Opinion
NO. 5-13-0090
01-28-2014
In re DETENTION OF HARRY CAIN (The People of the State of Illinois, Petitioner-Appellee, v. Harry Cain, Respondent-Appellant).
NOTICE
Decision filed 01/28/14. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Christian County.
No. 98-MR-60
Honorable
Bradley T. Paisley,
Judge, presiding.
JUSTICE WEXSTTEN delivered the judgment of the court.
Justices Spomer and Stewart concurred in the judgment.
ORDER
¶ 1 Held: The circuit court did not err in denying the respondent discharge from commitment as equitable relief for conducting a "probable cause" hearing past the 45-day window as stated in section 65(b)(1) of the Sexually Violent Persons Commitment Act (725 ILCS 207/65(b)(1) (West 2012)), nor was its finding that the respondent remained a sexually violent person, thereby warranting a denial of his petition for discharge from commitment, against the manifest weight of the evidence. ¶ 2 The respondent, Harry Cain, appeals the judgment of the circuit court of Christian County denying his petition for discharge from commitment, finding that he remains a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 to 99 (West 2012)). For reasons discussed herein, we affirm the decision of the circuit court.
¶ 3 BACKGROUND
¶ 4 The respondent was adjudicated an SVP pursuant to the Act in 1999 and was committed to the custody of the Illinois Department of Human Services (IDHS) for control, care, and treatment. See 725 ILCS 207/1 to 99 (West 1998). The respondent's commitment was based, in part, on two convictions. The first occurred in 1988, when, at the age of 52, the respondent was charged with aggravated criminal sexual abuse, aggravated criminal sexual assault, and permitting the sexual abuse of a child, the victims being a 4-year-old female and her 8-year-old and 12-year-old brothers. The respondent pled guilty, was convicted, sentenced to a term of incarceration, and later paroled in 1992. ¶ 5 In 1996, at the age of 60, the respondent was again convicted of aggravated criminal sexual abuse of a nine-year-old male. He was sentenced to a five-year term of imprisonment. Though he was referred for sex offender treatment, the record shows that the respondent did not elect to participate. The record also indicates that during this period of time, several other children came forward to report incidents of sexual abuse or attempted sexual abuse by the respondent, but these did not result in criminal charges against him. ¶ 6 After he was committed in 1999, the record shows that the respondent did start sex offender treatment in June 2000 but stopped in January 2001. He later resumed treatment in 2003, but only for a few months and has not sought treatment since that time. He has, however, sought a discharge or conditional release from his commitment on prior occasions. On each occasion, his requested relief has been denied. See In re Detention of Cain, 402 Ill. App. 3d 390 (2010); People v. Cain, 367 Ill. App. 3d 1122 (2006) (unpublished order under Supreme Court Rule 23); People v. Cain, 359 Ill. App. 3d 1223 (2005) (unpublished order under Supreme Court Rule 23); In re Detention of Cain, 341 Ill. App. 3d 480 (2003); In re Detention of Cain, 335 Ill. App. 3d 1218 (2003) (unpublished order under Supreme Court Rule 23); In re Detention of Cain, 311 Ill. App. 3d 1086 (2000) (unpublished order under Supreme Court Rule 23). In 2007, the respondent filed the petition for discharge or conditional release that is the subject of the present appeal. ¶ 7 On June 7, 2010, the State filed a motion seeking a finding of no probable cause based on the respondent's 126-month reexamination report prepared by Dr. Raymond Wood, an IDHS psychologist. On June 17, 2010, the respondent filed his most current petition for discharge. At a March 12, 2012, hearing, the circuit court found probable cause existed that the respondent was no longer an SVP to warrant an evidentiary hearing under the Act. The evidentiary hearing, without a jury, was conducted on June 12, 2012. The State presented testimony and a written report from its retained psychiatrist, Dr. Angeline Stanislaus, as well as testimony and a written report from Dr. Joseph Proctor, who is employed by the IDHS as a clinical psychologist. The respondent presented testimony and a written report from his retained expert witness, Dr. Kirk Witherspoon, a clinical psychologist. The parties also stipulated to the admission of Dr. Wood's written report, though he did not testify at the hearing. ¶ 8 After hearing the evidence and the arguments, the circuit court took the matter under advisement. On August 9, 2012, the circuit court entered judgment, denying the respondent's petition for discharge, finding that the State proved by clear and convincing evidence that the respondent remains an SVP under the Act. The respondent filed a motion for reconsideration, which the circuit court denied on January 29, 2013, after conducting a hearing on the motion. This timely appeal followed. For the reasons discussed herein, we affirm the decision of the circuit court.
