THIRD DIVISION
FILED: February 11, 2004

No. 1-02-0727

 

Following a jury trial, the defendant, Dexter McDade, wasconvicted of one count of predatory criminal sexual assault of achild (720 ILCS 5/12-14.1(a)(1) (West 2000)), and sentenced to 12years' imprisonment. On appeal, the defendant contends that he isentitled to day-for-day sentencing credit because he was chargedwith and convicted of a crime which occurred, in part, prior to theeffective date of the Truth in Sentencing Act (Act) (730 ILCS 5/3-6-3(a)(2)(ii) (West 2000)).

The defendant does not contest the sufficiency of the evidenceadduced at trial. The victim, S.S., testified that the defendantsexually assaulted her numerous times between December 1997 andJune 1999. In a statement to the police and an assistant State'sAttorney, the defendant admitted having sex with S.S. numeroustimes between those dates. Additionally, there was physicalevidence of repeated vaginal penetration.

At the sentencing hearing, defense counsel requested a minimumprison term of six years and acknowledged the truth-in-sentencingprovision by stating, "I think a period of time which he will do 85percent under the new law of six years is an enormous period oftime."

The defendant did not raise any issue regarding credit fortime served in a motion to reduce his sentence. In reference tothe truth-in-sentencing credit, the defendant includes in his briefa print-out from the Department of Corrections website whichindicates his estimated parole date.

The defendant argues for the first time on appeal that,because portions of the crime occurred before the enactment oftruth-in-sentencing, he should receive day-for-day good conductcredit pursuant to the rule of lenity. The State responds that thesentencing statute unambiguously entitles a person convicted ofpredatory criminal sexual assault of a child committed after June19, 1998, to only 4.5 days of good conduct credit for each monthserved.

Initially, we note that the defendant has waived this argumentfor purposes of appeal because he did not object to the impositionof truth-in-sentencing at his sentencing hearing or raise the issuein a motion to reconsider his sentence. Since August 11, 1993,section 5-8-1(c) of the Unified Code of Corrections (Code) (730ILCS 5/5-8-1(c) (West 1994)) has required that a defendant file awritten postsentencing motion in the trial court to preservesentencing issues for appellate review. People v. Reed, 177 Ill.2d 389, 394, 686 N.E.2d 584 (1997). As a general rule, the failureto object to an alleged error at sentencing and in a postsentencingmotion results in a waiver of that error on appeal. People v.Marlow, 303 Ill. App. 3d 568, 570, 708 N.E.2d 579 (1999).

The defendant maintains, nonetheless, that because thissentencing error affects substantial rights, this court may reviewthe issue under the doctrine of plain error. We observe that plainerror is a narrow and limited exception to the general waiver ruleand should only be invoked where: (1) the evidence is closelybalanced; or (2) the alleged error is so substantial that itdeprived the defendant of a fair hearing. Marlow, 303 Ill. App. 3dat 570.

Here, the defendant merely asserts that the error of applyingthe incorrect credit provision affects his substantial rights, andneither argues that the evidence was closely balanced nor explainswhy the error was so severe that it must be remedied to preservethe integrity of the judicial process. Accordingly, we find thathe has waived any argument regarding the applicability of plainerror. See People v. Tye, 323 Ill. App. 3d 872, 887, 753 N.E.2d324 (2001); Marlow, 303 Ill. App. 3d at 570.

Waiver aside, a sentence will be disturbed on appeal only ifthe sentencing court abused its discretion. Tye, 323 Ill. App. 3dat 887. Here, the defendant does not contest the number of yearsimposed by the court, but rather, the manner in which that termwill be served.

"Truth-in-sentencing" is a label applied to a change in thestatutory method the Illinois Department of Corrections uses tocalculate good conduct credit. People ex rel. Ryan v. Roe, 201Ill. 2d 552, 556, 778 N.E.2d 701 (2002). Under the Code, an inmatenormally receives day-for-day good conduct credit. See 730 ILCS5/3-6-3(a)(2.1) (West 2000). However, under section 3-6-3(a)(2)(ii) of the Code, a defendant who is convicted of anenumerated violent crime, including predatory criminal sexualassault of a child, "shall receive no more than 4.5 days of goodconduct credit for each month of his or her sentence ofimprisonment." 730 ILCS 5/3-6-3(a)(2)(ii) (West 2000); Ryan, 201Ill. 2d at 556. This provision took effect on June 19, 1998.

The defendant argues that, because his commission of predatorycriminal sexual assault "straddles" the effective date of thetruth-in-sentencing provision, the principle of lenity dictatesthat he should not be subject to the Act and that the mittimus becorrected to reflect that decision. The State responds that sincethe defendant was charged with a continuous course of conductoffense and the evidence showed the offense was completed after theeffective date of the Act, he must serve 85% of his sentence.

It does not appear that the precise issue raised by thedefendant has been previously addressed by Illinois courts. TheState thus directs our attention to a California case where, ashere, the defendant was convicted of sexually assaulting a childthat encompassed a course of conduct which took place before andafter the statutory good time and work time provision was changed. People v. Palacios, 56 Cal. App. 4^th 252, 65 Cal. Rptr. 2d 318(1997). The appellate court affirmed the circuit court's decisionto decrease the defendant's good time credit, reasoning that acontinuous course of conduct cannot logically be completed untilthe last act is accomplished. Palacios, 56 Cal. App. 4^th at 256. The court thus found that the statute reducing the sentencingcredit may be applied without violating the ex post factoprohibition. Palacios, 56 Cal. App. 4^th at 257.

We find the reasoning of Palacios persuasive and applicable tothis case. The State proceeded on a theory that the defendant had engaged in a continuous course of predatory criminal sexual assaultfrom 1997 through 1999. The evidence showed that the assaultscontinued into the late spring of 1999. The offense was notcomplete until the last act was accomplished. See e.g., People v.Phillips, 186 Ill. App. 3d 54, 66-67, 544 N.E.2d 1298 (1989)(kidnapping is an ongoing offense); People v. Miller, 157 Ill. App.3d 43, 46-47, 509 N.E.2d 807 (1987) (escape is a continuingoffense). Similarly, it follows that the defendant was subject tothe unambiguous terms of the truth-in-sentencing provision, asanticipated by the court and the defendant's trial counsel.

Accordingly, we find that lenity, as argued by the defendant,has no application here, and we affirm the judgment of the circuitcourt of Cook County.

Affirmed.

SOUTH and KARNEZIS, JJ., concur.