People v. Inman , 2014 IL App (5th) 120097 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Inman, 2014 IL App (5th) 120097
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption THOMAS G. INMAN, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-12-0097
Filed February 4, 2014
Held Where defendant was convicted of first-degree murder and attempted
(Note: This syllabus first-degree murder and sentenced to concurrent terms of natural life
constitutes no part of the for first-degree murder and 30 years for attempted first-degree murder,
opinion of the court but but the natural-life sentence was vacated 21 years later and on
has been prepared by the resentencing he was sentenced to 35 years for the first-degree murder
Reporter of Decisions to be served consecutively to the 30 years imposed for attempted
for the convenience of first-degree murder, his postconviction petition alleging that the new
the reader.) sentence violated the double jeopardy clause was properly dismissed,
since both the individual murder sentence and the aggregate term in
prison were reduced by the resentencing court and the punishment
imposed did not exceed what defendant anticipated when he was
originally sentenced.
Decision Under Appeal from the Circuit Court of St. Clair County, No. 85-CF-181; the
Review Hon. Brian Babka, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Peter A. Carusona, and Thomas A. Karalis, all of
Appeal State Appellate Defender’s Office, of Ottawa, for appellant.
Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
Stephen E. Norris, David M. Sanchez, and Whitney E. Atkins, all of
State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with
opinion.
Justices Goldenhersh and Wexstten* concurred in the judgment and
opinion.
OPINION
¶1 The defendant, Thomas G. Inman, appeals an order dismissing his petition for
postconviction relief at the second stage. The defendant was convicted of first-degree murder
and attempted first-degree murder and sentenced to concurrent prison terms of natural life for
murder and 30 years for attempted first-degree murder. After his natural-life sentence was
vacated years later, the defendant was resentenced to 35 years on the murder charge, to be
served consecutive to the 30-year attempted murder sentence. The defendant filed a
postconviction petition, alleging that the resentencing court violated principles of double
jeopardy by ordering his sentences to run consecutively. On appeal from the second-stage
dismissal of that petition, the defendant argues that (1) the consecutive sentences violate his
right to due process and (2) consecutive sentences constitute double jeopardy. We affirm.
¶2 The charges at issue in this appeal stem from an argument in a bar that escalated to a violent
confrontation. The defendant and two friends waited outside the bar for two other men to leave.
They then followed the other men in their car and ran the car off the road at the next exit. In the
ensuing fight, one man was stabbed to death. The other was stabbed multiple times and
suffered serious injuries, but survived. The defendant was arrested in March 1985 and
subsequently convicted on one count of murder and one count of attempted murder. In August
1985, the trial court found that the murder was committed in an exceptionally brutal and
heinous manner. Based on this finding, the court sentenced the defendant to natural life in
prison for the murder conviction. The court sentenced the defendant to 30 years for the
attempted murder conviction, to be served concurrently with the sentence for murder.
*Justice Wexstten fully participated in the decision prior to his retirement. See Cirro Wrecking Co.
v. Roppolo, 153 Ill. 2d 6, 605 N.E.2d 544 (1992).
-2-
¶3 In August 2000, the defendant filed a petition for relief from judgment pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), which the court
treated as a postconviction petition. He alleged that his natural-life sentence violated the rule
annunciated in Apprendi v. New Jersey, 530 U.S. 466 (2000). He argued that the sentencing
court imposed this extended-term sentence relying on a finding which, under Apprendi, had to
be made beyond a reasonable doubt by the trier of fact. Specifically, the sentencing court found
that the murder was committed in an exceptionally brutal and heinous manner (Ill. Rev. Stat.
1985, ch. 38, ¶ 1005-8-1(a)(1)).
¶4 In June 2001, the court granted the defendant’s petition and vacated his natural-life
sentence for murder. 1 The court directed the State to choose between two options. The State
could again seek a natural-life sentence, which would require the State to retry the defendant
and prove to a jury beyond a reasonable doubt that the murder was committed in an
exceptionally brutal and heinous manner. Alternatively, the State could choose not to seek an
extended-term sentence, in which case the court would hold only a new sentencing hearing.
The State chose the latter option.
¶5 Most of the proceedings that followed involved the question of whether the trial court
could impose consecutive sentences. The court ultimately determined that (1) under the
sentencing law in effect in 1985, it had the discretion to impose consecutive sentences, and (2)
consecutive sentences would not run afoul of the constitutional protection against double
jeopardy.
