Docket No. 105415.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

CHRISTOPHER HOLLY, Plaintiff, v. JORGE MONTES, Chairman

of the Prisoner Review Board for the Illinois Department of

Corrections, Defendant.

Opinion filed May 22, 2008.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,

and Karmeier concurred in the judgment and opinion.

Justice Burke took no part in the decision.

OPINION

The plaintiff, Christopher Holly, filed an original complaint for

mandamus in this court under Supreme Court Rule 381 (188 Ill. 2d

R. 381(c)). He sought an order directing the Prisoner Review Board

(Board) to eliminate the condition of electronic home confinement

(EHC) during his mandatory supervised release (MSR). Prior to oral

argument on his complaint, however, Holly’s EHC was terminated,

and the electronic monitoring device was removed. The Board then

moved to dismiss the complaint as moot. Nonetheless, we will

address the issues raised in the complaint because they fall under the
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public interest exception to the mootness doctrine. We also hold that

the Board properly imposed EHC as one of Holly’s MSR conditions,

precluding a grant of mandamus relief. Therefore, we deny Holly’s

request for mandamus.

BACKGROUND

In 2002, Holly entered a negotiated guilty plea to second degree

murder and concealing a homicide for acts he committed in 1996.

Prior to accepting the plea, the circuit court admonished Holly about

the potential sentences, including the statutorily required term of

MSR. Holly received consecutive prison sentences of 15 and 5 years,

respectively, as well as a term of MSR. In 2007, the Board imposed

EHC as a special condition of his MSR.

Subsequently, Holly filed a complaint for mandamusin this court,

seeking an order directing the Board to enforce the terms of his plea

bargain. According to Holly, EHC could not be included as a

condition of his MSR because: (1) the Board had no statutory

authority to impose EHC as an MSR condition; (2) EHC constituted

unconstitutional imprisonment following the completion of his prison

sentence; and (3) his due process rights were violated because EHC

during his MSR was not part of the bargain he struck when he entered

his negotiated plea.

The Board countered that its authority to impose EHC as a

condition of MSR was necessarily included in the legislature’s broad

grant of discretion. Moreover, the legislature specifically authorized

EHC as a condition of MSR. Finally, the Board claimed that Holly

was not deprived of due process or the benefit of his negotiated plea

when the circuit court failed to admonish him that EHC could be a

condition of his MSR.

Only eight days before oral argument, Holly’s parole agent

removed his electronic monitoring bracelet and informed him that he

was no longer subject to electronic home confinement. The Board

then filed an emergency motion to dismiss Holly’s mandamus action

on mootness grounds. We declined to resolve the mootness issue at

that time.
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ANALYSIS

I. Mootness

Initially, we address the Board’s mootness claim. In both its

emergency motion and oral argument, the Board argued that we

should not consider Holly’s mandamus complaint because we could

no longer grant him effective relief after his release from EHC, the

sole relief requested in the complaint.

Holly maintains, however, that we should address the merits of

his complaint because the Board continued to assert the legality of its

conduct. In addition, he argues that the Board could reimpose EHC

without warning or explanation, just as it had released him from EHC

prior to oral argument, implicating both the recurrence and public

interest exceptions to the mootness doctrine.

When intervening events preclude a reviewing court from

granting effective relief to a complaining party, an appeal is rendered

moot. Felzak v. Hruby, 226 Ill. 2d 382, 391 (2007). Under the

recurrence exception, however, we may review moot controversies

where there is a “reasonable expectation that the same complaining

party would be subject to the same action again and the action

challenged [would] be of such short duration that it [could not] be

fully litigated prior to its cessation.” In re J.T., 221 Ill. 2d 338, 350

(2006). We decline to apply that exception in this case, however,

because the Board’s reimposition of EHC during Holly’s remaining

MSR term is purely speculative and does not create a “reasonable

expectation” that he will be subjected to EHC again.

Nonetheless, this court has also reviewed moot controversies

under the public interest exception. That exception applies where “(1)

the question is of a substantial public nature; (2) there is a need for an

authoritative decision to provide future guidance; and (3) the situation

is likely to recur.” In re J.B., 204 Ill. 2d 382, 387 (2003). Unlike in

the recurrence exception, the public interest exception considers

potential recurrences to any entity, not only the complaining party.

See In re Andrea F., 208 Ill. 2d 148, 157 (2003). Thus, we examine

the applicability of the public interest exception in this case.

By statute, every convicted felon in Illinois, except those serving

natural life or death sentences, is required to serve a term of MSR.

