First Division March 19, 2007

No. 1-05-0822 THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee,

v. ROMEO CASTILL

O, Defend ant-App ellant. ) ) ) ) ) ) ) ) ) Appeal f

rom the Circu it Court of Cook Cou

nty 04 CR 6540 Honorable Th om as Da vy, Judge Presiding

PRESID ING

JUSTICE

McBRI DE delive

red the o pinion of t

he court : On February

14, 2004, defendant, Romeo Castillo, was charged with domestic battery and aggravated batter

y of a police of

ficer. The State nol-prossed the charg ed on March 9, 2004. Defend ant was tr ansfer red to the Illinois Depa

rtment of Correct ions (I DOC) for a parole violation. On March 31, 2004, the State refiled the agg ravated battery

charge aga

inst defendant. On Augu st 11, 2004 , the date defenda nt was re leased f

rom the I DOC, def endant w as serve d with an arrest warrant for the ag gravated battery

charge and taken into custody . A bench trial was held on December 1, 2004, and following the trial, def endant was found guilty

of the aggravate d battery. At sente

ncing, the trial court initially sentenced defendant as a Class X offe nder to a term of 10 yea

rs’ imprisonment. However, the trial court later vaca ted defendant’s sentence of 10 years an

d imposed a

sentenc e of 8 y

ears in the ID OC. Defendant appeals, arguing that: (1) defendant’s right to a speedy trial was violated; (2) the State failed to prove de fendant

guilty bey ond a rea sonable d

oubt; (3)the trial

court ab used its discreti on in sente

ncing d efenda nt to eig ht y ears’ im

prisonme nt; and (4 ) defen

dant is en titled to1-05-0822

2

an ad di ti on al 15 1 d ays of cr ed it fo r t im e s pe nt in cu st od y. On February

13, 2004, defendant was arrested for domestic ba ttery ag ainst Dolores Almanza a

nd agg ravate d batter

y a gainst O fficer

Gregory Garibay . Defen

dant was charg ed with these of fenses on Febru

ary 14, 2004. T

he trial c ourt note d defend ant’s de mand for trial. At h

is next trial date, the trial court noted “defendant’s continuing dema nd for trial.” On March 9, 2004, defendant made a demand trial and the State nol-prosse d the charges. Defenda nt was not released from custody

due to a parole violation. He was transferre d to the IDOC on March 12, 2004. On March 31, 2004, the State indicted defendant for the ag gravated battery

of Officer Garibay. A

n arrest warrant was issued for def endant on April 23, 2004. On August 11, 2004, defendant was released from the I DOC and taken into custody on the a rrest warrant. Defendant was arraigned on the aggravated battery charge the next day . All continuances following the arraig nment wer

e by agree ment. A bench trial was conducted on Decembe r 1, 2004. Prior to the start of trial, defendant’s attorney ora

lly moved to dismiss the charge based upon a violation of defendant’s speedy trial rights. The tria

l court de nied the motion and f

ound ther e was no showing t

hat the Sta

te’s nolle prosequi of the original charges was an attempt to toll the running of the speedy trial term and defendant made no demand for trial while in the I DOC pursuant to the Interstate De tainers Act. The following ev

idence was prese

nted at th e trial. Officer Gregory

Garibay te stified that he is a Chicago police officer. On F ebruary 11, 2004, Officer Garibay

received a complaint of a domestic battery alleged against defe

ndant. The1-05-0822

3

alleged victim was Dolores Almanza. Defenda nt was not arrested on that date. On February

