                                  2019 IL App (1st) 162184 

                              Nos. 1-16-2184 & 1-17-1779 Cons. 

                               Opinion filed January 17, 2019 

                                                                         Fourth Division

______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                           FIRST JUDICIAL DISTRICT

______________________________________________________________________________

In re DETENTION OF LEROY KELLEY,	               )     Appeal from the
                                                )     Circuit Court of
                                                )     Cook County.
(The People of the State of Illinois,           )
                                                )
       Petitioner-Appellee,                     )     No. 07 CR 80003
                                                )
v. 	                                            )
                                                )
Leroy Kelley,                                   )     Honorable
                                                )     Timothy J. Joyce,
       Respondent-Appellant).                   )     Judge Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion.
       Justices Reyes and Burke concurred in the judgment and opinion.

                                          OPINION

¶1     Respondent, Leroy Kelley, brings this consolidated appeal, challenging two orders

related to his commitment pursuant to the Sexually Violent Persons Commitment Act (Act) (725

ILCS 207/1 et seq. (West 2014)). Respondent first appeals the trial court’s order denying his

petition for discharge and granting the State’s April 11, 2016, motion for a finding that no

probable cause existed to believe he was no longer a sexually violent person. Respondent

subsequently filed a second appeal from the trial court’s order denying his motion to reconsider

the prior judgment and granting the State’s March 29, 2017, motion for a finding of no probable

cause. Thereafter, on respondent’s motion, the two matters were consolidated on appeal.
No. 1-16-2184


¶2     The record shows that respondent was previously convicted of committing rapes of two

women in 1973. Respondent received a sentence of four to six years’ imprisonment for each of

the two rape offenses, to be served concurrently. It appears that respondent was paroled in 1977.

He was subsequently convicted of committing deviate sexual assault later that same year and was

sentenced to 40 years’ imprisonment. In 2007, the State filed a petition to involuntary commit

respondent as a sexually violent person under the Act.

¶3     The matter proceeded to a jury trial. The evidence presented at that trial was extensively

set out in our decision in respondent’s direct appeal, and we repeat that evidence here as it is

relevant to the instant case:

                       “At respondent’s jury trial, the State presented the testimony of two expert

                witnesses: Dr. Ray Quackenbush and Dr. Steven Gaskell. Dr. Quackenbush

                testified that he was a licensed clinical psychologist employed by Affiliated

                Psychologists, Ltd. He was also approved by the Illinois Sex Offender

                Management Board to provide treatment and evaluation of sexual offenders. The

                trial court found the doctor to be an expert in the field of clinical psychology.

                       Dr. Quackenbush testified that the [Department of Corrections] referred

                respondent for a full psychological evaluation to determine if he should be

                recommended for possible civil commitment as a sexually violent person, and the

                doctor was appointed to conduct that evaluation. As part of that evaluation, Dr.

                Quackenbush first reviewed respondent’s master file, which was a ‘complete set

                of documents dealing with his criminal history and his involvement with the

                Department of Corrections.’ Among other things, the file included court records,

                victim statements, medical records and respondent’s disciplinary history while in



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No. 1-16-2184


                the DOC. All of these documents are reasonably relied upon by experts in

                conducting a sexually violent person evaluation. Dr. Quackenbush also

                interviewed respondent in December of 2006 at the Stateville Correctional Center

                for approximately 1 hour and 45 minutes. The doctor prepared a report after

                completing his evaluation on December 19, 2006. He then evaluated respondent

                again in April of 2007, which included updating his reading of respondent’s

                master file and interviewing respondent again at the Dixon Correctional Center

                for 1 hour and 15 minutes. The doctor prepared a second report on April 18, 2007.

                Finally, to keep his opinion current for respondent’s trial, Dr. Quackenbush

                reviewed additional documents as they became available, including records from

                the [Department of Human Services] treatment and detention facility where

                respondent was residing at the time of trial.

                       Dr. Quackenbush testified that in 1977 respondent was convicted of the

                sexually violent offense of deviate sexual assault and that the facts underlying that

                conviction were relevant to forming the doctor’s opinion. In that case, respondent

                was on probation from another case when he confronted a woman exiting a

                garage. He put a knife to her throat and said, ‘don’t scream or I’ll kill you.’ He

                asked the woman for money, and when she said that she did not have any, he

                forced her to open the trunk of her car and stuffed a rag into her mouth. He then

                had her put his arms around him so it looked like they were together and they

                walked into her apartment. Respondent blindfolded the victim and took a number

                of items from her apartment. Respondent then opened his pants and showed the

                victim his penis and asked her to perform oral sex on him. She refused and



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No. 1-16-2184


                respondent repeated his demand. When the victim again refused, respondent tied

                the victim’s hands behind her back, placed her on the ground, and put a step

                ladder on top of her and left. After a jury convicted him of deviate sexual assault,

                respondent was sentenced to 40 years’ imprisonment.

                       Dr. Quackenbush also considered the facts of two other sexually violent

                offenses for which respondent was convicted in 1973. In the first case, respondent

                and his brother and sister were walking down the street when they saw a woman

                they knew. Respondent forced the victim to the back of a building and then raped

                her. Afterwards, he told the victim he had been interested in her for some time

                and asked her to be his girlfriend. When respondent eventually let the victim

                leave, she went to her apartment and told her boyfriend what happened. When the

                boyfriend found respondent, respondent pulled a gun and then ran away.

                Respondent was convicted of rape in that case following a bench trial and was

                sentenced to four to six years’ imprisonment.

                       Several months after this rape, respondent was arrested for another rape.

                In that case, respondent approached a vehicle containing two women and pulled a

                gun and entered the vehicle. After driving a short distance, respondent took both

                women out of the car and raped one of them in the backyard of a residence. He

                forced the women back into the car, drove a short distance, and then forced both

                women out of the car and raped them. Respondent pled guilty to rape and was

                sentenced to four to six years’ imprisonment. Dr. Quackenbush testified that all

                three crimes were similar in that respondent used a weapon and forced the victim




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No. 1-16-2184


                to engage in sexual activity against her will, and each had the potential to cause

                serious injury to the victim.

                       Dr. Quackenbush testified that in forming his opinion, he also considered

                the facts and circumstances of respondent’s nonsexual criminal history.

                Respondent had an ‘extensive criminal history,’ including an arrest for burglary,

                an arrest and conviction for armed robbery, and an arrest and conviction for

                aggravated assault. During his interview, respondent also told Dr. Quackenbush

                about one sex crime that the doctor was unaware of. Respondent told Dr.

                Quackenbush that he was first arrested for statutory rape of his girlfriend when he

                was 19 and she was 16. When his girlfriend became pregnant, her father had

                respondent arrested but the charges were later dropped.

                       Dr. Quackenbush also considered the facts and circumstances of

                respondent’s institutional adjustments in the DOC in forming his opinion in this

                case. Respondent had an ‘extensive disciplinary history in the [DOC],’ including

                over 250 disciplinary actions against him. This was an ‘unusually high number,’

                even for someone serving a long sentence. The facts of those disciplinary actions

                were important to the doctor. Several disciplinary actions were for sexual

                misconduct, and there were numerous disciplinary actions for fighting,

                intimidation or threats, arson, and throwing liquid on or attacking correctional

                officers. The sexual misconduct actions were important to the doctor because they

                occurred late in his sentence, and the most recent sexual misconduct occurred

                within two years of respondent’s release from prison. In one instance, respondent




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No. 1-16-2184


                was masturbating in front of a nurse and, in another, respondent forced an inmate

                to perform oral sex on him in a prison closet.

