In re Detention of Powell

• Decision Date: 29 October 2003
• Docket Number: No. 1-02-1421.,1-02-1421.
• Citation: 279 Ill.Dec. 134,799 N.E.2d 937,344 Ill. App.3d 97
• Parties: In re DETENTION OF Harold POWELL (The People of the State of Illinois, Petitioner-Appellee, v. Harold Powell, Respondent-Appellant).
• Court: United States Appellate Court of Illinois

799 N.E.2d 937

344 Ill. App.3d 97

279 Ill.Dec. 134

In re DETENTION OF Harold POWELL (The People of the State of Illinois, Petitioner-Appellee, v. Harold Powell, Respondent-Appellant).

No. 1-02-1421.

Appellate Court of Illinois, First District, Third Division.

October 29, 2003.

Dennis A. Giovannini, David S. Olshansky, Giovannini & Olshansky, Chicago, for Appellant.

Lisa Madigan, Attorney General, Lisa A. Hoffman, Mark L. Josephson, Assistant Attorneys General, Chicago, for Appellee.

Justice HALL delivered the opinion of the court:

The respondent, Harold Powell, appeals from an order of the circuit court of Cook County denying his motion to dismiss the State's petition to commit him as a sexually violent person.

On September 25, 2000, the State filed a petition to commit the respondent as a sexually violent person pursuant to section 15 of the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/15 (West 2000)). The respondent filed a motion to dismiss the petition as untimely, alleging that the petition was filed more than 90 days prior to his entry into mandatory supervised release (MSR) or was not filed within 30 days of his entry into MSR, as required by section 15(b-5)(1) of the Act (725 ILCS 207/15(b-5)(1) (West 2000)).

At the hearing on the motion to dismiss, the respondent testified as follows.

The respondent was scheduled to be released from prison into MSR on September 30, 2000. On September 26, 2000, he was served with the State's commitment petition. On September 30, 2000, he was asked to sign his MSR papers. The respondent refused to sign the MSR papers because he wanted to serve his MSR in Tennessee and did not wish to accept parole in Illinois. Because he refused to sign the MSR papers, the respondent remained in prison. On March 14, 2001, the respondent signed the MSR papers due to the discontinuation of his blood pressure medication by the prison staff.

The circuit court denied the respondent's motion to dismiss, but certified the following question to this court:

"[w]hether the State's original Petition was untimely filed where it was not filed within 30 days of the respondent's release onto mandatory supervised release, or within 90 days after said release, as required by 725 ILCS 207/15(b-5)(1)."¹

This court allowed the respondent's appeal pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308).

Analysis

I. Standard of Review

Issues as to statutory construction are reviewed de novo. In re Detention of Lieberman, 201 Ill.2d 300, 307, 267 Ill.Dec. 81, 776 N.E.2d 218, 223 (2002); Revolution Portfolio, LLC v. Beale, 332 Ill.App.3d 595, 600, 266 Ill.Dec. 236, 774 N.E.2d 14, 19 (2002).

II. Construction of Statutes

In Lieberman, our supreme court set forth the applicable criteria courts should utilize in construing a statute, stating as follows:

"It is well settled that the primary objective of this court in construing the meaning of a statute is to ascertain and give effect to the intention of the legislature. [Citation.] All other rules of statutory construction are subordinate to this cardinal principle. [Citations.] We determine legislative intent by examining the language of the statute, which is `the most reliable indicator of the legislature's objectives in enacting a particular law.' [Citations.] The statutory language is to be given its plain, ordinary and popularly understood meaning [citation], and we are to afford the statutory language the fullest, rather than narrowest, possible meaning to which it is susceptible [citation].

Because all provisions of a statutory enactment are viewed as a whole [citations], words and phrases should not be construed in isolation, but must be interpreted in light of other relevant provisions of the statute [citations]. Each word, clause and sentence of the statute, if possible, must be given reasonable meaning and not rendered superfluous. [Citations.] Accordingly, in determining the intent of the legislature, the court may properly consider not only the language of the statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved. [Citations.] `Legislative intent can be ascertained from a consideration of the entire Act, its nature, its object and the consequences that would result from construing it one way or the other.' [Citations.] In construing a statute, we also presume that the General Assembly, in its enactment of legislation, did not intend absurdity, inconvenience or injustice. [Citations.] `Statutes must be construed in the most beneficial way which their language will permit so as to prevent hardship or injustice, and to oppose prejudice to public interests.' [Citations.]" Lieberman, 201 Ill.2d at 307-09, 267 Ill.Dec. 81, 776 N.E.2d at 223-24.

