                                                    NO. 5-09-0402
                   NOTICE

 Decision filed 03/03/11. The text of
                                                       IN THE
 this decision may be changed or

 corrected prior to the filing of a
                                            APPELLATE COURT OF ILLINOIS
 Peti tion   for    Rehearing   or   th e

 disposition of the same.
                                                  FIFTH DISTRICT


WADE LESHER,                                                        )   Appeal from the
                                                                    )   Circuit Court of
             Plaintiff-Appellant,                                   )   Clinton County.
                                                                    )
v.                                                                  )   No. 08-MR-87
                                                                    )
LARRY TRENT, Director, Illinois State Police;                       )
JORGE MONTES, Chairman, Illinois Prisoner                           )
Review Board; and ROGER E. WALKER, JR.,                             )
Director, Illinois Department of Corrections,                       )   Honorable
                                                                    )   William J. Becker,
             Defendants-Appellees.                                  )   Judge, presiding.


             PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
             Justices Spomer and Wexstten concurred in the judgment and opinion.

                                                    OPINION

             The plaintiff, Wade Lesher, appeals an order of the trial court dismissing his

complaint for a writ of mandamus. The complaint sought to compel the defendants to correct

an alleged error in public records showing that the plaintiff remained subject to registration

under the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2008)). The

defendan ts filed a motion to dismiss, arguing that the plaintiff had not alleged facts

demonstrating that they had a clear duty to take the requested action. The trial court agreed

and dismissed the mandamus complaint. On appeal, the plaintiff argues that (1) the court

erred in finding he did not demonstrate a clear right to relief and (2) the trial judge was not

fair and impartial. At issue is whether a 2008 amendment to the Sex Offender Registration

Act applies to the plaintiff. We affirm.

             The Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2008)) requires


                                                         1
people convicted of certain enumerated sex offenses to register with local law enforcement

officials for a period of 10 years after being released from prison. 730 ILCS 150/3, 7 (West

2008). At issue in this case is whether a provision that tolls the 10-year registration period

during periods of reincarceration is applicable.

       The plaintiff became subject to the registration requirement after he was convicted of

aggravated criminal sexual abuse. The defendants are the director of the Illinois State Police,

the chairman of the Illinois Prisoner Review Board, and the director of the Illinois

Department of Corrections.

       The plaintiff was convicted of aggravated criminal sexual abuse in 1991. He was

released from prison in December 1994, and the period of mandatory supervised release on

that charge ended in January 1997. He was subsequently incarcerated six more times on

various unrelated charges. Two periods of incarceration are relevant for purposes of this

appeal. In 2002, the plaintiff was incarcerated for three months and released on November

22. The record does not reveal what charges led to this incarceration. Although apparently

the defendants initially believed that this offense was related to the plaintiff's 1991 sex

offense, they later determined that there was no reason to believe that this period of

incarceration was related to the original offense or any other sex offense. From July 2003

through January 2009, the plaintiff was again incarcerated, this time on charges of robbery

and residential burglary. At some point, shortly before his release, he learned that he was

expected to comply with the requirements of the Sex Offender Registration Act upon his

release.

       In December 2008, the plaintiff filed a pro se complaint for a writ of mandamus. He

requested that the defendants be ordered to "correct the public records" to reflect the fact that

his duty to comply with the Sex Offender Registration Act ended 10 years after his 1994

release from prison on the aggravated-criminal-sexual-abuse charge.


