Round v. Lamb
Round v. Lamb
Opinion
¶ 1 Petitioner, Danny Round, is presently incarcerated and seeks immediate release on the basis that he has already served his entire sentence, including two years of mandatory supervised release. This court allowed his motion for leave to file a complaint for habeas corpus or, in the alternative, for an order of mandamus .
¶ 2 BACKGROUND
¶ 3 Petitioner was charged with six counts of violating an order of protection ( 720 ILCS 5/12-3.4(a) (West 2012) and two related counts of witness harassment ( 720 ILCS 5/32-4a(a)(2) (West 2012)). On July 2, 2013, he pleaded guilty to two charges with the understanding that the other charges would be dropped and his sentences would be served concurrently. On count I, harassment of a witness, a Class 2 felony, he was sentenced to five years in prison to be followed by two years of mandatory supervised release (MSR). On count III, violation of an order of protection, a Class 4 felony, he was sentenced to three years in prison. By statute, a sentence for violating an order of protection includes a four-year MSR term. 730 ILCS 5/5-8-1(d)(6) (West 2016). However, no term of MSR connected to that conviction was mentioned during plea negotiations, during the sentencing hearing, or in the written sentencing order.
¶ 4 Petitioner completed the three-year prison sentence for count III on September *435 23, 2014, and the five-year prison sentence for count I on September 23, 2015. He was "violated at the door" for failure to identify a suitable host site for electronic monitoring. Because he accrued day-for-day credit for serving his MSR while incarcerated, his two-year MSR term would have been completed on September 23, 2016. However, a disciplinary matter resulted in revocation of three months of his day-for-day credit, postponing his release from the two-year MSR term until December 23, 2016. He was not released on that date, however, because the Illinois Department of Corrections asserted that his sentence included a four-year MSR term by law and that the four-year term did not start until the completion of the five-year prison sentence. According to the Department of Corrections, petitioner's discharge date is currently set for December 23, 2017.
¶ 5 Within six months of when petitioner began serving his sentence, he learned that the Department of Corrections considered his sentence to include a four-year MSR term for count III. On October 15, 2013, petitioner filed a section 2-1401 petition ( 735 ILCS 5/2-1401 (West 2012) ), which was recharacterized as a petition for postconviction relief. The circuit court of Cook County conceded that it had not informed petitioner of the four-year MSR term on count III, noting that the court had failed to realize that although count III was a lesser class felony than count I, it carried a longer MSR term. At a hearing on December 6, 2013, the court stated that it would allow petitioner to withdraw his guilty plea to both counts; petitioner declined to withdraw his plea. The circuit court reasoned petitioner had been generally informed that he was subject to mandatory supervised release, despite petitioner's allegation that he was never specifically admonished regarding the four-year term of MSR. The court rejected petitioner's request to modify his sentence and on July 23, 2014, granted the State's motion to dismiss. Petitioner filed a notice of appeal on August 1, 2014. He was granted three extensions of time to file his opening brief. The final deadline was August 4, 2015, but no briefs have been filed. Petitioner's motion to this court does not explain why he failed to file a brief.
¶ 6 Petitioner first filed an emergency motion for an order of habeas corpus in this court in October 2016, before his two-year MSR term was complete. The court denied the motion. Petitioner filed a second motion in February 2017. The court appointed counsel and dismissed the case without prejudice to file an amended motion, action, or petition, by counsel. Petitioner, with the assistance of counsel, then filed the motion before the court today.
¶ 7 ANALYSIS
¶ 8 Petitioner argues he is entitled to immediate release from custody and seeks an order of
habeas corpus
or, alternatively,
mandamus
. This court has original jurisdiction over petitions for
habeas
and
mandamus
. Ill. Const. 1970, art. VI, § 4 (a). To be entitled to release from custody pursuant to an order of
habeas
, a petitioner must demonstrate that he has been "incarcerated under a judgment of a court that lacked jurisdiction of the subject matter or the person of the petitioner, or [that] there has been some occurrence subsequent to the prisoner's conviction that entitles him to release."
