the next case on our call this morning is agenda number eleven case number one zero four nine seven six people of the state of illinois versus wade beecham was blown really p war court ruling that determined that the share stay of reporting program and cook county sheriff's office is the equivalent of actual custodial confinement for purposes of credit for time served but the lower court eared when it took the word custody out of context of the unified court of corrections and in fact out of context of the credit for time served the legislature didn't define custody in the statute it didn't define it in the court of corrections but this court  is not operating with a blank slate it has looked at the word custody in the context of this code and in fact in the context of this statute and it has determined that custody is a very elastic term and it can be defined as everything from the care and control of the thing to constructive control all the way to the end of the continuum actual physical confinement of a person and it's just a matter of applying principles of statutory construction and the key of course is to consider the statute in terms of the context and the purpose and the goal of the statute itself and for thirty years it's actually over thirty years this court has determined that a credit for time political in situation of actual custodial confinement and it's done and because it has look specifically at what are the goals of the purposes of the corrections code the lower court here the looked at this court's construction of custody the trial and the speedy trial stay actually also uses the term custody also not defined in the in a court of criminal procedure but the goal of speedy trial is to move the trial along move the pretrial proceedings along so that trial can take place at a deliberate speed and a purposeful pace so the idea is to address the defendant's interest to be able to put on a defense and at the same time balance the interests of justice on the people of the state of illinois but all of the credit for time status of these people and it may or may not make a difference in the case excuse me it may be namely not be part of the record but it seems to me these are people who have been in custody have had a bond set have not been able to make that  bond and at least one way of justifying that was to say that the jailer could choose the place of custody where everyone and i and i guess my question is is that in the record because if it's not it's just talk well in terms of how the program how the how that if it is on the record or it is available for us to consider does it affect or could it affect the outcome of this case it is i will tell you that it is not in the record this issue of credit for time served did not occur at the trial proceedings at all it was ways for the first time in the appellate court and it was a matter of a mandatory credit for time served issues so that was raised there for the first time so there's no discussion at all at the trial court level of how this program works or how it operates or how the defendant is functioning within the program all we have is a calculation of the time and so on but again we're not operating at a blank slate because in camp that the point of campa and the reason perhaps that the lower court was trying to apply the camper reasoning was because it was the same share of state reporting program so there were some information in the camp a case about how this program works there was also information that i've attached in my initial brief to the court that there were evaluations of the program from the illinois promote justice information authority so there's an on good authority report that kind of talks about the program and how it works in the different phases of the program so there's some information but i don't think that the critical point is whether the defendant is in custody of the sheriff because for camp this court said yes the defendant is in custody of the sheriff and so for speedy trial purposes we're going to find that that's broadly defined and off so that we can move this trial along the sheriff doesn't get to put this person in a data reporting program and then there by expand the time for which the case goes to trial but that really doesn't answer the question of whether the person is actually confined it only answers the question of who has the legal power and control over this individual and all and i'm sorry excuse me but you said that the sheriff has complete control over this individual the camp the court in the context of the speedy trial analysis said the sheriff has control over this person and i would submit to this court that that doesn't answer the question of whether he was confined but if the if this if this defendant  doesn't show up for his day reporting isn't it true he's considered escaped by the sheriff and therefore will be incarcerated in jail how can you know if he's not really in custody or can find help me escape because the point is the pot the term custody not being defined we have to look at all the reasonable definitions and we have to look at those in the context of the code in which they're being used by the legislature so when you're using that when you're when you see that term in speedy trial in the purpose is to move trial proceedings are wrong this court determined that they are you sure has the power then to release or not to release this the physical body of this person but nonetheless we're not going to expand the time frame by which the case has to move along and that is decided because the sheriff has the power to release this person into these different programs but but the point is the person is released into these different programs and so the born custody is again used in the court of corrections but the word custody in the campa it makes sense to me that what happens is you have to look at the context in which the legislature is attempting to use this word and i and i would point out to