SECOND DIV ISION May 27, 2008

No. 1-07-2512
IN RE THE DE TENTION OF EDWARD GAVIN (The People of the State of Illinois,

Petitioner-

Appellee,
v. Edward Gav in, Respondent-Appellan t). ) ) ) ) ) ) ) ) ) )) Appeal from the Circuit C ourt of Cook County

Honorable Paul P. Biebel, Jr., Judge Pre siding.

JUSTICE KARN EZIS delivered the opinion of the court: Respondent Edward Gavin filed this interlocutory appeal from an order

of the circuit court denyin g his motion to dismiss th e State's sex ually v iolent persons
comm itme nt pe titio n. On appe al, h e con tend s tha t the circu it cou rt sho uld h ave dismissed the p etition because it was unt imely. We affirm.1-07-2512

2 BACKGROUND In this appeal, we interp ret the meaning of section 15(b- 5) of the Sexual ly Viol ent Persons Commitment

Act (Act)

(725 ILCS 207/15( b-5) (West 2004)), as i t applied to respondent in 2006. That section pr ovided in pe rtinent part that a petition alleging that a person wa s a sexual ly vi olent person must be filed: "(1) No more than 90 days befo re discharge or entry into mandatory supervised release from a Departm ent of Corrections correctional f acility for a sentence that was imposed upon a conviction for a sexuall y viol ent offense, or for a sentence that is being servedconcurrently or consecutively with a sexua lly violent offense , and no more than 30 days after the person's entr y into par

ole or mandatory super

vised rel ease[.]" (Emphasi s added.) 725 ILC S 207/15(b-5) (West 2004). On March 9, 1989, responden t pled guilty to aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(1)) and was senten ced to 15 years' imprisonment. O n April 19, 19 96, respondent beg an a term of mandatory supervis ed release (M SR) for that offense. I n September 1996, re spondent was arrested for burglary of a business and w

as released on bond. On Marc h 9, 1997, respondent was arrested for tw

o counts of burgl ary of an auto. On March 11, 1 997, respondent w as1-07-2512

1 The record before us

does not indicate the result of respondent's arrest for violatin g MSR. 3 arrested on a pa role war rant for his s exual assaul t convict ion. 1 On March 18, 1998, respondent was found guilty of bu rglary of a business and was sentenced to 12 years' imprisonment. The j udgment order d id not indicate whether t he sentence would run concurrent or

consecutive to respondent's sexual as sault sentence. On December 23, 1998, respondent w

as found guilty

of two counts of burglary of an auto and was sentenced to concu rrent 8-year sentences, which w ere ordered to run consecuti ve to the 12-year

burglary of a business sentence. On April 9, 1999, respondent's MSR term for h is sexual assault conv iction was discharged. Respondent still remained incarcerated due to the burglary of a busine ss offens e. R espo nden t w as s ched uled to be gin hisMSR ter m on t he bu rgl ary

of a business offense on Apr il 15, 2006. H owever , on April 10, 2006, the State file d a sexually violent p ersons commitment petition purs uant to the Act to declare resp ondent a sexually

violent p erson and elig ible for commitment to the Department of Human Services . Relyi ng on an eva luation by psycholog ist Dr. Ph il Reidda, t he petition all eged that respondent s uffered from mental disorde rs that made the l ikelihood of commit ting future sexuall y viol ent offenses substantial ly probabl e. The State alleg ed in the petiti on that the petition was timely because it was filed within 90 days of respo ndent's entry1-07-2512

4

into MSR. Respondent filed a mot ion to dismis s the petition pursuant to sec tions 2- 619(a)(1), (a)(5) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1), (a)(5), ( a)(9) (West 2006)). R espondent's motion alleged that the State's peti tion was not filed within the time permitte d by the Act because responden t's anticipated release to MSR was for his burg lary of a bus iness offense and not for a sexually violent o ffense. He argued i n the motion that because the State failed to file the petit ion prior to the expirati on of MSR for his sexual ass ault convi ction, whi ch was di scharged on A pril 9, 1999, the State's petition was untimely . The petition di d not address w hether respondent's bur

glary of a business sentence was bei ng serv ed concurrent or consecutiv e to his sex ual assault s entence. The circuit court denied respon dent's motion to dismiss, f inding that because respondent was in the custody of the Department of Corrections f or his burglary convicti ons whil e time still remained on hissexual as sault conv iction, those sentences were "runni ng concurr

ently," and t he State's petit ion was ti mely. The cour t also noted that In re Detenti on of Gardner , 307 Ill. App. 3d 85 (1999), sup ported the court's determination. The court subsequently denied responde nt's motion to reconsider. ANALYSIS Timeliness1-07-2512

