In re Commitment of Rendon

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Appellate Court Date: 2017.06.28
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In re Commitment of Rendon, 2017 IL App (1st) 153201

Appellate Court In re COMMITMENT OF ENRIQUE RENDON (The People of the
Caption State of Illinois, Petitioner-Appellee, v. Enrique Rendon,
Respondent-Appellant).

District & No. First District, Third Division
Docket No. 1-15-3201

Filed April 26, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 98-CR-80004; the
Review Hon. Alfredo Maldonado, Judge, presiding.

Judgment Reversed; remanded.

Counsel on Daniel T. Coyne, Matthew M. Daniels, Michael R. Johnson, and Kate
Appeal E. Levine, of Law Offices of Chicago-Kent College of Law, of
Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
Solicitor General, and Michael M. Glick and Gopi Kashyap, Assistant
Attorneys General, of counsel), for the People.

Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the
judgment and opinion.
 OPINION

¶1 This appeal is brought by the fourth person ever committed as a sexually violent person
(SVP) under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq.
(West 2014)) in Cook County. Respondent, Enrique Rendon, voluntarily stipulated to being
an SVP and was civilly committed in 2002, then underwent sex offender treatment designed
to reduce his risk of recidivism. After being recommended for release in 2010, respondent
entered conditional release, where he remained in the community while scrupulously
supervised by Department of Human Services (the Department) mental health professionals.
The State then successfully moved to revoke his conditional release in 2012, claiming that he
was a danger to the safety of others in the community and that he had violated several
conditions of his release, including his alleged failure to honestly answer questions about his
sexual behavior and fantasies in polygraph examinations. This court reversed that judgment,
and once the mandate issued, respondent was returned to conditional release, over the State’s
specific objection. In re Commitment of Rendon, 2014 IL App (1st) 123090, ¶ 41.
¶2 This particular appeal stems from the trial court’s determination, following review of
respondent’s 2015 annual mental health report, that there was no probable cause to find
respondent had made sufficient progress in treatment such that he was no longer an SVP.
This probable cause decision came despite some noted progress in treatment and even though
he obtained the lowest possible score in standard testing designed to gauge the risk of sexual
offender recidivism. The trial court therefore denied respondent a full evidentiary hearing in
the matter. Had respondent succeeded in obtaining a full hearing, it would have been his first
chance to argue whether he had reached such a low risk of recidivism as to warrant
discharge. We reverse and remand with instructions for the trial court to conduct such an
evidentiary hearing.

¶3 BACKGROUND
¶4 After being convicted and imprisoned for the kidnapping and sexual assault of an
eight-year-old girl, respondent was imprisoned and was released after serving six years. He
violated his parole just two years later by trying to lure children into his car. He was also
found in bed by his 17-year-old daughter as he lay naked with her friend. The State then
moved in 1998 to commit respondent under the Act. Four years later, respondent stipulated to
the State’s petitions and entered mental health sex offender treatment under the auspices of
the Department in a “Treatment and Detention Facility” (TDF), where he remained from
2002 to 2010. This stipulation avoided any hearing in front of a judge or jury to decide
whether he ought to have been committed as an SVP. During treatment, respondent admitted
to a variety of sexual offenses apart from the sexual assault and luring incidents detailed
above. We will not enumerate his many reported sexual offenses but do note that his
self-reporting while in therapy filled more than three single-spaced pages and catalogued
illegal sexual acts that reportedly began at age 11 and concluded at 50. He also boasted that
on more than 20,000 occasions in public places like the “L” train, he had engaged in
“frottage,” the act of rubbing against a person (in his case, young women) for sexual
gratification.
¶5 In 2010, based principally upon the report of Dr. Edward Smith, respondent entered
conditional release. Dr. Smith’s detailed report indicated that respondent had made

