                               Illinois Official Reports

                                      Appellate Court



                          People v. Olsson, 2014 IL App (2d) 131217



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  PAUL OLSSON, Defendant-Appellant.–THE PEOPLE OF THE
                         STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL OLSSON,
                         Defendant-Appellant.



District & No.           Second District
                         Docket Nos. 2-13-1217, 2-13-1271 cons.


Filed                    June 30, 2014



Held                       Orders entered by the trial court remanding defendant, who was
(Note: This syllabus charged with sex offenses involving children and found unfit to stand
constitutes no part of the trial and “not not guilty,” to the Department of Human Services
opinion of the court but pursuant to hearings conducted under section 104-25(g)(2)(i) of the
has been prepared by the Code of Criminal Procedure were affirmed over defendant’s
Reporter of Decisions contentions that his rights to procedural due process were violated by
for the convenience of the State’s failure to present a treatment plan report that complied with
the reader.)               the statutory requirements, since the treatment plan report addressed
                           the statutory factors, it stated that defendant’s unwillingness to
                           cooperate prevented the State from providing a plan, and under the
                           circumstances, the requirements of the statute were satisfied.




Decision Under           Appeal from the Circuit Court of Lake County, Nos. 05-CF-3046,
Review                   05-CF-3629; the Hon. Christopher R. Stride, Judge, presiding.



Judgment                 Affirmed.
     Counsel on               Gillian E. Gosch, of Gosch Law Firm, P.C., of Waukegan, for
     Appeal                   appellant.

                              Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.
                              Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
                              Prosecutor’s Office, of counsel), for the People.




     Panel                    JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                              Justices Hutchinson and Birkett concurred in the judgment and
                              opinion.




                                               OPINION

¶1        Defendant, Paul Olsson, appeals from orders entered by the circuit court of Lake County
       on October 16, 2013, and November 7, 2013, remanding him to the Department of Human
       Services (Department) after hearings pursuant to section 104-25(g)(2)(i) of the Code of
       Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2)(i) (West 2012)). We affirm.

¶2                                           I. BACKGROUND
¶3         In 2005, defendant was charged with sex offenses involving children. In October 2007,
       he was found unfit to stand trial. In December 2009, at a discharge hearing, the trial court
       found defendant “not not guilty” of several of the charged offenses. The court ordered
       defendant’s treatment extended to October 12, 2010. In September 2010, the State filed a
       motion to commit defendant to the Department pursuant to section 104-25(g)(2) of the Code,
       and, after a hearing, the trial court committed defendant to the Department. While defendant
       is committed under section 104-25(g)(2), he is entitled to a review of his status and treatment
       needs every 180 days. 725 ILCS 5/104-25(g)(2)(i) (West 2012). Pursuant to section
       104-25(g)(2), every 90 days the Department must file with the trial court a treatment plan
       report in which the Department includes, inter alia, (1) an assessment of the defendant’s
       treatment needs; (2) a description of the services recommended for treatment; (3) the goals of
       each type of element of service; (4) an anticipated timetable for the accomplishment of the
       goals; and (5) a designation of the qualified professional responsible for the implementation
       of the plan. 725 ILCS 5/104-25(g)(2) (West 2012); People v. Olsson, 2012 IL App (2d)
       110856, ¶ 14.
¶4         On September 9, 2013, pursuant to our mandate (People v. Olsson, 2013 IL App (2d)
       121036-U), the trial court conducted a section 104-25(g)(2)(i) hearing. Defendant was not
       present. According to the treating psychiatrist’s affidavit, defendant refused to attend the
       hearing after being informed of the court date. Over defense counsel’s objection, the trial
       court ruled that defendant validly waived his right to be present.

