People v. Bennett

Nos. 2--95--0231, 2--94--1411 cons.
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lee County.
)
Plaintiff-Appellee, )
) Nos. 93--TR--5588
v. ) 94--CF--0077
)
JOHN L. BENNETT, ) Honorable
) Thomas E. Hornsby,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE INGLIS delivered the opinion of the court:

Defendant, John L. Bennett, appeals the judgment of the
circuit court of Lee County denying his petitions for habeas corpus
and mandamus. We affirm.
On September 25, 1993, defendant was charged with driving
while under the influence of alcohol (625 ILCS 5/11--501(a)(2)
(West 1994)) and driving with a breath-alcohol concentration of
0.10 or more (625 ILCS 5/11--501(a)(1) (West 1994)), both
misdemeanors. On October 1, 1993, in a separate case, he was
charged with driving while driver's license revoked (625 ILCS 5/6--
303(d) (West 1994)), a felony. On September 6, 1994, defendant
pleaded guilty to driving with a breath-alcohol concentration of
0.10 or more (625 ILCS 5/11--501(a)(1) (West 1994)) and driving
while license revoked (625 ILCS 5/6--303(d) (West 1994)). He was
sentenced to 364 days' imprisonment on the misdemeanor conviction
and to 18 months' imprisonment on the felony conviction, the
sentences to be served concurrently. Defendant's felony sentence
was completed on November 30, 1994, after the appropriate good-time
and time-served credits were applied, and he was placed on
mandatory supervised release. Defendant was returned to the Lee
County jail to serve the remaining three months of his misdemeanor
sentence.
Defendant immediately filed an emergency petition for writs of
habeas corpus and mandamus, seeking an immediate release because of
the completion of his felony sentence. Defendant argued that the
sentences were merged, so that the completion of the felony
sentence would extinguish any remaining time on the misdemeanor
sentence. The trial court denied the petition on December 1, 1994.
That same day, defendant filed a motion for diminution of sentence,
which was also denied. Defendant appealed from the denial of the
petition and the motion for diminution.
On December 12, 1994, defendant filed a motion for
reconsideration of the petition and of the motion for diminution,
which was denied. Defendant filed a notice of appeal of these
rulings on January 12, 1995, one day late. His motion to file a
late notice of appeal was granted, and the appeal was consolidated
with the other timely appeal.
Defendant presents a single issue for review. He argues that
he was denied equal protection and due process of the law because
he is required to serve more prison time than someone who had
received the same sentences for the same conduct, but already
happened to be serving the misdemeanor sentence. Accordingly,
defendant urges this court to declare section 5--8--4(d) of the
Unified Code of Corrections (Code) (730 ILCS 5/5--8--4(d) (West
1994)) unconstitutional.
As an initial matter, we note that defendant raises his
constitutional challenge to the merger provision for the first time
on appeal. Defendant has not waived the issue by failing to raise
it in the trial court, however, as a constitutional challenge to a
statute may be raised at any time, including on appeal. People v.
Bryant, 128 Ill. 2d 448, 454 (1989).
We turn first to the statutory scheme defendant complains of
in order to understand his contentions. Section 5--8--4(d) of the
Code provides that "[a]n offender serving a sentence for a
misdemeanor who is convicted of a felony and sentenced to
imprisonment shall be transferred to the Department of Corrections,
and the misdemeanor sentence shall be merged in and run
concurrently with the felony sentence." 730 ILCS 5/5--8--4(d)
(West 1994). Thus, merger occurs only when the offender is already
serving his or her misdemeanor sentence, and not when the offender
is simultaneously sentenced to felony and misdemeanor sentences.
See People v. Winslow, 258 Ill. App. 3d 327, 330 (1994); People v.
Betts, 246 Ill. App. 3d 84, 86 (1993). The merger provision is
significant because good-time credits are accrued differently for
felons than misdemeanants. Felons receive one day of good-conduct
credit for each day of service in prison, and they may receive an
award of up to 180 days of good-conduct credit for meritorious
service. 730 ILCS 5/3--6--3(a)(2), (a)(3) (West 1994).
Misdemeanants receive only one day of good-behavior allowance for
each day served in the county jail. 730 ILCS 130/3 (West 1994).
In defendant's case, he served 3 months of his 18-month felony
sentence. Defendant therefore received the maximum amount of good-
conduct credit and the 180-day meritorious service award. The
three months served in the Department of Corrections accrued only
three months of good-behavior allowance for his misdemeanor
sentence, leaving defendant with at least three months left to
serve.
An equal protection claim is analyzed in the same fashion
under both the United States and Illinois Constitutions. Jacobson
v. Department of Public Aid, 171 Ill. 2d 314, 322 (1996). The
threshold inquiry for an equal protection claim is whether
similarly situated people are being treated dissimilarly. People
v. Burton, 100 Ill. App. 3d 1021, 1023 (1981). Defendant defines
himself to be "similarly situated to someone who has his sentences
merged after being convicted of the same separate offenses and
given the identical individual sentences." Defendant contends that
the operation of the merger provision (730 ILCS 5/5--8--4(d) (West
1994)) results in dissimilar treatment between the two classes, as
one in defendant's position must serve more actual prison or jail
time than one whose sentences have been merged. We find that
defendant has failed to establish the existence of such dissimilar
treatment as a result of the operation of the merger provision (730
ILCS 5/5--8--4(d) (West 1994)).
