In re Detention of Kelley ( 2019 )

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Appellate Court Date: 2019.07.25
09:25:06 -05'00'
In re Detention of Kelley, 2019 IL App (1st) 162184Appellate Court In re DETENTION OF LEROY KELLEY (The People of the State of
Caption Illinois, Petitioner-Appellee, v. Leroy Kelley, Respondent-Appellant).
District & No. First District, Fourth Division
Docket Nos. 1-16-2184, 1-17-1779 cons.
Filed January 17, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-80003; the
Review Hon. Timothy J. Joyce, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Daniel T. Coyne, Matthew M. Daniels, Michael R. Johnson, and Kate
Appeal E. Levine, of Law Offices of Chicago-Kent College of Law, of
Chicago, for appellant.
Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Michael M. Glick and Brian McLeish,
Assistant Attorneys General, of counsel), for the People.
Panel PRESIDING JUSTICE McBRIDE delivered the judgment of the
court, with opinion.
Justices Reyes and Burke concurred in the judgment and opinion.
OPINION
¶1 Respondent, Leroy Kelley, brings this consolidated appeal, challenging two orders related
to his commitment pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS
207/1 et seq. (West 2014)). Respondent first appeals the trial court’s order denying his petition
for discharge and granting the State’s April 11, 2016, motion for a finding that no probable
cause existed to believe he was no longer a sexually violent person. Respondent subsequently
filed a second appeal from the trial court’s order denying his motion to reconsider the prior
judgment and granting the State’s March 29, 2017, motion for a finding of no probable cause.
Thereafter, on respondent’s motion, the two matters were consolidated on appeal.
¶2 The record shows that respondent was previously convicted of committing rapes of two
women in 1973. Respondent received a sentence of four to six years’ imprisonment for each of
the two rape offenses, to be served concurrently. It appears that respondent was paroled in
1977. He was subsequently convicted of committing deviate sexual assault later that same year
and was sentenced to 40 years’ imprisonment. In 2007, the State filed a petition to involuntary
commit respondent as a sexually violent person under the Act.
¶3 The matter proceeded to a jury trial. The evidence presented at that trial was extensively set
out in our decision in respondent’s direct appeal, and we repeat that evidence here as it is
relevant to the instant case:
“At respondent’s jury trial, the State presented the testimony of two expert
witnesses: Dr. Ray Quackenbush and Dr. Steven Gaskell. Dr. Quackenbush testified
that he was a licensed clinical psychologist employed by Affiliated Psychologists, Ltd.
He was also approved by the Illinois Sex Offender Management Board to provide
treatment and evaluation of sexual offenders. The trial court found the doctor to be an
expert in the field of clinical psychology.
Dr. Quackenbush testified that the [Department of Corrections] referred respondent
for a full psychological evaluation to determine if he should be recommended for
possible civil commitment as a sexually violent person, and the doctor was appointed
to conduct that evaluation. As part of that evaluation, Dr. Quackenbush first reviewed
respondent’s master file, which was a ‘complete set of documents dealing with his
criminal history and his involvement with the Department of Corrections.’ Among
other things, the file included court records, victim statements, medical records and
respondent’s disciplinary history while in the DOC. All of these documents are
reasonably relied upon by experts in conducting a sexually violent person evaluation.
Dr. Quackenbush also interviewed respondent in December of 2006 at the Stateville
Correctional Center for approximately 1 hour and 45 minutes. The doctor prepared a
report after completing his evaluation on December 19, 2006. He then evaluated
respondent again in April of 2007, which included updating his reading of respondent’s
master file and interviewing respondent again at the Dixon Correctional Center for 1
hour and 15 minutes. The doctor prepared a second report on April 18, 2007. Finally, to
keep his opinion current for respondent’s trial, Dr. Quackenbush reviewed additional
documents as they became available, including records from the [Department of
Human Services] treatment and detention facility where respondent was residing at the
time of trial.
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Dr. Quackenbush testified that in 1977 respondent was convicted of the sexually
violent offense of deviate sexual assault and that the facts underlying that conviction
were relevant to forming the doctor’s opinion. In that case, respondent was on
probation from another case when he confronted a woman exiting a garage. He put a
knife to her throat and said, ‘don’t scream or I’ll kill you.’ He asked the woman for
money, and when she said that she did not have any, he forced her to open the trunk of
her car and stuffed a rag into her mouth. He then had her put his arms around him so it
looked like they were together and they walked into her apartment. Respondent
blindfolded the victim and took a number of items from her apartment. Respondent
then opened his pants and showed the victim his penis and asked her to perform oral
sex on him. She refused and respondent repeated his demand. When the victim again
refused, respondent tied the victim’s hands behind her back, placed her on the ground,
and put a step ladder on top of her and left. After a jury convicted him of deviate sexual
assault, respondent was sentenced to 40 years’ imprisonment.
Dr. Quackenbush also considered the facts of two other sexually violent offenses
for which respondent was convicted in 1973. In the first case, respondent and his
brother and sister were walking down the street when they saw a woman they knew.
Respondent forced the victim to the back of a building and then raped her. Afterwards,
he told the victim he had been interested in her for some time and asked her to be his
girlfriend. When respondent eventually let the victim leave, she went to her apartment
and told her boyfriend what happened. When the boyfriend found respondent,
respondent pulled a gun and then ran away. Respondent was convicted of rape in that
case following a bench trial and was sentenced to four to six years’ imprisonment.
Several months after this rape, respondent was arrested for another rape. In that
case, respondent approached a vehicle containing two women and pulled a gun and
entered the vehicle. After driving a short distance, respondent took both women out of
the car and raped one of them in the backyard of a residence. He forced the women
back into the car, drove a short distance, and then forced both women out of the car and
raped them. Respondent pled guilty to rape and was sentenced to four to six years’
imprisonment. Dr. Quackenbush testified that all three crimes were similar in that
respondent used a weapon and forced the victim to engage in sexual activity against her
will, and each had the potential to cause serious injury to the victim.
Dr. Quackenbush testified that in forming his opinion, he also considered the facts
and circumstances of respondent’s nonsexual criminal history. Respondent had an
‘extensive criminal history,’ including an arrest for burglary, an arrest and conviction
for armed robbery, and an arrest and conviction for aggravated assault. During his
interview, respondent also told Dr. Quackenbush about one sex crime that the doctor
was unaware of. Respondent told Dr. Quackenbush that he was first arrested for
statutory rape of his girlfriend when he was 19 and she was 16. When his girlfriend
became pregnant, her father had respondent arrested but the charges were later
dropped.
Dr. Quackenbush also considered the facts and circumstances of respondent’s
institutional adjustments in the DOC in forming his opinion in this case. Respondent
had an ‘extensive disciplinary history in the [DOC],’ including over 250 disciplinary
actions against him. This was an ‘unusually high number,’ even for someone serving a
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long sentence. The facts of those disciplinary actions were important to the doctor.
Several disciplinary actions were for sexual misconduct, and there were numerous
disciplinary actions for fighting, intimidation or threats, arson, and throwing liquid on
or attacking correctional officers. The sexual misconduct actions were important to the
doctor because they occurred late in his sentence, and the most recent sexual
misconduct occurred within two years of respondent’s release from prison. In one
instance, respondent was masturbating in front of a nurse and, in another, respondent
forced an inmate to perform oral sex on him in a prison closet.
The doctor also considered the facts and circumstances of respondent’s adjustment
while on parole. Respondent had been on parole three times and he violated parole each
time. His most recent sexual offense occurred while respondent was on parole for the
two rape charges. While respondent was on parole the first time for his most recent
conviction, he made threats against his ‘host’ and the staff of the DOC. He demanded
money from his host and attempted to get her to go to the cash machine and get money.