¶6 The matter came for a resentencing hearing in July 2006. The defendant chose to be
sentenced under the law in effect in 1985, when the murder was committed. See People v.
Strebin, 209 Ill. App. 3d 1078, 1081, 568 N.E.2d 420, 422 (1991). The parties presented
evidence in aggravation and mitigation. Much of the evidence in mitigation concerned the
defendant’s rehabilitative efforts during the 21 years he had already served in prison. Much of
the evidence in aggravation focused on the defendant’s extensive prior criminal record and the
nature of the offense. The court found that consecutive sentences were appropriate for two
reasons: (1) the defendant committed a Class X or Class 1 felony and inflicted serious bodily
injuries (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(a)), and (2) consecutive sentences were
necessary to protect the public (Ill. Rev. Stat. 1985, ch. 38, ¶ 1005-8-4(b)). The court sentenced
the defendant to 35 years in prison, to be served consecutive to his sentence for attempted
murder. The sentencing order provided that the defendant was to be given credit for time
served.
¶7 The defendant appealed that sentence, arguing that the resentencing court abused its
discretion by imposing consecutive sentences. He did not raise the constitutional issues
involved in this appeal. This court affirmed the sentence. People v. Inman, 375 Ill. App. 3d
1161, 945 N.E.2d 703 (2007) (unpublished order under Supreme Court Rule 23).
¶8 The defendant next filed a pro se petition under the Post-Conviction Hearing Act (725
ILCS 5/122-1 to 122-8 (West 2008)). In relevant part, he alleged that consecutive sentences
1
We note that the Illinois Supreme Court subsequently held that Apprendi does not apply
retroactively. People v. De La Paz, 204 Ill. 2d 426, 437, 791 N.E.2d 489, 496 (2003).
-3-
violated the double jeopardy clause and that appellate counsel was ineffective for failing to
raise this issue on direct appeal. The postconviction court dismissed the defendant’s petition
summarily, finding it to be a successive petition filed without leave of the court. On appeal
from that ruling, this court found that the petition at issue was the first petition to challenge the
2006 sentencing order. We thus concluded that it was not a “successive” petition and the
defendant, therefore, “did not require leave of the court to file it.” People v. Inman, 407 Ill.
App. 3d 1156, 1162, 947 N.E.2d 319, 324-25 (2011). We reversed the court’s order dismissing
the defendant’s petition and directed the court to docket the matter for second-stage
proceedings. Inman, 407 Ill. App. 3d at 1163, 947 N.E.2d at 325.
¶9 On remand, counsel was appointed to represent the defendant. Counsel filed an amended
petition on behalf of the defendant, which also alleged that consecutive sentences violated the
constitutional protection against double jeopardy. The amended petition further alleged that
both appellate counsel and counsel at the resentencing hearing were ineffective. The State filed
a motion to dismiss the defendant’s petition. The postconviction court found that there was no
double jeopardy violation. In support of this conclusion, the court noted that (1) the
resentencing court had the statutory authority to impose consecutive sentences and (2) the
length of the murder sentence was reduced, not increased. The court therefore granted the
State’s motion to dismiss. This appeal followed.
¶ 10 In this appeal, the defendant raises two issues. He first argues that the consecutive
sentences violate principles of due process under North Carolina v. Pearce, 395 U.S. 711
(1969). He next argues that consecutive sentences violate the double jeopardy clause. Before
considering the merits of these arguments, we must address the State’s contention that the
defendant has forfeited both of these arguments.
¶ 11 The State argues that the defendant has forfeited his arguments for two reasons. First, the
State contends that both arguments are forfeited because the defendant could have raised them
in his direct appeal, but did not do so. We note, however, that the defendant has alleged
ineffective assistance of counsel on direct appeal. The State further contends that the defendant
forfeited his due process argument because he did not raise it in his amended postconviction
petition. We note that forfeiture is a limitation on the parties, not the courts. People v. Haissig,
2012 IL App (2d) 110726, ¶ 20, 976 N.E.2d 1121 (citing People v. Carter, 208 Ill. 2d 309,
318-19, 802 N.E.2d 1185, 1190 (2003)). We further note that the arguments are closely
connected. We will therefore consider both of the defendant’s arguments on their merits.
