                                  Illinois Official Reports

                                          Appellate Court



                             People v. Bethke, 2014 IL App (1st) 122502



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      MICHAEL BETHKE, Defendant-Appellant.


District & No.               First District, Fourth Division
                             Docket No. 1-12-2502


Filed                        February 6, 2014


Held                         On appeal from the denial of defendant’s request for “supervised
(Note: This syllabus         off-grounds pass privileges” after he had been in a mental health
constitutes no part of the   center for over 20 years following a finding in 1991 that he was not
opinion of the court but     guilty of first degree murder by reason of insanity when he killed a
has been prepared by the     coworker, the appellate court remanded the cause to allow the trial
Reporter of Decisions        court to make more specific findings of fact and conclusions of law
for the convenience of       pursuant to the requirements of section 3-816(a) of the Mental Health
the reader.)                 and Developmental Disabilities Code and section 5-2-4 of the Unified
                             Code of Corrections.


Decision Under               Appeal from the Circuit Court of Cook County, No. 91-C-660917-01;
Review                       the Hon. Frank G. Zelezinski, Judge, presiding.


Judgment                     Remanded.


Counsel on                   Mark J. Heyrman, of Edwin F. Mandel Legal Aid Clinic, of Chicago,
Appeal                       for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                             Mary P. Needham, and Joan F. Frazier, Assistant State’s Attorneys, of
                             counsel), for the People.
     Panel                       JUSTICE LAVIN delivered the judgment of the court, with opinion.
                                 Presiding Justice Howse and Justice Epstein concurred in the
                                 judgment and opinion.




                                                    OPINION

¶1         In this rather unusual appeal, we confront the trial court’s denial of a petition filed on
       behalf of defendant Michael Bethke recommending that he be allowed escorted leave of the
       mental health center’s premises, or “supervised off-grounds pass privileges” pursuant to
       sections 5-2-4(b) and (e) of the Unified Code of Corrections (Code) (730 ILCS 5/5-2-4(b), (e)
       (West 2010)). Following an evidentiary hearing on the matter, the trial court denied the
       petition. On appeal, defendant asserts that the trial court’s decision was against the manifest
       weight of the evidence, that the trial court based its decision on an impermissible standard, and
       that the trial court failed to make findings of fact as required by section 3-816(a) of the Mental
       Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3-816(a)
       (West 2010)). We remand.

¶2                                           BACKGROUND
¶3         Defendant, age 49, has lived at the Elgin Mental Health Center in the custody of the Illinois
       Department of Human Services (see 730 ILCS 5/5-2-4 (West 2010); 405 ILCS 5/3-100 et seq.
       (West 2010)) since 1993 after the trial court found him not guilty of first degree murder by
       reason of insanity. For the sake of judicial context, we will briefly relate the rather grisly
       circumstances that led do this conviction. 1 On June 6, 1991, defendant apparently experienced
       irresistible “command hallucinations” urging him to kill his coworker at a White Hen Pantry.
       Unable to control these voices, defendant took a knife from the deli counter and decapitated his
       coworker, then wrote on the coworker’s head in blood, and placed the head, as if on display, in
       the deli case. After wandering in the woods, defendant told a bystander to call the police.
       Doctors at the Elgin Mental Health Center (EMHC) diagnosed defendant with schizoaffective
       disorder, bipolar type with a history of substance abuse. He has been receiving inpatient
       treatment and medication since his admission to EMHC to control symptoms ranging from
       paranoid delusions to auditory hallucinations and mood swings.
¶4         In April 2012, defendant’s EMHC treatment team, consisting of his treating psychiatrist,
       Hasina Javed, along with a psychologist and social worker, filed a report in support of the

             1
              Appellant’s opening brief was notably silent on the factual circumstances underlying his
       conviction, which is curious since these ghoulish facts seemed to constitute the primary basis of the trial
       court’s ruling. The State, on the other hand, supplied this court with the necessary information in the
       first paragraph of its brief.