He also attempted to have her submit to a full-body massage. His host finally ‘had
enough’ and went to the parole department. Respondent’s parole was violated and he
was returned to the DOC for six months. After he was again released on parole,
respondent was hospitalized for a period of time for medical reasons. During his
hospitalization, respondent was masturbating in his bed when a nurse walked into the
room. He asked her to massage him and she refused. Respondent then wrote his phone
number out and pressed it into the nurse’s hand. On another occasion in the hospital,
respondent propositioned a 14-year-old female hospital volunteer who entered his
room. After she left his room, respondent tried to follow her down the hall shouting at
and threatening her. Respondent’s parole officer happened to visit the hospital shortly
thereafter and was informed of the incident. Respondent was again returned to the
DOC. Respondent kicked his parole officer in the chest and he also became violent
while being transported to the DOC.
Dr. Quackenbush also considered that respondent did not participate in sexual
offender treatment while in the DOC. Such participation is relevant to the doctor’s
evaluation. Respondent was offered treatment every year he was in the DOC but
refused to participate. Respondent told the doctor that he did not need sexual offender
treatment and that he felt getting treatment would interfere with getting his case back
into court. On his second parole from his most recent case, respondent was required to
attend outpatient sexual offender treatment. He had completed the entry evaluation to
the program but he was terminated from the program when the program learned of his
behavior at the hospital.
Respondent’s behavior while in the DHS treatment and detention facility was also
relevant to the doctor’s evaluation. Respondent had attended an orientation group at the
facility, which was positive, but he had thus far refused to enter into a core sex offender
treatment program. Respondent had also exposed himself to staff members twice at the
DHS facility.
Dr. Quackenbush used the Diagnostic and Statistical Manual of Mental Disorders
IV (DSM-IV), which is the ‘authoritative reference’ in his field, as part of his
evaluation of respondent. The doctor diagnosed respondent with paraphilia, not
otherwise specified, nonconsenting persons. The doctor explained that ‘the paraphilia
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is the disorder’ and that ‘it’s a deviant sexual practice or set of fantasies.’ According to
the doctor, there are approximately 300 named paraphilias, most of which are not given
a specific individual diagnosis but, instead, are given the paraphilia ‘not otherwise
specified’ (NOS) diagnosis. The ‘non-consenting persons’ diagnosis indicates what
type of paraphilia it is. There are two criteria for a diagnosis of paraphilia NOS. The
first is that the person has over a period of at least six months experienced either
fantasies or sexual urges or behaviors involving sexual activity with a non-consenting
person. In respondent’s case, he had engaged in sexual activity with nonconsenting
persons for approximately 39 years. The second criterion for the diagnosis is that the
person must have either acted on his urges or fantasies and his sexual behavior has
caused him to suffer a major dislocation or impediment in his life. In respondent’s case,
he had been incarcerated for most of his adult life as a result of his sexual behavior.
Respondent’s mental disorder is also a congenital or acquired condition affecting his
emotional or volitional capacity that predisposes him to commit acts of sexual
violence.
Respondent also has a history of being diagnosed with three different personality
disorders in prison: antisocial personality disorder, scats-affective [sic]1 disorder and
paranoid personality disorder. None of these diagnoses has predominated, so Dr.
Quackenbush diagnosed respondent as suffering from a personality disorder, not
otherwise specified, with paranoid scats-affective [sic] and antisocial features.
Personality disorders are difficult to diagnose and therefore it was not unusual for
respondent to have been diagnosed with different personality disorders from different
evaluators in the past. In terms of the criteria for diagnosing these personality disorders,
Dr. Quackenbush relied upon respondent’s history of being diagnosed by the
psychiatrists in the DOC. These personality disorders ‘seriously exacerbate[ ]’
respondent’s paraphilia and ‘contribute to his inability to control his urges and
behaviors.’
Dr. Quackenbush also used several methods to evaluate respondent’s risk of
sexually reoffending. The first method used was an actuarial risk assessment. He
explained that this involves considering things such as how many times the person has
been arrested or convicted for a sexually violent crime, whether the victims were
strangers or people known to the person, whether the victims were adults, male, female
or children, and whether the person has been in treatment. All of the risk factors have
been assigned statistical weights and those are added to arrive at a category of risk for
the individual. In respondent’s case, Dr. Quackenbush used two actuarial instruments:
the Static-99 and the Minnesota Sex Offender Screening Tool Revised (MNSOST-R).
Respondent scored in the ‘high risk’ category on the Static-99 and specifically scored a
9, which was ‘one of the highest scores’ the doctor had ever seen. That was also the
‘highest score that in the research on the Static 99 was produced.’ The doctor also
stated that it was not unusual for evaluators using the Static-99 to arrive at different
numbers because such a ‘standard error’ is built into all psychological tests.
1
The opinion filed in respondent’s direct appeal referred to respondent being diagnosed with
“scats-affective” disorder. However, upon review of the record, it appears this was a typographical
error and should have read “schizo-affective” disorder.
-5-
Respondent scored a 17 on the MNSOST-R, which placed him in the ‘high risk’
category.
Dr. Quackenbush also used the Hare Psychopathy Checklist, which is a personality
test used to measure a very narrow personality trait, psychopathy. He explained that
‘it’s similar to anti-social personality disorder, but it’s a more narrow concept and it
involves a remorseless use of other people and leading a criminal lifestyle.’
Respondent scored in the 96th percentile, meaning he has a ‘higher degree of
psychopathy than 96 percent of incarcerated prison inmates.’
Dr. Quackenbush also considered several dynamic risk and protective factors in
respondent’s case that ‘can serve as targets for intervention and therapy.’ He
considered respondent’s ‘deviant sexual preference.’ He also considered respondent’s
‘interpersonal difficulties, that he doesn’t relate well to other people as shown by his
criminal history and as shown by his disciplinary history in the [DOC]. And the notes
from the treatment detention center also showed that he’s had a lot of trouble getting
along with other people there.’ The doctor also considered respondent’s age as a factor.
This was ‘very important’ because for some individuals age can be a mitigating
protective factor but this was not the case with respondent because his most recent
sexual behavior with nonconsenting persons had been about a year before, and so
respondent ‘still seem[ed] to be very active in committing sex offenses.’ Dr.
Quackenbush also considered respondent’s failure to complete a treatment program
because research indicates ‘that a good sex offender treatment program can reduce the
likelihood of someone committing an act of sexual violence in the future.’ Ultimately,
all of the items the doctor considered in his risk assessment were consistent with
respondent’s total risk assessment and indicated that respondent was at a high risk of
committing future acts of sexual violence.
Based upon all of his considerations, and in his opinion to a reasonable degree of
psychological certainty, Dr. Quackenbush opined that it was substantially probable that
respondent would commit future acts of sexual violence. By ‘substantially probable,’
the doctor meant ‘much more likely than not.’
On cross-examination, Dr. Quackenbush acknowledged that respondent had not
been charged with or convicted of any criminal offense since 1977. He also agreed that
his understanding of respondent’s parole violations was based entirely on records
generated by parole officers.
The State’s next witness was Dr. Steven Gaskell, a clinical and forensic
psychologist who specialized in the assessment and treatment of mental disorders. Dr.
Gaskell testified that he is also a registered evaluator with the Illinois Sex Offender
Management Board. The trial court accepted Dr. Gaskell as an expert in the field of
clinical psychology.
Dr. Gaskell evaluated respondent pursuant to a court order. He did not interview
respondent because respondent would not participate in the interview. Dr. Gaskell
testified that he considered respondent’s master file as part of his evaluation, and his
testimony regarding the facts and circumstances of respondent’s criminal history was
essentially the same as the testimony given by Dr. Quackenbush. He added that in the
1973 rape case, respondent beat and sexually assaulted the victim after telling the
victim that he had a gun and that he would kill her if she did not submit to his sexual
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advances. The doctor testified that in the 1977 case respondent forced the victim to
perform oral sex on him. Regarding respondent’s past nonsexual criminal history, Dr.
Gaskell testified that in 1965, when respondent was 13 years old, he was convicted of
aggravated assault and possession of a deadly weapon after he took a gun to school
with the intent to kill a 16-year-old male who had been picking on him. Respondent had
a ‘run away charge’ as a juvenile that was a violation of his probation. He was
convicted of robbery in 1970 and he had a ‘warrant failure’ in the early 1970s.
