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                                      Appellate Court                            Date: 2018.01.22
                                                                                 12:54:07 -06'00'




                      In re Commitment of Smego, 2017 IL App (2d) 160335



Appellate Court           In re COMMITMENT OF RICHARD SMEGO (The People of the
Caption                   State of Illinois, Petitioner-Appellee, v. Richard Smego, Respondent-
                          Appellant).



District & No.            Second District
                          Docket No. 2-16-0335



Rule 23 order filed       May 12, 2017
Motion to publish
allowed                   November 2, 2017
Opinion filed             November 2, 2017



Decision Under            Appeal from the Circuit Court of Lake County, No. 05-MR-1464; the
Review                    Hon. Victoria A. Rossetti, Judge, presiding.



Judgment                  Affirmed.


Counsel on                Kevin P. Malia, of Malia & Rinehart, P.C., of Waukegan, for
Appeal                    appellant.

                          Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                          Solicitor General, and Michael M. Glick and Evan B. Elsner, Assistant
                          Attorneys General, of counsel), for the People.
     Panel                    JUSTICE McLAREN delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Hudson and Justice Spence concurred in the
                              judgment and opinion.


                                               OPINION

¶1         In 2009, respondent, Richard Smego, was adjudicated a sexually violent person (SVP)
       under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West
       2008)) and committed to the custody of the Department of Human Services (DHS). He now
       appeals a judgment denying, without an evidentiary hearing, his petition for conditional
       release (see 725 ILCS 207/60 (West 2014)). We affirm.
¶2         In 2005, the State petitioned to have respondent committed as an SVP, based on his 1995
       convictions of aggravated criminal sexual abuse (720 ILCS 5/12-16(a)(1) (West 1994)) and
       other offenses. The victim was a 14-year-old male. The court found probable cause to detain
       respondent, and he was committed to the DHS. On June 17, 2009, the parties stipulated that
       Drs. Joseph Proctor and Raymond Wood had evaluated respondent, and Proctor would testify
       that respondent had “Paraphilia Not Otherwise Specified [(NOS)], Sexually Attracted to
       Both”; Wood would testify that respondent had “Paraphilia Not Otherwise Specified,
       Sexually Attracted to Non-Consenting Adolescent Males, Nonexclusive [T]ype”; and both
       would testify that the respondent’s mental disorder made it substantially probable that he
       would engage in future acts of sexual violence (see 725 ILCS 207/5(f) (West 2008)). On that
       day, by an agreed order, the trial court found that respondent was an SVP and committed him
       to the DHS until further order.
¶3         Respondent was reevaluated periodically (see 725 ILCS 207/55(b) (West 2010)), and
       each time, the trial court found no probable cause to hold a hearing on whether he was still an
       SVP in need of treatment on a secure basis. On January 15, 2013, the State moved for a
       finding of no probable cause, submitting the report of Dr. Kimberly Weitl. On January 22,
       2013, the trial court granted the State’s motion and continued respondent’s confinement.
¶4         On June 26, 2014, the State moved for a finding of no probable cause, and respondent
       petitioned for conditional release. The State’s motion attached a report by Dr. Steven
       Gaskell. Respondent requested that the court appoint Dr. Luis Rosell as his expert. Rosell
       had examined respondent in 2012.
¶5         Rosell’s report was delayed. On June 25, 2015, the State again moved for a finding of no
       probable cause; its motion attached a report by Gaskell, dated June 4, 2015. We summarize
       the five pertinent reports, in chronological order.
¶6         In Weitl’s report, dated December 8, 2012, and based on an evaluation that she conducted
       on October 30, 2012, and December 8, 2012, she stated as follows. At one point, respondent
       had said that he had sexually abused between 10 and 30 adolescents, ages 13 to 17, for which
       no charges had been brought. Most of the victims were male. Respondent withdrew from
       treatment in 2010 but started over in January 2012. He was still in the second phase of the
       five-phase program. Respondent had scored eight on the Static-99; this placed him in the
       high-risk category for recidivism. He had also scored in the high-risk range on the Minnesota