¶ 9 ANALYSIS
¶ 10 On appeal, the respondent raises two issues. The first issue is whether the circuit court erred by not conducting the probable cause hearing within the time set forth in section 65(b)(1) of the Act (725 ILCS 207/65(b)(1) (West 2012)). The second issue is whether the circuit court's judgment finding the respondent to remain an SVP under the Act was against the manifest weight of the evidence. ¶ 11 When the State filed its motion for a finding of no probable cause along with the respondent's 126-month reexamination report on June 7, 2010, section 65 of the Act read, in pertinent part, as follows:
"A person may petition the committing court for discharge from custody or supervision without the Secretary's approval. At the time of an examination under subsection (a) of Section 55 of this Act, the Secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the Secretary's objection. *** If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. *** The probable cause hearing under this Section must be held within 45 days of the filing of the reexamination report under Section 55 of this Act." (Emphasis added.) 725 ILCS 207/65(b)(1) (West 2008).¶ 12 The respondent notes that the probable cause hearing was not held until nearly two years after the State's filing of Dr. Wood's reexamination report and was therefore well outside of the 45-day window as set forth in section 65 of the Act. The respondent blames the delay in large part on the State's request for expert witness Dr. Angeline Stanislaus, made over the respondent's objection. Dr. Stanislaus's report was not completed until July 20, 2011, and the respondent further argues that her findings were directed more towards the "evidentiary" hearing on the merits, rather than to disprove the existence of probable cause. As such, the respondent appears to question whether the extension of time allowed for the State to obtain Dr. Stanislaus as an expert witness was truly necessary for the circuit court to timely conduct a probable cause hearing. Acknowledging that the Act does not explicitly set forth a remedy for failure to timely conduct a probable cause hearing, he believes the only equitable relief would be to discharge him from custody. ¶ 13 In response, the State advances several arguments. The State argues that the respondent forfeited the issue on appeal by failing to assert it before the circuit court and also that the respondent has also forfeited a plain error review of this issue by failing to advance a plain error analysis in his brief. The State further argues that the respondent either contributed to or acquiesced in the delays to the probable cause hearing and, therefore, he is not entitled to relief. Lastly, the State argues that to allow a discharge for failing to conduct a probable cause hearing within the 45-day window would contravene the legislative intent behind the Act. ¶ 14 As the State point outs, "issues not raised in the trial court are deemed waived and may not be raised for the first time on appeal." Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996). Examining the record, we agree with the State that the respondent has failed to raise the issue prior to this appeal, and therefore, we deem it waived. ¶ 15 In addition, the State asserts that the doctrine of invited error estops the respondent from seeking equitable relief for the circuit court's failure to conduct the probable cause hearing within the 45-day window. The doctrine of invited error prohibits a defendant from requesting to proceed in one manner and then later contending on appeal the course of action was in error. People v. Carter, 208 Ill. 2d 309, 319 (2003). "Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented." In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). Namely, the State notes that the respondent first agreed to continue the original probable cause hearing, set for July 8, 2010, to August 12, 2010. He then moved to continue the August 12, 2010, hearing another two weeks. We believe that the respondent's actions were enough to trigger the doctrine of invited error, as the State argues, so that he is now estopped from seeking discharge for the circuit court's failure to timely conduct the probable cause hearing within the 45-day window as set forth in section 65 of the Act (725 ILCS 207/65(b)(1) (West 2008)). ¶ 16 Even had the respondent raised the issue of the delay of his probable cause hearing before the circuit court, the State next argues that he either partly caused or acquiesced in the various instances which warranted further extensions of time. The respondent filed his petition for discharge on June 17, 2010. Though he requested the probable cause hearing to be set for July 8, 2010, the hearing was rescheduled for August 12, 2010, by agreement of the parties. On August 11, 2010, a joint motion to continue was filed by the State