2022 IL App (1st) 192023 No. 1-19-2023 Opinion filed March 31, 2022
First Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 07794 ) ANTON RUTH, ) Honorable ) Arthur F. Hill, Jr., Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justice Walker concurred in the judgment and opinion. Justice Coghlan specially concurred, with opinion.
OPINION
¶1 After pleading guilty to aggravated criminal sexual assault, Anton Ruth made repeated
attempts to challenge his mandatory supervised release term (MSR). Relevant here, he filed a
section 2-1401 petition (735 ILCS 5/2-1401 (West 2018)), arguing the statutory provisions
allowing the Prisoner Review Board to set conditions of MSR and “determine the length of [his]
MSR term” violate the separation of powers and proportionate penalties clauses of the Illinois
Constitution. See Ill. Const. 1970, art. I, § 11 (proportionate penalties); Ill. Const. 1970, art. II, § 1
(separation of powers). Both arguments stem from the same premise: the Prisoner Review Board No. 1-19-2023
is unconstitutionally exercising judicial functions. We disagree, finding that setting the terms of
MSR is akin to the executive function of prison administration and setting the release date
represents no more than the executive’s long-recognized ability to bestow grace on parolees who
comply with the terms of parole.
¶2 We agree, however, with Ruth’s second argument that the trial court erred in imposing fees
and costs for filing a frivolous petition. Though we reject his claim on the merits, we find it
arguable in law and fact. The trial court additionally erred by failing to make factual findings
supporting its conclusion that Ruth filed his petition for purposes of delay, harassment, or
needlessly increasing the cost of litigation. Accordingly, we vacate the trial court’s order imposing
$170 in fees and costs and remand directing the trial court to order a refund.
¶3 Background
¶4 In 2010, Anton Ruth pled guilty to one count of aggravated criminal sexual assault. The
trial court imposed a nine-year sentence and admonished him that he would have to serve three
years of mandatory supervised release after he completed his sentence. Ruth did not move to
withdraw his plea or file an appeal from the sentence imposed.
¶5 After completing his nine-year sentence, Ruth learned that the trial court had mistakenly
admonished him about his MSR term. Instead of three years of MSR, the Unified Code of
Corrections required Ruth to serve an indeterminate period of MSR ranging from three years to
life. See 730 ILCS 5/5-8-1(d)(4) (West 2010). And so began Ruth’s efforts, through various filings,
to enforce the trial court’s original admonishment.
¶6 In November 2017, Ruth filed a petition under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2016)), alleging his trial counsel was ineffective for failing to advise him
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correctly about the MSR term he faced. As a result, Ruth requested (i) withdrawal of his plea, (ii)
a trial, and (iii) correct admonishments about the sentencing consequences of the charged offenses.
With the help of the State, the trial court brought Ruth to court and admonished him that he would
face a minimum sentence of 9 years and a maximum of 67 years if the court gave him the relief he
sought. In Ruth’s presence, the State also told the court that Ruth had already served the sentence
to which he had agreed in his plea. Based on the court’s new admonishments, Ruth withdrew his
postconviction petition. The court then clarified that Ruth would have to serve three years to life
on MSR instead of an absolute term of three years.
¶7 Still dissatisfied with his indeterminate MSR term, Ruth filed a “Complaint for
Mandamus,” arguing the Prisoner Review Board refused to determine whether Ruth could be
released from prison on MSR. He asked the court to “determine the length of his MSR term to be
served” and for “immediate release to begin serving his MSR period.” After a brief in-court
appearance, the trial court denied mandamus on the ground that Ruth had filed his complaint in
the wrong county.
¶8 About a month later, in September 2018, Ruth filed a “Petition for Amended Sentencing
Order,” arguing that the Department of Corrections was “unlawfully detain[ing]” him. He correctly
asserted that the trial court’s original sentencing order said nothing about MSR, and the trial judge
had told him that his MSR term would be three years when imposing the sentence. Ruth requested
the court amend its sentencing order to reflect the original oral admonishment. The court denied
Ruth’s petition reasoning that the new admonishments during proceedings on Ruth’s first
postconviction petition had been sufficient, mainly because Ruth declined to pursue the claims
after receiving the new admonishments.
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¶9 Then, in February 2019, Ruth filed a petition for relief from judgment (see 735 ILCS 5/2-
1401 (West 2018)), arguing that his indeterminate MSR term and the statute authorizing it were
void ab initio. He reasoned that the General Assembly violated the separation of powers clause in
the Illinois Constitution (Ill. Const. 1970, art. II, § 1) by impermissibly delegating the
determination of the conditions of MSR to the Prisoner Review Board instead of the judiciary.
