People v. Robinson

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

No. 79511--Agenda 3--January 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. FRANK ROBINSON
et al., Appellees.
Opinion filed June 20, 1996.


JUSTICE McMORROW delivered the opinion of the court:
The question presented in this appeal is whether a defendant
who, while out on bond awaiting trial on one charge, commits
another offense and serves a sentence for it, is "simultaneously in
custody on two charges" and therefore is entitled, under section 5-
-8--7(b) of the Unified Code of Corrections (730 ILCS 5/5--8--7(b)
(West 1992)), to in-custody credit for time served in prison for
the sentences he received on both charges. The first district of
the appellate court answered this question affirmatively. 273 Ill.
App. 3d 1069. We allowed the State's petition for leave to appeal.
155 Ill. 2d R. 315. For the reasons which follow, we affirm the
judgment of the appellate court.

Background
On September 4, 1986, the defendant, Frank Robinson, was
arrested for murder. He remained in custody for 37 days, until
October 10, 1986, when he posted a $25,000 bond and was released.
On January 16, 1988, while out on bond awaiting trial on the murder
charges, defendant was arrested for an unrelated armed robbery and
taken into custody. As a result of the armed robbery, the State
filed a petition to increase defendant's bond on the murder case.
On January 21, 1988, the court increased defendant's bond to
$500,000. Defendant surrendered in exoneration of his previously
posted bond and the proceeds of that bond were returned to his
attorney.
On April 17, 1991, defendant entered a guilty plea on the
armed robbery charge and was sentenced to a 6«-year term of
imprisonment. Defendant received credit against his armed robbery
sentence for the 1,187 days spent in pretrial custody between
January 16, 1988, and April 17, 1991. Because of this credit, and
additional credit earned for good conduct, defendant had completed
his sentence for armed robbery by no later than June 21, 1991.
Accordingly, on that date, defendant moved to reduce the $500,000
bond on the pending murder charges. On July 24, 1991, defendant's
bond on the murder charges was reduced to $20,000. The following
day defendant posted bond and was released. Defendant spent a total
of 1,282 days in custody from January 21, 1988, when he surrendered
in exoneration of his first bond until July 25, 1991, when he was
released on the new bond.
On February 26, 1993, the new bond was revoked when defendant
was found guilty of murder and concealment of a homicidal death.
Defendant was sentenced on April 12, 1993, to 22 years'
imprisonment for the murder and two years' imprisonment for the
concealment of a homicidal death. On May 7, 1993, a hearing was
held to determine the amount of sentence credit to which defendant
was entitled for time already spent in custody. During the hearing,
defendant argued that under section 5--8--7(b) of the Unified Code
of Corrections (730 ILCS 5/5--8--7(b) (West 1992)) he was entitled
to receive credit for the entire 1,282 days spent in pretrial
custody between January 21, 1988, and July 25, 1991. Section 5--8--
7(b) provides, in pertinent part, that an offender be given credit
on his 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
1992).
The circuit court concluded that because the period from January
21, 1988, to April 17, 1991, had been credited towards defendant's
armed robbery sentence, defendant was not entitled to have that
same period of time credited towards his murder sentence. The
circuit court determined, however, that defendant was entitled to
258 days of in-custody credit. Defendant was awarded 37 days'
credit for the time spent in custody from September 4, 1986, the
date of his arrest on the murder charge, to October 10, 1986, the
date when he posted the first bond; 71 days' credit for the time
spent in custody from February 26, 1993, the date that the second
bond was revoked upon conviction, to May 7, 1993, the date of the
hearing to determine sentence credit; and 150 days' credit in
recognition of defendant's good behavior during the trial
proceedings.
