Arsberry v. Baldwin ( 2020 )

NOTICE 2020 IL App (4th) 190358-UThis order was filed under Supreme
FILED
Court Rule 23 and may not be cited NO. 4-19-0358 May 22, 2020
as precedent by any party except in Carla Bender
the limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
LONNIE ARSBERRY, ) Appeal from the
Petitioner-Appellant, ) Circuit Court of
v. ) Sangamon County
JOHN BALDWIN, in His Official Capacity as Director of ) No. 18MR388
Corrections, )
Respondent-Appellee. ) Honorable
) Rudolph M. Braud Jr.,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices DeArmond and Harris concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of petitioner’s petition for mandamus was proper.
¶2 In May 2018, petitioner, Lonnie Arsberry, filed a pro se complaint for mandamus
(735 ILCS 5/14-101 et seq. (West 2018)) against respondent, John Baldwin, in his official
capacity as Director of Corrections. In his mandamus petition, petitioner sought additional
sentence credit under section 3-6-3(a)(4) of the Unified Code of Corrections (Unified Code) (730
ILCS 5/3-6-3(a)(4) (West 2018)) and immediate release from prison. Petitioner later filed a
supplement to his mandamus petition, to which he attached numerous exhibits. In September
2018, respondent filed a combined motion to dismiss under section 2-619.1 of the Code of Civil
Procedure (Procedure Code) (735 ILCS 5/2-619.1 (West 2018)). After a May 2019 hearing, the
Sangamon County circuit court granted respondent’s motion to dismiss.
¶3 Petitioner appeals, asserting the circuit court erred by dismissing his mandamus
petition. We affirm.
¶4 I. BACKGROUND
¶5 A jury found petitioner guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38,
¶ 18-2(a)) and two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, ¶ 12-4) for
petitioner’s actions on October 10, 1989. People v. Arsberry, 242 Ill. App. 3d 1034, 1034, 611
N.E.2d 1285, 1286 (1993). Armed robbery was a Class X felony (Ill. Rev. Stat. 1985, ch. 38,
¶ 18-2(b)) and aggravated battery was a Class 3 felony (Ill. Rev. Stat. 1985, ch. 38, ¶ 12-4(e)).
The Cook County circuit court sentenced petitioner to 60 years’ imprisonment for armed robbery
and two concurrent 5-year terms for each count of aggravated battery, to be served consecutively
to the sentence for armed robbery. Arsberry, 242 Ill. App. 3d at 1034-35, 611 N.E.2d at 1286.
¶6 On May 11, 2018, petitioner filed his petition for mandamus, seeking to have the
circuit court award him additional sentence credit under section 3-6-3(a)(4) of the Unified Code
(730 ILCS 5/3-6-3(a)(4) (West 2018)). He asserted a proper application of section 3-6-3(a)(4)
would result in an additional 4½ years of sentence credit to him, and thus he would be entitled to
immediate release from prison. His mandamus petition noted his current date for release from
prison was April 2022. We note petitioner is currently on home custody with a projected release
date of October 2020. See Illinois Department of Corrections, Inmate Search,
http://www2.illinois.gov/idoc/offender/pages/inmateSearch.aspx (last visited Apr. 16, 2020). In
June 2018, petitioner filed a supplement to his mandamus petition and attached numerous
diplomas, transcripts, certificates, and documentation supporting his allegation of participation
and successful completion of programming while in prison for the past 28 years. Petitioner also
asserted in the supplement he was owed up to 8 years, 2 months, and 12 days of sentence credit
for his participation in various programs. Petitioner did not seek leave to file his supplement to
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his mandamus petition.
¶7 In September 2018, respondent filed a combined motion to dismiss under section
2-619.1 of the Procedure Code (735 ILCS 5/2-619.1 (West 2018)). Respondent argued
petitioner’s complaint should be dismissed with prejudice under section 2-619 of the Procedure
Code (735 ILCS 5/2-619 (West 2018)) because the relief petitioner requested involved the
exercise of discretion, and thus relief could not be compelled through a writ of mandamus.
