                                  Illinois Official Reports

                                            Appellate Court



                     In re Commitment of Anderson, 2014 IL App (3d) 121049




Appellate Court              In re COMMITMENT OF BRIAN C. ANDERSON (The People of
Caption                      the State of Illinois, Petitioner-Appellee, v. Brian C. Anderson,
                             Respondent-Appellant).


District & No.               Third District
                             Docket No. 3-12-1049

Filed                        June 3, 2014


Held                         Respondent was properly found to be a sexually violent person and
(Note: This syllabus         committed to the Department of Human Services for institutional
constitutes no part of the   treatment in a secure facility, despite his contentions that his motion to
opinion of the court but     exclude the testimony of the State’s expert witness was improperly
has been prepared by the     denied, that his counsel was ineffective in agreeing to the State’s
Reporter of Decisions        motion for the appointment of an expert and that his commitment to a
for the convenience of       secure facility was an abuse of discretion, since the State had a right to
the reader.)                 have respondent evaluated by an expert of its own choosing, even if
                             respondent’s due process rights were violated when he was not in the
                             courtroom and was unable to object to the State’s motion for an expert,
                             the violation was harmless and respondent was not prejudiced by his
                             counsel’s agreement to the State’s motion for an expert, and the
                             evidence supported respondent’s commitment to a secure facility.



Decision Under               Appeal from the Circuit Court of Whiteside County, No. 10-MR-6;
Review                       the Hon. John L. Hauptman, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Allison Fagerman (argued), of Pignatelli & Associates, of Rock Falls,
     Appeal                   for appellant.

                              Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                              Solicitor General, and Brian McLeish (argued), Assistant Attorney
                              General, of counsel), for the People.


     Panel                    PRESIDING JUSTICE LYTTON delivered the judgment of the court,
                              with opinion.
                              Justice O’Brien concurred in the judgment and opinion.
                              Justice McDade dissented, with opinion.



                                               OPINION

¶1          After a jury trial, respondent, Brian C. Anderson, was found to be a sexually violent person
       (SVP) and was committed to the custody of the Department of Human Services (DHS) for
       institutional treatment. On appeal, respondent argues that (1) the trial court abused its
       discretion in denying his motion to exclude testimony, (2) he was denied effective assistance of
       counsel, and (3) the trial court abused its discretion in committing him to treatment in a secure
       facility. We affirm.
¶2          When respondent was 14 years old, he sexually assaulted two children, ages 8 and 5.
       According to respondent, he anally penetrated the five-year-old “on three or four occasions,”
       and the eight-year-old once. Respondent was adjudicated delinquent and sentenced to five
       years of probation.
¶3          Ten years later, respondent sexually assaulted his fourteen-year-old neighbor. Respondent
       performed oral sex on the victim, and the victim performed oral sex on respondent.
       Respondent knew the victim was under the age of 16. Respondent was convicted of aggravated
       sexual assault and sentenced to four years of imprisonment.
¶4          In 2010, shortly before respondent completed his prison sentence, the State filed a petition
       seeking his commitment under the Sexually Violent Persons Commitment Act (Act) (725
       ILCS 207/1 et seq. (West 2010)). Dr. John Arroyo evaluated respondent on behalf of the
       Illinois Department of Corrections (IDOC). He concluded that respondent was a sexually
       violent person and recommended him for civil commitment under the Act.
¶5          After a probable cause hearing, Dr. Robert Brucker conducted an evaluation of respondent
       on behalf of DHS. He concluded that respondent had a significant risk of committing future
       sexually violent offenses but did not qualify as a sexually violent person because he did not
       have a mental disorder, as defined by the Act. The circuit court appointed Dr. Kirk
       Witherspoon as respondent’s expert.

