                                   2017 IL App (1st) 130882



                                                                              FIRST DIVISION
                                                                                  May 8, 2017


No. 1-13-0882


THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from the
                                                           )       Circuit Court of
        Petitioner-Appellee,                               )       Cook County.
                                                           )
v.                                                         )       No. 09 CR 4187
                                                           )
CORBITT WHITE,                                             )       Honorable
                                                           )       Timothy Joseph Joyce,
        Respondent-Appellant.                              )       Judge Presiding.


        JUSTICE MIKVA delivered the judgment of the court, with opinion.
        Presiding Justice Connors and Justice Simon concurred in the judgment and opinion.


                                           OPINION

¶1      Corbitt White was found to be a sexually dangerous person and, pursuant to the Sexually

Dangerous Persons Act (SDPA) (725 ILCS 205/1.01 et seq. (West 2010)), was committed to the

custody of the Illinois Department of Corrections until a court finds him no longer dangerous. On

appeal, Mr. White argues that his rights to due process, to confrontation, and against self-

incrimination under the United States and Illinois constitutions were violated because he was

required by court order to participate in the mental health evaluations required by the SDPA,

based on a petition that did not meet the requirements of the SDPA and before the State had

elected to proceed solely under the SDPA. For the following reasons, we affirm the judgment of

the circuit court.
No. 1-13-0882


¶2                                      BACKGROUND

¶3     On March 6, 2009, Mr. White was charged by indictment with five counts of aggravated

criminal sexual assault, six counts of aggravated kidnapping, one count of criminal sexual

assault, and two counts of kidnapping. According to the criminal complaint, on August 22, 2006,

Mr. White threatened the victim with a knife and forced her into his vehicle, where he bound her

hands behind her back and forcefully placed his penis into her vagina.

¶4     Following the indictments, the parties began the pretrial discovery process. On June 19,

2009, the State filed a motion to introduce other-crimes evidence in Mr. White’s criminal case to

show his propensity to commit sex offenses (see 725 ILCS 5/115-7.3 (West 2008)), including

Mr. White’s 1988 convictions for aggravated criminal sexual assault, home invasion, and armed

robbery, for which he was sentenced to 30 years’ incarceration and released on parole in 2004.

¶5     On February 26, 2010, the State filed a document titled “Petition to Evaluate Defendant

as a Sexually Dangerous Person.” The petition stated that it was filed pursuant to the SDPA. The

petition included detailed summaries of the allegations against Mr. White in the underlying

criminal case, as well as the crimes for which Mr. White was convicted in 1988. The prayer for

relief asked the circuit court to enter an order appointing two qualified psychiatrists to examine

Mr. White to ascertain whether he was a sexually dangerous person and then file their results in

writing with the court.

¶6     Mr. White moved to dismiss the State’s February 2010 petition on the basis that it

contained insufficient facts to support the State’s assertion that he was a sexually dangerous

person as defined by the SDPA. During the hearing on Mr. White’s motion to dismiss the

petition, defense counsel argued that the State was putting the “cart before the horse” and had

filed the petition without showing “any type of good faith basis to believe Mr. White suffer[ed]


                                              -2­
No. 1-13-0882


from any mental disorders.” The assistant State’s Attorney’s response was that the February

2010 petition was merely a request, as the “preliminary first step” to have Mr. White evaluated

by two psychiatrists, and that the State was “not filing a petition to have him declared a sexually

dangerous person” at that time. The assistant State’s Attorney explained that, if the psychiatrists

did not come to the conclusion that Mr. White was a sexually dangerous person, the State would

not request a hearing under the SDPA and would instead pursue the underlying criminal charges.

The assistant State’s Attorney also stated that, if the psychiatric evaluations indicated that Mr.

White did qualify as a sexually dangerous person under the SDPA, then the State would file a

subsequent petition to request a hearing to have him declared sexually dangerous. Responding to

the State’s declared intentions, defense counsel insisted that the State was required to file a

petition that complied with the requirements set forth in the SDPA before Mr. White could be

ordered to be examined by a psychiatrist.

¶7     The circuit court denied Mr. White’s motion to dismiss and ordered Mr. White to be

evaluated as a sexually dangerous person by two qualified psychiatrists. In its ruling, the court

stated that “the statute *** requires the State to file [a] petition in writing setting forth facts

tending to show that the person named is a sexually dangerous person as defined in the statute”

and found that “the petition [the State] filed meets that burden.”

¶8     Following the court’s ruling, defense counsel expressed concern that statements made by

Mr. White during those evaluations could be used against him substantively or for impeachment

purposes in the underlying criminal case, such that forcing Mr. White to undergo the evaluations

would violate his rights under the fifth and sixth amendments. The court responded that “the

State would be precluded from using those statements in any proceeding other than on a petition

to have the defendant found a sexually dangerous person.”


                                                -3­
No. 1-13-0882


¶9     Mr. White filed a motion to reconsider the circuit court’s ruling. As part of that motion,

Mr. White argued that forcing him to discuss the underlying criminal case with the evaluators

would “give[ ] the State a preview of [his] defenses at trial” and his right to a fair trial “should

not be impinged upon absent a showing that [he] suffer[ed] from a mental disorder.” The court

denied Mr. White’s motion to reconsider on May 26, 2010, reaffirming its finding that “the State

has set forth sufficient facts in the petition to warrant the evaluation.”