Ruth relied heavily on the Fourth District’s decision, People v. Morger, 2016 IL App (4th) 140321,
¶¶ 54-59, where the court held that the trial court improperly delegated its sentencing discretion to
McLean County court services by failing to impose its own conditions of probation.
¶ 10 The trial court dismissed Ruth’s petition. First, the trial court rejected Ruth’s reliance on
Morger because “case law from the fourth district appellate court *** is not binding to the first
district, to which this court belongs.” The trial court looked instead to the Illinois Supreme Court’s
decision in People v. Rinehart, 2012 IL 111719. There, the court interpreted section 5-8-1(d)(4) of
the Code of Corrections (730 ILCS 5/5-8-1(d)(4) (West 2018)) to allow trial courts to impose
indeterminate MSR terms instead of requiring them to impose determinate terms within the range
of three years to life. Rinehart, 2012 IL 111719, ¶¶ 23-30. In addition to its order dismissing Ruth’s
petition, the court imposed $170 in fees “finding that all filings are entirely frivolous” because (i)
they lacked an arguable basis in law or in fact, (ii) the factual contentions lacked evidentiary
support, and (iii) the filings “were presented to hinder, cause unnecessary delay, and needless
increase in the cost of litigation.” This court granted Ruth’s motion to file a late notice of appeal.
¶ 11 Analysis
¶ 12 The State begins by briefly arguing two procedural bars to our review of the merits: (i)
Ruth’s guilty plea waived all non-jurisdictional defects in his sentence, including MSR, and (ii)
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Ruth’s section 2-1401 petition was untimely because he filed it more than two years after the entry
of judgment. The State’s briefing on this point is sparse, with no citations to authority. See Ill. S.
Ct. Rule 341(h)(7) (eff. Oct. 1, 2020) (Argument “shall contain *** citation of the authorities ***
relied on.” (Emphasis added.)). That said, we disagree with both procedural arguments.
¶ 13 First, Ruth’s guilty plea did not waive his constitutional challenge to the statute imposing
his MSR term. As this court has observed, “a guilty plea does not bar a claim on appeal ‘where on
the face of the record the court had no power to *** impose the sentence.’ ” People v. Patterson,
2018 IL App (1st) 160610, ¶ 20 (quoting Class v. United States, 583 U.S. ___, ___, 138 S. Ct. 798,
804 (2018)). In other words, if the claim does not contradict the terms of the indictment or plea
agreement, we can consider it. Id. ¶ 21. Here, Ruth does not challenge the factual basis for his plea
or the substantive reasonableness of his term-of-years sentence. Instead, he argues the court had
no power to sentence him to an indeterminate MSR term. He, therefore, challenges “the [court]’s
power to constitutionally [sentence] him,” and his plea does not waive that challenge. See id.
¶ 14 We also find Ruth’s section 2-1401 petition was not time-barred. Generally, a petition
filed under section 2-1401 must be filed “not later than 2 years after the entry of the order or
judgment.” (Internal quotation marks omitted.) People v. Abdullah, 2019 IL 123492, ¶ 13. One of
the two exceptions to the statute of limitations is “when the judgment was based on a statute that
is facially unconstitutional and void ab initio.” Id. Ruth’s petition raised this type of facial
constitutional challenge. His petition alleged the statute allowing his “MSR conditions [to be]
imposed by the [Prisoner Review Board] are void ab initio.” Whatever we think of the merits of
Ruth’s claim, it constitutes a facial constitutional challenge to the statutes requiring him to serve
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an indeterminate MSR term with conditions imposed by the. Prisoner Review Board. Thus, we
will consider his petition even though he filed it outside the two-year statute of limitations.
¶ 15 Constitutionality of the Statutes
¶ 16 Ruth first argues that two provisions of the Code of Corrections (730 ILCS 5/5-8-1(d)(4),3-
3-2(a)(3-5) (West 2018)), impermissibly allow the Prisoner Review Board, a “non-judicial body,”
to determine his MSR term. According to Ruth, this scheme violates the Illinois Constitution’s
separation of powers clause by improperly delegating the judicial function of imposing sentence
to the executive branch. See Ill. Const. 1970, art. II, § 1. He also argues, applying the same
reasoning, that the improper delegation of sentencing authority to the executive insulates the
Prisoner Review Board from the requirements of the proportionate penalties clause. See Ill. Const.
