## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Hugh es , 2011 IL App (4th) 100687

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MATTHEW R. HUGHES, Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0687

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed September 26, 2011

November

16, 2011 September 26, 2011

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Where defe ndant was found not guilty of ag g rava ted battery by rea son of insanity arising from an incident in which he threw a liquid on an employ ee of the corr ectional fa ci l ity in which defe ndant was serving a two-y ear term for reta il theft with a rele ase date of October 13, 2008, and he was subseque n t ly found subject to involuntary commitment for a maxi mum pe riod of three y ear s, to which the par ties stipulated, the trial court’s judgme nt was modified to provide that the three -year period would commence October 14, 2008, and def

endant’ s Thiem date would be Oc tober 14, 2011.

Dec ision Under Review Appea l from the Circuit Court of L ivingston County
, No. 08-CF- 19; the Hon. Mark A . Fe llheimer, Judge, pr esiding

.

J udg ment Affir med as modified; ca

use re manded with dire ctions.Counsel on

Appea l Ver onique Ba ker of Guar dianship & Advoca cy Commi ssion, of Chicag o, and Ba rbar a A. Goebe n (argued), of Guar dianship & Advoca cy Commi ssion, of Alton, for appe llant.

Thomas J

. Br own, State’s Attorney
, of Pontiac (Patrick Delfino, Robert J

. Bide rman, and J am es C. Majors (ar gued), all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE COOK delivere d the judg ment of the c ourt, with opinion. Presiding J ustice Knec ht and J ustice McCullough concur red in the judgme nt and opinion.

OP INION

¶ 1 On Fe bruar

y 25, 2009, defe ndant, Matthew R. Hughes, wa s found not guilty by rea son of insanity (NGRI ) on one count of ag g ravated battery (720 I L CS 5/12-4(b)( 18) (West Supp. 2007)), following a stipulated bench trial. On August 31, 2010, the trial court set defe ndant’s maxi mum commitment or Thiem date (see People v. Thiem
, 82 I ll. App. 3d 956, 403 N.E.2d 647 (1980)) as October 13, 2012. Def end ant appea ls, arguing his Thiem date should have been set at October 13, 2011. We aff irm the judgme nt of t h e t ri al court as modified, set defe ndant’s Thiem date as October 14, 2 0 1 1
, an d rema nd for issuance of an amende d maxi mum-term deter

mination judgment.

¶ 2 I . BA CKGROUND ¶ 3 On J an u ar y 3 1
, 2 0 0 8
, d efe ndant was char g ed with ag g ravated battery
, in that o n September 23, 2007, he threw a liquid substance on Timothy Fish, an employ ee of Pontiac Correc tional Fa cility

. At the time defe ndant was serving a two-year sentenc e for reta il theft, with a rele ase date of October 13, 2008. On Fe bruar y 25, 2009, the L ivingston County circ uit
court found defe ndant not guilty by rea son of insanity and order ed him transfe rre d to the Depa rtment of Human Service s (DHS) for a mental-he alth evaluation to deter mine whether he was subject to involuntary commitment. Def en d ant was transfe rre d from the I llinois Depa rtment of Correc tions (DOC) to DHS on April 7, 2009. On October 15, 2009, the circ uit
court e ntere d an orde r findingthat defe ndant was subjec t to involunt ary commitment. ¶ 4 The parties stipulated that defe ndant’s maxi mum period of involuntary commitment wa s three y ear s. There was a question, howeve r, when that period should beg in. Def endant argues the period should have begun running on October 13, 2008, the day he was schedule d to be rele ased from DOC on the original offense. The State first argued that the s en t en ce on the

-2-orig inal offe nse was not completed until the mandatory supervised rele ase (MSR) period had

expired, October 13, 2009. The State has now abandone d that argument, but argues that the time defe ndant rema ined in custody afte r his schedule d rele ase date, October 13, 2008, until the date of his transfe r to DHS, April 7, 2009, should not be counted, and the t h ree -year period should beg in April 7, 2009, the day he wa s committed to DHS’ custody

.

