People v. Moore
Annotate this Case
NO. 4-96-0188
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
GREGORY J. MOORE, ) No. 95CF12
Defendant-Appellant. )
) Honorable
) John R. DeLaMar,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In May 1995, defendant, Gregory J. Moore, pleaded
guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)).
The trial court sentenced him to 20 years in prison (730 ILCS
5/5-8-1(a)(1)(a) (West 1994)) and gave him credit for 120 days
previously served in county jail. In February 1996, defendant
filed an amended motion to withdraw his guilty plea, which the
court denied.
Defendant appeals, arguing that (1) the trial court
abused its discretion by denying his motion to withdraw his
guilty plea where his trial counsel was ineffective; and (2) he
is entitled to one additional day of credit for time served. We
affirm.
I. BACKGROUND
Defendant pleaded guilty to first degree murder on May
3, 1995, and the trial court sentenced him the same day. After
consulting with both the State and defense counsel, the court
ordered that defendant be given credit for 120 days of credit for
time served.
In his amended motion to withdraw his guilty plea,
defendant alleged that he did not knowingly and voluntarily waive
his right to jury trial because (1) he or a member of his family
was threatened with serious physical harm if he did not plead
guilty; (2) he was confused and frightened due to those threats;
(3) his court-appointed trial counsel, James Kuehl, did not
interview material witnesses or explain to defendant the evidence
against him; and (4) Kuehl advised him that he would receive a
more severe sentence if the case proceeded to trial and would be
required to serve 85% of a sentence under the new sentencing
guidelines, as opposed to 50% of a sentence if he pleaded guilty.
In March 1996, the trial court conducted a hearing on
defendant's motion, heard counsels' arguments, and denied it.
II. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO
WITHDRAW HIS GUILTY PLEA
Defendant first argues that the trial court abused its
discretion by denying his motion to withdraw his guilty plea
where Kuehl provided ineffective assistance of counsel. Defen-
dant specifically contends that Kuehl gave him incorrect advice
about changes in section 3-6-3(a)(2) of the Unified Code of
Corrections (Correctional Code) concerning good-conduct credit
(730 ILCS 5/3-6-3(a)(2) (West Supp. 1995)). We disagree.
Defendant's testimony at the hearing on his motion to
withdraw reveals Kuehl, in response to defendant's decision to
plead guilty, said, "'It's up to you. It's the best offer they
have,' and that it's up to me to take it." Kuehl testified that
on a prior date when defendant was to enter a plea, "I asked
Greg, 'Do you want to do this?' And he said, 'No.' And I said,
'Fine.' And I stood up and I said, 'Judge, we're not doing the
plea,' and we left." According to Kuehl, defendant stated he was
"upset at the time" and came in a day or two later and finalized
the plea. "[H]e did want to do the plea; it wasn't his favorite
thing to do, but that's what he wanted to do."
In denying defendant's motion, the trial court stated,
in relevant part, as follows:
"[T]here's a big difference between wanting
to plead guilty and choosing to plead guilty.
[Not wanting to plead guilty] doesn't answer
the question whether or not [defendant]
voluntar[il]y pled guilty.
* * *
[T]here is nothing in the record of the plea,
nothing in the fact that [defendant] was not
surprised, that he may have been in a
layperson's observation depressed, that he
didn't like the detention center, or that he
was, in fact, reluctant to enter into his
plea to suggest it was other than knowingly,
intelligently, [and] voluntarily made.
*** I am not persuaded even by a prepon-
derance of the evidence that that threat [to
defendant's brother] was ever relayed to the
[d]efendant.
More importantly, I'm certainly not
persuaded that [the threat] in any way influ-
enced, affected, or coerced the [d]efendant
into pleading guilty."
In arguing the motion to the trial court, defendant's
new counsel argued that defendant's guilty plea was involuntary
because (1) defendant was depressed; (2) he thought he was going
to lose the case; and (3) he was afraid for his own safety.
Defendant's newly appointed counsel did not argue that the guilty
plea was rendered involuntary because of Kuehl's advice concern-
ing the possible length of the sentence or the then-recent
amendment to the statute authorizing good-conduct credit. As a
result, defendant raises a theory on appeal not relied on in the
trial court, and that court never addressed it in denying
defendant's motion to withdraw the guilty plea. Thus, defendant
has waived consideration of that argument on appeal. People v.
Hamilton, 283 Ill. App. 3d 854, 861-62, 670 N.E.2d 1189, 1194-95
(1996).
Even if defendant had not waived this argument, we
would conclude that he failed to demonstrate ineffective assis-
tance of counsel. The denial of a motion to withdraw a guilty
plea rests in the trial court's sound discretion, and a reviewing
court will not overturn that determination unless (1) the guilty
plea was entered through a misapprehension of the facts or law;
or (2) doubt of the defendant's guilt exists and justice would be
better served by submitting the case to trial. People v.
Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903 (1988).
