People v. Richardson

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARVEY L…

Court: APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

Date published: Feb 4, 2014

2014 Ill. App. 5th 130311 (Ill. App. Ct. 2014)

Opinion

NO. 5-13-0311

02-04-2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARVEY L. RICHARDSON, Defendant-Appellant.

SPOMER

NOTICE

Decision filed 02/04/14. 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

Johnson County.

Nos. 05-CF-50 & 05-CM-86

Honorable

James R. Williamson,

Judge, presiding.

JUSTICE SPOMER delivered the judgment of the court.

Presiding Justice Welch and Justice Cates concurred in the judgment.

ORDER

¶ 1 Held: The State established by clear and convincing evidence that the defendant was still a sexually dangerous person, and nothing in the record on appeal supports a contrary argument or otherwise raises an issue of arguable merit. ¶ 2 Pursuant to the terms of the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 to 12 (West 2012)), a jury in 2007 found that the defendant, Harvey L. Richardson, was a sexually dangerous person. In May 2013, another jury found that Richardson was still a sexually dangerous person, and the circuit court entered judgment on the jury's verdict. Richardson now appeals from that judgment. Richardson's appointed attorney on appeal has filed in this court a motion for leave to withdraw as counsel, on the ground that this appeal lacks merit. See Anders v. California, 386 U.S. 738 (1967); People v. Beksel, 10 Ill. App. 3d 406, 408 (1973), abrogated on other grounds by People v. Trainor, 196 Ill. 2d 318, 335 (2001). This court gave Richardson an opportunity to file pro se briefs, memoranda, or other documents showing cause why the appeal should not be dismissed or the judgment affirmed for a lack of substantial merit and why appointed counsel should not be allowed to withdraw as counsel. Richardson has not filed any brief, etc., with this court. A careful examination of the entire record reveals that this appeal does not present any issue of arguable merit and that no error prejudicial to Richardson occurred in the circuit court. Accordingly, appointed counsel's motion to withdraw is granted, and the judgment of the circuit court is affirmed.

¶ 3 BACKGROUND

¶ 4 Richardson is Found Sexually Dangerous

¶ 5 In August 2005, Richardson was charged with child pornography (and two nonsexual felony offenses) in Johnson County case number 05-CF-50 and with sexual exploitation of a child in Johnson County case number 05-CM-86. In October 2005, the State filed a petition to have Richardson declared a sexually dangerous person. See 725 ILCS 205/3 (West 2004). Pursuant to orders entered by the circuit court, two qualified psychiatrists examined Richardson and subsequently submitted to the court written reports wherein they diagnosed Richardson with pedophilia and opined that he was sexually dangerous. See 725 ILCS 205/4 (West 2004). Richardson invoked his right to a jury trial on the State's petition. See 725 ILCS 205/5 (West 2004). In May-June 2007, a jury heard evidence and the parties' arguments, and found that the State had met its burden of proving beyond a reasonable doubt that Richardson was a sexually dangerous person. See 725 ILCS 205/3.01 (West 2004). In accordance with the jury's verdict, the circuit court appointed the Director of Corrections as Richardson's guardian and committed Richardson to the Director's custody for care and treatment. See 725 ILCS 205/8 (West 2004). ¶ 6 Richardson appealed from the judgment. He argued to this court that the State failed to prove beyond a reasonable doubt that he was a sexually dangerous person. This court rejected his arguments and affirmed the judgment of the circuit court. People v. Richardson, No. 5-07-0326 (Jan. 13, 2009) (unpublished order pursuant to Supreme Court Rule 23). In that decision, this court summarized the evidence adduced at the May-June 2007 jury trial on the State's petition. That summary will not be repeated here.

