## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Harris , 2012 IL App (1st) 092251

Appellate Court Caption THE PEOPLE OF THE STATE OF IL L INOI S, Plaintiff-Appe l lee, v. BO BB Y HARRI S, Defe ndant-Appe llant.

District & N o. First District, F ifth Division Docke t No. 1-09-2251

Opinion filed Opinion withdrawn Opinion filed J uly 22, 2011
J anuar y 12, 2012 April 20, 2012

Held ( Note : Thi s 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

. ) The sentenc ing rang es for arme d robbery while arme d with a firea rm and ag g ravated kidnaping while arme d with a firea rm vi o lated the proportionate pe nalties clause beca use ea ch has a

harshe r sentenc e than

arme d violence predic ated on robber y or arme d violence predic ated on kidnaping
, and the appropriate reme dy for the improper sentenc es imposed on defe ndant was to remand for rese ntencing in acc ordanc e with the statutes as they exis ted prior to their amendment by the addition of the 15-y ear enhanc ement for

the use of a

firea rm.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 04-CR-23182 (01); the Hon. Stanley

J . Sacks, Judge, pr esiding

.

J udg ment Affirmed in part; cause re manded.Counsel on

Appea l Michae l J

. Pell et i er , Alan D. Goldberg
, and Emily Wood, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Mary P. Nee dham, and Sara A. Phill ips, Assistant State’s At t o rn ey s, of counsel), f

or the People.

Panel J USTI CE J

. GORDON delivere d the judgme nt of the court, with opinion. Presiding J ustice Fitzge rald Smit h and J ustice Howse concu rred in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Bobby Har

ris appeals from an order of the circ uit court o f C o o k C o unty summarily dismiss ing his petition for relief under the Post-Convi ction Hea ri ng Act (Ac t). 725 IL CS 5/122-1 et seq. (West 2004 ). Def endant contends that his convictions are

u n c o n s ti tu ti o nal for violating the proportional penalties clause of the I llinois Co n s ti tu ti o n an d the equal protec tion clause of t he United St ates Constituti on, and that his mitti mus should be corr ecte d t o re fl ec t two additional day s of cre dit for time serve d in custody prior to sentenc ing and the cor

rec t statute under whic h he wa s convicted.

¶ 2 BA CKGROUND ¶ 3 The rec ord shows that defe ndant was arr ested on September 10, 2004, and subsequently char g ed with a

rmed robbery

in that he, while ar

med with a dang erous wea pon, took a g old ring , an ea

rring , a wa llet and United States cur renc y from Ronald Whit ney

by the threat of fo rc e. Def

endant was also char g ed with six counts of ag g rava ted kidnaping
, in t h at h e knowing ly

by the use of f

orce or threatened use of for ce c arried Ronald Whit ney from one place to another with the intent to secr etly confine him ag ainst his will and soug ht to obtain

ransom. Following a jury trial, defe ndant was convicted of arme d robbery while arme d with

a firea rm and two counts of ag g ravated kidnaping while arme d with a firea rm. Subsequently
, on J uly 7, 2006, the trial court sentenc ed defe ndant to 20 y ear s’ imprisonment for arme d robbery and 20 y ear s for a g g ravated kidnaping , to run conc urre ntly

. ¶ 4 At the sentenc ing hearing, the State noted that defe ndant was convicted of two Class X offe nses and was, there fore
, elig ible for a sentenc e of b et ween 6 and 30 y ear s for eac h conviction. The State further reque sted the trial court to apply a 15-y ear sentenc e enhanc ement to eac h sentenc e beca use defe ndant was arme d with a fi re arm during the commission of the offe nses. Whil e the trial court took into acc ount that defe ndant’s felonies

wer e Class X offe nses, it declined to add the 15-y ear enhanc ement to either of his sentenc es beca use the State had failed to g ive defe ndant advanc e notice that it would be asking for an

-2-additional 15 y ear s if defe ndant was f ound g uilty

. ¶ 5 On direc t appeal, defe ndant arg ued that the trial court violated his right to a fair trial by tendering confusing jury instructions with reg ard to the char g e of ag g ravated kidnaping
, and alternatively
, that all but one of his convictions for ag g ravated kidnaping should be vacated under the one-a ct, one-c rime rule. This court aff irmed defe ndant’s convictions for arme d robbery and for one count of ag g ravated kidnaping while arme d with a firea rm, but vacated his remaining convictions for ag g ravated kidnaping pursuant to the one-a ct, one-c rime rule. People v. Harris
, No. 1-06-2098 (2008) (unpublished order under Supreme Court Rule 23). Pursuant to that order, the trial court issued a corr ecte d mitti mus on Dece mber 19, 2008. ¶ 6 Fo l l o wi n g t h at aff irmance
, defe ndant filed the pro se postconviction petition at b ar

. Def endant arg ued in that petition that the ag g ravated kidnaping statute under which he was sentenc ed violated the proportionate penalties clause of the I llinois Constit ution. Def endant maintained that the offe nse of ag g ravated kidnaping has the same purpose as the offe nse of

arme d violence predic ated on unlawful restraint but car ries with it a highe r sentenc e, and that it has the same elements but a harshe r sentenc e than ar m ed robbery and ag g ravated kidnaping