Respondent also argued petitioner’s complaint should be dismissed without prejudice under
section 2-615 of the Procedure Code (735 ILCS 5/2-615 (West 2018)) because petitioner neither
alleged facts sufficient to plead a cause of action upon which relief can be granted nor alleged
facts sufficient to show he exhausted his administrative remedies prior to filing suit. Petitioner
filed a reply to the motion to dismiss, attaching his February 15, 2018, grievance that requested
sentence credit under section 3-6-3(a)(4).
¶8 On May 6, 2019, the circuit court held a telephone conference on respondent’s
motion to dismiss. The court granted respondent’s motion to dismiss under section 2-619. On
May 9, 2019, the court entered the written dismissal order.
¶9 On June 7, 2019, petitioner filed a timely notice of appeal from the dismissal of
his petition for mandamus in sufficient compliance with Illinois Supreme Court Rule 303 (eff.
July 1, 2017). Thus, this court has jurisdiction of petitioner’s appeal under Illinois Supreme
Court Rule 301 (eff. Feb. 1, 1994).
¶ 10 II. ANALYSIS
¶ 11 In this case, petitioner appeals from the circuit court’s dismissal of his mandamus
action. Regardless of whether the circuit court’s dismissal of petitioner’s mandamus action was
under section 2-615 or 2-619, or a combination of both sections pursuant to section 2-619.1, this
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court’s standard of review is the same. Jane Doe-3 ex rel. Julie Doe-3 v. White, 409 Ill. App. 3d
1087, 1092, 951 N.E.2d 216, 223 (2011). We review de novo the circuit court’s dismissal.
White, 409 Ill. App. 3d at 1092, 951 N.E.2d at 223. “In doing so, we will accept as true all
well-pleaded factual allegations.” White, 409 Ill. App. 3d at 1092, 951 N.E.2d at 223.
Additionally, we may affirm the dismissal on any basis in the record, regardless of the circuit
court’s reasoning. O’Callaghan v. Satherlie, 2015 IL App (1st) 142152, ¶ 17, 36 N.E.3d 999.
¶ 12 Mandamus relief is an extraordinary remedy which will not be granted unless the
petitioner establishes he has a clear right to the relief requested, the respondent public officer has
a clear duty to act, and the public officer has clear authority to comply with the order. People
ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 192-93, 909 N.E.2d 783, 791 (2009). If the act in
question involves the exercise of an official’s discretion, relief will not be granted. Konetski, 233
Ill. 2d at 193, 909 N.E.2d at 791.
¶ 13 Petitioner asserts he is entitled to the additional sentence credit under section
3-6-3(a)(4) of the Unified Code (730 ILCS 5/3-6-3(a)(4) (West 2018)). A history of the
amendments to the statute and the statute’s current language are necessary to understanding the
application of section 3-6-3(a)(4) to petitioner’s mandamus petition.
¶ 14 Public Act 86-1373, which was effective September 10, 1990, added subsection
(a)(4) to section 3-6-3 of the Unified Code. The new section provided the good conduct credit
accumulated under section 3-6-3(a)(2) for each day of service in prison should be multiplied by
1.25 when the inmate was engaged in certain programs. Pub. Act 86-1373 (eff. Sept. 10, 1990)
(adding 730 ILCS 5/3-6-3(a)(4)). However, the provision excluded inmates who were convicted
of first degree murder, second degree murder, or a Class X felony from receiving the additional
sentence credit. Pub. Act 86-1373 (eff. Sept. 10, 1990) (adding 730 ILCS 5/3-6-3(a)(4)). Later,
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Public Act 88-311, which was effective August 11, 1993, amended section 3-6-3(a)(4) and
changed the multiplier to provide programs satisfactorily completed before the effective date of
the amendment shall be multiplied by a factor of 1.25 and 1.50 for program participation on or
after the effective date of the amendment. Public Act 88-311 also added more offenses that were
excluded from receiving the additional sentence credit. Pub. Act 88-311 (eff. Aug. 11, 1993)
(amending 730 ILCS 5/3-6-3(a)(4)). Public Act 90-592, which was effective on June 19, 1998,
made significant changes to section 3-6-3 in its entirety but neither changed the multiplier nor
the Class X exclusion related to the additional sentence credit. Subsequent amendments added
more offenses excluded from the additional sentence credit.