¶ 12 This case was dismissed at the second stage of postconviction proceedings. Our review is
therefore de novo. People v. Clark, 2011 IL App (2d) 100188, ¶ 17, 957 N.E.2d 162 (citing
People v. Simpson, 204 Ill. 2d 536, 547, 792 N.E.2d 265, 274-75 (2001)).
¶ 13 The defendant first argues that principles of due process precluded the court from imposing
consecutive sentences on remand. The relevant principles were discussed by the United States
Supreme Court in North Carolina v. Pearce. There, the Court explained that “it would be a
flagrant violation” of a defendant’s right to due process if a sentencing court were to impose a
harsher sentence after remand from a successful appeal “for the explicit purpose of punishing
the defendant” for filing the appeal. Pearce, 395 U.S. at 723-24. The Court noted, however,
that “there exists no absolute constitutional bar to the imposition of a more severe sentence
-4-
upon retrial.” Pearce, 395 U.S. at 723. The Court held that when a trial judge imposes a more
severe sentence after remand from an appeal, the record must affirmatively show the reasons
for the court’s decision to do so, and those reasons must relate to “objective information
concerning identifiable conduct” by the defendant subsequent to the original sentencing
proceedings. Pearce, 395 U.S. at 726.
¶ 14 Our legislature codified the Pearce holding in section 5-5-4 of the Unified Code of
Corrections (730 ILCS 5/5-5-4 (West 2006)). That statute provides that a court “shall not
impose a new sentence for the same offense or for a different offense based on the same
conduct which is more severe than the prior sentence *** unless the more severe sentence is
based upon conduct on the part of the defendant occurring after the original sentencing.” 730
ILCS 5/5-5-4(a) (West 2006).
¶ 15 On resentencing in this case, the defendant was sentenced to 35 years for the murder
conviction. This is a shorter sentence than his original sentence of natural life in prison. His
30-year sentence for attempted murder was not changed. The question raised by the defendant
is whether the trial court nevertheless made either of these sentences more onerous than the
original sentences by ordering the reduced murder sentence to run consecutive to the
defendant’s sentence for attempted murder when the sentences were originally ordered to run
concurrently. For the reasons that follow, we conclude that it did not.
¶ 16 One of the first cases to address this question was this court’s decision in People v. Giller,
191 Ill. App. 3d 710, 548 N.E.2d 341 (1989). There, the defendant was convicted on three
charges of aggravated criminal sexual assault. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at
341. He was originally sentenced to concurrent extended-term sentences of 60 years on all
three charges. Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. On appeal, this court found
the extended-term sentences to be improper. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at 341.
On remand, the trial court imposed sentences of 30 years on all three charges. The court
ordered two of those sentences to run concurrently, but ordered that the third be served
consecutive to the other two sentences. Giller, 191 Ill. App. 3d at 711, 548 N.E.2d at 342.
¶ 17 The defendant again appealed. He argued, much as the defendant argues here, that
consecutive sentences were not proper when concurrent sentences were originally imposed.
Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. In rejecting his contention, this court stated
that the “defendant’s sentence on remand was no more severe than his original sentence. His
original sentence was for an extended term of 60 years’ imprisonment, and his resentence
totaled 60 years’ imprisonment.” Giller, 191 Ill. App. 3d at 712, 548 N.E.2d at 342. We thus
found that the new sentences complied with the requirements of section 5-5-4 of the Unified
Code of Corrections, the same statute that is at issue here. Giller, 191 Ill. App. 3d at 711-12,
548 N.E.2d at 342.
¶ 18 The quoted language in Giller focused on the aggregate length of all of the defendant’s
sentences. As the defendant here correctly points out, subsequent decisions have focused
instead on the severity of the individual sentences. For example, in People v. Kilpatrick, 167
Ill. 2d 439, 657 N.E.2d 1005 (1995), the defendant was originally sentenced to consecutive
terms of nine years and six years. After a motion to reconsider his sentence, the court vacated
the consecutive sentences and imposed a “ ‘single sentence of 15 years.’ ” Kilpatrick, 167 Ill.
-5-
2d at 441, 657 N.E.2d at 1006. The supreme court found that, even though the aggregate prison
term remained the same, the new sentence ran afoul of the relevant statute because the
individual sentences were increased from 9 and 6 years, respectively, to 15 years. Kilpatrick,
167 Ill. 2d at 446-47, 657 N.E.2d at 1008; see also People v. Rivera, 212 Ill. App. 3d 519, 525,
571 N.E.2d 202, 206 (1991). The rationale behind these holdings is that consecutive sentences
for multiple offenses “constitute separate sentences for each crime of which a defendant has
been convicted.” People v. Carney, 196 Ill. 2d 518, 529, 752 N.E.2d 1137, 1143 (2001).
