## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Com m itm ent of DeSilvestro , 2013 IL App (3d) 120563

Appellate Court Caption In re COMMI TMENT OF J OSEPH DeSI LVESTRO (The People of the State of I llinois
, Petitioner-Appellee
, v. J oseph De Silvestro, RespondentAppellant).

District & N o. Third District Docke t No. 3-12-0563

Filed October 25, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o 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

. ) Respondent’s appea l from the denial of his motion filed under section 2- 1401 of the Code of Civil Procedu re t o dismiss proce eding s seeking to commit h im as a sexually violent person was dismiss ed, since a proceed i n g under section 2-1401 provides for a petition to decla re a judgme nt or order void and the petition must be filed in the same proce eding in which t h e o rd er or j udg ment being attacke d was entered, but responde nt’s mot i o n under section 2-1401 was mere ly labeled a section 2-1401 motion, it did not challeng e any ord er or judgme nt, it
soug ht dismiss al of the entire proce eding s seeking responde n t’s commitment, and the appe llate cour t was left without jurisdiction.

Dec ision Under Review Appea l from the Circuit C o u rt of L a Salle County
, No. 10-MR-7; the Hon. Danie l J . Bute , J udg e, pre siding.

J udg ment Appea l dismi ssed.Counsel on

Appea l J

. Nicolas Albukerk, of Albukerk & Associates, of Chicag o, f o r a p p e lla nt.

L isa Madig an, Attorney Gene ral, of Chicag o (Michae l M. Gl ick and Stephen M. Soltanz adeh
, A s s is ta nt Att o r n ey s Gene ral, of counsel), for the People.

Panel J USTI CE SCHMI DT delivere d the judgme nt of the court, with opinion.
J ustice O’B rien c oncurr ed in the judgment and opinion.
J ustice Carte r spec ially

concur red, w ith opinion.

OP INION

¶ 1 The State of I llinois filed a petition seeking to commit responde nt, J oseph De Silvestro, pursuant to the Sex ually Violent Persons Commi tment Act (the Act) (725 I L CS 207/1 (West 2010)). Respondent eventua lly filed a “motion to dismiss pursu an t t o 2-1401(f )” seeking dismiss al of the entire commitment proce eding

. Following a h ea ri n g and argument, the circ uit court of L a Salle County denied responde nt’s motion. Respondent appea ls, claiming he was not in lawful custody at the time the State filed its pet i t i o n and, there fore
, the trial
court e rre d in denying his motion to dismi ss.

¶ 2 BA CKGROUND ¶ 3 In 2004, the State cha rg ed re spondent in case No. 2004-CF- 278 with numerous counts of ag g ravated criminal sexual a buse (720 I L CS 5/ 12-16(c )(1) (i) (West 2004)), claiming he knowing ly fondled the penises of four differ ent minors betwee n August of 2001 and J anuar y of 2004 for the purpose of his sexual arousa l. Respondent enter ed into a fully neg otiated plea in which he p l ed guilty to four separ ate counts of ag g ravated criminal sexual abuse in exchang e for

four c oncurr ent sentenc es of se ven year s’ incar cer ation. ¶ 4 Th e wr i t t en j u d gm en t o f s en tence did not identify a specific term of mandatory supervised rele ase (MSR). P ri o r to discharg ing his full seven y ear s of incar cer ation, responde nt appar ently beca me elig ible for ear ly rele ase due to g ood-time cre dits. September 7, 2007, would have been responde nt’s rele ase date; howeve r, t he host site wher e he proposed to live upon re lease was “ too close to a school.” ¶ 5 Respondent eventua lly arr ang ed for suitable housing in 2009, which led to his rele ase on MSR in April of 2009. In Dec ember of 2009, a war rant issued for responde nt’s arr est due to violations of the terms of his MSR. The alleg ed violations included possessing the following items or materia l s : a comput er, children’ s video home sy stem (VHS) tapes, children’ s clothing items, children’ s books, stuffed animals, an d d o l l s. The petition to revoke

