                                               FIFTH DIVISION
                                               December 3, 2010




No. 1-09-1006

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
           Plaintiff-Appellee,            )    Cook County.
                                          )
     v.                                   )
                                          )
STEVEN STEWARD,                           )
                                          )   Honorable
           Defendant-Appellant.           )   Dennis Porter,
                                          )   Judge Presiding.
                                          )

     JUSTICE HOWSE delivered the opinion of the court:

     Defendant, Steven Steward, filed a petition for post-

conviction relief on February 9, 2009, asserting his actual

innocence.   The trial court summarily dismissed defendant’s

petition, finding that it was frivolous and patently without

merit.    In doing so, the court determined that although defendant

was detained under the Sexually Violent Persons Commitment Act

(725 ILCS 207/1 (West 2008)), he was no longer imprisoned within

the meaning of the Post-Conviction Hearing Act (725 ILCS 5/122-1

et seq. (West 2008)) and therefore he lacked standing to seek

relief.   For the reasons set forth below, we affirm the judgment

of the trial court but vacate certain fees.

                             BACKGROUND

     Defendant Steven Steward was convicted by a jury on May 16,

1996, of attempted aggravated criminal sexual assault (720 ILCS
1-09-1006

5/8-4, 12-14(a)(4) (West 1994)) and aggravated battery (720 ILCS

5/12-4(a) (West 1994)) and sentenced to 25 years plus 5 years,

concurrently, in the Illinois Department of Corrections.     Steward

filed a direct appeal of his conviction claiming: (1) ineffective

assistance of counsel at trial; (2) ineffective assistance of

counsel during his posttrial motions, and (3) the trial court

erred in granting the State’s pretrial motion in limine to

introduce evidence of his prior felony.    We affirmed the

defendant’s conviction on March 31, 1998.     People v. Steward, 295

Ill. App. 3d 735, 693 N.E.2d 436 (1998).    Defendant’s petition

for leave to appeal to the Illinois Supreme Court was denied on

October 6, 1998.    People v. Steward, 179 Ill. 2d 611, 705 N.E.2d

447 (1998).   Defendant subsequently filed a pro se writ of habeas

corpus in the federal district court, which was denied.

                   Steward’s Arrest and Conviction

     The following facts are derived from the trial court’s order

on defendant’s petition for postconviction relief and a posttrial

deposition of witness Patrice B. (Patrice).

     On December 2, 1993, at approximately 4 a.m., the victim,

Patrice, was walking in her neighborhood when she came across her

friend, Fancy.   Patrice stopped to talk when Steward approached

and asked Patrice if he could talk to her.    Patrice replied in

the negative, at which point Steward grabbed her by the back of


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the neck and forced her into an apartment in a nearby building.

Steward led Patrice into the bedroom and undressed.

                 “A *** violent game of cat and mouse

            ensued, Patrice retreating and [Steward]

            pursuing, until, ultimately, [Steward] struck

            Patrice in the head and legs with a hammer

            and she subsequently agreed to perform oral

            sex on him.   Patrice knelt before [Steward]

            as he stood naked, overlooking her.    She then

            proceeded to grab his groin, and with great

            force, wrench his scrotum downward.”

     Steward then dropped the hammer he was holding and Patrice

was able to flee the apartment to the street.      Fancy saw her and

called an ambulance.      At the hospital, Patrice was treated for a

black eye, multiple cuts, puncture wounds, and bite marks on her

hand and arm.    While at the hospital, Patrice identified herself

as “Lisa,” admitted using heroin that night, and admitted she

used various other names and birth dates in previous interactions

with law enforcement.     She also identified Steward’s photograph

from a group of five photographs shown to her.      Steward’s

photograph had been taken at Cabrini Hospital where he was being

treated for injuries to his scrotum, which had been lacerated

severely enough to separate it into a front half and a back half.



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Steward was arrested and convicted of aggravated criminal sexual

assault (720 ILCS 5/8-4, 12-14(a)(4) (West 1994)) and aggravated

battery (720 ILCS 5/12-4(a) (West 1994)).

     Steward was scheduled to be released from prison to serve a

two-year period of mandatory supervised release on March 1, 2006.

On February 28, 2006, the State filed a petition to have Steward

committed pursuant to the Sexually Violent Persons Commitment Act

(SVPCA) (725 ILCS 207/1 (West 2004)).     The petition alleged

Steward was convicted of the offenses at issue here and was also

convicted in 1990 of aggravated criminal sexual assault and

sentenced to 10 years in the Illinois Department of Corrections

for that offense.

