{ "id": 351027, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY J. MOORE, Defendant-Appellant", "name_abbreviation": "People v. Moore", "decision_date": "1997-06-30", "docket_number": "No. 4\u201496\u20140188", "first_page": "357", "last_page": "367", "citations": [ { "type": "official", "cite": "289 Ill. App. 3d 357" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 Ill. App. 3d 350", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351024 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0350-01" ] }, { "cite": "677 N.E.2d 945", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "654 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "605-06" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291515 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0408-01" ] }, { "cite": "677 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "456-58" }, { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "178 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "pin_cites": [ { "page": "391" } ], "opinion_index": 0 }, { "cite": "23 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2797074 ], "year": 1961, "pin_cites": [ { "page": "283" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/23/0280-01" ] }, { "cite": "602 N.E.2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "979" } ], "opinion_index": 0 }, { "cite": "236 Ill. App. 3d 821", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783938 ], "year": 1992, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/236/0821-01" ] }, { "cite": "599 N.E.2d 101", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "103" } ], "opinion_index": 0 }, { "cite": "233 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5194056 ], "year": 1992, "pin_cites": [ { "page": "420" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0416-01" ] }, { "cite": "589 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "980" } ], "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238160 ], "year": 1992, "pin_cites": [ { "page": "779" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0771-01" ] }, { "cite": "529 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "221", "parenthetical": "\"At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions\"" } ], "opinion_index": 0 }, { "cite": "124 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218603 ], "year": 1988, "pin_cites": [ { "page": "103", "parenthetical": "\"At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0093-01" ] }, { "cite": "623 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "261-62" } ], "opinion_index": 0 }, { "cite": "157 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778584 ], "year": 1993, "pin_cites": [ { "page": "14-15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0001-01" ] }, { "cite": "521 N.E.2d 900", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "121 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3202119 ], "year": 1988, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/121/0537-01" ] }, { "cite": "670 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1194-95" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 854", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182751 ], "year": 1996, "pin_cites": [ { "page": "861-62" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0854-01" ] }, { "cite": "173 Ill. 2d 530", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "173 Ill. 2d 543", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "173 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "year": 1997, "opinion_index": 1 }, { "cite": "173 Ill. 2d 544", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1997, "opinion_index": 1 }, { "cite": "560 N.E.2d 395", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "pin_cites": [ { "page": "398" } ], "opinion_index": 1 }, { "cite": "202 Ill. App. 3d 576", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2586841 ], "year": 1990, "pin_cites": [ { "page": "580" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/202/0576-01" ] }, { "cite": "534 N.E.2d 1019", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1021" } ], "opinion_index": 1 }, { "cite": "179 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2608620 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "709" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/179/0705-01" ] }, { "cite": "590 N.E.2d 520", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 1 }, { "cite": "226 Ill. App. 3d 956", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5240074 ], "year": 1992, "opinion_index": 1, "case_paths": [ "/ill-app-3d/226/0956-01" ] }, { "cite": "660 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1316-17" } ], "opinion_index": 1 }, { "cite": "277 Ill. App. 3d 565", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172338 ], "year": 1996, "pin_cites": [ { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/277/0565-01" ] }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "440" }, { "page": "448" }, { "page": "453" }, { "page": "456-57" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "589 N.E.2d 975", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "980" } ], "opinion_index": 1 }, { "cite": "226 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238160 ], "year": 1992, "pin_cites": [ { "page": "779" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/226/0771-01" ] } ], "analysis": { "cardinality": 923, "char_count": 22081, "ocr_confidence": 0.768, "pagerank": { "raw": 1.829932757639095e-07, "percentile": 0.7206055256503372 }, "sha256": "e46636aba3b98df123262249612f35bb459f6ac1b3bba6cfec4b3de01c878cd0", "simhash": "1:ab4e34e6770fada6", "word_count": 3743 }, "last_updated": "2023-07-14T21:29:08.370768+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY J. MOORE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE STEIGMANN\ndelivered the opinion of the court:\nIn May 1995, defendant, Gregory J. Moore, pleaded guilty to first degree murder (720 ILCS 5/9\u20141(a)(1) (West 1994)). The trial court sentenced him to 20 years in prison (730 ILCS 5/5\u20148\u20141(a)(1)(a) (West 1994)) and gave him credit for 120 days previously served in county jail. In February 1996, defendant filed an amended motion to withdraw his guilty plea, which the court denied.\nDefendant appeals, arguing that (1) the trial court abused its discretion by denying his motion to withdraw his guilty plea where his trial counsel was ineffective; and (2) he is entitled to one additional day of credit for time served. We affirm.\nI. BACKGROUND\nDefendant pleaded guilty to first degree murder on May 3, 1995, and the trial court sentenced him the same day. After consulting with both the State and defense counsel, the court ordered that defendant be given credit for 120 days of credit for time served.\nIn his amended motion to withdraw his guilty plea, defendant alleged that he did not knowingly and voluntarily waive his right to jury trial because (1) he or a member of his family was threatened with serious physical harm if he did not plead guilty; (2) he was confused and frightened due to those threats; (3) his court-appointed trial counsel, James Kuehl, did not interview material witnesses or explain to defendant the evidence against him; and (4) Kuehl advised him that he would receive a more severe sentence if the case proceeded to trial and would be required to serve 85% of a sentence under the new sentencing guidelines, as opposed to 50% of a sentence if he pleaded guilty.\nIn March 1996, the trial court conducted a hearing on defendant\u2019s motion, heard counsel\u2019s arguments, and denied it.\nII. THE TRIAL COURT\u2019S DENIAL OF DEFENDANT\u2019S MOTION TO WITHDRAW HIS GUILTY PLEA\nDefendant first argues that the trial court abused its discretion by denying his motion to withdraw his guilty plea where Kuehl provided ineffective assistance of counsel. Defendant specifically contends that Kuehl gave him incorrect advice about changes in section 3 \u2014 6\u20143(a)(2) of the Unified Code of Corrections (Correctional Code) concerning good-conduct credit (730 ILCS 5/3\u20146\u20143(a)(2) (West Supp. 1995)). We disagree.\nDefendant\u2019s testimony at the hearing on his motion to withdraw reveals Kuehl, in response to defendant\u2019s decision to plead guilty, said, \" 'It\u2019s up to you. It\u2019s the best offer they have,\u2019 and that it\u2019s up to me to take it.\u201d Kuehl testified that on a prior date when defendant was to enter a plea, \"I asked Greg, 'Do you want to do this?\u2019 And he said, 'No.\u2019 And I said, 'Fine.\u2019 And I stood up and I said, 'Judge, we\u2019re not doing the plea,\u2019 and we left.\u201d According to Kuehl, defendant stated he was \"upset at the time\u201d and came in a day or two later and finalized the plea. \"[H]e did want to do the plea; it wasn\u2019t his favorite thing to do, but that\u2019s what he wanted to do.\u201d\nIn denying defendant\u2019s motion, the trial court stated, in relevant part, as follows:\n\"[Tjhere\u2019s a big difference between wanting to plead guilty and choosing to plead guilty. [Not wanting to plead guilty] doesn\u2019t answer the question whether or not [defendant] voluntar[il]y pied guilty.\n* * *\n[T]here is nothing in the record of the plea, nothing in the fact that [defendant] was not surprised, that he may have been in a layperson\u2019s observation depressed, that he didn\u2019t like the detention center, or that he was, in fact, reluctant to enter into his plea to suggest it was other than knowingly, intelligently, [and] voluntarily made.