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                                 Appellate Court                           Date: 2018.06.12
                                                                           14:00:07 -05'00'




                  In re Commitment of Bice, 2018 IL App (2d) 170148



Appellate Court      In re COMMITMENT OF JAMES BICE (The People of the State of
Caption              Illinois, Petitioner-Appellee, v. James Bice, Respondent-Appellant).



District & No.       Second District
                     Docket No. 2-17-0148



Filed                March 13, 2018



Decision Under       Appeal from the Circuit Court of Lake County, No. 00-MR-1076; the
Review               Hon. Christopher R. Stride, Judge, presiding.



Judgment             Affirmed.


Counsel on           John Radosevich, of Waukegan, for appellant.
Appeal
                     Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                     Solicitor General, and Michael M. Glick and Daniel B. Lewin,
                     Assistant Attorneys General, of counsel), for the People.



Panel                JUSTICE JORGENSEN delivered the judgment of the court, with
                     opinion.
                     Justices Schostok and Spence concurred in the judgment and opinion.
                                             OPINION

¶1       In 2010, respondent, James Bice, was adjudicated a sexually violent person (SVP) under
     the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010))
     and committed to the Department of Human Services (DHS). He now appeals a judgment
     finding no probable cause to hold an evidentiary hearing on whether he is still an SVP (see 725
     ILCS 207/65(b)(1) (West 2014)). We affirm.
¶2       On December 21, 2000, the State petitioned to have respondent committed as an SVP. The
     petition alleged as follows. Respondent was 18 years old. In 1995, when he was 15, he
     committed the aggravated criminal sexual abuse of his three-year-old half-sister. On January
     29, 1996, he was adjudicated delinquent and committed to the juvenile division of the
     Department of Corrections (DOC). Respondent had admitted to sexually fondling his younger
     cousin when he was six and sexually abusing approximately 100 children before entering the
     DOC. In January 1997, he was paroled to the Onarga Academy treatment facility, but, in
     October 1997, he was returned to the DOC, based on his sexually deviant behavior. In May
     1998, he was paroled to the Alternative Behavioral Treatment Center, but five months later, he
     was returned to the DOC, based on his sexually deviant behavior.
¶3       The petition continued as follows. On October 5, 2000, Dr. Agnes R. Jonas, a clinical
     psychologist, evaluated respondent. She diagnosed him with two mental disorders: (1)
     pedophilia, sexually attracted to both sexes, R/O exclusive type and (2) borderline personality
     disorder. In her report, Jonas noted the following. Respondent told Jonas that, when he was
     three years old, his uncle sexually abused him. He started “doing ‘sexual stuff’ ” when he was
     five and continued these behaviors intermittently. At about age 12 or 13, he started sexually
     abusing very young children. He told Jonas that he had sexually abused approximately 100
     children before he was incarcerated.
¶4       In her report, Jonas stated that, based on respondent’s mental disorders and criminal
     history, it was substantially probable that he would commit sexual violence against minors in
     the future. Jonas also cited respondent’s recurrent sexual fantasies, urges, and behaviors, his
     apparent lack of remorse, and his lack of progress in therapy. Further, based on research
     studies published in 1996 and 1998, numerous risk factors for reoffending applied to
     respondent.
¶5       Jonas also cited several actuarial risk-assessment tools but conceded that “there are no
     instruments as yet developed that can be reliably used for juvenile offenders in estimating their
     risk levels.” According to the Rapid Risk Assessment for Sexual Offense Recidivism,
     respondent was at a high risk of reoffending. According to the Minnesota Sex Offender
     Screening Tool-Revised (MnSOST-R), respondent was at a moderate risk of reoffending.
     According to the Static-99, respondent was in “the highest risk category on this instrument.”
     Jonas had considered other factors validated by research studies and analyses, such as
     respondent’s psychological instability, impulsivity, numerous sexually deviant fantasies, wide
     range of victims, and failure to complete treatment successfully, in addition to his treatment
     staff’s opinion that he was at a very high risk of reoffending. These factors raised him to a
     “very high risk.”
¶6       The petition alleged that respondent was an SVP because his mental disorders made it
     substantially probable that he would engage in future acts of sexual violence (see 725 ILCS
     207/5(f) (West 2000)). It requested that he be committed (see id. § 35(f)).