¶ 10   Also on May 26, 2010, Dr. Peter Lourgos, assistant director of the forensic clinical

services institute of the circuit court of Cook County, filed a letter informing the circuit court that

Mr. White had been “uncooperative” and refused to participate in the first evaluation, thereby

preventing the doctor from rendering an opinion. The court entered an order instructing Mr.

White to cooperate with the evaluation.

¶ 11   At the May 26, 2010, hearing on Mr. White’s motion to reconsider, after the circuit court

had denied Mr. White’s motion, the assistant State’s Attorney stated:

                “Judge, just to expedite matters, since we are going to need two

                psychiatrists to evaluate him, perhaps give it a mid-July date.

                Should the psychiatric institute come back with a report indicating

                that he doesn’t fit the definition of mental disorder, the State has

                also filed a motion for proof of other crimes. We filed that some

                time ago. I am not sure if Counsel has responded to that. Perhaps

                get a response and maybe have Your Honor make a decision with

                respect to that so we can set this down for trial, whether or not we

                are proceeding as a sexually dangerous person or whether or not

                we can just actually try to criminally charge.”


                                                 -4­
No. 1-13-0882


The court did not rule on or order Mr. White’s counsel to respond to the State’s motion “for

proof of other crimes” but simply directed the parties to return to court in June because the

psychiatric reports regarding Mr. White would soon be filed.

¶ 12   On August 24, 2010, Dr. Lourgos filed a letter in which he stated that he examined Mr.

White on June 18, 2010, and that

                “Based on the above examination and review of the available

                records, it is my opinion within a reasonable degree of medical and

                psychiatric certainty that Corbitt White suffers from a mental

                disorder, specifically, sexual sadism, which has existed for a period

                not less than one year and is coupled with criminal propensities to

                the commission of sex offenses. Hence, it is my opinion within a

                reasonable degree of medical and psychiatric certainty that Corbitt

                White meets the statutory criteria for a sexually dangerous person.”

                (Emphasis omitted.)

¶ 13   The second evaluator, Dr. Monica Argumedo, another psychiatrist with the forensic

clinical services institute, also filed a letter on August 24, 2010, in which she stated that she

examined Mr. White on July 27, 2010. Dr. Argumedo’s conclusions paralleled those of Dr.

Lourgos: she found that Mr. White “manifest[ed] a mental disorder, mainly Sexual Sadism,” that

the condition had existed for a period of not less than one year, that the condition was coupled

with a criminal propensity to the commission of sex offenses, and that, therefore, Mr. White met

the statutory criteria for a sexually dangerous person.

¶ 14   On September 10, 2010, the circuit court ordered the forensic clinical services institute to

tender to both parties “any and all notes, summaries, memoranda, and conclusions created in


                                                -5­
No. 1-13-0882


conjunction with the evaluation of Corbitt White as a sexually dangerous person.” (Emphasis in

original.)

¶ 15    On September 28, 2010, the State filed a document titled “Petition to Declare Defendant

a Sexually Dangerous Person.” In this document, the State alleged that Mr. White met the

statutory criteria for a sexually dangerous person and asserted that this conclusion was supported

by the opinions of the two psychiatrists, as described in their letters filed with the circuit court.

This September 2010 petition alleged that “[f]or a period of not less than one year prior to the

filing of this petition, defendant has had a ‘mental disorder,’ as used in the SDPA” and also that

there was “a substantial probability that [Mr. White] will engage in the commission of sexual

assaults in the future if not confined.” The relief requested in this petition was for the court to

declare Mr. White a sexually dangerous person and appoint the Director of Corrections as his

guardian.

¶ 16    Mr. White voluntarily waived his right to a jury trial, and his commitment hearing began

on December 18, 2012. The State’s case consisted of testimony from Dr. Lourgos and Dr.

Argumedo, who each testified at length about their evaluations of Mr. White, reaffirming their

opinions that Mr. White met the statutory definition of a sexually dangerous person. Each

witness was cross-examined by defense counsel. The State also introduced certified copies of

Mr. White’s 1988 convictions for aggravated criminal sexual assault, home invasion, and armed

robbery, as well as copies of several other convictions for crimes Mr. White committed in the

1980s. Mr. White elected not to call any witnesses and chose not to testify on his own behalf.

¶ 17    On January 9, 2013, the circuit court found that the State had proved beyond a reasonable

doubt that Mr. White suffered from two mental disorders, sexual sadism and antisocial

personality disorder; that these mental disorders had existed for a period of not less than one year


                                                -6­
No. 1-13-0882


prior to the filing of the petition; that they revealed criminal propensities toward commission of

sex offenses, acts of sexual assault, or acts of sexual molestation of children; and that, as a result,

it was substantially probable that Mr. White, if not committed, would commit additional acts of

sexual assault. Accordingly, the court adjudged Mr. White to be a sexually dangerous person.

¶ 18   Mr. White filed a motion to set aside this finding or, in the alternative, for a new hearing.