and the respondent, which the circuit court granted, resetting the probable cause hearing for August 24, 2010. On August 23, 2010, the State, as the respondent noted, filed a motion to appoint Dr. Stanislaus to evaluate the respondent. The State argued that it could no longer accept the opinion of Dr. Wood, whose reexamination now supported the respondent's petition for discharge. The probable cause hearing was thus continued, and on October 22, 2010, the circuit court granted the State's motion over the respondent's objection. ¶ 17 Dr. Stanislaus completed her report on July 20, 2011, largely in part, the State claims, due to the fact that she had been awaiting receipt of the respondent's police reports and IDHS records to complete her evaluation of the respondent. Further, on October 21, 2011, the circuit court appointed Dr. Witherspoon, the respondent's expert witness, to evaluate the respondent. He completed his report on December 22, 2011. ¶ 18 We also find a plain error analysis unnecessary at this point, as the respondent has failed to argue it in his opening appellate brief, as the State points out. As stated in Illinois Supreme Court Rule 341(h)(7), points not argued in the opening brief on appeal shall be waived. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013); see also Sakellariadis v. Campbell, 391 Ill. App. 3d 795, 804 (2009) ("The failure to assert a well-reasoned argument supported by legal authority is a violation of Supreme Court Rule 341(h)(7) [citation], resulting in waiver."). ¶ 19 Lastly, the State argues that notwithstanding forfeiture, allowing the respondent to be discharged as an equitable remedy for failing to timely conduct the probable cause hearing contravenes legislative intent. Specifically, the Act does not provide a remedy for any failure on the circuit court's part to conduct the probable cause hearing within the 45-day window. Because this is a matter of statutory interpretation, we review it on appeal de novo. People v. Caballero, 228 Ill. 2d 79, 82 (2008). First and foremost, we strive to follow the legislative intent, which is best done by examining the language of the statute itself, applying a plain and ordinary meaning. Krautsack v. Anderson, 223 Ill. 2d 541, 552-53 (2006). This plain language interpretation must not be done in isolation. Id. at 553. Instead, effect must be given to the entire statutory scheme so that the statutory section being interpreted must be done so in context with other relevant parts of the Act. Id. Therefore, in addition to the plain language of the statute, to ascertain legislative intent, we must also consider "the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved." In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002). ¶ 20 The legislative intent behind the Act is " 'to keep our communities safe from predatory sex offenders who pose an ongoing threat to our citizens.' " In re Detention of Powell, 217 Ill. 2d 123, 138 (2005) (quoting In re Detention of Lieberman, 201 Ill. 2d 300, 319 (2002)). As the State asserts in its briefing, the case of In re Detention of Trulock, 2012 IL App (3d) 110550, is instructive to this case. In In re Detention of Trulock, the Third District examined the issue of whether the circuit court erred in denying the respondent's motion to dismiss the State's SVP petition for the State's failure to conduct a probable cause hearing within the time period required under section 30(b) of the Act. Id. ¶ 35 (citing 725 ILCS 207/30(b) (West 2008)). As section 30(b), much like section 65(b), does not specify a remedy for failure to conduct a timely probable cause hearing, the In re Detention of Trulock court looked at the legislative intent behind the Act as well as the Wisconsin case of In re Commitment of Beyer, 2001 WI App 167. Id. ¶ 39 (noting that the Wisconsin SVP Act is very similar to the Illinois SVP Act and that courts have previously looked to the decisions of the Wisconsin courts for guidance in construing the Illinois SVP Act). In re Detention of Trulock found that to allow a dismissal of the SVP petition for the circuit court's failure to hold a probable cause hearing within the time frame set forth in the statute "would be to read a condition into the Act that the legislature did not expressly set forth and would allow for the release of possible SVPs in a manner that could not reasonably have been intended by the legislature." Id. ¶ 40 (observing that the delays were either attributable to, or acquiesced in by, the respondent). Moreover, it could allow the time frame to act as a loophole to avoid commitment. Id. ¶ 39. We agree with the rationale in In re Detention of Trulock that such delay in the probable cause hearing does not warrant the respondent's discharge, as to do so would contravene the legislative intent and frustrate the purpose of the Act. ¶ 21 The second issue raised by