                       The doctor also considered the facts and circumstances of respondent’s

                adjustment while on parole. Respondent had been on parole three times and he

                violated parole each time. His most recent sexual offense occurred while

                respondent was on parole for the two rape charges. While respondent was on

                parole the first time for his most recent conviction, he made threats against his

                ‘host’ and the staff of the DOC. He demanded money from his host and attempted

                to get her to go to the cash machine and get money. He also attempted to have her

                submit to a full-body massage. His host finally ‘had enough’ and went to the

                parole department. Respondent’s parole was violated and he was returned to the

                DOC for six months. After he was again released on parole, respondent was

                hospitalized for a period of time for medical reasons. During his hospitalization,

                respondent was masturbating in his bed when a nurse walked into the room. He

                asked her to massage him and she refused. Respondent then wrote his phone

                number out and pressed it into the nurse’s hand. On another occasion in the

                hospital, respondent propositioned a 14-year-old female hospital volunteer who

                entered his room. After she left his room, respondent tried to follow her down the

                hall shouting at and threatening her. Respondent’s parole officer happened to visit

                the hospital shortly thereafter and was informed of the incident. Respondent was

                again returned to the DOC. Respondent kicked his parole officer in the chest and

                he also became violent while being transported to the DOC.




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No. 1-16-2184


                       Dr. Quackenbush also considered that respondent did not participate in

                sexual offender treatment while in the DOC. Such participation is relevant to the

                doctor’s evaluation. Respondent was offered treatment every year he was in the

                DOC but refused to participate. Respondent told the doctor that he did not need

                sexual offender treatment and that he felt getting treatment would interfere with

                getting his case back into court. On his second parole from his most recent case,

                respondent was required to attend outpatient sexual offender treatment. He had

                completed the entry evaluation to the program but he was terminated from the

                program when the program learned of his behavior at the hospital.

                       Respondent’s behavior while in the DHS treatment and detention facility

                was also relevant to the doctor’s evaluation. Respondent had attended an

                orientation group at the facility, which was positive, but he had thus far refused to

                enter into a core sex offender treatment program. Respondent had also exposed

                himself to staff members twice at the DHS facility.

                       Dr. Quackenbush used the Diagnostic and Statistical Manual of Mental

                Disorders IV (DSM-IV), which is the ‘authoritative reference’ in his field, as part

                of his evaluation of respondent. The doctor diagnosed respondent with paraphilia,

                not otherwise specified, nonconsenting persons. The doctor explained that ‘the

                paraphilia is the disorder’ and that ‘it’s a deviant sexual practice or set of

                fantasies.’ According to the doctor, there are approximately 300 named

                paraphilias, most of which are not given a specific individual diagnosis but,

                instead, are given the paraphilia ‘not otherwise specified’ (NOS) diagnosis. The

                ‘non-consenting persons’ diagnosis indicates what type of paraphilia it is. There



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No. 1-16-2184


                 are two criteria for a diagnosis of paraphilia NOS. The first is that the person has

                 over a period of at least six months experienced either fantasies or sexual urges or

                 behaviors involving sexual activity with a non-consenting person. In respondent’s

                 case, he had engaged in sexual activity with nonconsenting persons for

                 approximately 39 years. The second criterion for the diagnosis is that the person

                 must have either acted on his urges or fantasies and his sexual behavior has

                 caused him to suffer a major dislocation or impediment in his life. In respondent’s

                 case, he had been incarcerated for most of his adult life as a result of his sexual

                 behavior. Respondent’s mental disorder is also a congenital or acquired condition

                 affecting his emotional or volitional capacity that predisposes him to commit acts

                 of sexual violence.

                        Respondent also has a history of being diagnosed with three different

                 personality disorders in prison: antisocial personality disorder, scats-affective

                 [sic] 1 disorder and paranoid personality disorder. None of these diagnoses has

                 predominated, so Dr. Quackenbush diagnosed respondent as suffering from a

                 personality disorder, not otherwise specified, with paranoid scats-affective [sic]

                 and antisocial features. Personality disorders are difficult to diagnose and

                 therefore it was not unusual for respondent to have been diagnosed with different

                 personality disorders from different evaluators in the past. In terms of the criteria

                 for diagnosing these personality disorders, Dr. Quackenbush relied upon

1
    The opinion filed in respondent’s direct appeal referred to respondent being diagnosed with

“scats-affective” disorder. However, upon review of the record, it appears this was a

typographical error, and should have read “schizo-affective” disorder.


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No. 1-16-2184


                respondent’s history of being diagnosed by the psychiatrists in the DOC. These

                personality disorders ‘seriously exacerbate[ ]’ respondent’s paraphilia and

                ‘contribute to his inability to control his urges and behaviors.’

                       Dr. Quackenbush also used several methods to evaluate respondent’s risk

                of sexually reoffending. The first method used was an actuarial risk assessment.

                He explained that this involves considering things such as how many times the

                person has been arrested or convicted for a sexually violent crime, whether the

                victims were strangers or people known to the person, whether the victims were

                adults, male, female or children, and whether the person has been in treatment.

                All of the risk factors have been assigned statistical weights and those are added

                to arrive at a category of risk for the individual. In respondent’s case, Dr.

                Quackenbush used two actuarial instruments: the Static-99 and the Minnesota Sex

                Offender Screening Tool Revised (MNSOST-R). Respondent scored in the ‘high

                risk’ category on the Static-99 and specifically scored a 9, which was ‘one of the

                highest scores’ the doctor had ever seen. That was also the ‘highest score that in

                the research on the Static 99 was produced.’ The doctor also stated that it was not

                unusual for evaluators using the Static-99 to arrive at different numbers because

                such a ‘standard error’ is built into all psychological tests. Respondent scored a 17

                on the MNSOST-R, which placed him in the ‘high risk’ category.

                       Dr. Quackenbush also used the Hare Psychopathy Checklist, which is a

                personality test used to measure a very narrow personality trait, psychopathy. He

                explained that ‘it’s similar to anti-social personality disorder, but it’s a more

                narrow concept and it involves a remorseless use of other people and leading a



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No. 1-16-2184


                criminal lifestyle.’ Respondent scored in the 96th percentile, meaning he has a

                ‘higher degree of psychopathy than 96 percent of incarcerated prison inmates.’

                       Dr. Quackenbush also considered several dynamic risk and protective

                factors in respondent’s case that ‘can serve as targets for intervention and

                therapy.’ He considered respondent’s ‘deviant sexual preference.’ He also

                considered respondent’s ‘interpersonal difficulties, that he doesn’t relate well to

                other people as shown by his criminal history and as shown by his disciplinary

                history in the [DOC]. And the notes from the treatment detention center also

                showed that he’s had a lot of trouble getting along with other people there.’ The

                doctor also considered respondent’s age as a factor. This was ‘very important’

                because for some individuals age can be a mitigating protective factor but this

                was not the case with respondent because his most recent sexual behavior with

                nonconsenting persons had been about a year before, and so respondent ‘still

                seem[ed] to be very active in committing sex offenses.’ Dr. Quackenbush also

                considered respondent’s failure to complete a treatment program because research

                indicates ‘that a good sex offender treatment program can reduce the likelihood of

                someone committing an act of sexual violence in the future.’ Ultimately, all of the

                items the doctor considered in his risk assessment were consistent with

                respondent’s total risk assessment and indicated that respondent was at a high risk

                of committing future acts of sexual violence.

                       Based upon all of his considerations, and in his opinion to a reasonable

                degree of psychological certainty, Dr. Quackenbush opined that it was

                substantially probable that respondent would commit future acts of sexual



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No. 1-16-2184


                violence. By ‘substantially probable,’ the doctor meant ‘much more likely than

                not.’

                        On cross-examination, Dr. Quackenbush acknowledged that respondent

                had not been charged with or convicted of any criminal offense since 1977. He

                also agreed that his understanding of respondent’s parole violations was based

                entirely on records generated by parole officers.

                        The State’s next witness was Dr. Steven Gaskell, a clinical and forensic

                psychologist who specialized in the assessment and treatment of mental disorders.

                Dr. Gaskell testified that he is also a registered evaluator with the Illinois Sex

                Offender Management Board. The trial court accepted Dr. Gaskell as an expert in

                the field of clinical psychology.

                        Dr. Gaskell evaluated respondent pursuant to a court order. He did not

                interview respondent because respondent would not participate in the interview.

                Dr. Gaskell testified that he considered respondent’s master file as part of his

                evaluation, and his testimony regarding the facts and circumstances of

                respondent’s criminal history was essentially the same as the testimony given by

                Dr. Quackenbush. He added that in the 1973 rape case, respondent beat and

                sexually assaulted the victim after telling the victim that he had a gun and that he

                would kill her if she did not submit to his sexual advances. The doctor testified

                that in the 1977 case respondent forced the victim to perform oral sex on him.

