## 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 . Miller , 2011 IL App (5th) 090679

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. GARY L . MI L L ER, Defe ndant-Appe llant.

District & N o. Fifth District Docke t No. 5-09-0679

Filed November 21, 2011

Held (Note : Thi s syl lab us

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

par ed b y the Repo rt er 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 dismiss al of defe ndant’s pro se postconviction petition alleg ing that his trial counsel was ineffe ctive in failing to object to th e double enhanc ement of his sentenc e was aff irmed, since defen dant argued on appea l that his trial counsel was ineffe ctive in failing to ad v i s e h i m to

surre nder his bond when he was taken into custody on a s ub s eq uent char g e so that he could become entitled to additional day s of sentenc ing

cre dit, but that issue was depende nt on a finding of ineffe ctive assistance of counsel that was forf

eited when it was raised for th e fi rst time on appea l.

Dec ision Under Review Appea l from the Circuit Court of Marion County
, No. 07-CF- 285; the Hon. Sherri L .E. Tung ate, Judge , presiding

.

J udg ment 

### A f f irm ed

.Counsel on

Appea l Michae l J

. Pelletier, J ohannah B. Weber, and Rita K. P eter son, all of State Appellate D efe nder’ s Offic e, of Mt. Ve rnon, for appellant.

Matt Wil zbach, State’s Attorney
, of Salem (Patrick Delfino, Stephen E. Norris, and Rebec ca E. McCormick, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel 

### P R E S ID IN G JU S T IC E C H A P M AN d eliv ered th e j u d g m en t o f th e

co u rt, w itho p in io n

. Ju stices Welch an d S tew art co n cu rred in th e j u d g m en t an d o p in io n

.

OP INION

¶ 1 The defe ndant, Gar y L

. Miller, appea ls the circ uit court’s summary dismiss al of his pro

se postconvict i o n petition. He pray s that this court will find that defe nse counsel was ineffect i v e an d amend the mitti mus to ref lect an additional 34 day s of cre dit. For the followingrea sons, we af

firm.

¶ 2 BA CKGROUND ¶ 3 The defenda

nt was charg ed with burg lary (720 I L CS 5/19-1(a) (W es t 2 0 0 4)) and theft under $300 (720 I L CS 5/16-1(a) (West 2004)). He posted bond on the charg e on October 31, 2007. The next day he was arr ested for attempted burg lary (720 I L CS 5/8-4(a) (West 2004)). The defe ndant rema ined in jail on that charg e. The rec ord does not indicate that the defe ndant

surre ndere d his bond in the burg lary and thef t case

. ¶ 4 On Dec ember 3, 2007, the defe ndant pled guilty to theft under $300 in exchang e for the State rec ommending a six -year prison sentenc e. The State also dismiss ed all other char g es, including the attempted burg lary charg e. The defe ndant was rele ased on bond until J anuar y 4, 2008. The defe ndant was g iven sentenc ing cre dit from August 29, 2007, throug h October 31, 2007. He did not file a motion to wit hdraw

his guilty plea. ¶ 5 The defe ndant filed a pro se postconviction petition alleg ing that he rec eived ineffe ctive assistance of counsel beca use trial counsel did not obje ct to the double enhanc ement of the defe ndant’s sentenc e. On November 16, 2009, the court dismiss ed the defe ndant’s petition. The defe ndant filed this timely appea l. A fter filing his notice of appea l, the defe ndant filed

a pro se mo t i o n for an order nunc pro tunc alleg ing that he was entitled to additional
sentenc ing cre dit. Howeve r, the circ uit court did not enter an order reg arding the mo t ion beca use the appellate court had alr eady assumed jurisdiction at the time of the filing of the

-2-motion.

¶ 6 ANALYSI S ¶ 7 We r eview de novo the circ uit court’s dismiss al of a postconviction petition without an evidentiar y hearing. People v. Coleman
, 183 I ll. 2d 366, 389 (1 9 9 8 ). On appea l, the defe ndant arg

ues that trial counsel was ineffe ctive for failing to advise him to surre nder his bond when he was taken into custody on a subsequent charg e. He contends that this fa ilure entitles him to additional day s of sentenc ing cre dit for the time fra me of November 1, 2007, throug h Dec ember 4, 2007. We note that this argument was not raised in his postconviction petition. ¶ 8 I n re s p o n s e, the State argues that the defe ndant is prec luded from raising t h i s i s s u e beca use it was not brought in his initial p o s t co n v i ction petition. The State argues that the defe ndant’s claim is not mere ly that of a sentenc ing issue which can be brought at any time but that the issue is one of inef fec tive assistance of counse l. ¶ 9 In the defe ndant’s re p l y b ri ef
, h e argue s that it is irrele vant whether this issue was
proper ly prese nted to the revie wing court beca use it is simply a matter of cre diting him with additional sentenc ing cre dit, wh i ch the defe ndant claims is mandatory

