Christiansen v. Burmila

2022 IL App (5th) 210191-U

• Court: Appellate Court of Illinois
• Decided: December 28, 2022
• Docket: 5-21-0191
• Status: Unpublished

Opinion

NOTICE 2022 IL App (5th) 210191-U NOTICE Decision filed 12/28/22. The This order was filed under text of this decision may be NO. 5-21-0191 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

DENNIS CHRISTIANSEN, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Montgomery County. ) v. ) No. 20-MR-12 ) EDWARD BURMILA, Judge, and ) GLEN AUSTIN, Warden, ) Honorable ) James L. Roberts, Defendants-Appellees. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Welch and Vaughan concurred in the judgment.

ORDER

¶1 Held: Because the Montgomery County circuit court did not have jurisdiction to modify the plaintiff’s original Will County guilty plea, the Montgomery County circuit court’s dismissal is affirmed.

¶2 The plaintiff, Dennis Christiansen, appeals pro se the dismissal of his complaint for

mandamus relief wherein he sought an order compelling the judge who accepted his guilty

plea to modify his sentence and the warden of the facility where he was incarcerated to

comply with said order once modified. We affirm.

1 ¶3 BACKGROUND

¶4 In 2015, the plaintiff pled guilty in the circuit court of Will County to home invasion

and aggravated identity theft in exchange for a sentence of 13 years’ imprisonment for

home invasion and a concurrent sentence of 4 years’ imprisonment for aggravated identity

theft. The Honorable Edward Burmila presided at the guilty plea hearing and imposed the

agreed-upon sentence. No posttrial motion or appeal was filed.

¶5 In January 2020, the plaintiff filed a complaint for mandamus in the circuit court of

Montgomery County naming Judge Burmila and Glen Austin, warden of the Graham

Correctional Center, as defendants. The plaintiff argued that Judge Burmila’s sentencing

order was invalid because it required the plaintiff to serve 85% of his 13-year sentence.

The plaintiff contended that the relevant sentencing statute, section 3-6-3(a)(2)(iii) of the

Unified Code of Corrections (730 ILCS 5/3-6-3(a)(2)(iii) (West 2018)), required a

defendant to serve 85% of a sentence for home invasion only if the circuit court had made

a finding that the victim had suffered great bodily harm, and that the sentencing court made

no such finding. The plaintiff sought an order requiring Judge Burmila to modify the

sentence and requiring Austin to follow the modified sentencing order once it was issued.

¶6 The defendants filed a joint motion to dismiss pursuant to section 2-619 of the Code

of Civil Procedure (735 ILCS 5/2-619 (West 2020)), asserting that the Montgomery County

circuit court had no jurisdiction to order Judge Burmila to modify his sentencing order. At

the hearing on the motion to dismiss, Judge Burmila’s attorney asserted that the

Montgomery County circuit court did not have jurisdiction through a mandamus action

over the judge or the judge’s Will County order, as it is a co-equal court, and that the 2 plaintiff should have filed a direct appeal or sought other postconviction relief from the

sentencing order. The plaintiff agreed, stating that “at this point I am just going to go ahead

and just agree with [opposing counsel].” The circuit court granted the motion to dismiss

as to both defendants, finding that it had no authority to order Judge Burmila to revise his

sentencing order. This timely appeal followed.

¶7 ANALYSIS

¶8 On appeal, the plaintiff argues that his mandamus claim was meritorious because he

is currently serving 85% of his 13-year sentence instead of 50% as required by statute, and

that the Montgomery County circuit court had jurisdiction because the correctional center

in which he was incarcerated is located in Montgomery County and the warden was

enforcing the Will County sentence. We disagree.

¶9 “Mandamus is an extraordinary civil remedy that will be granted to enforce, as a

matter of right, the performance of official nondiscretionary duties by a public officer.”

Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 433 (2007) (citing Lee

v. Findley, 359 Ill. App. 3d 1130, 1133 (2005)). “Mandamus will issue only where the

plaintiff has fulfilled his burden (see Mason v. Snyder, 332 Ill. App. 3d 834, 840 (2002))

to set forth every material fact needed to demonstrate that (1) he has a clear right to the

relief requested, (2) there is a clear duty on the part of the defendant to act, and (3) clear

authority exists in the defendant to comply with an order granting mandamus relief.”

(Emphasis in original.) Id. at 433-34 (citing Baldacchino v. Thompson, 289 Ill. App. 3d

104, 109 (1997)). “Because Illinois is a fact-pleading jurisdiction, a plaintiff is required to

set forth a legally recognized claim and plead facts in support of each element that bring 3 the claim within the cause of action alleged.” Id. at 434 (citing Beahringer v. Page, 204

Ill. 2d 363, 369 (2003)). “To survive a motion to dismiss ***, a complaint must be both

legally and factually sufficient.” Id. “A writ of mandamus is appropriate when used to

compel compliance with mandatory legal standards but not when the act in question

involves the exercise of a public officer’s discretion.” McFatridge v. Madigan, 2013 IL

113676, ¶ 17.

¶ 10 “The grant of a motion to dismiss for a failure to state a cause of action filed

pursuant to section 2-615 or a motion for an involuntary dismissal based on defects or

defenses in the pleadings pursuant to section 2-619 of the Code *** [citation] is subject to

de novo review.” Rodriguez, 376 Ill. App. 3d at 433 (citing White v. DaimlerChrysler

Corp., 368 Ill. App. 3d 278, 282 (2006)). “Where the dismissal was proper as a matter of

law, we may affirm the circuit court’s decision on any basis appearing in the record.” Id.

(citing MKL Pre-Press Electronics/MKL Computer Media Supplies, Inc. v. La Crosse

Litho Supply, LLC, 361 Ill. App. 3d 872, 877 (2005)).

¶ 11 Although mandamus may be used to prevent a judge from acting where he or she

has no authority, or to prevent actions acts beyond the scope of their judicial authority, it

cannot be used to “ ‘correct, direct[,] or control the action of a judge in any matter which

he [or she] has jurisdiction to decide’ ” or “ ‘to circumvent the normal appellate process.’ ”

Oliver v. Kuriakos-Ciesil, 2020 IL App (4th) 190250, ¶ 23 (quoting People ex rel. Foreman

v. Nash, 118 Ill. 2d 90, 96-97 (1987)). The remedy for judicial error is an appeal, and

mandamus “will not lie for its correction if the court has jurisdiction of the subject matter

and the parties.” (Internal quotation marks omitted.) Bremen Community High School 4 District No. 228 v. Cook County Comm’n on Human Rights, 2012 IL App (1st) 112177,

¶ 14.

¶ 12 Here, Judge Burmila had jurisdiction to hear and accept the plaintiff’s guilty plea

and to impose sentence. The Montgomery County circuit court had no authority to order

Judge Burmila to modify his sentencing order, and its dismissal of the plaintiff’s mandamus

action was proper.

¶ 13 CONCLUSION

¶ 14 For the foregoing reason, the judgment of the Montgomery County circuit court is

affirmed.

¶ 15 Affirmed.