Frazier v. Flaherty

2021 IL App (1st) 180670-U

• Court: Appellate Court of Illinois
• Decided: July 13, 2021
• Docket: 1-18-0670
• Status: Unpublished

Opinion

2021 IL App (1st) 180670-U No. 1-18-0670 Order filed July 13, 2021 Second Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ LARRY FRAZIER, ) Appeal from the ) Circuit Court of Petitioner-Appellant, ) Cook County. ) v. ) No. 95 CR 32084 ) HONORABLE BRIAN K. FLAHERTY, ) Honorable ) Brian K. Flaherty, Respondent-Appellee. ) Judge, presiding.

JUSTICE COBBS delivered the judgment of the court. Justices Lavin and Pucinski concurred in the judgment.

ORDER

¶1 Held: The circuit court’s sua sponte dismissal of petitioner’s pro se complaint for mandamus was proper and any procedural error was harmless when the complaint contained patently incurable defects.

¶2 Petitioner Larry Frazier appeals from the circuit court’s sua sponte dismissal of his pro se

complaint for mandamus. On appeal, petitioner contends that the circuit court erred by dismissing

the complaint without following the procedures set forth in the mandamus statute contained in the

Code of Civil Procedure of 1963 (Code) (see 735 ILCS 5/14-101 et seq. (West 2016)). We affirm. No. 1-18-0670

¶3 The facts of this case were detailed in our disposition of petitioner’s direct appeal. See

People v. Frazier, No. 1-99-3820 (2001) (unpublished order under Supreme Court Rule 23).

Accordingly, we set forth only those facts necessary for understanding the issues in this appeal.

¶4 Following an incident on September 26, 1995, petitioner was charged with, inter alia, home

invasion and residential burglary. At petitioner’s jury trial, the victim testified that petitioner

entered her apartment, demanded money, and threatened to kill her. At one point, petitioner

obtained the victim’s firearm. Ultimately, the victim and petitioner struggled over the firearm,

resulting in a gunshot wound to petitioner’s chest. During cross-examination, the victim testified

that she was 63 years old on September 26, 1995. The jury found petitioner guilty of home invasion

and residential burglary.

¶5 At sentencing, the trial court noted that petitioner’s criminal background included four

robbery convictions as well as convictions for possession of a stolen motor vehicle and armed

robbery. Moreover, petitioner committed the instant offense within two weeks of his release from

prison. The court merged the residential burglary count into the home invasion count and imposed

an extended term of 60 years in prison on the basis that the victim was over 60 years of age. See

730 ILCS 5/5-3.2(b)(4)(ii) (West 1994).

¶6 Petitioner’s sole argument on direct appeal was that his extended-term sentence was

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), because the victim’s age was

not submitted to the jury as an element of the offense. This court affirmed, finding that any error

was harmless when there was no doubt that the victim was more than 60 years old, and defense

counsel elicited testimony from her that she was 63 years old at the time of the offense. Frazier,

No. 1-99-3820, order at 10-11, 13.

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¶7 Petitioner then filed an unsuccessful petition for relief under the Post-Conviction Hearing

Act (725 ILCS 5/122-1 et seq. (West 2002)). See People v. Frazier, 2011 IL App (1st) 091889-U.

¶8 On March 28, 2014, petitioner filed a pro se motion for leave to file a petition for habeas

corpus relief alleging the same Apprendi violation and that he was not notified of the sentencing

enhancement. On May 1, 2014, the circuit court denied petitioner relief. On appeal, we granted

appointed counsel’s motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987), and

affirmed. See People v. Frazier, 2016 IL App (1st) 141766-U.

¶9 In November 2014, petitioner filed a pro se petition for relief from judgment (735 ILCS

5/2-1401 (West 2014)) and supplemental petition alleging, inter alia, the Apprendi claim raised in

his prior filings. On January 30, 2015, the circuit court denied petitioner relief, noting that the

argument was meritless and repeatedly litigated.