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¶5        Defense counsel then objected to proceeding with the hearing, because the Department
     had not filed a treatment plan report in compliance with section 104-25(g)(2) of the Code.
     After reviewing the treatment plan report dated June 12, 2012, as revised on August 6, 2013,
     the court overruled defendant’s objection, finding that the report was prepared in accordance
     with section 104-25(g)(2).
¶6        Dr. Richard Malis, defendant’s treating psychiatrist, was the only witness who testified at
     the September 9, 2013, hearing. According to Dr. Malis, defendant was mentally ill in that he
     suffered from pedophilia. Dr. Malis opined that defendant required hospitalization for mental
     health treatment because he continued to present a danger to others. Dr. Malis testified that
     defendant’s refusal of treatment, his young age when he first offended, and the fact that his
     victims were male increased the risk of recidivism. On cross-examination, Dr. Malis said that
     he used the risk factors identified in formal risk assessments, but he admitted that he had not
     personally conducted a formal risk assessment of defendant. He also testified that, because
     defendant refused treatment, he had received no meaningful treatment or assessment beyond
     a review of the offense file. At the conclusion of the September 9, 2013, hearing, the trial
     court orally ruled that defendant presented a serious threat to public safety and remanded him
     to the Department for further treatment. However, the trial court’s written order was not
     entered until October 16, 2013. Defendant timely appealed (No. 2-13-1217).
¶7        On November 7, 2013, the trial court conducted another hearing pursuant to section
     104-25(g)(2)(i). The record on appeal includes no treatment plan report relating to the
     November 7, 2013, hearing. However, the State asserted at the hearing that the Department
     had filed a treatment plan report on September 11, 2013–subsequent to the September 9
     hearing–and one dated October 31, 2013. Asked if he had received those reports, counsel for
     defendant replied: “I believe I have, your Honor.”
¶8        Defendant was not present at the hearing, and the trial court found, over defense
     counsel’s objection, that defendant waived his right to be present. Dr. Malis once again was
     the only witness to testify at the hearing, and his testimony was substantially similar to his
     testimony at the September 9, 2013, hearing. During cross-examination, he stated that
     defendant continued to refuse most of the recommended treatment and that the treatment that
     defendant agreed to receive was very peripheral to the diagnosis of pedophilia. He added that
     defendant had recently made progress regarding his fitness to stand trial, because he had been
     cooperating with defense counsel. Dr. Malis explained that on October 15, 2013, defendant
     met with defense counsel about filing an appeal. Additionally, Dr. Malis stated that on
     October 16 or 17, defendant sent correspondence to defense counsel requesting assistance in
     filing a motion to attend a funeral. Dr. Malis viewed these acts as showing an ability to
     cooperate with counsel, and he said that his opinion would not change if defense counsel
     were to represent that he initiated the meeting or that defendant’s first statement to him had
     been that he was not defendant’s attorney.
¶9        At the conclusion of testimony and arguments, the trial court noted that it considered the
     testimony of Dr. Malis as well as the October 31, 2013, treatment plan report and stated:
     “that report will be made part of this record and treated the same way as all fitness reports are
     treated with respect to the file.” The court then described the contents of the report,
     concluding that it complied with the statute. The court found that defendant presented a
     serious threat to public safety and again remanded him to the Department for further
     treatment. Following the court’s ruling, defense counsel represented for the record that he

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       had received a “legally threatening and demanding” communication from defendant and that
       defendant did not cooperate with him or discuss the case with him in any meaningful or
       substantive way. The court entered a written order the same day, and defendant timely
       appealed (No. 2-13-1271).

