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                               Appellate Court                           Date: 2017.06.19
                                                                         09:52:11 -05'00'




                   Walker v. Monreal, 2017 IL App (3d) 150055



Appellate Court    DAVID D. WALKER, Plaintiff-Appellant, v. ADAM P. MONREAL,
Caption            Chairman of the Illinois Prisoner Review Board, Defendant-Appellee.



District & No.     Third District
                   Docket No. 3-15-0055



Filed              April 3, 2017
Rehearing denied   May 3, 2017



Decision Under     Appeal from the Circuit Court of Will County, No. 13-MR-519; the
Review             Hon. Roger Rickmon, Judge, presiding.



Judgment           Affirmed.



Counsel on         David D. Walker, of Joliet, appellant pro se.
Appeal
                   Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                   Solicitor General, and Janon E. Fabiano, Assistant Attorney General,
                   of counsel), for appellee.



Panel              JUSTICE CARTER delivered the judgment of the court, with opinion.
                   Justices McDade and Wright concurred in the judgment and opinion.
                                             OPINION

¶1       Plaintiff, David Walker, an inmate in the Illinois Department of Corrections (IDOC), filed
     a complaint for mandamus relief against Adam Monreal, Chairman of the Illinois Prisoner
     Review Board. In his complaint, Walker requested that the trial court compel Monreal to
     conduct a new revocation hearing regarding the revocation of his mandatory supervised
     release (MSR). The trial court granted Monreal’s motion to dismiss the mandamus complaint
     with prejudice. Walker appealed. We affirm.

¶2                                              FACTS
¶3       According to Walker’s filings in this case, he was released from prison to serve a
     three-year MSR term on March 29, 2000, related to case No. 90-CF-1815. On October 3, 2000,
     Walker was arrested for violating various terms of his MSR. On October 25, 2000, he was also
     charged with the unlawful use of a weapon by a felon. On June 6, 2001, he was charged, by
     way of indictment, with first degree murder and attempted armed robbery for an incident that
     had occurred on October 1, 2000. On October 11, 2002, after a jury trial, Walker was found
     guilty of first degree murder. The trial court sentenced him to 50 years of imprisonment.
¶4       On November 5, 2003, Walker appeared before the Illinois Prisoner Review Board for a
     revocation hearing regarding the MSR term he was serving in case No. 90-CF-1815 at the time
     he committed the murder offense. At the revocation hearing, Walker requested a continuance
     to obtain evidence to prove that the warrant issued for his arrest for alleged MSR violations
     was issued without verified facts to establish probable cause. The hearing officer denied the
     request for a continuance, reasoning that Walker’s argument of lack of probable cause to
     support the warrant that had been issued on October 3, 2000, was moot in light of Walker being
     convicted of a murder that he committed during the MSR term, on October 1, 2000. The
     hearing officer indicated that the revocation of the MSR term should proceed based on Walker
     having violated the conditions of the MSR as evinced by his murder conviction.
¶5       On February 26, 2013, nearly 10 years later, Walker filed a complaint for mandamus relief,
     requesting that the trial court compel Monreal, the Chairman of the Illinois Prisoner Review
     Board, to conduct a second revocation hearing. In the complaint, Walker argued that he was
     denied due process at the original revocation hearing.
¶6       On August 12, 2013, Walker filed a motion for default because Monreal had been served
     with the complaint but failed to file an answer. On August 22, 2013, the trial court entered an
     order giving Monreal one month to answer or otherwise plead to Walker’s default motion.
¶7       On September 26, 2013, an assistant Attorney General entered his appearance to represent
     Monreal and filed a motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure
     (Code) (735 ILCS 5/2-615 (West 2012)), arguing that Walker’s mandamus complaint failed to
     state a claim. Also on September 26, 2013, Walker filed a second motion for default. The same
     day, the trial court denied Walker’s default motions and granted Monreal leave to file the
     motion to dismiss. On February 27, 2014, the trial court denied Monreal’s section 2-615
     motion to dismiss and gave him until March 25, 2014, to answer or otherwise plead.
¶8       On March 26, 2014, Monreal filed a motion to dismiss pursuant to section 2-619 of the
     Code (735 ILCS 5/2-619 (West 2014)), arguing that Walker’s mandamus complaint was
     barred under the common law doctrine of laches. Monreal contended that a mandamus action


