                                      2018 IL 122435



                                         IN THE

                                SUPREME COURT

                                            OF

                          THE STATE OF ILLINOIS




                                    (Docket No. 122435)

       THE PEOPLE OF THE STATE OF ILLINOIS ex rel. ROBERT B. BERLIN,
           Petitioner, v. HONORABLE GEORGE J. BAKALIS, Respondent.



                               Opinion filed March 22, 2018.



        JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and
     Theis concurred in the judgment and opinion.



                                         OPINION

¶1       Petitioner Robert B. Berlin, State’s Attorney of Du Page County, seeks
     mandamus pursuant to Illinois Supreme Court Rule 381 (eff. July 1, 2017) against
     respondent, the Honorable George J. Bakalis, judge of the circuit court of Du Page
     County. Petitioner asks this court to direct the circuit court to vacate defendant’s
     one-year term of mandatory supervised release (MSR) and impose the mandatory
     four-year MSR term required under section 5-8-1(d)(6) of the Unified Code of
     Corrections (730 ILCS 5/5-8-1(d)(6) (West 2014)). For the following reasons, we
     award mandamus.


¶2                                     BACKGROUND

¶3       On September 22, 2015, defendant, Frank Gilio, entered a partially negotiated
     guilty plea to one count of violating an order of protection, a Class 4 felony based
     on his prior conviction for violation of an order of protection (720 ILCS 5/12-3.4(d)
     (West 2014)). The parties did not agree to a sentence in exchange for the plea, but
     the State agreed not to prosecute two counts of aggravated battery of a peace officer
     and a second count of violating an order of protection.

¶4       Prior to entry of the plea, the trial court explained that the charged offense was a
     Class 4 felony carrying a sentencing range of one to six years’ imprisonment. In
     relevant part, the court misstated that the offense required a one-year term of MSR.
     The court also admonished defendant on his rights to a trial and the consequences
     of waiving those rights and confirmed that he was pleading guilty voluntarily.

¶5       In presenting the factual basis for the plea, the State noted that an order of
     protection had been entered and served on defendant. The order of protection
     prohibited defendant from contacting or being on the residential property of the
     victim, Susan Foutch. It was effective from June 2013 through June 2015. The
     victim would testify that on April 26, 2015, while she was home, she observed
     defendant knock on her window. Defendant stipulated that the State’s witnesses
     would testify substantially in that manner.

¶6       The trial court accepted the plea agreement and found defendant guilty of
     violation of an order of protection. The court then ordered a presentence
     investigation and scheduled sentencing. After the sentencing hearing, the court
     sentenced defendant to three years’ imprisonment and one year of MSR.

¶7       At the State’s request approximately a year later, the trial court held a hearing
     on defendant’s MSR term. Defendant was present but not represented by counsel.
     At the hearing, the following colloquy, in its entirety, occurred:




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    “MS. KING [(ASSISTANT STATE’S ATTORNEY)]: *** Judge, I writ
the defendant in. IDOC sent a letter indicating that on the sentence order it had
the incorrect term for MSR on the defendant’s sentence. He was sentenced to
one year of mandatory supervised release, but statutorily it should be four
years. So it was an incorrect sentence.

   THE COURT: Okay. And it’s four years because of the—

   MS. KING: By statute because of the violation order.

   THE COURT: Okay. [Defendant], do you understand what they’re telling
you [that] you have?

   DEFENDANT: Not really.

   THE COURT: Apparently by statute I have no control over that.

   DEFENDANT: A year later just give me three more years?

   THE COURT: That’s not jail time.

   DEFENDANT: It’s the same thing.

   THE COURT: It’s probation time.

   DEFENDANT: It can be the same thing.

   THE COURT: I understand.

   DEFENDANT: I [sic] can be the same thing.

    THE COURT: By statute that apparently is the requirement. If you want to
speak to one of the public defenders, they can talk to [you] about any other
options you might have.

   DEFENDANT: I will just motion the case back up when I get out. I have
two months, right?

   THE COURT: Okay. Give me an amended order. Indicate four years of
mandatory supervised release.”




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¶8         The following day, defendant was released from prison onto MSR. Soon after,
       defendant filed a pro se motion seeking to “correct” the mittimus to reflect the trial
       court’s original imposition of a one-year MSR term. The circuit court appointed an
       attorney from the public defender’s office to represent defendant.

