SECOND DIVISION May 27, 2008
No. 1-07-2512
IN RE THE DETENTION OF EDWARD GAVIN ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County ) Petitioner-Appellee, ) ) v. ) ) Edward Gavin, ) Honorable )) Paul P. Biebel, Jr., Respondent-Appellant). Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Respondent Edward Gavin filed this interlocutory appeal from an order of the
circuit court denying his motion to dismiss the State's sexually violent persons
commitment petition. On appeal, he contends that the circuit court should have
dismissed the petition because it was untimely. We affirm. 1-07-2512
BACKGROUND
In this appeal, we interpret the meaning of section 15(b-5) of the Sexually Violent
Persons Commitment Act (Act) (725 ILCS 207/15(b-5) (West 2004)), as it applied to
respondent in 2006. That section provided in pertinent part that a petition alleging that
a person was a sexually violent person must be filed:
"(1) No more than 90 days before discharge or entry into mandatory
supervised release from a Department of Corrections correctional facility for a
sentence that was imposed upon a conviction for a sexually violent offense, or
for a sentence that is being served concurrently or consecutively with a sexually
violent offense, and no more than 30 days after the person's entry into parole or
mandatory supervised release[.]" (Emphasis added.) 725 ILCS 207/15(b-5)
(West 2004).
On March 9, 1989, respondent pled guilty to aggravated criminal sexual assault
(Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(1)) and was sentenced to 15 years'
imprisonment. On April 19, 1996, respondent began a term of mandatory supervised
release (MSR) for that offense. In September 1996, respondent was arrested for
burglary of a business and was released on bond. On March 9, 1997, respondent was
arrested for two counts of burglary of an auto. On March 11, 1997, respondent was
2 1-07-2512
arrested on a parole warrant for his sexual assault conviction.1 On March 18, 1998,
respondent was found guilty of burglary of a business and was sentenced to 12 years'
imprisonment. The judgment order did not indicate whether the sentence would run
concurrent or consecutive to respondent's sexual assault sentence. On December 23,
1998, respondent was found guilty of two counts of burglary of an auto and was
sentenced to concurrent 8-year sentences, which were ordered to run consecutive to
the 12-year burglary of a business sentence.
On April 9, 1999, respondent's MSR term for his sexual assault conviction was
discharged. Respondent still remained incarcerated due to the burglary of a business
offense. Respondent was scheduled to begin his MSR term on the burglary of a
business offense on April 15, 2006. However, on April 10, 2006, the State filed a
sexually violent persons commitment petition pursuant to the Act to declare respondent
a sexually violent person and eligible for commitment to the Department of Human
Services. Relying on an evaluation by psychologist Dr. Phil Reidda, the petition alleged
that respondent suffered from mental disorders that made the likelihood of committing
future sexually violent offenses substantially probable. The State alleged in the petition
that the petition was timely because it was filed within 90 days of respondent's entry
1 The record before us does not indicate the result of respondent's arrest for
violating MSR.
3 1-07-2512
into MSR.
Respondent filed a motion to dismiss the petition pursuant to sections 2-
619(a)(1), (a)(5) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1),
(a)(5), (a)(9) (West 2006)). Respondent's motion alleged that the State's petition was
not filed within the time permitted by the Act because respondent's anticipated release
to MSR was for his burglary of a business offense and not for a sexually violent offense.
He argued in the motion that because the State failed to file the petition prior to the
expiration of MSR for his sexual assault conviction, which was discharged on April 9,
1999, the State's petition was untimely. The petition did not address whether
respondent's burglary of a business sentence was being served concurrent or
consecutive to his sexual assault sentence.
The circuit court denied respondent's motion to dismiss, finding that because
respondent was in the custody of the Department of Corrections for his burglary
convictions while time still remained on his sexual assault conviction, those sentences
were "running concurrently," and the State's petition was timely. The court also noted
that In re Detention of Gardner, 307 Ill. App. 3d 85 (1999), supported the court's
determination. The court subsequently denied respondent's motion to reconsider.
