{ "id": 4282133, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIOT HARPER, Defendant-Appellant", "name_abbreviation": "People v. Harper", "decision_date": "2008-12-19", "docket_number": "No. 1-07-0399", "first_page": "240", "last_page": "244", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 240" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "372 Ill. App. 3d 422", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4269618 ], "year": 2007, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/372/0422-01" ] }, { "cite": "201 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1477007 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "555" }, { "page": "556" }, { "page": "555" }, { "page": "557" }, { "page": "558" }, { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/201/0552-01" ] }, { "cite": "217 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3874667 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "190" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0177-01" ] }, { "cite": "184 Ill. 2d 260", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926981 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "271" }, { "page": "271-72" }, { "page": "271-72" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0260-01" ] }, { "cite": "481 U.S. 551", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6218288 ], "weight": 3, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/481/0551-01" ] } ], "analysis": { "cardinality": 493, "char_count": 9539, "ocr_confidence": 0.765, "pagerank": { "raw": 4.856319230494445e-08, "percentile": 0.305394831899466 }, "sha256": "40c24de5c75166b0f99ff2b7a03d6ec2e7878df2ea7bb7eecc880475fe3003c3", "simhash": "1:bb217656673e62bf", "word_count": 1545 }, "last_updated": "2023-07-14T22:05:00.567552+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. ELLIOT HARPER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nDefendant Elliot Harper appeals from the trial court order granting the State\u2019s motion to dismiss his petitions for relief pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122 \u2014 1 et seq. (West 2006)). On appeal, defendant contends he made a substantial showing that (1) he did not receive the benefit of the bargain he made with the State when he pled guilty, and (2) his mittimus must be corrected to reflect two more days of presentence custody credit.\nOn May 29, 1997, defendant entered a negotiated plea of guilty to first degree murder and attempted murder. The factual basis of the plea established that on March 20, 1995, defendant fired a weapon into a vehicle, killing Lorenzo Aldridge and wounding Tomango Willis. After the court accepted defendant\u2019s plea, it sentenced him as follows:\n\u201cTHE COURT: *** The defendant will be sentenced to 24 years in the Illinois Department of Corrections on Count 1 [murder]. He\u2019s to receive credit.\n* *\nTHE COURT: Receive credit for 798 days time served. On Count 3 [attempted murder], the defendant will be sentenced to six years Illinois Department of Corrections. That\u2019s to be consecutive to the term, the sentence in Count 1, and he\u2019s also to receive credit on that for 798 days time served.\u201d\nThe court also entered two separate written orders, providing that defendant should receive 798 days\u2019 credit for \u201cMurder Count I\u201d and 798 days\u2019 credit for \u201cAttempt Murder Count III.\u201d Defendant\u2019s order of sentence and commitment reflected that he was sentenced to 24 years for first degree murder and 6 years for attempted murder, to be served consecutively. In addition, the mittimus noted: \u201ccredit 798 days served in custody TCS. TAS.\u201d\nThe parties agree that defendant did not file a postplea motion but, instead, filed a motion to correct the mittimus to reflect credit for time served against each of his sentences. Defendant filed this motion in August 1998 and the circuit court denied it on September 11, 1998. On appeal, we granted appellate counsel\u2019s motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), and affirmed the judgment of the circuit court, noting that \u201c[t]he relief defendant requests is precluded by People v. Latona, 184 Ill. 2d 260, 271 (1998)).\u201d People v. Harper, No. 1 \u2014 98\u20143727, slip op. at 2 (1999) (unpublished order under Supreme Court Rule 23).\nOn March 11, 1999, defendant filed a pro se postconviction petition, alleging, inter alia, that plea counsel Barry Pechter and the court advised him that he would receive 798 days\u2019 credit for time served on both offenses. Defendant attached copies of the sentencing orders and a letter from Pechter, dated January 5, 1998, stating, in part:\n\u201cIt appears that the Department of Corrections has chosen not to abide by court orders regarding time served in consecutive cases. I personally do not believe the Department of Corrections has the right not to obey a court order. However, the matter is now under consideration by the Illinois Supreme Court.\u201d\nDefendant also attached an affidavit from his father, Elliot Harper, Sr., who averred that on May 29, 1997, Pechter advised him and other family members that defendant would receive credit for time served in custody on both offenses, totaling 1,596 days\u2019 credit. Last, defendant attached his own affidavit, providing that he was advised on May 19 and 29, 1997, that he would receive 1,596 days\u2019 presentence custody credit if he pled guilty to both counts, i.e., murder and attempted murder.\nSubsequently, defendant filed a pro se motion to supplement his petition with Pechter\u2019s affidavit, which provided that Pechter believed defendant would receive a total of 1,596 days\u2019 credit pursuant to a Rule 402 (177 Ill. 2d R. 402) conference he had with the court on May 9, 1997.