In re the Detention of Stanbridge ( 2011 )

NO. 4-10-0206 Opinion Filed 3/30/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Detention of KEVIN W. ) Appeal from
STANBRIDGE, a Sexually Violent Person, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Adams County
Petitioner-Appellee, ) No. 05MR45
v. )
KEVIN W. STANBRIDGE, ) Honorable
Respondent-Appellant. ) William O. Mays,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.
OPINION
In April 2009, respondent, Kevin W. Stanbridge, filed
an amended petition for discharge from the custody and control of
the Illinois Department of Human Services (IDHS) pursuant to
section 70 of the Sexually Violent Persons Commitment Act (725
ILCS 207/70 (West 2008)). In October 2009, the State filed a
motion for finding of no probable cause based upon review of
reevaluation report under section 55 of the Act (725 ILCS 207/55
(West 2008)). Following a January 2010 hearing on the parties'
respective filings, the trial court (1) denied respondent's
amended petition and (2) granted the State's motion, finding that
no probable cause was shown to warrant an evidentiary hearing to
determine whether respondent remained a sexually violent person.
Respondent appeals, arguing that the trial court abused
its discretion by denying his amended petition for discharge from
IDHS custody and control. We reverse and remand.
I. BACKGROUND
A. The Circumstances Surrounding Respondent's Detention
In November 1999, the State charged respondent (then 35
years old) with aggravated criminal sexual abuse (720 ILCS 5/12-
16(d) (West 1998)), alleging that he committed an act of sexual
penetration with a 14 year old by placing his mouth on the boy's
penis. Following a jury trial, respondent was convicted, and the
trial court sentenced him to seven years in prison. In May 2004,
this court reversed respondent's conviction and remanded the case
for a new trial. People v. Stanbridge, 348 Ill. App. 3d 351, 810
N.E.2d 88 (2004).
Following an April 2005 retrial, a jury convicted
respondent of aggravated criminal sexual abuse (720 ILCS 5/12-
16(d) (West 1998)). Respondent appealed, and this court affirmed
that conviction. People v. Stanbridge, No. 4-05-0585 (June 14,
2007) (unpublished order under Supreme Court Rule 23).
In May 2005--while respondent's appeal in case No. 4-
05-0585 was pending--the State petitioned the trial court to
detain respondent pursuant to the Act. The State alleged that
(1) respondent suffered from the following mental disorders: (a)
pedophilia, sexually attracted to males, nonexclusive type, (b)
paraphilia, not otherwise specified, sexually attracted to
adolescent males, and (c) antisocial personality disorder; and
(2) because of respondent's disorders, he was predisposed to
commit future acts of sexual violence. The court later found
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probable cause to believe that respondent was a sexually violent
person and ordered him detained in an IDHS facility pending
trial.
Following an October 2007 trial on the State's peti-
tion, a jury adjudicated respondent a sexually violent person as
defined in section 5(f) of the Act (725 ILCS 207/5(f) (West
2004)). In February 2008, the trial court ordered respondent
committed to a secure facility for institutional care until "such
time as [r]espondent is no longer a sexually violent person."
B. The Parties' Respective Filings
In April 2009, respondent filed an amended petition for
discharge from IDHS custody and control pursuant to section 70 of
the Act (725 ILCS 207/70 (West 2008)). At a hearing conducted
later that same month, the trial court ordered a psychological
evaluation of respondent, which was later conducted by Dr. Kirk
Witherspoon, a clinical and forensic psychologist.
In October 2009, the State filed a motion for finding
of no probable cause based upon review of reevaluation report
under section 55 of the Act (725 ILCS 207/55 (West 2008)).
Attached to that motion was a 30-page report describing the 18-
month psychological reevaluation of respondent conducted by Dr.
Edward Smith, a clinical psychologist.
In January 2010, Witherspoon filed a 32-page amended
psychological evaluation detailing his findings.
C. The Evidence Presented at Respondent's
Probable-Cause Hearing
At a January 2010 probable-cause hearing, the trial
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court considered (1) respondent's amended petition for discharge
from IDHS custody and control and (2) the State's motion for
finding of no probable cause based upon review of reevaluation
report. The evidence presented at that hearing originated from
two written psychological evaluations of respondent conducted by
Witherspoon and Smith.
We note that in the following general summaries of the
parties' expert evaluations, we deliberately omit the specific
details of the respective psychological testing methodologies
used because such specificity is not necessary to the resolution
of the issue before us--that is, whether Witherspoon's unchal-
lenged psychological evaluation was sufficient to establish
probable cause that respondent was no longer a sexually violent
person.
