                                      2017 IL 122271



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS



                                   (Docket No. 122271)

                  DANNY ROUND, Petitioner, v. NICHOLAS LAMB,
               Warden of Lawrence Correctional Center, et al., Respondents.


                               Opinion filed August 3, 2017.



        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




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     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
     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.




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¶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.

¶ 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




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       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




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       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. 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



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       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 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).




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¶ 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




                                               -8-
       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 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



                                                -9-
       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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