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 significant progress, mainly by understanding his offense cycle, and that he had completed a
relapse prevention plan. Along with other findings, this led Dr. Smith to conclude that
respondent was a candidate for a “highly structured and supervised” conditional release,
despite the fact that he felt respondent was still an SVP. As noted above, respondent
remained on conditional release in an apartment for some 21 months where he was
consistently monitored and tested by mental health professionals. He was also prescribed
Eligard, a drug that helped him lessen his deviant urges through the lowering of testosterone
levels. After it was determined that respondent may have lied during a polygraph
examination when questioned about his sexual behavior/fantasies, the State successfully
moved to revoke respondent’s conditional release in June 2012, a judgment that was
subsequently reversed by this court in November 2014. Id. ¶ 41.
¶6 Between the time respondent’s conditional release was revoked and while the matter was
pending on appeal, respondent was returned to institutional treatment. There, he admitted that
he had been regularly fantasizing about offending women and young females with frottage
while on conditional release and thus engaging in high-risk, deviant fantasies and
masturbatory behaviors. He had been making plans to bring women to his apartment.
Specifically, in therapy respondent admitted that he had been “holding in” information by
keeping secrets and being dishonest, especially prior to the allegedly failed polygraph and
before the Eligard treatments. On a scale of 1 to 10, with 10 being the highest, he said he was
at a 7 with regard to his sexual urges, deviant fantasies, and masturbatory behavior. He
reported that during that period he was “slipping a lot” yet denied having any unauthorized
people in his apartment. Respondent eventually joined “Phase V” of the therapy group, the
highest therapy level intended to transition an SVP into the community.
¶7 In spite of these noted problems and while waiting for this court’s opinion to issue, in
August 2014, respondent petitioned for conditional release while also asking the court to
appoint an expert on his behalf and asking for a probable cause hearing. As stated, some
months later, in November 2014, this court reversed the trial court’s judgment terminating
respondent’s conditional release.
¶8 With that reversal and respondent’s pending release back into the community, the State
moved to again revoke his conditional release based upon a January 2015 report by Dr. Smith
in which he stated that despite respondent’s noted progress, respondent was an SVP who
should remain in a treatment facility. One month later, a Dr. Raymond Wood prepared a
report pursuant to respondent’s earlier request. In that report, Dr. Wood found that
respondent had made progress but also believed that he should remain on conditional release,
as opposed to discharge. (Not surprisingly, though it would have been statutorily admissible,
Wood’s report was not later submitted for the court’s consideration in the probable cause
hearing.) In February 2015, pursuant to this court’s mandate and over the State’s objection,
the trial court ordered respondent back on conditional release but of a type that was described
as “maximum supervision,” enabling respondent to “take out his garbage, collect his mail
and do laundry in his building.”
¶9 Some four months into this second stint on conditional release, in June 2015, Dr. Smith
conducted another annual reexamination. This is the reexamination that was used in the “no
probable cause hearing” that is the subject of this appeal. In the 32-page report, Dr. Smith
laid out, in detailed fashion, a litany of self-reported sexual offenses committed by
respondent prior to his confinement, as well as the treatment that he had received over the