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       must be brought within six months unless there was a reasonable explanation for the delay and
       defendant’s mandamus complaint was not filed until 10 years after the revocation hearing of
       which he complained. Monreal also argued Walker’s claim was moot because Walker was
       convicted of first degree murder, which provided an alternative basis for revoking Walker’s
       MSR.
¶9         On December 17, 2014, the trial court granted Monreal’s motion and dismissed Walker’s
       mandamus complaint with prejudice. In addition, the trial court found that Monreal’s section
       2-615 motion to dismiss should have also been granted.
¶ 10       On January 14, 2015, Walker filed a notice of appeal that was file-stamped as received by
       the circuit clerk on January 20, 2015. The envelope for the notice of appeal indicated, “This
       correspondence is from an inmate of the IDOC” and was postmarked January 16, 2015.
¶ 11       Along with the notice of appeal, defendant enclosed a “Proof/Certificate of Service,” dated
       January 14, 2015, which was also file-stamped as being received by the circuit clerk on
       January 20, 2015. The certificate of service was signed by Walker and listed his address as the
       Stateville Correctional Center, P.O. Box 112, Joliet, Illinois. The certificate of service
       indicated that the documents were to be delivered to the circuit court clerk at 14 West Jefferson
       Street, Joliet, Illinois, 60432, and stated:
               “PLEASE TAKE NOTICE that on Jan. 14, 2015, I placed the attached or enclosed
               documents in the institutional mail at Stateville Correctional Center, properly
               addressed to the parties listed above for mailing through the United States Postal
               Service.”

¶ 12                                            ANALYSIS
¶ 13       On appeal, Walker argues the trial court erred by (1) denying his motions for default, (2)
       granting Monreal’s section 2-619 motion to dismiss, and (3) finding Monreal’s section 2-615
       motion to dismiss should have been granted. Monreal filed a motion to dismiss the appeal for
       lack of jurisdiction, arguing Walker’s notice of appeal was untimely and “leaves this Court
       without jurisdiction to consider the appeal.” Monreal also argues on appeal that this court
       should affirm the trial court’s dismissal of the mandamus complaint and that the trial court did
       not err in denying Walker’s motions for default.

¶ 14                                           I. Jurisdiction
¶ 15       We first address Monreal’s motion to dismiss this appeal for lack of jurisdiction. A
       reviewing court has a duty to determine whether it has jurisdiction prior to addressing any issue
       on appeal. Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213
       (2009). A timely notice of appeal is mandatory for jurisdiction to be conveyed upon the
       appellate court. Id. Without a properly filed notice of appeal, the appellate court lacks
       jurisdiction over the matter and must dismiss the appeal. Huber v. American Accounting Ass’n,
       2014 IL 117293, ¶ 8.
¶ 16       Illinois Supreme Court Rule 303(a)(1) (eff. Jan. 1, 2015) requires an appealing party to file
       a notice of appeal with the clerk of the circuit court within 30 days after the entry of the final
       judgment being appealed (or within 30 days after the entry of the order disposing of a timely
       posttrial motion directed against the judgment). The time of filing of the notice of appeal will
       be the date on which the filings are actually received by the clerk of the reviewing court. Ill. S.


