## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Bethel , 2012 IL App (5th) 100330

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROBERT D. B ETHEL , Def endant- Appellant.

District & N o. Fifth District Docke t No. 5-10-0330

Rule 23 Order

filed Motion to publ ish
g rante d J uly 10, 2012

August 31, 2012

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s postconviction petitions alleg ing that he would not h av e enter ed guilty pleas to ag gravated criminal sexual assault if he had known the leg islature would lat er amend the Sex ually Violent Persons Commi tment Act to toll the term of mandator y supervised r elea se upon the filing of a sub s eq u en t petition under the Act until the petition is dismiss ed or defe ndant is found no longe r sexua lly v io le nt and discharg ed failed to state the g ist of a constitutional claim in the absenc e of any basis for a pplying the amendment r etroa ctively

.

Dec ision Under Review Appea l from the Circuit Court of Clinton C ounty , Nos. 89-CF- 240, 91- CF-9 c ons.; the Hon. Ericka A. Sander s, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, J ohannah B. Weber, and Robert S. Bur ke, all of State Appellate D efe nder’ s Offic e, of Mt. Ve rnon, for appellant.

J ohn Hudspeth, State’s Attorney
, of Carlyle (Patrick Delfino, Stephen E. Norris, Pa t ri ck D. Daly
, and Neha Sharma, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel PRES IDI NG J USTI CE DONOVAN delivere d the judgme nt of the court, with opinion.
J ustices Chapman a

nd Spomer conc urre d in the judgme nt and opinion.

OP INION

¶ 1 The d ef

en d an t , R obert D. Be thel, appea ls from order s of the circ uit court summarily dismiss ing his claims for postconviction relief

. The defe ndant contends that he stated the g ist of a constitutional claim in that he did not knowing ly and voluntarily agree to an open-e nded, possibly lifelong term of mandatory supervised rele ase (MSR) when he enter ed guilty pleas in N os. 89-CF- 240 and 91-CF- 9, and that if he had known that the leg islature was g oing to

enac t a statutory amendment that would toll the running of the term of his MSR during the period he was committed as a sexually violent person, he would not have enter ed guilty pleas in those case s. The defe ndant also contends that the application of the amendment tolling the running of his term of MSR is a violation of the con s t i tu t ional prohibition ag ainst ex post facto punishment. W e af firm. ¶ 2 In No v ember 1989, the defe ndant was charg ed in the circ uit court of Clint on County (c au s e No. 89-CF- 240) with two counts of ag g ravated criminal sexual assault, a Cl as s X felony

. The information alleg ed that the assault occur red on August 20, 1989. On November 20, 1990, pursuant to a neg otiated plea agree ment, the defe ndant enter ed a plea of guilty to

one count of ag g ravated criminal sexual assault and the S t ate dismiss ed the other count. Be fore acc epting the defe ndant’s guilty plea, the trial court advised the defe ndant t h at ag g ravated criminal sexual assault car ried a nonextended rang e of punishment of 6 year s to 30 year s in prison and a 3-year term of MSR. On April 29, 1991, the trial court sentenc ed the defe ndant to a prison term of 25 year s and a 3-year term of MSR. The defe ndant did not file a motion to withdraw his guilty plea or reduc e his sentenc e. He did not appeal. ¶ 3 On J anuar

y 14, 1991, the defe ndant was charg ed in Clint on County circ uit court (ca use No. 91-CF- 9) with ag g ravated criminal sexual assault. The information alleg ed that the defe ndant sexually assaulted a prisoner in the Clint on County jail on October 4, 1990, while

awa iting transfe r to the penitentiary to beg in serving his time in No. 89-CF- 240. On October 25, 1991, the defe ndant enter ed a neg otia t ed p l ea o f guilty to ag g ravated criminal sexual

