2014 IL App (3d) 130677
Opinion filed June 20, 2014 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
LINCOLN A. LEE, ) Appeal from the Circuit Court ) of the 14th Judicial Circuit, Plaintiff-Appellant, ) Rock Island County, Illinois. ) v. ) Appeal Nos. 3-13-0677 ) 3-13-0889 SALVADOR A. GODINEZ, Director of the ) Circuit No. 13-MR-381 Department of Corrections; TY BATES, ) Deputy Director of the Department of ) Corrections; SANDRA FUNK; MARC ) HODGES, Warden of the Department of ) Corrections; RANDY STEVENSTON, ) ) Honorable Michael F. Meersman, Defendants-Appellees. ) Judge, Presiding. ) _____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justice Holdridge concurred in the judgment and opinion. Justice McDade specially concurred with opinion.
OPINION
¶1 On May 1, 2013, plaintiff, Lincoln Lee, filed a petition for writ of mandamus in the Rock
Island County circuit court against defendants, Department of Corrections Director Salvador
Godinez, Deputy Director Ty Bates, transfer coordinator Sandra Funk, Warden Marc Hodges,
and head counselor Randy Stevenston (hereinafter defendants). The petition, brought pursuant to
section 14-101 of the Code of Civil Procedure (the Code) (735 ILCS 5/14-101 (West 2012)), alleged that defendants abused their discretion in denying plaintiff good-time credits, work
release, and electronic home detention based upon his prior domestic battery conviction, and that
section 3-6-3(a)(3) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(3)
(West 2012)) violated the ex post facto clause. U.S. Const., art. I, §§ 9, 10; Ill. Const. 1970, art.
I, § 16.
¶2 The trial court, sua sponte, denied the petition without hearing on August 12, 2013. The
court appointed counsel on October 22, 2013. Plaintiff's appointed counsel filed a notice of
appeal on November 14, 2013.
¶3 Plaintiff's counsel has now filed a motion indicating that the instant appeal presents no
issues of merit. This motion, filed in accordance with Anders v. California, 386 U.S. 738 (1967),
requests that counsel be permitted to withdraw. Plaintiff opposes the motion. For reasons set
forth below, we allow the motion and dismiss this appeal.
¶4 ANALYSIS
¶5 I. Supplemental Sentencing Credit
¶6 Plaintiff first argues that he was wrongfully denied a 180-day supplemental sentencing
credit (SSC) to which he was entitled. Plaintiff argues that defendants prevented him from
receiving said credits based on an unwritten policy denying SSC to inmates with previous
domestic violence convictions, which is arbitrary and constitutes an abuse of discretion.
¶7 Rules and regulations for sentencing credit are governed by section 3-6-3 of the Unified
Code (730 ILCS 5/3-6-3 (West 2012)). At issue here is section 3-6-3(a)(3), which provides in
pertinent part as follows:
"(3) The rules and regulations shall also provide that the
Director may award up to 180 days additional sentence credit
2 for good conduct in specific instances as the Director deems
proper. The good conduct may include, but is not limited to,
compliance with the rules and regulations of the Department,
service to the Department, service to a community, or service
to the State." (Emphasis added.) 730 ILCS 5/3-6-3(a)(3)
(West 2012).
¶8 The section then goes on to enumerate those offenses for which the Director shall not
award more than 90 days of sentence credit for good conduct.
¶9 Finally, section 3-6-3(a)(3) provides:
"Eligible inmates for an award of sentence credit under this
paragraph (3) may be selected to receive the credit at the Director's
or his or her designee's sole discretion. Consideration may be
based on, but not limited to, any available risk assessment analysis
on the inmate, any history of conviction for violent crimes as
defined by the Rights of Crime Victims and Witnesses Act, facts
and circumstances of the inmates's holding offense or offenses, and
the potential for rehabilitation." (Emphases added.) 730 ILCS
5/3-6-3(a)(3) (West 2012).
The Rights of Crime Victims and Witnesses Act defines "any offense involving *** domestic
battery" as a violent crime. 725 ILCS 120/3(c) (West 2012). A reading of section 3-6-3(a)(3)
makes it clear that good behavior in prison renders an inmate eligible for good-time credit at the
Director's sole discretion.