¶ 10 On appeal, petitioner’s appointed counsel filed a motion for leave to withdraw submitting,

in pertinent part, that petitioner’s claims were barred by res judicata. We granted the motion and

affirmed the judgment of the circuit court. See People v. Frazier, 2017 IL App (1st) 150883-U.

¶ 11 On July 7, 2017, petitioner filed a pro se motion for reduction of sentence. On August 25,

2017, the circuit court found that it lacked jurisdiction to consider the motion and denied it.

¶ 12 On November 17, 2017, petitioner filed a pro se document titled “Leave to File Complaint

for Mandamus.” The complaint alleged that the circuit court refused to perform the “ministerial

act” of vacating the void extended-term portion of petitioner’s sentence when it was not imposed

in compliance with the statutory sections codifying the rule from Apprendi. See 725 ILCS 5/111-

3(c-5) (West 2016); 730 ILCS 5/5-8-2(a) (West 2016).

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¶ 13 On December 8, 2017, the circuit court denied respondent relief stating, in pertinent part,

that the issue had been considered multiple times by the circuit court and also the appellate court.

On April 9, 2018, this court granted petitioner leave to file a late notice of appeal.

¶ 14 On appeal, petitioner contends that the circuit court erred by sua sponte dismissing his pro

se complaint for mandamus without giving him the chance to appear and argue his position.

¶ 15 The State replies that the court may sua sponte dismiss a mandamus complaint when the

complaint is frivolous or patently without merit or fails to state a cause of action. The State notes

that because petitioner’s challenge to the extended-term portion of his sentence has been repeatedly

rejected, the court properly determined that the mandamus complaint was frivolous and that no

amendments or proceedings could result in the requested relief.

¶ 16 Mandamus relief is an extraordinary remedy that is used to compel a public officer or body

to perform a nondiscretionary official duty. McFatridge v. Madigan, 2013 IL 113676, ¶ 17. In

order to obtain mandamus relief, the movant must establish that (1) he has a clear right to the relief

requested, (2) the public officer has a clear duty to act, and (3) the public officer has clear authority

to comply with an order granting mandamus relief. Id. Mandamus may not be used to compel a

public officer to perform an act that involves the exercise of discretion. See id. Despite the

extraordinary nature of mandamus relief, mandamus proceedings are governed by the same

pleading rules that apply to other actions. See Noyola v. Board of Education of the City of Chicago,

179 Ill. 2d 121, 133 (1997). The provisions contained in the Code (735 ILCS 5/14-101 et seq.

(West 2016)) provide a procedural framework for mandamus actions, including that once a

complaint has been filed, a summons is issued and the respondent answers or otherwise pleads.

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Further provisions provide for the petitioner’s reply and amendments to the complaint. See 735

ILCS 5/14-104, 14-108, 14-109 (West 2016).

¶ 17 We consider de novo whether the complaint stated a cause of action for mandamus.

Newsome v. Illinois Prison Review Board, 333 Ill. App. 3d 917, 918 (2002) (citing Toombs v. City

of Champaign, 245 Ill. App. 3d 580, 583 (1993)); see also McFatridge, 2013 IL 113676, ¶ 16

(“Our review of the circuit court’s dismissal order is de novo.”).

¶ 18 Based on our review of the record, we conclude that petitioner cannot state a claim for

mandamus. Here, petitioner seeks the vacation of the extended-term portion of his sentence

through what he terms a “ministerial” action of the circuit court. However, petitioner’s challenge

to his sentence has been consistently rejected and he cannot use the extraordinary remedy of

mandamus to compel the circuit court to overlook the doctrine of res judicata to refashion his

sentence.

