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In re Detention of Garnder

September 03, 1999

IN RE: THE DETENTION OF JACK GARDNER, INMATE NO. B-28367, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,
v.
JACK GARDNER, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Coles County No. 98MR89 Honorable Ashton C. Waller, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

In December 1998, respondent, Jack Gardner, moved to dismiss the State's petition seeking to have him committed as a sexually violent person, pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)). Later that same month, the trial court conducted a hearing and granted respondent's motion. The State appeals, and we reverse and remand.

I. BACKGROUND

On November 24, 1998, the State filed a petition to commit respondent as a sexually violent person, alleging the following: (1) in February 1995, respondent was convicted of a sexually violent offense--namely, three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 1994)) (Coles County case No. 94-CF-289); (2) respondent was within 90 days of entry into mandatory supervised release (MSR) from a five-year sentence imposed for those convictions; (3) respondent suffered from the mental disorders of pedophilia, alcohol abuse, and borderline intellectual functioning; and (4) respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in acts of sexual violence. That same day, the trial court ordered respondent to be detained and scheduled a probable-cause hearing, pursuant to section 30 of the Act (725 ILCS 207/30 (West 1998)), for November 30, 1998.

At the November 30, 1998, hearing, the State moved to amend its petition to further allege that (1) respondent was then serving a sentence for a conviction for failing to report a change of address as a sex offender (730 ILCS 150/6 (West 1996)) (Coles County case No. 97-CF-59), which was being served consecutively with or concurrently to his sentence for the aggravated criminal sexual abuse convictions; and (2) respondent "was to be released within 90 days of the filing of the original petition," on November 28, 1998. The State pointed out that the Act had recently been amended to allow the State to file a petition when the offender was serving a sentence that was running consecutively to or concurrently with a sentence for a sexually violent offense (Pub. Act 90-793, §20, eff. August 14, 1998 (1998 Ill. Legis. Serv. 3397, 3418-19 (West)); 725 ILCS 207/15 (West 1998)). At the Conclusion of the hearing, the trial court continued the proceedings to allow the parties an opportunity to research the applicability of the amendment to the present case.

The following day, respondent filed a motion to dismiss the State's petition, alleging that (1) the Act required a petition be filed when an offender was within 90 days of discharge from a sexually violent offense; and (2) respondent was not then serving a sentence for a sexually violent offense. On December 3, 1998, the State filed an amended petition, in which it included the additional allegations earlier discussed.

At a December 1998 hearing on respondent's motion to dismiss, the trial court first granted the State's motion to amend its petition, and respondent told the court that his motion to dismiss adequately set forth his challenge to the amended petition. Randy Stevenson, the supervisor of the Robinson Correctional Center's records office, then testified as follows.On February 22, 1995, respondent began serving his five-year sentence for the aggravated criminal sexual abuse convictions at the Department of Corrections (DOC). On December 23, 1996, respondent was released from Robinson Correctional Center and placed on two years' MSR. On April 7, 1997, respondent was sentenced to a 26-month prison term for failing to report a change of address as a sex offender (730 ILCS 150/6 (West 1996)), to be served concurrently with respondent's sentence imposed for his aggravated criminal sexual abuse convictions. As a result of that 1997 conviction, the Prisoner Review Board declared respondent to be an MSR violator, and respondent's discharge for his sexually violent offense convictions--that is, his aggravated criminal sexual abuse convictions--was recalculated to be February 21, 1998. Thus, on that date, respondent's sentence for the sexually violent offense convictions terminated, and he was released from physical custody. (Due to good-time credit, respondent's physical release date for the failure to report a change of address conviction was January 24, 1998.) However, upon his release from prison, respondent was still serving one year of MSR for failing to report a change of address.

On October 2, 1998, respondent was again incarcerated for violating a term of his MSR by removing an electronic monitoring device from his ankle. As a result of that MSR violation, respondent's discharge for the failure to report a change of address conviction was recalculated to be November 28, 1998. According to Stevenson, even though respondent was not in physical custody from February 21, 1998, until October 2, 1998, he was still in DOC's constructive custody because he was serving his one-year term of MSR for failing to report a change of address. Stevenson also testified that an offender is "discharged" from his sentence only after he fully completes the sentence.

After considering counsel's arguments, the trial court granted respondent's motion to dismiss, finding that the amendment to the Act did not apply to a situation--like the present case--in which an offender had been placed on MSR, returned to prison after violating his MSR, and subsequently discharged from his sentence directly from prison. In particular, the court found that the word "discharge" does not have the same meaning as that used by DOC, and the State should have filed its petition within 30 days of respondent's entry into MSR for failing to report a change of address as a sex offender.

II. THE TRIAL COURT'S GRANTING OF RESPONDENT'S MOTION TO DISMISS

The State argues that the trial court erred by granting respondent's motion to dismiss. Specifically, the State contends that the court erroneously determined that the amendatory language of section 15 of the Act did not apply to the present case. We agree.

Initially, we note that respondent did not file a brief in support of the trial court's order. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976), the supreme court held that when the record is simple and the claimed errors are such that a reviewing court can easily decide them without the aid of the appellee's brief, the reviewing court should decide the merits of the appeal. Because we conclude that this is such a case, we address the merits of the State's appeal despite defendant's failure to file a brief.

This issue requires this court to interpret section 15 of the Act, as it reads following the amendment by Public Act 90-793. Section 15 ...


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