3 ¶ 10 The trial court relied solely on section 3-6-3(a)(3) in denying the petition, noting that
because the award of good-time credit is at the Director's sole discretion, there is no statutory
right to good-time credit, nor is the Director required to have a written policy. The court found
that the fact plaintiff did not receive such a credit did not entitle him to a writ of mandamus.
¶ 11 Plaintiff's counsel relies on the same language in his motion to withdraw, contending that
plaintiff's argument for SSC does not state a claim for mandamus relief because the award of
meritorious good-time credit is discretionary.
" '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. [Citation.] *** Mandamus
will issue only where the plaintiff has fulfilled his burden [citation] 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. [Citation.]' " Dupree v.
Hardy, 2011 IL App (4th) 100351, ¶ 22 (quoting Rodriguez v. Illinois
Prisoner Review Board, 376 Ill. App. 3d 429, 433-34 (2007)).
¶ 12 We find Helm v. Washington, 308 Ill. App. 3d 255 (1999), instructive. Donald Helm
brought a mandamus action against the Director of the Illinois Department of Corrections. Helm
claimed he was entitled to 180 days of meritorious good-time credit, which the Director
arbitrarily denied. Id. at 256. He alleged that he was serving an eight-year sentence for burglary
and had subsequently completed educational programs and work assignments, qualifying him for
180 days of meritorious good-time credit, pursuant to section 3-6-3(a)(3) of the Unified Code
4 (730 ILCS 5/3-6-3(a)(3) (West 1998)). According to Helm, the Director denied his request for
good-time credit on the grounds that he had a prior order of protection filed against him.
¶ 13 The Director moved to dismiss the petition on the grounds that the award of meritorious
good-time credit is discretionary. The trial court granted the motion and dismissed the cause. In
affirming the dismissal, this court found that Helm did not adequately state a claim for
mandamus relief. Specifically, the petition alleged only that he qualified for consideration of
good-time credit against his sentence, which could be granted or denied at the Director's
discretion. Helm, 308 Ill. App. 3d at 257. As such, Helm failed to allege a clear duty to act on
the part of the Director, and the trial court did not err in dismissing the petition. Id. at 258. The
court emphasized that the decision to award good-time credit is discretionary under section 3-6-
3(a)(3), and that "[d]efendant is not required to grant the credit or even consider it." Id. at 257
(citing Brewer v. Peters, 262 Ill. App. 3d 610 (1994)).
¶ 14 Similarly, the plaintiff here has failed to allege either a clear right to relief or a clear duty
to act by defendants. The plain language of section 3-6-3(a)(3) vests the Director with full
discretion to award or deny good-time credit as he deems proper. Plaintiff has no right to good-
time credit and, thus, has no clear right to the relief requested. The fact that the denial of good-
time credit might be based on a past conviction for domestic battery is rendered inconsequential.
Nonetheless, the 2012 amendments to section 3-6-3(a)(3) make it clear that the Director may
consider such a conviction in determining whether to grant early release to an otherwise eligible
inmate. Therefore, plaintiff's basic premise that the Director relied upon an unwritten rule is a
false premise. The "unwritten rule" upon which plaintiff alleges defendants relied is written
within the statute.
5 ¶ 15 In reaching this conclusion, we would be remiss not to mention Guzzo v. Snyder, 326 Ill.
App. 3d 1058 (2001). In Guzzo, this court affirmed the trial court's immediate release of plaintiff
pursuant to a writ of mandamus, where it found that the Director's refusal of Guzzo's good-time
credit, pursuant to section 3-6-3(a)(3) of the Unified Code, was based on an unwritten policy that
excluded inmates with domestic battery arrests from eligibility. Id. at 1063. In making its
determination, the Guzzo court noted that the formulation of a good-time policy was within the
Director's discretion, but that the discretion was "restricted" by both the enabling statute and the
related parts of the Illinois Administrative Code. Id. at 1062; 5 ILCS 100/5-20 (West 2000). It,
therefore, found that the Director's policy of denying good-time credit based solely on an
inmate's domestic battery arrest was both unwritten and unrelated to prison discipline, thus the
use of the policy was an abuse of discretion, which implicated the mandamus exception. Guzzo,
