                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Kerns, 2012 IL App (3d) 100375




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JONATHAN KERNS, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0375


Filed                      February 29, 2012


Held                       The two-year term of mandatory supervised release imposed by the trial
(Note: This syllabus       court following defendant’s conviction for criminal sexual assault was
constitutes no part of     not authorized, where it was not within the range of a minimum of three
the opinion of the court   years to a maximum of defendant’s natural life as dictated by section 5-8-
but has been prepared      1(d)(4) of the Unified Code of Corrections, and the term of “3 years to
by the Reporter of         Life–To Be Determined” listed in Department of Corrections records was
Decisions for the          void on the ground that it is the trial court’s duty to sentence defendant
convenience of the         to a term of MSR within the statutory guidelines; therefore, the term of
reader.)
                           MSR imposed by the trial court was vacated and the cause was remanded
                           to the trial court with directions to impose an indeterminate MSR term of
                           three years to natural life.


Decision Under             Appeal from the Circuit Court of Peoria County, No. 09-CF-726; the
Review                     Hon. Glenn H. Collier, Judge, presiding.



Judgment                   Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                 Peter A. Carusona, of State Appellate Defender’s Office, of Ottawa, and
Appeal                     Carrie B. Stevens, of Law Offices of Catherine Burkey, of Grand
                           Junction, Colorado, for appellant.

                           Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Richard T.
                           Leonard, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Presiding Justice Schmidt and Justice Carter concurred in the judgment
                           and opinion.




                                             OPINION

¶1           Defendant Jonathan Kerns was convicted of criminal sexual assault (720 ILCS 5/12-
        13(a)(1) (West 2008)) and sentenced to seven years in prison. On appeal, he argues that (1)
        his indeterminate term of mandatory supervised release (MSR) imposed by the Department
        of Corrections (DOC) is void, and (2) the cause should be remanded with directions to the
        trial court to impose a specific term of MSR pursuant to section 5-8-1(d)(4) of the Unified
        Code of Corrections (Code) (730 ILCS 5/1-1-1 et seq. (West 2008)). We vacate and remand
        with directions.
¶2           In February 2010, a jury convicted defendant of criminal sexual assault. The trial court’s
        sentencing judgment reflected defendant’s sentence of seven years and imposed a two-year
        term of MSR. After sentencing, the DOC’s inmate records listed defendant’s MSR term as
        “3 Yrs to Life–To Be Determined.”

¶3                                            ANALYSIS
¶4          Defendant claims that the DOC lacked the authority to impose an indeterminate term of
        MSR of three years to life when the trial court sentenced him to two years of MSR.
¶5          The imposition of MSR is statutorily required. See 730 ILCS 5/5-8-1(d) (West 2008).
        When construing the meaning of a statute, the primary objective of this court is to ascertain
        and give effect to the intent of the legislature. Southern Illinoisan v. Illinois Department of
        Public Health, 218 Ill. 2d 390 (2006). That intent is best determined by examining the
        language of the statute itself; where the language is clear and unambiguous it must be given
        effect. Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007). A statute should be
        read as a whole and construed so as to give effect to every word, clause and sentence. People
        ex rel. Department of Corrections v. Hawkins, 2011 IL 110792. It should not be read so as

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       to render any part superfluous or meaningless. Hawkins, 2011 IL 110792, ¶ 23. Statutory
       construction is a question of law that we review de novo. People v. Alcozer, 241 Ill. 2d 248
       (2011).
¶6         Under the Code, a sentence is defined as the “disposition imposed by the court on a
       convicted defendant.” 730 ILCS 5/5-1-19 (West 2008). The pronouncement of a sentence is
       the judicial act that conforms to the judgment of the court. People v. Allen, 71 Ill. 2d 378
       (1978). A sentence imposed by the court in a criminal case must be authorized by law.
       People v. Majer, 131 Ill. App. 3d 80 (1985). The dispositions available to courts include
       probation, conditional discharge and a term of imprisonment. 730 ILCS 5/5-5-3 (West 2008).
¶7         Section 5-8-1(d) of the Code states that “every sentence shall include as though written
       therein a term [of MSR] in addition to the term of imprisonment.” 730 ILCS 5/5-8-1(d)
       (West 2008); see also People v. Whitfield, 217 Ill. 2d 177 (2005) (MSR is part of a
       defendant’s sentence). The MSR term for the offense of criminal sexual assault “shall range
       from a minimum of 3 years to a maximum of the natural life of the defendant.” 730 ILCS
       5/5-8-1(d)(4) (West 2008).
¶8         The Code also provides the DOC, through the Prisoner Review Board, the ability to
       terminate a term of MSR early. 730 ILCS 5/3-3-8 (West 2008). Article 3 of the Code governs
       the Department of Corrections and addresses the powers and duties of the Prisoner Review
       Board. 730 ILCS 5/3-1-1 et seq. (West 2008). Under section 3-3-8(b), the Prisoner Review
       Board may enter an order releasing a defendant from MSR when it determines “that he is
       likely to remain at liberty without committing another offense.” 730 ILCS 5/3-3-8(b) (West
       2008). The Prisoner Review Board is also authorized to set conditions for parole and
       mandatory supervised release imposed under section 5-8-1(d) of the Code. 730 ILCS 5/3-3-7,
       3-14-2.5 (West 2008). However, article 3 contains no language that gives the Board the
       power to impose a term of MSR required under section 5-8-1(d).