¶9         In March 2017, defendant’s counsel filed an amended petition for
       postconviction relief. Defendant argued that he would not have entered a guilty
       plea if he had been properly advised that his plea would subject him to a mandatory
       four-year term of MSR. Citing this court’s decision in People v. Castleberry, 2015
       IL 116916, defendant asserted that the trial court did not have authority to
       sua sponte increase a statutorily nonconforming sentence. Defendant asked the
       court to either vacate his conviction and proceed to trial or reimpose the original
       one-year MSR term.

¶ 10       The State filed a motion to dismiss, arguing that defendant did not provide any
       evidence that he pleaded guilty in reliance on the incorrect MSR admonishments or
       that he was prejudiced. While acknowledging that Castleberry prohibited the trial
       court from increasing defendant’s MSR term, the State maintained that defendant
       should not be allowed to withdraw his guilty plea.

¶ 11        The circuit court initially denied the State’s motion to dismiss but later granted
       its oral motion to reconsider. On reconsideration, the court dismissed defendant’s
       petition and also vacated its amended sentencing order that imposed the mandatory
       four-year MSR term. Citing Castleberry, the court explained that the only option
       for the State to correct defendant’s sentence to conform to the sentencing statute
       was a mandamus action in this court. 1

¶ 12       The State moved for leave to file a complaint seeking mandamus relief. Ill. S.
       Ct. R. 381 (eff. July 1, 2017). We allowed the State’s motion.




           1
            Defense counsel stated at oral argument that defendant filed an appeal from the circuit
       court’s dismissal of his postconviction petition. Although not apparent from the record
       here, this court’s record system shows a pending appeal from the circuit court’s dismissal
       order (People v. Gilio, No. 2-17-0624).




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¶ 13                                        ANALYSIS

¶ 14       The State argues that it is entitled to mandamus relief because the circuit court
       had no discretion to impose anything other than four years of MSR on defendant’s
       conviction for a Class 4 felony violation of an order of protection. Additionally, the
       State contends that this court should amend our rules to permit statutorily
       unauthorized sentences to be corrected at any time by motion in the circuit court.
       The State asserts that its proposed rule change would serve the interests of judicial
       economy.

¶ 15       In response, defendant agrees with the State that mandamus relief is warranted
       because the applicable sentencing statute requires a four-year term of MSR, but he
       disagrees with the nature of that relief. Defendant argues that this court should
       vacate the trial court’s sentencing order and remand for a new sentencing hearing
       rather than simply direct the circuit court to impose the four-year MSR term.
       Defendant also disagrees with the State’s request for this court to announce a new
       rule in this opinion.

¶ 16       The extraordinary remedy of mandamus compels a public official to perform a
       purely ministerial duty that does not involve an exercise of discretion. People
       ex rel. Glasgow v. Carlson, 2016 IL 120544, ¶ 15. This court has discretionary
       original jurisdiction to consider requests for mandamus relief under the Illinois
       Constitution. People ex rel. Glasgow v. Kinney, 2012 IL 113197, ¶ 7 (citing Ill.
       Const. 1970, art. VI, § 4(a)). We will award mandamus relief “only when ‘the
       petitioner establishes a clear right to the relief requested, a clear duty of the public
       official to act, and clear authority in the public official to comply.’ ” Carlson, 2016
       IL 120544, ¶ 15 (quoting People ex rel. Alvarez v. Skryd, 241 Ill. 2d 34, 39 (2011)).

¶ 17       This case requires us to construe the applicable sentencing provisions to
       determine the appropriate MSR term for defendant’s conviction of a Class 4 felony
       violation of an order of protection (720 ILCS 5/12-3.4(d) (West 2014)). We review
       de novo that pure question of law. Carlson, 2016 IL 120544, ¶ 16.

¶ 18       It is undisputed that defendant’s conviction for violation of an order of
       protection is a Class 4 felony based on his prior conviction for that same offense.
       720 ILCS 5/12-3.4(d) (West 2014). It is also undisputed that section 5-8-1(d)(6) of
       the Unified Code of Corrections requires that defendant’s sentence on that




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       conviction include a mandatory four years of MSR. See 730 ILCS 5/5-8-1(d)(6)
       (West 2014) (MSR term “shall” be four years for a felony violation of an order of
       protection). Given the four-year MSR term was statutorily mandated, the trial court
       in this case had no discretion but to impose that term on defendant. See Round v.
       Lamb, 2017 IL 122271, ¶ 16 (concluding that an MSR term is included in a
       criminal sentence “as a matter of law” in Illinois). Consequently, as defendant
       correctly concedes, the State has proved a clear right to its requested relief.

