Faheem-El v. Klincar

• Decision Date: 20 July 1988
• Docket Number: P,FAHEEM-E,No. 66199,66199
• Citation: 527 N.E.2d 307,123 Ill.2d 291,122 Ill.Dec. 809
• Parties: , 122 Ill.Dec. 809 Kareemetitioner, v. Paul KLINCAR, Chairman, Prisoner Review Board, et al., Respondents.
• Court: Illinois Supreme Court

Page 307

527 N.E.2d 307

123 Ill.2d 291, 122 Ill.Dec. 809

Kareem FAHEEM-EL, Petitioner, v. Paul KLINCAR, Chairman, Prisoner Review Board, et al., Respondents.

No. 66199.

Supreme Court of Illinois.

July 20, 1988.

Neil F. Hartigan, Atty. Gen., Shawn Denney, Sol. Gen., Terence Madsen, Nathan P. Maddox, Asst. Attys. Gen., Springfield, for respondents.

Thomas J. Bamonte, Sachnoff Weaver & Rubenstein, Ltd., Chicago, for petitioner.

Chief Justice THOMAS J. MORAN delivered the opinion of the court:

Petitioner, Kareem Faheem-El, also known as Lawrence Griffin, filed in this court an original petition for a writ of habeas corpus seeking his release from the Cook County jail. The petition is directed against the chairman of the Prisoner Review Board, the Director of Corrections and the sheriff of Cook County (collectively, respondents). Petitioner contends that his current imprisonment pursuant to a parole revocation order of the Prisoner Review Board (Board) is unlawful and that a writ of habeas corpus should issue for his discharge from custody.

This case presents the question whether the length of parole for those prisoners sentenced between January 1, 1973, and February 1, 1978, is strictly limited to the length of the "parole term" as set forth in section 5-8-1(d) (Ill.Rev.Stat.1979, ch. 38, par. 1005-8-1(d)) of the Unified Code of Corrections (Code of Corrections) (Ill.Rev.Stat.1973, ch. 38, par. 1001-1-1 et seq.).

The relevant facts set forth in the petition for a writ of habeas corpus are admitted by respondents. In 1973, petitioner was convicted of murder and sentenced to an indeterminate term of 30 to 90 years' imprisonment. Ten years later, on October 5, 1983, petitioner was paroled from the Stateville Correctional Center.

On January 23, 1984, petitioner was arrested and charged with a parole violation. However, the underlying criminal charges were dropped and at the final parole revocation hearing on February 5, 1985, petitioner was continued on parole.

On April 5, 1987, approximately 3 1/2 years after first being paroled, petitioner was arrested and charged with delivering $30 worth of cocaine. A judge found petitioner eligible for bail. Petitioner claims he was, and has been, ready, willing and able to post the $1,500 cash bond necessary to secure his release.

Petitioner's release was prevented, however, when respondents issued a parole violator warrant against petitioner soon after his arrest. On October 9, 1987, the Board held a final parole revocation hearing. The Board found that plaintiff had violated a condition of his parole on April 5, 1987, and ordered him incarcerated as a parole violator. Petitioner is currently imprisoned in the Cook County jail pursuant to the Board's parole revocation order.

This court is authorized by the 1970 Illinois Constitution to exercise original jurisdiction in cases relating to habeas corpus (Ill. Const.1970, art. VI, § 4(a)). (See also 107 Ill.2d R. 381; Hughes v. Kiley (1977), 67 Ill.2d 261, 266, 10 Ill.Dec. 247, 367 N.E.2d 700.) Habeas corpus provides relief only on the grounds specified in section 10-124 of the Code of Civil Procedure (Ill.Rev.Stat.1985, ch. 110, par. 10-124). (People v. Warr (1973), 54 Ill.2d 487, 491, 298 N.E.2d 164 (construing the predecessor of section 10-124 (Ill.Rev.Stat.1971, ch. 65, par. 22)).) Section 10-124 provides, among other things, that, if it appears that the prisoner is in custody by virtue of process from any court legally constituted, he may be discharged even though the original imprisonment was lawful when "by some act, omission or event which has subsequently taken place, the party has become entitled to his discharge" (Ill.Rev.Stat.1985, ch. 110, par. 10-124(2)). Under this provision, a prisoner who has satisfied the judgment under which he is confined may invoke the writ of habeas corpus to obtain his release from imprisonment. (People ex rel. Titzel v. Hill (1931), 344 Ill. 246, 251, 176 N.E. 360.) On the other hand, habeas corpus does not lie if the person is in custody by virtue of a final judgment of any circuit court, or of any proceeding for the enforcement of such judgment, unless the time during which such party may be legally detained has expired. (Ill.Rev.Stat.1985, ch. 110, par. 10-123.) Therefore, in this case, only if petitioner may no longer be legally detained under the sentence of imprisonment imposed against him in 1973 should a writ of habeas corpus issue for his discharge from custody.