730 ILCS 5/5–8–1(d) (West 2006). Consequently, a large group of
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felons will be on MSR at least once, exposing each to the possibility

that the Board will impose EHC. The vast number of felons

potentially affected by the Board’s allegedly improper imposition of

EHC satisfies both the first and third prongs of the public interest

exception test, requiring a question of a substantial public nature and

a likeliness of recurrence.

In examining the second prong of the test, requiring future

guidance from an authoritative decision, we note the substantial

litigation addressing the imposition of EHC during MSR in both

Illinois and federal courts. See Hadley v. Montes, No. 4–07–0506

(February 26, 2008); Neville v. Walker, 376 Ill. App. 3d 1115, 1119

(2007); Martin v. Walker, No. 04 C 6098 (N.D. Ill. December 1,

2004); Taylor v. Remmers, No. 01 C 5134 (N.D. Ill. April 12, 2002).

The ongoing litigation on EHC warrants an authoritative

determination on the validity of the Board’s imposition of EHC as a

condition of MSR. Having determined that this case falls within the

public interest exception to the mootness doctrine, we turn next to the

merits of Holly’s request for mandamus.

II. The Availability of EHC As a Condition of MSR

“Mandamus is an extraordinary remedy to enforce, as a matter of

right, ‘the performance of official duties by a public officer where no

exercise of discretion on his part is involved.’ [Citation.]” Lewis E.

v. Spagnolo, 186 Ill. 2d 198, 229 (1999). To obtain relief, a plaintiff

must establish a clear right to mandamus. Noyola v. Board of

Education of the City of Chicago, 179 Ill. 2d 121, 133 (1997).

Mandamus is improper where “ ‘its effect is “to substitute the court’s

judgment or discretion for that of the body which is commanded to

act.” ’ [Citation.]” Lewis E., 186 Ill. 2d at 229. Consequently, we will

not grant mandamus relief unless the plaintiff has clearly shown: (1)

an affirmative right to relief; (2) defendant’s duty to act; and (3)

defendant’s authority to comply with the order. Noyola, 179 Ill. 2d at

136 (Bilandic, J., dissenting).

A. The Board’s Statutory Authority

Holly primarily argues that mandamus is required because the

Board had no statutory authority to impose EHC as a condition of his
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MSR. In a related argument, he contends that the Board lacked the

authority to impose EHC at the time of the offenses and that any

reliance on the legislature’s subsequent grant of authority violates the

ex post facto clause of the Constitution (U.S. Const., art. I, §10). After

construing the pertinent statutes, we disagree.

In construing statutes, our primary duty is to give effect to the

intent of the legislature. Collins v. Board of Trustees of Firemen’s

Annuity & Benefit Fund, 155 Ill. 2d 103, 110 (1993). The best

indicator of legislative intent is the plain statutory language when

given its ordinary meaning. Rosewood Care Center, Inc. v.

Caterpillar, Inc., 226 Ill. 2d 559, 567 (2007). We may not add

exceptions, limitations, or conditions to statutes in derogation of their

plain meaning. Town & Country Utilities, Inc. v. Illinois Pollution

Control Board, 225 Ill. 2d 103, 117 (2007).

At all relevant times, section 3–3–7(a) of the Unified Code of

Corrections (Code) provided that the “conditions of parole or

mandatory supervised release shall be such as the Prisoner Review

Board deems necessary to assist the subject in leading a law-abiding

life.” (Emphases added.) 730 ILCS 5/3–3–7(a) (West 2006). We have

held that the legislature’s use of the word “shall” generally indicates

a mandatory requirement. Village of Winfield v. Illinois State Labor

Relations Board, 176 Ill. 2d 54, 64 (1997). Thus, section 3–3–7(a)

grants the Board wide authority to establish any MSR conditions it

deems necessary. This conclusion is further supported by section

3–3–1(a) of the Code, establishing the Board as “the authority for

setting conditions of *** mandatory supervised release under Section

5–8–1(a).” (Emphasis added.) 730 ILCS 5/3–3–1(a)(5) (West 2006).

See also 20 Ill. Adm. Code §1610.80 (“mandatory supervised release

*** [is] subject to rules of conduct prescribed by the Board and any

special conditions deemed appropriate by the Board in individual

cases” (emphasis added)).

Applying the plain statutory language, the Code grants the Board

wide discretion in the setting of MSR conditions, restricted only by

constitutional constraints. In the absence of a constitutional violation,

however, this discretion is sufficiently broad to include the imposition

of EHC as a condition of MSR. Additionally, the quoted portion of

section 3–3–7(a) was in effect both in 1996, when Holly committed

offense, and in 2007, when the Board imposed EHC, contrary to
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Holly’s contention that the Board’s reliance on authority granted only

after he committed the offenses raised ex post facto concerns.