¶ 5 I I . ANALYSI S ¶ 6 A. Standard of Review ¶ 7 T h e i s s u e o f when defe ndant’s commitme n t p er i o d b ega n i s o n e o f s t at u t o ry interpre tation. I ssues of statutory interpre tation are questions of law, not fac t, and are subject
to de novo revie w. See W illiams v. Staples
, 208 I ll. 2 d 4 8 0, 486-87, 804 N.E.2d 489, 492 (2004).

¶ 8 B. Thiem Date Princ iples ¶ 9 Section 5-2-4( a) of the Unifie d Co d e o f Correc tions (Unified Code) (730 I L CS 5/ 5-2-4( a) (West Supp. 2007)) sets forth the proper proce dure following an NGRI finding

. After being found NGRI
, the defe ndant must be evaluated and, if nece ssary , place d in a secur e institution
to rec eive mental-he alth service s. See 730 I L CS 5/5-2-4(a ) (West Supp. 2007). Section 5-2- 4(b) of the Unified Code (730 I L CS 5/5-2-4( b) (West Supp. 2007)) deals with deter mining the maxi mum leng th of time an NGRI defe ndant can be committed to a secur e health fac ility and states: “(b) I f the Court finds the defe ndant i n n eed of mental health service s on an inpatient basis *** the initial order for admission of a defe ndant acquitted of a felony by rea son of insanity shall be for an indefinite period o f time. Such period of commitment shall not exceed the maxi mum leng th of time that the defe ndant would have been require d to serve , less cre dit for g ood behavior as provided in Section 5-4- 1 of the Unified Code of Correc tions, befor e beco ming elig ible for rele ase had he been convicted of and rec eived the maxi mum sentenc e for the most serious crime for which he has been acquitted by rea son of insanity

. The Court shall deter mine the maxi mum period of commitment by an appr opriate or der.” ¶ 10 The supreme court has noted: “T h e primary objective of section 5-2-4 [of the Unified Code] is to insure that insanity acquitee s are indeterminate ly institutionaliz ed [citation]
, and that the intrusion on liberty interests i s k ep t at a minimum .” (Interna l quotation marks omitted.) People v. Jurisec
, 199 I ll. 2d 108, 129, 766 N.E.2d 648, 660 (2002). “The commitment require d by section 5-2-4 of the [Unified] Co d e s er ves two purposes: (1) it allows for the treatment of the individual’s mental illness; and (2) it pr otects the individual and society from his potential dang erousne ss.” People v. Y oungerman , 342 I ll. App. 3d 518, 524, 800 N.E.2d 799, 805 (2003)

.

¶ 11 C. Max imum-Comm itment Period in I mprisoned Def endant Situation ¶ 12 In the prese nt case , both parties agree that defe ndant’s maxi mum-commit m en t p er i o d

-3-under se ction 5-2-4( b) should be three y ear s. The issue in the trial court stemmed f rom the State’s position that, pursuant to section 5-8-4( f) of the Unified Code (730 I L CS 5/5-8-4(f ) (West Supp. 2007) (re quiring any sentenc e for a crime committed while the defe ndant was in DOC custody be serve d consec utive to the defe ndant’s curr ent sentenc e))
, defe ndant was requ i re d to serve his commitment period consec utive to his curr ent prison sentenc e. On
appea l, the State has abandone d that position and now argues that defe ndan t ’s three -year maxi mum-commitment period did not commence until he was place d in DHS’ custody and

s t arte d rec eiving trea

tment on April 7, 2009. Def endant argues t hat he must rec eiv e cr ed i t for the time he spent in DOC custody awa iting the outcome of his pending ag g ravated-battery char g e, meaning his thre e-year maxi mum-commitment period beg an on October 13, 2008, the date he would have been rele ased from DOC custody b u t fo r the pending ag g ravatedbattery char g e.