-2-assault. He was sentenc ed to a prison term of 15 year s and a 3-year term of MSR. Th e

sentenc e was to run consec utive to the sentenc e in No. 89-CF- 240. The defe ndant did not file a motion to withdraw his guilty plea or reduc e his sentenc e. He did not appeal. ¶ 4 On September 4, 2009, six day s b ef o re t h e defe ndant was schedule d to complete his prison sentenc es and beg in his three -year term of MSR, the State filed a civil petition in the ci rc u i t court of Clint on County (ca use No. 09-MR-85) pursuant to the Sex ually Violen t Persons Commi tment Act (Ac t) (7 2 5 I L CS 207/1 to 99 (West 2008)). Whil e the State’s petition was pending
, the defe ndant filed pro se postconviction petitions in Nos. 89-CF- 240 and 91-CF- 9. The postconviction petitions wer e filed April 1, 2010. In ea ch p et i tion, the defe ndant asser

ted that he enter ed guilty pleas to crimes that occur red in 1989 and 1990; that an amendment to the S exually Violent Persons Commi tment Act, which became effe ctive in J anuar y 1998, added a subsection providing that the running of a defe ndant’s term of MSR would be tolled upon the filing of a petition under the Act and until such time as the petition is dismiss ed or the defe ndant is found no longe r sexually violent and discharg ed by the court; that the tolling provision impermissibly and subst antially incre ases the sentenc e for which he originally barg ained in that it incre ases a deter minate t h re e-year MSR term t o an openended and indefinite term in violation of his constitutional due proce ss rights; and that if he had been made awa

re that the leg islature was g oing to enac t a provision tolling the running of his MSR t erm, he would not have entere d guilty pleas in Nos. 89-CF- 240 and 91-CF -9. The de fenda

nt asked the c ourt to vacate the guilty plea a nd his conviction in eac h case

. ¶ 5 In a written order enter ed J une 28, 2010, the circ uit court stated that it had examined the alleg ations in the defe ndant’s postconviction petitions and deter mined that the defe ndant failed to state the g ist of a constitutional violation. T h e co u rt summarily dismiss ed the defe ndant’s postconviction petitions. The orde r states in par t: “While a petition can only be filed if the offe nder has been convicted of cer tain crimes, the filing of said petition is a collater al conseque nce of his convi ct i o n , not a direc t conseque nce. Direc t conseque nces are t h o s e t h at are ‘def inite, immediate, and larg ely automatic in their eff

ect upon a defe ndant’s p u n i s h m ent.’ [C itation.] The failure to inform a defe ndant of a conseque nce of his plea is materia l, and can be the basis to

reve rse a conviction, if the c onsequenc e flows dire ctly from the c onviction. [ Citation.] C o llatera l conseque nces, howeve r, conce rn issues ‘beyond the court’s control,[’] such

as the leng th of time serve d on a sentenc e that has been i mp o s ed. [C itations.] Setting aside the fac t that the Act beca me law afte r the Petitioner was sentenc ed–ther eby making it impossibl e for him to be informed of the possibili ty of the filing of the petition and the tolling of his MSR–t he tolling, at best, is a co l latera l conseque nce of his pleas and convictions. Even if the Act had been in exis tence at the ti me of the Petitioner’ s pleas, he had no constitutionally protec ted right to be informed th at t h e fi l i ng of a petition pursuant to the Act could toll his MSR. There being no violation of Petitioner’s right to due proce ss, this Court finds that Petitioner has failed to state the g ist of a constitutional violation and his Petit ion is denied.” ¶ 6 The defe ndant appea led the summary dismiss al of his postconviction petitions. During oral arguments befor e this court, the State reque sted leave to file a supplemental brief on an issue of the defe ndant’s standing to file the postconviction petitions, and the defe ndant stated

-3-that he had no o b j ec t i o n

. We direc ted t he S tate to file a written m otion. The S tate filed its motion. Having rec eived no objection from the defe ndant, we g rante d the parties leave to file supplemental briefs on the issue of standing

. Shortly afte r the State filed its sup plemental brief, the defe ndant fil ed a motion to strike i t. We denied that motion. The defe ndant fil ed

a supplemental brief on standing

. Shortly there afte r, the defe ndant fi l ed a “Motion for L i mited Remand for Evidentiary Hea ring on the Question of Standing.” The defe ndant’s motion and the supplemental brief s were taken with the c ase, a nd we c onsider them now. ¶ 7 In its supplemental b ri ef
, t h e State arg

ues that beca

use the defe ndant’s MSR term is tolled under section 15(e) of the Act (725 I L CS 207/15(e) (West 2008)), the defe ndant is not

curr ently “imprisoned,” but rathe r, committed to the Depa rtment of Human Service s, and as such he doe s not have standingto file a postconviction petition. We do not ag ree