In addition, we note that the legislature’s broad grant of blanket

discretionary authority to the Board in setting MSR is not improper

or unique. We have previously acknowledged the propriety of the

legislature’s similar, broad grant of authority to the Board to award

or deny parole. In Hanrahan v. Williams, 174 Ill. 2d 268 (1996), we

determined that the General Assembly granted the Board such

“complete discretion” over whether or not to grant parole that judicial

review of parole denials was improper. Hanrahan, 174 Ill. 2d at 276

(“We believe that Illinois’ statutory criteria and the Board’s rules do

not provide standards for release on parole sufficiently objective to

allow a court to evaluate the Board’s decision to deny parole. We thus

conclude that the legislature, in drafting the statutory language,

intended the Board to have complete discretion in determining

whether to grant parole when the denial of parole is not mandated by

statute”).

Holly counters that the legislature demonstrated its intention that

EHC only be imposed on certain sex offenders by mandating its

application for only those offenders in section 5–8–1(d)(5) (730 ILCS

5/5–8–1(d)(5) (West 2006)). Because he was not convicted of one of

the listed offenses, he contends that EHC cannot be applied to him.

We reject this argument. The mandatory imposition of EHC as a

MSR condition for one specified class of offenders does not logically

mean that the same condition may not also apply to another class of

offenders. Indeed, section 3–3–7(b) (730 ILCS 5/3–3–7(b) (West

2006)) permits the Board to impose “other conditions” in a term of

MSR in addition to those specifically listed in that section. That

flexibility in the establishment of MSR conditions comports with the

legislature’s broad grant of authority to the Board in setting

conditions “such as the [Board] deems necessary to assist the subject

in leading a law-abiding life” (730 ILCS 5/3–3–7(a) (West 2006)).

Interpreting section 5–8–1(d)(5) as Holly suggests would create

conflicts with the broad powers plainly granted in section 3–3–7(a).

Under the doctrine of in pari materia, we must interpret statutes in

harmony with other statutes on the same subject whenever possible.

People v. McCarty, 223 Ill. 2d 109, 133 (2006). Therefore, we decline

to follow Holly’s construction of these sections because it nullifies
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the broad general powers granted to the Board in sections 3–3–7(a)

and 3–3–7(b) of the Code. Instead, we will harmonize the statutes by

interpreting section 5–8–1(d)(5) to mandate the imposition of EHC

on only the identified sex offenders. In its discretion, the Board may

also choose to impose EHC on other offenders if it deems that

condition “necessary to assist the subject in leading a law-abiding

life” (730 ILCS 5/3–3–7(a) (West 2006)).

Nonetheless, Holly further contends that other portions of section

3–3–7 demonstrate the legislature’s intent to limit EHC to specific

circumstances not present in his case. Again, he misreads the statutes.

For example, Holly asserts that subsection (a)(15) of section

3–3–7 shows that the Board lacks the power to impose EHC. That

subsection merely states, however, that a MSR subject must “follow

any specific instructions provided by the parole agent that are

consistent with furthering conditions set and approved by the

Prisoner Review Board or by law, exclusive of placement on

electronic detention, to achieve the goals and objectives of his ***

mandatory supervised release.” (Emphases added.) 730 ILCS

5/3–3–7(a)(15) (West 2006). Applying its plain language, that

subsection limits only what parole agents may demand of their

supervisees while the agents attempt to enforce the Board’s specified

MSR conditions, not what conditions the Board may initially impose.

Holly also notes the absence of EHC from the list of conditions

suggested in subsection (b), as well as the specification of electronic

monitoring only for sex offenders in subsection (b–1). Subsection (b)

provides that “[t]he Board may in addition to other conditions require

that the subject” comply with a variety of conditions. (Emphasis

added.) 730 ILCS 5/3–3–7(b) (West 2006). Subsection (b–1), in turn,

provides, “[i]n addition to the conditions set forth in subsections (a)

and (b), persons required to register as sex offenders pursuant to the

Sex Offender Registration Act, upon release from the custody of the

Illinois Department of Corrections, may be required by the Board to

comply with the following specific conditions of release,” then lists

those possible conditions. 730 ILCS 5/3–3–7(b–1) (West 2006). In

each case, the language makes the specified MSR conditions

available “in addition” to any other conditions the Board may impose.

See 730 ILCS 5/3–3–7(b), (b–1) (West 2006). Subsections (b) and

(b–1) plainly do not, as Holly claims, exclude EHC from the possible
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conditions the Board may find “necessary to assist the subject” under

section 3–3–7(a) of the Code (730 ILCS 5/3–3–7(a) (West 2006)).