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     petition to modify defendant’s treatment plan and recommending off-grounds pass privileges.
     They reported that over the course of the last 20 years, defendant made substantial progress in
     his treatment and recovery. He accepted his mental illness and recognized his need to stay
     medicated while participating in psychotherapy. In fact, his team reported that his medication
     compliance was “excellent.” In 2000, defendant graduated from a mental illness and substance
     abuse program and completed online college education classes. According to the report, he
     continued to participate in therapy groups and workshops and complied with the doctors’
     treatment plans. In spite of these positive advancements and even though he was medicated at
     the time, defendant experienced extreme paranoia and auditory hallucinations, with voices
     telling him he was “evil,” following the events of September 11, 2001. The 2005 tsunami in
     Asia possibly precipitated angry behavior and aggression toward another patient, but
     defendant’s medication was adjusted with positive results. The report stated that, “to manage
     his reaction to natural disaster events,” defendant used “careful self monitoring, limited media
     exposure, and distraction.”
¶5        In 2009, at the request of the EMHC treatment team, defendant was granted unsupervised
     on-grounds passes, and he used those for some two years to take unescorted walks on hospital
     grounds without making any attempts to elope.
¶6        In June 2012, forensic clinical services director and forensic psychiatrist, Dr. Mathew
     Markos, examined defendant pursuant to court order. Following review of relevant records and
     consistent with the treatment team report, Dr. Markos recommended that defendant be allowed
     supervised off-grounds pass privileges (to visit such places as the YMCA, the public library, or
     the mall while being escorted by EMHC staff). In support of this recommendation, Dr. Markos
     stated that with medication defendant was in remission of his mental illness, defendant was
     clinically and behaviorally stable and compliant with treatment, and defendant had used his
     on-grounds pass since 2009 without incident.
¶7        An evidentiary hearing on the petition for supervised off-grounds passes ensued, and the
     defense called Dr. Markos, who testified consistent with his court-ordered examination of
     defendant, and the defense also called Dr. Javed at EMHC. Both doctors testified that the
     passes were safe, insofar as defendant was not likely to harm himself or others, and the passes
     would have the beneficial effect of facilitating defendant’s continuing progress in treatment.
     Dr. Markos emphasized that defendant had been mentally stable since 2009 and compliant
     with treatment recommendations, and Dr. Markos emphasized that the passes would enable
     defendant to attend a community drug rehabilitation program, helping with defendant’s
     “reintegration” into society. He added that during the off-grounds ventures, the ratio of staff to
     patients was “approximately three to one” with staff making sure the patients “get their
     medication,” although Dr. Markos did allow on cross-examination that he was unsure of the
     staff members’ training or whether they could recognize if defendant’s mental state were to
     deteriorate. Dr. Markos also stated that if defendant did not receive his medication, he could
     relapse within one to two days or within weeks.
¶8        Dr. Javed testified that defendant was aware that if he did not take his medications, his
     symptoms would return, but she also added that “any major disaster or event,” like September
     11 or the tsunami, could “trigger psychosis” even though defendant was medicated. Regarding
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       the tsunami, Dr. Javed emphasized that defendant was able to report his symptoms of
       psychosis to staff and obtain relief. Dr. Javed testified that during outings defendant would be
       escorted by a security officer or an “activity therapist.” The only escort at the drug
       rehabilitation facility would be a security officer. She testified that before each trip, she would
       assess defendant, and if defendant was not stable or if he declined medication, he would not be
       allowed to leave. Dr. Javed conceded on cross-examination that she would not be able to
       determine if defendant in fact had taken his medication.
¶9         Following evidence and argument, the court denied the petition. The court noted the
       testimony of both doctors, the argument by counsel, and the fact that defendant had been in
       EMHC for an extended period of time based on the court’s previous finding of not guilty by
       reason of insanity. The court also noted that defendant had been granted on-grounds pass
       privileges. The court stated it had “looked at all the other factors here,” then stated:
                    “The Court cannot but not [sic] look at the reasons why Mr. Bethke is in fact at the
               Illinois Department of Human Services under treatment.
                    I have heard the testimony of the [sic] Dr. Markos for that matter, indicating there is
               in fact a risk factor to be considered.
                    Considering all factors here, this Court is not convinced that the defendant will be
               guaranteed–[t]hat he will not be a risk to himself and others if allowed into the general
               public. And, therefore, the request for supervised off ground privileges is denied.”
¶ 10       This timely appeal followed.

