Johnson v. Washington

No. 3--97--0153
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1997

PERCY JOHNSON, ) Appeal from the Circuit Court
) for the 14th Judicial Circuit
Plaintiff-Appellee, ) Rock Island County, Illinois
)
v. ) No. 96--MR--240
)
ODIE WASHINGTON and LISA )
NORDSTROM, ) Honorable
) Joseph F. Beatty
Defendants-Appellants. ) Judge, Presiding
_________________________________________________________________

JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________

The plaintiff, Percy Johnson, pled guilty to multiple
charges. He received 12 concurrent terms of imprisonment of
varying lengths and one consecutive two-year prison term. The
plaintiff was awarded credit for 165 days spent in jail prior to
his sentencing. Subsequently, he brought a mandamus action
against the defendants, Odie Washington (Director of the Illinois
Department of Corrections) and Lisa Nordstrom (Record Office
Supervisor of the East Moline Correctional Center). In this
action, the plaintiff contended that he was entitled to an
additional 165 days' credit against his consecutive sentence.
The trial court granted the plaintiff's petition for mandamus.
We find that for purposes of awarding credit for pre-sentence
custody, the plaintiff's consecutive sentences must be viewed as
a single "aggregate sentence." The plaintiff received 165 days
of credit toward this aggregate sentence. Thus, he was not enti-
tled to any further credit, and his petition for mandamus should
have been denied. Consequently, we reverse the judgment of the
trial court.
In November 1992, the circuit court of Cook County entered
nine different sentencing orders against the plaintiff. In
total, the plaintiff was convicted on eight counts of theft by
deception (720 ILCS 5/16--1(a)(2) (West 1992)), three counts of
aggravated false personation of a peace officer (720 ILCS 5/32--
5.2 (West 1992)), one count of attempted theft by deception (720
ILCS 5/8--4(a), 16--1(a)(2) (West 1992)), and one count of unlaw-
ful use of a weapon by a felon (720 ILCS 5/24--1.1 (West 1992)).
The sentences for all the convictions, with one exception, were
to run concurrently. Those sentences ranged from 14 years to 5
years. The sole exception was a two-year prison term for theft
by deception which the court ordered the plaintiff to serve
consecutively to the other sentences. Each of the nine sentenc-
ing orders provided that the plaintiff should be given credit for
165 days of pre-sentence custody.
In November 1996, the plaintiff filed this action for
mandamus. The trial court ruled that the plaintiff was entitled
to 165 days' credit against his consecutive sentence because the
sentencing order provided for that credit.
The sole issue on appeal is whether the trial court properly
granted the plaintiff's petition for mandamus and awarded the
plaintiff additional credit for pre-sentence custody.
The writ of mandamus is an extraordinary remedy which may be
issued in the court's discretion. Fischer v. Brombolich, 207
Ill. App. 3d 1053, 566 N.E.2d 785 (1991). Mandamus may lie only
when the plaintiff has a clear right to the relief sought, and
the defendant has a clear duty to act and clear authority to
comply with the writ. Orenic v. Illinois Labor Relations Board,
127 Ill. 2d 453, 537 N.E.2d 784 (1989).
Section 5--8--7 of the Unified Code of Corrections (Code)
governs the calculation of an offender's term of imprisonment.
730 ILCS 5/5--8--7 (West 1992). It provides that the offender
must be given credit for time spent in custody as a result of the
offense for which the sentence is imposed. 730 ILCS 5/5--8--7(b)
(West 1992).
Section 5--8--4(e) of the Code governs the calculation of
consecutive sentences. 730 ILCS 5/5--8--4(e) (West 1992). It
states that the Department of Corrections (Department) must treat
the consecutive sentences as if they are a single term of impris-
onment. 730 ILCS 5/5--8--4(e) (West 1992). The Department must
add the consecutive terms together to reach the "aggregate
sentence." See 730 ILCS 5/5--8--4(e)((1),(3) (West 1992). The
offender must be awarded credit against the aggregate sentence
for "all time served *** since the commission of the *** offenses
and as a consequence thereof ***." 730 ILCS 5/5--8--4(e)(4)
(West 1992).
Since both sections 5--8--7(b) and 5--8--4(e)(4) require the
Department to award credit for pre-sentence custody, it becomes
our task to determine which section should be applied in a given
case. To do so, we turn to the rules governing statutory con-
struction.
One of the cardinal rules of statutory construction ordains
that sections in pari materia should be considered with reference
to one another so that the sections may be given harmonious ef-
fect. People v. Scheib, 76 Ill. 2d 244, 390 N.E.2d 872 (1979).