     The State’s petition also alleged that Steward was diagnosed

by Dr. Jacqueline Buck with the following conditions: (1)

paraphilia, a condition where he is sexually attracted to

nonconsenting females; (2) cannabis dependency; (3) he is subject

to alcohol abuse; and (4) he has an antisocial personality

disorder.    According to the petition:

                 “These mental disorders are congenital

            or acquired conditions affecting the

            Respondent’s emotional or volitional capacity

            which predisposes the Respondent to commit

            acts of sexual violence.”



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     On March 30, 2006, the trial court conducted a hearing and

found probable cause that Steward is a sexually violent person,

pursuant to the SVPCA (725 ILCS 207/1 (West 2004)).       The court

ordered Stewart detained pending disposition of the petition.

      After Steward was detained, his counsel deposed Patrice.

Her testimony in the deposition was different in several respects

from the testimony she gave at trial.    Patrice testified that she

knew Homer King, a/k/a Fancy.    Patrice had in the past exchanged

sex for money with Fancy.    Patrice identified this practice as a

“date.”

     On the day of the incident with Steward, she came upon Fancy

in a nearby park and he asked her if she still dated.     Patrice

testified that Fancy said he had a friend who wanted to date her.

Steward approached and Fancy said he was the friend who wanted

“to get to know [her].”

     Patrice testified that she walked with Steward to an

apartment.    Steward asked her if she dated and she replied in the

affirmative.    Patrice testified that she walked into the bedroom

and removed her pants but did not remove the three shirts she was

wearing.    Patrice and Steward engaged in intercourse.

Afterwards, she asked to be paid and Steward gave her a bag

containing jewelry, clothes and a coat.   Patrice testified that

she voluntarily engaged in intercourse with Steward a second



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1-09-1006

time.

     Shortly thereafter, Patrice was in the kitchen of the

apartment and Steward grabbed her and a fight ensued.          During the

fight, Steward bit Patrice on her arm and hit her on the head

with a hammer.      Patrice testified:

                    “And then after that I say okay, I’m

            going to do what you want me to do, you know.

            Just don’t hit me.”

     Patrice testified that Steward asked her to have a drink and

she declined.    Testimony continued in the following manner:

                    “A. He poured him a drink.   He unzipped

            his pants.    He told me to suck his penis.

                    Q. [Defense attorney]: And what happened

            then?

                    A. I looked at his penis.

                    Q. And then what happened?

                    A. I wiped the blood off my hand – my

            face.    And I went down, you know, bend down

            like I’m in position to do what he asked me

            to do.

                    Q. And then what happened?

                    A. I snatched his groins.

                    Q. Can you describe that for us, please?



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                 A. Okay.    He’s standing – say that’s the

            door and the doorknob is his groins.    When I

            looked up at him, he’s standing like this.

            His penis is active, and I just went and just

            did like this.   When he did – when I did

            that, he dropped the hammer.   When he dropped

            the hammer, I went at him like this, and he

            dropped the keys.

                 When he dropped the keys, I unlocked the

            front door and went – stood on the porch, not

            even a second, just stood and asked where can

            I run to, you know, just stay woke and see

            where you can run – and I’m remembering Fancy

            mom live across the street, you know, because

            that’s where I went when I used to, you know,

            date him, you know, to his mom house.

                 And so I knocked on the door, and I

            asked could she call an ambulance for me.”

     Patrice suffered a wound to the head and a bite mark on her

arm while the defendant suffered a severe injury to his scrotum.

     Patrice testified that Steward never grabbed her on the

street and forced her into the apartment, as she had testified at

trial.



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1-09-1006

     On cross-examination, Patrice testified that Steward hit her

on the head with a hammer because she would not suck his penis.

     Steward filed a postconviction petition on February 9, 2009,

claiming Patrice recanted her trial testimony in the 2007

deposition and that he is innocent of attempted aggravated

criminal sexual assault.   Steward claimed his conviction should

be vacated or he should be granted a new trial.

     In the petition, Steward claims that Patrice’s posttrial

deposition is newly discovered evidence.   Steward also claims

that posttrial deposition testimony from Fancy corroborates the

testimony of Patrice.

     State of Illinois records show that Steward was discharged

from mandatory supervised release on March 1, 2008.