¶ 15 In 2017, the legislature passed Public Act 100-3, which was effective January 1,
2018, and made the sweeping changes to section 3-6-3 of the Procedure Code that are at issue in
this appeal. Section 3-6-3(a)(4) of the Procedure Code as amended by Public Act 100-3
provided, in pertinent part, as follows:
“Except as provided in paragraph (4.7) of this subsection (a), the rules and
regulations shall also provide that the sentence credit accumulated and retained
under paragraph (2.1) of subsection (a) of this Section by any inmate during
specific periods of time in which such inmate is engaged full-time in substance
abuse programs, correctional industry assignments, educational programs,
behavior modification programs, life skills courses, or re-entry planning provided
by the Department under this paragraph (4) and satisfactorily completes the
assigned program as determined by the standards of the Department, shall be
multiplied by a factor of 1.25 for program participation before August 11, 1993
and 1.50 for program participation on or after that date.” 730 ILCS 5/3-6-3(a)(4)
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(West 2018).
Section 3-6-3(a)(4.7) of the Unified Code provided as follows:
“On or after the effective date of this amendatory Act of the 100th General
Assembly, sentence credit under paragraph (3), (4), or (4.1) of this subsection (a)
may be awarded to a prisoner who is serving a sentence for an offense described
in paragraph (2), (2.3), (2.4), (2.5), or (2.6) for credit earned on or after the
effective date of this amendatory Act of the 100th General Assembly; provided,
the award of the credits under this paragraph (4.7) shall not reduce the sentence of
the prisoner to less than the following amounts:
(i) 85% of his or her sentence if the prisoner is required to serve 85% of
his or her sentence; or
(ii) 60% of his or her sentence if the prisoner is required to serve 75% of
his or her sentence, except if the prisoner is serving a sentence for gunrunning his
or her sentence shall not be reduced to less than 75%.
This paragraph (4.7) shall not apply to a prisoner serving a sentence for an offense
described in subparagraph (i) of paragraph (2) of this subsection (a).” 730 ILCS
5/3-6-3(a)(4.7) (West 2018).
Public Act 100-3 removed the restriction preventing Class X offenders from receiving credits
provided by section 3-6-3(a)(4). Pub. Act 100-3 (eff. Jan. 1, 2018) (amending 730 ILCS 5/3-6-
3(a)(4)).
¶ 16 Recently, the legislature amended section 3-6-3(a)(4) again by adding the
following language:
“(B) The Department shall award sentence credit under this paragraph (4)
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accumulated prior to the effective date of this amendatory Act of the 101st
General Assembly in an amount specified in subparagraph (C) of this paragraph
(4) to an inmate serving a sentence for an offense committed prior to June 19,
1998, if the Department determines that the inmate is entitled to this sentence
credit, based upon:
(i) documentation provided by the Department that the inmate
engaged in any full-time substance abuse programs, correctional industry
assignments, educational programs, behavior modification programs, life
skills courses, or re-entry planning provided by the Department under this
paragraph (4) and satisfactorily completed the assigned program as
determined by the standards of the Department during the inmate’s
current term of incarceration; or
(ii) the inmate’s own testimony in the form of an affidavit or
documentation, or a third party’s documentation or testimony in the form
of an affidavit that the inmate likely engaged in any full-time substance
abuse programs, correctional industry assignments, educational programs,
behavior modification programs, life skills courses, or re-entry planning
provided by the Department under paragraph (4) and satisfactorily
completed the assigned program as determined by the standards of the
Department during the inmate’s current term of incarceration.