13, 2004, Officer Garibay was contacted by

Almanza’s daughter. Based on what Almanza’s daughter told Officer Ga ribay, he we

nt to the Stony I sland Motel, located on Stony Isla nd, near 92nd Stree

t in Chicago. About f

ive squad cars an d a serg eant re sponded to that location. Officer Garibay stated that he was in uniform and driving a marked squad c ar. Office r Gariba y sp oke with the motel cl erk and f ound out tha

t defend ant was st ay ing in room 53. He proceeded to room 53. The motel room doors are on the outside of the building. As he was walking toward that room, Office r Garibay saw a man walking away from room 53. Officer Garibay

testified that he yelled, “Hey, stop,” to that person. Officer Garibay said that he yelled at the man in orde

r to determine whether the man he saw walking away was defendant. Officer Garibay

had retrieved a photograph of de fendant prior to his arrival at the motel. Officer Garibay sta

ted that the man turned, looked, and began to run. Off icer Garibay

recognized the man as de fendant

. Officer Garibay

began to chase defenda

nt and continued to yell at def endant, “police, stop, police, stop.” Defendant continued to run. Officer Ga ribay ra n after defendant for about three-quarters of a block befor e he caught up with defendant. Off icer Garibay

stated that he placed his hands on defendant’s shoulders, and then defe ndant turned and struck him in his left eye with a c losed fist. Officer Garibay testified that he was still able to hold onto defendant, but his arms w ere slidi

ng down defenda nt’s body . Eventua

lly, Office

r Gariba y w as holding

onto defendant’s legs. While he was sliding down, Off icer Garibay

felt pain in his right shoulder and heard “ a popping

noise.” H e could not move his r ight ar m, but was s till able to

hold onto1-05-0822

4

defendant’s legs. Officer Garibay

said that another officer, Officer Espanoza, arrived and tackled de fe nd an t. De fe nd an t w as ar re st ed an d p la ce d i nt o c us to dy. Officer Garibay

testified that he sought treatment at the hospital. After an examination, Officer Garibay

was informed that he had a torn rotator cuff a nd bruising and swelling to his left eye. Offic er Gari

bay was out of

work for two months a s a resul

t of his inju

ries. Officer Garibay

testified that he did not make a report in this case; his partner, Office r Espanoza, did. When defense counsel presented a tactica l response report for this case, Officer Garibay sta

ted that he did not prepare it. It wa s prepared by his sergeant, Anita Madena. He re ad the report and signed it. Defendant’s a ttorney pointed out that on the repor t, the box for assailant battery wa s not marked, but the one for assailant assault, imminent threat of battery was marked. The State rested following Officer Ga ribay’s testimony . Defendant moved for a directed finding, which the trial court denied. Defendant testified on his own behalf. Defenda nt stated that he was 41 ye ars old. He said that he has a prosthesis in his left ey e and is blind in that eye. Defend ant testif ied that o n Febru ary 13, 2004, he was at t

he Stony Isla nd Motel wi

th Dolores A

lmanza. They

were “ planning something .” At one

point whe

n defend ant left t he room, he saw police officers. He said he re alized something was “going wrong .” He stated that they called to him and he

put his han

ds in the a

ir. Then, all of sud

den he fe lt someone

hit him on his blind side. He fell and broke his glasses. Defenda nt stated that he cannot run because he cannot see on his left side. He will fall or trip. Defendant denied striking any police off

icers.1-05-0822

5

Defend ant said that Offic er Espan oza tackl ed him. On cross-examination, defendant said that Officer Gar ibay was not involved. Def endant denied seeing Officer Ga

ribay. Def

endant denied Officer Garibay trying to g

rab him. Defendant stated that he did not know he was wanted for domestic battery . Defendant said that Almanza’s daughter was upset because of a dispute with defendant’s ex-girlfriend. Defe ndant testified that he and Almanza were planning to leave town be cause Almanza was tired of her daug hter getting involved in their business. Defendant testified that he cannot run beca use his knee is “kind of split in three or four spots.” On redirect examination, defendant stated that because he is blind in one eye, he has trouble w ith distanc e and pe

rception. He some

times is una

ble to gr ab thing s when of

fered t o him. Th e d ef

en se re st ed af

te r d ef en da nt ’s te st im on y. Following arguments, the trial court found de fendant guilty of aggravated ba

ttery. The trial court specifically

found Officer Garibay

to be more credible than defendant. At the January 2005 sentencing hearing, the trial court denied defe ndant’s motion for a new trial. Defendant’s attorney did not raise the speedy

trial issue in the written posttrial motion, but defendant wanted him to raise the issue again. So the attorne y made an or

al motion, which was denied. The trial court sentenced def endant to a term of 10 y

ears under the belief that defendant was to be sentenced as a Class X of fender due to his prior convictions. In F ebruary 2005, the trial court considered defendant’s motion to reconsider his sentence. At that time, the trial court vacated its prior sentence beca use defendant was not Class X eligible and was instead1-05-0822

