Illinois Official Reports
Appellate Court
In re Commitment of Walker, 2014 IL App (2d) 130372
Appellate Court In re COMMITMENT OF FRANKIE N. WALKER, SR. (The People
Caption of the State of Illinois, Petitioner-Appellee, v. Frankie N. Walker, Sr.,
Respondent-Appellant).
District & No. Second District
Docket No. 2-13-0372
Filed September 26, 2014
Held Respondent’s commitment to a secure facility as a sexually dangerous
(Note: This syllabus person was upheld, since there was no basis for respondent’s
constitutes no part of the contention that Apprendi should be extended to civil matters such as
opinion of the court but his commitment proceedings, his facial challenge to the
has been prepared by the constitutionality of section 40 of the Sexually Violent Persons
Reporter of Decisions Commitment Act on various grounds was rejected, the requirement
for the convenience of that respondent be a “sexually violent person” was previously
the reader.) established and did not have to be revisited in the dispositional
proceedings, respondent’s contention that the trial court erred in
allowing his stipulation to his condition was unpersuasive, and the
appellate court rejected respondent’s contention that a Frye hearing
should have been conducted on the diagnosis of respondent’s
condition made by one of the State’s physicians.
Decision Under Appeal from the Circuit Court of Lake County, No. 07-MR-152; the
Review Hon. Victoria A. Rossetti, Judge, presiding.
Judgment Affirmed.
Counsel on Eric F. Rinehart, of Malia & Rinehart, of Waukegan, for appellant.
Appeal
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Solicitor General, and Michael M. Glick and Katherine M. Doersch,
Assistant Attorneys General, of counsel), for the People.
Panel JUSTICE HUDSON delivered the judgment of the court, with
opinion.
Justices Schostok and Spence concurred in the judgment and opinion.
OPINION
¶1 Respondent, Frankie N. Walker, Sr., was adjudicated a sexually violent person (SVP) and
committed to confinement in a secure facility. He now appeals, raising a number of issues
regarding the authority of the trial court and the conduct of the proceedings below. For the
reasons that follow, we affirm.
¶2 I. BACKGROUND
¶3 In February 2007, the State filed a petition seeking respondent’s commitment in
accordance with the Sexually Violent Persons Commitment Act (Act or SVPA) (725 ILCS
207/1 et seq. (West 2006)). The petition alleged that defendant had pleaded guilty to the
offense of attempted predatory criminal sexual assault of a child. It also alleged that
respondent had been diagnosed by Dr. Ray Quackenbush with paraphilia, not otherwise
specified (NOS), nonconsent, which it described as “a congenital or acquired condition
affecting [respondent’s] emotional or volitional capacity, which predisposes [respondent] to
commit acts of sexual violence.” It continued, “Respondent is dangerous because this mental
disorder makes it substantially probable that he will engage in acts of sexual violence.”
Quackenbush’s report was attached to the petition. Following a hearing, the trial court found
that there was probable cause to believe that respondent is a sexually violent person within
the meaning of section 5(f) of the Act (725 ILCS 207/5(f) (West 2006) (“ ‘Sexually violent
person’ means a person who has been convicted of a sexually violent offense, has been
adjudicated delinquent for a sexually violent offense, or has been found not guilty of a
sexually violent offense by reason of insanity 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.”)). In April 2007, pursuant to respondent’s request, the trial court
appointed Dr. Ronald Baron as respondent’s expert. Respondent was also examined by Dr.
Raymond Wood on behalf of the State.
¶4 On July 8, 2008, the parties entered into a stipulation. Before accepting the stipulation,
the trial court addressed respondent:
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“THE COURT: Before we go forward with [the stipulation], Mr. Walker, have
you gone over all of this with [your attorney]?
[RESPONDENT]: Yes.
THE COURT: Do you have any other questions or issues you need to go over
with him?
[RESPONDENT]: No.
THE COURT: Do you understand that you do have the right to a jury trial. Your
trial could be either in front of a Judge or in front of a jury. You understand that?
[RESPONDENT]: Yes.
THE COURT: Do you have any other questions about that that you need to go
over with [your attorney]?
[RESPONDENT]: About the trial? No, ma’am.
THE COURT: You understand that at the trial the State would bring in their
witnesses who would testify. You understand that?
[RESPONDENT]: Yes, I do.
THE COURT: [Your attorney] would have the ability to cross-examine or
question them. You understand that?
[RESPONDENT]: Yes.
THE COURT: You could bring in witnesses.
[RESPONDENT]: Okay.
THE COURT: You could testify if you wanted to. Do you understand that?
[RESPONDENT]: Yes, I do.
THE COURT: After going over this with [your attorney] again this is what you
choose to do?
[RESPONDENT]: I do.
THE COURT: Has anybody forced you or threatened you to get you to do this?
[RESPONDENT]: No, ma’am.
THE COURT: Have you been promised anything?
[RESPONDENT]: No.”
The State then went over what Quackenbush and Wood would testify to. The trial court again
addressed respondent:
“THE COURT: Mr. Walker, you have gone over that stipulation with [your
attorney]?
[RESPONDENT]: Yes.
THE COURT: You understand what was presented this morning?
[RESPONDENT]: Yes, I do.”
After the stipulation was presented, the trial court stated, “[B]ased on the stipulation the
Court will find that you are a sexually violent person.”
¶5 The stipulation provided:
(1) “that [t]his Stipulation and Agreement is entered into by the Respondent freely
and voluntarily and after consulting with his attorney,”
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(2) “that the Respondent has read and understands the allegations and request for
relief contained in the Petition for Sexually Violent Person Commitment filed
herein,”
(3) “that Respondent understands that he has the right to deny the Petition or to
admit to the Petition,”
(4) “that Respondent waives the right to have a mental health professional present
evidence at trial,”
(5) “that Respondent waives his right to a trial by a jury or by a judge,”
(6) “that Respondent waives his right to present evidence at trial,”
(7) “that the Respondent waives his right to have the People prove that he is a
sexually violent person beyond a reasonable doubt,”
(8) “that Respondent has been adjudicated delinquent of the sexually violent
offense of Attempt Predatory Criminal Sexual Assault of a Child in Lake County,
Illinois, in 2002, in case number 02 CF 448,”
(9) “that if this case was to proceed to trial, the People would call Dr. Ray
Quackenbush and Dr. Ray Wood to testify,”
(10) “that Dr. Quackenbush and Dr. Wood are experts in clinical psychology in
the evaluation and treatment of sex offenders,”
(11) “that if Drs. Quackenbush and Wood were called to testify at trial, they
would testify to facts and information as contained in their evaluation reports dated
January 31, 2007 (Dr. Quackenbush) and May 25, 2007 (Dr. Wood), and previously
filed in this cause, attached as Exhibits A and B,”
(12) “that if Drs. Quackenbush and Wood were called to testify at trial, they
would testify that based on their experience, education, training, review of
Respondent’s records and their interviews of the Respondent, it is their opinion,
within a reasonable degree of psychological certainty, that the Respondent suffers
from the mental disorders of Paraphilia, Not Otherwise Specified, Nonconsent (Dr.
