Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 11 CR 17133. Honorable James B. Linn, Judge Presiding.
The appellate court affirmed the trial court's summary dismissal of defendant's pro se postconviction petition alleging that the Illinois Department of Corrections violated his due process rights by adding a term of mandatory supervised release after his prison term even though the added term was not part of the trial court's sentence or written sentencing order, since the trial court was required by section 5-8-1(d) of the Unified Code of Corrections to make the term part of the sentencing order, and the proper remedy for this clerical omission was to vacate the term added by the Department and remand the cause to the trial court with directions to amend the sentencing order to conform with section 5-8-1(d).
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Chicago, Illinois, Of Alan J. Spellberg, Janet C. Mahoney, Assistant State's Attorneys.
FOR DEFENDANT-APPELLANT: Michael L. Pelletier, State Appellate Defender, 1st District, Chicago, Illinois, Of Alan D. Goldberg, Deputy Defender, Linda Olthoff, Assistant Defender.
JUSTICE PIERCE delivered the judgment of the court, with opinion. Justices Simon and Liu concur in the judgment and opinion.
[¶1] Defendant Bobby Ford appeals the trial court's order summarily dismissing his pro se petition for relief under both the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)) and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant challenges the addition of a two-year term of mandatory supervised release (MSR) by the Illinois Department of Corrections (DOC) because the MSR term was not part of the trial court's sentence or written sentencing order.
[¶2] Following a jury trial, defendant was convicted of possessing contraband (dangerous weapon) in a penal institution, a Class 1 felony. On March 14, 2012, he was sentenced as a Class X offender (due to his criminal background) to 14 years in prison. The court also imposed a consecutive 180-day sentence for direct criminal contempt of court based on defendant's conduct during the course of his trial. Neither the transcript of the sentencing hearing nor the written sentencing order mentioned a term of MSR. After his commitment, the DOC added a three-year MSR term to be served after completion of his court-imposed sentence. Subsequently, defendant filed his pro se petition claiming a due process violation because the DOC without authority increased his sentence beyond the 14-year sentence imposed by the trial court with the addition of a 3-year MSR term. Defendant now appeals the dismissal of the petition.
[¶3] The parties briefed this appeal prior to our supreme court's decision in People v. McChriston, 2014 IL 115310, 378 Ill.Dec. 430, 4 N.E.3d 29. In McChriston, our supreme court considered a factually similar sentencing issue and resolved the question after analysis of section 5-8-1(d) of the Unified Code of Corrections (Code) (730 ILCS 5/5-8-1(d) (West 2004)) as it existed prior to an amendment that became effective January 1, 2012. Here, because the defendant was sentenced after the effective date of the amendment to section 5-8-1(d) and the conduct of the
DOC in adding a term of MSR raised the same constitutional objections, we requested the parties to submit supplemental briefs specifically addressing which version of section 5-8-1(d) of the Unified Code of Corrections applies, as well as the effect of McChriston on the issues raised in this appeal. Counsel on appeal ...