                            Illinois Official Reports

                                   Appellate Court



                  In re Detention of Carpenter, 2015 IL App (1st) 133921



Appellate Court        In re DETENTION OF JERMAINE CARPENTER (The People of the
Caption                State of Illinois, Plaintiff-Appellee, v. Jermaine Carpenter,
                       Defendant-Appellant).



District & No.         First District, Second Division
                       Docket No. 1-13-3921



Filed                  August 4, 2015



Decision Under         Appeal from the Circuit Court of Cook County, No. 09-CR-80002; the
Review                 Hon. Timothy J. Joyce, Judge, presiding.



Judgment               Affirmed.



Counsel on             Daniel T. Coyne, Matthew M. Daniels, and Michael R. Johnson, all of
Appeal                 Chicago Kent Law Offices, of Chicago, for appellant.

                       Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                       Solicitor General, and Michael M. Glick and John R. Schleppenbach,
                       Assistant Attorneys General, of counsel), for the People.



Panel                  PRESIDING JUSTICE SIMON delivered the judgment of the court,
                       with opinion.
                       Justices Pierce and Liu concurred in the judgment and opinion.
                                             OPINION

¶1       On August 16, 2013, following a bench trial, the circuit court entered judgment finding
     defendant Jermaine Carpenter a sexually violent person subject to commitment under the
     Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010)).
     Following a dispositional hearing on August 28, 2013, defendant was committed to
     institutional care in a secure facility until further order of the court pursuant to the Act. 725
     ILCS 207/40(b)(2) (West 2012). Defendant now appeals the judgment of the circuit court,
     arguing that the circuit court should be reversed and the matter remanded for a new trial
     because the court erred by denying defendant’s motion to appoint an evaluator of his own
     choosing before the probable cause hearing. Defendant also argues that reversal and remand
     are proper because the court erred in excusing the State’s untimely responses to defendant’s
     requests to admit and denying defendant’s motion to deem those facts admitted. For the
     following reasons, we affirm the judgment of the circuit court.

¶2                                        I. BACKGROUND
¶3        On March 16, 2009, one day before defendant’s scheduled release from prison on
     mandatory supervised release, plaintiff People of the State of Illinois (the State), filed a
     petition for sexually violent person commitment pursuant to the Act (725 ILCS 207/40 (West
     2008)), seeking to have defendant committed to the Illinois Department of Human Services
     (Department) as a sexually violent person. The State alleged that defendant had been
     convicted of attempted aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2004))
     and sentenced to three years’ imprisonment. The State attached a sexually violent person
     evaluation report from Dr. Ray Quackenbush dated March 9, 2009, setting forth the finding
     that defendant suffered the mental disorders of paraphilia, not otherwise specified, with
     mixed features and antisocial personality disorder and the opinion that defendant was
     dangerous to others and it was substantially probable that he would engage in acts of sexual
     violence. The court ordered a probable cause hearing for March 18, 2009.
¶4        On March 18, 2009, the State was prepared to proceed with the probable cause hearing
     and present the testimony of Dr. Quackenbush, and defendant appeared and the court
     appointed counsel. Defendant waived the statutory requirement that the probable cause
     hearing be held within 72 hours. The court granted defendant a continuance of two weeks for
     appointed counsel to investigate the case and confer with defendant. The parties returned for
     several status hearings, with defendant waiving the 72-hour probable cause requirement and
     continuing the matter each time.
¶5        On June 24, 2009, defendant filed a motion for an order appointing an expert evaluator
     on his behalf prior to the preliminary hearing. Specifically, defendant stated that it was
     critical to have his own expert at the preliminary hearing stage and that he had contacted Dr.
     Luis Rosell, Psy.D., who was willing to evaluate defendant in a timely fashion. That same
     day the circuit court denied defendant’s motion, stating that it had already ruled upon that
     issue and opining that the Act did not provide for appointment of a defendant’s expert before
     the probable cause hearing. The court reasoned that, with the requirement that the
     preliminary hearing be held within 72 hours, it would be impossible to meet that deadline if a
     defendant’s expert had to be appointed, examine defendant, and file a report all within that


