Filed 5/1/08 NO. 4-07-0438
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Commitment of ) Appeal from
ROBERT W. BLAKEY, a Sexually Violent ) Circuit Court of
Person, ) Sangamon county
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 04MR112
Plaintiff-Appellee, )
v. ) Honorable
ROBERT W. BLAKEY, ) Leo J. Zappa, Jr.,
Defendant-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
In an 18-month reevaluation report performed in March
2007, Dr. Robert Brucker recommended that respondent, Robert W.
Blakey, should (1) continue to be found a sexually violent person
and (2) be ordered to conditional release in the community as
long as he demonstrates a willingness to cooperate with his plan.
On March 28, 2007, the State filed a motion for a finding of no
probable cause under section 65(b)(1) of the Code of Criminal
Procedure of 1963 to warrant an evidentiary hearing to determine
whether Blakey is still a sexually violent person (725 ILCS
207/65(b)(1) (West 2006)). On April 27, 2007, the trial court
conducted a probable-cause hearing to determine whether a further
evidentiary hearing was necessary to determine whether Blakey was
still a sexually violent person or whether Blakey was ready to be
conditionally released. The court heard argument from the
attorneys regarding the contents of Dr. Brucker's report. In a
written order that same day, the trial court entered an order
finding no probable cause to warrant a further evidentiary
hearing. Blakey appeals, arguing that, based on Dr. Brucker's
second recommendation, probable cause existed to warrant an
evidentiary hearing to determine whether Blakey has made suffi-
cient progress to be conditionally released or discharged. We
affirm.
I. BACKGROUND
A. Underlying Offense and Treatment History
In July 1999, Blakey pleaded guilty in Sangamon County
circuit court to predatory criminal sexual abuse, and the court
sentenced Blakey to 12 years' imprisonment. People v. Blakey,
No. 98-CF-571 (Sangamon County, July 1999). Blakey, age 32 in
1999, molested three family members who were under the age of 13.
While in pretrial custody, Blakey bragged about the molestations
to fellow inmates, referring to himself as the "iceman" because
he was too slick to get caught. Blakey also told inmates that he
did not regret his actions and that he planned on getting a job
at a day care where he would be "a lot slicker" so as not to get
caught the next time. Blakey continues to admit his actions and
has recently told psychiatrists that, over the years, he has
molested 10 females and males, aged 2 to 11.
In 1999, Blakey was given the opportunity to partici-
pate in a sex-offender treatment program but refused. In 2001,
Blakey agreed to participate in the program. Blakey received
treatment in the program from 2001 to 2003. However, Dr. Timothy
Lawrence, a group therapist for the program, informed Blakey's
subsequent psychiatrist that:
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"[Blakey's] emotional commitment and involve-
ment in [the program] was minimal. Progress
was considered to be poor. [Blakey] was clin-
ically viewed as an immature,
non[]compliant[] participant in the group
process. *** [He has] a poor prognosis for
community adjustment."
After receiving the aforementioned sex-offender treatment in the
prison, Blakey apparently failed a subsequent screening process
and was referred for detention with the Department of Health and
Human Services.
In March 2004, after being in prison for less than five
years, the State filed a petition to commit respondent pursuant
to the Sexually Violent Persons Commitment Act (725 ILCS 207/1
through 99 (West 2004)). Following a mid-2005 bench trial, the
trial court adjudicated Blakey a sexually violent person and
committed Blakey to the Department of Health and Human Services
for control, care, and treatment until the court determined
Blakey to no longer be a sexually violent person. Blakey did not
appeal the adjudication.
On March 17, 2006, Dr. Brucker performed a section 55
six-month reevaluation (725 ILCS 207/55 (West 2006) (requiring
periodic reevaluations of committed persons)). Dr. Brucker noted
that Blakey had stopped participating in the "CORE" treatment
program and failed to participate in any sex-offender-specific
treatment program during the six-month evaluation period.
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Instead, Blakey was, in a sense, demoted to a therapy program
entitled "POWER to Change," which was designed for offenders who
struggled in the sexual-offense-specific programs. Dr. Brucker
recommended that Blakey continue to be found a sexually violent
person and remain committed to a secure facility for sex-offender
treatment.