¶ 19       Although agreeing that the State is entitled to mandamus relief, defendant
       contends that this court should vacate the trial court’s sentencing order and remand
       for a new sentencing hearing rather than granting the State’s requested relief to
       direct the trial court to amend its sentencing order to impose the mandatory
       four-year MSR term. Defendant argues that amending the existing sentencing order
       to reflect the correct MSR term is inadequate because the trial court may want to
       exercise its discretion to shorten his prison term in light of his increased MSR term.

¶ 20       We disagree with defendant that a new sentencing hearing is necessary.
       Defendant’s guilty plea was partially negotiated—the State agreed not to prosecute
       three charges but did not agree to a specific sentence. In other words, defendant did
       not plead guilty with the expectation that he would receive a particular sentence.
       See People v. Whitfield, 217 Ill. 2d 177, 195-202 (2005) (discussing due process
       concerns related to a “benefit of a bargain” argument raised by a guilty-plea
       defendant).

¶ 21       The record does not support defendant’s suggestion that the trial court would be
       inclined to reduce his prison term. Specifically, after the State brought the MSR
       error to the trial court’s attention, the court observed that the four-year MSR term
       was “statutorily required” and offered to appoint the public defender to discuss
       “any other options” with defendant. Notably, though, the court made no indication
       that it wanted to reconsider its original decision to sentence defendant to three
       years’ imprisonment.

¶ 22      Under these circumstances, there is no reason to remand for a new sentencing
       hearing. See Round, 2017 IL 122271, ¶ 26 (stating that the appropriate remedy in a
       mandamus action “depends on the unique facts and circumstances of each case”).
       Nor is there any jurisdictional bar to correcting a defendant’s sentence in a




                                               -6­
       mandamus action to comport with a mandatory sentencing statute. People ex rel.
       Alvarez v. Gaughan, 2016 IL 120110, ¶¶ 20-21.

¶ 23       If defendant wants to challenge his corrected sentence when the         mandatory
       four-year MSR term is imposed by the circuit court following this           mandamus
       action, we agree with the State’s position that “defendant can decide       whether to
       pursue a subsequent challenge to that new judgment.” Of course, we          express no
       opinion on any future challenge raised by defendant.

¶ 24       The State also requests that we announce a new rule in this opinion to “fill the
       void left by the now-abrogated void sentence rule” following our decision in
       Castleberry. Specifically, the State urges this court to create a rule to allow
       statutorily unauthorized sentences to be corrected at any time by motion in the
       circuit court. 2

¶ 25       Defendant opposes announcing a new rule in this opinion on the grounds that
       the proposed rule presents practical difficulties in implementation, could prove
       inequitable, and is unnecessary to resolve the controversy in this appeal. Defendant
       further argues that the State failed to make a compelling case for this court to
       suspend its normal rulemaking process.

¶ 26       Illinois Supreme Court Rule 3 (eff. July 1, 2017) governs the rulemaking
       procedure used by this court. Typically, a proposed rule or amendment to an
       existing rule is considered by our rules committee and involves a public hearing
       process for adversarial testing. This court, however, has expressly reserved the
       prerogative to depart from that process. Ill. S. Ct. R. 3(a)(2) (eff. July 1, 2017); see
       also In re B.C.P., 2013 IL 113908, ¶ 17 (declining to refer a proposed rule
       amendment to the rules committee). While we have reserved the right to suspend
       the ordinary rulemaking process, we have explained that “[b]ypassing the rules
       committee and public hearing process and amending the rule in an opinion of this
       court is a power that this court exercises sparingly.” In re Michael D., 2015 IL
       119178, ¶ 27.



          2
           The State makes an almost identical request for a new rule in People v. Vara, No.
       121823, a case currently pending before this court.




                                                -7­
¶ 27       We decline the State’s request to announce a rule in this opinion and
       circumvent the normal procedure under Rule 3. As the State acknowledged at oral
       argument, implementing its proposed rule involves complicated policy questions
       that would benefit from a deliberative rulemaking process. Indeed, the State
       clarified at oral argument that it would not oppose referral of its proposed rule to the
       committee. Ultimately, we believe that the State’s proposed rule change should be
       addressed by the rules committee and the public hearing process. Accordingly, we
       refer the State’s proposal to the rules committee.


¶ 28                                      CONCLUSION

¶ 29       We award mandamus and order the circuit court to vacate defendant’s one-year
       term of MSR and impose the mandatory four-year MSR term required under
       section 5-8-1(d)(6) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(6)
       (West 2014)).


¶ 30      Judgment of mandamus awarded.




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