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 years while in the TDF and on conditional release, including consideration of annual
reexaminations of respondent from 2008 to 2014. This analysis included reports of numerous
professional tests of respondent designed to assess his truthfulness, i.e., whether he was still
perseverating about sexual deviancy, whether he would react physiologically to materials
designed to test or trigger his erotic responses, and otherwise gauging his progress in
treatment. Respondent’s most recent 2013 penile plethysmography (PPG) test, for example,
indicated no deviant arousal on the 22 segments of images presented.
¶ 10 Dr. Smith opined that respondent met the criteria for five separate sexual disorders as
listed in the fifth and latest edition of the Diagnostic and Statistic Manual (DSM-5). Those
diagnoses are “Pedophilic Disorder, Sexually Attracted to Females, Nonexclusive Type”
(owing to his numerous sexual offenses against prepubescent females including the crimes
that he was imprisoned for); “Other Specified Paraphilic Disorder, Non-Consenting Females”
(related to his reporting of numerous instances of using force, weapons, and intimidation to
gain sexual compliance); “Frotteuristic Disorder” (stemming from his self-reported obsession
with rubbing against people for sexual pleasure); “Alcohol and Stimulant Use Disorder”; and
“Antisocial Personality Disorder.” Dr. Smith’s lengthy report and analysis established that
respondent over the course of his time in the Department had made some significant progress
while still identifying some very sobering issues related to the possibility that respondent was
not being entirely truthful about his potential to reoffend, as respondent had admitted
truthfulness problems.
¶ 11 Nonetheless, when interviewed by Dr. Smith in June 2015, respondent reported he was
transparent in therapy and kept his mind occupied so as to avoid deviant thoughts, thus
steadily decreasing in deviant sexual fantasies, and stated he had not masturbated since
returning on conditional release in February 2015. Fantasies came and went, but respondent
successfully intervened, for example, when viewing young females on television and
completed sexual fantasy/masturbation logs, budget sheets, and phone logs. He was taking
Eligard, which he reported was quite successful in sublimating his deviant sexual urges.
Respondent’s conditional release agent described him as compliant and self-reliant, having
adjusted back to community living from the TDF with no rule violations and negative drug
tests. Respondent, however, acknowledged he often thought about being at the TDF as a
means of helping him cope with the challenges he encountered in the community.
¶ 12 Dr. Smith noted that by statutory definition, a person is dangerous if it is “substantially
probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f) (West
2014). Dr. Smith tested respondent pursuant to a “Static-99R” test which has shown
“moderate accuracy in ranking offenders according to their relative risk of recidivism.”
Respondent scored 1 out of 12, which placed him in the lowest risk of recidivism, i.e. the
likelihood of being charged or convicted of another sexual offense. Dr. Smith reported that
despite the “low risk” described on the Static-99R test, the Department of Corrections had
decided that respondent fit within a “preselected high-risk/high needs” category, which
eliminates all but 96% to 98% of sex offenders being released from prison in Illinois, and
noted that other offenders with the same score of one on the Static-99R test from that
preselected high-risk category had sexually reoffended at a rate of 9% in 5 years and 15.8%
in 10 years. Dr. Smith opined that this re-designation was appropriate because the State had
filed a petition to declare respondent an SVP, a circuit court found that there was probable
cause that he was an SVP, and that “judge or jury concluded” that he was an SVP. Dr. Smith