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       expedited timeframe. The court concluded that “It’s only a probable cause hearing. If there is
       a finding of probable cause, then you get an expert.”
¶6         The parties returned to court on July 8, 2009, for the probable cause hearing, but the
       State’s witness was not present and a continuance was entered. Defendant registered
       complaints concerning his treatment at the detention facility and also with his representation,
       asserting that he wanted to find his own counsel. Over the next two years, counsel withdrew
       and was replaced by new appointed counsel. Several motions were ruled upon, including a
       motion to reconsider the decision denying the appointment of an expert to defendant prior to
       the probable cause hearing.
¶7         On April 14, 2011, the circuit court held the probable cause hearing. The State presented
       Dr. John Arroyo, who testified that after Dr. Quackenbush had retired and moved out of
       state, he reviewed defendant’s medical file and his Department records, but testified that
       defendant refused to be interviewed. Dr. Arroyo prepared a written report that was admitted
       into evidence. Dr. Arroyo further testified to defendant’s criminal history and disciplinary
       violations while in custody that evidenced a long history of sexual misconduct and assaults as
       well as violent behavior.
¶8         Dr. Arroyo noted that defendant had not received any treatment while incarcerated or in
       custody of the Department. Based on his review of this information and the Diagnostic and
       Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), Dr.
       Arroyo diagnosed defendant as having paraphilia, not otherwise specified (NOS), nonconsent
       and antisocial personality disorder. Based on actuarial risk assessment tools, Dr. Arroyo
       concluded that defendant had a high and moderate-high risk of reoffending. Based on
       additional factors, Dr. Arroyo concluded that defendant was substantially probable to engage
       in future acts of sexual violence.
¶9         Dr. Arroyo admitted that he did not review Dr. Quackenbush’s handwritten notes or
       audiotapes of previous interviews of defendant. He also admitted that antisocial personality
       disorder is insufficient in itself to support a sexually violent person determination and that
       defendant had not been diagnosed with paraphilia NOS until the examination pursuant to the
       sexually violent person petition. The parties rested and the circuit court found probable cause
       and continued defendant’s detention until trial.
¶ 10       On April 20, 2011, defendant propounded requests to admit on the State by service on
       both the Assistant Attorney General and Assistant State’s Attorney working on the case,
       stating:
                    “WARNING: If you fail to serve the response required by Rule 216 within 28
                days after you are served with this paper, all the facts set forth in the requests
                will be deemed true and all the documents described in the requests will be
                deemed genuine.
                    1. That the Respondent has not been diagnosed with any mental disorders while
                incarcerated in the Illinois Department of Corrections.
                    2. Mr. Carpenter has never had over a period of six months, recurrent, intense
                sexually arousing fantasies, sexual urges or behaviors involving sexual activity with
                persons who have not consented to such sexual activity.
                    3. Jermaine Carpenter, Respondent, has not engaged in sexual activity with
                non-consenting persons over a period of approximately twenty-six years.