¶ 11                                             ANALYSIS
¶ 12      On appeal, defendant contends (1) that the trial court’s denial of the off-grounds passes was
       against the manifest weight of the evidence, (2) that the trial court based its decision on a
       requirement of a guarantee that defendant’s future behavior while on such a pass posed no risk,
       and (3) that the trial court failed to make findings of fact, as required by section 3-816(a) of the
       Mental Health Code (405 ILCS 5/3-816(a) (West 2010)). We conclude that defendant’s third
       contention is dispositive and therefore need not address his remaining contentions.

¶ 13                             Treatment Plan Review and Modification
¶ 14       When an individual has been acquitted of a crime by reason of insanity, his subsequent
       treatment is governed by section 5-2-4 of the Code, which authorizes the acquittee’s
       involuntary commitment in order to treat the individual’s mental illness and also to protect him
       and society from his potential dangerousness. 730 ILCS 5/5-2-4 (West 2010); People v.
       Jurisec, 199 Ill. 2d 108, 115 (2002). The request for off-grounds pass privileges from such a
       defendant is specifically governed by sections 5-2-4(b) and (e) of the Code. 730 ILCS
       5/5-2-4(b), (e) (West 2010). Section 5-2-4(b) relates to inpatient mental health services after a
       person is acquitted by reason of insanity and says, in relevant part, that the facility director
       shall file a treatment plan report, which may include a request for off-grounds pass privileges.
       730 ILCS 5/5-2-4(b) (West 2010).