¶9                                                  I
¶ 10                   Appropriate Term of MSR Under Section 5-8-1(d)(4)
¶ 11       Defendant concedes that the two-year term of MSR imposed by the trial court is
       unauthorized and that MSR for criminal sexual assault is dictated by section 5-8-1(d)(4).
       However, he argues that, by requiring a range of three years to natural life, section 5-8-
       1(d)(4) intends that a specific term within that range will be imposed.
¶ 12       “Except as otherwise provided in the statute defining the offense ***, a sentence of
       imprisonment for a felony shall be a determinate sentence set by the court under this Section
       ***.” 730 ILCS 5/5-8-1(a) (West 2008). The legislature created an exception for the sex
       offenses listed in section 5-8-1(d)(4). The MSR term for those offenses, including criminal
       sexual assault, ranges from a minimum of three years to a maximum of the length of
       defendant’s natural life. See 730 ILCS 5/5-8-1(d)(4) (West 2008). Every other period of
       MSR in section 5-8-1(d) is set at a specific number of years. See 730 ILCS 5/5-8-1(d) (West
       2008).
¶ 13       In People v. Rinehart, 2012 IL 111719, the supreme court considered the issue of whether
       section 5-8-1(d)(4) requires the trial court to set a determinate MSR term within the statutory

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       range. The court read the statute in conjunction with other provisions of the Code and
       determined that section 5-8-1(d)(4) “contemplate[d] indeterminate MSR terms, not
       determinate terms.” Rinehart, 2012 IL 111719, ¶ 30.

¶ 14                                               II
¶ 15                                  Authority to Impose MSR
¶ 16       Defendant requests that we remand the cause with directions that the trial court sentence
       him to the appropriate term of MSR. He maintains that, under the plain language of the
       sentencing statute, the power to impose an MSR term is exclusively the function of the trial
       court. We agree.
¶ 17       Although Rinehart does not speak directly to this issue, the law is clear that the trial court
       possesses the exclusive authority to sentence a defendant. The grant of authority to impose
       MSR is located within the section of the Code addressing the sentencing power of the trial
       court. See 730 ILCS 5/5-8-1 (West 2008). Thus, the structure of the statute demonstrates that
       the legislature intended to give the trial court sole authority to impose a term of MSR as part
       of a defendant’s sentence. See 730 ILCS 5/5-1-19 (West 2008).
¶ 18       In this case, the DOC imposed a term of MSR under section 5-8-1(d)(4) of the Code. 730
       ILCS 5/5-8-1(d)(4) (West 2008). However, it is the trial court’s duty, not the DOC’s, to
       sentence a defendant to a term of MSR within the statutory guidelines. See 730 ILCS 5/5-1-
       19 (West 2008). As a result, defendant’s MSR term of three years to natural life, as imposed
       by the DOC, is void. See People v. Thompson, 209 Ill. 2d 19 (2004) (a sentence not
       authorized by statute is void). We therefore remand the cause to the trial court to impose an
       indeterminate MSR term of three years to natural life under section 5-8-1(d)(4).

¶ 19                                      CONCLUSION
¶ 20       We vacate the term of MSR imposed by the circuit court and remand with instructions
       to sentence defendant to an indeterminate term of MSR as provided by section 5-8-1(d)(4)
       of the Code and enter a corrected sentencing order. See 730 ILCS 5/5-8-1(d)(4) (West 2008).
       The judgment of the circuit court of Peoria County is affirmed in part and vacated in part,
       and the cause is remanded with directions.

¶ 21       Affirmed in part and vacated in part; cause remanded with directions.




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