(C) If the inmate can provide documentation that he or she is entitled to
sentence credit under subparagraph (B) in excess of 45 days of participation in
those programs, the inmate shall receive 90 days of sentence credit. If the inmate
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cannot provide documentation of more than 45 days of participation [in] those
programs, the inmate shall receive 45 days of sentence credit. In the event of a
disagreement between the Department and the inmate as to the amount of credit
accumulated under subparagraph (B), if the Department provides documented
proof of a lesser amount of days of participation in those programs, that proof
shall control. If the Department provides no documentary proof, the inmate’s
proof as set forth in clause (ii) of subparagraph (B) shall control as to the amount
of sentence credit provided.
(D) If the inmate has been convicted of a sex offense as defined in Section
2 of the Sex Offender Registration Act [730 ILCS 150/2 (West 2018)], sentence
credits under subparagraph (B) of this paragraph (4) shall be awarded by the
Department only if the conditions set forth in paragraph (4.6) of subsection (a) are
satisfied. No inmate serving a term of natural life imprisonment shall receive
sentence credit under subparagraph (B) of this paragraph (4).” Pub. Act 101-440
(eff. Jan. 1, 2020) (amending 730 ILCS 5/3-6-3(a)(4)).
¶ 17 Here, petitioner concedes he was prohibited from earning the additional sentence
credit provided by section 3-6-3(a)(4) until January 1, 2018, the effective date of Public Act
100-575. However, he argues the amendment made by Public Act 100-575 applied retroactively,
and thus he was entitled to the application of the appropriate multiplier to all eligible programs
that he had already satisfactorily completed. In support of his argument, petitioner noted the
following language from section 3-6-3(a)(4) of the Unified Code (730 ILCS 5/3-6-3(a)(4) (West
2018)): “multiplied by a factor of 1.25 for program participation before August 11, 1993 and
1.50 for program participation on or after that date.” Respondent disagrees, asserting the
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amendment made by Public Act 100-575 is prospective.
¶ 18 The Illinois Supreme Court has adopted the two-part analysis for determining
retroactivity established by the United States Supreme Court in Landgraf v. USI Film Products,
511 U.S. 244 (1994). People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 19, 72 N.E.3d 346.
With the Landgraf test, the first question is whether the legislature clearly indicated the temporal
reach of the amended statute. Howard, 2016 IL 120729, ¶ 19. “If so, then that expression of
legislative intent must be given effect, absent a constitutional prohibition.” Howard, 2016 IL
120729, ¶ 19. “If not, then the court proceeds to step two and determines whether the statute
would have a retroactive impact.” Howard, 2016 IL 120729, ¶ 19. However, an Illinois court
does not need to go beyond step one of the Landgraf test because the legislature has clearly set
forth the temporal reach of every amended statute in section 4 of the Statute on Statutes (5 ILCS
70/4 (West 2014)). Howard, 2016 IL 120729, ¶ 20. Section 4 of the Statute on Statutes is a
general savings clause, which the Illinois Supreme Court has interpreted as meaning “procedural
changes to statutes will be applied retroactively, while substantive changes are prospective only.”
Howard, 2016 IL 120729, ¶ 20.
¶ 19 The only temporal reference in the amendment made by Public Act 100-3 is
contained in section 3-6-3(a)(4.7), which states, in pertinent part, the following:
“On or after the effective date of this amendatory Act of the 100th General
Assembly, sentence credit under paragraph (3), (4), or (4.1) of this subsection (a)
may be awarded to a prisoner who is serving a sentence for an offense described
in paragraph (2), (2.3), (2.4), (2.5), or (2.6) for credit earned on or after the
effective date of this amendatory Act of the 100th General Assembly provided
***.” (Emphasis added.) Pub. Act 100-3 (eff. Jan. 1, 2018) (adding 730 ILCS
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5/3-6-3(a)(4.7)).