Mr. White argued that the State did not allege any facts in its February 2010 petition to show that

he was suffering from a mental disorder that would qualify him as a sexually dangerous person

under the SDPA, that at the hearing the State failed to prove beyond a reasonable doubt that he

was a sexually dangerous person, and that he did not receive a fair hearing because, in forming

their opinions, the psychiatrists presumed he was guilty of the underlying criminal charges for

which he was never prosecuted or convicted.

¶ 19   The circuit court denied Mr. White’s motion on February 7, 2013, and committed him to

the custody of the Director of Corrections in a facility designed for the care and treatment of

sexual offenders. That same day, Mr. White filed his notice of appeal.

¶ 20   We have jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing

appeals from final judgments in civil proceedings entered below. Ill. S. Ct. R. 301 (eff. Feb. 1,

1994); R. 303 (eff. May 30, 2008). See People v. Tapp, 2012 IL App (4th) 100664, ¶ 4 (the rules

governing civil appeals apply to proceedings under the SDPA).

¶ 21                                        ANALYSIS

¶ 22   Mr. White argues that the February 2010 petition was insufficient to meet the statutory

requirements for an SDPA petition and was not an election to proceed under the SDPA. Instead,

it was merely a request for an evaluation by psychiatrists. Mr. White’s claim on appeal is that the

circuit court violated his rights under the fifth, sixth, and fourteenth amendments to the United


                                                 -7­
No. 1-13-0882


States Constitution (U.S. Const., amends. V, VI, XIV) and article I, section 2, of the Illinois

Constitution (Ill. Const. 1970, art. I, § 2), by requiring him to cooperate in psychiatric

evaluations and discuss the facts of his pending criminal case before the State had properly

elected to proceed under the SDPA or filed a sufficient SDPA petition.

¶ 23   The State argues in its brief on appeal that the February 2010 petition met the

requirements of an SDPA petition and consequentially the State properly initiated and elected to

proceed under the SDPA. The State’s position in its brief is that its second September 2010

petition was unnecessary and was filed due to the State’s mistaken belief that it was required to

file a subsequent petition after the evaluations were complete. The State argues that this second

petition did not invalidate or negate the validity of the February 2010 petition.

¶ 24   At oral argument, the State adjusted this argument in an attempt to convince this court

that, in the event the February 2010 petition is viewed as insufficient under the SDPA, the State

properly amended or supplemented that petition with its September 2010 petition. Accordingly,

the State argues, long before the State proceeded to the hearing in this case on Mr. White’s

commitment under the SDPA, there was a petition on file that provided an appropriate basis for

such a proceeding and there was a proper election by the State to proceed under the SDPA. The

State also argues, both in its brief and at oral argument, that Mr. White’s fifth amendment

privilege against self-incrimination was fully protected because the State would not have been

allowed to use any of Mr. White’s statements to the evaluators in any subsequent criminal

prosecution.

¶ 25   We initially must reject the position that the State takes in its briefing in this case that its

February 2010 petition was, on its own, sufficient. As we noted at oral argument, we are

particularly concerned with the State’s failure to acknowledge in its brief that it expressly told


                                                -8­
No. 1-13-0882


the circuit court that the February 2010 petition was not a petition to have Mr. White committed

under the SDPA but was instead only a petition to have him evaluated. We are also concerned

with the State’s failure to fully acknowledge in its brief that, after the circuit court ordered Mr.

White to cooperate with the psychiatric evaluation, the State asked the court to rule on or have

Mr. White’s counsel respond to its motion seeking the admission of evidence of Mr. White’s

other crimes in the criminal case, reflecting that the State had in fact not elected at that point to

proceed solely under the SDPA.

¶ 26   However, we agree with the argument the State made at oral argument that the September

2010 petition was an adequate petition for proceeding under the SDPA and that, overall, the

procedure employed by the State did not violate any of Mr. White’s rights under fifth, sixth, or

fourteenth amendments to the United States Constitution or under article I, section 2, of the

Illinois Constitution. This court may affirm a decision of the circuit court on any basis that

appears in the record (People v. Olsson, 2015 IL App (2d) 140955, ¶ 17 (“We review the trial

court’s judgment rather than its reasoning, and we may affirm on any basis supported by the

record.”)), and we uphold the commitment of Mr. White on this basis.

¶ 27                                       A. The SDPA

¶ 28   The SDPA, which has been in existence in some form since 1938, allows the State to

“seek an involuntary and indefinite commitment in lieu of criminal prosecution when a person

believed to be sexually dangerous is charged with a criminal offense.” People v. Masterson,

2011 IL 110072, ¶¶ 26-27. The purpose of the SDPA is twofold: “(1) to protect the public by

sequestering a sexually dangerous person until such a time as the individual is recovered and

released, and (2) to subject sexually dangerous persons to treatment such that the individual may




                                                -9­
No. 1-13-0882


recover from the propensity to commit sexual offenses and be rehabilitated.” People v. Trainor,

196 Ill. 2d 318, 323-24 (2001).

¶ 29   Section 3 of the SDPA provides as follows:

                “When any person is charged with a criminal offense and it shall

                appear to the Attorney General or to the State’s Attorney of the

                county wherein such person is so charged, that such person is a

                sexually dangerous person, within the meaning of this Act, then the

                Attorney General or State’s Attorney of such county may file with

                the clerk of the court in the same proceeding wherein such person

                stands charged with criminal offense, a petition in writing setting

                forth facts tending to show that the person named is a sexually

                dangerous person.” 725 ILCS 205/3 (West 2010).

