                                        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

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                    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.




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¶ 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


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       (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.




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¶ 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




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       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.




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