                Regarding respondent’s past nonsexual criminal history, Dr. Gaskell testified that

                in 1965, when respondent was 13 years old, he was convicted of aggravated

                assault and possession of a deadly weapon after he took a gun to school with the



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No. 1-16-2184


                intent to kill a 16-year-old male who had been picking on him. Respondent had a

                ‘run away charge’ as a juvenile that was a violation of his probation. He was

                convicted of robbery in 1970 and he had a ‘warrant failure’ in the early 1970s.

                Respondent had another offense three weeks after the 1977 robbery and deviate

                sexual assault. It was a similar case in that he approached a woman and asked her

                for money. She said she did not have any money and respondent began to lead her

                down an alley until a car drove by and scared him off. He was convicted of

                attempted armed robbery and sentenced to 15 years’ imprisonment.

                       Dr. Gaskell also considered respondent’s behavior and the disciplinary

                actions taken against him in the DOC, and his testimony closely tracked the

                testimony of Dr. Quackenbush. He added that during respondent’s 2005 parole, he

                went to the home of a DOC employee and harassed the employee’s daughter. In

                November of 2005, he swore at an ‘AMS operator’ and on another occasion

                propositioned an AMS operator. An AMS operator is someone connected with

                respondent’s parole. The final incident, described by Quackenbush, was when he

                tried to get his ‘host’ to submit to a body massage and then go to a cash machine

                and get him money. Dr. Gaskell also added that when respondent was on parole in

                2006, he kicked the door in on the cage of the state vehicle taking him to prison

                and threatened to kill his parole officer and the officer’s family. Like Dr.

                Quackenbush, Dr. Gaskell also considered respondent’s behavior while in the

                DHS treatment and detention facility and his testimony was substantially the same

                as the testimony of Dr. Quackenbush.




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No. 1-16-2184


                       Dr. Gaskell also employed the DSM-IV and diagnosed respondent with

                paraphilia, not otherwise specified, sexually attracted to nonconsenting females

                and antisocial personality disorder. These mental disorders predispose respondent

                to commit acts of sexual violence and were congenital or acquired conditions that

                affected his emotional or volitional capacity in that respondent ‘has urges and

                fantasies to have sexual contact with non-consenting persons.’ Respondent also

                has ‘a failure to conform to social norms’ so that ‘he doesn’t really have a filter or

                something that’s going to stop him from making a different decision when he has

                those urges.’ The doctor defined the antisocial personality disorder as ‘a pervasive

                pattern of disregard for and violations of the rights of others occurring since at

                least the age of 15.’ Dr. Gaskell also diagnosed respondent with cannabis abuse in

                a controlled environment and psychotic disorder, not otherwise specified.

                       The doctor acknowledged that respondent had not sexually attacked

                anyone while in custody but testified that this did not alter his opinion because

                ‘it’s a really infrequent event that someone would actually sexually assault

                someone within a facility.’ Respondent also has not had the opportunity to arm

                himself within the DOC or the DHS treatment and detention facility.

                       Dr. Gaskell employed the Static-99 and respondent fell into the ‘high risk’

                category for that test. Respondent scored an 8 on the Static-99 and other sexual

                offenders have an average score of 2. Dr. Gaskell also used the MNSOST-R and

                respondent again placed in the ‘high risk’ range. The doctor then considered

                seven additional risk factors that pertained to respondent, including antisocial

                personality disorder, high score on the ‘PCLR,’ substance abuse, general self­



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No. 1-16-2184


                regulation problems, impulsiveness, recklessness, any deviant sexual interests and

                employment stability. A consideration of these factors placed respondent at an

                even higher level of risk. The doctor did consider protective factors that could

                reduce respondent’s risk of sexually reoffending. These included his age, his

                health, and any progress in sex offender treatment. However, respondent had

                refused to participate in sex offender treatment while in the DOC. In 2006, he was

                in treatment in Will County for five weeks but he had poor progress and was

                terminated from the program. Since that time, he has not participated in sex

                offender treatment in the DOC or in the DHS treatment and detention facility.

                       The doctor testified that in his opinion, to a reasonable degree of

                psychological certainty, it was substantially probable that respondent would

                commit future acts of sexual violence. According to the doctor, ‘substantially

                probable’ meant more likely than not.

                       The State concluded its case by presenting a stipulation that respondent

                had been convicted of three sexually violent offenses: (1) deviate sexual assault,

                in Cook County case number 77 I 40396, which resulted in a 40-year term of

                imprisonment; (2) rape, in Cook County case number 73 C 2980, for which he

                was sentenced to 4 to 6 years’ imprisonment; and (3) rape, in Cook County case

                number 73 C 3176, for which he was sentenced to a term of 4 to 6 years’

                imprisonment to run concurrently with the sentence in case number 73 C 2980.

                The defense rested without presenting any evidence on respondent’s behalf.” In re

                Commitment of Kelley, 2012 IL App (1st) 110240, ¶¶ 5-29.




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No. 1-16-2184


¶4     At the conclusion of the trial, the jury found respondent to be a sexually violent person

based on the above evidence. Thereafter, following a dispositional hearing, the trial court ordered

respondent committed to the Illinois Department of Human Services (DHS) for institutional care

in a secure facility. Respondent’s commitment was affirmed on direct appeal. Id.

¶5     Respondent has been reexamined periodically since his initial commitment pursuant to

section 55 of the Act (725 ILCS 207/55 (West 2014)).

¶6     On March 21, 2014, the State filed a motion for finding of no probable cause, attaching

the March 11, 2014, reexamination report from Dr. Steven Gaskell. Dr. Gaskell reviewed various

records in completing the evaluation, including prior examinations, court records, disciplinary

records, and the DHS treatment plan. Dr. Gaskell noted that respondent had been informed of the

reexamination, but declined to participate or meet with him.

¶7     Dr. Gaskell reviewed respondent’s history of sexual offenses described above.

Respondent had not been ticketed for any sexual offenses during the period under review, but he

had received minor rule violations on two occasions for yelling at staff, refusing staff directives,

and yelling obscenities.

¶8     Dr. Gaskell determined that respondent continued to “meet[ ] the DSM-5 diagnostic

criteria” for “Other Specified Paraphilic Disorder, Sexually Attracted to Nonconsenting

Females”; “Cannabis Use Disorder, In a Controlled Environment”; and “Antisocial Personality

Disorder.” He further stated that these “diagnoses are congenital or acquired conditions affecting

his emotional or volitional capacity that predispose him to engage in acts of sexual violence.”

¶9     Dr. Gaskell conducted a “risk analysis,” using actuarial measures that help predict the

risk of a sexually violent reoffense, which indicated that respondent was “at substantial risk of

sexual re-offense.” Respondent scored a four (“moderate-high risk”) on the Static-99R, which



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No. 1-16-2184


Dr. Gaskell explained “f[e]ll into the 74.0 to 85.1 percentile,” meaning that “74.0 to 85.1 percent

of sex offenders in these samples scored at or below [respondent]’s score” and that the

“recidivism rate for sex offenders with the same score as [respondent] would be expected to be

approximately 1.94 times higher than the recidivism rate of the typical sex offender.”

Additionally, Dr. Gaskell found that respondent was “most similar to the preselected high-

risk/high needs samples” and that “[o]ffenders with the same score as [respondent] from the

preselected high-risk/high needs samples have been found to sexually reoffend at a rate of 20.1

percent in 5 years and 29.6 percent in 10 years.”

¶ 10   On the Static-2002R, respondent scored a six (“moderate risk”), which Dr. Gaskell

explained “f[e]ll into the 84.3 to 92.1 percentile,” meaning that “84.3 to 92.1 percent of sex

offenders in these samples scored at or below [respondent]’s score” and that the “recidivism rate

for sex offenders with the same score as [respondent] would be expected to be approximately

2.63 times higher than the recidivism rate of the typical sex offender.” Offenders “with the same

score as [respondent] from the preselected high-risk/high needs samples have been found to

sexually reoffend at a rate of 24.0 percent in 5 years and 33.8 percent in 10 years.”

