                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Bethel, 2012 IL App (5th) 100330




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROBERT D. BETHEL, Defendant-Appellant.



District & No.             Fifth District
                           Docket No. 5-10-0330


Rule 23 Order filed        July 10, 2012
Motion to publish
granted                    August 31, 2012


Held                       Defendant’s postconviction petitions alleging that he would not have
(Note: This syllabus       entered guilty pleas to aggravated criminal sexual assault if he had known
constitutes no part of     the legislature would later amend the Sexually Violent Persons
the opinion of the court   Commitment Act to toll the term of mandatory supervised release upon
but has been prepared      the filing of a subsequent petition under the Act until the petition is
by the Reporter of         dismissed or defendant is found no longer sexually violent and discharged
Decisions for the          failed to state the gist of a constitutional claim in the absence of any basis
convenience of the         for applying the amendment retroactively.
reader.)


Decision Under             Appeal from the Circuit Court of Clinton County, Nos. 89-CF-240, 91-
Review                     CF-9 cons.; the Hon. Ericka A. Sanders, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Johannah B. Weber, and Robert S. Burke, all of State
Appeal                     Appellate Defender’s Office, of Mt. Vernon, for appellant.

                           John Hudspeth, State’s Attorney, of Carlyle (Patrick Delfino, Stephen E.
                           Norris, Patrick D. Daly, and Neha Sharma, all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE DONOVAN delivered the judgment of the court,
                           with opinion.
                           Justices Chapman and Spomer concurred in the judgment and opinion.




                                             OPINION

¶1           The defendant, Robert D. Bethel, appeals from orders of the circuit court summarily
        dismissing his claims for postconviction 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 release (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

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     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 postconviction petitions in Nos. 89-CF-240
     and 91-CF-9. The postconviction 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 postconviction petitions and determined that the defendant
     failed to state the gist of a constitutional violation. The court summarily dismissed the
     defendant’s postconviction 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 postconviction 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 postconviction petitions, and the defendant stated

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       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 a “Motion for
       Limited Remand for Evidentiary Hearing on the Question of Standing.” The defendant’s
       motion and the supplemental briefs were taken with the case, and we consider them now.
¶7          In its supplemental brief, the State argues that because the defendant’s MSR term is
       tolled under section 15(e) of the Act (725 ILCS 207/15(e) (West 2008)), the defendant is not
       currently “imprisoned,” but rather, committed to the Department of Human Services, and as
       such he does not have standing to file a postconviction petition. We do not agree.
¶8          Section 122-1 of the Post-Conviction Hearing Act states that any person imprisoned in
       the penitentiary may institute a proceeding under the Post-Conviction Hearing Act if the
       person asserts that in the proceedings resulting in his conviction there was a substantial
       denial of his rights under the Constitution of the United States or the State of Illinois. 725
       ILCS 5/122-1(a)(1) (West 2008). A person is imprisoned in the penitentiary within the
       meaning of the Post-Conviction Hearing Act if his liberty is actually constrained because of
       a criminal conviction. People v. Martin-Trigona, 111 Ill. 2d 295, 300-01, 489 N.E.2d 1356,
       1358-59 (1986). Relief under the Post-Conviction Hearing Act is available to those persons
       who are actually incarcerated and to those who are subject to being confined, such as those
       on probation, parole, MSR, or appeal bond. People v. Pack, 224 Ill. 2d 144, 150-52, 862
       N.E.2d 938, 942-43 (2007); Martin-Trigona, 111 Ill. 2d at 299-301, 489 N.E.2d at 1358-59
       (a person is imprisoned if his liberty is deemed to be on a string that the State may pull
       whenever it pleases). In contrast, persons who have served their prison term and term of
       parole or MSR and who merely wish to purge their criminal records of past convictions are
       not “imprisoned” persons entitled to relief under the Post-Conviction Hearing Act. People
       v. West, 145 Ill. 2d 517, 584 N.E.2d 124 (1991); Martin-Trigona, 111 Ill. 2d at 299, 489
       N.E.2d at 1358.
¶9          In this case, the record shows that as of the date that the defendant filed his
       postconviction petition, he had not completed the three-year term of MSR and remained
       subject to potential revocation of MSR. The records of the Illinois Department of Corrections
       identify the defendant’s status as “parole” and show that the defendant’s sentences in Nos.
       89-CF-240 and 91-CF-9 have not been discharged. Under these facts, the defendant clearly
       fits within the class of persons whose liberty is constrained by virtue of his convictions, and
       he has standing to seek relief under the Post-Conviction Hearing Act. Pack, 224 Ill. 2d at
       150-52, 862 N.E.2d at 942-43; Martin-Trigona, 111 Ill. 2d at 299-301, 489 N.E.2d at 1358-
       59. Whether the running of the defendant’s term of MSR is tolled is inconsequential.
       Accordingly, we find no reason to remand this case for an evidentiary hearing on the issue
       of standing. The defendant’s motion for a limited remand is denied.
¶ 10        At the first stage of proceedings on a postconviction petition, the trial court is required
       to independently examine the petition to determine whether the allegations present the gist
       of a substantial constitutional claim. People v. Brown, 236 Ill. 2d 175, 184, 923 N.E.2d 748,
       754 (2010); People v. Coleman, 183 Ill. 2d 366, 380 n.2, 701 N.E.2d 1063, 1071 n.2 (1998).

