Opinion
4-21-0002
12-22-2021
In re COMMITMENT OF DONNIE R. BARRETT v. Donnie R. Barrett, Respondent-Appellant). (The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Morgan County No. 07MR51 Honorable Jeffery E. Tobin, Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Presiding Justice Knecht and Justice Holder White concurred in the judgment.
ORDER
JUSTICE TURNER
¶ 1 Held: The circuit court did not err by denying respondent's request for appointment of an expert and finding no probable cause was shown to warrant an evidentiary hearing.
¶ 2 Respondent, Donnie R. Barrett, a person committed under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2020)), appeals the Morgan County circuit court's December 23, 2020, order. On appeal, respondent argues the circuit court erred by (1) not holding a formal hearing on his motion to appoint an expert, (2) denying his motion for appointment of an expert, and (3) finding no probable cause to warrant an evidentiary hearing on whether respondent was still a sexually violent person. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In August 2007, the State filed its petition to have respondent committed as a sexually violent person under the Act. Due to an updated version of the Diagnostic and Statistical Manual (DSM-5), the State filed an amended petition in December 2014. In October 2016, the circuit court held a jury trial on the State's amended petition. The jury found respondent was a sexually violent person. At the dispositional hearing held on the same day as the sexually violent person finding, the circuit court ordered respondent committed to the care and custody of the Department of Human Services (Department) for secure inpatient treatment until he was no longer a sexually violent person. The court found the secure inpatient treatment was the least restrictive means under the circumstances of respondent's case. That same day, the court entered a written order, committing respondent to institutional care in a secure facility. Respondent appealed, and this court affirmed the circuit court's judgment. In re Commitment of Barrett, 2018 IL App (4th) 170204-U. Respondent filed a petition for leave to appeal with the supreme court, which denied his petition. In re Commitment of Barrett, No. 123697 (Ill. Sept. 26, 2018) (supervisory order).
¶ 5 In October 2020, Amy S. Louck Davis, Psy.D., a licensed clinical psychologist, conducted respondent's reevaluation at issue in this appeal. Her report noted respondent was 45 years old and this was his fourth reexamination. In preparing the report, Dr. Louck Davis attempted to interview respondent, but respondent declined to be interviewed. Dr. Louck Davis did review numerous documents regarding respondent in preparing her report. The report set forth respondent's relevant history, including his criminal, sexual, and treatment histories. Dr. Louck Davis also explained the Department had a five-phase treatment program. The five phases, in order, were the following: (1) assessment, (2) accepting responsibility, (3) self-application, (4) incorporation, and (5) transition. Respondent was still in the first phase of the treatment program. The report explained respondent signed his consent for treatment in October 2012 but had never meaningfully participated in treatment until 2019. In November 2018, respondent met with a treatment provider and requested to begin attending treatment groups. In January 2019, respondent began attending treatment groups. He had completed the following groups: (1) tactics, (2) anger management, and (3) good lives exploration. Respondent was currently attending the treatment foundations group. During group therapy, respondent was attentive. He contributed to the discussion at times and provided insightful feedback when he did speak. At other times, respondent was silent but attentive. Occasionally, respondent was late or absent for group therapy. Moreover, the report noted respondent did not have any rule violations during the reexamination period and was maintaining the highest privilege status.
¶ 6 In April 2020, respondent completed the entry to treatment evaluation, which was a psychological battery of assessments. Respondent's intelligence quotient was in the below average range, and his academic abilities ranged from low average to very low. Personality and emotional testing revealed respondent had defensive attitudes. Respondent also experienced 'negative emotional states which result in fears, that may affect his ability to function effectively in social and sexual interactions with other adults.'" Additionally, respondent had a below average level of sexual knowledge, and he was defensive and did not disclose his sexual interest. Regarding response to treatment, respondent answered the assessments in a manner suggesting he did not perceive a need for himself to change.
