People v. Jackson , 2023 IL App (5th) 220784-U ( 2023 )

2023 IL App (5th) 220784-UNOTICE
NOTICE
Decision filed 08/21/23. The
This order was filed under
text of this decision may be NO. 5-22-0784
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Randolph County.
)
v. ) No. 19-CF-169
)
CHARLES T. JACKSON, ) Honorable
) Richard A. Brown,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE McHANEY delivered the judgment of the court.
Presiding Justice Boie and Justice Barberis concurred in the judgment.
ORDER
¶1 Held: Where the circuit court properly denied the defendant’s motion for order nunc pro
tunc, and where no argument to the contrary would have merit, appointed appellate
counsel is granted leave to withdraw and the judgment of the circuit court is
affirmed.
¶2 The defendant, Charles T. Jackson, appeals from the circuit court’s order dismissing his
motion for order nunc pro tunc. The defendant had sought a reduction in his term of mandatory
supervised release from 3 years to 1½ years. His appointed attorney on appeal, the Office of the
State Appellate Defender (OSAD), has concluded that this appeal lacks merit, and on that basis it
has filed a motion to withdraw as counsel (see Pennsylvania v. Finley, 481 U.S. 551 (1987)), along
with a memorandum of law in support of that motion. OSAD properly served the defendant with
notice, and this court gave him an opportunity to file a pro se brief, memorandum, or other
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document explaining why OSAD should not be allowed to withdraw as counsel, or why this appeal
has merit, but the defendant failed to respond. Having examined OSAD’s Finley motion, the
supporting memorandum, and the entire record on appeal, this court concludes that this appeal
does indeed lack merit. Accordingly, OSAD is granted leave to withdraw as counsel, and the
judgment of the circuit court is affirmed.
¶3 BACKGROUND
¶4 In July 2019, the defendant was charged by information with one count of possession with
intent to deliver methamphetamine, in violation of section 55(a)(1) of the Methamphetamine
Control and Community Protection Act. See 720 ILCS 646/55(a)(1) (West 2018). The date of the
offense was July 18, 2019. Because the amount of methamphetamine was 15 or more grams but
less than 100 grams, the offense was a Class X felony, subject to a term of 6 to 30 years in prison.
See 720 ILCS 646/55(a)(2)(C) (West 2018). The defendant was also charged with a second count,
also involving methamphetamine. The court appointed counsel for the defendant.
¶5 In August 2019, the defendant, his appointed counsel, and an assistant state’s attorney
appeared before the circuit court. The court was informed that the defendant would plead guilty
to possessing 15 or more grams but less than 100 grams of methamphetamine with the intent to
deliver, in exchange for the State’s moving to dismiss the other methamphetamine count. There
was no agreement as to sentencing. After appropriate admonishments, etc., the defendant entered
his guilty plea, and the court accepted the plea.
¶6 On October 15, 2019, after a hearing, the court sentenced the defendant to imprisonment
for a term of 10 years, to be followed by mandatory supervised release (MSR) for a term of 3
years.
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¶7 No direct appeal followed. In January 2020, the defendant filed a motion to reduce
sentence, which the court denied due to untimeliness and its own loss of jurisdiction. On October
17, 2022, the defendant filed a motion for order nunc pro tunc. He sought an order “correcting the
mittimus” from a term of 3 years MSR to a term of 1.5 years MSR, so as to “comply with the
amendment” to section 5-8-1(d) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d) (West
2022)), which became effective on July 1, 2021.
¶8 Three days later—on October 20, 2022—the circuit court entered a written order denying
the motion on the ground that it had been filed more than 30 days after sentencing, resulting in a
loss of the court’s jurisdiction. In addition, the order stated: “Assuming, arguendo, the Court had
jurisdiction in this matter, the Mittimus prepared indicates the correct MSR term in force at the
time the Defendant was sentenced.”
¶9 From the denial order, the defendant perfected the instant appeal. The circuit court
appointed OSAD as his appellate counsel.
¶ 10 ANALYSIS
¶ 11 This appeal is from the circuit court’s order denying the defendant’s motion for order nunc
pro tunc. The circuit court, in its order disposing of the defendant’s motion, stated in the alternative
(essentially) that even if the defendant’s motion were treated as a motion to amend the mittimus,
the motion would still fail, because the mittimus accurately stated the only MSR term that was
legally permitted on the date of sentencing. When a motion to amend a mittimus is denied, the
denial is reviewed de novo. People v. Johnson, 401 Ill. App. 3d 678. 680 (2010).
¶ 12 The defendant committed his crime, possession with intent to deliver methamphetamine,
on July 18, 2019. On that date, due to the weight of methamphetamine, the crime was a Class X
felony, punishable by imprisonment from 6 to 30 years. 720 ILCS 646/55(a)(2)(C) (West 2018).
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After finishing his term of imprisonment, the defendant was required to serve a term of MSR,
lasting three years. 730 ILCS 5/5-8-1(d)(1) (West 2018). On the date of the defendant’s
sentencing—October 15, 2019—an MSR term of three years remained mandatory. Therefore, the
circuit court was correct that the correct MSR term (three years) was already written in the
mittimus.
¶ 13 The MSR term for the defendant’s crime remained unchanged at three years until July 1,
2021—approximately two years after his crime, and approximately 21 months after his sentencing.
That is when the legislature changed the MSR term for his offense, a cut from 3 years to 18 months.
730 ILCS 5/5-8-1(d)(1.5) (West 2022). The 18-month MSR term applies to anyone who was
“convicted” of a Class X felony (with some exceptions not applicable here) “on or after” July 1,
2021. See 730 ILCS 5/5-8-1(g) (West 2022). Where, as here, the defendant was convicted prior
to July 1, 2021, the 18-month MSR term cannot apply to him. A three-year MSR term is correct
for this defendant, and no amendment to the mittimus is necessary.
¶ 14 CONCLUSION
¶ 15 At the time the defendant was sentenced for his crime, the only MSR term that was
permitted was three years. The subsequent legislative halving of the applicable MSR term did not
apply to the defendant. The mittimus setting an MSR term of three years was correct at the time
it was entered and therefore should not be amended. No argument to the contrary would have
merit. Therefore, OSAD’s Finley motion for leave to withdraw as counsel is granted, and the
judgment of the circuit court of Randolph County is affirmed.
¶ 17 Motion granted; judgment affirmed.
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