People v. Steward ( 2010 )

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
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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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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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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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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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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
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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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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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