People v. Hill

1-96-2863 February 17, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM
) THE CIRCUIT COURT
Plaintiff-Appellee, ) COOK COUNTY
)
)
v. ) No. 95 CR 1656201
)
)
)
LOUIS HILL, ) THE HONORABLE
) MICHAEL P. TOOMIN
Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE COUSINS delivered the opinion of the court:
After a bench trial, defendant Louis Hill was found guilty
of first degree murder, home invasion, armed robbery, residential
burglary, robbery and armed violence. The trial court sentenced
defendant to consecutive sentences of natural life imprisonment
for murder, an extended-term of 60 years for home invasion and 30
years for armed robbery.
On appeal defendant argues that: (1) the trial court erred
in imposing an extended term for home invasion where the trial
court had already imposed an "extended term" for first degree
murder, the most serious offense for which he was convicted; (2)
the trial court exceeded the statutorily permissible maximum
sentence for an extended term for first degree murder where the
trial court sentenced defendant to natural life and the maximum
allowable extended-term sentence for murder is 100 years; (3) he
was not proven guilty beyond a reasonable doubt of armed robbery
because the evidence established that he did not use a weapon in
the taking of any property and any force that he did use was not
to further the goal of taking the victim's property; (4) he was
not proven guilty of armed robbery beyond a reasonable doubt
where there was no evidence corroborating the offense apart from
defendant's statement; (5) he was not proven guilty beyond a
reasonable doubt of home invasion because he was voluntarily
admitted to the victim's home and the evidence established that
he did not have a prior intent to commit a crime; (6) the trial
court abused its discretion in sentencing him to natural life
imprisonment; and (7) he is entitled to an additional 882 days of
sentence credit under People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996), because he was sentenced to three consecutive
terms of imprisonment and had been in custody on all three
offenses for a total of 441 days.
BACKGROUND
On May 7, 1995, Wardell Jackson, age 70, was found murdered
in her home located at 8038 South Wabash. Jackson lived alone in
a rear coach house at that location while defendant and his wife
lived in the front house. After the body was discovered,
defendant was interviewed by police and ultimately confessed to
the circumstances surrounding Jackson's death. At trial,
defendant's confession was introduced into evidence via a
stipulation.
In his statement, defendant explained that he had known
Jackson for five years and that he and his wife had a set of keys
to Jackson's home. On May 5, 1995, defendant called Jackson on
the phone and asked if he could borrow some money. Jackson
agreed and defendant went to her house. Jackson met defendant at
her front door and gave him $10. When he was standing at the
door, defendant saw a black man and woman inside Jackson's home,
but he did not know who they were. Defendant used the money to
buy cigarettes and a bottle of liquor.
Around 10:30 p.m., defendant called Jackson a second time
and asked to borrow more money. Jackson agreed and defendant
went to her front door again. He saw the same man and woman at
Jackson's house that he had seen before. Jackson told defendant
that she was going to tell his wife that he was getting money
from her. In response, defendant told Jackson that he did not
want her to tell his wife because he and his wife would get into
fights and arguments if his wife found out. Defendant left and
used the $10 to buy crack cocaine.
In his statement, defendant explained that he returned to
Jackson's house around 1:30 a.m. to tell Jackson not to tell his
wife that she had given him money. He rang the doorbell and
Jackson let him in. Jackson locked the front door and the two
went into the kitchen. Defendant told Jackson not to tell his
wife about the money. He then grabbed her and began "shaking her
like a rag doll." While he was shaking her, he pushed her and
Jackson stumbled backwards and fell. As she fell, she hit her
head on something. Defendant saw blood by her head and went to
see if she was breathing. He then started to leave the house but
stopped to take $10 to $13 that he saw on a table. He then took
some papers and clothes from the bedroom to make it look as if
someone had broken into Jackson's home. Since the front door was
locked, defendant went to the back door of the house, kicked the
door open, and went home.
Around 5 a.m., defendant returned to Jackson's home and
entered through the back door. He saw that Jackson was lying
where he left her and he did not think that she was breathing.