1970 art. I, § 11. The State responds that the Prisoner Review Board did not determine Ruth’s
MSR term. Rather it administers the MSR term the trial court imposed. We review Ruth’s facial
constitutional challenge de novo. E.g., People v. Bochenek, 2021 IL 125889, ¶ 9.
¶ 17 The State, in its brief and at oral argument, suggested that Ruth’s claim fails based on
existing Illinois Supreme Court precedent, namely Rinehart, 2012 IL 111719, and People v.
McChriston, 2014 IL 115310. Neither case answers the unique separation of powers question Ruth
raises.
¶ 18 In Rinehart, the court expressly limited its analysis to a “matter of statutory construction.”
Rinehart, 2012 IL 111719, ¶ 23. The appellate court had found that the trial court must set a
determinate MSR term within the range provided by section 5-8-1(d)(4). Id. Our supreme court
rejected the appellate court’s conclusion and determined that the relevant statutory provisions
“contemplate indeterminate MSR terms, not determinate terms.” Id. ¶ 30. The court definitively
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construed the statute in a manner that predicates Ruth’s separation of powers claim, but it did not
resolve that claim.
¶ 19 On the other hand, McChriston involved a separation of powers claim of a different sort.
McChriston, 2014 IL 115310, ¶ 6. There, the trial court’s sentencing order made no mention of his
MSR term, and the defendant argued the Department of Corrections “added a three-year *** term
to his 25-year sentence.” Id. ¶ 3. Our supreme court rejected the argument finding, instead, that
the statute operated to add a three-year term automatically, even where the trial court forgets to
include it on the sentencing order. Id. ¶ 23. Because the Department of Corrections did not add the
term, no violation of the separation of powers occurred. See id. Though based on the same Illinois
constitutional provision, Ruth’s claim is distinct.
¶ 20 Though our supreme court has not answered the separation of powers question presented
here, we agree with the State that Ruth’s argument fails on first principles. The Illinois Constitution
declares “[t]he legislative, executive and judicial branches are separate” and “[n]o branch shall
exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. The clause is not
meant “to produce a complete separation” between the branches and “does not forbid every
exercise of functions by one branch of government that is conventionally exercised by another.”
People v. Inghram, 118 Ill. 2d 140, 146-47 (1987). When it comes to the relationship between the
executive and judicial branches, provisions violate the clause when they “confer powers to one
branch of government which properly should be exercised by another branch” or “usurp[ ] the
authority of another branch.” Id. To determine whether the statutory scheme for indeterminate
MSR violates the clause, we must first understand “the kind of power involved.” People v. Bryant,
278 Ill. App. 3d 578, 584 (1996).
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¶ 21 The General Assembly has the power to create criminal offenses and to establish a
“penological system.” People v. Williams, 66 Ill. 2d 179, 187 (1977). Within that system, the
judiciary holds the exclusive power to impose sentence. E.g., Morger, 2016 IL App (4th) 140321,
¶ 55 (citing People v. Montana, 380 Ill. 596, 608 (1942)). Once a court imposes a sentence, the
General Assembly then retains the power “to establish rules and regulations for the government
and discipline of inmates,” which the executive branch enforces through the Department of
Corrections. Williams, 66 Ill. 2d at 187.
¶ 22 Essentially, the parties see the Prisoner Review Board’s role in our indeterminate MSR
scheme differently. According to Ruth, the Board’s ability to “increase” his sentence by refusing
to discharge him from MSR usurps judicial sentencing power. The State, on the other hand, sees
the Board’s ability to impose MSR conditions and monitor Ruth’s compliance as no more than
administering the sentence the trial court imposed. The State has properly construed the nature of
MSR (formerly known as parole).
¶ 23 Illinois has long held that “in a legal sense, [MSR] does not diminish a judicially imposed
sentence or in any way affect it.” Id. (collecting cases). This follows because MSR “alters only the
method and degree of confinement during the period of commitment” to the Department of
Corrections. Id. Even where the trial court must impose a minimum sentence of incarceration
before a defendant can be released on MSR, a defendant serving their MSR term remains subject
to the authority of the Department of Corrections. Id. In that sense, the conditions the Prisoner
Review Board imposes on defendants serving their MSR terms are the same as ordinary rules the
Department of Corrections sets to maintain order in its detention facilities—the only difference is
the defendant’s physical location.