Respondent had another offense three weeks after the 1977 robbery and deviate sexual
assault. It was a similar case in that he approached a woman and asked her for money.
She said she did not have any money and respondent began to lead her down an alley
until a car drove by and scared him off. He was convicted of attempted armed robbery
and sentenced to 15 years’ imprisonment.
Dr. Gaskell also considered respondent’s behavior and the disciplinary actions
taken against him in the DOC, and his testimony closely tracked the testimony of Dr.
Quackenbush. He added that during respondent’s 2005 parole, he went to the home of a
DOC employee and harassed the employee’s daughter. In November of 2005, he swore
at an ‘AMS operator’ and on another occasion propositioned an AMS operator. An
AMS operator is someone connected with respondent’s parole. The final incident,
described by Quackenbush, was when he tried to get his ‘host’ to submit to a body
massage and then go to a cash machine and get him money. Dr. Gaskell also added that
when respondent was on parole in 2006, he kicked the door in on the cage of the state
vehicle taking him to prison and threatened to kill his parole officer and the officer’s
family. Like Dr. Quackenbush, Dr. Gaskell also considered respondent’s behavior
while in the DHS treatment and detention facility and his testimony was substantially
the same as the testimony of Dr. Quackenbush.
Dr. Gaskell also employed the DSM-IV and diagnosed respondent with paraphilia,
not otherwise specified, sexually attracted to nonconsenting females and antisocial
personality disorder. These mental disorders predispose respondent to commit acts of
sexual violence and were congenital or acquired conditions that affected his emotional
or volitional capacity in that respondent ‘has urges and fantasies to have sexual contact
with non-consenting persons.’ Respondent also has ‘a failure to conform to social
norms’ so that ‘he doesn’t really have a filter or something that’s going to stop him
from making a different decision when he has those urges.’ The doctor defined the
antisocial personality disorder as ‘a pervasive pattern of disregard for and violations of
the rights of others occurring since at least the age of 15.’ Dr. Gaskell also diagnosed
respondent with cannabis abuse in a controlled environment and psychotic disorder,
not otherwise specified.
The doctor acknowledged that respondent had not sexually attacked anyone while
in custody but testified that this did not alter his opinion because ‘it’s a really infrequent
event that someone would actually sexually assault someone within a facility.’
Respondent also has not had the opportunity to arm himself within the DOC or the
DHS treatment and detention facility.
Dr. Gaskell employed the Static-99 and respondent fell into the ‘high risk’ category
for that test. Respondent scored an 8 on the Static-99 and other sexual offenders have
an average score of 2. Dr. Gaskell also used the MNSOST-R and respondent again
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placed in the ‘high risk’ range. The doctor then considered seven additional risk factors
that pertained to respondent, including antisocial personality disorder, high score on
the ‘PCLR,’ substance abuse, general self-regulation problems, impulsiveness,
recklessness, any deviant sexual interests and employment stability. A consideration of
these factors placed respondent at an even higher level of risk. The doctor did consider
protective factors that could reduce respondent’s risk of sexually reoffending. These
included his age, his health, and any progress in sex offender treatment. However,
respondent had refused to participate in sex offender treatment while in the DOC. In
2006, he was in treatment in Will County for five weeks but he had poor progress and
was terminated from the program. Since that time, he has not participated in sex
offender treatment in the DOC or in the DHS treatment and detention facility.
The doctor testified that in his opinion, to a reasonable degree of psychological
certainty, it was substantially probable that respondent would commit future acts of
sexual violence. According to the doctor, ‘substantially probable’ meant more likely
than not.
The State concluded its case by presenting a stipulation that respondent had been
convicted of three sexually violent offenses: (1) deviate sexual assault, in Cook County
case number 77 I 40396, which resulted in a 40-year term of imprisonment; (2) rape, in
Cook County case number 73 C 2980, for which he was sentenced to 4 to 6 years’
imprisonment; and (3) rape, in Cook County case number 73 C 3176, for which he was
sentenced to a term of 4 to 6 years’ imprisonment to run concurrently with the sentence
in case number 73 C 2980. The defense rested without presenting any evidence on
respondent’s behalf.” In re Commitment of Kelley, 2012 IL App (1st) 110240, ¶¶ 5-29.
¶4 At the conclusion of the trial, the jury found respondent to be a sexually violent person
based on the above evidence. Thereafter, following a dispositional hearing, the trial court
ordered respondent committed to the Illinois Department of Human Services (DHS) for
institutional care in a secure facility. Id. ¶ 30. Respondent’s commitment was affirmed on
direct appeal. Id. ¶ 51.
¶5 Respondent has been reexamined periodically since his initial commitment pursuant to
section 55 of the Act (725 ILCS 207/55 (West 2014)).
¶6 On March 21, 2014, the State filed a motion for finding of no probable cause, attaching the
March 11, 2014, reexamination report from Dr. Steven Gaskell. Dr. Gaskell reviewed various
records in completing the evaluation, including prior examinations, court records, disciplinary
records, and the DHS treatment plan. Dr. Gaskell noted that respondent had been informed of
the reexamination, but declined to participate or meet with him.
¶7 Dr. Gaskell reviewed respondent’s history of sexual offenses described above. Respondent
had not been ticketed for any sexual offenses during the period under review, but he had
received minor rule violations on two occasions for yelling at staff, refusing staff directives,
and yelling obscenities.
¶8 Dr. Gaskell determined that respondent continued to “meet[ ] the DSM-5 diagnostic
criteria” for “Other Specified Paraphilic Disorder, Sexually Attracted to Nonconsenting
Females”; “Cannabis Use Disorder, In a Controlled Environment”; and “Antisocial
Personality Disorder.” He further stated that these “diagnoses are congenital or acquired
conditions affecting his emotional or volitional capacity that predispose him to engage in acts
of sexual violence.”
-8-
¶9 Dr. Gaskell conducted a “risk analysis,” using actuarial measures that help predict the risk
of a sexually violent reoffense, which indicated that respondent was “at substantial risk of
sexual re-offense.” Respondent scored a four (“moderate-high risk”) on the Static-99R, which
Dr. Gaskell explained “f[e]ll into the 74.0 to 85.1 percentile,” meaning that “74.0 to 85.1
percent of sex offenders in these samples scored at or below [respondent]’s score” and that the
“recidivism rate for sex offenders with the same score as [respondent] would be expected to be
approximately 1.94 times higher than the recidivism rate of the typical sex offender.”
Additionally, Dr. Gaskell found that respondent was “most similar to the preselected
high-risk/high needs samples” and that “[o]ffenders with the same score as [respondent] from
the preselected high-risk/high needs samples have been found to sexually reoffend at a rate of
20.1 percent in 5 years and 29.6 percent in 10 years.”
¶ 10 On the Static-2002R, respondent scored a six (“moderate risk”), which Dr. Gaskell
explained “f[e]ll into the 84.3 to 92.1 percentile,” meaning that “84.3 to 92.1 percent of sex
offenders in these samples scored at or below [respondent]’s score” and that the “recidivism
rate for sex offenders with the same score as [respondent] would be expected to be
approximately 2.63 times higher than the recidivism rate of the typical sex offender.”
Offenders “with the same score as [respondent] from the preselected high-risk/high needs
samples have been found to sexually reoffend at a rate of 24.0 percent in 5 years and 33.8
percent in 10 years.”
¶ 11 Regarding protective factors, Dr. Gaskell noted that participation in and successful
completion of treatment can reduce a sex offender’s recidivism risk. Respondent, however,
had not participated in sex offense specific treatment since his admission to DHS in 2007.
Respondent had participated in “some ancillary groups” but not within the “past couple years.”
¶ 12 Dr. Gaskell also stated that respondent’s then age of 62 years was a protective factor, and
that it “likely reduces his risk to some degree,” but that the results from the actuarial
instruments already accounted for that factor.
