Lesher v. Trent

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Lesher v. Trent

State: Illinois

Court: 5th District Appellate

Docket No: 5-09-0402 Rel

Case Date: 03/03/2011

Preview:NO. 5-09-0402
NOTICE Decision filed 03/03/11. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Clinton County. No. 08-MR-87

disposition of the same.

WADE LESHER, Plaintiff-Appellant, v. LARRY TRENT, Director, Illinois State Police; JORGE MONTES, Chairman, Illinois Prisoner Review Board; and ROGER E. WALKER, JR., Director, Illinois Department of Corrections, Defendants-Appellees.

Honorable William J. Becker, Judge, presiding.

PRESIDING JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion. OPINION The plaintiff, Wade Lesher, appeals an order of the trial court dismissing his complaint for a writ of mandamus . The complaint sought to compel the defendants to correct an alleged error in public records showing that the plaintiff remained subject to registration under the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2008)). The defendan ts filed a motion to dismiss, arguing that the plaintiff had not alleged facts demonstrating that they had a clear duty to take the requested action. The trial court agreed and dismissed the mandamus complaint. On appeal, the plaintiff argues that (1) the court erred in finding he did not demonstrate a clear right to relief and (2) the trial judge was not fair and impartial. At issue is whether a 2008 amendment to the Sex Offender Registration Act applies to the plaintiff. We affirm. The Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2008)) requires

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people convicted of certain enumerated sex offenses to register with local law enforcement officials for a period of 10 years after being released from prison. 730 ILCS 150/3, 7 (West 2008). At issue in this case is whether a provision that tolls the 10-year registration period during periods of reincarceration is applicable. The plaintiff became subject to the registration requirement after he was convicted of aggravated criminal sexual abuse. The defendants are the director of the Illinois State Police, the chairman of the Illinois Prisoner Review Board, and the director of the Illinois Department of Corrections. The plaintiff was convicted of aggravated criminal sexual abuse in 1991. He was released from prison in December 1994, and the period of mandatory supervised release on that charge ended in January 1997. He was subsequently incarcerated six more times on various unrelated charges. Two periods of incarceration are relevant for purposes of this appeal. In 2002, the plaintiff was incarcerated for three months and released on November 22. The record does not reveal what charges led to this incarceration. Although apparently the defendants initially believed that this offense was related to the plaintiff's 1991 sex offense, they later determined that there was no reason to believe that this period of incarceration was related to the original offense or any other sex offense. From July 2003 through January 2009, the plaintiff was again incarcerated, this time on charges of robbery and residential burglary. At some point, shortly before his release, he learned that he was expected to comply with the requirements of the Sex Offender Registration Act upon his release. In December 2008, the plaintiff filed a pro se complaint for a writ of mandamus . He requested that the defendants be ordered to "correct the public records" to reflect the fact that his duty to comply with the Sex Offender Registration Act ended 10 years after his 1994 release from prison on the aggravated-criminal-sexual-abuse charge.

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The defendants filed a motion to dismiss, arguing that the plaintiff was not entitled to the relief requested because he was required to register until November 2012. This date was based on a release date of November 2002. As previously noted, the defendants mistakenly believed that the defendant's three-month incarceration in 2002 was related to his original sex offense. They later acknowledged that this was a mistake. They argued, however, that a 2008 amendment to the Sex Offender Registration Act was retroactively applicable. Prior to June 2008, the Sex Offender Registration Act provided that a sex offender must register for a period of 10 years after a final discharge or release. 730 ILCS 150/7 (West 2006). Another provision required offenders to register in person with law enforcement agencies, a requirement that would be impossible to comply with while incarcerated. 730 ILCS 150/3 (West 2006). However, the statute did not expressly address the effect of periods of reincarceration until the 2008 amendment specifically provided that those periods would toll the running of the 10-year registration period. 730 ILCS 150/7 (West 2008); Pub. Act 95-513 (eff. June 1, 2008). The defendants pointed out that the Sex Offender Registration Act and previous amendments to the act have been held to be retroactively applicable. See People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433, 438 (2000); Miranda v. Madigan , 381 Ill. App. 3d 1105, 1109, 888 N.E.2d 158, 162 (2008). Thus, they argued that the 2008 amendment was applicable retroactively as well. The court agreed with this argument and, therefore, dismissed the plaintiff's complaint for mandamus . The plaintiff filed a motion to reconsider, which the court denied. This appeal followed. On appeal, the plaintiff argues that the trial court erred in dismissing his complaint because he showed that the defendants had a clear duty to act. This is so, he argues, for three reasons. First, he argues that the defendants did not have the authority to extend the period during which he was required to register as a sex offender. We note that, in substance, this is an argument that the provision in the 2008 amendment does not apply to him. Second, the

