## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Mun oz , 2011 IL App (3d) 100193

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. L IZ ARRO MUNOZ , Def endant- Appellant.

District & N o. Third District Docke t No. 3-10-0193

Filed Dec ember 19, 2011

Held (Note : Thi s syl lab us
con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) On appea l from th e co nviction and sentenc e imposed on defe ndant for criminal sexual assault, the DNA analy sis fee was vaca ted on the ground that defe ndant was al re ady in the DNA databa se as the result of a prior

case , and the indetermin at e term of mandatory supervised rele ase imposed by

the Depa rtment of Correc tions wa s vacated as void, sinc e it is the trial court’s duty , not the depar tment’s, to sentence defe ndant to a term of MSR within th e s t at u t ory guidelines, and on rema nd, the trial

co u rt was directed to sentenc e defenda nt to a term of MS R as provided by section 5-8-1( d)(4) of the Unified Code of Corre ctions and enter a
corr ecte d sentenc ing or der.

Dec ision Under Review Appea l from the Circuit Court of Peoria County , No. 07-CF- 1489; the Hon. J ames E. Shadid, Judge, pr esiding

.

J udg ment Affir med in part a

nd vacated in part; ca

use re manded with dire ctions.Counsel on

Appea l J ean Park, of State Appellat e Def ender ’s Offic e, of Chicag o, for appellant.

J err y Br ady , State’s Attorney , of Peoria (Ter ry A. Mertel and Dawn D. Duffy , bot h of State’s Attorney s Appellate Prosecutor’ s Offic e, of counsel), f

or the People.

Panel J USTI CE LYTTON de livered thejudgme nt of the cour t, with opinion. Presiding J ustice Carter and J ustice Wright concur red in t h e j udg ment and opinion.

OP INION

¶ 1 Def

endant L izarro Munoz was convicted of crimi n al s ex u al assault (720 I L CS 5/ 12- 13(a) (1) (West 2006)) and sentenc ed to 17 year s in prison plus 2 year s of mandatory supervised rele ase (MSR). On ap p ea l , he argues that (1) the Depa rtment of Correc tions’ (DOC) rec ords should be corr ecte d to comply with the tri al court’s sentenc e, and (2) the DNA testing and $200 analy sis fee should be vacated. We aff irm in part, vacate in part, and

rema nd with directions. ¶ 2 Def

endant pled guilty to criminal sexual assault and ag grava ted robber y

. In exchang e for defe ndant’s plea, the State agree d to dismiss the ag gravat ed robber y charg e and sug g est a sentenc ing cap of 17 year s in prison and 2 year s of MSR. Following the State’s prese ntation of the fac tual basis for the plea, the trial court sente nced de fenda nt to the agree d terms and order ed defe ndant to submit to DNA testing and pay an analysis fee

. The trial court’s written sentenc ing judgme nt ref

lected defe ndant’s sentenc e of 17 year s’ imprisonment and a 2-year term of MSR. After sen t en cing, the Depa rtment of Correc tions inmate rec ords listed defe ndant’s MSR terms as “3 Yr s to L ife-T o BeDeter mined.”

¶ 3 I . Indeter minate Ter

m of MSR I mposed by

DOC ¶ 4 A ¶ 5 Def

endant claims that the DOC lacke d the authority to impose an indeterminate term of MSR of three year s to life when the trial court sente nced him to two year s of MSR. ¶ 6 The imposit ion of MSR is statutori l y re qu ired. See 730 I L CS 5/5-8-1(d) (West 2006). When construing the meaning of a statute, the primary objective of this court is to asce rtain and g ive eff

ect to the intent of the leg islature. Southern Illinoisan v. Illinois Departme nt of Public Health , 218 I ll. 2d 390 (2006 ). T hat intent is best deter mined by examining the languag e of the statute itself; wher e the languag e is clea r and unambiguous it must be g iven

-2-eff ect. Orlak v. Loyola Univ ersity Health System , 228 I ll. 2d 1 (2007). A statute should be

rea d as a whole and construed so as to g ive eff ect to ever y word, clause and sentenc e. People

ex re l. Department of Corrections v. Hawkins , 2011 I L 110792. It should not be rea d so as to rende r any part superf

luous or m ea n ingle ss. Hawkins , 2011 I L 110792, ¶ 23. Statutory construction is a question of law which we revie w de novo

. People v. Alcozer , 241 I ll. 2d 248 (2011). ¶ 7 Under the Unified Code of Correc tions (Code) (730 I L CS 5/1-1-1 et seq. (West 2006) ),

a sentenc e is define d as the “disposition imposed by the court on a convicted defe ndant.” 730 I L CS 5/5-1-19 (West 2006). The pronounce ment of a sentenc e is the judici al ac t t h at confor ms t o th e j u d gm ent of the court. People v. Allen , 71 I ll. 2d 378 (1978). A sentenc e imposed by the court in a criminal case must be authorized by law. People v. Majer , 131 I ll. App. 3d 80 (1985). The dispositi ons available to courts include probation, cond i t ional discharg e and a

