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No. 2--02--0618

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Daniel R. Shellstrom, appeals the trial court's summary dismissal of his mandamuscomplaint. He contends that, in dismissing his complaint, the trial court improperly characterized theaction as a postconviction petition. We reverse and remand.

Defendant was charged with three counts of home invasion (720 ILCS 5/12--11(a)(2) (West1994)), three counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b) (West 1994)), andtwo counts of residential burglary (720 ILCS 5/19--3(a) (West 1994)). He pleaded guilty to twocounts of aggravated criminal sexual assault and one count of home invasion in exchange for theState's dismissal of the remaining counts. The trial court sentenced defendant to consecutivesentences of 6 years' imprisonment for each of the aggravated criminal sexual assault charges and 13years' imprisonment for the home invasion charge, and 3 years' mandatory supervised release (MSR). Defendant moved to reduce his sentence. The trial court denied the motion. On direct appeal, weaffirmed defendant's convictions and sentence. People v. Shellstrom, No. 2--95--0794 (1998)(unpublished order under Supreme Court Rule 23).

In May 2002, defendant filed, pro se, a document entitled, "Motion to Reduce Sentence,Alternatively, Petition for Writ of Mandamus to Order Strict Compliance with Terms of Guilty Plea." The pleading was captioned, "Daniel R. Shellstrom, Petitioner, vs. Donald N. Snyder, Director ofIllinois Department of Corrections and Prison Review Board, Respondents," and made explicitreference to the mandamus statute (735 ILCS 5/14--101 et seq. (West 2002)). In the pleading,defendant alleged that he had not been advised of the three-year term of MSR and that the MSR termdid not appear on the judgment order. The trial court treated the pleading as a postconvictionpetition pursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West2002)) and summarily dismissed it as patently without merit. See 725 ILCS 5/122--2.1(a)(2) (West2002). Defendant was not present at the hearing and had no notice and no opportunity to respondto the trial court's dismissal of his complaint. Defendant timely appealed.

Defendant contends that the trial court erred in treating his pleading as a postconvictionpetition and summarily dismissing it. Whether the trial court complied with the applicable statutoryprocedure is a question of law and our review is de novo. See Woods v. Cole, 181 Ill. 2d 512, 516(1998).

In People v. Gaines, 335 Ill. App. 3d 292 (2002), we addressed this same procedural issuein a related context. In Gaines, the defendant filed a petition seeking relief from judgment pursuantto section 2--1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 2002)). The State urged the trial court to treat the petition like a postconviction petition and make an initialdetermination before requiring the State to respond. The trial court followed the State's suggestionand dismissed the petition in a manner resembling a summary dismissal under the Act. The defendantappealed and we reversed. We held that the "particular statutory procedures applicable to petitionsunder the Act do not apply to section 2--1401 proceedings." Gaines, 335 Ill. App. 3d at 295. Wereasoned that while the Act allows the trial court to independently consider and summarily dismissa postconviction petition, "section 2--1401 has no corresponding provision for independentexamination by the trial court, nor is the trial court authorized to summarily dismiss a section 2--1401petition." Gaines, 335 Ill. App. 3d at 296. We also noted that a section 2--1401 petition is similarto a complaint in a civil action, and hence the opponent must either move to dismiss it or file ananswer. Gaines, 335 Ill. App. 3d at 296.

The reasoning in Gaines applies with equal force here. The mandamus statute, which iscontained within the provisions of the Code, does not authorize the trial court to summarily dismissa complaint for mandamus. Rather, it provides a clear procedural framework that the trial court mustfollow when a mandamus complaint is filed. The statute provides that following the filing of acomplaint for mandamus, the clerk of the court shall issue a summons to the defendant. 735 ILCS5/14--102 (West 2002). The defendant is then required to answer or otherwise plead before thereturn day of the summons. 735 ILCS 5/14--103 (West 2002). The plaintiff may then reply orotherwise plead in response to the answer. 735 ILCS 5/14--104 (West 2002). The statute alsoprovides that "[t]he proceedings for mandamus shall not be dismissed nor the relief denied becausethe plaintiff may have another judicial remedy, even where such other remedy will afford proper andsufficient relief; and amendments may be allowed as in other civil cases." 735 ILCS 5/14--108 (West2002). The trial court committed reversible error when it failed to follow these statutory provisionsand instead summarily dismissed defendant's complaint.