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¶ 24 But, says Ruth, the problem lies in the indeterminate nature of his MSR term. The parties’
dispute, once again, is a matter of perspective. Because the judicially imposed term is three years
to life, Ruth argues the Prisoner Review Board gets to decide the number of years he will serve.
The State responds, though not explicitly, that an indeterminate MSR term is essentially a life term
that defendants can end early based on their compliance with the MSR terms the Prisoner Review
Board imposed. We agree with the State.
¶ 25 The statute that imposes the MSR term for Ruth’s offense requires him to serve at least
three years on MSR “to a maximum of natural life.” 730 ILCS 5/5-8-1(d)(4) (West 2018). The
preamble to the subsection introduces the various MSR terms as “subject to earl[y] termination
under Section 3-3-8.” Id. § 5-8-1(d). Section 3-3-8 provides for early release or discharge “when
it determines that [a defendant] is likely to remain at liberty without committing another offense.”
Id. § 3-3-8(b). Taking these sections together, describing Ruth’s MSR term as “indeterminate” is
something of a misnomer: the trial court essentially imposed a life term of MSR with the possibility
of early termination after three years. This interpretation aligns with our supreme court’s long-
standing conception of MSR as “a matter of grace and executive clemency.” Hill v. Walker, 241
Ill. 2d 479, 486 (2011) (collecting cases).
¶ 26 We can distill two truths about the nature of the Prisoner Review Board’s administration
of MSR. First, the conditions the Prisoner Review Board sets on defendants admitted to MSR are
functionally the same as any other rule of prison administration aimed at controlling the behavior
of those committed to the Department of Corrections. Second, decisions about admitting a
defendant to MSR and releasing a defendant from MSR are “matter[s] of grace.” As we discussed,
both powers belong to the executive branch. We, therefore, reject Ruth’s claim that the Prisoner
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Review Board’s administration of his MSR term of three years to life improperly intrudes on the
judicial function of imposing sentence. Because each of his arguments under the proportionate
penalties clause and separation of powers clause depends on this premise, they both must fail.
¶ 27 We are not convinced otherwise by Ruth’s reliance, in this court and the trial court, on
Morger, 2016 IL App (4th) 140321. The trial court rejected Morger largely because “case law
from the fourth district appellate court *** is not binding to the first district, to which this court
belongs.” The tiral court’s conception of stare decisis was incomplete and, therefore, incorrect.
Generally, an appellate court’s decision is binding “on the circuit courts throughout the [s]tate.”
(Emphasis added.) State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539 (1992). There
is a narrow exception where conflicts arise among the appellate districts. Then, and only then, a
circuit court will either (i) follow the relevant decision from its home district if there is one or (ii)
choose among the decisions from the competing appellate districts if the circuit court’s home
district has not weighed in. Id. at 540. Morger was binding on the circuit court to the extent it was
analogous, as no contrary authority exists in the other Districts, including the First District.
¶ 28 We agree with the State, however, that Morger does not control the outcome. There, the
Fourth District found a violation of the separation of powers clause after the trial court improperly
delegated the task of setting probation conditions to Court Services. Morger, 2016 IL App (4th)
140321, ¶¶ 56-57. Critically, the court found that “imposition of probationary conditions is part of
sentencing.” Id. ¶ 57. As we have discussed, the trial court carried out its judicial function by
imposing the term of years of MSR, but it is an executive function for the Prisoner Review Board
to determine the conditions its parolees must satisfy to earn early relief from the judicially imposed
sentence.
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¶ 29 After oral argument, we allowed Ruth to cite Dreyer v. Illinois, 187 U.S. 71 (1902), and
George v. People, 167 Ill. 447 (1897), as additional authority because panel members discussed
Dreyer at oral argument and Dreyer cites George. The State has declined our offer to file a
response on the merits of either supplemental authority. On further review, we find neither case
helpful to the resolution of Ruth’s claims. Dreyer, for its part, expressly disclaimed an intention to
construe the separation of powers provision then in the Illinois Constitution. Dreyer, 187 U.S. at
83. The Court’s conclusion goes no further than to say that the decision to allocate certain powers
to certain branches of state government belonged exclusively to the states and would not implicate
the due process clause of the fourteenth amendment. Id. at 83-84.