Beacham v. Walker
,
*436
Cordrey v. Prisoner Review Board
,
¶ 9 Petitioner argues several bases for relief. First, he contends that because the sentencing order did not include any term of MSR for count III, he has not been sentenced to any such term and the Department of Corrections cannot add such a term to his sentence. Second, he argues that, even if he is subject to a four-year term of MSR, the term started when he completed his three-year prison sentence for count III and would have been completed on December 23, 2016. Finally, petitioner asserts that failure to amend his sentence in such a way so that he does not serve more than seven years in custody denies him the benefit of the bargain he made when agreeing to plead guilty and thus violates his due process rights.
¶ 10 Whether Petitioner's Count III Sentence Included a Four-Year Term of MSR
¶ 11 This court has previously addressed whether a term of MSR is included as a matter of law regardless of whether it is included in a sentencing order. In
People v. McChriston
, the defendant was convicted of a Class X felony and sentenced to 25 years' imprisonment.
¶ 12 The language of that statute has since been amended: in 2009, the phrase "as though written therein" was eliminated (Pub. Act 95-1052 (eff. July 1, 2009)), and in 2012, the requirement that the mandatory supervised release term "shall be written as part of the sentencing order" was added (Pub. Act 97-531, § 5 (eff. Jan. 1, 2012)). Petitioner notes that the court in
McChriston
pointed to this amendment as evidence that, at that time, a sentence included a term of MSR regardless of whether the term was included in the written sentencing order.
McChriston
,
¶ 13 Certainly, the statute now requires judges to include MSR in their written sentencing orders. What is not clear is the effect of failure to comply with that requirement. The answer turns on whether the requirement is directory or mandatory. Procedural commands to government officials-here, the command to trial judges to include the appropriate MSR term in their written sentencing orders-are presumed to be directory.
People v. Geiler
,
*437
Geiler
,
¶ 14 The statute does not include any negative language prohibiting further action in the case of noncompliance. It prescribes no result for situations in which the judge fails to include the MSR term in the written order.
¶ 15 Legislative history indicates that the requirement was designed to provide greater clarity for the Department of Corrections. 97th Ill. Gen. Assem., House Proceedings, May 17, 2011, at 48 (statements of Representative Cunningham) (describing the bill as "an initiative of the Illinois Department of Corrections" and noting "the Bill would * * * require judges to enter the specific length of parole that each inmate needs to spend after their sentence's done. In the actual sentencing order that they issue in court. They're not required to do that right now, creates confusion sometimes at intake for the Illinois Department of Corrections, and they have to contact a sentencing judge as frequently to make sure they enter the right parole information into their record system."). Even if the requirement was also designed to protect the rights of persons being sentenced, such rights are not generally at risk if the statute is given a directory reading. Defendants have a right to be admonished of the full consequences before pleading guilty (
People v. Whitfield
,
¶ 16 When a requirement is directory, "no specific consequence is triggered by noncompliance."
Geiler
,
¶ 17 Furthermore, this interpretation is consistent with the section 5-4.5-15 requirement that all sentences, except natural life sentences, include an MSR term. 730 ILCS 5/5-4.5-15(c) (West 2016); see also
People v. Viverette
,
¶ 18 Whether the Count III MSR Term Began to Run Concurrently With the Count I Prison Term
¶ 19 Alternatively, petitioner argues that he has already completed four years of MSR. He contends MSR begins as soon as the corresponding prison term is completed, regardless of whether the prisoner is still in prison serving another sentence. The Department of Corrections counters that any MSR terms cannot commence until all prison sentences are completed.
¶ 20 The Unified Code of Corrections provides an answer for the manner in which MSR is served in the context of consecutive sentences but says nothing regarding MSR and concurrent sentences. Section 5-8-4(g) provides that, for consecutive sentences, the defendant must serve all consecutive prison terms and then serve the MSR term for the most serious offense. 730 ILCS 5/5-8-4(g) (West 2016). It is logical to conclude the legislature also intended for a prisoner serving concurrent sentences to complete all prison terms before beginning MSR. See 730 ILCS 5/5-4.5-45( l ) (West 2016) ("[T]he parole or mandatory supervised release term shall be one year upon release from imprisonment ." (Emphasis added.)). Although petitioner in this case was violated at the door and therefore has been serving MSR in the Lawrence Correctional Center, it would be illogical to hold that a prisoner can simultaneously be serving a prison term and be on supervised release. Compare 730 ILCS 5/5-1-10 (West 2016) (defining "imprisonment" as "incarceration in a correctional institution under a sentence of imprisonment"), and Black's Law Dictionary (10th ed. 2014) (defining "imprisonment" as "The act of confining a person, esp. in a prison * * *. * * * The quality, state, or condition of being confined * * *."), with Black's Law Dictionary (10th ed. 2014) (defining "release" as "The action of freeing or the fact of being freed from restraint or confinement * * *.").
