                                        2013 IL App (3d) 120563

                                   Opinion filed October 25, 2013


                                                IN THE

                                APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                              A.D., 2013

In re COMMITMENT OF JOSEPH                              )       Appeal from the Circuit Court
DeSILVESTRO                                             )       of the 13th Judicial Circuit,
                                                        )       La Salle County, Illinois
(The People of the State of Illinois,                   )
                                                        )
        Petitioner-Appellee,                            )       Appeal No. 3-12-0563
                                                        )       Circuit No. 10-MR-7
        v.                                              )
                                                        )
Joseph DeSilvestro,                                     )
                                                        )       Honorable Daniel J. Bute,
        Respondent-Appellant).                          )       Judge, Presiding.


        JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
        Justice O'Brien concurred in the judgment and opinion.
        Justice Carter specially concurred, with opinion.

                                              OPINION

¶1      The State of Illinois filed a petition seeking to commit respondent, Joseph DeSilvestro,

pursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 (West

2010)). Respondent eventually filed a "motion to dismiss pursuant to 2-1401(f)" seeking

dismissal of the entire commitment proceeding. Following a hearing and argument, the circuit

court of La Salle County denied respondent's motion. Respondent appeals, claiming he was not

in lawful custody at the time the State filed its petition and, therefore, the trial court erred in
denying his motion to dismiss.

¶2                                      BACKGROUND

¶3     In 2004, the State charged respondent in case No. 2004-CF-278 with numerous counts of

aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)), claiming he

knowingly fondled the penises of four different minors between August of 2001 and January of

2004 for the purpose of his sexual arousal. Respondent entered into a fully negotiated plea in

which he pled guilty to four separate counts of aggravated criminal sexual abuse in exchange for

four concurrent sentences of seven years' incarceration.

¶4     The written judgment of sentence did not identify a specific term of mandatory

supervised release (MSR). Prior to discharging his full seven years of incarceration, respondent

apparently became eligible for early release due to good-time credits. September 7, 2007, would

have been respondent's release date; however, the host site where he proposed to live upon

release was "too close to a school."

¶5     Respondent eventually arranged for suitable housing in 2009, which led to his release on

MSR in April of 2009. In December of 2009, a warrant issued for respondent's arrest due to

violations of the terms of his MSR. The alleged violations included possessing the following

items or materials: a computer, children's video home system (VHS) tapes, children's clothing

items, children's books, stuffed animals, and dolls. The petition to revoke respondent's MSR

further alleged that respondent worked diligently upon release to return to a position within the

Knights of the Altar, which provides instruction to altar boys in the Roman Catholic Church.

¶6      Respondent notes that many of the items identified in the petition to revoke his MSR

were "a gift for his grandchildren *** all of whom would like him to live with them in his final


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years." Respondent suggests that the allegations in the petition to revoke his MSR were a sham

and "at best pretextual interpretations by parole officers." Respondent, however, provides no

citation in the record to direct us to facts supporting his claims regarding the petition to revoke

his MSR. Other than the petition to revoke, itself, and the sentencing order, respondent has

chosen not to include many documents from his criminal case in the record on appeal before us.

¶7     With respondent back in custody of the Illinois Department of Corrections (DOC), on

January 20, 2010, the State filed a petition to detain respondent under the Act. The petition

alleged that respondent suffered from the mental disorders of pedophilia, paraphilia, and

narcissistic personality disorder, making him dangerous to others. The petition also alleged that

these mental disorders made it substantially probable that respondent would engage in acts of

sexual violence.

¶8     On January 21, 2010, the matter proceeded to a "probable cause hearing." The docket

sheet from the trial court notes that respondent appeared at the probable cause hearing with

counsel and that "respondent agrees to stipulate to the charges." The docket sheet entry

continued, noting the "court questions respondent and finds that [he] knowingly and willing

stipulates to the charges. Probable cause is found. Respondent is to be detained by the

Department of Human Services."

¶9     Nearly a year later, on January 14, 2011, respondent filed a motion to dismiss, pursuant to

section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2010)),

claiming the trial court lacked personal jurisdiction over him. Respondent concluded that the

State failed to properly serve him with process of the commitment proceedings given the fact that

an employee of the Attorney General's office served him with process. This service, respondent


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posited, was not in accordance with language found in section 2-202(a) of the Code, which states

that a party be served by someone "not a party to the action." 735 ILCS 5/2-202(a) (West 2010).

