Charles A. Carroll v. Timothy Daugherty

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3332
C HARLES A. C ARROLL,
Petitioner-Appellant,
v.
TIMOTHY DAUGHERTY ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 3862 — Harry D. Leinenweber, Judge.
____________________
A RGUED A UGUST 5, 2014 — DECIDED A UGUST 25, 2014
____________________
Before BAUER , POSNER , and TINDER , Circuit Judges.
POSNER , Circuit Judge. Charles Carroll was convicted in
an Illinois court of aggravated sexual assault and sentenced
to 28 years in prison. That was in 1999 but a decade later he
obtained a measure of postconviction relief and was resen-
tenced, this time to 26 years in prison. Neither the judge at
sentencing nor the official copy of the judgment mentioned
supervised release. (Nor for that matter had the 1999 sen-
tence.) But at some point Carroll learned that a three-year

-- 1 of 8 --

2 No. 12-3332
term of supervised release was required by statute to be part
of his sentence, 730 ILCS 5/5-8-1(d), and that therefore he
would have to undergo it even though it hadn’t been men-
tioned when his sentence was imposed. He filed a petition in
federal district court for habeas corpus, see 28 U.S.C. § 2254,
asking the court to order him excused from having to serve
any period of supervised release. His ground was that to
impose punishment in excess of the sentence delivered by a
judge violates clearly established federal law (a ground for
relief in a habeas corpus proceeding under section 2254). A
term of supervised release is a form of punishment, though
that is not all it is.
Later Carroll indicated that what he really wanted was
not to be excused from having to undergo supervised release
but to have his prison term reduced to 23 years so that the
aggregate amount of time that he spends in prison and on
supervised release will be 26 years. The district judge reject-
ed the suggested deal, holding that Carroll must serve 26
years in prison and then three years on supervised release.
Carroll bases his appeal primarily on two decisions, Hill
v. United States ex rel. Wampler, 298 U.S. 460 (1936), and Earley
v. Murray, 451 F.3d 71 (2d Cir. 2006). Wampler is inapposite,
and Earley misinterprets Wampler. In Wampler the sentencing
court was empowered to order the defendant, who had been
convicted of attempted tax evasion, to remain imprisoned
until he paid the fine specified in the sentence. The judge, as
was his right, declined to order that particular form of pun-
ishment. This meant that under the applicable statute the fi-
ne would be enforced if necessary by seizing and selling the
defendant’s property. The clerk of the court, however, added
to the written judgment that the defendant was to remain in

-- 2 of 8 --

No. 12-3332 3
prison until the fine was paid. As in this case, the defendant
sought federal habeas corpus. The Supreme Court ruled in
his favor, in an opinion by Justice Cardozo which states that
“a warrant of commitment departing in matter of substance
from the judgment back of it is void.” 298 U.S. at 465. Hard
to quarrel with that ruling—the clerk had no authority to
modify the sentence imposed by the judge. As Justice
Cardozo pointed out, “the choice of pains and penalties,
when choice is committed to the discretion of the court, is
part of the judicial function. This being so, it must have ex-
pression in the sentence, and the sentence is the judgment.”
Id. at 464. The choice whether to imprison Wampler until he
paid the fine had been committed to the sentencing judge
and not to the clerk.
In Earley, much as in this case, the sentence had omitted
to order the defendant to undergo the mandatory period of
post-release supervision (New York’s term for supervised
release). The court, while recognizing that this made the case
different from Wampler (it quoted the key qualification:
“when choice is committed to the discretion of the court,” 451
F.3d at 75 (our emphasis)) said that Wampler had gone on “to
articulate a broader holding: The judgment of the court es-
tablishes a defendant’s sentence, and that sentence may not
be increased by an administrator’s amendment.” Id. But the
addition of supervised release in Earley was not “an adminis-
trator’s amendment.” Though recorded by the state’s De-
partment of Corrections, it was not the Department’s
“amendment;” it was a statutory requirement, a form of
minimum mandatory sentence—and not ex post facto either.
And mandatory minimum sentences are not unconstitution-
al.

-- 3 of 8 --

4 No. 12-3332
It’s true, as the court in Earley went on to note, that New
York law provided a mechanism for correcting an illegal
sentence, and the mechanism had not been activated; the
Department of Corrections had simply corrected the judg-
ment. In the present case all that we have found by way of a
record of the judgment’s having been corrected is a notation
in Carroll’s inmate record on the website of the Illinois De-
partment of Corrections that the date on which his sentence
will be discharged has been advanced three years, the result
of adding three years of supervised release to Carroll’s pris-
on sentence. See People v. Bethel, 975 N.E.2d 616, 621 (Ill.
App. 2012). Supervised release in Illinois is sometimes re-
ferred to as “parole,” see Lucas v. Department of Corrections,
967 N.E.2d 832, 833 (Ill. App. 2012), thus underscoring the
fact that a sentence is not discharged (that is, fully served)
until the term of supervised release ends.
There is no suggestion that activating a formal machinery
of judgment correction could have resulted in a different
outcome. In other words there was no room for the exercise
of judicial discretion. Because Illinois’s statute made super-
vised release mandatory, the omission of supervised release
from the judgment did not make the sentence unlawful. The
Supreme Court of Illinois has held that omission of a re-
quired term of supervised release from a sentence is not er-
ror, because the state’s supervised-release statute provides
that “every sentence shall include as though written therein a
term [of supervised release] in addition to the term of im-
prisonment. 730 ILCS 5/5–8–1(d).” People v. McChriston, 4
N.E.3d 29, 33 (Ill. 2014) (emphasis added). This distinguishes
the present case from Earley, for the Second Circuit appears
to have assumed that the only mechanism authorized by the
applicable state law for altering a sentence that had omitted