                                               2
       The defendants filed a motion to dismiss, arguing that the plaintiff was not entitled

to the relief requested because he was required to register until November 2012. This date

was based on a release date of November 2002. As previously noted, the defendants

mistakenly believed that the defendant's three-month incarceration in 2002 was related to his

original sex offense. They later acknowledged that this was a mistake. They argued,

however, that a 2008 amendment to the Sex Offender Registration Act was retroactively

applicable. Prior to June 2008, the Sex Offender Registration Act provided that a sex

offender must register for a period of 10 years after a final discharge or release. 730 ILCS

150/7 (West 2006). Another provision required offenders to register in person with law

enforcement agencies, a requirement that would be impossible to comply with while

incarcerated. 730 ILCS 150/3 (West 2006). However, the statute did not expressly address

the effect of periods of reincarceration until the 2008 amendment specifically provided that

those periods would toll the running of the 10-year registration period. 730 ILCS 150/7

(West 2008); Pub. Act 95-513 (eff. June 1, 2008). The defendants pointed out that the Sex

Offender Registration Act and previous amendments to the act have been held to be

retroactively applicable. See People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433, 438

(2000); Miranda v. Madigan, 381 Ill. App. 3d 1105, 1109, 888 N.E.2d 158, 162 (2008).

Thus, they argued that the 2008 amendment was applicable retroactively as well. The court

agreed with this argument and, therefore, dismissed the plaintiff's complaint for mandamus.

The plaintiff filed a motion to reconsider, which the court denied. This appeal followed.

       On appeal, the plaintiff argues that the trial court erred in dismissing his complaint

because he showed that the defendants had a clear duty to act. This is so, he argues, for three

reasons. First, he argues that the defendants did not have the authority to extend the period

during which he was required to register as a sex offender. We note that, in substance, this

is an argument that the provision in the 2008 amendment does not apply to him. Second, the


                                              3
plaintiff argues that the retroactive application of the amendment constitutes an

impermissible ex post facto punishment. Third, he contends that because the defendants

failed to notify him of the 2008 amendment, they cannot now "reap the rewards" of applying

the amendment to him. The plaintiff further contends that we must reverse because the trial

judge was not fair and impartial. We reject all four contentions.

       In order to be entitled to mandamus relief, a plaintiff must show that a public official

has a clear duty to perform some nondiscretionary official act. Rodriguez v. Illinois Prisoner

Review Board, 376 Ill. App. 3d 429, 433-34, 876 N.E.2d 659, 663-64 (2007). In this case,

whether the defendants have a clear duty to act depends on whether the plaintiff is still

required to register under the Sex Offender Registration Act. This, in turn, depends on

whether the 10-year registration period is tolled during periods of incarceration. To answer

that question, we must determine whether the provision contained in the 2008 statutory

amendment applies to the plaintiff. As we noted earlier, the plaintiff frames the question as

whether the defendants have the authority to extend the period during which he is required

to register. We disagree with this characterization because the defendants' authority to

require the plaintiff to register is prescribed by statute. The question is not whether they can

extend the registration requirement beyond the period imposed by statute; clearly, they

cannot do so, and they do not argue that they can. Instead, the question is whether they have

correctly determined that the statute still requires the plaintiff to register.

       In response, the defendants argue that the amendment was not a change in the law at

all. Instead, the defendants contend, the 2008 amendment merely clarified existing law.

They acknowledge that they did not raise this argument to the trial court, but they urge us

to consider it because an appellate court may affirm a trial court's ruling on any basis

appearing in the record. See Rodriguez, 376 Ill. App. 3d at 433, 876 N.E.2d at 663.

Alternatively, they argue that the court correctly determined that the amendment applies


                                                4
retroactively. We find that the amendment merely clarifies existing law.

       Prior to the 2008 amendment, the statute provided, in relevant part, as follows:

       "Any *** person who is required to register *** shall be required to register for a

       period of 10 years after conviction or adjudication if not confined to a penal

       institution, hospital[,] or any other institution or facility, and if confined, for a period

       of 10 years after parole, discharge[,] or release from any such facility. *** Liability

       for registration terminates at the expiration of 10 years from the date of conviction or

       adjudication if not confined to a penal institution, hospital[,] or any other institution

       or facility and if confined, at the expiration of 10 years from the date of parole,

       discharge[,] or release from any such facility ***." 730 ILCS 150/7 (W est 2006).

The 2008 amendment added the following sentence:

       "Reconfinement due to a violation of parole or other circumstances that do not relate

       to the original conviction or adjudication shall toll the running of the balance of the

       10-year period of registration, which shall not commence running until after final

       parole, discharge, or release." 730 ILCS 150/7 (West 2008); Pub. Act 95-513 (eff.