\nDefendant\u2019s petition advanced to the second stage, where postconviction counsel ultimately filed the instant supplemental petition, alleging that defendant did not receive the benefit of the bargain regarding his plea agreement. The State filed a motion to dismiss, which the trial court granted on October 27, 2006, noting that there was no substantial denial of defendant\u2019s constitutional rights.\nOn appeal, defendant first asserts that his petition made a substantial showing of a constitutional violation that he did not receive the benefit of the bargain he made with the State when he pled guilty. Defendant does not contest that his plea was knowingly or voluntarily made, nor does he seek to withdraw his plea of guilty. Rather, defendant seeks specific performance of the plea agreement as he understood it and requests that we reduce his sentence for murder from 24 years to 21 years and 297 days.\nOn appeal, defendant relies primarily on People v. Whitfield, 217 Ill. 2d 177 (2005), for the proposition that he deserves relief because he was denied the benefit of his plea bargain. In Whitfield, the trial court failed to advise the defendant of the three-year period of mandatory supervised release (MSR) before ratifying a negotiated guilty plea agreement. Whitfield, 217 Ill. 2d at 190. Under a benefit-of-the-bargain analysis, the supreme court held that the defendant was entitled to a reduction in his negotiated 25-year sentence by 3 years to 22 years followed by a 3-year MSR term. Whitfield, 217 Ill. 2d at 205. In the instant case, however, unlike Whitfield, the trial court did not fail to advise defendant of the appropriate MSR term but, rather, awarded him presentence custody credit that the law did not allow. Latona, 184 Ill. 2d at 271-72.\nAlthough we understand defendant\u2019s argument on appeal, we hold this case is governed not by Whitfield but by the Illinois Supreme Court\u2019s decision in People ex rel. Ryan v. Roe, 201 Ill. 2d 552 (2002). In Roe, the defendant pled guilty to predatory criminal sexual assault of a child in exchange for an eight-year sentence. At the defendant\u2019s guilty plea hearing, the trial court, assistant State\u2019s Attorney and defense counsel agreed that truth-in-sentencing would not apply and that the defendant would be eligible for day-for-day good-conduct credit on his eight-year sentence. The trial court wrote on the defendant\u2019s sentencing order: \u201cNOT SUBJECT TO TRUTH IN SENTENCING.\u201d Roe, 201 Ill. 2d at 555. This agreement was in violation of a statute that provided the defendant must serve at least 85% of his sentence and does not receive normal day-for-day good-conduct credit. Roe, 201 Ill. 2d at 556. Nearly three years later, the State filed a mandamus complaint, seeking an amended sentencing order without language stating that truth-in-sentencing did not apply. Roe, 201 Ill. 2d at 555.\nIn awarding the writ, the Roe court stated that \u201cthe trial court had no authority to order, and the State had no authority to agree, that the defendant\u2019s eight-year sentence was not subject to truth-in-sentencing.\u201d Roe, 201 Ill. 2d at 557. Nevertheless, in the exercise of its supervisory authority, the Roe court granted the defendant\u2019s request to reduce his sentence from eight years\u2019 to six years\u2019 imprisonment, the statutory minimum for the charged offense. Roe, 201 Ill. 2d at 558. The Roe court found that the proposed solution was equitable considering \u201cneither party contemplated truth-in-sentencing requirements when negotiating toward a guilty plea.\u201d Roe, 201 Ill. 2d at 558.\nIn this case, although the defendant contends he is entitled to the benefit of the bargain, the State has maintained throughout these proceedings that defendant was not entitled to double credit on his consecutive sentences.\nHere, as in Roe, the trial court did not have authority to award double day-for-day credit to defendant\u2019s consecutive sentence. Latona, 184 Ill. 2d at 271-72. Unlike the supreme court in Roe, however, we do not have supervisory authority to grant the extraordinary relief which defendant requests, i.e., a reduction in his sentence for murder from 24 years to 21 years and 297 days. Accordingly, we must uphold the dismissal of defendant\u2019s postconviction petition.\nNext, defendant asserts and the State rightly concedes that he spent 800, not 798, days in presentence custody. Further, defendant asks that we correct his mittimus to reflect two additional days of presentence credit. Because we have the authority to correct the mittimus at any time without remanding the matter to the trial court (People v. Pryor, 372 Ill. App. 3d 422, 438 (2007)), we order the correction of the mittimus to reflect two additional days of presentence custody credit.\nFor the foregoing reasons, we affirm the trial court\u2019s dismissal of defendant\u2019s postconviction petition and direct the clerk of the circuit court to correct the mittimus to reflect 800 days of presentence custody credit.\nAffirmed; mittimus corrected.\nO\u2019MALLEY, P.J., and CAHILL, J., concur.\nThe original order for \u201cMurder Count I\u201d does not appear in the common law record, but defendant attached an undisputed copy to his pro se postconviction petition.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Patricia Unsinn and Jonathan Krieger, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Rimas F. Cernius, and James A. Costello, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ELLIOT HARPER, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1 \u2014 07\u20140399\nOpinion filed December 19, 2008.\nRehearing denied January 29, 2009.\nPatricia Unsinn and Jonathan Krieger, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita Alvarez, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Rimas F. Cernius, and James A. Costello, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0240-01", "first_page_order": 256, "last_page_order": 260 }