Defendant decided to cause more damage to make it look as if
someone had broken into the house. He had brought a chisel with
him from his house and used the chisel to make pry marks and
scratches on the outside back door. He then found a box cutter
in Jackson's home and used it to cut Jackson's throat. Defendant
then left Jackson's home, drove around in his car and threw the
box cutter out of the window while driving on the Dan Ryan
expressway.
Flora Johnson, defendant's wife, testified at trial and
stated that she had known Jackson her whole life. On May 7, 1995,
Johnson called Jackson to go to church with her and defendant, as
they usually did. When Jackson did not answer her phone or door,
Johnson asked a neighbor to call the police. The police arrived
and discovered Jackson's body. Johnson and defendant went to the
police station to provide information. It was in the course of
this visit that defendant confessed.
Rebecca Jones and James Williams, the two people who had
been present in Jackson's home when defendant came to borrow
money from Jackson, both testified at trial. They corroborated
defendant's version of events that defendant called and visited
Jackson twice while they were there. Jones and Williams left
Jackson's home at 1:15 a.m., and Williams spoke to Jackson on the
phone around 2:15 or 2:30 a.m. for a couple of minutes.
Detective Ted Przepiora, who investigated Jackson's home
following the discovery of her body, testified that, in examining
the rear of Jackson's residence, he noticed that the outside
storm door had damage and pry marks to the boltlock area and that
the frame or strike plate of the door was damaged. The inner
wooden door had a shattered glass plate and tool marks around the
lock area. It was the detective's opinion that the force exerted
on the door had come from the inside and not the outside.
Detective Przepiora then entered the home and walked into
the rear bedroom of the house, where he found Jackson lying along
her bed against the south wall of her bedroom. Her right arm was
across the bed and a bloody telephone was lying beside her. A
telephone wire was around her head area. There was a gaping
wound to her throat and trauma about her face. The bed was
soaked with blood and there were several blood spatterings about
the west and north walls. A screwdriver was discovered in the
doorway to the bedroom. On the dresser was an open purse, but
there was no money inside.
The pathologist's findings were entered into evidence via a
stipulation. The pathologist would testify that it was his
opinion that Jackson died of massive bleeding due to an incised
wound of the neck involving the left carotid artery, the left
jugular vein and the left superior thyroid artery and vein. The
pathologist could not reach an opinion as to whether the victim
was conscious or unconscious at the time of that injury, but it
was his opinion that she was alive when the fatal injury was
inflicted.
The trial court found defendant guilty on all counts and the
case proceeded to sentencing where the trial court found
defendant eligible for the death penalty. After hearing
aggravating and mitigating evidence, defendant was sentenced to
life imprisonment for his murder conviction, an extended term of
60 years for his home invasion conviction and 30 years for his
armed robbery conviction.
We affirm in part and vacate in part.
ANALYSIS
I
Defendant first contends that the trial court erred in
imposing an extended term for home invasion where the trial court
had already imposed an "extended term" for first degree murder,
which was the most serious offense for which he was convicted.
Defendant has waived review of this issue because he failed to
object during the sentencing hearing and failed to file a timely
post sentencing motion. People v. Reed, 177 Ill. 2d 389, 393,
686 N.E.2d 584(1997). However, we believe the issue warrants
review under the doctrine of plain error. 134 Ill. 2d R. 615(a);
People v. Askew, 273 Ill. App. 3d 798, 806, 652 N.E.2d 1041
(1995) ("The erroneous imposition of an extended-term sentence on
a defendant affects his fundamental right to liberty").
Defendant argues that since murder was the most serious
offense of which he was convicted, his extended-term sentence of
60 years for home invasion was error.
Section 5--8--2 of the Unified Code of Corrections (Code)
provides:
" 5-8-2. Extended Term. (a) A judge shall not
sentence an offender to a term of imprisonment in excess of
the maximum sentence authorized by Section 5-8-1 for the
class of the most serious offense of which the offender was
convicted unless the factors in aggravation *** were found
to be present. Where the judge finds that such factors were
present, he may sentence an offender to the following:
(1) for first degree murder, a term shall be not less
than 60 years and not more than 100 years." 730 ILCS 5/5-8-2
(West 1994).