\n*** I am not persuaded even by a preponderance of the evidence that that threat [to defendant\u2019s brother] was ever relayed to the [d]efendant.\nMore importantly, I\u2019m certainly not persuaded that [the threat] in any way influenced, affected, or coerced the [defendant into pleading guilty.\u201d\nIn arguing the motion to the trial court, defendant\u2019s new counsel argued that defendant\u2019s guilty plea was involuntary because (1) defendant was depressed; (2) he thought he was going to lose the case; and (3) he was afraid for his own safety. Defendant\u2019s newly appointed counsel did not argue that the guilty plea was rendered involuntary because of Kuehl\u2019s advice concerning the possible length of the sentence or the then-recent amendment to the statute authorizing good-conduct credit. As a result, defendant raises a theory on appeal not relied on in the trial court, and that court never addressed it in denying defendant\u2019s motion to withdraw the guilty plea. Thus, defendant has waived consideration of that argument on appeal. People v. Hamilton, 283 Ill. App. 3d 854, 861-62, 670 N.E.2d 1189, 1194-95 (1996).\nEven if defendant had not waived this argument, we would conclude that he failed to demonstrate ineffective assistance of counsel. The denial of a motion to withdraw a guilty plea rests in the trial court\u2019s sound discretion, and a reviewing court will not overturn that determination unless (1) the guilty plea was entered through a misapprehension of the facts or law; or (2) doubt of the defendant\u2019s guilt exists and justice would be better served by submitting the case to trial. People v. Hillenbrand, 121 Ill. 2d 537, 545, 521 N.E.2d 900, 903 (1988). To establish that defendant was denied effective assistance of counsel in entering a guilty plea, defendant must demonstrate both (1) that his counsel\u2019s performance was deficient; and (2) prejudice to defendant (defined as a reasonable probability that, but for counsel\u2019s errors, defendant would not have pleaded guilty and would have insisted on going to trial). Prejudice is assessed in light of the likelihood of success at trial, and if prejudice has not been demonstrated, we need not consider whether counsel\u2019s performance was deficient. People v. Pugh, 157 Ill. 2d 1, 14-15, 623 N.E.2d 255, 261-62 (1993).\nDefendant concedes in his brief that Kuehl\u2019s advice \u2014 that if defendant\u2019s case went to trial, conviction and a sentence of 25 to 30 years were likely \u2014 was neither unreasonable nor deficient. However, defendant contends that Kuehl\u2019s incorrect advice concerning the matter of good-conduct credit requires reversal. We disagree.\nOur review of the record makes clear that the trial court thoroughly and completely admonished defendant as to the consequences of his guilty plea. Defendant\u2019s responses to the court\u2019s questions do not reveal any misunderstanding or hesitancy in his decision to plead guilty.\nMoreover, even if Kuehl\u2019s advice as to good-conduct credit was incorrect, defendant has not demonstrated prejudice to him in his decision to plead guilty. The record does not show that any alleged misunderstanding by defendant or Kuehl regarding good-conduct credit in any way affected the voluntariness of defendant\u2019s guilty plea.\nAccordingly, we hold that the trial court did not abuse its discretion by denying defendant\u2019s motion to withdraw his guilty plea.\nIII. CREDIT FOR TIME SERVED\nLast, defendant argues that he is entitled to one additional day of credit against his prison sentence for time served in county jail. Defendant claims that the record shows he is entitled to 121 days of credit, yet the trial court \u2014 after consulting with the State and defense counsel \u2014 credited him with only 120 days. The State concedes defendant\u2019s claim that he is entitled to an additional day\u2019s credit for time served, but we reject the State\u2019s concession because we conclude defendant has waived this claim.\nDefendant acknowledges that \"[t]his issue is not preserved for appeal because it was not raised in a motion to reduce sentence.\u201d He nevertheless contends that we should address the matter as plain error affecting substantial rights. We disagree.\nThe last sentence of Supreme Court Rule 604(d) provides as follows: \"Upon appeal any issue not raised by the defendant in the motion to reconsider the sentence or withdraw the plea of guilty and vacate the judgment shall be deemed waived.\u201d 145 Ill. 2d R. 604(d) (eff. August 1, 1992). The Supreme Court of Illinois has been very clear about the meaning of its rules, emphasizing that the court meant exactly what it said. See People v. Wilk, 124 Ill. 2d 93, 103, 529 N.E.2d 218, 221 (1988) (\"At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions\u201d).