¶ 13 Dr. Gaskell noted some of respondent’s medical issues, including that, in his April 2013
resident review, respondent reported that he had prostate cancer. However, Dr. Gaskell
concluded that respondent did not have a medical issue that would “warrant a reduction to his
risk to sexually re-offend at this time.”
¶ 14 Based on the above, Dr. Gaskell concluded, “to a reasonable degree of psychological
certainty, that it is substantially probable that [respondent] will engage in acts of sexual
violence in the future.” Accordingly, the doctor recommended that respondent continue to be
found to be a sexually violent person under the Act, and that he should remain committed to
DHS “for further secure care and sexual offender treatment.”
¶ 15 On April 16, 2014, respondent filed a petition for discharge. The trial court appointed an
expert at respondent’s request, but respondent did not ultimately submit an expert report.
¶ 16 On November 14, 2014, the trial court entered an order finding no probable cause to
warrant an evidentiary hearing to determine whether respondent remained a sexually violent
person, and granted the State’s motion. Respondent did not appeal.
¶ 17 Dr. Gaskell completed an additional reexamination in March 2015, which was filed in the
trial court along with the State’s March 2015 motion for finding of no probable cause. In the
report, Dr. Gaskell recommended that respondent continue to be found to be a sexually violent
person and remain committed to the DHS. Dr. Gaskell continued to diagnose respondent with
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“Other Specified Paraphilic Disorder, Sexually Attracted to Nonconsenting Females”;
“Cannabis Use Disorder, In a Controlled Environment”; and “Antisocial Personality
Disorder”—diagnoses that “affect[ed] his emotional or volitional capacity that predispose him
to engage in acts of sexual violence.”
¶ 18 In the March 2015 report, Dr. Gaskell continued to use the Static-99R and Static-2002R,
which resulted in scores of four (“moderate-high risk”) and six (“moderate risk”),
respectively—the same scores as in the March 2014 report. Dr. Gaskell also noted that in the
year prior to the March 2015 report, respondent received a warning for disobeying a direct
order, two minor rule violations for insolence, and a major rule violation for interfering with
facility operations.
¶ 19 Regarding protective factors, Dr. Gaskell noted that respondent had still not participated in
sex offense treatment and that his age, 63, likely reduced his risk of reoffense “to some
degree,” but that this factor was already “taken into account” on the actuarial instruments. Dr.
Gaskell further stated that respondent did not have a medical issue that would warrant a
reduction in his risk of reoffense.
¶ 20 While the State’s 2015 motion for finding of no probable cause was still pending, the State
filed a new motion for finding of no probable cause on April 11, 2016, which attached the
March 2016 reexamination report of Dr. Gaskell. Dr. Gaskell recommended that respondent
continue to be found to be a sexually violent person. He continued to diagnose respondent with
the same mental disorders as in prior years.
¶ 21 Dr. Gaskell used the Static-99R and Static-2002R to evaluate respondent’s risk of
recidivism. In the 2016 reexamination, respondent received scores of five (“moderate-high”)
and five (“moderate”) on the Static-99R and Static-2002R, respectively. Dr. Gaskell explained
that a score of five on the Static-99R “f[e]ll into the 84.6 to 92.5 percentile” meaning that “84.6
to 92.5 percent of sex offenders in these samples scored at or below [respondent]’s score” and
that the “recidivism rate for sex offenders with the same score as [respondent] would be
expected to be approximately 2.7 times higher than the recidivism rate of the typical sex
offender.” Additionally, Dr. Gaskell found respondent to be “most similar to the preselected
high-risk/high needs samples” and “[o]ffenders with the same score as [respondent] from the
preselected high-risk/high needs samples have been found to sexually reoffend at a rate of 21.2
percent in 5 years and 32.1 percent in 10 years.”
¶ 22 A score of five on the Static-2002R “f[e]ll into the 71.1 to 84.7 percentile,” meaning that
“71.1 to 84.7 percent of sex offenders in these samples scored at or below [respondent]’s
score” and the “recidivism rate for sex offenders with the same score as [respondent] would be
expected to be approximately 1.9 times higher than the recidivism rate of the typical sex
offender.” Additionally, Dr. Gaskell found respondent to be “most similar to the preselected
high-risk/high needs samples” and “[o]ffenders with the same score as [respondent] from the
preselected high-risk/high needs samples have been found to sexually reoffend at a rate of 19.1
percent in 5 years.”
¶ 23 Moreover, Dr. Gaskell listed several additional risk factors that contributed to his risk of
sexual reoffense, including respondent’s “deviant sexual interest,” “Antisocial Personality
Disorder”; “Impulsiveness, recklessness”; and “substance abuse.” Dr. Gaskell stated that these
factors were not measured by the risk assessment instruments described above, and based on
the above, he found respondent to be “at a substantial risk of sexual re-offense.”
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¶ 24 Regarding protective factors, Dr. Gaskell noted that respondent had still not participated in
sex offense specific treatment as of the March 2016 report, but he had participated in some
ancillary groups, specifically, an orientation group and anger management group. However,
respondent’s progress in treatment was not “sufficient to reduce his substantial risk for
sexually violent re-offending.” Dr. Glaskell also noted that in the year prior to the 2016 report,
respondent received a major rule violation for interfering with facility operations.
¶ 25 Based on all of the above, Dr. Gaskell stated that it was his “professional opinion, to a
reasonable degree of psychological certainty, that it is substantially probable [respondent] will
engage in acts of sexual violence in the future.”
¶ 26 On April 11, 2016, the same day the State filed its motion for finding of no probable cause,
respondent filed a petition for discharge, asserting that he was no longer a sexually violent
person. Respondent attached a report from Dr. Brian Abbott, dated March 15, 2016. Dr. Abbott
stated that he conducted a psychological examination of respondent in a 90-minute
“semi-structured clinical interview” on October 26, 2015. Dr. Abbott noted that medical
records documented that respondent was being treated for prostate cancer. Respondent told Dr.
Abbott that he received shots in his prostate, and he last received the injections in March 2015.
The medical records available to Dr. Abbott also indicated that respondent was receiving
monthly injections of “Lupron Depot,” which is used to treat prostate cancer, and the injections
were administered through March 31, 2015. Dr. Abbott stated that Lupron Depot lowers
androgen levels, “which prevents the production of testosterone that is necessary for sexual
arousal.” Respondent reported to Dr. Abbott “an absence of sexual drive and sexual thoughts”
since taking Lupron Depot.
¶ 27 Dr. Abbott concluded that respondent “no longer suffers from a legally defined mental
disorder based on changes in circumstances associated with age-related modifications in his
sexual and psychological functioning, and physical health.” Regarding respondent’s prior
diagnoses of antisocial personality disorder (APD) and personality disorder with antisocial
personality traits (APT), Dr. Abbott stated that records reflected “very few behavior problems”
since respondent’s commitment, and the “infrequent behavior problems” since his
commitment do not “meet the enduring pattern of personality traits necessary to substantiate a
personality disorder diagnosis.” Dr. Abbott stated that this indicated that the conditions of
APD and APT had “remitted related to certain psychological changes associated with aging.”
Dr. Abbott cited a study showing that those in the age group of 45-64 demonstrated a 62% rate
of remission from antisocial personality disorder, while those in the age group of 65 and older
exhibited remission at a rate of 78%. Dr. Abbott noted that respondent was 64 years old and
would turn 65 years old in approximately six months.
¶ 28 Dr. Abbott acknowledged that respondent had exhibited “occasional bouts of angry verbal
outbursts toward staff ranging between two to three times annually” but he attributed these
outbursts to “irritability related to symptoms of major depressive disorder.”
¶ 29 Dr. Abbott further stated that respondent had a “decline in sex drive and improved
executive functions [judgment, reasoning and impulse control] associated with advancing
age,” noting that he had “not acted out in sexually inappropriate or criminal ways” since his
commitment. Dr. Abbott stated that the combination of decline in sex drive and improved
executive functions associated with advancing age resulted in “overall improvement in his
interpersonal functioning” and an improvement in “the way that [respondent] manages his
sexual urges.”