Generally, under this statute, a defendant who is convicted of
multiple offenses of varying classifications can receive an
extended term for only the most serious offense of which the
defendant was convicted. People v. Jordan, 103 Ill. 2d 192, 206,
469 N.E.2d 569 (1984). However, Illinois courts have disagreed
on whether the statute prohibits extended-term sentences in
situations when an indeterminate sentence such as natural life
imprisonment is imposed, since a sentence of life imprisonment
cannot be extended under section 5-8-2(a)(1). E.g., compare
People v. Young, 124 Ill. 2d 147, 529 N.E.2d 497 (1988), to
People v. Henderson, 142 Ill. 2d 258, 568 N.E.2d 1234 (1990). In
Young, the supreme court held that an extended term may be
imposed for the most serious conviction other than murder where a
defendant is convicted of multiple offenses and life imprisonment
is imposed for murder. Young, 124 Ill. 2d at 162. The supreme
court explained that the authorization in section 5-8-2 to impose
an extended-term sentence applies only to sentences of
imprisonment involving terms of years. Since a natural life
sentence is not a term of imprisonment and does not involve a
fixed term of years, the authorization in section 5-8-2 to impose
an extended-term sentence does not apply to a sentence of natural
life. Young, 124 Ill. 2d at 164. Thus, an extended term may be
imposed for the most serious conviction other than murder where
the defendant is sentenced to life imprisonment.
However, in People v. Henderson, 142 Ill. 2d 258, 568 N.E.2d 1234, without mentioning Young and with no discussion,
whatsoever, the supreme court construed section 5-8-2 to require
that the defendant's extended-term sentence for aggravated
criminal sexual assault be reduced to a non extended term in
light of the defendant's death sentence for his murder
conviction. The court stated that since "murder was the most
serious offense of which defendant was convicted," "[t]he
sentencing judge *** erred in imposing [the] extended-term
sentence." Henderson, 142 Ill. 2d at 332-33.
Thereafter, in People v. Askew, 273 Ill. App. 3d 798, 652 N.E.2d 1041 (1995), this court noted that the result in Henderson
could not be reconciled with the reasoning in Young and assumed
that Henderson implicitly overruled Young. Askew, 273 Ill. App.
3d at 807. The Askew court chose to follow the decision in
Henderson and reduced a defendant's extended-term sentence for
armed robbery because, in light of the defendant's sentence to
natural life for murder, it was not the most serious offense for
which he was convicted. Askew, 273 Ill. App. 3d at 807. See
also (First District Appellate Court vacated extended-termPeople
v. Maxson, 285 Ill. App. 3d 585, 673 N.E.2d 1110 (1996) sentence
for aggravated criminal sexual assault because defendant had also
been sentenced to natural life for first degree murder.)
However, despite the supreme court's holding in Henderson, the
Second District Appellate Court chose to follow Young, finding it
well reasoned. People v. Simpson, 286 Ill. App. 3d 1034, 1040,
678 N.E.2d 74 (1997).
In the instant case, the State argues that this court should
also return to the precedent established in Young. We decline to
do so and choose to follow the precedent established in this
district in Askew and Maxson. Accordingly, we reduce defendant's
60-year sentence for home invasion to 30 years, the maximum
sentence authorized for a Class X felony under section 5/5--8--
1(a)(3) of the Code. 730 ILCS 5/5--8--1(a)(3) (West 1994). See
People v. Askew, 273 Ill. App. 3d at 807.
II
Defendant next contends that the trial court exceeded the
statutorily permissible maximum sentence for an extended term for
first degree murder by sentencing defendant to natural life
where, under section 5-8-2(a)(1) of the Unified Code of
Corrections, the maximum allowable extended-term sentence for
murder is 100 years. 730 ILCS 5/5-8-2(a)(1) (West 1994).