Approximately 11 months later, he filed his postconviction

petition.

     In its order dismissing Steward’s petition, the trial court

found: (1) the issue of time limitations does not bar the

petition because he is alleging actual innocence; (2) defendant

does not have standing to bring his petition because he is not a

person imprisoned in a penitentiary within the meaning of the

Post-Conviction Hearing Act (725 ILCS 5/122-1 (West 2008)); and

(3) his claim of actual innocence fails because it was not based

on newly discovered evidence.



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1-09-1006

     This appeal followed.

                             ANALYSIS

     In this appeal, Steward argues: (1) the trial court erred by

dismissing his petition on the ground of standing at the first

stage, (2) civil commitment under the SVPCA satisfies the

“imprisoned in the penitentiary” requirement of the Post-

Conviction Hearing Act, (3) the trial court erred when it

dismissed defendant’s postconviction petition on the basis that

it was frivolous and patently without merit, and (4) the trial

court erred in imposing sanctions pursuant to section 22-105 of

the Code of Civil Procedure (735 ILCS 5/22-105 (West 2008)).

     As a preliminary matter, the State has requested that we

strike portions of defendant’s appellate brief that cite to

matters outside the record of this appeal.     As the State notes,

the record is incomplete.

     All matters to be considered on appeal must be made part of

the court record.   Dopp v. Village of Northbrook, 257 Ill. App.

3d 820, 824, 630 N.E.2d 84, 86 (1993).     An appellant has the

burden to present a sufficiently complete record of the

proceedings at trial to support a claim of error, and in the

absence of such a record on appeal, it will be presumed that the

order entered by the trial court was in conformity with the law

and had a sufficient factual basis.     Any doubts that may arise



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from the incompleteness of the record will be resolved against

the appellant.    Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92, 459

N.E.2d 958, 959 (1984).

     We decline to strike any portion of defendant’s appellate

brief.    However, we may resolve any doubts that arise as a result

of the incomplete record against the defendant.      Foutch, 99 Ill.

2d at 391-92, 459 N.E.2d at 959.

                               Standing

        On appeal, Steward claims standing is not a permissible

ground for summary dismissal of a postconviction petition under

section 122-2.1 of the Post-Conviction Hearing Act (the Act).

     The Act provides a means through which a defendant may

challenge his conviction or sentence for violations of federal or

state constitutional rights.    People v. Pendleton, 223 Ill. 2d

458, 471, 861 N.E.2d 999, 1007 (2006).      Under the Act, “Any

person imprisoned in the penitentiary may institute a proceeding

***.”    725 ILCS 5/122-1(a) (West 2008).

     Proceedings under the Act are commenced by the filing of a

petition in the circuit court where the original proceeding took

place.    725 ILCS 5/122-1(b) (West 2008).    Section 122-2 of the

Act requires that a post-conviction petition “clearly set forth

the respects in which petitioner’s constitutional rights were

violated.”    725 ILCS 5/122-2 (West 2008).    Only those violations


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that were not and could not have been challenged during an

earlier proceeding are properly raised and considered.         People v.

Morgan, 212 Ill. 2d 148, 153, 817 N.E.2d 524, 527 (2004).

     The Act provides for three stages of postconviction

proceedings in noncapital cases.         Pendleton, 223 Ill. 2d at 471-

72, 861 N.E.2d at 1007.   At the first stage, the trial court has

90 days to review a petition and may summarily dismiss it if the

trial court finds the petition frivolous or patently without

merit.   725 ILCS 5/122-2.1(a)(2)(West 2008).

     The petition is required to have attached affidavits,

records or other evidence to support its allegations or state why

this evidence is not attached.     725 ILCS 5/122-2 (West 2008).

     If the trial court does not dismiss the petition as

frivolous or patently without merit within that 90-day period,

the petition advances to the second stage and the trial court

must docket it for further consideration and appoint an attorney

for the defendant if he cannot afford one.        725 ILCS 5/122-

2.1(b)(West 2008).   At the second stage, the State may file

responsive pleadings (People v. Edwards, 197 Ill. 2d 239, 245-46,

757 N.E.2d 442, 446 (2001)) or may move to dismiss the petition

(Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1008).        If the

State moves to dismiss, the trial court may hold a dismissal

hearing but it is not required.     People v. Coleman, 183 Ill. 2d


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366, 381, 701 N.E.2d 1063, 1071 (1998).