\nIn the present case, defendant did not include the issue of his claimed sentence credit in his motion to reconsider sentence and has, accordingly, waived it. In so holding, we note that this sentencing credit issue is particularly well suited to waiver analysis under Rule 604(d) because, had defendant called this matter appropriately to the trial court\u2019s attention, that court could have easily granted defendant any relief to which he was entitled, thus obviating the need to raise the issue on appeal.\nAn additional reason exists to conclude that defendant has waived his issue. In People v. Donnelly, 226 Ill. App. 3d 771, 779, 589 N.E.2d 975, 980 (1992), this court addressed the subject of computing a defendant\u2019s credit for time served at the sentencing hearing and stated:\n\"Because of the statutory right to the credit, we hold that the error in computing the credit is not waived by failure of the defendant *** to call the error to the trial court\u2019s attention. *** [Pjroper trial-court practice at the time of sentencing would include taking a few additional minutes to discuss credit-time computation with the prosecutor, defense counsel, and defen-dont \u2014 and then fix the number of days. From our experience, that effort might well avoid the loss of labor necessitated in the appellate process and the remandment process.\u201d\nNot long after rendering our opinion in Donnelly, this court decided People v. Curtis, 233 Ill. App. 3d 416, 420, 599 N.E.2d 101, 103 (1992), where we cited Donnelly and wrote the following:\n\"Both the State\u2019s Attorney and defense counsel have an obligation to assist the court, and both are obligated to make sure the defendant receives neither more nor less than the time credit to which he is entitled. We see little justification or explanation for errors in computing such credit.\u201d (Emphasis in original.)\nFurther, in People v. Steskal, 236 Ill. App. 3d 821, 824, 602 N.E.2d 977, 979 (1992), this court reaffirmed the views stated in Curtis, noted that neither the State nor defense counsel in that case offered the trial court any assistance in computing credit, and wrote the following:\n\"The trial judge should seek confirmation from defense counsel and the [State] as to the accuracy of [the probation office\u2019s presen-tence report] computation [of the total days for which defendant is entitled to credit for time served].\u201d\nThe present case differs from Donnelly, Curtis, and Steskal because the records in each of those cases were silent as to the defendant\u2019s agreement with the trial court\u2019s determination of the number of days for which the defendant was entitled to credit for time served. Here, however, the record before us shows that the trial court did precisely what this court urged in Donnelly, Curtis, and Steskal; namely, (1) it consulted with the State and defense counsel regarding the credit defendant was purportedly due for time served, (2) it sought \u2014 and received (through defense counsel) \u2014 defendant\u2019s explicit agreement with the total number of 120 days\u2019 credit, and (3) it corrected the number of days\u2019 credit accordingly. At sentencing hearing, the court noted that the State and defense counsel had stipulated that defendant was entitled to 118 days of credit, and the following discussion then took place:\n\"[Prosecutor]: Judge, that\u2019s an error. It\u2019s now 120 days.\nTHE COURT: Is that accurate, [defense counsel]?\n[Defense counsel]: That\u2019s two days to be added, Judge.\nTHE COURT: We\u2019ll make that 120 days.\u201d\nUnder the circumstances of this case \u2014 where the trial court consulted with the State and defense counsel, who explicitly agreed with the calculation of the total amount of credit for time served \u2014 we hold that defendant has waived this issue on appeal. As our supreme court stated in another context, \"If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain.\u201d People v. Burage, 23 Ill. 2d 280, 283, 178 N.E.2d 389, 391 (1961).\nTrial courts have no way of knowing \u2014 or controlling \u2014 how many days will pass after a defendant\u2019s sentencing hearing before he is in fact transferred to the Department of Corrections (DOC). Thus, to avoid confusion by DOC when it receives a recently sentenced defendant, we suggest that the trial court specify in the sentencing order that the credit it is ordering for time served is as of the date the sentencing hearing occurs. Then DOC would simply add additional days the defendant remained in custody in the local county jail until he was transferred to DOC to determine how much credit for time served defendant is entitled to when he is actually received at DOC. In the present case, for example, the sentencing hearing occurred on May 3, 1995, and the trial court stated that defendant was entitled to 120 days of credit for time served. Following our suggestion, the trial court would state, \"defendant is entitled to 120 days of credit for time served as of the date of this sentencing hearing, May 3, 1995,\u201d and the sentencing order would contain this statement, as well.