. ¶ 8 Section 122-1 of the Post-Convi ction Hea ring Act states that any

person imprisoned in the penitentiary may institute a proce eding under the Post-Convi cti o n He aring Act if the
person asser

ts that in the p roce eding s resulting in his conviction there was a substantial denia l o f his rights under the Constitution of t he United States or t he S tate of I llinois

. 725 I L CS 5/122-1 (a)(1) (West 2008). A person is imprisoned in the penitentiary within the meaning of the Post-Convi ction Hea ring Act if his liberty is actua lly constraine d beca use of

a criminal conviction. People v. Martin-Trigona
, 111 I ll. 2d 295, 300-01, 489 N.E.2d 1356, 1358-59 (1986). Relief under the Post-Convi ction Hea ring Act is available to those persons who are actua lly incar cer ated and to those who are subject to be ing confine d, such as those

o n p ro b at i o n , parole
, MSR, or appea l bond. People v. Pack
, 224 I ll. 2d 144, 150-52, 862 N.E.2d 938, 942-43 (2007); Martin-Trigona
, 111 I ll. 2d at 299-301, 489 N.E.2d at 1358-59 (a person i s i mp ri soned if his liberty is deeme d to be on a string that the State may pull whene ver it please s). In contra st, persons wh o have serve d their prison term and term of parole or MSR and who mere ly wish to purg e their criminal rec ords of past convictions are not “imprisoned” pe rsons entitled to relief under the Post-Convi ction Hea ringAct. People

v. W est , 145 I ll. 2d 517, 584 N.E.2d 124 (1991) ; Martin-Trigona
, 111 I ll. 2d at 299, 489 N.E.2d at 1358. ¶ 9 In this case , the rec ord sho ws t h at as o f t h e d at e t h at th e d ef en dant filed his postconviction petition, he had not completed the three -year term of MSR an d re m ai ned subject to potential revoc ation of MSR. The rec ords of the I llinois Depa rtment of Correc tio ns identify the def endant’ s status as “par ole” and show that the defe ndant’s sentenc es in Nos. 89-CF- 240 and 91-CF- 9 have not been discharg ed. Under these fac ts, the defe ndant clea rly fits within the class of persons whose liberty is constraine d by virtue of his convictions, and he has s t anding to seek relief under the Post-Convi ction Hea ring Act. Pack
, 224 I ll. 2d at 150-52, 862 N.E.2d at 942-43; Martin-Trigona
, 111 I ll. 2d at 299-301, 489 N.E.2d at 1358- 59. Whether the running of the def en dant’s term of MSR is tolled is inconseque ntial. Acc ording ly
, we f

ind no rea son to remand this ca se for an evide ntiary

hearing on the issue of standing . The de fenda

nt’s motion for a limited remand is denie d. ¶ 10 At the first stag e of pr ocee dings on a postconviction petition, the trial court is r equire d
to independe ntly examine the petition to deter mine whether the alleg ations prese nt the g ist of a substantial constitutional claim. People v. Brown
, 236 I ll. 2d 175, 184, 923 N.E.2d 748, 754 (2010); People v. Coleman
, 183 I ll. 2d 366, 380 n.2, 701 N.E.2d 1063, 1071 n.2 (1998).

-4-When making this deter mination, all well-plea ded fa cts that are not rebutted by the record

are taken as true, and the alleg ations made in the petition are liberally construed in f avor of the defe ndant. Brown
, 236 I ll. 2d at 184, 923 N.E.2d at 754. A court may summarily dismiss the petition if it f

inds that the alleg ations are frivolous or patently without merit. 725 I L CS 5/1 2 2 -2

. 1(a) (2) (West 2008). The first-stag e dismiss al of a postconviction petition is revie wed de novo