¶ 7 Regarding mental health disorders, Dr. Louck Davis opined respondent suffered from the following mental disorders based on the DSM-5: (1) pedophilic disorder, sexually attracted to both, nonexclusive type; (2) antisocial personality disorder; and (3) alcohol use disorder, moderate, in a controlled environment. She explained her reasoning for those diagnoses. As to the issue of respondent's dangerousness, she used the Static-99R and the Static-2002R risk assessments. Respondent placed in the" 'Well Above Average Risk' category on both assessments. Respondent's score of 9 on the Static-99R was associated with a 36.6% to 60.5% sexual recidivism risk over five years, and his score of 10 on the Static-2002R was associated with a 30% to 53.4% sexual recidivism risk over five years. Dr. Louck Davis further explained respondent's scores were 99.7% higher than the sex offenders in the sample. Respondent's Static-99R score indicated he was 6.9 times more likely to reoffend than the typical sex offender, and his Static-2002R score indicated he was 7.32 times more likely to reoffend than the typical sex offender. Dr. Louck Davis also noted respondent had the following empirical risk factors for future sexual offending: (1) any deviant sexual interest or sexual interest in children, (2) antisocial personality disorder, (3) grievance or hostility, (4) poor problem-solving, (5) general self-regulation problems, (6) impulsivity or recklessness, (7) history of a nonsexual crime, (8) procriminal attitudes, (9) childhood behavioral problems or criminality, and (10) lack of emotionally intimate relationships with adults. Dr. Louck Davis opined respondent had no protective factors such as age, medical condition, or sex-offender treatment. She further found respondent's mental disorders predisposed him to engage in acts of sexual violence. Dr. Louck Davis opined respondent's condition had not changed since his last examination and respondent remained substantially probable to commit a future act of sexual violence. She also opined respondent had not made sufficient progress in his treatment to be conditionally discharged and should continue to be committed to the Department's treatment and detention facility for secure care and sexual offense specific treatment.
¶ 8 On October 14, 2020, the State filed a motion for a finding of no probable cause based upon Dr. Louck Davis's fourth reexamination report. In its motion, the State noted respondent had not affirmatively waived his right to petition the court for discharge, and thus section 65(b)(1) of the Act (725 ILCS 207/65(b)(1) (West 2020)) required the circuit court to hold a probable-cause hearing.
¶ 9 On November 2, 2020, respondent filed a motion to appoint an expert for purpose of reexamination, noting he was financially unable to obtain his own expert and Dr. Louck Davis operated under a professional conflict of interest in doing the reexamination because she had previously served as respondent's treatment team leader. In a November 18, 2020, docket entry, the circuit court ordered the State to file a response to respondent's motion within 14 days. On November 20, 2020, the judge e-mailed respondent's counsel and stated he would be ruling on respondent's motion based upon the pleadings only, without oral argument after the State filed its response. On December 1, 2020, the State filed a response, noting respondent declined to be interviewed by Dr. Louck Davis and was still in the first phase of sex offender treatment. Moreover, Dr. Louck Davis denied having a conflict of interest in evaluating respondent because she never treated respondent when she was a team leader. On December 4, 2020, the court entered a written order denying respondent's motion for the appointment of an independent examiner. The court found Dr. Louck Davis did not have bias or a conflict of interest because she was not impaired or compromised by her prior relationship with respondent under the ethical code of the American Psychological Association.
¶ 10 On December 14, 2020, the circuit court held the probable-cause hearing. After the attorneys made their arguments on probable cause, the court found no probable cause was shown to believe respondent was no longer a sexually violent person. That same day, the court entered its written order.
¶ 11 Respondent filed a timely motion to reconsider, asserting the circuit court erred by (1) denying the motion to appoint an expert and (2) finding no probable cause. As to the motion, respondent argued the court erred by not holding an evidentiary hearing on the motion at which he could be present and Dr. Louck Davis operated under a professional conflict of interest. Regarding probable cause, respondent argued the evidence contained in the reexamination report was insufficient to support a finding of no probable cause. On December 23, 2020, the court denied defendant's motion to reconsider.
¶ 12 On December 29, 2020, respondent filed a timely notice of appeal in sufficient compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017), and thus this court has jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994). See 725 ILCS 207/20 (West 2020) (noting the proceedings under the Act are civil in nature).
¶ 13 II. ANALYSIS
¶ 14 A. Hearing on Independent Expert
¶ 15 Respondent first asserts the circuit court erred by not holding a formal hearing on his motion to appoint an expert during which respondent could have presented evidence. The State first contends respondent forfeited this issue. We agree with the State.