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¶6         On March 24, 2010, the State moved for the appointment of Dr. Paul Heaton to examine
       respondent at the State’s expense. Respondent was not present when the State’s motion was
       presented in court. Respondent’s counsel waived respondent’s presence. Counsel also waived
       any objection to the State’s motion. The court entered an “Agreed Order” noting that counsel
       had waived respondent’s presence and stipulated to the State’s motion.
¶7         Two days later, counsel wrote a letter to respondent informing him of Dr. Heaton’s
       appointment. Before respondent received the letter, Dr. Heaton attempted to interview
       respondent. Respondent refused to cooperate, even after counsel encouraged him to participate
       in the evaluation.
¶8         Approximately a year later, on March 31, 2011, respondent, with a new attorney, filed a
       motion to exclude Dr. Heaton from testifying at trial. Respondent argued that the entry of the
       “Agreed Order” violated his statutory right to be present at all hearings conducted under the
       Act. Following a hearing, the trial court denied respondent’s motion, holding that respondent’s
       counsel had validly waived respondent’s right to be present.
¶9         The case proceeded to a jury trial in November 2011. At trial, Dr. Arroyo and Dr. Heaton
       testified that respondent qualified as a sexually violent person. Dr. Witherspoon and Dr.
       Brucker testified that respondent was not a sexually violent person because he did not suffer
       from a mental disorder, as defined by the Act. The jury found respondent to be a sexually
       violent person.
¶ 10       At the dispositional hearing, Dr. Richard Travis recommended that respondent be
       committed to secure care. In forming this opinion, Dr. Travis relied on respondent’s failure to
       control his behavior while in DHS custody. Dr. Travis noted that respondent had been cited for
       several infractions, including entering another resident’s room, possessing medications
       belonging to another resident, and horseplay and sexual misconduct with his boyfriend. Dr.
       Travis also noted that respondent had not participated in treatment while in DHS custody and
       described respondent’s past treatment as “pretty useless.”
¶ 11       Dr. Eric Ostrov recommended that respondent be conditionally released. In support, Dr.
       Ostrov testified that he could not give a firm opinion about whether respondent suffered from a
       mental disorder. Dr. Ostrov also noted that respondent disputed the facts underlying some of
       his infractions while in DHS custody. On cross-examination, Dr. Ostrov admitted that
       respondent had received a citation for serious sexual misconduct. He also admitted that he had
       not seen or read a report in the DHS records citing respondent for horseplay.
¶ 12       At the conclusion of the dispositional hearing, the circuit court ordered respondent
       committed to DHS custody for treatment in a secure facility.

¶ 13                               I. Motion to Exclude Testimony
¶ 14       Respondent first argues that the trial court abused its discretion in denying his motion to
       exclude Dr. Heaton’s testimony. He claims that his due process rights were violated when the
       State presented its motion for appointment of Dr. Heaton without giving him notice and an
       opportunity to object.


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¶ 15       The decision to exclude expert testimony is within the sound discretion of the trial court
       and will not be disturbed on review absent an abuse of discretion. Hulman v. Evanston
       Hospital Corp., 259 Ill. App. 3d 133, 142 (1994). A trial court’s ruling will be considered an
       abuse of discretion only if it is unreasonable, arbitrary, or where no reasonable person would
       take the same view as the court. In re Detention of Ehrlich, 2012 IL App (1st) 102300, ¶ 75.
¶ 16       A person who is the subject of a petition brought under the Act has the right “[t]o be present
       and to be represented by counsel” at any hearing conducted under the Act. 725 ILCS
       207/25(c)(1) (West 2010). The Act does not define the term “hearing.” See 725 ILCS 207/1
       et seq. (West 2010).
¶ 17       The primary goal of statutory interpretation is to ascertain and give effect to the intent of
       the legislature. Lierberman v. Budz, 356 Ill. App. 3d 932, 935 (2005). The best indication of
       legislative intent is the language of the statute itself. Id. Where the terms of the statute are
       undefined, they are given their plain and ordinary meaning. Id.
¶ 18       The term “hearing” is generally understood to mean a “judicial examination of the issues
       between the parties, whether of law or of fact.” (Internal quotation marks omitted.) People v.
       Guajardo, 262 Ill. App. 3d 747, 757 (1994). Telephone calls between opposing attorneys
       regarding the status of a motion do not constitute a hearing at which a respondent has the right
       to be present under the Act. See In re Detention of Erbe, 344 Ill. App. 3d 350, 364 (2003).
       Additionally, a detention proceeding held pursuant to section 30(a) of the Act does not
       constitute a “hearing” under the Act even though the parties called it a “hearing.” Lieberman,
       356 Ill. App. 3d at 935-36.
¶ 19       As with any right, the right to be present can be waived. People v. Phillips, 383 Ill. App. 3d
       521, 549 (2008). Where a defendant has a right to be present at a hearing, a trial court is
       permitted to accept a waiver from counsel of the defendant’s right to be present. Id. at 549-50.
       Counsel’s waiver is valid if the defendant voluntarily, knowingly and intelligently waived his
       right to be present. Id. at 550.
¶ 20       Here, the parties’ attorneys appeared in court on March 24, 2010. On that date, the State
       presented the court with its motion for appointment of an expert. Respondent’s counsel agreed
       to the State’s motion. There was no judicial examination of the legal or factual issues between
       the parties; thus, there was no “hearing” at which respondent was entitled to be present. See
       Guajardo, 262 Ill. App. 3d at 757. Furthermore, even if a hearing took place, respondent’s
       counsel validly waived respondent’s presence. Thus, there was no due process violation.
¶ 21       Even if we were to find that respondent should have been present in court and allowed to
       object to the State’s motion for appointment of an expert, his absence was harmless. See
       People v. Williams, 2013 IL App (1st) 111116, ¶ 93 (“[D]ue process violations are subject to a
       harmless error review.”).
¶ 22       Pursuant to section 25(e) of the Act, a person who is the subject of an SVP petition is
       allowed to “retain experts or professional persons to perform an examination.” 725 ILCS
       207/25(e) (West 2010). If the respondent is indigent, the court is required, upon the
       respondent’s request, to “appoint a qualified and available expert or professional person to
       perform an examination.” 725 ILCS 207/25(e) (West 2010).