1. Witherspoon's Amended Psychological Evaluation
After reviewing the relevant records regarding respon-
dent's conviction and detention, Witherspoon administered to
respondent two separate "psychological inventories" designed to
measure deviant sexual attitudes and behavior. Witherspoon noted
that respondent's inventory test results did not show (1) present
or historic antisocial tendencies or (2) any form of deviant
sexual psychopathology.
Witherspoon also administered three actuarial assess-
ment instruments designed to predict sexual-offense-recidivism
rates. Witherspoon explained that respondent's test score on one
assessment placed him in (1) the low to moderate recidivism risk
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category and (2) a category of offenders who averaged a 7%
recidivism risk rate over a 5-year period. Witherspoon opined
that respondent's test score meant that on average, 93% of his
age group would not commit further sexual offenses. Witherspoon
anticipated that because respondent did not exhibit difficulties
in any of the measured domains, he would be a "low" recidivism
risk, which translated into a 95% nonrecidivism rate for his age
group.
Respondent's test score on the remaining assessments
showed that (1) respondent's antisocial tendencies were on par
with "average nonincarcerated males" and (2) none of respondent's
profile scores reached the "cause for concern" level, which
suggested a low recidivism risk.
Witherspoon stated that his clinical impressions, which
were based on respondent's two previous reevaluations and the
data gathered during Witherspoon's current assessment, were that
respondent did not demonstrate significant emotional, interper-
sonal, behavioral, or cognitive problems. Witherspoon identified
one exception regarding respondent's history of alcohol abuse,
which Witherspoon opined was in "long-term remission."
Witherspoon summarized his findings as follows:
"[B]alanced consideration of the adjusted
actuarial and structured professional judg-
ment risk assessments procedures employed in
the present evaluation suggested placing
[respondent] within a 'low' relative sexual
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reoffense risk category in comparison to
other convicted sexual offenders."
Based on his evaluation, Witherspoon recommended, in pertinent
part, that respondent be discharged from IDHS care and oversight.
2. Smith's Psychological Reexamination
After reviewing respondent's IDHS records, a peer
consultation, and his previous six-month psychological examina-
tion of respondent, Smith concluded that respondent met the
criteria for the following disorders: (1) paraphilia, not other-
wise specified, sexually attracted to adolescent males; (2)
alcohol abuse, in a controlled environment; and (3) personality
disorder, not otherwise specified, with antisocial traits. Smith
explained that paraphilia is associated with (1) recurrent,
intense sexually arousing fantasies, urges, or behaviors gener-
ally involving nonhuman objects or (2) the suffering or humilia-
tion of oneself, children, or other nonconsenting adults. Smith
also concluded that he could not rule out pedophilia, sexually
attracted to males, nonexclusive type.
Smith assessed respondent's sexual-offense-recidivism
rate further by administering two actuarial assessment instru-
ments that were different from those administered by Witherspoon.
Respondent's test score on one assessment placed him in the
moderate to high category of recidivism risk. Smith noted that
12% to 14.2% of sexual offenders with similar scores were charged
or convicted of another sexual offense within a 5-year period,
with that percentage increasing to 16.5% to 20.6% over a 10-year
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period. Smith noted further that respondent's score on the
second assessment placed him in the high-risk recidivism cate-
gory, but acknowledged that the specific test he administered is
more effective in predicting sexual-offense-recidivism rates for
rapists and extrafamilial child molesters than for intrafamilial
child molesters.
Smith also identified the following five additional
risk factors, which were not measured by actuarial instruments
but instead based on two meta-analyses: (1) any personality
disorder, (2) any substance abuse, (3) intoxication during sexual
offense, (4) intimate relationship conflicts, and (5) any deviant
sexual interests.
Based on his evaluation, Smith concluded that (1)
respondent's risk assessments coupled with the additional risk
factors suggested that a substantial probability existed that
respondent would engage in further acts of sexual violence and
(2) respondent has not made sufficient progress in lowering his
sexual-offense-recidivism risk to conclude that he is safe to be
managed in the community on conditional release.
D. The Trial Court's Judgment
After noting that it had considered the respective
expert reports and the parties' arguments, the trial court made
the following findings:
"[T]he court found [respondent] to be a sexu-
ally violent person[--]had the appropriate
diagnosis and findings [in February 2008].
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[The court does not] see where the [State's]
expert, *** Smith, has found that there is
anything different than that, based on what
has occurred between now and the time of the
original finding.
Witherspoon, if [the court] remembers
correctly, came up with many of the same
conclusions at the time of the original hear-
ing, and that's in fact what was determined
by the jury. So it seems to [this court
that] at this point[,] there is no probable
cause to proceed with a full hearing on the
matter, and the court would so rule."