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       Sex Offender Screening Tool-Revised. Additionally, he had several risk factors for which
       these tests did not account, including having been emotionally abused as a child, deviant
       sexual interests, intimacy deficits, and preoccupation with sex. His limited treatment
       experience, age (then 46), and medical condition were not protective factors. Weitl
       recommended continued confinement, given the substantial risk that respondent would
       reoffend.
¶7         In Rosell’s first report, dated December 12, 2012, he stated as follows. He evaluated
       respondent on August 17, 2012, and September 6, 2012. In 1994, respondent abducted a
       14-year-old male at knifepoint, drove him to a warehouse, and sexually assaulted him. In
       2005, respondent drove to Las Vegas with three other people and was accused of sexually
       assaulting a 17-year-old male; an investigation turned up inconsistencies in the accusation,
       and no charges were brought. Respondent told Rosell that he had previously withdrawn from
       treatment after being sexually assaulted by a member of his treatment group but then was
       forced to remain in the group.
¶8         Rosell noted that Proctor, Wood, and subsequent evaluators had diagnosed respondent
       with paraphilia, not otherwise specified. Rosell stated, however, that “[t]he clinical diagnosis
       of mental disorders in the [American Psychiatric Association’s diagnostic manual (DSM)]
       does not exist for legal purposes. The legal definition involves impairments and the issue of
       emotional or volitional capacity. These areas are not covered in the DSM nomenclature.”
       Further, “whether Paraphilia, NOS, sexually attracted to nonconsenting persons is a
       legitimate diagnosis is controversial in the field.”
¶9         Rosell also stated that risk-prediction tools such as the Static-99 had proven to be highly
       imprecise. According to Rosell, respondent’s score of three on the Static-99 placed him in
       “the low-moderate range relative to other sex offenders.” Rosell noted that Wood and Weitl
       had scored respondent higher, but he explained, “This was based on considering his 2005
       violation as a sexual offense even though he was never charged with one.” Respondent’s
       score on the Static-2002R was four, placing him in the low-moderate range for likelihood of
       reoffending. Finally, his score of two on the MATS-1, a newer actuarial tool, placed him in
       the moderate range.
¶ 10       Rosell recommended conditional release for respondent. He believed, to a reasonable
       degree of psychological certainty, that because respondent was “lower risk compared to the
       majority of individuals who are currently [SVPs, respondent] could be supervised, managed
       and treated in the community.”
¶ 11       We turn to Gaskell’s 2014 report. It summarized respondent’s criminal history. In
       addition to the 1994 offenses, it noted that, in November 1994, the son of respondent’s
       girlfriend reported that respondent had sexually abused him in 1993 and might have molested
       the girlfriend’s other son. In September 2005, respondent was arrested for violating his
       parole by going to Las Vegas. He denied having sex with anyone during his unauthorized
       absence. He did admit to Gaskell that, starting in 1980, he had sexually assaulted a total of 10
       males.
¶ 12       Gaskell reported that respondent scored six on the Static-99R, placing him in “the High
       Risk category for being charged [with] or convicted of another sexual offense.” He scored six
       on the Static-2002R, placing him in “the Moderate Risk Category.” Also, respondent had
       several empirical risk factors that were not measured by the foregoing risk-assessment tools:


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       deviant sexual interests, impulsiveness or recklessness, noncompliance with supervision,
       early onset of sex offending, and intimate relationship conflicts.
¶ 13       Gaskell noted that, during the past year, respondent had reentered the second phase of the
       five-phase treatment program. He was working on his sexual-offense timeline and “ha[d] yet
       to accept full responsibility for his sexual offense or to work on his sexual assault cycle.” He
       had not yet developed a relapse-prevention plan. According to Gaskell, respondent’s progress
       in treatment was not “sufficient to reduce his substantial risk for sexually violent
       re-offending.” Gaskell opined that it was substantially probable that respondent would
       engage in acts of sexual violence in the future. He recommended that respondent remain
       committed in the DHS facility.
¶ 14       Gaskell’s second report, filed June 4, 2015, and based on an evaluation conducted on
       May 5, 2015, stated in pertinent part as follows. Respondent’s treatment-plan review of July
       31, 2014, showed that he had actively participated in treatment. He had made progress in the
       second phase of treatment and had told Gaskell that he had completed his sexual-offense
       timeline and anticipated moving into the third phase of treatment in the coming year. He said
       that he had no desire to reoffend.
¶ 15       Gaskell opined that respondent met the DSM criteria for “Other Specified Paraphilic
       Disorder, Sexually Attracted to Nonconsenting Males, Nonexclusive Type.” Respondent had
       scored six on the Static-99R, placing him in the high-risk category for being charged with or
       convicted of a sexual offense. He had scored six on the Static-2002R, placing him in the
       moderate-risk category. Moreover, he had the other empirical risk factors noted in the 2014
       report. His age (then 48) had not been consistently found to be associated with decreased risk
       of recidivism.
¶ 16       Gaskell opined that respondent had not made sufficient progress in treatment to be placed
       on conditional release. Although he had participated in treatment over the preceding year, he
       had not accepted full responsibility for his offenses, completed his sexual-assault cycle, or
       developed a relapse-prevention plan. In short, he had not made “sufficient progress to lower
       his risk.” Gaskell opined that, to a reasonable degree of psychological certainty, it was
       substantially probable that respondent would engage in sexual violence in the future.
¶ 17       Rosell’s second report was dated September 15, 2015, and based on an evaluation
       conducted June 24, 2015. Under the heading “Current Evaluation,” it noted the following.
       Respondent reported that he had few sexual thoughts, none deviant, and that his sexual desire
       was slight. He wanted to reside in the Chicago or Waukegan area and had been offered work
       as a paralegal with a Chicago law firm.
¶ 18       Under “Previous Diagnoses,” Rosell reiterated his 2012 statement that the clinical
       diagnosis of a mental disorder in the DSM “does not exist for legal purposes,” as the legal
       definition involves impairments and volitional capacity. Also, the diagnoses that Gaskell and
       other examiners had made of respondent had not been accepted in the DSM. Under
       “Assessing Risk,” Rosell reiterated his criticisms of predictive tools and stated, as he had in
       his 2012 report, that respondent actually scored three on the Static-99R and that this placed
       him in “the low-moderate range relative to other sex offenders.” Also, on the Static-2002R,
       respondent scored four, placing him in the moderate range. On the MATS-1, respondent
       scored two, placing him in the “medium range.”
¶ 19       Rosell’s report concluded as follows:


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                “Under typical but not all circumstances, the concept of sufficient progress is
                interpreted by evaluators as representing progress made though treatment efforts by
                the respondent. This concept is also viewed as representing the amount necessary to
                move the person’s risk level from the time of commitment to a level below
                substantially probable. Therefore, as I opined previously, [respondent] has made
                sufficient progress for the court to consider that he be placed on conditional release.
                The protective factors [include] treatment understanding, one known victim, time in
                the community without reoffending, over twenty years since his last sexual offense,
                low-moderate risk on three actuarial instruments and an appropriate release plan. In
                my opinion, I believe to a reasonable degree of psychological certainty that because
                he is lower risk compared to the majority of the individuals who are currently
                sexually violent persons, [respondent] could be supervised, managed and treated in
                the community.”
¶ 20        On April 6, 2016, after hearing arguments, the trial court granted the State’s motion for a
       finding of no probable cause and denied respondent’s petition for conditional release. 1 He
       timely appealed.
¶ 21        On appeal, respondent contends that he met the threshold for obtaining an evidentiary
       hearing on his petition. The governing provision is section 60(c) of the Act:
                “The court shall set a probable cause hearing as soon as practical after the examiners’
                reports are filed. The probable cause hearing shall consist of a review of the
                examining evaluators’ reports and arguments on behalf of the parties. If the court
                finds probable cause to believe the person has made sufficient progress in treatment
                to the point where he or she is no longer substantially probable to engage in acts of
                sexual violence if on conditional release, the court shall set a hearing on the issue.”
                725 ILCS 207/60(c) (West 2014).
¶ 22        Respondent notes that, although Gaskell recommended denying conditional release,
       Rosell recommended granting it. He argues that the trial court was not allowed to credit one
       expert opinion over the other but was limited to deciding whether respondent was entitled to
       an evidentiary hearing at which the ultimate factual and legal issues could be decided. He
       reasons that there was sufficient evidence at the preliminary stage to warrant a hearing.
¶ 23        Whether respondent met the probable-cause threshold is an issue of law, which we
       review de novo. In re Detention of Stanbridge, 2012 IL 112337, ¶ 56. In a probable-cause
       hearing on a petition for conditional release, a respondent must only “ ‘ “establish a plausible
       account on each of the required elements to assure the court that there is a substantial basis
       for the petition.” ’ ” (Emphasis in original.) Id. ¶ 58 (quoting In re Detention of Hardin, 238
       Ill. 2d 33, 48 (2010), quoting State v. Watson, 595 N.W.2d 403, 420 (Wis. 1999)). The court
       must consider the reasonable inferences that can be drawn from the evidence, but it must not
       choose between conflicting facts or inferences or engage in a full and independent evaluation
       of an expert’s credibility and methodology. Id.


