                                         2017 IL App (3d) 160683

                                Opinion filed August 8, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     In re COMMITMENT OF                    )     Appeal from the Circuit Court
     JAMES VANCE                            )     of the 10th Judicial Circuit,
                                            )     Tazewell County, Illinois,
     (The People of the State of Illinois,  )
                                            )
            Petitioner-Appellee,            )     Appeal No. 3-16-0683
                                            )     Circuit No. 05-MR-91
            v.                              )
                                            )
     James Vance,                           )     Honorable
                                            )     Paul P. Gilfillan,
            Respondent-Appellant).          )     Judge, Presiding.
     _____________________________________________________________________________

           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


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     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.”

¶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.


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¶ 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


                                                        5
       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.

¶ 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


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       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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