                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




                       People ex rel. Senko v. Meersman, 2012 IL 114163




Caption in Supreme         THE PEOPLE OF THE STATE OF ILLINOIS ex rel. MARK SENKO,
Court:                     Petitioner, v. HONORABLE F. MICHAEL MEERSMAN et al.,
                           Respondents.



Docket No.                 114163


Filed                      November 29, 2012


Held                       Criminal sexual assault is, by statute, a triggering offense for consecutive
(Note: This syllabus       sentencing; and where sentences for nontriggering sex-offender-
constitutes no part of     registration offenses were also being imposed, they should be served after
the opinion of the court   it, although they could be concurrent with each other.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Original petition for mandamus.
Review


Judgment                   Writ awarded.
Counsel on               Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
Appeal                   Solicitor General, and Michael M. Glick and Stephen M. Soltanzadeh,
                         Assistant Attorneys General, of Chicago, of counsel), for petitioner.

                         Lisa Madigan, Attorney General, of Springfield (Jane Elinor Notz,
                         Deputy Solicitor General, and Eric Truett, Assistant Attorney General, of
                         Chicago, of counsel), for respondent Hon. F. Michael Meersman.


Justices                 JUSTICE BURKE delivered the judgment of the court, with opinion.
                         Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier,
                         and Theis concurred in the judgment and opinion.




                                           OPINION

¶1        The petitioner, Mark Senko, State’s Attorney of Rock Island County, seeks a writ of
      mandamus (see Ill. Const. 1970, art. VI, § 4(a)) to compel respondent, the Honorable F.
      Michael Meersman, judge of the circuit court of Rock Island County, to sentence defendant,
      Adrian Morrison, in accordance with section 5-8-4(d)(2) of the Unified Code of Corrections
      (Code) (730 ILCS 5/5-8-4(d)(2) (West 2010)). Petitioner argues that respondent improperly
      imposed concurrent sentences when consecutive sentences are mandated by the statute. For
      the following reasons, we award the writ.

¶2                                     BACKGROUND
¶3        In December 2010, Adrian Morrison pled guilty to failing to register as a sex offender
      as required by section 3 of the Sex Offender Registration Act (730 ILCS 150/3(a) (West
      2010)). He was sentenced to a six-month term of conditional discharge. In February 2011,
      Morrison was charged with unlawful failure to register a change of address in violation of
      section 6 of the Sex Offender Registration Act (730 ILCS 150/6 (West 2010)). In March
      2011, Morrison was charged with three counts of criminal sexual assault and two counts of
      aggravated criminal sexual abuse. As a result of these new charges, the State filed a petition
      to revoke or modify the earlier sentence of conditional discharge.
¶4        In August 2011, at a hearing before respondent, Morrison pled guilty to unlawful failure
      to register a change of address and admitted the allegations in the petition to revoke
      conditional discharge. Sentencing for these convictions was continued, pending trial on the
      sexual assault and sexual abuse charges, which were before another judge.
¶5        In November 2011, pursuant to a plea agreement, Morrison pled guilty to one count of
      criminal sexual assault and was sentenced on January 27, 2012, to 12 years’ imprisonment

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       for that offense.
¶6         On January 30, 2012, respondent sentenced Morrison for his earlier convictions to
       concurrent sentences of three years and two years, to be served concurrently with the 12-year
       sentence imposed on the sexual assault conviction. The State objected, arguing that section
       5-8-4(d)(2) of the Code mandates that Morrison’s sentences be served consecutively to the
       12-year sentence, which should be served first. Respondent disagreed, stating that the
       sentences need not run consecutively because the registration crimes did not arise “out of the
       same set of facts” or “same course of conduct” as the criminal sexual assault.
¶7         Thereafter, the circuit court denied the States’s motion for reconsideration. We granted
       the State leave to file a petition for a writ of mandamus.