                                                 -2-
¶7          On January 23, 2001, at a hearing, Jonas testified consistently with her report. The trial
       court found probable cause to believe that respondent was subject to commitment. It ordered
       an evaluation by the DHS.
¶8          The cause was continued numerous times over several years. On March 9, 2010, the parties
       stipulated to the following. Respondent had been adjudicated delinquent based on his 1995
       offense. He had committed several other sexually violent acts before being committed to the
       DOC in 1996. He had been paroled to residential facilities in 1997 and 1998 but was
       discharged unsuccessfully both times. If called at a hearing, Jonas and Dr. Paul Heaton, two
       experts in clinical psychology and the evaluation and treatment of sex offenders, would testify
       that, to a reasonable degree of psychological certainty, respondent suffered from mental
       disorders that made it substantially probable that he would engage in future acts of sexual
       violence. At a hearing, the State would produce sufficient evidence to prove beyond a
       reasonable doubt that he was an SVP.
¶9          The parties agreed that respondent would have a dispositional hearing but that first he
       would be examined by the DHS and a mental-health professional of his choosing; they further
       agreed that he would be committed to the DHS until he was no longer sexually violent.
¶ 10        On January 20, 2012, Dr. Joseph W. Proctor submitted his final reexamination report,
       based in part on his interview of respondent on January 6, 2012. Proctor’s report noted the
       following. Respondent initially consented to treatment in 2002, but he participated only briefly
       before dropping out. He reentered the core treatment program in 2008. After engaging in
       behavior that interfered with treatment, he was referred to another program, but he did not
       make sufficient progress; in 2009, he was removed from the core program while still in the
       second of five phases. He participated in ancillary treatment groups, with relatively positive
       results. In April 2010, the DHS facility’s behavior committee ruled that he had committed a
       major violation by possessing flash drives containing child pornography. As of his interview,
       respondent was still trying to reenter the core treatment program.
¶ 11        Proctor stated his opinion that, to a reasonable degree of psychiatric certainty, respondent
       met the criteria for (1) pedophilia, sexually attracted to both sexes, exclusive type and (2)
       personality disorder, not otherwise specified, with antisocial and borderline traits. As to the
       first diagnosis, Proctor noted that, although respondent had committed all of his sexual acts
       with children before he turned 16, his sexual attraction to children had continued to the present,
       as shown in part by his interest in child pornography. As to the second diagnosis, Proctor noted
       respondent’s history of sexual violence and institutional-rule violations. He opined that
       respondent needed the intense treatment that could be provided only in a DHS facility.
¶ 12        On March 7, 2012, respondent’s chosen evaluator, Dr. Kirk Witherspoon, submitted his
       report to the court. Witherspoon’s report stated as follows. No reliable risk-measurement tools
       had been developed for persons, such as respondent, whose sexual misconduct is limited to
       childhood and early adolescence. The reports of Jonas and Proctor thus were flawed by their
       use of actuarial tools that are reliable only for adults. Respondent did not currently exhibit
       “sexual psychopathology.” The prior diagnosis of pedophilia was false, because none of
       respondent’s acts with younger children occurred when he was 16 or older. Witherspoon
       recommended that respondent be discharged from the DHS and “stripped of the ‘SVP’ label.”
       Alternatively, he recommended conditional release with treatment and oversight in an
       outpatient setting.