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¶ 30 Regarding respondent’s prior paraphilia diagnosis, Dr. Abbott stated that respondent had
demonstrated a change in his mental disorder, which was explained by “age related factors
leading to the remission of deviant sexual behaviors.” Respondent reported a decline in his
sexual drive, and Dr. Abbott noted that his self-report was supported by records showing that
he had not acted in sexually inappropriate or illegal ways and that he had not demonstrated
“institutional signs” of paraphilia. Dr. Abbott stated that the decreases in respondent’s “sexual
drive has complemented the changes in his personality structure, which together best explain
the change in his paraphilic condition since his commitment date.” Dr. Abbott stated that his
“improved executive functions” allowed respondent to better “deliberate over the
consequences of his behavior before acting” and to “refrain from acting in sexually violent
ways.”
¶ 31 Dr. Abbott also cited “two health related circumstances that have secondary effects, which
further contribute to the decline in [respondent]’s sexual drive.” Specifically, respondent’s
sexual drive declined further due to taking Lupron Depot to treat prostate cancer. Dr. Abbott
noted that if respondent stopped taking the medication, “sexual urges will re-emerge as his
testosterone levels increase,” but he stated that “given his age, his sexual drive will likely be
low based on age related decreases in testosterone.” Dr. Abbott also stated that respondent
suffers from chronic back pain, and the “current intensity and chronicity of the physical pain
*** inhibits the experience of sexual urges or thoughts because the physical pain overwhelms
any pleasurable feelings associated with sexual urges or thoughts.”
¶ 32 Additionally, Dr. Abbott concluded that, even assuming respondent suffered from a mental
disorder, he “no longer presents as being substantially probable to commit acts of sexual
violence.” He stated that since respondent’s trial in 2010, there had “been tremendous growth
in the literature and science of sexual recidivism risk assessment,” which demonstrated that
respondent “no longer presents as substantially probable to commit acts of sexual violence.”
¶ 33 Dr. Abbott determined that respondent’s total score on the Static-99R was five, which he
described as “within the moderate high score range.” He noted that it was possible that
respondent “may earn an additional point” based on sexual misconduct in prison with a male
inmate, but that it was “unknown” based on the available information whether the acts would
be considered as sexual offenses against the inmate. If respondent was assigned the additional
point, his score would be a six, which would fall in the “high score” range.
¶ 34 Dr. Abbott found respondent to belong to the “Routine Corrections” reference group, and
accordingly, his “Static-99R 5-Year Rate” or recidivism would be 15.2% based on a score of
five, or 20.5% based on a score of six. He stated, however, that the Static-99R rates
overestimate risk for older offenders based on an “over-representation by younger age
offenders who sexually reoffend at higher rates.”
¶ 35 After reviewing the above reports, the trial court held a hearing on respondent’s petition for
discharge and the State’s motion for finding of no probable cause on June 17, 2016. The court
returned for a ruling on June 21, 2016, and stated:
“I have read the voluminous pleadings filed by the parties. *** I will note with
respect to the expert appointed to represent or to evaluate [respondent] ***, Dr. Abbott,
his lengthy report, it strikes me concentrates on his belief that the *** manner of
assessing risk [to reoffend] has changed in his estimation. *** I talk about the actuarial
assessments that are often utilized in an attempt to gauge or predict where someone lies
on some spectrum regarding his likelihood to reoffend *** which is a difficult
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circumstance in any event. In one in which there is considerable dispute with respect to
psychiatrists and psychologists who utilize such information, and the attorneys who
utilize such information in the context of this type of case.
Dr. Abbott further seems to claim *** that [respondent]’s risk has decreased and
his risk has decreased *** [as] a function of the advancement of time, and certain
medications that [respondent] purportedly takes relating to his treatment of prostate
cancer, as well as the lack of apparent symptoms of any mental disorder, which so far
as I can tell ***, if there is a lack of symptomology present of the mental disorder it
seems to be a function of [respondent]’s inability to engage in those activities which
lead to the diagnoses by the evaluator at the outset of this, and *** not so much of any
particular change in circumstances brought on by [respondent] or thrusted upon
[respondent] by treatment or otherwise. It seems to be a function of the fact that he’s in
custody and does not have the opportunity to engage in those activities, which gave rise
to the diagnosis of a mental disease or mental disorder in the first instance, as well as
the ultimate conclusion he was, in fact, a sexually violent person, as was concluded at
the trial in this matter.
I would note further that the absence of any availing by [respondent] of any
available treatment at the Department of Human Services facility *** similarly tends to
indicate a lack of a change in circumstances ***.
And I just don’t see that there is a change here. *** [A]lthough expertly presented,
by both Dr. Abbott and [respondent’s counsel], it strikes the Court that the
circumstances put forth in support of the claim that [respondent] is no longer a sexually
violent person, or [sic] simply *** a rehashing of the arguments that were made at the
time that he was found to be a sexually violent person and, therefore, [I] do not think
that [respondent] has presented plausible evidence that demonstrates a change in
circumstances that lead [sic] to the initial finding *** that he was a sexually violent
person.”
¶ 36 The court entered a written order on June 27, 2016, “nunc pro tunc to June 21, 2016.” In
that written order, the court found no probable cause to warrant an evidentiary hearing to
determine whether respondent was still a sexually violent person. The court granted the State’s
motion and denied respondent’s petition “for the reasons stated on the record on June 21,
2016.”
¶ 37 Respondent filed a timely notice of appeal on July 18, 2016, under appellate court No.
1-16-2184. Respondent filed his appellant’s brief on May 2, 2017, and the State filed its
appellee’s brief on July 11, 2017.
¶ 38 Meanwhile, in the trial court, respondent filed a motion to conduct a reexamination of
respondent “based on changes in his health.” Respondent stated that he now required radiation
therapy to treat his prostate cancer, which had progressed to a Gleason score—defined as “a
scale from 2-10 designed to measure ‘the relative aggressiveness of the cancer’ and ‘how far
the cancer has progressed’ ”—of 7. Over the State’s objection, the court entered an order on
October 25, 2016, allowing Dr. Abbott to reexamine respondent.
¶ 39 On December 16, 2016, respondent filed a motion to reconsider the order of June 21, 2016.
Respondent stated that since the time the court granted the State’s motion, his “health has
deteriorated to the point that he now requires radiation therapy to treat his prostate cancer.”
Respondent further stated that on December 12, 2016, Dr. Abbott authored a report in which he
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continued to opine that respondent is no longer a sexually violent person and that his opinion
was based on new evidence that was not previously available.
¶ 40 Dr. Abbott’s report, which was attached, indicated that respondent had recently undergone
eight weeks of radiation therapy. Dr. Abbott stated that respondent did not presently
experience “sexual thoughts or urges in general or involving forcible or nonconsenting sexual
acts.” Respondent reported that his sexual functioning did not resume after the doctor
discontinued the Lupron Depot medication and that he does not experience sexual urges
“currently or since the examiner last saw him.” Dr. Abbott indicated that respondent’s
self-reported loss of sexual drive was supported by respondent’s oncologist, with whom Dr.
Abbott had spoken. Respondent’s oncologist advised Dr. Abbott that “patients who undergo
the treatment [Respondent] received do not regain sexual functioning without the aid of
medical intervention.” Dr. Abbot noted that respondent had not had any medical intervention
to regain sexual functioning and that respondent reported he had not had any “referrals to the
behavioral committee” since Dr. Abbott’s last examination. Dr. Abbott concluded that his
updated evaluation did not change his “opinion that [respondent]’s mental disorder has
changed since his commitment date [and] that he is no longer a sexually violent person” and
that respondent “is no longer substantially probable to engage acts of sexual violence,
assuming he suffers from the legally defined mental disorder.”
¶ 41 On May 22, 2017, the State responded to respondent’s motion to reconsider. The State
asserted that Dr. Gaskell spoke to respondent’s oncologist as well, who stated that “many
times” patients do not regain functioning, estimating that it occurs in about 30% of patients.
