The number of Mandatory Supervised Release Illinois (MSR) years is suppose to be written down on the sentencing order by the judge. These years are mandatory. So they are a part of the sentence even if not written down.
People v. Ford, 2014 IL App (1st) 130147 (August).
Defendant contends that the DOC’s addition of the three-year term of MSR is void because it was not part of the trial court’s sentence or sentencing order and violates separation of powers and due process principles by increasing his sentence beyond what the trial court imposed, as the DOC was not empowered to impose the MSR term.
Defendant wa serving 14 years for possession of contraband in a penal institution. No MSR was ordered. IDOC unilaterally gave him 3 years MSR or Mandatory Supervised Release.
Defendant used a postconviction petition and 2-1404 petition to challenge IDOC decision to unilaterally give hime 3 years MSR. Those petitions were dismissed. Defendant appealed the dismissal of his petitions.
The supreme court held that the plain and ordinary meaning of the applicable version of 730 ILCS 5/5-8-1(d) was clear. (“[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”) was unambiguous and the Mandatory Supervised Release Illinois term was included automatically in the sentence, “as though written therein,” even where the trial court did not See People v. McChriston, 2014 IL 115310, ¶¶ 17, 23.
Illinois Compiled States Effective January 1, 2012, section 5-8-1(d) (1) was amended by deleting the “as though written therein” phrase to now require “the parole or mandatory supervised release term shall be written as part of the sentencing order.” 730 ILCS 5/5-8-1(d).
Mandatory Supervised Release Illinois
Defendant argued that under either version of section 5-8-1(d) (1) only the trial court may impose a MSR term and under the current version the sentencing court is explicitly required to make a MSR term part of the sentencing order. Defendant concludes that, because the trial court failed to do so, due process and separation of powers principals were violated when the DOC, lacking any authority to do so, added the MSR term to defendant’s sentence.
In any event, the State correctly noted that section 5-8-1(d) of the amended statute did not change the requirement that all convicted felons are required to serve a period of MSR, and that the MSR term is required to be imposed by the sentencing court. The State concluded that “[s]uch a term of MSR attaches automatically to every sentence by operation of law and thus, is not imposed by the IDOC.”
Additionally, section 5-4.5-15(c) of the Code provides, in pertinent part, “every sentence includes a term in addition to the term of imprisonment. For those sentenced on or after February 1, 1978, that term is a mandatory supervised release term.” 730 ILCS 5/5-4.5-15(c).
The plain language of section 5-8-1(d), read in conjunction with section 5-4.5-15 (c), makes evident that “the MSR term [was] a mandatory component of [the] defendant’s sentence” and the MSR term was imposed by the trial court and not the DOC. People v. Hunter, 2011 IL App (1st) 093023, ¶ 23
McChriston is clear that whether section 5-8-1(d) is viewed pre- or post-amdendment, its legislative history reflects a term of MSR is part of every qualifying sentence regardless of whether the term is mentioned during sentencing or omitted from the sentencing order. McChriston, 2014 IL 115310, ¶¶ 18-21.
Thus, McChriston undercuts defendant’s separation of powers argument that his MSR term was void because the MSR term was actually imposed by the unauthorized act of the DOC. Further, the amendment’s requirement that the trial court write the MSR term as part of the sentencing order also defeats defendant’s argument that, by imposing the MSR term, the DOC violated his due process rights by increasing his sentence beyond the trial court’s order.
The appropriate remedy to rectify this essentially clerical omission is to vacate the term of MSR added by the DOC and remand to the trial court with directions to correct the sentencing order to reflect the MSR term provided under section 5-8-1(d) of the Code.
Because defendant was sentenced as a Class X offender due to his criminal background, the three-year MSR term applicable to the Class X conviction was part of his sentence. 730 ILCS 5/5-4.5-15(c), 5-8-1(d)(1); People v. Watkins, 387 Ill. App. 3d 764, 766-67.
We vacate the MSR term imposed by the DOC and otherwise affirm the trial court’s judgment. We remand with directions to correct the sentencing order in conformity with section 5-8-1(d) of the Code.