¶ 30   Under the SDPA, sexually dangerous persons are defined as:

                       “All persons suffering from a mental disorder, which

                mental disorder has existed for a period of not less than one year,

                immediately prior to the filing of the petition hereinafter provided

                for, coupled with criminal propensities to the commission of sex

                offenses, and who have demonstrated propensities toward acts of

                sexual assault or acts of sexual molestation of children ***.” 725

                ILCS 205/1.01 (West 2010).

¶ 31   At the time of Mr. White’s SDPA proceeding, the SDPA also provided that:

                “After the filing of the petition, the court shall appoint two

                qualified psychiatrists to make a personal examination of such


                                               - 10 ­
No. 1-13-0882


                alleged sexually dangerous person, to ascertain whether such

                person is sexually dangerous, and the psychiatrists shall file with

                the court a report in writing of the result of their examination, a

                copy of which shall be delivered to the respondent.” 725 ILCS

                205/4 (West 2010).

Since the time of Mr. White’s hearing under the SDPA, this section of the statute has been

amended to call for an evaluation by “two qualified evaluators,” rather than “two qualified

psychiatrists,” but otherwise remains the same. 725 ILCS 205/4 (West 2014).

¶ 32   The SDPA further provides that, after the evaluators are appointed, a hearing is held to

determine whether the respondent is sexually dangerous, and the evaluators’ findings must be

introduced at that hearing by direct testimony. 725 ILCS 205/5 (West 2010); see People v.

Covey, 34 Ill. 2d 195, 197 (1966) (noting that at least one evaluator must testify in order to

establish a prima facie case against the respondent). If the respondent is found to be a sexually

dangerous person, the respondent is committed under the custody of the Director of Corrections

who “shall provide care and treatment for the person committed to him designed to effect

recovery.” 725 ILCS 205/8 (West 2010). Upon rehabilitation and release, all outstanding

indictments that served as the basis for the respondent’s SDPA confinement are quashed. 725

ILCS 205/9(e) (West 2010); Trainor, 196 Ill. 2d at 324.

¶ 33   The SDPA is considered civil in nature, and the Code of Civil Procedure (735 ILCS 5/1­

1-101 et seq. (West 2010)) generally applies to proceedings under it. 725 ILCS 205/3.01 (West

2010). However, because commitment under the SDPA results in loss of liberty, several essential

protections are written into the SDPA, including the State’s burden of proof being “beyond a

reasonable doubt” (id.) and the rights for the respondent to have a jury trial and to be represented


                                               - 11 ­
No. 1-13-0882


by counsel (725 ILCS 205/5 (West 2010)). See also Trainor, 196 Ill. 2d at 338 (noting these

particular rights are “[o]f paramount importance”).

¶ 34   As our supreme court made clear in People v. Allen, 107 Ill. 2d 91, 103 (1985), aff’d sub

nom., Allen v. Illinois, 478 U.S. 364 (1986), “there is no privilege against self-incrimination in

sexually dangerous person proceedings.” The court noted, “[t]o allow even such a limited

privilege would unduly frustrate the purposes of the sexually dangerous persons provisions by

making it nearly impossible to identify sexually dangerous persons.” Id. However, this does not

mean that statements made by a defendant during his evaluation may lead to his criminal

conviction if he is not deemed a sexually dangerous person—“a defendant’s statements to a

psychiatrist in a compulsory examination under the provisions here involved may not be used

against him in any subsequent criminal proceedings.” Id. at 104. The United States Supreme

Court affirmed the decision in Allen v. Illinois, holding that, because the SDPA is civil in nature,

requiring a defendant to cooperate with the evaluators appointed to determine whether that

person is sexually dangerous under the SDPA does not violate the fifth amendment’s guarantee

against compulsory self-incrimination. Allen, 478 U.S. at 375.

¶ 35                                   B. Mr. White’s Claims

¶ 36                               1. Inadequate SDPA Petition

¶ 37   Mr. White argues that the February 2010 petition was insufficient to properly allege that

he was a sexually dangerous person within the meaning of the SDPA. We agree.

¶ 38   The February 2010 petition was titled “Petition to Evaluate Defendant as a Sexually

Dangerous Person.” The record reflects that, during the hearing on Mr. White’s motion to

dismiss this petition, the assistant State’s Attorney explicitly stated that the State had not filed a

petition to have Mr. White declared a sexually dangerous person, that this was merely a request


                                                - 12 ­
No. 1-13-0882


for him to be evaluated by psychiatrists, and that the State would file a petition for him to be

declared a sexually dangerous person only if the evaluators’ reports indicated that he would

qualify as one. Thus, the State conceded in the circuit court that the February 2010 petition was

not a sufficient petition on which to proceed under the SDPA and to have Mr. White committed

as a sexually dangerous person.