¶ 30 George is unhelpful for related reasons. There, the statutory scheme expressly
contemplated participation in the parole decision by the court that sentenced the defendant and by
the governor. George, 167 Ill. at 463-64. We agree with Ruth’s argument insofar as he claims
George does not apply—we cannot say what the Illinois Supreme Court would have thought of
the current scheme for indeterminate MSR under the 1870 Illinois Constitution. Ruth argues the
current scheme is more offensive to the separation of powers than the scheme in George. Still,
under modern conceptions of separation of powers embodied in our current constitution, the
Prisoner Review Board has not usurped the judicial function of imposing sentence and may
constitutionally condition Ruth’s release on the MSR terms it sets.
¶ 31 Fees
¶ 32 Though we disagree with Ruth’s constitutional claim on the merits, we agree the trial court
erred by imposing $170 in fees for an “entirely frivolous” petition. See 735 ILCS 5/22-105 (West
2018). We note that Ruth argues his section 2-1401 petition is not covered by section 22-105
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because it was not a “second or subsequent petition.” Id. § 22-105(a). We decline to address this
question of statutory construction because, even assuming the frivolous filing statute applies to
Ruth’s petition, the trial court had no basis on which to impose the fees.
¶ 33 The trial court imposed fees and costs for three reasons: (i) Ruth’s petition “lacked an
arguable basis in law or in fact,” (ii) Ruth’s petition “did not have evidentiary support,” and (iii)
“the filings, in toto, were presented to hinder, cause unnecessary delay, and needless increase in
the cost of litigation.” See id. § 22-105(b)(1)-(2), (4). We disagree with each basis.
¶ 34 The State argues that Illinois law and the specific facts foreclose Ruth’s petition. This
argument is flatly inconsistent with the State’s concession, at page 10 of its brief, that Ruth’s
“facial constitutional challenge on this specific statutory framework is novel to this Court.” The
State’s concession coincides with our analysis rejecting both parties’ reliance on previous
decisions of this court and our supreme court. Issues that we have never addressed remain, almost
by definition, “arguable in law or in fact.”
¶ 35 The State does not defend the trial court’s finding that Ruth’s petition “did not have
evidentiary support.” We think this wise. Generally, facial constitutional challenges are not
amenable to receiving evidence or to fact-finding because they require the challenger to allege “no
set of circumstances under which the statute would be valid.” Lebron v. Gottlieb Memorial
Hospital, 237 Ill. 2d 217, 228 (2010). Ruth’s claim cannot have lacked “evidentiary support”
because he was not required to put in evidence.
¶ 36 We turn then to the trial court’s conclusion that Ruth’s petition was filed for purposes of
delay or to increase the cost of litigation. Again, the State does not defend the trial court’s fees and
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costs order on this ground. The record also does not show Ruth attempting to delay, harass, or
needlessly invoke the resources of the judicial system.
¶ 37 The list of Ruth’s filings tells a story, not of delay or harassment, but of an uncounseled
prisoner attempting to understand and then challenge the complicated law surrounding pleas,
mandatory MSR terms, and the Department of Corrections’ lamentable “violating at the door”
policy. Cf. Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 9 (describing the practice); see
also Ortiz v. Breslin, 595 U.S. ___, 142 S. Ct. 914 (2022) (statement of Sotomayor, J., respecting
denial of certiorari, explaining constitutional concerns with New York’s similar policy). Ruth’s
section 2-1401 petition was the first (maybe second) filing in which he could have raised his
constitutional challenge. Until this filing Ruth did not know (i) the correct term of his MSR and
(ii) that the trial court could not, or would not, do anything to force the Department of Corrections
to release him. No evidence supports a conclusion of delay, harassment, or needless increase of
cost.
¶ 38 Subsection (a) of the statute requires the trial court to make “specific finding[s]” that a
particular filing is frivolous within the meaning of the factors in subsection (b). (Emphasis added.)
735 ILCS 5/22-105(a) (West 2018). Reciting the ostensibly applicable statutory subsections will
not do.
¶ 39 We vacate the order imposing $170 in fees and costs and remand to the circuit court to
determine whether the $170 was deducted from Ruth’s trust account and, if so, order a refund by
the Cook County Treasurer.
¶ 40 Affirmed in part and vacated in part; cause remanded with directions.
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¶ 41 JUSTICE COGHLAN, specially concurring:
¶ 42 While I agree with the majority’s conclusion, I disagree with the majority’s reasoning for
vacating the fees and costs imposed by the trial court. The plain language of 735 ILCS 5/22-105
applies only to “a second or subsequent” section 2-1401 petition. 735 ILCS 5/22-105(a) (West
2018). Since this was defendant’s first section 2-1401 petition, section 22-105 does not apply. In
my view, no further analysis is necessary.
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