                                                   -3-
¶ 13        On October 22, 2012, the trial court held a dispositional hearing. Proctor and Witherspoon
       testified consistently with their reports. Noting respondent’s admissions in the 2010
       stipulation, as well as his difficulties with treatment, the court continued his confinement.
¶ 14        On October 24, 2013, the State moved for a finding of no probable cause, based on
       Proctor’s reexamination report, which was dated October 21, 2013. In his report, Proctor stated
       in part as follows. For the period under review, respondent had had two treatment plans. The
       first was developed on November 1, 2012; on March 27, 2013, his treatment team stated that
       his attendance had been poor and that he had been cited for fighting, a major rule violation. The
       second plan was developed on September 20, 2013. Respondent had completed two ancillary
       treatment groups since the previous treatment-team report. He was still in phase two of the core
       program.
¶ 15        Proctor’s diagnoses of respondent were unchanged from the 2012 report. He also stated
       that respondent’s scores on the Static-99 and the Static-99R placed him in the low-to-moderate
       category for risk of reoffending; his score on the MnSOST-R placed him in the moderate risk
       category; he had several nonactuarial factors that increased his risk of recidivism; and none of
       the protective factors—age, medical condition, and progress in treatment—applied to him.
       Proctor concluded that respondent remained an SVP and had made insufficient progress to be
       conditionally released.
¶ 16        On December 17, 2013, respondent petitioned for (1) conditional release (see 725 ILCS
       207/60 (West 2012)) and (2) the appointment of Witherspoon as his expert. The court
       continued all proceedings so that Witherspoon could conduct his evaluation.
¶ 17        On November 19, 2014, the State moved for a finding of no probable cause. The State
       relied on Proctor’s reexamination report, dated October 20, 2014. Proctor’s report stated that,
       for the period under review, respondent’s treatment team reported that he had made limited
       progress. He had displayed numerous behaviors that interfered with treatment, and his levels of
       commitment and motivation had fluctuated. Proctor’s diagnoses were unchanged from the last
       report. Respondent’s score on the Static-99R placed him in the moderate-to-high risk category
       for reoffending; his score on the Static-2002R placed him in the moderate risk category.
       Numerous risk factors not used in these tools were also present, and no protective factors
       applied. Proctor’s opinions and recommendations were also unchanged from his prior report.
¶ 18        Witherspoon’s report was dated April 5, 2014, and based in part on his interview of
       respondent on February 28, 2014. It stated in pertinent part as follows. Respondent told him
       that he had completed various ancillary treatment groups in preparation for participating in the
       core treatment program. A battery of personality tests administered on respondent for the 2014
       evaluation “evidenced no indications toward child molestation,” “sexual compulsivity,
       preoccupation, or hypersexuality,” or “noncontact sexual deviancy.”
¶ 19        Witherspoon’s report reiterated his disapproval of using actuarial tools such as the
       Static-99 and its successors and the MnSOST-R on persons with no adult records of sexual
       offending. Witherspoon diagnosed respondent with attention deficit/hyperactivity disorder but
       not with pedophilia or paraphilia. His treatment had not been “particularly successful,” but this
       was likely because it was based on the false assumption that he was suffering from sexual
       psychopathology. Witherspoon cautioned that sexual misconduct committed during childhood
       or adolescence does not predict adult offending. As before, he recommended discharge.
       Alternatively, he stated, respondent should receive treatment and oversight in an outpatient
       setting.

