Appeal from the Circuit Court of Montgomery County. No. 00-MR-61 Honorable Dennis E. Middendorff, Judge, presiding.
Justices: Honorable Richard P. Goldenhersh, J.,
Honorable Thomas M Welch, J., and
Honorable Terrence J. Hopkins, J.,
The opinion of the court was delivered by: Justice Goldenhersh
Kenneth L. Lindsay (respondent) was scheduled to be released from the Department of Corrections. Shortly before that time, the Illinois Attorney General filed a petition for his commitment under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)).
Respondent moved to dismiss the petition as violating the plea he negotiated for his charged offense. The circuit court of Montgomery County denied the motion to dismiss. On appeal, respondent raises the following issues: (1) whether the plea bargain encompassed a prohibition against pursuing a petition under the Sexually Violent Persons Commitment Act, as well as the Sexually Dangerous Persons Act (725 ILCS 205/1.01 (West 1998)), and (2) whether respondent was induced to enter into the plea agreement by promises made by the office of the State's Attorney in bad faith. We affirm.
On March 30, 1998, respondent entered into a plea whereby he agreed to plead guilty to the charge of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)) in return for a recommendation that he would be sentenced to six years in the Illinois Department of Corrections with credit for time already served. The court was informed as follows: "In addition[,] the agreement is the State will not pursue a [s]exually [d]angerous [p]ersons petition for any events that have occurred prior to today[']s date."
Shortly before respondent was scheduled to be released, the Illinois Attorney General filed a petition for civil commitment under the Sexually Violent Persons Commitment Act. Respondent moved to dismiss the petition on the ground that it violated the terms of his plea agreement.
At the hearing on the motion to dismiss, the State called as a witness Neil Schroeder, the assistant State's Attorney who negotiated the plea. This colloquy occurred during Schroeder's direct examination:
"Q: [Assistant Attorney General:] *** Did you feel that you had the standing to waive the Sexually Violent Persons Act?
A: The reason that this came up was that I had filed a Sexually Dangerous Person's [sic] petition in People versus Dale Comer sometime before that and that was[,] to the best of my knowledge[,] the first time that had been done here. We talked about that extensively[,] and although I never filed one here, it was a negotiating tool that I used as far as[:] ['][F]ine, your guy pleads guilty[;] he goes to prison[;] I won't file a D as in David, Sexually Dangerous Person's [sic] petition.['] And it was my opinion at the time[,] and still is today[,] that I don't have jurisdiction to say what will happen at the time he is prepared to be released from the Department of Corrections.
Q: Did you feel that Anne Fitzgerald [respondent's attorney] understood the distinction between the two [a]cts?
A: She was very versed in both that [sic], and I believe that was her understanding, as well. Although, obviously, that calls for a conclusion."
The State also presented an affidavit by respondent's attorney at the time of the plea, the public defender. In the affidavit she indicated that it was her understanding that Schroeder would not enter into an agreement regarding the Sexually Violent Persons Commitment Act for any defendant. The public defender stated that it was her understanding that Schroeder had agreed not to pursue a Sexually Dangerous Persons Act petition that would be founded on the facts of the charged offense. On his behalf, ...