To establish that defendant was denied effective assistance of
counsel in entering a guilty plea, defendant must demonstrate
both (1) that his counsel's performance was deficient; and (2)
prejudice to defendant (defined as a reasonable probability that,
but for counsel's errors, defendant would not have pleaded guilty
and would have insisted on going to trial). Prejudice is as-
sessed in light of the likelihood of success at trial, and if
prejudice has not been demonstrated, we need not consider whether
counsel's performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62 (1993).
Defendant concedes in his brief that Kuehl's advice--
that if defendant's case went to trial, conviction and a sentence
of 25 to 30 years were likely--was neither unreasonable nor defi-
cient. However, defendant contends that Kuehl's incorrect advice
concerning the matter of good-conduct credit requires reversal.
We disagree.
Our review of the record makes clear that the trial
court thoroughly and completely admonished defendant as to the
consequences of his guilty plea. Defendant's responses to the
court's questions do not reveal any misunderstanding or hesitancy
in his decision to plead guilty.
Moreover, even if Kuehl's advice as to good-conduct
credit was incorrect, defendant has not demonstrated prejudice to
him in his decision to plead guilty. The record does not show
that any alleged misunderstanding by defendant or Kuehl regarding
good-conduct credit in any way affected the voluntariness of
defendant's guilty plea.
Accordingly, we hold that the trial court did not abuse
its discretion by denying defendant's motion to withdraw his
guilty plea.
III. CREDIT FOR TIME SERVED
Last, defendant argues that he is entitled to one addi-
tional day of credit against his prison sentence for time served
in county jail. Defendant claims that the record shows he is
entitled to 121 days of credit, yet the trial court--after
consulting with the State and defense counsel--credited him with
only 120 days. The State concedes defendant's claim that he is
entitled to an additional day's credit for time served, but we
reject the State's concession because we conclude defendant has
waived this claim.
Defendant acknowledges that "[t]his issue is not pre-
served for appeal because it was not raised in a motion to reduce
sentence." He nevertheless contends that we should address the
matter as plain error affecting substantial rights. We disagree.
The last sentence of Supreme Court Rule 604(d) provides
as follows: "Upon appeal any issue not raised by the defendant
in the motion to reconsider the sentence or withdraw the plea of
guilty and vacate the judgment shall be deemed waived." 145 Ill.
2d R. 604(d) (eff. August 1, 1992). The Supreme Court of Illi-
nois has been very clear about the meaning of its rules, empha-
sizing that the court meant exactly what it said. See People v.
Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988) ("At the
risk of stating the obvious, it should be pointed out that the
rules adopted by this court concerning criminal defendants and
guilty pleas are in fact rules of procedure and not sugges-
tions").
In the present case, defendant did not include the
issue of his claimed sentence credit in his motion to reconsider
sentence and has, accordingly, waived it. In so holding, we note
that this sentencing credit issue is particularly well suited to
waiver analysis under Rule 604(d) because, had defendant called
this matter appropriately to the trial court's attention, that
court could have easily granted defendant any relief to which he
was entitled, thus obviating the need to raise the issue on
appeal.
An additional reason exists to conclude that defendant
has waived his issue. In People v. Donnelly, 226 Ill. App. 3d
771, 779, 589 N.E.2d 975, 980 (1992), this court addressed the
subject of computing a defendant's credit for time served at the
sentencing hearing and stated:
"Because of the statutory right to the
credit, we hold that the error in computing
the credit is not waived by failure of the
defendant *** to call the error to the trial
court's attention. *** [P]roper trial-court
practice at the time of sentencing would in-
clude taking a few additional minutes to
discuss credit-time computation with the
prosecutor, defense counsel, and defendant--
and then fix the number of days. From our
experience, that effort might well avoid the
loss of labor necessitated in the appellate
process and the remandment process."
Not long after rendering our opinion in Donnelly, this
court decided People v. Curtis, 233 Ill. App. 3d 416, 420, 599 N.E.2d 101, 103 (1992), where we cited Donnelly and wrote the
following:
"Both the State's Attorney and defense coun-
sel have an obligation to assist the court,
and both are obligated to make sure the de-
fendant receives neither more nor less than
the time credit to which he is entitled. We
see little justification or explanation for
errors in computing such credit." (Emphasis
in original.)
Further, in People v. Steskal, 236 Ill. App. 3d 821,
824, 602 N.E.2d 977, 979 (1992), this court reaffirmed the views
stated in Curtis, noted that neither the State nor defense
counsel in that case offered the trial court any assistance in
computing credit, and wrote the following:
"The trial judge should seek confirmation
from defense counsel and the [State] as to
the accuracy of [the probation office's pres-
entence report] computation [of the total
days for which defendant is entitled to cred-
it for time served]."