the court the speedy trial statute in the calculation it says a period of incarceration it uses the term incarceration but this court said we're going to treat the control issue of custody we're going to broadly define it to into include control because what we're concerned about in speedy trial is moving the piece of proceedings along so even though the statute seems to be an hour definition and speedy trial to only incarceration this court said we're going to give it a reasonable construction essentially not a literal construction and in the credit for times statute what really talking about there is not doing a longer sentence than your ultimate lea incarcerated for it's not whether the sheriff can give you the freedom to come and go it's not whether you're on independent day reporting it's whether you're in custody  now confinement i'm sorry not just custody because studio confinement now the legislature has determined that you could be in custodial confinement even in home confinement and the defendant makes the point that while home confinement could qualify why can't a reporting qualify but the point of that provision that the legislature passed after the ramos case which i submit to the court is the governing case along with the amendment by the legislature not the camp a case which never reached this question but the  the point of that amendment by the legislature was to say that regardless of where confinement takes place it's not about geography it's about the level of restraint over the person and so regardless of whether it takes place in a home confinement and this court has found in some other cases that if you're confined to a juvenile facility a juvenile home you can still get credit for time served as long as that is confinement that confinement is custodial in nature so exhausted difference how many hours  how many hours a day this person would be if they were reporting to be there eighteen hours a week and no see i disagree with this notion that when you go to a facility for classes for courses to learn how to get a job to to be a better person in society to deal with anger management that you are somehow confined to the level of the confinement required for whether it's incarceration are some detention of your liberty where you not just home confinement the statute was amended by the legislature say when then home from confinement is custodial in nature so again the legislature refers back to the word custody and the point of custody is that you are your physical restraint is confined we can confine you to your home and not allow you to leave that home and the legislature is saying and by the way this court has found in the past that council commentary is persuasive if you go back to seventy thousand nine hundred seventy three in the council commentary there's a line in there that says irrespective of whether the person is confined they should get credit for time served for being confined so my point is when you go to a day reporting program to check in you sit for a couple of hours and of course you can also work full time during the day reporting program depending on the level that you're at you can go out and work and you can call in and say hi i'm at work today that's to be not a level of confinement that equates with either home confinement or in the early permutations of this sure are still reporting program is similar to the intent of conditions of intensive probation supervision and this court as recently in with field said that intensive a probation has levels of restraint on it and restrictions but they certainly don't rise to the level of incarceration and i would add they don't rise to the level of being confined this is like a mandatory school attendance policy where you do we have to go in you and depending on where you are there are several different tracks and  materials that are provided to the court talks about these different programs but depending on the track thank you really do you may have to go every day check in and sit in the course deal with anger management deal with jobs training and other levels of the course you don't even have to show up the program is never open in the evenings it's not open on weekends it's never open in the holidays you're going in for a purpose to allow you to continue in the community to continue functioning and to become a better person you're not physically confined and i know you said it doesn't have to show up if depending on the depending on the track that you're in several different tracks in these programs depending on the track that you're in you can work full time the entire time you're in the program it once you reach that ready access show up for work because you know everyone has to show  work and they are not considered confined he has to show up for work because that's part of his program but he's not being confined in the jail he's not being confined by the program he is subject to these conditions just like if you have a condition of probation you may have to work or go to school as part of your condition of probation but you're not getting credit for time served for that so so how i want this court to define it is by looking at what is actually occurring here we have a person who's showing up on a daily basis on a periodic basis whatever track he's in and he has to do certain things to continue in the program to be able to be in the community that doesn't mean he's the equivalent of a person who is confined at the level of home confinement and i would submit that in two thousand i think it was in two thousand the  of the appellate courts in the gonzalez case looked at this issue of well home confinement could qualify but there he was allowed out for work and for school and so the court said you're not confined at the level of getting being able to be eligible for credit for time served so i don't think that we define custody the same way in the court of criminal procedure for speedy trial purposes as we define and is this court