## Illinois Official Reports

Supreme Court

People v. McChriston , 201 4 IL 115310

Caption in Supreme

Court: THE PEOPLE OF THE STATE OF ILLINOIS , Appellee, v. BILLY McCHRISTON, Appellant.

Docket No. 115310

Filed January 24, 2014

Held
( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of
the reader. ) In 2004, statute provided that a term of mandatory supervised release

was aut omatically included in a sentence as a matter of law; and its absence from the written order or the judge ’ s remarks did not mean that the Department of Corrections, when it enforced the term, added to the sentence, thereby violating the separation of power s.

Decision Under

Review Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Thomas J. Difanis, Judge, presiding.

Judgment Affirmed.- 2

- Counsel on Appeal Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy Defender, and Allen H. Andrews, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Springfield, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Julia R. Rietz,
State ’ s Attorney, of Urbana (Michael A. Scodro, Solicitor General, and Michael M. Glick and Stephen M. Soltanzadeh, Assistant Attorneys General, of Chicag o, of counsel), for the People.

Vincent Boggan, of Concerned Inmates of Dixon Correctional Center, of Dixon, amicus curiae

.

Justices CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶ 1 In 2004, defendant, Billy McChriston, was convicted by jury of the unlawful delivery of a controlled substance, a Class 1 felony that carried a mandatory Class X sentence. The trial judge sentenced defendant to 25 years ’ imprisonment. The trial order did not indicate that defendant would also be required to serve a term of mandatory supervised release (MSR)
pursuant to section 5

- 8

- 1(d) of the Unified Code of Corrections ( 730 ILCS 5/5

- 8

- 1(d) (West 2004) ) , nor did the trial judge mention MSR at the sentencing hearing. The appellate court affirmed the conviction and sentencing on direct appeal. No. 4

- 04

- 0770 (2006) (unpublished order under Supreme Court Rule 23)

. ¶ 2 Defendant filed a pro se postconviction petition pursuant to the Post

- Conviction Hearing Act (725 ILCS 5/122

- 1 (West 2008)), raising issues not related to the MSR term. The circuit court dismissed the postconviction petition and the appellate court affirmed ( People v.
McChriston

, No . 4

- 07

- 0720 (2009) (un published order under Supreme Court Rule 23). ¶ 3 Then in 2011, defendant filed a pro se petition for relief from judgment pursuant to section
2

- 1401 of the Code of Civil Procedure (735 ILCS 5/2

- 1401 (West 2010)), arguing that the Illinois Department of Corre ctions (DOC) impermissibly added a three

- year MSR term to his- 3

- 25

- year sentence. The circuit court of Champaign County dismissed defendant ’ s petition for
failure to state a cause of action. 735 ILCS 5/2

- 615 (West 2010). ¶ 4 The appellate court affirmed, reject ing defendant ’ s arguments that the imposition of the
MSR term violated defendant ’ s constitutional rights to due process and the separation of powers clause of the Illinois Constitution of 1970 . The appellate court found that the MSR term attached by operat ion of law and therefore was not unconstitutionally imposed by the
DOC. 2012 IL App (4th) 11031 9

- U

. We granted d efendant ’ s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010). For the reasons that follow, we affirm

.

¶ 5 ANALYSIS ¶ 6 Defendant argues that only the trial court, not the DOC, is empowered to impose a term of MSR, and therefore the addition of the MSR term to defendant ’ s sentence violates the separation of powers clause of the Illinois Constitution and his federal constitutional right to due process. Looking to the plain language of the statute, the State asks this court to affirm the appellate court ’ s conclusion that the sentence imposed by the circuit court included the MSR

term “ as though written therein ” and, therefore, MSR attached as part of the sentence regardless of whether the trial judge wrote MSR into the sentencing order. We review a
dismissal of a section 2

- 1401 petition for failure to state a claim for relief de novo

. People v.

Vincent , 226 Ill . 2d 1, 16 (2007).

¶ 7 A. Separation of Powers ¶ 8 Under the Illinois Constitution, “ [t]he legislative, executive and judicial branches are separate. No Branch shall exercise powers properly belonging to another. ” Ill. Const. 1970, art. II, § 1. Further, “ the power to impose sentence is exclusively a function of the judiciary. ” People v. Phillips , 66 Ill. 2d 412, 415 (1977). Defendant maintains that because the trial court did not reference the mandatory MSR term at the sentencing hearing or in the written sentencing order, the DOC lacks the authority to impose the MSR term upon defendant after he
serves his full 25

- year sentence. ¶ 9 At the time defendant was sentenced, the Unified Code of Corrections (Code) provided
that