     If the trial court does not dismiss at the second stage, the

proceedings advance to the third stage for an evidentiary

hearing.    725 ILCS 5/122-6 (West 2008); Pendleton, 223 Ill. 2d at

472-473, 861 N.E.2d at 1008.    At an evidentiary hearing, the

trial court “may receive proof by affidavits, depositions, oral

testimony, or other evidence” and “may order the petitioner

brought before the court.”    725 ILCS 5/122-6 (West 2008).   When a

trial court grants the State’s motion to dismiss or otherwise

dismisses the petition, “we generally review the circuit court’s

decision using a de novo standard.”     Pendleton, 223 Ill. 2d at

473, 861 N.E.2d at 1008.    When a trial court grants or denies

postconviction relief following the conclusion of a third-stage

evidentiary hearing, we review the decision of the trial court

using a “manifestly erroneous” standard.     Coleman, 183 Ill. 2d at

385, 701 N.E.2d at 1074.    We will review this case under the de

novo standard.

     Our supreme court has set the standard by which we review

the summary dismissal of a postconviction petition:

            "The question before us is whether

            defendant's petition had no arguable basis

            either in law or in fact, i.e., whether it

            was based on an indisputably meritless legal


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            theory or a fanciful factual allegation."

            People v. Hodges, 234 Ill. 2d 1, 17, 912

            N.E.2d 1204, 1212 (2009).

     Steward claims standing is not a permissible ground for

summary dismissal under section 122-2.1 of the Act (725 ILCS

5/122-2.1 (West 2008)) and in support cites People v. Boclair,

202 Ill. 2d 89, 789 N.E.2d 734 (2002).     In Boclair our supreme

court held that timeliness of the filing of a petition is not an

element of “frivolous or patently without merit” under section

122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West 2000)).

Boclair, 202 Ill. 2d at 100-01, 789 N.E.2d at 741.

     The court stated:

            “If the legislature intended for a trial

            judge to sua sponte dismiss a petition as

            being untimely, it would have so provided in

            section 122-2.1(a)(2) of the Act.   Instead,

            the legislature provided in section 122-5

            that the State may file a motion to dismiss.

            [citation].   By addressing timeliness and

            frivolousness in separate provisions of the

            Act, the legislature plainly intended to draw

            a distinction between these two flaws of

            post-conviction petitions.”   Boclair, 202


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            Ill. 2d at 100-01, 789 N.E.2d at 741.

     Steward contends his claim is analogous to Boclair and

argues that because the issue of standing is specifically

addressed in a separate section of the Act, “this Court should

find that the legislature did not intend to encompass standing

within the scope of [s]ection 122-2.1(a)(2)’s ‘frivolous or ***

patently without merit’ language.”

     In Boclair, our supreme court looked to the standard

definitions of “frivolous,” “patently,” and “merit.”    Boclair,

202 Ill. 2d at 101, 789 N.E.2d at 741-42.    Our supreme court

noted that time is not an inherent element of the right to bring

a postconviction petition, and as such, time limitation should be

considered as an affirmative defense and can be raised, waived or

forfeited by the State.    Boclair, 202 Ill. 2d at 101, 789 N.E.2d

at 741-42, citing People v. Wright, 189 Ill. 2d 1, 10-12, 723

N.E.2d 230 (1999).

     In Boclair, our supreme court determined that the definition

of “merit” is defined as “ ‘legal significance, standing, or

importance.’ ” (Emphasis added.) Boclair, 202 Ill. 2d at 101, 789

N.E.2d at 742, quoting Webster’s Third New International

Dictionary 1414 (1993); Black’s Law Dictionary 1003 (7th ed.

1999).

     “Standing” is defined as: “[a] party’s right to make a legal


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claim or seek judicial enforcement of a duty or right.”     Black’s

Law Dictionary 1413 (7th ed. 1999).    In the context of the Post-

Conviction Hearing Act: a defendant who has completed his parole

does not have standing to file a postconviction petition (People

v. Carrera, 394 Ill. App. 3d 368, 915 N.E.2d 755 (2009));

registration as a sex offender is a collateral consequence of a

defendant’s conviction and does not give a defendant standing to

challenge his conviction under the Act (People v. Downin, 394

Ill. App. 3d 141, 146, 914 N.E. 2d 1169, 1174 (2009));

postconviction review is not available to those who have already

completed their sentences and might simply wish to purge their

records of past convictions (People v. Farias, 187 Ill. App. 3d

879, 543 N.E.2d 886 (1989)); and a person serving a new sentence

enhanced by a previous conviction does not have standing to

challenge that previous conviction (People v. Thurman, 334 Ill.