                                                    -3-
       Ct. R. 373 (eff. Sept. 19, 2014).1 However, if the clerk receives the notice of appeal after the
       due date, the time of mailing shall be deemed the time of filing. Id.
¶ 17       Subsection (b)(4) of Illinois Supreme Court Rule 12 specifically addresses service by mail
       by a pro se petitioner from a correctional facility, which provides that proof of service is
       accomplished by “certification as provided in section 1-109 of the Code of Civil Procedure
       (Code) (735 ILCS 5/1-109 (West 2012)) of the person who deposited the document in the
       institutional mail, stating the time and place of deposit and the complete address to which the
       document was to be delivered.” Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014). 2 Section 1-109 of
       the Code indicates that the person having knowledge of the matters stated in the document that
       was certified shall subscribe to a certification in substantially the following form:
                “Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil
                Procedure, the undersigned certifies that the statements set forth in this instrument are
                true and correct, except as to matters therein stated to be on information and belief and
                as to such matters the undersigned certifies as aforesaid that he verily believes the same
                to be true.” 735 ILCS 5/1-109 (West 2014).
       Section 1-109 also provides, “Any person who makes a false statement, material to the issue or
       point in question, which he does not believe to be true, in any pleading, affidavit or other
       document certified by such person in accordance with this Section shall be guilty of a Class 3
       felony.” 735 ILCS 5/1-109 (West 2014).
¶ 18       In this case, Walker’s notice of appeal was due for filing in the circuit clerk’s office by
       January 16, 2015. Ill. S. Ct. R. 303(a)(1) (eff. Jan. 1, 2015). However, the circuit clerk did not
       receive the notice of appeal until January 20, 2015. Since defendant’s notice of appeal was
       received by the circuit clerk more than 30 days after the trial court dismissed his mandamus
       complaint, the time of mailing may be used to establish the filing date. Walker’s proof of
       mailing indicated the date and place of deposit and the complete address of where the
       document was to be delivered but failed to include certifying language in substantial
       compliance with the requirements of section 1-109 of the Code.
¶ 19       Specifically, Walker was required to certify the following statement: “on Jan[uary] 14,
       2015, I placed the attached or enclosed documents in the institutional mail at [the] Stateville
       Correctional Center, properly addressed to the parties listed above for mailing through the
       United States Postal Service.” See 735 ILCS 5/1-109 (West 2014). Walker failed to indicate
       anywhere in the “certification” that he was certifying that he had placed the documents in the
       mail system on January 14, 2015, in accordance with section 1-109 of the Code. See 735 ILCS
       5/1-109 (West 2014). Thus, Walker’s certificate of mailing was insufficient to prove the date
       of mailing and failed to establish that the notice of appeal was timely filed.
¶ 20       Nonetheless, the envelope in which the notice of appeal was mailed was clearly
       postmarked January 16, 2015. Many districts have held that a postmark cannot be relied upon
       to provide sufficient proof of service where there is no certificate of service as required by Rule
       12(b). See People v. Blalock, 2012 IL App (4th) 110041, ¶ 11 (postjudgment motion deemed
       filed on date received by clerk and not date of postmark); People v. Smith, 2011 IL App (4th)

           1
             Subsequent to the relevant time pertaining to the facts of this case, Rule 373 was amended on
       October 6, 2016, with an effective date of November 1, 2016. Ill. S. Ct. R. 373 (eff. Nov. 1, 2016).
           2
             Subsequent to the relevant time pertaining to the facts of this case, Rule 12 was amended twice,
       with effective dates of January 2, 2016, and November 1, 2016. Ill. S. Ct. R. 12 (eff. Nov. 1, 2016).