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       When making this determination, all well-pleaded facts that are not rebutted by the record
       are taken as true, and the allegations made in the petition are liberally construed in favor of
       the defendant. Brown, 236 Ill. 2d at 184, 923 N.E.2d at 754. A court may summarily dismiss
       the petition if it finds that the allegations are frivolous or patently without merit. 725 ILCS
       5/122-2.1(a)(2) (West 2008). The first-stage dismissal of a postconviction petition is
       reviewed de novo. Brown, 236 Ill. 2d at 184, 923 N.E.2d at 754.
¶ 11        In his first point, the defendant claims that the circuit court erred in summarily dismissing
       his postconviction claims. 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 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. An issue central to the
       defendant’s claims is whether subsection 15(e), which was added as part of the 2007
       amendments to the Act, applies retroactively to the defendant’s pleas and sentences in Nos.
       89-CF-240 and 91-CF-9.
¶ 12        The Sexually Violent Persons Commitment Act went into effect on January 1, 1998. 725
       ILCS 207/99 (West 2008). Eight years later, a bill proposing amendments and additions to
       the Act (Senate Bill 2873) was filed with the Secretary of the Illinois Senate. See 94th Ill.
       Gen. Assem., Senate Bill 2873, 2006 Sess. Senate Bill 2873 was enacted on July 3, 2006,
       and it became effective on January 1, 2007. See Pub. Act 94-992 (eff. Jan. 1, 2007)
       (amending 725 ILCS 207/15 (West 2004)). The amendatory legislation of 2007 revised the
       Act, in part, by adding subsection 15(e). See Pub. Act 94-992 (eff. Jan. 1, 2007).
¶ 13        Subsection 15(e) states as follows:
                “(e) The filing of a petition under this Act shall toll the running of the term of parole
            or mandatory supervised release until:
                     (1) dismissal of the petition filed under this Act;
                     (2) a finding by a judge or jury that the respondent is not a sexually violent
                person; or
                     (3) the sexually violent person is discharged under Section 65 of this Act, unless
                the person has successfully completed a period of conditional release pursuant to
                Section 60 of this Act.” 725 ILCS 207/15(e) (West 2008).
¶ 14        The Illinois Supreme Court adopted the retroactivity analysis announced by the United
       States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244 (1994).
       Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39, 749 N.E.2d 964, 972
       (2001). In considering the retroactivity of a statutory amendment under Landgraf, a court will
       initially determine whether the legislature has expressly stated the temporal reach of the
       amendment. Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 405, 917 N.E.2d 475, 482 (2009).
       If the legislature has done so, then absent a constitutional prohibition, the expression of the
       legislature must be given effect. Diocese of Dallas, 234 Ill. 2d at 405, 917 N.E.2d at 482.
       When the legislature has not clearly stated the temporal reach of the statutory amendment,
       a court will next determine whether applying the amendment would have a retroactive