. Further, he repe ated the arg ument made in his direc t appeal that the trial court

err ed in tendering confusing jury instructions, f or which he then raised the related claim of ineffe ctive assistance of counsel for failing to object to t h o s e instructions. Additionally
, defe ndant ar g ued that his rig ht to a trial by jury was violated w hen he w as subjecte d to the truth-in-sentenc ing law. He contende d that the truth-in-sentenc ing provision under which he

was sentenc ed was trig g ere d by the char g e of ag g rava ted k idnaping while arme d with a firea rm, but the jury was never asked to determine whether
, in fac t, a fi rea rm was used. L astly
, defe ndant claimed that he was denied eff ective assistance of appellate counsel, who failed to c halleng e his sentenc e. ¶ 7 After a timely revie w of defe ndant’s postconviction petition, the circ uit court summarily dism i s s ed i t as frivolous and patently without merit. In doing so, the court found that defe ndant’s claim that his conviction violated the proportionate penalties clause lacke d merit beca use such a claim cannot be established mere ly beca use two o ff

enses have the same purpose, as is the case with ag g ravated kidnaping and arme d violence predic ated on unlawful

re straint. Rather, to establish such a claim for a violation of the proportionate p en al t i es clause
, it must be demonstrated that two offe nses have identical elements. Acc ording ly
, the
court found t h at s i nce ag g ravated kidnaping and arme d robbery do not have identical elements, defe ndant’s arg ument that they have d i s p ro portionate sentenc es was meritless. Likewise, it noted that the proportionate p en al t i es clause does not apply to a comparison betwee n ag g ravated kidnaping predic ated on the use of a firea rm and ag g ravated kidnaping predic ated on ra n s o m , t h e elements of which are not identical. I n addition, the court determined that defe ndant’s challeng e to the jur y i n s t ruction and related ineffe ctive assistance of counsel claim had been raised on direc t a ppeal and wer e, there fore
, barr ed by

res judicata

. Further, the cou rt ex plained that defe ndant’s rig ht to trial by jury was not vio l at ed wh en he was subjected to the truth-in-sentenc ing law beca use that law is not a sentenc ing enhanc ement which must be submitt ed to a jury and proven bey ond a rea sonable doubt. It noted that this court has previously reje cted the arg ument made by defe ndant b eca use the truth-in-sentenc ing statute does not chang e the maxi mum underlying penalty

-3-presc ribed. Acc ording ly
, the court reje cted defendant’s claims of ineffe ctive assistance of

trial and appellate cou nsel beca use if defe ndant’s trial counsel had objected to the jury in s tructions, or if appellate counsel had challeng ed the validity of the truth-in-sente n c in g law , those arg uments would have been reje cted. Def endant subsequently filed a motion to

rec onsider the de nial of his postconviction petition, which the circ uit court denied. ¶ 8 On appeal from that order
, two separ at e b ri ef s wer e filed on behalf of defe ndant. On September 9, 2010, the State Appellate Def ender
, who was assig ned to repr esent defe ndant

on this appeal, filed a brief on behalf of defe ndant, which challeng ed only the amount of

cre dit awa

rded toward defe ndant’s sentenc e for prese ntencing incar cer ation. On November 2, 2010, this court enter ed an order g ranting defe ndant’s motion to file a pro se supplemental brief, which he filed on November 12, 2010. I n that supplemental brief, defe ndant contends that his convictions for ag g rava ted kidnaping and arme d robber y a re u n c o n s ti tu ti o n al b e c a

u se they violate the proportionate penalties clause of the Illinois C onstitut ion. I n addition, defe ndant contends that the application of the truth-in-sentenc ing statute with reg ard to his conviction for ag g ravated kidnaping violates both the proportionate penalties clause and his rig ht to equal protec tion. He also challeng es the acc urac y of the statutory citation for his conviction for a g g ravated kidnaping as it appea rs in his mit timus.

¶ 9 ANALYSI S ¶ 10 W e fi rs t ad d re s s defe ndant’s contention that eac h of his conviction s v i o l at e t h e proportionate penalties clause of the I llinois Constit ution. Wit h respe ct to his conviction for

arme d robbery while arme d with a firea rm, defe ndant maintains that his conviction violates the proportionate penalties clause beca use it has the same elements as the offe nse of arme d violence predic ated on robbery , but car ries a harshe r sentenc e. Simi larly
, with reg ard to his conviction for ag g ravated kidnaping while arme d with a firea rm, defe ndant contends that his conviction violates that clause beca use i t has identical elements as, but a g reater sentenc e than, arme d violence predic ated on kidnaping

. Acc ording to defe ndant, eac h of the offe nses for wh i ch h e was convicted car ries a 15-y ear enhanc ement, which makes the sentenc ing rang e for those crimes 21 to 45 y ear s’ imprisonment, while arme d violence predic ated on robbery or kidnaping car

ries a lesser term of 15 to 30 y ear s. Def endant m aintains that the appropriate relief for these violations of the proportionate penalties clause is a reve rsal of both his convictions, a reduc tion of the offe nse of arme d robbery while arme d with a firea rm to simpl e robbe ry , a re duction of the offe nse of ag g rava ted kidnaping to simpl e kidnaping
, and a r emand of

the cause for

rese ntencing

. ¶ 11 The State responds that defe ndant has forf eited those claims beca

use t h ey co u l d have been properly raised on direc t appeal and defe ndant failed to do so. We disag ree

. Although defe ndant could have raised those claims on direc t appeal, the unconstitutionalit y of a statute may be raised at any time. People v. W agener , 196 I ll. 2d 269, 279-80, 752 N.E.2d 430, 438 (2001); see also People v. English
, 3 3 4 I ll. App. 3d 156, 168-69, 778 N.E.2d 218, 229-30 (2002) (noting that while a claim that could have been raised on direc t appeal is us u ally barr ed by waiver in a postconviction proce eding
, a party may challeng e the constitutionalit y of a statute at any time). Thus, we conclude that defe ndant has not f orfe ited his c laim, a s it