¶ 39   Even without this concession by the State, it is apparent to us that the February 2010

petition did not meet the requirements for filing a petition under section 3 of the SDPA (725

ILCS 205/3 (West 2010)). The State argued in its brief that, by reciting facts regarding the crime

that Mr. White was previously convicted of and charged with, the February 2010 petition

contained facts “tending” to show that Mr. White was a sexually dangerous person. However, a

sexually dangerous person, as defined by the SDPA, is a person “suffering from a mental

disorder” for “a period of not less than one year” (725 ILCS 205/1.01 (West 2010)), and the

SDPA defines “mental disorder” as “a congenital or acquired condition affecting the emotional

or volitional capacity that predisposes a person to engage in acts of sexual violence” (725 ILCS

205/4.03 (West 2010)). The February 2010 petition says nothing about a mental disorder, a

congenital or acquired condition, or how long that condition has lasted. In addition, the prayer

for relief in the February 2010 petition was to examine Mr. White—not to commit him. Such a

petition does not meet the requirements of the SDPA, and it would have been improper to

proceed to a commitment hearing solely on the basis of such a petition. See People v. McDonald,

44 Ill. App. 2d 348, 354 (1963) (reversing an SDPA commitment based on an insufficient

petition that failed to allege facts tending to show that the person named was a sexually

dangerous person).




                                              - 13 ­
No. 1-13-0882


¶ 40   On the other hand, all of the statutory requirements for an SDPA petition were satisfied

when, after Mr. White was examined by Drs. Argumedo and Lourgos, the State filed its

September 2010 petition, which specifically alleged that Mr. White met all criteria to be declared

a sexually dangerous person under the SDPA, including that he had a mental disorder for a

period of not less than one year prior to filing the petition and that both doctors had opined that

this was so within a reasonable degree of medical and psychiatric certainty. The prayer for relief

in the September 2010 petition was, appropriately, for a finding that Mr. White was a sexually

dangerous person and that he be committed to the Director of Corrections as his guardian, in

accordance with the SDPA.

¶ 41   The State’s apparent rationale for proceeding the way that it did was that, until Mr. White

was examined by mental health experts, the State had no information about whether he actually

suffered from a mental disorder. Be that as it may, it does not change the fact that the initial

February 2010 petition lacked key, statutorily required components to qualify under section 3 of

the SDPA as a petition to proceed to a hearing to determine whether Mr. White was a sexually

dangerous person.

¶ 42   Mr. White argues that, because the February 2010 petition was insufficient, his

commitment under the SDPA must be reversed. We agree with the State, however, that we can

also look at the September 2010 petition, which the State characterized at oral argument as a

“supplemental petition,” in order to decide whether the State had presented a sufficient petition

on which to proceed under the SDPA.

¶ 43   In reference to the commitment hearing itself, we find no issue with considering the

September 2010 and February 2010 petitions together to determine whether the State satisfied

the requirements of section 3 of the SDPA. One of Mr. White’s claims is that he did not receive


                                              - 14 ­
No. 1-13-0882


due process, which would, of course, require sufficient notice of the basis for the State’s petition.

However, the September 2010 petition was filed over two years before Mr. White’s commitment

hearing on December 8, 2012. Mr. White clearly had ample notice long before the commitment

hearing.

¶ 44       The filing of the September 2010 petition distinguishes this case from McDonald, 44 Ill.

App. 2d 348, on which Mr. White relies. In McDonald, the circuit court’s order committing the

defendant pursuant to the SDPA was vacated where the State had proceeded on an inadequate

petition, plus the State failed to file with the court the written finding of the psychiatrists or

deliver a copy of it to the defendant. Id. at 354. Here, in contrast, there was an adequate petition

on file long before Mr. White was tried and committed under the SDPA.

¶ 45   The SDPA specifically states that “proceedings under this Act shall be civil in nature.”

725 ILCS 205/3.01 (West 2010). Accordingly, the Code of Civil Procedure would allow the

State to amend or supplement its petition. See 735 ILCS 5/2-616 (West 2010) (“At any time

before final judgment amendments may be allowed on just and reasonable terms, *** in any

matter, either of form or substance, in any process, pleading, bill of particulars or proceedings,

which may enable the plaintiff to sustain the claim for which it was intended to be brought

***.”); 735 ILCS 5/2-609 (West 2010) (“Supplemental pleadings, setting up matters which arise

after the original pleadings are filed, may be filed within a reasonable time by either party by

leave of court and upon terms.”).

¶ 46   Although there is no indication in the record that the State sought leave of court to file the

September 2010 petition, nor is there any indication that Mr. White objected to its filing. Our

supreme court has made it clear that, where a party does not object to an amendment filed

without leave of court, that issue is waived. Ragan v. Columbia Mutual Insurance Co., 183 Ill.


                                                - 15 ­
No. 1-13-0882


2d 342, 355 (1998). Thus, we agree with the State that the September 2010 petition provided an

adequate legal basis for proceeding to Mr. White’s commitment hearing under the SDPA.

¶ 47   The harder question is whether Mr. White’s constitutional rights were violated when the

circuit court required him, in May 2010, to participate in and cooperate with the psychiatric

evaluations, although the State had not yet filed an adequate SDPA petition. Mr. White argues

that this sequence of events resulted in a violation of his right to due process, right to

confrontation, and right to remain silent.

