administration of justice.”

While we hold that a claim for monetary credit under section

110–14 is a statutory claim and therefore not cognizable as a separate

issue upon which to base relief under the Post-Conviction Hearing

Act, we also hold that this statutory claim may be considered as an

“application of the defendant” made under the statute and may be

raised at any time and at any stage of court proceedings, even on

appeal in a postconviction proceeding. Accordingly, if, as in this case,

the basis for granting the application of the defendant is clear and

available from the record, the appellate court may, in the “interests of

an orderly administration of justice,” grant the relief requested.

The State also argues that defendant is not entitled to any credit

under section 110–14 for the 116 days of his incarceration between

the day of his conviction and the day of his sentencing but has not

cited any cases supporting this argument. The State contends,

however: (1) that section 110–14 states that “[a]ny person

incarcerated on a bailable offense” shall be allowed the $5-per-day

credit and section 110–4(a) of the Code of Criminal Procedure of

1963 defines bailable offenses as “[a]ll persons shall be bailable before

conviction” (725 ILCS 5/110–4(a) (West 2002)) and, therefore,

bailable offenses do not include offenses of which a defendant has

been convicted but not yet sentenced; (2) that once the trial court

revoked defendant’s bond upon his conviction, his offense was no

longer a “bailable offense”; (3) that defendant was not a person “who

does not supply bail”; and (4) that section 110–14 was enacted to

offset the inequities suffered by indigent defendants unable to pay

bond premiums and defendant did supply bond in this case. We do not

agree with any of these arguments.

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Section 110–14 originally provided: “Any person incarcerated on

a bailable offense who does not supply bail and against whom a fine

is levied on conviction of such offense shall be allowed a credit of $5

for each day so incarcerated prior to conviction except that in no

case shall the amount so allowed or credited exceed the amount of the

fine.” (Emphasis added.) Ill. Rev. Stat. 1965, ch. 38, par. 110–14.

Effective October 1, 1977, the legislature amended this section to

delete the words “prior to conviction” and added “upon application of

defendant.” The first sentence of section 110–14 then provided: “Any

person incarcerated on a bailable offense who does not supply bail and

against whom a fine is levied on conviction of such offense shall be

allowed a credit of $5 for each day so incarcerated upon application

of the defendant.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par.

110–14. Section 110–14 has been amended several times since 1977,

but the first sentence of the section has not been amended since then.

See 725 ILCS 5/110–14 (West 2006).

In addition to the legislative amendment, there are also several

reported cases that have dealt with the issue raised by the State.

People v. Bennett, 246 Ill. App. 3d 550 (1993), involved section

110–14 and the State’s argument that the defendant is not entitled to

a monetary credit for the days he spent in custody after being found

guilty but prior to being sentenced. The court rejected this argument

and stated: “Here, the statute provides for the award of fine credit to

a defendant who is incarcerated on a ‘bailable’ offense. The statute

does not make a distinction between defendants who are financially

unable to post bond and those who are denied the opportunity to post

bond by the trial court. The statute also does not prohibit the award

of credit for the period of incarceration after a guilty finding.”

Bennett, 246 Ill. App. 3d at 551-52. Other appellate court cases have

consistently held that a defendant is entitled to credit under section

110–14 for time spent in custody after conviction but before

sentencing. See People v. Raya, 250 Ill. App. 3d 795, 803 (1993)

(defendant was entitled to $5-per-day credit for 16 days pretrial

incarceration as well as the 35 days’ incarceration between the end of

his trial and sentencing); People v. Smith, 258 Ill. App. 3d 261, 270

(1994) (defendant was entitled to the section 110–14 credit against a

fine for all the days he was incarcerated up until the sentence); People

v. McNair, 325 Ill. App. 3d 725, 726-27 (2001) (defendant was

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entitled to credit toward his fine for 54 days of presentence custody).