326 Ill. App. 3d at 1064.
¶ 16 The Guzzo court declined to follow the rationale of Helm v. Washington, or rather,
attempted to distinguish it. It observed that Helm affirmed the trial court's dismissal of the
plaintiff's request for mandamus relief, and held that because the award of meritorious good-time
credit was discretionary, mandamus was inappropriate. The court explained, however, that the
plaintiff in Helm did not allege an abuse of discretion by the Director implicating the mandamus
exception, nor did he assert that he had a clear right to relief or that the Director had a clear duty
to act. Id.
¶ 17 Having examined both cases, we cannot see how this distinction would allow the Guzzo
court to reach such a conclusion. Because the Director has the discretion to award meritorious
good-time credit, Helm's argument could not have been construed as anything other than an
argument that the Director abused his discretion in arbitrarily denying that credit. Finally, the
6 Guzzo court paid little attention to the requirements necessary for a mandamus action to lie.
Guzzo, like Helm and the plaintiff in this case, alleged that the warden failed to award him good-
time credit to which he had absolutely no right.
¶ 18 As the Guzzo court declined to follow the rationale in Helm, we similarly decline to
follow the rationale of Guzzo. To the extent Guzzo was ever good law, the 2012 amendments to
section 3-6-3(a)(3) make it clear that the Director may consider an eligible inmate's history of
domestic battery convictions. 730 ILCS 5/3-6-3(a)(3) (West 2012). Allowing such matters to
proceed on a mandamus petition effectively strips the Director of that statutorily vested
discretion. The General Assembly vested the Director, not the courts, with the discretion to
award SSC. Mandamus relief is therefore inappropriate. The Guzzo court failed to recognize
that the Director might reasonably conclude that an inmate with a history of violent crimes
against women or children might very well be a model prisoner due to the absence of women or
children in the penitentiary. It simply is not an abuse of discretion to deny that inmate
discretionary early release. Regardless, the Director's discretion in the matter of awarding
meritorious good-time credit negates the notion that any inmate has a clear right to the credit.
¶ 19 II. SSC and the Ex Post Facto Clause
¶ 20 Plaintiff also argues that prior to the 2010 suspension of the 180-day meritorious good
time and supplemental meritorious good time, the award of good-time credit was not
discretionary and the revised statute violates the ex post facto clause. A review of the text
amendments to section 3-6-3 of the Unified Code reveals that the statute has always stated that
the "rules and regulations shall also provide that the Director may award up to 180 days
additional good conduct credit for meritorious service in specific instances as the Director deems
proper." (Emphasis added.) 730 ILCS 5/3-6-3(a)(3) (West 2008). We acknowledge that it was
7 not until Public Act 97-697 (eff. June 22, 2012) that the legislature added the language to section
3-6-3(a)(3) that provided inmates eligible for an award of sentence credit may be selected to
receive the credit at the Director's or his or her designee's sole discretion. Even so, we observe
that when the legislature uses the word "may," it is generally considered as expressing a
permissive or directory reading. People v. Graham, 406 Ill. App. 3d 1183, 1194 (2011).
¶ 21 Furthermore, plaintiff has failed to establish that revised section 3-6-3(a)(3) presents this
court with an ex post facto violation.
¶ 22 The Illinois Constitution, like the United States Constitution, forbids the enactment of ex
post facto laws. Ill. Const. 1970, art. I, § 16. "Our supreme court has interpreted the ex post
facto clause of the Illinois Constitution in accord with the pronouncements of the United States
Supreme Court." Hadley v. Montes, 379 Ill. App. 3d 405, 409 (2008) (citing People v.