Defendant points to comments made by the trial court at
sentencing and argues that the court was mistaken as to the
allowable maximum sentence. At the sentencing hearing, the trial
court stated in relevant part:
"[A]s to count one, intentional murder, because the
Court finds that the conduct of the defendant in taking the
life in this case of Ms. Jackson, that it will be the
judgment of this Court that the defendant is eligible to be
sentenced for an extended term, because his conduct was
indicative -- was heinous and brutal, indicative of wanton
cruelty, and the Court will impose therefore a sentence of
life imprisonment as to the crime of first degree murder."
Defendant has also failed to preserve this issue for review.
However, even if the issue were not waived, it is our view that
the trial court did not err.
A misunderstanding of the minimum sentence by the trial
judge necessitates a new sentencing hearing only when it appears
that the mistaken belief of the judge arguably influenced the
sentencing decision. People v. Eddington, 77 Ill. 2d 41, 48, 394 N.E.2d 1185 (1979). The Eddington standard applies to cases in
which the trial court mistakenly believed that a defendant was
eligible for an extended-term sentence. People v. Hurley, 277
Ill. App. 3d 684, 687, 661 N.E.2d 460 (1996), citing People v.
White, 114 Ill. 2d 61, 68, 499 N.E.2d 467 (1986) and People v.
Fletcher, 156 Ill. App. 3d 405, 415, 509 N.E.2d 625 (1987). In
considering whether a mistaken belief influenced the trial
court's sentencing decision, courts look to whether the trial
court's comments show that the court relied on the mistaken
belief or used the mistaken belief as a reference point in
fashioning the sentence. See Eddington, 77 Ill. 2d at 48; see
also People v. Connor, 82 Ill. App. 3d 652, 661, 402 N.E.2d 862
(1980); People v. Musial, 90 Ill. App. 3d 930, 935, 414 N.E.2d 63
(1980).
In the instant case, in evaluating the case for sentencing
purposes, the trial court stated that defendant was eligible for
an extended term but then sentenced defendant to a term of
natural life, which is not an extended term. See 730 ILCS 5/5-8-
2(a)(1)(West 1994)(extended term for murder is 100 years).
However, there is no indication in the record that the trial
court mistakenly believed that natural life is an extended term
for murder or used such a belief as a point of reference in
sentencing defendant. Rather, the trial court's specific
delineation of the factors that authorize a sentence of natural
life imprisonment for first degree murder indicates that the
trial court understood the law and properly applied it. Thus,
the record does not support a conclusion that the sentence was a
product of a mistaken belief by the trial court or that the trial
court was unaware of the correct sentencing parameters.
Defendant cites People v. Hausman, 287 Ill. App. 3d 1069,
679 N.E.2d 867 (1997), which we believe is distinguishable. In
Hausman, the appellate court vacated defendant s sentence and
remanded for a new sentencing hearing when the trial court told
the defendant that he would receive the minimum sentence of three
years. The minimum sentence was in fact two years. Hausman, 287
Ill. App. 3d 1069 at 1071. In the case sub judice, however, the
trial court did not fail to follow statutory guidelines and did
not impose a sentence that was impermissible under the statute.
III
Defendant also challenges the sufficiency of the evidence to
support his conviction for armed robbery. He first argues that
the evidence established that he did not use a weapon in the
taking of any property and any force that he did use was not
utilized to further the goal of taking Jackson's property.
Defendant also maintains that he was not proven guilty of armed
robbery beyond a reasonable doubt because there was no evidence
corroborating the offense apart from his statement. We believe
defendant was properly found guilty beyond a reasonable doubt of
armed robbery.