is the final for over thirty years in the court of corrections for purposes of credit for time served and i don't think that simply because the sheriff has the control over the conditions versus the court has the control over the conditions but that somehow translates itself into being that actual physical confinement and that's what you get credit for time served because that's what we're concerned about with that particular statute it is not a form of periodic imprisonment as the defendant argues either because that fundamentally is a sentence of imprisonment with some release periods that's got a special calculation for credit for time served this fall and yes in this program  is it true that the participant can be taken back into custody of the will of the share without any hearing it is true that the sheriff controls the conditions of release and if they don't follow them there are opportunities to go back in the stages of being under restraint and the sheriff will because the service there is no traditional intervention and there's a my understanding is there's no judicial intervention into that but i don't think again credit for time served doesn't go to the power i mean clearly this court said the sheriff has the power but the credit for time served goes to we don't want to serving extra time so have you served it is your body been confined and i don't think it a day reporting program where you show up and you sit in the course or you're sit in a classroom for fifteen minutes or three hours or whatever happens to be you are at the level of confinement and not confined when you're at work you're not confined when you're at school you're not confined when you're going to this problem just like you're not confined on intensive probation supervision you don't get credit for time served for that either so  but home confinement for example the provision that the legislature added in ninety three on home confinement is within the discretion of the trial court and only if it's custodial so there's already a provision that says you know you sometimes have to make a determination as to whether it's and what i'm saying to this court is on the record that we have here and from the materials that are available but nature in the character of the restraint is much more like intensive probation supervision it is not like actual confinement it's not being confined to a home or to a prison or to anyone else he's being told chalk every day or show periodical or whatever your conditions whatever track you when you have to show up either not show up but you have to follow certain things in the program this is no different than intensive probation supervision and because you have any information it was never raised at the trial level and we don't have any anything other than the calculation of the number of days that he was assigned to the program so if there if there are no other questions i will close and ask for your honors my name is marie here again with the state appellate defender's office representing we the operative the operative issue in this case is the definition of custody under the custody in the case of people versus campa where there was no definition of custody in the criminal code as there is no in the corrections code there's no definition of custody this the court looked at the plane with the plain meaning found in the dictionary and did find it had kind of the an elastic meaning it was either actual detention or the power to detain or possess that definition sr apply here as well a close look at the day reporting program shows that the defendant was in the custody of the sheriff the defendant has to show up every week day on time at the jail the defendant has to participate in whatever programs are mandated for him if he's late if he doesn't show up or if the sheriff just decides the beds opened up and this defendant should be back in jail he can be back in jail he is under the custody of the sheriff there's no due process there's no judicial review on that question so therefore he is in custody again the word used in the section that we're talking about of the statute in within that section the legislature to when they amended the statute to allow for credit for home confinement the legislature has allowed for credit for something other than incarceration in a penal institution and home confinement i really believe could be more risk could be less restrictive than the day reporting program you are at home reporting again you have to show up drug testing your active jail and you're subject to incarceration by the sheriff whereas on bond with home monitoring you have a judicial hearing if you if you violate that bond in another section of that statute uses the word confinement and when talking about psychiatric treatment or drug treatment therefore indicating that confinement is something other than custody they are different not all confinement is custodial not all custody is confined the word here is custody and if there's any ambiguity as to the definition we we would argue that the rule that only has to apply and the defendant should get the credit if the legislature wishes to clarify them and then they can do so the cases cited by the state especially ramos which they rely on extensively if they're not a political to the situation they don't discuss the day reporting program as was discussed in camp they were decided prior to the camp a decision and they don't talk about the operative definition of custody under the statute in ramos the defendant was on bond and not home monitoring and now that person can get credit for that in the b l s case which talks about giving the credit for juveniles they don't talk about what custody means they just say juveniles you get the same credit that adults get in time know that it also ensures that the defendant w get days for the actual time he spent in custody again not going into the question of what custody means even the the commentary in the statute the commentary again