Opinion
No. 1-12-0098
03-22-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BURTON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 11 CR 1356
Honorable
Raymond Myles,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lampkin and Justice Reyes concurred in the judgment.
ORDER
¶ 1 Held: Where defendant was convicted of a Class 1 felony but, as a result of his criminal history, was required to be sentenced as a Class X offender, the trial court improperly sentenced defendant to serve a two-year mandatory supervised release term, instead of a three-year term, and we correct the mittimus accordingly. ¶ 2 After a bench trial, defendant James Burton was convicted of possession of a controlled substance with intent to deliver. 720 ILCS 570/401(a)(1) (West 2010). After hearing factors in mitigation and aggravation, the trial court sentenced defendant to six years in the Illinois Department of Corrections (IDOC) and to two years of mandatory supervised release (MSR). However, defendant had been previously convicted of multiple felonies and the recidivism statute mandated that he be sentenced as a Class X offender to a three-year MSR term. 730 ILCS 5/5-4.5-95(b) (West 2010). Despite this statutory requirement, the trial court, in both its oral pronouncement and its written mittimus, sentenced defendant to only a two-year MSR term. Although the trial court entered a two-year MSR term, a three-year MSR term was entered in the IDOC record. ¶ 3 On this direct appeal, defendant asks this court to order IDOC to discharge defendant after serving the two-year MSR term that was ordered by the trial court. For the following reasons, we affirm defendant's sentence as a Class X offender, and find that the trial court's imposition of a two-year MSR term is void, and correct the mittimus to reflect a three-year MSR term.
¶ 4 BACKGROUND
¶ 5 Defendant was charged by information with one count of possession of controlled substance with intent to deliver. After a bench trial, defendant was convicted of possession of a controlled substance with intent to deliver, a Class 1 felony. Defendant committed the offense on December 20, 2010. At the time of the commission, the Unified Code of Corrections required defendants convicted of a Class 1 or Class 2 felony, after having been previously convicted of two Class 2 or greater felonies, to be sentenced as Class X offenders. 730 ILCS 5/5-4.5-95(b) (West 2010). Defendant was previously convicted of multiple felonies, and was therefore sentenced as a Class X offender on November 3, 2011. As a result, the trial court sentenced defendant to six years in IDOC. ¶ 6 However, the trial court, in both its oral pronouncement and its written mittimus, sentenced defendant to only a two-year MSR term, which was the MSR term for a Class 1 offender. 730 ILCS 5/5-8-1(d)(2) (West 2010). During the sentencing hearing, the State asked the trial court: "he is being sentenced as a Class X right?" The trial court responded: "Right, being sentenced as Class X because of his background. A Class 1, but being sentenced as a Class X offender." It is thus clear from the transcript that the trial court intended to sentence defendant as a Class X offender. ¶ 7 However, a three-year MSR term was entered on the IDOC record. According to the IDOC record, defendant is to be paroled on December 13, 2013, and discharged from MSR three years later, on December 13, 2016. Defendant filed this timely appeal.
¶ 8 ANALYSIS
¶ 9 Defendant has raised only one issue on appeal, asserting that because the IDOC record reflects a different MSR term than the term ordered by the trial court, this court should order IDOC to discharge him after serving only two years rather than three years, as the IDOC record reflects. Defendant argues that because "[t]he oral pronouncement of the judge is the judgment of the court, and the written order is evidence of that judgment[,] *** [and] there is no conflict between the two," he should have to serve only two years of MSR, instead of three. The State claims that defendant was sentenced as a Class X offender and, thus, was eligible only for a three-year MSR term, as required by statute. 730 ILCS 5/5-8-1(d)(1) (West 2010). The State asks us to find that the MSR portion of the sentence was void because the trial court had no authority to impose any term other than what was mandated by the statute. We affirm defendant's sentence as a Class X offender, and find that the trial court's imposition of a two-year MSR term is void, and order the mittimus corrected to reflect a three-year MSR term for the following reasons.
