{ "id": 4290137, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY D. SANDERS, Defendant-Appellant", "name_abbreviation": "People v. Sanders", "decision_date": "2009-07-21", "docket_number": "No. 2-07-1088", "first_page": "409", "last_page": "414", "citations": [ { "type": "official", "cite": "393 Ill. App. 3d 409" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "365 Ill. App. 3d 744", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264628 ], "year": 2006, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/365/0744-01" ] }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "447-48" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "61 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3347053 ], "year": 1978, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/61/0461-01" ] }, { "cite": "203 Ill. 2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799405 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/ill-2d/203/0198-01" ] }, { "cite": "574 So. 2d 1188", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7523513 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "1189", "parenthetical": "\"We cannot agree that the use of the word 'should,' rather than 'must,' in [an] instruction conveys the impression that it is discretionary with the jury whether to acquit if they have a reasonable doubt concerning the defendant's guilt\" (emphasis in original)" }, { "page": "1189" } ], "opinion_index": 0, "case_paths": [ "/so2d/574/1188-01" ] }, { "cite": "296 F.3d 917", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9405675 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "929", "parenthetical": "noting that the Supreme Court \"has never indicated that the mandatory force inherent in the term 'should' is insufficient to properly guide a jury's application of the reasonable doubt standard\"" }, { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/f3d/296/0917-01" ] }, { "cite": "511 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1147397 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "5" }, { "page": "590" }, { "page": "1243" }, { "page": "5" }, { "page": "590" }, { "page": "1243" } ], "opinion_index": 0, "case_paths": [ "/us/511/0001-01" ] }, { "cite": "397 U.S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "364" }, { "page": "375" }, { "page": "1073" } ], "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "225 Ill. 2d 612", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705134 ], "weight": 6, "year": 2007, "pin_cites": [ { "page": "622" }, { "page": "622" }, { "page": "622" }, { "page": "622" }, { "page": "623" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0612-01" ] }, { "cite": "228 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706686 ], "year": 2008, "pin_cites": [ { "page": "191" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0181-01" ] }, { "cite": "218 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735992 ], "year": 2005, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0125-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "564" }, { "page": "564" }, { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "389 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4284462 ], "weight": 6, "year": 2009, "pin_cites": [ { "page": "916" }, { "page": "916" }, { "page": "916" }, { "page": "916-17" }, { "page": "917" }, { "page": "918" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/389/0904-01" ] } ], "analysis": { "cardinality": 599, "char_count": 11446, "ocr_confidence": 0.764, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1442169022209403 }, "sha256": "c1c8e3244b542c448aecbe73ec58ef5de2c236a641f950d3c0a9f2430f00785c", "simhash": "1:5e02312a1208dc45", "word_count": 1922 }, "last_updated": "2023-07-14T17:16:56.365944+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. JEFFREY D. SANDERS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HUDSON\ndelivered the opinion of the court:\nDefendant, Jeffrey D. Sanders, appeals his conviction of and sentence for unlawful restraint (720 ILCS 5/10 \u2014 3(a) (West 2004)). He contends that Illinois Pattern Jury Instructions, Criminal, No. 8.07 (4th ed. 2000) (IPI Criminal 4th) misstated the law, depriving him of due process and his right to a presumption of innocence. He also argues that he is entitled to full monetary credit against a $670 judgment for 139 days that he spent in custody. The State concedes that defendant is entitled to the credit. We determine that the jury was properly instructed and affirm defendant\u2019s conviction. However, we modify the mittimus to reflect the credit.\nI. BACKGROUND\nOn June 27, 2007, defendant was indicted on one count of unlawful restraint. A jury trial was held, and the jury was instructed about the presumption of innocence and burden of proof under IPI Criminal 4th No. 2.03, as follows:\n\u201cThe defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty.\nThe State has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the State throughout the case. The defendant is not required to prove his innocence.