6

only eligible to be sent

enced f or a Class 3 offens e. Howe

ver, bec ause of h

is prior c onviction s, defendant was eligible for an e xtended-term sentence. The trial court sentenced de fendant to an extended- term of e ight y

ears. This appeal followed. First, de fendant

asserts t hat his conviction mu st be rev ersed be cause the State vi olated hi s speedy trial rig

hts. Defendant contends that the State’s decision to nol-pros the charg es on March 9, 2004, and to refile charg es less than a month later was used to evade defenda nt’s speedy trial rig

hts. The State responds that its act of nol-prossing the charg es was not a tactical maneuver used to violate his speedy trial rights, and that defendant was tried within his speedy trial ter m. Initially , the State contends that defendant’s speedy trial claim is waived because it was not presented in his written motion for a new trial. To preserve an issue f or review, defendant must object both at trial and in a written posttrial motion. People v. Enoch , 122 Ill. 2d 176, 186 (1988). Failure to do so operates as a waive r as to that issue on appeal. People v. Ward , 154 I ll. 2d 272, 293 (1992). Here, defendant’s trial counse l did not include a speedy tria l claim in the written posttrial motion, but at the hearing, defense counsel informed the trial court that defendant wanted to orally raise the issue. The trial court considered the issue and r uled that the motion for a new trial on that ground, as well as the written motion, was denie d. The purpose of the waiver rule is to ensure that the trial court was given the opportunity to corre ct any er rors before they

are raised on appeal. People v. Willis , 349 Ill. App. 3d 1, 16 (2004). Bec ause the trial court considered the issue when defense c ounsel raised an objection at the start of trial and1-05-0822

7

again when defendant ora lly raised the issue at the he aring on his motion for a new trial, we find the issue has not been waived. In I llinois, a d

efenda nt possess es both constitutiona l and statu

tory rights to a speedy trial U.S. Const., amends. VI, XI V; Ill. Const. 1970, art. I, §8; 725 I LCS 5/103-5 (West 2004). The constitutional and statutory provisions address similar conce rns; however, the rights established by eac h of them are not necessarily coextensive. People v. Kliner , 18 5 Ill . 2d 81, 114 (19 98) . In the present case, defendant asser ts only a violation of his statutory right to a speedy

trial and does not raise a constitutional issue. Under the statutory pr

ovision, proof of a violation requires only that the defendant has not been tri ed within t

he perio d set by

statute a nd that the

defenda nt has not c aused or

contribu ted to the delays. People v. Campa , 217 Ill. 2d 243, 250-51 (2005). A delay is occasioned by the defendant and charge d to the defendant when the defendant' s acts caused or contributed to a delay re sulting in the postponement of trial. Kliner , 185 Ill. 2d at 114. The defendant be ars the burden of affirmatively

establishing a speedy

trial violation, and in making his proof, the defendant must show that the delay was not attributable to his own conduct. Kliner , 185 Ill. 2d at 114. Any period of de lay occa sioned by the defe ndant temporarily suspends the r unning of the speedy trial pe

riod until the expiration of the delay, at which point the statute shall re commence to run. 725 IL CS 5/103-5( f) (West 2 004). The duty is upon the

State to br

ing the d efenda nt to trial within the applicable statutory pe riod. Campa , 217 Ill . 2d at 251. T he tri al cou rt's determination as to who is responsible for a delay of the trial is entitled to much deference, and should be sustained absent a clear showing that the trial cour t abused its discretion. Kliner , 1851-05-0822