, subject to earlier termination, the M SR term for a Class X felony was three years. 730
ILCS 5/5

- 8

- 1(d)(1) (West 2004). Further, the Code 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 impr isonment. ” 730 ILC S 5/5

- 8

- 1(d) (West 2004). ¶ 10 The parties do not dispute as to whether MSR was mandatory in defendant ’ s case. At the time defendant was sentenced, section 5

- 8

- 1(d)(1) required defendant ’ s sentence to include a
three

- year MSR term. The centra l issue in this case is whether defendant ’ s constitutional rights were violated by the imposition of MSR where the trial court did not reference the MSR term at the sentencing hearing or include MSR in the sentencing order. ¶ 11 Defendant maintains that the DO C lacked authority to increase his sentence beyond that imposed by the trial court

, as “ under our form of government an administrative board has no power to change a judicial judgment. ” People v. Montana , 380 Ill. 596, 609 (1942). In support- 4

- of his positio n that the MSR term was added by the DOC, defendant looks to People v. Kerns

, 2012 IL App (3d) 100375, ¶ 18, where the Third District considered similar facts and stated
that “ the DOC imposed a term of MSR under section 5

- 8

- 1(d)(4). ” ¶ 12 In response, the Stat e argues that under the plain language of section 5

- 8

- 1(d), the MSR
term was included in defendant ’ s sentence “ as though written therein, ” even though the MSR term was not written explicitly into the sentence. Therefore, according to the State, the imposit ion of MSR did not increase the trial court ’ s sentencing order, as the MSR term was automatically included in the sentence from the beginning. ¶ 13 This court has previously held that it is within the General Assembly ’ s authority to enact legislation that incl udes a mandatory parole term in a sentence by operation of law. People ex
rel. Scott v. Israel , 66 Ill. 2d 190 (1977). In Scott , two defendants challenged the constitutionality of section 5

- 8

- 1(e), which like section 5

- 8

- 1(d)(1) stated that every sentence

“ shall include as though written therein ” a n MSR term. The defendants each served the sentences imposed by the court, but each violated his parole term after being released from prison. This court upheld the mandatory MSR terms, finding that the DOC had th e power to enforce them. ¶ 14 Furthermore, in People v. Williams , 66 Ill. 2d 179 , 186 (1977), this court stated that “ the legislature has the power to prohibit particular acts as crimes, fix the punishment for the
commission of such crimes and determine the ma nner of executing such punishment. ” The court further found that mandating parole periods falls within this power. Defendant, however, argues that the statute does not authorize the DOC to increase defendant ’ s sentence

, as “ [a] person on parole remains subject to the sentence of commitment to the [DOC] for the period of time specified by the court. ” Id . at 187. ¶ 15 We look first to the plain language of section 5

- 8

- 1(d). “ The fundamental rule of statutory
construction is to ascertain and give effect to the legislature ’ s intent. [ C itation

. ] The best indication of legislative intent is the statutory language , given its plain and ordinary meaning. [ C itation

. ] When the statute contains undefined terms, it is entirely appropriate to employ a
d ictionary to ascertain the plain and ordinary meaning of those terms. [ C itation

. ] Where the language is clear and unambiguous, we will apply the statute without resort to further aids of statutory construction. [ C itation

. ] ” People v. Davison , 233 Ill. 2d 3 0, 40 (2009). ¶ 16 Defendant ’ s position relies on the premise that the MSR term was not included as part of his original sentence because it was not written in the sentence. If under the plain language of the statute, however, the MSR term was included automat ically into the sentence, even if not specifically written, then the DOC did not add onto defendant ’ s sentence by imposing the MSR term, and defendant ’ s separation of powers argument must fail. ¶ 17 The version of the statute applicable at the time of defendan t ’ s sentencing stated that

“ every sentence shall include as though written therein a term in addition to the term of imprisonment. ” 730 ILCS 5/5

- 8

- 1(d) (West 2004). Specifically, we are concerned with the plain and ordinary meaning of the phrase “ every sen tence shall include as though written
therein

. ” Black ’ s Law Dictionary defines “ therein ” to mean “ [i]nside or within that thing; inside or within those things. ” Black ’ s Law Dictionary 1616 (9th ed. 2009). Consequently, the plain language of section 5

- 8

- 1(d) provides that the sentence shall include a period of MSR as- 5

- if it were written within the sentence. Applying this plain meaning to the present case, the sentencing order issued by the trial court included a term of MSR even if the court did not

me ntion the MSR term at the sentencing hearing or in the sentencing order. ¶ 18 As further evidence of this conclusion, we look to the legislative history of section
5

- 8

- 1(d)(1). In 2011, section 5

- 8

- 1(d)(1) was amended and now reads, “ the parole or mandatory su pervised release term shall be written as part of the sentencing order

. ” (Emphasis added.) 730 ILCS 5/5

- 8

- 1(d) (West 2012 ).