                                                   -4-
¶ 20       On January 28, 2015, after a hearing, the trial court stated as follows. In formulating his
       diagnoses and recommendations, Proctor had used a wide variety of evidence, including
       respondent’s admissions about prior acts, reports of other acts, respondent’s treatment history,
       actuarial test results, and risk factors that the actuarial tests did not consider. The court denied
       respondent’s petition for conditional release and granted the State’s motion for a finding of no
       probable cause.
¶ 21       On October 29, 2015, the State moved for a finding of no probable cause, based on
       Proctor’s reexamination report of October 19, 2015. The State noted that Proctor had reported
       that respondent was still in the second phase of the five-phase treatment program. In his report,
       Proctor also stated as follows. For the period at issue, respondent’s treatment team had
       developed two plans. The first was dated September 18, 2014. The team reported that, since
       that date, respondent had shown numerous “treatment-interfering” attitudes and behaviors,
       resulting in his removal from one treatment group. In his other groups, he had fluctuated
       between positive behavior and negative behavior. The second plan was dated September 3,
       2015. The treatment team reported that respondent had continued to fluctuate between positive
       and negative behaviors.
¶ 22       Proctor’s diagnoses of respondent’s mental disorders were the same as in his prior report.
¶ 23       Proctor noted that the instructions for the Static-99R and the Static-2002R stated that “they
       should be used with caution with Males [sic] whose most recent sex offense was committed
       while age 17 [or younger] and who is [sic] currently 18 years or more of age.” This category
       included respondent. Further, however, he noted that “[r]esearch has demonstrated that there is
       meaningful variation in the sexual recidivism rates based on factors not measured by [the]
       Static-99R.” In respondent’s case, these factors included respondent’s “demonstrated
       sexualized violence; sexual preoccupation; general self-regulation problems; and *** sense of
       entitlement.”
¶ 24       Proctor then noted the following. On the Static-2002R, respondent scored 6, which is in the
       moderate risk category; the recidivism rate for offenders with this score was 2.63 times that of
       the “typical sexual offender (defined as a median score of 3).” Proctor noted that studies had
       identified other factors, both static and dynamic, associated with recidivism. Respondent had
       several risk factors “based on these additional sources.” These were “Any Personality
       Disorder,” “Child molester attitudes,” “Substance abuse,” “Any deviant sexual interest,” “Sees
       self at no risk to recidivate,” “Sexual abuse,” “Low motivation for treatment,”
       “Impulsiveness/recklessness,” “Anger problems,” and “Intimacy problems.” The three
       recognized protective factors—age, medical condition, and progress in sex-offender-specific
       treatment—did not apply to respondent. Proctor’s recommendations were the same as in his
       previous report.
¶ 25       The trial court continued the cause several times, in part so that respondent could obtain
       new counsel. On March 9, 2016, respondent filed a response to the State’s motion. The
       response attacked Proctor’s report in numerous respects, including the validity of the actuarial
       risk-assessment tools. According to respondent, the instructions for the Static-99 stated that it
       should be used with caution in assessing juvenile offenders, and the instructions for the
       Static-2002R stated that it was not recommended for use on persons who had committed all of
       their sexual offenses when they were under 17.



                                                    -5-
¶ 26        On September 14, 2016, the trial court heard arguments on the State’s motion for a finding
       of no probable cause. The court continued the cause to October 5, 2016, for a ruling. On
       October 5, 2016, the court continued the cause to November 8, 2016.
¶ 27        On November 7, 2016, respondent filed a motion to reopen the proofs. The motion stated
       as follows. On September 27, 2016, Dr. Amy Louck Davis reexamined respondent per the Act.
       On October 12, 2016, she prepared her report for the DHS; on October 19, 2016, a copy of the
       report was mailed to respondent. Louck Davis’s report had been unavailable to respondent at
       the time of the hearing on the State’s 2015 motion, but it was highly relevant to determining
       probable cause. It cast doubt on Proctor’s report in two respects. First, Proctor had diagnosed
       respondent with pedophilic disorder, but Louck Davis stated that respondent had not met the
       criteria for this diagnosis, as he had not engaged in sexual behavior with children at least 5
       years younger when he was 16 or older. Second, although Proctor’s report spent several pages
       discussing the results of the Static-99R and Static-2002R assessments of respondent, Louck
       Davis’s report stated that no actuarial risk-assessment tools should be used on persons who
       have committed sexual offenses only before age 17.
¶ 28        Louck Davis’s reexamination report was attached to respondent’s motion. The report noted
       the following. On September 7, 2016, respondent’s treatment team reported that he had
       participated well in phase two of the treatment program; he was attentive and showed a strong
       commitment to treatment. Throughout the period, he “was regarded as having made significant
       improvements in his group behavior and participation.” In his disclosure group, respondent
       admitted that he had had consensual sexual partners while he was in juvenile detention and had
       engaged in problematic behaviors while in the DHS treatment facility. He acknowledged
       making and distributing “ ‘child pornography.’ ” However, he was no longer sexually aroused
       by children; his arousal had “ ‘matured.’ ”
¶ 29        Louck Davis’s report stated as follows on the “Issue of Mental Disorder.” Over time,
       respondent had been diagnosed with a variety of sexual disorders, showing that examiners had
       difficulties in coming to conclusions about him. Based on respondent’s record and his clinical
       interview, Louck Davis opined that to a reasonable degree of psychological certainty he met
       the criteria for (1) unspecified paraphilic disorder, in a controlled environment, and (2) other
       specified personality disorder, borderline, schizoid, and antisocial traits. As to the first
       diagnosis, respondent had perpetrated sexual offenses against younger peers when he was
       under 16 years old; he had violated rules relating to sexual behavior in secure settings and
       “engaged in voyeurism and exhibitionistic behaviors and described problematic sexual
       attitudes and beliefs”; and his behavior had historically been hypersexual, although
       decreasingly so as he had aged. Since turning 16, respondent had not demonstrated sexual
       behavior with people at least 5 years younger, so he did not meet the criteria for pedophilic
       disorder, and he had not demonstrated a pattern of sexual arousal to nonconsenting individuals,
       thus barring a diagnosis of “Other Specified Paraphilic Disorder due to arousal to
       non-consent.” “Nonetheless,” the report continued, respondent’s “problematic, illegal, and
       rule-violating sexual behaviors” had “culminated in decades of special needs, negative impact
       on his functioning, and institutionalization.” Louck Davis’s diagnosis took into account that
       respondent had been living in “an institution or under close surveillance where opportunities to
       engage in paraphilic sexual behaviors [were] restricted.”
¶ 30        As to the second diagnosis, Louck Davis noted that respondent had displayed most of the
       features of borderline personality disorder: identity disturbance with an unstable sense of self,