           1
            In explaining her decision, the trial judge mistakenly cited the statutory requirements for discharge
       (see 725 ILCS 207/65 (West 2014)), not for conditional release. The error is of no consequence, as our
       review is de novo, and we are concerned with the correctness of the judgment and not the reasoning
       given in support.

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¶ 24        It is important to note, however, that in a postcommitment hearing on a petition for
       discharge or conditional release, the validity of the original commitment order is not at issue.
       In setting out the burden imposed on a petitioner who seeks an outright discharge on the basis
       that he is no longer an SVP (see 725 ILCS 207/65 (West 2014)), the Stanbridge court noted
       that, in that situation, a court has already found that the petitioner is an SVP. See Stanbridge,
       2012 IL 112337, ¶ 72. Thus, even at this preliminary stage, the petitioner must present some
       plausible evidence of a change in the circumstances that led to the original finding. Id. The
       change in circumstances can be one “in the committed person, *** in the professional
       knowledge and methods used to evaluate a person’s mental disorder or risk of reoffending, or
       even *** in the legal definitions of a mental disorder or a sexually violent person, such that a
       trier of fact could conclude that the person no longer meets the requisite elements.” Id.
¶ 25        On a petition for conditional release, there is no more basis to challenge the court’s
       original finding that the petitioner was an SVP who must be committed to the custody of the
       DHS and for whom conditional release is not appropriate (see 725 ILCS 207/40(b)(2), (b)(3)
       (West 2014)). Thus, even at the preliminary probable-cause stage, the propriety of the
       original finding is not at issue, and the petitioner cannot show the required change in
       circumstances merely by casting doubt on the original commitment order. Because the
       petitioner has not yet obtained conditional release, and has recently been found not to merit
       it, he must allege and eventually prove changed circumstances that support the requested
       relief. And it follows that, at the probable-cause hearing, the plausible evidence that is
       required is of changed circumstances such that “ ‘it is not substantially probable that the
       person will engage in acts of sexual violence if on *** conditional release.’ ” Stanbridge,
       2012 IL 112337, ¶ 54 (quoting 725 ILCS 207/60(c) (West 2008)).
¶ 26        We turn to respondent’s argument on appeal. He contends that Rosell’s report, and other
       evidence before the trial court, provided the needed quantum of proof for his petition to
       survive initial scrutiny and move to an evidentiary hearing. Respondent notes that, since the
       previous no-probable-cause finding, he completed more of his treatment, although, as of the
       court’s ruling, he was still in the second phase of the five-phase program. Respondent also
       notes that Rosell gave him relatively favorable scores on the risk-assessment tools and
       opined that he would be suitable for conditional release.
¶ 27        We do not find respondent’s arguments persuasive. Of course, we recognize that, in the
       period between the most recent no-probable-cause finding and the trial court’s ruling,
       respondent did complete some additional therapy. That does little to support a finding that he
       had made sufficient “progress in treatment” (emphasis added) (725 ILCS 207/60(c) (West
       2014)) such that it was no longer substantially probable that he would engage in acts of
       sexual violence were he released. Moreover, that respondent was still in the second stage of a
       five-stage program that has been deemed necessary and appropriate to reduce this probability
       cuts strongly the other way.
¶ 28        Rosell’s interpretation of the actuarial risk-assessment tests was also of little value toward
       resolving the question of whether respondent had made sufficient progress in therapy since
       his previous periodic reexamination. In his 2015 report, Rosell gave respondent more
       favorable scores than had Weitl in 2012 or Gaskell in either 2014 or 2015. But this was
       because of Rosell’s disagreement with their methodology. There was little difference
       between Rosell’s assessment of respondent in 2012 and his assessment in 2015. Thus,
       Rosell’s differences with Weitl and Gaskell went to the validity of the earlier adjudications of

                                                    -6-
       respondent’s risk level and had no independent significance beyond calling into question
       judicial decisions that had been settled when respondent filed his petition for conditional
       release. And Rosell’s conclusion that respondent is less likely to reoffend than other SVPs
       was likewise based on his different methodology, not on any progress in therapy that
       respondent had made since his last reexamination.
¶ 29       Respondent also contends that his age was a protective factor to which the trial court
       should have given more weight. However, respondent does not suggest how his age alone,
       which Weitl and Gaskell rejected as a protective factor, would create probable cause to
       believe that it was no longer substantially probable that he would reoffend if released.
¶ 30       In sum, although the probable-cause threshold is not high, neither is it minimal. The trial
       court did not err in finding that respondent had not satisfied it and in denying him an
       evidentiary hearing on his petition for conditional release.
¶ 31       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 32      Affirmed.




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