¶ 11   Regarding protective factors, Dr. Gaskell noted that participation in and successful

completion of treatment can reduce a sex offender’s recidivism risk. Respondent, however, had

not participated in sex offense specific treatment since his admission to DHS in 2007.

Respondent had participated in “some ancillary groups” but not within the “past couple years.”

¶ 12   Dr. Gaskell also stated that respondent’s then age of 62 years was a protective factor, and

that it “likely reduces his risk to some degree,” but that the results from the actuarial instruments

already accounted for that factor.




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No. 1-16-2184


¶ 13   Dr. Gaskell noted some of respondent’s medical issues, including that, in his April 2013

resident review, respondent reported that he had prostate cancer. However, Dr. Gaskell

concluded that respondent did not have a medical issue that would “warrant a reduction to his

risk to sexually re-offend at this time.”

¶ 14   Based on the above, Dr. Gaskell concluded, “to a reasonable degree of psychological

certainty, that it is substantially probable that [respondent] will engage in acts of sexual violence

in the future.” Accordingly, the doctor recommended that respondent continue to be found to be

a sexually violent person under the Act, and that he should remain committed to DHS “for

further secure care and sexual offender treatment.”

¶ 15   On April 16, 2014, respondent filed a petition for discharge. The trial court appointed an

expert at respondent’s request, but respondent did not ultimately submit an expert report.

¶ 16   On November 14, 2014, the trial court entered an order finding no probable cause to

warrant an evidentiary hearing to determine whether respondent remained a sexually violent

person, and granted the State’s motion. Respondent did not appeal.

¶ 17   Dr. Gaskell completed an additional reexamination in March 2015, which was filed in the

trial court along with the State’s March 2015 motion for finding of no probable cause. In the

report, Dr. Gaskell recommended that respondent continue to be found to be a sexually violent

person and remain committed to the DHS. Dr. Gaskell continued to diagnose respondent with

“Other Specified Paraphilic Disorder, Sexually Attracted to Nonconsenting Females”; “Cannabis

Use Disorder, In a Controlled Environment”; and “Antisocial Personality Disorder”—diagnoses

that “affect[ed] his emotional or volitional capacity that predispose him to engage in acts of

sexual violence.”




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No. 1-16-2184


¶ 18   In the March 2015 report, Dr. Gaskell continued to use the Static-99R and Static-2002R,

which resulted in scores of four (“moderate-high risk”) and six (“moderate risk”), respectively—

the same scores as in the March 2014 report. Dr. Gaskell also noted that in the year prior to the

March 2015 report, respondent received a warning for disobeying a direct order, two minor rule

violations for insolence, and a major rule violation for interfering with facility operations.

¶ 19   Regarding protective factors, Dr. Gaskell noted that respondent had still not participated

in sex offense treatment and that his age, 63, likely reduced his risk of reoffense “to some

degree,” but that this factor was already “taken into account” on the actuarial instruments. Dr.

Gaskell further stated that respondent did not have a medical issue that would warrant a

reduction in his risk of reoffense.

¶ 20   While the State’s 2015 motion for finding of no probable cause was still pending, the

State filed a new motion for finding of no probable cause on April 11, 2016, which attached the

March 2016 reexamination report of Dr. Gaskell. Dr. Gaskell recommended that respondent

continue to be found to be a sexually violent person. He continued to diagnose respondent with

the same mental disorders as in prior years.

¶ 21   Dr. Gaskell used the Static-99R and Static-2002R to evaluate respondent’s risk of

recidivism. In the 2016 reexamination, respondent received scores of five (“moderate-high”) and

five (“moderate”) on the Static-99R and Static-2002R, respectively. Dr. Gaskell explained that a

score of five on the Static-99R “f[e]ll into the 84.6 to 92.5 percentile” meaning that “84.6 to 92.5

percent of sex offenders in these samples scored at or below [respondent]’s score” and that the

“recidivism rate for sex offenders with the same score as [respondent] would be expected to be

approximately 2.7 times higher than the recidivism rate of the typical sex offender.”

Additionally, Dr. Gaskell found respondent to be “most similar to the preselected high-risk/high



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No. 1-16-2184


needs samples” and “[o]ffenders with the same score as [respondent] from the preselected high-

risk/high needs samples have been found to sexually reoffend at a rate of 21.2 percent in 5 years

and 32.1 percent in 10 years.”

¶ 22      A score of five on the Static-2002R “f[e]ll into the 71.1 to 84.7 percentile,” meaning that

“71.1 to 84.7 percent of sex offenders in these samples scored at or below [respondent]’s score”

and the “recidivism rate for sex offenders with the same score as [respondent] would be expected

to be approximately 1.9 times higher than the recidivism rate of the typical sex offender.”

Additionally, Dr. Gaskell found respondent to be “most similar to the preselected high-risk/high

needs samples” and “[o]ffenders with the same score as [respondent] from the preselected high-

risk/high needs samples have been found to sexually reoffend at a rate of 19.1 percent in 5

years.”

¶ 23      Moreover, Dr. Gaskell listed several additional risk factors that contributed to his risk of

sexual reoffense, including respondent’s “deviant sexual interest,” “Antisocial Personality

Disorder”; “Impulsiveness, recklessness”; and “substance abuse.” Dr. Gaskell stated that these

factors were not measured by the risk assessment instruments described above, and based on the

above, he found respondent to be “at a substantial risk of sexual re-offense.”

¶ 24      Regarding protective factors, Dr. Gaskell noted that respondent had still not participated

in sex offense specific treatment as of the March 2016 report, but he had participated in some

ancillary groups, specifically, an orientation group and anger management group. However,

respondent’s progress in treatment was not “sufficient to reduce his substantial risk for sexually

violent re-offending.” Dr. Glaskell also noted that in the year prior to the 2016 report, respondent

received a major rule violation for interfering with facility operations.




                                                  19 

No. 1-16-2184


¶ 25   Based on all of the above, Dr. Gaskell stated that it was his “professional opinion, to a

reasonable degree of psychological certainty, that it is substantially probable [respondent] will

engage in acts of sexual violence in the future.”

¶ 26   On April 11, 2016, the same day the State filed its motion for finding of no probable

cause, respondent filed a petition for discharge, asserting that he was no longer a sexually violent

person. Respondent attached a report from Dr. Brian Abbott, dated March 15, 2016. Dr. Abbott

stated that he conducted a psychological examination of respondent in a 90-minute “semi­

structured clinical interview” on October 26, 2015. Dr. Abbott noted that medical records

documented that respondent was being treated for prostate cancer. Respondent told Dr. Abbott

that he received shots in his prostate, and he last received the injections in March 2015. The

medical records available to Dr. Abbott also indicated that respondent was receiving monthly

injections of “Lupron Depot,” which is used to treat prostate cancer, and the injections were

administered through March 31, 2015. Dr. Abbott stated that Lupron Depot lowers androgen

levels, “which prevents the production of testosterone that is necessary for sexual arousal.”

Respondent reported to Dr. Abbott “an absence of sexual drive and sexual thoughts” since taking

Lupron Depot.

¶ 27   Dr. Abbott concluded that respondent “no longer suffers from a legally defined mental

disorder based on changes in circumstances associated with age-related modifications in his

sexual and psychological functioning, and physical health.” Regarding respondent’s prior

diagnoses of antisocial personality disorder (APD) and personality disorder with antisocial

personality traits (APT), Dr. Abbott stated that records reflected “very few behavior problems”

since respondent’s commitment, and the “infrequent behavior problems” since his commitment

do not “meet the enduring pattern of personality traits necessary to substantiate a personality



                                                20 

No. 1-16-2184


disorder diagnosis.” Dr. Abbott stated that this indicated that the conditions of APD and APT

had “remitted related to certain psychological changes associated with aging.” Dr. Abbott cited a

study showing that those in the age group of 45-64 demonstrated a 62% rate of remission from

antisocial personality disorder, while those in the age group of 65 and older exhibited remission

at a rate of 78%. Dr. Abbott noted that respondent was 64 years old and would turn 65 years old

in approximately six months.

¶ 28      Dr. Abbott acknowledged that respondent had exhibited “occasional bouts of angry

verbal outbursts toward staff ranging between two to three times annually” but he attributed

these outbursts to “irritability related to symptoms of major depressive disorder.”

