Round v. Lamb, 2017 IL 122271 (August). Episode 394 (Duration 10:39)

Defendant has to do 4 years of MSR even though they didn’t write it down on the sentencing order.

Facts

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.

He plead guilty to two counts: violation of order of protection and harassment of a witness. He served 2 and 5 years concurrently.

His sentencing order said he owed 2 years MSR on the harassment of a witness case but did not list anything for the OP violation. By statute, a sentence for violating an order of protection includes a four-year MSR term. 730 ILCS 5/5-8-1(d)(6).

Issue

Petitioner argues he is entitled to immediate release from custody and seeks an order of habeas corpus or, alternatively, mandamus.

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.

Not Mentioned During Plea

However, no term of MSR connected to that conviction was mentioned during plea negotiations, during the sentencing hearing, or in the written sentencing order.

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.

Defendant served all his time and was “violated at the door” for failure to identify a suitable host site for electronic monitoring. He was not released after his 2 years of MSR 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.

Case Law

The Illinois Supreme Court has noted that the plain language of section 5-8-1 of the Unified Code of Corrections, which at that time stated that “except 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. ” 730 ILCS 5/5-8-1(d).

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.”

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)).

Current Statute

The current requirement is 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.”).

This section says:

“Except when a term of natural life is imposed, every sentence includes a term in addition to the term of imprisonment.”  730 ILCS 5/5-4.5-15(c).

MSR Term Required

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.

Directory 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.

This rule is clearly directory.

Where The Law Came From

The substantive rights of the accused are not violated when the law is not followed.

Instead, the legislative history is quite clear that the rule came from the IDOC which was just looking for guidance on setting MSR for inmates.

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. He suffered no prejudice.

Therefore, the high court said 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.

Can He Be In Prison And On MSR Simultaneously?

Next defendant said his MSR for the OP should have started when he finished the 3 year sentence.

But this is illogical.

It would be illogical to hold that a prisoner can simultaneously be serving a prison term and be on supervised release. 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).

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.”

The Remedy

He’s doing the required MSR error or not.

But…

There is a case law saying defendant should be allowed to withdraw his plea or have a judge re sentence him so that the terms of the plea are complied with. But here he declined to withdraw his guilty plea when he had a chance.

Holding

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. 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.

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.

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. Writ denied.