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                                    Supreme Court                            Date: 2018.02.09
                                                                             14:51:48 -06'00'




                           Round v. Lamb, 2017 IL 122271




Caption in Supreme   DANNY ROUND, Petitioner, v. NICHOLAS LAMB, Warden of
Court:               Lawrence Correctional Center et al., Respondents.



Docket No.           122271



Filed                August 3, 2017



Decision Under       Original action for habeas corpus or mandamus relief.
Review

Judgment             Writ denied.


Counsel on           Steven F. Pflaum, Jason A. Frye, and David G. Weldon, of Neal,
Appeal               Gerber & Eisenberg LLP, of Chicago, for petitioner.

                     Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
                     Solicitor General, and Michael M. Glick and Eldad Z. Malamuth,
                     Assistant Attorneys General, of Chicago, of counsel), for respondents.



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



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       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, 231 Ill. 2d 51, 58 (2008); see 735
       ILCS 5/10-124 (West 2016). To be entitled to an order of mandamus, a petitioner must
       establish “ ‘a clear right to relief, a clear duty of the public official to act, and a clear authority
       in the public official to comply with the writ.’ ” Cordrey v. Prisoner Review Board, 2014 IL
       117155, ¶ 18 (quoting People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 465 (2004)). “There
       also must be no other adequate remedy.” Id.
¶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. 2014 IL
       115310, ¶ 1. The order did not mention MSR, nor did the judge admonish the defendant
       regarding MSR at the sentencing hearing. Id. The defendant filed a postconviction petition
       arguing the Department of Corrections impermissibly added a three-year MSR term to his
       sentence. Id. ¶ 3. The court looked to the plain language of section 5-8-1 of the Unified Code of
       Corrections, which at that time stated that “ ‘[e]xcept where a term of natural life is imposed,
       every sentence shall include as though written therein a term in addition to the term of
       imprisonment.’ ” Id. ¶ 9 (quoting 730 ILCS 5/5-8-1(d) (West 2004)). The court concluded that
       “the sentencing order issued by the trial court included a term of MSR even if the court did not
       mention the MSR term at the sentencing hearing or in the sentencing order.” Id. ¶ 17.

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¶ 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, 2014 IL 115310, ¶¶ 18-19.
¶ 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, 2016 IL
       119095, ¶ 18; People v. Delvillar, 235 Ill. 2d 507, 517 (2009). “The presumption is overcome
       *** only if (1) negative language in the statute *** prohibits further action in the case of
       noncompliance or (2) the right the statute *** is designed to protect would generally be injured
       under a directory reading.” Geiler, 2016 IL 119095, ¶ 18 (citing Delvillar, 235 Ill. 2d at 517).
¶ 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, 217 Ill. 2d 177, 188 (2005)), but giving the statute a
       directory reading does not, on its own, violate that right. See People v. Evans, 2013 IL 113471,
       ¶ 13 (concluding a petitioner could not establish cause to bring a successive postconviction
       petition based on the court’s failure to include a term of MSR in a sentencing order because
       “ ‘all citizens are charged with knowledge of the law’ ” and the law was clear that the
       petitioner’s sentence must include a term of MSR (quoting People v. Lander, 215 Ill. 2d 577,
       588 (2005))). Thus, the requirement is directory.
¶ 16        When a requirement is directory, “no specific consequence is triggered by
       noncompliance.” Geiler, 2016 IL 119095, ¶ 24. A petitioner must show he was prejudiced to
       be entitled to relief for a violation of a directory rule. Id. ¶ 25. Petitioner agrees that the
       requirement is directory but maintains that failure to comply with the requirement bars the
       Department of Corrections from enforcing the MSR term. Under petitioner’s interpretation, a
       judge could avoid imposing MSR by failing to write the term in the sentencing order. This
       would impermissibly allow the court to overrule the legislature’s directive. Whitfield, 217 Ill.


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       2d at 200-01 (“We recognize that MSR terms are statutorily required and that ‘the State has no
       right to offer the withholding of such a period as a part of the plea negotiations and *** the
       court has no power to withhold such period in imposing sentence.’ ” (quoting People v. Brown,
       296 Ill. App. 3d 1041, 1043 (1998))). Therefore, we conclude the MSR term is included in the
       sentence as a matter of law and that the failure to include the term in the written sentencing
       order does not on its own invalidate the sentence or any part of it.
¶ 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, 2016 IL App (1st) 122954, ¶ 24 (“Section 5-8-1(d)(1) read
       in conjunction with section 5-4.5-15(c) makes it clear that the MSR term was a mandatory
       component of defendant’s sentence and that it was imposed by the court and not the DOC.”);
       People v. Ford, 2014 IL App (1st) 130147, ¶ 7 (also reading section 5-8-1(d) in conjunction
       with section 5-4.5-15(c)).

¶ 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


                                                   -5-
       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, 382 Ill. App. 3d 946 (2008), to support his
       argument that he ought to be able to serve his MSR term concurrently with his prison term. In
       Gavin, the defendant was arrested while on MSR. The case did not involve concurrent
       sentences, and the appellate court did not address the viability of serving MSR and a prison
       sentence concurrently. 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, 404 U.S. 257, 262
       (1971).
¶ 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. 217 Ill. 2d at 179. Neither the prosecutor nor the court advised the defendant that
       he would be subject to a 3-year term of MSR following the 25-year prison sentence. Id. at 180.
       After learning of the MSR term while serving the prison sentence, the defendant filed a
       postconviction petition arguing his due process rights were violated because the sentence was
       more onerous than what he had bargained for. Id. The defendant conceded that the court lacked
       the authority to strike the term of MSR but requested the court reduce his 25-year prison term
       by the length of the MSR term. Id. at 187. He did not move to withdraw his guilty plea. Id. at
       180. The court concluded that “[u]nder [the] circumstances *** adding the statutorily required
       three-year MSR term to defendant’s negotiated 25-year sentence amount[ed] to a unilateral
       modification and breach of the plea agreement by the State, inconsistent with constitutional
       concerns of fundamental fairness.” Id. at 190. The court then concluded that “due process is
       violated when a defendant pleads guilty in exchange for a specific sentence and the trial court
       fails to advise the defendant, prior to accepting his plea, that a mandatory supervised release
       term will be added to that sentence.” Id. at 195. Relying on Santobello v. New York, the court
       identified two potential remedies for the due process violation: allow the defendant to
       withdraw his guilty plea or resentence the defendant in accordance with the statute and the plea
       agreement. Whitfield, 217 Ill. 2d at 202 (citing Santobello, 404 U.S. at 262-63). The court
       granted the defendant’s request and modified his sentence to conform to the plea agreement.
       Id. at 205.
¶ 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, 404 U.S. at 263 (remanding the case to the
       state court to determine whether withdrawal of the guilty plea or resentencing was


                                                   -6-
       appropriate). Unlike in Whitfield, petitioner had the opportunity to withdraw his guilty plea just
       five months after the sentencing hearing and declined to do so. Id. at 180. At that time,
       petitioner had not yet substantially performed his part of the bargain. He filed a timely notice
       of appeal following the circuit court’s dismissal of his postconviction petition but failed to file
       a brief in the appellate court, despite multiple orders granting him extensions of time to do so.
       Petitioner offers no explanation for why he abandoned his efforts to resolve this issue in the
       appellate court. In light of these facts, petitioner has not proven he had a right to have his
       sentence reconfigured in this case. Therefore, he is not entitled to the extraordinary remedies of
       habeas or mandamus.

¶ 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.




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