board's order placing him on electronic home detention as a condition of his mandatory supervised release the section was unlawful for three reasons first it exceeded the board statutory authority second it was unconstitutional because it kept mr hali confined and imprisoned beyond the term imposed on him by the court third it was also one constitutional because it rendered his sentence more onerous than the sentence he agreed to serve when he entered his negotiated plea contract with the state there are also a couple of ancillary issues movements and whether this is an appropriate case for mandamus and i'd be happy to take any questions from your honour's there regarding either of those issues but unless your honour's have questions i will stand on our briefs and on our response to the to to the motion to dismiss on those issues i'd like to start if i may with statutory authority a agency in this case that statute is section three three one of the code of corrections which is contained in the supplemental appendix to the blue brief page essay one now section three three one specifically three three one  five does specify that the board is the agency which sets the terms of mandatory supervised release but it incorporates by reference section five eight one of the code and that's located on page essay twenty four that generally it doesn't talk about terms and conditions it only talks about the length of a term of m s r but there's one exception it does discuss one particular condition or term of m s r and that's electronic home detention on page essay twenty four all the way at the bottom subsection d five spells out the context in which it can be imposed and that's the person who committed and i believe it's criminal sexual aggravated criminal sexual abuse or felony criminal sexual abuse  case could end right there by medical labs retrain or the numerous cases since say you look to this statute which creates the agency this case in this case that section three three one section three three one incorporates by reference section five eight one section five eight one only specifies one context in which you can be imposed in which electronic home detention can be opposed further even if your honors look beyond those statutes there still is no statutory authority the primary statute on which respondent lies the section three fourteen two of the code of corrections which is usually located at page essay twelve of the of the appendix to the blue brief section three fourteen two does provide that one of the conditions that the department of corrections is responsible for monitoring is electronic home detention but that's all it does section three fourteen to article fourteen generally and section three fourteen two a specifically discusses the responsibilities of the department of well who monitors who supervises these people and make sure that they're complying in three fourteen two way the legislature is simply providing that's the responsibility of the department of corrections not the prisoner review board it is not a grant of authority to the board not only because three section fourteen and section three fourteen two and generally article fourteen of chapter three it wouldn't make sense for the board to put a grant of authority he would make sense for the legislature but a gran to the board in that location we know exactly where they would put it if they wanted to give the board authority and that's in section three three seven of the code and that's quite a long statute that's contained on pages six through six through eight of the appendix to the blue brief section three three seven in total terms and conditions of parole or mandatory supervised release spells out the terms and conditions that must be applied subsections of sub sub sections of subsection a the terms which may be applied subsection b and the terms which may be applied to folks who are required to register as sex offenders that subsection b dash one now respondent has an answer that he says well we have authority under section three three seven look at just look at the first limited to choosing among the conditions listed in that subsection b and if a political subsection b one otherwise if this first sentence of section that section a meant if it had the meaning the respondent ascribed to  imposed they need not be imposed in every case but maybe imposed if subsection a gave the board unlimited authority to impose any condition it wanted on anybody it wanted no matter what crime they were convicted of there is no need for subsections to be envied ash one clear their intent that this condition not be imposed on every person who is put on it as are and that's an subsection a fifteen which is contained on page essay seven of the blue brief and if you're honest will forgive it i'm going to read briefly from subsection  must quote follow any specific instructions provided by the parole agent that are consistent with furthering conditions set in approved by the prisoner of you board or by law exclusive of placement on electronic detention the legislature singled out electronic home detention as the one and only of the universe of possible conditions of m s r that could not generally be impose the legislature's intent could hardly be more clear that electronic home monitoring electronic home detention cannot generally be imposed because they say you have to tell everybody who goes on m s r you have to do whatever you as long as it's consistent with what the board has set except electronic home detention this is different the legislature has clearly specified that it's different and the difference between this condition and the other possible conditions of a mess are leads in to the second argument which is that it was unconstitutional to impose this condition response argument is that this is essentially just like any other term or condition the board has to have discretion we know that they  can you know they can order the people in m s r be searched well