¶ 10                                           II. ANALYSIS
¶ 11        Defendant first contends that the trial court violated his procedural due process rights by
       failing to require the State to present a treatment plan report and/or testimony complying with
       the requirements of section 104-25(g)(2) at the hearing on November 7, 2013. We review
       de novo the issue of whether defendant’s procedural due process rights were violated. In re
       Shirley M., 368 Ill. App. 3d 1187, 1190 (2006).
¶ 12        The record on appeal contains the August 6, 2013, treatment plan report, but not the
       October 31, 2013, report. Defendant declares in his brief that “the treatment plan reviewed by
       the court on November 7, 2013, was not filed,” yet he acknowledges that the State
       represented on the record that a plan had been filed on October 31, 2013. Defendant’s
       appellate counsel asserts that she was unable to locate the October 31, 2013, report, but she
       has not provided this court with an affidavit or any other information detailing her efforts to
       obtain the document.
¶ 13        Section 104-19 of the Code provides:
                “Any report filed of record with the court concerning diagnosis, treatment or
                treatment plans made pursuant to this Article shall not be placed in the defendant’s
                court record but shall be maintained separately by the clerk of the court and shall be
                available only to the court or an appellate court, the State and the defense, a facility or
                program which is providing treatment to the defendant pursuant to an order of the
                court or such other persons as the court may direct.” 725 ILCS 5/104-19 (West 2012).
       Although treatment plan reports must be filed with the trial court (and copies forwarded to
       the clerk of the court, the State’s Attorney, and the defendant’s attorney) (725 ILCS
       5/104-25(g)(2) (West 2012)), section 104-19 requires the clerk of the court to maintain the
       reports separately from the defendant’s court record (725 ILCS 5/104-19 (West 2012)). The
       statute does not specify the manner in which the clerk of the court should separate the
       reports–i.e., by impounding the documents or by some other means. Indeed, there appears to
       be some inconsistency as to how the reports have been handled in the present case.
       Moreover, some of the reports were included in the record on appeal, in sealed envelopes as
       impounded documents, while other reports, apparently properly filed by the Department,
       were not. In any event, when appealing from an order following a section 104-25(g)(2)(i)
       hearing, the appellant must ensure that the appellate court receives a complete record,
       including any treatment plan reports. If a treatment plan report at issue is not included in the
       record as an impounded document, the appellant should move to supplement the record to
       include it, in accordance with Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006).
¶ 14        Because defendant has failed to present a complete record on appeal in compliance with
       Illinois Supreme Court Rule 321 (eff. Feb. 1, 1994), having not included the October 31,
       2013, treatment plan report, we must presume that the trial court’s ruling on November 7,
       2013, was in conformity with the law and had a sufficient factual basis. See Foutch v.
       O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (appellant bears the burden to “present a sufficiently


