dissenting:
I respectfully dissent. I would hold that the Act is not applicable to the respondent.
The trial court framed well the discussion of the issue herein as follows: “Two of [Derry’s] McDonough County offenses are sexually violent offenses. Neither Schuyler County offense is a sexually violent offense. Since [Derry] was discharged from his McDonough County sentences more than 11 years before the petition was filed in this case, the petition was timely only if the language added to the statute by the August 14, 1998, amendment can be properly applied to the facts in this case.”
Respondent maintains that when the Act went into effect on January 1, 1998, it did not apply to him. As originally enacted, the Act required a petition to be filed within 90 days of a respondent’s discharge or entry into MSR for a sexually violent offense. On January 1, 1998, respondent’s sexually violent offense had been discharged for some 11 years. There is no question that on January 1, 1998, respondent was serving a sentence consecutive to a sexually violent offense. He began serving the Schuyler County counts in October 1992, and he was discharged from the sentences on the sexually violent offenses on December 10, 1993.
Given the statutory language of the Act, and the fact that respondent was not serving a term of imprisonment for a sexually violent offense under that Act, it is clear that on January 1, 1998, the Act did not apply to respondent. However, what is important in the instant matter is whether the August 14, 1998, amendment to the Act applied to respondent.
At issue is the statutory construction and the retroactive effect of the 1998 amendment to the Act. In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27 (2001), our supreme court adopted the retroactivity analysis set forth by the United States Supreme Court in Landgraf v. USI Film Productions, 511 U.S. 244, 280, 128 L. Ed. 2d 229, 261-62, 114 S. Ct. 1483, 1505 (1994). Under that analysis, “the first question is whether the legislature has clearly indicated the temporal reach of [the] amended statute.” Caueney v. Bower, 207 Ill. 2d 82, 91 (2003). If the legislature has so indicated, that expression of legislative intent must, absent a constitutional prohibition, be given effect. But when the legislature has not clearly indicated the amendment’s temporal reach, a second question must be answered: would applying the statute have a retroactive impact, i.e., would the amended statute “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed”? Caveney, 207 Ill. 2d at 91. If there would be a retroactive impact, “the court must presume that the legislature did not intend it to be so applied.” Caveney, 207 Ill. 2d at 91.
Here, there is no clear expression of legislative intent regarding the temporal reach of the 1998 amendment. The only reference to an effective date of the amendment is the indication in the codified public act (Pub. Act 90 — 793, §20, eff. August 14, 1998 (amending 725 ILCS 207/30)). See People v. Woodard, 367 Ill. App. 3d 304, 323 (2007).
There is no reported case dealing with the same facts as the matter herein. One reported case, In re Detention of Gardner, 307 Ill. App. 3d 85 (1999), which discusses the issue of the 1998 amendment, has some relevance. In Gardner, the respondent had been convicted of aggravated criminal sexual abuse in February 1995 and was sentenced to five years’ imprisonment. In December 1996, the respondent was placed on two years MSR and released from the correctional center. In April 1997, he was sentenced to 26 months for failing to report his change of address under the sexual offenders registration statute. The 26 months were to be served concurrently with the remainder of his sexual abuse sentence. His sentence on the sexual abuse convictions was recalculated to extend until February 21, 1998. On that date, he was released from custody. However, he was still on MSR for the failure to report the address change offense. On October 2, 1998, he was again incarcerated for violating the MSR terms on the failure to report address change violation. His release was recalculated to November 28, 1998, and the State filed its “SVPCA” petition on November 24, 1998. The respondent moved to dismiss the petition, and the trial court granted the motion, holding that the August amendment did not apply to a situation where an offender had been placed on MSR, returned to prison after violating MSR, and subsequently discharged directly from prison. Gardner, 307 Ill. App. 3d at 89. The appellate court reversed, holding that MSR is part of the offender’s sentence and, therefore, he is not discharged until his MSR is completed. Gardner, 307 Ill. App. 3d at 91.
While Gardner appears to be applicable to the instant case, there is one key distinction. In Gardner, on January 1, 1998, the offender was serving a sentence for a sexually violent offense (the sexual abuse offense sentences were in effect until February 21, 1998). Thus, when the statute was amended on August 1, 1998, the amendment did not have the effect of bringing him within the purview of the Act. This also explains the fact that there is no discussion of retroactive application of the amendment in Gardner. Thus, I would find that Gardner is factually distinguishable from the instant matter and is not helpful to our inquiry regarding the retroactive application of the August 1, 1998, amendment.