The present case differs from Donnelly, Curtis, and
Steskal because the records in each of those cases were silent as
to the defendant's agreement with the trial court's determination
of the number of days for which the defendant was entitled to
credit for time served. Here, however, the record before us
shows that the trial court did precisely what this court urged in
Donnelly, Curtis, and Steskal; namely, (1) it consulted with the
State and defense counsel regarding the credit defendant was
purportedly due for time served, (2) it sought--and received
(through defense counsel)--defendant's explicit agreement with
the total number of 120 days' credit, and (3) it corrected the
number of days' credit accordingly. At sentencing hearing, the
court noted that the State and defense counsel had stipulated
that defendant was entitled to 118 days of credit, and the
following discussion then took place:
"[Prosecutor]: Judge, that's an error.
It's now 120 days.
THE COURT: Is that accurate, [defense
counsel]?
[Defense counsel]: That's two days to
be added, Judge.
THE COURT: We'll make that 120 days."
Under the circumstances of this case--where the trial
court consulted with the State and defense counsel, who explicit-
ly agreed with the calculation of the total amount of credit for
time served--we hold that defendant has waived this issue on
appeal. As our supreme court stated in another context, "If a
defendant procures, invites or acquiesces in the admission of
evidence, even though it be improper, he cannot complain."
People v. Burage, 23 Ill. 2d 280, 283, 178 N.E.2d 389, 391
(1961).
Trial courts have no way of knowing--or controlling--
how many days will pass after a defendant's sentencing hearing
before he is in fact transferred to the Department of Corrections
(DOC). Thus, to avoid confusion by DOC when it receives a
recently sentenced defendant, we suggest that the trial court
specify in the sentencing order that the credit it is ordering
for time served is as of the date the sentencing hearing occurs.
Then DOC would simply add additional days the defendant remained
in custody in the local county jail until he was transferred to
DOC to determine how much credit for time served defendant is
entitled to when he is actually received at DOC. In the present
case, for example, the sentencing hearing occurred on May 3,
1995, and the trial court stated that defendant was entitled to
120 days of credit for time served. Following our suggestion,
the trial court would state, "defendant is entitled to 120 days
of credit for time served as of the date of this sentencing
hearing, May 3, 1995," and the sentencing order would contain
this statement, as well.
In concluding that defendant in this case has waived
his argument on appeal that he is entitled to an additional day's
credit for time served, we are mindful of the recent decision of
the supreme court in People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). In that case, the supreme court overruled the
decision of this court in People v. Toolate, 274 Ill. App. 3d
408, 654 N.E.2d 605 (1995), and held that the $5-per-diem mone-
tary credit against the fine imposed for time spent in jail prior
to sentencing, provided under section 110-14 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West
1994)), may be allowed even on appeal. Woodard, 175 Ill. 2d at
456-58, 677 N.E.2d 945-46. In our judgment, the difference
between Woodard and Toolate on the one hand and the present case
on the other is that the records in Woodard and Toolate were both
silent at each sentencing hearing on the subject of the
defendant's credit under section 110-14 of the Code against the
fine the court imposed. See Woodard, 175 Ill. 2d at 438, 677 N.E.2d at 937; Toolate, 274 Ill. App. 3d at 409, 654 N.E.2d at
605-06. In the present case, however, defendant was not silent
at the sentencing hearing. Instead, he agreed with the trial
court and the State that he should be credited with 120 days of
time served against his sentence, instead of 118 days that the
court originally thought appropriate. Thus, this case is more
like those situations in which the defendant not only fails to
object, but affirmatively concurs in the action of the trial
court, thereby waiving any objection to the action.
We note that this court has today filed People v.
Gwartney, No. 4-96-0178 (June 30, 1997), ____ Ill. App. 3d ___,
____ N.E.2d ____, reaching the same conclusion regarding defen-
dants who actively participate at the sentencing hearing with the
trial court and prosecutor in determining the amount of credit
for time served.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GREEN, J., concurs.
McCULLOUGH, J., concurs in part and dissents in part.
JUSTICE McCULLOUGH, concurring in part and dissenting
in part:
The State and the defendant agree that defendant is
entitled to one additional day's credit on his sentence. It is
clear a mistake was made by the trial court in determining the
proper credit. The parties agree it was a mistake. The credit
should be given. The majority is saying go back and file a
section 2-1401 motion. See 735 ILCS 5/2-1401 (West 1994). Is
this judicial economy?
The defendant's claim is rejected on the basis that the
claim has been waived. Waiver is the intentional relinquishment
of a known right. Why would a defendant ever knowingly give up a
day of credit?
Donnelly, Curtis and Steskal are cited but distinguish-
ed because there was no agreement by the defendant as to the
proper credit. Also distinguished is Woodard, because the record
was silent as to section 110-14 credit.
The record in Woodard may have been silent on the
credit issue in the trial court but that is not the basis for the
supreme court's holding.
