                       Illinois Official Reports

                                 Appellate Court



                  People v. Stavenger, 2015 IL App (2d) 140885



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



District & No.    Second District
                  Docket No. 2-14-0885



Filed             July 9, 2015



Decision Under    Appeal from the Circuit Court of Du Page County, No. 03-CF-2341;
Review            the Hon. John J. Kinsella, Judge, presiding.



Judgment          Affirmed.


Counsel on        J. Eric Pittman, of Law Office of J. Eric Pittman, of Naperville, for
Appeal            appellant.

                  Robert B. Berlin, State’s Attorney, of Wheaton (Lisa A. Hoffman and
                  Kristin M. Schwind, Assistant State’s Attorneys, of counsel), for the
                  People.



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

¶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) (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
     (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 (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 (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
     (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

         1
          In doing so, defendant contends, in part, that the trial court improperly dismissed his claims under
     the Act because the petition was untimely. The State, however, points out that untimeliness was a basis
     for dismissing only the section 2-1401 claims; thus, there is no issue regarding the timeliness of the
     claims under the Act.

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       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 (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 the Act continues to apply
       to him.
¶ 11       That contention, however, has been previously rejected. The Third District Appellate Court
       has addressed the issue of whether registration as a sex offender is a restraint on liberty
       sufficient to trigger the Act or whether it is merely a collateral consequence of a defendant’s
       conviction. People v. Downin, 394 Ill. App. 3d 141, 144 (2009). In holding that the registration
       requirement does not implicate the Act, the court concluded that such a requirement imposes
       no restraint on liberty. Downin, 394 Ill. App. 3d at 146. Only those persons whose liberty is
       actually restrained by their convictions are subject to the Act, and their sentences define the
       period of that restraint. Downin, 394 Ill. App. 3d at 146 (citing Martin-Trigona, 111 Ill. 2d at
       299). The registration requirement is not an element of a defendant’s sentence, nor does it
       purport to be part of a defendant’s punishment. Downin, 394 Ill. App. 3d at 146. Once a
       defendant completes his sentence, his conviction is no longer an actual encumbrance, and he
       does not need the Act’s remedial provisions to secure his liberty. Henderson, 2011 IL App
       (1st) 090923, ¶ 11; Downin, 394 Ill. App. 3d at 146; see also People v. Adams, 144 Ill. 2d 381,
       387 (1991) (the duty to register as a sex offender is not punishment). Requiring a sex offender
       to register imposes no actual restraint on his liberty and is merely a collateral consequence of
       his conviction. Downin, 394 Ill. App. 3d at 146; see also People v. Cowart, 2015 IL App (1st)
       131073, ¶ 13; People v. Presley, 2012 IL App (2d) 100617, ¶ 28.
¶ 12       Applying the reasoning of Downin to our case, we reject defendant’s contention that he has
       standing under the Act by virtue of his having to register as a sex offender. Any restraint on
       defendant’s liberty relating to his conviction terminated upon his having completed his
       sentence. See Carrera, 239 Ill. 2d at 253 (detention for purposes of possible deportation is not
       imprisonment within the meaning of the Act, as the defendant had already served his
       sentence). Therefore, he lacks standing to challenge his conviction under the Act.
¶ 13       Defendant endeavors to circumvent the holding of Downin by arguing that he has
       “affirmative restraints” placed on him by his sex-offender status, such as his being prohibited
       from being in certain places. See, e.g., 720 ILCS 5/11-9.3 (West 2010). That argument fails,
       however, as any such restrictions are not part of his sentence or otherwise an actual restraint
       arising from defendant’s conviction. They are, instead, merely collateral consequences of his
       conviction. See Downin, 394 Ill. App. 3d at 146.
¶ 14       Because registering as a sex offender is not part of defendant’s sentence, does not place any
       actual restraint on his liberty, and is merely a collateral consequence of his conviction,
       defendant lacks standing to bring a petition under the Act.




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¶ 15                                     III. CONCLUSION
¶ 16      For the reasons stated, we affirm the judgment of the circuit court of Du Page County
       dismissing defendant’s postconviction petition.

¶ 17      Affirmed.




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