¶ 48   Mr. White argues that his right to due process was violated because the SDPA requires a

petition be filed before any evaluation is ordered. However, “[t]he fundamental requirements of

due process are notice of the proceeding and an opportunity to present any objections.” People v.

Cardona, 2013 IL 114076, ¶ 15. In point of fact, the February 2010 petition gave Mr. White very

specific notice regarding the purpose of the psychiatric evaluations, and he had an opportunity to

present objections to the evaluations. We fail to discern a due process violation.

¶ 49   Mr. White does not explain why he believes that his right to confrontation was violated.

However, Mr. White does not dispute that his counsel had ample opportunity at the commitment

hearing to cross-examine all witnesses against him. Thus, we likewise cannot identify a violation

of his right to confront adverse witnesses.

¶ 50   Finally, in reference to the right to remain silent, as discussed earlier in this opinion,

“there is no privilege against self-incrimination in sexually dangerous person proceedings.”

Allen, 107 Ill. 2d at 103. Although Mr. White’s compelled statements were obtained without the

foundation of a sufficient SDPA petition, they were used solely in an SDPA proceeding. There

was no subsequent criminal proceeding. Indeed, as discussed later in this opinion, nothing

occurred in the criminal case after Mr. White was required to participate in the evaluations. On


                                               - 16 ­
No. 1-13-0882


these facts, we see no basis to find that Mr. White’s fifth, sixth, or fourteenth amendment rights

were violated.

¶ 51                  2. State’s Failure to Elect to Proceed under the SDPA

¶ 52   Mr. White also argues that, because he was ordered to participate in the evaluations under

the SDPA before the State had “elected” to proceed under the SDPA, he was deprived of due

process and his fifth amendment rights were violated. Mr. White cites to the fact that at the May

26, 2010, hearing, the State suggested that the court rule on or order Mr. White’s counsel to

respond to the State’s motion for the admission of proof of other crimes, which was pending in

the criminal case. Mr. White cites People v. Spurlock, 388 Ill. App. 3d 365, 375 (2009), where

the court noted that SDPA proceedings are “ ‘in lieu of a criminal prosecution’ ” (quoting People

v. Lawton, 212 Ill. 2d 285, 288 (2004)) and that “[t]he legislature did not intend for both the

criminal proceeding and the sexually dangerous persons commitment proceeding to go forward

simultaneously on separate tracks.”

¶ 53   The State, again failing to acknowledge the complete record, contends that, once the

February 2010 petition was filed, it had elected to proceed solely under the SDPA. In its brief on

appeal, the State mischaracterizes the assistant State’s Attorney’s statement at the May 26, 2010,

hearing as having simply “informed the court that if the evaluation showed that [Mr. White] was

not qualified to proceed under the SDPA, then the People had a pending other-crime motion to

which [Mr. White] had not yet responded.”

¶ 54   What the record instead reflects is that the State sought to have Mr. White evaluated as a

sexually dangerous person without making a clear election to proceed only under the SDPA.

This is evidenced by the assistant State’s Attorney’s suggestion to the circuit court at the May

26, 2010, hearing that it should rule on the State’s motion regarding evidence of Mr. White’s


                                              - 17 ­
No. 1-13-0882


other crimes in order to “expedite” matters, in case the subsequent evaluations did not support

commitment of Mr. White under the SDPA. It is also reflected in the fact that, at that time, the

State had only requested that Mr. White be evaluated, not that he be committed. However, we do

not believe that this failure to elect to proceed under the SDPA, again in the specific factual

scenario of this case, supports Mr. White’s constitutional claims.

¶ 55   First, the mere fact that there were criminal charges still pending against Mr. White

certainly did not prohibit the State from pursuing Mr. White’s adjudication as a sexually

dangerous person. In fact, the opposite is true. Pending criminal charges are required for the

State to initiate and undergo SDPA proceedings. 725 ILCS 205/3 (West 2010); People v.

Nastasio, 19 Ill. 2d 524, 531 (1960) (proceedings under the SDPA are “wholly dependent on a

criminal prosecution”). Those charges remain pending until the person found to be a sexually

dangerous person under the SDPA is found to be no longer dangerous and is discharged. 725

ILCS 205/9(e) (West 2010).

¶ 56   Moreover, although the SDPA does not explicitly provide for such a scenario, in at least

one case that we are aware of the State withdrew its election to proceed under the SDPA, opting

instead to proceed on the underlying criminal charges. See People v. Hughes, 2012 IL 112817,

¶ 7 (wherein the defendant agreed to plead guilty to one offense in exchange for the State

agreeing to dismiss the remaining criminal charges, withdraw its SDPA petition, and recommend

a specific sentence). Mr. White’s counsel conceded this possibility at oral argument. The

Spurlock court, which is the case that Mr. White primarily relies on, also seems to recognize the

State’s ability to do this, noting, “we must construe the [SDPA] to provide for a stay of

proceedings on the criminal complaint upon the filing of a sexually dangerous persons petition,




                                              - 18 ­
No. 1-13-0882


until the issues concerning the accused’s mental status are resolved.” (Emphasis added.)

Spurlock, 388 Ill. App. 3d at 375.