Quackenbush) and Paraphilia, Not Otherwise Specified, Sexually Attracted to
Non-Consenting Females, Nonexclusive type and Pedophilia, Sexually Attracted to
Females, Nonexclusive Type (Dr. Wood). Drs. Quackenbush and Wood would also
testify that these mental disorders are congenital or acquired conditions that seriously
affect the Respondent’s emotional or volitional capacity and predispose him to
engage in acts of sexual violence. Drs. Quackenbush and Wood would also testify
that these mental disorders cause Respondent serious difficulty in controlling his
behavior. Drs. Quackenbush and Wood would also testify that Respondent is
dangerous because his mental disorders make it substantially probable that
Respondent will engage in future acts of sexual violence,”
(13) “that the Respondent is a sexually violent person,”
(14) “that Respondent has the right to a predispositional report and the right to a
dispositional hearing,” and
(15) “that the Respondent is committed to the custody of the Department of
Human Services for control, care and treatment in a secure setting until his
dispositional hearing.”
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Both respondent and his attorney personally signed the stipulation. The trial court also
entered an agreed order on that date. The order found that respondent’s attorney read to
respondent–and that respondent understood–the allegations against him; that he understood
that he could be committed to the custody of the Illinois Department of Human Services
(DHS) until he is no longer a sexually violent person; that respondent’s attorney read to
respondent–and that respondent understood–the stipulation; and that respondent is a sexually
violent person. The court committed respondent to the custody of DHS. In September 2008,
the court appointed Dr. Kirk Witherspoon to serve as respondent’s expert. Respondent
received Witherspoon’s report on March 31, 2009.
¶6 On that same day, respondent moved to withdraw the stipulation. Respondent alleged that
his decision to enter into the stipulation was based on the reports by Quackenbush and Wood.
However, respondent alleged, there were several problems with the bases for their opinions.
The trial court denied the motion. The trial court ruled, inter alia, that the mere fact that
respondent found Witherspoon’s report more favorable did not amount to a showing of good
cause to withdraw the stipulation.
¶7 On July 16, 2009, respondent moved to proceed pro se. The trial court granted the
motion. Respondent then moved the court to reconsider its denial of his motion to withdraw
the stipulation. Respondent also sought the appointment of standby counsel. Both motions
were denied. Respondent filed additional motions attacking the stipulation, all of which were
denied. Respondent also unsuccessfully raised the issue of the effectiveness of the
representation he had received.
¶8 A dispositional hearing was held over two dates in March 2013. At the beginning of the
hearing, respondent informed the trial court that he was not prepared to proceed. The trial
court noted that respondent had “filed the exact same motions since 2007 on the road towards
the dispositional hearing.” It then ruled that the hearing would proceed.
¶9 The State called Wood, a clinical psychologist. Wood testified to his credentials, and the
trial court recognized him as an expert in the field of “clinical and forensic psychology,
specifically in the area of sexually violent persons’ evaluations, diagnosis and risk
assessment and treatment.” Respondent answered negatively when the trial court asked him
if he had any objection. Wood examined respondent “relative to potential commitment as a
sexually violent person.” Wood interviewed respondent in 2007 and 2008; however,
respondent declined to participate in a 2009 interview.
¶ 10 Wood testified that respondent had committed sexually violent offenses. The predicate
offense to the instant petition involved the “eight-year-old daughter of his wife.” The victim
reported being assaulted on two or three occasions in February 2002. Respondent pleaded
guilty to attempted predatory criminal sexual assault of a child and received an 11-year
sentence. Respondent told Wood that his motivation for the assaults was “to seek some
measure of revenge because he believed his wife had been unfaithful.” While respondent felt
some justification for the assaults, he also felt some remorse.
¶ 11 Wood testified that in 1990, when respondent was 21 years old, he raped an 18-year-old
woman. He followed her off a bus to a dark area where he threatened her and sexually
assaulted her. He was convicted and served an eight-year prison sentence. Wood stated that
respondent had been arrested for 21 other offenses, including robbery, domestic abuse,
batteries, and violations of restraining orders.
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¶ 12 Wood diagnosed respondent with paraphilia, NOS, sexually attracted to nonconsenting
females, nonexclusive type. He also diagnosed respondent with pedophilia, sexually attracted
to females, nonexclusive type. He further diagnosed alcohol dependence, cannabis and
cocaine abuse (Wood stated that he was not certain if it was abuse or dependence), and
antisocial personality disorder with narcissistic features. Wood noted that respondent was
known to have engaged in “nonconsensual sexual conduct” on two occasions. Moreover,
when assessed during his most recent incarceration, “there was evidence of arousal to
coercive sexual contact.” Additionally, “[t]here was also evidence of sexual arousal to
grammar- and adolescent-age females.” Wood further explained that alcohol use diminishes
inhibitions and that antisocial personality disorder involves a lack of concern for the rights
and welfare of others; both conditions increase “the predisposition to *** deviant paraphilic
acts.”
¶ 13 At the detention facility, Wood explained, treatment could involve up to 10 sessions per
week, consisting of up to 21 hours per week (during cross-examination, Wood acknowledged
that only 15 of these hours would be sex-offender-specific treatment). There are also
“ancillary” or “offense related” treatments available to residents. Conversely, treatment for
individuals on conditional release typically consisted of two sessions per week of an
hour-and-a-half each. Wood opined that respondent needed the “intense” treatment available
only at the detention facility. In Wood’s opinion, outpatient treatment would be inadequate.
During cross-examination, respondent attacked the bases of Wood’s opinions as well as their
timeliness. Following Wood’s testimony the State rested. Respondent presented no
witnesses.
¶ 14 The trial court noted that it had to consider three factors in accordance with section 40 of
the Act (725 ILCS 207/40 (West 2006)), specifically, the nature and circumstances of the
predicate behavior alleged in the SVP petition; respondent’s mental history and his present
mental condition; and the arrangements available to ensure that respondent has access to and
will participate in treatment he needs. As to the first consideration, the trial court observed
that respondent pleaded guilty to attempted predatory criminal sexual assault in 2002 and that
in 1990 he was convicted of aggravated criminal sexual assault. Regarding the second factor,
the court noted Wood’s diagnoses of paraphilia, pedophilia, alcohol abuse, and antisocial
personality disorder. On the third factor, the trial court noted the difference in the amount of
treatment available in a secured facility as opposed to while on conditional release as well as
the fact that respondent had not participated in treatment during the 6½ years he had been
detained leading up to the dispositional hearing. Hence, the trial court found that respondent
was in need of intensive treatment and that the least restrictive environment in which
respondent could receive such treatment was secure detention. This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 Respondent raises a number of issues on appeal. First, he contends that section 40 of the
Act (725 ILCS 207/40 (West 2006)) is unconstitutional because it does not allow him to
demand that factual issues be resolved by a jury and because it permits detention on proof
less than beyond a reasonable doubt. Second, respondent asserts that a finding that
confinement was necessary to prevent him from committing sex offenses in the future, which
the trial court did not make, was required before he could be detained. Third, he argues that
the trial court should not have accepted his stipulation, because no provision of the Act
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authorizes such a procedure. Fourth, he claims that the trial court took inadequate steps to
ensure that he understood the consequences of the stipulation. Fifth, he argues that he
received ineffective assistance of counsel when his attorney permitted him to enter into the
stipulation. Sixth, he protests the trial court’s failure to hold a Krankel hearing (see People v.