¶8                                            ANALYSIS
¶9          Mandamus is an extraordinary remedy used to compel a public officer to perform
       nondiscretionary official duties. People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93
       (2009). We will award mandamus only if the petitioner establishes a clear right to the relief
       requested, a clear duty of the public officer to act, and clear authority of the public officer to
       comply with the writ. Id.
¶ 10        The State argues that mandamus is appropriate in this case pursuant to section 5-8-4(d)(2)
       of the Code. That statute provides:
                     “(d) Consecutive terms; mandatory. The court shall impose consecutive sentences
                 in each of the following circumstances:
                         ***
                         (2) The defendant was convicted of a violation of Section 12-13 (criminal
                     sexual assault), 12-14 (aggravated criminal sexual assault), or 12-14.1 (predatory
                     criminal sexual assault of a child) of the Criminal Code of 1961 (720 ILCS 5/12-
                     13, 5/12-14, or 5/12-14.1).” 730 ILCS 5/5-8-4(d)(2) (West 2010).
¶ 11        According to the State, the plain and unambiguous language of section 5-8-4(d)(2)
       requires defendant’s sentences to run consecutively. Thus, the State maintains the writ should
       be awarded.
¶ 12        Before this court, respondent does not advance the reasoning offered in the circuit court,
       i.e., that defendant’s sentences need not run consecutively because the registration crimes did
       not arise out of the same course of conduct as the criminal sexual assault. Instead, respondent
       argues that section 5-8-4(d)(2), when considered with the entirety of paragraph (d), does not
       require consecutive sentences.
¶ 13        Respondent points out that other paragraphs in 5-8-4(d) contain language not contained
       in subsection (d)(2). For example, subsection (d)(1) provides that consecutive sentences are
       mandatory where “[o]ne of the offenses for which the defendant was convicted was first
       degree murder or a Class X or Class 1 felony and the defendant inflicted severe bodily
       injury.” 730 ILCS 5/5-8-4(d)(1) (West 2010). Subsection (d)(2) does not contain the phrase
       “one of the offenses.” Respondent contends this indicates that the legislature did not intend
       these two provisions to have the same meaning. In addition, respondent contends the State’s

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       construction of subsection (d)(2) fails to explain the wording of subsection (d)(7), which
       provides that a “sentence under Section 3-6-4 *** for escape or attempted escape shall be
       served consecutive to the terms under which the offender is held by the Department of
       Corrections.” 730 ILCS 5/5-8-4(d)(7) (West 2010). Respondent argues that, if an enumerated
       offense always triggers a consecutive sentence, then subsection (d)(7) could simply read “the
       defendant was convicted of a violation of Section 3-6-4 (escape or attempted escape).”
¶ 14       Similarly, subsection (d)(11) provides:
                “If a person is sentenced for a violation of bail bond under Section 32-10 of the
                Criminal Code of 1961, any sentence imposed for that violation shall be served
                consecutive to the sentence imposed for the charge for which bail had been granted
                and with respect to which the defendant has been convicted.” (Emphasis added.) 730
                ILCS 5/5-8-4(d)(11) (West 2010).
       According to respondent, the latter half of this subsection, beginning with “any sentence
       imposed,” is superfluous under the State’s construction because it would have the same
       effect if it simply said “if a person was convicted for a violation of bail bond under Section
       32-10 of the Criminal Code.”
¶ 15       In response, the State maintains that the unambiguous language of the statute requires the
       imposition of a consecutive term where “[t]he defendant was convicted of a violation” of an
       enumerated offense. (Emphasis added.) 730 ILCS 5/5-8-4(d)(2) (West 2010). The State
       maintains that, had the legislature meant to impose consecutive terms only where the
       defendant was convicted of multiple enumerated offenses, it would have said so, and would
       not have used the phrase “a violation.” Further, the State contends that this case is controlled
       by People v. Curry, 178 Ill. 2d 509 (1997). We agree.
¶ 16       In Curry, the defendant was convicted of two counts of criminal sexual assault and one
       count of residential burglary. Curry, 178 Ill. 2d at 512. The trial court sentenced the
       defendant to three consecutive terms of four years’ imprisonment under what was then
       section 5-8-4(a).1 On appeal, the defendant argued that the sentence imposed for residential
       burglary should be served concurrently with his sentences for criminal sexual assault. We
       disagreed. Curry, 178 Ill. 2d at 539.
¶ 17       While noting that section 5-8-4(a) did not specify whether the imposition of consecutive
       sentences was limited to those enumerated offenses which trigger the application of the
       statute, we held that the triggering offenses identified in section 5-8-4(a) were “crimes of a