\nIn concluding that defendant in this case has waived his argument on appeal that he is entitled to an additional day\u2019s credit for time served, we are mindful of the recent decision of the supreme court in People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). In that case, the supreme court overruled the decision of this court in People v. Toolate, 274 Ill. App. 3d 408, 654 N.E.2d 605 (1995), and held that the $5-per-diem monetary credit against the fine imposed for time spent in jail prior to sentencing, provided under section 110 \u2014 14 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/110\u201414 (West 1994)), may be allowed even on appeal. Woodard, 175 Ill. 2d at 456-58, 677 N.E.2d 945-46. In our judgment, the difference between Woodard and Toolate on the one hand and the present case on the other is that the records in Woodard and Toolate were both silent at each sentencing hearing on the subject of the defendant\u2019s credit under section 110 \u2014 14 of the Code against the fine the court imposed. See Woodard, 175 Ill. 2d at 438, 677 N.E.2d at 937; Toolate, 274 Ill. App. 3d at 409, 654 N.E.2d at 605-06. In the present case, however, defendant was not silent at the sentencing hearing. Instead, he agreed with the trial court and the State that he should be credited with 120 days of time served against his sentence, instead of 118 days that the court originally thought appropriate. Thus, this case is more like those situations in which the defendant not only fails to object, but affirmatively concurs in the action of the trial court, thereby waiving any objection to the action.\nWe note that this court has today filed People v. Gwartney, 289 Ill. App. 3d 350 (1997), reaching the same conclusion regarding defendants who actively participate at the sentencing hearing with the trial court and prosecutor in determining the amount of credit for time served.\nIV. CONCLUSION\nFor the reasons stated, we affirm the trial court\u2019s judgment.\nAffirmed.\nGREEN, J., concurs.", "type": "majority", "author": "PRESIDING JUSTICE STEIGMANN" }, { "text": "JUSTICE McCULLOUGH,\nconcurring in part and dissenting in part:\nThe State and the defendant agree that defendant is entitled to one additional day\u2019s credit on his sentence. It is clear a mistake was made by the trial court in determining the proper credit. The parties agree it was a mistake. The credit should be given. The majority is saying go back and file a section 2 \u2014 1401 motion. See 735 ILCS 5/2\u20141401 (West 1994). Is this judicial economy?\nThe defendant\u2019s claim is rejected on the basis that the claim has been waived. Waiver is the intentional relinquishment of a known right. Why would a defendant ever knowingly give up a day of credit?\nDonnelly, Curtis and Steskal are cited but distinguished because there was no agreement by the defendant as to the proper credit. Also distinguished is Woodard, because the record was silent as to section 110 \u2014 14 credit.\nThe record in Woodard may have been silent on the credit issue in the trial court but that is not the basis for the supreme court\u2019s holding.\nThe supreme court in Woodard makes it clear that the credit should be granted. Woodard did not involve a person\u2019s freedom. In Woodard, the issue was the $5 credit under section 110 \u2014 14 of the Code of Criminal Procedure of 1963, which provides in part: \"shall be allowed a credit *** upon application of the defendant.\u201d 725 ILCS 5/110\u201414 (West 1994); Woodard, 175 Ill. 2d at 440, 677 N.E.2d at 938. The applicable provision in this case, section 5 \u2014 8\u20147(b) of the Correctional Code, states in part: \"[t]he offender shall be given credit *** at the rate specified in Section 3 \u2014 6\u20143 of this Code.\u201d 730 ILCS 5/5\u20148\u20147(b) (West 1994). The court stated regardless of the failure of the defendant to apply, he was entitled to the credit. The Woodard court stated, \"[t]he plain language of section 110 \u2014 14 and its amendments also carries no indication that application at the trial level is a statutory precondition to the right to any credit.\u201d Woodard, 175 Ill. 2d at 448, 677 N.E.2d at 941. Certainly in determining credit for time served, the defendant does not have to make any application.\nSection 5 \u2014 8\u20147 of the Correctional Code does not require that the credit be determined at the time of the sentencing. 