                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. McCurry, 2011 IL App (1st) 093411




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



District & No.              First District, Fourth Division
                            Docket No. 1-09-3411


Filed                       November 23, 2011


Held                        On appeal from defendant’s convictions for multiple counts of aggravated
(Note: This syllabus        criminal sexual assault and aggravated domestic battery, the appellate
constitutes no part of      court ordered the mittimus corrected to reflect that two counts of
the opinion of the court    aggravated criminal sexual assault merged with the two remaining counts
but has been prepared       of aggravated criminal sexual assault based on the fact that only two acts
by the Reporter of          of sexual penetration were committed and that one count of aggravated
Decisions for the           domestic battery merged with the remaining count of aggravated
convenience of the          domestic battery based on the fact that both counts were founded on the
reader.)
                            victim being burned with an iron, and, furthermore, the trial court’s
                            failure to specify a term of mandatory supervised release was corrected
                            by amending the mittimus to reflect a term of three years to natural life.


Decision Under              Appeal from the Circuit Court of Cook County, No. 07-CR-14993; the
Review                      Hon. Kenneth J. Wadas, Judge, presiding.



Judgment                    Affirmed; mittimus amended.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Pamela Z. O’Shea, all of
Appeal                     State Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Michelle Katz, and Christine Cook, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE STERBA delivered the judgment of the court, with opinion.
                           Presiding Justice Lavin and Justice Fitzgerald Smith concurred in the
                           judgment and opinion.




                                             OPINION

¶1          Following a bench trial, defendant, Mattel McCurry, was convicted of four counts of
        aggravated criminal sexual assault and two counts of aggravated domestic battery. He was
        sentenced to 27 years in prison. On appeal, defendant contends that (1) two of his four
        convictions for aggravated criminal sexual assault should be vacated because only two acts
        of sexual penetration were alleged or proven, and one of his two convictions for aggravated
        domestic battery should be vacated because the closely related acts supporting the aggravated
        domestic battery were charged and litigated together; and (2) the trial court’s failure to set
        a specific term for mandatory supervised release (MSR) when sentencing defendant for
        aggravated criminal sexual assault rendered that portion of the sentencing order void and,
        thus, this court must remand for the circuit court to set a specific term. For the reasons that
        follow, we affirm and amend the mittimus.

¶2                                         BACKGROUND
¶3           Defendant was charged by information with four counts of aggravated criminal sexual
        assault (counts I through IV), two counts of criminal sexual assault (counts V and VI), two
        counts of aggravated battery (counts VII and VIII) and three counts of domestic battery
        (counts IX through XI). Defendant’s bench trial began on October 15, 2009.
¶4           The victim, S.T., testified that in May of 2007 she was living with her son in an
        apartment where defendant would visit and sometimes spend the night. On May 9, 2007,
        defendant had spent the night at S.T.’s home. The next morning as S.T. was getting ready for
        work, defendant found a small address book belonging to her. Defendant started questioning
        S.T. about the names and the numbers contained in the address book. Defendant proceeded
        to take S.T.’s cell phone and call one of the numbers in the cell phone’s memory. Following
        the phone call, defendant punched S.T. in the face several times, put her in a headlock and