5

On appeal, we first consi der whether the State's peti tion was t imely. In order for the petition to be timely, the pet ition must have been filed n o more than 90 days befo re respondent's di scharge or entry in to MSR "for a se ntence that is b eing served concurrently

or consecuti vely w ith a sexual ly vi olent offense." If we find that respondent's bur

glary of a business sentence was bei ng serv ed concurrent or consecutiv e to his sentence for sexual assault, then th e petition was timely. We note that we review the circuit court's interpretation of section 15(b-5) de novo

. Gardner , 307 Ill. App. 3d at 90. Although our review is de novo , we find the circuit court's discussion of this court's opin ion in Gardner , 307 Ill. App. 3d 85, helpful. In Gardner , the respondent began serving a five-year sentence for aggravated criminal sexual abuse on February 22, 1995. He was released from prison and placed on two years MSR on December 23, 1996. On Apri l 7, 1997, the r espondent returned to prison to serve a 26- month sentence for failin g to report an address chang e for a sex offender. The judgment order for the r

espondent's conv iction for faili ng to report an address chang e indicated that the sentence was to be served concurren t to his sexual abuse sentence. His sexual abusesentence wa s ultimately discharg ed on February 21, 1998, and he was released from pri son. Howe ver, at tha t time, the res pondent was s till serv ing one year of MSR for failing to report an ad dress chang e. On October 2, 1998, the respon dent1-07-2512

6

returned to pr ison for vi olating a te rm of his MSR by remov ing an elect ronic monitor ing device from hi s person. The r espondent was scheduled to be r eleased from pris on and discharged from his failure to report an addr ess change s entence on Nov ember 28, 1998. However, on Nov ember 24, 1998, the State filed a sex ually v iolent persons commitment petition pursuant to the Act. At iss ue on appeal was the timeline ss of the State's petiti on. The respondent mai ntained that the pet ition had to be fil ed within 90 days of discha rge from a sex ually v iolent offense (agg ravated cr iminal sex ual abuse) rather than w ithin 90 days of discharg e from a non-sex ually v iolent offense (failur e to report an addre ss change). This court di sagreed, findi ng that the State's petition was timely be cause th e petiti on was fil ed within 9 0 days bef ore the respond ent's di scharge from a correcti onal facility for a sentence (fai lure to repor t an address ch ange) that w as being served concurrent to a sexuall y viol ent offense (aggr avated cri minal sexual abuse). Gardner , 307 Ill. App. 3d at 91. The court did not find that pu rsuant to the Act the petition had to be filed prior to discharg e of the sexuall y viol ent offense. Gardner , 307 Ill. App. 3d at 91. The petitio n was timel y because i t was filed prior to di scharge for a sentence that w

as being ser

ved concurr

ent to a sexua lly v iolent offense. Gardner , 307 Ill. App. 3d at 91. Here, the judg ment order for re spondent's burg lary of a bus iness offense did not indicate w hether the sentenc e would r un concurrent or consecutiv e to his sex ual1-07-2512

7

assault sentence. However, in the abse nce of a provi sion to the cont rary i n the judgment order , the sentences ar e presumed to run concurrent. See People ex rel. Gibson v. Cannon , 37 Ill. App. 3d 69, 70 (1976) ( in the absence of spec ific provi sions to the con trary

in thejudg ment or

der, t wo or more s entenc es of a de fendant to the s ame place of confin ement run concurrently). Theref ore, we find that responden t's sentence for burglar

y of a business

was to be s erved concu rrent to his sentence for sex ual assault. Further, respondent d id actually serve a portion of his burglary of a business sentence at the sa me time as his s entence for sex ual assault. Respondent's se xual assault conv iction was not dischar ged until April 9, 1999. At that time, res pondent had already been serving his burglary of a business sentence, which was imposed on March 18, 1998. Because hewas ser ving hi s burglar

y of a business

sentence prior

to the discharge of his sexual assault conv iction, the bur glary and sexual assault sentences were being served concurrently. Therefore, the State 's petition was timely because it was fi led wit hin 9 0 days bef ore re spon den t's re leas e to MS R for a sen tenc e (bu rglary) that was being served concurrent to a sexually violent offense (sexual assault). We agree with this court's inter pretation of the Act as stated in Gardner

that a commitment petition need not be filed w ithin 90 days before dischar ge or entry

into MSR for a sexually violent offense because the time period in which the State has to f ile the petition is continued un til within 90 days before discharge or entry into MSR for a1-07-2512