That section expressly states the amendment has a prospective application. We note the
Appellate Court, Second District, recently reached the same conclusion in Sharp v. Baldwin,
2020 IL App (2d) 181004, ¶ 12. Even in the absence of that language in Public Act 100-3, the
amendment makes substantive changes, which are prospective only. See 5 ILCS 70/4 (West
2018). We note the language cited by respondent in support of his argument was included in
Public Act 88-311 (eff. Aug. 11, 1993) (amending 730 ILCS 5/3-6-3(a)(4)), and not Public Act
100-3, which removed the Class X exclusion. Thus, we find the amendment made by Pub. Act
100-3 applies prospectively only.
¶ 20 Our conclusion is supported by the language of the subsequent amendment made
by Public Act 101-440 (eff. Jan. 1, 2020) (adding 730 ILCS 5/3-6-3(a)(4)(B)), which expressly
provides for sentence credit under section 3-6-3(a)(4) accumulated prior to the effective date of
the amendment to an inmate serving a sentence for an offense committed prior to June 19, 1998.
Public Act 101-440 also discusses the necessary evidence for determining the sentence credit and
the amount of the sentence credit, which is different from the multipliers. Pub. Act 101-440 (eff.
Jan. 1, 2020) (adding 730 ILCS 5/3-6-3(a)(4)(B), (C)). Our conclusion is also supported by
People v. Washington, 2019 IL App (1st) 172372, ¶ 9, 130 N.E.3d 77, where the reviewing court
found Public Act 100-3 did not apply to a petitioner’s request for sentence credit for programs
completed prior to the effective date of the amendment.
¶ 21 Accordingly, petitioner is only entitled to additional sentence credit under section
3-6-3(a)(4) of the Unified Code (730 ILCS 5/3-6-3(a)(4) (West 2018)) for programs completed
after January 1, 2018. As of January 1, 2020, petitioner may also be entitled to additional
sentence credit under section 3-6-3(a)(4)(B) for his completion of programs before January 1,
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2018. See Pub. Act 101-440 (eff. Jan. 1, 2020) (adding section 730 ILCS 5/3-6-3(a)(4)(B)).
Respondent contends the aforementioned possible avenues for additional sentence credit being
awarded to petitioner do not require reversal of the circuit court’s dismissal because, inter alia,
petitioner did not exhaust his administrative remedies. We agree with respondent.
¶ 22 This court has recognized “ ‘[t]he doctrine of exhaustion of administrative
remedies applies to grievances filed by inmates.’ ” Montes v. Taylor, 2013 IL App (4th) 120082,
¶ 12, 985 N.E.2d 1037 (quoting Ford v. Walker, 377 Ill. App. 3d 1120, 1124, 888 N.E.2d 123,
127 (2007)). The doctrine of exhaustion of administrative remedies provides “ ‘[a] party
aggrieved by an administrative decision cannot seek judicial review unless he has first pursued
all available administrative remedies.’ ” Montes, 2013 IL App (4th) 120082, ¶ 12 (quoting Ford,
377 Ill. App. 3d at 1124, 888 N.E.2d at 126-27). Where an inmate fails to show his or her
grievance had administrative finality, the inmate does not meet his or her burden of showing
exhaustion of administrative remedies. Montes, 2013 IL App (4th) 120082, ¶ 12. Here, the
record shows the February 15, 2018, grievance filed by petitioner was based on his completion
of programs before January 1, 2018, as he asserted his out date should have been January 2,
2018. Thus, petitioner has not shown he pursued all administrative remedies available to him as
to sentence credit under section 3-6-3(a)(4) for programs completed after January 1, 2018,
provided by Public Act 100-3 (eff. Jan. 1, 2018) and under sections 3-6-3(a)(4)(B) and 3-6-
3(A)(4)(C) for his completion of programs before January 1, 2020, as provided by Public Act
101-440 (eff. Jan. 1, 2020) (adding section 730 ILCS 5/3-6-3(a)(4)(B), (C)). We note petitioner
may have in fact received such additional sentence credit as his projected parole date is now
October 2020, instead of April 2022.
¶ 23 Accordingly, we find the circuit court’s dismissal of petitioner’s mandamus
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petition was proper.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we affirm the Sangamon County circuit court’s judgment.
¶ 26 Affirmed.
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