¶ 57   Mr. White contends that the failure to elect means that the State can order a criminal

defendant to participate in an evaluation under the SDPA and then use what it learns from the

defendant in that evaluation to aid in its investigation of the ongoing criminal case, even if the

State would be barred, under Allen, from using the defendant’s actual statements against him at a

criminal trial. In the context of this case, at least, such a concern is only hypothetical. No

criminal prosecution occurred, and thus the State could have made no use in Mr. White’s

criminal prosecution of whatever it might have learned from his evaluations. Since the only

proceedings that occurred here, after Mr. White was compelled to cooperate in the evaluations,

were proceedings under the SDPA, there can be no concern about a violation of Mr. White’s fifth

amendment rights.

¶ 58   In People v. Bailey, 405 Ill. App. 3d 154, 159, 172-73 (2010), the Appellate Court, Third

District, held that the circuit court did not abuse its discretion in allowing the pending criminal

charge and the SDPA petition to proceed simultaneously for years, with a guilty plea being

accepted and then withdrawn, until, when it was time to set a trial date on the criminal charges,

the prosecutor acknowledged that the sexually dangerous person petition should proceed first

and, “ ‘if that is found, that may preclude the trial because I don’t think you can take 2 bites of

the same type of apple.’ ” The Bailey court noted that:

                “in cases where a sexually-dangerous-person petition has been

                filed, it may be to a defendant’s advantage to have some of the

                initial proceedings on the underl[y]ing criminal charge and the

                sexually-dangerous-person petition occur simultaneously to reduce


                                              - 19 ­
No. 1-13-0882


                unnecessary delay and to provide the defendant with the ability to

                attack the underlying criminal charge, such as through a motion to

                suppress evidence or statements, as a method of also attacking the

                sexually-dangerous-person petition, which cannot stand in the

                absence of the underlying criminal charge.” Id. at 174.

¶ 59   Regardless of whether we agree with this portion of the decision in Bailey, the situation

before us is distinguishable because Mr. White’s case did not proceed on two separate tracks.

After the February 2010 petition was filed in this case, the only court proceedings that actually

went forward were under the SDPA. Despite the assistant State’s Attorney’s request for a ruling

on the State’s motion to admit evidence of Mr. White’s other crimes, there was no ruling on that

motion, and defense counsel was not even ordered to respond to it. Thus, even if it would have

been improper for the court below to have required Mr. White to continue to defend himself in

the criminal case after he had been ordered to participate in the SDPA evaluations, nothing of

that sort occurred here.

¶ 60   Mr. White’s “election” argument relies heavily on the court’s statement in Spurlock that a

criminal prosecution and an SDPA proceeding cannot go forward simultaneously. Spurlock, 388

Ill. App. 3d at 375 (citing Lawton, 212 Ill. 2d at 288). However, Spurlock made this observation

in the context of holding that the speedy trial statute (725 ILCS 5/103-5 (West 2006)) must be

read to allow a stay of the speedy trial term while an SDPA petition is pending. Spurlock, 388 Ill.

App. 3d at 375-76. The court’s concern in Spurlock was that the State could not comply with the

120-day speedy trial term if it was trying to have a defendant examined under the SDPA. Id. at

376. Spurlock reversed a circuit court order that had dismissed both the criminal complaint and

the SDPA petition for violation of the speedy trial act. Id. at 378-79. In context, it is clear that


                                               - 20 ­
No. 1-13-0882


this language in Spurlock does not set out a requirement that, once a defendant has been ordered

to participate in the SDPA evaluations, the State has “elected” to proceed solely under the

SDPA. Even if Spurlock created a rule that the State’s actions in this case violated, we are not

bound by other appellate court decisions (O’Casek v. Children’s Home & Aid Society of Illinois,

229 Ill. 2d 421, 440 (2008)), particularly in light of more recent appellate court decisions that

suggest no such rule exists (see, e.g., Bailey, 405 Ill. App. 3d 173-74 (allowing SDPA

proceedings and the underlying criminal proceedings to proceed simultaneously)).

¶ 61   The Lawton decision certainly did not set out this requirement. Rather, it simply

described the SDPA as a statute that “permits the State to seek an involuntary, indeterminate

commitment in lieu of a criminal prosecution.” Lawton, 212 Ill. 2d at 288. The Lawton case was

about the availability of a petition under section 2-1401 of the Code of Civil Procedure (735

ILCS 5/2-1401 (West 2002)) where a defendant believed he received ineffective assistance of

counsel on an SDPA petition. Lawton, 212 Ill. 2d at 294-95. Neither of these cases supports Mr.

White’s argument that the State must specifically elect to proceed exclusively under the SDPA

before a defendant can be ordered to participate in an SDPA evaluation.

¶ 62   Mr. White also quotes Allen, 478 U.S. at 370, in which the United States Supreme Court

noted that, by committing a person under the SDPA, the State has “disavowed any interest in

punishment.” This language, in context, however, does not suggest that the State must “elect” at

some specific point to proceed solely under the SDPA. In the passage that Mr. White cites from

Allen, the Supreme Court examined what occurs after a person has been adjudicated sexually

dangerous under the SDPA to confirm that SDPA proceedings are distinct from criminal cases.

Id. at 369-70.




