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                                         Appellate Court                     Date: 2017.10.19
                                                                             16:15:07 -05'00'




                      In re Commitment of Vance, 2017 IL App (3d) 160683



Appellate Court           In re COMMITMENT OF JAMES VANCE (The People of the State
Caption                   of Illinois, Petitioner-Appellee, v. James Vance, Respondent-
                          Appellant).



District & No.            Third District
                          Docket No. 3-16-0683



Rule 23 order filed       July 3, 2017
Motion to publish
allowed                   August 8, 2017
Opinion filed             August 8, 2017



Decision Under            Appeal from the Circuit Court of Tazewell County, No. 05-MR-91;
Review                    the Hon. Paul P. Gilfillan, Judge, presiding.



Judgment                  Affirmed.


Counsel on                Samuel L. Snyder, of Peoria, for appellant.
Appeal
                          Lisa Madigan, Attorney General, of Chicago (Michael M. Glick and
                          Brian McLeish, Assistant Attorneys General, of counsel), for the
                          People.
     Panel                    JUSTICE LYTTON delivered the judgment of the court, with opinion.
                              Presiding Justice Holdridge and Justice Wright concurred in the
                              judgment and opinion.


                                               OPINION

¶1         Respondent, James Vance, appeals from the trial court’s order, finding that probable cause
       did not exist to warrant an evidentiary hearing to determine if respondent was no longer a
       sexually violent person. On appeal, respondent argues that the court erred in granting the
       State’s motion for a finding of no probable cause. We affirm.

¶2                                                FACTS
¶3          In September 2009, respondent was adjudicated a sexually violent person under the
       Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2008)) and
       committed to the Department of Human Services (DHS). After a December 2009 dispositional
       hearing, the court ordered respondent placed in a secure facility for institutional care and
       custody.
¶4          On May 4, 2016, Dr. Richard Travis conducted a 77-month reevaluation as required by the
       Act. Following his evaluation, the State filed a motion for a finding of no probable cause to
       believe that respondent was no longer a sexually violent person under section 65 of the Act
       (725 ILCS 207/65(b) (West 2016)) and attached Dr. Travis’s reevaluation report in support of
       its claim.
¶5          In his report, Dr. Travis concluded that respondent should continue to be found a sexually
       violent person and remain in DHS custody. He based his evaluation on numerous sources,
       including his review of respondent’s criminal history, an interview with respondent, and DHS
       treatment progress reports.
¶6          Travis noted that respondent’s underlying sexual offense occurred from January to June of
       1993. During those six months, defendant sexually assaulted his five-year-old stepdaughter by
       penetrating her mouth, vagina, and anus with his penis on several occasions. Respondent also
       revealed to investigators that three years before he assaulted his stepdaughter he sexually
       assaulted an eleven-year-old girl. He was charged with four counts of aggravated criminal
       sexual assault and pleaded guilty to one count. The trial court sentenced him to 20 years in
       prison. After his release in 2003, respondent violated his parole twice by leaving home without
       permission and having direct contact with a minor.
¶7          Based on his review of the record and respondent’s interview, Travis concluded that
       respondent met the American Psychiatric Association, Diagnostic and Statistical Manual of
       Mental Disorders, Fifth Edition, DSM-5 (2013) criteria for (1) pedophilic disorder,
       nonexclusive type, sexually attracted to females; (2) other specified personality disorder, with
       antisocial and histrionic features; (3) alcohol use disorder and cannabis use disorder, in
       sustained remission in a controlled environment; and (4) other specific anxiety disorder,
       limited-symptom attacks. Travis opined that respondent continued to pose a substantial risk of
       reoffense and that “his current dynamic risk factors and treatment needs fall within the high
       range.”


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¶8          Travis also used the Static-99R and Static-2002R evaluations. Respondent’s scores on both
       actuarial assessments placed him in the low to moderate risk category. However, respondent
       displayed several additional factors shown to increase risk of reoffense, including (1) sexual
       interest in children, (2) any personality disorder, (3) MMPI Pd Scale elevated, (4) general
       self-regulated problems, (5) poor problem solving skills, (6) employment instability, (7)
       substance abuse, (8) pro-criminal attitudes, (9) childhood behavior problems, (10) attitudes
       tolerant of sexual crimes, and (11) violation of conditional release. In support of the additional
       risk factors, Travis reported that respondent violated the conditions of his mandatory
       supervised release by having contact with and kissing a minor female. He also noted that
       respondent was arrested in 2005 for a parole violation and that a search of his residence
       produced a videotape containing numerous images of naked children. Travis concluded that
       these additional risk factors supported the use of a “high risk/high needs” designation as
       respondent’s risk assessment.
¶9          Travis reported that no protective factors decreased respondent’s risk of reoffense. He
       noted that respondent had not completed sex offender treatment and failed to attend treatment
       to address his sex offense history. Although respondent began participating in sex offense
       specific treatment, he withdrew from the program during the review period. Travis also stated
       that respondent’s age of 49 did not merit reduction in his risk assessment beyond that already
       reflected in his actuarial scores.
¶ 10        After reviewing respondent’s commitment history and DHS treatment reports, Travis
       stated that respondent’s condition has not changed since the most recent reexamination. He
       highlighted respondent’s sporadic participation in sex offense treatment and noted that
       respondent “is not yet fully engaged in sex-offense-specific treatment.” He also noted that
       respondent had previously reported disturbing sexual thoughts about his offending history and
       recently indicated that those troubling thoughts and nightmares continued. Travis concluded
       that respondent had not made sufficient progress in treatment to merit conditional discharge.
¶ 11        Respondent filed a motion seeking the appointment of an independent expert, which the
       trial court granted. On June 17, 2016, respondent then filed his response to the State’s motion
       for a finding of no probable cause. At a subsequent status hearing in September, counsel for
       respondent informed the court that respondent would not be using the report authorized by his
       independent expert, Jane Velez, and would only be using her as a consultant.
¶ 12        At the probable cause hearing, the State argued, based on Travis’s report, that there was no
       probable cause to warrant an evidentiary hearing. Respondent countered that he had attended
       treatment sessions, learned from those sessions, and made sufficient progress for conditional
       release or discharge.
¶ 13        The trial court stated that it had read and considered the reexamination report and
       concluded there was no probable cause for an evidentiary hearing. The court then granted the
       State’s motion.