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       100430 (adhering to the strict requirement of filing an affidavit or certificate of service in
       compliance with Rule 12(b)); People v. Tlatenchi, 391 Ill. App. 3d 705, 713 (2009) (the First
       District Appellate Court adhered to the strict requirements of Rule 12(b) for proof of mailing);
       People v. Lugo, 391 Ill. App. 3d 995, 1002 (2009) (Second District Appellate Court held that a
       postmark is not sufficient proof of mailing under Rule 12(b)). However, in contrast, a panel of
       the Second District Appellate Court has held that a legible postmark is sufficient to establish
       the date of mailing. People v. Hansen, 2011 IL App (2d) 081226, ¶ 14 (a clearly legible
       postmark is sufficient proof of mailing even where there is no certificate of service as required
       by Rule 12(b)).
¶ 21       Here, the envelope was clearly postmarked January 16, 2015, and was made part of the
       record in this case. The envelope indicates that Walker mailed the notice of appeal on or before
       January 16, 2015. We agree with the Hansen court that requiring a court to ignore a clearly
       legible postmark is requiring the court to disregard “the best, most competent evidence” of the
       date of mailing. Id. Relying upon the clearly legible postmark in this case, we conclude that
       Walker’s notice of appeal was timely filed. Consequently, we have jurisdiction over this
       appeal.

¶ 22                             II. Dismissal of the Mandamus Complaint
¶ 23       On appeal, Walker argues the trial court erred by (1) denying his motions for default and
       (2) granting Monreal’s section 2-619 motion to dismiss and indicating Monreal’s section
       2-615 motion to dismiss should have been granted. In response, Monreal argues that this
       appeal should be dismissed as moot because Walker is seeking a new MSR revocation hearing
       but the sentence that included the applicable MSR term has been discharged. Monreal also
       argues that the trial court properly dismissed the mandamus complaint pursuant to section
       2-619 of the Code because the claim was barred by the equitable doctrine of laches. He further
       argues that the dismissal of the mandamus complaint is appropriate pursuant to section 2-615
       because the allegations of the complaint failed to state a cause of action. Finally, Monreal
       argues that the trial court did not abuse its discretion in denying Walker’s motions for default
       judgment where there has been no showing of the denial of substantial justice.
¶ 24       We review de novo the trial court’s dismissal of Walker’s mandamus complaint pursuant to
       section 2-619 of the Code, and we may affirm on any basis supported by the record. Ashley v.
       Pierson, 339 Ill. App. 3d 733, 737 (2003). In the mandamus complaint, Walker requested a
       new revocation hearing so that he could offer proof at the new hearing that the warrant for his
       arrest for violating the MSR term was issued without probable cause.
¶ 25       Walker’s claim is barred by the doctrine of laches. Laches is applied when a party’s failure
       to timely assert a right has caused prejudice to an adverse party. Id. The doctrine of laches
       applies to mandamus petitions. Id. at 739. Generally, the party asserting a laches defense must
       prove (1) a lack of due diligence by the party asserting a claim and (2) prejudice to the party
       asserting laches. Id. The plaintiff’s lack of diligence is established by showing that more than
       six months has elapsed between the accrual of the cause of action and filing of the petition,
       unless there is a reasonable excuse for the delay. Id.; Caruth v. Quinley, 333 Ill. App. 3d 94, 99
       (2002). In proving prejudice by the other party’s delay, prejudice is deemed inherent “where a
       detriment or inconvenience to the public will result.” (Internal quotation marks omitted.)
       Ashley, 339 Ill. App. 3d at 739 (quoting City of Chicago v. Condell, 224 Ill. 595, 598-99
       (1906)). Such detriment and inconvenience exists in cases where inmates file mandamus

                                                   -5-
       petitions more than six months after the completion of the original IDOC disciplinary
       proceedings and no reasonable excuse exists for the delay. Id.; Alicea v. Snyder, 321 Ill. App.
       3d 248, 254 (2001) (IDOC conducts large number of disciplinary proceedings every year and
       the expense and burden of conducting reviews long after the original proceedings are
       completed would result in extensive public detriment and inconvenience).
¶ 26       In this case, Walker filed his mandamus complaint more than 10 years after the denial of
       his request for a continuance at the revocation hearing on November 5, 2003. Walker provides
       no reasonable excuse for the prolonged delay. Prejudice by the delayed filing of the mandamus
       complaint is inherent in this case, where more than six months has elapsed since the
       complained of proceeding was conducted by the Illinois Prisoner Review Board and the
       sentence for which the relevant MSR term was revoked has long since been discharged. See
       Ashley, 339 Ill. App. 3d at 737. Consequently, we affirm the trial court’s dismissal of Walker’s
       mandamus complaint pursuant to section 2-619 of the Code.