The supreme court in Woodard makes it clear that the
credit should be granted. Woodard did not involve a person's
freedom. In Woodard, the issue was the $5 credit under section
110-14 of the Criminal Code, which provides in part: "shall be
allowed a credit *** upon application of the defendant." 725
ILCS 5/110-14 (West 1994); Woodard, 175 Ill. 2d at 440, 677 N.E.2d at 938 (emphasis omitted). The applicable provision in
this case, section 5-8-7(b) of the Code, states in part: "[t]he
offender shall be given credit *** at the rate specified in
Section 3-6-3 of this Code." 730 ILCS 5/5-8-7(b) (West 1994).
The court stated regardless of the failure of the defendant to
apply, he was entitled to the credit. The Woodard court stated,
"[t]he plain language of section 110-14 and its amendments also
carries no indication that application at the trial level is a
statutory precondition to the right to any credit." Woodard, 175 Ill. 2d at 448, 677 N.E.2d at 941. Certainly in determining
credit for time served, the defendant does not have to make any
application.
Section 5-8-7 of the Code does not require that the
credit be determined at the time of the sentencing. 730 ILCS
5/5-8-7 (West 1994). Again, as Woodard states: "judicial
discretion is not involved in a decision to allow the credit."
Woodard, 175 Ill. 2d at 453, 677 N.E.2d at 944. "'Granting 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, 677 N.E.2d at 945, quoting People
v. Scott, 277 Ill. App. 3d 565, 566, 660 N.E.2d 1316, 1316-17
(1996).
It is interesting to note that the supreme court in
Woodard cited four cases from this district dealing with the
mandatory credit in section 5-8-7(b) of the Code. In People v.
Sizemore, 226 Ill. App. 3d 956, 590 N.E.2d 520 (1992), the
presentence report showed the dates defendant was entitled to
credit for time served. This court, citing Donnelly, stated the
issue of credit was not waived.
In Donnelly, we stated:
"Section 5-8-7(b) of the Code is abso-
lute, and there is no room for discretion.
Credit must be given, and computation of the
credit is basically an administrative func-
tion, but sentencing itself is a judicial
function. The credit time is usually shown
in the 'Judgment and Sentence,' and is part
of the 'Mittimus for State Penal Institu-
tions.' This document is often dated, as in
the present case, some days after the sen-
tencing hearing and may not be seen by the
defendant. It is, however, a part of the
record on appeal.
Because of the statutory right to the
credit, we hold that the error on computing
the credit is not waived by failure of the
defendant in this case to call the error to
the trial court's attention." Donnelly, 226
Ill. App. 3d at 779, 589 N.E.2d at 980.
In People v. Bates, 179 Ill. App. 3d 705, 709, 534 N.E.2d 1019, 1021 (1989), in a post-conviction setting on credit
for time served, this court did adopt waiver, "where it could
have been raised in the trial court or on direct appeal but was
not." Also in People v. Beech, 202 Ill. App. 3d 576, 580, 560 N.E.2d 395, 398 (1990), citing Bates (179 Ill. App. 3d 705, 534
N.E.2d 1019), this court again stated such an issue can be raised
on direct appeal.
Woodard did not make the defendant's right to the $5
credit dependent upon any lack of agreement in the trial court.
The majority makes an exception to the right to credit as an
issue on appeal if defendant makes some tacit agreement in the
trial court. Certainly a day's credit for time served is as
important to a defendant as the $5 credit dealt with in Woodard.
In this case waiver is based upon the litany between
the prosecutor, the defendant's attorney and the court. That
colloquy, because of its brevity, is worthy of repeating from the
record in its entirety:
"THE COURT: *** He's to receive credit
against that sentence for all time heretofore
served in custody, which I believe the par-
ties stipulated is 118 days.
[Prosecutor]: Judge, that's an error.
It's now 120 days.
THE COURT: Is that accurate, [defense
counsel]?
[Defense counsel]: That's two days to
be added, Judge.
THE COURT: We'll make that 120 days."
Neither the parties nor the court had the benefit of a
presentence report. This record is not sufficient to bar a
defendant from presenting this issue on appeal.
The supreme court has recently remanded several cases
pursuant to Woodard. People v. Watson, No. 80301 (June 4, 1997),
___ Ill. 2d ___, ___ N.E.2d ___; People v. Hillsman, No. 81415
(June 4, 1997), ___ Ill. 2d ___, ___ N.E.2d ___; People v.
Taylor, No. 81655 (June 4, 1997), ___ Ill. 2d ___, ___ N.E.2d
___; People v. Brazelton, No. 82575 (June 4, 1997), ___ Ill. 2d
___, ___ N.E.2d ___; and People v. Harris, No. 82580 (June 4,
1997), ___ Ill. 2d ___, ___ N.E.2d ___. These supreme court
orders, since Woodard, dealing with the credit issue, are a clear
indication that defendant should be granted 121 days credit.
As to the Rule 604(d) issue, the majority sua sponte
finds waiver. The State does not argue waiver suggesting the
State has waived the issue of waiver.
I agree with the majority that the trial court did not
err in denying defendant's motion to withdraw his guilty plea.