B. The Section 55 18-Month Reevaluation
In March 2007, Dr. Brucker performed the 18-month
reevaluation pursuant to section 55 that is at issue in the
instant appeal. 725 ILCS 207/55 (West 2006). The evaluation
concluded that Blakey continued to suffer from a mental disorder,
namely pedophila (sexually attracted to both genders, nonexclu-
sive type), combined with a personality disorder (not otherwise
specified, with antisocial traits). Dr. Brucker stated that "due
to [Blakey's] mental disorders, it [is] substantially probable
that [Blakey] will engage in future acts of sexual violence."
Dr. Brucker performed several psychological tests on
Blakey, which revealed that Blakey (1) had fantasies about
sexually touching children and found the idea of touching chil-
dren to be slightly arousing; (2) strongly disagreed with the
statement, "sex between a 13-year-old (or younger) child and an
adult causes the child emotional problems"; (3) demonstrated
significant sexual interest in preschool, adolescent, and adult
females; and (4) demonstrated significant sexual interest in
sexual stories involving male and female infants, male (coercive
and persuasive storylines) and female (persuasive) preschool
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children, male (coercive) and female (coercive and persuasive)
grammar-school children, and female teens (persuasive). Dr.
Brucker believed that Blakey attempted to interfere with response
patterns on these tests in 9 of 22 segments.
Since the last evaluation, Blakey continued to partici-
pate in the POWER treatment program, but still had not partici-
pated in the sex-offender-specific CORE treatment program.
Blakey told Dr. Brucker that, through the POWER program, he had
improved his anger-management skills, his ability to analyze his
feelings, and his relationships with other residents.
Based on the reevaluation, Dr. Brucker recommended that
Blakey should (1) continue to be found a sexually violent person,
and (2) be ordered to conditional release in the community as
long as he demonstrates a willingness to cooperate with his plan.
Concurrent with the section 55 reevaluation, Blakey received
notice stating:
"If you do not sign [a] waiver form, the
[c]ourt [will] begin the process it must
follow to determine if you have made enough
progress to be conditionally released or
discharged. This means the [c]ourt will set
a probable[-]cause hearing where it will be
reviewing the examiner's report of your exam-
ination. *** If the [c]ourt believes you
have made enough progress to be transferred
to conditional release or discharge, a full
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hearing will be set."
Following the 18-month reevaluation, Blakey did not file a
petition for conditional release or a petition for discharge.
However, he also never signed a waiver of his right to petition
for conditional release or discharge. Because Blakey did not
sign the waiver, the matter was set for a probable-cause hearing
to determine whether an evidentiary hearing was necessary to
determine if Blakey was still a sexually violent person. 725
ILCS 207/65(b)(1) (West 2006) (requiring a probable-cause hearing
where the committed person does not sign a waiver of his right to
petition for discharge following a section 55 reevaluation).
C. Probable-Cause Hearing
On March 28, 2007, the State filed a motion for a
finding of no probable cause to warrant an evidentiary hearing to
determine whether Blakey remained a sexually violent person
pursuant to section 65(b). 725 ILCS 207/65(b) (West 2006). The
State erroneously stated in the petition that Dr. Brucker recom-
mended continued commitment in a secured facility, and attached
Dr. Brucker's 18-month reevaluation.
On April 27, 2007, the trial court conducted the
probable-cause hearing. At the conclusion of the hearing, the
trial court stated:
"I've never seen so much factual information
so [inconsistent with the] final outcome [of
a recommendation for conditional release] ***
[it's] unbelievable. *** Sorry, this man is
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not ready for conditional release."
In its written order, the court held that there was no probable
cause to warrant an evidentiary hearing to determine whether
Blakey was still a sexually violent person pursuant to section
65. 725 ILCS 207/65 (West 2006). The court also stated that
there was no probable cause to hold an evidentiary hearing to
determine whether Blakey was ready for conditional release, but
the court did not refer to any section in the statute in so
stating. This appeal followed.