term of imprisonment. 730 I L CS 5/ 5-5-3 ( West 2006). ¶ 8 Section 5-8-1( d) of the Code states that “eve ry sentenc e shall include as though written there in a term [of MSR] in addition to the term of imprisonment. ” 730 I L CS 5/5-8-1(d) (West 2006); see also People v. W hitfield , 217 I ll. 2d 177 (2005) (MSR is part of a defe ndant’s sentenc e). The MSR term for the offe nse of criminal sexual assault “shall rang e from a minimum of 3 year s to a max im u m o f t h e n at u ral life of the defendant.” 730 I L CS 5/5-8-1(d) (4) ( West 2006). ¶ 9 T h e C o d e also provides the DOC, through the Prisoner Review Boa rd, the ability

t o terminate a term of MSR early

. 730 I L CS 5/3-3-8 (West 2006). Article 3 of the Code g overns the Depa rtment of Correc tions and addre sses the power s and duties of the Prisoner Review Boa rd. 730 I L CS 5/3-1-1 et seq. (West 2006). Under section 3-3-8(b), the Prisoner Review Bo ar d may enter an order rele asing a defe ndant from MSR when it deter mines “that h e i s likely to rema in at liberty without committing another offe nse.” 730 I L CS 5/3-3-8(b) (West 2 0 0 6). The Prisoner Review Boa rd is also authorized to set conditions for parole an d mandatory supervised rele ase imposed under section 5- 8

- 1 ( d) o f th e Code. 730 I L CS 5/3-3-7, 3-14-2.5 (West 2006). Howeve r, artic l e 3 co ntains no languag e that g ives the board the power to impose a term of MSR require d under se ction 5-8-1( d). ¶ 10 Def

endant maintains that, under the plain languag e of these statutes, the power to impose an MSR term is ex clusively the func tion of the trial cour t. We agree

. ¶ 11 Construing the provisions of the Code as a whole, the trial court possesses the exclusive authority to sentenc e a defe ndant. Although the C o d e au t h o ri zes the DOC to make final deter minations i n v o l v i n g the amount of time a defe ndant actua lly spends under MSR, the grant of authority to impose M S R is located within the s ection of the C ode addressing the sentenc ing power of the trial court. See 730 I L CS 5/5-8-1 (West 2006)

. Thus, the structure of the statute demonstrates that the leg islature intended to g ive the trial court sole authority to impose a term of MS R as part of a defe ndant’s sentence. S ee 7 30 I L CS 5/5-1-19 (W est 2006); People v . Rinehart , 406 I ll. App. 3d 272 (2010). ¶ 12 In this case , the DOC imposed a term of MSR under section 5-8-1( d)(4) of the Code. 730 I L CS 5/5-8-1(d) (4) (West 2006). Ho we v er, it is the trial court’s duty , not the DOC’s, to sentenc e a de fenda

nt to a term of MSR within the s tatutory guidelines. 730 I L CS 5/ 5-1-19

-3-(West 2006); Rinehart , 406 I ll. App. 3d at 281. As a result, defe ndant’s MSR term of three

year s to natura l life, as imposed by the DOC, is void. S ee People v. Thompson , 209 I ll. 2d 19 (2004) ( a sente nce not a uthorized by

statute is void).

¶ 13 B ¶ 14 Def

endant requests that we direc t the DOC to comply with the t ri al court’s se ntencing order and reinstate his MSR term of two year s. To d o s o , howeve r, would be to impose a term of MSR that is void for lack of statutory authority

. See 730 I L CS 5/5-8-1( d)(4) (West 2006) (for the offe nse of criminal sexual assault, term of MSR shall rang e from a minimum of three year s to a maxi mum of natura l life); People v.Thompson , 209 I ll. 2d 19 (2004). We there for e v ac at e th e term of MSR imposed by the DOC and remand t o the trial court with direc tions to i mpose MSR as provided under se ction 5-8-1( d)(4) of the Code.

¶ 15 I I . DNA Ana ly sis Fee ¶ 16 Def

endant also claims that the trial court exceede d its statutory authority by ordering him to pay a DNAfee beca

use he submitted a DNA sample a nd paid the fe e in a prior ca se. ¶ 17 This issue was rece ntly addre ssed by our supre me cour

t in People v . Marshall , 242 I ll. 2d 285 (2011). In that case , the court held that section 5-4-3 of the Code (730 I L CS 5/5-4-3 (West 2006)) authorizes a trial court to order the taking , analy sis and pay ment of the analy sis fee of a qualifying offende r’s DNA only where the defenda nt is not curr ently reg istered in the DNA databa se. Marshall , 242 I ll. 2d at 303. In this case , the State conce des that defe ndant’s DNA is alre ady on file. We there fore vacat e that portion of the court’s order requiringadditional testing a nd ordering de fenda

nt to pay the $200 DNA a

naly sis fee.

¶ 18 I I I . Conclusion ¶ 19 We vacate the indeterminate term of MSR imposed by the DOC, vaca te the $200 DNA analy sis fee , and otherwi s e af fi rm the trial court’s judgme nt. On rema nd, the trial court is direc ted t o sentenc e defenda nt t o a term of MSR as provided by section 5-8-1(d)(4) of t he Code and en t er a correcte d sentenc ing order

. See 730 I L CS 5/5-8-1(d) (4) (West 2006). Acc ording ly , the judgme nt of the circ uit court of Wil l County is aff irmed in part and vacated in part, and the cause is remande d with directions.

¶ 20 Affir

med in part a

nd vacated in part; ca

use re manded with dire ctions.

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