                                                   -4-
¶ 23        Prior to 2011, there was no similar provision entitling the State to appoint an expert to
       examine the respondent of an SVP commitment petition. However, nothing in the Act
       precluded the State from presenting its own expert to examine the respondent and testify at
       trial. In re Commitment of Hardin, 2013 IL App (2d) 120977, ¶ 16. In cases filed before 2011,
       courts often allowed the State to present more than one expert witness to examine the
       respondent and testify at SVP commitment trials. See, e.g., In re Detention of Melcher, 2013
       IL App (1st) 123085 (two State experts); Hardin, 2013 IL App (2d) 120977 (three State
       experts); In re Commitment of Curtner, 2012 IL App (4th) 110820 (two State experts); In re
       Commitment of Trulock, 2012 IL App (3d) 110550 (two State experts).
¶ 24        Effective January 1, 2011, the legislature amended section 25(e) by adding the following
       sentence: “The State has the right to have the person evaluated by an expert chosen by the
       State.” Pub. Act 96-1128, § 5 (eff. Jan. 1, 2011). Now, the statute requires that the State be
       allowed at least one expert to evaluate the respondent. See 725 ILCS 207/25(e) (West 2012);
       see also 725 ILCS 207/15(f) (West 2012) (“The State has the right to have the person evaluated
       by experts chosen by the State.”).
¶ 25        Here, the State’s motion seeking appointment of Dr. Heaton was filed in 2010, when the
       above amendment was not yet in effect. However, the amendment was in effect when
       respondent filed his motion to exclude Dr. Heaton’s testimony and when the trial court ruled
       on that motion. Regardless, because the amendment is procedural, it applies retroactively to
       the State’s motion for an expert.
¶ 26        Procedural changes to statutes may be applied retroactively, while substantive changes
       may not. Caveney v. Bower, 207 Ill. 2d 82, 92 (2003). “Procedure is the machinery for carrying
       on the suit, including pleading, process, evidence and practice ***.” Ogdon v. Gianakos, 415
       Ill. 591, 596 (1953). Substantive law, in contrast, “establishes, creates, defines or regulates
       rights.” Ores v. Kennedy, 218 Ill. App. 3d 866, 871 (1991).
¶ 27        The amendment here clarifies the evidentiary rules of proceedings under the Act. It
       provides that the State may obtain an evaluation from an expert of its choosing. It is a
       procedural right because it affects the “machinery for carrying on” proceedings under the Act.
       See Ogdon, 415 Ill. at 596. The amendment does not affect either party’s substantive rights.
¶ 28        Thus, even if respondent’s due process rights were violated by his absence from the
       courtroom and his inability to object to the State’s motion for an expert, the violation was
       harmless because the State was entitled to its own expert.

¶ 29                               II. Ineffective Assistance of Counsel
¶ 30       Respondent next argues that his trial counsel was ineffective for agreeing to the State’s
       motion for appointment of an expert.
¶ 31       Proceedings governing SVP commitment petitions are civil in nature. In re Commitment of
       Dodge, 2013 IL App (1st) 113603, ¶ 20. Nonetheless, the Act provides a respondent with the
       right to the effective assistance of counsel. Id. A successful ineffective assistance of counsel
       claim requires the claimant to prove that (1) counsel’s conduct fell below an objective standard
       of reasonableness, and (2) a reasonable probability exists that but for counsel’s unprofessional
                                                  -5-
       conduct, the outcome would have been different. Id. A person claiming ineffective assistance
       of counsel must satisfy both the performance and prejudice prongs of the test in order to
       prevail. People v. Evans, 209 Ill. 2d 194, 220 (2004).
¶ 32       We will dispose of respondent’s ineffective-assistance claim on the prejudice prong alone.
       As explained above, effective January 1, 2011, the legislature amended section 25(e) of the Act
       to give the State an absolute right to an expert in SVP trials. See 725 ILCS 207/25(e) (West
       2012). The amendment was in effect at the time of respondent’s trial and applies retroactively
       to the State’s motion for appointment of an expert because it is a procedural change. See
       Caveney, 207 Ill. 2d at 92.
¶ 33       Because the State had a statutory right to an expert at respondent’s trial, respondent cannot
       establish that he was prejudiced by his counsel’s acquiescence to the State’s motion for an
       expert.