“[C]onsecutive sentences are not treated as a single sentence” for purposes of determining
whether the new sentence is harsher than the original sentence. Kilpatrick, 167 Ill. 2d at 446,
657 N.E.2d at 1008.
¶ 19 The defendant points to this rationale and argues that Giller was wrongly decided. He
contends that these subsequent decisions show that Illinois takes a count-by-count approach to
sentencing rather than determining the question based on the aggregate term in prison. This
argument implies that under Giller, an increase in any individual sentence would be
permissible as long as the aggregate was not increased. This apparent interpretation overstates
our holding. In Giller, there was no question that none of the individual sentences were more
onerous than the sentences originally imposed. The original sentences were extended-term
sentences of 60 years; the sentences on remand were nonextended-term sentences of 30 years.
Thus, unlike the Kilpatrick and Rivera courts, the Giller court was not called upon to consider
the propriety of an increase to any individual sentence. The court was concerned only with the
effect of running reduced sentences consecutively on the aggregate term in prison.
¶ 20 Under Kilpatrick and the express terms of section 5-5-4, courts may not increase any
individual sentence. The implication of our decision in Giller is that courts also may not
increase the aggregate term of multiple sentences. We note that, subsequent to our decision,
other districts of the Illinois Appellate Court have found that an increase in the aggregate term
a defendant will spend in prison does not run afoul of section 5-5-4 or raise due process
concerns as long as no individual sentence is increased. See, e.g., People v. Harris, 366 Ill.
App. 3d 1161, 1165-66, 853 N.E.2d 912, 916 (2006); People v. Sanders, 356 Ill. App. 3d 998,
1005, 827 N.E.2d 17, 22-23 (2005). We do not believe this is an appropriate case to reconsider
our holding in Giller. Here, the defendant acknowledges that the aggregate was not increased.
Moreover, as we will next discuss, we find that neither of the individual sentences became
more severe as a result of being made consecutive.
¶ 21 The defendant bases his argument to the contrary on People v. Pugh, 325 Ill. App. 3d 336,
758 N.E.2d 319 (2001). There, the defendant was convicted on charges of murder, armed
robbery, and forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322. He was
originally sentenced to death for the murder charge and to concurrent sentences of 30 years and
7 years for the additional charges. The defendant successfully appealed his death sentence, and
the matter was remanded for resentencing. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322.
¶ 22 On remand, the trial court sentenced the defendant to an extended term of 70 years for the
murder charge, to be served consecutive to the concurrent sentences for armed robbery and
forcible detention. Pugh, 325 Ill. App. 3d at 338, 758 N.E.2d at 322. The defendant appealed
the new sentence. A panel of the First District found that by ordering the sentences to be served
-6-
consecutively when they were originally ordered to run concurrently, the trial court
“effectively increased the amount of time defendant would spend incarcerated for the armed
robbery and forcible detention offenses.” Pugh, 325 Ill. App. 3d at 349, 758 N.E.2d at 330. In
light of this finding, the court amended the sentencing order to provide that the sentences
would run concurrently. Pugh, 325 Ill. App. 3d at 349, 758 N.E.2d at 330-31.
¶ 23 The State argues that Pugh is distinguishable from the instant case because the sentences
there could not have been ordered to run consecutively when the defendant was originally
sentenced. See Pugh, 325 Ill. App. 3d at 348-49, 758 N.E.2d at 330 (explaining that the statute
permitting consecutive sentencing is not applicable when the death penalty is imposed). We
disagree. The Pugh court expressly stated that it was concerned that imposing consecutive
sentences would increase the defendant’s time in prison on the armed robbery and forcible
detention charges. Pugh does, therefore, support the defendant’s position.
¶ 24 However, we are not bound by the decisions of other districts of the Illinois Appellate
Court. People v. Damkroger, 408 Ill. App. 3d 936, 944, 946 N.E.2d 948, 954-55 (2011). The
Pugh court did not explain the rationale for its conclusion that making the defendant’s new
murder sentence run consecutive to his other sentences would result in more time in prison on
the additional charges. We do not find this holding persuasive, particularly when it is at odds
with the overwhelming weight of authority in Illinois, which holds that ordering sentences to
run consecutively on remand does not itself constitute an increase in any individual sentence.