Defendant sought review of the circuit court's decision in the
appellate court, arguing, inter alia, that he was entitled to
sentence credit for the entire 1,282 days between January 21, 1988,
and July 25, 1991. The appellate court agreed that defendant should
be awarded the sentence credit. Relying on the definition of
custody provided by this court in People v. Arnhold, 115 Ill. 2d 379 (1987), the appellate court concluded that when defendant
surrendered in exoneration of the first bond on January 21, 1988,
he was thereafter in simultaneous custody on the armed robbery
charge and the murder charges. Therefore, according to the plain
terms of section 5--8--7(b), he was entitled to credit on the
murder sentence for the 1,282 days spent in custody prior to his
release on July 25, 1991. The State's appeal followed.

Analysis
This court's primary objective when construing the meaning of
a disputed statute is to ascertain and give effect to the intent of
the legislature. People v. Zaremba, 158 Ill. 2d 36, 40 (1994). The
most reliable indicator of legislative intent is the language of
the statute itself. People v. Tucker, 167 Ill. 2d 431, 435 (1995).
The statutory language must be given its plain and ordinary meaning
(People v. Bole, 155 Ill. 2d 188, 197 (1993)), and where that
language is clear and unambiguous, we must apply the statute
without further aids of statutory construction (Bole, 155 Ill. 2d
at 198). Further, as a general matter, any ambiguities in a
criminal statute must be resolved in favor of the defendant. People
v. Foster, 99 Ill. 2d 48, 55 (1983). Because the construction of a
statute is a question of law, our review is de novo. Vuletich v.
United States Steel Corp., 117 Ill. 2d 417, 421 (1987).
Our appellate court has split over the question presented in
the instant appeal. The first, second and fifth districts have
concluded that under section 5--8--7(b) a defendant is entitled to
sentence credit for time spent in custody as a result of a failure
to post bond, regardless of whether the defendant also receives
credit for that time against a sentence on a separate offense. See
People v. Robinson, 273 Ill. App. 3d 1069 (1st Dist. 1995); People
v. Tedford, 112 Ill. App. 3d 603 (2d Dist. 1983); People v.
Higgerson, 157 Ill. App. 3d 564 (5th Dist. 1987). The third and
fourth districts, however, have construed section 5--8--7(b) more
narrowly. Those districts have determined that section 5--8--7(b)
entitles a defendant to in-custody credit only when the period of
incarceration has not been credited towards another sentence. See
People v. Uran, 196 Ill. App. 3d 293 (3d Dist. 1990); People v.
Jones, 241 Ill. App. 3d 262 (4th Dist. 1993).
Defendant urges us to follow the line of decisions from the
first, second and fifth districts. Defendant argues that the only
condition in section 5--8--7(b) which limits its application is the
requirement that the offender be "in custody" on the relevant
offense. Defendant further maintains that any ambiguity with
respect to the basis of his custody from January 21, 1988, to April
17, 1991, is resolved by this court's decision in Arnhold.
According to defendant, Arnhold supports his contention that he was
in simultaneous custody on the armed robbery and murder offenses
after he surrendered in exoneration of the first bond on January
21, 1988. Thus, defendant argues that he satisfied the only
limiting condition in section 5--8--7(b) and is therefore entitled
to the 1,282 days of sentence credit against his murder sentence.
We agree that Arnhold clarifies the basis of defendant's
custody from January 21, 1988, through April 17, 1991. In Arnhold,
the defendant was arrested on one offense, released on bond, and
then arrested on a second, unrelated offense. Approximately one
month later he withdrew his bond on the first offense and, shortly
thereafter, filed a motion to dismiss the charges on the first
offense based on an alleged violation of his right to a speedy
trial. The defendant argued that the period of time between his
arrest and incarceration on the second offense and his withdrawal
of the bond should have been calculated as time spent "in custody"
under the speedy-trial statute (Ill. Rev. Stat. 1979, ch. 38, par.