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       complete record of the proceedings at trial to support a claim of error, and in the absence of
       such a record on appeal, it will be presumed that the order entered by the trial court was in
       conformity with law and had a sufficient factual basis”). Section 104-25(g)(2) of the Code
       requires the Department to file its treatment plan reports with the court, and it appears from
       the transcript of the November 7, 2013, hearing that the October 31, 2013, report was filed
       with the court. The State asserted on the record that the treatment plan had been filed, and
       neither defense counsel nor the trial court cast doubt on the State’s representation. Yet, it is
       defendant’s burden to present a sufficient record, and because the transcript of the November
       7, 2013, hearing indicates that the report was filed and it is not included in the record on
       appeal, we must resolve the incompleteness of the record against defendant. See Foutch, 99
       Ill. 2d at 391-92.
¶ 15        Additionally, although in the “issues presented for review” section of his brief defendant
       states that the trial court erred in failing to require the State to present a proper treatment plan
       report and/or testimony complying with section 104-25(g)(2) at the September 9, 2013,
       hearing, he does not actually argue that the August 6, 2013, treatment plan report, which the
       trial court considered at the hearing, was deficient. Accordingly, defendant has forfeited any
       argument as to the sufficiency of that treatment plan report. See Ill. S. Ct. R. 341(h)(7) (eff.
       Feb. 6, 2013) (the appellant’s brief must include “[a]rgument, which shall contain the
       contentions of the appellant and the reasons therefor, with citation of the authorities and the
       pages of the record relied on”); Cundiff v. Patel, 2012 IL App (4th) 120031, ¶ 22 (“[A]
       party’s failure to argue a point in his brief will result in forfeiture of the issue on appeal.”).
       Nevertheless, forfeiture aside, we find that the August 6, 2013, treatment plan report
       comported with the statutory requirements. In People v. Olsson, 2012 IL App (2d) 110856,
       ¶ 16, we said that if a defendant’s refusal to cooperate frustrates the Department’s efforts to
       develop a treatment program, it is incumbent upon the author of the treatment plan report to
       say so explicitly, rather than leave the court to guess whether proper efforts have been made
       to care for the defendant. The record shows that the Department filed a treatment plan report
       that addressed all of the statutory factors. The report clearly stated that the Department was
       not able to provide a plan because defendant was unwilling to cooperate. Thus, under Olsson,
       the August 6, 2013, treatment plan report complied with the statute.
¶ 16        Defendant next argues that his right to equal protection under the law was violated
       because, absent the finding of unfitness, his commitment would have to have been pursuant
       to either the Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/1 et seq.
       (West 2012)) or the Mental Health and Developmental Disabilities Code (Mental Health
       Code) (405 ILCS 5/1-100 et seq. (West 2012)), which, according to defendant, would have
       entitled him to “substantially greater rights.” Without citation of any authority, defendant
       asserts that “[t]he commitment procedure under the [Mental Health Code] is more stringent
       and there are more lenient standards for release” than under section 104-25(g)(2) of the
       Code. Defendant has forfeited his equal protection argument by failing to cite appropriate
       authority and by failing to articulate any rights under the Mental Health Code or the SVPCA
       that he is not accorded under section 104-25(g)(2) of the Code. Ill. S. Ct. R. 341(h)(7) (eff.
       Feb. 6, 2013). “[A]n appellant must present clearly defined issues to the court, supported by
       relevant authority: this court is ‘not simply a repository in which appellants may dump the
       burden of argument and research.’ ” People v. Robinson, 2013 IL App (2d) 120087, ¶ 15
       (quoting People v. Chatman, 357 Ill. App. 3d 695, 703 (2005)).


                                                    -5-
¶ 17        Forfeiture notwithstanding, defendant’s argument is unavailing. Defendant appears to
       take exception to the fact that the Department has not used risk assessment instruments such
       as the Static-99-R or the Minnesota Sex Offender Screening Tool-Revised, which
       purportedly do not require the defendant’s cooperation. However, defendant cites no
       authority–and we are aware of none–holding that, in the absence of a formal assessment, the
       trial court must discount an expert opinion on a sex offender’s risk of recidivism. Moreover,
       defendant cites only one case in support of his equal protection argument: Jackson v. Indiana,
       406 U.S. 715 (1972). As the State points out, Jackson does not support an equal protection
       challenge against section 104-25(g)(2). See People v. Barichello, 305 Ill. App. 3d 13, 24
       (1999); People v. Polachek, 128 Ill. App. 3d 200, 205 (1984).
¶ 18        Finally, defendant expresses concern that he could be committed to the Department under
       section 104-25(g)(2) until the previously set termination date and that then, prior to his
       release, the State could file a petition pursuant to the SVPCA. However, as the State
       observes, defendant is not subject to the SVPCA, because he has not been convicted of any
       criminal offense. People v. Olsson, 2011 IL App (2d) 091351, ¶ 4 (“If the evidence presented
       at a discharge hearing is sufficient to establish the defendant’s guilt, no conviction results;
       instead, the defendant is found ‘not not guilty.’ ”); see also 725 ILCS 207/5(f) (West 2012)
       (defining “sexually violent person” as “a person who has been convicted of a sexually violent
       offense, has been adjudicated delinquent for a sexually violent offense, or has been found not
       guilty of a sexually violent offense by reason of insanity 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”).

¶ 19                                     III. CONCLUSION
¶ 20      The judgments of the circuit court of Lake County are affirmed.

¶ 21      Affirmed.




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