                                                  -2-
     bit her on her right arm. S.T. testified that defendant then set up the ironing board and
     plugged in the iron. After the iron got hot, defendant unplugged it, poured hot water from the
     iron on S.T.’s head and burned her arm with the iron a few times. Defendant then plugged
     the iron back in and burned S.T.’s arm with it again.
¶5       S.T. ran into the kitchen to get ice for the burns. Defendant followed her to the kitchen
     and told her to go into the bedroom. Defendant then dropped his pants and said, “You know
     what I want.” S.T. testified that she then performed oral sex on him because she was tired
     of fighting and was scared. Defendant then told her to get up and lay on her stomach. S.T.
     complied. Defendant then had vaginal intercourse with her until he ejaculated. Defendant
     asked for S.T.’s car keys. She refused to give him the keys but instead gave him a ride to his
     grandmother’s house. After she dropped him off she went to the police station to fill out a
     police report. The officer at the front desk told her that because it was a domestic abuse case,
     she would have to go downtown and file a report there. S.T. testified that she did not say
     anything about the sexual assault because she did not feel comfortable. S.T. then dropped her
     son off at school and went to work. After speaking with her relatives, S.T. decided to go to
     the hospital, where she told a nurse about the sexual assault.
¶6       Crystal Carey, a nurse at the hospital, testified that S.T. complained of iron burns and a
     human bite. Carey noted that S.T. had a human bite mark on her right arm and a “partial
     thickness burn” consistent with the shape of an iron on her left forearm. Carey treated the
     wounds and S.T. was then examined by a doctor. As S.T. was about to be discharged, she
     told Carey that she had also been sexually assaulted. Dr. Gulam Siddiqui testified that he
     conducted a sexual assault exam on S.T. He stated that the injuries on S.T.’s arms were
     consistent with her version of the incident. He further testified that the results of her vaginal
     exam were consistent with both sexual assault and consensual sex.
¶7       Defendant was found guilty on all counts and was sentenced to consecutive terms of 10
     years each for counts I and II, and concurrent sentences of 10 years each for counts III and
     IV. Defendant was also sentenced to a consecutive term of seven years for count VII, and a
     concurrent term of seven years for count VIII. Counts V, VI, IX, X and XI merged and no
     sentences were imposed. The trial court did not specify the MSR term. On the Department
     of Corrections (Department) website, defendant’s MSR term is shown as “3 Yrs to Life–To
     Be Determined.”1 Defendant’s motion to reconsider sentence was denied and this appeal was
     timely filed.

¶8                                      ANALYSIS
¶9      Defendant first contends that two of the aggravated criminal sexual assault convictions
     and one of the aggravated domestic battery convictions should be vacated under the one-act,
     one-crime doctrine and the State agrees. The record shows that although defendant was
     charged with four counts of aggravated criminal sexual assault, only two acts of sexual
     penetration were committed, namely, vaginal penetration and oral penetration. Similarly,

             1
             This court may take judicial notice of information on the Department’s website. See
     People v. Young, 355 Ill. App. 3d 317, 321 n.1 (2005).