-2-responde nt’s MSR further alleg ed that responde nt w orked diligently upon rele ase to return

to a position within the Knig hts of the Altar, which provides instruction to altar boy s in the Roman Catholic Church. ¶ 6 Respondent notes that many of the items identified in th e p et i tion to revoke his MSR

wer e “a g ift for his g randc hildren *** all of whom would like him t o live with them in his final y ear s.” Respondent sug g ests that the alleg ations in the petition to revoke his MSR wer e

a sham and “at best prete x tual interpre tations by parole office rs.” Respondent, howeve r, provides no citation in the rec ord to direc t us to fac ts supporting his claims reg arding the petition to revoke his MSR. Other than the petition to revoke
, itself, and the sentenc ing order
, responde nt ha s chosen not to include many documents from his criminal case in the rec ord
on appea l before us. ¶ 7 Wit h responde nt back in custody of t h e I llinois Depa rtment of Correc tions (DOC), on J anuar y 20, 2010, the State filed a petition to detain responde nt unde r the Act. The petition alleg ed that responde nt suffe red from the mental disorders of p ed o philia, para philia, and

narc issist ic persona lity disorder, making him dang erous to others. The petition also alleg ed that these mental disorders made it substantially probable that responde nt w ould e ng ag e in acts of se x ual violence

. ¶ 8 On J anuar

y 2 1
, 2 0 1 0
, the matter proce eded to a “proba ble cause hear ing.” The doc ket sheet from the trial court notes that responde nt appea red at the probable cause hear ing with counsel and that “re spondent agree s t o s t ipulate to the char g es.” The docket sheet entry continued, noting the “cour t questions responde nt and finds that [he] knowing ly and willing stipulates to the char g es. Probable cause is found. Re s p o n d ent is to be detained by the Depa rtment of Human Ser

vices.” ¶ 9 Nea

rly a y ear later, on J anuar

y 14, 2011, responde nt filed a motion to dismiss , pursuant to section 2-619 of the Code of Civil Procedur e (the Code) (735 I L CS 5/2-619 (West 2010)), claiming the trial court lacke d persona l jurisdiction over him. Respondent conclude d that the State failed to proper ly serve him with proce ss of the commitment proce eding s g iven the fac t that an employ ee of the Attorney Gen era l’s office serve d him with proce ss. This service
, responde nt posited, was not in acc ordanc e with languag e found in s ec t i o n 2 -202(a) of the Code, which states that a party be serve d by someone “not a party to the action.” 735 I L CS 5/2-202(a) (West 2010). ¶ 10 Approxim ately four months later, on April 6, 2011, with his initial motion to dismiss still pending
, responde nt filed a subsequent motion to dismiss
, claiming the trial court lacke d subject matter jurisdiction. Respondent assert ed t hat he completed his sentenc es of incar cer ation on September 7, 2007, and should have commence d his MSR on that date. This motion acknow ledg es that responde nt could not find suitable housing, leading him to beg in his term of MSR while remainingin custody

. ¶ 11 Respondent’s motion continues by alleg ing that the DOC err oneously applied a four- y ear term of MSR, instead of an alleg edly agree d-upon two-year term. This, responde nt claimed,

cau s ed his incar cer ation to be im proper ly prolong ed. The section 2-619 motion to dismiss continued, noting that section 15 of the Act requ i re s a p et i tion seeking commitment to be filed “bef ore the rele ase or discharg e of the person or within 30 day s of place ment onto

-3-parole or mandatory supervised rele ase.” 725 I L CS 207/15(a) (West 2010). Respondent

conc l u ded that the court did not have subject matter jurisdiction, as he claimed he should have been rele ased on September 9, 2008, and the State did not file its petition until J anuar y 20, 2010. ¶ 12 The trial court denied both motions on J uly 20
, 2 0 1 1

. R es p o n d en t filed a motion to

rec onsider denial of his motion to dismiss based upon subjec t matter jurisdiction. The trial court de nied the motion to reconsider on Dec ember

22, 2011. ¶ 13 On Marc h 15, 2012, the responde nt filed a “motion to dismiss pursuan t t o s ection 2- 1401(f) ” of the Code. 735 I L CS 5/2-1401 (West 2010). Respondent’s section 2-1401 motion
to d i s m i s s re iterate s many of the alleg ations contained within his section 2-619 motion to dismiss for lack of subject matt er j u ri s d i ction. The trial court denied the section 2-1401 motion on J une 21, 2012. Respondent f iled a notice of

appea l on J uly

5, 2012.