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 also discussed the findings of a number of sex offender recidivism studies, all of which to
one degree or another found that recidivism rates steadily decreased over time, with rates in
several studies approaching zero after 60 years of age. Dr. Smith noted that research has not
reached a general agreement as to how age affects recividism rates, but then he determined
respondent’s age was a protective factor at this time, while also noting that factor was
“mitigated by the circumstances that led to his Conditional Release being revoked in June
2012.”
¶ 13 Dr. Smith further identified “additional risk factors,” i.e. risk factors existing outside of
risk assessment instruments, which included respondent’s antisocial personality disorder,
self-regulation problems, impulsiveness/recklessness, early onset sexual offending,
intoxication during an offense, deviant sexual interest, intimate relationship conflicts,
substance abuse, neglect, and physical/emotional abuse. Dr. Smith opined that given the
Static-99R, these additional risk factors and “the circumstances and behaviors that resulted in
[respondent’s] Conditional Release being revoked in June 2012 suggest he is at a substantial
probability to engage in acts of sexual violence.” Thus, despite the Static-99R score of one
and studies predicting low recidivism after age 60, Dr. Smith opined that respondent was still
an SVP under the terms of the Act and that his condition had not materially changed since his
most recent reexamination. With that opinion, Dr. Smith effectively recommended against
respondent obtaining a full hearing regarding whether he was entitled to discharge from the
Department. That is, there was no reasonable ground to believe respondent had been cured as
an SVP, although Dr. Smith nonetheless found conditional release was appropriate at that
time.
¶ 14 Accordingly, the State moved for a finding of no probable cause to believe that
respondent was no longer an SVP. Respondent, who was present at the probable cause
hearing and represented by an attorney, objected. Counsel for respondent argued that
changed circumstances indicated respondent was no longer an SVP, and as such, he was
entitled to a discharge hearing. Counsel cited respondent’s lack of a disciplinary record while
in the TDF, the Static-99R score of one (showing that over 60% of sex offenders scored
higher than respondent), respondent’s age of 68 and the accompanying age studies, and
statistics indicating respondent was less likely to reoffend than the median average sex
offender, per Dr. Smith’s report. Citing Dr. Smith’s statistic regarding an estimated
recidivism rate of 9% in five years, counsel claimed it “falls far short of the statutory criteria
for civil commitment.” Additionally, counsel noted that Dr. Smith did not sufficiently
delineate how the dynamic risk factors influenced the low Static-99R score. Counsel
criticized Dr. Smith’s problematic reliance on respondent’s 2012 conditional release
revocation as a factor supporting Dr. Smith’s ultimate professional conclusion that he was
still an SVP, when this court had reversed that revocation judgment. Counsel argued in short
that this evidence “leads to the conclusion” that respondent is “not substantially probable to
re-offend” and had presented a plausible account for a discharge hearing.
¶ 15 In response to the trial court’s query, the State argued that Dr. Smith’s report was not on
its face “enough to trigger an evidentiary hearing.” The State argued the report, when
considered comprehensively, showed respondent continued to meet the criteria of an SVP.
¶ 16 Following arguments, the trial court found no probable cause to warrant a full evidentiary
hearing to determine whether respondent was no longer an SVP. In fact, the trial court found
there was a plausible account to find respondent was still an SVP based on Dr. Smith’s

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 report, which was not at least contradicted by any other report in evidence, and given that
respondent had not affirmatively filed a petition for discharge. This timely appeal followed.

¶ 17 ANALYSIS
¶ 18 Standard of Review and SVP Law
¶ 19 The parties contend, and we agree, that the question of whether there is probable cause to
believe respondent is no longer an SVP so as to warrant a full evidentiary hearing is subject
to de novo review. In re Commitment of Wilcoxen, 2016 IL App (3d) 140539, ¶ 28.
¶ 20 In Illinois, a respondent is entitled to be annually reexamined by mental health
professionals to determine whether he or she has made sufficient progress to be on
conditional release or discharged. 725 ILCS 207/55(a) (West 2014). In this case, respondent
was already on conditional release at the time Dr. Smith submitted the June 2015
reexamination report. As such, under the statute, the filing of the reexamination report
required the trial court to hold a probable cause hearing to determine whether respondent was
entitled to discharge from custody, that is, unless respondent affirmatively waived his right to
the petition. See 725 ILCS 207/65(b)(1) (West 2014). Here, the record is clear that
respondent neither asked for discharge nor specifically waived his right to do so. Therefore,
the probable cause hearing necessarily ensued under the statute by operation of law without
respondent having to affirmatively file the petition. There, while reviewing only the
reexamination reports and parties’ arguments, the trial court was required to “determine
whether facts exist to believe that since the most recent periodic reexamination ***, the
condition of the committed person has so changed that he *** is no longer a sexually violent
person.” Id. A sexually violent person is one who has been convicted of a sexually violent
offense and is dangerous to others because he suffers from a mental disorder that makes it
substantially probable that he will engage in acts of sexual violence. 725 ILCS 207/5(f)
(West 2014). A finding of probable cause garners a full evidentiary hearing in which the
State must prove by clear and convincing evidence that the committed person is still a
sexually violent person. 725 ILCS 207/65(b)(2) (West 2014).
¶ 21 We note, initially, that respondent takes issue with the 2012 amendment to the discharge
provision in section 65, which took effect immediately. See Pub. Act 97-1075 (eff. Aug. 24,
2012). Under that amendment, and as stated, a court in considering probable cause according
to section 65(b) must examine whether since “the most recent periodic reexamination” facts
show a changed condition in the respondent, such that he is no longer an SVP. Id. The
previous version of section 65(b) did not contain a reference to “the most recent periodic
reexamination.” See id. Respondent argues the 2012 amendment is unduly restrictive, forcing
a petitioner to essentially rely only on facts occurring since the most recent reexamination,
within the preceding year. He argues this has a retroactive effect and we must therefore apply
the pre-amendment statute.
¶ 22 The State responds that the 2012 amendment explicitly provides that the amendment
applies to petitions pending at the effective date of the amendment and petitions filed
thereafter. 725 ILCS 207/65(c) (West 2014). Reading the statute in its plain language so as to
divine legislative intent, as we must, and in context with the other provisions of section 65,
“petition” refers to petitions for discharge, including petitions like the present one, that were
filed by operation of law and not the initial petition for civil commitment of respondent. In re
Detention of Hardin, 238 Ill. 2d 33, 40 (2010). As defendant’s petition for discharge was

