Appeal from the Circuit Court of Clinton County. Nos. 89-CF-240 & 91-CF-9 Honorable Ericka A. Sanders, Judge, presiding.
The opinion of the court was delivered by: Presiding Justice Donovan
Motion to publish granted
PRESIDING JUSTICE DONOVAN delivered the judgment of the court, with opinion.
Justices Chapman and Spomer concurred in the judgment and opinion.
¶ 1 The defendant, Robert D. Bethel, appeals from orders of the circuit court summarily dismissing his claims for post-conviction relief. The defendant contends that he stated the gist of a constitutional claim in that he did not knowingly and voluntarily agree to an open-ended, possibly lifelong term of mandatory supervised relief (MSR) when he entered guilty pleas in Nos. 89-CF-240 and 91-CF-9, and that if he had known that the legislature was going to enact a statutory amendment that would toll the running of the term of his MSR during the period he was committed as a sexually violent person, he would not have entered guilty pleas in those cases. The defendant also contends that the application of the amendment tolling the running of his term of MSR is a violation of the constitutional prohibition against ex post facto punishment. We affirm.
¶ 2 In November 1989, the defendant was charged in the circuit court of Clinton County (cause No. 89-CF-240) with two counts of aggravated criminal sexual assault, a Class X felony. The information alleged that the assault occurred on August 20, 1989. On November 20, 1990, pursuant to a negotiated plea agreement, the defendant entered a plea of guilty to one count of aggravated criminal sexual assault and the State dismissed the other count. Before accepting the defendant's guilty plea, the trial court advised the defendant that aggravated criminal sexual assault carried a nonextended range of punishment of 6 years to 30 years in prison and a 3-year term of MSR. On April 29, 1991, the trial court sentenced the defendant to a prison term of 25 years and a 3-year term of MSR. The defendant did not file a motion to withdraw his guilty plea or reduce his sentence. He did not appeal.
¶ 3 On January 14, 1991, the defendant was charged in Clinton County circuit court (cause No. 91-CF-9) with aggravated criminal sexual assault. The information alleged that the defendant sexually assaulted a prisoner in the Clinton County jail on October 4, 1990, while awaiting transfer to the penitentiary to begin serving his time in No. 89-CF-240. On October 25, 1991, the defendant entered a negotiated plea of guilty to aggravated criminal sexual assault. He was sentenced to a prison term of 15 years and a 3-year term of MSR. The sentence was to run consecutive to the sentence in No. 89-CF-240. The defendant did not file a motion to withdraw his guilty plea or reduce his sentence. He did not appeal.
¶ 4 On September 4, 2009, six days before the defendant was scheduled to complete his prison sentences and begin his three-year term of MSR, the State filed a civil petition in the circuit court of Clinton County (cause No. 09-MR-85) pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2008)). While the State's petition was pending, the defendant filed pro se post-conviction petitions in Nos. 89-CF-240 and 91-CF-9. The post-conviction petitions were filed April 1, 2010. In each petition, the defendant asserted that he entered guilty pleas to crimes that occurred in 1989 and 1990; that an amendment to the Sexually Violent Persons Commitment Act, which became effective in January 1998, added a subsection providing that the running of a defendant's term of MSR would be tolled upon the filing of a petition under the Act and until such time as the petition is dismissed or the defendant is found no longer sexually violent and discharged by the court; that the tolling provision impermissibly and substantially increases the sentence for which he originally bargained in that it increases a determinate three-year MSR term to an open-ended and indefinite term in violation of his constitutional due process rights; and that if he had been made aware that the legislature was going to enact a provision tolling the running of his MSR term, he would not have entered guilty pleas in Nos. 89-CF-240 and 91-CF-9. The defendant asked the court to vacate the guilty plea and his conviction in each case.
¶ 5 In a written order entered June 28, 2010, the circuit court stated that it had examined the allegations in the defendant's post-conviction petitions and determined that the defendant failed to state the gist of a constitutional violation. The court summarily dismissed the defendant's post-conviction petitions. The order states in part:
"While a petition can only be filed if the offender has been convicted of certain crimes, the filing of said petition is a collateral consequence of his conviction, not a direct consequence. Direct consequences are those that are 'definite, immediate, and largely automatic in their effect upon a defendant's punishment.' [Citation.] The failure to inform a defendant of a consequence of his plea is material, and can be the basis to reverse a conviction, if the consequence flows directly from the conviction. [Citation.] Collateral consequences, however, concern issues 'beyond the court's control,['] such as the length of time served on a sentence that has been imposed. [Citations.] Setting aside the fact that the Act became law after the Petitioner was sentenced--thereby making it impossible for him to be informed of the possibility of the filing of the petition and the tolling of his MSR--the tolling, at best, is a collateral consequence of his pleas and convictions. Even if the Act had been in existence at the time of the Petitioner's pleas, he had no constitutionally protected right to be informed that the filing of a petition pursuant to the Act could toll his MSR. There being no violation of Petitioner's right to due process, this Court finds that Petitioner has failed to state the gist of a constitutional violation and his Petition is denied."
¶ 6 The defendant appealed the summary dismissal of his post-conviction petitions. During oral arguments before this court, the State requested leave to file a supplemental brief on an issue of the defendant's standing to file the post-conviction petitions, and the defendant stated that he had no objection. We directed the State to file a written motion. The State filed its motion. Having received no objection from the defendant, we granted the parties leave to file supplemental briefs on the issue of standing. Shortly after the State filed its supplemental brief, the defendant filed a motion to strike it. We denied that motion. The defendant filed a supplemental brief on standing. Shortly thereafter, the defendant filed ...