II. ANALYSIS
On appeal, Blakey argues that the trial court erred
when it found no probable cause to warrant an evidentiary hearing
to determine whether Blakey had made sufficient progress to be
conditionally released or discharged. Blakey argues that, under
section 65(b)(1), the court may only consider the reevaluation
report and the argument of both parties. 725 ILCS 207/65(b)(1)
(West 2006). Because Dr. Brucker's reevaluation recommendation
was that the court order that Blakey was ready for conditional
release, Blakey contends the trial court abused its discretion in
declining to find probable cause to proceed to an evidentiary
hearing on the matter. See In re Ottinger, 333 Ill. App. 3d 114,
120, 775 N.E.2d 203, 208 (2002) (generally noting that the trial
court's decision not to proceed to an evidentiary hearing follow-
ing a probable-cause hearing is reviewed only for abuse of
discretion).
First, we note that Blakey points to the wrong section
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in the Sexually Violent Persons Commitment Act. Section 65,
entitled "Petition for discharge," governs probable cause to
warrant an evidentiary hearing to determine whether a person
should still be considered a sexually violent person. 725 ILCS
207/65 (West 2006). If a committed person receives a reevalua-
tion under section 55, as Blakey did, the person shall receive a
notice of his right to petition the court for discharge. 725
ILCS 207/65(b)(1), 55 (West 2006) (the Department shall conduct a
reevaluation every 12 months from the completion of the last
evaluation). If the person does not affirmatively waive the
right to petition for discharge, the court shall set a probable-
cause hearing to determine whether the facts warrant a further
hearing to determine whether the person is still a sexually
violent person. 725 ILCS 207/65(b)(1) (West 2006). Under
section 65, a person will be discharged from the custody and
supervision of the Department of Health and Human Services if he
is found at the evidentiary hearing to no longer be a sexually
violent person. 725 ILCS 207/65(b)(2),(b)(3) (West 2006).
However, in this case, both parties concede that Blakey is still
a sexually violent person. Therefore, it is Blakey's conditional
release, and not his discharge, that is contested, and an eviden-
tiary hearing under section 65 is not appropriate here.
Section 60, entitled "Petition for conditional re-
lease," governs the procedure for the court to follow in deter-
mining whether a sexually violent person may be conditionally
released. 725 ILCS 207/60 (West 2006). Blakey did not file a
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petition for conditional release. And, unlike section 65,
section 60 does not automatically provide for a probable-cause
hearing where the committed person takes no action following a
section 55 reevaluation. Nevertheless, assuming, arguendo, that
the question of whether Blakey should be conditionally released
was properly before the trial court at the probable-cause hearing
by virtue of the fact that Dr. Brucker recommended a conditional
release in the section 55 reevaluation and by virtue of the fact
that Blakey never signed the accompanying waiver, the trial court
was not required to find probable cause to warrant a further
evidentiary hearing. "If the court determines at the probable[-
]cause hearing that cause exists to believe that it is not
substantially probable that the person will engage in acts of
sexual violence if on release or conditional release, the court
shall set [an evidentiary] hearing on the issue." 725 ILCS
207/60(c) (West 2006).
Here, the trial court stated that nothing in the
reevaluation report supported Dr. Brucker's surprising recommen-
dation that Blakey was ready for conditional release, which
constituted Dr. Brucker's final sentence in the 24-page report.
In fact, just a few paragraphs prior to that somewhat startling
recommendation, Dr. Brucker specifically concluded that "due to
[Blakey's] mental disorders, it [is] substantially probable that
[Blakey] will engage in future acts of sexual violence." This
language mirrors the standard set forth in section 60(c), which
precludes conditional release under such circumstances. 725 ILCS
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207/60(c) (West 2006). Dr. Brucker reported that Blakey still
held the distorted belief that it was not emotionally damaging
for a child under 13 years old to have sex with an adult.
Additionally, Dr. Brucker reported that Blakey had not yet
participated in any sex-offender-specific treatment programs,
making it difficult to understand why Dr. Brucker would recommend
conditional release as opposed to continued commitment in a
secured facility where Blakey could graduate to sex-offender-
specific treatment. Aside from the final sentence of Dr.
Brucker's report, the evidence overwhelmingly favored continued
commitment in a secured facility. The court was not required to
hold a further evidentiary hearing on the matter.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's judgment.
Affirmed.
APPLETON, P.J., and STEIGMANN, J., concur.
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