-4-involves a determination of whether the statutes under wh ich he was sentenc ed are

unconstitutional. ¶ 12 The c onstitut ionality of a statute is pure ly

a matter of law, and we revie w that question de novo

. People v. Sharpe
, 216 I ll. 2d 481, 487, 839 N.E.2d 492, 497 (2005). As our supreme court ha s held:
“ ‘A ll statutes carry

a strong presumption of constitutionality . [C itation.] To overc ome [t hat] presumption, the party challeng ing the statute must clea rly establish that it violates the constitution. [C itation.] We g ener ally defe r to the leg islature in the sentenc ing are na beca use the leg islature is instit utionally better equipped to g aug e th e seriousness of various offe nses and to fashion sentenc es acc ording ly

. [C itation. ]’ ” P eople v. Hauschild
, 226 I ll. 2d 63, 82, 871 N.E.2d 1
, 1 2 (2 0 0 7 ) (q uoting Sharpe
, 216 I ll. 2d at 487, 839 N.E.2d at 497). ¶ 13 The proportionate penalties clause of the Illinois Constit ut i o n p ro v i d es t h at “[ a] l l penalties shall be de termined both ac cording to the seriousness of the offe nse and w ith the objective of restoring the o ff en d er to useful citizenship.” I ll. Const. 1970, art. I
, § 11. I n analy zing whethe r a statute violates the proportionate penalties c lause, wemust determine “whe ther the leg islature has set the sentenc e in acc ord with the seriousness of the offe nse.” People v. Guev ara , 216 I ll. 2d 533, 543, 837 N.E.2d 901, 907 (2005). A statute violates the proportionate penalties clause wher e two offe nses have identical elements but one car ries a g reater sentencing rang e than the other. People v. Bake r , 341 I ll. App. 3d 1083, 1087, 794 N.E.2d 353, 358 (2003)

. ¶ 14 I n this c ase, defe ndant was convicted of arme d robbery while arme d with a firea rm and ag g ravated kidnaping
, and he was sentenc ed to 20 y ear s’ imprisonment for eac h offe nse. The Criminal Code of 1961 define s armed r obbery as the taking of property from the per son or prese nce of another b y t h e use of forc e or threat of forc e while arme d with a firea rm (720 IL CS 5/18-1(a)
, 18-2(a )(2) (West 2006)), and ag g ravated kidnaping as the commissi o n o f kidnaping while arme d with a firea rm (720 IL CS 5/10-2(a) (6) (West 2006)). Armed violence is the commission of a felony
, such as robbery or kidnaping
, while arme d with a cate g ory I
, cate g ory I I or categ ory I I I wea pon. 720 IL CS 5/ 33A-1(c )(1) (West 2006). Categ ories I and I I combined i n cl u d e all types of firea rms. 720 IL CS 5/33A-1(c )(2) (West 2006). As our supreme court rec og nized in Hauschild
, 226 I ll. 2d at 86, 871 N.E.2d at 14, when the offe nse

o f armed violence is predic ated on robbery pursuant to section 33A-1 (720 IL C S 5 / 3 3 A1(c) (1) (West 2006)), it contains the same elements as arme d robbery whi l e ar m ed wi th a firea rm. Likewise, this court has found that when arme d violence is predic ated on kidnaping under that statute, it has identical elements as ag g ravated kidnaping

. People v. Gibson
, 403 I ll. App. 3d 942, 954, 934 N.E.2d 611, 621 (2010); Bake r , 341 I ll. App. 3d at 1089-90, 794 N.E.2d at 358-59. Acc ording ly
, pursuant to the proportionate penalties clause
, the sentenc es assig ned for arme d robbery while arme d with a firea rm and for ag g ravated kidnaping should
not be differ ent from the sentenc e assig ned for arme d violence. Hauschild
, 226 I ll. 2d at 86- 87, 871 N.E.2d at 14; Gibson
, 403 Ill. App. 3d at 954, 934 N.E

. 2 d at 6 21; Bake r , 341 I ll. App. 3d at 1089-90, 794 N .E.2d at 358-59. ¶ 15 Howeve r, t he sentencing rang es for arme d robbery while armed with a firearm and for

-5-ag g ravated kidnaping areg reater than that for armed violencepredic ated on either robbery

or kidnaping

. Armed robbery while arme d with a firea rm and ag g rava

ted kidnaping are both Class X felonies which carry a 6- to 30-y ear term with a mandatory 15-y ear enhanc ement, making the sentenc ing rang e for those offe nses 21 to 45 y ear s. 720 IL CS 5/ 18-2(a )(2) , 10- 2(b) ( West 2006); Hauschild , 226 I ll. 2d at 86, 871 N.E.2d at 14; Gibson
, 403 I ll. App. 3d
at 954, 934 N.E.2d at 621. A violation of the arme d violence statute, howeve r, is punishable by a sentence rang ing from 15 to 30 y ear s. 720 IL CS 5/33A-3(a ) (W est 2000); Hauschild
, 226 I ll. 2d at 86, 871 N.E.2d at 14. Since the penalties for arme d robbery while arme d with

a firea rm and for ag g ravated kidnaping are harshe r than the penalty for arme d violence, defe ndant’s sentenc es fo r arme d robbery while arme d with a firea rm and for ag g ravated kidnaping violate the proportionate pena lties clause. ¶ 16 Neve rtheless, we reje ct defe ndant’s arg ument that his convictions should be reduc ed to simple robber