                                               -3-
       although defendant was charged with two counts of aggravated domestic battery, both counts
       were based on the fact that S.T. was burned with an iron. We therefore order that the
       mittimus be corrected to reflect that counts III, IV and VIII merge with counts I, II and VII,
       respectively. Ill. S. Ct. R. 615(b).
¶ 10        Defendant next argues that the trial court’s failure to set a specific term for MSR when
       sentencing him for aggravated criminal sexual assault rendered that portion of the sentencing
       order void and asks this court to remand for the circuit court to set a specific term. The State
       contends that when the relevant statutes are read in harmony with each other, it is clear that
       the trial court is required to set an indeterminate MSR term, and the Department then has the
       authority to determine the ultimate amount of time that the defendant will serve under that
       term. “Because interpreting statutes presents a question of law, our review is de novo.”
       People v. McKinney, 399 Ill. App. 3d 77, 80 (2010) (citing People v. Aleman, 355 Ill. App.
       3d 619, 624 (2005)).
¶ 11        Section 5-8-1(d)(4) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(d)(4)
       (West 2006)) provides that 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.” There
       is currently a divergence of opinion among the districts of the Illinois Appellate Court on the
       interpretation of this statutory provision. Compare People v. Schneider, 403 Ill. App. 3d 301
       (2d Dist. 2010), with People v. Rinehart, 406 Ill. App. 3d 272 (4th Dist. 2010).
¶ 12        The primary objective of statutory interpretation is to ascertain and give effect to the
       intent of the legislature. People v. Beachem, 229 Ill. 2d 237, 243 (2008). This inquiry
       necessarily begins with the language of the statute, “which is the surest and most reliable
       indicator of legislative intent.” People v. Pullen, 192 Ill. 2d 36, 42 (2000). The statute should
       be read as a whole and given its plain and ordinary meaning. People v. Santiago, 236 Ill. 2d
       417, 428 (2010). Where the meaning of a statute is ambiguous, courts may look beyond the
       statutory language and consider the purpose of the law, the evils it was intended to remedy,
       and the legislative history of the statute. Cinkus v. Village of Stickney Municipal Officers
       Electoral Board, 228 Ill. 2d 200, 217 (2008).
¶ 13        Defendant argues that the language in the statute is clear and that a person convicted of
       criminal sexual assault must be sentenced by the trial court to a set MSR term somewhere
       between three years and natural life. The State contends that the language in the statute is
       ambiguous. The Schneider court concluded that the statutory provision was ambiguous
       because it could be interpreted to mean that the trial court should impose an indeterminate
       MSR term of three years to life, that the trial court should impose a set MSR term
       somewhere between three years and life, or that the trial court can do either. Schneider, 403
       Ill. App. 3d at 307. We agree.
¶ 14        The State urges us to employ the doctrine of in pari materia and consider the meaning
       of the provision in section 5-8-1(d)(4) together with the provisions of other statutes dealing
       with MSR. “Under the doctrine of in pari materia, two statutes dealing with the same subject
       will be considered with reference to one another to give them harmonious effect.” People v.
       McCarty, 223 Ill. 2d 109, 133 (2006). If a statute contains ambiguous language, a court may
       utilize tools of interpretation such as the doctrine of in pari materia to ascertain the meaning


                                                 -4-
       of the provision. People v. Taylor, 221 Ill. 2d 157, 163 (2006). Thus, we will consider the
       purpose and legislative history of the statute as well as other statutes related to MSR in our
       analysis.
¶ 15       As originally enacted in 1973, the Code provided for an indeterminate sentencing
       scheme, in which both a minimum and maximum sentence within a statutory range would
       be imposed. See People v. Choate, 71 Ill. App. 3d 267, 271 (1979). In 1977, Illinois moved
       to a determinate sentencing scheme, in which a fixed maximum sentence within a statutory
       range would be imposed, in order to reduce disparities in sentencing. Id.
¶ 16       Terms of MSR are mandated by statute and courts have no authority to withhold the
       MSR term when imposing a sentence. People v. Whitfield, 217 Ill. 2d 177, 200-01 (2005).
       All MSR terms set by the legislature are for a set number of years, with the sole exception
       of MSR terms in sexual assault cases. Prior to 2005, all MSR terms for felony convictions
       were fixed and based on the class of the felony, and this included felonies involving sexual
       assault. 730 ILCS 5/5-8-1(d)(1) through (d)(3) (West 2004). For example, a Class X felony
       conviction resulted in an MSR term of exactly three years. 730 ILCS 5/5-8-1(d)(1) (West
       2004).
¶ 17       In 2005, the General Assembly amended section 5-8-1(d) to include an exception for the
       offenses of predatory criminal sexual assault of a child, aggravated criminal sexual assault
       and criminal sexual assault. For these offenses, the statute was amended to provide an
       indeterminate MSR term with a range of three years to natural life. Pub. Act 94-165 (eff. July
       11, 2005) (amending 730 ILCS 5/5-8-1(d)(4)). At the same time, the legislature added a new
       section to the Code to address the extended supervision of sex offenders upon their release
       from custody. Pub. Act 94-165 (eff. July 11, 2005) (adding 730 ILCS 5/3-14-2.5).
¶ 18       Article 3 of the Code (730 ILCS 5/3-3-1 et seq. (West 2006)) establishes the Prisoner
       Review Board (Board) and grants it broad authority over the administration of MSR.
       Specifically, for those serving extended supervised release terms pursuant to section 5-8-
       1(d)(4), the Board has the authority to decide the conditions of MSR and the time of
       discharge from MSR, to impose sanctions for violations of MSR and to revoke MSR. 730
       ILCS 5/3-3-2(a)(3.5) (West 2006). In particular, the Board has the authority to enter an order
       discharging an individual 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 2006).
¶ 19       The Department is required to supervise each sex offender during the MSR term
       according to the conditions set by the Board. 730 ILCS 5/3-14-2.5(a) (West 2006).
       Supervising officers must receive specialized training in the supervision of sex offenders.
       730 ILCS 5/3-14-2.5(c) (West 2006). The supervising officer will prepare a progress report
       beginning 180 days after the offender’s release date and continuing every 180 days for the
       duration of the MSR term, detailing the offender’s adjustment and compliance with MSR
       conditions. 730 ILCS 5/3-14-2.5(b) (West 2006). The statute also provides a mechanism
       under which offenders who are serving extended MSR terms may request a discharge from
       supervision. 730 ILCS 5/3-14-2.5(d) (West 2006).
¶ 20       The legislative history indicates that the purpose of the bill amending section 5-8-1 and
       adding section 3-14-2.5 was to change the way Illinois handled high-risk sex offenders


