Filed 11/16/07              NO. 4-07-0226

                      IN THE APPELLATE COURT

                               OF ILLINOIS

                           FOURTH DISTRICT

RICHARD NEVILLE,                        )    Appeal from
          Plaintiff-Appellant.          )    Circuit Court of
          v.                            )    Sangamon County
ROGER E. WALKER, JR., Director,         )    No. 06MR543
Illinois Department of Corrections; and )
JORGE MONTES, Chairman, Illinois        )    Honorable
Prisoner Review Board,                  )    Leo J. Zappa, Jr.,
          Defendants-Appellees.         )    Judge Presiding.
_________________________________________________________________

           JUSTICE COOK delivered the opinion of the court:

           Plaintiff, Richard Neville, an inmate at Lawrence

Correctional Center (Lawrence), is serving a sentence for convic-

tion in 1999 of two counts of predatory criminal sexual assault

(720 ILCS 5/12-14.1 (West 1998)).     On August 31, 2006, he com-

pleted the determinate sentence imposed when he was convicted.

The Parole Review Board (Board) conditioned his transition to

mandatory supervised release (MSR) on his compliance with certain

conditions.   Plaintiff was unable to comply with one of the

conditions, so the Department of Corrections (DOC) refused to

release him on MSR.   Plaintiff filed a pro se mandamus action

arguing that the condition on his MSR and the consequent refusal

to release him violated the ex post facto clause of the federal

and state constitutions.   The trial court dismissed his com-

plaint.   Plaintiff appeals.    We affirm.

                            I. BACKGROUND

           Plaintiff is currently incarcerated at Lawrence.

Plaintiff's conviction allows the Board to label him a sex
offender (see 730 ILCS 150/2(B)(1) (West 2006)), triggering

subsection (b-1) of section 3-3-7 of the Unified Code of Correc-

tions (Unified Code) (730 ILCS 5/3-3-7(b-1) (West 2006)), which

calls for the Board to consider conditioning his release to MSR

on his submitting to electronic detention.    The Board decided to

impose electronic monitoring as a condition and DOC has been

working with plaintiff to find an acceptable host site that can

accommodate him as a sex offender and accommodate his need for

electronic monitoring.   No host site for plaintiff's residence

has been approved.   Because plaintiff would be in immediate

violation of the terms of his MSR were he released without a

place to live that would allow electronic monitoring, DOC did not

release him from custody as scheduled on August 31, 2006.

          Plaintiff filed a petition for mandamus on September

28, 2006, seeking relief with respect to his period of MSR.

Plaintiff's complaint is based on his contention that the Board

may not condition his MSR on compliance with any sex-offender-

specific statutory conditions because section 3-3-7(b-1) of the

Unified Code (730 ILCS 5/3-3-7(b-1) (West 2006)) was added to the

statutory scheme governing MSR after the date plaintiff committed

his crimes and was sentenced.   Plaintiff argues that conditioning

his release on his ability and agreement to submit to electronic

monitoring is an impermissible retroactive application of Illi-

nois law that violates the ex post facto provisions of the

Illinois and United States Constitutions.    Plaintiff sought an

order compelling the Board to withdraw those MSR conditions that


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were not listed in the statute at the time of plaintiff's convic-

tion and directing DOC to release him.

          Defendants filed a motion to dismiss under section 2-

615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West

2006)), arguing plaintiff could not show a clear right to relief

as he could not comply with the conditions set by the Board for

plaintiff's MSR.   On March 6, 2007, the trial court dismissed

plaintiff's complaint.   This appeal followed.

                            II. ANALYSIS

          On appeal, plaintiff argues that defendants deliber-

ately misinterpret section 3-3-7 of the Unified Code and this

court should direct a judgment without remand.    Defendants

counter that DOC's refusal to unconditionally release plaintiff

does not violate the ex post facto clauses as the Board's exer-

cise of discretion is not subject to the restrictions of the ex

post facto clause, section 3-3-7 is not punishment, and plain-

tiff's sentence has not been increased.

          We review de novo the granting of a motion to dismiss a

petition for mandamus.    Lucas v. Taylor, 349 Ill. App. 3d 995,

998, 812 N.E.2d 72, 75 (2004).

          To state a claim for mandamus relief, a plaintiff must

allege "facts which establish a clear right to the relief re-

quested, a clear duty of the respondent to act, and clear author-

ity in the respondent to comply with the writ."    Noyola v. Board

of Education of the City of Chicago, 179 Ill. 2d 121, 133, 688

N.E.2d 81, 86 (1997).    "The party requesting a writ of mandamus


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bears the burden of demonstrating a clear right to the relief

[requested]."     Romero v. O'Sullivan, 302 Ill. App. 3d 1031, 1034,

707 N.E.2d 986, 988 (1999).    To grant mandamus, plaintiff must

set forth every "material fact" necessary to prove he has the

clear right to the relief requested and defendants have a duty to

act as they are authorized to comply with the requested relief.

Turner-El v. West, 349 Ill. App. 3d 475, 480, 811 N.E.2d 728, 733

(2004).   Mandamus does not apply to duties wherein DOC officials

are exercising their discretion.     Noyola, 179 Ill. 2d at 133, 688

N.E.2d at 86.

          Defendant argues that section 3-3-7 as written when he

committed his crime in 1999 does not discuss electronic monitor-

ing so the Board cannot require it as a condition in 2006 without

violating the ex post facto clauses of the United States and

Illinois Constitutions.    We disagree.

