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Docket No. 96159-Agenda 2-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BRIAN
ROBERSON, Appellant.
 

Opinion filed October 28, 2004.

JUSTICE KILBRIDE delivered the opinion of the court:

Defendant, Brian Roberson, was convicted in the circuit court ofDu Page County and sentenced to four years' incarceration forviolating a bail bond (720 ILCS 5/32-10(a) (West 2000)). Followinghis conviction, he filed a posttrial motion, arguing that he was entitledto sentence credit for the time he was in custody awaiting trial on theunderlying burglary charge that the State dismissed. The circuit courtdenied the motion, and defendant appealed. The appellate courtaffirmed. 337 Ill. App. 3d 685. We granted defendant leave to appeal(177 Ill. 2d R. 315) and now reverse.

BACKGROUND

Defendant was arrested for burglary (720 ILCS 5/19-1(a) (West2000)) and posted bond. Defendant failed to appear for a court date,and the court issued a warrant for his arrest. Approximately sixmonths later, defendant was arrested on the warrant in California andextradited to Illinois. Approximately eight months later, defendant wasindicted for violating the terms of his bail bond. He posted bond onthe burglary charge and two days later he was taken into custody onthe violation-of-bail-bond charge.

The case proceeded to a bench trial, where the State elected notto prosecute the burglary charge. Defendant was later convicted ofviolating his bail bond and sentenced to four years' imprisonment.Defendant subsequently filed a posttrial motion, arguing, among otherthings, that he was entitled to sentencing credit for the 267 days heserved in custody on the burglary offense, representing most of thetime he was incarcerated following his extradition from California andjust prior to his second arrest. The trial court denied the motion,stating that defendant "was not in custody on the violation of [the] bailbond charge." Defendant appealed, arguing, inter alia, that pursuantto section 5-8-7(c) of the Unified Code of Corrections (Code) (730ILCS 5/5-8-7(c) (West 2000)), he should receive credit against hisviolation-of-bail-bond sentence for the time he served in custodyawaiting a trial on the dismissed burglary charge. Section 5-8-7provides:

"(b) The offender shall be given credit *** for time spentin custody as a result of the offense for which the sentencewas imposed ***.

* * *

(c) An offender arrested on one charge and prosecuted onanother charge for conduct which occurred prior to [theoffender's] arrest shall be given credit on the determinatesentence or maximum term and the minimum term ofimprisonment for time spent in custody under the formercharge not credited against another sentence." 730 ILCS5/5-8-7(b), (c) (West 2000).

The appellate court affirmed, with Presiding Justice Hutchinsondissenting. The appellate majority reasoned as follows:

"This case hinges on the proper characterization of theApril 23, 2000, arrest of defendant in California. If the ***arrest was an arrest for the burglary charge, section 5-8-7(c)would clearly apply. However, the *** arrest was not for thecharge of burglary. As of April 23, 2000, defendant hadalready been indicted for that burglary and arrested on thatcharge on September 4, 1999. Rather, the bench warrantcommanding defendant's arrest, served on April 23, 2000,was for failure to appear and was issued pursuant to section110-3 of the Code of Criminal Procedure of 1963. [Citation.]The bench warrant clearly commanded the arrest ofdefendant for 'FAILURE TO APPEAR' and included ***citation [to the bail bond violation statute] ***. As a result,the conduct for which defendant was prosecuted (failing toappear in court on October 25, 1999) did not occur prior todefendant's September 4, 1999, arrest for burglary.Therefore, we find that section 5-8-7(c) does not apply tothis case." 337 Ill. App. 3d at 687-88.

In dissent, Presiding Justice Hutchinson found there was evidenceof manipulation by the State and that defendant was entitled to creditfor time spent in custody. According to Justice Hutchinson, thewarrant stated that the original violation was burglary. 337 Ill. App.3d at 689 (Hutchinson, P.J., dissenting). Therefore, the Californiaarrest related back to the original charge of burglary, and section5-8-7(c) should apply. 337 Ill. App. 3d at 690 (Hutchinson, P.J.,dissenting). Justice Hutchinson further reasoned that the Statemanipulated defendant's liberty by allowing him to remain in custodyfor approximately eight months without bail before charging him withviolation of his bond. 337 Ill. App. 3d at 690 (Hutchinson, P.J.,dissenting).

Defendant sought leave to appeal, and this court alloweddefendant's petition. 177 Ill. 2d R. 315. In the interim, defendant hasfinished serving his sentence and mandatory supervised release for hisconviction. For this reason, the State moved to dismiss the appeal asmoot. We ordered that motion taken with the case, and for thereasons that follow, we deny it.