8

Ill. 2d at 115. When a defendant remains in custody , pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (725 IL CS 5/103-5 (West 2004)), the 120-day statutory period begins to run automatically from the day the

defendant is taken into custody and the defendant need not make a formal demand for trial to come within the purvie w of the statute. Campa , 217 Ill. 2d at 251; 725 ILCS 5/103-5(a) (West 2004). I n contrast, a defendant who is on bail or recognizance must be tried by the court within 160 days fr om the date the defendant demands trial. 725 IL CS 5/103-5(

b) (West 20 04). Addi

tionally , under the Unifie d Code of Corrections, section 103-5(b) also applies to persons committed to any institution, facility, or progra m of the IDOC who have untried complaints, cha rges, or indictments pending in any county of I

llinois. 730 IL CS 5/3-8-10 (West 2004). The parties do not dispute that the applicable speedy trial term was 160 days. Here, defendant was char ged with aggra

vated battery

and domestic battery

on February 14, 2004. At that time, the trial court noted defendant’s demand for trial. On Mar ch 9, 2004, 24 days later, the

State sought to nol-pros the charges ag ainst defendant, which the trial court granted. Defendant was tra nsferred to IDOC c

ustody on March 12, 2004, for a parole violation. On March 31, 2004, the new indictment charge d defendant with two counts of aggr avated battery to a police officer. An arrest war rant was issued against defendant on April 23, 2004. On August 11, 2004, defendant was release d from the IDOC and the Cook County sheriff’s department executed the warrant on defenda nt and took him into custody. Defendant c ontends that the State’s use of the nolle prosequi and failure to notify de fendant of the refiled charg es was1-05-0822

9

a tactic al maneu

ver used to violate defenda nt’s spee dy t

rial rig hts. “[W]here the State requests a nolle prosequi on charges that ha ve been brough t again st a defendant, the effect is to terminate the proc eedings with respect to those charg es.” People v. Decatur , 191 Ill. App. 3d 1034, 1037 (1989). “As a re sult, defendant is free to go and to do as he pleases and is not required to post bond or to enter into a recog nizance to appear at another time. Furthermore, if the charg es are nol-prossed before jeopar dy attache s, subsequent prosecution of the identical charges is permitted.” Decatur , 191 I ll. App. 3d at 1037. “ [T]he spee dy- trial ter m is tolled dur ing the p eriod of

time that the charg es are n o longe r pending and defe ndant is ne ither in custody nor on bail or re cognizance. The clock will continue to run once a gain with the refiling of the charges that were

previously nol-prossed.” Decatur , 191 I ll. App. 3d at 1038. T

he State must get the consent of the trial court before it may enter a nolle prosequi . The trial court’s discr etion to rev iew th e Stat e's requ est is govern ed by a dete rmina tion of whet her th e Stat e's action is c apricio

usly or vexatio

usly repetiti ous, or whether it w ill cause substantia

l prejudic e to the defendant. People v. Williams , 315 Ill. App. 3d 22, 30 (2000). “I f it is determined that the State engaged in technica l maneuvering or that the State procured the nolle prosequi to cause delay or avoid s tatutory

limitations , the spee dy- trial ter m will not be

deemed t olled. Rat

her, in those insta

nces the statutory term will c ontinue to

run as of the date of the fir st filing or the fir st demand for trial.” Decatur , 191 Ill. App. 3d at 1038. In or der to pr event the tolling o f the stat

ute, “the re must be

a clear showing that the Sta

te sought the nolle prosequi to gain s ome tacti cal adva ntage over def

endant that would p lace him i n a more di sadvanta

geous p osition, or

to otherw

ise hara ss or to pr

ejudice defenda nt so as to a

void1-05-0822

10

or frustrate his interests which the speedy -trial right was designed to protect.” Decatur , 191 I ll. App. 3d at