this is essentially like that well no it's not there may have been some confusion we're talking here about electronic home detention not near like trunk tracking or monitoring but electronic home detention which is the condition it was placed on mr holley is as as house for the state argued in the previous previous case it was actual physical confinement he was confined  home twenty four hours a day seven days a week if he wanted to leave he had to get pre approval to leave if he wanted to get a job he had to get that job pre approved if you want to go to school he had to get pre approval to take a class if he wanted to get medical attention and how it actually works but the legislature defines electronic home detention as confinement in the electronic home detention law subsection section to see the electronic home detention law defines home detention and it defines as confinement that's the word the legislature use the meaning can't be more clear this is confinement and if it had to be more clear it is more clear because the legislature has also specified that anybody lation of any term or condition electronic home detention is prosecutable as a skate under both the electronic home detention law and under the criminal code violating any rule makes you a class three felony it's not only has been taken away i don't believe so and i'll explain why that that decision apparently by the prisoner review board according to the material submitted by respond in the motion to dismiss did take mr holly off of electronic home detention for a nap there is no indication that he might not be put back on it tomorrow and there's no indication that other other people in mr holly's position might not be put back on it immediately in fact they the decision with with no warning to take mr holley off really highlights the degree of the board's authority at their at their i don't necessarily want to use the word whim but at their discretion whenever they want they can take them up they can put him back on they can let him go to work they can disallow him getting medical treatment the board has complete and utter control  legitimate reading of five eight one be not that m s r is only for smiths of sex offenses rather is mandatory for those offenses and discretionary with respect  detention it's true that it's mandatory in section five eight one but we don't feel that that means certainly that doesn't indicate that there's discretionary authority at best it's ambiguous but the fact is they do speak to this one term substance within a penal institution and the court found well he's on electronic home detention that puts him within a single institution he's confined similarly moncrief the question was does his sentence have to said well there's a difference a person is on parole they have their physical liberty a person who has an electronic home detention does not thus the sentences you have to reconcile the third argument we have is based on this court's now i can actually use the term recent decision in people v whitfield just in december two thousand and five your honour's looked at a plea agreement and broke down what a plea agreement is he said it's a contract that's governed by contract law and it is unlawful and it's unconstitutional to impose any term on a person who pleads guilty that they were not apprised of at the time of their plea agreement respondent relies on people died and the question is well can you introduce the guilty plea as evidence in that subsequent prosecution and the court said yes because that's a collateral consequence we don't require a trial judges to have a crystal ball and apprise the defendant of every possible conceivable farfetched used might made their guilty plea that we're not we're not taking issue with that proposition of law but the fact is your honour's distinguished a collateral consequences such as that use of the guilt plea from a direct consequence and with respect to direct consequences your honor said you do have to be apprised of that and a direct consequence of a guilty plea but i may quote briefly that the direct consequences of a guilty plea are limited to the penal consequences of that pl e the consequences that relate to the sentence imposed on the basis of the plea as runners are well aware mandatory supervised release is a part of every sentence this is a term of mandatory supervised  release i expect that respondent will will get up and say well that's true but there was no guarantee that at the time he pled guilty and at the time you plead guilty there was no guarantee mr holly would be placed on electronic home detention well that's true and in fact we argued that not only was it not mandatory it was not authorized at all but the fact remains this fundamentally changed the sense that he was more onerous to be hit to have a two year term of house arrest instead of his freedom at the time that he had already served with credit for good time the entire sentence imposed on him by the court would that mean and the trial court might have to tell somebody by the way there's going to be a term of m s r one of the conditions of m s r is you might be put on house arrest you still want to plead guilty or you want to go to trial that's it that ten seconds that just took me to say it that would be the change if the legislature did go ahead and amend the statute if your honour's held on the other hand that it was a question of him let me ask you this just yet you must certainly believe in a plead guilty to a sex offense that you should be given  i do believe it i'm not as familiar with the statutory provisions specifically governing sex offenders but i do believe it certainly should be yes sex offenders there have been several decisions from this court in other courts indicating that that there are different and it's legitimate to treat them differently this case is separate mr heller was not convicted of a sex offense and in this case should not impact of the legislatures or the or the courts of