App. 3d 286, 289-90, 777 N.E.2d 971, 972-73 (2002)).

      We conclude that the legislature intended that the phrase

“frivolous or *** patently without merit” encompass the issue of

standing because under Boclair, “merit” means legal significance

and standing.   Boclair, 202 Ill. 2d at 101, 789 N.E.2d at 742,

quoting Webster’s Third New International Dictionary 1414 (1993);

Black’s Law Dictionary 1003 (7th ed. 1999).    A petition filed

pursuant to the Act has no merit if filed by an individual who is


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not imprisoned.   Therefore, we conclude that the court properly

considered the petitioner’s standing at the first stage of the

petition because a petitioner’s status as an imprisoned person is

inherent to the right to relief under the Act.

 Confinement Under the SVPCA Does Not Satisfy the “Imprisoned in

             the Penitentiary” Requirement of the Act

     Defendant argues he is entitled to relief under the Post-

Conviction Hearing Act because he is imprisoned, even though he

is held under the SVPCA.   The SVPCA allows the State to extend

the incarceration of criminal defendants beyond the time they

would otherwise be entitled to release if those defendants are

found to be “sexually violent.”     In re Detention of Samuelson,

189 Ill. 2d 548, 551, 727 N.E.2d 228, 231 (2000).

     A proceeding under the SVPCA begins when the defendant is

served with notice by either the Attorney General or the State’s

Attorney in the county where the defendant was convicted.

Samuelson, 189 Ill. 2d at 552, 727 N.E.2d at 232.    Either the

Attorney General or State’s Attorney submits a petition to the

trial court alleging that the defendant is a sexually violent

person.   Samuelson, 189 Ill. 2d at 553, 727 N.E.2d at 232.

Proceedings on the petition are characterized by the law as civil

in nature.   725 ILCS 207/20 (West 2008).   The court must hold a

hearing to determine whether there is probable cause to believe


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that the person named in the petition is a sexually violent

person.    725 ILCS 207/30(b)(West 2008).   If probable cause is not

established, the petition must be dismissed.     725 ILCS 207/30(c)

(West 2008).

     A trial to determine whether the defendant is a sexually

violent person shall commence no later than 120 days after the

date of the probable cause hearing.     725 ILCS 207/35(a) (West

2008).    At trial, the petitioner has the burden of proving the

allegations in the petition beyond a reasonable doubt.     725 ILCS

207/35(d)(1) (West 2008).    If a court or a jury determines that a

person is a sexually violent person, the court shall order the

person to be committed to the custody of the Department of Human

Services.    725 ILCS 407/40(a) (West 2008).

     After a person has been committed to institutional care, the

Department of Human Services is to conduct an examination of his

mental condition within six months of the initial commitment and

again at least once every 12 months.     725 ILCS 207/55(a) (West

2008).

     Any person who is committed for institutional care under the

SVPCA may petition the committing court for a conditional release

if at least six months have elapsed since the initial commitment

order was entered.    725 ILCS 207/60(a) (West 2008).   The court

may appoint an examiner to examine the mental condition of the



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petitioner and furnish a written report to the court.        725 ILCS

207/60(c) (West 2008).

     The court shall grant the petition unless the State proves

by clear and convincing evidence that the person has not made

sufficient progress to be conditionally released.        725 ILCS

207/60(d) (West 2008).

     A discharge is also available if the Secretary of the

Department of Human Services determines that the person is no

longer a sexually violent person.        725 ILCS 207/65(a)(1) (West

2008).   The Secretary may authorize the person to petition the

committing court for discharge.     A hearing will be held where the

State has the burden of proving by clear and convincing evidence

that the petitioner is still a sexually violent person.        725 ILCS

207/65(a)(2) (West 2008).

     In this case, Steward argues his civil commitment under the

SVPCA is analogous to being “imprisoned in the penitentiary”

under the Post-Conviction Hearing Act; since the courts have

expanded the interpretation of “imprisoned in the penitentiary”

in the past, we should expand it here to include those civilly

committed under the SVPCA; and an individual’s detention in a

secured facility under the SVPCA is strikingly similar to

detention in a penitentiary.

