Kerry Bryson reviews People v. Holmes, handed down Thursday, August 3. 

Round v. Lamb

By Kerry Bryson, Office of the State Appellate Defender

Petitioner Danny Round brought a complaint for habeas corpus, or, in the alternative, for an order of mandamus. Round’s present incarceration is the result of his serving his mandatory supervised release (MSR) term in custody because an acceptable electronic monitoring host site could not be identified. In the instant proceeding, Round sought immediate release, arguing that the sentencing order in his case did not include the 4-year MSR term on which he is presently being held; that even if that 4-year MSR term applies, it started to run when he completed his term of imprisonment on the count with which it is associated and not when he completed a longer, concurrent term of imprisonment; and that his sentence should have been amended to be no more than seven years total. because that was the maximum term he expected at the time of his plea.

It would be difficult to provide a more clear and succinct summary of the court’s analysis of each of Round’s contentions than that provided by Justice Garman, writing for the Court, at the conclusion of the opinion (¶¶ 28-30):

Despite amendments to the law since People v. McChriston was decided, the Unified Code of Corrections continues to indicate that a term of mandatory supervised release is a mandatory part of a sentence. The circuit court’s failure to comply with the requirement that the MSR term be included in the written sentencing order does not invalidate that part of the sentence.

When, as here, an offender receives multiple, concurrent sentences including terms of MSR, the prison terms are to be served concurrently, and then the MSR terms are to be served concurrently to one another once all prison terms have been completed. In most cases, this results in the offender serving the lengths of the prison and MSR terms of the most serious offense. In this case, however, the lesser felony—violation of an order of protection—carries a longer term of MSR than the more serious felony, resulting in a longer overall time in custody.

Although neither the prosecutor nor the court had the authority to allow petitioner to avoid the longer MSR term, it is clear the court and petitioner believed petitioner was pleading guilty in exchange for a sentence of seven years in custody—five years in prison (the five- and three-year terms served concurrently) and two years of MSR. Enforcing the four-year MSR term extends the sentence to nine years. However, petitioner had an opportunity shortly after beginning to serve his prison sentence to withdraw his guilty plea in light of the error. Petitioner declined to withdraw his guilty plea at that time and has not proven a right to have his sentence reconfigured. The motion for an order of habeas or, in the alternative, for mandamus is denied.

Despite amendments to the law since People v. McChriston was decided, the Unified Code of Corrections continues to indicate that a term of mandatory supervised release is a mandatory part of a sentence. The circuit court’s failure to comply with the requirement that the MSR term be included in the written sentencing order does not invalidate that part of the sentence.

When, as here, an offender receives multiple, concurrent sentences including terms of MSR, the prison terms are to be served concurrently, and then the MSR terms are to be served concurrently to one another once all prison terms have been completed. In most cases, this results in the offender serving the lengths of the prison and MSR terms of the most serious offense. In this case, however, the lesser felony—violation of an order of protection—carries a longer term of MSR than the more serious felony, resulting in a longer overall time in custody.

Although neither the prosecutor nor the court had the authority to allow petitioner to avoid the longer MSR term, it is clear the court and petitioner believed petitioner was pleading guilty in exchange for a sentence of seven years in custody—five years in prison (the five- and three-year terms served concurrently) and two years of MSR. Enforcing the four-year MSR term extends the sentence to nine years. However, petitioner had an opportunity shortly after beginning to serve his prison sentence to withdraw his guilty plea in light of the error. Petitioner declined to withdraw his guilty plea at that time and has not proven a right to have his sentence reconfigured. The motion for an order of habeas or, in the alternative, for mandamus is denied.

This relatively short, unanimous opinion provides a clear statement of the court’s position on the application of the MSR statute as amended in 2009 and 2012 — specifically, that it is directory and no consequence will flow from the failure to comply unless an individual can show that his or her rights were impeded by that failure. Likewise, the court’s analysis of the application of MSR to concurrent terms of imprisonment provides guidance on how individuals should expect to serve such sentences.