¶ 7 Richardson's First Application for Discharge

¶ 8 In August 2009, Richardson filed in the circuit court his first application for discharge on the ground that he was no longer a sexually dangerous person. See 725 ILCS 205/9(a) (West 2008). The court appointed counsel to represent Richardson. In November 2010, a hearing on Richardson's application was held before a jury. The jury found that the State had proved by clear and convincing evidence that Richardson was still a sexually dangerous person. See 725 ILCS 205/9(b) (West 2008). The circuit court entered judgment on the jury's verdict and remanded Richardson to the Director of Corrections for continued care and treatment. ¶ 9 Richardson appealed from the judgment. Counsel was appointed to represent Richardson on appeal. In this court, appointed counsel filed a motion for leave to withdraw as counsel on appeal, on the ground that the appeal lacked merit. This court agreed that the appeal lacked merit, granted appointed counsel's motion to withdraw, and affirmed the judgment of the circuit court. People v. Richardson, 2011 IL App (5th) 100572-U. In that decision, this court summarized the evidence adduced at the November 2010 hearing on Richardson's first application for discharge. That summary will not be repeated here.

¶ 10 Richardson's Second Application for Discharge

¶ 11 On November 28, 2011, Richardson filed a second application for discharge on the ground that he was no longer sexually dangerous. The circuit court appointed counsel for Richardson. A sociopsychiatric report concerning Richardson was prepared and sent to the court. See 725 ILCS 205/9(a) (West 2010). The report was signed by Dr. Jagannathan Srinivasaraghavan, a psychiatrist; Dr. Kristopher Clounch, a psychologist; and Mr. Dale Spitler, a social worker. These three constituted a team of mental-health professionals that evaluated Richardson. All three testified at the May 2013 hearing, held before a jury, on Richardson's second application for discharge. ¶ 12 Spitler testified that he is a licensed clinical social worker employed by Wexford Health Sources (Wexford). Pursuant to a contract between Wexford and the Department of Corrections, Wexford personnel evaluated sexually dangerous persons committed to the Department of Corrections. Prior to his employment with Wexford, Spitler worked for seven years at Community Mental Health, where he directed the sex offender treatment program, evaluated sex offenders, and personally treated approximately 200 of them. Spitler, along with Srinivasaraghavan and Clounch, reviewed various documents including police reports, the psychiatric reports that were prepared in connection with Richardson's initial commitment as a sexually dangerous person and in connection with Richardson's first application for discharge, and the record of Richardson's treatment in the sexually dangerous persons program operated by the Department of Corrections. The three-person team also interviewed Richardson for two hours in July 2012 at Big Muddy Correctional Center, where Richardson was housed. During that interview, Richardson persisted in refusing to take responsibility for his actions. Records showed that Richardson attended group therapy sessions, but his participation was minimal. Spitler opined that Richardson, despite years in the treatment program for sexually dangerous persons, had not done anything to reduce his risk of reoffending. ¶ 13 Clounch, the psychologist, who also was employed by Wexford, testified that he earned a Ph. D. in clinical psychology in 2008. As part of a research project for his dissertation, he assessed 535 sex offenders. During a three-year period with the Missouri sex offender treatment program, Clounch performed approximately 1,600 incoming evaluations and assessments. Clounch participated in the interview of Richardson in July 2012. During that interview, Richardson declined to answer some questions regarding his past sex offenses and victims, and even denied that he was a sex offender or that he had victimized anyone. Based upon Richardson's criminal history, as well as several "dynamic" risk factors such as "sexual preoccupation" and "sexual attraction or preference for children," Clounch concluded that Richardson had not recovered, and that he had "a high risk of re-offending." ¶ 14 Srinivasaraghavan testified that he was a professor of medical psychiatry at Southern Illinois University School of Medicine and worked occasionally, on a contractual basis, with Wexford. Srinivasaraghavan was one of the two psychiatrists who in 2007 evaluated Richardson and opined that he was a sexually dangerous person. Based upon his interview with Richardson in July 2012, as well as his discussions with Richardson's treatment providers and his review of Richardson's medical records, Srinivasaraghavan diagnosed Richardson with mental disorders that included pedophilia and exhibitionism. He opined that Richardson had been afflicted by those two disorders for many years. ¶ 15 In addition to the three mental-health professionals, James F. Miller, the chief of the Vienna police department, testified at the May 2013 hearing. Miller essentially reprised the testimony he gave at the 2007 trial on the State's petition to have Richardson declared a sexually dangerous person. He described searching Richardson's Vienna residence in August 2005 and discovering, among other items, large numbers of photographs and videos depicting young or very young children, many of them nude or seminude. ¶ 16 Richardson did not testify or present other evidence. The court instructed the jury that the State had the burden of proving "beyond a reasonable doubt" several propositions, including the proposition that it was "substantially probable" that Richardson would engage in the commission of sex offenses in the future if he were not confined. The jury returned a verdict finding that Richardson was still a sexually dangerous person. The circuit court entered judgment on the verdict and remanded Richardson to the Director of Corrections. From that judgment, Richardson now appeals.