Furthermore, Holly’s argument that subsection (b–1)(6) limits the

use of EHC to sex offenders suffers from the same infirmity as his

interpretation of section 5–8–1(d)(5). Under subsection (b–1)(6), the

Board may require a sex offender to be “electronically monitored for

a minimum of 12 months from the date of release.” 730 ILCS

5/3–3–7(b–1) (West 2006). Holly’s argument improperly assumes

that by requiring the Board to impose a minimum term of EHC on sex

offenders, if that condition is imposed at all, the legislature intended

to preclude the Board’s use of EHC for any other category of

offender. This interpretation does not comport with either logic or the

plain language of the statute. The plain mandate that any sex

offenders placed on EHC remain subject to it for at least 12 months

does not implicitly address the imposition of EHC on other any type

of offenders. Subsection (b–1)(6) says nothing about the Board’s

authority to impose EHC of any duration on other offenders. Indeed,

the legislature’s statutory scheme grants the Board wide discretionary

authority in establishing any MSR conditions it deems “necessary”

(730 ILCS 5/3–3–7(a) (West 2006)) and specifically permits the

Board to impose other, unstated, conditions on offenders (730 ILCS

5/3–3–7(b) (West 2006) (allowing the Board to impose the listed

conditions “in addition to other conditions”)).

Holly’s arguments fundamentally misunderstand the nature of the

MSR conditions listed in subsections 3–3–7(b) and (b–1). They are

merely examples of the conditions within the Board’s wide,

discretionary authority, not a list of all possible options. We agree

with the appellate court’s analysis in Neville v. Walker, 376 Ill. App.

3d 1115, 1119 (2007), rejecting the defendant’s argument that EHC

could not be imposed on him because subsection (b–1) was not in

effect at the time of his crime. In reaching its conclusion, the Neville

court explained:

“In 1999 when defendant committed his crime, was

convicted, and was sentenced, the Board had the discretion to

impose whatever condition it deemed ‘necessary to assist the

subject in leading a law-abiding life.’ The 2005 amendments

merely enumerated conditions that may be applied

specifically to sex offenders serving MSR. Because the
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change in law ‘ “simply explicitly articulated the [Board’s]

broad range of discretion which had always existed,” ’ the

change did not disadvantage defendant.” (Emphasis added.)

Neville, 376 Ill. App. 3d at 1120.

Contrary to Holly’s arguments, the Board has the statutory

authority to impose electronic home confinement as a condition of his

mandatory supervised release. Holly has no right, let alone a clear

right, to demand that the Board release him from EHC during his

MSR because the imposition of that condition was a proper exercise

of the Board’s statutory discretion. Without a clear showing of his

affirmative right to relief, Holly has failed to establish his right to

mandamus relief, and his complaint must fail. Noyola v. Board of

Education of the City of Chicago, 179 Ill. 2d 121, 136 (1997).

B. Holly’s Due Process Rights

Next, we turn to Holly’s argument that the imposition of EHC

violated his due process rights because it subjected him to

incarceration after the completion of his prison sentence. He observes

that this court has previously held that “a convict is imprisoned

without due process of law and entitled to his release where it is made

to appear that he is held in confinement after his sentence has

expired.” People ex rel. Michaels v. Bowen, 367 Ill. 589, 593 (1937).

Initially, we note that Holly’s argument misrepresents his status

while on MSR. At oral argument, Holly claimed that he could either

be incarcerated, or enjoy his “freedom,” but that he could not lawfully

be held in limbo between the two. He argued that he “was entitled to

be released from the custody of the Department of Corrections after

serving his sentence less credit for time served and good time credit.”

Under established law, however, the contrary is true.

While on MSR, Holly is not free. He remains in the custody of the

Department of Corrections and is subject to ongoing supervision.

Section 3–14–2(a) of the Code specifically provides that “[t]he

Department shall retain custody of all persons placed on parole or

mandatory supervised release *** and shall supervise such persons

during their parole or release period in accord with the conditions set

by the Prisoner Review Board.” 730 ILCS 5/3–14–2(a) (West 2006).

Holly also remains under sentence. In section 5–8–1(d) of the
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Code, the legislature established a period of mandatory supervised

release to be included as a part of every sentence of imprisonment.

730 ILCS 5/5–8–1(d) (West 2006) (“[E]very sentence shall include

as though written therein a term in addition to the term of

imprisonment. *** [S]uch term shall be identified as a mandatory

supervised release term”).

