The state’s top legal official and a special prosecutor have filed a writ of mandamus challenging the sentence given last month to Chicago police officer Jason Van Dyke.
Filing with the Illinois Supreme Court today, the state explained the maneuver — asking the court to force a government official to correctly handle its duties — is the only route available for seeking a different sentence for Van Dyke, convicted of murdering Laquan McDonald in 2014.
Following Van Dyke’s conviction in a jury trial last year, Cook County Circuit Judge Vincent M. Gaughan sentenced Van Dyke to 81 months in prison last month.
But Kane County State’s Attorney Joseph H. McMahon — who was appointed as special prosecutor in this case — and Illinois Attorney General Kwame Y. Raoul contend Gaughan had no leeway to sentence Van Dyke primarily on the second-degree murder charge, and that state case law required him to craft the sentence around the 16 aggravated battery charges.
Mandamus allows review of issues of law, but it can’t be used to replace the trial judge’s decision with its own.
“This is not a question about the judge’s discretion in the length of sentence,” Raoul said at a joint press conference with McMahon at the Thompson Center Monday morning. “This is a question whether the law was followed and whether the sentence was rendered on the appropriate count, the appropriate charges.”
Gaughan sentenced Van Dyke based on the second-degree murder conviction, finding it “more serious” than the 16 convictions for aggravated battery with a firearm.
In the nine-page petition for a writ of mandamus, McMahon and Raoul ask the high court to vacate Gaughan’s sentencing order and direct Gaughan to sentence Van Dyke based on the aggravated battery convictions.
Gaughan should determine whether Van Dyke’s 16 aggravated battery convictions merit consecutive sentences, the state added in its petition.
Specifically, the state argues Gaughan’s sentencing conflicts with the Illinois Supreme Court’s majority decision in People v. Lee, 213 Ill. 2d 218 (2004), which held that an aggravated battery with a firearm charge was more serious than second-degree murder in determining a Sangamon County defendant’s sentence.
Gaughan cited Justice Robert R. Thomas’ partial dissent in Lee, where the justice emphasized the seriousness of second-degree murder over aggravated battery with a firearm.
The state argues Lee was decided correctly, pointing to the fact that an aggravated battery with a firearm charge carries a higher minimum and maximum sentence — six to 30 years — and a higher felony classification — Class X.
Second-degree murder is a Class 1 felony that can carry a four- to 20-year sentence. Defendants convicted of second-degree murder can be released from prison after serving as little as 50 percent of their sentence, meaning Van Dyke could be released from prison after serving just over three years in prison, based on his six-year sentence.
“Lee remains good law,” the state wrote in its petition. “And in the fifteen years following Lee, the General Assembly has amended neither the felony classifications nor the sentencing ranges for either these of these two offenses, further demonstrating that Lee’s outcome is consistent with legislative intent.”
The state also argued that, under the high court’s ruling in People v. Crespo, 203 Ill. 2d 335 (2001), Van Dyke has to receive a separate sentence for each of his 16 aggravated battery convictions.
Gaughan said Van Dyke’s 16 convictions merged into a single one for sentencing purposes.
McMahon, during the press conference, said the writ of mandamus is the only way the state can challenge Van Dyke’s sentence. He added that Van Dyke last week filed his own appeal with the 1st District Appellate Court hoping to undo his conviction.
The state’s path forward was mentioned in a 2015 high court ruling. In People v. Castleberry, 2015 IL 116916, the court ruled that prosecutors couldn’t file a counter-appeal to challenge a convicted defendant’s sentence. But in the same ruling, the high court held out the possibility of the state challenging a sentencing decision through a writ of mandamus.
“Although the appellate court may not, under our rules, address a request by the state to increase a criminal sentence which is illegally low, the state may, in appropriate circumstances, seek relief from this court via the writ of mandamus,” Justice Anne M. Burke wrote in Castleberry.
The attorney general’s office has filed writs of mandamus challenging the defendant’s sentence in four other cases. In three of those cases, the high court approved the petition and granted relief.
Raoul, now in his fifth week holding the office, signaled he would not conduct a wide-ranging review to see if other trial judges interpreted similar laws in similar cases.
“If anything is brought to my attention that is actionable, that is improper, we will weigh our options at that time,” Raoul said.
Van Dyke has seven days to reply to the state’s petition before the high court.