y and simple kidnaping
, and his cause remanded to be sentenc ed as these lesser offe nses. The supreme co u rt i n Hauschild
, 226 I ll. 2d at 89, 871 N.E.2d at 16, square ly reje cted that arg ument and held that “whe n an amended sentencing statute has been found
to violate the proportionate penalties clause
, the proper reme dy is to remand for rese ntencing in a ccor dance with the statute as it ex isted prior to the amendment.” Hauschild
, 226 I ll. 2d
at 88-89, 871 N.E.2d at 15-16. Be fore the arme d robbery and ag g rava ted kidnaping statutes

wer e amended by Public Act 91-404 (Pub. Act 9 1 -4 0 4 (e ff

. J an. 1, 2000)), armed robbery while arme d with a firea

rm and ag g ravated kidnaping wer e Class X fe lonies which car ried only a sente nce of 6 to 30 y ear s’ imprisonment with no 15-y ear enhanc ement, which is not harshe r than the penalty for arme d violence. 720 IL CS 5/18-2(b) (West 1998); 730 IL CS 5/5- 8-1(a )(3) (West 1998). Acc ording ly
, we conclude that the appropriate reme d y is n o t to reduc e defe ndant’s convictions, but to remand his cause to the trial court fo r re s en t encing in

acc ordanc e with the statutes as they exis ted prior to their amendment by the addition of the 15-y ear penalty enhanc ement. ¶ 17 Whil e the State arg ues that defe ndant’s s en t en ce d o es n o t violate the proportionate penalties clause beca

use the trial court ref

used to impose the 15-y ea r enhanc ement on defe ndant, that contention lacks merit. The supreme court in Hauschild
, 226 I ll. 2d at 88-89, 871 N.E.2d at 15-16, remanded defe ndant’s case for rese ntencing afte r finding that th e s ta tu te

u n d er which defe ndant was sentenc ed violated the proportionate penalties clause
, ev en though the sentenc e imposed by the trial court had been proper , in that it did not include the 15-y ear enhanc ement. I n that case , wher e defendant had been convicted and sentenced for more then one offense, the court found that the appropriate remedy was to rese nt en ce him under the statute as it exis ted befor e the 15-y ear enhanc ement was added. This would permit the trial court to ree valuate the leng th of defe ndant ’s sentenc e for eac h offe nse, while considering defe ndant’s sentenc e in its totality under the statute as i t ex isted before the amendment. Hauschild
, 226 I ll. 2d at 89, 871 N.E.2d at 16. Following Hauschild
, the court in Gib s o n , 4 0 3 I l l

. App. 3d at 955, 934 N.E.2d at 622, remanded defe ndants’ case s for

rese ntencing
, despite the fac t that the trial court had expli citly stated that it was sentenc ing them to 12 y ear s’ imprisonment on eac h count of ag g ravated kidnaping
, which was a proper sentenc e, and then added the 15-y ear enhanc ement bec ause the y wer e armed with firea

rms during the kidnaping . The court rea soned that since the trial court did not spe cifica lly state

-6-that it would still sentenc e defe ndants to 12 y ea rs if the enhanc ed portion of the sentenc e

wer e invalidated, it must be g iven the opportunity to ree valuate the defe ndants’ sentenc es in

acc ordanc e with the statute as it e x isted befor e the amendment. Gibson
, 403 I ll. App. 3d at 955, 934 N.E.2d at 622. ¶ 18 The trial court in this case d ec l i ned to impose the 15-y ear add-on penalty to either of defe ndant’s sentenc es, and his 20-y ear sentenc es wer e, there fore
, proper

. Howeve r, the trial
court stated that the rea son why it declined to add the 15-y ear enhanc ement was that the State did not g ive proper not ice to defe ndant t hat i t would seek the enhanc ement, and not that it had any doubts as to whether

the add- on penalty

was va lid. Accor dingly , we c onclude that while the sentenc e imposed by the trial court was proper , the appropriate reme dy is to

remand t h i s case for sentenc ing in acc ordanc e with the statute as it exis ted befor e it was amende d, in order to allow the trial court to determine defe ndant’s sentenc e for eac h offe nse while taking into account the totality of his sentenc e. See Hauschild
, 226 Ill. 2d at 89, 871 N.E.2d at 16; Gibson , 403 I ll. App. 3d at 955, 934 N.E.2d at 622. ¶ 19 De fe n d an t next contends that, like the statutes discussed above, the application of the truth-in-sentenc ing statute with reg ard to hi s conviction for ag g ravated kidnaping violates the proportionate penalties clause o f the I llinois Constit ution. Acc ording to defe ndant, t he application of section 3-6-3(a) (2)( ii) of t he Un i fi ed C ode of Correc tions (730 I L CS 5/3-6- 3(a) (2)( ii) (West 2006)) t o his sentenc e for ag g ravated kidnaping is unconstitutionally disproportionate becau s e it require s him to serve 85% of his sentenc e for ag g ravated kidnaping
, while it would allow the Depa rtment of Correc tions to rele ase him afte r serving only 50% of his sentenc e for the identical offe nse of arme d violence predic ated on kidnaping