Cornelius, 213 Ill. 2d 178, 207 (2004)). "[T]he focus of the ex post facto inquiry is not on
whether a legislative change produces some ambiguous sort of 'disadvantage,' *** but on
whether any such change alters the definition of criminal conduct or increases the penalty by
which a crime is punishable." California Department of Corrections v. Morales, 514 U.S. 499,
506 n. 3 (1995). To establish an ex post facto violation, a " 'plaintiff must show the following:
(1) a legislative change; (2) the change imposed a punishment; and (3) the punishment is greater
than the punishment that existed at the time the crime was committed.' " Hadley, 379 Ill. App.
3d at 409 (quoting Neville v. Walker, 376 Ill. App. 3d 1115, 1118-19 (2007)).
¶ 23 Plaintiff relies on Weaver v. Graham, 450 U.S. 24 (1981), for the proposition that
"reducing or eliminating early-release credits for good behavior is an ex post facto law that
increases punishment." This reliance is misplaced. The plaintiff in Weaver sought relief via a
habeas corpus petition, not a writ of mandamus, and was challenging the validity of a Florida
8 statute the modified the amount of "gain time" he was able to receive. In finding that the change
in the law governing the amount of "gain time" that a prisoner automatically earned by operation
of law amounted to an ex post facto law, the Supreme Court explicitly recognized the difference
between "gain time" that a prisoner automatically earned by operation of law and "gain time"
that was discretionary and awarded based on special behavior.
¶ 24 Weaver is thus inapplicable to this case, where the sentence credit plaintiff is seeking
here is not awarded based on the operation of law. The award of SSC is, and always has been,
discretionary. Whether or not the plaintiff actually received it has no effect whatsoever on his
actual sentence. The changes to section 3-6-3(a)(3) did not impose a punishment; failure to
award discretionary SSC credits does not increase plaintiff's punishment. There is no ex post
facto violation.
¶ 25 III. Work Release and Electronic Home Detention
¶ 26 Plaintiff also contends that he was wrongfully denied both work release and electronic
home detention to which he is entitled, again, arguing that defendants abused their discretion and
he is, therefore, entitled to mandamus relief. However, plaintiff does not cite to the applicable
law regarding work release or electronic home detention, and relies solely on those arguments
made in regard to the denial of his SSCs.
¶ 27 As with SSC, work-release programs and electronic home detention are also a matter of
discretion for the Department of Corrections. "A prisoner had no constitutional right, no liberty
or property interest entitled to due-process protection, to participate in a work-release program."
Briggs v. Walker, 375 Ill. App. 3d 849, 850 (2007). "[N]either the provisions in the Unified
Code *** nor the Illinois Constitution, each of which propounds general policies of rehabilitation
and restoration to useful citizenship, creates an entitlement to participate in the work-release
9 program." Id. at 851 (citing Williams v. Thompson, 111 Ill. App. 3d 145, 149-51 (1982)).
"[W]hether a prisoner may participate in a work-release program is a matter of discretion solely
for the IDOC." Id. Moreover, it has been held that consideration of an inmate's criminal history,
which plaintiff claims happened here, is permissible in determining whether the inmate poses a
risk to society and is thus not a suitable candidate for a prerelease program. See Fuller v. Lane,
686 F. Supp. 686 (C.D. Ill. 1988). Likewise, as pointed out above, consideration of plaintiff's
prior domestic battery conviction does not, as a matter of law, constitute an abuse of discretion.
Given the discretionary nature of work-release programs, plaintiff has failed to show that he has
a clear right to the relief requested or that defendants have a clear duty to act.
¶ 28 Electronic home detention is governed by section 5-8A-3 of the Electronic Home
Detention Law (730 ILCS 5/5-8A-3 (West 2008)). It allows for certain individuals serving terms
of imprisonment to be released from a correctional institution and placed in an electronic home
detention program. "A person serving a sentence for a conviction of a Class X felony [as the
plaintiff here], other than an excluded offense, may be placed in an electronic home detention
program for a period not to exceed the last 90 days of incarceration, provided that the person was
sentenced on or after the effective date of this amendatory Act of 1993 and provided that the
court has not prohibited the program for the person in the sentencing order." (Emphasis added.)