¶ 16 The moving party bears the burden of calling a motion for a hearing. Terrill v. St. Louis Southwestern Ry. Co., 154 Ill.App.3d 983, 986, 507 N.E.2d 1282, 1284 (1987). In Beverly Trust Co. v. Dekowski, 216 Ill.App.3d 732, 741, 576 N.E.2d 1049, 1055 (1991), the reviewing court found the moving party had forfeited the right to object to a court's failure to hear arguments on the movant's motion for summary judgment where the movant failed to notice up the summary judgment motion before the court held an evidentiary hearing on the complaint and failed to request a hearing on the summary judgment motion at the evidentiary hearing. There, the movant filed a motion for summary judgment a week before the evidentiary hearing. Beverly Trust Co., 216 Ill.App.3d at 734, 576 N.E.2d at 1051. Respondent notes, "[t]he law does not require the doing of a futile act, and the failure to seek a particular remedy will not prejudice a litigant where that remedy would not have been granted." Forest Preserve District of Du Page County v. First National Bank of Franklin Park, 401 Ill.App.3d 966, 996, 930 N.E.2d 477, 503 (2010). In that case, the reviewing court found the defendants were not required to move for a dismissal to preserve an argument the property's value had increased since they had no grounds for a dismissal and it would have been a waste of resources. Forest Preserve, 401 Ill.App.3d at 996, 930 N.E.2d at 503.
¶ 17 Here, respondent had more than two weeks after he filed his motion to notice that motion for a hearing before the circuit court decided to hear the motion on the pleadings. After the court's decision to rule on the motion without oral arguments, respondent then had more than 10 days to object to the court's decision to not hear oral arguments, but respondent did not do so. Instead, respondent's counsel waited until after the court found no probable cause to warrant an evidentiary hearing to raise an objection to respondent's motion for an expert being heard without oral arguments. Respondent's inaction is like the movants in Beverly Trust Co. Respondent had ample time to let the circuit court know he wanted to be present at a hearing on the motion, but he did not do so. His failure to timely indicate a desire for a hearing deprived the court of an opportunity to afford respondent such a hearing. The record does not indicate the circuit court would have automatically denied respondent's request for a hearing, and thus we disagree with respondent this is a situation involving a futile act. Accordingly, we find respondent forfeited his right to object to a hearing without oral arguments by waiting until after the probable cause hearing to object to the circuit court's procedure.
¶ 18 B. Independent Expert
¶ 19 Respondent next argues the circuit court erred by denying his request for the appointment of an independent expert pursuant to section 55(a) of the Act (725 ILCS 207/55(a) (West 2020)) because Dr. Louck Davis, the evaluator, had a conflict of interest. The State first contends respondent has forfeited any conflict of interest claim because he could have raised it in 2017 when Dr. Louck Davis completed her first reexamination of respondent. The State also alleges the circuit court properly exercised its discretion in denying respondent's motion for an independent expert.
¶ 20 Whether to appoint an independent expert under section 55(a) is a matter resting within the circuit court's sound discretion. In re Commitment of Kirst, 2015 IL App (2d) 140532, ¶ 33, 40 N.E.3d 1215; People v. Botruff, 212 Ill.2d 166, 176, 817 N.E.2d 463, 469 (2004). Thus, we review the matter for an abuse of discretion. Botruff, 212 Ill.2d at 176, 817 N.E.2d at 469." 'An abuse of discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.'" In re Detention of Erbe, 344 Ill.App.3d 350, 374, 800 N.E.2d 137, 157 (2003) (quoting People v. Hall, 195 Ill.2d 1, 20, 743 N.E.2d 126, 138 (2000)).
¶ 21 "A respondent may be entitled to funds to hire an expert witness where expert testimony is deemed 'crucial' to a proper defense." Kirst, 2015 IL App (2d) 140532, ¶ 33 (quoting Botruff, 212 Ill.2d at 177, 817 N.E.2d at 469). A respondent establishes the aforementioned standard by showing "the expert services are 'crucial' to 'build a defense' and the defendant's financial ability to obtain his own expert will prejudice his case." Botruff, 212 Ill.2d at 177, 817 N.E.2d at 469. Thus, the issue before this court is whether respondent demonstrated his case would be prejudiced because an independent examination crucial to his defense was not performed.
¶ 22 We decline to address whether respondent has forfeited a conflict of interest claim by not raising it the first time Dr. Louck Davis evaluated him in 2017 because respondent has failed to show a conflict of interest. The record in this case shows respondent chose not to engage in sex-offender specific treatment until January 2019. The documents attached to respondent's motion to appoint an expert show Dr. Louck Davis was respondent's team leader in 2016. Moreover, the attachments only show Dr. Louck Davis dealt with respondent's document requests. Thus, respondent did not provide evidence Dr. Louck Davis provided respondent sex-offender treatment. As such, he did not show Dr. Louck Davis was his treatment provider before becoming his evaluator under the Act.