The oncologist further clarified that medical intervention meant medications such as “Viagra
or Cialis,” and the oncologist never asked respondent about his current sexual functioning. The
oncologist also told Dr. Gaskell that the eight-week course of radiation treatment that
respondent underwent “does not cause 100% loss of erection” and “there was no objective
medical evidence to suggest that this treatment eliminated Respondent’s sexual functioning.”
¶ 42 On March 29, 2017, the State filed a motion for finding of no probable cause based on Dr.
Gaskell’s most recent March 2017 examination, which was attached to the motion. Dr.
Gaskell’s reexamination report was substantially similar to the prior reports. He confirmed that
respondent had not been “seen by the Behavior Committee *** in the past year.” In the 2017
reexamination, respondent received scores of five (“Above average risk”) and four (“Average
risk”), on the Static-99R and Static-2002R, respectively. These scores equated to five-year
recidivism rates of 21.2% and 16%, respectively, which Dr. Gaskell believed “fairly
represent[ed] the risk presented by respondent” at this time. Dr. Gaskell determined that “[n]o
risk reduction [wa]s warranted based on his current health status” and continued to conclude
that respondent was “at a substantial risk of sexual re-offense.” Dr. Gaskell recommended that
respondent continue to be found to be a sexually violent person, and remain committed to
DHS.
¶ 43 On June 6, 2017, the trial court denied respondent’s motion to reconsider, stating:
“I’m going to deny the motion. The reason I’m going to deny the well-stated
motion *** relates to the fact that in the face of a claim that [respondent] doesn’t have
the wherewithal to engage in the physical act of—in particular, physical acts of sexual
activity that would presumably require his ability—or relate to his ability to maintain
an erection or get an erection, that’s not the issue.
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The issue is whether or not circumstances exist that would lead the Court to
reasonably conclude that he is no longer a sexually-violent person. That does not
depend on his physical ability to maintain or not maintain or get, to any particular
extent, the physical act or the physical circumstance of an erect penis.
***
[W]hen an individual is seeking a discharge hearing, it is the individual, in this
instance [respondent]’s responsibility, to show that there is grounds to—for a court to
conclude—or perhaps conclude that he’s no longer a sexually-violent person. And that
doesn’t relate to whether or not someone can get an erection.
It relates to whether somebody has a mental disorder and, as a result of that mental
disorder or condition, it is, therefore, substantially more probable that they would
engage in acts of sexual violence. I don’t doubt that there are all sorts of reasons that
individuals engage in acts of sexual violence. It may well relate to their ability to
maintain or get an erection, it may not.
And the fact that [respondent] seemingly has this circumstance relating to treatment
for a prostate condition, cancer, which at the moment or at the time of treatment or will
in the future prevent him, apparently, from maintaining an erection, does not by itself
lead to a conclusion that, therefore, it is more probable than not that he is no longer a
sexually-violent person.
It might well be a factor in the compendium of that but that by itself is not a reason
that leads the Court to conclude that the circumstances have changed, so that
[respondent] is now no longer a sexually-violent person. That’s why I believe my
denial of your motion was proper at the time I denied the motion for the petition for a
discharge hearing and I believe it’s the reason why I’m correct in denying your motion
to reconsider.”
¶ 44 Thereafter, regarding the State’s motion for a finding of no probable cause, the trial court
stated:
“I’m going to grant the State’s motion for a finding of no probable cause and rule that
there is no probable cause to warrant an evidentiary hearing as to whether [respondent]
continues to be a sexually-violent person in need of treatment on a secure basis. That he
shall remain in the Department of Human Services on a secure commitment order, as
previously indicated. And that’s because [respondent] has a long history of sexually
offending and he has a long history of not taking any positive steps to do anything
about that.”
¶ 45 On June 30, 2017, respondent timely filed a notice of appeal, which was docketed as
appellate court No. 1-17-1779. Respondent filed a motion to consolidate appeals in Nos.
1-16-2184 and 1-17-1779, contending that “the two appeals cover[ed] nearly identical topics”
regarding the denial of respondent’s petition for discharge and the denial of the motion to
reconsider the same judgment. This court allowed the motion. At respondent’s suggestion, the
parties then filed supplemental briefs relating to the additional matters since the initial appeal,
and respondent filed a consolidated reply and supplemental reply brief.
¶ 46 In this court, respondent contends that this court should reverse the trial court’s judgment
denying his petition for discharge and granting the State’s motion for finding of no probable
cause. Respondent asks us to remand this matter for an evidentiary hearing because the trial
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court “erred in interpreting and applying Section 65 of the [Sexually Violent Persons
Commitment] Act,” concluding that there was no probable cause to believe that he is no longer
a sexually violent person. Respondent alternatively contends that the due process clause of the
fourteenth amendment requires an evidentiary hearing because there is substantial evidence to
believe that there is no longer a basis to justify his commitment. Regarding the denial of his
motion to reconsider on June 6, 2017, respondent contends that the court erroneously denied
his motion to reconsider because there was probable cause to believe he was no longer a
sexually violent person based on new facts concerning respondent’s health and there was a
“dispute” between Dr. Abbott and Dr. Gaskell “regarding the basis of their opinions.”
¶ 47 This court has jurisdiction to review the circuit court’s final judgment, entered
nunc pro tunc to June 21, 2016, which denied respondent’s petition for discharge and granted
the State’s motion for finding of no probable cause, pursuant to Illinois Supreme Court Rule
303 (eff. Jan. 1, 2015).
¶ 48 As to the trial court’s order of June 6, 2017, we note that respondent’s notice of appeal
from that order lists the judgment appealed from as “Continued civil commitment as a sexually
violent person; granting of State Motion for No Probable Cause Based on March 2017
Re-Examination Report; Denial of Motion to Reconsider the Order of June 21, 2016 Denying
the Respondent’s Petition for Discharge Without an Evidentiary Hearing,” and the date of
disposition is listed as “June 6, 2016.” Respondent contends, and the State agrees, that the
reference to a June 6, 2016, disposition is a typographical scrivener’s error, and that the order
respondent is actually appealing is dated June 6, 2017.
¶ 49 Based on the record, we find that respondent made a scrivener’s error on the notice of
appeal when referring to the disposition date. Schaffner v. 514 West Grant Place Condominium
Ass’n, 324 Ill. App. 3d 1033, 1042 (2001). In Schaffner, this court defined a “scrivener” as a
writer, and a “scrivener’s error” as a clerical error resulting from a minor mistake or
inadvertence when writing or when copying something on the record, including typing an
incorrect number. Id. The scrivener’s error does not inhibit this court’s ability to ascertain from
the record that respondent is appealing from the June 6, 2017, order. State Security Insurance
Co. v. Linton, 67 Ill. App. 3d 480, 486 (1978) (the wrong date on a notice of appeal does not
create a fatal defect when it is a typographical error). Accordingly, we find that the
incorrect date on respondent’s notice of appeal was a scrivener’s error that did not create a
fatal defect. Id. We thus conclude that we also have jurisdiction to consider the appeal from
that order pursuant to Rule 303. Ill. S. Ct. R. 303 (eff. Jan. 1, 2015).
¶ 50 The Act allows for the involuntary commitment of “sexually violent persons” by the DHS
for “control, care and treatment until such time as the person is no longer a sexually violent
person.” 725 ILCS 207/40(a) (West 2014). As relevant here, a “sexually violent person” is
defined under the Act as “a person who has been convicted of a sexually violent offense, ***
and who is dangerous because he or she suffers from a mental disorder that makes it
substantially probable that the person will engage in acts of sexual violence.” Id. § 5(f). A
“mental disorder” is a “congenital or acquired condition affecting the emotional or volitional
capacity that predisposes a person to engage in acts of sexual violence.” Id. § 5(b).