¶ 13 1 . W

hen DHS Comm itment Runs Consecutive to Prison Term, MSR on theLatter Does Not Attach To Tol l Running of Maximum-Commitme nt Period ¶ 14 W e note the trial court err ed in findi n g t h at d ef en d an t ’s t h re e- y ea r m ax i m u m

commitment period did not beg in until Octobe r 13, 2009, af ter de fenda

nt’s MSR t erm ha d expir ed

. (O n ap p eal the S tate advance s a differe nt view.) The court was corre ct i n finding that, under section 5-8-4( f), had defe ndant been convicted of the alleg ed ag g ravated battery
, he would have been require d to serve his sentenc e consec utive to his curr ent prison sentenc e. Howeve r, the c ourt err ed in finding that defe ndant’s curr ent prison sentenc e did not expire until his MSR term was fully discharg ed. Section 5-8-4( e)( 2) of the Unified Code (730 I L CS 5/5-8-4(e )(2) (West Supp. 2007)) states:

“(e ) In deter

mining the manner in which consec utive sentenc es of imprisonment,

one or more of which is f or a felony
, will be serve d, the Depa rtment of Correc tions shall treat the offe nder a s though he had bee n committed for a single term with the followingincidents:

*** (2) the parole or mandatory supervised rele ase term shall be as provided *** for the most serious of the offenses involved .” (Empha sis added.)
This languag e clea

rly contemplates only one MSR term, to be serve d afte r rele ase from DOC. The MSR term on the orig inal sentenc e does not aff ect the beg inning date of the consec utive
sentenc e. ¶ 15 Under the above- cited languag e, had defe ndant been convicted of ag g ravated battery
, he would have se rved a

sentenc e conse cutive to hi s curr ent s entenc e, which would have be en completed on October 13, 2008. He would then have serve d his consec utive prison sentenc e, followed by a two-y ear MSR term. See 730 I L CS 5/5-8-1(d) (2) (West 2006) (MSR term for a C lass 2 felony is two y ear s). No p re ce d en t sug g ests that he would have been required to

serve his orig inal one-year MSR t erm prior

to his consecutive se ntence on the aggravatedbattery char g e. We find that the trial court err ed in applying section 5-8-4( f) in this manner to defe ndant’s thre e-year

maxi mum-commitment period.

-4-¶ 16 2. Affixing the Beginning Date for Maximum -Commitment Pe riod

¶ 17 When did defe nd an t ’s t h re e- y ea r m ax i m u m -c o m m i t m ent period commence ? We conclude the answe r to this question turns on how def endant’ s time spent in DOC custody betwee n October 1 3
, 2008, and April 7, 2009, is classified. For the following rea sons, we find that defe ndant must rec eive cre dit for this t i m e ag ainst his three -year maxi mumcommitment period. ¶ 18 The rec ord fails to show defe ndant rema ined in DOC custody in relation to his se ntence for reta il theft afte r revoc ation of g ood-time cre dit. The rec ord is clea r that defe ndant was not being held in DOC custody pursuant to revoc ation of his MSR. See 730 I L CS 5/3-3-9(a)(3) (West 2008) (allowing the Prisoner Review Boa rd to rec onfine individuals who violate the
terms of their MSR). Nor does the State argue that he violated his MSR or that any attempt

was made to revoke his MSR pursuant to sections 3-3-9( c) and (d) of the Unified Code (730 I L CS 5/3-3-9(c ), (d) (West 2008) (r equiring a written order and opportunity for a hear ing befor e MSR can be revoke d for a violation of the conditions)). I t seems axiom atic that defe ndant could n o t h av e been serving his one-year MSR term without actua lly being rele ased from custody

. This finding is confirme d by the rec ord perta ining to the August 31, 2010, hear ing at which it was confirme d that defe ndant was being held betwee n October 13, 2008, and Apr il 7, 2009, solely in connec tion with the pending a g g ravated-battery char g e. ¶ 19 The question then become s whether defe ndant is elig ible for cre dit toward his thre e-year maxi mum-commitment pe riod for the time he serve d in DOC prior to his transfe r to DHS. Section 5-8-7( b) of the Unified Code (730 I L CS 5/5-8-7(b) (West 2006)) allows a defe ndant

one d ay o f cre dit for eac h day spent in prese ntence custody as a result of the offe nse for which the sentenc e was impos ed

. People v. Johnson
, 396 I ll. App. 3d 1028, 1033, 920 N.E.2d 1212, 1216 (2009). Fur ther, under section 5-2-4( b) ( 7 3 0 I L CS 5 /5