      In People v. Lawton, 212 Ill. 2d 285, 297, 818 N.E.2d 326,



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333 (2004), our supreme court found that persons committed under

the Sexually Dangerous Persons Act (725 ILCS 205/0.01 et seq.

(West 2002)) may not invoke the Post-Conviction Hearing Act to

make a claim of ineffective assistance of counsel because

proceedings under the Sexually Dangerous Persons Act are civil in

nature.   The court stated that some other remedy must be found.

Lawton, 212 Ill. 2d at 296-97, 818 N.E.2d at 326.

     In the case at bar, like Lawton, Steward is committed under

an act that is civil in nature; thus, he may not invoke the Post-

Conviction Hearing Act, and some other remedy must be found.

Lawton, 212 Ill. 2d at 296-97, 818 N.E.2d at 326.

     As previously discussed, Steward may challenge his civil

commitment under the SVPCA.    The court in Lawton suggested that

the defendant challenge his civil commitment through section 2-

1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2008)).

     Our supreme court stated:

                 “One of the guiding principles in the

            administration of section 2-1401 relief is

            that the petition invokes the equitable

            powers of the circuit court to prevent

            enforcement of a judgment when doing so would

            be unfair, unjust, or unconscionable.”


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            Lawton, 212 Ill. 2d at 297, 818 N.E.2d at

            334.

     However the Post-Conviction Hearing Act expressly states

that a petitioner must be held in a penitentiary.    Our supreme

court has held that the Act is unavailable to those civilly

committed.    In this case, Steward is in civil custody; therefore,

Steward lacks standing to file a postconviction petition because

he is not “imprisoned in a penitentiary” within the meaning of

the Act.

               Tolling of Mandatory Supervised Release

     Steward claims in his reply brief that he was “imprisoned in

the penitentiary” under the Post-Conviction Hearing Act because

his mandatory supervised release had been tolled under section

15(e) of the SVPCA.    The Post-Conviction Hearing Act is not only

available to those defendants currently incarcerated in a

correctional facility but also to those who were released while

their timely filed petitions were pending, those released on

appeal bond, those on mandatory supervised release, and those

sentenced to probation.    People v. Rajagopal, 381 Ill. App. 3d

326, 329, 885 N.E.2d 1152, 1156 (2008).

     The State, in a motion to cite additional authority, claims

we should not allow Steward’s tolling argument because it was not

addressed in his opening brief or the State’s responsive brief



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and is in violation of Supreme Court Rule 341(j) (210 Ill. 2d R.

341(j).

     Under Supreme Court Rule 341(j), a reply brief is strictly

confined to replying to arguments presented in the brief of the

appellee.    210 Ill. 2d R. 341(j).

     We will allow Steward’s tolling argument because it was

presented in reply to the State’s claim in its response brief

that Steward was discharged from mandatory supervised release.

     Under section 15(e) of the SVPCA:

                 “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

                 had successfully completed a period

                 of conditional release pursuant to

                 Section 60 of this Act.”   725 ILCS



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                 207/15(e) (West 2008).

     However, this section does not apply to Steward because it

was not enacted until July 3, 2006, more than four months after

defendant was placed on mandatory supervised release (MSR), and

did not become effective until January 1, 2007, some nine months

after defendant was placed on MSR.      See Pub. Act 94-992 (eff.

January 1, 2007)(amending 725 ILCS 207/15(e) (West 2006)).

     This court may take judicial notice of Department of

Corrections records because they are public documents.      People v.

Peterson, 372 Ill. App. 3d 1010, 1019, 868 N.E.2d 329, 336

(2007).   Department of Corrections records show that Steward was

actually discharged from mandatory supervised release on March 1,

2008, months before Steward filed his postconviction petition.

Since Steward was clearly discharged from MSR, he clearly was not

on MSR when he filed his petition.

     Furthermore, we cannot say that the amended section 15(e) of

the SVPCA applies to Steward because, generally, an amendment to

a statute will be construed to apply prospectively and not

retroactively.    People v. Digirolamo, 179 Ill. 2d 24, 50, 688

N.E.2d 116, 128 (1997).

     An amendment may apply retroactively by express statutory

language or by necessary implication.      Digirolamo, 179 Ill. 2d at

50, 688 N.E.2d at 128.    There is also an exception when an


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amendment relates to changes in procedure or remedies, and not

substantive rights.    Digirolamo, 179 Ill. 2d at 50, 688 N.E.2d at

128.