. ¶ 20 As previously noted, statutes are presumed to b e co n s t i t u tionally valid, and the party challeng ing the validity of a statute has the burden of clearly establishing the statute’s constitutional defe cts. People v. Kimbrough
, 163 I ll. 2d 231, 237, 644 N.E.2d 1137, 1141 (1994). Further, in construing a statute, a revie wing court has a duty to aff irm its validity and constitutionalit y if rea sonably possible. Kimbrough
, 163 I ll. 2d at 237, 644 N.E.2d at 1141. ¶ 21 Having deter

mined, as discussed above, that the offe nse of ag g ravated kidnaping while

arme d wi t h a firea

rm has the same elements as the applicable version of arme d violence predic ated on kidnaping
, we now turn to the question of whether t h e truth-in-sentenc ing require ment that defe ndant serve 85% of his sentenc e amounts to a g reater punishment than he would fa ce f

or the off ense of arme d violence. ¶ 22 The truth-in sentenc ing law provides under section 3-6-3(a)( 2)(ii) of the Unified Code of C orre ctions provides that “a prisoner serving a sentence for *** ag g ravated ki dnapping *** shall rec eive no more than 4.5 day s of g ood conduct cre dit for eac h month of his or her
sentenc e of imprisonment.” 730 IL CS 5/3-6-3(a )(2) (ii) (West 2006). I n contra st, section 3-6- 3(a) (2.1) provides that for offe nses not enume ra t ed i n subsection (a) (2), a prisoner “shall

rec eive one day of g ood conduct cre dit for eac h day of his or her sentenc e,” which would reduc e his period of imprisonment by half. 730 IL CS 5/3-6-3(a )(2.1) (West 2006). Further, under section 3-6-3( a)( 2)(iii), a prisoner serving a s entenc e for arme d violence with a cate g ory I wea

pon or a cate g ory I I wea

pon “shall rec eive no more than 4.5 day s of g ood conduct cre dit for eac h month of his o r her sentenc e,” but only when the court enter ed a

-7-finding that the conduct lea ding to his conviction resulted in g reat bodily harm to a victim.

730 IL CS 5/3-6-3(a )(2) (iii) (West 2 0 0 6 ). Thus, while the Unified Code of Correc tions mandates that a defe ndant convicted of ag g ravated kidnaping serve85% of his se ntence in

every case , it only require s a defen d an t convicted of arme d violence to serve that same perc entag e of his sentenceif the court finds that his conduct resulted in g reat bodily harm. Wit hout such a finding
, a defe ndant convicted of arme d violence could be elig ible for early rele ase a fter se rving 50% of his prison sentenc e. ¶ 23 Whil e we note the d i ff er en ce betwee n the rules for early rele ase with reg ard to eac h offe nse, that d i ff

er en ce d oes not pertain to the sentenc ing rang e of the two offe nses. This
court has held t h at whether penalties for offe nses with identical elements violate the p roportionate penalties clause depends only on whether they have differ ent sent en ci n g rang es, and not the manner in which those sentenc es are car ried out. People v. Hawkins
, 409 I ll. App. 3d 564, 572-73, 948 N.E.2d 676, 6 8 3 -8 4 (2011). I n Hawkins
, 409 I ll. App. 3d at 566, 948 N.E.2d at 678, defe ndant was convicted of three co u n t s o f ag g ravated criminal sexual assault and sentenc ed to c onsecutive sentenc es of 7 y ear s for eac h count. Def endant alleg ed that his mandatory consec utive sentenc es violated the proportionate penalties clause beca use t he offense of ag gra v at ed kidnaping did not mandate consec utive sentenc es, even though, acc ording to defe ndant, it had identical elements. Id

. The court fou n d t h at even if those two offe nses had identical ele ments, the mandatory consec utive sentenc ing struc ture would not violate the proportionate penalties clause beca use the offe nses had the same sentenc ing rang e, and the structure aff ecte d only the manner in which the sentenc e was

car ried out and not the punishment. Id. at 572-73, 948 N.E.2d at 683-84. ¶ 24 Ad ditionally
, in People v. Robinson
, 383 I ll. App. 3d 1065, 1071, 892 N.E. 2 d 3 9
, 4 4 (2008), this court found that the truth-in-sentenc ing provision requiring that defe ndant serve 85% of his sent en ce d o es n o t chang e the penalty for the underlying offense
, at l east to the
extent that it would violate his rig ht to jury trial under Apprendi v. New Jerse y , 530 U.S. 466 (2000). Def

endant in Robinson was co n v icted of arme d robber y , vehicular hijacking and vehicular invasion afte r a jury trial, and a fter se ntencing , the trial court found that he mus t

serve 85% of his sentenc e beca use he inflicted g reat bodily harm on one of the victims. Robinson
, 383 I ll. App. 3d at 1068, 892 N.E.2d at 41. Def endant arg ued that the truth-insentenc ing provision violated his rig ht to due proces s b ec au s e the finding of g reat bodily harm incre ased his sentenc e, but was not submitt ed t o t h e j u ry and proved bey ond a

rea sonable doubt. Id. at 1071, 892 N.E.2d at 44. The revie wing court reje cted that arg ument, finding that the statute did not chang e the maxi mum penalty for the underlying offe nse. Id

. The court held that our truth-in-sentenc ing l aw d o es not chang e the sentenc e actua lly imposed on that defe ndant for the crime to which it is applied. Id

. Rather, t h e t ru t h -insentenc ing law deter

mined the perc entag e to be actua lly serve d, which in turn depends upon the conduc t of the def

endant while se rving that sentenc e. Id

. ¶ 25 Her e, too, a s in Robinson
, defe ndant arg ues that the truth-in-sentenc ing law, as applied
to him, is tantamoun t t o t he im position of a harshe r puni shment than t hat which he would

rec eive for the offe nse of arme d violence beca use it require s him to serve a highe r perc entag e of his sentenc e. However, here
, as in Hawkins
, as well as Robinso n , s ince the truth-insentenc ing provision does not aff ect the sentenc ing rang e imposed for the off en s es of

