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