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11/22/89 the People of the State of v. Andy Lee Cooper

November 22, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

ANDY LEE COOPER, APPELLANT



SUPREME COURT OF ILLINOIS

547 N.E.2d 449, 132 Ill. 2d 347, 138 Ill. Dec. 282 1989.IL.1821

Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County, the Hon. John C. Layng, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant, Andy Lee Cooper, who was found to be a sexually dangerous person on October 6, 1976, was granted a conditional release on May 9, 1979; that conditional release was revoked and defendant was recommitted to the custody of the Department of Corrections on September 29, 1983. The circuit court of Winnebago County conducted these proceedings under the authority of the Sexually Dangerous Persons Act (the Act) (Ill. Rev. Stat. 1979, ch. 38, par. 105-1.01 et seq.). Defendant appealed the revocation of his conditional release and his recommitment on various grounds. The appellate court rejected all but one of defendant's arguments; while approving of the trial court's decision, the appellate court reversed the trial court's judgment of revocation and recommitment and remanded for a new hearing on the sole ground that defendant did not have notice of the hearing on September 29, 1983, and so was denied procedural due process. (177 Ill. App. 3d 942.) We granted defendant's petition for leave to appeal (107 Ill. 2d R. 315(a)). We now affirm the appellate court's judgment ordering a remand for a new hearing because of lack of notice to defendant.

The order of conditional release, entered by the circuit court of Winnebago County on May 9, 1979, stated that it "shall last until May 1, 1981," and imposed conditions on defendant's behavior. One condition was that he live near his brother in Denver, Colorado, and defendant did. Apparently, the two years passed without serious incident. On May 4, 1981, the trial court had docketed a review of defendant's case. Neither defendant's attorney nor the State appeared on that date. Another date was set, but defendant's attorney failed to appear. On the next date set, defendant's attorney appeared and the court directed him to obtain Department of Mental Health reports regarding defendant. Defendant's attorney failed to appear at the following three dates set in June. On July 6, 1981, defendant's attorney filed a petition for discharge of defendant. Three days later, on July 9, 1981, the State of Colorado charged defendant with committing a felony sexual assault on July 4, 1981, two days before defendant's attorney filed the petition for discharge.

On July 21, 1981, the trial court heard the petition for discharge and continued it. On June 28, 1982, a Colorado court convicted defendant of sexual assault and sentenced him to 12 years' imprisonment. Defendant's attorney in Illinois then withdrew and the court appointed the public defender. On August 31, 1982, the State filed a petition to revoke defendant's conditional release; the trial court granted this petition on September 29, 1983. The trial court denied defendant's subsequent motions to vacate the revocation. During this entire time defendant was in Colorado.

Defendant presents this court with three arguments attacking the trial court's judgment revoking his conditional release and recommitting him, and he appeals to this court for a reversal of that judgment without remand. Initially, defendant denies that the trial court had jurisdiction over him, arguing that the conditional release expired on May 1, 1981, and he was therefore automatically discharged before he committed the sexual assault in Colorado. If we reject this argument, defendant then asks that we find that he was substantially prejudiced by ineffective assistance of counsel arising out of his original attorney's unreasonable delay before petitioning the trial court for an absolute discharge. Finally, defendant argues that the trial court could not recommit him on the basis of an act for which he had been convicted and imprisoned in Colorado, because his recommitment was inconsistent with the purposes of the Act. We disagree with all of defendant's arguments.

Defendant lays the foundation of his argument that the trial court lacked jurisdiction over him in the language of his conditional release order and the language of the Act. Originally, the order stated: "This conditional discharge shall last until May 1, 1981 . . .." The word "discharge" was changed to "release" by the trial court's nunc pro tunc order on September 29, 1983, without defendant's objection. This word change is significant because the Act only authorizes a court either to "discharge" a person as no longer sexually dangerous or to "conditionally release" a person who does not appear to be sexually dangerous; the Act does not use the term "conditional discharge."

The section of the Act critical to this case allows a person found to be sexually dangerous to petition the trial court for a finding that he is no longer sexually dangerous. If he is not found to be dangerous at that time, the court shall order that he be discharged. Section 9 of the Act provides:

"If the court finds that the patient appears no longer to be dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered, the court shall enter an order permitting such person to go at large subject to such conditions and such supervision . . . as in the opinion of the court will adequately protect the public. In the event the person violates any of the conditions of such order, the court shall revoke such conditional release and recommit the person pursuant to Section 5-6-4 of the Unified Code of Corrections under the terms of the original commitment. Upon an order of discharge every outstanding information and indictment, the basis of which was the reason for the present detention, shall be quashed." (Ill. Rev. Stat. 1979, ch. 38, par. 105-9.)

In the present case, the trial court ordered defendant's conditional release under the authority of section 9.

While the order of conditional release states that it lasts "until May 1, 1981," it fails to state what was to occur after May 1, 1981. The order neither commands the defendant to return to the trial court for a review of his mental condition, nor informs the defendant that ...


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