Krankel, 102 Ill. 2d 181, 189 (1984)). Seventh, respondent alleges that the trial court should
have held a “meaningful evidentiary hearing” on his motion to withdraw his stipulation.
Eighth, he asserts that the trial court should have held a Frye hearing (see Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923)) regarding certain methodologies employed by Wood.
We will address these issues in the order raised by respondent.
¶ 17 A. CONSTITUTIONALITY OF SECTION 40 OF THE ACT
¶ 18 Respondent first claims that section 40 of the Act (725 ILCS 207/40 (West 2006)) is
unconstitutional. The constitutionality of a statute is an issue we review de novo. People v.
Malchow, 193 Ill. 2d 413, 418 (2000). Any doubts are to be resolved in favor of upholding
the validity of the statute. People v. Jamesson, 329 Ill. App. 3d 446, 452 (2002). Respondent
first argues that factual issues should have been decided by a jury. He also asserts that the
reasonable-doubt standard should apply in these proceedings. We find neither contention
persuasive.
¶ 19 Respondent’s argument regarding a jury-trial right attaching to such proceedings rests
entirely on Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi, of course, was a criminal
case. Id. Proceedings under the Act are civil. 725 ILCS 270/20 (West 2006). Respondent
cites no case applying Apprendi’s rule in a civil proceeding. In People v. Wagener, 196 Ill.
2d 269, 287 (2001), our supreme court adopted a narrow interpretation of Apprendi’s reach,
refusing to extend it to cover consecutive sentences:
“We are bound to follow the United States Supreme Court’s interpretation of the
Constitution of the United States. [Citations.] But we are not bound to extend the
decisions of the Court to arenas which it did not purport to address ***.”
Hence, absent some compelling authority justifying such an extension, none of which has
been called to our attention, we cannot simply disregard the supreme court’s admonishment
and extend Apprendi to civil proceedings.
¶ 20 We turn now to respondent’s contention that the reasonable-doubt standard should apply
to proceedings under section 40 of the Act. Indeed, he contends that the section is
unconstitutional because it fails to specify who bears the burden of proof and what that
burden is. Statutes are presumed constitutional, and the party challenging the statute bears the
burden of establishing its unconstitutionality. People v. Aguilar, 2013 IL 112116, ¶ 15.
Moreover, a court has a duty to construe a statute in a way that upholds its validity and
constitutionality, if that can reasonably be done. Id.
¶ 21 Constitutional challenges come in two varieties: facial and as applied. See People v.
Normand, 345 Ill. App. 3d 736, 739 (2004). To succeed on an as-applied challenge, a party
need show only that the statute is unconstitutional as it is enforced upon him or her. See
Vuagniaux v. Department of Professional Regulation, 208 Ill. 2d 173, 191 (2003). Facial
challenges are more difficult. Tomm’s Redemption, Inc. v. Hamer, 2014 IL App (1st) 131005,
¶ 2. Mounting a successful facial challenge requires that a party demonstrate that there are no
circumstances under which the statute could be constitutionally applied. Jackson v. City of
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Chicago, 2012 IL App (1st) 111044, ¶ 25. A successful facial challenge voids a statute in all
contexts for all parties. Id. Where a statute is challenged on its face, the facts of a party’s
particular case are irrelevant. Id. ¶ 27.
¶ 22 Respondent’s challenge is clearly facial. He asserts that section 40 is fatally,
constitutionally flawed because it does not specify a burden of proof and that,
constitutionally, it should require proof beyond a reasonable doubt. While it is true that the
trial court did not specify what burden of proof it was applying, we note that the trial court
made an affirmative finding that respondent “is in need of intensive treatment and the least
restrictive facility for treatment is in secured detention.” Thus, it is apparent that the trial
court based its decision on the State’s presentation of evidence rather than respondent’s
failure to prove that detention was not appropriate. As such, the burden of proof was clearly
on the State. Moreover, that the trial court did not identify what burden of proof it was using
would not typically be a basis to disturb its decision. Trial judges are presumed to know the
law. People v. Koch, 248 Ill. App. 3d 584, 591 (1993). Absent some indication in the record
to the contrary, we presume that the judge applied the law correctly. People v. Blair, 215 Ill.
2d 427, 449 (2005). Assuming, arguendo, that respondent is correct that the reasonable-doubt
standard applies, respondent points to nothing in the record that would suggest that the trial
court did not apply it, so an as-applied challenge would necessarily fail. In any event, as
respondent’s challenge is facial, the conduct of the dispositional hearing in this case is beside
the point.
¶ 23 Instead, we must consider whether section 40 is constitutionally sound. That is, we must
consider whether a set of circumstances exists under which the law could be constitutionally
applied. Jackson, 2012 IL App (1st) 111044, ¶ 25. Respondent relies on People v. Pembrock,
62 Ill. 2d 317 (1976), and People v. Trainor, 196 Ill. 2d 318 (2001), in support of his
argument. Both cases concern versions of the Sexually Dangerous Persons Act (SDPA) (Ill.
Rev. Stat. 1971, ch. 38, ¶ 105-1.01 et seq.; 725 ILCS 205/1.01 et seq. (West 1998)). There
are differences between the SDPA and the SVPA. See People v. Runge, 346 Ill. App. 3d 500,
509 (2004) (“A person committed to DHS or awaiting commitment under the Sexually
Violent Persons Act has been previously convicted of a sexually violent offense or found not
guilty of such offense by reason of insanity. [Citation.] In this respect, such persons are not
similarly situated to persons committed under the Sexually Dangerous Persons Act [citation],
who have been charged but not convicted, or to other residents of DHS, whose involuntary
commitment does not follow a criminal conviction for a sexually violent offense.”).
Nevertheless, the acts are sufficiently similar such that the cases cited by respondent provide
us with some guidance. We will therefore assume–for the sake of argument–that due process
requires the application of the reasonable-doubt standard in proceedings under section 40.
¶ 24 However, nothing in section 40 precludes the application of that standard. Assuming that
respondent is correct that these cases require the use of the reasonable-doubt standard in
proceedings under section 40, there is no reason that the trial court could not rely upon them
and apply that standard to such proceedings. In People v. Boand, 362 Ill. App. 3d 106, 141
(2005), the defendant argued that “the drug-induced-homicide statute [was]
unconstitutionally vague because it does not specify what mental state subjects an accused to
criminal liability.” The Boand court rejected the constitutional challenge, explaining that “the
drug-induced-homicide statute incorporates the ‘knowing’ mental state element from section
401 of the [Illinois Controlled Substances] Act.” Id. at 142. Thus, it is apparent that a court
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may look beyond the four corners of a statute in assessing its constitutionality. This is
particularly true where, as here, nothing in the statute precludes looking to relevant case law
or contradicts the substance of those cases. See People v. Masterson, 207 Ill. 2d 305, 329
(2003) (holding that portions of the SVPA should be “read into” the SDPA to cure potential
constitutional problem); see also People v. Burgess, 176 Ill. 2d 289, 315 (1997) (“A limiting
construction may save a statutory aggravating circumstance that must otherwise be
considered unconstitutionally vague under the eighth amendment.”); People v. Hill, 333 Ill.