In In re Detention of Lieberman, 201 Ill. 2d 300 (2002), the State filed a petition under the Act against Lieberman as he approached release from prison. Lieberman had been sentenced in 1980 for the crime of rape. In 1986, the legislature had abolished the crime of rape and replaced it with the offense of criminal sexual assault. The Act that went into effect on January 1, 1998, defined a sexually violent assault to include criminal sexual assault but did not list the offense of rape. When the petition was filed, Lieberman moved to dismiss, alleging that rape was not defined as a sexually violent offense. The court denied Lieberman’s motion to dismiss and Lieberman took his appeal. While the matter was pending on appeal, the legislature amended the Act to include rape as a sexually violent offense. On appeal to our supreme court, the State made two arguments. First it argued that, when the legislature changed the law in 1986 abolishing rape and creating criminal sexual assault, it had been the intent of the legislature to “subsume” rape into criminal sexual assault. Second, it argued that the amendment applied to Lieberman since its purpose was merely to “clarify” that the legislature intended to include rape in the list of sexually dangerous offenses. Lieberman, 201 Ill. 2d at 310-11. The court accepted the argument that rape had been subsumed into criminal sexual assault and so affirmed the trial court’s denial of Lieberman’s motion to dismiss. However, the court expressly rejected the argument that the amendment could be applied to Lieberman. In a footnote, the court observed:
“We note that the amendment to the Commitment Act does not apply to [the] respondent. A statutory amendment cannot be given retroactive effect in the absence of a clear expression of legislative intent to do so. Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38-39 (2001).” Lieberman, 201 Ill. 2d at 321 n.3.
In the instant matter, respondent argues that this footnote indicates our supreme court’s rejection of retroactive application of the amendment. I would agree. In Lieberman, the footnote clearly indicates the court’s observation that, had the State been attempting to argue that the amendment brought Lieberman under the purview of the Act, the court would have dismissed the petition. Lieberman was under the purview of the Act, not because of the amendment, but because, according to the court, he always was under the purview of the Act. Contrasting the facts in Lieberman with the facts in the instant matter, respondent was not amenable to a petition under the Act because he was not under its purview covered under the Act when it was initially passed. He was not serving a sentence for a sexually violent offense when the Act was passed, so it clearly did not impact him when the Act became effective.
The State suggests that In re Detention of Gavin, 382 Ill. App. 3d 946 (2008), supports the finding of the trial court. I would disagree. In Gavin, the court was asked to interpret an amendment to the Act which took effect in 2007. The Gavin court noted that the respondent was covered by the Act prior to the amendment. The court noted that the amendment did not affect the respondent’s eligibility for commitment under the pre-amendment statute. Specifically, the court noted that the respondent “was eligible for commitment pursuant to the 2006 version of the statute, and the amendment [did] not somehow make him ineligible. Gavin, 382 Ill. App. 3d at 951. Thus, Gavin is distinguishable from the instant matter in that respondent, unlike Gavin, was not covered by the original statute.
I believe that the majority’s reliance upon In re Detention of Samuelson, 189 Ill. 2d 548 (2000), is misplaced. Samuelson addressed the constitutionality of the Act in the context of constitutional prohibitions against ex post facto laws and double jeopardy. Samuelson, 189 Ill. 2d at 568-69. The instant matter is distinguishable from Samuelson in that the respondent in Samuelson was currently serving a sentence for aggravated criminal sexual assault and aggravated criminal sexual abuse, both of which were sexually violent offenses under the Act. Samuelson, 189 Ill. 2d at 557. In contrast, as noted in the certified question to this court, the respondent had been discharged from the sentences for any sexually violent offenses over 11 years prior to the filing of the petition. Thus, Samuelson is of little guidance in the instant matter.
It is clear that the facts in this case are unique and this ruling would likely have no effect on anyone other than this respondent; but to quote an old saying, “every tub rests on its own bottom.” I would find that respondent should have the relief sought.
For the foregoing reasons, I would find that the Act was not applicable to this respondent. I would reverse the decision of the circuit court of McDonough County and remand for entry of an order denying the petition.