People v. Ruth

2022 IL App (1st) 192023
No. 1-19-2023
Opinion filed March 31, 2022

First Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 09 CR 07794
)
ANTON RUTH, ) Honorable
) Arthur F. Hill, Jr.,
Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justice Walker concurred in the judgment and opinion.
Justice Coghlan specially concurred, with opinion.

OPINION

¶1 After pleading guilty to aggravated criminal sexual assault, Anton Ruth made repeated

attempts to challenge his mandatory supervised release term (MSR). Relevant here, he filed a

section 2-1401 petition (735 ILCS 5/2-1401 (West 2018)), arguing the statutory provisions

allowing the Prisoner Review Board to set conditions of MSR and “determine the length of [his]

MSR term” violate the separation of powers and proportionate penalties clauses of the Illinois

Constitution. See Ill. Const. 1970, art. I, § 11 (proportionate penalties); Ill. Const. 1970, art. II, § 1

(separation of powers). Both arguments stem from the same premise: the Prisoner Review Board
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is unconstitutionally exercising judicial functions. We disagree, finding that setting the terms of

MSR is akin to the executive function of prison administration and setting the release date

represents no more than the executive’s long-recognized ability to bestow grace on parolees who

comply with the terms of parole.

¶2 We agree, however, with Ruth’s second argument that the trial court erred in imposing fees

and costs for filing a frivolous petition. Though we reject his claim on the merits, we find it

arguable in law and fact. The trial court additionally erred by failing to make factual findings

supporting its conclusion that Ruth filed his petition for purposes of delay, harassment, or

needlessly increasing the cost of litigation. Accordingly, we vacate the trial court’s order imposing

$170 in fees and costs and remand directing the trial court to order a refund.

¶3 Background

¶4 In 2010, Anton Ruth pled guilty to one count of aggravated criminal sexual assault. The

trial court imposed a nine-year sentence and admonished him that he would have to serve three

years of mandatory supervised release after he completed his sentence. Ruth did not move to

withdraw his plea or file an appeal from the sentence imposed.

¶5 After completing his nine-year sentence, Ruth learned that the trial court had mistakenly

admonished him about his MSR term. Instead of three years of MSR, the Unified Code of

Corrections required Ruth to serve an indeterminate period of MSR ranging from three years to

life. See 730 ILCS 5/5-8-1(d)(4) (West 2010). And so began Ruth’s efforts, through various filings,

to enforce the trial court’s original admonishment.

¶6 In November 2017, Ruth filed a petition under the Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2016)), alleging his trial counsel was ineffective for failing to advise him

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correctly about the MSR term he faced. As a result, Ruth requested (i) withdrawal of his plea, (ii)

a trial, and (iii) correct admonishments about the sentencing consequences of the charged offenses.

With the help of the State, the trial court brought Ruth to court and admonished him that he would

face a minimum sentence of 9 years and a maximum of 67 years if the court gave him the relief he

sought. In Ruth’s presence, the State also told the court that Ruth had already served the sentence

to which he had agreed in his plea. Based on the court’s new admonishments, Ruth withdrew his

postconviction petition. The court then clarified that Ruth would have to serve three years to life

on MSR instead of an absolute term of three years.

¶7 Still dissatisfied with his indeterminate MSR term, Ruth filed a “Complaint for

Mandamus,” arguing the Prisoner Review Board refused to determine whether Ruth could be

released from prison on MSR. He asked the court to “determine the length of his MSR term to be

served” and for “immediate release to begin serving his MSR period.” After a brief in-court

appearance, the trial court denied mandamus on the ground that Ruth had filed his complaint in

the wrong county.

¶8 About a month later, in September 2018, Ruth filed a “Petition for Amended Sentencing

Order,” arguing that the Department of Corrections was “unlawfully detain[ing]” him. He correctly

asserted that the trial court’s original sentencing order said nothing about MSR, and the trial judge

had told him that his MSR term would be three years when imposing the sentence. Ruth requested

the court amend its sentencing order to reflect the original oral admonishment. The court denied

Ruth’s petition reasoning that the new admonishments during proceedings on Ruth’s first

postconviction petition had been sufficient, mainly because Ruth declined to pursue the claims

after receiving the new admonishments.

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¶9 Then, in February 2019, Ruth filed a petition for relief from judgment (see 735 ILCS 5/2-

1401 (West 2018)), arguing that his indeterminate MSR term and the statute authorizing it were

void ab initio. He reasoned that the General Assembly violated the separation of powers clause in

the Illinois Constitution (Ill. Const. 1970, art. II, § 1) by impermissibly delegating the

determination of the conditions of MSR to the Prisoner Review Board instead of the judiciary.

