dissenting:
The majority judgment affirms the trial court’s order finding that defendant is sexually dangerous beyond a reasonable doubt because, inter alla, he suffers from a mental disorder as defined in the Act. 405 Ill. App. 3d at 171. The majority judgment recognizes that “to be valid under the Act, there must also be an explicit finding that it is substantially probable1 that the defendant would engage in the commission of sex offenses in the future if not confined.” 405 Ill. App. 3d at 170, citing People v. Masterson, 207 Ill. 2d 305, 330, 798 N.E.2d 735, 749 (2003). Because the record does not contain an explicit finding of that fact, I would find that the trial court’s order that defendant is a sexually dangerous person is not valid under the Act. Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749.
The majority judgment also finds that the trial court did not prejudice defendant’s right to due process in the sexually-dangerous-person proceedings by initially allowing the pending criminal charge and the sexually-dangerous-person petition to proceed simultaneously. 405 Ill. App. 3d at 173-74. Because defendant failed to object to the simultaneous proceedings, I would decline to address the propriety of those proceedings on the grounds defendant forfeited review of any error. People v. Owens, 394 Ill. App. 3d 147, 152, 914 N.E.2d 1280, 1284-85 (2009) (“the defendant may forfeit review of any error, even an error of constitutional magnitude, where the defendant’s trial counsel fails to raise a timely objection and include that objection in a posttrial motion”).
Turning to the merits of the conviction, the supreme court has construed the Act as
“requiring proof of three separate elements:
‘(1) the existence of a mental disorder for more than one year; (2) the existence of criminal propensities to the commission of sex offenses; and (3) the existence of demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children.’ ” People v. Allen, 107 Ill. 2d 91, 105, 481 N.E.2d 690, 697 (1985), quoting People v. Pembrock, 62 Ill. 2d 317, 321-22, 342 N.E.2d 28 (1976).
To ensure that the Act comported with minimal standards of due process, the Masterson court read “the SVPA’s definition of ‘mental disorder’ *** into the SDPA to the extent consistency allows and augmented with the standard that appears to emerge from Crane.” Masterson, 207 Ill. 2d at 329, 798 N.E.2d at 749. Under Masterson, “mental disorder” for purposes of the Act means “ ‘a congenital or acquired condition affecting the emotional or volitional capacity that predisposes [the defendant] to engage in the commission of sex offenses and results in serious difficulty controlling sexual behavior.’ ” 405 Ill. App. 3d at 170, quoting Masterson, 207 Ill. 2d at 329, 798 N.E.2d at 749.2 In addition to defining mental disorder as used in the Act, the Masterson court further clarified the “requirements for commitment under the SDPA, specifically, the implicit requirement of section 1.01 of the SDPA (725 ILCS 205/1.01 (West 2000)) that a person must present a danger to offend in the future before he or she may be committed under the Act.” Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749. The court held:
“[A] finding of sexual dangerousness premised upon the elements of section 1.01 of the SDPA (725 ILCS 205/1.01 (West 2000)) must hereafter be accompanied by an explicit finding that it is ‘substantially probable’ the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined.” Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749.
The majority’s judgment implies that any finding of a lack of ability to control sexual behavior (405 Ill. App. 3d at 171) equates with an explicit finding of a substantial probability that the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined. What emerges from Masterson, however, are distinct elements that the State must prove before a subject may be committed under the Act. The State must prove that the person suffers from a mental disorder affecting volitional capacity, but diminished volitional capacity alone is not enough. Masterson requires a separate finding that “it is ‘substantially probable’ the person *** will engage in the commission of sex offenses in the future.” Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749.
While any degree of a lack of ability to control sexual behavior is evidence that a substantial probability may exist that the subject will commit sex offenses in the future, the majority cites no authority for a broad finding that such evidence constitutes sufficient proof of that fact absent an explicit finding of a substantial probability. The court has found that a substantial probability of committing sex offenses in the future if not confined means that it is “ ‘much more likely than not’ ” (In re Detention of Hayes, 321 Ill. App. 3d 178, 189, 747 N.E.2d 444, 454 (2001), quoting In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086 (2000)) that the subject will commit offenses in the future, not just that the subject has some condition affecting volitional capacity.
My dispute is not with whether the trial court “knew of and understood that requirement.” 405 Ill. App. 3d at 172. In my opinion, the majority is cavalier in its treatment of the requirement that a finding of sexual dangerousness “be accompanied by an explicit finding that it is ‘substantially probable’ the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined.” (Emphasis added.) Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749. It reasons that requirement is satisfied by the fact that at the hearing on the posttrial motion defense counsel argued that the State failed to prove the serious difficulty requirement, the trial court heard those arguments, and denied the motion. I do not agree with the implication from the majority that an implicit rejection of a position is an explicit finding of its opposite.
Moreover, the majority’s judgment establishes a precedent for relying on any finding of a “lack of control” to satisfy the requirement for a finding of a substantial probability that the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined and to permit affirmance on this lesser showing. The Masterson court clearly delineated between a finding of diminished volitional capacity and a finding of a substantial probability the subject would commit sex offenses in the future. The court had already defined “ ‘mental disorder’ as used in the [Act] to mean a *** condition affecting the emotional or volitional capacity.” Masterson, 207 Ill. 2d at 329, 798 N.E.2d at 749. The court went on to state that it was “appropriate, at this juncture, to also clarify the requirements for commitment under the [Act], specifically, the implicit requirement *** that a person must present a danger to offend in the future before he or she may be committed under the Act.” (Emphasis added.) Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749.
Dr. Jeckel opined that “defendant would engage in sexually dangerous behavior in the future if not confined.” 405 Ill. App. 3d at 171. I do not reject Dr. deckel’s opinion as evidence that it is substantially probable that defendant will engage in the commission of sex offenses in the future if not confined. I would simply require the trial court consider the evidence, exercise its discretion, and make an explicit finding that it is substantially probable, as Masterson requires.
The majority’s affirmance of the trial court’s order in this case, which does not contain the required explicit findings, forecloses requiring the trial court in future cases to actually exercise its discretion to consider other evidence that might make it less than “much more likely than not” that the subject will commit sex offenses in the future. It is not necessary to speculate what that evidence might be or whether it exists in this case. The basis of my dissent is the failure to adhere to the standards expressly stated by the supreme court and my view that the majority’s judgment debilitates that standard. I would not necessarily disagree that “no rational trier of fact would have found the *** elements] [were] not proven beyond a reasonable doubt” (emphasis added) (405 Ill. App. 3d at 172), had an explicit finding of all of the requirements for commitment required under Masterson been required.
Under Masterson, evidence, however great, of “impaired volitional capacity” (405 Ill. App. 3d at 171) is not enough. Masterson expressly requires, in addition, “an explicit finding that it is ‘substantially probable’ the person subject to the commitment proceeding will engage in the commission of sex offenses in the future if not confined.” (Emphasis added.) Masterson, 207 Ill. 2d at 330, 798 N.E.2d at 749. The trial court failed to make the explicit findings required under Masterson. The trial court’s order is not valid under the Act as interpreted in Masterson. I would reverse that order and remand for new proceedings consistent with the requirements under the Act as defined by our supreme court.
Accordingly, I respectfully dissent from the majority judgment affirming the trial court’s orders.
The decision in Masterson actually encloses the words “substantially probable” in quotation marks.
In 2006, the legislature amended the Act to define “mental disorder” as “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence.” 725 ILCS 205/4.03 (West 2008).