the state in their ability to  s that that might change how how things operate in the state and but the question is what the question of that would come down to is is is this is th t second the prisoner review board has statutory authority to impose special conditions on m s r and can constitutionally apply electronic home monitoring is one of those conditions and lastly this case is not appropriate for mandamus relief to my first point on february twenty eighth two thousand and eight the prisoner of you board ordered the removal of electronic home monitoring as a special condition of tissues mandatory surprise release is requested remedy in this case is that he be allowed to be removed from electronic home monitoring thus this court order would have no force as to whether or not electronic monitoring is being imposed on petitioner now his response is that there's nothing saying that the prisoner review board ca ahead and put him back on electronic home monitoring and the statutes make it pretty clear that the prisoner view board has the power to expand or modify up to prisoners mandatory supervised release conditions but can only do so after hearing so i think it in this case it's a question of burdens where there's no facts being presented either way the respondent has the burden of showing that this case is moot and has it's a question of burdens and since it's his burden to prove that it will be reimposed and there's no facts to support that then the courts should rule that the moon is exceptions is not what as to the public interest exception question  there is no need for an authoritative decision at this point in time to lower court opinions have come out in the last year and a half dealing with similar issues and have come up with the same conclusions  so since there's no need for an authoritative decision at this time and since there's no evidence on the record that it's likely to reoccur asked the question or there's no need to apply a moot it's exception in this case but as to the merits there is clear statutory authority for the board to impose electronic monitoring or any condition it sees fit and that authority is found in three days three days one as the board deems necessary to assist the subject in a law abiding life and then the section goes on to state what conditions will apply to every mandatory supervised release condition but that doesn't mean that the board is limited to those specific stated conditions this is supported by the statutory language found in three days three to seven b which states that the board may in addition to other conditions require that the subject in goes on to state more  subject to rules of conduct a prescribed by the board and any special conditions deemed appropriate by the board in individual cases so the administrative code is giving the board authority to set special conditions in individual cases they can't apply electronic home monitoring as a condition in every case just giving the department of corrections a blanket authority to always impose what trying all monitoring in every case but they can titian or relies pacifically on three d s three to seven a fifteen in order to counter this argument and states that here the legislature has singled out electronic monitoring as an exception to the general rule that's not particularly accurate though if you look at that statute which is on supplemental public speech six and on page seven is the exception it states that the person who's on m s r has to follow any specific instructions provided by the roll agent including conditions certain approved by the prisoner of you board exclusive of placement on electronic home detention so what the legislature is talking about there is what the rule agents authority is in order to impose his own special conditions on the m s r and it's basically giving a parole agent blanket authority to set very specific conditions on the parole within the purview of those authorized by the p r b in that it has to be read in the context of the preliminary language leading up to a fifteen which isn't found in subsection a which states that here are the conditions for every m s r and then it's saying in every m s r case you have to follow parole agents authority home monitoring so there's two limitations placed upon what this mission or sees as a prohibition on electronic home monitoring and those two whenever they see fit rather the statutes make it clear particularly in the illinois administrative code that that's the authority of the prisoner review board and that they may impose electronic home monitoring or any other special condition that they see fit in individual cases so there's statutory authority to impose mandatory supervised release is only of them added by the constitution which leads into the next argument of titian or and particulars argument is that this is unconstitutional for two reasons post facto violation specifically this is not punishment electronic home monitoring is not intended to punish the person that's being placed on it and then m s r context rather it's merely designed to make sure that the conditions of that m s r assist the subject in leaving a law abiding life by providing enhanced monitoring in specific individual circumstances where the board feels it's appropriate his argument but this becomes too onerous well there's a couple problems first facially the standard is that this court views a statute is being constitutional wherever possible and the statute allows for a great deal of discretionary leeway on the part of the board and the supervising authority and setting the specific m s r conditions thus it's impossible to say that this is facially invalid where the board can make electronic home conditions electronic monitoring conditions incredibly lenient to the point where they appear to be basically being completely free it's the board can go from anywhere from saying that you can go wherever you want to it and we'll go and preview a preview for everything