       June 1, 2008).

       Another provision of the Sex Offender Registration Act has always required sex

offenders to register in person with local law enforcement agencies. 730 ILCS 150/3 (West

2006). Obviously, it is not possible for an offender who is incarcerated on an unrelated

charge to comply with this requirement. Thus, prior to the 2008 amendment, the statute was

ambiguous regarding whether it required a sex offender to register for a total of 10 years or

until 10 years had elapsed, regardless of how much of that time the offender is actually out

of prison and able to comply with the registration requirements. For the reasons that follow,

we find that the 2008 amendment clarifies this ambiguity.

       When interpreting a statute, we must read the statute as a whole and consider the


                                                5
purpose for which it was enacted. People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641,

644 (2002). The purpose of the Sex Offender Registration Act is to enhance public safety

by enabling law enforcement agencies to keep track of sex offenders. Malchow, 193 Ill. 2d

at 420, 739 N.E.2d at 438. Construing the pre-2008 version of section 7 in light of this

purpose, we find that it was always intended to require an offender to register for a total of

10 years. If a sex offender remains at large for 10 years without reoffending, it seems

reasonable to conclude that he is unlikely to reoffend. Thus, allowing his duty to register to

expire 10 years after his release fully serves the purpose of enhancing public safety. On the

other hand, if an offender is in prison for much of the 10 years with no opportunity to

reoffend, it is not as clear that he no longer poses a danger to the community. Thus, the

purpose of the registration requirement is only served if such an offender is required to

register as a sex offender for a total of 10 years. We thus conclude that the statute has

always required sex offenders to register for a total of 10 years, and the 2008 amendment

merely clarified this requirement.

       The plaintiff next contends that the retroactive application of the amendment increases

the punishment for his offense in violation of the constitutional prohibitions on ex post facto

punishment. See U.S. Const., art. I, §10; Ill. Const. 1970, art. I, §16. We have already

concluded that the amendment clarified existing law. However, even assuming that the

amendment is seen as a change in the law, we would not find this contention persuasive. An

ex post facto law is a law that increases the punishment for a crime after it has been

committed. Garner v. Jones, 529 U.S. 244, 249 (2000). The key word in this definition is

"punishment." The supreme court has long held that the requirement of registration under

the Sex Offender Registration Act does not constitute punishment. People v. Adams, 144 Ill.

2d 381, 389, 581 N.E.2d 637, 641 (1991). The purpose of the Sex Offender Registration Act

is to enhance public safety, not to punish the offenders required to register. Malchow, 193


                                              6
Ill. 2d at 420, 739 N.E.2d at 438; Adams, 144 Ill. 2d at 388, 581 N.E.2d at 641. Although

registration does impose a burden on those required to register, the burden is not substantial

enough to constitute punishment. Adams, 144 Ill. 2d at 387-88, 581 N.E.2d at 640-41.

Because registration is not punishment, the retroactive application of the Sex Offender

Registration Act and its amendments does not violate principles of ex post facto. Malchow,

193 Ill. 2d at 424, 739 N.E.2d at 440; Rodimel v. Cook County Sheriff's Office, 354 Ill. App.

3d 744, 748, 822 N.E.2d 7, 11 (2004).

       The plaintiff next argues that he could not be required to register due to the

defendants' failure to notify him of the 2008 amendment. We disagree. All people are

presumed to know the law. This basic premise includes a presumption that people know

what the collateral consequences of any criminal actions might be. People v. Terneus, 239

Ill. App. 3d 669, 672, 607 N.E.2d 568, 570 (1992). Even assuming that the 2008 amendment

modified, rather than clarified, existing law, its applicability to the plaintiff did not depend

on notice from the defendants.

