                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Strom, 2012 IL App (3d) 100198




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption                    SCOTT W. STROM, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0198


Filed                      January 5, 2012
Rehearing denied           February 15, 2012
Held                       Where defendant was sentenced to four years of imprisonment and two
(Note: This syllabus       years of mandatory supervised release pursuant to an agreement to plead
constitutes no part of     guilty to one count of criminal sexual assault, but section 5-8-1(d)(4) of
the opinion of the court   the Unified Code of Corrections required a minimum MSR term of three
but has been prepared      years to a maximum of natural life, the cause was remanded to give
by the Reporter of         defendant an opportunity to withdraw his guilty plea or proceed to trial,
Decisions for the          and any new plea agreement must include a statutorily authorized
convenience of the         sentence.
reader.)


Decision Under             Appeal from the Circuit Court of Henry County, No. 07-CF-212; the
Review                     Hon. Charles H. Stengel, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                  Andrew J. Boyd, of State Appellate Defender’s Office, of Ottawa, for
Appeal                      appellant.

                            Terence M. Patton, State’s Attorney, of Cambridge (Terry A. Mertel and
                            Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
                            with opinion.
                            Justice Holdridge concurred in the judgment and opinion.
                            Justice Lytton concurred in part and dissented in part, with opinion.




                                               OPINION

¶1          On August 9, 2007, the defendant, Scott W. Strom, pled guilty to one count of criminal
        sexual assault. 720 ILCS 5/12-13(a)(1) (West 2006). He then filed a postconviction petition
        which was denied after an evidentiary hearing. On appeal, the defendant argues that his case
        should be remanded to the trial court with instructions to impose a determinate three-year
        period of mandatory supervised release (MSR). We reverse and remand.

¶2                                            FACTS
¶3          On May 24, 2007, the defendant was charged with two counts of criminal sexual assault,
        and he subsequently entered into a plea agreement. Pursuant to the plea, the defendant
        admitted guilt to one count of criminal sexual assault, and the second count was dismissed
        by the State. The State and the defendant agreed to a four-year term of imprisonment in the
        Department of Corrections (DOC) followed by two years of MSR. The trial court concurred
        with the sentence.1 The defendant was also ordered to pay various court costs and fees,
        submit a deoxyribonucleic acid (DNA) sample, and register as a sex offender upon his
        release. He did not immediately move to withdraw his guilty plea, nor did he pursue a direct
        appeal.
¶4          On March 23, 2009, the defendant filed a petition for postconviction relief alleging
        ineffective assistance of counsel. After an evidentiary hearing, the trial court denied the


                1
                 We reject the State’s argument that this was not a fully negotiated plea agreement. During
        the plea, the word “negotiated” is used four times. Moreover, the assistant State’s Attorney
        recommended a specific sentence, and the trial court concurred with the sentence, which complies
        with the requirements of Illinois Supreme Court Rule 402(d)(2) (eff. July 1, 1997).

                                                   -2-
       petition on March 2, 2010. The defendant appealed.
¶5         During the pendency of this appeal, the defendant was set to be released on parole and
       begin his two-year MSR term. However, at some unknown point, the DOC unilaterally
       increased the defendant’s MSR term to three years to life, presumably in order to comply
       with section 5-8-1(d)(4) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(d)(4)
       (West 2006)).