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 filed by operation of law in 2015, several years after the amendment, the State contends, and
we agree, that the circuit court’s probable cause determination was based on section 65 then
in effect, which contained the amended language. Indeed, in the absence of contrary
legislative intent or manifest injustice, courts will apply the law in effect at the time of their
decisions. See Daley v. Zebra Zone Lounge, Inc., 236 Ill. App. 3d 511, 515 (1992); see also
Doe A. v. Diocese of Dallas, 234 Ill. 2d 393, 407 (2009) (the expression of legislative intent
must be given effect, absent constitutional prohibition).
¶ 23 Moreover, respondent’s reading of the statute is itself unduly restrictive since review of a
reexamination report does not preclude consideration of a respondent’s full mental health and
sexual history or relevant historical facts. Indeed, in Dr. Smith’s June 2015 report itself, he
reviewed the other annual reexamination reports from 2008 to 2014, thus taking them into
account. Construing the statute logically, it simply means the court must consider the
professional conclusions as to a respondent’s status in the most recent report and any
changed circumstances. See In re Detention of Stanbridge, 2012 IL 112337, ¶ 72. We agree
with the State that the amendment is simply a clarification of what the circuit court was
already tasked with determining in any case involving application for discharge or
conditional release—i.e. whether the respondent’s current status reflects a mental disorder or
that he is still a danger to society such that he is substantially probable to reoffend. See
General Telephone Co. of Illinois v. Johnson, 103 Ill. 2d 363, 377 (1984) (if the amendment
merely clarified the law as it existed before, then no substantive change occurred that would
raise a due process issue). Even absent the amendment, it is common sense that a court would
turn to the most recent professional examination of a respondent to answer this very
important public safety question. For example, if a sex offender had regressed in treatment to
the point where a professional recommends no discharge, it would make little sense for a
court to cite an examination report from two years prior stating that the respondent had made
significant progress and then allow discharge based on that previous report. For those
reasons, respondent’s contention as to the applicability of the pre-amendment statute fails.
¶ 24 We thus return to the merits of determining whether the trial court erred in this instance.
Respondent, who initially stipulated to the State’s SVP petition and who never formally
petitioned for discharge, contends that he is entitled to an evidentiary hearing to determine
whether he is still a sexually violent person as defined by the Act. We agree.

¶ 25 The Wilcoxen Case
¶ 26 We find the recent decision in Wilcoxen, 2016 IL App (3d) 140359, instructive. In
Wilcoxen, the respondent was convicted of criminal sexual assault, and just as he was about
to be released after serving only 10 years of his 22-year sentence, the State petitioned to have
him declared an SVP. Seven years later, a jury agreed, and he was placed in a TDF. After the
State filed several motions for a finding of no probable cause, the trial court eventually held a
hearing and found that there was no probable cause to believe that the respondent was no
longer an SVP. Removing the double negative, the court essentially ruled that there was
probable cause to believe that he was still an SVP, which vitiated any evidentiary hearing.
This decision was made by the trial court on the basis of reports submitted by two
psychologists, one who was retained by the State and one retained by the respondent.
¶ 27 The State’s psychologist, Dr. Gaskell, conducted a battery of tests that are substantially
similar to those that were taken of respondent. These included the Static-99R, where the