The standard of review is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Saunders, 235
Ill. App. 3d 661, 671, 601 N.E.2d 1038 (1992). After carefully
reviewing the record, we believe a rational trier of fact could
have found defendant guilty of armed robbery beyond a reasonable
doubt. The offense of armed robbery requires proof that the
defendant was armed with a dangerous weapon at the time the
robbery was committed. People v. Hampton, 149 Ill. 2d 71, 87,
594 N.E.2d 294 (1992). The gist of armed robbery is simply the
taking of another's property by force or threat of force. People
v. Lewis, 165 Ill. 2d 305, 338, 651 N.E.2d 76 (1995). However,
as long as there is some concurrence between the defendant's
threat of force and the taking of the victim's property, a
conviction for armed robbery is proper. Lewis, 165 Ill. 2d at
339; People v. Strickland, 154 Ill. 2d 489, 524, 609 N.E.2d 1366
(1992); People v. Wilson, 254 Ill. App. 3d 1020, 1059, 626 N.E.2d 1282 (1993). Furthermore, convictions for armed robbery will be
upheld on review when the defendant's use of threat or force and
the taking are found to be a series of continuous acts. See
Strickland, 154 Ill. 2d at 497; Wilson, 254 Ill. App. 3d at 1059;
see also People v. Saunders, 235 Ill. App. 3d 661, 601 N.E.2d 1038 (1992).
In Wilson, defendant grabbed a police officer's gun during a
traffic stop and shot the officer in the head. Then he shot
another police officer who was also at the scene. He then told
his co defendant to grab the other officer's gun and they drove
away. On appeal, the defendant argued that he was not proven
guilty of armed robbery because the evidence did not establish
that he was armed when he took the officer's gun or that he used
force to cause either officer to relinquish possession of his
gun. Wilson, 254 Ill. App at 1059. The appellate court rejected
defendant's argument and found that the initial taking of the gun
was by force and against the officer's will and that defendant
was able to keep the officer's gun by putting an end to any
possible resistance by the officer by use of the weapon. The
court upheld the conviction after concluding that the offenses of
armed robbery and murder were a single series of continuous acts.
254 Ill. App. at 1059.
In Saunders, the defendant attacked his victim, stabbed her
in the neck with a knife, and then took $700 from the victim's
apartment. The appellate court concluded that it made no
difference whether the defendant took the money after the victim
was dead or "whether the purpose of using force [against the
victim] was as a means to kill," because the initial attack was
provoked because of money, and force was used as a means to take
the money. Therefore, the court stated, there was the necessary
concurrence between the defendant's use or threat of force and
his taking of the money to sustain the conviction. Saunders, 235
Ill. App. 3d at 672.
Similarly, in the instant case, defendant rendered Jackson
unconscious when he pushed her and took money when he left her
house. It was not until he returned to Jackson's house that he
used a weapon, the box cutter, which he used to cut Jackson s
throat. However, he was able to keep Jackson's money and carry
it away by putting an end to any possible resistance by Jackson
by use of the box cutter. Therefore, there was a necessary
concurrence between the use of force and the taking because the
robbery and the murder were a single series of continuous acts.
Defendant also argues that there was insufficient evidence
admitted at trial to corroborate his statement and the corpus
delicti of the offense. However, we conclude that there was
sufficient independent evidence to corroborate the circumstances
related in defendant's confession relative to his conviction for
armed robbery.
The corpus delicti rule requires only that the evidence
apart from the defendant's confession tend to show that a crime
was committed; the independent evidence need not establish the
crime beyond a reasonable doubt. People v. Furby, 138 Ill. 2d 434, 450, 563 N.E.2d 421 (1990). There is no requirement that
the independent evidence and the details of the confession
correspond in every particular. Furby, 138 Ill. 2d at 451. What
is necessary are facts or circumstances independent of the
confession and consistent therewith that tend to confirm and
strengthen the confession. Furby, 138 Ill. 2d at 452.
Furthermore, the corpus delicti may be proved by circumstantial
evidence. People v. Lee, 222 Ill. App. 3d 436, 441, 584 N.E.2d 185 (1991).
Here, the scene discovered by Detective Przepiora
corresponded to the events described by defendant in his
confession. Przepiora found that the outside storm door to the
rear door of the home had damage and pry marks consistent with
the damage defendant described doing with the chisel.
Furthermore, Przepiora found Jackson in her bedroom where
defendant stated that she fell. Przepiora found a purse in
Jackson's bedroom, but there was no money in it. Finally, the
testimony of Rebecca Jones and James Williams corroborated
defendant's version of the events relative to his visits to
Jackson for money on the night of the incident. The testimony of
these witnesses relative to the time of the occurrence and the
condition of the premises corroborated a number of circumstances
related in defendant's confession. We therefore conclude that
the record contains sufficient proof of the corpus delicti of
defendant s conviction for armed robbery.