1039. “These inte

rests ar e: (1) to p revent o ppressiv e pretr

ial incar ceratio n, (2) to minimize the accused's anxiety a nd concern; and (3) to limit the possibility that the defe nse may be impaired. Decatur , 191 Ill. App. 3d at 1039. In the instant case, defe

ndant asserts that the State used the nolle prosequi to avoid hi s speedy trial ter

m and that the term should not be tolled for the time between the nolle prosequi and the refiling of the charg es for aggrava ted battery to a police

officer. We disagree. The State sought to nol-pros the charges of domestic battery a

nd aggravated batter

y of a police of ficer 2 4 day s after t

he initial charg es were

filed. Whe

n the State

refiled charg es aga

inst defenda nt, it did no t indict de fendant for the e xact same c

harge s. Defe

ndant wa s charg ed only with the aggravated batter y to a police off

icer. The domestic battery charges were neve

r refiled. Althoug h the rec ord is sile

nt as to why

the domes tic batte

ry charg es were

not refil ed, the ti

me that elapsed between the original indictment and the nolle prosequi was only 24 day s into the speedy trial ter

m. Moreover, at the time of the nolle prosequi , defendant was released from custody as to these cha

rges. He remained in custody solely due to a par

ole violation. This case is easily distingu ished fr om People v. Hillsman , 329 Ill. App. 3d 1110 (2002), upon which defendant relies. I n Hillsman , the defendant was charge d on February 1, 2000, and the IDOC issued

a parole hold. The

defenda nt did not po st bond on h is charg es and re

mained in custody. The re cord on appeal was silent as to when the parole hold was issued a nd the defendant was remanded to the I DOC. Hillsman , 329 Ill. App. 3d at 1112. The defenda nt’s trial was sche duled for

May 12, 2000, t

he 112th d

ay defenda nt was in c

ustody . The State

sought to1-05-0822

11

continue the case bey

ond the defendant’s 120th day in custody, but the trial court dec lined the State’s r equest. R ather than agr

ee to re schedule

the case to the 120t

h day , the State

moved to

enter a nolle prosequi

. Hillsman , 329 Ill. App. 3d at 1112. The State refiled the c harges later that same day. Hillsman , 329 Ill. App. 3d at 1112. At the October 2000 trial on the r efiled charg es, the de fendant

filed a mo tion for d

ischarg e alleging that

the State improper ly moved to nol-pros the original charges to c ircumvent the 120-day rule. Hillsman , 329 Ill. App. 3d at 1112- 13. The tr

ial cour t grant ed the mot

ion and dismissed the

charg es aga

inst the de fendant

with prejudice. Hillsman , 329 Ill. App. 3d at 1113. On appeal, the re viewing court found that there was “no doubt the State’s motive in moving for a nolle prosequi and ref iling the charg es was to avoid the running of the 120-day speedy-tria

l period.” Hillsman , 329 Ill. App. 3d at 1117. The Hillsman court not

ed that “ despite d

efenda nt's re cogniza

nce bond on the re filed ch arges , defendant remained in continuous custody due to the par ole hold after the State nol-prossed the charges and before

it refiled new charges a f ew hours later.” (Emphasis in original.) Hillsman , 329 Ill. App. 3d at 1117-18. Here, in contrast to Hillsman , the State moved to nol-pros the charges only 24 days afte

r they were fi led. New

charg es were

refiled three we eks late

r as to onl y one of the origina

lly charged offenses, ag

gravated battery

to a police officer. I

n the intervening time between the nolle prosequi and the refiling, defendant was take n into IDOC custody

for a parole violation. At the time defendant was taken into ID OC custody, no charges were pending. Unlike Hillsman , the State did not seek a nolle prosequi to avoid the expiration of the speedy tria l term. As the State points out, defendant failed to show how the nolle prosequi frustra ted his1-05-0822