¶ 19 Owens v. Snyder, 349 Ill. App. 3d 35 (2004), is instructive. In that case, the petitioner filed

a complaint for mandamus alleging that the Department of Corrections would improperly begin

his term of mandatory supervised release (MSR) after his release from prison when it should be

served concurrent to his prison terms; otherwise, he would serve more “time” than contemplated

by his plea agreement. Id. at 38. The circuit court “ ‘summarily’ denied [the] complaint, a sua

sponte dismissal, without prior notice” and before issuance of a summons to the respondent named

in the complaint. Id. On appeal, the petitioner argued that the circuit court lacked the authority to

summarily dismiss the complaint for mandamus under the relevant provisions of the Code and the

order was therefore void. Id. at 38-39.

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¶ 20 The appellate court found that the circuit court acquired both subject matter jurisdiction

and personal jurisdiction over the petitioner when he filed the complaint, and therefore had

jurisdiction to dismiss it. Id. at 40-41. Moreover, “no prejudice *** resulted from the *** court’s

failure to follow the Code strictly” when the petitioner raised no legal argument and cited no

authority for the proposition that his term of MSR should run concurrent to his prison terms. Id. at

44-45. In other words, the claim was frivolous. The court therefore concluded that any possible

procedural defect was harmless:

“If the trial court had followed the Code ***, [the petitioner] would be in the same

position he now is in. Dismissal of his complaint was inevitable. [The petitioner] requests

this court to reverse and remand for further proceedings. Such action would have little

remedial effect, only delaying dismissal. ***.

We agree with the trial court’s conclusion that [the petitioner] did not demonstrate

anything close to a clear, affirmative right to relief, the sine qua non for mandamus. There

was nothing *** to make it any better. *** This judge apparently saw the *** complaint

for what it was—a totally deficient claim for mandamus relief.” Id. at 45.

¶ 21 The court therefore concluded that the circuit court had the inherent authority to dismiss a

patently frivolous mandamus complaint before service on the respondent was issued. Id.; see also

Mason v. Snyder, 332 Ill. App. 3d 834, 842 (2002) (finding that “trial courts have the authority to

sua sponte order stricken mandamus petitions the courts find to be frivolous and without merit”).

¶ 22 We find the reasoning in Owens, that the failure to follow statutory procedures do not

require reversal in those cases where the complaint for mandamus has patently incurable defects,

persuasive. Here, the circuit court sua sponte dismissed the complaint for mandamus as it sought

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the same relief that petitioner has unsuccessfully sought since his direct appeal, namely, that the

extended-term portion of his sentence be vacated. In other words, his claim is barred by res

judicata. See People v. Johnson, 2021 IL 125738, ¶ 48 (quoting People v. Blair, 215 Ill. 2d 427,

445 (2005) (noting, in the context of postconviction proceedings, that “[w]here res judicata ***

preclude[s] a defendant from obtaining relief, such a claim is necessarily ‘frivolous’ or ‘patently

without merit’ ”)). As in Owens, a review of petitioner’s contentions reveals that his complaint is

without merit. Accordingly, as petitioner has not established that (1) he has a clear right to the

relief requested, (2) the public officer has a clear duty to act, and (3) the public officer has clear

authority to comply with an order granting mandamus relief, the dismissal of the complaint was

proper. McFatridge, 2013 IL 113676, ¶ 17.

¶ 23 To the extent that petitioner relies on People v. Ross, 367 Ill. App. 3d 890 (2006), to argue

that the circuit court was required to notify him and provide an opportunity to argue in support of

his pleading, we find that case distinguishable.

¶ 24 In Ross, the petitioner requested certain documents from the Chicago Police Department

(CPD), and after CPD denied much of the request, he filed a petition for mandamus, claiming that

CPD had neglected its duty to produce the requested records. Id. at 890. The clerk of the court

assigned the petition to the petitioner’s criminal case, effectively treating it as a postconviction

petition, and the circuit court dismissed the petition sua sponte and without notice. The petitioner

appealed, arguing that had he received notice, he could have amended his petition to state a claim

for administrative review.

¶ 25 On appeal, this court explained that when the circuit court finds a mandamus petition

insufficient to state a claim for mandamus relief or for relief from a judgment, the court must notify

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the petitioner of its intention to dismiss the petition as insufficient and the petitioner then should

have the chance to withdraw or amend his pleading and to argue for its sufficiency before the court.