¶ 29      Dr. Abbott further stated that respondent had a “decline in sex drive and improved

executive functions [judgment, reasoning and impulse control] associated with advancing age,”

noting that he had “not acted out in sexually inappropriate or criminal ways” since his

commitment. Dr. Abbott stated that the combination of decline in sex drive and improved

executive functions associated with advancing age resulted in “overall improvement in his

interpersonal functioning” and an improvement in “the way that [respondent] manages his sexual

urges.”

¶ 30      Regarding respondent’s prior paraphilia diagnosis, Dr. Abbott stated that respondent had

demonstrated a change in his mental disorder, which was explained by “age related factors

leading to the remission of deviant sexual behaviors.” Respondent reported a decline in his

sexual drive, and Dr. Abbott noted that his self-report was supported by records showing that he

had not acted in sexually inappropriate or illegal ways and that he had not demonstrated

“institutional signs” of paraphilia. Dr. Abbott stated that the decreases in respondent’s “sexual

drive has complemented the changes in his personality structure, which together best explain the



                                                 21 

No. 1-16-2184


change in his paraphilic condition since his commitment date.” Dr. Abbott stated that his

“improved executive functions” allowed respondent to better “deliberate over the consequences

of his behavior before acting” and to “refrain from acting in sexually violent ways.”

¶ 31   Dr. Abbott also cited “two health related circumstances that have secondary effects,

which further contribute to the decline in [respondent]’s sexual drive.” Specifically, respondent’s

sexual drive declined further due to taking Lupron Depot to treat prostate cancer. Dr. Abbott

noted that if respondent stopped taking the medication, “sexual urges will re-emerge as his

testosterone levels increase,” but he stated that “given his age, his sexual drive will likely be low

based on age related decreases in testosterone.” Dr. Abbott also stated that respondent suffers

from chronic back pain, and the “current intensity and chronicity of the physical pain ***

inhibits the experience of sexual urges or thoughts because the physical pain overwhelms any

pleasurable feelings associated with sexual urges or thoughts.”

¶ 32   Additionally, Dr. Abbott concluded that, even assuming respondent suffered from a

mental disorder, he “no longer presents as being substantially probable to commit acts of sexual

violence.” He stated that since respondent’s trial in 2010, there had “been tremendous growth in

the literature and science of sexual recidivism risk assessment,” which demonstrated that

respondent “no longer presents as substantially probable to commit acts of sexual violence.”

¶ 33   Dr. Abbott determined that respondent’s total score on the Static-99R was five, which he

described as “within the moderate high score range.” He noted that it was possible that

respondent “may earn an additional point” based on sexual misconduct in prison with a male

inmate, but that it was “unknown” based on the available information whether the acts would be

considered as sexual offenses against the inmate. If respondent was assigned the additional point,

his score would be a six, which would fall in the “high score” range.



                                                 22 

No. 1-16-2184


¶ 34   Dr. Abbott found respondent to belong to the “Routine Corrections” reference group, and

accordingly, his “Static-99R 5-Year Rate” or recidivism would be 15.2% based on a score of

five, or 20.5% based on a score of six. He stated, however, that the Static-99R rates overestimate

risk for older offenders based on an “over-representation by younger age offenders who sexually

reoffend at higher rates.”

¶ 35   After reviewing the above reports, the trial court held a hearing on respondent’s petition

for discharge and the State’s motion for finding of no probable cause on June 17, 2016. The

court returned for a ruling on June 21, 2016, and stated:

                        “I have read the voluminous pleadings filed by the parties. *** I will note

                with respect to the expert appointed to represent or to evaluate [respondent] ***,

                Dr. Abbott, his lengthy report, it strikes me concentrates on his belief that the ***

                manner of assessing risk [to reoffend] has changed in his estimation. *** I talk

                about the actuarial assessments that are often utilized in an attempt to gauge or

                predict where someone lies on some spectrum regarding his likelihood to reoffend

                *** which is a difficult circumstance in any event. In one in which there is

                considerable dispute with respect to psychiatrists and psychologists who utilize

                such information, and the attorneys who utilize such information in the context of

                this type of case.

                        Dr. Abbott further seems to claim *** that [respondent]’s risk has

                decreased and his risk has decreased *** [as] a function of the advancement of

                time, and certain medications that [respondent] purportedly takes relating to his

                treatment of prostate cancer, as well as the lack of apparent symptoms of any

                mental disorder, which so far as I can tell ***, if there is a lack of symptomology



                                                 23 

No. 1-16-2184


                present of the mental disorder it seems to be a function of [respondent]’s inability

                to engage in those activities which lead to the diagnoses by the evaluator at the

                outset of this, and *** not so much of any particular change in circumstances

                brought on by [respondent] or thrusted upon [respondent] by treatment or

                otherwise. It seems to be a function of the fact that he’s in custody and does not

                have the opportunity to engage in those activities, which gave rise to the diagnosis

                of a mental disease or mental disorder in the first instance, as well as the ultimate

                conclusion he was, in fact, a sexually violent person, as was concluded at the trial

                in this matter.

                        I would note further that the absence of any availing by [respondent] of

                any available treatment at the Department of Human Services facility ***

                similarly tends to indicate a lack of a change in circumstances ***.

                        And I just don’t see that there is a change here. *** [A]lthough expertly

                presented, by both Dr. Abbott and [respondent’s counsel], it strikes the Court that

                the circumstances put forth in support of the claim that [respondent] is no longer a

                sexually violent person, or [sic] simply *** a rehashing of the arguments that

                were made at the time that he was found to be a sexually violent person and,

                therefore, [I] do not think that [respondent] has presented plausible evidence that

                demonstrates a change in circumstances that lead [sic] to the initial finding ***

                that he was a sexually violent person.”

¶ 36   The court entered a written order on June 27, 2016, “nunc pro tunc to June 21, 2016.” In

that written order, the court found no probable cause to warrant an evidentiary hearing to




                                                 24 

No. 1-16-2184


determine whether respondent was still a sexually violent person. The court granted the State’s

motion and denied respondent’s petition “for the reasons stated on the record on June 21, 2016.”

¶ 37   Respondent filed a timely notice of appeal on July 18, 2016, under appellate court No. 1­

16-2184. Respondent filed his appellant’s brief on May 2, 2017, and the State filed its appellee’s

brief on July 11, 2017.

¶ 38   Meanwhile, in the trial court, respondent filed a motion to conduct a reexamination of

respondent “based on changes in his health.” Respondent stated that he now required radiation

therapy to treat his prostate cancer, which had progressed to a Gleason score—defined as “a

scale from 2-10 designed to measure ‘the relative aggressiveness of the cancer’ and ‘how far the

cancer has progressed’ ”—of 7. Over the State’s objection, the court entered an order on October

25, 2016, allowing Dr. Abbott to reexamine respondent.

¶ 39   On December 16, 2016, respondent filed a motion to reconsider the order of June 21,

2016. Respondent stated that since the time the court granted the State’s motion, his “health has

deteriorated to the point that he now requires radiation therapy to treat his prostate cancer.”

Respondent further stated that on December 12, 2016, Dr. Abbott authored a report in which he

continued to opine that respondent is no longer a sexually violent person and that his opinion was

based on new evidence that was not previously available.

¶ 40   Dr. Abbott’s report, which was attached, indicated that respondent had recently

undergone eight weeks of radiation therapy. Dr. Abbott stated that respondent did not presently

experience “sexual thoughts or urges in general or involving forcible or nonconsenting sexual

acts.” Respondent reported that his sexual functioning did not resume after the doctor

discontinued the Lupron Depot medication and that he does not experience sexual urges

“currently or since the examiner last saw him.” Dr. Abbott indicated that respondent’s self­



                                               25 

No. 1-16-2184


reported loss of sexual drive was supported by respondent’s oncologist, with whom Dr. Abbott

had spoken. Respondent’s oncologist advised Dr. Abbott that “patients who undergo the

treatment [Respondent] received do not regain sexual functioning without the aid of medical

intervention.” Dr. Abbot noted that respondent had not had any medical intervention to regain

sexual functioning and that respondent reported he had not had any “referrals to the behavioral

committee” since Dr. Abbott’s last examination. Dr. Abbott concluded that his updated

evaluation did not change his “opinion that [respondent]’s mental disorder has changed since his

commitment date [and] that he is no longer a sexually violent person” and that respondent “is no

longer substantially probable to engage acts of sexual violence, assuming he suffers from the

legally defined mental disorder.”