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
GREGORY J. MOORE, ) No. 95CF12
Defendant-Appellant. )
) Honorable
) John R. DeLaMar,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE STEIGMANN delivered the opinion of
the court:
In May 1995, defendant, Gregory J. Moore, pleaded
guilty to first degree murder (720 ILCS 5/9-1(a)(1) (West 1994)).
The trial court sentenced him to 20 years in prison (730 ILCS
5/5-8-1(a)(1)(a) (West 1994)) and gave him credit for 120 days
previously served in county jail. In February 1996, defendant
filed an amended motion to withdraw his guilty plea, which the
court denied.
Defendant appeals, arguing that (1) the trial court
abused its discretion by denying his motion to withdraw his
guilty plea where his trial counsel was ineffective; and (2) he
is entitled to one additional day of credit for time served. We
affirm.
I. BACKGROUND
Defendant pleaded guilty to first degree murder on May
3, 1995, and the trial court sentenced him the same day. After
consulting with both the State and defense counsel, the court
ordered that defendant be given credit for 120 days of credit for
time served.
In his amended motion to withdraw his guilty plea,
defendant alleged that he did not knowingly and voluntarily waive
his right to jury trial because (1) he or a member of his family
was threatened with serious physical harm if he did not plead
guilty; (2) he was confused and frightened due to those threats;
(3) his court-appointed trial counsel, James Kuehl, did not
interview material witnesses or explain to defendant the evidence
against him; and (4) Kuehl advised him that he would receive a
more severe sentence if the case proceeded to trial and would be
required to serve 85% of a sentence under the new sentencing
guidelines, as opposed to 50% of a sentence if he pleaded guilty.
In March 1996, the trial court conducted a hearing on
defendant's motion, heard counsels' arguments, and denied it.
II. THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO
WITHDRAW HIS GUILTY PLEA
Defendant first argues that the trial court abused its
discretion by denying his motion to withdraw his guilty plea
where Kuehl provided ineffective assistance of counsel. Defen-
dant specifically contends that Kuehl gave him incorrect advice
about changes in section 3-6-3(a)(2) of the Unified Code of
Corrections (Correctional Code) concerning good-conduct credit
(730 ILCS 5/3-6-3(a)(2) (West Supp. 1995)). We disagree.
Defendant's testimony at the hearing on his motion to
withdraw reveals Kuehl, in response to defendant's decision to
plead guilty, said, "'It's up to you. It's the best offer they
have,' and that it's up to me to take it." Kuehl testified that
on a prior date when defendant was to enter a plea, "I asked
Greg, 'Do you want to do this?' And he said, 'No.' And I said,
'Fine.' And I stood up and I said, 'Judge, we're not doing the
plea,' and we left." According to Kuehl, defendant stated he was
"upset at the time" and came in a day or two later and finalized
the plea. "[H]e did want to do the plea; it wasn't his favorite
thing to do, but that's what he wanted to do."
In denying defendant's motion, the trial court stated,
in relevant part, as follows:
"[T]here's a big difference between wanting
to plead guilty and choosing to plead guilty.
[Not wanting to plead guilty] doesn't answer
the question whether or not [defendant]
voluntar[il]y pled guilty.
* * *
[T]here is nothing in the record of the plea,
nothing in the fact that [defendant] was not
surprised, that he may have been in a
layperson's observation depressed, that he
didn't like the detention center, or that he
was, in fact, reluctant to enter into his
plea to suggest it was other than knowingly,
intelligently, [and] voluntarily made.
*** I am not persuaded even by a prepon-
derance of the evidence that that threat [to
defendant's brother] was ever relayed to the
[d]efendant.
More importantly, I'm certainly not
persuaded that [the threat] in any way influ-
enced, affected, or coerced the [d]efendant
into pleading guilty."
In arguing the motion to the trial court, defendant's
new counsel argued that defendant's guilty plea was involuntary
because (1) defendant was depressed; (2) he thought he was going
to lose the case; and (3) he was afraid for his own safety.
Defendant's newly appointed counsel did not argue that the guilty
plea was rendered involuntary because of Kuehl's advice concern-
ing the possible length of the sentence or the then-recent
amendment to the statute authorizing good-conduct credit. As a
result, defendant raises a theory on appeal not relied on in the
trial court, and that court never addressed it in denying
defendant's motion to withdraw the guilty plea. Thus, defendant
has waived consideration of that argument on appeal. People v.
Hamilton, 283 Ill. App. 3d 854, 861-62, 670 N.E.2d 1189, 1194-95
(1996).
Even if defendant had not waived this argument, we
would conclude that he failed to demonstrate ineffective assis-
tance of counsel. The denial of a motion to withdraw a guilty
plea rests in the trial court's sound discretion, and a reviewing
court will not overturn that determination unless (1) the guilty
plea was entered through a misapprehension of the facts or law;
or (2) doubt of the defendant's guilt exists and justice would be
better served by submitting the case to trial. People v.
Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903 (1988).