-8-ag g ravated kidnaping and arme d violence, but only the manner in wh i ch the sentenc e is

car ried out, we conclude that it does not violate the proportionate penalties clause

. Hawkins
, 409 I ll. App. 3d at 574, 948 N.E.2d at 683-84. ¶ 26 Def

endant nex t contends that even if the di sparities in treatment ref lected for different offe nses under the truth-in-sentenc ing law would not be violative o f t h e proportionality require ment under the proportionate penalties clause of the I llinois Constit ution, they would be a fac tor in deter

mining the constitutionalit y of a sentenc e under the equal protec tion clause of the United States Constit ution. The equal protec tion clause of the fourtee nth amendment require s equality betwee n g roups of people who are simil arly situated. People v. Gorgis
, 337 I ll. App. 3d 960, 975, 787 N.E.2d 329, 3 4 0 (2003) (citing U.S. Const., amend. XI V). This court ha s rec og nized that “[o] nly ‘[w] hen the law lay s an unequal hand on those who have committed intrinsically the same quality of offe nse and [penaliz es] one and not the other’ is the equal protec tion clause vio l at ed .” (Interna l quotation marks omitted.) Gorgis
, 337 I ll. App. 3d at 975, 787 N.E.2d at 340 (quoting People v. Adams
, 116 I ll. App. 3d 315, 321, 451 N.E.2d 1351, 1356 (1983), quoting Skinner v. Oklahoma ex rel. W illiamson
, 316 U.S. 535, 541 (1942))

. Having conclude d above that wher e a statute limit s cer tain inmates’ elig ibilit y for g ood-time cre dit t h at does not constitute a highe r penalty for the purpose of the proportionate penalties clause
, we must now determine if such limit ation amounts to unequal
treatment of those inmates so as to violate the e qual protec tion clause. ¶ 27 Where a statutory classification does not impinge on a fundame ntal constitutional right and is not based on a “suspec t” class, such as rac e, a court will use the rational basis test to revie w its validity

. People v. Ree d
, 148 I ll. 2d 1, 7, 591 N.E.2d 455, 457 (1992). Under this test, the statutory classification will be deeme d constitutional if it bear s a rational basis to a leg itimate state interest. Ree d
, 148 I ll. 2d at 7-8, 591 N.E.2d at 457. It is well established that

a statute, such as the one in this case , which limit s the amount of g ood-time cre dit that may be g iven to defe ndants who wer e convicted of certain enumer ated offe nses is revie wed under this standard. See Brewer v. Peters
, 262 I ll. App. 3d 610, 612-13, 633 N.E.2d 17, 18 (1994). I n point of fac t, neither party challeng es the applicability of the rational basis test to the fac ts of this case , and our analy sis will according ly be pre mised upon that test. ¶ 28 I n determining whether the truth-in-sentenc ing law violates the equal protec tion clause

as applied to defe ndant, we first addre ss defe ndant’s question of whether it is a violation of equal protec tion for the statute to differ entiate betwee n the amount of g ood-time cre dit that may be g iven to differ ent g roups of prisoners based on the offe nse for which they wer e convicted. The decision in Brewer
, 262 I ll. App. 3d 610, 633 N.E.2d 17, is instructive. I n that

case , the court upheld the validity of a statute that allowed the Depa rtment of Correc tions to

awa rd an additional 90 day s of g ood-time cre dit to its inmates, except to t h o s e who wer e convicted of certain offe nses enumer ated in the statute. Brewer
, 262 I ll. App. 3d at 612-13, 6 3 3 N. E .2d at 18-19. I n doing so, the court found that the statute and its classifications exhibi ted a rational basis related to a leg itimate go vernme nt interest, namely
, alleviating prison overc rowding and reduc ing the risk of public harm from the early rele ase of dang erous offe nders. Brewer
, 262 I ll. App. 3d at 612-13, 633 N.E.2d at 18-19. Thus, althoug h limit ing the eli gi b i l i t y of certain inmates to g ood-time cre dit may constitute disparate treatment among those inmates, a statute does not in and of i t s elf violate equal protec tion wher e it

-9-differ entiates among prisoners who c ommitt ed disparate crimes.

¶ 29 Def

endan t n ev erthe less claims that while equal protec tion may not be violated wher e inmates are classified based on the commission of disparate crimes, it is violated wher e a statute differ entiates between inmat es wh o co mmitt ed differe nt crimes that have the same elements, namely
, ag g ravated kidnaping while arme d with a dang erous wea pon and arme d violence predic ated on kidnaping

. Thus, we must now addre ss the question of whether there is a violation of the equal protec tion clause wher e two offe nses have the same elements but differ ent elig ibilit y

for g ood-time cre dit. ¶ 30 Al t h o ug h the proportionate penalties clause of the I llinois Constit ution does notall o w offe nses wit h the s ame elements to h ave differ ent puni shment, the equal protec tion clause of the United States Constit ution does not impose the same limit ation. See People v. W ade
, 131 I ll. 2d 370, 379, 546 N.E.2d 553, 557 (1989). As previously discussed, we determined that a require ment that certain defe ndants serve a highe r perc entag e of their sentenc es does
not constitute a highe r penalty for those defe ndants and would, there fore
, not be deeme d to be disproportionate. We likewise conclude
, albeit for d i ff er ent rea sons, that it would not violate the equal protec tion clause
, even though it would result in different treatment of those defe ndants. I n point of fac t, our supreme cour t h as h el d that even wher e the statutes themselves provide differ ent sentenc ing rang es for simil ar conduct, g iving the prosec utor the power to elec t upon which statute to prosec ute the offe nse, “the availabilit y o f d i ff er ent punishment for separ ate offe nses based on the commission of the same acts does not offe nd the constitutional gua

rante es of e qual protec tion or due proc ess.” W ade , 131 I ll. 2d at 379, 546 N.E.2d at 557 (citing People v. McCollough
, 57 I ll. 2d 440, 443-45, 313 N.E.2d 462, 564-65 (1974))