App. 3d 783, 786 (2002) (“A statute regulating conduct is overbroad if it (1) criminalizes a
substantial amount of protected behavior, relative to the law’s plainly legitimate sweep; and
(2) is not susceptible to a limiting construction that avoids constitutional problems.”). In sum,
nothing in section 40 prevents a trial court from applying the reasonable-doubt standard
(assuming it applies) and respondent has failed to show that the section is incapable of
constitutional application. Accordingly, his facial challenge to its constitutionality fails.
¶ 25 B. FINDING OF FUTURE DANGEROUSNESS
¶ 26 Respondent argues that, in accordance with the supreme court’s decision in Masterson, a
prerequisite to secure detention was a finding that it was necessary to prevent him from
committing future acts of sexual violence. The State contends that Masterson does not apply
here. We conclude that the SVPA already incorporates the principles set forth in Masterson;
as such, it provides no basis for granting any relief to respondent.
¶ 27 Initially, we note that, to the extent that respondent argues that–in addition to the other
findings required by the SVPA–Masterson requires a separate finding that secure
confinement is necessary to prevent him from engaging in future acts of sexual violence, his
argument is not well taken. We have already held that a trial court need not select the least
restrictive alternative during section 40 proceedings. In re Commitment of Brown, 2012 IL
App (2d) 110116, ¶ 19 (citing In re Detection of Lenczycki, 405 Ill. App. 3d 1041, 1051
(2010) (“Illinois case law also suggests that selecting the ‘least restrictive alternative’ is a
requirement under certain statutes, but it is not a constitutional requirement of due process”
(citing Bernstein v. Department of Human Services, 392 Ill. App. 3d 875, 888-93 (2009)))).
Moreover, we note that respondent’s assertion that a finding of sexual dangerousness must
occur during the course of section 40 proceedings is unsupported by citation to authority. In
fact, as we explain below, such a finding must be made at an earlier stage. As such, the
SVPA satisfies the requirements imposed by the supreme court in Masterson, and that case
requires no additional finding regarding the necessity of confinement.
¶ 28 In Masterson, the supreme court considered whether the SDPA (725 ILCS 205/1.01 et
seq. (West 2000)) was constitutional in light of two recent United States Supreme Court
decisions (Kansas v. Hendricks, 521 U.S. 346 (1997), and Kansas v. Crane, 534 U.S. 407
(2002)). The issue, in conformance with this line of cases, was whether the SDPA required a
finding that a respondent had “serious difficulty” in controlling his or her behavior.
Masterson, 207 Ill. 2d at 324.
¶ 29 Our supreme court determined that this act met “minimum constitutional standards”:
“The language of the SDPA implies that the mental disorder which afflicts the subject
of the commitment proceeding must be causally related to the person’s propensity to
commit sex offenses, and the requirement that the person has demonstrated that
propensity by his or her actions is an important indicator of both mental abnormality
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or disorder and future dangerousness, as Hendricks acknowledged. See Hendricks,
521 U.S. at 362 ***. By acting upon their propensities, those suffering from mental
disorders demonstrate dangerousness and impaired volitional capacity.
Dangerousness and lack of control are the touchstones for civil commitment under
Hendricks.” (Emphases in original.) Id. at 328.
It acknowledged, however, that the SDPA suffered from “certain significant ambiguities”:
“we note that the SDPA, unlike similar statutes in other states and our own SVPA, does not
specifically address volitional capacity, it fails to define the term ‘mental disorder’ and it
does not provide an explicit standard for gauging the probability or likelihood that the subject
of the proceeding will commit sexual offenses in the future.” (Emphasis in original.)
Id. at 328-29. As the SDPA was unclear, it looked to the SVPA for guidance. Id. at 329. It
held that “the SVPA’s definition of ‘mental disorder’ should be read into the SDPA to the
extent consistency allows and augmented with the standard that appears to emerge from
Crane,” and it “construe[d] the term ‘mental disorder,’ as used in the SDPA, to mean a
congenital or acquired condition affecting the emotional or volitional capacity that
predisposes a person to engage in the commission of sex offenses and results in serious
difficulty controlling sexual behavior.” Id. It ultimately concluded that “a finding of sexual
dangerousness premised upon the elements of section 1.01 of the SDPA (725 ILCS 205/1.01
(West 2000)) must hereafter be accompanied by an explicit finding that it is ‘substantially
probable’ the person subject to the commitment proceeding will engage in the commission of
sex offenses in the future if not confined.” Masterson, 207 Ill. 2d at 330. Put succinctly, the
Masterson court incorporated the requirement contained in section 5 of the SVPA–that it be
substantially probable that a respondent will engage in future acts of sexual violence–into the
SDPA’s definition of “sexually dangerous person” (see 725 ILCS 205/1.01 (West 2000)).
¶ 30 That is, Masterson took a requirement from the SVPA–the act at issue here–and applied
it to the SDPA. Respondent now contends that this requirement should be applied to the
SVPA. The obvious problem for respondent is that this requirement already applies to the
SVPA. It does not, however, apply to the section 40 proceeding.
¶ 31 Section 5 of the Act defines “sexually violent person” as:
“a person who has been convicted of a sexually violent offense, has been adjudicated
delinquent for a sexually violent offense, or has been found not guilty of a sexually
violent offense by reason of insanity 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.” 725 ILCS 207/5(f) (West 2006).
Section 35 provides that “[i]f the court or jury determines that the person *** is a sexually
violent person, the court shall enter a judgment on that finding and shall commit the person
as provided under Section 40 of this Act.” 725 ILCS 207/35(f) (West 2006). Section 40
provides, in pertinent part, “In determining whether commitment shall be for institutional
care in a secure facility or for conditional release, the court shall consider the nature and
circumstances of the behavior that was the basis of the allegation in the petition under
paragraph (b)(1) of Section 15, the person’s mental history and present mental condition, ***
and what arrangements are available to ensure that the person has access to and will
participate in necessary treatment.” 725 ILCS 207/40(b)(2) (West 2006).
¶ 32 Respondent contends that in the section 40 proceeding the trial court had to find that it is
“substantially probable that [he] will engage in acts of sexual violence” (725 ILCS 207/5(f)
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(West 2006)) prior to ordering secure confinement. Respondent concedes that he “entered
into a stipulation that appears to satisfy sections 5 and 35 of the [SVPA].” Indeed, respondent
stipulated that he “waives his right to have the People prove that he is a sexually violent
person beyond a reasonable doubt.” The substantially-probable criterion is relevant to the
determination of whether respondent is a “sexually violent person,” as the definition of this
term in section 5 makes clear. Moreover, that determination is made in a section 35
proceeding. As such, prior to the dispositional proceeding under section 40, it was already
established–via respondent’s stipulation–that respondent is a sexually violent person and that
it is therefore “substantially probable that [he] will engage in acts of sexual violence.” There
was no need for the trial court to revisit this issue during the section 40 proceeding.