Ruth relied heavily on the Fourth District’s decision, People v. Morger, 2016 IL App (4th) 140321,

¶¶ 54-59, where the court held that the trial court improperly delegated its sentencing discretion to

McLean County court services by failing to impose its own conditions of probation.

¶ 10 The trial court dismissed Ruth’s petition. First, the trial court rejected Ruth’s reliance on

Morger because “case law from the fourth district appellate court *** is not binding to the first

district, to which this court belongs.” The trial court looked instead to the Illinois Supreme Court’s

decision in People v. Rinehart, 2012 IL 111719. There, the court interpreted section 5-8-1(d)(4) of

the Code of Corrections (730 ILCS 5/5-8-1(d)(4) (West 2018)) to allow trial courts to impose

indeterminate MSR terms instead of requiring them to impose determinate terms within the range

of three years to life. Rinehart, 2012 IL 111719, ¶¶ 23-30. In addition to its order dismissing Ruth’s

petition, the court imposed $170 in fees “finding that all filings are entirely frivolous” because (i)

they lacked an arguable basis in law or in fact, (ii) the factual contentions lacked evidentiary

support, and (iii) the filings “were presented to hinder, cause unnecessary delay, and needless

increase in the cost of litigation.” This court granted Ruth’s motion to file a late notice of appeal.

¶ 11 Analysis

¶ 12 The State begins by briefly arguing two procedural bars to our review of the merits: (i)

Ruth’s guilty plea waived all non-jurisdictional defects in his sentence, including MSR, and (ii)

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Ruth’s section 2-1401 petition was untimely because he filed it more than two years after the entry

of judgment. The State’s briefing on this point is sparse, with no citations to authority. See Ill. S.

Ct. Rule 341(h)(7) (eff. Oct. 1, 2020) (Argument “shall contain *** citation of the authorities ***

relied on.” (Emphasis added.)). That said, we disagree with both procedural arguments.

¶ 13 First, Ruth’s guilty plea did not waive his constitutional challenge to the statute imposing

his MSR term. As this court has observed, “a guilty plea does not bar a claim on appeal ‘where on

the face of the record the court had no power to *** impose the sentence.’ ” People v. Patterson,

2018 IL App (1st) 160610, ¶ 20 (quoting Class v. United States, 583 U.S. ___, ___, 138 S. Ct. 798,

804 (2018)). In other words, if the claim does not contradict the terms of the indictment or plea

agreement, we can consider it. Id. ¶ 21. Here, Ruth does not challenge the factual basis for his plea

or the substantive reasonableness of his term-of-years sentence. Instead, he argues the court had

no power to sentence him to an indeterminate MSR term. He, therefore, challenges “the [court]’s

power to constitutionally [sentence] him,” and his plea does not waive that challenge. See id.

¶ 14 We also find Ruth’s section 2-1401 petition was not time-barred. Generally, a petition

filed under section 2-1401 must be filed “not later than 2 years after the entry of the order or

judgment.” (Internal quotation marks omitted.) People v. Abdullah, 2019 IL 123492, ¶ 13. One of

the two exceptions to the statute of limitations is “when the judgment was based on a statute that

is facially unconstitutional and void ab initio.” Id. Ruth’s petition raised this type of facial

constitutional challenge. His petition alleged the statute allowing his “MSR conditions [to be]

imposed by the [Prisoner Review Board] are void ab initio.” Whatever we think of the merits of

Ruth’s claim, it constitutes a facial constitutional challenge to the statutes requiring him to serve

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an indeterminate MSR term with conditions imposed by the. Prisoner Review Board. Thus, we

will consider his petition even though he filed it outside the two-year statute of limitations.

¶ 15 Constitutionality of the Statutes

¶ 16 Ruth first argues that two provisions of the Code of Corrections (730 ILCS 5/5-8-1(d)(4),3-

3-2(a)(3-5) (West 2018)), impermissibly allow the Prisoner Review Board, a “non-judicial body,”

to determine his MSR term. According to Ruth, this scheme violates the Illinois Constitution’s

separation of powers clause by improperly delegating the judicial function of imposing sentence

to the executive branch. See Ill. Const. 1970, art. II, § 1. He also argues, applying the same

reasoning, that the improper delegation of sentencing authority to the executive insulates the

Prisoner Review Board from the requirements of the proportionate penalties clause. See Ill. Const.

