Opinion
4-20-0215
12-06-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. QUENTIN JORDAN GETTY, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 13CF387 Honorable John Casey Costigan, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht and Justice Cavanagh concurred in the judgment.
ORDER
HARRIS, JUSTICE
¶ 1 Held: The appellate court affirmed, holding that the trial court did not err in failing to amend the judgment order to reflect that defendant was entitled to additional presentence custody credit because defendant agreed to forego this credit pursuant to a fully negotiated plea agreement.
¶ 2 Defendant, Quentin Jordan Getty, appeals the denial of his "Motion to Correct Fines and Fees Order, and to Correct Mittimus, Pursuant to Illinois Supreme Court Rule 472." Defendant argues the trial court erred in failing to enter an amended judgment order reflecting that he was entitled to additional days of presentence custody credit. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In the instant case, defendant was charged with five counts of child pornography (720 ILCS 5/11-20.1(a)(2), (a)(6), (a)(7) (West 2012)) and four counts of aggravated criminal sexual abuse (id. § 11-1.60(d)). On April 2, 2015, defendant entered a plea agreement in which he pled guilty to one count of aggravated criminal sexual abuse in exchange for a sentence of 11 years' imprisonment. The sentence was to run consecutive to a nine-year sentence that the trial court had imposed in McLean County case No. 12-CF-1153 for the offense of home invasion. The sentence was to run concurrent with sentences that had been imposed in McLean County case Nos. 13-CF-309 and 13-CF-313. After admonishing defendant and hearing a factual basis for the plea, the court accepted defendant's plea. The following exchange occurred:
"THE COURT: [Defendant], one thing we didn't openly talk about here is your credit against this sentence, and I want to make sure you understand how that works. On paper you're given credit for the time you've been in jail on this charge since March 22nd of 2013 through January 24th of 2014.
MR. GHRIST [(ASSISTANT STATE'S ATTORNEY)]: Originally that was the in-date on the home invasion.
THE COURT: Okay. So he's actually been in custody longer? MR. GHRIST: Yes.
THE COURT: You've been in custody on this charge since March 22nd of 2013. Normally you would get credit against this sentence from that day forward all the way through yesterday's date. However, because these sentences are being ordered consecutive to the home invasion charge you are only entitled to credit against that aggregate sentence, the 20 years, one time, and that period is already being credited against the armed violence. So I can't credit it, and the Department [of Corrections (DOC)] won't credit it against this sentence. Essentially, you still get credit for it in the long run, the big picture, because you get credit off of 20
years for every day you spend, you just don't get credit twice; do you understand that?
THE DEFENDANT: Yes, sir.
MR. GHRIST: If I could just add for the record, initially when we were discussing this agreement we were mistakenly counting the numbers with that credit being attached. When we realized that, that's why we changed it from 12 to 11 in fairness to account for that.
MR. BUKALSKI [(ASSISTANT PUBLIC DEFENDER)]: That's correct, Your Honor.
THE COURT: Okay. So the Court has now entered a written judgment order that sentences the defendant in accordance with the terms of this agreement***."
¶ 5 The day of the plea hearing, a document titled "Plea Agreement" was filed. The document originally stated the court would impose a maximum sentence of 12 years' imprisonment. However, the number "2" from the "12" was crossed out, and the number "1" had been written in, such that the document stated the court would impose a maximum sentence of 11 years' imprisonment. The document stated defendant would receive credit for zero days served. The document had originally stated defendant would receive credit for 309 days, but "309" was crossed out and "0" was inserted in its place.
¶ 6 That same day, a written judgment order, which was a form order, was entered. The judgment order stated that defendant was sentenced to 11 years' imprisonment. A different number, which is indecipherable, had originally been written next to "11" but was crossed out. Originally, a box had been checked on the written judgment order next to a provision for presentence custody credit, and the order had stated defendant would receive credit for 309 days served in custody from March 22, 2013, through January 24, 2014. However, the check mark next to this provision and the number "309" were crossed out. The order also indicated defendant would be required to serve 85% of his sentence.
¶ 7 On January 25, 2018, defendant, pro se, filed a motion for a corrected mittimus reflecting that he was required to serve 50% of his sentence rather than 85%. The trial court entered a new judgment order stating defendant was required to serve only 50% of his sentence. On the new judgment order, the court checked the box next to the provision for presentence custody credit and indicated defendant was entitled to credit for days served in presentence custody from March 22, 2013, through January 24, 2014.
¶ 8 On February 13, 2018, defendant filed a motion for an order nunc pro tunc. Defendant requested additional credit for days he spent in custody from the time he was sentenced in McLean County case No. 12-CF-1153 on January 24, 2014, through April 2, 2015. Defendant attached a copy of the judgment order from McLean County case No. 12-CF-1153, which indicated that he had been convicted of home invasion, sentenced to nine years' imprisonment, and given presentence custody credit for the periods of November 1 through 14, 2012, and March 27, 2013, through January 23, 2014. Defendant also attached a handwritten letter detailing the days he spent in presentence custody.
¶ 9 On May 18, 2018, the trial court entered an order granting the motion in part and denying it in part. The court stated it did not review any documents or transcripts other than the original judgment order when it previously entered an amended judgment order. The court subsequently reviewed the record more closely, including reviewing a transcript of the guilty plea hearing.
¶ 10 The trial court found defendant want not entitled to presentence custody credit because he had agreed to forego it pursuant to the plea agreement. The court stated the record showed the plea agreement was originally 12 years' imprisonment with credit for time served, but the parties agreed to change it to 11 years' imprisonment with no credit for time served. This was based on the realization that defendant had already received presentence custody credit against his sentence in McLean County case No. 12-CF-1153 and would not receive additional credit in the instant case.