12

speedy trial intere sts, such as oppressive pretrial incarceration, def endant’s anxiety and conc ern over the charg es, or tha

t his defe nse was im

paired. Defend

ant was in

carce rated on the paro le violation after the nolle pros equi, and the warrant on the agg ravated battery

charges was not served until he was released from the I DOC. Defendant contends that he was unable to prepa re his defense while in the IDOC bec ause he was not informed of the refiled cha rges, but he does not show how this impacted his defense. Defendant’s arg ument does not demonstrate any harm that he suffered as a result of the nolle prosequi . Ins tead, de fendant urges t his court to presume that the State’s actions were a violation of his right to a speedy trial. We are not persuaded. Moreove r, defe ndant’s s peedy trial cla im must fail

because defenda nt was tri ed within 160 days. I

nitially, 24 day

s passed from the date the original charges were filed (Februar y 14, 2004) to the date of the nolle prosequi (March 9, 2004). Then, from the date the new c harges were filed (March 31, 2004) until defendant’ s arraignment on the new charg es (August 12, 2004), 134 days ela

psed. Thus, a total of 158 day s of the term were used. Following the arraignment on August 12, 2004, all other continuanc es were agreed to by defendant. Therefore, defendant was tried within the 160-day term. Next, defendant argues that the State failed to prove him g uilty of agg

ravated battery

of a police officer bey

ond a reasonable doubt. Specifically , defendant asserts that Officer Ga ribay’s testimony was insufficient to prove de fendant guilty because it was inconsistent and was not corroborated by

phy sical evidence or addition al witnes s testimony . The State maintains

that it proved d efenda nt guilty of agg ravate d batter

y a nd Offic e Gariba

y’ s testimony

was suff icient to establish defenda nt’s gui lt.1-05-0822

13

When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, the court’s function is not to retry the defendant. People v. Hall , 194 Ill. 2d 305, 329- 30 (2000) . Rather, our inquir y is limited to " whether , after viewing the evide nce in the light most favorable to the prosecution, anyrational trier of fact could have found the e ssential elements of the crime bey

ond a reasonable doubt." (Emphasis in original.) Jackson v. V irginia , 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); accord People v. Cox , 195 Ill. 2d 378, 387 (2001). Under this standard, a reviewing c ourt will not substitute its judgment for that of the trier of fact on issues of the weight of evide nce or the credibility

of witnesses. People v. Cooper , 194 Ill. 2d 419, 431 (2000). Thus, it is the responsibility of the trier of fact to "fairly *** resolve conflic ts in the te stimony , to weig h the evid ence, a nd to draw

reasona ble infe rences from bas ic facts to ult imate facts. " Jackson , 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. The testimony of a single w

itness, if it is positive and the witness credible, is sufficient to convict. People v. Smith , 185 Ill. 2d 532, 541 (1999). To prove aggrava

ted battery, the State was required to show that defendant committed a battery, in that the def

endant intentionally either c aused bodily harm to an individual or made physical contact of an insulting or provoking nature with an individual, and knew that the individual was a peace officer in execution of his officia l duties. See 720 IL CS 5/12-4(b)(6) (West 2004 ). In

the pres ent case , the State present ed the te stimony

of Offic er Gari

bay to establish defendant’s guilt. Office Gar ibay testified that when he arrived at the motel, he saw defendant walking away

from his room. Office Garibay called to defendant, defendant turned and looked at the officer, and then defe ndant began to run. Officer Ga ribay cha sed defendant and1-05-0822

14

eventua lly c aught u

p. When Of

ficer G aribay

placed h is hands on

defenda nt, defe ndant hit Office r Gariba y in the ey e with a c losed fist . As Offi cer Ga ribay fell, he continue d to hold ont

o defendant, and he felt pain in his right shoulder and he ard a “popping noise.” Office r Garibay stated that he suffered a torn rotator cuff and bruising and swelling to his left ey e. He was out of work for two months as a result of his injuries. In c ontrast, defendant testified that Officer Garibay was not involved in his arrest at all. He said that when the police called to him, he immediately put his hands in the air and that he did not run. Contrary to defe

ndant’s assertions, the State was not required to present medical testimony to document Officer Garibay’ s injuries. See People v. Wydra , 265 Ill. App. 3d 597, 607 (1994). The Wydra