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 respondent scored a four. Like Dr. Smith, Dr. Gaskell classified the respondent as a
“high-risk/high needs” individual and estimated his risk of recidivism as 20.1% in 5 years
and 29.6% in 10 years. Dr. Gaskell’s ultimate conclusion, like that of Dr. Smith, held that it
was “substantially probable” that the respondent would reoffend if released, and he
recommended that he remain classified as an SVP.
¶ 28 The respondent’s psychologist, Dr. Rosell, also used a number of tests, including the
Static-99R where he scored the respondent as a 3 on the scale of 12. He conducted another
test (MATS-1), which predicted an eight-year recidivism rate of 6% among individuals aged
60-69 years old, although his score of four placed him in the high range. Dr. Rosell
concluded that the respondent did not pose a substantial risk of reoffending. The respondent
was 61 at the time he was tested by Dr. Rosell.
¶ 29 On appeal, the Third District found that the respondent had met his “very low burden” to
obtain an evidentiary hearing, while acknowledging at the same time that the respondent
possibly would not succeed in establishing at an evidentiary hearing that he is no longer an
SVP. Relying on the supreme court’s decision in Stanbridge, 2012 IL 112337, the Wilcoxen
court noted that in a preliminary probable-cause discharge proceeding, which is intended
only to establish essential or basic facts as to probability, the respondent bears the burden of
demonstrating only a “plausible account” that he is no longer an SVP and the court must
make this determination without weighing evidence like competing professional opinions.
Wilcoxen, 2016 IL App (3d) 140359, ¶ 35. In other words, the respondent must present
sufficient evidence that he no longer meets the elements for commitment, in so far as (1) he
no longer has a mental disorder or (2) he is no longer dangerous to others because the
person’s mental disorder no longer creates a substantial probability that he will engage in acts
of sexual violence. In other words, the evidence must show changed circumstances in the
committed person, professional knowledge or methods, or legal definitions. Id. ¶ 36.
¶ 30 In light of those standards, the Wilcoxen majority found that the respondent’s positive
experience in treatment, his commitment to a treatment plan, his psychologist’s professional
opinions relating to his low risk of recidivism, and the testing results all “supported
respondent’s claim and warranted an evidentiary hearing.” Id. ¶ 37. As to the actuarial and
PPG tests, the majority emphasized that the results, while meaningful, did not “compel a
conclusion that it is ‘substantially probable’ that respondent will reoffend,” reasoning further
that “if probable means it is more likely than not that respondent will reoffend and
substantially probable means his reoffending is substantially more likely to occur than not,
these results of objective, statistical tests militate against, not in favor of, that finding.” Id.
¶ 48.

¶ 31 Respondent’s Case
¶ 32 Likewise, in the case sub judice, respondent has adequately met his low burden to obtain
an evidentiary hearing. The test result that established respondent’s recidivism rate at 1 on a
scale of 12, his age of 68, the studies showing a low reoffense risk with increased age,
respondent’s compliance with hormone drug therapy, and his current behavioral methods for
handling his mental disorder, are all evidence constituting at least a plausible account that
respondent is no longer an SVP. That is, it is plausible evidence of changed circumstances
from the time respondent initially stipulated to the SVP designation and over the course of 18
years in treatment and twice being on conditional release in the community. Indeed, when