\u201d\nThe court also gave IPI Criminal 4th No. 8.07, which stated:\n\u201cTo sustain the charge of unlawful restraint, the state must prove the following proposition:\nThat the defendant knowingly and without legal authority detained [the victim].\nIf you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty.\nIf you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty.\u201d\nDefendant did not object to the instructions or offer alternate instructions.\nThe jury found defendant guilty. On October 22, 2007, he was sentenced to 2V2 years\u2019 incarceration with credit for 139 days served. On the same day, the court entered a separate judgment for $670. Defendant did not request credit against that amount for the time he was in custody.\nDefendant moved for a new trial. His motion did not include any allegations concerning the jury instructions, nor did it request credit against the $670 judgment for time spent in custody. Defendant\u2019s motion was denied, and he appeals.\nII. ANALYSIS\nDefendant first contends that the word \u201cshould\u201d in IPI Criminal 4th No. 8.07 is permissive and would allow the jury to convict him even if it had reasonable doubt about his guilt. Thus, he argues that the instruction violated his due process right to a presumption of innocence. However, he did not raise the matter in the trial court.\n\u201c \u2018Generally, a defendant forfeits\u2019 or procedurally defaults \u2018review of any supposed jury instruction error if he does not object to the instruction or offer an alternative at trial and does not raise the issue in a posttrial motion.\u2019 \u201d People v. Sargent, 389 Ill. App. 3d 904, 916 (2009), quoting People v. Piatkowski, 225 Ill. 2d 551, 564 (2007).\n\u2018This principle encourages a defendant to raise issues before the trial court, thereby allowing the court to correct its errors before the instructions are given, and consequently precluding a defendant from obtaining a reversal through inaction.\u2019 \u201d Sargent, 389 Ill. App. 3d at 916, quoting Piatkowski, 225 Ill. 2d at 564.\n\u201cSupreme Court Rule 451(c) (210 Ill. 2d R. 451(c)) provides that \u2018substantial defects\u2019 in criminal jury instructions \u2018are not waived by failure to make timely objections thereto if the interests of justice require.\u2019 \u201d Sargent, 389 Ill. App. 3d at 916. \u201cRule 451(c) has been deemed \u2018coextensive with the plain-error clause of Supreme Court Rule 615(a), and the two rules are construed identically.\u2019 \u201d Sargent, 389 Ill. App. 3d at 916-17, quoting Piatkowski, 225 Ill. 2d at 564; see 134 Ill. 2d R. 615(a). \u201cUnder Rule 615(a), \u2018[a]ny error, defect, irregularity, or variance\u2019 that \u2018does not affect substantial rights shall be disregarded\u2019 on appeal, but \u2018[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u2019 \u201d Sargent, 389 Ill. App. 3d at 917, quoting 134 Ill. 2d R. 615(a). However, \u201cthere can be no plain error if there is no error.\u201d People v. Johnson, 218 Ill. 2d 125, 139 (2005). Accordingly, in addressing whether there was plain error, we must first determine whether error occurred at all. Sargent, 389 Ill. App. 3d at 918, citing People v. Hudson, 228 Ill. 2d 181, 191 (2008).\n\u201cThe due process clause of the fourteenth amendment protects a defendant from conviction \u2018except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.\u2019 \u201d People v. Green, 225 Ill. 2d 612, 622 (2007), quoting In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970). \u201cConsequently, to ensure a fair trial, the trial court must instruct the jury on such basic matters as the elements of the offense, the presumption of innocence, and the burden of proof.\u201d Green, 225 Ill. 2d at 622. However, \u201cas long as the court instructs the jury on the necessity that the defendant\u2019s guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government\u2019s burden of proof.\u201d Green, 225 Ill. 2d at 622, citing Victor v. Nebraska, 511 U.S. 1, 5, 127 L. Ed. 2d 583, 590, 114 S. Ct. 1239, 1243 (1994). \u201cRather, taken as whole, the instructions must correctly convey the concept of reasonable doubt to the jury.\u201d Green, 225 Ill. 2d at 622, citing Victor, 511 U.S. at 5, 127 L. Ed. 2d at 590, 114 S. Ct. at 1243.\nIn Green, the defendant argued that he was denied due process when the jury instruction on the elements of the crime (see IPI Criminal 4th No. 14.04) did not include the two standard paragraphs stating when the jury should find him guilty or not guilty. Our supreme court held that, in relation to the presumption of innocence and the burden of proof, IPI Criminal 4th No. 2.03 \u201cis sufficient to ensure that a defendant\u2019s right to a fair trial is protected.\u201d Green, 225 Ill. 2d at 623. Once IPI Criminal 4th No. 2.03 is given, the constitutional threshold is met. Green, 225 Ill. 2d at 623.