ANALYSIS

As a threshold matter, we observe that this case is moot, asargued by the State, because defendant has been released fromcustody. In re Andrea F., 208 Ill. 2d 148, 156 (2003) (an appeal ismoot when it presents no actual controversy or when the issues nolonger exist). The mootness doctrine stems from the fear that partiesto a resolved dispute will lack the personal stake in the outcome of thecontroversy sufficient to assure the adversarial relationship, " ' "whichsharpens the presentation of issues upon which the court so largelydepends for illumination of difficult *** questions." ' " In re A Minor,127 Ill. 2d 247, 255 (1989), quoting People ex rel. Black v. Dukes, 96Ill. 2d 273, 276-77 (1983), quoting Baker v. Carr, 369 U.S. 186, 204,7 L. Ed. 2d 663, 678, 82 S. Ct. 691, 703 (1962). A case is moot if theissues involved in the trial court have ceased to exist becauseintervening events have made it impossible for the reviewing court togrant effectual relief to the complaining party. In re A Minor, 127 Ill.2d at 255. In this case, we are unable to render any sort of effectualrelief to defendant because he has served his sentence and completedhis mandatory supervised release.

Notwithstanding the general rule, a reviewing court may,however, review an otherwise moot issue pursuant to the publicinterest exception to the mootness doctrine. In re Mary Ann P., 202Ill. 2d 393, 402 (2002). The factors a reviewing court will considerwhen deciding whether to address a moot case under the publicinterest exception are: (1) the public nature of the question; (2) thelikelihood that the question will recur; and (3) the desirability of anauthoritative determination for the purpose of guiding public officers.In re Andera F., 208 Ill. 2d at 156. This exception is to be construednarrowly and requires a clear showing of each criterion. In reAdoption of Walgreen, 186 Ill. 2d 362, 365 (1999).

With these factors in mind, we choose to address the merits ofdefendant's appeal. First, the question presented by this appeal is oneof a definitive public nature. The liberty interests of every personsubject to the application of section 5-8-7 of the Code are potentiallyat stake. Second, the question has already reoccurred in People v.Hernandez, 345 Ill. App. 3d 163 (2004), leading the Second Districtto a contrary holding, with Justice Hutchinson, writing this time forthe majority, adopting the rationale of her Roberson dissent.Hernandez, 345 Ill. App. 3d at 168-69. As a result, guidance isneeded by this court to resolve the conflict and to ensure publicofficers will consistently apply section 5-8-7 in the future.

Turning to the merits of defendant's argument, he maintains thatunder the plain and ordinary meaning of section 5-8-7(c) he is entitledto credit for time served on the burglary charge because he wasarrested for one charge, i.e., burglary, and prosecuted for anothercharge, i.e., bond violation, that occurred before his second arrest.The State counters that the appellate court correctly founddefendant's first arrest was for burglary, but his second arrest was forfailure to appear in court pursuant to section 110-3 of the Code ofCriminal Procedure of 1963 (725 ILCS 5/110-3 (West 2000)) andtherefore section 5-8-7(c) does not apply. In reply, defendantcontends that if his second arrest was for failure to appear, then hewas plainly entitled to credit under section 5-8-7(b). Defendant raisesthis argument for the first time in his reply brief to this court and,therefore, the State moved to strike defendant's reply brief andmaintains that this argument is waived. The substance of this issueinvolves an issue of statutory construction subject to de novo review.People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003).

In relevant part, section 110-3 provides:

"Upon failure to comply with any condition of a bail bond*** the court having jurisdiction at the time of such failuremay, in addition to any other action provided by law, issue awarrant for the arrest of the person at liberty on bail ***. Thecontents of such a warrant shall be the same as required foran arrest warrant issued upon complaint. When a defendantis at liberty on bail *** on a felony charge and fails to appearin court as directed, the court shall issue a warrant for thearrest of such person. Such warrant shall be noted with adirective to peace officers to arrest the person and hold suchperson without bail and to deliver such person before thecourt for further proceedings." 725 ILCS 5/110-3 (West2000).

As noted by the parties, the resolution of this case depends uponthe proper characterization of defendant's second arrest. TheHernandez court dealt with an almost identical situation,characterizing the second arrest as one for the underlying charge.Hernandez, 345 Ill. App. 3d at 170.

In Henandez, the defendant was indicted for aggravated criminalsexual abuse (720 ILCS 5/12-16 (West 2000)). He was arrested onthat charge and released on bail. After failing to appear, thedefendant's bond was revoked and he was later arrested for a secondtime. As in the case at hand, the warrant authorizing the defendant'ssecond arrest noted the original violation of aggravated criminalsexual abuse. Approximately four months after the defendant's secondarrest, the State dismissed the aggravated criminal sexual abuse chargeand charged the defendant with violating his bail bond.

