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Harris v. Irving

OPINION FILED OCTOBER 14, 1980.

CHARLES HARRIS, PLAINTIFF-APPELLANT,

v.

JAMES IRVING ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Johnson County; the Hon. JIM WILLIAMSON, Judge, presiding.

MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Appellant Charles Harris appeals from a judgment of the circuit court of Johnson County denying his "motion for leave to file a complaint for writ of mandamus" and granting appellees' motion for dismissal. On appeal he contends (1) that the trial court erred in denying his motion and (2) that section 3-3-5(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1003-3-5(c)(2)) as applied in denying his application for parole violated the ex post facto clauses of the United States and Illinois constitutions. We affirm.

Plaintiff was convicted of two counts of murder and arson in 1965, although the record indicates neither the date the crimes were committed nor the sentences received. On April 27, 1979, the Illinois Prisoner Review Board denied plaintiff parole, stating: "[P]arole at this time would deprecate the seriousness of the offenses committed by you * * * or otherwise promote disrespect for the law." Plaintiff filed his motion for leave on September 28, 1979, and defendants, the members of the Illinois Prisoner Review Board, filed their motion to dismiss on January 18, 1980. On February 1, 1980, the circuit court denied plaintiff's motion and granted defendants' motion. It is from this judgment that plaintiff appeals.

Whether or not this is a proper case for mandamus relief is irrelevant because we find the underlying case to be without merit. Appellant contends that section 3-3-5(c)(2) of the Unified Code of Corrections, effective November 14, 1973, established a new but more strict consideration by which the Illinois Parole and Pardon Board (now the Illinois Prisoner Review Board) could grant or deny parole. Appellant's argument continues that since this particular consideration was not in force in 1965 when he was convicted, application of it on April 27, 1979, to deny him parole constituted the retroactive application of a punitive measure in violation of the ex post facto clauses of the Illinois and United States constitutions. He asks for reconsideration of his parole application under the 1965 standards. (See People v. Harper (1975), 27 Ill. App.3d 406, 327 N.E.2d 91 (abstract).) We disagree.

When appellant was convicted in 1965, the General Assembly imposed on the Parole and Pardon Board the following duty:

"In consideration of any application for parole due consideration and weight shall be given to the record of the prisoner's conduct kept by the superintendent or warden." (Ill. Rev. Stat. 1965, chs. 108 & 127, pars. 206 & 55b (respectively).)

In addition, the legislature empowered the Board to "make regulations not inconsistent with law governing the issuance, supervision and revocation of parole * * *." (Ill. Rev. Stat. 1965, ch. 38, par. 123-1.) One such rule promulgated by the Board read as follows:

"12. If the members of the Parole and Pardon Board in conference determine that a prisoner serving an indeterminate term is entitled to parole, they shall enter an order for parole. If they determine that a prisoner is not a fit person to serve his sentence outside the penitentiary, a parole shall be denied, and such further order entered as in the judgment of the members is deemed warranted." Department of Public Safety, Parole and Pardon Board, Rules and Statutes Relating to Parole and Pardons 22 (1962).)

Appellant argues that these statutory guidelines directed the Parole and Pardon Board to consider only the parole applicant's conduct while confined in prison. He further suggests that Rule 12 of the rules of the Parole and Pardon Board likewise focused on the applicant's prison conduct by addressing the determination of whether "a prisoner is not a fit person to serve his sentence outside the penitentiary * * *." Thus, appellant contends that the statutes and rules in force at the time he was convicted were directed solely to special deterrence, or consideration of the rehabilitation of the offender and the likelihood that he would not commit future crimes. Shepard v. Taylor (2d Cir. 1977), 556 F.2d 648, 653; Duldulao v. United States Parole Com. (S.D. Fla. 1978), 461 F. Supp. 1138, 1142.

In 1973, however, the following statute became effective:

"(c) The Board shall not parole a person eligible for parole if it determines that:

(1) there is a substantial risk that he will not conform to reasonable conditions of parole; or

(2) his release at that time would deprecate the seriousness of his offense or promote disrespect for the law; or

(3) his release would have a substantially adverse effect on institutional discipline." (Ill. Rev. Stat. ...


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