is not addressing custody as confinement the commentary addresses the issue of whether the defendants actually receive the credit for time served when they are convicted on a charge other than the charge they were originally that was originally filed against them the only  were i don't believe that confined don't believe confinement is the operative word here i believe it's because i believe the defendant in morrison was also a situation where he was on bond so it was he was not just subject to the only reason the day reporting program was instituted was because of jail overcrowding otherwise he would be in jail it sounds like he made bond with these conditions that he had to comply with there seems to be an even or some of these where in custody that's not the word used in the statute the word used is custody and custody does have this elastic definition and there is this notion of custody of the power that the sheriff he is definitely in the custody of the sheriff's department the and again if there an ambiguity as to whether they met custody or confinement it's not clear in the statute and the rule of money must win out in the defendant should get the credit because the the the the legislature used the word custody in the section and they use indicates that he can be taken into jail at any time this is not a person on bond violating a bond condition or being sure the idea of probation or another kind of decision what penalty the defendant's going to have the court made the decision because the defendant and make fine for this person to be in custody is that right well he was in custody because he couldn't make bond in there then it's up then it's the sheriff who made the decision about who to write the kids did you know who to allow to participate in this program does the corner know who's out in this in this kind of a situation the court might know in the sense that if there's you know a status calls and things before trial like that's often noted on the half sheet so i assume that the judge is aware of where the defendant is you know if you don't know that but i don't know this again because this wasn't fleshed out in the trial level i really don't you know there's nothing really on the record except  the number of days that indicates that there was any discussion about this with the with the trial judge so the sheriff picks and chooses which person can go in and in this program or not it's a yes the program is it is run who get put into i mean you know people that they would be more likely to you know let out but it is it is again under the jurisdiction of the sheriff's department not that not the trojans the the only cases that actually talk about the definition of custody with reference to the day reporting program are people versus campa and the pole court decision people versus martin which is the case that's in conflict with my case below however martin was time spent in custody and then with regard to detention or confinement for say substance abuse treatment statutes or when the defendant has been confined for psychiatric substance abuse treatment sufficient unless it's just code you address yes you know one thing if we were operating on a blank slate here it's another that this court has been construing this statute and its precursor for more than thirty years and for more than thirty years it's determined that actual physical confinement is what's required now the legislature to define custody it hasn't defined confinement it hasn't defined psychiatric it hasn't been to find a number of things in this particular statute but it's not as if this is the us that we have no guidelines to follow we know what this court has already determined in the context of the statute and home confinement home detention as it's sometimes called or phrases that are commonly used in their phrases that the legislature put right into the statute but again do you define those and so that we're it's custodial the context of the court of corrections and that has traditionally meant initially incarceration in a facility and then the changing of all the whether it's a jewel home whether it's in your home whether it's in a prison or jail you're going to get credit for time served but it's all about the level of restraint on an individual person and needed if you go to a gateway or one of these programs well you can kind of come and go and check to check out that's not going to be at the rubble of a psychiatric treatment center where you're actually confined to the point where you're straight your physical restraint is so limited that we can consider it natural physical confinement and so it allows the court discretion in those cases where it's appropriate to consider that but it's not an automatic grant it's an automatic when you're incarcerated because we know what that means we've known what that has meant for many years but there's this evolving nature and so there's room for that analysis but that analysis doesn't change the basic core promise that it's all about the restraint of personal liberty it's not whether the sheriff controls it or whether a court controls it is not whether there are extra hearings or no hearings we recognise that  this court said custody includes something that the sheriff sets out as a day reporting program but that can be harmonized very easily with that doesn't answer the question of actual physical confinement there are two prongs and two different continuums to the custody analysis and the legislature has left it to this court in this court has thirty plus years of analysis in this statute and it's precursor so it isn't ambiguous we don't operate from a blank slate and martin was decided correctly because martin analyze that in its true way most was amended by the statute to include that consideration because there may be times where it is actual physical confinement were careless of the location their respective of the location but that doesn't change its core promise that it's a different analysis