                                                   -6-
       impulsivity, and recurrent suicidal or self-injurious behavior. He had also displayed several
       characteristics of schizotypal personality disorder: odd beliefs and distorted cognitions that
       influenced his behavior, odd thinking and speech, constricted affect, and odd behavior that
       drew attention to himself. And he had manifested several aspects of antisocial personality
       disorder: unlawful acts, deceitfulness, and lack of remorse.
¶ 31       Louck Davis’s report turned to the “Issue of Risk.” This section of the report began:
               “[Respondent] was 13 years old when he committed a criminal sexual assault for which
               he was adjudicated [delinquent] and there [are] currently no actuarial risk assessment
               instruments appropriate and ethical for use with individuals who were charged or
               convicted/adjudicated only of sexual assaults that occurred prior to age 17. Thus, a
               structured clinical judgment approach was used to estimate [his] risk for recidivism.”
               (Emphasis in original.)
¶ 32       Louck Davis explained that, in using this approach, she reviewed recent research on
       recidivism in sex offenders who offended only before turning age 17, she consulted members
       of the Association for the Treatment of Sexual Abusers and its guidelines for adolescent
       practice, and she reviewed respondent’s historical records, interview results, and
       treatment-team reports. Structured clinical judgment was preferable to actuarial measures,
       which were not reliable. Among the instruments used in structured clinical judgment are the
       Sexual Violence Risk-20 (SVR-20) and the STABLE 2007.
¶ 33       Louck Davis then summarized the application of her chosen methodology to respondent’s
       case. The SVR-20 is a checklist of 20 risk factors; the level of risk in a given case depends on
       the combination of factors, not merely the number. For respondent, the following risk factors
       were present “to a high degree”: he had been a victim of sexual abuse, he had committed
       nonsexual-violent-offense and multiple-sex-offense types, and he lacked a realistic living plan.
       Applying the STABLE 2007, which “focuses on long-term emotional vulnerabilities as
       dynamic risk factors,” disclosed that 11 such factors raised concerns. Two raised “Serious
       concern”: “the lack of Capacity for Relationship Stability” and “Emotional Identification with
       Children.”
¶ 34       Three protective factors were considered. The first, sex-offender-specific treatment, did
       not warrant any risk reduction; although respondent had made some progress in therapy, he
       was still early in the process, his attitudes and behaviors were problematic, and his description
       of his plans for avoiding reoffending was “undeveloped, non-specific, and minimally related to
       preventing re-offense [sic].” The second factor, a serious and debilitating medical condition,
       was not present and thus did not warrant any risk reduction. The third factor, age, did not
       warrant any risk reduction: respondent was only 34.
¶ 35       Louck Davis’s report stated as follows under “Risk Summary.” Risk levels are customarily
       set at “Very Low Risk, Below Average Risk, Average Risk, Above Average Risk, and Well
       Above Average Risk” (emphasis in original). Louck Davis considered respondent’s level as
       “Above Average level of risk,” based on the “preponderance of risk factors present” and the
       lack of risk reduction based on any protective factors. Louck Davis noted, “No specific
       actuarial data is available or appropriate to provide a more specific estimate.”
¶ 36       Louck Davis’s report stated that, based on his above-average level of risk and his mental
       disorders, respondent was an SVP. He had “not yet made sufficient progress in treatment to
       substantially lower his level of risk to be considered for conditional release.”