the respondent on appeal is whether the circuit court erred in finding that he remains an SVP under the Act. A denial of the respondent's petition for discharge must be affirmed unless the circuit court's decision is found to be against the manifest weight of the evidence. In re Commitment of Sandry, 367 Ill. App. 3d 949, 978 (2006). Thus, the circuit court's decision is only against the manifest weight of the evidence if an opposite conclusion is clearly apparent or where the findings appear to be unreasonable, arbitrary, or not based upon the evidence. In re Detention of Trulock, 2012 IL App (3d) 110550, ¶ 43. ¶ 22 The State must prove by clear and convincing evidence at the evidentiary hearing that the respondent remains an SVP in order to support a denial of the respondent's petition to discharge. 725 ILCS 207/65(b)(2) (West 2012). A person is deemed "sexually violent" under the Act if he "has been convicted of a sexually violent offense *** and who is dangerous because he *** suffers from a mental disorder that makes it substantially probable that [he] will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 2012). ¶ 23 First, there is no dispute that the respondent has been convicted of two sexually violent offenses. The evidence presented before the circuit court consisted of testimony and a written report from the State's retained psychiatrist, Dr. Angeline Stanislaus, as well as testimony and a written report from psychologist Dr. Joseph Proctor. The respondent presented testimony and a written report from his retained expert witness, Dr. Kirk Witherspoon, a clinical psychologist. The parties also stipulated to the admission of Dr. Wood's written report, though he did not testify at the hearing. Lastly, the respondent testified. ¶ 24 Dr. Stanislaus conducted an interview with the respondent as well as reviewed all of his pertinent records, which are comprised of his two prior convictions for sex offenses as well as other uncharged allegations of molestation, previous psychological evaluations, treatment and progress reports, and records from the Illinois Department of Corrections (IDOC). In addition to her evaluation of the respondent, the circuit court noted that Dr. Stanislaus has performed over 125 evaluations, several of which she has found in favor of releasing the examined offender. Her diagnosis of the respondent was that he had pedophilia with an attraction to both males and females as well as a personality disorder, not otherwise specified, with antisocial traits. Dr. Stanislaus testified that the respondent tended to "minimize[ ] his behavior." For example, he blamed a four-year-old girl for the first incident of molestation, claiming she came on to him. He also refused to undergo sex offender treatment while in the custody of the IDOC. While the respondent did start treatment after he was committed to IDHS, he only did so for a short while and has had not participated in therapy since 2003. Dr. Stanislaus also found that the respondent displayed a deviant sexual interest in children and found no evidence of any change in the respondent's beliefs since his detention. Dr. Stanislaus emphasized these numerous dynamic risk factors because they are not necessarily taken into account by certain actuarial instruments used to assess recidivism risk. ¶ 25 Dr. Stanislaus testified to a reasonable degree of professional certainty that it was substantially probable that the respondent would commit future sexual offenses, remained an SVP, and therefore should not be discharged from IDHS custody. She administered the Static 99 test to the respondent and he scored in the moderate to high risk category to reoffend. She chose to administer the Static 99 rather than the Static 99R test, which are identical in all but one aspect: the Static 99R accounts for the age of the offender and offers a three-point score reduction for offenders age 60 and older. Thus, testing under the Static 99R would place the respondent's score in the "low" category because he is over the age of 60. However, Dr. Stanislaus explained during her testimony that she believed the Static 99R did not accurately predict the respondent's risk of reoffending because he is a statistical outlier, meaning that although an offender's statistical likelihood to reoffend decreases after the age of 40, the respondent continued to molest children when he was 50 and 60 years of age. Dr. Stanislaus further explained that most research addressing the recidivism risk and age of sex offenders focuses on the field of sex offenders as a whole and does not particularly focus on the smaller subcategory of pedophiles, thereby yielding flawed results for this particular case regarding the premise that the older an offender becomes, the less likely he is to reoffend. In other words, because the respondent committed his offenses past the statistical norm for