The opinion
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
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 mandamus in 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
incarceration and 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
additional legal 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.
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