                             NO. 4-10-0206    Opinion Filed 3/30/11

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

In re: the Detention of KEVIN W.        )    Appeal from
STANBRIDGE, a Sexually Violent Person,  )    Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS,    )    Adams County
          Petitioner-Appellee,          )    No. 05MR45
          v.                            )
KEVIN W. STANBRIDGE,                    )    Honorable
          Respondent-Appellant.         )    William O. Mays,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
          Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.

                                OPINION

          In April 2009, respondent, Kevin W. Stanbridge, filed

an amended petition for discharge from the custody and control of

the Illinois Department of Human Services (IDHS) pursuant to

section 70 of the Sexually Violent Persons Commitment Act (725

ILCS 207/70 (West 2008)).    In October 2009, the State filed a

motion for finding of no probable cause based upon review of

reevaluation report under section 55 of the Act (725 ILCS 207/55

(West 2008)).   Following a January 2010 hearing on the parties'

respective filings, the trial court (1) denied respondent's

amended petition and (2) granted the State's motion, finding that

no probable cause was shown to warrant an evidentiary hearing to

determine whether respondent remained a sexually violent person.

          Respondent appeals, arguing that the trial court abused

its discretion by denying his amended petition for discharge from
IDHS custody and control.   We reverse and remand.

                            I. BACKGROUND

     A. The Circumstances Surrounding Respondent's Detention

          In November 1999, the State charged respondent (then 35

years old) with aggravated criminal sexual abuse (720 ILCS 5/12-

16(d) (West 1998)), alleging that he committed an act of sexual

penetration with a 14 year old by placing his mouth on the boy's

penis.   Following a jury trial, respondent was convicted, and the

trial court sentenced him to seven years in prison.      In May 2004,

this court reversed respondent's conviction and remanded the case

for a new trial.    People v. Stanbridge, 348 Ill. App. 3d 351, 810

N.E.2d 88 (2004).

          Following an April 2005 retrial, a jury convicted

respondent of aggravated criminal sexual abuse (720 ILCS 5/12-

16(d) (West 1998)).   Respondent appealed, and this court affirmed

that conviction.    People v. Stanbridge, No. 4-05-0585 (June 14,

2007) (unpublished order under Supreme Court Rule 23).

          In May 2005--while respondent's appeal in case No. 4-

05-0585 was pending--the State petitioned the trial court to

detain respondent pursuant to the Act.      The State alleged that

(1) respondent suffered from the following mental disorders: (a)

pedophilia, sexually attracted to males, nonexclusive type, (b)

paraphilia, not otherwise specified, sexually attracted to

adolescent males, and (c) antisocial personality disorder; and

(2) because of respondent's disorders, he was predisposed to

commit future acts of sexual violence.      The court later found


                                - 2 -
probable cause to believe that respondent was a sexually violent

person and ordered him detained in an IDHS facility pending

trial.

           Following an October 2007 trial on the State's peti-

tion, a jury adjudicated respondent a sexually violent person as

defined in section 5(f) of the Act (725 ILCS 207/5(f) (West

2004)).   In February 2008, the trial court ordered respondent

committed to a secure facility for institutional care until "such

time as [r]espondent is no longer a sexually violent person."

                B. The Parties' Respective Filings

           In April 2009, respondent filed an amended petition for

discharge from IDHS custody and control pursuant to section 70 of

the Act (725 ILCS 207/70 (West 2008)).   At a hearing conducted

later that same month, the trial court ordered a psychological

evaluation of respondent, which was later conducted by Dr. Kirk

Witherspoon, a clinical and forensic psychologist.

           In October 2009, the State filed a motion for finding

of no probable cause based upon review of reevaluation report

under section 55 of the Act (725 ILCS 207/55 (West 2008)).

Attached to that motion was a 30-page report describing the 18-

month psychological reevaluation of respondent conducted by Dr.

Edward Smith, a clinical psychologist.

           In January 2010, Witherspoon filed a 32-page amended

psychological evaluation detailing his findings.

             C. The Evidence Presented at Respondent's
                       Probable-Cause Hearing

           At a January 2010 probable-cause hearing, the trial

                               - 3 -
court considered (1) respondent's amended petition for discharge

from IDHS custody and control and (2) the State's motion for

finding of no probable cause based upon review of reevaluation

report.    The evidence presented at that hearing originated from

two written psychological evaluations of respondent conducted by

Witherspoon and Smith.