reoffending, Dr. Stanislaus found him to be outside of the statistical curve, rendering much of the actuarial tests to be of little practical use in this instance. ¶ 26 Dr. Proctor also testified that his opinion to a reasonable degree of psychological certainty was that it is substantially probable that the respondent would reoffend and that he had not made sufficient progress to be conditionally released or otherwise discharged from custody, finding he remains an SVP under the Act. ¶ 27 Dr. Proctor met with the respondent, though he was unable to interview him as the respondent elected not to participate. Therefore, the findings of his report are based on a review of the respondent's pertinent records, including Dr. Wood's reexamination report of the respondent. Dr. Proctor also diagnosed the respondent with pedophilia, sexually attracted to both males and females, and personality disorder not otherwise specified with antisocial traits. Dr. Proctor agreed with Dr. Stanislaus that the respondent's advanced age of 75 did not serve as a protective factor that would lower his recidivism risk because the respondent had committed the predicate offenses during his fifties, an age during which his risk of offending should have been low. Dr. Proctor also noted that the respondent lacked empathy for his victims, displayed low motivation for seeking treatment, and tended to blame his victims rather than accept responsibility for his actions, all of which were dynamic risk factors in assessing the respondent's likelihood to reoffend. Additionally, Dr. Proctor employed the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) instrument which disclosed that the respondent was a high risk to reoffend. Dr. Proctor further testified that he did not agree with the conclusion that after an offender who has been diagnosed with pedophilia reaches age 70 that the risk for recidivism is zero because he has found no trusted psychological research to back up such a conclusion. ¶ 28 Dr. Wood conducted a reexamination of the respondent and prepared a report, dated April 26, 2010. Dr. Wood also diagnosed the respondent with pedophilia with an attraction to both males and females as well as a personality disorder, not otherwise specified, with antisocial traits. However, Dr. Wood concluded that because of the respondent's advanced age, his current risk to reoffend does not meet or exceed the statutory threshold, although such does not mean there is absolutely no risk whatsoever. Dr. Wood also found that the respondent lacked empathy for his victims, did not seek treatment, and tended to blame his victims for his actions. Yet, Dr. Wood's report concluded that to a reasonable degree of professional certainty, the respondent no longer remained an SVP under the Act, essentially due to his advanced age, and should be discharged from custody. ¶ 29 The respondent's own expert witness, Dr. Witherspoon, interviewed the respondent as well as reviewed his pertinent records, prior to preparing his own evaluative report. Dr. Witherspoon did not conduct any actuarial testing on the respondent, claiming that the respondent did not exhibit any symptoms of paraphilia during a previous evaluation, nor did he accept the results of any of the actuarial tests used by the other experts, stating that they were too out of date, not generally accepted, and overpredicted the risk of recidivism for older offenders. Dr. Witherspoon did not diagnose the respondent with pedophilia because he found a lack of mens rea with the respondent's first offense and because the respondent denied having committed the second offense. Further, he found that because the respondent's risk to reoffend was too trivial, seeking further sexual offender treatment was unnecessary. ¶ 30 In sum, Dr. Witherspoon concluded that the risk to reoffend once a person was over 70 years of age was extremely low. Dr. Witherspoon tentatively applied tests such as the Static 2002-R and the Multi Sample Age Stratified Tables of Sexual Recidivism. The respondent scored low-moderate on each of these tests. Dr. Witherspoon also relied upon a graph titled "Sexual Deviance Over the Lifespan," which depicts data indicating that a child molester's risk of reoffending becomes "virtually zero" by the age of 70. As such, he testified to a reasonable degree of professional certainty that the respondent no longer remained an SVP under the Act and should be discharged from custody. ¶ 31 During the respondent's own testimony during the hearing, he denied making statements to the police, found in the police reports regarding his second offense, that he had sexual urges towards children that were hard to control. He also denied committing his second offense, claiming the child's mother made up the claims after he refused to give her money for her to buy drugs. The respondent also testified that he stopped going to