¶ 14 ANALYSI S ¶ 15 The issues ra ised on appe al re late to the denia l of responde nt’s section 2-1401 motion. We revie w the denial of a section 2-1401 petition de novo

. People v. Vincent
, 226 I ll. 2d 1, 18 (2007). ¶ 16 Respondent argues that the State illega lly prolong ed his incar cer ation prior to filing the petition se eking to c ommit him unde r the Ac t. Respondent claims that the sexually violent
person (SVP) petition m u s t be dismiss ed. This is so, responde nt posits, beca use had he

rec eived the benef

it of his plea agree ment, he would have been beyond the rea ch of an SVP petition on J anuar

y 20, 2010. ¶ 17 The State notes, in its response , that section 2-1401 is not a proper proce dural mecha nism
to attack or seek the dismiss al of a commitment petition. Moreove r, the S t ate notes that nowher e in responde nt’s opening brief does responde nt identify a specific order or judgme nt from which he seeks relief

. Respondent, instead, argues for d i s m i s s al of the entire
proce eding s. The State notes that responde nt’s arguments, rathe r than focusing on a specific order from the com m i t m en t p roce eding s, cente r, at best, on the sentenc ing order from the criminal ca se No. 2004-CF -278. ¶ 18 Section 2-1401 of the Code states, in pertinent pa rt: “Relief f rom judg ments. (a) Relief from final order s and judgme nts, afte r 30 day s from the entry there of,
may be had upon pe tition as provided in this S ection. *** (b) The petition must be filed in the same proce ed i n g i n wh ich the order or judgme nt was ente red but is not a continuation ther eof. ***
* * * (f) Nothing conta i n ed i n t h is Section aff ects any exis ting rig ht to relief from a void order or judgme nt, or to employ any exis ting method to procur e that relief .” 735 I L CS 5/ 2-1401 (West 2010). ¶ 19 As the plain languag e above indicates, sec tion 2-1401 provides re lief from final order s and judgme nts. 735 I L CS 5/2-1401 (West 2010). We can find no authority to support

-4-responde nt’s contention that section 2-1401 provides a proce dural mecha nism to dismiss a petition or a complaint. ¶ 20 Moreove r, our supreme court has been clear t h at “[ s ]ection 2-1401 require s that the petition be filed in the same pr ocee ding in whic h the orde r or judg ment was e ntere d, but it is not a continuation of the orig inal action.” Vincent
, 226 I ll. 2d at 7; 735 I L CS 5/2-1401(b) (West 2010). ¶ 21 Respondent’s section 2-1401 motion claims that he was improperly detained by the DOC and that the State filed its petition to commit him under th e Ac t du ri ng this improper detention and conclude s that the “ SV P proce eding must be dismiss ed.” Respondent’s motion identifies the “sente ncing order *** enter ed on 2/10/05” in case No. 2004-CF- 278 and notes that the order “make s no mention of a MSR sentenc e.” In his motion, responde nt quotes the
transcr ipt from his sentenc ing hear ing in which the trial court mentioned a two-year term of MSR, which is applicable when one has a single conviction for ag g ravated criminal sexual abuse. The motion continues by alleg ing that the DOC lacke d the authority to imp o s e an MSR term beyond that two y ear s and, there fore
, the “extension of the MSR from two to four
y ear s is thus void.” Even if we agree d with this misstatement of both fac t and law, we must first have jurisdiction to address the a rgument. ¶ 22 No final order s or judgme nts have been rende red in the case at bar. A detention order is
not a final order

. In re Detention of Lieberman
, 356 I ll. App. 3d 373, 377 (2005). There has 1 been no trial. Respondent’s motion seeks to attack the sentenc ing order in case No. 2004-CF278. Respondent cannot use a section 2-1401 petition filed in this case to seek relief from a final orde r in another case

. See 735 I L CS 5/2-1401(b) (West 2010); Vincent
, 226 I ll. 2d at 7. Also, the DOC’s actions in applying the statutorily mandated MSR is not a final order or judgme nt. To the extent responde nt is attacking the order denying his motion to dismiss
, that order is not a final orde r or judg ment. ¶ 23 An order denying a motion to dismiss is not a final ord er o r j u d gm en t