                                                -5-
       because our then-current system failed to take into account the high recidivism rates of sex
       offenders. 94th Ill. Gen Assem., House Judiciary Comm. on Crim. Law, Feb. 25, 2005 (audio
       recording of HB 2386, at 1:55:06). The bill was an initiative of the Illinois Attorney
       General’s office. A representative from that office testified before the Senate Judiciary
       Committee and noted that under this bill, offenders would be supervised for a period of three
       years to natural life, depending on the risk posed by the offender. 2005 Legis. Bill Hist. IL
       H.B. 2386 (May 3, 2005). In additional testimony before the House Judiciary Committee on
       Criminal Law, the representative explained:
               “House Bill 2386 shatters Illinois’ one-size-fits-all approach to managing high risk
           sex offenders. Under this bill, sex offenders who fall into the categories of predatory,
           aggravated and criminal sexual assault will be supervised on parole for an indeterminate
           length of time, from three years at a minimum, to, in an extreme case, the natural life of
           an offender, based on three primary areas. One is their adjustment on parole, their
           compliance with parole conditions, and, importantly, the risk they pose to communities.
           This bill is intentionally simple and straightforward and capitalizes on the expertise
           that’s found within the Department of Corrections and the Illinois Prisoner Review
           Board.” (Emphasis added.) 94th Ill. Gen Assem., House Judiciary Comm. on Crim. Law,
           Feb. 25, 2005 (audio recording of HB 2386, at 1:55:06).
¶ 21       The court in Schneider determined that the legislature’s intent in sexual assault cases was
       to require the trial court to impose an indeterminate MSR term with a minimum of three
       years and a possible maximum of natural life, and then grant the Department the authority
       to determine the date of the defendant’s release from MSR after the three year minimum.
       Schneider, 403 Ill. App. 3d at 308. The court noted that in using indeterminate language in
       the 2005 amendment long after it had generally abolished indeterminate sentences, the
       legislature presumably intended to set an indeterminate MSR term in sexual assault cases.
       Id.
¶ 22       Defendant asks us to adopt the position taken by the Rinehart court, which held that the
       legislature intended for the trial court to exercise its discretion and impose a determinate
       MSR term within the range provided in the statute. Rinehart, 406 Ill. App. 3d at 281. The
       court reasoned that the trial court, and not the Department, is in the best position to assess
       and weigh the factors relevant to determine whether a defendant should serve three years’
       MSR, natural life, or something in between. Id.
¶ 23       We respectfully disagree with the holding in Rinehart and are in accord with the
       Schneider court. It is clear that the purpose of the 2005 amendment which set an
       indeterminate MSR term in sexual assault cases was to address the reality that there is no
       fixed MSR term that can be predetermined by a trial court at sentencing to adequately
       address the problem of high recidivism rates among sex offenders. It is equally clear that the
       legislature intended to require MSR terms for sex offenders to be determined on a case-by-
       case basis, depending on the risk posed by the offender, a risk that can only be determined
       on the basis of the offender’s adjustment upon release and compliance with MSR conditions.
       This conclusion is supported by the legislature’s concurrent enactment of guidelines that
       specifically address the extended supervision of sex offenders and require the submission of
       periodic progress reports by specially trained supervisors. Moreover, the legislature