The merger provision (730 ILCS 5/5--8--4(d) (West 1994)) does
not mandate that an offender with nonmerged concurrent misdemeanor
and felony sentences will automatically serve more time than an
offender with merged sentences. If, as an example, an offender
received a 2-year felony sentence and a 364-day misdemeanor
sentence, then both the merged and nonmerged offenders would serve
6 months in prison, assuming maximum good-time credits. Therefore,
the merger provision (730 ILCS 5/5--8--4(d) (West 1994)) does not
cause the dissimilarity defendant complains of, but rather, such
difference is due to the actual terms of the sentences he received.
Thus, defendant has failed to demonstrate any dissimilar treatment
in the operation of the merger provision (730 ILCS 5/5--8--4(d)
(West 1994)) sufficient to state an equal protection claim.
Even if defendant's proposed classification were subject to
dissimilar treatment, his equal protection claim is nevertheless
unavailing. For a court to engage in any manner of equal
protection review of a statute, the challenging party must show
that the statute classifies persons in some manner. People v.
Wegielnik, 152 Ill. 2d 418, 429 (1992). The merger provision does
not create any classification on its face. Rather, it is a neutral
law that may have a disparate impact on persons based on the timing
of their sentences. "Therefore, to present a cognizable equal
protection claim, the defendant must show that the statute was
enacted for a discriminatory purpose." Wegielnik, 152 Ill. 2d at
429.
In order to establish that a facially neutral law was enacted
for a discriminatory purpose, the challenging party "must show that
the legislature selected a course of action not merely 'in spite
of' its disparate impact on an identifiable group, but because of
an anticipated discriminatory effect." (Emphasis in original.)
Wegielnik, 152 Ill. 2d at 429, quoting McCleskey v. Kemp, 481 U.S. 279, 298, 95 L. Ed. 2d 262, 282, 107 S. Ct. 1756, 1770 (1987).
Here, defendant has presented no evidence, nor even alleged, that
the legislature enacted the merger provision of the Code because it
would discriminate against offenders whose misdemeanor and felony
sentences were not merged. We therefore reject defendant's equal
protection claim.
Defendant also claims that the merger provision violates due
process. Defendant contends that due process is violated because
the merger provision (730 ILCS 5/5--8--4(d) (West 1994)) is not
" 'reasonably designed to remedy the evils which the legislature
has determined to be a threat to the public health, safety and
general welfare.' " People v. Bradley, 79 Ill. 2d 410, 417 (1980),
quoting Heimgaertner v. Benjamin Electric Manufacturing Co., 6 Ill. 2d 152, 159 (1955). Defendant considers the purposes of the Code
as set forth in section 1--1--2 (730 ILCS 5/1--1--2 (West 1994)) to
be (1) to impose sentences in light of the seriousness of the crime
and the rehabilitative potential of the offender; (2) to prevent
arbitrariness in sentencing; and (3) to rehabilitate the offender.
According to defendant, rather than furthering these goals, the
merger provision actually hinders the statutory goals by ignoring
the rehabilitative potential of offenders. Defendant contends that
those subjected to simultaneous sentencing for felonies and
misdemeanors will face the harsher penalty of having to serve more
actual time in prison. Defendant further contends that this will
lead to the neglect of an offender's rehabilitative potential as a
sentencing objective because the operation of the merger provision
will lead to a longer term of imprisonment without regard to
whether one offender deserves such a longer period of
incarceration. We reject defendant's argument.
The test for a due process claim is whether the statute is
rationally related to a legitimate State goal. People v.
Kimbrough, 163 Ill. 2d 231, 242 (1994). Defendant has failed to
show how the operation of the merger provision is not rationally
related to the State's legitimate penal goals. By essentially
repeating his argument, defendant maintains that the operation of
the merger provision will automatically require a prisoner whose
felony and misdemeanor sentences are not merged to serve more time
than one whose sentences are merged. This is simply not the case.
Thus, the merger provision does not have the effect of minimizing
the rehabilitative potential of the offender as defendant claims.
Rather, the merger provision serves the legitimate goals of
avoiding overcrowding in county jails, avoiding the piecemeal
punishment of prisoners, and aiding in their rehabilitation by
providing the offender with the goal of serving a single sentence.
People v. Singleton, 103 Ill. 2d 339, 343 (1984) (analyzing
predecessor statute substantially similar to instant statute). We
thus conclude that the merger provision is reasonably designed to
accomplish its purposes. Defendant's due process arguments are
without merit.
For the foregoing reasons, the judgment of the circuit court
of Lee County is affirmed.
Affirmed.
McLAREN, P.J., and THOMAS, J., concur.