                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Munoz, 2011 IL App (3d) 100193




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



District & No.             Third District
                           Docket No. 3-10-0193


Filed                      December 19, 2011


Held                       On appeal from the conviction and sentence imposed on defendant for
(Note: This syllabus       criminal sexual assault, the DNA analysis fee was vacated on the ground
constitutes no part of     that defendant was already in the DNA database as the result of a prior
the opinion of the court   case, and the indeterminate term of mandatory supervised release
but has been prepared      imposed by the Department of Corrections was vacated as void, since it
by the Reporter of         is the trial court’s duty, not the department’s, to sentence defendant to a
Decisions for the          term of MSR within the statutory guidelines, and on remand, the trial
convenience of the         court was directed to sentence defendant to a term of MSR as provided
reader.)
                           by section 5-8-1(d)(4) of the Unified Code of Corrections and enter a
                           corrected sentencing order.


Decision Under             Appeal from the Circuit Court of Peoria County, No. 07-CF-1489; the
Review                     Hon. James E. Shadid, Judge, presiding.



Judgment                   Affirmed in part and vacated in part; cause remanded with directions.
Counsel on                 Jean Park, of State Appellate Defender’s Office, of Chicago, for
Appeal                     appellant.

                           Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Dawn D.
                           Duffy, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for the People.


Panel                      JUSTICE LYTTON delivered the judgment of the court, with opinion.
                           Presiding Justice Carter and Justice Wright concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant Lizarro Munoz was convicted of criminal sexual assault (720 ILCS 5/12-
        13(a)(1) (West 2006)) and sentenced to 17 years in prison plus 2 years of mandatory
        supervised release (MSR). On appeal, he argues that (1) the Department of Corrections’
        (DOC) records should be corrected to comply with the trial court’s sentence, and (2) the
        DNA testing and $200 analysis fee should be vacated. We affirm in part, vacate in part, and
        remand with directions.
¶2          Defendant pled guilty to criminal sexual assault and aggravated robbery. In exchange for
        defendant’s plea, the State agreed to dismiss the aggravated robbery charge and suggest a
        sentencing cap of 17 years in prison and 2 years of MSR. Following the State’s presentation
        of the factual basis for the plea, the trial court sentenced defendant to the agreed terms and
        ordered defendant to submit to DNA testing and pay an analysis fee. The trial court’s written
        sentencing judgment reflected defendant’s sentence of 17 years’ imprisonment and a 2-year
        term of MSR. After sentencing, the Department of Corrections inmate records listed
        defendant’s MSR terms as “3 Yrs to Life-To Be Determined.”

¶3                        I. Indeterminate Term of MSR Imposed by DOC
¶4                                                  A
¶5          Defendant claims that the DOC lacked the authority to impose an indeterminate term of
        MSR of three years to life when the trial court sentenced him to two years of MSR.
¶6          The imposition of MSR is statutorily required. See 730 ILCS 5/5-8-1(d) (West 2006).
        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

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       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).
¶7         Under the Unified Code of Corrections (Code) (730 ILCS 5/1-1-1 et seq. (West 2006)),
       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 that
       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).
¶8         Section 5-8-1(d) of the Code states that “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).
¶9         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
       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 5/3-3-7,
       3-14-2.5 (West 2006). However, article 3 contains no language that gives the board the
       power to impose a term of MSR required under section 5-8-1(d).
¶ 10       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. We agree.
¶ 11       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).
¶ 12       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


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       (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).

¶ 13                                             B
¶ 14       Defendant requests that we direct the DOC to comply with the trial court’s sentencing
       order and reinstate his MSR term of two years. To do so, however, would be to impose a
       term of MSR that is void for lack of statutory authority. See 730 ILCS 5/5-8-1(d)(4) (West
       2006) (for the offense of criminal sexual assault, term of MSR shall range from a minimum
       of three years to a maximum of natural life); People v.Thompson, 209 Ill. 2d 19 (2004). We
       therefore vacate the term of MSR imposed by the DOC and remand to the trial court with
       directions to impose MSR as provided under section 5-8-1(d)(4) of the Code.

¶ 15                                   II. DNA Analysis Fee
¶ 16       Defendant also claims that the trial court exceeded its statutory authority by ordering him
       to pay a DNA fee because he submitted a DNA sample and paid the fee in a prior case.
¶ 17       This issue was recently addressed by our supreme court in People v. Marshall, 242 Ill.
       2d 285 (2011). In that case, the court held that section 5-4-3 of the Code (730 ILCS 5/5-4-3
       (West 2006)) authorizes a trial court to order the taking, analysis and payment of the analysis
       fee of a qualifying offender’s DNA only where the defendant is not currently registered in
       the DNA database. Marshall, 242 Ill. 2d at 303. In this case, the State concedes that
       defendant’s DNA is already on file. We therefore vacate that portion of the court’s order
       requiring additional testing and ordering defendant to pay the $200 DNA analysis fee.

¶ 18                                     III. Conclusion
¶ 19       We vacate the indeterminate term of MSR imposed by the DOC, vacate the $200 DNA
       analysis fee, and otherwise affirm the trial court’s judgment. On remand, the trial court is
       directed to sentence defendant to a term of MSR as provided by section 5-8-1(d)(4) of the
       Code and enter a corrected sentencing order. See 730 ILCS 5/5-8-1(d)(4) (West 2006).
       Accordingly, the judgment of the circuit court of Will County is affirmed in part and vacated
       in part, and the cause is remanded with directions.

¶ 20      Affirmed in part and vacated in part; cause remanded with directions.




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