In February 2010, the trial court entered a written
order (1) denying respondent's amended petition and (2) granting
the State's motion. Specifically, the court found that based on
a "review of the reports, concerning the 18-month re[]evaluation
of respondent," no probable cause existed to warrant an eviden-
tiary hearing to determine whether respondent remained a sexually
violent person. (Emphasis in original.)
This appeal followed.
II. THE TRIAL COURT'S FINDING THAT NO PROBABLE CAUSE
EXISTED TO WARRANT AN EVIDENTIARY HEARING
Respondent argues that the trial court abused its
discretion by denying his amended petition for discharge from
IDHS custody and control. Specifically, respondent contends that
the court weighed the conflicting testimony of the parties'
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respective experts instead of determining only whether the
evidence presented established probable cause to warrant an
evidentiary hearing. We agree.
A. The Appropriate Standard of Review
The parties disagree over the proper standard of
review. Respondent, citing In re Ottinger, 333 Ill. App. 3d 114,
120, 775 N.E.2d 203, 208 (2002), argues that whether probable
cause exists to warrant an evidentiary hearing under the Act is a
matter resting within the sound discretion of the trial court.
However, in the context of the case before us--namely, a case in
which the trial court considered only the written reports of the
parties' respective experts, instead of considering their
testimony--we agree with the State that our review is de novo.
See Schmitz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 405
Ill. App. 3d 240, 244, 939 N.E.2d 40, 44 (2010) (the appellate
court reviews de novo a trial court's determination that is based
solely on documentary evidence).
B. Sexually Violent Person as Defined Under the Act
Section 5(f) of the Act provides as follows:
" 'Sexually violent person' means 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 vio-
lence." 725 ILCS 207/5(f) (West 2008).
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C. Proceedings Under the Act
Section 70 of the Act, entitled "Additional discharge
petitions," provides as follows:
"In addition to the procedures under Section
65 of this Act, a committed person may peti-
tion the committing court for discharge at
any time, and the court must set the matter
for a probable cause hearing ***. *** If
the person has not previously filed a peti-
tion for discharge without the Secretary's
approval, the court shall set a probable
cause hearing and continue proceedings under
paragraph (b)(2) of Section 65, if appropri-
ate." 725 ILCS 207/70 (West 2008).
(Section 65(b)(2) of the Act mandates an evidentiary hearing when
a trial court finds probable cause exists to believe a respondent
is no longer a sexually violent person.)
D. Respondent's Claim That the Trial Court Abused Its Discretion
by Denying His Amended Petition for Discharge
As previously stated, respondent contends that the
trial court abused its discretion by weighing the conflicting
testimony of the parties' respective experts instead of determin-
ing only whether the evidence presented established probable
cause to warrant an evidentiary hearing. In support of his
contention, respondent relies, in part, on Justice Stewart's
dissent in In re Detention of Cain, 402 Ill. App. 3d 390, 397-
400, 931 N.E.2d 337, 342-44 (2010) (Stewart, J., dissenting),
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which involved facts similar to this case.
In Cain, 402 Ill. App. 3d at 391, 931 N.E.2d at 337,
the respondent was (1) adjudicated a sexually violent person
under the Act and (2) committed to IDHS for care, custody, and
treatment. Eight years later, after denial of numerous previous
petitions, the respondent filed another petition for discharge or
conditional release pursuant to the Act. Cain, 402 Ill. App. 3d
at 391, 931 N.E.2d at 337-38. At a probable-cause hearing on the
respondent's petition, the trial court considered (1) the State's
reexamination evaluation prepared by Dr. Raymond Wood and (2) a
psychological evaluation prepared by the respondent's court-
appointed expert, Dr. Kirk Witherspoon, the same expert whose
report is at issue in the present case. Id., at 391-92, 931
N.E.2d at 338.
Wood employed two actuarial assessment instruments to
designate the 71-year-old respondent as a moderate to high risk
to sexually reoffend. Cain, 402 Ill. App. 3d at 393, 931 N.E.2d
at 339. Wood's evaluation noted the respondent had additional
risk factors, which included his (1) personality disorder, (2)
low motivation for treatment, (3) lack of remorse, (4) victim-
blaming stance, (5) tolerant sex-crimes attitude, and (6) sexual
interest in children. Wood also noted that respondent did not
warrant a reduction in his recidivism risk because of his medical
condition, age, or progress in sex-offense-specific treatment.