. Brown , 236 I ll. 2d at 184, 923 N.E.2d at 754. ¶ 11 In his first point, the defe ndant claims that the circ uit court err ed in summarily dismiss ing his postconviction claims. The defe ndant contends that he stated the g ist of a constitutional claim in that he did not knowing ly and voluntarily agree to an open-e nded, possibly lifelong term of MSR whe n h e en t ere d guilty pleas in Nos. 89-CF- 240 and 91-CF-9, and that if he had known that the leg islature was g oing to enac t a statutory amendment that would toll the running of the term of his MSR during the peri o d h e was committed as a sexually violent
person, he would not have entered guilty pleas in those case s. An issue centr al to the d efe ndant’s claims is whether subsection 15(e)
, which was added as part of the 20 0 7 amendments to the Act, applies retroa ctively to the defe ndant’s pleas and sentenc es in Nos. 89-CF- 240 and 91-CF -9. ¶ 12 The Sex ually Violent Persons Commi tment Act went into eff ect on J anuar

y 1, 1998. 725 I L CS 207/99 (West 2008) . Eig ht y ear s later, a bill proposing amendments and additions to the Act (Senate Bill 2873) was filed wit h the S ec re t ary o f the I llinois Senate. See 94th I ll. Gen. Assem., Senate Bill 2873, 2006 Sess. Senate Bill 28 7 3 wa s en ac t ed on J uly 3, 2006, and it beca

me eff ec t i v e o n J anuar

y 1, 2007. See Pub. Act 94-992 (ef f. J an. 1, 2007) (ame nding 725 I L CS 207/15 (West 2004)). The amendatory leg islation of 2007 revised the Act, in par

t, by addingsubsection 15(e ). See Pub. Ac t 94-992 (ef f. Jan. 1, 2007). ¶ 13 Subsection 15(e) states as follows:

“(e ) The filing of a petition under this Act shall toll the running of the term of parole or mandatory

supervised r elea se until: (1) dismissal of the petition filed under this Act; (2) a finding by a j udg e or jury that the responde nt is not a sexually violent
person; or (3) the sexually violent person is discharg ed under Section 65 of this Act, unless the person h as s ucce ssfully completed a period of conditional rele ase pursuant to Section 60 of this Act.” 725 I L CS 207/ 15(e) (West 2008). ¶ 14 The I llinois Supreme Court a dopted the retroa ctivity analy sis a nnounced by the United States Supreme Court in Landgraf v. USI Film Products
, 511 U.S. 244 (1994). Commonwealth Edison Co. v. W ill County Collector
, 196 I ll. 2d 27, 39, 749 N.E.2d 964, 972 ( 2001). In considering the retroa ctivity of a statutory amendment under Landgraf
, a c o u r t w il l initially deter

mine whether the leg islature has expressly stated the temporal rea ch of the amendment. Doe A. v. Diocese of Dallas
, 234 I ll. 2d 393, 405, 917 N.E.2d 475, 482 (2009). I f the leg islature has done so, then absent a constitutional prohibition, the expression of the leg islature mus t b e gi v en eff ect. Diocese of Dallas
, 234 I ll. 2d at 405, 917 N.E.2d at 482. When the leg islature has not clearly stated the tempora l rea ch of the statutory amendment,

a court will next deter

mine whether applying the amendment would h ave a retroa ctive

-5-impact. Diocese of Dallas
, 234 I ll. 2d at 405, 917 N.E.2d at 482. In making t his

deter mination, a court wi l l consider whether the retroa ctive application of the statutory amendment impairs rights a party possessed while acting
, incre ases a party ’s liability for past conduct, or

imposes new duties with r espec t to transactions alre ady completed. Dioceseof Dallas
, 234 I ll. 2d at 4 0 5, 917 N.E.2d at 482. Section 4 of t he S tatute on Statutes (5 I L CS 70/4 (West 1998)) provides a clea r leg islative direc tive as to the temporal rea ch of the statutory amendments when none is ex pressly stated. Diocese of D allas
, 234 I ll. 2d at 406, 917 N.E.2d at 4 8 3

. Under section 4, statutory amendments that are proce dural may be applied retroa cti v el y , while amendments that are substantive may not. 5 I L CS 70/4 (West 1998); Diocese of Da l l as , 234 I ll. 2d at 406, 917 N.E.2d at 483. I f the court finds that
retroa ctive application has inequitable conseque nces, the court will presume that the statute does not g overn the case

. Dioceseof Dallas , 234 I ll. 2d at 405, 917 N.E.2d at 482. ¶ 15 Subsection 15(e) does not expressly state that it applies retroac t i v el y , and there is no leg islative direc tive as to the temporal rea ch of this provision in the 2007 amendments to the Act. There fore we must deter min e wh et h er applying subsection 15(e) would have a retroa ctive impact in the defe ndant’s case s. And so we consider whether subsection 15(e) is a substantive or pr ocedur al amendme nt to the Act. ¶ 16 The construction of a statu t e i s a qu es t i o n o f law that is revie wed de novo