¶ 21 Mandatory supervised release is designed to facilitate reintegration back into society, a purpose distinct from serving time in prison. See 730 ILCS 5/3-3-7(a) (West 2016) (indicating that the conditions of MSR "shall be such as the Prisoner Review Board deems necessary to assist the subject in leading a law-abiding life" and setting out a list of conditions for every parole and MSR that are designed for life outside of prison); see also 80th Ill. Gen. Assem., Senate Proceedings, Nov. 22, 1977, at 98-99 (statements of Senator Graham) (discussing the legislature's intent to reduce recidivism and the benefit of maintaining custody over offenders for a period of time after they are released from prison). Allowing an offender to avoid serving MSR because he has been convicted of multiple offenses is clearly contrary to this purpose, particularly in the context of an offender who is subject to an extended MSR term. 730 ILCS 5/5-8-1(d)(6) (West 2016).
¶ 22 Petitioner relies on
In re Detention of Gavin
,
*439 Therefore, petitioner's reliance on Gavin is inapposite.
¶ 23 Whether Petitioner's Due Process Rights Have Been Violated
¶ 24 Finally, petitioner argues the court should order his immediate release because enforcing the four-year MSR term violates his due process rights. Petitioner pleaded guilty in exchange for a three-year and a five-year prison sentence, to be served concurrently, and a two-year MSR term, for a total of seven years in custody. Petitioner contends that requiring him to serve a four-year MSR term denies him the benefit of the bargain he made, because it would extend his total time in custody to nine years. "[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such a promise must be fulfilled."
Santobello v. New York
,
¶ 25 In
Whitfield
, the defendant pleaded guilty to first degree murder in exchange for a 25-year prison sentence and to felony murder in exchange for a 6-year prison sentence, to be served concurrently.
¶ 26 Petitioner argues he is entitled to the same relief-an adjustment to his sentence to create in effect the sentence he bargained for. Which remedy is appropriate depends on the unique facts and circumstances of each case. See
Santobello
,
¶ 27 CONCLUSION
¶ 28 Despite amendments to the law since People v. McChriston was decided, the Unified Code of Corrections continues to indicate that a term of mandatory supervised release is a mandatory part of a sentence. The circuit court's failure to comply with the requirement that the MSR term be included in the written sentencing order does not invalidate that part of the sentence.
¶ 29 When, as here, an offender receives multiple, concurrent sentences including terms of MSR, the prison terms are to be served concurrently, and then the MSR terms are to be served concurrently to one another once all prison terms have been completed. In most cases, this results in the offender serving the lengths of the prison and MSR terms of the most serious offense. In this case, however, the lesser felony-violation of an order of protection-carries a longer term of MSR than the more serious felony, resulting in a longer overall time in custody.
¶ 30 Although neither the prosecutor nor the court had the authority to allow petitioner to avoid the longer MSR term, it is clear the court and petitioner believed petitioner was pleading guilty in exchange for a sentence of seven years in custody-five years in prison (the five- and three-year terms served concurrently) and two years of MSR. Enforcing the four-year MSR term extends the sentence to nine years. However, petitioner had an opportunity shortly after beginning to serve his prison sentence to withdraw his guilty plea in light of the error. Petitioner declined to withdraw his guilty plea at that time and has not proven a right to have his sentence reconfigured. The motion for an order of habeas or, in the alternative, for mandamus is denied.
¶ 31 Writ denied.
Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.
Reference
- Full Case Name
- Danny ROUND, Petitioner, v. Nicholas LAMB, Warden of Lawrence Correctional Center, Et Al., Respondents.
- Cited By
- 23 cases
- Status
- Published