¶ 34                                     III. Dispositional Finding
¶ 35       Finally, respondent argues that the circuit court abused its discretion in ordering him to
       institutional care in a secure facility. He contends that Dr. Ostrov’s testimony was more
       persuasive than Dr. Travis’s testimony.
¶ 36       A trier of fact, by virtue of its ability to actually observe the conduct and demeanor of the
       witnesses, is in the best position to assess their credibility; thus, we defer to the trial court’s
       findings regarding credibility. In re Abel C., 2013 IL App (2d) 130263, ¶ 19. It is not our
       function to reweigh the evidence, make credibility determinations or resolve conflicting
       testimony. Ehrlich, 2012 IL App (1st) 102300, ¶ 76. We review the trial court’s decision to
       commit a person to a secure facility for an abuse of discretion. Id. ¶ 75.
¶ 37       Here, Dr. Travis opined that treatment in a secure facility would be best for respondent. Dr.
       Ostrov disagreed and thought that respondent was a good candidate for conditional release. It
       is not our function to weigh the credibility of these experts or resolve their conflicting
       opinions. See id. ¶ 76. Because there is evidence in the record to support the circuit court’s
       dispositional finding, we will not disturb it.
¶ 38       The judgment of the circuit court of Whiteside County is affirmed.

¶ 39      Affirmed.

¶ 40       JUSTICE McDADE, dissenting.
¶ 41       In this case respondent, Brian Anderson, argues that the circuit court abused its discretion
       in denying his motion to exclude Dr. Heaton from testifying at trial. Respondent does not
       allege that Dr. Heaton’s testimony should be barred on any substantive basis. Instead, he
       asserts the procedural argument that his due process rights were violated where he did not have
       notice of the State’s motion to have Dr. Heaton evaluate him. In support of this argument, the
       respondent cites section 25(b) of the Sexually Violent Persons Commitment Act (725 ILCS
       207/25(b) (West 2010)), which provides that respondent must be given notice when a
       commitment petition is filed against him. Respondent also calls our attention to the procedural
                                                   -6-
       fact that he was not present when the State’s motion was presented in the circuit court. In
       support, respondent cites section 25(c)(1) of the Act (725 ILCS 207/25(c)(1) (West 2010)),
       which provides that respondent has a right to be present at any hearing under the Act.
¶ 42        In response, the State argues that even if the errors alleged by the respondent occurred,
       such errors were harmless given the legislature’s action in amending section 25(e) of the Act
       (725 ILCS 207/25(e) (West 2012)). It is, therefore, the State and not the respondent which puts
       in issue the fact and alleged impact of the statutory amendment. I note that the respondent does
       not discuss the amending of section 25(e) in his initial brief, nor has he filed a reply brief
       responding to the State’s argument with regard to the amendment’s impact.
¶ 43        Public Act 96-1128 (eff. Jan. 1, 2011) amended section 25(e), inter alia, by adding the
       following sentence: “The State has the right to have the person evaluated by an expert chosen
       by the State.” Prior to this enactment, section 25(e) was silent regarding any right of the State
       to select its own independent expert to examine the respondent, and any effort to do so was
       subject to the discretion of the court. The State concedes this fact in its brief at page 7 where it
       asserts: “Indeed, the circuit court would have erred had it granted respondent’s motion, as the
       amendment to § 207/35(e) [sic] 1 eliminated any discretion the circuit court previously had to
       prevent the People from presenting an expert of their choosing.” (Emphasis added.)
¶ 44        Moreover, the majority appears to concede that prior to 2011, the State’s ability to present
       its own examining and testifying expert was subject to the exercise of the court’s discretion
       (“[i]n cases filed before 2011, courts often allowed the State to present more than one expert
       witness to examine the respondent and testify at SVP commitment trials. [Citations.]”
       (Emphasis added.)) Supra ¶ 23.
¶ 45        The effects of Public Act 96-1128 were (1) to give the State an absolute right to select
       experts of its own choosing to examine the respondent, (2) to eliminate any need for the State
       to appeal to the discretion of the court to select such an expert, (3) to deprive a respondent
       under the Act of a prior right to object to an examination by an expert selected by the State in
       addition to those already authorized by the statute, and (4) to deprive a respondent of a prior
       right to appeal to the discretion of the court to avoid selection of and examination by such an
       additional expert. It thus appears to me that the majority is incorrect when it asserts that no
       substantive rights of either party were affected by the amendment. Substantive rights of both
       parties were impacted by the amendatory change. The amendment was not procedural but
       substantive and it could only be applied prospectively–that is, to cases arising after its
       enactment.
¶ 46        It is for this reason that I respectfully dissent from the decision of the majority. 2



           1
             This must be an error in citing to the statute because there have been no relevant amendments to
       section 35(e) (725 ILCS 207/35(e) (West 2012)).
           2
             Although my conclusion would ordinarily require analysis of the additional issues raised by
       respondent, I choose not to do so in this case because such analysis would be futile given the majority's
       conclusion.
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