¶6                                            ANALYSIS
¶7         On appeal, the defendant does not claim that any error occurred during his evidentiary
       hearing. Instead, he argues that his case must be remanded to the trial court with orders to
       impose an MSR term of three years. The State argues that we should order the trial court to
       impose an indeterminate term of three years to life, and thereby allow the DOC to administer
       the defendant’s MSR.
¶8         Section 5-8-1(d)(4) of the Code provided:
           “Subject to earlier termination under Section 3-3-8, the parole or mandatory supervised
           release term shall be as follows:
                                                   ***
                    (4) for defendants who commit the offense of *** criminal sexual assault *** on
                or after the effective date of this amendatory Act of the 94th General Assembly, the
                term of mandatory supervised release 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
                2006).
¶9         Thus, according to the statute, the defendant should have received an MSR term of at
       least three years. Therefore, because the defendant was only sentenced to MSR for two years,
       his sentence was not authorized by statute and is therefore void. People v. Arna, 168 Ill. 2d
       107 (1995). Moreover, our supreme court recently decided in People v. White, 2011 IL
       109616, that when the parties agree to a sentence that is unauthorized by statute, the entire
       plea agreement is void because the defendant was not properly admonished with regard to
       the possible penalties he might face. This is true even if the prosecutor, defendant, and judge
       agree to a lesser sentence than is authorized by law. Id. The defendant acknowledges in his
       reply brief that White applies to this case.
¶ 10       Because the defendant’s sentence and plea agreement are now void, we must consider
       what remedy is available to the defendant. When the parties enter into an unauthorized
       agreement, the proper remedy is “either the ‘promise must be fulfilled’ or defendant must be
       given the opportunity to withdraw his plea.” People v. Whitfield, 217 Ill. 2d 177, 202 (2005)
       (quoting Santobello v. New York, 404 U.S. 257, 262-63 (1971)). In the instant case, the
       promise cannot be fulfilled because a two-year MSR term is a lesser sentence than is
       authorized by law. The defendant concedes this fact, but asks us to impose a three-year MSR
       term because he is entitled to the “ ‘benefit of the bargain’ ” that he made with the State.
       Whitfield, 217 Ill. 2d at 204 (quoting Commonwealth v. Zuber, 353 A.2d 441, 446 (Pa.
       1976)). However, under White, his entire plea agreement is void, and thus no agreement


                                                -3-
       exists that we have the power to modify. The dissent would allow defendant to pick portions
       of the void agreement which he would like to enforce.
¶ 11       Therefore, the only proper remedy is for the case to be remanded, and the defendant be
       given the opportunity to withdraw his guilty plea and proceed to trial if he chooses to do so.
       White, 2011 IL 109616. Any new plea agreement must include a statutorily authorized
       sentence.

¶ 12                                     CONCLUSION
¶ 13      For the foregoing reasons, the judgment of the circuit court of Henry County is reversed,
       and the cause is remanded.

¶ 14      Reversed and remanded.

¶ 15        JUSTICE LYTTON, concurring in part and dissenting in part:
¶ 16        I disagree with the majority’s conclusion that defendant’s entire plea is void and that the
       cause must be remanded to the guilty plea stage of the proceedings. On appeal, defendant
       does not ask that his plea be vacated. His argument is more limited: he argues that the MSR
       portion of his sentence, as imposed by the DOC, is void because the legislature intended the
       trial courts to impose MSR terms under section 5-8-1(d) of the Unified Code of Corrections
       (Code) (730 ILCS 5/5-8-1(d) (West 2006)). The proper analysis of this issue leads to a
       narrow result.

¶ 17                                             I
¶ 18       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 2006). The pronouncement of a sentence is
       the judicial act which 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 2006).
¶ 19       Section 5-8-1(d) of the Code states, “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 2006); 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 2006).
¶ 20       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 2006). 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 2006). 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

                                                 -4-
       2006). 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 5/3-14-
       2.5 (West 2006). However, article 3 contains no language that gives the Board the power to
       determine the range of a term of MSR imposed under section 5-8-1(d).
¶ 21       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 to render any part superfluous or meaningless. Hawkins, 2011 IL 110792,
       ¶ 23. Statutory construction is a question of law, which we review de novo. People v.
       Alcozer, 241 Ill. 2d 248 (2011).
¶ 22       Defendant maintains that, under the plain language of these statutes, the power to impose
       an MSR term is exclusively the function of the trial court. I agree. Construing the provisions
       of the Code as a whole, the trial court possesses the exclusive authority to sentence a
       defendant. Although the Code authorizes the DOC to make final determinations involving
       the amount of time a defendant actually spends under MSR, 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 2006). 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 2006); People v. Rinehart, 406 Ill.
       App. 3d 272 (2010).