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                    4. Paraphilia Not Otherwise Specified (NOS) with Mixed Features is not a
                congenital mental disorder.
                    5. Antisocial Personality Disorder is not a congenital mental disorder.” (Emphasis
                in original.)
¶ 11        The State did not respond to defendant’s requests to admit until October 18, 2011, well
       after the 28-day deadline provided by rule. The State denied each request to admit. On
       January 19, 2012, the State moved for an extension of time to respond to respondent’s
       request to admit pursuant to Illinois Supreme Court Rule 183.1 The Assistant Attorney
       General on the case asserted in the motion that he did not realize that defendant’s request to
       admit was contained within discovery requests sent to his office and overlooked the request
       until mid-October. Counsel stated that the failure to respond was neither willful nor
       intentional, but merely inadvertence. The State also provided explanations as to why it
       denied each of the five requests to admit and later argued that the broad policy goal of
       resolving cases on the merits over mere technicalities should be followed.
¶ 12        On March 28, 2012, the circuit court heard argument on the State’s motion for extension
       of time. The Assistant Attorney General argued that, through the division of labor on the case
       with the State’s Attorney’s office, he was responsible for discovery matters. He asserted that
       he simply missed the discovery request when reviewing documents and immediately
       prepared and filed the response when he discovered his error. After reviewing case law, he
       determined that filing the motion for extension of time would be “the cleaner course of
       action, more prudent course of action.”
¶ 13        In response, defendant sought to have the facts admitted based on the State’s extensive
       delay in responding. During argument, the court asked defense counsel if defendant was
       prejudiced by the delay in filing and when counsel objected to the State’s failure to respond.
       Defense counsel argued that it was not a defendant’s burden to raise that issue. The court
       stated that sanctions were one possible response to such a delay, but admitting facts known
       not to be true was problematic and improper. Citing to Vision Point of Sale, Inc. v. Haas, 226
       Ill. 2d 334, 353 (2007), the court stated that it may consider mistake, inadvertence, or
       attorney neglect in deciding whether good cause exists to allow untimely responses to
       questions to admit. Following the Vision Point court’s statement of the broad overall policy
       goal of resolving cases on the merits rather than technicalities, the circuit court granted the
       motion for extension of time.
¶ 14        Prior to trial, the court-appointed expert for defendant, Dr. Diane Lytton, completed an
       evaluation of defendant and tendered her report to defense counsel who disclosed the report
       to the State. The parties withdrew their requests for a jury trial and the matter proceeded to a
       bench trial. The State offered the testimony of Dr. John Arroyo and Dr. Steven Gaskell who
       both opined that defendant suffered from paraphilia NOS, nonconsenting persons, a mental
       disorder under the Act, as well as personality disorder with antisocial traits. Both experts
       testified that defendant was a sexually violent person and substantially probable to engage in
       future acts of sexual violence. The certified statement of conviction of defendant was entered
       into evidence and the State rested.


           1
            We note that the State’s motion for extension of time in the record is erroneously date-stamped as
       received by the clerk of the circuit court on January 19, 2011.

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¶ 15       Defendant presented Dr. Lytton who testified that she evaluated defendant after
       reviewing his corrections file and Department records and prepared a report of her
       evaluation. Dr. Lytton opined that defendant suffered from antisocial personality disorder
       and had problems with alcohol abuse. She did not believe that antisocial personality disorder
       was a mental disorder under the Act and did not predispose defendant to commit sexually
       violent acts. Dr. Lytton also testified that she did not diagnose defendant with paraphilia
       NOS nonconsent and further opined that such a diagnosis was not in the DSM-IV-TR and,
       therefore, did not exist. According to the risk assessment she conducted on defendant, Dr.
       Lytton concluded that defendant had a 17% risk of reoffending and it was not substantially
       probable that he would reoffend. The defense rested.
¶ 16       Following closing arguments, the circuit court entered judgment, finding defendant to be
       a sexually violent person under the Act. After a dispositional hearing, the circuit court
       concluded that defendant was not an appropriate candidate for release and ordered that
       defendant remain in institutional care until he is no longer sexually violent. On appeal,
       defendant argues that the circuit court committed reversible error in refusing to appoint an
       evaluator of defendant’s choice prior to the probable cause hearing and in excusing the
       State’s failure to timely respond to defendant’s requests to admit.

¶ 17                                          II. ANALYSIS
¶ 18                                 A. Appointment of an Evaluator
¶ 19       Defendant argues that the circuit court erred in denying his motion to appoint an
       evaluator on his behalf before the probable cause hearing. Defendant maintains that section
       25(e) of the Act provides a respondent to a petition by the State under the Act the right to be
       examined and evaluated by an expert on his behalf when he is subject to an evaluation by the
       State’s expert. Proceedings under the Act are civil in nature and, where the Act is silent, the
       Civil Practice Law (735 ILCS 5/2-101 et seq. (West 2010)), governs. People v. Coyne, 2014
       IL App (1st) 123105, ¶¶ 11-14. Accordingly, following the fundamental rule of statutory
       construction, we first consider the plain language of the statute to determine if it clearly and
       unambiguously provides the right asserted by defendant. Id. ¶ 13. We consider the words and
       phrases of a statutory enactment as a whole and do not rewrite or depart from the plain
       language provided by the General Assembly. In re Commitment of Weekly, 2011 IL App (1st)
       102276, ¶ 38.
¶ 20       Under the Act, a person within 90 days of discharge or entry into mandatory supervised
       release from a sentence imposed upon a conviction for a sexually violent offense may face
       commitment by petition of the State. In re Detention of Anders, 304 Ill. App. 3d 117, 120
       (1999). The petition must allege that the person was convicted of a sexually violent offense,
       has a mental disorder, and is dangerous to others because the person’s mental disorder
       creates a substantial probability that he will in engage in sexual violence. 725 ILCS
       207/15(b) (West 2010). After the petition is filed, the circuit court must hold a probable
       cause hearing within 72 hours, but may grant a continuance of no more than 7 days upon the
       motion of a respondent. 725 ILCS 207/30(b) (West 2010). If the circuit court determines
       there is probable cause to believe the person is a sexually violent person, the court must order
       the person transferred to a facility for an evaluation and a trial must be subsequently held to
       determine if the person is a sexually violent person subject to commitment. 725 ILCS