all the way up to know you're confined to your home and just stay there so because we don't know what the discretionary authority  this case what their decisions were specifically in this case it becomes impossible then to rule on whether or not the statute was unconstitutionally applied in this case and that's because this is an original mandamus action which brings me to my last point the factual record is simply not well enough developed to give mandamus relief in this case where the facts are not known as to what the specific conditions were as  counsel got up and argued that he was confined to his home twenty four seven and then went on to acknowledge specific exception exceptions to that but the problem is that's not in the record all we have in the record is the board's authoritative decision that he's going to be placed on electronic home monitoring but that doesn't tell us what the specific conditions were that were imposed by the supervising authority and again it's important to note that those limitations are no longer being applied  like they will bracelet was taken off last week and thus it would be inappropriate for this court to reach out in this case to decide the constitutionality of a statute that isn't even being applied to petitioner anymore which goes  first point that this case is indeed moot there is no need for the court to render a decision at this time in this case and similar issues may be arising very soon in a case that's a better view before a decision that might have a better developed factual record states that mandamus is a remedy for cases of public issues it's not a case for cases involving solely private rights or issues of only local public interest if there's another route to rel but this i mean respondent has admitted in the motion to dismiss is moot that this is a case involving public interest mandamus is appropriate as far as the underlying point which is that we really don't know how much holly was actually confined well the fact is i'm not going to go outside the record in and tell your honour's what i know that would be inappropriate but the but the fact is this term the electronic home detention certainly gave the board unfettered discretion to impose whatever level of confinement they chose respondants hypothetical that perhaps he just walked around free doesn't change one iota the degree of control that the board had over mr holley and i guess that's that's where i need to stop as far as as far as what's appropriate as far as moving this respondent has it respectfully exactly backwards  far as the burden the burden when you're talking about voluntary sation of an illegal activity the burden is on the person who is claiming that their own cessation of illegal activity moves the case the burden is on them and it is a language in section three three seven b and this is on the statutory authority question this is my last point is about section three three seven he says section three three seven b says in addition to other conditions the board may impose that laundry list i was going to do my best to avoid embarrassing myself too by attending to pronounce a latin phrase but i'm afraid i now have no other choice it is used i'm generous as your honour's are well aware that allow the person to get their life going on the right track get it comply with orders of protection get medical help if you needed it psychiatric help if you needed it drug and alcohol counseling if you need support your family live right i believe it's on page essay seven your honor this electronic attention is nothing like those other terms and conditions this is locking someone in their home this was a term specifically tailored to mr holly in light of the crimes for which he was convicted you know specifically tailored to him that's an argument that it would be a little bit difficult to stand analysis because the fact is mr holley was convicted of coming home from work and committing murder in his home and so what does this condition require him to do you can only go to work and come home and then you have to sit in your home how is that specifically tailored to mr hartman it doesn't make any sense at all restricts and finally subsection a fifteen as thirty three seven a fifteen i responded says this is really just talking about the agents authority the parole agents authority but he ignores the clause that says that every every person must be advised they must comply with every condition imposed by the early age and that is consistent with the then you don't have to follow it anyway this singles out electronic home detention as the one and only condition that you don't generally have to comply with and with that we request that your honour's enter in order and issue an opinion clarifying that it is illegal and unconstitutional for the prisoner of you board to impose this condition on one sex offenders mr robert did you just say that you generally do not have to comply i didn't quite hear that last i hope a fifteen i didn't say it backwards that you but yes that's right you generally yes as electronic home detention is the one term or condition of m s r that is singled out but you do not have to follow your agent's instructions to  get on it and one of the points you want to go back to that this ties in with the people's argument on the mandamus claim one of the elements essential element is there's a clear duty yes we have to resolve doesn't it in the first instance have to be a clear duty and that's a good point roger and that's why that's why you didn't argue it to be and because you're right mandamus does involve a clear duty in the public official to  authority to grant though is your argument on the clear duty is that the person reviewing your review board has absolutely no authority to do this as no authority to impose this on sex offenders yes and moreover even if there were statutory authority still if it's unconstitutional the prisoner review board has a clear duty to comply with the constitution