Finally, where the language of a statute is clear and unambiguous, it will be given effect without resort to other aids for construction. People v. Woodard, 175 Ill.2d 435, 443-44, 222 Ill.Dec. 401, 677 N.E.2d 935, 939 (1997). Criminal or penal statutes are to be strictly construed in favor of an accused, and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. Woodard, 175 Ill.2d at 444, 222 Ill. Dec. 401, 677 N.E.2d at 939.

With these criteria in mind, we turn to section 15(b 5)(1) of the Act.

III. Discussion

We observe, first, that the question, as certified by the circuit court, presupposes that the respondent's MSR did not commence on September 30, 2000. However, the State's argument on appeal, in part, is that the respondent had entered upon MSR as of September 30, 2000.

There is a split among the authorities as to the scope of review of an appeal under Rule 308 as it relates to certified questions. Arriola v. Time Insurance Co., 323 Ill.App.3d 138, 142, 256 Ill.Dec. 168, 751 N.E.2d 221, 224 (2001). In Arriola, a division of this court followed the view that the appellate court is not limited to reviewing the question presented but may also consider the appropriateness of the order giving rise to the appeal. See Arriola, 323 Ill.App.3d at 142, 256 Ill.Dec. 168, 751 N.E.2d at 224.²

However, in Levy v. Markal Sales Corp., 311 Ill.App.3d 552, 244 Ill.Dec. 120, 724 N.E.2d 1008 (2000), this division held that review of an appeal under Rule 308 was strictly limited to the question identified by the circuit court's order and would not be expanded on appeal to encompass other matters that could have been included but were not. Arriola, 323 Ill.App.3d at 142, 256 Ill.Dec. 168,751 N.E.2d at 224; Levy, 311 Ill.App.3d at 554,244 Ill.Dec. 120,724 N.E.2d at 1009.

The issue of whether the respondent was on MSR as of September 30, 2000, was argued before the circuit court. The circuit court rejected the argument that by refusing to sign the MSR papers, an inmate could control when his MSR commenced. The circuit court concluded that the State had the right to rely on the "anticipated" date of release.

Therefore, the question of whether the defendant entered into MSR on September 30, 2000, or March 14, 2001, will not be addressed on this appeal. See Levy, 311 Ill.App.3d at 554, 244 Ill.Dec. 120, 724 N.E.2d at 1009-10 (issue of retroactivity, while relevant, would not be reviewed, where that issue had been addressed before the circuit court, and the certified question was solely concerned with the applicable limitations period).

The issue presented by the certified question is, therefore, whether the filing requirements of section 15(b-5)(1) are mandatory or merely directory. Illinois courts have not previously addressed this question.

Section 15(b-5)(1) provides inpertinent part as follows:

"(b-5) The petition must be filed:

(1) No more than 90 days before discharge or entry into mandatory supervised release from a Department of Corrections correctional facility for a sentence that was imposed upon a conviction for a sexually violent offense * * * and no more than 30 days after the person's entry into parole or mandatory supervised release[.]" 725 ILCS 207/15(b-5)(1) (West 2000).

The use of the words "must" or "shall" is generally regarded as mandatory. Andrews v. Foxworthy, 71 Ill.2d 13, 21, 15 Ill.Dec. 648, 373 N.E.2d 1332, 1335, (1978). When a statute prescribes the performance of an act by a public official or a public body, the question of whether it is mandatory or directory depends upon its purpose. Andrews, 71 Ill.2d at 21, 15 Ill. Dec. 648, 373 N.E.2d at 1335. If the provision merely directs a manner of conduct for the guidance of the officials or specifies the time for the performance of an official duty, it is directory, absent negative language denying the performance after the specified time. Andrews, 71 Ill.2d at 21, 15 Ill.Dec. 648, 373 N.E.2d at 1335. If, however, the conduct is prescribed in order to safeguard someone's rights, which may be injuriously affected by failure to act within the specified time, the statute is mandatory. Andrews, 71 Ill.2d at 21, 15 Ill.Dec. 648, 373 N.E.2d at 1335-36.

In Brennan v. Illinois State Board of Elections, 336 Ill.App.3d 749, 271 Ill.Dec. 300, 784 N.E.2d 854 (2002), the reviewing court held that a statutory provision providing that the board of elections "shall" render its judgment within 60 days was directory because there was no penalty for failing to comply with the provision, and there was nothing to suggest that the plaintiff's rights were adversely affected by the board's failure to enter a final judgment within 60 days. Brennan, 336 Ill.App.3d at 759-61, 271 Ill.Dec. 300, 784 N.E.2d at 862-63.

Section 15(b-5)(1) does not specify a penalty for the State's failure to comply with the time limitations for filing the petition. However, the respondent argues that his liberty rights were adversely affected by the State's failure to file the petition in accordance with those limitations.

"`[T]he presence of a parole system by itself does not give rise to a constitutionally protected interest in parole...