To establish that defendant was denied effective assistance of
counsel in entering a guilty plea, defendant must demonstrate
both (1) that his counsel's performance was deficient; and (2)
prejudice to defendant (defined as a reasonable probability that,
but for counsel's errors, defendant would not have pleaded guilty
and would have insisted on going to trial). Prejudice is as-
sessed in light of the likelihood of success at trial, and if
prejudice has not been demonstrated, we need not consider whether
counsel's performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62 (1993).
Defendant concedes in his brief that Kuehl's advice--
that if defendant's case went to trial, conviction and a sentence
of 25 to 30 years were likely--was neither unreasonable nor defi-
cient. However, defendant contends that Kuehl's incorrect advice
concerning the matter of good-conduct credit requires reversal.
We disagree.
Our review of the record makes clear that the trial
court thoroughly and completely admonished defendant as to the
consequences of his guilty plea. Defendant's responses to the
court's questions do not reveal any misunderstanding or hesitancy
in his decision to plead guilty.
Moreover, even if Kuehl's advice as to good-conduct
credit was incorrect, defendant has not demonstrated prejudice to
him in his decision to plead guilty. The record does not show
that any alleged misunderstanding by defendant or Kuehl regarding
good-conduct credit in any way affected the voluntariness of
defendant's guilty plea.
Accordingly, we hold that the trial court did not abuse
its discretion by denying defendant's motion to withdraw his
guilty plea.
III. CREDIT FOR TIME SERVED
Last, defendant argues that he is entitled to one addi-
tional day of credit against his prison sentence for time served
in county jail. Defendant claims that the record shows he is
entitled to 121 days of credit, yet the trial court--after
consulting with the State and defense counsel--credited him with
only 120 days. The State concedes defendant's claim that he is
entitled to an additional day's credit for time served, but we
reject the State's concession because we conclude defendant has
waived this claim.
Defendant acknowledges that "[t]his issue is not pre-
served for appeal because it was not raised in a motion to reduce
sentence." He nevertheless contends that we should address the
matter as plain error affecting substantial rights. We disagree.
The last sentence of Supreme Court Rule 604(d) provides
as follows: "Upon appeal any issue not raised by the defendant
in the motion to reconsider the sentence or withdraw the plea of
guilty and vacate the judgment shall be deemed waived." 145 Ill.
2d R. 604(d) (eff. August 1, 1992). The Supreme Court of Illi-
nois has been very clear about the meaning of its rules, empha-
sizing that the court meant exactly what it said. See People v.
Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988) ("At the
risk of stating the obvious, it should be pointed out that the
rules adopted by this court concerning criminal defendants and
guilty pleas are in fact rules of procedure and not sugges-
tions").
In the present case, defendant did not include the
issue of his claimed sentence credit in his motion to reconsider
sentence and has, accordingly, waived it. In so holding, we note
that this sentencing credit issue is particularly well suited to
waiver analysis under Rule 604(d) because, had defendant called
this matter appropriately to the trial court's attention, that
court could have easily granted defendant any relief to which he
was entitled, thus obviating the need to raise the issue on
appeal.
An additional reason exists to conclude that defendant
has waived his issue. In People v. Donnelly, 226 Ill. App. 3d
771, 779, 589 N.E.2d 975, 980 (1992), this court addressed the
subject of computing a defendant's credit for time served at the
sentencing hearing and stated:
"Because of the statutory right to the
credit, we hold that the error in computing
the credit is not waived by failure of the
defendant *** to call the error to the trial
court's attention. *** [P]roper trial-court
practice at the time of sentencing would in-
clude taking a few additional minutes to
discuss credit-time computation with the
prosecutor, defense counsel, and defendant--
and then fix the number of days. From our
experience, that effort might well avoid the
loss of labor necessitated in the appellate
process and the remandment process."
Not long after rendering our opinion in Donnelly, this
court decided People v. Curtis, 233 Ill. App. 3d 416, 420, 599 N.E.2d 101, 103 (1992), where we cited Donnelly and wrote the
following:
"Both the State's Attorney and defense coun-
sel have an obligation to assist the court,
and both are obligated to make sure the de-
fendant receives neither more nor less than
the time credit to which he is entitled. We
see little justification or explanation for
errors in computing such credit." (Emphasis
in original.)
Further, in People v. Steskal, 236 Ill. App. 3d 821,
824, 602 N.E.2d 977, 979 (1992), this court reaffirmed the views
stated in Curtis, noted that neither the State nor defense
counsel in that case offered the trial court any assistance in
computing credit, and wrote the following:
"The trial judge should seek confirmation
from defense counsel and the [State] as to
the accuracy of [the probation office's pres-
entence report] computation [of the total
days for which defendant is entitled to cred-
it for time served]."
