                                Illinois Official Reports

                                       Appellate Court



                            Lee v. Godinez, 2014 IL App (3d) 130677




Appellate Court           LINCOLN A. LEE, Plaintiff-Appellant, v. SALVADOR A.
Caption                   GODINEZ, Director of the Department of Corrections; TY BATES,
                          Deputy Director of the Department of Corrections; SANDRA FUNK;
                          MARC HODGES, Warden of the Department of Corrections;
                          RANDY STEVENSTON, Defendants-Appellees.


District & No.            Third District
                          Docket Nos. 3-13-0677, 3-13-0889 cons.


Filed                     June 20, 2014


Held                       In an action arising from the denial of plaintiff’s writ of mandamus
(Note: This syllabus alleging that defendant officials of the Department of Corrections
constitutes no part of the abused their discretion when they denied plaintiff good-time credits,
opinion of the court but work release, and electronic home detention based on his prior
has been prepared by the domestic battery conviction and that a change to the Unified Code of
Reporter of Decisions Corrections allowing for the discretionary award of good-time credit
for the convenience of constituted a violation of the ex post facto clause, plaintiff’s appointed
the reader.)               appellate counsel was properly allowed to withdraw from the appeal
                           pursuant to Anders and plaintiff’s appeal was dismissed, since the
                           “perks” plaintiff claimed he was denied were clearly matters left to the
                           discretion of the Director of the Department of Corrections, and in the
                           absence of any ex post facto violations or any other constitutional
                           abuses, no issues of merit were presented.



Decision Under            Appeal from the Circuit Court of Rock Island County, No.
Review                    13-MR-381; the Hon. Michael F. Meersman, Judge, presiding.



Judgment                  Motion to withdraw allowed; appeal dismissed.
     Counsel on              Nate Nieman, of Moline, for appellant.
     Appeal
                             Lisa Madigan, Attorney General, of Chicago (Terry A. Mertel, of
                             State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                             appellees.




     Panel                   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.



                                                  -2-
¶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 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.
¶ 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.]’ ” (Emphasis in original.) 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

                                                   -3-
       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 (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.
¶ 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.


                                                     -4-
¶ 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 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 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


                                                   -5-
       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
       statute that 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 he 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 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



                                                   -6-
       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 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


                                                  -7-
       rejected. 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 (2001).
¶ 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 Title 20 of the Illinois Administrative Code (20 Ill. Adm. Code 107.210,
       adopted at 20 Ill. Reg. 6745 (eff. May 5, 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
       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.




                                                   -8-