¶ 11 The trial court found that even if the parties had not negotiated away the presentence custody credit, the manner in which consecutive sentences were calculated under Illinois law would support the court's finding that defendant was not entitled to credit for the period from March 22, 2013, through April 2, 2015. The court stated that, in McLean County case No. 12-CF-1153, defendant had received presentence custody credit for the period of March 27, 2013, through January 23, 2014, and he had begun serving his prison sentence on January 24, 2014. The court found that if defendant were to receive any credit for those periods in the instant case, he would be receiving impermissible double credit.
¶ 12 However, the trial court proceeded to award defendant credit for time served in custody from March 22, 2013, through March 26, 2013. The court found that this was consistent with the plea agreement because defendant was not in custody in relation to McLean County case No. 12-CF-1153 during that time. The court reasoned that defendant's waiver of presentencing custody credit was centered on the fact that he was not entitled to double credit.
¶ 13 Defendant appealed, and his appeal was dismissed on his own motion.
¶ 14 On January 21, 2020, defendant, pro se, filed a "Motion for Corrected Mittimus" requesting that the court change the wording on the mittimus concerning the age of the victim and award him additional presentence custody credit for completing a life skills program in the county jail.
¶ 15 That same day, defendant, pro se, filed a "Motion to Correct Fines and Fees Order, and to Correct Mittimus, Pursuant to Illinois Supreme Court Rule 472," which is the subject of the instant appeal. Defendant requested that the court amend the judgment order to reflect that he was in presentence custody from March 22, 2013, through April 2, 2015. (We note that, on appeal, defendant asserts that the date "April 2, 2015" was a scrivener's error, and he is only seeking credit through April 1, 2015.) In the motion, defendant asserted that when he appealed the trial court's order denying in part his prior motion to amend the mittimus, appellate counsel informed him that the judgment order should reflect all the days he was in presentence custody, even the days he was in the custody of the DOC serving sentences in other cases. Defendant asserted that appellate counsel contacted the records department of the DOC facility where he was housed and confirmed that the DOC would not consider overlapping custody dates when calculating his parole date. Defendant asserted he would not receive any double credit, and the DOC preferred that all days spent in presentence custody were listed on the judgment order. Defendant also requested that he receive per diem credit toward his applicable fines.
¶ 16 On April 29, 2020, the trial court denied defendant's "Motion for Corrected Mittimus." The court also denied defendant's "Motion to Correct Fines and Fees Order, and to Correct Mittimus, Pursuant to Illinois Supreme Court Rule 472." The court stated it had reviewed McLean County case Nos. 12-CF-1153, 13-CF-509, and 13-CF-313, and defendant was awarded the correct amount of presentence custody credit without receiving double credit. The court also found defendant was not entitled to credit against his fines due to the nature of the offense. This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant argues the trial court erred in failing to amend the judgment order nunc pro tunc to reflect sentence credit for the time he spent in presentence custody from March 22, 2013, through April 1, 2015. Defendant contends that an amended judgment order would not result in him receiving any additional presentence custody credit but would prevent any future confusion or errors in calculating his sentence.
¶ 19 In support of his argument on appeal, defendant relies heavily on a conversation his appellate counsel allegedly had with an unnamed employee at the records department of defendant's prison. The employee allegedly told counsel the judgment order should reflect all the days defendant spend in presentence custody on this case, and the DOC would not award any double credit if the same days of presentence custody were reflected in multiple sentencing orders. The State contends that the conversation between counsel and the employee is not part of the record and should not be considered by this court. Even if we were to accept defendant's representation that he would not receive double credit from the DOC if the judgment order were amended, defendant would not be entitled to relief because he agreed to give up the credit in order to receive a lesser sentence.
¶ 20 Generally, a criminal defendant is entitled to credit against his sentence for the number of days spent in custody prior to sentencing as a result of the offense. 730 ILCS 5/5-4.5-100(b) (West 2018). However, a defendant may not request presentence custody credit if he agreed to forego it as part of a plea agreement. People v. Evans, 391 Ill.App.3d 470, 473 (2009).
¶ 21 Here, the record shows defendant pled guilty to aggravated sexual abuse in exchange for a sentence of 11 years' imprisonment with no presentence custody credit. At the plea hearing, the parties indicated they had originally agreed to a sentence of 12 years' imprisonment, contemplating that defendant would receive presentence custody credit for the period of March 22, 2013, through January 24, 2014. They agreed to lower the sentence to 11 years' imprisonment upon realizing defendant had already received the credit in McLean County case No. 12-CF-1153 and would not receive additional credit in the instant case. Consistent with the representations of the parties at the plea hearing, the sentence was changed to 11 years' imprisonment on both the "Plea Agreement" document and written judgment order, and the provisions for presentence custody credit were crossed out on both documents. Because defendant agreed to receive no presentence custody credit in this case under the terms of the plea agreement, the trial court did not err in declining to amend the mittimus.
¶ 22 We reject defendant's argument that he did not waive his right to presentence custody credit. "Waiver *** 'is an intentional relinquishment or abandonment of a known right or privilege.'" People v. Sophanavong, 2020 IL 124337, ¶ 20 (quoting People v. Lesley, 2018 IL 122100, ¶ 36). Defendant contends the record does not contain an affirmative waiver because he was not admonished on the record about his right to presentence credit or the consequences waiving it would entail. However, defendant cites no authority for the proposition that such admonishments were required. The record shows defendant entered into a plea agreement in which he received no presentence custody credit but instead received a reduced sentence of 11 years' imprisonment. This constitutes sufficient evidence that he waived the credit.
¶ 23 III. CONCLUSION
¶ 24 For the reasons stated, we affirm the trial court's judgment.
¶ 25 Affirmed.