                                             - 21 ­
No. 1-13-0882


¶ 63   Thus, Mr. White cannot point to any legal precedent, and certainly no binding legal

precedent, to support his argument that the State was required to elect to proceed solely under the

SDPA at the time it filed its February 2010 petition or that its failure to do so violated Mr.

White’s constitutional rights.

¶ 64   At oral argument the State advised the court that, subsequent to Mr. White’s case, the

State has changed its operating procedure to file only one petition seeking both the evaluations

contemplated by the SDPA and to have the defendant declared sexually dangerous and

committed. While we understand that, at the time they file such a petition, the State may lack

certain information regarding whether a criminal defendant suffers from a mental disorder, we

believe the new procedure tracks the requirements of section 3 of the SDPA. It also ensures that

both the State and the criminal defendant are on the same path at the same time, whether moving

toward a criminal trial or a commitment hearing under the SDPA. If the State feels that the

statute, as it is written, requires allegations that cannot in good faith be made until after an

evaluation, the State’s recourse is, naturally, with the legislature.

¶ 65                        3. State’s Failure to Comply with the SDPA

¶ 66   During the hearing on Mr. White’s motion to dismiss the State’s February 2010 petition,

defense counsel objected to Mr. White undergoing psychiatric evaluations prior to the State

filing a petition that complied with the SDPA. Although Mr. White fails to argue on appeal

specifically that the State failed to comply with the statutory requirements of the SDPA, because

involuntary commitment proceedings “implicate substantial liberty interests” (In re Robinson,

151 Ill. 2d 126, 130 (1992)) and the issue of statutory compliance is intertwined with Mr.

White’s constitutional claims, we feel it necessary to address this issue.




                                                 - 22 ­
No. 1-13-0882


¶ 67   As we described above, prior to the State filing a statutorily compliant petition in

September 2010, the State sought, and the circuit court ordered, Mr. White to undergo

evaluations that the SDPA explicitly provides are only to be conducted “[a]fter the filing of the

petition” (725 ILCS 205/4 (West 2014)). Although it was an error for the State to seek Mr.

White’s evaluations prior to filing a petition that complied with the requirements of the SDPA,

strict compliance with involuntary admission proceedings is not required in all instances. See In

re Lance H., 2014 IL 114899, ¶ 20 (concerning the involuntary admission provisions of the

Mental and Developmental Disabilities Health Code (405 ILCS 5/1-100 et seq. (West 2010))); In

re Splett, 143 Ill. 2d 225, 230-32 (1991) (same). A related question was discussed in Splett,

where the State provided the respondent with “actual notice” of involuntary admission

proceedings against him but failed to strictly comply with the statutory notice provisions. Splett,

143 Ill. 2d at 230-31. Our supreme court found that, despite the statutory noncompliance, the

purposes of the notice provision were fulfilled and the respondent did not contend, nor could the

court discern, that he was prejudiced by the lack of formal notice. Id. at 232. Therefore, the court

concluded, the failure to serve the respondent with formal notice “must be considered harmless.”

Id.

¶ 68   It is apparent that an SDPA petition serves two key functions: to provide notice to the

defendant that the State is electing to proceed under the SDPA and to set forth the allegations to

be proved at the SDPA hearing. See 725 ILCS 205/3, 4, 5 (West 2010). Even if the February

2010 petition did not satisfy all the requirements to fully constitute a SDPA petition, it certainly

provided notice to Mr. White that the evaluations the State sought for Mr. White, which he

ultimately underwent, were for the purpose of evaluating him as a sexually dangerous person

pursuant to the SDPA. And, following the evaluations, the State’s September 2010 petition fully


                                               - 23 ­
No. 1-13-0882


complied with the SDPA petition requirements to serve as the basis for the SDPA hearing,

providing Mr. White with full notice of the allegations against him and ample time prior to the

hearing to prepare.

¶ 69   We can also evaluate whether Mr. White was prejudiced by the State’s statutory

noncompliance by analyzing whether the result would have been different had the State strictly

complied with SDPA procedure. The test for harmless error is whether it appears beyond a

reasonable doubt that the error at issue did not contribute to the result reached by the circuit

court. In re Brandon P., 2014 IL 116653, ¶ 50. Having carefully reviewed the record, we see no

way that this error may have adversely affected the result for Mr. White. As we noted above,

after the evaluations were complete and the State filed its September 2010 petition, a full two

years elapsed before Mr. White’s SDPA hearing. Ultimately, Mr. White was found to be a

sexually dangerous person as a result of the evidence put forth at this hearing. We are aware of

no argument made by Mr. White, nor have we found anything in the record, to suggest that the

evidence put forth at the hearing—namely, the evaluators’ reports—would have been different

had a proper SDPA petition been filed prior to the hearing. Mr. White was unable, either in his

briefs on appeal or in response to specific questions at oral argument, to articulate any way in

which the timing of the evaluations prejudiced him or could have possibly impacted the ultimate

outcome of this case. Thus, any statutory error in ordering the psychiatric evaluations before an

adequate petition was filed was harmless beyond a reasonable doubt.

¶ 70                                    CONCLUSION

¶ 71   For the foregoing reasons, we affirm the judgment of the trial court.

¶ 72   Affirmed.




                                              - 24 ­