¶ 51 After a person has been committed under the Act, the State must submit a written report
based on an evaluation of the individual’s mental condition “at least once every 12 months
after an initial commitment.” Id. § 55(a). The primary purpose of the written report is to
determine whether “(1) the person has made sufficient progress in treatment to be
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conditionally released and (2) whether the person’s condition has so changed since the most
recent periodic reexamination *** that he or she is no longer a sexually violent person.” Id.
¶ 52 At the time of the annual examination by the State, the committed person receives notice of
the right to petition the court for discharge. Id. § 65(b)(1). If the committed person does not
affirmatively waive that right, the court must set a probable cause hearing to determine
whether facts exist that warrant a hearing on whether the respondent remains a sexually violent
person. Id. “However, if a person has previously filed a petition for discharge without the
Secretary’s approval and the court determined, either upon review of the petition or following
a hearing, that the person’s petition was frivolous or that the person was still a sexually violent
person, then the court shall deny any subsequent petition under this Section without a hearing
unless the petition contains facts upon which a court could reasonably find that the condition of
the person had so changed that a hearing was warranted.” Id.
¶ 53 For a respondent to receive an evidentiary hearing under section 65(b)(2) of the Act, the
court must find a plausible account exists that the respondent is no longer a sexually violent
person. Id. § 65(b)(2). In a discharge proceeding, this means that the committed individual
must present sufficient evidence that he no longer meets the following elements for
commitment: (1) he no longer has “a mental disorder” or (2) he is no longer dangerous to
others because his mental disorder no longer creates a substantial probability that he will
engage in acts of sexual violence. Id. § 5(f); In re Detention of Stanbridge, 2012 IL 112337,
¶¶ 68, 72. “In making that determination, the trial judge must consider all reasonable
inferences that can be drawn from the facts in evidence.” (Internal quotation marks omitted.)
In re Detention of Hardin, 238 Ill. 2d 33, 48 (2010). However, at this stage of the proceedings,
the role of the trial court is not to “choose between conflicting facts or inferences” (internal
quotation marks omitted) (id.) or to engage in a “full and independent evaluation of [an
expert’s] credibility and methodology” (id. at 53). The trial court “should not attempt to
determine definitively whether each element of the [movant’s] claim can withstand close
scrutiny as long as some ‘plausible’ evidence, or reasonable inference based on that evidence,
supports it.” Id. at 51-52. This court reviews the ultimate question of whether respondent
established probable cause de novo. In re Detention of Lieberman, 2011 IL App (1st) 090796,
¶ 40. If the court finds probable cause to believe that the committed person is no longer a
sexually violent person, it must set a hearing on the issue and the State has the burden of
proving by clear and convincing evidence that the person is still a sexually violent person. 725
ILCS 207/65(b)(2) (West 2016).
¶ 54 Postcommitment probable cause hearings are “intended to be preliminary in nature, a
‘summary proceeding to determine essential or basic facts as to probability’ *** while
remaining cognizant of the respondent’s liberty rights.” Hardin, 238 Ill. 2d at 52 (quoting State
v. Watson, 595 N.W.2d 403, 420 (Wis. 1999)). As a result, a probable cause determination
requires a “ ‘relatively low’ ” quantum of evidence as support. In re Detention of Hayes, 2015
IL App (1st) 142424, ¶ 18 (quoting Hardin, 238 Ill. 2d at 52). As the supreme court stated in
Stanbridge:
“To allow the trial judge to weigh conflicting evidence and choose between expert
opinions at this ‘summary proceeding’ would be beyond the scope of the limited
inquiry intended at a probable cause hearing and would render meaningless and
unnecessary the subsequent sections of the Act providing for a full hearing or trial. The
probable cause hearing is not a substitute for a full evidentiary hearing where disputed
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questions of fact can be resolved by the trier of fact, and where the basis for the
opinions and credibility determinations can be fully explored.” Stanbridge, 2012 IL
112337, ¶ 64.
¶ 55 We will first consider respondent’s appeal of the June 21, 2016, order, denying his petition
for discharge and granting the State’s 2016 motion for a finding of no probable cause, before
turning to the appeal of the June 6, 2017, order, denying his subsequent motion to reconsider
that judgment and granting the State’s 2017 motion for a finding of no probable cause.
¶ 56 Regarding the initial order of June 21, 2016, respondent argues that there is probable cause
to believe that he is no longer a sexually violent person, based on the report of Dr. Abbott, and
contends that this court should not choose “between conflicting facts and inferences” in the
expert reports prior to an evidentiary hearing. Respondent contends that there is probable cause
to believe that he is no longer a sexually violent person because he has not engaged in sexual
misconduct since being committed, he has demonstrated that he can control his behavior, and
his increasing age has caused his risk of re-offense to “plummet[ ].” The State, however,
contends that the trial court correctly determined that no probable cause existed to believe that
respondent is no longer a sexually violent person.
¶ 57 As an initial matter, respondent and the State disagree regarding what evidence was
properly before the trial court on this issue. The parties’ disagreement stems from the 2012
amendment to the petition for discharge statute, which added the language “since the most
recent periodic reexamination” to the statute. See Pub. Act 97-1075 (eff. Aug. 24, 2012)
(amending 725 ILCS 207/65(b)(2)).
¶ 58 The State points out that, pursuant to section 65(b)(2), the circuit court must determine
whether “facts exist to believe that since the most recent periodic reexamination *** the
condition of the committed person has so changed that he or she is no longer a sexually violent
person.” (Emphasis added.) 725 ILCS 207/65(b)(2) (West 2014). The State relies on this
language to contend that the court is concerned only with changes in circumstances since “the
most recent periodic reexamination,” and therefore, we should look only to whether there have
been sufficient changes since November 2014, the last time the trial court found no probable
cause to believe that respondent was no longer a sexually violent person. The State contends
that the reports showed that respondent’s condition and behavior had not changed in any
significant way since that time, and that the differences in Dr. Gaskell’s and Dr. Abbott’s
methodologies are not due to post-2014 changes in professional knowledge. The State further
argues that Dr. Abbott’s “mere[ ] disagree[ment]” with Dr. Gaskell’s approach is not sufficient
to warrant a hearing.
¶ 59 Respondent, however, contends that the report of Dr. Abbott shows that his condition has
changed since he was found to be a sexually violent person in 2010. Respondent argues that the
State’s interpretation of section 65 is inconsistent with the supreme court’s decision in
Stanbridge, 2012 IL 112337, and was previously rejected by this court in In re Commitment of
Rendon, 2017 IL App (1st) 153201. Respondent further argues that the State’s interpretation
would result in the statute being unconstitutional.
¶ 60 This issue was previously considered by this court in Rendon, 2017 IL App (1st) 153201.
In Rendon, the committed person challenged the 2012 amendment to section 65, adding the
language “since the most recent periodic reexamination,” arguing that the amendment was
“unduly restrictive, forcing a petitioner to essentially rely only on facts occurring since the
most recent reexamination, within the preceding year.” (Emphases in original and internal
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quotation marks omitted.) Id. ¶ 21. The respondent further argued that the amendment had “a
retroactive effect” and that the court should “apply the pre-amendment statute.” Id.
¶ 61 This court, however, disagreed with the committed person’s interpretation of the
amendment, determining that the amendment “did not preclude consideration of a
respondent’s full mental health and sexual history or relevant historical facts.” Id. ¶ 23.
“Construing the statute logically, it simply means the court must consider the professional
conclusions as to a respondent’s status in the most recent report and any changed
circumstances.” Id. The court determined that the amendment was “simply a clarification of
what the circuit court was already tasked with determining in any case involving application
for discharge or conditional release—i.e.[,] whether the respondent’s current status reflects a
mental disorder or that he is still a danger to society such that he is substantially probable to
reoffend.” (Emphases in original.) Id.
¶ 62 Based on this standard, we conclude that respondent has met his “very low burden” to
show probable cause to advance to an evidentiary hearing. Id. ¶ 29 (citing In re Commitment of
Wilcoxen, 2016 IL App (3d) 140539, ¶ 30).