See Harris, 366 Ill. App. 3d at 1165-66, 853 N.E.2d at 916; People v. Moore, 359 Ill. App. 3d
1090, 1092-93, 835 N.E.2d 980, 982 (2005); Sanders, 356 Ill. App. 3d at 1005, 827 N.E.2d at
22-23. We therefore decline to follow Pugh.
¶ 25 The defendant, however, argues that his 30-year attempt sentence will become more
onerous due to the impact a consecutive sentence will have on the calculation of his sentence
credit. We find this argument unavailing.
¶ 26 When a defendant is sentenced to concurrent sentences, he is entitled to credit against both
sentences for any time spent in custody that is attributable to both charges. People v. Robinson,
172 Ill. 2d 452, 462-63, 667 N.E.2d 1305, 1310 (1996) (citing 730 ILCS 5/5-8-7(b) (West
1992)). By contrast, when consecutive sentences are imposed, all time spent in custody is
credited only once against the aggregate term of the consecutive sentences. People v. Latona,
184 Ill. 2d 260, 270-71, 703 N.E.2d 901, 907 (1998) (citing 730 ILCS 5/5-8-4(e) (West 1994)).
The day-for-day good-time credit available to the defendant under the sentencing laws in effect
in 1985 is calculated based on the same principle. See Armstrong v. Washington, 289 Ill. App.
3d 306, 309, 682 N.E.2d 761, 763 (1997). Thus, the defendant argues, he will lose credit for the
21 years he spent in prison prior to resentencing in this case, including the day-for-day
good-time credit.
¶ 27 This argument overlooks the nature of the natural-life sentence imposed when the
defendant was originally sentenced. Under that sentence, the defendant was not eligible for
parole. See Heirens v. Prisoner Review Board, 162 Ill. App. 3d 762, 765, 516 N.E.2d 613, 615
(1987) (citing Ill. Rev. Stat. 1985, ch. 38, ¶¶ 1003-3-3(d), 1005-8-1(d)). He was not eligible for
any release except through a grant of executive clemency. Ill. Rev. Stat. 1985, ch. 38,
¶ 1003-3-3(d). Thus, the natural-life sentence could not have been reduced by any type of
-7-
sentence credit. Had the defendant not challenged his original sentence, his 30-year-attempt
sentence would have been discharged when satisfied, and the defendant would have remained
in prison serving the original natural-life sentence for murder for the remainder of his life.
¶ 28 The resentencing order changes this result in two ways. First, instead of spending the
remainder of his life in prison, the defendant will remain in prison long enough to satisfy both
the 30-year and 35-year sentences, with credit for time served as well as all day-for-day
good-time credit for which he is eligible. Second, because the Department of Corrections treats
consecutive sentences as a single sentence for the limited purposes of calculating sentence
credit and determining how consecutive sentences will be served (see 730 ILCS 5/5-8-4(e)
(West 2012)), the mittimus reflects that the defendant’s attempted murder sentence has not
been discharged.
¶ 29 We do not believe that this mittimus change rises to the level of a due process violation
where, as here, neither sentence is more severe than the original sentences imposed. As the
supreme court has repeatedly held, consecutive sentencing alters the manner in which a
sentence is to be served, not the actual sentence. People v. Phelps, 211 Ill. 2d 1, 14, 809 N.E.2d
1214, 1222 (2004); Carney, 196 Ill. 2d at 530, 752 N.E.2d at 1144. The amount of time the
defendant will spend in prison as a result of the attempt charge remains unchanged, while the
time he will spend in prison as a result of the murder sentence has been reduced. Thus, neither
individual sentence has been made more severe.
¶ 30 Nevertheless, the defendant points out that if the original sentencing court had sentenced
him to a concurrent term of 35 years for the murder, he would have been eligible for credit
against that sentence. The question, however, is not whether the court has rendered a sentence
that is more severe than a hypothetical original sentence the court might have imposed. Rather,
the question is whether an otherwise authorized sentence is more severe than the original
sentence the court actually imposed. As we have explained, that did not occur here. We thus
conclude that the resentencing court did not violate principles of due process or the
requirements of section 5-5-4 when it ordered the defendant’s sentence for murder to run
consecutive to his sentence for attempt.