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       207/30(c) (West 2010). A trial is to follow within 120 days of the probable cause
       determination, unless the parties agree otherwise. 725 ILCS 207/35 (West 2010).
¶ 21        Section 25 of the Act sets forth the rights of persons subject to a petition to commit
       including service of the petition, notice of all hearings and, similar to rights of criminal
       defendants, the right to be represented by counsel, remain silent, present and cross-examine
       witnesses, and have a jury trial if requested. 725 ILCS 207/25(a)-(d) (West 2010). Of
       particular relevance to this case, section 25(e) of the Act provides in full:
               “Whenever the person who is the subject of the petition is required to submit to an
               examination under this Act, he or she may retain experts or professional persons to
               perform an examination. The State has the right to have the person evaluated by an
               expert chosen by the State. All examiners retained by or appointed for any party shall
               have reasonable access to the person for the purpose of the examination, as well as to
               the person’s past and present treatment records and patient health care records. If the
               person is indigent, the court shall, upon the person’s request, appoint a qualified and
               available expert or professional person to perform an examination. Upon the order of
               the circuit court, the county shall pay, as part of the costs of the action, the costs of a
               court-appointed expert or professional person to perform an examination and
               participate in the trial on behalf of an indigent person.” 725 ILCS 207/25(e) (West
               2010).
¶ 22        Defendant argues that the plain language of the first sentence of section 25(e) clearly
       states that when he was required to submit to an examination by Dr. Quackenbush, he was
       afforded the right to retain his own expert under section 25(e). The circuit court found
       defendant to be indigent and later appointed Dr. Lytton on defendant’s behalf when he was
       required to submit to the examination by Dr. Gaskell. Defendant contends that the plain
       language of the statute required the circuit court to grant his motion to appoint an evaluator
       “whenever” he was required to submit to an evaluation, including the pre-probable cause
       hearing examination by Dr. Quackenbush. Defendant further argues that he was prejudiced
       by this error because he was denied not only the evaluation, but also services of his requested
       first expert before the probable cause hearing.
¶ 23        We agree with the State that the circuit court properly determined that the General
       Assembly did not contemplate the appointment of an evaluator on behalf of a person subject
       to a petition until after the probable cause hearing and in preparation for a trial. Read in its
       entirety, the Act clearly supports this conclusion. We further agree that the case law
       concerning the issue of probable cause hearings under the Act also supports this conclusion.
¶ 24        While the wording of section 25(e) could be read to support defendant’s argument in
       isolation, the plain language of the section read with the remainder of the Act does not
       support this conclusion. First, the end of that section indicates that the appointed expert is to
       perform an examination and participate at trial. As highlighted by the circuit court, the
       72-hour timeframe included for holding a probable cause hearing does not support
       defendant’s assertion that this provision of section 25(e) applies to the probable cause
       hearing. Moreover, under the Act, if a probable cause determination is made, “the court shall
       order that the person be taken into custody if he or she is not in custody and shall order the
       person to be transferred within a reasonable time to an appropriate facility for an evaluation
       as to whether the person is a sexually violent person.” 725 ILCS 207/30(c) (West 2010).