“ A subsequent amendment to a statute may be an appropriate source for discerning legislative intent. [Citation.] While an amendator y change in statutory language creates a presumption that it was intended to change the statute as it previously existed, the presumption is not controlling and may be overcome by other considerations. If the circumstances surrounding the amendment indicat e that the legislature intended only to interpret the original statute, the presumption of an intent to change the law is rebutted. [Citations.] Circumstances which may indicate whether a statutory amendment is merely a clarification rather than a substant ive change in the law include ‘ “ whether the enacting body declared that it was clarifying a prior enactment; whether a conflict or ambiguity existed prior to the amendment; and whether the amendment is consistent with a reasonable interpretation of the pr ior enactment and its legislative history. ” ’ ” People v. Jackson , 2011 IL 110615 , ¶ 18 (2011) (quoting K. Miller Construction Co. v.
McGinni s , 238 Ill. 2d 284, 299 (2010) , quoting Middleton v. City of Chicago , 578 F.3d 655, 663

- 64 (7th Cir. 2009)). ¶ 19 The l egislature amended the statute to remove the phrase “ as though written therein ” to require that the MSR term “ shall be written as part of the sentencing order. ” While the plain and ordinary meaning of “ as though written therein ” suggests that the legislatu re intended the mandatory MSR term to apply even if not specifically written in the sentencing order, the amended language requires that the court explicitly write the appl icable MSR term into the
order. ¶ 20 The legislative discussion surrounding this amendme nt provides additional support for the conclusion that the 2004 version of the statute did not require the judge to explicitly write the MSR term into the sentencing order. During the House of Representatives floor debate regarding the 2011 amendment, Repr esentative Cunningham noted the following:

“ Senate Bill 1740 is

... as amended, is an initiative of the [DOC]. Makes a couple of changes to the Corrections Code regarding [MSR] or parole. First, the Bill would *** require judges to enter the specific length of parole that each inmate needs to spend
after their sentence ’ s done. In the actual sentencing order that they issue in court. They ’ re not required to do that right now, creates confusion sometimes at intake for the [DOC], and they have to contact a sente ncing judge as frequently to make sure they enter the right parole information into their record system. ” 97th Ill. Gen. Assem., House Proceedings, May 17, 2011, at 48 (statements of Representative Cunningham). ¶ 21 As noted above, we presume that the legislat ure intended to change the law by enacting the amendment. Here, no circumstances are present that justify overcoming that presumption. Representative Cunningham expressly stated that the amendment would change the- 6

- then

- current law. Therefore we presume tha t a change was intended to be made by removing the phrase “ as though written therein ” and replacing it with “ shall be written as part of the sentencing order. ” Representative Cunningham specified that under the 2004 version of the statute, the judge was “ n ot required ” to include the length of the defendant ’ s MSR term in the sentencing order. The purpose of this amendment was to change that prior rule, to require that the judge specify the MSR term in writing in the sentencing order. If defendant ’ s position were correct, then the legislature did n ot need to make this amendment. ¶ 22 Defendant ’ s reading would also make the phrase “ as though written therein ” superfluous.

“ If possible, the court must give effect to every word, clause, and sentence; it must not read a

statute so as to render any part inoperative, superfluous , or insignificant; and it must not depart
from the statute’ s plain language by reading into it exceptions, limitations, or conditions the legislature did not express. ” People v. Ellis , 199 Ill. 2d 28, 39 (2002). Under defendant ’ s position, the phrase “ as though written therein ” would serve no purpose in the statute. If the judge was required to have written the MSR term in the sentencing order, the phrase “ as though written th erein ” had no operativ e role. ¶ 23 The plain language of section 5

- 8

- 1(d) at the time of defendant ’ s sentencing was unambiguous and provided that the MSR term be automatically included as part of defendant ’ s sentence and the DOC did not add onto defendant ’ s sentence when it enforce d the MSR term. Further tools of statutory interpretation provide additional support for this conclusion, and
defendant ’ s separation of powers argument fails. To the extent that it holds otherwise, Kerns is

o verruled.