. I n McColl ough
, 57 I ll. 2d at 444-45, 313 N.E.2d at 564-65, the supreme court held that there was no violation of th e equal protec tion clause wher e two offe nses overla pped, such that they had the same elements, even though they had different penalties. I n that case , defe ndant was convicted of rec kless h o m icide and challeng ed the constitutionalit y of the statute which define d that offe nse beca use it had the same elements

as involuntary manslaug hter when predic ated on driving a motor vehicl e, b u t differ ent punishment. McCollough
, 57 I ll. 2d at 441-42, 313 N.E.2d at 562-63. The app el l at e court ag ree d and found that defe ndant was deprive d of due proce ss and equal protec tion be cause the statute place d within the discretion of the State’s Attorney
, the g rand jury
, the trial court

or the petit jury the power to impose differ ent deg ree s of punishment on defe ndants who commit identical acts un d er t h e s ame circ umstances. Id. Our supreme court reve rsed that decision and held that the statute did not violate either the due proce ss or the equal protec tion clause

. McCollough
, 57 I l l

. 2 d at 445, 313 N.E.2d at 565. I n doing so, it noted that the leg islature may have established the new offe nse of rec kless homicide beca use i n m any instances judge s and juries may have been reluc tant to convict a defe ndant of involuntary mansl au gh t er when the rec kless conduct that cause d the death was the driving of a motor vehicle

. Id. The court further noted that the leg islature may have determined that beca use there are varying deg ree s of rec kless driving
, the offe nse of manslaug hter, a felony
, should be re tained for the more serious offe nses. Id. As noted by J ustice Schaef er, w riting f

or that court, “[s ]uch deter

minations are not unrea sonable, in our opinion, and their expression in the statute deprives no one of dueproce ss or equa l protection of the la ws.” Id.

-10-¶ 31 The United States Supreme Court rea ched the sam e d ec i s i o n i n Un i t ed S t a t es v.

Batchelde r , 442 U.S. 114, 123 (1979). I n that case , the S upreme Court held that therewas no violation of the equa l protection clause wher e two statutes proscribed identical conduc t but provided differe nt punishment. Batchelde r , 442 U.S. at 123-24. I n doing so, the C ourt noted that it had “long rec og nized that when an act violates more than one criminal statute, the Government may prosec ute under either so long as it does not discriminate ag ainst any class of defe nd an t s , ” such as rac e or g ender

. Batchelde r , 442 U.S. at 123-24. It further explained: “[T] here is no appre ciable differ ence betwee n the discretion a prosec utor exercises when deciding whether to char g e under one of two statutes with d i ff er ent elements and the discretion he exercises when choosing one of two statutes with [t he same] elements. I n the for mer situation, once he determines that the proof will support conviction under either statute, his decision is indisti n g uishable from the one he fac es in the latter context.” Batchelde r , 442 U.S. at 125. ¶ 32 Acc ord i ng ly
, we conclude that while a person convicted of ag g ravated kidnaping may be elig ible for a lesser amount of g ood-time cre dit than a person convicted of arme d violence predic ated on kidnaping
, such differ ence in treatment does not amount to a violation of the equal pr otection clause

. ¶ 33 We now turn to defe ndant’s contentions that the mitti mus should be amende d to refle ct 666 day s of time spent in prese ntencing custody , instead of 664 day s as cur rently ref lected there in; and that it should ref lect the corr ect statutory citation for his a g g ravated kidnaping conviction. Howeve r, having d et er m ined to remand this case for rese ntencing based on defe ndant’s sentenc es’ violation of the proportionate penalties clause
, it would be premature to now order a spec i fi c correction to be made to the mitti mus; there fore
, we now addre ss,

more g ener ally
, whether the trial court should am en d d ef endant’ s next mitti mus to ref lect additional prese ntencing cre dit and a differ ent statutory citation for his ag g ravated kidnaping conviction. ¶ 34 Def

endant arg ues that he is entitled to cre dit for both the day of his arr est and the day of his se ntencing

. The State ag ree s that defe ndant is e ntitled to one a dditional day of cre dit to ref lect the time that he spent in custody on the day of his arr est, but maintains that defe ndant is not entitled to cre dit for the day of his sentenc ing. The question of wheth er defe ndant’s mitti mus should b e am en d ed is a purely leg al issue, and we apply a de novo standard of revie w. People v . Jones , 397 I ll. App. 3d 651, 654, 921 N.E.2d 768, 771 (2009). ¶ 35 We ag ree with both parties t h at defe ndant is entitled to cre dit for the day of his arre st. Under the applicable section of the Unified Code o f Correc tions (Code), a defe ndant is entitled to cre dit for “time spent in custody as a result of the offe nse for which the sentenc e

was imposed.” 730 IL CS 5/5-8-7(b) (West 2006). Further, it is well established that “ ‘[o] nce

a defe ndant is arr ested for an offe nse[,] he or she is clea rly “in custody ” for that offe nse even befor e he or

she is formally

char g ed.’ ” People v. Coleman
, 391 I ll. App. 3d 963, 984, 909 N.E.2d 952, 970 (2009) (quoting People v. Roberson
, 212 I ll. 2d 430, 439, 819 N.E.2d 761, 766 (2004))

. Thus, a defe ndant is entitled to sentenc ing cre dit for the day of his arr est. Coleman , 391 I ll. App. 3d at 984, 909 N.E.2d at 970.