court poi nted out that the Illinois Supr eme Court

has state d that “ ‘[a]lthough it may be difficult to pinpoint exactly what constitutes bodily harm for the pur poses of the [battery] statute, some sort of phy sical pain or damage to the body, like lacerations, bruises or abrasions, whether temporary or permanent, is required.’ ” Wydra , 265 Ill. App. 3d at 606, quot ing Pe op le v. Ma ys , 91 Ill. 2d 251, 256 (1982). In Wydra , the defendant was charge d with the aggravated batter y of a police of

ficer after he ran from a police officer who trie d to execute a traffic stop. Wydra , 265 Ill. App. 3d at 599- 600. The officer testified that the defendant cha rged him and tried to get the office r’s service revolver. During the struggle, the officer suffered scra tches on his chin and hands. Wydra , 265 Ill. App. 3d at 600. On cross-examination, the officer admitted that his report did not included the fact that he was injured by the defendant. Wydra , 265 Ill. App. 3d at 601. The reviewing court concluded that the officer’s testimony was sufficient to show that the defendant caused1-05-0822

15

bodily harm to the office

r. Additionally, the court noted the f act that the police report did not mention injuries is not a direct contradiction of the officer’s testimony ; rather, it was an omission that constituted one factor for consideration in determining cre dibility. Wydra , 265 I ll. App. 3d at 607. In the instant case, the trial cour t was presented with sufficient evidence to prove defendant guilty

beyond a re asonable doubt. Officer Garibay ’s testimony showed that he identified himself as a police officer and that defe ndant struck him, causing injuries that resulted in him being

out of wor

k for two m

onths. Mor

eover, t he trial c ourt state d in its ruli ng that i t found Of ficer G aribay ’s testimo ny “ to be much

more cr edible” than def endant’ s testimony . All of the evidence, viewed in a light most favora ble to the State, was clearly sufficient for a rational trier of fact to conclude bey ond a reasonable doubt that defendant cause d bodily harm to Office r Garibay. Defendant also asserts that the trial court improperly imposed an extended-term sentence. Specifically, def

endant asserts that (1) the trial court improperly considered Officer Garibay ’s injuries, an inherent element of the crime, as an ag gravating factor, a

nd (2) the extended-term

sentenc e refle cts the tr

ial cour t’s orig inal misap

prehens ion that de fendant was eligible for a

Class X sentence. The

State main

tains that the trial court considere d proper

aggr avating factor s and his extended-term sentence was proper. A circui t court' s sentenc ing dec ision is ent itled to g reat de ferenc e, and we

will not re

verse or reduce a defendant' s sentence imposed within statutory g uidelines absent an abuse of the circuit court's discretion. People v. Sturges s , 364 Ill. App. 3d 107, 118 (2006). This court1-05-0822

16

considers the entire scope of facts surrounding a criminal offense to determine whether a defendant's sentence is excessive. Sturges s , 364 Ill. App. 3d at 118. Section 5-5-3.2(b)(1) of the Unified Code of Corrections allows the trial court to consider prior felony c onvictions of the same or similar class felony or greater class felony

that occurred within 10 y

ears fr om the cur

rent con viction, e xcluding t

ime in cust

ody , in deter

mining whether to sentence a defendant to an extended term sentenc e. 730 IL CS 5/5-5-3.2(b)(1) (West 2004). At the original sentencing hearing , the trial court incorrectly believed that defendant was subject to a Class X sentence. The trial court sentenced de fendant to a term of 10 y ears “based on your prior bac

kground, based on the facts of this case, a nd based on the injuries to the officers.” At resentencing , the State presented evidence of defe ndant’s prior convictions for aggravated cr

iminal sexual assault and kidnaping, which occurred within 10 y ears of the aggr avated b attery

convicti on, excludi

ng time in

prison. The trial c ourt then imposed a

n eightye ar sente nce “ba sed on the

defenda nt’s backgroun

d, the fa ct that it is

an extenda

ble [C]lass 3 felony, and a

ll the matters I previously alluded to on the date of sentencing.” Defendant contends that the trial court abused its discretion bec ause it referenced Offic er Garibay’ s injuries and that it was only two y ears less than original Class X sentence of 10 y ears. We disagree. The trial court may have mentioned the officer’s injuries, but the court also base d its decision on defendant’s criminal background, which is a factor to consider for an extended term. “ ‘In deter

mining an appropriate sentence, the def endant's history , character, rehabilitative potential, the seriousness of the offense, the need to protect society and the nee d for deterrence and punishment must be equally weig hed.’ ” People v. Bowman , 357 Ill. App. 3d 290, 3031-05-0822