¶ 23 Even if Dr. Louck Davis was respondent's treatment provider in 2016, respondent fails to demonstrate that fact creates a conflict of interest. In support of his argument, respondent first cites the ethical code for psychiatrists. However, Dr. Louck Davis is a psychologist. Section 1905.50(a)(1) of Title 20 provides licensed evaluators must "conduct sexual abuser-specific assessments in accordance with any additional ethical standards, codes, laws or other expectations for the respective profession or discipline of practice." (Emphasis added.) 20 Ill. Adm. Code 1905.50(a)(1) (2021). Section 3.05(a) of the American Psychological Association's Ethical Principles of Psychologists and Code of Conduct (Conduct Code) requires a psychologist to refrain "from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist's objectivity, competence, or effectiveness in performing his or her functions as a psychologist, or otherwise risks exploitation or harm to the person with whom the professional relationship exists." American Psychological Association, https://apa.org/ethics/code (last visited Nov. 24, 2021). That section of the Conduct Code further notes" [m] ultiple relationships that would not reasonably be expected to cause impairment or risk exploitation or harm are not unethical." American Psychological Association, https://apa.org/ethics/code (last visited Nov. 24, 2021). The Conduct Code defines multiple relationship as follows:
"A multiple relationship occurs when a psychologist is in a professional role with a person and (1) at the same time is in another role with the same person, (2) at the same time is in a relationship with a person closely associated with or related to the person with whom the psychologist has the professional relationship, or (3) promises to enter into another relationship in the future with the person or a person closely associated with or related to the person." American Psychological Association, https://apa.org/ethics/code (last visited Nov. 24, 2021).
The Conduct Code clearly refers to simultaneous roles as it uses the language "at the same time." Here, respondent's evidence shows Dr. Louck Davis was only respondent's evaluator at the time she completed the October 2020 assessment of respondent.
¶ 24 Accordingly, we find the circuit court did not abuse its discretion by denying respondent's request for the appointment of an independent evaluator.
¶ 25 C. Probable Cause
¶ 26 Respondent last argues the circuit court erred by finding no probable cause was shown to warrant an evidentiary hearing to determine whether respondent was still a sexually violent person. The State disagrees, arguing the circuit court's decision was correct.
¶ 27 At the time of each reexamination under the Act, the committed person receives notice of the right to petition the circuit court for discharge. 725 ILCS 207/65(b) (1) (West 2020). If the committed person does not affirmatively waive that right, like respondent in this case, the court must "set a probable cause hearing 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 or she is no longer a sexually violent person." 725 ILCS 207/65(b)(1) (West 2020). At such a probable-cause hearing, the court only reviews the reexamination reports and hears the parties' arguments. 725 ILCS 207/65(b) (1) (West 2020). If the court finds probable cause does exist, then it must set an evidentiary hearing on the issue. 725 ILCS 207/65(b) (2) (West 2020). Since the circuit court only considered Dr. Louck Davis's reexamination report and the facts contained in that report are not in dispute, our review of the court's finding of no probable cause is de novo. See Kirst, 2015 IL App (2d) 140532, ¶ 50.
¶ 28 With all probable-cause hearings under the Act, the circuit court's role is "to determine whether the movant has established a plausible account on each of the required elements to assure the court that there is a substantial basis for the petition." (Emphasis in original and internal quotation marks omitted.) In re Detention of Stanbridge, 2012 IL 112337, ¶ 62, 980 N.E.2d 598 (quoting In re Detention of Hardin, 238 Ill.2d 33, 48, 932 N.E.2d 1016, 1024 (2010)). 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 person.'" (Emphasis omitted.) Stanbridge, 2012 IL 112337, ¶ 67 (quoting 725 ILCS 207/65(b) (2) (West 2008)). Thus, a respondent is only entitled to an evidentiary hearing if plausible evidence shows the respondent (1) no longer suffers from a mental disorder or (2) is no longer dangerous to others because his or her mental disorder no longer creates a substantial probability he or she will engage in acts of sexual violence. Stanbridge, 2012 IL 112337, ¶ 68 (citing 725 ILCS 207/5(f), 15 (West 2008)). Under the Act, "substantially probable" means "much more likely than not." (Internal quotation marks omitted.) In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶ 37, 972 N.E.2d 351; see also In re Detention of Hayes, 321 Ill.App.3d 178, 188, 747 N.E.2d 444, 453 (2001).