                                                   -7-
¶ 37        On November 9, 2016, the trial court continued the cause to December 7, 2016. On that
       date, the State filed a response to respondent’s motion to reopen the proofs. The State argued
       that respondent had two separate “review periods” pending: while the case was continued for
       the 2015 “review period,” the State filed Louck Davis’s report for the 2016 “review period.”
       According to the State, the Act sets forth separate and distinct yearly review periods, so the
       report for the 2016 period was irrelevant to the 2015 period’s probable-cause hearing.
¶ 38        The State argued alternatively that the introduction of Louck Davis’s report would make no
       difference to the outcome of the 2015 probable-cause hearing because it would not help
       respondent any more than had Proctor’s report. Both examiners had opined that respondent
       was still an SVP and required commitment. Proctor had relied partly on actuarial
       risk-prediction tools and Louck Davis had used other risk-prediction measures, but they
       ultimately reached similar conclusions and made identical recommendations. Further, their
       recommendations were based on solid evidence that respondent’s condition had not changed,
       in either review period, as he was still in phase two of the five-phase treatment program, had
       displayed problematic attitudes and behaviors, and had developed no serious
       relapse-prevention strategy.
¶ 39        On January 4, 2017, the trial court heard arguments on respondent’s motion to reopen the
       proofs, and it continued the cause. On January 25, 2017, the court denied respondent’s motion.
       The court was “not comfortable taking reports *** that would not have been germane to the
       2015 motion and making them germane to the 2015 motion.”
¶ 40        On February 8, 2017, after hearing arguments, the trial court granted the State’s
       no-probable-cause motion. Respondent timely appealed.
¶ 41        On appeal, respondent contends first that the trial court erred in refusing to grant his motion
       to reopen the proofs. Respondent contends that, under section 65(b)(1) of the Act, the court
       was required to consider the 2016 reexamination report, which was available before it ruled on
       the no-probable-cause motion. The State argues that the Act did not require the court to
       consider a report that was filed for a separate review period.
¶ 42        Because respondent’s argument is based on statutory construction, which raises an issue of
       law, our review is de novo. See In re Detention of Stanbridge, 2012 IL 112337, ¶ 70. Our goal
       is to effectuate the intent of the legislature and, to do so, we must give the statutory language its
       plain and ordinary meaning. Id.
¶ 43        Respondent initially notes that, under section 55(a) of the Act, if a person has been
       committed and not discharged, the DHS shall submit a written report to the trial court on the
       person’s mental condition “at least once every 12 months after an initial commitment *** for
       the purpose of determining whether *** the person has made sufficient progress in treatment to
       be conditionally released and *** the person’s condition has so changed since the most recent
       periodic reexamination *** that he or she is no longer a sexually violent person.” 725 ILCS
       207/55(a) (West 2014).
¶ 44        Respondent then turns to section 65(b)(1) of the Act, which, in pertinent part, reads:
                “A person may petition the committing court for discharge from custody or supervision
                without the Secretary [of Human Services’] approval. At the time of an examination
                under subsection (a) of Section 55 of this Act, the Secretary shall provide the
                committed person with a written notice of the person’s right to petition the court for
                discharge over the Secretary’s objection. *** If the person does not affirmatively waive