ANALYSIS
Timeliness
4 1-07-2512
On appeal, we first consider whether the State's petition was timely. In order for
the petition to be timely, the petition must have been filed no more than 90 days before
respondent's discharge or entry into MSR "for a sentence that is being served
concurrently or consecutively with a sexually violent offense." If we find that
respondent's burglary of a business sentence was being served concurrent or
consecutive to his sentence for sexual assault, then the petition was timely. We note
that we review the circuit court's interpretation of section 15(b-5) de novo. Gardner,
307 Ill. App. 3d at 90.
Although our review is de novo, we find the circuit court's discussion of this
court's opinion in Gardner, 307 Ill. App. 3d 85, helpful. In Gardner, the respondent
began serving a five-year sentence for aggravated criminal sexual abuse on February
22, 1995. He was released from prison and placed on two years MSR on December
23, 1996. On April 7, 1997, the respondent returned to prison to serve a 26-month
sentence for failing to report an address change for a sex offender. The judgment
order for the respondent's conviction for failing to report an address change indicated
that the sentence was to be served concurrent to his sexual abuse sentence. His
sexual abuse sentence was ultimately discharged on February 21, 1998, and he was
released from prison. However, at that time, the respondent was still serving one year
of MSR for failing to report an address change. On October 2, 1998, the respondent
5 1-07-2512
returned to prison for violating a term of his MSR by removing an electronic monitoring
device from his person. The respondent was scheduled to be released from prison and
discharged from his failure to report an address change sentence on November 28,
1998. However, on November 24, 1998, the State filed a sexually violent persons
commitment petition pursuant to the Act. At issue on appeal was the timeliness of the
State's petition. The respondent maintained that the petition had to be filed within 90
days of discharge from a sexually violent offense (aggravated criminal sexual abuse)
rather than within 90 days of discharge from a non-sexually violent offense (failure to
report an address change).
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SECOND DIVISION May 27, 2008
No. 1-07-2512
IN RE THE DETENTION OF EDWARD GAVIN ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County ) Petitioner-Appellee, ) ) v. ) ) Edward Gavin, ) Honorable )) Paul P. Biebel, Jr., Respondent-Appellant). Judge Presiding.
JUSTICE KARNEZIS delivered the opinion of the court:
Respondent Edward Gavin filed this interlocutory appeal from an order of the
circuit court denying his motion to dismiss the State's sexually violent persons
commitment petition. On appeal, he contends that the circuit court should have
dismissed the petition because it was untimely. We affirm. 1-07-2512
BACKGROUND
In this appeal, we interpret the meaning of section 15(b-5) of the Sexually Violent
Persons Commitment Act (Act) (725 ILCS 207/15(b-5) (West 2004)), as it applied to
respondent in 2006. That section provided in pertinent part that a petition alleging that
a person was a sexually violent person must be filed:
"(1) No more than 90 days before discharge or entry into mandatory
supervised release from a Department of Corrections correctional facility for a
sentence that was imposed upon a conviction for a sexually violent offense, or
for a sentence that is being served concurrently or consecutively with a sexually
violent offense, and no more than 30 days after the person's entry into parole or
mandatory supervised release[.]" (Emphasis added.) 725 ILCS 207/15(b-5)
(West 2004).
On March 9, 1989, respondent pled guilty to aggravated criminal sexual assault
(Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(1)) and was sentenced to 15 years'
imprisonment. On April 19, 1996, respondent began a term of mandatory supervised
release (MSR) for that offense. In September 1996, respondent was arrested for
burglary of a business and was released on bond. On March 9, 1997, respondent was
arrested for two counts of burglary of an auto. On March 11, 1997, respondent was
2 1-07-2512
arrested on a parole warrant for his sexual assault conviction.1 On March 18, 1998,
respondent was found guilty of burglary of a business and was sentenced to 12 years'
imprisonment. The judgment order did not indicate whether the sentence would run
concurrent or consecutive to respondent's sexual assault sentence. On December 23,
1998, respondent was found guilty of two counts of burglary of an auto and was
sentenced to concurrent 8-year sentences, which were ordered to run consecutive to
the 12-year burglary of a business sentence.
On April 9, 1999, respondent's MSR term for his sexual assault conviction was
discharged. Respondent still remained incarcerated due to the burglary of a business
offense. Respondent was scheduled to begin his MSR term on the burglary of a
business offense on April 15, 2006. However, on April 10, 2006, the State filed a
sexually violent persons commitment petition pursuant to the Act to declare respondent
a sexually violent person and eligible for commitment to the Department of Human
Services. Relying on an evaluation by psychologist Dr. Phil Reidda, the petition alleged
that respondent suffered from mental disorders that made the likelihood of committing
future sexually violent offenses substantially probable. The State alleged in the petition
that the petition was timely because it was filed within 90 days of respondent's entry
1 The record before us does not indicate the result of respondent's arrest for
violating MSR.