¶ 29 In this case, Dr. Louck Davis found respondent suffered from (1) pedophilic disorder, sexually attracted to both, nonexclusive type; (2) antisocial personality disorder; and (3) alcohol use disorder, moderate, in a controlled environment. Both the Static-99R and Static-2002R assessments placed respondent in the highest risk categories for reoffending. Respondent's score of 9 on the Static-99R was associated with a 36.6% to 60.5% sexual recidivism risk over five years, and his score of 10 on the Static-2002R was associated with a 30% to 53.4% sexual recidivism risk over five years. Dr. Louck Davis further explained respondent's scores were 99.7% higher than the sex offenders in the sample. His Static-99R score indicated he was 6.9 times more likely to reoffend than the typical sex offender, and his Static-2002R score indicated he was 7.32 times more likely to reoffend than the typical sex offender. In addition to respondent being in the highest risk categories for reoffending, Dr. Louck Davis's report noted respondent had 10 other empirical risk factors that increased his risk to reoffend. Thus, Dr. Louck Davis considered more than just the percentages in determining respondent was substantially probable to engage in a future act of sexual violence. Respondent contends Dr. Louck Davis did not explain how respondent exhibited the 10 factors or explain how each factor itself affected respondent's risk of reoffending. However, a full review of the report shows the 10 factors are supported by the facts contained in the report. The report also notes the risk factors identified "represent statistically significant correlations with recidivism." Additionally, we note respondent cites no authority for his claim antisocial personality disorder cannot be both a diagnosis and an empirical risk factor when a person has been diagnosed with more than one mental disorder. Moreover, neither respondent's age nor his medical condition decreased his risk. Respondent takes issue with the fact his age is not a protective factor. However, in her report, Dr. Louck Davis explained the actuarial assessments she used take age into consideration and no additional age-based risk reduction was warranted. The aforementioned evidence indicates respondent still suffered from mental disorders and was dangerous to others because his mental disorders created a substantial probability he would engage in acts of sexual violence.
¶ 30 While respondent participated in group treatment therapy during this reevaluation period, he was still in the first phase of the treatment program according to Dr. Louck Davis's explicit statement in her October 2020 report. The October 2020 reevaluation report does show a change in respondent's attitude towards treatment, but it does not demonstrate respondent's conditions and risk had changed during the reexamination period at issue. Even if respondent was actually in phase two, he was early in his treatment in that phase.
¶ 31 Last, in support of his argument, respondent cites the case of In re Commitment of Wilcoxen, 2016 IL App (3d) 140359, ¶ 1, 48 N.E.3d 277, where the reviewing court reversed the circuit court's order finding no probable cause existed to warrant an evidentiary hearing to determine if the respondent was still sexually dangerous. There, while the 61-year-old respondent was still in phase two, he attended five group sessions three days per week and had successfully completed "mindfulness, maintaining healthy interpersonal relationships, thinking errors, decision-making, and confronting his personal history and his history of offending." Wilcoxen, 2016 IL App (3d) 140359, ¶ 39. The facts showed the respondent's commitment to his treatment program, which was a change in his attitude from his initial refusal to engage in treatment. Wilcoxen, 2016 IL App (3d) 140359, ¶ 43. The reviewing court also noted the data provided by the independent examiner showing sexual behaviors are reduced in men over their lifespan and sexual arousal reduces with age, thus making older males less likely to reoffend with age. Wilcoxen, 2016 IL App (3d) 140359, ¶ 45. Last, the State's examiner rated the respondent as moderate to high risk on the Static-99R and low risk on the Static-2002R, and the independent examiner rated the respondent as a moderate risk on the Static-99R. Wilcoxen, 2016 IL App (3d) 140359, ¶ 47. The reviewing court concluded the evidence set forth a plausible account that both the respondent and the professional understanding of pedophilia had changed such that a substantial probability no longer existed that respondent was a sexually violent person and likely to reoffend. Wilcoxen, 2016 IL App (3d) 140359, ¶ 49.
¶ 32 Unlike the respondent in Wilcoxen, respondent was still early in his treatment program. The risk assessments also placed respondent in a much higher risk category than the respondent in Wilcoxen. Additionally, respondent is much younger than the respondent in Wilcoxen. While respondent did have a change in attitude, he had not made the same level of progress in treatment that the respondent in Wilcoxen had made. Thus, we disagree with respondent the facts of his case "somewhat approximate" the facts in Wilcoxen.
¶ 33 Accordingly, we find there was no probable cause to warrant an evidentiary hearing.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we affirm the Morgan County circuit court's judgment.
¶ 36 Affirmed.