¶ 31 The defendant next argues that the sentencing court violated the double jeopardy clause of
the fifth amendment by ordering that the sentences be served consecutively after he had
already served 21 years of a concurrent sentence. We disagree.
¶ 32 There are three components to double jeopardy protection. The double jeopardy clause
protects criminal defendants from (1) facing a new trial after an acquittal, (2) facing a second
trial after a conviction, and (3) facing multiple punishments for the same offense. Jones v.
Thomas, 491 U.S. 376, 380-81 (1989). The prohibition on multiple punishments is “ ‘limited to
ensuring that the total punishment [does] not exceed that authorized by the legislature.’ ”
Jones, 491 U.S. at 381 (quoting United States v. Halper, 490 U.S. 435, 450 (1989)). Generally,
consecutive sentences do not implicate this aspect of double jeopardy because consecutive
sentences do not constitute “ ‘punishment beyond that authorized by the jury’s verdict,
provided that the sentence for each separate offense does not exceed the maximum permitted
by statute for that offense.’ ” Phelps, 211 Ill. 2d at 14, 809 N.E.2d at 1222 (quoting Carney,
196 Ill. 2d at 532, 752 N.E.2d at 1145).
-8-
¶ 33 However, the defendant argues that under the circumstances of this case, consecutive
sentences raise double jeopardy concerns for two closely connected reasons. First, as the
defendant correctly notes, double jeopardy requires that a defendant receive credit against his
sentence for any time already served. Pearce, 395 U.S. at 718-19. This includes any good-time
credit attributable to time already served. Pearce, 395 U.S. at 719 n.13. Here, the 2006
resentencing order gives the defendant credit for all time served since his March 1985 arrest.
The defendant argues that this is insufficient because under Latona, that credit need only be
applied once toward the aggregate prison term; it need not be applied in full to each individual
sentence. Latona, 184 Ill. 2d at 270-71, 703 N.E.2d at 907.
¶ 34 Ordinarily, this method of calculating sentencing credit does not raise double jeopardy
concerns. As the Latona court pointed out, the purpose of sentence credit “is to ensure that
defendants do not ultimately remain incarcerated for periods in excess of their eventual
sentences.” Latona, 184 Ill. 2d at 270, 703 N.E.2d at 906 (citing People v. Ramos, 138 Ill. 2d
152, 159, 561 N.E.2d 643, 647 (1990)). This, as we have noted, is a requirement of double
jeopardy protection. See Pearce, 395 U.S. at 718-19. It was with this requirement in mind that
the Latona court determined what sentence credit calculation method was appropriate for
consecutive sentences.
¶ 35 The court explained that when a defendant is sentenced to concurrent prison terms, time
spent in custody that is applicable to both offenses must be credited toward each of the
sentences in order to satisfy the requirement that a defendant serve no more time than the
sentence actually imposed. “[B]ecause the sentences are served concurrently,” the court
explained, “the credits are applied in that manner as well.” Latona, 184 Ill. 2d at 271, 703
N.E.2d at 907. In the context of consecutive sentences, however, giving a defendant credit for
each day served and applying that credit to the defendant’s aggregate term is sufficient to
ensure the defendant serves no more time than the sentence imposed. This is because
“[d]efendants must be given credit for all the days they actually served, but no more.” Latona,
184 Ill. 2d at 272, 703 N.E.2d at 907.
¶ 36 What makes this case different from Latona is the fact that the defendant here was in prison
for 21 years prior to being sentenced to consecutive terms. For much of that time, he
understood that he was serving two consecutive sentences. This brings us to the second aspect
of the defendant’s contention.
¶ 37 As the defendant correctly points out, the double jeopardy clause protects a defendant’s
interest in finality. People v. Levin, 157 Ill. 2d 138, 161, 623 N.E.2d 317, 328 (1993). This
includes a legitimate interest in the finality of his sentence. Jones, 491 U.S. at 393-94 (Scalia,
J., dissenting) (quoting United States v. DiFrancesco, 449 U.S. 117, 139 (1980)); Levin, 157
Ill. 2d at 161, 623 N.E.2d at 328. Essentially, the defendant argues that he must be given credit
against both sentences to protect his interest in the finality of the concurrent aspect of the
original sentencing order. We are not persuaded.