. W e find that labeling the motion to dismiss as a secti on 2-1401 motion did not conver t the motion to a section 2-1401 petition. L ikewise, a pleading seeking relief from any thing other than a final order and judgme nt is simply not a section 2-1401 petition, notwithstanding its title. One
cannot conver

t a minivan into a D11 by simply painting it y ellow and writing “CAT” on the doors. Our appellate jurisdiction in this matter depends upon the denial of a section 2-1401 petition. There was no section 2-1401 petition filed below. We are left without jurisdiction. ¶ 24 The s p ec i al co n cu rr en ce i s based upon the incorre ct assumption that responde nt’s “sec tion 2-1401 motion to dismiss ” soug ht revie w of only the detention order

. As explained above, responde nt soug ht dismiss al of the entire SVP proce eding s, not simply reve rsal of the detention orde r.

We agree wit h Lie berman ’s ana lysis wit h re spe ct to w h e t h e r a det ent ion ord er is a fi nal 1 ord er sub j ect to at ta ck unde r a sec ti on 2- 1401 pet it ion

. However, we bel ie ve tha t onc e the app el la te

cou rt m ade tha t det er m ina ti on, the j udgm ent s h o uld have bee n “ap pea l dis m is sed ” as oppo sed to “af fi rmed.”

-5-¶ 25 CONCLUSI ON

¶ 26 For

the fore g oing r easons, we dismiss this appeal for want of jurisdiction.

¶ 27 Appea l dismi ssed.

¶ 28 J USTI CE CARTER, specially concur ring

. ¶ 29 I ag ree with the majority ’s holding that we lack jurisd i ct i o n t o co nsider this appeal. Howeve r, I

respe ctfully

do not join in t he majority ’s ana ly sis. ¶ 30 I llinois Supreme Court Rule 304(b)( 3) (e ff. F eb. 26, 2010) pr ovides that an appeal can be taken from “[a] judgme nt or order g ranting or denying any of the relief prayed in a petition under section 2-1401 of the C ode of Civil Procedure .” Howe ver, in EMC Mortgage Corp.

v. Kemp
, 2012 I L 113419, ¶ 13, our supreme court held that the denial of an improperly filed section 2-1401 petition wa s n ot appea lable under Rule 304(b). In that case , the section 2- 1401 petition soug ht a vacatur of a fore closure judgme n t b u t was filed befor e the judicial sale even occur

red. EMC Mortgage Corp.
, 2012 I L 113419, ¶ 4. As the supreme court noted,

a fore closure judgme nt “is not final and appea lable until t h e t ri al court enter s an order approving the sale and direc ting the distribution.” EMC Mortgage Corp. , 2012 I L 113419, ¶ 11. Thus, beca

use the section 2-1401 petition was premature, the supreme court held that Rule 304(b) did not confe r jurisdiction. EMC Mortgage Corp. , 2012 I L113419, ¶ 13. ¶ 31 In this case , the respondent ch al l en ged the underlying proce ss leading to the detention order in his se c ti o n 2

- 1 4 0 1 p e ti tion. The responde nt challeng ed the circ uit court’s jurisdiction in his petition, alleg ing that t h e S t at e did not have authority to file the sexually violent
persons petition be cause he was not la wfully in c ustody

. The responde nt argued in the trial
court that pursuant to section 2-1401(f ), his petition seeks relief from the proce eding that was based on a void order imposing the mandatory supervised rele ase sentenc e, and that section 2-1401(f ) provides a separ ate and distinct reme dy from section 2-1401(a ). In his reply brief, the re spondent claims he seeks section 2-1401(f ) relief from a specific void or der; na mely
, his detention order

. Such an order is not a final order

. In re Detention of Lieberman
, 356 I ll. App. 3d 373, 377 (2005). Thus, section 2-1401 relief was not available to the petit ioner at the time he filed his petition. Lieberman
, 3 5 6 I ll. App. 3d at 376. Thus, pursuant to EMC Mortgage Corp. , this appeal must be dismissed. ¶ 32 For the fore g oing rea sons, I respe ctfully do not join in the majority ’s analy sis but a g ree that we lac k jurisdiction to consider this appea l.

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