                                                -6-
       specifically granted the Board the authority to decide the time of discharge for individuals
       serving an extended supervised release term for criminal sexual assault. See 730 ILCS 5/3-3-
       2(a)(3.5) (West 2006). Finally, this conclusion is supported by the legislative history in the
       form of testimony by the Illinois Attorney General’s office, the initiator of the bill, that sex
       offenders who fall into certain categories of sexual assault will be supervised on parole for
       an indeterminate length of time, utilizing the expertise of the Department and the Board to
       determine when the MSR term will end.
¶ 24        Although the Rinehart court concludes that the trial court, and not the Department, is in
       the best position to determine the exact term of MSR, it provides no guidance on what
       specific factors the trial court should consider in making this determination. Moreover,
       absent clairvoyant capabilities, there is no credible way for the trial court to reasonably
       predict how a sex offender will adjust to society upon his release from prison, what risk he
       will pose to the public at that time, and how he will progress in his compliance with the MSR
       conditions. Indeed, in cases such as the case sub judice, where the offender is sentenced to
       a lengthy prison term, it becomes even more difficult to reasonably so predict.
¶ 25        While, as previously discussed, the Board has the authority to enter an order discharging
       an individual from MSR “when it determines that he is likely to remain at liberty without
       committing another offense,” we note that section 3-14-2.5 does not provide any authority
       for the Board to extend the MSR term, even if it determines that the offender continues to
       pose a risk to the public. Interpreting the provision in section 5-8-1(d)(4) to require the trial
       court to set a specific number of years of MSR could therefore potentially thwart the intent
       of the legislature if, for example, the court set the term at the minimum of three years and the
       Board determined that the offender still posed a risk to the public at the end of the three-year
       period. The only other mechanism available to the Board in that case would be a revocation
       of the MSR term. The potential practical effect of interpreting the provision as defendant
       urges, to require the trial court to set a fixed number of years within the range provided, is
       that trial courts will err on the side of caution and set terms of natural life by default.
¶ 26        Moreover, such an interpretation would be inconsistent with the statutory scheme related
       to the imposition of MSR terms. In no other circumstance does the trial court have discretion
       when imposing the MSR term. Rather, MSR terms are mandated by the legislature and the
       courts are required to impose them. We do not believe that the legislature intended for circuit
       courts to exercise discretion in the imposition of MSR terms for sex offenders, when the
       length of the term so clearly depends on the individual progress and assessment of each
       offender. Instead, just as in every other case, the legislature has mandated the MSR term for
       cases involving criminal sexual assault. The difference is that in cases involving criminal
       sexual assault, the mandated MSR term is indeterminate. For the foregoing reasons, we hold
       that section 5-8-1(d)(4) requires the trial court to impose an indeterminate MSR term of three
       years to natural life for sex offenders.
¶ 27        Because we have determined that the trial court has no discretion in imposing the MSR
       term, it is not necessary to remand for the court to correct the sentencing order. We therefore
       order that the mittimus be corrected to reflect an MSR term of three years to natural life. Ill.
       S. Ct. R. 615(b). Accordingly, we affirm the judgment of the circuit court of Cook County
       and order that defendant’s mittimus be amended.

                                                 -7-
¶ 28   Affirmed; mittimus amended.




                                     -8-