. In re Detention of

Powell
, 217 I ll. 2d 123, 135, 839 N.E.2d 1008, 1014 (2005). The primary g oal of statutory construction is to asce rtain and g ive eff ect to the leg islative intent. Powell
, 217 I ll

. 2 d at 135, 839 N.E.2d at 1015. The most reliable indication of leg islative intent is the plain and ordina

ry languag e of the statute. Powell , 217 I ll. 2d at 135, 839 N.E.2d at 1015. ¶ 17 The word “toll” is not define d in the amendatory leg islation of 2007 or any wher e else in the Act. B lack’ s L aw Dic tionary define s the verb “ toll” to mean “to stop the running of; to abate .” Bla ck’s L aw Dictionary 1495 (7th ed. 1999). Under this definition, the filing o f a petition unde r the Act suspends the running of the term of parole or MSR until the petition is dismiss ed or the defe ndant is discharg ed. During brief discussions of Senate Bill 2873, two of the sponsoring leg islators, Senator Har mon and Represe ntative Gordon, noted that subsection 15(e) tolled the running of the term of parole or MSR of a sexual offe nder while he or she is committed as a sexually violent person so that when the offe nder is found to be

no longe r a sexually violent person, he or she, upon rele ase from the insti tu t i o n , wi l l be require d to serve a term of parole
, thus ensuring intensive supervision upon rele ase. See 94th I ll. Gen. Assem., Senate Procee dings, Fe b. 22, 2006, at 47 (statements of Senator Har mon); 94th I ll. Gen. Assem., House Procee dings
, M ar

. 3 0, 2006, at 56-57 (statements of Represe ntative Gordon). The tolling provision was enac ted to ensure that a defe ndant is subject to intensive supervision upon beingrele ased f rom the instituti on. ¶ 18 Subsection 15(e) plainly states that upon filinga petition under the Act, the runningof the term of MSR is suspended. There is no languag e in subsection 15(e) or elsewhe re in amendatory leg isl at i o n that excuses a defe ndant from complying with the terms and conditions of MSR during the period in which the running of the MSR term is tolled. I f subsection 15(e) applies retroa ctively in the defe ndant’s case s, it appea rs that the defe ndant would rema in on MSR and subject to its conditions and potential revoc ation proce eding s during the period that he is committed to a secure tr eatment f acility and until discharg e, at

-6-wh i ch time he would be require d to serve his term of MSR. Application of the tollin g

provision would have a definite, immediate, and substantive ef fe ct o n t he leng th of the defe n d ant’s MSR term. People v. W illiams
, 188 I ll. 2d 365, 372, 721 N.E.2d 539, 544 (1999). Where subsection 15(e) contains no express provision reg arding its temporal rea ch and wher e subsection 15(e) conce rns substantive rathe r than proce du ra l matters, we will
presume that the tolling provision does not a pply retroa ctively to the defe ndant’s pleas and
sentenc es in Nos. 89-CF- 240 and 91-CF -9. ¶ 19 The premise underlying the defe ndant’s postconvict io n c laim s is th a t th e to ll in g

p r o v ision in subsection 15(e) would be retroa ctively applied. Absent that err oneous foundation, the alleg ations in the defe ndant’s petition are not sustainable. After revie wing the alleg ations in the defe ndant’s postconviction claims, we conclude that the defe ndant failed to state the g ist

o f a constitutional claim, and we aff irm the summary dismiss al of the defe ndant’s postconviction petitions. ¶ 20 I f we assume for the sake of argument that subsection 15(e) applies prospec tively to the defe ndant, then we would nece ssarily presume that the leg islature, in enac ting the amendment, did not intend for a committed defe ndant t o be bound to the terms and conditions of MSR and subject to revoc ation of MSR during the period of commitment. Such

a construction would g ive eff ect to the stated leg islative intent to ensure that a defe ndant be subject to intensive supervision upon his discharg e from commitment without incre asing a defe ndant’s punishment. ¶ 21 Acc ording ly
, the defe ndant’s motion for a limit ed rema nd to hold an evidentiar

y hearing

on the i ssue of standing is denied, and the j udg ment of t he circuit court of Cli nton County is affirme d.

¶ 22 Affir

med.

-7-