Cain, 402 Ill. App. 3d at 393-94, 931 N.E.2d at 339. Wood
characterized the respondent as "dangerous" in that it was
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substantially probable that he would engage in further acts of
sexual violence if released. Cain, 402 Ill. App. 3d at 394, 931
N.E.2d at 339.
Witherspoon countered by administering two different
actuarial assessment instruments, which showed that the respon-
dent (1) was " 'not associated with marked antisocial tendencies'
" and (2) had a profile that suggested a low recidivism risk.
Cain, 402 Ill. App. 3d at 395, 931 N.E.2d at 340. Witherspoon
recommended that the respondent be discharged from IDHS custody
and control based on his (1) low recidivism risk due primarily to
his age, (2) increasing infirmity, and (3) abated, if not absent,
sexually deviant interests and propensities. Id.In affirming the trial court's dismissal of the respon-
dent's petition for discharge or conditional release, the appel-
late court noted that the trial court "obviously gave Wood's
opinions regarding the respondent's dangerousness greater weight
than Witherspoon's." Cain, 402 Ill. App. 3d at 397, 931 N.E.2d
at 342.
Justice Stewart dissented, concluding that the con-
flicting opinions of the qualified experts as to the respondent's
recidivism risk constituted sufficient probable cause to warrant
an evidentiary hearing. Cain, 402 Ill. App. 3d at 397, 931
N.E.2d at 342 (Stewart, J., dissenting). In support of his
position, Justice Stewart noted the following:
"The procedure the majority affirms allows
the trial court to choose between conflicting
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expert reports as the primary basis of its
decision that one who is imprisoned indefi-
nitely, albeit for treatment, is not entitled
to a trial to determine if he must remain
imprisoned indefinitely. Instead of allowing
a trial at which disputed questions of fact
can be resolved, this procedure allows the
court to bypass all of the truth-seeking
functions and protections of our rules of
evidence. The problem with the procedure the
majority affirms is that it is devoid of any
standard by which it can be determined what
must be presented by a detainee to justify a
finding of probable cause. If the statutory
procedures by which a detainee is allowed to
raise the possibility of his discharge or
conditional release are to have any meaning,
then a detainee should be able to discern
what is required in order to obtain a trial
at which a trier of fact can consider and
resolve disputed issues of fact.
* * *
The procedure affirmed by the majority
is contrary to the rules of evidence and is
not supported by the plain words of the Act.
It is contrary to the rules of evidence be-
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cause it requires a trial judge to do the
impossible--make credibility and reliability
determinations based upon the content of
written reports of experts without any testi-
mony from the authors. It is not supported
by the plain words of the Act because the
plain meaning of a probable cause hearing is
to determine whether reasonable grounds exist
to believe that a detainee should be dis-
charged or conditionally released. If such
grounds exist, the detainee is entitled to a
trial where a trier of fact weighs the credi-
bility of witnesses, not reports, and deter-
mines the ultimate issue. Surely, the writ-
ten opinion of a qualified expert that a
detainee should be discharged meets the prob-
able cause standard." Cain, 402 Ill. App. 3d
at 397-400, 931 N.E.2d at 342-44 (Stewart,
J., dissenting).
We find Justice Stewart's rationale and reasoning persuasive and
agree with his conclusion that the trial court's responsibility
at a probable-cause hearing under the Act does not involve the
weighing of conflicting expert opinions but, instead, determining
whether reasonable grounds exist to believe that a detainee
should be discharged or conditionally released.
We find support for that conclusion in In re Detention
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of Hardin, 238 Ill. 2d 33, 932 N.E.2d 1016 (2010), a case decided
the day before Cain. One of the issues decided in Hardin in-
volved determining "the quantum of evidence necessary to estab-
lish the three elements required for a finding of probable cause
in a [sexually violent person] proceeding" under section 30 of
the Act (725 ILCS 207/30 (West 2008)). Hardin, 238 Ill. 2d at
44, 932 N.E.2d at 1022. In defining that evidentiary standard--
an issue of first impression--the supreme court adopted the
following rationale employed in State v. Watson, 227 Wis. 2d 167,
205, 595 N.W.2d 403, 420 (1999), a case involving a Wisconsin
statute similar to the one at issue in this case:
"In a [sexually violent person] probable
cause hearing, the Watson court merely re-
quired the State to 'establish a plausible
account on each of the required elements to
assure the court that there is a substantial
basis for the petition.' (Emphasis added.)
[Citation.] In making that determination,
the trial judge must consider 'all reasonable
inferences that can be drawn from the facts
in evidence.' [Citation.] The requirement
that the evidence supporting each element be
'plausible' indicates that trial judges need
not ignore blatant credibility problems, but
the Watson court stressed that this type of
hearing was 'not a proper forum to choose
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between conflicting facts or inferences.'