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¶ 15        In this case, it is clear that while defendant’s previous treatment plan provided for
       on-grounds pass privileges, it did not go so far as to provide off-grounds privileges. When a
       petition for treatment plan review is filed by the defendant or, in this case, a person on the
       defendant’s behalf, including a request for off-grounds pass privileges, a hearing must follow.
       If evidence is presented, the burden of proof remains with the defendant and the “findings of
       the Court shall be established by clear and convincing evidence.” 730 ILCS 5/5-2-4(e), (g)
       (West 2010); see also People v. Cross, 289 Ill. App. 3d 876, 887 (1997) (section 5-2-4(b)
       applies when application for pass privileges constitutes a modification of defendant’s
       treatment plan). Section 5-2-4(b) requires that such privileges be approved by court order,
       “which order may include such conditions on the defendant as the Court may deem appropriate
       and necessary to reasonably assure the defendant’s satisfactory progress in treatment and the
       safety of the defendant and others.” 730 ILCS 5/5-2-4(b) (West 2010).
¶ 16        Defendant, in arguing that “the trial court committed reversible error when it failed to make
       findings of fact,” points to section 3-816(a) of the Mental Health Code (405 ILCS 5/3-816(a)
       (West 2010)), which provides: “Every final order entered by the court under this Act [Mental
       Health Code] shall be in writing and shall be accompanied by a statement on the record of the
       court’s findings of fact and conclusions of law.” The Mental Health Code similarly addresses
       the institutional care and commitment of individuals for mental health reasons. The State
       acknowledges that section 5-2-4(b) provides that the review of treatment plans for defendants
       acquitted by reason of insanity “shall be under the Mental Health and Developmental
       Disabilities Code” (730 ILCS 5/5-2-4(b) (West 2010)) but asserts that section 3-816(a),
       requiring findings of fact by the trial court, conflicts with section 5-2-4 of the Code. But see
       405 ILCS 5/3-814(c) (West 2010) (noting that a not-guilty-by-reason-of-insanity defendant’s
       “treatment plan and its review shall be subject to the provisions of Section 5-2-4”). The State
       argues that in the event of a conflict between the Mental Health Code and the Code, section
       5-2-4(k) provides that the Code controls. See 730 ILCS 5/5-2-4(k) (West 2010).
¶ 17        We fail to see any such statutory conflict. Our primary objective in interpreting a statute is
       to give effect to the legislature’s intent, which is best done by reviewing statutory language in
       its plain and ordinary meaning. People v. Giraud, 2012 IL 113116, ¶ 6. The language in each
       section of a statute must be examined in light of the statute as a whole, which is construed in
       conjunction with other statutes touching on similar and related enactments, though not strictly
       in pari materia. Relf v. Shatayeva, 2013 IL 114925, ¶¶ 23, 39. We must presume that several
       statutes relating to the same subject are governed by one spirit and a single policy, and that the
       legislature intended the several statutes to be consistent and harmonious. Id. ¶ 39. Here, we
       conclude that section 3-816(a) does not conflict with section 5-2-4, but is consistent with that
       statutory provision and clarifies the trial court’s duties in a case like the present. See, e.g.,
       People v. Chiakulas, 288 Ill. App. 3d 248, 252 (1997) (finding the Code and Mental Health
       Code sections on treatment plans complementary, rather than conflicting); but see People v.
       Owens, 269 Ill. App. 3d 152, 154-55 (1994) (section 5-2-4 of the Code controls). The clear
       language of section 5-2-4 of the Code, giving the trial court wide discretion in granting and
       tailoring passes, when read together with section 3-816(a) of the Mental Health Code supports
       our conclusion that the trial court must make adequate findings of fact and conclusions of law
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       for a reviewing court to effectively address the trial court’s judgment. See 730 ILCS 5/5-2-4(b)
       (West 2010) (providing that the court “may” impose “conditions” on the defendant in relation
       to the privileges); see also People v. Cross, 301 Ill. App. 3d 901, 910 (1998) (holding that the
       statute does not mandate that the trial court grant pass privileges even if defendant’s treatment
       team, including the facility director, recommends the passes be granted); People v. Williams,
       140 Ill. App. 3d 216, 226 (1986) (it is the trier of fact and not the psychiatrists who considers
       and weighs the evidence). This statutory interpretation is also consistent with our deferential
       standard of review on appeal, for we will not reverse a trial court’s determination regarding
       pass privileges unless it is against the manifest weight of the evidence, which occurs only when
       the opposite conclusion is clearly evident. See People v. Wolst, 347 Ill. App. 3d 782, 790
       (2004). Given the delicacy of cases involving an individual’s mental health treatment and its
       relationship to public safety, the discretion vested in the trial court is even greater than an
       ordinary appeal applying the manifest weight principle. Cf. In re R.S., 382 Ill. App. 3d 453,
       459-60 (2008).
¶ 18        Having determined that the trial court is required to make sufficient findings of fact and
       conclusions of law in relation to the denial of pass privileges following an evidentiary hearing,
       we conclude that the fact findings in this case fell demonstrably short of satisfying that
       standard. Here, the trial court identified the statutory standard requiring that the passes be
       conducive with the safety of defendant and others, but then the trial court denied the supervised
       off-grounds pass privileges almost exclusively because of the undeniably horrific nature of the
       original crime committed some 20 years ago while defendant was not being treated for his
       psychiatric illness. Suffice it to say that merely reciting the facts of the crime committed while
       mentally ill does not supply the trial court with “clear and convincing” evidence that
       off-grounds privileges should not be granted. While the court cited a “risk factor” identified by
       Dr. Markos as a potential basis for denial of the passes, it did not elaborate on what that risk
       factor was, leaving this court to do the guesswork. Given the apparent importance placed by
       mental health professionals on this sort of activity, we must call upon the trial court to justify
       its ruling by referencing facts related to defendant’s current mental health status as opposed to
       reflexive reference to the admittedly horrific underlying crime. The trial court is certainly
       entitled to consider a defendant’s original reason for inpatient institutionalization, but it cannot
       rely on that alone; it must also consider the individual’s treatment history and current mental
       status in determining whether to grant or deny passes that serve as a step toward possibly
       renewing the patient’s liberty. See 730 ILCS 5/5-2-4(g) (West 2010); People v. Robin, 312 Ill.
       App. 3d 710, 716 (2000) (once a not-guilty-by-reason-of-insanity defendant is involuntarily
       admitted, he may be held only so long as he is both mentally ill and dangerous, and as a matter
       of due process, it is unconstitutional for the State to confine a harmless mentally ill person);
       People v. Shelton, 281 Ill. App. 3d 1027, 1036 (1996) (same); Cross, 301 Ill. App. 3d at 911-12
       (considering past behavior in denying supervised off-grounds pass privileges); see also People
       v. Harrison, 366 Ill. App. 3d 210, 216-17 (2006) (the confinement of a person found not guilty
       by reason of insanity is not for punishment, but rather treatment and protection); Turner v.
       Campagna, 281 Ill. App. 3d 1090, 1093-94 (1996) (noting same regarding primary objective
       of section 5-2-4). In addition, the standard cannot be a “guarantee” of future behavior,