Thus, because he was still in the Department of Corrections’

custody and under sentence, Holly was not unconstitutionally subject

to EHC while on MSR. Contrary to his argument, he was not

“entitled to be released from the custody of the Department of

Corrections after serving his sentence.” MSR was a mandatory part

of his sentence. He was not yet entitled to full freedom.

Finally, Holly argues that EHC constitutes an unlawful

continuation of “custody” after the completion of his sentence

because the additional physical confinement “converted [his] MSR

into imprisonment.” This argument confuses the concepts of custody

and imprisonment. A defendant may be in custody and may not be

imprisoned. See People v. Beachem, No. 104976, slip op. at ___

(May 22, 2008).

Here, Holly was still in the custody of the Department of

Corrections and still under sentence while on MSR. He cannot,

however, claim a violation of his due process rights through

“imprisonment” beyond his prison sentence when this court has

already recognized that home confinement is not the equivalent of

incarceration in the penitentiary. As we explained in People v.

Ramos, 138 Ill. 2d 152, 159 (1990):

“Home confinement, though restrictive, differs in several

important respects from confinement in a jail or prison. An

offender who is detained at home is not subject to the

regimentation of penal institutions and, once inside the

residence, enjoys unrestricted freedom of activity, movement,

and association. Furthermore, a defendant confined to his

residence does not suffer the same surveillance and lack of

privacy associated with becoming a member of an

incarcerated population.”

Accord People v. Gonzales, 314 Ill. App. 3d 993 (2000) (following

Ramos). Even though Ramos and Gonzales arose in significantly
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different contexts than the present case, the differences noted between

incarcerationand home confinement are nonetheless applicable. EHC

during MSR does not constitute continued incarceration. Thus, there

is no legal basis for Holly’s claim that he was unlawfully incarcerated

when he was subjected to EHC as a condition of his MSR.

C. The Benefit of the Plea Bargain

Holly’s final argument is that imposing EHC as a condition of his

MSR violated the contract he formed with the State when he entered

his negotiated guilty plea. Relying on People v. Whitfield, 217 Ill. 2d

177 (2005), Holly claims that the fundamental unfairness of the

breach denied him due process. We, however, conclude that Holly

was not denied the benefit of his plea bargain and distinguish

Whitfield.

When Holly entered his plea, the circuit court admonished him

that he would receive both a term of years inside the penitentiary as

well as a term of MSR for each count of conviction. This

admonishment materially distinguishes this case from Whitfield,

where the court never admonished the defendant that he would be

required to serve a term of MSR in addition to his term of

imprisonment. Whitfield, 217 Ill. 2d at 180. Holly cites no case or

additionallegal authority suggesting that the lack of an admonishment

at a defendant’s plea hearing about the specific conditions that will be

imposed during the statutory MSR term is fundamentally unfair and

violative of due process.

Here, the Board did not require Holly to do anything more than

the legislature mandated in section 5–8–1(d) (730 ILCS 5/5–8–1(d)

(West 2006)). He was required to serve his term in prison and his

term on MSR, in accordance of the admonishment he received when

he entered his plea. The absence of a specific admonishment that

EHC could be a potential MSR condition does not change the

essential terms of his plea agreement.

As noted, the legislature granted the Board wide discretion in

determining the necessary MSR conditions. See 730 ILCS 5/3–3–7(a)

(West 2006). When he entered his plea, Holly voluntarily accepted

the possibility that the Board would impose EHC as one of his MSR

conditions. The uncertain nature of the precise MSR conditions that
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would be imposed did not make the plea agreement any less fair or

binding on him. This conclusion is necessarily true because, at the

time of the plea, a defendant cannot claim any reasonable

expectations about the exact conditions that the Board may, in its sole

discretion, ultimately “deem[ ] necessary to assist the subject in

leading a law-abiding life” while on MSR.

In short, Holly has no persuasive basis for his claim that he has

been denied the benefit of his plea bargain or that the imposition of

EHC as a condition of his MSR was fundamentally unfair and a

violation of his due process rights. Thus, we reject those arguments.

CONCLUSION

Accordingly, we hold that the Board has the statutory authority to

impose EHC as a condition of MSR, that the imposition of EHC

during MSR does not constitute imprisonment following the

completion of a defendant’s sentence, and that a defendant need not

be advised of the specific, potential conditions of MSR that may be

imposed to create a valid and binding plea agreement. Thus, Holly

has not clearly established his affirmative right to mandamus relief.

We, therefore, deny his request for mandamus and dismiss his

complaint.

Mandamus denied;

complaint dismissed.

JUSTICE BURKE took no part in the consideration or decision

of this case.