¶ 10   Approximately four months later, on April 6, 2011, with his initial motion to dismiss still

pending, respondent filed a subsequent motion to dismiss, claiming the trial court lacked subject

matter jurisdiction. Respondent asserted that he completed his sentences of incarceration on

September 7, 2007, and should have commenced his MSR on that date. This motion

acknowledges that respondent could not find suitable housing, leading him to begin his term of

MSR while remaining in custody.

¶ 11   Respondent's motion continues by alleging that the DOC erroneously applied a four-year

term of MSR, instead of an allegedly agreed-upon two-year term. This, respondent claimed,

caused his incarceration to be improperly prolonged. The section 2-619 motion to dismiss

continued, noting that section 15 of the Act requires a petition seeking commitment to be filed

"before the release or discharge of the person or within 30 days of placement onto parole or

mandatory supervised release." 725 ILCS 207/15(a) (West 2010). Respondent concluded that

the court did not have subject matter jurisdiction, as he claimed he should have been released on

September 9, 2008, and the State did not file its petition until January 20, 2010.

¶ 12   The trial court denied both motions on July 20, 2011. Respondent filed a motion to

reconsider denial of his motion to dismiss based upon subject matter jurisdiction. The trial court

denied the motion to reconsider on December 22, 2011.

¶ 13   On March 15, 2012, the respondent filed a "motion to dismiss pursuant to section 2-

1401(f)" of the Code. 735 ILCS 5/2-1401 (West 2010). Respondent's section 2-1401 motion to

dismiss reiterates many of the allegations contained within his section 2-619 motion to dismiss


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for lack of subject matter jurisdiction. The trial court denied the section 2-1401 motion on June

21, 2012. Respondent filed a notice of appeal on July 5, 2012.

¶ 14                                          ANALYSIS

¶ 15      The issues raised on appeal relate to the denial of respondent's section 2-1401 motion.

We review the denial of a section 2-1401 petition de novo. People v. Vincent, 226 Ill. 2d 1, 18

(2007).

¶ 16      Respondent argues that the State illegally prolonged his incarceration prior to filing the

petition seeking to commit him under the Act. Respondent claims that the sexually violent

person (SVP) petition must be dismissed. This is so, respondent posits, because had he received

the benefit of his plea agreement, he would have been beyond the reach of an SVP petition on

January 20, 2010.

¶ 17      The State notes, in its response, that section 2-1401 is not a proper procedural mechanism

to attack or seek the dismissal of a commitment petition. Moreover, the State notes that nowhere

in respondent's opening brief does respondent identify a specific order or judgment from which

he seeks relief. Respondent, instead, argues for dismissal of the entire proceedings. The State

notes that respondent's arguments, rather than focusing on a specific order from the commitment

proceedings, center, at best, on the sentencing order from the criminal case No. 2004-CF-278.

¶ 18      Section 2-1401 of the Code states, in pertinent part:

                 "Relief from judgments.

                         (a) Relief from final orders and judgments, after 30 days from the

                 entry thereof, may be had upon petition as provided in this Section. ***

                         (b) The petition must be filed in the same proceeding in which the


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                order or judgment was entered but is not a continuation thereof. ***

                                               ***

                        (f) Nothing contained in this Section affects any existing right to

                relief from a void order or judgment, or to employ any existing method to

                procure that relief." 735 ILCS 5/2-1401 (West 2010).

¶ 19     As the plain language above indicates, section 2-1401 provides relief from final orders

and judgments. 735 ILCS 5/2-1401 (West 2010). We can find no authority to support

respondent's contention that section 2-1401 provides a procedural mechanism to dismiss a

petition or a complaint.

¶ 20     Moreover, our supreme court has been clear that "[s]ection 2-1401 requires that the

petition be filed in the same proceeding in which the order or judgment was entered, but it is not

a continuation of the original action." Vincent, 226 Ill. 2d at 7; 735 ILCS 5/2-1401(b) (West

2010).

¶ 21     Respondent's section 2-1401 motion claims that he was improperly detained by the DOC

and that the State filed its petition to commit him under the Act during this improper detention

and concludes that the "SVP proceeding must be dismissed." Respondent's motion identifies the

"sentencing order *** entered on 2/10/05" in case No. 2004-CF-278 and notes that the order

"makes no mention of a MSR sentence." In his motion, respondent quotes the transcript from his

sentencing hearing in which the trial court mentioned a two-year term of MSR, which is

applicable when one has a single conviction for aggravated criminal sexual abuse. The motion

continues by alleging that the DOC lacked the authority to impose an MSR term beyond that two

years and, therefore, the "extension of the MSR from two to four years is thus void." Even if we


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agreed with this misstatement of both fact and law, we must first have jurisdiction to address the

argument.