¶ 33 C. THE STIPULATION
¶ 34 Respondent next makes two attacks upon the stipulation itself. First, he argues that the
stipulation was not authorized by the Act. Second, he contends that the trial court failed to
ensure that he understood his rights and what he was doing when he entered into the
stipulation.
¶ 35 1. Whether the Stipulation was Authorized
¶ 36 We find respondent’s first contention ill taken. Respondent argues that nothing in the Act
authorized the stipulation; therefore, he asserts, the trial court should not have accepted it.
Essentially, respondent is arguing that a respondent in proceedings under the Act must be
compelled to partake in an evidentiary hearing, even where he or she does not desire one. We
cannot infer such a rule from the fact that the Act does not expressly contemplate
stipulations. Indeed, respondent points to no authority barring the use of stipulations in
proceedings under the Act. As the State points out, stipulations are generally favored, as they
promote the efficient disposition of cases, simplify issues, and reduce the expense of
litigation. People v. Woods, 214 Ill. 2d 455, 468 (2005). Stipulations will be enforced unless
unreasonable, procured by fraud, or violative of public policy. Fitzpatrick v. Human Rights
Comm’n, 267 Ill. App. 3d 386, 390 (1994). Respondent also analogizes his stipulation to a
guilty plea; however, as noted, proceedings under the Act are civil. 725 ILCS 270/20 (West
2006); In re Detention of Samuelson, 189 Ill. 2d 548, 559 (2000).
¶ 37 Respondent also argues that he should not have been allowed to stipulate to a legal
conclusion. Citing American Pharmaseal v. TEC Systems, 162 Ill. App. 3d 351, 356 (1987),
respondent argues that such stipulations invade the province of the trial court. It is true that,
“while parties may bind themselves by stipulation, they ‘cannot bind a court by stipulating to
a question of law or the legal effect of facts.’ ” Id. (quoting Domagalski v. Industrial
Comm’n, 97 Ill. 2d 228, 235 (1983)). The problem with the stipulation in American
Pharmaseal was that, beyond stipulating to the amount of damages, it “direct[ed] the court as
to how it must assess the amount of judgment based on those stipulated facts and any
comparative fault the jury might attribute to the plaintiff.” Id. In this case, the parties simply
stipulated that respondent was a sexually violent person; they did not attempt to direct the
trial court as to how to proceed in light of the stipulation. Indeed, the trial court made its own
finding that respondent was a sexually violent person: “[B]ased on the stipulation the Court
will find that you are a sexually violent person.” As such, the stipulation did not share the
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defect that the stipulation in American Pharmaseal possessed. Accordingly, that case is
distinguishable.
¶ 38 In short, respondent’s contention that stipulations cannot be used in proceedings under
the Act, because they are not expressly statutorily authorized, is wholly unpersuasive.
¶ 39 2. Admonishments
¶ 40 Respondent next contends that the trial court should not have accepted his stipulation
without taking steps to ensure that he understood the consequences of the stipulation.
Specifically, respondent contends that the trial court should have: (1) taken steps to ensure
that he understood “every aspect and implication of his stipulation”; (2) advised him of the
rights he was giving up under section 35 (see 725 ILCS 207/35 (West 2006)); (3) advised
him of the nature of a hearing under section 40 (see 725 ILCS 207/40 (West 2006)); (4)
advised him of his right to move to withdraw the stipulation; and (5) ensured that he
understood the evidence against him. We review these issues de novo. People v. DePaolo,
317 Ill. App. 3d 301, 310 (2000); see also People v. Saleh, 2013 IL App (1st) 121195, ¶ 14.
¶ 41 Initially, we note that respondent relies largely upon cases involving guilty pleas. In
People v. Phillips, 217 Ill. 2d 270, 287 (2005), upon which respondent relies, the supreme
court held that, where a stipulation is the functional equivalent of a guilty plea, a trial court
must admonish the defendant regarding the implications and consequences of the stipulation.
Respondent’s reliance on such cases is of dubious value. As we have previously noted,
proceedings under the Act are civil. 725 ILCS 207/20 (West 2006); Samuelson, 189 Ill. 2d at
559. Moreover, the objective of detention under the Act is treatment, not punishment.
In re Detention of New, 2013 IL App (1st) 111556, ¶ 58 (citing In re Lance H., 2012 IL App
(5th) 110244, ¶ 21); In re Detention of Cain, 341 Ill. App. 3d 480, 484 (2003) (“Civil
commitment is nonpunitive and lasts only so long as is necessary to address an individual’s
problems.”). Hence, cases involving guilty pleas provide little guidance here. That said, we
turn to respondent’s first argument.
¶ 42 Respondent first argues that the trial court was obligated to ensure that he had a “full
understanding of what he was giving up” and to “ensure [his] understanding of every aspect
and implication of the stipulation.” This exceeds even what is required of a trial court when it
accepts a guilty plea. Quite simply, a trial court need not inform a criminal defendant of
every “aspect and implication” of a plea. It is well settled, for example, that a criminal
defendant need not be aware of the collateral consequences of a plea. People v. Williams, 188
Ill. 2d 365, 371 (1999). Respondent provides us with no basis to impose a greater duty on the
trial court in the present context.
¶ 43 Next, respondent claims that the trial court should have advised him of the rights he was
waiving under section 35. He relies exclusively on cases from the criminal milieu.
Respondent asserts that the trial court should have explained to him that the State would have
to prove beyond a reasonable doubt each element required by the Act. However, the
stipulation signed by respondent stated that he “waives his right to have the People prove that
he is a sexually violent person beyond a reasonable doubt.” Though the elements were not
mentioned here, the stipulation elsewhere stated that respondent “read and understands the
allegations and request for relief contained in the Petition for Sexually Violent Person
Commitment filed herein.” Moreover, the trial court orally inquired of respondent whether he
had gone over the stipulation with his attorney and whether he had any further questions.
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Thus, the trial court took substantial steps to ensure that respondent understood what he was
doing, and we perceive no due process violation here. Respondent cites two criminal cases
that require more; nevertheless, we find the procedures employed by the trial court adequate
in the instant context. Moreover, we find it of no moment that the trial court did not explain
with more detail respondent’s right to a jury trial or to call witnesses and that it did not
mention the right against self incrimination. Thus, assuming that the trial court was required
to give these admonishments, we hold that they were adequate.
¶ 44 Respondent next asserts that the trial court should have admonished him regarding the
nature of a section 40 proceeding. Respondent provides no authority for this argument (save
a general cite to a criminal case: “See Phillips”). As such, we deem it forfeited. People v.
Ward, 215 Ill. 2d 317, 332 (2005). Having reviewed this argument, we also do not find it
persuasive.
¶ 45 Respondent further argues that the trial court should have admonished him about his right
to move to withdraw his stipulation. Respondent points out that one of the reasons the trial
court cited in denying his motion to withdraw was that it was not timely. He then cites
Illinois Supreme Court Rule 605(b) (eff. Oct. 1, 2001), which requires a trial court to
admonish a criminal defendant that he or she has 30 days to move to withdraw a guilty plea.
