2015 IL App (2d) 140885
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
2015 IL App (2d) 140885
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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records of past convictions. People v. Henderson, 2011 IL App (1st) 090923, ¶ 10 (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, 2011 IL App (1st) 090923, ¶ 11. 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, 2011 IL App (1st) 090923, ¶ 11. 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, 2011 IL App (1st) 090923, ¶ 11.
Collateral consequences resulting from a conviction are not actual restraints on liberty sufficient
to implicate the Act. People v. Rajagopal, 381 Ill. App. 3d 326, 331 (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, 394 Ill. App. 3d at 146. 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, 394 Ill. App. 3d at 146 (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, 394 Ill. App. 3d at 146. 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, 2011 IL App (1st)
090923, ¶ 11; Downin, 394 Ill. App. 3d at 146; 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
register imposes no actual restraint on his liberty and is merely a collateral consequence of his
conviction. Downin, 394 Ill. App. 3d at 146; see also People v. Cowart, 2015 IL App (1st)
131073, ¶ 13; 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, 394 Ill. App. 3d at 146.
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¶ 14 Because registering as a sex offender is not part of defendant’s sentence, does not place
any actual restraint on his liberty, and is merely a collateral consequence of his conviction,
defendant lacks standing to bring a petition under the Act.
¶ 15 III. CONCLUSION
¶ 16 For the reasons stated, we affirm the judgment of the circuit court of Du Page County
dismissing defendant’s postconviction petition.
¶ 17 Affirmed.
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