103--5(a)). Thus, the issue before the court was "whether a
defendant who is out on bond on one charge and who is subsequently
arrested and taken into custody on a second charge is automatically
returned to custody on the first charge." Arnhold, 115 Ill. 2d at
383. In addressing this issue, the court determined that it could
not "ignore the reality of the distinction between being in custody
and being on bond." Arnhold, 115 Ill. 2d at 383. Even though the
defendant was physically incarcerated when he was arrested on the
second offense, at that point, his bond on the initial charges
remained in effect. Accordingly, the court concluded that when a
defendant is out on bond on one offense and is subsequently
arrested on a second offense, that defendant is returned to custody
on the first offense when his bond is withdrawn or revoked.
Arnhold, 115 Ill. 2d at 383. When that event occurs, the defendant
is then considered to be in simultaneous custody on both charges.
Arnhold, 115 Ill. 2d at 384.
We believe Arnhold's analysis of the general custody issue is
applicable here. Consistent with the reasoning of Arnhold, we
believe that we must acknowledge the reality of defendant's
surrendering in exoneration of his first bond. Even if defendant
had not been incarcerated on the armed robbery charge, he would
have remained in custody on the murder offense as a result of his
failure to post bond. See Higgerson, 157 Ill. App. 3d at 566-67. In
the case at bar, defendant's first bond was effectively withdrawn
or revoked when it was raised to $500,000 on January 21, 1988.
Therefore, we hold that once defendant surrendered in exoneration
of the first bond he was no longer in custody solely on the armed
robbery charge; rather, he was simultaneously in pretrial custody
on both the armed robbery charge and the murder charges.
During oral argument, the State conceded that defendant was in
custody on the murder charges when he surrendered in exoneration of
his first bond. However, the State argued that regardless of
whether defendant was in custody, he should not receive the entire
1,282 days of sentence credit. The State maintains that to award
defendant the sentence credit would violate the legislative intent
behind section 5--8--7(b) to allow in-custody credit only where the
period of incarceration has not been credited against another
sentence. The State contends that evidence of this legislative
intent can be found in the use of the singular form of the words
"sentence" and "offense" in section 5--8--7(b)'s requirement that
an offender receive credit against his sentence for "time spent in
custody as a result of the offense for which the sentence was
imposed." In addition, the State argues that further evidence of
the legislative intent to limit in-custody credit to a single
sentence under section 5--8--7(b) can be seen in the language of
section 5--8--7(c). We disagree.
The use of the singular form of the words "sentence" and
"offense" in section 5--8--7(b), rather than the plural, does not
evince a legislative intent to limit in-custody credit to a single
sentence. If the legislature had specifically intended to include
such a limitation, a less oblique means of conveying that intent
would have been employed. See, e.g., 18 U.S.C. 3585(b) (1996)
(explicitly providing that in-custody credit will be awarded only
where the period of incarceration has not been credited against
another sentence).
Similarly, the language of section 5--7--8(c) does not
establish a legislative intent to limit in-custody credit to a
single sentence under section 5--7--8(b). Section 5--8--7(c)
provides:
"An offender arrested on one charge and prosecuted
on another charge for conduct which occurred prior to his
arrest shall be given credit on the determinate sentence
or the maximum term and the minimum term of imprisonment
for time spent in custody under the former charge NOT
CREDITED AGAINST ANOTHER SENTENCE." (Emphasis added.) 730
ILCS 5/5--8--7(c) (West 1992).
Section 5--8--7(c) was adopted to "prevent the State from dropping
an initial charge and recharging a defendant with another crime,
with the intent of denying credit for time spent in jail on the
first charge." People v. Townsend, 209 Ill. App. 3d 987, 990
(1991), citing People v. Kane, 136 Ill. App. 3d 1030 (1985); see
also 730 ILCS Ann. 5/5--8--7, Council Commentary, at 1045 (Smith-
Hurd 1992). Because the initial charge against defendant was not
dropped in favor of a subsequent charge, section 5--8--7(c) is not
directly applicable to the case at bar. Further, the presence of
the phrase "not credited against another sentence" in section 5--8-
-7(c) undermines the State's argument that the same language must
be read into section 5--8--7(b). The phrase restricting in-custody
credit to time not credited against another sentence contained in
section 5--8--7(c) indicates a legislative awareness of such a
limiting condition. Thus, if the legislature had intended that the
limiting language found in section 5--7--8(c) should apply to
section 5--7--8(b), it would have been included there. See People
v. Bole, 155 Ill. 2d 188, 198 (1993) (if the legislature had
intended that the mandatory consecutive sentencing provision of
section 5--8--4(a) apply whether or not the specified offenses were
committed in a single course of conduct, it would have placed the
provision in a different part of section 5--8--4); Zaremba, 158 Ill. 2d at 40-41.