sex offender treatment because a therapist told him to create more victims, which he refused to do, and he experienced stressful conditions during therapy, which he claimed caused cardiac symptoms. ¶ 32 After considering the testimony and evidence presented at the hearing, the circuit court found the respondent to be "a pedophile who has never undergone any meaningful treatment." The circuit court further found that Dr. Wood's opinion that the respondent was no longer an SVP due to his advanced age was not credible because just a year earlier, Dr. Wood had previously found that the respondent's age did not support cause for his discharge. Dr. Wood had opined that there was a steep drop in the risk to reoffend after the age of 60 and this supported his most recent opinion that the respondent held no substantial risk of reoffending. However, the circuit court found it troubling that just a year earlier, when the respondent was still well past the age of 60, Dr. Wood found that there was a substantial risk that the respondent would reoffend. Further, the year in between his two opinions did not reveal that the respondent had sought any meaningful treatment or had changed his actions or behaviors in any way to support Dr. Wood's change of opinion. The only change had been that the respondent had turned a year older. Therefore, the circuit court gave little weight to Dr. Wood's opinion. ¶ 33 Similarly, the circuit court also found the respondent's expert, Dr. Witherspoon, not credible. It found that Dr. Witherspoon's opinion that the respondent could not be diagnosed with pedophilia because "there was a lack of intentionality with his first crime or a temporary lapse of judgment, and [because the respondent] denied the second offense," to be unsupported by the record and based solely on the respondent's self-serving statements made to Dr. Witherspoon during their interview. Further, the circuit court noted that during his cross-examination, Dr. Witherspoon admitted that the respondent only had a statistical 5% risk to reoffend when he was convicted of his second offense at approximately age 60, which thereby showed the limited use of the actuarial instruments that based so much of the risk reduction solely on an offender's advanced age. Thus, the circuit court also gave little to no weight regarding Dr. Witherspoon's opinion that there was minimal risk that the respondent would reoffend due to his age. ¶ 34 The circuit court found the opinions of Drs. Stanislaus and Proctor to be credible and agreed that the evidence supported their opinions that the respondent is a statistical outlier. As such, the circuit court also agreed that the actuarial instruments used to assess the respondent's risk of recidivism were not entirely accurate as they reduce the risk after an offender reaches the age of 60, whereas the respondent committed his second offense at the age of 60. The circuit court also agreed with Dr. Stanislaus's findings that the respondent has exhibited no change in behavior or mindset or sought treatment that would indicate any progress and lower his risk of recidivism. Instead, the circuit court agreed that there were numerous dynamic risk factors present, not taken into account by the actuarial instruments, to support the conclusion that the respondent remained an SVP under the Act and should not be discharged from custody. Accordingly, the circuit court found that the State had met its burden of proving by clear and convincing evidence that the respondent remained an SVP under the Act and that he should not be discharged from his commitment with the IDHS. ¶ 35 Reviewing the circuit court's ruling, we do not find that it acted against the manifest weight of the evidence. Though there were two expert witnesses who opined that the respondent was no longer an SVP under the Act and two expert witnesses who opined that the respondent remained an SVP under the Act, the circuit court properly discredited the opinions in favor of discharging the respondent from custody. In other words, we do not find from our review of the record that the evidence clearly supports the opposite conclusion that the respondent is no longer an SVP under the Act. Conversely, we find that the circuit court's ruling that the evidence shows that the respondent remains an SVP under the Act does not appear to be unreasonable, arbitrary, or not based upon the evidence. As such, we affirm the decision of the circuit court denying the respondent's petition for discharge from commitment.
Section 65(b)(1) was thereafter amended and currently provides that a probable cause hearing "must be held as soon as practical after the filing of the reexamination report." (Emphasis added.) 725 ILCS 207/65(b)(1) (West 2012).
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, the judgment of the circuit court of Christian County is affirmed. ¶ 38 Affirmed.