¶ 38 Although the underlying facts are not analogous to those of the case before us, we find the
United States Supreme Court’s discussion of this aspect of double jeopardy in Jones v. Thomas
instructive. There, the defendant was originally convicted and sentenced in Missouri on
charges of felony murder and attempted robbery. The attempted robbery was the underlying
-9-
felony for the charge of felony murder. Jones, 491 U.S. at 378. The defendant was sentenced to
natural life in prison for the murder and 15 years for the attempted robbery, to be served
consecutively. The court ordered that the attempted robbery sentence be served first. Jones,
491 U.S. at 378.
¶ 39 Four years after he was sentenced, the defendant filed a postconviction petition, alleging
that it was improper for the court to impose sentences on both charges because the attempted
robbery was the underlying felony for the felony-murder charge. Jones, 491 U.S. at 378. After
another 4 years, the 15-year attempted robbery sentence was commuted to a shorter sentence
with a release date that month. At this point, the postconviction petition was still pending.
Jones, 491 U.S. at 379. The following year, the postconviction court granted the defendant’s
petition and vacated the attempted robbery conviction and sentence. Jones, 491 U.S. at 379.
¶ 40 The defendant appealed, arguing that because he had fully satisfied the reduced sentence
for attempted robbery, “his continued confinement under the longer sentence constituted
double jeopardy.” Jones, 491 U.S. at 379. The state appeals court rejected this claim, finding
that credit for his entire period of incarceration against the longer sentence was sufficient to
protect him against double jeopardy. Jones, 491 U.S. at 379 (citing Thomas v. State, 665
S.W.2d 621 (Mo. Ct. App. 1983)).
¶ 41 The Supreme Court first emphasized that the prohibition on multiple punishments is
intended to prevent a sentencing court from imposing sentences that exceed those intended by
the legislature. Jones, 491 U.S. at 381. The Court explained that its resolution of the
defendant’s double jeopardy claim turned on the fact that this was the interest meant to be
protected. Jones, 491 U.S. at 381. The Court acknowledged, however, that the double jeopardy
clause “protects not only against punishment in excess of legislative intent, but also against
additions to a sentence in a subsequent proceeding that upset a defendant’s legitimate
expectation of finality.” (Emphasis added.) Jones, 491 U.S. at 385. In determining whether the
Missouri state courts upset this expectation in the case before it, the Court analyzed what the
defendant’s reasonable expectations were with regard to that sentence.
¶ 42 The Court noted that when the defendant was originally sentenced, he had no reason to
expect to serve only the shorter attempted robbery sentence. “Indeed,” the Court explained,
“his expectation at that point was to serve both consecutive sentences.” Jones, 491 U.S. at 386.
This was because the Missouri state cases holding that a defendant could not be sentenced for
both felony murder and the underlying felony were decided after the original sentences were
imposed. Jones, 491 U.S. at 386. The Court further noted that, once the Missouri Supreme
Court determined that both sentences could not be imposed, the defendant’s legitimate
expectation was that he would serve one sentence or the other. Jones, 491 U.S. at 386. Thus,
taking into account the defendant’s expectations, the Supreme Court found that the decision to
leave his murder sentence intact did not constitute an increase or addition. Jones, 491 U.S. at
385-86.
¶ 43 Here, when the defendant was originally sentenced, his expectation was that he would
spend the rest of his life in prison. As explained previously, he had no legitimate expectation
that his natural-life sentence for murder would actually be reduced by any available credit
because that sentence carried with it no possibility of release during his lifetime. Moreover,
- 10 -
while a criminal defendant does have an interest in the finality of sentencing determinations,
this interest is far less significant than his interest in not being convicted. Levin, 157 Ill. 2d at
144, 623 N.E.2d at 320 (noting that this is so because “[t]he imposition of a particular sentence
usually is not regarded as an acquittal of any more severe sentence than could have been
imposed”). Assuming the defendant here had any legitimate expectation that a single aspect of
his original sentence, viewed in isolation, would remain unchanged after he challenged the
sentence, that expectation alone does not rise to the level of the interests meant to be protected
by double jeopardy. Here, both the individual murder sentence and the aggregate term in
prison have been reduced by the resentencing court. Thus, the court did not impose a
punishment that exceeded the sentence the defendant expected to serve when he was originally
sentenced. We find no double jeopardy violation.
¶ 44 For the foregoing reasons, the order of the postconviction court dismissing the defendant’s
petition is affirmed.
¶ 45 Affirmed.
- 11 -