The State has not shown that the legislature intended to
restrict in-custody credit under section 5--7--8(b) to time which
has not been credited towards another sentence. Moreover, assuming,
arguendo, that the State has established that the section is
ambiguous with respect to whether defendant should receive credit
for time credited against another sentence, such ambiguity would
not necessitate denial of the sentence credit to defendant. It is
firmly established that criminal statutes must be strictly
construed in favor of the defendant. Bole, 155 Ill. 2d 188; People
v. Chandler, 129 Ill. 2d 233, 253-54 (1989). " `If a statute
creating or increasing a penalty or punishment be capable of two
constructions, undoubtedly that which operates in favor of the
accused is to be adopted.' " People ex rel. Gibson v. Cannon, 65 Ill. 2d 366, 371 (1976), quoting People v. Lund, 382 Ill. 213, 215-
16 (1943). Accordingly, even if we were to conclude that section 5-
-8--7(b) is ambiguous with respect to whether a defendant may
receive in-custody credit against two sentences, that ambiguity
must be resolved in favor of the defendant.
The State also argues that defendant's interpretation of
section 5--8--7(b) must be rejected because it inappropriately
awards defendant a "windfall" of double sentence credit. The State
maintains that it is wrong, as a matter of policy, to permit
defendant to receive credit against both of his sentences, even if
defendant was, in fact, in custody on both of his offenses.
Initially, we note that it is the legislature, and not this court,
which defines sentencing policy. It is this court's responsibility
to interpret and apply statutes in the manner in which they are
written. Indeed, if this court were to ignore the clear provisions
of a statute in favor of what it believed to constitute proper
policy, this court would be improperly engaging in judicial
lawmaking. See, e.g., Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189
(1990) (court may not depart from plain meaning of a statute by
reading into it exceptions, limitations or conditions that the
legislature did not express).
Through section 5--8--7(b) the legislature has explicitly
required that offenders receive credit against their terms of
imprisonment when they are "in custody as a result of the offense
for which the sentence was imposed." In the case at bar, the basis
of defendant's custody from January 21, 1988, through April 17,
1991, may have been ambiguous. However, it is clear and unambiguous
that, other than the custody requirement, there are no additional
conditions which limit the application of section 5--8--7(b). As
this court has noted previously, "there is no rule of construction
which authorizes a court to declare that the legislature did not
mean what the plain language of the statute imports." Solich v.
George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 83 (1994); see also Bole, 155 Ill. 2d at 198-99. In the
absence of a compelling justification for doing so, we will not
judicially craft an additional limiting condition onto section 5--
8--7(b). See People v. Tucker, 167 Ill. 2d 431, 437 (1995) (court
may not rewrite statutory language under the guise of judicial
interpretation, merely because the plain language of the statute
creates, in the State's view, something of a sentencing anomaly).
We believe this court's decision in Arnhold compels the
conclusion that defendant was in simultaneous custody on the armed
robbery and murder charges when he surrendered in exoneration of
the first bond. Having determined the basis of defendant's custody,
and mindful that section 5--8--7(b) contains no further limitations
upon its application, we conclude that under the circumstances
presented here, defendant should be given the 1,282 days of
contested sentence credit.
For the foregoing reasons the judgment of the appellate court
is affirmed.

Affirmed.