1970 art. I, § 11. The State responds that the Prisoner Review Board did not determine Ruth’s

MSR term. Rather it administers the MSR term the trial court imposed. We review Ruth’s facial

constitutional challenge de novo. E.g., People v. Bochenek, 2021 IL 125889, ¶ 9.

¶ 17 The State, in its brief and at oral argument, suggested that Ruth’s claim fails based on

existing Illinois Supreme Court precedent, namely Rinehart, 2012 IL 111719, and People v.

McChriston, 2014 IL 115310. Neither case answers the unique separation of powers question Ruth

raises.

¶ 18 In Rinehart, the court expressly limited its analysis to a “matter of statutory construction.”

Rinehart, 2012 IL 111719, ¶ 23. The appellate court had found that the trial court must set a

determinate MSR term within the range provided by section 5-8-1(d)(4). Id. Our supreme court

rejected the appellate court’s conclusion and determined that the relevant statutory provisions

“contemplate indeterminate MSR terms, not determinate terms.” Id. ¶ 30. The court definitively

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construed the statute in a manner that predicates Ruth’s separation of powers claim, but it did not

resolve that claim.

¶ 19 On the other hand, McChriston involved a separation of powers claim of a different sort.

McChriston, 2014 IL 115310, ¶ 6. There, the trial court’s sentencing order made no mention of his

MSR term, and the defendant argued the Department of Corrections “added a three-year *** term

to his 25-year sentence.” Id. ¶ 3. Our supreme court rejected the argument finding, instead, that

the statute operated to add a three-year term automatically, even where the trial court forgets to

include it on the sentencing order. Id. ¶ 23. Because the Department of Corrections did not add the

term, no violation of the separation of powers occurred. See id. Though based on the same Illinois

constitutional provision, Ruth’s claim is distinct.

¶ 20 Though our supreme court has not answered the separation of powers question presented

here, we agree with the State that Ruth’s argument fails on first principles. The Illinois Constitution

declares “[t]he legislative, executive and judicial branches are separate” and “[n]o branch shall

exercise powers properly belonging to another.” Ill. Const. 1970, art. II, § 1. The clause is not

meant “to produce a complete separation” between the branches and “does not forbid every

exercise of functions by one branch of government that is conventionally exercised by another.”

People v. Inghram, 118 Ill. 2d 140, 146-47 (1987). When it comes to the relationship between the

executive and judicial branches, provisions violate the clause when they “confer powers to one

branch of government which properly should be exercised by another branch” or “usurp[ ] the

authority of another branch.” Id. To determine whether the statutory scheme for indeterminate

MSR violates the clause, we must first understand “the kind of power involved.” People v. Bryant,

278 Ill. App. 3d 578, 584 (1996).

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¶ 21 The General Assembly has the power to create criminal offenses and to establish a

“penological system.” People v. Williams, 66 Ill. 2d 179, 187 (1977). Within that system, the

judiciary holds the exclusive power to impose sentence. E.g., Morger, 2016 IL App (4th) 140321,

¶ 55 (citing People v. Montana, 380 Ill. 596, 608 (1942)). Once a court imposes a sentence, the

General Assembly then retains the power “to establish rules and regulations for the government

and discipline of inmates,” which the executive branch enforces through the Department of

Corrections. Williams, 66 Ill. 2d at 187.

¶ 22 Essentially, the parties see the Prisoner Review Board’s role in our indeterminate MSR

scheme differently. According to Ruth, the Board’s ability to “increase” his sentence by refusing

to discharge him from MSR usurps judicial sentencing power. The State, on the other hand, sees

the Board’s ability to impose MSR conditions and monitor Ruth’s compliance as no more than

administering the sentence the trial court imposed. The State has properly construed the nature of

MSR (formerly known as parole).

¶ 23 Illinois has long held that “in a legal sense, [MSR] does not diminish a judicially imposed

sentence or in any way affect it.” Id. (collecting cases). This follows because MSR “alters only the

method and degree of confinement during the period of commitment” to the Department of

Corrections. Id. Even where the trial court must impose a minimum sentence of incarceration

before a defendant can be released on MSR, a defendant serving their MSR term remains subject

to the authority of the Department of Corrections. Id. In that sense, the conditions the Prisoner

Review Board imposes on defendants serving their MSR terms are the same as ordinary rules the

Department of Corrections sets to maintain order in its detention facilities—the only difference is

the defendant’s physical location.