Additionally, the trial court contravened the provisions of the Code in dismissing defendant'scomplaint sua sponte. Section 2--612(a) of the Code provides that if "any pleading is insufficient insubstance or form the court may order a fuller or more particular statement. If the pleadings do notsufficiently define the issues the court may order other pleadings prepared." 735 ILCS 5/2--612(a)(West 2002). Accordingly, the trial court could have struck defendant's complaint and ordered otherpleadings prepared if it found defendant's complaint insufficient. It could not, however, dismiss thecomplaint on its own motion. See Mitchell v. Norman James Construction Co., Inc., 291 Ill. App.3d 927, 938 (1997).

Finally, defendant was given neither notice nor an opportunity to be heard on the issues uponwhich the trial court based its dismissal. In People v. Kitchen, 189 Ill. 2d 424, 434-35 (1999), oursupreme court vacated the trial court's denial of the defendant's postconviction petition. The orderwas vacated because "[t]he decision to deny the petition was made without notice to the parties andwithout the benefit of argument from either defendant or the State." Kitchen, 189 Ill. 2d at 435. InPeterson v. Randhava, 313 Ill. App. 3d 1, 11-12 (2000), the trial court granted summary judgmentsua sponte without giving the plaintiff an opportunity to respond. The reviewing court vacated thetrial court's order, observing that proceeding in this manner "not only may waste judicial resources,through producing unnecessary appeals and remands that may have been avoided, but it deprives theplaintiff of an opportunity to conduct discovery on the relevant issues, present evidence and argueagainst dismissal." Peterson, 313 Ill. App. 3d at 12. We face a similar situation here.

The State argues that we should follow Mason v. Snyder, 332 Ill. App. 3d 834 (2002). InMason, the defendant filed a pro se mandamus complaint. The trial court dismissed it sua sponte. The Appellate Court, Fourth District, held that a trial court may evaluate and dismiss sua sponte amandamus complaint. The court reasoned:

"[T]rial courts may evaluate such petitions to determine their sufficiency, particularlywhen filed by DOC inmates. In so concluding, we take judicial notice of our own records,which show an ever-increasing number of appeals brought by inmates in such cases, as wellas the fact that DOC currently houses over 46,000 inmates. The potential to overwhelm thecourts and the civil justice system by the filing of groundless DOC inmate mandamus petitionsis clear and real, and one first step to deal with this situation is to recognize the trial court'sauthority to evaluate such petitions for their sufficiency." Mason, 332 Ill. App. 3d at 840.

We disagree with the court's holding in Mason. The primary basis for that holding is thedifficulty of dealing with the volume of mandamus complaints filed by Department of Corrections(DOC) inmates. See Mason, 332 Ill. App. 3d at 840, 842. While this is a real concern for trialcourts, we should not attempt to remedy this concern by reading into the mandamus statute asummary dismissal procedure that is not there. The procedural framework of mandamus actions isnot a policy issue for the courts to decide but, rather, a legislative decision to be made by the GeneralAssembly. Accordingly, it is the province of the legislature, not the judiciary, to amend the statuteto allow for summary dismissals.

The State additionally argues that even if the trial court erred in construing the complaint asa postconviction petition, the trial court correctly dismissed the complaint because it was meritless. The State appears to be arguing that the trial court's incorrect treatment of the complaint did notprejudice defendant. However, a trial court's failure to give a nonmovant notice and an opportunityto respond to a dispositive motion is inherently prejudicial. See Mizell v. Passo, 147 Ill. 2d 420, 428(1992); Valdovinos v. Luna-Manalac Medical Center, Ltd., 328 Ill. App. 3d 255, 267-68 (2002);Peterson, 313 Ill. App. 3d at 12. Accordingly, even if defendant's mandamus complaint is meritless,the trial court's error nevertheless prejudiced defendant, who had no notice and no opportunity torespond to the trial court's sua sponte dismissal of his complaint.

The Code, including the mandamus statute, provides a clear procedural framework thatapplies regardless of the merits of the allegations in the complaint. Accordingly, the fact that amandamus complaint appears meritless does not excuse compliance with the procedural provisionsof the Code. Additionally, the fact that a mandamus plaintiff is a DOC inmate in no way invests thetrial court with the discretion to bypass clear statutory rules.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded.

Reversed and remanded.

BYRNE and GILLERAN JOHNSON, JJ., concur.