¶ 41   On May 22, 2017, the State responded to respondent’s motion to reconsider. The State

asserted that Dr. Gaskell spoke to respondent’s oncologist as well, who stated that “many times”

patients do not regain functioning, estimating that it occurs in about 30% of patients. The

oncologist further clarified that medical intervention meant medications such as “Viagra or

Cialis,” and the oncologist never asked respondent about his current sexual functioning. The

oncologist also told Dr. Gaskell that the eight-week course of radiation treatment that respondent

underwent “does not cause 100% loss of erection” and “there was no objective medical evidence

to suggest that this treatment eliminated Respondent’s sexual functioning.”

¶ 42   On March 29, 2017, the State filed a motion for finding of no probable cause based on

Dr. Gaskell’s most recent March 2017 examination, which was attached to the motion. Dr.

Gaskell’s reexamination report was substantially similar to the prior reports. He confirmed that

respondent had not been “seen by the Behavior Committee *** in the past year.” In the 2017

reexamination, respondent received scores of five (“Above average risk”) and four (“Average



                                               26 

No. 1-16-2184


risk”), on the Static-99R and Static-2002R, respectively. These scores equated to five-year

recidivism rates of 21.2% and 16%, respectively, which Dr. Gaskell believed “fairly

represent[ed] the risk presented by respondent” at this time. Dr. Gaskell determined that “[n]o

risk reduction [wa]s warranted based on his current health status” and continued to conclude that

respondent was “at a substantial risk of sexual re-offense.” Dr. Gaskell recommended that

respondent continue to be found to be a sexually violent person, and remain committed to DHS.

¶ 43   On June 6, 2017, the trial court denied respondent’s motion to reconsider, stating:

                        “I’m going to deny the motion. The reason I’m going to deny the well-

                stated motion *** relates to the fact that in the face of a claim that [respondent]

                doesn’t have the wherewithal to engage in the physical act of—in particular,

                physical acts of sexual activity that would presumably require his ability—or

                relate to his ability to maintain an erection or get an erection, that’s not the issue.

                        The issue is whether or not circumstances exist that would lead the Court

                to reasonably conclude that he is no longer a sexually-violent person. That does

                not depend on his physical ability to maintain or not maintain or get, to any

                particular extent, the physical act or the physical circumstance of an erect penis.

                ***

                        [W]hen an individual is seeking a discharge hearing, it is the individual, in

                this instance [respondent]’s responsibility, to show that there is grounds to—for a

                court to conclude—or perhaps conclude that he’s no longer a sexually-violent

                person. And that doesn’t relate to whether or not someone can get an erection.

                        It relates to whether somebody has a mental disorder and, as a result of

                that mental disorder or condition, it is, therefore, substantially more probable that



                                                  27 

No. 1-16-2184


                 they would engage in acts of sexual violence. I don’t doubt that there are all sorts

                 of reasons that individuals engage in acts of sexual violence. It may well relate to

                 their ability to maintain or get an erection, it may not.

                         And the fact that [respondent] seemingly has this circumstance relating to

                 treatment for a prostate condition, cancer, which at the moment or at the time of

                 treatment or will in the future prevent him, apparently, from maintaining an

                 erection, does not by itself lead to a conclusion that, therefore, it is more probable

                 than not that he is no longer a sexually-violent person.

                         It might well be a factor in the compendium of that but that by itself is not

                 a reason that leads the Court to conclude that the circumstances have changed, so

                 that [respondent] is now no longer a sexually-violent person. That’s why I believe

                 my denial of your motion was proper at the time I denied the motion for the

                 petition for a discharge hearing and I believe it’s the reason why I’m correct in

                 denying your motion to reconsider.”

¶ 44      Thereafter, regarding the State’s motion for a finding of no probable cause, the trial court

stated:

                 “I’m going to grant the State’s motion for a finding of no probable cause and rule

                 that there is no probable cause to warrant an evidentiary hearing as to whether

                 [respondent] continues to be a sexually-violent person in need of treatment on a

                 secure basis. That he shall remain in the Department of Human Services on a

                 secure commitment order, as previously indicated. And that’s because

                 [respondent] has a long history of sexually offending and he has a long history of

                 not taking any positive steps to do anything about that.”



                                                   28 

No. 1-16-2184


¶ 45    On June 30, 2017, respondent timely filed a notice of appeal, which was docketed as

appellate court No. 1-17-1779. Respondent filed a motion to consolidate appeals in Nos. 1-16­

2184 and 1-17-1779, contending that “the two appeals cover[ed] nearly identical topics”

regarding the denial of respondent’s petition for discharge and the denial of the motion to

reconsider the same judgment. This court allowed the motion. At respondent’s suggestion, the

parties then filed supplemental briefs relating to the additional matters since the initial appeal,

and respondent filed a consolidated reply and supplemental reply brief.

¶ 46    In this court, respondent contends that this court should reverse the trial court’s judgment

denying his petition for discharge and granting the State’s motion for finding of no probable

cause. Respondent asks us to remand this matter for an evidentiary hearing because the trial court

“erred in interpreting and applying Section 65 of the [Sexually Violent Persons Commitment]

Act,” concluding that there was no probable cause to believe that he is no longer a sexually

violent person. Respondent alternatively contends that the due process clause of the fourteenth

amendment requires an evidentiary hearing because there is substantial evidence to believe that

there is no longer a basis to justify his commitment. Regarding the denial of his motion to

reconsider on June 6, 2017, respondent contends that the court erroneously denied his motion to

reconsider because there was probable cause to believe he was no longer a sexually violent

person based on new facts concerning respondent’s health and there was a “dispute” between Dr.

Abbott and Dr. Gaskell “regarding the basis of their opinions.”

¶ 47    This court has jurisdiction to review the circuit court’s final judgment, entered

nunc pro tunc to June 21, 2016, which denied respondent’s petition for discharge and granted the

State’s motion for finding of no probable cause, pursuant to Illinois Supreme Court Rule 303

(eff. Jan. 1, 2015).



                                                29 

No. 1-16-2184


¶ 48   As to the trial court’s order of June 6, 2017, we note that respondent’s notice of appeal

from that order lists the judgment appealed from as “Continued civil commitment as a sexually

violent person; granting of State Motion for No Probable Cause Based on March 2017 Re-

Examination Report; Denial of Motion to Reconsider the Order of June 21, 2016 Denying the

Respondent’s Petition for Discharge Without an Evidentiary Hearing,” and the date of

disposition is listed as “June 6, 2016.” Respondent contends, and the State agrees, that the

reference to a June 6, 2016, disposition is a typographical scrivener’s error, and that the order

respondent is actually appealing is dated June 6, 2017.

¶ 49   Based on the record, we find that respondent made a scrivener’s error on the notice of

appeal when referring to the disposition date. Schaffner v. 514 West Grant Place Condominium

Ass’n, 324 Ill. App. 3d 1033, 1042 (2001). In Schaffner, this court defined a “scrivener” as a

writer, and a “scrivener’s error” as a clerical error resulting from a minor mistake or inadvertence

when writing or when copying something on the record, including typing an incorrect

number. Id. The scrivener’s error does not inhibit this court’s ability to ascertain from the record

that respondent is appealing from the June 6, 2017, order. State Security Insurance Co. v.

Linton, 67 Ill. App. 3d 480, 486 (1978) (the wrong date on a notice of appeal does not create a

fatal defect when it is a typographical error). Accordingly, we find that the incorrect date on

respondent’s notice of appeal was a scrivener’s error that did not create a fatal defect. Id. We

thus conclude that we also have jurisdiction to consider the appeal from that order pursuant to

Rule 303. Ill. S. Ct. R. 303 (eff. Jan. 1,2015).