IV
Defendant also argues that he was not proven guilty beyond a
reasonable doubt of home invasion because he was voluntarily
admitted to Jackson s home and because the evidence established
that he did not have a prior intent to commit a crime at the time
of his entry. We disagree.
When a defendant comes to a private residence and is invited
in by the occupant, the authorization to enter is limited and
criminal actions exceed this limited authority. People v.
Peeples, 155 Ill. 2d 422, 487, 616 N.E.2d 294 (1993). However,
where the defendant enters with an innocent intent, that entry is
authorized and criminal actions thereafter engaged in by the
defendant do not change the status of the entry. People v. Bush,
157 Ill. 2d 248, 254, 623 N.E.2d 1361 (1993). Thus, the
determination of whether an entry is unauthorized depends on
whether the defendant possessed the intent to perform a criminal
act therein at the time of entry. Bush, 157 Ill. 2d at 254.
There is no dispute that Jackson authorized defendant's
initial entry into her home before he inflicted her initial
injuries. However, defendant's second entry into Jackson's home
was not authorized. Jackson was unconscious when defendant
returned to her home at 5 a.m. In his confession, defendant
stated that he went to Jackson's home with a chisel that he had
taken from his home in order to make it look as if someone broke
into Jackson's home. Defendant then entered Jackson's home
through the back door. Thus we believe that it was reasonable
for the trial court to infer from the facts presented at trial,
particularly the fact that defendant took a chisel with him on
his last visit to Jackson's home, that defendant had the
requisite intent to commit a criminal act when he entered
Jackson's home at 5 a.m. See People v. Hopkins, 229 Ill. App.
3d 665, 672, 593 N.E.2d 1028 (1992) (the State can prove a
defendant's intent by inferences drawn from his conduct and from
surrounding circumstances).
V
Defendant complains that the trial court abused its
discretion in sentencing him to natural life. Section 5-8-
1(a)(1)(b) of the Unified Code of Corrections authorizes a
sentence of natural life imprisonment for a first degree murder
that is "accompanied by exceptionally brutal or heinous behavior,
indicative of wanton cruelty." 730 ILCS 5-8-1(a)(1)(b) (West
1994). Our review of the record indicates that defendant failed
to raise this issue during sentencing or in a postsentencing
motion; therefore, the issue is waived on appeal. However,
assuming that the issue was not waived, we believe the evidence
here was sufficient to establish that defendant s killing of
Jackson, an elderly woman, was exceptionally brutal or heinous so
as to sustain his sentence. The evidence indicated that Jackson
was unarmed and defenseless. See People v. Saunders, 235 Ill.
App. 3d 661, 673, 601 N.E.2d 1038 (1992). Furthermore, the
evidence indicates that defendant cut Jackson's throat with a box
cutter while she lay unconscious. Accordingly, we believe that
the evidence supports defendant's sentence to natural life since
the murder in the instant case of an elderly woman by beating and
stabbing was heinous behavior indicative of wanton cruelty.
VI
Relying on People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996), defendant finally argues that the trial court erred
when it gave him credit for time spent in jail only as to one of
his sentences and not as to all. Defendant therefore contends
that he is entitled to an additional 882 days of sentence credit
because he was sentenced to three consecutive terms of
imprisonment and had been in custody prior to trial on all three
offenses for a total of 441 days. Defendant has waived this
issue for review. However, we will address this issue under the
doctrine of plain error.
Section 5-8-4(e)(4) of the Unified Code of Corrections
(Code) provides, in pertinent part:
"In determining the manner in which consecutive sentences of
imprisonment *** will be served, the Department of
Corrections shall treat the offender as though he had been
committed for a single term with the following incidents:
* * *
(4) the offender shall be awarded credit against the
aggregate maximum term and the aggregate minimum term of
imprisonment for all time served in an institution since the
commission of the offense or offenses ***." 730 ILCS 5/5--
8--4(e) (West 1994).