-- 4 of 8 --

No. 12-3332 5
a statutorily required term of supervised release was to va-
cate the sentence and conduct a new sentencing hearing. 451
F.3d at 76.
The New York statute was indeed less clear than the Illi-
nois statute regarding the mandatory character of post-
release supervision, see N.Y. Penal Law § 70.45(1), and alt-
hough interpreted by the intermediate New York courts to
make such supervision mandatory, see, e.g., People v. White,
744 N.Y.S. 2d 924 (2002), was held shortly after the Earley de-
cision not to dispense with the requirement that such super-
vision could be ordered only in the sentence. Garner v. New
York State Dept. of Correctional Services, 889 N.E.2d 467, 469
(N.Y. 2008) (“the sentencing judge—and only the sentencing
judge—is authorized to pronounce the PRS component of a
defendant’s sentence”). Carroll’s sentence, unlike Earley’s,
was not arguably erroneous. By operation of the Illinois
statutory provision that we just quoted, his sentence includ-
ed the requirement of supervised release even though the
judge had not recited it in court or entered it in the judg-
ment. The Second Circuit in Earley was unwilling to interpret
the New York statute similarly.
And does any of this matter? Suppose the Supreme Court
of Illinois in People v. McChriston was wrong, and the Illinois
statute, or some other source of Illinois law, invalidates any
part of a sentence not intoned by the sentencing judge in
open court. That would be an error of state law, which a fed-
eral court would have no authority to question. But now
suppose that regardless of state law the due process clause
of the Fourteenth Amendment requires the full sentence to
be stated in open court, or in the judgment, or in both (a step
beyond Earley, which held that under New York law the sen-

-- 5 of 8 --

6 No. 12-3332
tence was what the judge said it was and could be altered
only by a resentencing, unlike the law of Illinois). Then there
would be an error. Carroll in fact argues that correcting his
sentence infringed on a “liberty interest” of his that the due
process clause of the Fourteenth Amendment protects
against correction other than by a resentencing. But one
might as well argue that mandatory minimum sentences are
unconstitutional because they usurp the sentencing judge’s
sentencing authority pro tanto. That argument would not fly.
If contrary to what we have been saying there was an er-
ror in Carroll’s sentence, obviously it was harmless. But
suppose, as he intimates, that it’s one of those errors to
which the harmless-error rule does not apply; for he says
that “a writ of habeas corpus must be issued when the gov-
ernment imposes a sentence that is greater than the sentence
imposed by the sentencing court’s judgment” (emphasis
added)). There would still be no basis for altering his sen-
tence. There is an important difference between harmless er-
ror and corrected error, a difference discussed in our recent
opinion in United States v. Lee, No. 13–1976, 2014 WL
3715074, at *3 (7th Cir. July 29, 2014), which draws in turn on
the Supreme Court’s decision in Waller v. Georgia, 467 U.S.
39, 50 (1984). A harmless error is a real error, just a real error
believed not to have affected the judgment. A corrected error
is a real error, but an error that having been corrected ena-
bles a definitive and not merely conjectural conclusion that it
had not affected the judgment. In Lee the error was denying
a criminal defendant’s constitutional right to represent him-
self at a pretrial suppression hearing. The error probably
was harmless, but the denial of the right of self-
representation cannot be forgiven on the ground that it is
harmless—it is one of those errors to which the harmless-

-- 6 of 8 --

No. 12-3332 7
error rule does not apply, in part because the denial of cer-
tain fundamental procedural rights is difficult to assess for
harmlessness. But we said that the error in Lee, though it
could not be wished away as harmless, could be corrected by
the district court’s redoing the suppression hearing, this time
with the defendant allowed to represent himself. There was
no reason as yet to nullify his conviction, as the new hearing
might result in the same outcome as the old—a denial of his
motion to suppress—and then it would be clear that the er-
ror of denying him the right to represent himself had not af-
fected his trial and that his conviction should therefore
stand.
It is the same in this case except that the alleged error has
already been corrected, which dispenses with any need for a
remand as in Lee. The error (if it was an error, rather than
merely a departure from a customary but not a mandatory
procedure) was to omit supervised release from the sen-
tence. It was corrected by adding three years to Carroll’s
predicted discharge date, since as noted earlier his sentence
will not be discharged until he has completed his supervised
release. If we ordered the Illinois court to resentence him, the
new sentence would be identical to the old one except that it
would list the statutory conditions (which are mandatory)
and duration (also mandatory) of supervised release. He
would have gained nothing from a reversal by this court.
We can imagine an argument that due process encom-
passes procedures the violation of which has no tangible
consequences. But the argument would founder on the fact
that the due process clause does not guaranty due process; it
forbids government to deprive a person of life, liberty, or
property without due process. The failure to mention super-

-- 7 of 8 --

8 No. 12-3332
vised release in Carroll’s sentence did not deprive him of
life, liberty, or property. And Carroll isn’t interested in pure-
ly symbolic victories. Remember that he wanted his sentence
changed to 23 years in prison followed by three years of su-
pervised release, thus swapping three years of prison for an
equivalent term of supervised release, a trade obviously ad-
vantageous to a prisoner. He has no constitutional right to
such a trade just because the judge left something out of the
sentence that doesn’t have to be in it in order to authorize
the full measure of punishment that Carroll has been or-
dered to undergo.
A FFIRMED.

-- 8 of 8 --