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¶ 24 But, says Ruth, the problem lies in the indeterminate nature of his MSR term. The parties’

dispute, once again, is a matter of perspective. Because the judicially imposed term is three years

to life, Ruth argues the Prisoner Review Board gets to decide the number of years he will serve.

The State responds, though not explicitly, that an indeterminate MSR term is essentially a life term

that defendants can end early based on their compliance with the MSR terms the Prisoner Review

Board imposed. We agree with the State.

¶ 25 The statute that imposes the MSR term for Ruth’s offense requires him to serve at least

three years on MSR “to a maximum of natural life.” 730 ILCS 5/5-8-1(d)(4) (West 2018). The

preamble to the subsection introduces the various MSR terms as “subject to earl[y] termination

under Section 3-3-8.” Id. § 5-8-1(d). Section 3-3-8 provides for early release or discharge “when

it determines that [a defendant] is likely to remain at liberty without committing another offense.”

Id. § 3-3-8(b). Taking these sections together, describing Ruth’s MSR term as “indeterminate” is

something of a misnomer: the trial court essentially imposed a life term of MSR with the possibility

of early termination after three years. This interpretation aligns with our supreme court’s long-

standing conception of MSR as “a matter of grace and executive clemency.” Hill v. Walker, 241

Ill. 2d 479, 486 (2011) (collecting cases).

¶ 26 We can distill two truths about the nature of the Prisoner Review Board’s administration

of MSR. First, the conditions the Prisoner Review Board sets on defendants admitted to MSR are

functionally the same as any other rule of prison administration aimed at controlling the behavior

of those committed to the Department of Corrections. Second, decisions about admitting a

defendant to MSR and releasing a defendant from MSR are “matter[s] of grace.” As we discussed,

both powers belong to the executive branch. We, therefore, reject Ruth’s claim that the Prisoner

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Review Board’s administration of his MSR term of three years to life improperly intrudes on the

judicial function of imposing sentence. Because each of his arguments under the proportionate

penalties clause and separation of powers clause depends on this premise, they both must fail.

¶ 27 We are not convinced otherwise by Ruth’s reliance, in this court and the trial court, on

Morger, 2016 IL App (4th) 140321. The trial court rejected Morger largely because “case law

from the fourth district appellate court *** is not binding to the first district, to which this court

belongs.” The tiral court’s conception of stare decisis was incomplete and, therefore, incorrect.

Generally, an appellate court’s decision is binding “on the circuit courts throughout the [s]tate.”

(Emphasis added.) State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533, 539 (1992). There

is a narrow exception where conflicts arise among the appellate districts. Then, and only then, a

circuit court will either (i) follow the relevant decision from its home district if there is one or (ii)

choose among the decisions from the competing appellate districts if the circuit court’s home

district has not weighed in. Id. at 540. Morger was binding on the circuit court to the extent it was

analogous, as no contrary authority exists in the other Districts, including the First District.

¶ 28 We agree with the State, however, that Morger does not control the outcome. There, the

Fourth District found a violation of the separation of powers clause after the trial court improperly

delegated the task of setting probation conditions to Court Services. Morger, 2016 IL App (4th)

140321, ¶¶ 56-57. Critically, the court found that “imposition of probationary conditions is part of

sentencing.” Id. ¶ 57. As we have discussed, the trial court carried out its judicial function by

imposing the term of years of MSR, but it is an executive function for the Prisoner Review Board

to determine the conditions its parolees must satisfy to earn early relief from the judicially imposed

sentence.

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¶ 29 After oral argument, we allowed Ruth to cite Dreyer v. Illinois, 187 U.S. 71 (1902), and

George v. People, 167 Ill. 447 (1897), as additional authority because panel members discussed

Dreyer at oral argument and Dreyer cites George. The State has declined our offer to file a

response on the merits of either supplemental authority. On further review, we find neither case

helpful to the resolution of Ruth’s claims. Dreyer, for its part, expressly disclaimed an intention to

construe the separation of powers provision then in the Illinois Constitution. Dreyer, 187 U.S. at

83. The Court’s conclusion goes no further than to say that the decision to allocate certain powers

to certain branches of state government belonged exclusively to the states and would not implicate

the due process clause of the fourteenth amendment. Id. at 83-84.