3 1-07-2512
into MSR.
Respondent filed a motion to dismiss the petition pursuant to sections 2-
619(a)(1), (a)(5) and (a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(1),
(a)(5), (a)(9) (West 2006)). Respondent's motion alleged that the State's petition was
not filed within the time permitted by the Act because respondent's anticipated release
to MSR was for his burglary of a business offense and not for a sexually violent offense.
He argued in the motion that because the State failed to file the petition prior to the
expiration of MSR for his sexual assault conviction, which was discharged on April 9,
1999, the State's petition was untimely. The petition did not address whether
respondent's burglary of a business sentence was being served concurrent or
consecutive to his sexual assault sentence.
The circuit court denied respondent's motion to dismiss, finding that because
respondent was in the custody of the Department of Corrections for his burglary
convictions while time still remained on his sexual assault conviction, those sentences
were "running concurrently," and the State's petition was timely. The court also noted
that In re Detention of Gardner, 307 Ill. App. 3d 85 (1999), supported the court's
determination. The court subsequently denied respondent's motion to reconsider.
ANALYSIS
Timeliness
4 1-07-2512
On appeal, we first consider whether the State's petition was timely. In order for
the petition to be timely, the petition must have been filed no more than 90 days before
respondent's discharge or entry into MSR "for a sentence that is being served
concurrently or consecutively with a sexually violent offense." If we find that
respondent's burglary of a business sentence was being served concurrent or
consecutive to his sentence for sexual assault, then the petition was timely. We note
that we review the circuit court's interpretation of section 15(b-5) de novo. Gardner,
307 Ill. App. 3d at 90.
Although our review is de novo, we find the circuit court's discussion of this
court's opinion in Gardner, 307 Ill. App. 3d 85, helpful. In Gardner, the respondent
began serving a five-year sentence for aggravated criminal sexual abuse on February
22, 1995. He was released from prison and placed on two years MSR on December
23, 1996. On April 7, 1997, the respondent returned to prison to serve a 26-month
sentence for failing to report an address change for a sex offender. The judgment
order for the respondent's conviction for failing to report an address change indicated
that the sentence was to be served concurrent to his sexual abuse sentence. His
sexual abuse sentence was ultimately discharged on February 21, 1998, and he was
released from prison. However, at that time, the respondent was still serving one year
of MSR for failing to report an address change. On October 2, 1998, the respondent
5 1-07-2512
returned to prison for violating a term of his MSR by removing an electronic monitoring
device from his person. The respondent was scheduled to be released from prison and
discharged from his failure to report an address change sentence on November 28,
1998. However, on November 24, 1998, the State filed a sexually violent persons
commitment petition pursuant to the Act. At issue on appeal was the timeliness of the
State's petition. The respondent maintained that the petition had to be filed within 90
days of discharge from a sexually violent offense (aggravated criminal sexual abuse)
rather than within 90 days of discharge from a non-sexually violent offense (failure to
report an address change). This court disagreed, finding that the State's petition was
timely because the petition was filed within 90 days before the respondent's discharge
from a correctional facility for a sentence (failure to report an address change) that was
being served concurrent to a sexually violent offense (aggravated criminal sexual
abuse). Gardner, 307 Ill. App. 3d at 91. The court did not find that pursuant to the Act
the petition had to be filed prior to discharge of the sexually violent offense. Gardner,
307 Ill. App. 3d at 91. The petition was timely because it was filed prior to discharge for
a sentence that was being served concurrent to a sexually violent offense. Gardner,
307 Ill. App. 3d at 91.
Here, the judgment order for respondent's burglary of a business offense did not
indicate whether the sentence would run concurrent or consecutive to his sexual
6 1-07-2512
assault sentence. However, in the absence of a provision to the contrary in the
judgment order, the sentences are presumed to run concurrent. See People ex rel.