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       impact. Diocese of Dallas, 234 Ill. 2d at 405, 917 N.E.2d at 482. In making this
       determination, a court will consider whether the retroactive application of the statutory
       amendment impairs rights a party possessed while acting, increases a party’s liability for past
       conduct, or imposes new duties with respect to transactions already completed. Diocese of
       Dallas, 234 Ill. 2d at 405, 917 N.E.2d at 482. Section 4 of the Statute on Statutes (5 ILCS
       70/4 (West 1998)) provides a clear legislative directive as to the temporal reach of the
       statutory amendments when none is expressly stated. Diocese of Dallas, 234 Ill. 2d at 406,
       917 N.E.2d at 483. Under section 4, statutory amendments that are procedural may be
       applied retroactively, while amendments that are substantive may not. 5 ILCS 70/4 (West
       1998); Diocese of Dallas, 234 Ill. 2d at 406, 917 N.E.2d at 483. If the court finds that
       retroactive application has inequitable consequences, the court will presume that the statute
       does not govern the case. Diocese of Dallas, 234 Ill. 2d at 405, 917 N.E.2d at 482.
¶ 15        Subsection 15(e) does not expressly state that it applies retroactively, and there is no
       legislative directive as to the temporal reach of this provision in the 2007 amendments to the
       Act. Therefore we must determine whether applying subsection 15(e) would have a
       retroactive impact in the defendant’s cases. And so we consider whether subsection 15(e) is
       a substantive or procedural amendment to the Act.
¶ 16        The construction of a statute is a question of law that is reviewed de novo. In re
       Detention of Powell, 217 Ill. 2d 123, 135, 839 N.E.2d 1008, 1014 (2005). The primary goal
       of statutory construction is to ascertain and give effect to the legislative intent. Powell, 217
       Ill. 2d at 135, 839 N.E.2d at 1015. The most reliable indication of legislative intent is the
       plain and ordinary language of the statute. Powell, 217 Ill. 2d at 135, 839 N.E.2d at 1015.
¶ 17        The word “toll” is not defined in the amendatory legislation of 2007 or anywhere else in
       the Act. Black’s Law Dictionary defines the verb “toll” to mean “to stop the running of; to
       abate.” Black’s Law Dictionary 1495 (7th ed. 1999). Under this definition, the filing of a
       petition under the Act suspends the running of the term of parole or MSR until the petition
       is dismissed or the defendant is discharged. During brief discussions of Senate Bill 2873, two
       of the sponsoring legislators, Senator Harmon and Representative Gordon, noted that
       subsection 15(e) tolled the running of the term of parole or MSR of a sexual offender while
       he or she is committed as a sexually violent person so that when the offender is found to be
       no longer a sexually violent person, he or she, upon release from the institution, will be
       required to serve a term of parole, thus ensuring intensive supervision upon release. See 94th
       Ill. Gen. Assem., Senate Proceedings, Feb. 22, 2006, at 47 (statements of Senator Harmon);
       94th Ill. Gen. Assem., House Proceedings, Mar. 30, 2006, at 56-57 (statements of
       Representative Gordon). The tolling provision was enacted to ensure that a defendant is
       subject to intensive supervision upon being released from the institution.
¶ 18        Subsection 15(e) plainly states that upon filing a petition under the Act, the running of
       the term of MSR is suspended. There is no language in subsection 15(e) or elsewhere in
       amendatory legislation that excuses a defendant from complying with the terms and
       conditions of MSR during the period in which the running of the MSR term is tolled. If
       subsection 15(e) applies retroactively in the defendant’s cases, it appears that the defendant
       would remain on MSR and subject to its conditions and potential revocation proceedings
       during the period that he is committed to a secure treatment facility and until discharge, at

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       which time he would be required to serve his term of MSR. Application of the tolling
       provision would have a definite, immediate, and substantive effect on the length of the
       defendant’s MSR term. People v. Williams, 188 Ill. 2d 365, 372, 721 N.E.2d 539, 544
       (1999). Where subsection 15(e) contains no express provision regarding its temporal reach
       and where subsection 15(e) concerns substantive rather than procedural matters, we will
       presume that the tolling provision does not apply retroactively to the defendant’s pleas and
       sentences in Nos. 89-CF-240 and 91-CF-9.
¶ 19       The premise underlying the defendant’s postconviction claims is that the tolling provision
       in subsection 15(e) would be retroactively applied. Absent that erroneous foundation, the
       allegations in the defendant’s petition are not sustainable. After reviewing the allegations in
       the defendant’s postconviction claims, we conclude that the defendant failed to state the gist
       of a constitutional claim, and we affirm the summary dismissal of the defendant’s
       postconviction petitions.
¶ 20       If we assume for the sake of argument that subsection 15(e) applies prospectively to the
       defendant, then we would necessarily presume that the legislature, in enacting the
       amendment, did not intend for a committed defendant to be bound to the terms and
       conditions of MSR and subject to revocation of MSR during the period of commitment. Such
       a construction would give effect to the stated legislative intent to ensure that a defendant be
       subject to intensive supervision upon his discharge from commitment without increasing a
       defendant’s punishment.
¶ 21       Accordingly, the defendant’s motion for a limited remand to hold an evidentiary hearing
       on the issue of standing is denied, and the judgment of the circuit court of Clinton County
       is affirmed.

¶ 22      Affirmed.




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