\nHere, IPI Criminal 4th No. 2.03 was given, meeting the constitutional requirement that the jury be instructed on the presumption of innocence and the burden of proof. Defendant does not point to any cases, and we have found none, that support his contention that the word \u201cshould\u201d in IPI Criminal 4th No. 8.07 diminishes the meaning of IPI Criminal 4th No. 2.03, regarding the presumption of innocence and the burden of proof. To the contrary, although no Illinois court has directly addressed the use of the term \u201cshould\u201d in relation to the presence of reasonable doubt, courts in other jurisdictions have rejected arguments that the term \u201cshould\u201d allows jurors discretion to convict even if they harbor reasonable doubt about guilt. See, e.g., Willingham v. Mullin, 296 F.3d 917, 929 (10th Cir. 2002) (noting that the Supreme Court \u201chas never indicated that the mandatory force inherent in the term \u2018should\u2019 is insufficient to properly guide a jury\u2019s application of the reasonable doubt standard\u201d); Torrence v. State, 574 So. 2d 1188, 1189 (Fla. App. 1991) (\u201cWe cannot agree that the use of the word \u2018should,\u2019 rather than \u2018must,\u2019 in [an] instruction conveys the impression that it is discretionary with the jury whether to acquit if they have a reasonable doubt concerning the defendant\u2019s guilt\u201d (emphasis in original)). Indeed, similar to the supreme court\u2019s analysis in Green and our analysis in this case, these foreign decisions examined as a whole the instructions provided. The Willingham and the Tor-rence courts then determined that the instructions adequately informed the jury that an acquittal was required if there was a reasonable doubt concerning the defendant\u2019s guilt. Willingham, 296 F.3d at 929; Torrence, 574 So. 2d at 1189.\nDefendant contends that People v. Pomykala, 203 Ill. 2d 198 (2003), supports his position. Defendant\u2019s reliance on the Pomykala decision is misplaced. In Pomykala our supreme court addressed a nonpattern instruction that created a mandatory presumption that impermissibly shifted to the defendant the burden to prove an element of the crime. Here, no mandatory presumption is at issue. Instead, defendant argues that the language of the instruction is permissive. Pomykala is not relevant to his argument and does not support his position.\nThe instructions here worked together; IPI Criminal 4th No. 8.07 informed the jury of the elements of the crime and what was expected of the jury if the State proved or failed to prove those elements, while the constitutionally required presumption of innocence and burden of proof were firmly stated in IPI Criminal 4th No. 2.03. The instructions thus sufficiently informed the jury of the law applicable to the case, the presumption of innocence, and the burden of proof. See People v. Dyer, 61 Ill. App. 3d 461, 462 (1978). Accordingly, there was no error in the instructions, and we affirm defendant\u2019s conviction.\nDefendant next argues that he is entitled to full credit against the $670 judgment for the time he spent in custody. The State concedes that he is entitled to the credit.\nSection 110 \u2014 14(a) of the Code of Criminal Procedure of 1963 provides: \u201cAny person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense shall be allowed credit of $5 for each day so incarcerated upon application of the defendant.\u201d 725 ILCS 5/110 \u2014 14(a) (West 2004). The credit is not limited to people who apply for it at the trial level. People v. Woodard, 175 Ill. 2d 435, 447-48 (1997). Therefore, the normal rules of forfeiture do not apply, and the right is cognizable on appeal as a matter of course, subject to the defendant\u2019s application. Woodard, 175 Ill. 2d at 457.\nThe State concedes that defendant can make his request on appeal and that he is entitled to credit sufficient to satisfy the judgment for $670. Accordingly, we modify the mittimus to reflect the credit.\nIII. CONCLUSION\nWe affirm the judgment of the circuit court of Lake County but we modify the mittimus to reflect full credit against the judgment for $670.\nAffirmed as modified.\nJORGENSEN and BURKE, JJ, concur.\nAlthough the record does not specify that any of the judgment, much less all of it, is for fines, the State offers to concede the credit in any event. We choose to accept the State\u2019s concession, thereby avoiding a remand and serving the interests of justice and judicial economy. See People v. Stewart, 365 Ill. App. 3d 744, 752 (2006).", "type": "majority", "author": "JUSTICE HUDSON" } ], "attorneys": [ "Matthew J. Haiduk, of Haiduk & Froelich, LLP, of Algonquin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer and Barry W. Jacobs, both 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. JEFFREY D. SANDERS, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 07\u20141088\nOpinion filed July 21, 2009.\nMatthew J. Haiduk, of Haiduk & Froelich, LLP, of Algonquin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer and Barry W. Jacobs, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0409-01", "first_page_order": 425, "last_page_order": 430 }