Id. at 893. When the circuit court does not follow the “proper procedures” and this procedural

defect prejudices the petitioner, we must reverse. Id. However, we will not reverse if the circuit

court committed “harmless error by dismissing a petition with patently incurable defects.” Id. As

Justice O’Malley noticed in a special concurrence, “if the appellate court is capable of recognizing

that [the petitioner’s] petition is fatally flawed and not amendable to successful amendment, there

is no reason that the trial court cannot be trusted to do the same without useless procedural

machinations.” Id. at 895. Ultimately, we determined that it was possible for the petitioner to

amend his petition to state a valid claim for administrative review of the denial of his request for

certain documents and remanded for further proceedings. Id. at 894.

¶ 26 Unlike Ross, as discussed above, petitioner’s complaint for mandamus was not similarly

salvageable when his claim was barred by res judicata and therefore meritless. Petitioner,

however, relies on Caroll v. Akpore, 2014 IL App (3d) 130731, to argue that the statutory

procedures must be followed even when a mandamus complaint is “perceived” as having no merit.

¶ 27 In Caroll, an inmate filed a pro se mandamus petition seeking prison officials’ compliance

with certain statutory requirements relating to sanitary food preparation. The circuit court reviewed

the petition and dismissed it sua sponte within days of its filing and before the respondents were

served. Id. ¶ 1.

¶ 28 On appeal, the court addressed whether the circuit court could sua sponte dismiss a petition

seeking mandamus relief. The court noted that the mandamus provisions in the Code required

service on the respondents and did not provide for “summary dismissal” of the petition. Id. ¶ 3.

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That said, the court acknowledged that our supreme court has held that a mandamus petition could

be “summarily dismissed” when the relief it sought was cognizable in a postconviction petition,

even in those cases where the filing was not labeled as a postconviction petition. Id. (citing People

v. Shellstrom, 216 Ill. 2d 45, 50 (2005)). Accordingly, because the relief sought by the petitioner

was not cognizable in a postconviction petition, the court concluded that the circuit court erred

when it sua sponte dismissed the petition. Id. ¶ 4. In so doing, the court emphasized that it was not

addressing the petition on its merits, but remanding for service of the petition on the respondents.

Id. (“[t]he fact that the petition may have no merit does not allow the trial court to disregard the

procedural framework provided in the Code and the mandamus statute”).

¶ 29 We are not persuaded by petitioner’s reliance on Carroll. In the case at bar, although the

circuit court dismissed the complaint for mandamus without following the procedure contained in

the Code, petitioner alleged that he was unconstitutionally sentenced to an extended term, the type

of argument that can be raised in a postconviction petition. See People v. Pendleton, 223 Ill. 2d

458, 471 (2006) (holding that “[t]o be entitled to postconviction relief, a defendant must show that

he has suffered a substantial deprivation of his federal or state constitutional rights in the

proceedings that produced the conviction or sentence being challenged”); see also Shellstrom, 216

Ill. 2d at 50-51 (because the relief sought in the mandamus petition could have been sought in a

postconviction petition, it was proper for the circuit court to consider it under the postconviction

framework and dismiss it as frivolous and patently without merit). Consequently, the circuit court

did not err by sua sponte dismissing the complaint.

¶ 30 Ultimately, in the case at bar, as in Owens, no prejudice resulted from the circuit court’s

failure to strictly follow the Code because petitioner failed to demonstrate “a clear, affirmative

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right to relief, the sine qua non for mandamus,” when his claim was barred by res judicata. Owens,

349 Ill. App. 3d at 44-45. Accordingly, because the circuit court dismissed a complaint with

“patently incurable defects,” any error was harmless and petitioner’s contentions on appeal fail.

See Ross, 367 Ill. App. 3d at 893.

¶ 31 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 32 Affirmed.

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