NO. 4-04-0896

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE STEIGMANN delivered the opinion of the court:

Following an August 2004 stipulated bench trial, thetrial court found defendant, Charles A. Henderson, guilty offailure to register as a sex offender (730 ILCS 150/3(a) (West2002)). The court later sentenced him to 30 months' probation,subject to various conditions.

Defendant appeals, arguing that the trial court erredby excluding evidence that he was not given 10 days to registerfollowing his release from confinement, as required by statute. We agree and reverse.

I. BACKGROUND

Initially, we note that although both parties refer todefendant as having been released on "parole," he had in factbeen released on mandatory supervised release. As part of PublicAct 80-1099 (Pub. Act 80-1099, eff. February 1, 1978 (1977 Ill.Laws 3264)), which included sweeping changes to the Unified Codeof Corrections, the concept of parole was eliminated and mandatory supervised release (MSR) was created. See 730 ILCS 5/3-3-1(West 2002) (setting forth the guidelines regarding the establishment and appointment of the Prisoner Review Board); see also730 ILCS 5/3-3-3(c) (West 2002) (providing that individualssentenced after the effective date shall be released under MSRafter serving their determinate sentence minus their accruedcredit for good behavior); People v. Whitfield, No. 98136, slipop. at 8 (October 6, 2005), ___ Ill. 2d ___, ___, ___ N.E.2d ___,___ (noting that "parole" is now called "mandatory supervisedrelease"). Nonetheless, because both defendant and the State usethe term "parole" in their appellate briefs, we will use thatterm as well.

The following facts are gleaned from the record and notdisputed. On May 13, 2003, defendant, who previously had beenconvicted of (attempt) predatory criminal sexual assault andmultiple counts of child pornography, was released on MSR fromthe Taylorville Correctional Facility. An Illinois Department ofCorrections (DOC) employee met with defendant that day andnotified him in writing of his obligation to register as a sexoffender within 10 days of his release. DOC also issued defendant written instructions to proceed directly to his Bloomingtonresidence and immediately check in by telephone with the "parolecontrol center." DOC also directed defendant that after makingcontact, he was to remain in his residence until his parole agentmade an initial visit. The DOC reporting instructions concludedas follows: "If you do not comply with this reporting requirement, you will be considered to be in violation of your releaseagreement and a warrant may be issued for your arrest."

As instructed, defendant remained in his residenceuntil 6 p.m. on May 15, 2003, when his parole officer visitedhim. Following this visit, defendant was free to leave hisresidence. On May 24, 2003, Bloomington police officer BrianBrown arrested defendant for failing to register as a sex offender within 10 days of his "discharge, parole[,] or release"from DOC, in violation of section 3(a) of the Sex OffenderRegistration Act (730 ILCS 150/3(a) (West 2002)).

In June 2003, defendant moved to dismiss the charge,arguing, in part, that he had not been given 10 days followinghis release from confinement in which to comply with the statute. In August 2003, following a hearing, the trial court denieddefendant's motion.

In August 2004, the State moved in limine to excludeevidence of the DOC order requiring defendant to remain in hisresidence until visited by his parole officer. The State arguedthat (1) the Act does not provide for an extension of the 10-daytime period in which to register based on the reportinginstructions given defendant by DOC, and (2) defendant thus hadto register within 10 days of walking out of the Taylorvillefacility on May 13, 2003. Following a hearing that same day, thecourt granted the State's motion, upon determining that nothingin the statute provided for an extension of the time period forregistration based on a DOC order. Defendant then waived hisright to a jury, and the case proceeded to a stipulated benchtrial. The court found defendant guilty of failure to registeras a sex offender and later sentenced him as stated.

This appeal followed.

II. THE TRIAL COURT’S EXCLUSION OF EVIDENCE OF THE DOC ORDER

Defendant argues that the trial court erred by excluding evidence of the DOC order instructing him to remain in hisresidence until visited by his parole officer or risk beingarrested. Specifically, he contends that under the Act, he was"confined" until his parole officer's visit ended. Thus, becausethe statutory clock began to run when he was free to leave hisresidence following his parole officer's visit on the evening ofMay 15, 2003, his May 24, 2003, arrest was premature. We agree.The Act requires an individual who has been convictedof a crime defining him as a sex offender or sexual predator toregister with the chief of police in the municipality in which heresides. 730 ILCS 150/3(a) (West 2002). Section 3(c)(4) of theAct discusses the inability of an individual to register as aresult of being in state custody, as follows: "Any person unableto comply with the registration requirements of this [a]rticlebecause he or she is confined, institutionalized, or imprisoned*** shall register in person within 10 days of discharge, parole[,] or release." 730 ILCS 150/3(c)(4) (West 2002).

Our primary objective when construing the language of astatute is to give effect to the intent of the legislature,presuming that it did not intend to produce absurd or unjustresults. In re Madison H., 215 Ill. 2d 364, 372, 830 N.E.2d 498,503-04 (2005). If we can ascertain intent from the plain meaningof the statute itself, that intent must prevail. People v.Blair, 215 Ill. 2d 427, 442-43, 831 N.E.2d 604, 614 (2005).

The central question is whether defendant was "confined" in his residence until he was "released" following thevisit by his parole officer. "Confine" is defined in thedictionary as "to hold within a location." Merriam-Webster’sCollegiate Dictionary 241 (10th ed. 2000). "Confinement" isdefined as "the state of being imprisoned or restrained." (Emphasis added.) Black’s Law Dictionary 294 (7th ed. 1999). "Release" is defined as "the fact of being freed from restraintor confinement." Black’s at 1292.

Giving those words their plain and ordinary meaning, weconclude that defendant was "confined" in his residence underthreat of arrest from the time he arrived there on May 13, 2003,until his "release" on May 13, 2003, following the visit from hisparole officer. Thus, during that two-day period, defendant was"unable to comply with the registration requirements" of section3(c)(4) of the Act (730 ILCS 150/3(c)(4) (West 2002)). In otherwords, the clock did not begin to run for the purpose of the Actuntil the evening of May 15, 2003, when defendant was first freeto leave his residence. His arrest nine days later was thuspremature. Accordingly, because the DOC order instructingdefendant to remain in his residence until visited by his paroleofficer or risk being arrested was clearly relevant to the chargeagainst him, the trial court abused its discretion by excludingthat evidence. See People v. Cookson, 215 Ill. 2d 194, 204, 830N.E.2d 484, 490 (2005) (the trial court's decision whether toadmit evidence is reviewed under an abuse-of-discretion standard). Had the DOC order been admitted, the State could not havemet its burden of proving beyond a reasonable doubt that defendant committed the offense of failing to register as a sexoffender. Thus, we reverse defendant's conviction.

In so concluding, we note that the legislature intendedfor individuals subject to the Act to have 10 days of freedom inwhich to fulfill their obligation to register. Our interpretation not only comports with common sense, but also avoids thepotentially absurd result of a defendant’s home confinementlasting more than 10 days and thus effectively denying him anyopportunity to register under the Act.

As a final matter, we note that as a matter of policy,the interests of law enforcement were not served in this case,where defendant was subjected to conflicting orders. When DOCinstructs a released inmate to remain in his residence untilcleared to leave by his parole officer, the released inmateshould be able to obey that order to the letter without fear thatsome other government agents will jail him for doing so.

IV. CONCLUSION

For the reasons stated, we reverse the trial court’sjudgment.

Reversed.

TURNER and APPLETON, JJ., concur.