       Here, the amended section 15(e) of the SVPCA does not state

that it expressly applies retroactively or that such an

application is necessary.    Section 15(e) merely states that MSR

is tolled until dismissal of the SVPCA petition or a finding by a

judge or jury that the respondent is not a sexually violent

person; or such person is discharged under the Act. 725 ILCS

207/15(e) (West 2008).

       Furthermore, we cannot say section 15(e) of the SVPCA

relates to changes in procedure or remedies of those engaged in a

proceeding under the SVPCA.

       Assuming, in arguendo, section 15(e) does apply here, we

still cannot say a tolling of MSR satisfies the “imprisoned in

the penitentiary” requirement of the Act (725 ILCS 5/122-1(a)

(West 2008)).    Defendant needs to be currently on MSR, not

tolled, to be within the realm of the Act.      Rajagopal, 381 Ill.

App. 3d at 329, 885 N.E.2d at 1156.      Therefore, we cannot say

defendant has standing under the Post-Conviction Hearing Act.

       Steward’s Petition is Based Upon a Meritless Legal Theory

       We have determined Steward lacks standing to file a petition

under the Post-Conviction Hearing Act.      Notwithstanding Steward’s


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lack of standing and the trial court’s determination that

Patrice’s testimony is not newly discovered evidence, Steward’s

petition fails to state a meritorious case of actual innocence

even if the petition and supporting evidence were considered

newly discovered.

     Our supreme court in Hodges instructs that a “frivolous or

patently without merit” test, along the lines of the test used in

federal habeas corpus cases, is used to determine whether a

postconviction petition presents the gist of a constitutional

claim.   Hodges, 234 Ill. 2d at 12, 912 N.E.2d at 1210.   Under

this test, a post-conviction petition may be summarily dismissed

as frivolous or patently without merit only if the petition has

no arguable basis either in law or in fact.   Hodges, 234 Ill. 2d

at 11-12, 912 N.E.2d at 1209.

     Claims that lack an arguable basis either in law or in fact

are those “based on an indisputably meritless legal theory,”

claims “whose factual contentions are clearly baseless,” e.g.,

“claims describing fantastic or delusional scenarios” or fanciful

factual allegations.   Hodges, 234 Ill. 2d at 13, 912 N.E.2d at

1210, citing Neitzke v. Williams, 490 U.S. 319, 324-25, 104 L.

Ed. 2d 338, 346-47, 109 S. Ct. 1827, 1831 (1989).   According to

Hodges, an example of an indisputably meritless legal theory is

one which is completely contradicted by the record.   Hodges, 234


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Ill. 2d at 16, 912 N.E.2d at 1212.

     Steward claims that Patrice recanted her account of the

events leading to his conviction for attempted aggravated

criminal sexual assault (720 ILCS 5/8-4, 12-14(a)(4) (West

1994)).    A review of Steward’s petition for postconviction relief

reveals that he is challenging his aggravated battery conviction

as well.

     A person commits the crime of aggravated criminal sexual

assault when:

                 “(1) the accused displayed, threatened

            to use, or used a dangerous weapon, other

            than a firearm, or any object fashioned or

            utilized in such a manner as to lead the

            victim under the circumstances reasonably to

            believe it to be a dangerous weapon; or

                 (2) the accused caused bodily harm ***

            to the victim; or

                 (3) the accused acted in such a manner

            as to threaten or endanger the life of the

            victim ***; or

                 (4) the criminal sexual assault was

            perpetrated during the course of the

            commission or attempted commission of any



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            other felony by the accused ***.”   720 ILCS

            5/12-14 (West 2008).

     A person commits the crime of attempt when, with intent to

commit a specific offense, he does any act that constitutes a

substantial step toward the commission of that offense.      720 ILCS

5/8-4 (West 2008).

     A person commits the crime of aggravated battery when:

                 “(a) A person who, in committing a

            battery, intentionally or knowingly causes

            great bodily harm, or permanent disability or

            disfigurement commits aggravated battery.”

            720 ILCS 5/12-4(a) (West 2008).

     In Patrice’s posttrial deposition, she changed her story

from her testimony at trial where she testified that Steward

grabbed her on the street, forced her into his apartment and

forced her to have sexual relations.      In her posttrial

deposition, Patrice testified that she willingly went to

Steward’s apartment for a “date” and twice voluntarily engaged in

intercourse with Steward.