[Citation.] Consequently[,] if after hearing
the evidence, the trial judge decides the
probable cause determination is supported by
a reasonable inference, the cause should be
held over for a full trial.
Today we adopt the Watson evidentiary
standards to guide our own [sexually violent
person] probable cause proceedings. They are
consistent with our traditional approach in
criminal cases and provide significant guid-
ance to our trial courts for probable cause
hearings in [sexually violent person] pro-
ceedings." Hardin, 238 Ill. 2d at 48, 932
N.E.2d at 1024.
The supreme court clarified the probable-cause standard
further in Hardin by quoting the following:
"In People v. Jackson, we explained that
'whether probable cause exists is
governed by commonsense consider-
ations, and the calculation con-
cerns the probability of criminal
activity, rather than proof beyond
a reasonable doubt. [Citation.]
"Indeed, probable cause does not
even demand a showing that the
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belief that the suspect has commit-
ted a crime be more likely true
than false." [Citation.]' (Empha-
sis added.) People v. Jackson, 232
Ill. 2d 246, 275[, 903 N.E.2d 388,
403] (2009).
Although Jackson addressed probable cause in
the context of a motion to quash arrest and
suppress evidence (Jackson, 232 Ill. 2d at
274[, 903 N.E.2d at 403]), the same concept
is applicable in other criminal contexts,
such as preliminary hearings (725 ILCS
5/111-2(a) (West 2006) ***)." Hardin, 238
Ill. 2d at 45, 932 N.E.2d at 1022-23.
In light of the aforementioned principles, we turn to
the merits of respondent's contention that the trial court abused
its discretion by weighing the conflicting testimony of the
parties' respective experts instead of determining only whether
the evidence presented established probable cause to warrant an
evidentiary hearing.
In this case, the evidence respondent presented at the
January 2010 probable-cause hearing (through the report of
Witherspoon, whose expertise the State does not challenge) showed
that (1) he did not exhibit (a) present or historic antisocial
tendencies or (b) any form of deviant sexual psychopathology; (2)
he was assessed as a "low to moderate" recidivism risk on one
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actuarial assessment and a "low" recidivism risk on two other
actuarial assessments; and (3) Witherspoon, a clinical and
forensic psychologist, recommended respondent's discharge from
IDHS care and control based on his expert opinion that respondent
did not demonstrate significant emotional, interpersonal, behav-
ioral, or cognitive problems.
Notwithstanding the aforementioned evidence, the trial
court's comments immediately prior to denying respondent's
amended petition at the January 2010 hearing showed that it (1)
relied on the State's expert evaluation to find that nothing had
changed since respondent's commitment in February 2008 and (2)
discounted Witherspoon's evidence by referring only to the
evidence Witherspoon presented at the October 2007 trial on the
State's original petition to detain him. In addition, although
the court stated in its February 2010 written order that it
considered Witherspoon's amended psychological evaluation, the
court's February 2010 order clearly shows that it placed greater
emphasis on the State's expert evidence when it (1) denied
respondent's amended petition for discharge from IDHS custody and
control under section 70 of the Act (725 ILCS 207/70 (West 2008))
and (2) granted the State's motion for finding of no probable
cause based upon review of reevaluation report under section 55
of the Act (725 ILCS 207/55 (West 2008)).
As the supreme court stated in Hardin, 238 Ill. 2d at
52, 932 N.E.2d at 1026, a probable-cause hearing under the Act is
a preliminary proceeding that "determine[s] essential or basic
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facts as to probabilities *** while remaining cognizant of the
respondent's liberty rights." (Internal quotation marks omit-
ted.) Here, the trial court improperly weighed the contradictory
evidence presented by the parties' respective psychological
experts instead of determining whether respondent's evidence that
he was no longer a sexually violent person was plausible. See
Hardin, 238 Ill. 2d at 49, 932 N.E.2d at 1025 (as long as the
evidence establishes a plausible account, probable cause is
established). Because we conclude that the evidence respondent
presented was sufficient to establish probable cause that he was
no longer a sexually violent person, we reverse the trial court's
judgment and, consistent with the legislature's intent as ex-
pressed in section 65(b)(2) of the Act, remand with directions
that the court conduct an evidentiary hearing on respondent's
amended petition for discharge from IDHS custody and control.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand with directions that it conduct an eviden-
tiary hearing pursuant to section 65(b)(2) of the Act (725 ILCS
207/65(b)(2) (West 2008)).
Reversed; cause remanded with directions.
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