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 compared to the respondent in Wilcoxen, respondent has completed more treatment and
reached phase V in therapy, advanced more in age (68 compared to 61), scored a lower
recidivism rate on the Static-99R test, and scored better on his most recent PPG examination.
Based on the foregoing, we conclude respondent is at least entitled to an evidentiary hearing
to determine whether he is no longer dangerous to others because his mental disorder no
longer creates a substantial probability that he will engage in acts of sexual violence. As in
Wilcoxen, we acknowledge that an evidentiary hearing may not lead to the conclusion that
respondent is no longer a sexually violent person. To be sure, the State may very well
establish by clear and convincing evidence at an evidentiary hearing that respondent should
be denied discharge from the Department’s legal custody. That evidence might reference
respondent’s significant difficulties during his first stint on conditional release and also his
retained expert’s report, which was not presented at the probable cause hearing and which we
have not reviewed since it does not appear in the record, but in which the expert reportedly
opined that respondent was still an SVP who should remain in conditional release.
Notwithstanding those possibilities, for our present purposes and given the record before us,
respondent has presented sufficient evidence to show probable cause for an evidentiary
hearing.
¶ 33 In reaching this conclusion, we wish to address several matters raised during oral
arguments on this case. We first address respondent’s claim as to his burden at the probable
cause discharge hearing. Respondent notes that his discharge petition was filed by operation
of law, as he was reexamined yet did not waive his right to petition, which automatically
triggered the trial court’s duty to conduct a probable cause hearing under section 65(b)(1).
Respondent argues that in such an instance, he should have no burden at the hearing, thus
distinguishing his case from one where the respondent affirmatively files a petition for
discharge over the Secretary of Human Services’ objection under section 65(b)(1) and then
has a probable cause hearing.
¶ 34 This argument is directly contradicted by Stanbridge, which drew no distinction between
a discharge petition filed by operation of law and one filed affirmatively by a respondent. In
both scenarios, Stanbridge held “the movant bears the burden to show sufficient evidence to
warrant a hearing on whether the person is ‘still a sexually violent person.’ ”1 (Emphasis
omitted.) Stanbridge, 2012 IL 112337, ¶ 67 (quoting 725 ILCS 207/65(b)(1), 70 (West
2008)).
¶ 35 This brings us to the State’s argument that respondent, in order to fulfill his burden at the
probable cause hearing, was required to present his own evaluator’s report. The State notes
that respondent’s case is different from the fact pattern in Wilcoxen, since there, the
respondent had an appointed psychologist opining that he was no longer an SVP. Here, Dr.
Smith opined that respondent was most definitely still an SVP and thus not entitled to any
further hearing.

1
In Stanbridge, the court addressed the 2008 Act. Under the 2008 Act, section 65(b)(1) contained
the provision wherein a discharge petition is filed by operation of law, while section 70 contained the
provision wherein the respondent affirmatively filed the petition. The 2012 amendment collapsed these
statutory sections into one, section 65, and repealed section 70, but the amended content of section
65(b)(1) is not appreciably different from the 2008 version insofar as the respondent can obtain a
probable cause hearing by operation of law or by affirmatively filing a petition.

