201 4 IL App ( 3d ) 130 677 O pinion filed June 20, 2014

_____________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
THIRD DISTRICT A.D., 2014
LINCOLN A. LEE , ) ) Plaintiff

- Appell ant , ) ) v. ) ) SALVADOR A. 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, ) ) Defendant s - Appel l ee s . ) ) Appeal from the Circuit Court of the 1 4 th Judicial Circuit, Rock Island County , Illinois

. Appeal No s . 3

- 13

- 0 677 3

- 13

- 0889 Circuit No. 13

- MR

- 381

Honorable Michael F. Meersman , Judge, P residing.

_____________________________________________________________________________ JUSTICE SCHMIDT delivered the jud gment of the court , with opinion

. Justice Holdridge concurred in the judgment and opinion. Justice McDade specially concurred with opinion.

O PINION ¶ 1 On May 1, 2013, p laintiff , Lincoln Lee, filed a petition for writ of mandamus in the Rock Island County circuit court against defendants, Department of Corrections Director S alvador Godinez, Deputy Director Ty Bates, t ransfer c oordinator Sandra Funk, Warden Marc Hodges, and h ead c ounselor Randy Stevens t on ( 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 ) ),2 alleged that defendants a bused their discretion in denying p laintiff 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) ( 7 30 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. P laintiff '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. P laintiff 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 s upplemental s entencing

c redit (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 violen ce convictions, which is arbitrary and constitutes an abuse of discretion. ¶ 7 Rules and regulations for sentenc ing 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 credit3 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 D irector 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 viole nt 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 Cr ime 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 eligib le for good

- time cr edit at the
D irector's sole discretion.4 ¶ 10 T he 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 D irector's sole discretion, there is no statutory right to good

- time credit, nor is the D irector 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 D irector of the Ill inois Department of Corrections

. Helm claimed he was entitled to 180 days of meritorious good

- time credit , which the D irector 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 Code5 ( 730 ILCS 5/3

- 6

- 3(a)(3) (West 1998 ) ). According to Helm , the D irector denied his request for good

- time credit on the ground s that he had a prior order of protection filed against him. ¶ 13 The D irector moved to dismiss the petition on the ground s 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, th e petition alleged only that he qualified for consideration of good

- t ime credit against his sentence, which could be granted or denied at the D irector '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 D irector , 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 , 2 62 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 D irector with full discretion to award or deny good

- t ime 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 i s rendered inconsequential. Nonetheless , the 2012 amendments to section 3

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- 3(a)(3) make it clear that the D irector may consider such a conviction in determining whether to grant early release to an otherwise eligible inmate. Therefore, plaintiff's basic premise th at the D irector relied upon an unwritten rule is a false premise. The " unwritten rule" upon which plaintiff alleges defendants relied is written within the statute.6 ¶ 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 D irector's refusal of Guzzo's good

- time credit , pursuant to section 3

- 6

- 3(a)(3) of the Unified Co de , 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
D irector's discretion, bu t 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 D irector's policy of denying good

- time credit based sol ely 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 meritoriou s 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 D irector implicat ing the mandamus exception, nor did he assert that he had a clear righ t to relief or that the D irector 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 D irector has the discretion to award meritorious good

- time c redit, Helm's argument could not have been construed as anything other than an argument that the D irector abused his discretion in arbitrarily denying that credit. Finally, the7 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 wh ich 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

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- 3(a)(3) make it clear that the D irector may consider a n 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 D irector of that statutorily vested discretion. The General Assembly vested the D irector, not the courts, with the discretion to award SSC. Mandam us relief is therefore inappropriate. The Guzzo court failed to recognize that the D irector 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, t he D irector'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 regulation s 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." ( E mphasis added

. ) 730 ILCS 5/3

- 6

- 3 (a)(3) ( West 20 08 ). We acknowledge that it was8 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 D irector'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 revi sed section 3

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- 3(a)(3) presents this court with an ex post facto violation. ¶ 22 The Illinois Constitution , like the United S tates Constitution, forbids the enactment of ex post facto laws. Ill. Const. 1970, art. I , § 16 . "O ur supreme court ha s interprete d 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 t he 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." Californ ia Dep ar t ment 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
"r educing 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 Florida9 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 fac to law, the Supreme Court explicitly recognized the differen ce 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. T he award of SSC is , and always has been, discretionary . W hether or not the plaintiff actually received it has no e ffect whatsoever on his actual sent ence. 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 cit e 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 f or the D epartment 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, create s an entitlement to participate in the work

- release10 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. 19 8 8). Likewise, as pointed ou t 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 20 08 ) ). 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 a n electronic ho me 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 pr ogram. 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 assist11 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 D irector , 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. Plain tiff 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 M otion 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 c redit, 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.12 As a result, the motion of plaintiff's counsel pursuant to Anders v. California , 3 86 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 t he 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 a foul 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 than13 contrary to them. In the context of the contemp oraneous 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 direc tor 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.