¶ 30 George is unhelpful for related reasons. There, the statutory scheme expressly

contemplated participation in the parole decision by the court that sentenced the defendant and by

the governor. George, 167 Ill. at 463-64. We agree with Ruth’s argument insofar as he claims

George does not apply—we cannot say what the Illinois Supreme Court would have thought of

the current scheme for indeterminate MSR under the 1870 Illinois Constitution. Ruth argues the

current scheme is more offensive to the separation of powers than the scheme in George. Still,

under modern conceptions of separation of powers embodied in our current constitution, the

Prisoner Review Board has not usurped the judicial function of imposing sentence and may

constitutionally condition Ruth’s release on the MSR terms it sets.

¶ 31 Fees

¶ 32 Though we disagree with Ruth’s constitutional claim on the merits, we agree the trial court

erred by imposing $170 in fees for an “entirely frivolous” petition. See 735 ILCS 5/22-105 (West

2018). We note that Ruth argues his section 2-1401 petition is not covered by section 22-105

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because it was not a “second or subsequent petition.” Id. § 22-105(a). We decline to address this

question of statutory construction because, even assuming the frivolous filing statute applies to

Ruth’s petition, the trial court had no basis on which to impose the fees.

¶ 33 The trial court imposed fees and costs for three reasons: (i) Ruth’s petition “lacked an

arguable basis in law or in fact,” (ii) Ruth’s petition “did not have evidentiary support,” and (iii)

“the filings, in toto, were presented to hinder, cause unnecessary delay, and needless increase in

the cost of litigation.” See id. § 22-105(b)(1)-(2), (4). We disagree with each basis.

¶ 34 The State argues that Illinois law and the specific facts foreclose Ruth’s petition. This

argument is flatly inconsistent with the State’s concession, at page 10 of its brief, that Ruth’s

“facial constitutional challenge on this specific statutory framework is novel to this Court.” The

State’s concession coincides with our analysis rejecting both parties’ reliance on previous

decisions of this court and our supreme court. Issues that we have never addressed remain, almost

by definition, “arguable in law or in fact.”

¶ 35 The State does not defend the trial court’s finding that Ruth’s petition “did not have

evidentiary support.” We think this wise. Generally, facial constitutional challenges are not

amenable to receiving evidence or to fact-finding because they require the challenger to allege “no

set of circumstances under which the statute would be valid.” Lebron v. Gottlieb Memorial

Hospital, 237 Ill. 2d 217, 228 (2010). Ruth’s claim cannot have lacked “evidentiary support”

because he was not required to put in evidence.

¶ 36 We turn then to the trial court’s conclusion that Ruth’s petition was filed for purposes of

delay or to increase the cost of litigation. Again, the State does not defend the trial court’s fees and

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costs order on this ground. The record also does not show Ruth attempting to delay, harass, or

needlessly invoke the resources of the judicial system.

¶ 37 The list of Ruth’s filings tells a story, not of delay or harassment, but of an uncounseled

prisoner attempting to understand and then challenge the complicated law surrounding pleas,

mandatory MSR terms, and the Department of Corrections’ lamentable “violating at the door”

policy. Cf. Cordrey v. Prisoner Review Board, 2014 IL 117155, ¶ 9 (describing the practice); see

also Ortiz v. Breslin, 595 U.S. ___, 142 S. Ct. 914 (2022) (statement of Sotomayor, J., respecting

denial of certiorari, explaining constitutional concerns with New York’s similar policy). Ruth’s

section 2-1401 petition was the first (maybe second) filing in which he could have raised his

constitutional challenge. Until this filing Ruth did not know (i) the correct term of his MSR and

(ii) that the trial court could not, or would not, do anything to force the Department of Corrections

to release him. No evidence supports a conclusion of delay, harassment, or needless increase of

cost.

¶ 38 Subsection (a) of the statute requires the trial court to make “specific finding[s]” that a

particular filing is frivolous within the meaning of the factors in subsection (b). (Emphasis added.)

735 ILCS 5/22-105(a) (West 2018). Reciting the ostensibly applicable statutory subsections will

not do.

¶ 39 We vacate the order imposing $170 in fees and costs and remand to the circuit court to

determine whether the $170 was deducted from Ruth’s trust account and, if so, order a refund by

the Cook County Treasurer.

¶ 40 Affirmed in part and vacated in part; cause remanded with directions.

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¶ 41 JUSTICE COGHLAN, specially concurring:

¶ 42 While I agree with the majority’s conclusion, I disagree with the majority’s reasoning for

vacating the fees and costs imposed by the trial court. The plain language of 735 ILCS 5/22-105

applies only to “a second or subsequent” section 2-1401 petition. 735 ILCS 5/22-105(a) (West

2018). Since this was defendant’s first section 2-1401 petition, section 22-105 does not apply. In

my view, no further analysis is necessary.

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