-11-¶ 36 Howeve r, we ag ree with the S tate that defe ndant i s not entitled to cre dit for the day he

was sentenc ed beca

use the mitti mus was issued that same day

. Our supreme co u rt has

rec ently held that the day that a defe ndant’s mitti mus is issued counts as a day of defe ndant’s
sentenc e, and since de fendant is entitl ed to havethat day counted only

once, the day of the issuance should not be counted as a day of prese ntence custody

. People v. W illiams
, 239 I ll. 2d 503, 509, 942 N.E.2d 1257, 1261 (2011). I n doing so, the court analy zed sections 5-4.5- 100(b) and 3-6-3 of the Code, under which defe ndant must rec eive one day of g ood-conduc t cred i t fo r each day spent in prese ntence incar cer ation, as well as credit for each day of hi s sentenc e under secti o n 3 -6 -3

. W illiams
, 239 Ill. 2d at 507, 942 N.E.2d at 1260 (citing 730 IL CS 5/5-4.5-100(b)
, 3-6-3 (West 2008)). Thus, the court explained that defe ndant would ultimately rec eive the same cre dit f or the day of his se ntencing whether it is counted under section 5-4.5- 100 or sec tion 3-6-3. W illiams , 239 I ll. 2d at 507, 942 N.E.2d at 1260. ¶ 37 The court then noted that under secti o n 5 -8-5, the trial court is require d to commit a defe ndant to the Depa

rtment of Correc tions at the time it issues the mitti mus, and section 5- 4 .5-100(a ) provides that a defe ndant’s sentenc e “shall commence on the date on wh i ch [defendant] is rec eived by the Depa rtment.” (Interna l quotation marks omitted.) W illiams
, 239 I ll. 2d at 509, 942 N.E.2d at 1261. Since section 5-8-5 require s the trial court to commit defe ndant to the Depa

rtment at the time when the judgme nt is e ntere d, the court explained, section 5-4.5-100( a) means that defe ndant’s sentenc e beg ins on the day that the mitti mus is
enter ed. W

illiams
, 239 I ll. 2d at 509, 942 N.E.2d at 1261. The court then conclude d that since the date of the issuance of the mitti mus is a day of sentenc e, for which defe ndant is entitled
to cre dit under section 3-6-3, that day should not also be counted as a day of prese ntence custody under se ction 5-4.5-100( b). W illiams , 239 I ll. 2d at 509, 942 N.E.2d at 1261. ¶ 38 I n this case , t h e rec ord shows that defe ndant was arr ested on September 10, 2004, and
sentenc ed on J u l y 7
, 2006. Whil e he is not entitled to cre dit for his sentenc ing day
, he is entitled to cre d i t fo r t h e day of his arr est. Acc ording ly
, while we remand this case for

rese ntencing
, we order the new mitti mus ref lect one additional day of prese ntencing cre dit. I ll. S. Ct. R. 615(b)( 1) (ef f. J an. 1, 1967); People v. McCray
, 273 I ll. App. 3d 396, 403, 653 N.E.2d 25, 29 (1995)

. ¶ 39 Def

endant next arg ues, and the State ag ree s, that his mitti mus should ref lect the cor

rec t statutory citation for the offe nse of which he was con v i ct ed. The statutory citation for his ag g ravated kidnaping conviction is ref lected in his mitti mus as “720 IL CS 5/10-2(a) (5),” which ref ers to the offe nse of kidnaping while armed with a dang erous wea pon, other than a fire arm. How ever , defe ndant was convicted of a g g ravated kidnaping while armed with a firea rm, and the corr ect statutory citation for that offe nse is “720 IL CS 5/10-2(a) (6).” Thus,

we further order that on rese ntencing
, defe ndant’s mitti mus ref lect the statutory citation for defe ndant’s convic tion of ag g ravated kidnaping while armed with a fire arm, namely , “720 IL CS 5/10-2(a) (6).” I ll. S. Ct. R. 615(b)( 1); People v. DeW eese , 298 I ll. App. 3d 4, 13, 698 N.E.2d 554, 560 (1998)

. ¶ 40 L astly
, the State reque sts that this court require defe ndant to pay costs and a fee of $100
to the S tate for h aving to defe nd this appeal. In support, the S tate cites People v. Nicholls
, 71 I ll. 2d 166, 174, 374 N.E.2d 194, 197 (1978), i n whi ch the court held that the State is authorized by statute to rec over attorney fee s as costs in the appellate cou rt ag ainst “an

-12-unsucce ssful criminal appellant upon aff irmance o f h is c o n v ic ti o n

. ” Se e 7 2 5 I L CS 5 /1 10-7(h) (West 2004); 55 IL CS 5/4-2002.1 (W est 2004). Howeve r, insofar as we find defe ndant’s
sentenc e to be unconstitutional under the proportionate penalties clause
, defe ndant is not an

unsucce ssful criminal appe llant, so recove ry of costs is not warr anted. ¶ 41 For the fore g oing rea sons, the judgme nt of the circ uit court of Cook County is a ffirme d in part, and de fendant’s causeis remande d for r esente ncing

.

¶ 42 Affirmed in part; cause re manded.

-13-