Gibson v. Cannon, 37 Ill. App. 3d 69, 70 (1976) (in the absence of specific provisions to
the contrary in the judgment order, two or more sentences of a defendant to the same
place of confinement run concurrently). Therefore, we find that respondent's sentence
for burglary of a business was to be served concurrent to his sentence for sexual
assault. Further, respondent did actually serve a portion of his burglary of a business
sentence at the same time as his sentence for sexual assault. Respondent's sexual
assault conviction was not discharged until April 9, 1999. At that time, respondent had
already been serving his burglary of a business sentence, which was imposed on March
18, 1998. Because he was serving his burglary of a business sentence prior to the
discharge of his sexual assault conviction, the burglary and sexual assault sentences
were being served concurrently. Therefore, the State's petition was timely because it
was filed within 90 days before respondent's release to MSR for a sentence (burglary)
that was being served concurrent to a sexually violent offense (sexual assault).
We agree with this court's interpretation of the Act as stated in Gardner that a
commitment petition need not be filed within 90 days before discharge or entry into
MSR for a sexually violent offense because the time period in which the State has to file
the petition is continued until within 90 days before discharge or entry into MSR for a
7 1-07-2512
sentence served concurrent or consecutive to a sexually violent offense. If it was only
timely to file the petition within 90 days before discharge or entry into MSR for a
sexually violent offense, then the part of the statute beginning with "or for a sentence
that is being served concurrently or consecutively with a sexually violent offense," would
be rendered meaningless. Further, because the statute includes "a sentence that is
being served * * * consecutively with a sexually violent offense," it would not be possible
for a sentence that is imposed consecutive to a sexually violent offense to be served
until the sexually violent offense had been discharged. Consecutive sentences are
served back-to-back and one sentence does not begin until the previous sentence has
ended. Therefore, we find that the State's petition was timely and the circuit court
properly denied respondent's motion to dismiss.
2007 Amendment
Respondent next argues that an amendment to the statute, which took effect in
2007, supports his contention that the Act, prior to the amendment, was not intended to
include him.
The amended Act provides:
"(b-5) The petition must be filed no more than 90 days before
discharge or entry into mandatory supervised release from a Department
of Corrections *** for a sentence that was imposed upon a conviction for a
8 1-07-2512
sexually violent offense.
***
(b-7) A person convicted of a sexually violent offense remains
eligible for commitment as a sexually violent person pursuant to this Act
under the following circumstances: (1) the person is in custody for a
sentence that is being served concurrently or consecutively with a sexually
violent offense; (2) the person returns to the custody of the Illinois
Department of Corrections *** for any reason during the term of parole or
mandatory supervised release being served for a sexually violent offense;
or (3) the person is convicted or adjudicated delinquent for any offense
committed during the term of parole or mandatory supervised release
being served for a sexually violent offense, regardless of whether that
conviction or adjudication was for a sexually violent offense." 725 ILCS
207/15(b-5), (b-7) (West 2006), as amended by Pub. Act 94-992, §5, eff.
January. 1, 2007.
Respondent maintains that because the amendment broadened the class of
offenders eligible for commitment pursuant to the Act, the preamendment version of the
statute was not intended to include him.
Here, we are not persuaded by respondent's contention. The amendment does
9 1-07-2512
not affect respondent's eligibility for commitment under the preamendment version.
Respondent was eligible for commitment pursuant to the 2006 version of the statute,
and the amendment does not somehow now make him ineligible. Respondent came
within the parameters of the preamendment version because his burglary of a business
sentence was being served concurrent to his sexual assault sentence. Merely because
respondent also fits within the additional subsections of the amended statute does not
mean that he did not fit within the preamendment version.
Accordingly, we affirm the judgment of the circuit court.
Affirmed.
SOUTH and HALL, J.J., concur.
10 1-07-2512
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
IN RE: THE DETENTION OF EDWARD GAVIN
(The People of the State of Illinois,
Petitioner-Appellee,
v.
Edward Gavin,
Respondent-Appellant).
Appellate Court of Illinois First District, Second Division
May 27, 2008
JUSTICE KARNEZIS delivered the opinion of the court.
Appeal from the Circuit Court of Cook County.
The Honorable Paul P. Biebel, Jr., Judge Presiding.
For APPELLANT, Law Offices of Chicago-Kent College of Law (Daniel T. Coyne, Matthew M. Daniels, Meghan J. Paulas (Rule 711 Senior Law Student), of counsel)
For APPELLEE, Lisa Madigan, Attorney General of Illinois (Michael A. Scodro, Solicitor
11 1-07-2512
General, and Michael M. Glick, Karl R. Triebel, Assistant Attorneys General, of counsel).