730 ILCS 5/5-8A-3(c) (West 2008).
¶ 29 Hadley v. Montes, 379 Ill. App. 3d 405 (2008), while not directly on point, is instructive
as to the discretionary nature of the electronic home detention program. Plaintiff filed a
complaint for injuctive, declaratory, and mandamus relief based on the requirement that he
submit to electronic monitoring while on parole. The Fourth District found that "the electronic
monitoring condition was another tool the [parole] Board could utilize in its discretion to assist
10 the plaintiff in leading a law-abiding life as he stepped outside the confines of the penitentiary
and ventured back into a free society." Id. at 414. As it was a discretionary function, the courts
found that plaintiff's claim for mandamus was without merit.
¶ 30 Granted, the defendant in Hadley was subject to electronic monitoring on parole, and not
looking to shorten any potential time in prison via home detention, but the discretionary nature of
the electronic home detention law is the same. We, therefore, find that mandamus relief in
regard to electronic home detention is also inappropriate.
¶ 31 It seems clear that the General Assembly intends that the Director, and not the courts, run
the day-to-day operations of the Department of Corrections. This includes deciding whether any
particular inmate receives the discretionary "perks" sought by the plaintiff here. Absent
constitutional violations, it is not the court's job to run the penitentiary. Plaintiff does not allege
he was denied good-time credit because he is a member of a protected class. We have found no
ex post facto violations, and plaintiff alleges no other constitutional violation.
¶ 32 Because we agree that this appeal presents no issues of merit, we allow counsel's motion
to withdraw. For the same reason, we also dismiss this appeal.
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, the motion to withdraw is allowed. Appeal dismissed.
¶ 35 Motion to withdraw allowed; appeal dismissed.
¶ 36 JUSTICE McDADE, specially concurring.
¶ 37 The majority has found that the trial court correctly denied the plaintiff's petition for a
writ of mandamus to require the director of the Illinois Department of Corrections to reverse his
denial of good time credit, work release and electronic home detention because of his prior
domestic violence conviction. In the decision, the plaintiff's ex post facto issue is also rejected.
11 As a result, the motion of plaintiff's counsel pursuant to Anders v. California, 386 U.S. 738
(1967) to be allowed to withdraw because there are no meritorious issues for appeal is granted
and the director's denial of sentencing relief stands affirmed. I concur with that decision.
¶ 38 I write separately because I cannot agree with the majority's conclusions about this court's
earlier decision in Guzzo v. Snyder, 326 Ill. App. 3d 1058 (2002).
¶ 39 It should first be noted that the version of the applicable statute in effect when Guzzo was
decided differed in significant and relevant respects from the current version of that law.
Although Guzzo has been rendered largely irrelevant by the legislative changes, the majority still
attempts to discredit its conclusion that mandamus can apply when a public official exercises his
discretion in violation of the controlling act and its administrative rules and regulations.
¶ 40 The statute and regulations at issue in Guzzo and in the instant case relate to the award of
certain forms of sentencing relief that can be awarded by the director of the Illinois Department
of Corrections under the Corrections Code.
¶ 41 In their 2000 versions, section 3-6-3(a)(3) (730 ILCS 5/3-6-3(a)(3) (West 2000)) and
section 107.210 of the Illinois Administrative Code (20 IL Adm Code §107.210 (1996)) put
limits on the good time credit available for inmates convicted of specific enumerated felonies,
not including domestic violence, or who ran afoul of articulated behavioral standards. Nothing
in either the statutes or administrative regulations authorized the director to create and implement
a policy of arbitrarily withholding sentencing relief for persons arrested for or convicted of
domestic violence offenses.
¶ 42 The legal holding in Guzzo, as I read it, is that mandamus is available to compel the
director to exercise his discretion in conformity with the statutes and regulations rather than
12 contrary to them. In the context of the contemporaneous versions of the law, that decision
appears to have been correct.
¶ 43 One could quite reasonably argue that, having reached that conclusion, the court went a
step too far in determining that the record was devoid of any indication that the director had
considered any other factors or misconduct or misbehavior in denying sentencing relief and
awarding that relief on its own. That action, however, does not negate the court's finding that
mandamus was available on the facts of that case.