Initially, we note that any analogy between Rule 605(b) and this case is dubious in that Rule
605(b) concerns the course of proceedings after judgment is entered, 30 days after which the
trial court’s jurisdiction will lapse. Here, at issue is a stipulation entered into during the
course of ongoing proceedings over which the trial court will continue to retain jurisdiction.
Thus, Rule 605(b) provides little support–even by analogy–for the proposition that a trial
court must admonish a respondent after the entry of a stipulation as in the present case.
Indeed, a respondent might be able to show good cause well after a 30-day period following
a stipulation if his or her mental condition has changed. Thus, whether a motion to withdraw
is timely is likely dependent on the facts and circumstances of an individual case.
Respondent does not elaborate on the merits of the trial court’s finding that his motion was
untimely. In sum, as it is unclear that such a limitation is appropriate in proceedings like
these, we cannot say that the trial court should have admonished respondent in such a
fashion.
¶ 46 Respondent finally argues that the trial court should have taken steps to ensure that he
fully understood the evidence against him. Notably, the stipulation contained a recitation of
what Quackenbush and Wood would testify to. The trial court inquired of respondent
whether he had gone over the stipulation with his attorney, understood it, and had any further
questions. Respondent never manifested any hesitation or doubt that would indicate that he
did not understand what was transpiring. Again, assuming that they were necessary, we hold
that the trial court’s admonishments were adequate in this context.
¶ 47 Respondent claims that he should have been allowed to review the reports by
Quackenbush and Wood. He acknowledges that not even a criminal defendant has a right to
review discovery. People v. Davison, 292 Ill. App. 3d 981, 988-89 (1997). However, he
claims that this case is “closer to the situation in People v. Smith, 268 Ill. App. 3d 574
(1994).” Indeed, those two cases are diametrically opposed, as Smith concludes that the
decision to allow a client to review evidence is a matter of trial strategy and Davison holds to
the contrary (see also People v. James, 362 Ill. App. 3d 250, 258 (2005)). However, neither
case provides significant guidance here. Aside from being criminal cases, they both involve
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ineffective-assistance- of-counsel claims and thus concern the duties of counsel rather than
the court.
¶ 48 To conclude, we reject respondent’s allegations that the trial court should have taken
additional steps to protect respondent’s rights before accepting the stipulation, as the steps it
took were more than adequate.
¶ 49 D. EFFECTIVE ASSISTANCE OF COUNSEL
¶ 50 Respondent next complains of the representation he received in connection with the
stipulation. He asserts that allowing him to enter into the stipulation constituted ineffective
assistance. To make out a claim of ineffective assistance of counsel, a respondent under the
Act must show that counsel’s performance fell below an objective standard of reasonableness
and that there is a reasonable probability that the outcome of the proceedings would have
been different but for counsel’s unprofessional error. In re Commitment of Dodge, 2013 IL
App (1st) 113603, ¶ 20. Both prongs must be satisfied. Id.
¶ 51 Here, respondent fails to show prejudice. He claims that, but for the stipulation, the trial
court could not have conducted the dispositional hearing pursuant to section 40 and that it
ended his “chances of engaging in an adversarial process regarding Section 35.” This is not
prejudice. Quite simply, the opportunity to engage in an adversarial hearing says nothing as
to whether the outcome of that hearing would have been different. Respondent points to
nothing to establish “a reasonable probability that *** the outcome [of the proceedings]
would have been different.” Id. We therefore reject this argument.
¶ 52 Before proceeding further, we note that respondent contends that he should not be
required to show prejudice because his attorney failed to subject the State’s case to
meaningful adversarial testing. See People v. Kozlowski, 266 Ill. App. 3d 595, 601 (1994).
Respondent bases this contention entirely on the stipulation; however, we cannot conclude
that the mere fact that respondent entered into the stipulation constitutes a failure to engage
in adversarial testing of the State’s case. Such a holding would imply that any use of such a
stipulation–or, for that matter, a guilty plea–would constitute ineffective assistance.
¶ 53 E. KRANKEL INQUIRY
¶ 54 Respondent contends that the trial court did not make an appropriate inquiry into his
claims of ineffective assistance of counsel in accordance with People v. Krankel, 102 Ill. 2d
181 (1984). Respondent cites no case applying Krankel outside of the criminal realm. At oral
argument, respondent argued that the need to hold a Krankel hearing flows necessarily from
the fact that a respondent in a proceeding like this one has a right to counsel. Dodge, 2013 IL
App (1st) 113603, ¶ 20. Respondent suggests that the right to counsel would be meaningless
if there were no way to vindicate it.
¶ 55 This is simply not the case. In In re Detention of Morris, 362 Ill. App. 3d 321, 324
(2005), the First District considered and rejected on the merits a claim, advanced in a petition
brought under section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 2000)),
that a respondent had received ineffective assistance in a proceeding under the Act. The
Morris court relied on People v. Lawton, 212 Ill. 2d 285, 298 (2004), a supreme court case
holding that a respondent in proceedings under the SDPA may raise such a claim in a section
2-1401 petition. Thus, a respondent in a proceeding under the Act has an avenue to vindicate
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his or her right to counsel. In fact, “[m]ost jurisdictions considering this issue *** express a
clear preference that ineffectiveness claims be raised in collateral review proceedings.”
Commonwealth v. Grant, 813 A.2d 726, 734 (Pa. 2002). We also note that the procedure
established in Krankel is not required by federal due process principles. See United States ex
rel. Sumner v. Washington, 840 F. Supp. 562, 570 (N.D. Ill. 1993) (In deciding whether a
claim of ineffectiveness had been procedurally defaulted for the purpose of a habeas corpus
petition, the court, later citing Krankel, explained: “As for the failure to interview Barnes and
to call her to testify, Sumner’s petition for leave to appeal did not raise those matters as an
independent claim necessitating review. Instead Sumner contended before the Illinois
Supreme Court that review should be granted to decide whether under state law the trial
judge had improperly failed to order a new post-trial hearing to determine if trial counsel had
been ineffective[ ] ***.”); see also Dolis v. Gilson, No. 07 C 1816, 2009 WL 5166228, at *13
(N.D. Ill. Dec. 23, 2009) (“[The petitioner] does not allege any violation of federal law as
determined by the Supreme Court, and no Supreme Court precedent mandates the [Krankel]
inquiry ***.”).
¶ 56 Hence, the procedure set forth in Krankel is not an essential component of due process,
most jurisdictions do not employ a similar procedure, and an alternate procedure exists
through which respondent can assert any potential violations of his right to counsel. As such,
we hold that Krankel does not apply in cases under the Act, and we need not address
respondent’s arguments along these lines any further. Any remedy for counsel’s alleged
incompetence would lie in a collateral attack.
¶ 57 F. EVIDENTIARY HEARING
¶ 58 Respondent next complains that the trial court failed to conduct an adequate evidentiary
hearing on his motion to withdraw his stipulation. He again bases his argument on criminal
cases, in this instance two that construe Illinois Supreme Court Rule 604(d) (eff. July 1,
2006). See People v. Wilk, 124 Ill. 2d 93 (1988); People v. Spriggle, 358 Ill. App. 3d 447
(2005). Respondent contends that the following principles should control:
“A defendant may seek to withdraw his or her guilty plea on the grounds that the plea
was entered based on a misapprehension of fact or of the law, or if there is doubt of
the guilt of the accused and the ends of justice would better be served by submitting
the case to a trial.” Spriggle, 358 Ill. App. 3d at 450-51.
