Nos. 2--03--0122 & 2--03--0123 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE CALLUM delivered the opinion of the court:

Defendant, Joseph J. Marino, pleaded guilty to armed robbery (No. 98--CF--1885) (720 ILCS5/18--2(a) (West 1996)) and aggravated vehicular hijacking (No. 98--CF--1884) (720 ILCS 5/18--4(a)(3) (West 1996)), and was sentenced to concurrent terms of 20 years' imprisonment. The trialcourt denied his motion to reconsider his sentences and we affirmed. People v. Marino, Nos. 2--02--0124, 2--02--0125, 2--02--0126, cons. (2003) (unpublished order pursuant to Supreme Court Rule23). He then filed a "Petition for Order Nunc Pro Tunc to Correct the Passing Judgment Order,Alternatively, Petition for Mandamus Relief." The trial court summarily denied the petition anddefendant appeals. He contends that, in denying his petition, the court improperly treated it as apostconviction petition. We hold that, because the petition stated a cognizable cause of action, thecourt erred in summarily denying it. Thus, we reverse and remand.

In his petition, defendant argued that the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/1--1--1 et seq. (2002)) provides that a mandatory supervised release (MSR) term is tobe included within, rather than added to, the term of imprisonment. He contended that the practiceof applying the MSR term after the term of imprisonment is therefore contrary to the language of theCode of Corrections. He requested the court to enter a writ of mandamus compelling the Departmentof Corrections (DOC) to either strike his MSR term or apply it within his prison sentence, as opposedto following his prison sentence. The State did not file an answer to the petition or move to dismissit. The court stated that it was considering the petition a postconviction petition.

At a later hearing, the court stated, "This really isn't a post conviction per se. It's -- I don'tknow what it is." The court ultimately "denied the motion," finding that there was no basis to grantit. Defendant was not present, had no notice of the denial, and had no opportunity to respond. Henow appeals, arguing that his petition was for mandamus and that the court erred in denying it suasponte. He also argues that even if the court had properly treated it as a postconviction petitionpursuant to the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 et seq. (West 2002)), iterred in summarily denying the petition beyond 90 days from the date it was filed. We review denovo whether the trial court complied with the applicable statutory procedure. Woods v. Cole, 181Ill. 2d 512, 516 (1998).

Mandamus is a remedy used to enforce, as a matter of right, a public officer's performanceof his or her public duties where no exercise of discretion on the officer's part is involved. People exrel. Waller v. McKoski, 195 Ill. 2d 393, 398 (2001). A writ of mandamus "provides affirmative ratherthan prohibitory relief [citation] and can be used to compel the undoing of an act." Noyola v. Boardof Education of the City of Chicago, 179 Ill. 2d 121, 133 (1997). Defendant's petition argued thatthe Code of Corrections does not permit an MSR term to be imposed following a term ofimprisonment and requested the court to issue a writ of mandamus compelling the DOC to eitherstrike his MSR term or apply it within his prison sentence. Because defendant's petition properlysought mandamus relief, it was, in form and substance, a mandamus complaint.

In People v. Shellstrom, 345 Ill. App. 3d 175 (2003), we addressed the issue of the properprocedural disposition of mandamus complaints. We held that the trial court committed reversibleerror when, instead of following the provisions of the mandamus statute (735 ILCS 5/14--101 et seq.(West 2002)), it treated defendant's mandamus complaint as a postconviction petition and summarilydismissed it pursuant to the Act. Shellstrom, 345 Ill. App. 3d at 176. Here, because defendant'spleading was a mandamus complaint, the court was required to follow the procedural provisions ofthe mandamus statute. See Shellstrom, 345 Ill. App. 3d at 177. Accordingly, to the extent that thecourt treated defendant's petition as a postconviction petition in summarily denying it, the court erred. Shellstrom, 345 Ill. App. 3d at 177.

The State argues that the Act nevertheless granted the trial court the authority to treatdefendant's petition as a postconviction petition. The Act provides:

"A trial court that has received a petition complaining of a conviction or sentence that failsto specify in the petition or its heading that is filed under this Section need not evaluate thepetition to determine whether it could otherwise have stated some grounds for relief underthis Article." 725 ILCS 5/122--1(d) (West 2002).

Accordingly, while the trial court need not evaluate a petition that does not invoke the Act todetermine if it seeks relief pursuant to the Act, it may do so. However, the court's discretion toevaluate such petitions is not absolute. It cannot, for instance, evaluate and recharacterize as apostconviction petition a petition that properly seeks mandamus relief. Shellstrom, 345 Ill. App. 3dat 177. Here, because defendant's petition properly sought relief pursuant to the mandamus statute,the trial court did not have the discretion to recharacterize it as a postconviction petition pursuant tosection 122--1(d) of the Act.