- 2

- 4 (b) (West Supp. 2007)), when a defe ndant is found NGRI and s ub j ec t t o commitment: “Such period of

co mmitm ent shall not exceed the maxi mum leng th of time that the defe ndant would h av e been require d to serve , less cre dit for g ood behavior ***.” The court in Y oungerman , 342 I ll. App. 3d at 526, 800 N.E.2d at 806, analog ized the NGRI defe ndant’s si tuation to that of a defe ndant serving time in custody prior to conviction and found that t he defe ndant was entitled to cre dit for portions of two day s he spent in custody

. Other courts have also tacitly acknow ledg ed that a defe ndant subsequently “sente nced” to a mental-he alth fac ility must be
g iven credit for tim e served prior to his “sente ncing .” S ee People v. Pastewski
, 164 I ll. 2d 189, 192, 202, 647 N.E.2d 278, 281, 285 (1995) (re instating maxi mum-commitment period imposed by the trial court, which included cre dit for time serve d prior to being found NGRI ); People v . Hampton , 121 I ll. App. 3d 273, 278, 459 N.E.2d 985, 989 (1983) (the de fenda nt

was “committed to the Depa rtment for an indefinite period not to exceed 11 y ear s from his

arr est date” ); In re Commitment of Coppersmith
, 108 I ll. App. 3d 161, 162, 438 N.E.2d 1267, 1268 (1982) (the defe ndant was g iven credit for tim e served in custody of the sher iff prior to trial ag ainst his max imum-commitm ent per iod). ¶ 20 The S tate contends that defe ndant’s max imum-commitm ent period did n ot commence until he was committed to DHS’ custody beca use he was not rec eiving treatment prior to that point; thus, he was not “committed.” Howeve r, the Sta t e cit es no authority for this proposition, nor does it acc ount for how the time defe ndant spent in DOC af ter his release

-5-date of October 13, 2008, but prior to his transfe r t o DHS in this case should be allocated.

A defe ndant who is arr ested, held p en d i ng trial, and subsequently found NGRI and committed to DHS must be g iven cre dit for time serve d prior to trial. Def endant’ s situation does not differ

. Def

endant was held in DOC’s custody solely in connec tion with the pending
ag g ravated-battery char g e. I t follows that he must be g iven cre dit for the period betwee n his schedule d re lease from custody on October 13, 2008, and his transfe r to DHS on April 7, 2009, ag ains t h is maxi mum-commitment period. To find otherwise would be to deny defe ndant cre dit for time he serve d in DOC custody while awa iting the outcome of his trial. ¶ 21 Thoug h we ag ree with d e fenda nt’s contention that his three -year maxi mum-commitment period beg an when he was schedule d to be rele ased from prison following his t wo -year sentenc e for reta il theft, we disag ree with defe ndant’s asser tion that he should rec eive cre dit for October 13, 2008, ag ainst his sentenc e for reta il theft as well as his maxi mumcommitment period. I f defe ndant had been sentenc ed to consec utive prison terms, he would not ha ve been elig ible to rec eive cre dit ag ainst both sentenc es for October 13, 2008. See In

re Detention of Gavin
, 382 I ll. Ap p

. 3 d 946, 951, 889 N.E.2d 746, 749-50 (2008) (“Consec utive sentenc es are serve d back- to-bac k and one sentenc e does not beg in until the previous sentenc e has ended.” ); People v. Leeper
, 317 I ll. App. 3d 475, 485, 740 N.E.2d 32, 41 (2000) (def

end ant sentenc ed to consec utive prison terms cannot rec eive cre dit ag ainst

eac h sentenc e for time serve d). Instead, defe ndant’s consec utive sentenc e in this case would have begun on October 14, 2008. We, there fore
, conclude his maxi mum-commitment period did not commence until Octobe r 14, 2008, makinghis Thiem date Oc tober 14, 2011.

¶ 22 I I I . CONCLUSI ON ¶ 23 For the fore g oing rea s o n s we af fi rm t h e t ri al co u rt ’s j u d gment as modified, set defe ndant’s Thiem date as October 14, 2011, and rema nd for issuance o f an am ended maxi mum-term deter

mination judgment so re flec ting.

¶ 24 Affir

med as modified; ca

use re manded with dire ctions.

-6-