The present case differs from Donnelly, Curtis, and
Steskal because the records in each of those cases were silent as
to the defendant's agreement with the trial court's determination
of the number of days for which the defendant was entitled to
credit for time served. Here, however, the record before us
shows that the trial court did precisely what this court urged in
Donnelly, Curtis, and Steskal; namely, (1) it consulted with the
State and defense counsel regarding the credit defendant was
purportedly due for time served, (2) it sought--and received
(through defense counsel)--defendant's explicit agreement with
the total number of 120 days' credit, and (3) it corrected the
number of days' credit accordingly. At sentencing hearing, the
court noted that the State and defense counsel had stipulated
that defendant was entitled to 118 days of credit, and the
following discussion then took place:
"[Prosecutor]: Judge, that's an error.
It's now 120 days.
THE COURT: Is that accurate, [defense
counsel]?
[Defense counsel]: That's two days to
be added, Judge.
THE COURT: We'll make that 120 days."
Under the circumstances of this case--where the trial
court consulted with the State and defense counsel, who explicit-
ly agreed with the calculation of the total amount of credit for
time served--we hold that defendant has waived this issue on
appeal. As our supreme court stated in another context, "If a
defendant procures, invites or acquiesces in the admission of
evidence, even though it be improper, he cannot complain."
People v. Burage, 23 Ill. 2d 280, 283, 178 N.E.2d 389, 391
(1961).
Trial courts have no way of knowing--or controlling--
how many days will pass after a defendant's sentencing hearing
before he is in fact transferred to the Department of Corrections
(DOC). Thus, to avoid confusion by DOC when it receives a
recently sentenced defendant, we suggest that the trial court
specify in the sentencing order that the credit it is ordering
for time served is as of the date the sentencing hearing occurs.
Then DOC would simply add additional days the defendant remained
in custody in the local county jail until he was transferred to
DOC to determine how much credit for time served defendant is
entitled to when he is actually received at DOC. In the present
case, for example, the sentencing hearing occurred on May 3,
1995, and the trial court stated that defendant was entitled to
120 days of credit for time served. Following our suggestion,
the trial court would state, "defendant is entitled to 120 days
of credit for time served as of the date of this sentencing
hearing, May 3, 1995," and the sentencing order would contain
this statement, as well.
In concluding that defendant in this case has waived
his argument on appeal that he is entitled to an additional day's
credit for time served, we are mindful of the recent decision of
the supreme court in People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). In that case, the supreme court overruled the
decision of this court in People v. Toolate, 274 Ill. App. 3d
408, 654 N.E.2d 605 (1995), and held that the $5-per-diem mone-
tary credit against the fine imposed for time spent in jail prior
to sentencing, provided under section 110-14 of the Code of
Criminal Procedure of 1963 (Code) (725 ILCS 5/110-14 (West
1994)), may be allowed even on appeal. Woodard, 175 Ill. 2d at
456-58, 677 N.E.2d 945-46. In our judgment, the difference
between Woodard and Toolate on the one hand and the present case
on the other is that the records in Woodard and Toolate were both
silent at each sentencing hearing on the subject of the
defendant's credit under section 110-14 of the Code against the
fine the court imposed. See Woodard, 175 Ill. 2d at 438, 677 N.E.2d at 937; Toolate, 274 Ill. App. 3d at 409, 654 N.E.2d at
605-06. In the present case, however, defendant was not silent
at the sentencing hearing. Instead, he agreed with the trial
court and the State that he should be credited with 120 days of
time served against his sentence, instead of 118 days that the
court originally thought appropriate. Thus, this case is more
like those situations in which the defendant not only fails to
object, but affirmatively concurs in the action of the trial
court, thereby waiving any objection to the action.
We note that this court has today filed People v.
Gwartney, No. 4-96-0178 (June 30, 1997), ____ Ill. App. 3d ___,
____ N.E.2d ____, reaching the same conclusion regarding defen-
dants who actively participate at the sentencing hearing with the
trial court and prosecutor in determining the amount of credit
for time served.
IV. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
GREEN, J., concurs.
McCULLOUGH, J., concurs in part and dissents in part.
JUSTICE McCULLOUGH, concurring in part and dissenting
in part:
The State and the defendant agree that defendant is
entitled to one additional day's credit on his sentence. It is
clear a mistake was made by the trial court in determining the
proper credit. The parties agree it was a mistake. The credit
should be given. The majority is saying go back and file a
section 2-1401 motion. See 735 ILCS 5/2-1401 (West 1994). Is
this judicial economy?
The defendant's claim is rejected on the basis that the
claim has been waived. Waiver is the intentional relinquishment
of a known right. Why would a defendant ever knowingly give up a
day of credit?
Donnelly, Curtis and Steskal are cited but distinguish-
ed because there was no agreement by the defendant as to the
proper credit. Also distinguished is Woodard, because the record
was silent as to section 110-14 credit.
The record in Woodard may have been silent on the
credit issue in the trial court but that is not the basis for the
supreme court's holding.