     While Patrice’s trial testimony and posttrial deposition

testimony differ as to whether she voluntarily had intercourse

with Steward, her testimony has not changed in regard to the

fight that ensued after intercourse when Patrice refused to



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1-09-1006

perform oral sex on Steward.    Patrice testified that Steward beat

her with a hammer in an attempt to force her to perform an oral

sex act, that she was unwilling to do.     When Steward hit Patrice

in the head and legs with a hammer, he committed aggravated

battery.    When Steward used a hammer in an attempt to force

Patrice to perform an act of oral sex, he committed the act of

attempted aggravated criminal sexual assault.    As a result, we

cannot say Steward has presented a meritorious claim that he is

innocent of attempted aggravated criminal sexual assault or

aggravated battery because such a claim is not only contradicted

by the record at trial, but by the evidence presented to us by

defendant in support of his postconviction petition.       Hodges, 234

Ill. 2d at 16, 912 N.E.2d at 1212.

                               Sanctions

     Steward claims the trial court erred when it imposed

sanctions pursuant to section 22-105 of the Code of Civil

Procedure (735 ILCS 5/22-105 (West 2008)).

     Under section 22-105:

                 “If a prisoner confined in an Illinois

            Department of Corrections facility files a

            pleading, motion, or other filing which

            purports to be a legal document in a case

            seeking post-conviction relief under Article



                                  -27-
1-09-1006

            122 of the Code of Criminal Procedure of 1963

            *** and the Court makes a specific finding

            that the pleading, motion, or other filing

            which purports to be a legal document filed

            by the prisoner is frivolous, the prisoner is

            responsible for the full payment of filing

            fees and actual court costs.”   735 ILCS 5/22-

            105 (West 2008).

     The trial court ordered that Steward be assessed court costs

and fees in the amount of $105, pursuant to section 22-105 of the

Code of Civil Procedure, because Steward’s petition lacked an

arguable basis in law or in fact; the allegations and other

factual contentions did not have evidentiary support; and the

filings were presented to hinder, cause unnecessary delay and

needless increase in the cost of litigation.

     However, the record shows that Steward is committed to a

Department of Human Services treatment and detention facility and

not “confined in an Illinois Department of Corrections facility”

pursuant to section 22-105(a) of the Code of Civil Procedure.

Therefore, the trial court order assessing fees in the amount of

$105 is vacated.

                               CONCLUSION

     Based on the foregoing, the judgment of the trial court is



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1-09-1006

affirmed and we vacate the order assessing fees in the amount of

$105.

     Affirmed; fees vacated.

     FITZGERALD SMITH, P.J., and TOOMIN, J., concur.




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                  REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                     (Front Sheet to be Attached to Each Case)

  Please use              THE PEOPLE OF THE STATE OF ILLINOIS,
following form:
                                       Plaintiff-Appellee,

  Complete                      v.
    TITLE
   of Case                STEVEN STEWARD,

                                       Defendant-Appellant.


  Docket Nos.                           No. 1-09-1006

    COURT                            Appellate Court of Illinois
                                     First District, 5th Division
   Opinion
    Filed                                December 3, 2010

                                     (Give month, day and year)

  JUSTICES                JUSTICE HOWSE delivered the opinion of the court:

                          FITZGERALD SMITH, P.J., and TOOMIN, J., concur.



APPEAL from the     Lower Court and Trial Judge(s) in form indicated in margin:
Circuit Court of
Cook County; the          Appeal from the Circuit Court of Cook County.
Hon.___________,
Judge Presiding.           The Hon. Dennis Porter, Judge Presiding.


For APPELLANTS,     Indicate if attorney represents APPELLANTS or APPELLEES and
John Doe, of        include attorneys of counsel. Indicate the word NONE if
Chicago.            not represented.

For APPELLEES,            For Appellant, Daniel T. Coyne, Matthew M.Daniels,
Smith and Smith,          Theresa M. Williams-Rule 711 Law Graduate and
of Chicago.               Stephen Wauck-2L Law Student,LAW OFFICES OF CHICAGO-
                          KENT COLLEGE OF LAW, of Chicago.


                          For Appellee, Anita Alvarez, State's Attorney of Cook
Joseph Brown,             County, of Chicago. (Alan J. Spellberg, Annette
of Counsel).              Collins, and Michele Grimaldi Stein, of Counsel).

Also add attor-
  neys for third-
party appellants
and/or appellees.




                           (USE REVERSE SIDE IF NEEDED)


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1-09-1006




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