Petitioner was paroled on October 5, 1983, after serving 10 years of a 30- to 90-year term of imprisonment. Section 3-3-8 provides that "[t]he length of parole * * * is set out in Section 5-8-1 unless parole is sooner terminated." Ill.Rev.Stat.1973, ch. 38, par. 1003-3-8.) Section 5-8-1 in turn dictates the sentence of imprisonment for a felony and provides in relevant part:

"(a) A sentence of imprisonment for a felony shall be an indeterminate sentence set by the court under this Section.

(b) The maximum term shall be set according to the following limitations:

(1) for murder, the maximum term shall be any term in excess of 14 years;

* * *

* * *

(c) The minimum term shall be set according to the following limitations:

(1) for murder, the minimum term shall be 14 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.

* * *

* * *

(e) Every indeterminate sentence shall include as though written therein a parole term in addition to the term of imprisonment. Subject to earlier termination under section 3-3-8, the parole term shall be as follows:

(1) for murder * * *, 5 years." (Ill.Rev.Stat.1973, ch. 38, par. 1005-8-1.)

In 1978, the legislature amended, among other things, subsection (e) (which became subsection (d)) and reduced the parole term for murder from five years to three years. (Ill.Rev.Stat.1979, ch. 38, par. 1005-8-1(d).). The legislature expressed a clear intent to apply the reduced parole term to those prisoners sentenced prior to, but paroled after, the effective date of the amendment. ("For those sentenced under the law in effect prior to this amendatory Act of 1977," the parole term shall be three years. (Ill.Rev.Stat.1979, ch. 38, par. 1005-8-1(d)).) (All references to section 5-8-1(d) herein are to the 1978 amendment as applied retroactively to petitioner; the applicable law is otherwise that in effect at the time of sentence.) Such a retroactive application of conditions of parole is valid. (People ex rel. Weaver v. Longo (1974), 57 Ill.2d 67, 72, 309 N.E.2d 581.) Therefore, petitioner's indeterminate sentence includes as though written therein a "parole term" of three years in addition to his term of imprisonment.

Petitioner asserts that his parole term began when he was paroled on October 5, 1983, and that under section 5-8-1(d), it ended three years later on October 5, 1986. According to petitioner, the legislature has expressly limited the Board's parole revocation powers to the duration of the three-year parole term. Petitioner contends that once he completed his parole term on October 5, 1986, he was no longer in respondent's custody and consequently respondents had no authority to revoke his parole after he was arrested on April 5, 1987. He concludes that his current imprisonment is unlawful and that he should be free on bail pending trial on the new cocaine charge.

Respondents answer that the three-year parole term in section 5-8-1(d) does not begin to run until expiration of the maximum term to which the prisoner was sentenced. According to respondents, the language of section 5-8-1(d) indicates that petitioner is subject to the parole term in addition to the maximum term of imprisonment. Historically, respondents point out, parole has been simply an alternative method by which a prisoner serves his sentence, and consequently admission to parole does not entitle a prisoner to discharge. Instead, a parolee, although not confined in prison, remains at all times in the custody of the Department of Corrections until expiration of the sentence. The mandatory parole term under section 5-8-1(d), on the other hand, is distinct from that of parole as an alternative to imprisonment and, according to respondents, was intended by the legislature to enhance, not reduce, the control of the Department over prisoners, especially those prisoners who repeatedly are denied parole and serve the maximum term of imprisonment. Respondents conclude that petitioner remains in the custody of the Department for the maximum term of imprisonment and, in addition, the parole term of section 5-8-1(d). Consequently, under respondents' construction of the statute, petitioner's parole was subject to revocation on April 7, 1987.

In construing statutory provisions, it is axiomatic that the court must ascertain and give effect to the legislative intent. (Page v. Hibbard (1987), 119 Ill.2d 41, 46, 115 Ill.Dec. 544, 518 N.E.2d 69.) Although penal statutes are to be strictly construed in favor of the accused, they must not be so rigidly construed as to defeat the intent of the legislature. (People v. Haywood (1987), 118 Ill.2d 263, 271, 113 Ill.Dec. 236, 515 N.E.2d 45.) In construing statutory provisions, the court should consider not only the language of the statute but also the reason and necessity for the law, the evils to be remedied, and the objects and purposes to be attained. 118 Ill.2d 263, 113 Ill.Dec. 236, 515 N.E.2d 45.

Section 3-3-8 of the Code of Corrections provides that the "length of parole" is "set out in Section 5-8-1." (Ill.Rev.Stat.1973, ch. 38, par. 1003-3-8.) We find special significance in the citation to section 5-8-1 as a whole rather than only to subsection 5-8-1(d). Section 5-8-1 as a whole not only provides for a mandatory parole term but also establishes the minimum and maximum terms of imprisonment for a particular offense. Therefore, the "length of parole" that...