. There fore
, the defe ndant re quests that this iss ue be tr eate d as a motion to amend his mittimus. ¶ 10 The issues befor e this c ourt are whether the def endant wa s held simult aneously on two char g es and whether du e t o t h is incar cer ation, the defe ndant is entitled to additional
pre s en t en cing cre dit. The I llinois Supreme Court has held that “a defe ndant who is out on bond on one char g e, and who is subsequently rea rre sted and returne d to custody on another char g e, is not returne d to custody on the first charg e until his bond is withdrawn or revoke d.” People v. Arnhold
, 115 I ll. 2d 379, 383 (1987). There fore
, a defe ndant is not in simult aneous custody on more than one charg e until he withdraws or revoke s h i s b o n d on the initial char g e. Id. at 384. ¶ 11 In t h e i n s t an t case , the defe ndant agree s that he did not revoke or withdraw his bond. Howeve r, he argues t hat t his failure was the result of ineffe ctive assist ance of counsel and that since this is a sentenc ing issue the court c an re view it at any time. ¶ 12 In support of this arg ument, the defe ndant relies upon, inter alia
, this court’s decision in People v. DuPree
, 3 5 3 I l l. App. 3d 1037 (2004). In DuPree
, the defendant posted bond in

one case and was subsequently arr ested on another charg e. Id. at 1046. The defe ndant never withdrew his pre vious bond or sought to r evoke the bond. Id. On appea l, he ar gued that he

was entitled to additional sentenc ing cre dit, an issue that had not bee n prese nted in his motion to rec onsider his sentenc e. Id

. at 1041. The court initially noted “that sentenc ing

cre dit for time serve d is a rig ht aff orded by statute and that, thus, a defe ndant’s fa i lure to prese nt the issue to a trial court, either by contempora neous objection or by postsentencing motion, does not result in the procedur al def ault of this issue.” Id. at 1045. ¶ 13 The co u rt fo u n d t h at t h e defe ndant did not revoke his bond but held: “It behooved defe nse counsel to move to withdraw the bond posted in the instant case in order to allow the d efe ndant t o ear

n cre dit ag ainst his eventua l sentenc es i n the i nstant case at t he sam e t i m e that he ea rned c redit ag ainst his [ curr ent] sentence ***. Counsel’s failure to do so prompts

-3-this court to rema nd the case to the circ uit court *** to amend the mitti mus to ref lect a cre dit
ag ainst the defe ndant’s sente nces ***.” DuPree , 353 I ll. App. 3d at 1049. ¶ 14 Whil e we agree with DuPreethat a sente ncing -cr edit issue can be brought at any time, the exis tence of the sentenc ing- cre dit issues in both DuPree and the instant case is depende nt upon a finding that counsel was ineffe ctive. There fore
, the rea l issue in this case is whether defe nse counsel was ineffe ctive i n n o t ad vising the defe ndant to revoke or withdraw his bond. It is clea

r from the holding in Arnhold that without the revoc ation or withdrawa l of the bond, a defe ndant is not being held in si multaneous custody

. Unless he can establish that counsel was i n ef

fective for failing to seek revoc ation or withdrawa l of the bond, the defe ndant is not entitled to additional cre dit beca use he was never returne d to custody on the initial charg e. ¶ 15 Howeve r, as noted above, the defe ndant’s arg ument of ineffe ctive assistanc e reg arding the revoc ation of his bond was not raised in his postconviction petition. It is well settled that

a defe ndant may not raise a claim for the first t i m e on appea l. People v. Jones
, 211 I ll. 2d 140, 148 (2004). More over, the rec ord clearly does not contain the fac ts nece ssary for this
court to deter

mine if there was ineffe ctive assistance of counsel reg arding the revoking of the defe ndant’s bond. Thus, we decline to follow DuPree in the holding that the defe ndant is entitled to additional cre dit in a case in which the defe ndant did not proper ly raise the issue of ineff ective a ssistance of c ounsel. ¶ 16 “H o we v er , this holding does not leave a postconviction petitioner such as def en d an t entirely without rec ours e. A defe ndant who fails to include an issue in his orig inal or amende d postconviction petition, althoug h prec luded from raising the issue on appea l from the petition’s dismiss al, may raise the issue in a succe ssive petition if he ca n m ee t t he strictures of

the ‘c ause a

nd prejudicetest.’ ” Jones , 211 I ll. 2d at 148. ¶ 17 In conclusion, we find that althoug h the defendant raises an issue of sentencingcre dit, this issue is de pendent on a finding of ineffe ctive assistance of counsel, which is r aised for the first time on appea l. T here fore
, the issue is de emed forf eited on appea l, a

nd we de cline to amend the de fenda

nt’s mitti mus.

¶ 18 CONCLUSI ON ¶ 19 For the for ego i n g re as o n s , we aff irm the circ uit court’s dismiss al of the def endant’ s postconviction petition.

¶ 20 Affir

med.

-4-