               1
                 Section 5-8-4(a) provided: “The court shall not impose consecutive sentences for offenses
       which were committed as part of a single course of conduct during which there was no substantial
       change in the nature of the criminal objective, unless, one of the offenses for which defendant was
       convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where
       the defendant was convicted of a violation of Section 12-13 [criminal sexual assault] or 12-14
       [aggravated criminal sexual assault] of the Criminal Code of 1961, in which event the court shall
       enter sentences to run consecutively.” 730 ILCS 5/5-8-4(a) (West 1992). After numerous
       amendments, the latter portion of this paragraph became paragraph (d)(2) in the current version of
       the statute.

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       singular nature, involving ‘particularly serious invasions of the person.’ [Citations.]” Curry,
       178 Ill. 2d at 538. We concluded that in enacting the mandatory consecutive sentencing
       provision of section 5-8-4(a), the legislature sought to punish the commission of triggering
       offenses more harshly than the commission of other crimes and that this intent would be
       defeated if we treated the triggering and nontriggering offenses alike. Accordingly, we held
       that consecutive sentences were mandatory only for those offenses which trigger the
       application of section 5-8-4(a). Curry, 178 Ill. 2d at 538.
¶ 18        Nevertheless, we rejected the defendant’s argument that he should be allowed to serve
       his residential burglary sentence concurrently, holding:
                “If the sentence for one of defendant’s convictions of criminal sexual assault were
                permitted to run concurrent to his sentence for residential burglary, then that
                conviction for criminal sexual assault would be treated no differently, and no more
                harshly, than a conviction of a nontriggering offense. [Citation.] This result would
                be contrary to the legislative purpose behind section 5-8-4(a). Consequently, section
                5-8-4(a) must be construed so that any consecutive sentences imposed for triggering
                offenses be served prior to, and independent of, any sentences imposed for
                nontriggering offenses. Sentences for multiple nontriggering offenses may be served
                concurrently to one another after any consecutive sentences for triggering offenses
                have been discharged.” Curry, 178 Ill. 2d at 539.
       Curry cannot be distinguished from the instant case. Respondent’s attempt to cast doubt on
       Curry by comparing subsection (d)(2) to other provisions in the statute fails. In Curry, this
       court decided that, consistent with the statute’s plain language, both subsection (d)(1) and
       subsection (d)(2) apply so long as one of the offenses is a triggering offense. With respect
       to subsections (d)(7) and (d)(11), the crimes being penalized in these subsections are unique
       in that they relate to preexisting sentences. Thus, unlike subsection (d)(2), these provisions
       do not simply require any violation of a triggering offense to be served consecutively to any
       term, but specify that the target sentence must be served consecutively to the sentence that
       predates the escape or the bail violation, ensuring that the defendant will serve extra time for
       failing to serve those prior sentences as required. Accordingly, this language is not
       superfluous; it requires the sentences for the crimes enumerated in subsections (d)(7) and
       (d)(11) to be served consecutively to specific, related sentences.
¶ 19        We conclude, as we did in Curry, that any consecutive sentences imposed for triggering
       offenses must be served prior to, and independent of, any sentences imposed for
       nontriggering offenses. While sentences for multiple nontriggering offenses may be served
       concurrently to one another, they must be served after any sentences for triggering offenses
       have been discharged. Thus, we find that, here, defendant’s sentences for the two
       nontriggering offenses (the registration offenses), which may run concurrently to each other,
       must be served after his sentence for the triggering offense of criminal sexual assault.

¶ 20                                    CONCLUSION
¶ 21       For the foregoing reasons, we issue a writ of mandamus, ordering respondent to vacate
       his sentencing order and resentence defendant in accordance with section 5-8-4(d)(2) of the

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       Unified Code of Corrections (730 ILCS 5/5-8-4(d)(2) (West 2010)).

¶ 22      Writ awarded.




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