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       otherwise no person in defendant’s place would be permitted off-grounds passes or any form
       of release. See People v. Blumenshine, 72 Ill. App. 3d 949, 955 (1979).
¶ 19       From our reading of the record, in denying the passes, the trial court could have found the
       evidence insufficient to ensure that defendant would be medicated prior to the off-grounds
       outings. Likewise, although defendant was progressing positively, the evidence also indicated
       he could easily relapse if he did not take his medication or, even while medicated, if he was
       exposed to a traumatic event. The trial court could have found there were insufficient
       safeguards to address such a relapse should it take place in public and there was no indication
       that trained staff would be present to effectively handle the relapse given defendant’s large size
       and apparent strength. As we are not the “fact finder” with a view of the witnesses’ credibility,
       however, we are not in a position to be making these factual conclusions to support the court’s
       judgment. See, e.g., In re G.W., 357 Ill. App. 3d 1058, 1060 (2005) (appellate court cannot
       meaningfully review or defer to findings that were never made). Thus, although there is
       evidence in the record and testimony from the witnesses that would support the court’s denial
       of the off-grounds pass privileges, we decline to address the merits of the case absent
       additional findings of fact from the trial court. See In re Madison H., 215 Ill. 2d 364, 378
       (2005); see also In re James S., 388 Ill. App. 3d 1102, 1105, 1107 (2009) (trial court’s
       statement, “having heard the testimony and observed the witnesses,” was an insufficient
       finding of fact under section 3-816(a) for the involuntary administration of psychotropic
       medication).

¶ 20                                         CONCLUSION
¶ 21       Accordingly, we remand the cause to the trial court for the limited purpose of allowing the
       court to enter more specific findings of fact and conclusions of law, consistent with the
       requirements of section 3-816(a) of the Mental Health Code and section 5-2-4 of the Code. 405
       ILCS 5/3-816(a) (West 2010); 730 ILCS 5/5-2-4 (West 2010); see In re Madison H., 215 Ill.
       2d at 378. In the unlikely event the trial court deems the evidence sufficient to support
       off-grounds pass privileges, we hold that additional evidence must be presented showing
       defendant’s mental health and treatment have not changed since the passes were initially
       recommended in 2012.

¶ 22      Remanded.




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