8

sentence served concurrent or consecu tive to a sexually violent offense. If it was only timely to file the petition within 90 days befo re discharge or entry into MSR for a sexually violent offense, then the part of the statute be ginning with "or for a sentence that is being served concurrently or consecutively with a sexually vi olent offen se," would be rendered meaningless. Furthe r, because the statute includ es "a sentence that is being served * * * consecutively with a sexually v iolent offen se," it would not be possible for a sentence that i s imposed consec utive to a s exually violent o ffense to be served until the sexually violent offense had b een discharged. Consecutive sentences a re served back

-to-back and o ne sentence does not begin until the previ ous sentence has ended. Theref ore, we find that the State's pe tition was timely and the circuit court properly denied respondent' s motion to dis miss. 2007 Amendment Respondent next argues that an am endment to the sta tute, which took effect in 2007, supports hi s contention that the Act, pri or to the amendment, w as not intended to include him. The amended Act provides: "(b-5) The petition must b e filed no more than 90 days before discharge or entry into mandatory supervis ed release from a D epartment of Corrections *** for a sente nce that was imposed upon a con viction for a1-07-2512

9

sexually violent o ffense. * * * (b-7) A per

son convic

ted of a sexuall y viol ent offense remains eligible for commitment as a sexually violent person pursuant to this Act under the following circumstances: (1) the pe rson is in custody for a sentence that is being served concurrently or consecutively with a sexually violent offense; (2) the p erson returns to the custody of the Illinois Department of Corr

ections *** for

any reason during the term of parole or mandatory super

vised rel ease being ser ved for a sex ually v iolent offense; or (3) the person is convicted or adjudicated delinquen t for any offense committed during the term of parole or mandatory supervised release being served for a sexual ly vi olent offense, regar dless of wheth er that conviction or adjudication was for a sexually violent offense ." 725 ILCS 207/ 15(b -5) , (b -7)(West 2 006) , as amen ded b y Pu b. Ac t 94- 992, §5, e ff. January. 1, 2007. Respondent maintai ns that because th e amendment broadened the c lass of offenders eligibl e for commitment purs uant to the Act, t he preamendment ver sion of the statute wasnot intended to i nclude him. Here, we are not persuaded by respondent 's contention. The amendment does1-07-2512

10

not affect respondent's eligibil ity for commi tment under the pre amendment versi on. Respondent was eligi ble for commitment pur suant to the 2006 version of the stat ute, and the amendmen t does not som ehow now ma ke him ineli gibl e. Res pondent came within the parameters of the p reamendment version beca use his burglary of a business sentence was being served concurrent to his sexual assault senten ce. Merely because respondent also fits withi n the additional subsections o f the amended statute does not mean that he did not fit within the preamendment ve rsion. Accordingl y, we affirm the judgment of the circuit court. Affirmed. SOUTH and HALL, J .J., concur.1-07-2512

11 REPORTER OF DECISIONS - ILLINOIS APPELL ATE COURT

IN RE: THE D ETENTION OF EDWARD GAVIN (The People of th e State of Illinois,

Petitioner-

Appellee,
v. Edward Gav in, Respondent-Appellan t). No. 1-07-2512 Appellate Court of Illinois First Di strict, Second Divi sion May 27, 2008
JUSTICE KARN EZIS delivered the opinion of the court.

SOUTH and HALL, J.J., concur. Appe al fr om th e Circ uit Co urt o f Coo k Cou nty. The Hon orable P aul P. Bie bel, Jr., Judge Pre siding. For APPELLANT, Law

Offices of Chicag o-Kent Colle ge of Law ( Daniel T. Coy ne, Matthew M. Daniels, Meghan J. Paulas (Rule 711 Senior Law Student ), of counsel) For APPELLEE, Li sa Madigan, Attorney G eneral of Illi nois (Mic hael A. Scodro, Solicitor1-07-2512

12

General, and M ichael M. G lick, Karl R. Triebel, Assistant Attorneys Gener al, of counsel).