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plaintiff argues that the retroactive application of the amendment constitutes an impermissible ex post facto punishment. Third, he contends that because the defendants failed to notify him of the 2008 amendment, they cannot now "reap the rewards" of applying the amendment to him. The plaintiff further contends that we must reverse because the trial judge was not fair and impartial. We reject all four contentions. In order to be entitled to mandamus relief, a plaintiff must show that a public official has a clear duty to perform some nondiscretionary official act. Rodriguez v. Illinois Prisoner Review Board , 376 Ill. App. 3d 429, 433-34, 876 N.E.2d 659, 663-64 (2007). In this case, whether the defendants have a clear duty to act depends on whether the plaintiff is still required to register under the Sex Offender Registration Act. This, in turn, depends on whether the 10-year registration period is tolled during periods of incarceration. To answer that question, we must determine whether the provision contained in the 2008 statutory amendment applies to the plaintiff. As we noted earlier, the plaintiff frames the question as whether the defendants have the authority to extend the period during which he is required to register. We disagree with this characterization because the defendants' authority to require the plaintiff to register is prescribed by statute. The question is not whether they can extend the registration requirement beyond the period imposed by statute; clearly, they cannot do so, and they do not argue that they can. Instead, the question is whether they have correctly determined that the statute still requires the plaintiff to register. In response, the defendants argue that the amendment was not a change in the law at all. Instead, the defendants contend, the 2008 amendment merely clarified existing law. They acknowledge that they did not raise this argument to the trial court, but they urge us to consider it because an appellate court may affirm a trial court's ruling on any basis appearing in the record. See Rodriguez, 376 Ill. App. 3d at 433, 876 N.E.2d at 663. Alternatively, they argue that the court correctly determined that the amendment applies

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retroactively. We find that the amendment merely clarifies existing law. Prior to the 2008 amendment, the statute provided, in relevant part, as follows: "Any *** person who is required to register *** shall be required to register for a period of 10 years after conviction or adjudication if not confined to a penal institution, hospital[,] or any other institution or facility, and if confined, for a period of 10 years after parole, discharge[,] or release from any such facility. *** Liability for registration terminates at the expiration of 10 years from the date of conviction or adjudication if not confined to a penal institution, hospital[,] or any other institution or facility and if confined, at the expiration of 10 years from the date of parole, discharge[,] or release from any such facility ***." 730 ILCS 150/7 (W est 2006). The 2008 amendment added the following sentence: "Reconfinement due to a violation of parole or other circumstances that do not relate to the original conviction or adjudication shall toll the running of the balance of the 10-year period of registration, which shall not commence running until after final parole, discharge, or release." 730 ILCS 150/7 (West 2008); Pub. Act 95-513 (eff. June 1, 2008). Another provision of the Sex Offender Registration Act has always required sex offenders to register in person with local law enforcement agencies. 730 ILCS 150/3 (West 2006). Obviously, it is not possible for an offender who is incarcerated on an unrelated charge to comply with this requirement. Thus, prior to the 2008 amendment, the statute was ambiguous regarding whether it required a sex offender to register for a total of 10 years or until 10 years had elapsed, regardless of how much of that time the offender is actually out of prison and able to comply with the registration requirements. For the reasons that follow, we find that the 2008 amendment clarifies this ambiguity. When interpreting a statute, we must read the statute as a whole and consider the

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purpose for which it was enacted. People v. Davis , 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). The purpose of the Sex Offender Registration Act is to enhance public safety by enabling law enforcement agencies to keep track of sex offenders. Malchow, 193 Ill. 2d at 420, 739 N.E.2d at 438. Construing the pre-2008 version of section 7 in light of this purpose, we find that it was always intended to require an offender to register for a total of 10 years. If a sex offender remains at large for 10 years without reoffending, it seems reasonable to conclude that he is unlikely to reoffend. Thus, allowing his duty to register to expire 10 years after his release fully serves the purpose of enhancing public safety. On the other hand, if an offender is in prison for much of the 10 years with no opportunity to reoffend, it is not as clear that he no longer poses a danger to the community. Thus, the purpose of the registration requirement is only served if such an offender is required to register as a sex offender for a total of 10 years. We thus conclude that the statute has always required sex offenders to register for a total of 10 years, and the 2008 amendment merely clarified this requirement. The plaintiff next contends that the retroactive application of the amendment increases the punishment for his offense in violation of the constitutional prohibitions on ex post facto punishment. See U.S. Const., art. I,

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