                                                     -8-
               the right to petition, the court shall set a probable cause hearing to determine whether
               facts exist to believe that since the most recent periodic reexamination ***, the
               condition of the committed person has so changed that he or she is no longer a[n]
               [SVP]. *** The probable cause hearing under this Section must be held as soon as
               practical after the filing of the reexamination report under Section 55 of this Act.”
               (Emphasis added.) Id. § 65(b)(1).
¶ 45       Respondent cites In re Commitment of Rendon, 2017 IL App (1st) 153201, but we cannot
       say that it addresses the issue here. There, in 2010, the respondent was granted conditional
       release, which, after some complications, the appellate court restored in 2014. In 2015, the
       State moved for a finding of no probable cause, based on a January 2015 report issued by the
       reexamining expert, Dr. Smith. In February 2015, the respondent’s appointed expert, Dr.
       Wood, issued a report recommending that the respondent’s conditional release be continued.
       Id. ¶¶ 5-8. In June 2015, Smith conducted “another annual reexamination” (id. ¶ 9) (the date of
       the previous one is not given in the opinion but was sometime in 2014). Smith recommended a
       finding of no probable cause to believe that the respondent was no longer an SVP, but he did
       recommend conditional release. Id. ¶ 13. The trial court held a hearing at which the respondent
       contended that he was no longer an SVP and was thus entitled to a discharge hearing. Id. ¶ 14.
       The trial court granted the State’s motion. Id. ¶ 16.
¶ 46       On appeal, the respondent contended in part that the 2012 amendment to section 65 that
       added the phrase “since ‘the most recent periodic reexamination’ ” was unduly restrictive
       because it required him to rely only on facts occurring since the most recent reexamination
       (essentially the facts that had occurred within the previous year) on the matter of whether he
       was still an SVP; in his view, the preamendment statute had not been so restrictive. Id. ¶ 21
       (quoting Pub. Act 97-1075, § 5 (eff. Aug. 24, 2012) (amending 725 ILCS 207/65)).
¶ 47       The appellate court first held that the amendment applied to what it held was a petition for
       discharge filed by the operation of law in 2015. Id. ¶ 22. The court then stated:
                    “Moreover, [the] respondent’s reading of the statute is itself unduly restrictive since
               review of a reexamination report does not preclude consideration of a respondent’s full
               mental health and sexual history or relevant historical facts. Indeed, in Dr. Smith’s June
               2015 report itself, he reviewed the other annual reexamination reports from 2008 to
               2014, thus taking them into account. Construing the statute logically, it simply means
               the court must consider the professional conclusions as to a respondent’s status in the
               most recent report and any changed circumstances. See [Stanbridge], 2012 IL 112337,
               ¶ 72. We agree with the State that the amendment is simply a clarification of what the
               circuit court was already tasked with determining in any case involving application for
               discharge or conditional release—i.e.[,] whether the respondent’s current status
               reflects a mental disorder or that he is still a danger to society such that he is
               substantially probable to reoffend. [Citation.] Even absent the amendment, it is
               common sense that a court would turn to the most recent professional examination of a
               respondent to answer this very important public safety question.” (Emphases in
               original.) Id. ¶ 23.
¶ 48       Respondent seizes on this passage, especially the emphasized language, to argue that, in
       his case, the trial court was required to consider the 2016 reexamination report. We do not read
       Rendon so broadly. The trial court there had not delayed a hearing on a no-probable-cause
       motion or a discharge petition to the point where a new reexamination report had been filed in