It is also well settled that when both a specific statute and a
general statute may be applied to a certain set of circumstances,
the specific statute controls. People v. Urban, 196 Ill. App. 3d
310, 553 N.E.2d 740 (1990).
In light of these guidelines, we note that section 5--8--
7(b) is silent as to when it should be applied. Section 5--8--
4(e), however, specifically states that it applies when consecu-
tive sentences have been imposed. Thus, it is clear that section
5--8--4(e) is the specific provision and section 5--8--7(b) is
the general provision. It follows, then, that when section 5--8-
-4(e) is applicable--when consecutive sentences are at issue--
section 5--8--4(e) controls the award of pre-sentence credit. At
that point, section 5--8--7(b) becomes irrelevant.
This interpretation allows us to read sections 5--8--7(b)
and 5--8--4(e) with reference to each other and give the sections
harmonious effect. Section 5--8--7(b) continues to govern the
award of credit for pre-sentence custody in all instances except
when consecutive sentences have been imposed. When consecutive
sentences are involved, section 5--8--4(e) controls.
Applying this reasoning to the instant case, we find that
section 5--8--4(e) requires the Department to add the plaintiff's
consecutive sentences and award any pre-sentencing credit against
the aggregate sentence. Following this direction, the
plaintiff's aggregate sentence would be 16 years, and his credit
for pre-sentence custody would reduce that term by 165 days. It
is important to note that awarding the plaintiff 165 days of
credit reduces both the underlying sentence and the consecutive
sentence. Thus, all of the plaintiff's sentences have been
reduced by the number of days he spent in pre-sentence custody.
Neither section 5--8--7(b) nor 5--8--4(e)(4) provides for more
than that. Having received the total amount of credit to which
he is entitled, it is clear that the plaintiff cannot establish a
clear right to the remedy of mandamus, and his petition should
have been denied.
The plaintiff contends that the Illinois Supreme Court's
decision in People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305
(1996), controls the decision in case at bar. We find, however,
that Robinson is distinguishable because Robinson involved the
interpretation of section 5--8--7(b). As we noted earlier,
section 5--8--7(b) has no application to the instant case. See
Feazell v. Washington, 291 Ill. App. 3d 766, 684 N.E.2d 1052
(1997), pet. for leave to appeal pending No. 84076; and People v.
Plair, ___ Ill. App. 3d ___, 686 N.E.2d 28 (1997), pet. for leave
to appeal pending No. 84387; but see People v. Johnson, 286 Ill.
App. 3d 597, 676 N.E.2d 1040 (1997) leave to appeal denied No.
83027 (June 4, 1997).
Moreover, we are unpersuaded by the trial court's decision
to rely on the sentencing order as an indication that the plain-
tiff was entitled to an additional 165 days of credit. At the
time of the plaintiff's conviction, the trial court entered nine
separate sentencing orders. Each of these orders contained a
notation that the plaintiff was entitled to 165 days' credit. It
is obvious to us that the trial court entered this notation on
each order to prevent confusion should any one of the orders be
misplaced. Further, we find, given our interpretation of section
5--8--4(e), that the court lacked the authority to award the
defendant more than 165 days of credit.
In short, we hold that the plaintiff has received all of the
credit to which he was entitled by virtue of his pre-sentence
incarceration. Thus, the trial court abused its discretion in
granting the plaintiff's petition for mandamus, and its judgment
must be reversed.
The judgment of the circuit court of Rock Island County is
reversed.
Reversed.
LYTTON, J., concurs.
HOLDRIDGE, J., dissents.
JUSTICE HOLDRIDGE, dissenting:
I respectfully dissent. In People v. Robinson, 172 Ill. 2d 452 (1996), our supreme court held that the plain language of
section 5--8--7(b) requires that a defendant receive credit
against each sentence imposed for an offense for which he was in
custody where he was simultaneously in custody on more than one
offense. Robinson, 172 Ill. 2d at 462-63. Here, there is no
indication in the record that defendant was not simultaneously in
custody for each of the offenses for which he received consecu-
tive sentences. Therefore, under Robinson, he is entitled to a
separate credit against each of those sentences. People v.
Johnson, 286 Ill. App. 3d 597, 601 (1997) leave to appeal denied
No.83027 (June 4, 1997). I am not convinced by the
majority's analysis that the controlling authority in Robinson
does not apply to this situation. I would, therefore, affirm the
trial court, and I dissent on that basis.