As noted above, we find criminal cases to be of limited guidance in civil proceedings. Thus,
we will not simply apply such rules wholesale in this case.
¶ 59 Instead, we look to relevant civil principles for guidance. In Bloome v. Wiseman,
Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., 279 Ill. App. 3d 469, 479 (1996), the Fifth
District of this appellate court held as follows:
“Stipulations are not necessarily conclusive. [Citation.] In the exercise of sound
judicial discretion and to further the ends of justice, a trial court can relieve the parties
from stipulations. [Citation.] On appeal, the trial court’s discretion will not be
disturbed unless a party proves manifest abuse.”
Bloome cites Brink v. Industrial Comm’n, 368 Ill. 607, 609 (1938), in which our supreme
court explained:
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“Parties will not be relieved from a stipulation in the absence of a clear showing that
the matter stipulated is untrue, and then only when the application is seasonably
made. [Citations.] However, courts may, in the exercise of a sound judicial discretion
and in the furtherance of justice, relieve parties from stipulations which they have
entered into in the course of judicial proceedings, and that discretion will not be
interfered with, except where manifest abuse of it is disclosed.”
See also Ellis v. American Family Mutual Insurance Co., 322 Ill. App. 3d 1006, 1010 (2001);
Filko v. Filko, 127 Ill. App. 2d 10, 25-26 (1970). Moreover, in Sanborn v. Sanborn, 78 Ill.
App. 3d 146, 149-50 (1979), the First District held: “Parties are bound by their stipulations
unless such stipulations are shown to be unreasonable, the result of fraud or violative of
public policy.” Interestingly, the First District did not include in its list that the stipulation is
untrue. Nevertheless, that consideration appears in numerous other cases (including those
cited above), so we deem it a valid basis as well. From the foregoing, we discern that a party
may be relieved from a stipulation where it is clearly shown that the stipulation is untrue,
violative of public policy, unreasonable, or procured by fraud. Moreover, the motion to
withdraw the stipulation must be timely, and the decision is within the discretion of the trial
court. Hence, civil law provides adequate guidance, and we need not import principles from
criminal cases.
¶ 60 Respondent moved to withdraw his stipulation in March 2009. In his motion, he asserted
that his decision to stipulate was based on the reports by the State’s doctors (Wood and
Quackenbush), that some of their conclusions were false, and that he would not have
stipulated had he been aware of the falsities. Specifically, he alleged that “[t]he risk tables for
the Static 99 which were used by the State’s evaluators are outdated,” “[t]he rearrest estimate
figures used in the MnSOST-R are not accurate,” and “rape does not fit the ‘Paraphilia NOS’
classification.”
¶ 61 The trial court held a hearing on respondent’s motion (albeit not an evidentiary hearing).
Respondent argued that “the scientific evidence had changed since the preparation of the
evaluations.” (Emphasis in original.) Respondent’s attorney explained that they had become
aware of certain defects in the reports by the State’s experts “subsequent to the stipulation
and basically as a result of the report which was prepared as a predispositional report
evaluation.” Counsel was presumably referring to Witherspoon’s report.
¶ 62 The trial court ruled as follows:
“The Court has reviewed the motions [and] the case law submitted. *** The
stipulation was entered on July 8th of 2008, and at the time of the stipulation *** the
[respondent] had the benefit of having reviewed the reports of Dr. Quackenbush and
Dr. Wood and his own doctor, Dr. Baron ***. The Court went through rights to a trial
and hearing with [respondent]. He indicated he had gone over everything with his
attorney, that there were no threats or promises, and the Court found that it was
knowing and voluntary and accepted the stipulation.
The facts of the stipulation were presented orally on the record as well as the
stipulation was in writing presented to [respondent] and it was signed. The Court then
ordered a predispositional report, and the State’s report was prepared in August of
2008, and Dr. Witherspoon was appointed, the Court granting the [respondent’s] ***
request for Dr. Witherspoon back in September, and the report was completed in
November of 2008. And then a revised report was filed in January of 2009. And it
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was in March *** when [respondent] filed his motion to withdraw the stipulation.
And [it] was amended on May 26th with the allegations regarding the State’s doctors,
the conclusions of the State’s doctors were false or faulty, and that had he been aware
of this, he would not have stipulated.
With regard to *** the withdrawal of the stipulation, the Court finds that although
the Attorney General does not agree to the withdrawal, the Court can look to whether
or not there is good cause shown and whether or not there was fraud,
unreasonableness or any violation of public policy. And just because now with the
request of the dispositional report and [respondent] now liking the opinion of the
dispositional report and Dr. Witherspoon better than the reports that they had of Dr.
Baron or Dr. Wood or Dr. Quackenbush does not elevate this to good cause shown.
He had access to his own reports. The stipulation was with full knowledge. It was not
timely. And, therefore, no good cause has been shown, and it is not the result of any
faulty false fraud, unreasonable, or violative of public policy issues. So there is no
due process violation, and the request for a hearing is denied.”
We perceive no error in the trial court’s decision.
¶ 63 Initially, we find ill taken respondent’s claims that the trial court denied the motion based
upon its timing or the Attorney General’s position on the motion. As for the former, it is true
that the trial court cited the untimeliness of the motion when it ruled; however, that was but
one of several bases articulated by the trial court. Most significantly, the trial court found that
the fact that Witherspoon’s report undermined the reports of the State’s experts did not
constitute good cause to allow respondent to withdraw the stipulation. This finding is wholly
independent of the finding on timeliness. The latter contention is disingenuous. The trial
court did not rely on the fact that the Attorney General did not agree to the withdrawal;
rather, the trial court expressly disregarded the Attorney General’s position: “[T]he Court
finds that although the Attorney General does not agree to the withdrawal, the Court can look
to whether or not there is good cause shown.” Neither of these first two contentions is
persuasive.
¶ 64 Respondent’s most significant challenge to the stipulation concerns the report by
Witherspoon. Witherspoon’s report contradicted and undermined the reports by Wood and
Quackenbush. Respondent contends that, because he alleged that he misapprehended relevant
facts, the trial court was required to conduct an evidentiary hearing on the issue. Of course,
the necessity for an evidentiary hearing does not arise merely because a party alleges
something; what is alleged must be sufficient to create a factual issue requiring resolution.
See Tuite v. Corbitt, 224 Ill. 2d 490, 526 (2006). Thus, the operative question is whether the
existence of Witherspoon’s report created such an issue.