17

(2005 ), quo ting People v. Jones , 295 Ill. App. 3d 444, 455 (1998). There is a strong presumption that the tr ial cour t based its sentenc ing dete

rmination on prope r lega l reason ing, an d the cour t is presumed to have considered any evidence in mitigation that is before it. Bowman , 357 Ill. App. 3d at 303. The record on appeal indicates that the trial c ourt considered the circumstances of the offense as well as defendant’s prior c onvictions in determining defendant’s sentence. We do not find that the trial court considered any improper factors in aggr

avation. Additionally, under section 5-8- 2(a)(5), the statutory range for an extended Class 3 felony “shall not be less than 5 yea rs and not more than 10 ye ars.” 730 ILCS 5/5-8-2(a)(5) (West 2004). The trial court sentenced defendant to an e ight-ye ar term, which is within the statutory guidelines. We disagree with defenda nt’s contention that this sentence “reflects the trial judge ’s original misapprehension that [defendant] should be sentenced as a [C]lass X offender.” The record indicates otherwise. The trial court a cknowledged its misapprehension on the record a nd vacated the original sentence. The court then noted that defendant was eligible foran extendedterm sentence and imposed an eight-y ear sentence. We find that the trial court specifica lly noted its original mistake and corrected it by sentencing defendant to a sentence with statutory guidelines. We find no abuse of discretion in defendant’s sente nce. Finally, defe

ndant contends that he is entitled to an additional 151 day s of presentence credit f or the time

he spent i

n IDO C custody . The State responds that def endant is not entitle d to credit for these days because the State did not obtain the nolle prosequi improperly and de fendant was in cu stody

for an un related parole v iolation. We

have alr eady held that the State ’s act of

nolprossing the original charg es was not used to circumvent defendant’s speedy trial rights, and now1-05-0822

18

find that defendant is not entitled to the additional credit because he was not in simultaneous custody for the pa

role violation and the aggrava ted battery c

harge. Under th e Unifie d Code of Corrections, ever y f elony defenda nt senten ced to pr ison also receiv es a ter

m of manda

tory supervis ed rele ase in ad

dition to the

written s entence . 730 ILCS 5/5-8-1(d) (West 2004). Accordingly, a term of mandatory supervised release is part of the origina l sentenc e. See 73 0 ILCS 5/5-8-1 (d) (West 2004); People v. Baptist , 284 Ill. App. 3d 382, 387 (1996). Revocation of parole or mandatory supervised release is regar ded as reinstatement of the sentence or delay

ed sentencing for the underly ing crime, not as punishment for the conduct leading to the revocation. Baptist , 284 Ill. App. 3d at 387. Revocation does not extend the original sentence, but simply alters the conditions under which the defendant serves it. Thus, the fact that the events which lead to revocation may also constitute a second crime does not mean the revocation itself is punishment for the second crime. Baptist , 284 Ill. App. 3d at 387. Here, defendant was taken into I DOC custody on a par

ole violation. When he was released from his confinement for the parole violation, he was then taken into custody on the

arrest warrant

for the a ggra vated ba ttery charg e. Defe

ndant’s t ime in the I

DOC for h

is parole violation was separate from his confinement for the instant char ges, as the ID OC confinement was part of the original sentence f or a prior conviction. Since the time defendant spent in the IDOC was for a se

parate sentence and not for the ag gravated battery

charges, defendant is not entitled to credit for that time. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he de ci si on of

th e c ir cu it co ur t o f C oo k C ou nt y. Affirmed.1-05-0822

19

CAHIL L and GARCI

A, JJ., concur.