¶ 27                            III. Denial of Walker’s Motions for Default
¶ 28       Walker also argues that the trial court erred in denying his motions for default. Entry of a
       default is a drastic remedy that should be used only as a last resort because the law prefers that
       controversies be determined according to the substantive rights of the parties. In re Haley D.,
       2011 IL 110886, ¶ 69. Decisions whether to grant or deny a motion for default judgment are
       within the sound discretion of the trial court and will not be reversed absent an abuse of
       discretion or the denial of substantial justice. Dupree v. Hardy, 2011 IL App (4th) 100351,
       ¶ 51. Where a defendant files a motion to vacate a default order, the provisions of the Code
       governing relief from a default are to be liberally construed, with the overriding consideration
       being whether substantial justice is being done between the litigants and whether it is
       reasonable, under the circumstances, to compel the parties to go to trial on the merits.
       Haley D., 2011 IL 110886, ¶ 69. In making this assessment, a court should consider all events
       leading up to the judgment, with the determination of what is just and proper determined by the
       facts of each case. Id.
¶ 29       Given the circumstances of this case, the trial court did not abuse its discretion in denying
       Walker’s requests for default where substantial justice would not have been accomplished had
       the default motions been granted. Section 2-615 of the Code governs motions to dismiss
       complaints that are substantially insufficient in law. See 735 ILCS 5/2-615 (West 2012). Under
       section 2-615 of the Code, we accept as true all well-pleaded facts contained within the
       complaint, along with the reasonable inferences, and view those facts in the light most
       favorable to the plaintiff. Dupree, 2011 IL App (4th) 100351, ¶ 19. Here, Walker alleged that
       he was arrested for violating various terms of his MSR and the arrest warrant lacked probable
       cause. He claimed that he requested several continuances of the MSR revocation hearing to
       obtain information to challenge the warrant, but the hearing officer denied those requests,
       finding the issue of whether there was sufficient probable cause to issue the arrest warrant to be
       “moot” where Walker had been convicted of a murder that took place during the MSR term
       that was the subject of the revocation hearing. Accepting the facts that Walker pled as true,
       Walker had been convicted of a murder that took place during his MSR term, and the
       revocation hearing officer specifically indicated that the revocation proceedings were to be
       based on that murder offense. The mandamus complaint failed to state a claim. See
       McFatridge v. Madigan, 2013 IL 113676, ¶ 17 (mandamus is an extraordinary remedy to

                                                   -6-
       compel public officers to perform nondiscretionary official duties, wherein a plaintiff must
       establish a clear right to the relief sought, a clear duty of the public officer to act, and clear
       authority of the public officer to comply with the order); Hadley v. Ryan, 345 Ill. App. 3d 297,
       301 (2003) (mandamus may not be used to direct the official to reach a particular decision or
       exercise his discretion in a particular manner). Substantial justice would not have been
       accomplished by the trial court granting Walker’s default motions where the complaint failed
       to state a claim.
¶ 30       Furthermore, even if a default order against Monreal had been entered, upon Monreal’s
       request for vacatur, substantial justice would require the trial court to set aside the default
       where the mandamus complaint both failed to state a claim and was barred by the doctrine of
       laches. See Haley D., 2011 IL 110886, ¶ 69. Consequently, the trial court did not abuse its
       discretion in denying Walker’s motions for default.

¶ 31                                       CONCLUSION
¶ 32      The judgment of the circuit court of Will County is affirmed.

¶ 33      Affirmed.




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