¶ 10 I. Standard of Review
¶ 11 At issue in this case are (1) whether the MSR portion of the sentence was void when the trial court properly found defendant to be sentenced as a Class X offender but imposed an MSR term which violated a mandatory sentencing provision; and (2) whether this court should order IDOC to follow the trial court's pronouncement if the MSR portion of the sentence was void. ¶ 12 To determine whether or not a sentence was void, we must examine the relevant statutes as they existed when defendant committed the underlying offense, which requires a de novo review. People v. Delvillar, 235 Ill. 2d 507, 517 (2009). De novo consideration means we perform the same analysis that a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 13 II. Proper MSR Term
¶ 14 When resolving the issue of whether the trial court's imposition of a two-year MSR term was void, we must interpret the relevant statute that was written at the time of defendant's underlying offense to determine whether the trial court has the authority to impose a two-year MSR term on a defendant who is to be sentenced as a Class X offender. ¶ 15 When defendant committed the underlying offense, possession of between 1 and 15 grams of heroin with intent to deliver was a Class 1 felony. 720 ILCS 570/401(c)(1) (West 2010). He had also been convicted of multiple prior felonies. At the time defendant committed the offense, the Unified Code of Corrections required that someone of defendant's age and criminal history be "sentenced as a Class X offender." 730 ILCS 5/5-4.5-95(b) (West 2010). The Illinois Appellate Court has, on multiple occasions, interpreted this subsection to require that defendants sentenced as Class X offenders must receive the entire sentence that an offender convicted of a Class X offense would receive. People v. McKinney, 399 Ill. App. 3d 77, 80-81 (2010); People v. Lee, 397 Ill. App. 3d. 1067, 1073 (2010); People v. Watkins, 387 Ill. App. 3d 764, 766-77 (2009); People v. Smart, 311 Ill. App. 3d 415, 417-18 (2000); People v. Anderson, 272 Ill. App. 3d 537, 541 (1995). The MSR term is treated as part of an offender's sentence. McKinney, 399 Ill. App. 3d at 81; Lee, 397 Ill. App. 3d at 1073. Therefore, when an offender is convicted of a Class 1 felony, if the offender is to be sentenced as a Class X offender pursuant to section 5-4.5-95, the offender must receive the Class X MSR term. McKinney, 399 Ill. App. 3d at 81. ¶ 16 At the time that defendant committed the underline felony, the Uniform Code of Corrections imposed an MSR term of three years on offenders sentenced as Class X offenders. 730 ILCS 5/5-8-1(d)(1) (West 2010). Thus, when defendant was sentenced as a Class X offender pursuant to section 5-4.5-95, a three-year MSR term was mandated by the statute.
¶ 17 III. Void Portion of the Order
¶ 18 The appropriate three-year MSR term was accurately entered on the IDOC record. Defendant argues that, since both the oral pronouncement by the trial court and the written mittimus refer to a two-year MSR term, that sentence must be followed. Defendant is correct in asserting that the oral pronouncement of the judge is the judgment of the court, and the written order is evidence of that judgment (People v. Jones, 376 Ill. App. 3d 372, 395 (2007)), and that, in the case at bar, there is no conflict between the two. However, even though a reviewing court is normally without power to increase a sentence on appeal (Ill. S. Ct. R. 615(b)(1) (eff. Aug. 27, 1999)), there is an exception to this rule when the sentencing order entered by the trial court is void. ¶ 19 A sentence that does not conform to a statutory requirement is void. People v. Arna, 168 Ill. 2d 107, 113 (1995). On the other hand, a sentence order that is entered because of a mistake of law or fact is merely voidable, and that error can be waived. People v. Brown, 225 Ill. 2d 188, 205 (2007). As discussed above, when the trial court properly decided that defendant should be sentenced as a Class X offender, the trial court's imposition of a two-year MSR term did not conform to the mandatory sentencing provision of the statute (730 ILCS 5/5-8-1(d)(1) (West 2010)). Therefore, the two-year MSR term imposed by the trial court was void, not merely voidable. People v. Arna, 168 Ill. 2d 107, 113 (1995).
¶ 20 IV. Authority to Correct Mittimus
¶ 21 When an order is void, a reviewing court may consider the order at any time (People v. Havey, 196 Ill. 2d 444, 448 (2001)), and the void order can be corrected at any time. Arna, 168 Ill. 2d at 113. Therefore, we exercise our authority to correct the MSR portion of the mittimus. ¶ 22 This court has the authority to order corrections to the mittimus pursuant to Illinois Supreme Court Rule 615(b)(1) (eff. Aug. 27, 1999). See also People v. Williams, 368 Ill. App. 3d 616, 626 (2006) (a mittimus may be amended at any time to correct the record). Accordingly, this court corrects the mittimus by replacing the two-year MSR term as pronounced by the trial judge with a three-year term as mandated by the statute.
¶ 23 CONCLUSION
¶ 24 For the forgoing reasons, we find that the MSR portion of the sentence imposed by the trial court is void, and that this court has the authority to order the mittimus corrected. We affirm defendant's sentence as a Class X offender, and order the mittimus corrected to reflect a three-year MSR term. ¶ 25 Affirmed; mittimus corrected.