Following the defendant's conviction on that charge, he arguedthat he was entitled to credit for the 122 days he was incarceratedfollowing his second arrest and prior to being charged with violationof his bond. The trial court denied defendant's motion for sentencingcredit. On appeal, the appellate court held that the defendant wasentitled to the credit and directed the clerk of the court to enter amodified mittimus reflecting an additional 122 days of credit for timeserved. Hernandez, 345 Ill. App. 3d at 171. The appellate courtreasoned as follows:

"The offense underlying the issuance of the bench warrantto arrest was aggravated criminal sexual abuse. The March16, 1999, warrant for defendant's arrest was predicated onhis failure to appear in court on the sexual abuse charge. TheMarch 16, 1999, warrant did not formally charge defendantwith committing a crime; it was merely a procedural tool thatthe trial court was statutorily required to utilize to effectdefendant's return so that he could face prosecution on thesexual abuse charge." Hernandez, 345 Ill. App. 3d at 170.

The appellate court further stated that it appeared the State"manipulated" the defendant's liberty when it permitted him to remainin custody for 122 days without bail before charging him withviolating his bail bond. Hernandez, 345 Ill. App. 3d at 170. Accordingto the appellate court, if the State had charged the defendant forviolating his bail bond when he was arrested, there would have beenno question that he would have been entitled to the credit for timespent in custody under section 5-8-7(b) of the Code. Hernandez, 345Ill. App. 3d at 170-71. Rather, the State held the defendant in custodyfor 122 days before dismissing the underlying criminal sexual abusecharge and formally charging him with violating his bail bond.Hernandez, 345 Ill. App. 3d at 171.

Here, if defendant had been charged with failure to appearcontemporaneously with the execution of the second arrest warrant,there is no question that he would have received credit undersubsection (b) for the time he served while awaiting trial. Instead, hewas not charged until approximately eight months later, prompting thetrial court to articulate that he was not "in custody" on the violationof the bail bond charge during that time. Therefore, under the trialcourt's finding, subsection (b) did not apply. According to the trialand appellate courts, subsection (c) did not apply either because thesecond arrest was solely for failure to appear. Thus, under the lowercourts' interpretations, while defendant was arrested for failure toappear, he was not "in custody" for that charge during the eightmonths he was incarcerated prior to the State electing not toprosecute the burglary charge and finally opting to charge him withthe latter offense.

We disagree with the trial court and appellate court's reasoning.Defendant is correct that he was entitled to credit under section5-8-7(b). Despite the trial court's pronouncement that defendant wasnot "in custody" on the violation of the bail bond charge until he wasformally indicted for that offense, once a defendant is arrested for anoffense he or she is clearly "in custody" for that offense even beforehe or she is formally charged. See Hernandez, 345 Ill. App. 3d at 173-74 (Callum, J., specially concurring). In factual situations such as theone found in the present case, the second arrest is for the bail bondviolation and, therefore, subsection (b), rather than subsection (c),applies. See Hernandez, 345 Ill. App. 3d at 173-74 (Callum, J.,specially concurring). Subsection (b) allows "credit *** for time spentin custody as a result of the offense for which the sentence wasimposed." 730 ILCS 5/5-8-7(b) (West 2000). Here, defendant wasarrested for the bail offense, detained, and ultimately convicted andsentenced on that offense. Accordingly, he was entitled to credit fortime served under subsection (b).

We acknowledge, as the State argues, that defendant did not raisesubsection (b) in his petition for leave to appeal but, instead, waiteduntil his reply brief to do so. However, a sentence in conflict with astatutory guideline such as subsection (b) is void and may bechallenged at any time. People v. Arna, 168 Ill. 2d 107, 113 (1995).Further, the failure to raise an issue in a petition for leave to appealdoes not present a jurisdictional bar but, rather, raises concerns ofadministrative convenience. Dineen v. City of Chicago, 125 Ill. 2d248, 265 (1988). In this case, defendant has already served hissentence and will not be granted any relief, regardless of how weresolve this appeal. As previously noted, the issue presented in thiscase is being addressed only to provide guidance under the publicinterest exception to the mootness doctrine. In this context, concernsof administrative convenience must be set aside in order to address theproper statutory provisions and to provide the most complete andaccurate guidance to our public officers.

Because our decision that section 5-8-7(b) controls is dispositiveof this appeal, we need not and do not reach the parties' argumentsregarding section 5-8-7(c). We further deny the State's argument tostrike defendant's reply brief.

CONCLUSION

For the foregoing reasons, the judgment of the appellate court,affirming the circuit court, is reversed. While we cannot grantdefendant in this case any relief as he has already completed his prisonterm and period of mandatory supervised release, in future cases,other persons in defendant's position should receive credit for timeserved while awaiting trial.

Reversed.