¶ 65 We conclude that, in the context of a motion to withdraw a stipulation, it did not. In his
motion, respondent alleged three defects in the reports by the State’s experts, namely, defects
in two actuarial tools and controversy surrounding the diagnosis of paraphilia, NOS, sexually
attracted to nonconsenting females. Granting respondent these points, they fall far short of “a
clear showing that the matter stipulated is untrue.” Brink, 368 Ill. at 609. These were but
three bases of the State’s experts’ opinions. There were numerous others. At the beginning of
his report, for example, Quackenbush stated that he gathered data from an interview with
respondent; an Illinois Department of Corrections (IDOC) “Sex Offender Pre-Release
Evaluation”; his IDOC master file; his IDOC medical file; records from the state police; and
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arrest records from various local police departments. These included respondent’s history of
offenses, disciplinary history while incarcerated, and sex-offender treatment history. He also
noted respondent’s history of substance abuse. Moreover, in addition to the Static-99 and
MnSOST-R, Quackenbush considered the results of the PCL-R (Hare Psychotherapy
Checklist-Revised). Wood’s report cited 20 sources of information. Wood also relied on the
results of a penile plethysmography test performed in 2003 that “indicated significant deviant
sexual arousal.” Given the complexity of the bases of these reports, respondent’s ability to
point to three alleged defects does not establish their falsity, and none of the other bases for
withdrawing a stipulation are present here.
¶ 66 Before leaving this issue, we point out that the issue is not whether respondent would
have stipulated if he had known at the time of the stipulation what he subsequently learned.
Again, relevant considerations are whether the stipulation is untrue, violative of public
policy, unreasonable, or procured by fraud. Brink, 368 Ill. at 609; Sanborn, 78 Ill. App. 3d at
149-50. The mere fact that a party might have come to a different decision on whether to
stipulate is not one of the allowable bases to undo a stipulation. Having failed to allege
anything that would have established one of these factors, we cannot say that the trial court
needed to hold an evidentiary hearing on respondent’s motion.
¶ 67 G. FRYE
¶ 68 Respondent finally contends that the trial court should have held a Frye hearing regarding
the methods employed by Wood and that, in turn, it should have barred Wood from testifying
at the dispositional hearing. Respondent contends that the diagnosis by Wood–paraphilia,
NOS, sexually attracted to nonconsenting females, nonexclusive type–has not achieved
general acceptance in the scientific community of experts who specialize in diagnosing and
treating sex offenders. The State responds that a diagnosis is not a methodology and is not
subject to Frye and that, if Frye applies, this diagnosis passes the Frye test.
¶ 69 The Frye test requires the proponent of evidence derived from a new or novel scientific
methodology to demonstrate that it is “ ‘sufficiently established to have gained general
acceptance in the particular field in which it belongs.’ ” In re Commitment of Simons, 213 Ill.
2d 523, 529-30 (2004) (quoting Frye, 293 F. at 1014). Universal acceptance is not necessary.
Id. at 530. In fact, “general acceptance” does not even require that a majority of experts in the
field accepts the methodology. Id. It is sufficient that a significant subset of experts
reasonably relies upon the methodology. In re Commitment of Sandry, 367 Ill. App. 3d 949,
965 (2006).
¶ 70 The State’s contention that a diagnosis (as opposed to a methodology) is outside the
scope of Frye has been rejected on three occasions by the First District. See In re Detention
of Hayes, 2014 IL App (1st) 120364, ¶ 34; In re Detention of Melcher, 2013 IL App (1st)
123085, ¶ 56; New, 2013 IL App (1st) 111556, ¶ 47. The First District’s rationale is that “a
prerequisite for a diagnosis is scientific evidence that such a mental condition exists” and that
“[a] Frye hearing is appropriate to determine whether an emerging diagnosis is an actual
illness or disorder.” New, 2013 IL App (1st) 111556, ¶ 53. We find this reasoning persuasive
and reject the State’s contention here as well.
¶ 71 The First District is split as to whether this diagnosis satisfies Frye. In Hayes and
Melcher, it held that the diagnosis met the general-acceptance standard. In Melcher, 2013 IL
App (1st) 123085, ¶ 60, the court, quoting In re Detention of Lieberman, 2011 IL App (1st)
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090796, ¶ 53, observed that the diagnosis had “ ‘been the basis for numerous probable cause
or sexually violent person findings in this state and other jurisdictions outside of this state.’ ”
The Melcher court also cited McGee v. Bartow, 593 F.3d 556 (7th Cir. 2010), where the
Seventh Circuit “conducted an extensive analysis of the validity of the diagnosis in
addressing whether a civil commitment predicated thereon satisfied due process.” Melcher,
2013 IL App (1st) 123085, ¶ 61. It noted that the McGee court ultimately concluded that “the
diagnosis of a paraphilic disorder related to rape is not so unsupported by science that it
should be excluded absolutely from consideration by the trier of fact.” McGee, 593 F.3d at
580.
¶ 72 In Hayes, 2014 IL App (1st) 120364, ¶¶ 35-36, the court recognized that, as the diagnosis
had been found to satisfy Frye in Melcher, “a Frye hearing was unnecessary.” We have
previously noted that the issues that arise in a Frye hearing typically transcend any particular
case. Sandry, 367 Ill. App. 3d at 963 (citing Simons, 213 Ill. 2d at 531). As Melcher and
Hayes are persuasively reasoned, they provide strong support for the notion that a Frye
hearing was not necessary in this case to assess whether the paraphilia, NOS, nonconsent
diagnosis is generally accepted by a significant subset of the community of specialists who
work with sex offenders.
¶ 73 Conversely, in New, 2013 IL App (1st) 111556, a case involving an analogous diagnosis
(paraphilia, NOS, sexually attracted to adolescents), the First District reversed an order of
commitment and remanded for a Frye hearing on the validity of the diagnosis. New was
decided before Hayes and Melcher and therefore did not have the benefit of their analysis.
Moreover, the New court’s reasoning does not comport with a proper analysis pursuant to
Frye. In addressing general acceptance, it noted that the respondent had “raised serious
questions regarding the validity and unorthodoxy of the State’s diagnosis of paraphilia not
otherwise specified sexually attracted to adolescent males, also known as hebephilia.”
Id. ¶ 61. A true Frye analysis does not involve an inquiry into a methodology’s validity. See
Simons, 213 Ill. 2d at 532 (“Under the Frye standard, the trial court is not asked to determine
the validity of a particular scientific technique.”). Furthermore, New cited the fact that there
was “controversy” surrounding the diagnosis. New, 2013 IL App (1st) 111556, ¶ 61.
However, the mere fact that the experts who accept a methodology do not constitute a
majority does not mean that a methodology fails to satisfy Frye’s standard for admissibility.
Sandry, 367 Ill. App. 3d at 965. Rather, such concerns go to the weight of such evidence.
Id. at 977 (“Further questions about the reliability of the procedure are matters that can be
explored at trial.”).
¶ 74 In sum, we hold, in accordance with Hayes and Melcher, that a Frye hearing was not
necessary regarding the paraphilia, NOS, nonconsent diagnosis. Any methodological defects
in the diagnosis went to the weight of such evidence and would have been properly addressed
before the trial court.
¶ 75 IV. CONCLUSION
¶ 76 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.
¶ 77 Affirmed.
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In re Commitment of Walker
Court: Appellate Court of Illinois
Date filed: 2014-11-12
Citations: 2014 IL App (2d) 130372
Copy CitationsCombined Opinion