       Finally, the plaintiff argues that the trial judge in this matter was not fair and

impartial. Trial judges are presumed to be fair and impartial. A party alleging judicial bias

must overcome this presumption. Eychaner v. Gross, 202 Ill. 2d 228, 280, 779 N.E.2d 1115,

1146 (2002). Adverse rulings alone are almost never sufficient to support a claim of judicial

bias, even if those rulings are alleged to be erroneous. Eychaner, 202 Ill. 2d at 280, 779

N.E.2d at 1146. The party claiming bias must show either a personal bias stemming from

some source other than the litigation (Eychaner, 202 Ill. 2d at 280, 779 N.E.2d at 1146) or

comments made in the course of the proceedings that " 'reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible' " (Eychaner, 202 Ill. 2d at

281, 779 N.E.2d at 1147 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994))). The

plaintiff's allegations in this case do not meet this standard.


                                               7
       The plaintiff alleges that the trial judge told him that his case could move straight to

an appeal. He argues that this statement demonstrates that the court was predisposed to rule

against the plaintiff without hearing all of his arguments. There are no transcripts from the

hearing in this matter, and the plaintiff has not provided us with a bystander's report. See Ill.

S. Ct. R. 323(c) (eff. Dec. 13, 2005) (providing procedures to include a report of proceedings

in the record on appeal where no transcript exists). Thus, we cannot consider the comment.

See People v. Salgado, 263 Ill. App. 3d 238, 245, 635 N.E.2d 1367, 1372 (1994) (explaining

that it is the appellant's burden to provide the reviewing court with a complete record and that

any doubts created by an incomplete record will be resolved against the appellant).

Moreover, even if we could consider the alleged statement, the exact context of the comment

is unclear. It is clear, however, that the court did in fact consider the plaintiff's claims. After

the hearing, the court allowed both parties the opportunity to present written arguments

before the court ruled. In denying the plaintiff's motion to reconsider, the court noted that

the plaintiff presented his arguments "articulately and forcefully," but it found that precedent

controlled the case.

       The plaintiff also contends that the court refused even to rule on the issue he

presented. As previously noted, the plaintiff has framed the issue in this case as whether the

defendants have the authority to extend the period of registration required under the Sex

Offender Registration Act. For the reasons previously discussed, we do not believe that this

is the issue. The record shows that the court carefully considered whether the Sex Offender

Registration Act required the plaintiff to continue to register. Thus, we reject the plaintiff's

contention that the court refused to consider any issue he presented for its consideration. We

find that he has not met his burden of demonstrating judicial bias.

       For the foregoing reasons, we conclude that the trial court correctly determined that

the plaintiff was not entitled to the mandamus relief he sought. We further conclude that the


                                                8
plaintiff did not demonstrate that the court was biased. Thus, we affirm the court's order

granting the defendants' motion to dismiss.



      Affirmed.




                                              9
                                         NO. 5-09-0402

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      WADE LESHER,                                  )   Appeal from the
                                                    )   Circuit Court of
             Plaintiff-Appellant,                   )   Clinton County.
                                                    )
      v.                                            )   No. 08-MR-87
                                                    )
      LARRY TRENT, Director, Illinois State Police; )
      JORGE MONTES, Chairman, Illinois Prisoner     )
      Review Board; and ROGER E. WALKER, JR.,       )
      Director, Illinois Department of Corrections, )   Honorable
                                                    )   William J. Becker,
             Defendants-Appellees.                  )   Judge, presiding.
___________________________________________________________________________________

Opinion Filed:        March 3, 2011
___________________________________________________________________________________

Justices:          Honorable Melissa A. Chapman, P.J.

                 Honorable Stephen L. Spomer, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorney         Wade Lesher, Registration No.: N-51048, Big Muddy Correctional Center, P.O. Box
for              1000, Ina, IL 62846-1000
Appellant
Pro se
___________________________________________________________________________________

Attorneys        Lisa Madigan, Attorney General, State of Illinois, Michael A. Scodro, Solicitor
for              General, Jan E. Hughes, Assistant Attorney General, 100 W . Randolph Street, 12th
Appellees        Floor, Chicago, IL 60601
___________________________________________________________________________________