Under this section, consecutive sentences are treated as though
they were a single term for the limited purpose of parole
eligibility and good time credit. People v. Cunitz, 59 Ill. App.
3d 701, 705, 375 N.E.2d 1020 (1978). Prior to the supreme
court's decision in Robinson, credit was not given for those days
spent serving a prison term for a prior, unrelated offense while
awaiting custody on a current offense. Courts reasoned that,
when dealing with consecutive sentences, the second or new
sentence did not begin to run until the other had been completed,
because to give a defendant credit as to both sentences would
serve to reduce his sentence by twice the time of the defendant s
prior incarceration. People v. Pluskis, 162 Ill. App. 3d 449,
454, 515 N.E.2d 480 (1987); People v. Mata, 243 Ill. App. 3d 365,
377, 611 N.E.2d 1235 (1993); People v. Plair, 292 Ill. App. 3d
396, 686 N.E.2d 28 (1997).
However, in People v. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305, the supreme court held that a defendant in custody on two
unrelated offenses is simultaneously in custody on both charges
and should receive sentence credit pursuant to section 5--8--7(b)
of the Code for the time the defendant is in custody awaiting
trial and sentencing on both charges. Robinson, 172 Ill. 2d at
459. Section 5--8--7(b) of the Code provides that the offender
"shall be given credit on the determinate sentence *** for time
spent in custody as a result of the offense for which the
sentence was imposed." 730 ILCS 5/5--8--7(b) (West 1994). While
out on bond awaiting trial on one charge, the Robinson defendant
committed another offense and surrendered in exoneration of the
first bond. Focusing on the use of the singular form of the
words "sentence" and "offenses" in section 5--8--7(b), the
supreme court concluded that the defendant was in simultaneous
custody on both offenses and held that, under section 5--8--7(b),
he was entitled to in-custody credit for each of his offenses.
Robinson, 172 Ill. 2d at 463.
The Second District Appellate Court, in People v. Johnson,
286 Ill. App. 3d 597, 676 N.E.2d 1040 (1997), appeal denied, 173 Ill. 2d 536 (1997), followed the holding in Robinson and awarded
a defendant separate credit against each of his consecutive
sentences. Johnson, 286 Ill. App. 3d at 768. But the Fourth
District Appellate Court, in Feazell v. Washington, 291 Ill. App.
3d 766, 684 N.E.2d 1052 (1997), disagreed with the holding in
Johnson and found Robinson distinguishable. The Feazell court
stated in relevant part:
"Determinations of the manner in which consecutive sentences
are to be imposed are encompassed by section 5--8--4(e) of
the Code. * * *
*** Since Robinson does not entail the imposition of
consecutive sentences pursuant to section 5--8--4(e) of the
Code, we find it inapplicable here. The precedential scope
of a decision is limited to its facts. [Citation.]" Feazell,
291 Ill. App. 3d at 768.
Thereafter, in People v. Plair, 292 Ill. App. 3d 396, 686 N.E.2d 28 (1997), the Fifth District Appellate Court also chose not to
follow Johnson in its interpretation of Robinson and concluded
that Robinson did not address the issue of consecutive sentences.
292 Ill. App. 3d at 401, 686 N.E.2d at 32. See also People v.
Biggs, No. 1-96-2043 (January 23, 1998).
We agree with the Fourth and Fifth District Appellate Courts
and also with Biggs, a recent first district opinion, and find
Robinson distinguishable. Moreover, we reemphasize that neither
Robinson nor Johnson makes reference to the consecutive
sentencing provisions of 5--8--4(e) of the Code. We do not
believe a defendant should receive credit for double the amount
of time served by converting much of a consecutive sentence into
a concurrent one. See Plair, 292 Ill. App. 3d at 401, 686 N.E.2d
at 33. Therefore, we hold that defendant is entitled to only a
single credit for time served of 441 days.
For the foregoing reasons, we affirm in part and vacate in
part.
Affirmed in part and vacated in part.