¶ 22   No final orders or judgments have been rendered in the case at bar. A detention order is

not a final order. In re Detention of Lieberman, 356 Ill. App. 3d 373, 377 (2005).1 There has

been no trial. Respondent's motion seeks to attack the sentencing order in case No. 2004-CF-

278. Respondent cannot use a section 2-1401 petition filed in this case to seek relief from a final

order in another case. See 735 ILCS 5/2-1401(b) (West 2010); Vincent, 226 Ill. 2d at 7. Also,

the DOC's actions in applying the statutorily mandated MSR is not a final order or judgment. To

the extent respondent is attacking the order denying his motion to dismiss, that order is not a final

order or judgment.

¶ 23   An order denying a motion to dismiss is not a final order or judgment. We find that

labeling the motion to dismiss as a section 2-1401 motion did not convert the motion to a section

2-1401 petition. Likewise, a pleading seeking relief from anything other than a final order and

judgment is simply not a section 2-1401 petition, notwithstanding its title. One cannot convert a

minivan into a D11 by simply painting it yellow and writing "CAT" on the doors. Our appellate

jurisdiction in this matter depends upon the denial of a section 2-1401 petition. There was no

section 2-1401 petition filed below. We are left without jurisdiction.

¶ 24   The special concurrence is based upon the incorrect assumption that respondent's "section


       1
           We agree with Lieberman's analysis with respect to whether a detention order is a final

order subject to attack under a section 2-1401 petition. However, we believe that once the

appellate court made that determination, the judgment should have been "appeal dismissed" as

opposed to "affirmed."

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2-1401 motion to dismiss" sought review of only the detention order. As explained above,

respondent sought dismissal of the entire SVP proceedings, not simply reversal of the detention

order.

¶ 25                                       CONCLUSION

¶ 26     For the foregoing reasons, we dismiss this appeal for want of jurisdiction.

¶ 27     Appeal dismissed.

¶ 28     JUSTICE CARTER, specially concurring.

¶ 29     I agree with the majority's holding that we lack jurisdiction to consider this appeal.

However, I respectfully do not join in the majority's analysis.

¶ 30     Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010) provides that an appeal can be

taken from "[a] judgment or order granting or denying any of the relief prayed in a petition under

section 2-1401 of the Code of Civil Procedure." However, in EMC Mortgage Corp. v. Kemp,

2012 IL 113419, ¶ 13, our supreme court held that the denial of an improperly filed section 2-

1401 petition was not appealable under Rule 304(b). In that case, the section 2-1401 petition

sought a vacatur of a foreclosure judgment but was filed before the judicial sale even occurred.

EMC Mortgage Corp., 2012 IL 113419, ¶ 4. As the supreme court noted, a foreclosure judgment

"is not final and appealable until the trial court enters an order approving the sale and directing

the distribution." EMC Mortgage Corp., 2012 IL 113419, ¶ 11. Thus, because the section 2-

1401 petition was premature, the supreme court held that Rule 304(b) did not confer jurisdiction.

EMC Mortgage Corp., 2012 IL 113419, ¶ 13.

¶ 31     In this case, the respondent challenged the underlying process leading to the detention

order in his section 2-1401 petition. The respondent challenged the circuit court's jurisdiction in


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his petition, alleging that the State did not have authority to file the sexually violent persons

petition because he was not lawfully in custody. The respondent argued in the trial court that

pursuant to section 2-1401(f), his petition seeks relief from the proceeding that was based on a

void order imposing the mandatory supervised release sentence, and that section 2-1401(f)

provides a separate and distinct remedy from section 2-1401(a). In his reply brief, the respondent

claims he seeks section 2-1401(f) relief from a specific void order; namely, his detention order.

Such an order is not a final order. In re Detention of Lieberman, 356 Ill. App. 3d 373, 377

(2005). Thus, section 2-1401 relief was not available to the petitioner at the time he filed his

petition. Lieberman, 356 Ill. App. 3d at 376. Thus, pursuant to EMC Mortgage Corp., this

appeal must be dismissed.

¶ 32   For the foregoing reasons, I respectfully do not join in the majority's analysis but agree

that we lack jurisdiction to consider this appeal.




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