¶ 14                                        ANALYSIS
¶ 15       Respondent’s sole contention on appeal is that the trial court erred in finding no probable
       cause was shown to warrant an evidentiary hearing to determine whether he is still a sexually
       violent person.



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¶ 16       Following a commitment under the Act, the DHS is responsible for evaluating the
       individual’s mental condition within 6 months of the initial commitment and again thereafter at
       least every 12 months. 725 ILCS 207/55(a) (West 2016). The purpose of these examinations is
       to determine if the committed individual has made sufficient progress to be conditionally
       released or discharged. 725 ILCS 207/55(a) (West 2016).
¶ 17       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 2016). 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 2016). At a
       probable cause hearing, the court only reviews the reexamination reports and hears the parties’
       arguments. 725 ILCS 207/65(b)(1) (West 2016). If the court finds that probable cause does
       exist, it must set an evidentiary hearing on the issue. 725 ILCS 207/65(b)(2) (West 2016).
       Since the trial court only considers the reexamination reports and other documentary evidence,
       our review of the court’s finding of no probable cause is de novo. See In re Commitment of
       Wilcoxen, 2016 IL App (3d) 140359, ¶ 28.
¶ 18       At a probable cause hearing, the trial 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 (quoting In re Detention of
       Hardin, 238 Ill. 2d 33, 48 (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.” 725 ILCS 207/65(b)(2) (West 2016). Thus, a respondent
       is only entitled to an evidentiary hearing if plausible evidence shows that 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; 725 ILCS 207/5(f), 15(b) (West 2016).
       Under the Act, “substantially probable” means “much more likely than not.” In re Commitment
       of Curtner, 2012 IL App (4th) 110820, ¶ 37.
¶ 19       This case advanced to a discharge proceeding after respondent elected not to waive his
       right to petition for discharge. See 725 ILCS 207/65(b)(1) (West 2016). After the filing of the
       State’s motion for a finding of no probable cause, which was accompanied by Travis’s
       reexamination report, the court set the matter for a probable cause hearing. Because respondent
       did not actively petition for a discharge, the probable cause hearing consisted only of a review
       of the reexamination report and arguments on behalf of the parties. See 725 ILCS 207/65(b)(1)
       (West 2016).
¶ 20       At the hearing, respondent had to present sufficient evidence to warrant an evidentiary
       hearing to determine whether he is “no longer a sexually violent person.” 725 ILCS
       207/65(b)(2) (West 2016). To satisfy this standard, respondent was required to present
       evidence that he no longer meets the elements for commitment because he (1) no longer has a
       mental disorder or (2) 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. See Stanbridge,
       2012 IL 112337, ¶ 68.


                                                   -4-
¶ 21        Respondent did not satisfy his burden. The evidence at the probable cause hearing
       consisted only of the report provided by the State’s evaluator, Dr. Travis. Travis’s report
       diagnosed respondent with pedophilic disorder and other specified personality disorder. This
       diagnosis was based on Travis’s review of respondent’s records, which indicated that
       respondent suffered from recurrent intense sexually arousing thoughts about his offending
       history with his five-year-old stepdaughter. Respondent’s records also showed that he violated
       his parole and that a search of his residence revealed a videotape with images of naked
       children. Travis documented that respondent was at a high risk of reoffending. Travis’s report
       also stated that respondent withdrew from DHS treatment and failed to complete sex offense
       specific therapy. This evidence established that respondent continued to suffer from a mental
       disorder and that his mental disorder continued to create a substantial probability that he will
       engage in acts of sexual violence. See 725 ILCS 207/5(f), 15(b) (West 2016). Therefore, the
       trial court did not err in granting the State’s motion for a finding of no probable cause to
       warrant an evidentiary hearing.

¶ 22                                       CONCLUSION
¶ 23      The judgment of the circuit court of Tazewell County is affirmed.

¶ 24      Affirmed.




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