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Round v. Lamb

Supreme Court of Illinois

August 3, 2017

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

          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.



         ¶ 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 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.

         ¶ 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 ...

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