This consistent judicial interpretation of section 110–14 is

considered a part of the statute until the legislature amends it contrary

to that interpretation. See Woodard, 175 Ill. 2d at 444, citing Miller

v. Lockett, 98 Ill. 2d 478 (1983). The legislature recently amended

section 110–14 by adding subsection (b), which specifically precludes

a person incarcerated for sexual assault as defined in section 5–9–1.7

of the Unified Code of Corrections (730 ILCS 5/5–9–1.7 (West

2006)) from receiving any monetary credit under section 110–14. See

Pub. Act 93–699, eff. January 1, 2005. This amendment demonstrates

that the legislature can preclude the benefit of section 110–14 when

it desires. Its acquiescence in the judicial construction of the first

sentence of section 110–14 over the past 14 years dissuades us from

overruling the appellate court decisions that have interpreted the

section as granting a presentence credit for days of incarceration for

a bailable offense.

We hold that defendant is entitled to the credit of $5 per day for

the two days that he spent in custody prior to posting bond and the

116 days he spent in custody following his conviction and prior to

sentencing.

CONCLUSION

For the reasons set forth above, the judgment of the appellate

court is affirmed.

Appellate court judgment affirmed.

CHIEF JUSTICE THOMAS, dissenting:

The majority’s decision permitting a postconviction claim for

monetary credit under section 110–14 contradicts the plain language

of the Post-Conviction Hearing Act, this court’s decisions construing

that Act, and this court’s decisions defining the scope of

postconviction appeals. Accordingly, I am compelled to dissent.

The majority’s analysis runs as follows. Section 110–14 of the

Code of Criminal Procedure of 1963 creates a statutory right to a per

diem monetary credit “upon application of the defendant.” However,

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“ ‘[s]ection 110–14 is silent concerning any time frame or procedural

stage during which such application either must or can be made.’ ”

Slip op. at 7, quoting People v. Woodard, 175 Ill. 2d 435, 444 (1997).

Consequently, a section 110–14 claim “may be raised at any time and

at any stage of court proceedings, even on appeal in a postconviction

proceeding.” Slip op. at 7.

The problem with this analysis is that, while section 110–14 may

be silent as to whether monetary credit claims may be raised for the

first time in a postconviction proceeding, the Post-Conviction Hearing

Act is not, and neither is this court’s jurisprudence construing the Act.

Indeed, both the Act and the settled case law provide numerous bases

for barring the adjudication of defendant’s “purely statutory” (slip op.

at 6) claim in this context.

First, defendant’s claim falls well outside the narrow class of

claims authorized by the Post-Conviction Hearing Act. Under the Act,

the only types of claims that may be asserted in a postconviction

proceeding are those asserting “a substantial denial of *** rights under

the Constitution of the United States or of the State of Illinois.” 725

ILCS 5/122–1(a)(1) (West 2006). Defendant’s claim for monetary

credit under section 110–14 has no constitutional component

whatsoever.

Second, defendant’s claim falls outside the class of claims over

which postconviction courts possess the jurisdiction to adjudicate.

This court has explained that “[s]ection 122–1 of the Post-Conviction

Hearing Act is jurisdictional in nature and limits the subject matter

reviewable under that Act.” (Emphases added.) People v. Ferree, 40

Ill. 2d 483, 484 (1968). Accordingly, “jurisdiction in post-conviction

proceedings is limited to situations in which ‘a substantial denial of

rights under the Constitution of the United States or of the State of

Illinois’ is alleged.” People v. Owens, 34 Ill. 2d 149, 150 (1966),

quoting Ill. Rev. Stat. 1963, ch. 38, par. 122–1; see also People v.

Ward, 48 Ill. 2d 117, 120 (1971). Stated differently, postconviction

courts lack the jurisdiction to adjudicate purely statutory claims. See,

e.g., Owens, 34 Ill. 2d at 150-51 (trial court lacked jurisdiction over

postconviction claim that “derived wholly from *** statute”). Here,

the majority acknowledges that a claim for monetary credit under

section 110–14 is “purely statutory.” Slip op. at 6. Nevertheless, it

goes on to hold that, in the “interests of an orderly administration of

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justice,” such claims may be raised and adjudicated for the first time

in a postconviction proceeding. Slip op. at 7. The majority nowhere

reconciles this holding with the aforementioned cases, and neither

does it explain how the “interests of an orderly administration of

justice” will be served by the adjudication of legal claims in the

absence of subject matter jurisdiction.