                                                    -9-
       the interim between the motion or petition and the decision on it. The issue in Rendon was how
       far back in time from the filing of the motion or petition to go, not whether to go forward in
       time. The court was not concerned with whether the most recent report is the one that is most
       recent at the time of the filing of the motion or petition or the one that is most recent at the time
       of the decision on the motion or petition.
¶ 49        We return to the issue raised by the unusual facts of this case. We do not agree completely
       with either party’s construction of section 65(b)(1). We conclude that the most reasonable
       construction that is consistent with fairness to both parties and the orderly administration of the
       Act is that section 65(b)(1) does not require the trial court to consider a superseding
       reexamination report that is issued only after the parties have rested, so that all that remains is
       the trial court’s decision. In this event, a request to consider newly generated evidence is
       subject to the sound discretion that the trial court possesses in deciding a motion to reopen the
       proofs.
¶ 50        Section 65(b)(1) of the Act requires that, in a case such as this one, the trial court “set a
       probable cause hearing to determine whether facts exist to believe” that the person is no longer
       an SVP. (Emphases added.) 725 ILCS 207/65(b)(1) (West 2014). Similarly, section 65(b)(2)
       begins, “If the court determines at the probable cause hearing *** that probable cause exists
       ***.” (Emphases added.) Id. § 65(b)(2). The natural construction of this phraseology is that the
       court must decide whether the requisite facts exist at the time of the hearing. The quoted
       passages do not tell the court that it must decide whether “probable cause existed” when the
       State filed its motion. Thus, we do not adopt any rule that the evidentiary basis of the court’s
       decision is locked in on the date that the State files its motion for a finding of no probable
       cause.
¶ 51        We also do not adopt the State’s theory that the Act sets up “review periods” so rigid that
       they require the trial court to exclude new evidence that arises before the parties have rested at
       a hearing on a no-probable-cause motion. The Act does not use the term “review period” or any
       comparable language to create such a limitation.
¶ 52        However, what the Act would have required the trial court here to do in such a situation is
       not before us. By the time that respondent moved to introduce Louck Davis’s report, both he
       and the State had rested their cases. Thus, the motion was one to reopen the proofs, which, as
       the State notes, is committed to the sound discretion of the trial court. See, e.g., General
       Motors Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1077 (2007); People v. Berrier, 362
       Ill. App. 3d 1153, 1163 (2006).
¶ 53        Because section 65(b)(1) did not impose a legal duty on the trial court to admit the 2016
       report, the court did not violate it by excluding the 2016 report. We note that, in his opening
       appellate brief, respondent does not contend that the court abused its discretion in denying his
       motion to reopen the proofs. Indeed, he does not contend that his motion was addressed to the
       court’s discretion. Instead, respondent contends that the court erred as a matter of law because
       it violated a statutory requirement to admit the report. This argument is consistent with the
       substance of the motion; despite its title, it relied on the argument that section 65(b)(1) required
       the court to admit the report.
¶ 54        As, at the trial level, respondent did not treat the motion as one committed to the court’s
       discretion, and as, in this court, he does not do so in his initial brief, we conclude that
       respondent has forfeited any argument that the trial court abused its discretion under case law
       such as Stoval and Berrier. See Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016) (arguments not raised

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       in initial brief are forfeited); Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996)
       (appellant may not obtain reversal on basis not raised in trial court).
¶ 55       In any event, we would not be able to say that the trial court’s refusal to admit the 2016
       report was an abuse of discretion. We note that the report became available only because of the
       extraordinary delay in resolving the State’s motion for a finding of no probable cause—and
       this delay was attributable almost entirely to respondent, who sought substantial continuances
       in order to obtain new counsel and prepare for the hearing. Further, the 2016 report was not
       rendered ineffectual or ultimately beyond the trial court’s consideration. Instead, it was
       available for the next hearing, as it would have been had the hearing at issue been held more
       promptly. Finally, our examination of Louck Davis’s report, which reached similar diagnoses
       and recommendations as did Proctor’s, albeit with different methodologies, persuades us that
       the admission of the report was not crucial, because the result of the hearing likely would not
       have been different had the report been admitted.
¶ 56       We hold that section 65(b)(1) of the Act did not require the trial court to consider Louck
       Davis’s 2016 reexamination report, which became available only after the parties had rested
       and the trial court had closed the hearing on the State’s no-probable-cause motion.
¶ 57       We recognize that the Act is not altogether clear on the issue that we have addressed.
       Certainly, policy arguments can be made for either party’s position. The consideration of a
       report that has come out after the parties have rested could enable the court to base its decision
       on more up-to-date information about the respondent’s condition. However, restricting the
       hearing to whatever reports have been filed by the close of the evidence provides a more
       orderly procedure, preventing a pileup of reports that must be considered at a single
       probable-cause hearing. In any event, these policy considerations are for the legislature, which
       might wish to reexamine the procedures under scrutiny here.
¶ 58       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 59      Affirmed.




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