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People v. Stavenger

Court of Appeals of Illinois, Second District

July 9, 2015

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ROY STAVENGER, Defendant-Appellant

Appeal from the Circuit Court of Du Page County. No. 03-CF-2341. Honorable John J. Kinsella, Judge, Presiding.

Affirmed.

SCHOSTOK, PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

SCHOSTOK, PRESIDING JUSTICE

[¶1] Defendant, Roy Stavenger, appeals from the second-stage dismissal of his postconviction petition, contending that he has standing to bring the petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) because, although he has completed his sentence, he is required to register as a sex offender. Because the registration requirement does not impose a restraint on his liberty, defendant lacks standing to bring the petition. Thus, we affirm.

[¶2] I. BACKGROUND

[¶3] Defendant pleaded guilty in the circuit court of Du Page County to one count of possession of child pornography (720 ILCS 5/11-20.1(a)(6)(i) (West 2002)) and was sentenced to 24 months' probation and 180 days in jail. On July 28, 2010, defendant was discharged from probation.

[¶4] On February 2, 2011, defendant filed a petition seeking relief pursuant to the Act and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). He amended his petition in June 2012.

[¶5] The State moved to dismiss the amended petition, asserting that defendant lacked standing under the Act and that the section 2-1401 claims were untimely. The trial court dismissed the amended petition as to both the claims under the Act and those under section 2-1401, and defendant filed a timely notice of appeal.

[¶6] II. ANALYSIS

[¶7] On appeal, defendant challenges only the dismissal of his claims under the Act.[1] He posits that because he must register as a sex offender he has standing to bring a petition under the Act. We review the second-stage dismissal de novo. See People v. Carrera, 239 Ill.2d 241, 245, 940 N.E.2d 1111, 346 Ill.Dec. 507 (2010).

[¶8] Generally, to initiate an action under the Act, a person must be " imprisoned in the penitentiary." 725 ILCS 5/122-1(a) (West 2010). A defendant on probation satisfies that requirement. People v. Martin-Trigona, 111 Ill.2d 295, 299-300, 489 N.E.2d 1356, 95 Ill.Dec. 492 (1986). However, a remedy under the Act is available only to persons who are actually deprived of their liberty and not to those who have completely served their sentences and wish merely to purge their criminal records of past convictions. People v. Henderson, 2011 IL App. (1st) 090923, ¶ 10, 961 N.E.2d 407, 356 Ill.Dec. 311 (citing Carrera, 239 Ill.2d at 257). Therefore, a defendant's liberty is the paramount interest under the Act. Henderson, 2011 IL App. (1st) 090923, ¶ 10 (citing People v. Pack, 224 Ill.2d 144, 150, 862 N.E.2d 938, 308 Ill.Dec. 735 (2007)).

[¶9] A defendant's liberty is restrained if he is always on a string that the State may pull when it pleases. Henderson, 2011 IL App. (1st) 090923, ¶ 11. Thus, a defendant retains standing under the Act so long as he is challenging a conviction from which he continues to serve some form of sentence, such that his liberty would be directly affected by invalidating his conviction. Henderson, 2011 IL App. (1st) 090923, ¶ 11. When a defendant's conviction is no longer an actual encumbrance, he no longer needs assistance under the Act to secure his liberty, and, therefore, the Act is no longer available to him. Henderson, 2011 IL App. (1st) 090923, ¶ 11. Collateral consequences resulting from a conviction are not actual restraints on liberty sufficient to implicate the Act. People v. Rajagopal, 381 Ill.App.3d 326, 331, 885 N.E.2d 1152, 319 Ill.Dec. 472 (2008).

[¶10] In this case, defendant has unquestionably completed his sentence. He relies solely on the requirement that he register as a sex offender for his contention that ...


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