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¶ 36 The State’s arguments are resolved by carefully reviewing the Act. Section 65(b)(1)
mandates only that the court consider the submitted “reexamination reports.” See 725 ILCS
207/65(b)(1) (West 2014). This necessarily includes the Department’s reexamination report
filed annually under section 55. See 725 ILCS 207/55(a) (West 2014). While section 65(b)(1)
does not mandate that a respondent submit his own evaluator report, it also does not foreclose
respondent from doing so. See 725 ILCS 207/55(a) (West 2014) (“At the time of a
reexamination under this Section, the person who has been committed may retain or, if he or
she is indigent and so requests, the court may appoint a qualified expert or professional
person to examine him or her.” (Emphasis added.)). At the same time, the Act expressly
provides that the State can choose its own expert to evaluate respondent at a full evidentiary
hearing. See 725 ILCS 207/65(b)(2) (West 2014). From examining the above-stated
provisions, we think the Act makes clear that the Department evaluators are neutral in the
sense that they are neither aligned with the petitioning party, nor the party opposing the
petition, albeit necessarily employed by the State of Illinois. Thus, presenting a Department
evaluator report does not automatically mandate a finding in favor of the State, and either
party may argue for or against the report.
¶ 37 We thus reject the State’s related argument that respondent had to show a “plausible
expert opinion” that he’s no longer an SVP, since the Stanbridge holding clearly requires
only that the trial court find from the discharge hearing evidence “a plausible account” that
the committed person is no longer an SVP. Stanbridge, 2012 IL 112337, ¶¶ 62, 67. Here, as
stated and under our de novo review, we conclude a trier of fact could find that the actuarial
tests, respondent’s age, and present treatment status rebutted the conclusion reached by Dr.
Smith that respondent was still an SVP. In other words, Dr. Smith’s conclusion drawn from
the facts in his report does not preclude our determination that respondent has presented a
plausible account that he is no longer an SVP. Again, the quantum of evidence is low, and
Dr. Smith, a mental health professional, did not address that statutory matter specifically.
Likewise, the prohibition against weighing evidence or making credibility determinations at
this stage does not preclude critical consideration of the evidence in a doctor’s report,
weighing the related inferences, and determining whether that evidence is consistent with the
doctor’s final opinion. Cf. id. ¶ 58 (at the probable cause stage, the role of the trial court is
not to choose between conflicting facts or inferences or to engage in a full and independent
evaluation of the expert’s credibility and methodology, but rather to consider whether
plausible evidence or reasonable inference supports the movant’s claim). This will help avoid
simply rubber-stamping doctor’s reexamination reports, especially where liberty is at stake.
¶ 38 In that sense, we must address certain frailties in Dr. Smith’s report, while
acknowledging that the law and mental health can clearly diverge at times. Even considering
the face value of Dr. Smith’s actuarial test analysis, it is arguably reductio ad absurdum, as it
holds that anybody who is found to be an SVP under the State’s commitment petition,
whether by judge or jury, is automatically excluded from the 96% to 98% of sexual offenders
who have a very low risk of recidivism and instead should be subject to a preselected group
of offenders who are at a higher risk (5% at 5 years and 15.8% at 10 years). This necessarily
means that every person who is found to be an SVP would, a priori, forever remain an SVP,
a conclusion which is markedly inconsistent with the gravamen of the Act itself. The SVP
law is predicated upon the possibility that a person can successfully be engaged in treatment
that would remove the “diagnosis” of SVP, thus entitling him to release. See 725 ILCS

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 207/40(a) (West 2014) (“If a court or jury determines that the person who is the subject of a
petition under Section 15 of this Act is a sexually violent person, the court shall order the
person to be committed to the custody of the Department for control, care and treatment until
such time as the person is no longer a sexually violent person.” (Emphasis added.)). Accepting
this opinion is equivalent to stating that the finding of SVP status by a court and a jury is
equivalent to a civil form of life imprisonment without an evidentiary hearing ever being held
to determine whether the individual respondent should be released. We cannot sanction such
a result.
¶ 39 Dr. Smith’s report is also replete with analyses of studies that reflect a greatly reduced
rate of recidivism among offenders as they age, with recidivism being virtually unreported
after the age of 60. In addition, Dr. Smith’s stated basis for finding respondent substantially
likely to reoffend included not just the Static-99R, but “the circumstances that led to his
Conditional Release being revoked in June 2012.” Dr. Smith also cited as support the
so-called dynamic risk factors, which were almost all factors (like deviant sexual interest,
intoxication during an offense, etc.) that landed respondent in civil commitment in the first
place. Thus, Dr. Smith appears to have put respondent into a higher risk of recidivism than
some authoritative literature would have suggested based upon the circumstances that this
court specifically held were inappropriate reasons for his removal from conditional release
and based upon respondent’s initial admitted status as an SVP. See Rendon, 2014 IL App
(1st) 123090. After a full evidentiary hearing, a fact finder could weigh Dr. Smith’s report
and conclude that it could be meaningfully challenged.

¶ 40 CONCLUSION
¶ 41 Based on the foregoing, we reverse the judgment of the trial court finding no probable
cause for an evidentiary hearing. We remand the case for further proceedings consistent with
this opinion.

¶ 42 Reversed; remanded.

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