¶ 50   The Act allows for the involuntary commitment of “sexually violent persons” by the

DHS for “control, care and treatment until such time as the person is no longer a sexually violent

person.” 725 ILCS 207/40(a) (West 2014). As relevant here, a “sexually violent person” is



                                                   30 

No. 1-16-2184


defined under the Act as “a person who has been convicted of a sexually violent offense, *** and

who is dangerous because he or she suffers from a mental disorder that makes it substantially

probable that the person will engage in acts of sexual violence.” Id. § 5(f). A “mental disorder” is

a “congenital or acquired condition affecting the emotional or volitional capacity that

predisposes a person to engage in acts of sexual violence.” Id. § 5(b).

¶ 51   After a person has been committed under the Act, the State must submit a written report

based on an evaluation of the individual’s mental condition “at least once every 12 months after

an initial commitment.” Id. § 55(a). The primary purpose of the written report is to determine

whether “(1) the person has made sufficient progress in treatment to be conditionally released

and (2) whether the person’s condition has so changed since the most recent periodic

reexamination *** that he or she is no longer a sexually violent person.” Id.

¶ 52   At the time of the annual examination by the State, the committed person receives notice

of the right to petition the court for discharge. Id. § 65(b)(1). If the committed person does not

affirmatively waive that right, the court must set a probable cause hearing to determine whether

facts exist that warrant a hearing on whether the respondent remains a sexually violent

person. Id. “However, if a person has previously filed a petition for discharge without the

Secretary’s approval and the court determined, either upon review of the petition or following a

hearing, that the person’s petition was frivolous or that the person was still a sexually violent

person, then the court shall deny any subsequent petition under this Section without a hearing

unless the petition contains facts upon which a court could reasonably find that the condition of

the person had so changed that a hearing was warranted.” Id.

¶ 53   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



                                                31 

No. 1-16-2184


person. Id. § 65(b)(2). In a discharge proceeding, this means that the committed individual must

present sufficient evidence that he no longer meets the following elements for commitment:

(1) he no longer has “a mental disorder” or (2) he 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. Id. § 5(f); In re Detention of Stanbridge, 2012 IL 112337, ¶¶ 68, 72. “In making that

determination, the trial judge must consider all reasonable inferences that can be drawn from the

facts in evidence.” (Internal quotation marks omitted.) In re Detention of Hardin, 238 Ill. 2d 33,

48 (2010). However, at this stage of the proceedings, the role of the trial court is not to “choose

between conflicting facts or inferences” (internal quotation marks omitted) (id.), or to engage in

a “full and independent evaluation of [an expert’s] credibility and methodology” (id. at 53). The

trial court “should not attempt to determine definitively whether each element of the [movant’s]

claim can withstand close scrutiny as long as some ‘plausible’ evidence, or reasonable inference

based on that evidence, supports it.” Id. at 51-52. This court reviews the ultimate question of

whether respondent established probable cause de novo. In re Detention of Lieberman, 2011 IL

App (1st) 090796, ¶ 40. If the court finds probable cause to believe that the committed person is

no longer a sexually violent person, it must set a hearing on the issue and the State has the

burden of proving by clear and convincing evidence that the person is still a sexually violent

person. 725 ILCS 207/65(b)(2) (West 2016).

¶ 54   Postcommitment probable cause hearings are “intended to be preliminary in nature, a

‘summary proceeding to determine essential or basic facts as to probability’ *** while remaining

cognizant of the respondent’s liberty rights.” Hardin, 238 Ill. 2d at 52 (quoting State v. Watson,

595 N.W.2d 403, 420 (Wis. 1999)). As a result, a probable cause determination requires a




                                                32 

No. 1-16-2184


“ ‘relatively low’ ” quantum of evidence as support. In re Detention of Hayes, 2015 IL App (1st)

142424, ¶ 18 (quoting Hardin, 238 Ill. 2d at 52). As the supreme court stated in Stanbridge:

                       “To allow the trial judge to weigh conflicting evidence and choose

                between expert opinions at this ‘summary proceeding’ would be beyond the scope

                of the limited inquiry intended at a probable cause hearing and would render

                meaningless and unnecessary the subsequent sections of the Act providing for a

                full hearing or trial. The probable cause hearing is not a substitute for a full

                evidentiary hearing where disputed questions of fact can be resolved by the trier

                of fact, and where the basis for the opinions and credibility determinations can be

                fully explored.” Stanbridge, 2012 IL 112337, ¶ 64.

¶ 55     We will first consider respondent’s appeal of the June 21, 2016, order, denying his

petition for discharge and granting the State’s 2016 motion for a finding of no probable cause,

before turning to the appeal of the June 6, 2017, order, denying his subsequent motion to

reconsider that judgment and granting the State’s 2017 motion for a finding of no probable

cause.

¶ 56     Regarding the initial order of June 21, 2016, respondent argues that there is probable

cause to believe that he is no longer a sexually violent person, based on the report of Dr. Abbott,

and contends that this court should not choose “between conflicting facts and inferences” in the

expert reports prior to an evidentiary hearing. Respondent contends that there is probable cause

to believe that he is no longer a sexually violent person because he has not engaged in sexual

misconduct since being committed, he has demonstrated that he can control his behavior, and his

increasing age has caused his risk of re-offense to “plummet[ ].” The State, however, contends




                                                33 

No. 1-16-2184


that the trial court correctly determined that no probable cause existed to believe that respondent

is no longer a sexually violent person.

¶ 57   As an initial matter, respondent and the State disagree regarding what evidence was

properly before the trial court on this issue. The parties’ disagreement stems from the 2012

amendment to the petition for discharge statute, which added language, “since the most recent

periodic reexamination” to the statute. See Pub. Act 97-1075 (eff. Aug. 24, 2012) (amending 725

ILCS 207/65(b)(2)).

¶ 58   The State points out that, pursuant to section 65(b)(2), the circuit court must 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.” (Emphasis added.) 725 ILCS 207/65(b)(2) (West 2014). The State relies on this

language to contend that the court is concerned only with changes in circumstances since “the

most recent periodic reexamination,” and therefore, we should look only to whether there have

been sufficient changes since November 2014, the last time the trial court found no probable

cause to believe that respondent was no longer a sexually violent person. The State contends that

the reports showed that respondent’s condition and behavior had not changed in any significant

way since that time, and that the differences in Dr. Gaskell’s and Dr. Abbott’s methodologies are

not due to post-2014 changes in professional knowledge. The State further argues that Dr.

Abbott’s “mere[ ] disagree[ment]” with Dr. Gaskell’s approach is not sufficient to warrant a

hearing.

¶ 59   Respondent, however, contends that the report of Dr. Abbott shows that his condition has

changed since he was found to be a sexually violent person in 2010. Respondent argues that the

State’s interpretation of section 65 is inconsistent with the supreme court’s decision in



                                                34 

No. 1-16-2184


Stanbridge, 2012 IL 112337, and was previously rejected by this court in In re Commitment of

Rendon, 2017 IL App (1st) 153201. Respondent further argues that the State’s interpretation

would result in the statute being unconstitutional.

¶ 60   This issue was previously considered by this court in Rendon, 2017 IL App (1st) 153201.

In Rendon, the committed person challenged the 2012 amendment to section 65, adding the

language “since the most recent periodic reexamination,” arguing that the amendment was

“unduly restrictive, forcing a petitioner to essentially rely only on facts occurring since the most

recent reexamination, within the preceding year.” (Emphases in original and internal quotation

marks omitted.) Id. ¶ 21. The respondent further argued that the amendment had “a retroactive

effect” and that the court should “apply the pre-amendment statute.” Id.

¶ 61   This court, however, disagreed with the committed person’s interpretation of the

amendment, determining that the amendment “did not preclude consideration of a respondent’s

full mental health and sexual history or relevant historical facts.” Id. ¶ 23. “Construing the statute

logically, it simply means the court must consider the professional conclusions as to a

respondent’s status in the most recent report and any changed circumstances.” Id. The court

determined that the amendment was “simply a clarification of what the circuit court was already

tasked with determining in any case involving application for discharge or conditional release—

i.e.[,] whether the respondent’s current status reflects a mental disorder or that he is still a danger

to society such that he is substantially probable to reoffend.” (Emphases in original.) Id.