The supreme court in Woodard makes it clear that the
credit should be granted. Woodard did not involve a person's
freedom. In Woodard, the issue was the $5 credit under section
110-14 of the Criminal Code, which provides in part: "shall be
allowed a credit *** upon application of the defendant." 725
ILCS 5/110-14 (West 1994); Woodard, 175 Ill. 2d at 440, 677 N.E.2d at 938 (emphasis omitted). The applicable provision in
this case, section 5-8-7(b) of the Code, states in part: "[t]he
offender shall be given credit *** at the rate specified in
Section 3-6-3 of this Code." 730 ILCS 5/5-8-7(b) (West 1994).
The court stated regardless of the failure of the defendant to
apply, he was entitled to the credit. The Woodard court stated,
"[t]he plain language of section 110-14 and its amendments also
carries no indication that application at the trial level is a
statutory precondition to the right to any credit." Woodard, 175 Ill. 2d at 448, 677 N.E.2d at 941. Certainly in determining
credit for time served, the defendant does not have to make any
application.
Section 5-8-7 of the Code does not require that the
credit be determined at the time of the sentencing. 730 ILCS
5/5-8-7 (West 1994). Again, as Woodard states: "judicial
discretion is not involved in a decision to allow the credit."
Woodard, 175 Ill. 2d at 453, 677 N.E.2d at 944. "'Granting 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, 677 N.E.2d at 945, quoting People
v. Scott, 277 Ill. App. 3d 565, 566, 660 N.E.2d 1316, 1316-17
(1996).
It is interesting to note that the supreme court in
Woodard cited four cases from this district dealing with the
mandatory credit in section 5-8-7(b) of the Code. In People v.
Sizemore, 226 Ill. App. 3d 956, 590 N.E.2d 520 (1992), the
presentence report showed the dates defendant was entitled to
credit for time served. This court, citing Donnelly, stated the
issue of credit was not waived.
In Donnelly, we stated:
"Section 5-8-7(b) of the Code is abso-
lute, and there is no room for discretion.
Credit must be given, and computation of the
credit is basically an administrative func-
tion, but sentencing itself is a judicial
function. The credit time is usually shown
in the 'Judgment and Sentence,' and is part
of the 'Mittimus for State Penal Institu-
tions.' This document is often dated, as in
the present case, some days after the sen-
tencing hearing and may not be seen by the
defendant. It is, however, a part of the
record on appeal.
Because of the statutory right to the
credit, we hold that the error on computing
the credit is not waived by failure of the
defendant in this case to call the error to
the trial court's attention." Donnelly, 226
Ill. App. 3d at 779, 589 N.E.2d at 980.
In People v. Bates, 179 Ill. App. 3d 705, 709, 534 N.E.2d 1019, 1021 (1989), in a post-conviction setting on credit
for time served, this court did adopt waiver, "where it could
have been raised in the trial court or on direct appeal but was
not." Also in People v. Beech, 202 Ill. App. 3d 576, 580, 560 N.E.2d 395, 398 (1990), citing Bates (179 Ill. App. 3d 705, 534
N.E.2d 1019), this court again stated such an issue can be raised
on direct appeal.
Woodard did not make the defendant's right to the $5
credit dependent upon any lack of agreement in the trial court.
The majority makes an exception to the right to credit as an
issue on appeal if defendant makes some tacit agreement in the
trial court. Certainly a day's credit for time served is as
important to a defendant as the $5 credit dealt with in Woodard.
In this case waiver is based upon the litany between
the prosecutor, the defendant's attorney and the court. That
colloquy, because of its brevity, is worthy of repeating from the
record in its entirety:
"THE COURT: *** He's to receive credit
against that sentence for all time heretofore
served in custody, which I believe the par-
ties stipulated is 118 days.
[Prosecutor]: Judge, that's an error.
It's now 120 days.
THE COURT: Is that accurate, [defense
counsel]?
[Defense counsel]: That's two days to
be added, Judge.
THE COURT: We'll make that 120 days."
Neither the parties nor the court had the benefit of a
presentence report. This record is not sufficient to bar a
defendant from presenting this issue on appeal.
The supreme court has recently remanded several cases
pursuant to Woodard. People v. Watson, No. 80301 (June 4, 1997),
___ Ill. 2d ___, ___ N.E.2d ___; People v. Hillsman, No. 81415
(June 4, 1997), ___ Ill. 2d ___, ___ N.E.2d ___; People v.
Taylor, No. 81655 (June 4, 1997), ___ Ill. 2d ___, ___ N.E.2d
___; People v. Brazelton, No. 82575 (June 4, 1997), ___ Ill. 2d
___, ___ N.E.2d ___; and People v. Harris, No. 82580 (June 4,
1997), ___ Ill. 2d ___, ___ N.E.2d ___. These supreme court
orders, since Woodard, dealing with the credit issue, are a clear
indication that defendant should be granted 121 days credit.
As to the Rule 604(d) issue, the majority sua sponte
finds waiver. The State does not argue waiver suggesting the
State has waived the issue of waiver.
I agree with the majority that the trial court did not
err in denying defendant's motion to withdraw his guilty plea.
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