Thus, we next address whether the court's summary denial was appropriate under themandamus statute. In any civil action, if the court finds the complaint "insufficient in substance orform" or that it does "not sufficiently define the issues," it may sua sponte strike the complaint, notifythe plaintiff that it has done so, and then order the plaintiff to either file a "fuller or more particularstatement" or prepare other pleadings. 735 ILCS 5/2--612(a) (West 2002); Shellstrom, 345 Ill. App.3d at 177. As this ruling is not dispositive, the court need not give the plaintiff an opportunity toargue against the striking of the complaint. If, on the other hand, the complaint is sufficient insubstance and form, yet fails to state a cognizable cause of action, the court may sua sponte dismissthe complaint, as long as it first gives the plaintiff notice of the dismissal and an opportunity torespond. See People v. Winfrey, No. 2--02--1224, slip op. at 3 (April 22, 2004). That is to say, ifthe court determines that the complaint fails to state a cognizable cause of action, it must notify theplaintiff of its intent to dismiss the complaint sua sponte and its reasons therefor, and then allow theplaintiff an opportunity to respond, at least in writing, to attempt to avoid dismissal on that ground. It is at the court's discretion whether to allow oral argument.⁽¹⁾ However, if the complaint is sufficientin form and substance, and states a cognizable cause of action, then the court generally may not acton the complaint sua sponte. Shellstrom, 345 Ill. App. 3d at 177.

Here, because defendant filed a complaint properly seeking relief pursuant to the mandamusstatute, he stated a cognizable cause of action recognized in this state. Accordingly, the court erredin denying defendant's complaint sua sponte. See Winfrey, slip op. at 3.

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 dismiss sua sponte a mandamuscomplaint, reasoning that a court may dismiss sua sponte a complaint that fails to state a cause ofaction. Mason, 332 Ill. App. 3d at 841. In People v. Pearson, 345 Ill. App. 3d 191, 195 (2003), however, we held that this power does not eliminate the requirement of notice and an opportunityto respond.

The Mason court also reasoned:

"[T]rial courts may evaluate such petitions to determine their sufficiency, particularly whenfiled by DOC inmates. *** The potential to overwhelm the courts and the civil justice systemby the filing of groundless DOC inmate mandamus petitions is clear and real, and one firststep to deal with this situation is to recognize the trial court's authority to evaluate suchpetitions for their sufficiency." Mason, 332 Ill. App. 3d at 840.

We rejected this reasoning in Shellstrom, holding:

"While [the difficulty of dealing with the volume of mandamus complaints filed by DOCinmates] is a real concern for trial courts, we should not attempt to remedy this concern byreading into the mandamus statute a summary dismissal procedure that is not there. Theprocedural framework of mandamus actions is not a policy issue for the courts to decide but,rather, a legislative decision to be made by the General Assembly. Accordingly, it is theprovince of the legislature, not the judiciary, to amend the statute to allow for summarydismissals.

***

The Code [of Civil Procedure], including the mandamus statute, provides a clearprocedural framework that applies regardless of the merits of the allegations in the complaint. Accordingly, the fact that a mandamus complaint appears meritless does not excusecompliance with the procedural provisions of the Code [of Civil Procedure]. Additionally,the fact that a mandamus plaintiff is a DOC inmate in no way invests the trial court with thediscretion to bypass clear statutory rules." Shellstrom, 345 Ill. App. 3d at 178-79

We continue to adhere to this reasoning. Although we agree that a summary dismissalprocedure like that contained within the Act would ease the congestion of trial courts' dockets, thefact remains that the mandamus statute contains no such procedure. The decision to insert such aprocedure rests with the legislature, not with the judiciary. Moreover, we believe that the proceduralframework enunciated herein will not impose on the trial courts a burden as severe as that whichMason feared. Under this framework, the trial court maintains the ability to dismiss sua sponte acomplaint that fails to state a cognizable cause of action, but such power is limited only in that thecourt may not do so summarily. We believe that such an approach is well grounded in precedent andstrikes an appropriate balance between the complainant's procedural rights and the court's interest incontrolling its docket.

The State further argues that even if the trial court erred in dismissing the complaintsummarily, the court correctly dismissed the complaint because it is meritless. The State appears tobe arguing that the trial court's incorrect treatment of the complaint did not prejudice defendant. However, a trial court's failure to give a nonmovant notice of and an opportunity to respond to adispositive motion is inherently prejudicial. Shellstrom, 345 Ill. App. 3d at 178. Therefore, even ifdefendant's mandamus complaint is meritless, the trial court's error nevertheless prejudiced defendant,who had no notice of and no opportunity to respond to the court's sua sponte dismissal.

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

Reversed and remanded.

HUTCHINSON and BYRNE, JJ., concur.

1. Section 2--620 of the Code of Civil Procedure provides that "[t]he form and contents of motions, notices regarding the same, hearings on motions, and all other matters of procedure relative thereto, shall be according to rules." 735 ILCS 5/2--620 (West 2002). There is no rule within the supreme court rules, nor within the rules of the Eighteenth Judicial Circuit, that requires oral argument on motions.