730 ILCS 5/5 \u2014 8\u20147 (West 1994). Again, as Woodard states: \"judicial discretion is not involved in a decision to allow the credit.\u201d Woodard, 175 Ill. 2d at 453, 677 N.E.2d at 944. \" 'Granting the credit is a simple ministerial act that will promote judicial economy by ending any further proceedings over the matter.\u2019 \u201d Woodard, 175 Ill. 2d at 456-57, 677 N.E.2d at 945, quoting People v. Scott, 277 Ill. App. 3d 565, 566, 660 N.E.2d 1316, 1316-17 (1996).\nIt is interesting to note that the supreme court in Woodard cited four cases from this district dealing with the mandatory credit in section 5 \u2014 8\u20147(b) of the Correctional Code. In People v. Sizemore, 226 Ill. App. 3d 956, 590 N.E.2d 520 (1992), the presentence report showed the dates defendant was entitled to credit for time served. This court, citing Donnelly, stated the issue of credit was not waived.\nIn Donnelly, we stated:\n\"Section 5 \u2014 8\u20147(b) of the Code is absolute, and there is no room for discretion. Credit must be given, and computation of the credit is basically an administrative function, but sentencing itself is a judicial function. The credit time is usually shown in the 'Judgment and Sentence,\u2019 and is part of the 'Mittimus for State Penal Institutions.\u2019 This document is often dated, as in the present case, some days after the sentencing hearing and may not be seen by the defendant. It is, however, a part of the record on appeal.\nBecause of the statutory right to the credit, we hold that the error in computing the credit is not waived by failure of the defendant in this case to call the error to the trial court\u2019s attention.\u201d Donnelly, 226 Ill. App. 3d at 779, 589 N.E.2d at 980.\nIn People v. Bates, 179 Ill. App. 3d 705, 709, 534 N.E.2d 1019, 1021 (1989), in a postconviction setting on credit for time served, this court did adopt waiver, \"where it could have been raised in the trial court or on direct appeal but was not.\u201d Also in People v. Beech, 202 Ill. App. 3d 576, 580, 560 N.E.2d 395, 398 (1990), citing Bates, 179 Ill. App. 3d 705, 534 N.E.2d 1019, this court again stated such an issue can be raised on direct appeal.\nWoodard did not make the defendant\u2019s right to the $5 credit dependent upon any lack of agreement in the trial court. The majority makes an exception to the right to credit as an issue on appeal if defendant makes some tacit agreement in the trial court. Certainly a day\u2019s credit for time served is as important to a defendant as the $5 credit dealt with in Woodard.\nIn this case waiver is based upon the litany between the prosecutor, the defendant\u2019s attorney and the court. That colloquy, because of its brevity, is worthy of repeating from the record in its entirety:\n\"THE COURT: *** He\u2019s to receive credit against that sentence for all time heretofore served in custody, which I believe the parties stipulated is 118 days.\n[Prosecutor]: Judge, that\u2019s an error. It\u2019s now 120 days.\nTHE COURT: Is that accurate, [defense counsel]?\n[Defense counsel]: That\u2019s two days to be added, Judge.\nTHE COURT: We\u2019ll make that 120 days.\u201d\nNeither the parties nor the court had the benefit of a presentence report. This record is not sufficient to bar a defendant from presenting this issue on appeal.\nThe supreme court has recently remanded several cases pursuant to Woodard. People v. Watson, 173 Ill. 2d 544 (1997); People v. Hillsman, 173 Ill. 2d 534 (1997); People v. Taylor, 173 Ill. 2d 543 (1997); People v. Brazelton, 173 Ill. 2d 530 (1997); and People v. Harris, 173 Ill. 2d 534 (1997). These supreme court orders, since Woodard, dealing with the credit issue, are a clear indication that defendant should be granted 121 days\u2019 credit.\nAs to the Rule 604(d) issue, the majority sua sponte finds waiver. The State does not argue waiver, suggesting the State has waived the issue of waiver.\nI agree with the majority that the trial court did not err in denying defendant\u2019s motion to withdraw his guilty plea.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE McCULLOUGH," } ], "attorneys": [ "Daniel D. Yuhas and-Martin J. Ryan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "John C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY J. MOORE, Defendant-Appellant.\nFourth District\nNo. 4\u201496\u20140188\nOpinion filed June 30, 1997.\n\u2014 Rehearing denied July 31, 1997.\nDaniel D. Yuhas and-Martin J. Ryan, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nJohn C. Piland, State\u2019s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Jeffrey K. Davison, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0357-01", "first_page_order": 375, "last_page_order": 385 }