¶ 63 In Dr. Abbott’s report, he determined that respondent “no longer suffers from a legally
defined mental disorder based on changes in circumstances associated with age-related
modifications in his sexual and psychological functioning, and physical health.” He believed
that respondent’s previously-diagnosed antisocial personality disorder had remitted, due to
“psychological changes associated with aging,” and that his “infrequent behavior problems”
since his commitment did not “meet the enduring pattern of personality traits necessary to
substantiate a personality disorder diagnosis.” Regarding the prior paraphilia diagnosis, Dr.
Abbott also believed that there had been a demonstrated change in his mental disorder, which
was explained by “age related factors leading to the remission of deviant sexual behaviors.”
Respondent reported a decline in his sexual drive, and Dr. Abbott noted that respondent’s
self-report was supported by records showing that he had not acted in sexually inappropriate or
illegal ways since his commitment and that he had not demonstrated “institutional signs” of
paraphilia. Respondent’s decline in sex drive and improved executive functions associated
with advancing age resulted in “overall improvement in his interpersonal functioning,”
allowing respondent to better “deliberate over the consequences of his behavior before acting”
and to “refrain from acting in sexually violent ways.”
¶ 64 Dr. Abbott also concluded that, even assuming respondent suffered from a mental disorder,
he “no longer presents as being substantially probable to commit acts of sexual violence.”
Based on his Static-99R analysis, he found a five-year rate of recidivism between 15.2% and
20.5%. Dr. Abbott stated, however, that the Static-99R rates overestimate risk for older
offenders based on an “over-representation by younger age offenders who sexually reoffend at
higher rates.”
¶ 65 Although a comparison of Dr. Gaskell’s and Dr. Abbott’s reports indicate that the experts
substantially disagree on several issues, we will not “weigh conflicting evidence and choose
between expert opinions” at this preliminary stage. Stanbridge, 2012 IL 112337, ¶ 64. Based
on the above report of Dr. Abbott, we conclude that respondent has provided at least the
“ ‘relatively low’ ” quantum of evidence necessary to support a probable cause hearing. Hayes,
2015 IL App (1st) 142424, ¶ 18 (quoting Hardin, 238 Ill. 2d at 52).
¶ 66 Having so found, we turn to respondent’s appeal of the June 6, 2017, order, denying his
subsequent motion to reconsider that judgment and granting the State’s 2017 motion for a
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finding of no probable cause. Since we have already found that respondent is entitled to a
hearing based on the record from respondent’s initial petition for discharge in 2016, we
consider whether there is anything in the record from the subsequent proceedings that would
impact our conclusion.
¶ 67 As an initial matter, the State contends that the trial court lacked jurisdiction to consider
respondent’s motion to reconsider, since it was untimely pursuant to section 2-1203 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-1203(a) (West 2014)). Respondent asserts that
his motion did not cite section 2-1203 of the Code and that it did not provide the basis for his
motion to reconsider. Respondent contends instead that he brought his motion to reconsider
“pursuant to the Act.”
¶ 68 Section 20 of the Act provides that proceedings under the Act are “civil in nature” and that
the Code “shall apply to all proceedings hereunder except as otherwise provided in this Act.”
725 ILCS 207/20 (West 2014); see also People v. Miller, 2014 IL App (1st) 122186, ¶ 20 (“the
provisions of the Code apply to commitment proceedings only where they do not conflict with
the Act”). Additionally, pursuant to section 2-1203 of the Code (735 ILCS 5/2-1203(a) (West
2014)), in nonjury cases, a party has 30 days after the entry of the judgment to file a motion to
reconsider.
¶ 69 Respondent contends that section 2-1203 of the Code does not apply to his motion to
reconsider because it was filed pursuant to the Act itself. Respondent contends that section
2-1203 conflicts with section 55(c) of the Act, which provides that a court may order a
reexamination of the committed person “at any time during the period in which the person is
subject to the commitment order.” 725 ILCS 207/55(c) (West 2014). We are unconvinced.
¶ 70 The Act’s provision that a court may order a reexamination of a committed person is
independent of, and does not conflict with, the Code’s requirement that motions to reconsider
must be brought within 30 days of the judgment. Respondent could, and indeed did, petition
the court to allow such a reexamination pursuant to section 55(c), without filing a motion to
reconsider. We also note that section 2-1203 of the Code has been previously applied in a case
arising from the Act. See In re Commitment of Simons, 2015 IL App (5th) 140566, ¶ 18.
¶ 71 Accordingly, we determine that section 2-1203 of the Code applies to respondent’s motion
to reconsider. Because respondent filed his motion to reconsider the order of June 21, 2016,
approximately six months later—on December 16, 2016—respondent’s motion was untimely
under section 2-1203 of the Code and the trial court had no jurisdiction to hear it. Lampe v.
Pawlarczyk, 314 Ill. App. 3d 455, 475 (2000); Beck v. Stepp, 144 Ill. 2d 232, 238 (1991) (“trial
court loses jurisdiction to vacate or modify its judgment 30 days after entry of judgment
[citations] unless a timely post-judgment motion is filed”); In re Application of the County
Treasurer & Ex-Officio County Collector, 208 Ill. App. 3d 561, 563-64 (1990) (trial court’s
denial of motion to reconsider is void for lack of jurisdiction where motion itself was untimely
filed).
¶ 72 Although we agree with the State that the trial court lacked jurisdiction to consider
respondent’s untimely motion to reconsider, the issue is moot, in any event, since we have
already concluded that respondent is entitled to a hearing based on the record from
respondent’s initial petition for discharge in 2016. Moreover, the court unquestionably had
jurisdiction to consider the State’s annual motion for finding of no probable cause, filed March
29, 2017. Accordingly, we will consider the evidence presented at the hearing on the State’s
motion.
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¶ 73 In addition to Dr. Abbott’s initial report, outlined above, the additional report of Dr.
Abbott, dated December 12, 2016, lends further support to our conclusion that respondent met
his burden. In that report, Dr. Abbott continued to opine that respondent was no longer a
sexually violent person. Dr. Abbott’s opinion was supported, in part, by new evidence since
the prior annual reexamination, specifically, that respondent had recently undergone “eight
weeks of radiation therapy” and that respondent’s oncologist advised Dr. Abbott that “patients
who undergo the treatment that [respondent] received do not regain sexual functioning without
the aid of medical intervention.” Dr. Abbott further indicated that respondent had not had any
medical intervention to regain sexual functioning and that he did not presently experience
“sexual thoughts or urges in general or involving forcible or nonconsenting sexual acts.”
¶ 74 Given Dr. Abbott’s 2016 initial report, and the additional support provided in his 2017
reexamination report, we conclude that respondent is entitled to an evidentiary hearing to
determine whether he is still a sexually violent person as defined by the Act. See Rendon, 2017
IL App (1st) 153201, ¶ 32 (finding the respondent to have presented “sufficient evidence to
show probable cause for an evidentiary hearing” in light of respondent’s age, low recidivism
rate on the Static-99R, and participation in treatment).
¶ 75 Accordingly, we remand this matter for the trial court to conduct an evidentiary hearing to
determine whether respondent remains a sexually violent person. At this hearing, the parties
can raise the various matters at issue in each of these consolidated proceedings, including the
conflicting expert reports from 2016 and 2017, and the fact finder can determine the credibility
and weight to be given to the experts’ testimony and opinions. We express no opinion on
whether respondent or the State will ultimately prevail after an evidentiary hearing.
¶ 76 In light of the above, we need not reach respondent’s alternative argument, that an
evidentiary hearing is constitutionally required by the due process clause of the fourteenth
amendment to the United States Constitution. See In re E.H., 224 Ill. 2d 172, 178 (2006)
(“cases should be decided on nonconstitutional grounds whenever possible, reaching
constitutional issues only as a last resort”).
¶ 77 Based on the foregoing, we reverse the judgment of the trial court finding no probable
cause for an evidentiary hearing. We remand the case for further proceedings consistent with
this opinion.
¶ 78 Reversed and remanded.
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