                                                    -6-
¶ 25       Our supreme court considered the quantum of evidence necessary to support a probable
       cause determination under the Act and the scope of such a hearing in In re Detention of
       Hardin, 238 Ill. 2d 33 (2010). The court found that the provisions of section 35 of the Act
       applied to trials and not probable cause hearings and adopted the standards followed by the
       Wisconsin Supreme Court under a similar statutory framework. Id. at 47-48, following State
       v. Watson, 595 N.W.2d 403 (Wis. 1999). The court noted that “the intended purpose of a
       probable cause hearing in a SVP proceeding” is “to be preliminary in nature, a ‘summary
       proceeding to determine essential or basic facts as to probability’ and ‘is “concerned with the
       practical and nontechnical probabilities of everyday life” ’ while remaining cognizant of the
       respondent’s liberty rights.” Id. at 52 (quoting Watson, 595 N.W.2d at 420, quoting State v.
       Dunn, 359 N.W.2d 151, 154 (Wis. 1984)). Therefore, the probable cause hearing is not a
       forum to choose between conflicting facts or inferences and the same requirements and
       protections provided at a full trial are not involved.
¶ 26       Reading the Act in its entirety, and considering the purpose and scope of a probable cause
       hearing, it is the required examination of section 30, which follows the probable cause
       hearing, that the requirement of appointing a defense expert evaluator under section 25(e)
       applies. This interpretation is supported by the logic of the speedy hearing requirement and
       subsequent requirements for trials pursuant to the Act, as well as the general scope of
       probable cause hearings under Illinois law. Accordingly, the circuit court did not err in
       denying defendant’s request to appoint an evaluator before the probable cause hearing.

¶ 27                              B. Motion to Extend Time to Respond
¶ 28        Defendant also argues that the trial court erred in granting the State’s motion to extend
       time to respond to requests to admit pursuant to Illinois Supreme Court Rule 183, which
       provides, in full: “The court, for good cause shown on motion after notice to the opposite
       party, may extend the time for filing any pleading or the doing of any act which is required
       by the rules to be done within a limited period, either before or after the expiration of the
       time.” Ill. S. Ct. R. 183. Under the plain language of the Rule, and consistent with case law,
       circuit courts are vested with discretion over the course and conduct of pretrial discovery.
       Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 344-45 (2007). Accordingly, we consider
       whether the circuit court abused its discretion in granting the State’s motion to extend time to
       answer defendant’s requests to admit.
¶ 29        The Vision Point court considered the scope of inquiry a circuit court may engage in
       when determining whether good cause exists to support a party’s motion for extension
       pursuant to Rule 183 to respond to a request to admit. Id. at 347. The court stated that a
       circuit court may consider all of the circumstances of a case in making the good cause
       determination. Id. The court noted that the movant bears the burden of sustaining the grounds
       of the motion and that mistake, inadvertence, or attorney neglect on the part of the movant
       could be the basis of a good-cause argument. Id. at 350-51.
¶ 30        Defendant argues that the circuit court improperly relied upon Sims v. City of Alton, 172
       Ill. App. 3d 694 (1988) and People v. Strasbaugh, 194 Ill. App. 3d 1012 (1990), in granting
       the State’s motion because those cases have been partially overruled and, to the extent they
       are still good law, are distinguishable. However, as the State argues, the circuit court
       addressed these cases in its consideration of defendant’s motion to deem facts admitted and


                                                  -7-
       grounded its holding on the State’s motion on the good cause determination as provided for
       in Vision Point.
¶ 31       We cannot say that the circuit court abused its discretion in making this determination.
       The Assistant Attorney General humbly took responsibility for his inadvertence and error in
       not timely responding to the motion. There is no evidence of wrongdoing or prejudice and
       counsel demonstrated this to the court. Following the policy repeated in Vision Point of
       deciding the matters before the court on the merits, the circuit court accepted the State’s
       argument and found good cause that is clearly supported under the ruling in Vision Point.
       Accordingly, we affirm the judgment of the trial court.

¶ 32                                    III. CONCLUSION
¶ 33      Accordingly, we affirm the judgment of the Circuit Court of Cook County.

¶ 34      Affirmed.




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