People v. Stavenger

No. 2-14-0885 Opinion filed July 9, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 03-CF-2341 ) ROY STAVENGER, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

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

OPINION

¶1 Defendant, Roy Stavenger, appeals from the second-stage dismissal of his postconviction

petition, contending that he has standing to bring the petition under the Post-Conviction Hearing

Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) because, although he has completed his

sentence, he is required to register as a sex offender. Because the registration requirement does

not impose a restraint on his liberty, defendant lacks standing to bring the petition. Thus, we

affirm.

¶2 I. BACKGROUND

¶3 Defendant pleaded guilty in the circuit court of Du Page County to one count of

possession of child pornography (720 ILCS 5/11-20.1(a)(6)(i) (West 2002)) and was sentenced

to 24 months’ probation and 180 days in jail. On July 28, 2010, defendant was discharged from

probation.

¶4 On February 2, 2011, defendant filed a petition seeking relief pursuant to the Act and

section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). He amended

his petition in June 2012.

¶5 The State moved to dismiss the amended petition, asserting that defendant lacked

standing under the Act and that the section 2-1401 claims were untimely. The trial court

dismissed the amended petition as to both the claims under the Act and those under section 2-

1401, and defendant filed a timely notice of appeal.

¶6 II. ANALYSIS

¶7 On appeal, defendant challenges only the dismissal of his claims under the Act. 1 He

posits that because he must register as a sex offender he has standing to bring a petition under the

Act. We review the second-stage dismissal de novo. See People v. Carrera,

239 Ill. 2d 241, 245

(2010).

¶8 Generally, to initiate an action under the Act, a person must be “imprisoned in the

penitentiary.” 725 ILCS 5/122-1(a) (West 2010). A defendant on probation satisfies that

requirement. People v. Martin-Trigona,

111 Ill. 2d 295, 299-300

(1986). However, a remedy

under the Act is available only to persons who are actually deprived of their liberty and not to

those who have completely served their sentences and wish merely to purge their criminal

1 In doing so, defendant contends, in part, that the trial court improperly dismissed his

claims under the Act because the petition was untimely. The State, however, points out that

untimeliness was a basis for dismissing only the section 2-1401 claims; thus, there is no issue

regarding the timeliness of the claims under the Act.

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2011 IL App (1st) 090923, ¶ 10

records of past convictions. People v. Henderson,

(citing

Carrera,

239 Ill. 2d at 257

). Therefore, a defendant’s liberty is the paramount interest under the

Act. Henderson,

2011 IL App (1st) 090923, ¶ 10

(citing People v. Pack,

224 Ill. 2d 144, 150

(2007)).

¶9 A defendant’s liberty is restrained if he is always on a string that the State may pull when

it pleases. Henderson,

. Thus, a defendant retains standing

under the Act so long as he is challenging a conviction from which he continues to serve some

form of sentence, such that his liberty would be directly affected by invalidating his conviction.

Henderson,

. When a defendant’s conviction is no longer an

actual encumbrance, he no longer needs assistance under the Act to secure his liberty, and,

therefore, the Act is no longer available to him. Henderson,

381 Ill. App. 3d 326, 331

Collateral consequences resulting from a conviction are not actual restraints on liberty sufficient

to implicate the Act. People v. Rajagopal,

(2008).

¶ 10 In this case, defendant has unquestionably completed his sentence. He relies solely on

the requirement that he register as a sex offender for his contention that the Act continues to

apply to him.

¶ 11 That contention, however, has been previously rejected. The Third District Appellate

Court has addressed the issue of whether registration as a sex offender is a restraint on liberty

sufficient to trigger the Act or whether it is merely a collateral consequence of a defendant’s

conviction. People v. Downin,

394 Ill. App. 3d 141, 144

(2009). In holding that the registration

requirement does not implicate the Act, the court concluded that such a requirement imposes no

restraint on liberty. Downin,

. Only those persons whose liberty is

actually restrained by their convictions are subject to the Act, and their sentences define the

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period of that restraint. Downin,

(citing Martin-Trigona,

111 Ill. 2d at 299

). The registration requirement is not an element of a defendant’s sentence, nor does it

purport to be part of a defendant’s punishment. Downin,

. Once a

defendant completes his sentence, his conviction is no longer an actual encumbrance, and he

does not need the Act’s remedial provisions to secure his liberty. Henderson,

; Downin,

; see also People v. Adams,

144 Ill. 2d 381, 387

(1991) (the duty to register as a sex offender is not punishment). Requiring a sex offender to

conviction. Downin,

2015 IL App (1st) 131073, ¶ 13

; see also People v. Cowart,

; People v. Presley,

2012 IL App (2d) 100617, ¶ 28

¶ 12 Applying the reasoning of Downin to our case, we reject defendant’s contention that he

has standing under the Act by virtue of his having to register as a sex offender. Any restraint on

defendant’s liberty relating to his conviction terminated upon his having completed his sentence.

See Carrera,

239 Ill. 2d at 253

(detention for purposes of possible deportation is not

imprisonment within the meaning of the Act, as the defendant had already served his sentence).

Therefore, he lacks standing to challenge his conviction under the Act.

¶ 13 Defendant endeavors to circumvent the holding of Downin by arguing that he has

“affirmative restraints” placed on him by his sex-offender status, such as his being prohibited

from being in certain places. See, e.g., 720 ILCS 5/11-9.3 (West 2010). That argument fails,

however, as any such restrictions are not part of his sentence or otherwise an actual restraint

arising from defendant’s conviction. They are, instead, merely collateral consequences of his

conviction. See Downin,

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