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No. 2--03--0820

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Defendant, Chayse R. Keller, appeals from the dismissal of his "Petition for DeclaratoryJudgment." He asked the trial court to find that the Department of Corrections was misapplying themandatory supervised release (MSR) provision of the Unified Code of Corrections (730 ILCS 5/5--8--1(d) (West 2000)) in interpreting his sentence. He now asserts that the court erred in dismissing hispetition summarily pursuant to section 122--2.1 of the Post-Conviction Hearing Act (Act) (725 ILCS5/122--2.1 (West 2002)). Because the "Petition" was, in substance as well as in form, a complaintfor declaratory judgment, the court erred in reconstruing it as a postconviction petition and in usingthe procedures of section 122--2.1 of the Act to dismiss it. We vacate the dismissal and remand forfurther proceedings on defendant's petition.
 

BACKGROUND

Defendant was charged by indictment with one count of armed robbery while armed with afirearm (720 ILCS 5/18--2(a)(2) (West 2000)). He pleaded guilty pursuant to a fully negotiated pleaagreement in which the State agreed to amend the indictment to allege that defendant was armed witha dangerous weapon and to recommend a sentence of 12 years' imprisonment. Before accepting theplea, the court admonished defendant that, under the amended indictment, the sentencing range wouldbe 6 to 30 years' imprisonment, whereas under the original indictment, both the maximum andminimum would be 15 years higher. It also asked defendant if he understood that "on a sentence tothe Department of Corrections you would also serve 3 years of mandatory supervised release." Defendant stated that he understood, and the court accepted the plea. The court sentenced defendantto 12 years' imprisonment.

On May 2, 2003, defendant filed a document entitled "Petition for Declaratory Judgment." He named the warden of the Dixon Correctional Center, the chairman of the Prisoner Review Board,and the Director of Corrections as respondents, and asked the court to "find that respondents[] aremisapplying the MSR statute contrary to legislative intent." He contended that "the sentencing judgemust have intended that any imposition of MSR would be inclusive within petitione[r]'s sentence." (Emphasis in original.) The respondents interpreted his sentence to require him to serve his term ofMSR after he completes his term of imprisonment, and their "misapplication and Administrativeimposition of the 3 year term of MSR attached to the end of his judicially imposed sentence haseffectively increased his sentence without due process of law." (Emphasis in original.) Defendantalso contended that the Unified Code of Corrections' delegation to the Prisoner Review Board of thepower to reimprison defendants who violate the terms of their MSR is unconstitutional. The lattercontention seems to be a matter of pleading in the alternative: "Fundamental Fairness should applyand [the court should] either rule section 5--8--1(d) of the Unified Code of Correctionsunconstitutional or have the petitioner's sentence modified [so that his term of MSR is included withinhis term of imprisonment, rather than added to the end of it]."

The court summarily dismissed the petition pursuant to section 122--2.1 of the Act. Defendant appeals, contending that the dismissal was procedurally improper under the Code of CivilProcedure (Code) (735 ILCS 5/1--101 et seq. (West 2002)).
 

ANALYSIS

Whether the trial court followed the proper procedure in dismissing defendant's pleading isan issue of law, and therefore our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516(1998).
 

Propriety of the Recharacterization as a Postconviction Petition

To determine what procedure the court should have applied to defendant's pleading, we mustfirst determine how the court should have classified it. The State cites People v. Helgesen, 347 Ill.App. 3d 672, 677 (2004), for the proposition that the substance of a pleading, not its title, shoulddetermine its classification. It argues that defendant's pleading is in substance a postconvictionpetition and that the court was right to treat it as such. We disagree. We need not address the finerpoints of when the substance of a pleading justifies its reclassification as a postconviction petition:defendant's pleading conforms in substance to the requirements for a complaint for declaratoryjudgment far better than it does to those for a postconviction petition. The core contention ofdefendant's pleading is that the Department of Corrections has misinterpreted his sentence. Were thisso, the remedy would not be under the Act. The Act provides a vehicle for a prisoner's claim "thatin the proceedings which resulted in his or her conviction there was a substantial denial of his or herrights under [the United States or Illinois Constitution]." (Emphasis added.) 725 ILCS 5/122--1(a)(West 2002). Defendant's primary claim is not cognizable under the Act because it does not relateto any flaw in the proceedings before his conviction. However, the "essential requirements of adeclaratory judgment action are: (1) a plaintiff with a legal tangible interest; (2) a defendant havingan opposing interest; and (3) an actual controversy between the parties concerning such interests." Beahringer v. Page, 204 Ill. 2d 363, 372 (2003); see 735 ILCS 5/2--701(a) (West 2002) ("the courtmay, in cases of actual controversy, make binding declarations of rights, *** including thedetermination *** of the construction of any statute"). Both defendant's primary claim and hissecondary claim, regarding the constitutionality of section 5--8--1(d) of the Unified Code ofCorrections, are cognizable in an action for declaratory judgment. Thus, the substance of thepleading matches its form, and the trial court erred in recharacterizing it as a postconviction petition.
 

Propriety of Summary Dismissal

Because the court should have treated defendant's pleading as a complaint for declaratoryjudgment, an action under the Code, the issue presented here is similar to those we considered inPeople v. Marino, 349 Ill. App. 3d 197 (2004), People v. Winfrey, 347 Ill. App. 3d 987 (2004), andPeople v. Pearson, 345 Ill. App. 3d 191 (2003). In those cases, we held that, unlike the Act, theCode does not allow for a trial court to dismiss a proceeding on its merits sua sponte and withoutgiving the petitioner notice of the impending dismissal and an opportunity to be heard on the issuesupon which the court would base the dismissal. Marino, 349 Ill. App. 3d at 200; Winfrey, 347 Ill.App. 3d at 989; Pearson, 345 Ill App. 3d at 194-95; see also People v. Shellstrom, 345 Ill. App. 3d175, 177 (2003) (applying portions of the Code specific to mandamus actions). The reasoning inthose cases applies here as well. An action for declaratory judgment is simply a form of civil actionfor which the Code explicitly provides. 735 ILCS 5/2--701 (West 2002). The only proceduralprovision specific to the declaratory judgment law is that "if a declaration of rights is the only reliefasked, the case may be set for early hearing as in the case of a motion." 735 ILCS 5/2--701(b) (West2002). Although this provision obviously contemplates a prompt resolution of cases that raise onlyissues of law, it does not authorize summary dismissal.
 

Due Process Considerations and Summary Dismissal

Our reasoning here and in Marino, Winfrey, Pearson, and Shellstrom is in harmony with theproposition that summary dismissal under the Act is consistent with the provision of due process tothose who file petitions invoking the Act. Notice of a proposed dismissal and an opportunity torespond are requirements under the Code, but are not, in a proper framework, invariable requirementsfor due process (see State ex rel. Schatz v. McCaughtry, 263 Wis. 2d 83, 94, 664 N.W.2d 596, 602(2003)). Summary dismissal is acceptable within the Act, where a defendant has advance notice thatit is a possibility, but not in other settings.

Summary dismissal provides due process in a framework that makes it fair. See Schatz, 263Wis. 2d at 94, 664 N.W.2d at 602; 5A C. Wright & A. Miller, Federal Practice and Procedure