¶ 23                                             II
¶ 24       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 2006). 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. 730 ILCS 5/5-1-19
       (West 2006); Rinehart, 406 Ill. App. 3d at 281. 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).
¶ 25       The majority claims that the entire plea agreement is void based on White. I believe that
       the majority misapplies White to the circumstances before us. In White, the trial court failed
       to impose the 15-year gun enhancement provision for first degree murder because it believed
       that the enhancement did not apply to a conviction based on accountability. See 730 ILCS
       5/5-8-1(a)(1)(d)(i) (West 2004). However, the sentencing enhancement was triggered, and
       defendant was subject to the mandatory minimum sentence of 35 years in prison, which was
       more than the 28 years he received under the plea agreement. White, 2011 IL 109616, ¶ 19.
       The supreme court decided that because the sentence did not conform to the statutory
       requirements and the defendant was not properly admonished, the entire plea agreement was
       void. White, 2011 IL 109616, ¶ 21. Here, unlike the defendant in White, defendant was


                                                -5-
       properly admonished regarding his 17-year sentence and that a mandatory term of MSR
       applied. Thus, we need not vacate the entire plea.
¶ 26        Moreover, under Whitfield, the appropriate remedy in this situation is either to allow the
       defendant to withdraw his guilty plea or to have his sentence modified. Whitfield, 217 Ill. 2d
       at 202. In Whitfield, the trial court added a statutorily required 3-year term of MSR to the
       defendant’s negotiated 25-year sentence for murder, without admonishment. Our supreme
       court found that the trial court’s decision amounted to a breach of the plea agreement and
       that the error violated the defendant’s right to due process.
¶ 27        In discussing an appropriate remedy, the court noted that the remedy the defendant
       requested was enforcement of the plea agreement but that the plea was unfulfillable under
       state law because MSR was required. After reviewing decisions by courts in other
       jurisdictions, it determined that the appropriate remedy was to modify the defendant’s
       sentence to approximate the plea. The court stated that:
            “ ‘a court ought to accord a defendant’s preference considerable, if not controlling,
            weight inasmuch as the fundamental rights flouted by a prosecutor’s breach of a plea
            bargain are those of the defendant, not of the State.’ ” Whitfield, 217 Ill. 2d at 205
            (quoting Santobello v. New York, 404 U.S. 256, 267 (1971) (Douglas, J., concurring)).
       It then modified the defendant’s sentence to a term of 22 years of imprisonment and 3 years
       of MSR, as authorized by law. Whitfield, 217 Ill. 2d at 205; see also People ex rel. Ryan v.
       Roe, 201 Ill. 2d 552 (2002) (supreme court exercised its discretion and fashioned an
       appropriate remedy where a guilty plea had been induced by a legally unfulfillable promise).
¶ 28        Here, defendant asks that his sentence be modified to reflect the trial court’s imposition
       of a two-year term of MSR. In Whitfield, the court was able to fashion a sentence to fit the
       agreement. In this case, we do not have that luxury. Under the law, we are unable to modify
       defendant’s sentence to fit his request. See 730 ILCS 5/5-8-1(d)(4) (West 2006) (term of
       MSR for criminal sexual assault is three years to natural life); 730 ILCS 5/5-8-1(a)(4) (West
       2006) (sentence for a Class 1 felony “shall be not less than 4 years”). On remand, the trial
       court should have the authority to modify defendant’s sentence, under Whitfield, if that is the
       remedy defendant chooses. See Whitfield, 217 Ill. 2d at 205. I would therefore vacate the
       term of MSR imposed by the DOC and remand to allow defendant either to withdraw his
       plea or to request that the trial court impose MSR as provided under section 5-8-1(d)(4) of
       the Code.




                                                -6-