Third, defendant’s claim falls squarely within a class of cases that

this court has expressly identified as inappropriate for postconviction

consideration. In People v. Mitchell, 189 Ill. 2d 312, 329 (2000), this

court held that “[s]tatutes do not confer constitutional rights, and the

allegation of a deprivation of a statutory right is not a proper claim

under the Act.” See also Owens, 34 Ill. 2d at 150-51. Here, defendant

is asserting a claim for monetary credit under section 110–14, which

the majority concedes is a “purely statutory” claim. Slip op. at 6.

Fourth, even if defendant’s claim were of the type permitted by the

Act and over which postconviction courts possessed jurisdiction, it

nevertheless would be barred by the forfeiture doctrine. As this court

has frequently explained, “[a] petition for post-conviction relief is not

an appeal of the underlying judgment; rather, it is a collateral

proceeding.” People v. Johnson, 206 Ill. 2d 348, 356 (2002). As such,

a postconviction proceeding allows inquiry only into issues “that were

not, and could not have been, adjudicated on direct appeal.”

(Emphasis added.) Johnson, 206 Ill. 2d at 356. Here, defendant is

asserting a statutory right explicitly set forth in the pretrial portion of

the Code of Criminal Procedure, and all of the facts necessary to

assert that right were available to him on direct appeal. Consequently,

even if a section 110–14 claim could be asserted and adjudicated in a

postconviction proceeding, defendant would have forfeited any such

claim in this case.

Fifth, defendant’s assertion of this claim for the first time on

appeal from the dismissal of his postconviction petition is expressly

barred by this court’s decision in People v. Jones, 211 Ill. 2d 140

(2004). In that case, we held that “a [postconviction] defendant may

not raise an issue for the first time while the matter is on review” and

that “any issues to be reviewed must be presented in the petition filed

in the circuit court.” (Emphasis added.) Jones, 211 Ill. 2d at 148. This

holding is categorical and contains no exceptions. Here, defendant’s

claim for monetary credit under section 110–14 was not presented in

the petition filed in the circuit court. Consequently, defendant could

not raise it for the first time on appeal from the dismissal of that

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petition.

In sum, then, to permit the adjudication of defendant’s “purely

statutory” claim in this case, the majority dispenses not only with the

plain language of the Post-Conviction Hearing Act, but also with a

good portion of this court’s case law construing the Act. Were this the

only means of affording a remedy to persons in defendant’s position,

I might understand the majority’s willingness to go to such lengths.

But this is hardly the case. On the contrary, defendants who are

entitled to a claim for monetary credit under section 110–14 have a

host of opportunities to obtain that credit, even at the postconviction

stage. Obviously, a defendant may apply for the credit at the time of

trial. Moreover, a defendant may apply for the credit for the first time

on direct appeal. See Woodard, 175 Ill. 2d at 457-58. And if the direct

appeal comes and goes without application having been made,

defendants still have a postconviction remedy, provided it is properly

pled. As discussed above, nothing in either the Act or this court’s

postconviction jurisprudence permits the adjudication of a purely

statutory claim in the course of a postconviction proceeding.

However, nothing precludes a defendant from fashioning an

ineffective assistance claim under Strickland v. Washington, 466 U.S.

668, 686, 80 L. Ed. 2d 674, 692, 104 S. Ct. 2052, 2063-64 (1984),

based upon counsel’s failure to apply for the credit. And unlike a

direct assertion of the statutory right, ineffective assistance of counsel

is a textbook postconviction claim. What’s more, a postconviction

Strickland claim in this context is virtually guaranteed to succeed.

“The statutory right to a per diem credit found in section 110–14 ***

is in the nature of a mandatory right subject to assertion by a

defendant.” Woodard, 175 Ill. 2d at 453. In other words, for eligible

defendants, the monetary credit is available for the asking, there is no

conceivable strategic basis for not requesting it, and the resulting

prejudice is a matter of simple arithmetic. Defendants will obtain their

relief, and the integrity of the Post-Conviction Hearing Act is

preserved.

For these reasons, I respectfully dissent from the majority’s

decision.

JUSTICES FREEMAN and BURKE join in this dissent.

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