¶ 62   Based on this standard, we conclude that respondent has met his “very low burden” to

show probable cause to advance to an evidentiary hearing. Id. ¶ 29 (citing In re Commitment of

Wilcoxen, 2016 IL App (3d) 140539, ¶ 30).




                                                  35 

No. 1-16-2184


¶ 63   In Dr. Abbott’s report, he determined that respondent “no longer suffers from a legally

defined mental disorder based on changes in circumstances associated with age-related

modifications in his sexual and psychological functioning, and physical health.” He believed that

respondent’s previously-diagnosed antisocial personality disorder had remitted, due to

“psychological changes associated with aging,” and that his “infrequent behavior problems”

since his commitment did not “meet the enduring pattern of personality traits necessary to

substantiate a personality disorder diagnosis.” Regarding the prior paraphilia diagnosis, Dr.

Abbott also believed that there had been a demonstrated change in his mental disorder, which

was explained by “age related factors leading to the remission of deviant sexual behaviors.”

Respondent reported a decline in his sexual drive, and Dr. Abbott noted that respondent’s self-

report was supported by records showing that he had not acted in sexually inappropriate or

illegal ways since his commitment and that he had not demonstrated “institutional signs” of

paraphilia. Respondent’s decline in sex drive and improved executive functions associated with

advancing age resulted in “overall improvement in his interpersonal functioning,” allowing

respondent to better “deliberate over the consequences of his behavior before acting” and to

“refrain from acting in sexually violent ways.”

¶ 64   Dr. Abbott also concluded that, even assuming respondent suffered from a mental

disorder, he “no longer presents as being substantially probable to commit acts of sexual

violence.” Based on his Static-99R analysis, he found a five-year rate of recidivism between

15.2% and 20.5%. Dr. Abbott stated, however, that the Static-99R rates overestimate risk for

older offenders based on an “over-representation by younger age offenders who sexually

reoffend at higher rates.”




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¶ 65   Although a comparison of Dr. Gaskell’s and Dr. Abbott’s reports indicate that the experts

substantially disagree on several issues, we will not “weigh conflicting evidence and choose

between expert opinions” at this preliminary stage. Stanbridge, 2012 IL 112337, ¶ 64. Based on

the above report of Dr. Abbott, we conclude that respondent has provided at least the

“ ‘relatively low’ ” quantum of evidence necessary to support a probable cause hearing. Hayes,

2015 IL App (1st) 142424, ¶ 18 (quoting Hardin, 238 Ill. 2d at 52).

¶ 66   Having so found, we turn to respondent’s appeal of the June 6, 2017, order, denying his

subsequent motion to reconsider that judgment and granting the State’s 2017 motion for a

finding of no probable cause. Since we have already found that respondent is entitled to a

hearing based on the record from respondent’s initial petition for discharge in 2016, we consider

whether there is anything in the record from the subsequent proceedings that would impact our

conclusion.

¶ 67   As an initial matter, the State contends that the trial court lacked jurisdiction to consider

respondent’s motion to reconsider, since it was untimely pursuant to section 2-1203 of the Code

of Civil Procedure (Code) (735 ILCS 5/2-1203(a) (West 2014)). Respondent asserts that his

motion did not cite section 2-1203 of the Code and that it did not provide the basis for his motion

to reconsider. Respondent contends instead that he brought his motion to reconsider “pursuant to

the Act.”

¶ 68   Section 20 of the Act provides that proceedings under the Act are “civil in nature” and

that the Code “shall apply to all proceedings hereunder except as otherwise provided in this Act.”

725 ILCS 207/20 (West 2014); see also People v. Miller, 2014 IL App (1st) 122186, ¶ 20 (“the

provisions of the Code apply to commitment proceedings only where they do not conflict with

the Act”). Additionally, pursuant to section 2-1203 of the Code (735 ILCS 5/2-1203(a) (West



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2014)), in nonjury cases, a party has 30 days after the entry of the judgment to file a motion to

reconsider.

¶ 69   Respondent contends that section 2-1203 of the Code does not apply to his motion to

reconsider because it was filed pursuant to the Act itself. Respondent contends that section 2­

1203 conflicts with section 55(c) of the Act, which provides that a court may order a

reexamination of the committed person “at any time during the period in which the person is

subject to the commitment order.” 725 ILCS 207/55(c) (West 2014). We are unconvinced.

¶ 70   The Act’s provision that a court may order a reexamination of a committed person is

independent of, and does not conflict with, the Code’s requirement that motions to reconsider

must be brought within 30 days of the judgment. Respondent could, and indeed did, petition the

court to allow such a reexamination pursuant to section 55(c), without filing a motion to

reconsider. We also note that section 2-1203 of the Code has been previously applied in a case

arising from the Act. See In re Commitment of Simons, 2015 IL App (5th) 140566, ¶ 18.

¶ 71   Accordingly, we determine that section 2-1203 of the Code applies to respondent’s

motion to reconsider. Because respondent filed his motion to reconsider the order of June 21,

2016, approximately six months later—on December 16, 2016—respondent’s motion was

untimely under section 2-1203 of the Code and the trial court had no jurisdiction to hear it.

Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 475 (2000); Beck v. Stepp, 144 Ill. 2d 232, 238

(1991) (“trial court loses jurisdiction to vacate or modify its judgment 30 days after entry of

judgment [citations] unless a timely post-judgment motion is filed”); In re Application of the

County Treasurer & Ex-Officio County Collector, 208 Ill. App. 3d 561, 563-64 (1990) (trial

court’s denial of motion to reconsider is void for lack of jurisdiction where motion itself was

untimely filed).



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¶ 72   Although we agree with the State that the trial court lacked jurisdiction to consider

respondent’s untimely motion to reconsider, the issue is moot, in any event, since we have

already concluded that respondent is entitled to a hearing based on the record from respondent’s

initial petition for discharge in 2016. Moreover, the court unquestionably had jurisdiction to

consider the State’s annual motion for finding of no probable cause, filed March 29, 2017.

Accordingly, we will consider the evidence presented at the hearing on the State’s motion.

¶ 73   In addition to Dr. Abbott’s initial report, outlined above, the additional report of Dr.

Abbott, dated December 12, 2016, lends further support to our conclusion that respondent met

his burden. In that report, Dr. Abbott continued to opine that respondent was no longer a sexually

violent person. Dr. Abbott’s opinion was supported, in part, by new evidence since the prior

annual reexamination, specifically, that respondent had recently undergone “eight weeks of

radiation therapy” and that respondent’s oncologist advised Dr. Abbott that “patients who

undergo the treatment that [respondent] received do not regain sexual functioning without the aid

of medical intervention.” Dr. Abbott further indicated that respondent had not had any medical

intervention to regain sexual functioning and that he did not presently experience “sexual

thoughts or urges in general or involving forcible or nonconsenting sexual acts.”

¶ 74   Given Dr. Abbott’s 2016 initial report, and the additional support provided in his 2017

reexamination report, we conclude that respondent is entitled to an evidentiary hearing to

determine whether he is still a sexually violent person as defined by the Act. See Rendon, 2017

IL App (1st) 153201, ¶ 32 (finding the respondent to have presented “sufficient evidence to show

probable cause for an evidentiary hearing” in light of respondent’s age, low recidivism rate on

the Static-99R, and participation in treatment).




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¶ 75    Accordingly, we remand this matter for the trial court to conduct an evidentiary hearing

to determine whether respondent remains a sexually violent person. At this hearing, the parties

can raise the various matters at issue in each of these consolidated proceedings, including the

conflicting expert reports from 2016 and 2017, and the fact finder can determine the credibility

and weight to be given to the experts’ testimony and opinions. We express no opinion on

whether respondent or the State will ultimately prevail after an evidentiary hearing.

¶ 76    In light of the above, we need not reach respondent’s alternative argument, that an

evidentiary hearing is constitutionally required by the due process clause of the fourteenth

amendment to the United States Constitution. See In re E.H., 224 Ill. 2d 172, 178 (2006) (“cases

should be decided on nonconstitutional grounds whenever possible, reaching constitutional

issues only as a last resort”).

¶ 77    Based on the foregoing, we reverse the judgment of the trial court finding no probable

cause for an evidentiary hearing. We remand the case for further proceedings consistent with this

opinion.

¶ 78    Reversed and remanded.




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