In re COMMITMENT OF CHRISTOPHER L. DERRY (The People of the State of Illinois, Petitioner-Appellee, v. Christopher L. Derry, Respondent-Appellant), 393 Ill. App. 3d 482

JUSTICE CARTER delivered the opinion of the court: The respondent, Christopher L. Derry, filed an interlocutory appeal from an order denying his motion to dismiss the State’s petition to commit the respondent under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2004)). The following question was certified for appeal: Is respondent subject to commitment under the August 14, 1998, amendment of the Sexually Violent Persons Commitment Act? We answer that question in the affirmative and thus affirm the trial court’s order denying the motion to dismiss.

FACTS The respondent was convicted of aggravated criminal sexual assault in two separate cases in 1986 and sentenced to concurrent terms of 12 years’ imprisonment. In January 1992, the respondent was released on mandatory supervised release (MSR). In October 1992, while still serving his MSR, the respondent was convicted of armed violence and aggravated unlawful restraint. He was sentenced to concurrent terms of 25 years for the armed violence conviction and 10 years for aggravated unlawful restraint conviction.

In addition, the respondent’s MSR was revoked, and he was ordered to serve the remainder of his sentences on the aggravated criminal sexual assault convictions. The sentencing orders were silent as to whether the sentences for the October 1992 convictions were to be served consecutively or concurrently to the sentences for the aggravated criminal sexual assault convictions. He was discharged from the sentences for aggravated criminal sexual assault on December 10, 1993.

He remained in the custody of the Department of Corrections to serve his sentences for the armed violence and aggravated unlawful restraint convictions. On May 17, 2005, five days before his scheduled release on MSR, the State filed a petition to declare the respondent a sexually violent person. A probable cause hearing was held the next day, and the court found probable cause that the respondent was a sexually violent person. The court entered an order that the respondent be held by the Department of Human Services pending trial on the petition.

On November 18, 2005, the respondent filed a motion to dismiss the petition. The trial court denied the motion, and the respondent filed the present interlocutory appeal. ANALYSIS Our review of this case is strictly limited to the question certified by the trial court. In re Detention of Bailey, 317 Ill. App. 3d 1072, 1076, 740 N.E.2d 1146, 1150 (2000). Our review of the certified question is de novo. Bailey, 317 Ill. App. 3d at 1076, 740 N.E.2d at 1150. The respondent contends that the August 1998 amendment to the Act was retroactively applied to him.

The State maintains that the statute is not being applied retroactively in this case. Alternatively, the State argues that the plain language of the statute expresses the legislature’s intent to apply the statute to a person in the position of the respondent and that the amendment is procedural. Under the Act, a sexually violent person is one who has been convicted of a sexually violent offense and who suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. 725 ILCS 207/5(f) (West 2004).

A person who is found after trial to be a sexually violent person shall be committed to the custody of the Department of Human Services for control, care and treatment until the person is no longer a sexually violent person. 725 ILCS 207/40(a) (West 2004). When originally enacted on January 1, 1998, the Act provided that a petition under the Act must be filed within 90 days of discharge or entry into MSB, for a sentence imposed upon a conviction for a sexually violent offense. 725 ILCS 207/15 (West 1998).

The Act was amended, effective August 14, 1998, to provide that a petition must be filed within the above time frame or within 90 days of discharge or entry into MSB for “a sentence that is being served concurrently or consecutively with a sexually violent offense.” 725 ILCS 207/15(b — 5)(1) (West 2004). In this case, the respondent was discharged from his sentences for sexually violent offenses on December 10, 1993. Thus, under the timing provision of the Act as enacted in January 1998, the respondent was not eligible for commitment as a sexually violent person.

The respondent became eligible for commitment, however, under the August 1998 amendment to the statute, which expanded the time frame to include sentences being served concurrently or consecutively with a sentence for a sexually violent offense. On appeal, the respondent does not dispute the trial court’s finding that he served his sentences for armed violence and aggravated unlawful restraint concurrently to his sentences for aggravated criminal sexual assault. 730 ILCS 5/5 — 8—4(a) (West 2006) (“Sentences shall run concurrently unless otherwise specified by the court”).

Bather, the respondent argues that the August 1998 timing amendment was retroactively applied to him and that such a retroactive application was improper. “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment *** or upsets expectations based in prior law.” Landgraf v. USI Film Products, 511 U.S. 244, 269, 128 L. Ed. 2d 229, 254-55, 114 S. Ct. 1483, 1499 (1994). “Bather, the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf, 511 U.S. at 269-70, 128 L.

Ed. 2d at 255, 114 S. Ct. at 1499. A statute has a retroactive impact when it impairs rights a party possessed when he acted, increases a party’s liability for past conduct, or imposes new duties with respect to transactions already completed. Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 38, 749 N.E.2d 964, 971 (2001), quoting Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 261-62, 114 S. Ct. at 1505. We disagree with the respondent’s assertion that the statute was applied retroactively in this case.

In essence, the respondent argues that the amended Act may not be applied to him because he had already been discharged from his sentence for aggravated criminal sexual assault, though still serving his concurrent sentences for armed violence and aggravated unlawful restraint, when the Act and subsequent amendment of the timing provision took effect. However, the event in suit or controversy in this case is the respondent’s current mental condition, not his past conduct. The Illinois Supreme Court has held that the Act does not have a retroactive effect.

In re Detention of Samuelson, 189 Ill. 2d 548, 558-59, 727 N.E.2d 228, 234-35 (2000); see also Kansas v. Hendricks, 521 U.S. 346, 369-71, 138 L. Ed. 2d 501, 519-21, 117 S. Ct. 2072, 2085-86 (1997) (holding that similar law did not raise ex post facto concerns because the law did not have a retroactive effect). A person involuntarily committed under the Act is not committed for past conduct.

Samuelson, 189 Ill. 2d at 559, 727 N.E.2d at 235. “Involuntary commitment is permissible only where the defendant presently suffers from a mental disorder and the disorder creates a substantial probability that he will engage in acts of sexual violence in the future.” Samuelson, 189 Ill. 2d at 559, 727 N.E.2d at 235. The Act, including the amended timing provision, was not retroactively applied to the respondent.

The timing provision had been in effect for nearly seven years when the petition to commit the respondent was filed, and that provision did not have any retroactive impact on his past conduct, transactions, or rights. Rather, the Act concerns a person’s present mental condition. The fact that the respondent had already completed his sentence for aggravated criminal sexual assault when the Act and the August 1998 amendment was put into effect does not render its application to the respondent retroactive. Thus, the respondent is subject to commitment under the August 1998 amendment to the Act.

The trial court did not err by denying the respondent’s motion to dismiss. Accordingly, we affirm the judgment of the McDonough County circuit court. Affirmed. SCHMIDT, J., concurs.