¶ 24 B. Due Process ¶ 25 Defendant further maintains that increasing the sentence beyond the trial court ’ s order violates his federal due process rights. 1 Defendant looks first to the United States Supreme
Court ’ s decision in Hill v. United States ex rel. Wampler , 298 U.S. 460 (1936). In Wampler

, the defendant was convicted of attempting to evade payment of income tax and was sentenced by the court to pay a fine and serve 18 months in prison. Id . at 461

- 62. When issuing the commitment, however, the clerk added a provision stating that defendant would remain imprisoned until he paid the required fines. Id . The sentence given orally by the judge did not include this provision. Id

. at 462. ¶ 26 The Court considered whether the provision was void because the clerk, rather than the judge, had inserted it into the commitment. The Court noted first that it is within the judge ’ s discretion to direct that a defendant be imprisoned until the fine is paid, but that imprisonment does not follow automatically upon a showing of default of payment. Id . at 463

- 64. Th e Court
went on to note that “ [t]he choice of pains and penalties, when choice is committed to the

1 Defendant ’ s brief argues that “ [t]he administrative imposition of mandatory supervised release also violates [defendant ’ s] due process rights. ” At oral argument, defendant ’ s counsel clarified his argument to be that any increase from the sentence imposed by the trial court is a violation of due process, regardless of whether the increase was imposed by an administrative agency, such as the DOC, or by operation of law.- 7

- discretion of the court, is part of the judicial function. This being so, it must have expression in the sentence, and the sentence is the judgment. ” Id . at 464. Therefore, the Court found the provision added by the clerk to be void. ¶ 27 In Earley v. Murray , 451 F.3d 71 (2 d Cir. 2006), the Second Circuit Court of Appeals
considered Wampler when deciding a case with facts similar to those in the present case. The
defendant in Earley pleaded guilty to attempted burglary and was sentenced to six years in prison. New York had recently passed a statute im posing a mandatory term of post release supervision that would have applied to the defendant ( “ Each determinate sente nce also includes, as a part thereof, an additional period of post

- release supervision. ” N.Y. Penal Law § 70.45 ( McKinney 2000)), but this term was not mentioned by the court or in the sentencing
order. Earley , 451 F.3d at 73. ¶ 28 While the defendant was serv ing his sentence, the New York Department of Correctional Services added five years of postrelease supervision to his sentence. Id . The court found that the holding in Wampler applied to this case. Id . at 76. The court initially recognized that unlike
in W ampler , New York law mandated that the defendant be sentenced to postrelease supervision, and the judge maintained no discretion. Id . Regardless, the court found that Wampler “ went on to articulate a broader holding: The judgment of the court establishes a
defendant ’ s sentence, and that sentence may not be increased by an administrator ’ s amendment. ” Id

. at 75. Therefore, the Earley court found that under Wampler

, “ [a]ny alteration to that sentence, unless made by a judge in a subs equent proceeding, is of no effect

. ”
Id

. ¶ 29 Defendant looks to Wampler and Earley to argue that his sentence was limited to the
25

- year term announced by the trial court and recorded in the written order. According to defendant only the court retained the authority to increase his sen tence. ¶ 30 In People v. Evans , 2013 IL 113471, the defendant was sentenced to 12 years in prison after being found guilty of aggravated battery with a firearm. After the trial court dismissed the
defendant ’ s first postconviction petition, the defendant sought leave to file a successive postconviction petition alleging that, as in the present case, the trial court did not mention or include in his sentencing order an additional term of MSR. In considering the Second Circuit ’ s decision in Earley , we stated

, “ [D]ecisions of the Second Circuit Court of Appeals construing New York law have no power to enjoin the enforcement of Illinois statutes. Thus, even assuming that Earley was correctly decided, that decision has absolutely no consequence in
Illinois unless a nd until a court of this state endorses its analysis and then applies that analysis
to sectio n 5

- 8

- 1(d)(1), a contingency that has yet to occur. ” Id . ¶ 15. ¶ 31 Additionally, we are not persuaded by the Second Circuit ’ s broad reading of Wampler

. Wampler consid ered a sentencing provision added by the clerk requiring defendant to pay his fines before he would be released from prison. While the court in Wampler had this option at sentencing, it did not include this conditional provision in its sentencing order. Un like Earley or the present case, no statute mandated that the defendant pay his fine prior to being released. Therefore, unlike the court in Wampler , the trial court had no discretionary power in this case. Further, unlike in Wampler , the enforcement of th e mandatory MSR term in this case was not an increase in sentencing, as the MSR term attached automatically as though written into- 8

- defendant ’ s sentence. While the court in Earley decided to read Wampler broadly and apply it to mandatory statutory sentencin g provisions, we are unpersuaded and do not adopt the reasoning from Earley

.

¶ 32 For the reasons stated, t he judgment of the appellate court i s affirmed.

¶ 33 Affirmed.