          The ex post facto clauses of the United States and

Illinois Constitutions provide the same protection from

"[r]etroactive application of a law that inflicts greater punish-

ment than did the law that was in effect when the crime was

committed."     People v. Cornelius, 213 Ill. 2d 178, 207, 821

N.E.2d 288, 306 (2004).    Whether a legislative change violates

the ex post facto clauses depends on whether that change "'alters

the definition of criminal conduct or increases the penalty by

which a crime is punishable.'"     Fletcher v. Williams, 179 Ill. 2d

225, 234, 688 N.E.2d 635, 640 (1997), quoting California Depart-

ment of Corrections v. Morales, 514 U.S. 499, 506-07 n.3, 131 L.


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Ed.2d 588, 595 n.3, 115 S. Ct. 1597, 1602 n.3 (1995).    To show a

violation of the ex post facto clauses, therefore, 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.

Plaintiff is unable to meet any of these elements.

           In 2005, the Illinois legislature added subsection

(b-1) to section 3-3-7 of the Unified Code, which stated the

Board "may" require of sex offenders compliance with a list of

specific conditions of release, including electronic monitoring

for a minimum of 12 months from the date of release.    730 ILCS

5/3-3-7(b-1)(6) (West 2006).   This condition was not specifically

listed in 1999 when plaintiff committed his crime.   See 730 ILCS

5/3-3-7 (West 1998).   In 1999, as well as today, however, section

3-3-7 authorized the Board to set conditions for MSR that it

deemed "necessary to assist the subject in leading a law-abiding

life."   730 ILCS 5/3-3-7(a) (West 1998).

           We first note that even if we considered the amendments

added in 2005 to be stricter MSR conditions, most federal cir-

cuits agree that ex post facto laws are not violated by "applying

more severe parole guidelines than those in force when the crime

was committed."   Prater v. United States Parole Comm'n, 802 F.2d

948, 951 (7th Cir. 1986).   Further, the Board is an executive

agency and "the constitutional prohibition against ex post facto

laws *** is directed to the legislative branch of government

rather than [to the] other branches."   Prater, 802 F.2d at 951.


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          The legislative change cited by plaintiff is merely

another possibility added to what was already a grant of blanket

discretionary authority to an executive agency.    Compare 730 ILCS

5/3-3-7(a) (West 1998) and 730 ILCS 5/3-3-7(a) (West 2006)

("[t]he conditions of *** [MSR] shall be such as the [Board]

deems necessary to assist the subject in leading a law-abiding

life"), with 730 ILCS 5/3-3-7(b-1) (West 2006) ("[i]n addition to

the conditions set forth in subsections (a) and (b), persons

required to register as sex offenders *** may be required by the

Board to comply with the following specific conditions of re-

lease" (emphasis added)).   The ex post facto clauses do not apply

to laws and regulations that merely advise.     United States v.

Demaree, 459 F.3d 791, 795 (7th Cir. 2006).

          Aside from section 3-3-7(b-1) being advisory, the

change did not impose punishment because the principal purpose of

the MSR program was not intended as imposition of punishment.

Faheem-El v. Klincar, 123 Ill. 2d 291, 301, 527 N.E.2d 307, 311

(1988) (concluding that MSR was meant to extend DOC's control

over the conduct of those who had minimal incentives to conform

to society's standards and who were most likely to have diffi-

culty reintegrating themselves into society).    The new MSR

conditions for sex offenders are designed to limit the offenders'

access to potential victims.   Specifically, subsection (b-1)(15)

of section 3-3-7 states that the Board may require that the

offender "comply with all other special conditions that [DOC] may

impose that restrict the person from high-risk situations and


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limit access to potential victims."    730 ILCS 5/3-3-7(b-1)(15)

(West 2006).   If the principal purpose of a statute is a

nonpunitive purpose, like protection of the public, the statute

is not considered a punishment that would warrant ex post facto

application.   See Smith v. Doe, 538 U.S. 84, 93, 155 L. Ed. 2d

164, 177, 123 S. Ct. 1140, 1147 (2003); Cornelius, 213 Ill. 2d at

207, 821 N.E.2d at 306 (ex post facto does not apply to the sex-

offender registration and notification statutes as the principal

purpose of the statutes is to protect the public, not punish the

offender).

           Finally, plaintiff's sentence has not been increased.

Both in 1999 and today, an inmate is entitled to MSR only so long

as that inmate complies with the conditions imposed by the Board.

See 730 ILCS 5/3-3-7 (West 1998); 730 ILCS 5/3-3-7 (West 2006).

In 1999 when defendant committed his crime, was convicted, and

was sentenced, the Board had the discretion to impose whatever

condition it deemed "necessary to assist the subject in leading a

law-abiding life."   The 2005 amendments merely enumerated condi-

tions that may be applied specifically to sex offenders serving

MSR.   Because the change in law "'simply explicitly articulated

the [Board's] broad range of discretion which had always ex-

isted'" the change did not disadvantage defendant, who committed

the crime before the change.   Dewey v. Prison Review Board, 162

Ill. App. 3d 751, 753, 516 N.E.2d 621, 623 (1987), quoting

Heirens v. Mizell, 729 F.2d 449, 463 (7th Cir. 1984) (which held

that applying a specific criterion in the statute governing


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guidelines for awarding parole to an offender sentenced prior to

that addition did not violate the ex post facto clause).

            Because the Board always had the discretion to dictate

conditions on plaintiff's MSR, the expression of a specific

condition after plaintiff was sentenced merely "established a

framework or structure within which the Board's discretion was to

be exercised" (Heirens, 729 F.2d at 464); it did not increase

plaintiff's sentence.

            Plaintiff has not shown facts that establish a clear

right to the relief requested, a clear duty of defendants to act,

or clear authority in the defendants to comply with the writ.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            TURNER and APPLETON, JJ., concur.




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