¶ 17 ANALYSIS

¶ 18 In a memorandum attached to his motion to withdraw as counsel on appeal, appointed counsel identified one (and only one) potential issue-that the jury's verdict was against the manifest weight of the evidence. The transcript of the May 2013 trial on Richardson's application for discharge reveals that the jury's verdict was thoroughly supported by the evidence. ¶ 19 Section 9(b) of the Act specifies that at a hearing on a petition for discharge, "[t]he State has the burden of proving by clear and convincing evidence that the applicant is still a sexually dangerous person." 725 ILCS 205/9(b) (West 2012). On appeal, when a defendant challenges the sufficiency of the evidence, the reviewing court must consider all the evidence introduced at trial in the light most favorable to the State and then determine whether any rational trier of fact could have found that the respondent was still a sexually dangerous person. People v. Trainor, 337 Ill. App. 3d 788, 793 (2003). ¶ 20 Section 1.01 of the Act defines "sexually dangerous persons" as follows:

"All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the
petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons." 725 ILCS 205/1.01 (West 2012).

Implicit in section 1.01 of the Act is a requirement that any finding of sexual dangerousness must 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." People v. Masterson, 207 Ill. 2d 305, 330 (2003). " 'Mental disorder' means 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 2012). ¶ 21 In this case, essentially all of the trial evidence indicated that Richardson remained sexually dangerous. Srinivasaraghavan, the psychiatrist, testified that Richardson continued to suffer from longstanding pedophilia. Clounch, the psychologist, testified that Richardson was sexually preoccupied, had a sexual attraction or preference for children, had not recovered, and had "a high risk of re-offending." Spitler, the social worker, testified that Richardson, despite years in treatment, had not done anything to reduce his risk of reoffending. Essentially no evidence indicated that Richardson had ceased being sexually dangerous. ¶ 22 Given the overwhelming evidence that Richardson remained sexually dangerous, the jury's finding of continued sexual dangerousness is extremely well supported. Any argument to the contrary would have no merit. ¶ 23 As previously mentioned, the court instructed the jury at the May 2013 hearing that the State had the burden of proving "beyond a reasonable doubt" that Richardson remained sexually dangerous. This instruction was erroneous. As previously mentioned, the State had the burden of proving continued sexual dangerousness only by "clear and convincing evidence." 725 ILCS 205/9(b) (West 2012). In short, the jury was instructed to demand a higher standard of proof than the statute required. Such an error could not have prejudiced Richardson. Therefore, the error was plainly harmless to Richardson and could not possibly serve as the basis for a meritorious argument by him. ¶ 24 This court's thorough examination of the entire record makes clear that this appeal does not present any issue of arguable merit. Therefore, the motion of appointed counsel to withdraw as counsel is granted, and the judgment of the circuit court of Johnson County is affirmed. ¶ 25 Motion granted; judgment affirmed.