            We note that in the following general summaries of the

parties' expert evaluations, we deliberately omit the specific

details of the respective psychological testing methodologies

used because such specificity is not necessary to the resolution

of the issue before us--that is, whether Witherspoon's unchal-

lenged psychological evaluation was sufficient to establish

probable cause that respondent was no longer a sexually violent

person.

          1. Witherspoon's Amended Psychological Evaluation

            After reviewing the relevant records regarding respon-

dent's conviction and detention, Witherspoon administered to

respondent two separate "psychological inventories" designed to

measure deviant sexual attitudes and behavior.   Witherspoon noted

that respondent's inventory test results did not show (1) present

or historic antisocial tendencies or (2) any form of deviant

sexual psychopathology.

            Witherspoon also administered three actuarial assess-

ment instruments designed to predict sexual-offense-recidivism

rates.    Witherspoon explained that respondent's test score on one

assessment placed him in (1) the low to moderate recidivism risk


                                - 4 -
category and (2) a category of offenders who averaged a 7%

recidivism risk rate over a 5-year period.   Witherspoon opined

that respondent's test score meant that on average, 93% of his

age group would not commit further sexual offenses.   Witherspoon

anticipated that because respondent did not exhibit difficulties

in any of the measured domains, he would be a "low" recidivism

risk, which translated into a 95% nonrecidivism rate for his age

group.

          Respondent's test score on the remaining assessments

showed that (1) respondent's antisocial tendencies were on par

with "average nonincarcerated males" and (2) none of respondent's

profile scores reached the "cause for concern" level, which

suggested a low recidivism risk.

          Witherspoon stated that his clinical impressions, which

were based on respondent's two previous reevaluations and the

data gathered during Witherspoon's current assessment, were that

respondent did not demonstrate significant emotional, interper-

sonal, behavioral, or cognitive problems.    Witherspoon identified

one exception regarding respondent's history of alcohol abuse,

which Witherspoon opined was in "long-term remission."

Witherspoon summarized his findings as follows:

          "[B]alanced consideration of the adjusted

          actuarial and structured professional judg-

          ment risk assessments procedures employed in

          the present evaluation suggested placing

          [respondent] within a 'low' relative sexual


                              - 5 -
          reoffense risk category in comparison to

          other convicted sexual offenders."

Based on his evaluation, Witherspoon recommended, in pertinent

part, that respondent be discharged from IDHS care and oversight.

             2. Smith's Psychological Reexamination

          After reviewing respondent's IDHS records, a peer

consultation, and his previous six-month psychological examina-

tion of respondent, Smith concluded that respondent met the

criteria for the following disorders: (1) paraphilia, not other-

wise specified, sexually attracted to adolescent males; (2)

alcohol abuse, in a controlled environment; and (3) personality

disorder, not otherwise specified, with antisocial traits.    Smith

explained that paraphilia is associated with (1) recurrent,

intense sexually arousing fantasies, urges, or behaviors gener-

ally involving nonhuman objects or (2) the suffering or humilia-

tion of oneself, children, or other nonconsenting adults.    Smith

also concluded that he could not rule out pedophilia, sexually

attracted to males, nonexclusive type.

          Smith assessed respondent's sexual-offense-recidivism

rate further by administering two actuarial assessment instru-

ments that were different from those administered by Witherspoon.

Respondent's test score on one assessment placed him in the

moderate to high category of recidivism risk.   Smith noted that

12% to 14.2% of sexual offenders with similar scores were charged

or convicted of another sexual offense within a 5-year period,

with that percentage increasing to 16.5% to 20.6% over a 10-year


                              - 6 -
period.   Smith noted further that respondent's score on the

second assessment placed him in the high-risk recidivism cate-

gory, but acknowledged that the specific test he administered is

more effective in predicting sexual-offense-recidivism rates for

rapists and extrafamilial child molesters than for intrafamilial

child molesters.

           Smith also identified the following five additional

risk factors, which were not measured by actuarial instruments

but instead based on two meta-analyses: (1) any personality

disorder, (2) any substance abuse, (3) intoxication during sexual

offense, (4) intimate relationship conflicts, and (5) any deviant

sexual interests.

           Based on his evaluation, Smith concluded that (1)

respondent's risk assessments coupled with the additional risk

factors suggested that a substantial probability existed that

respondent would engage in further acts of sexual violence and

(2) respondent has not made sufficient progress in lowering his

sexual-offense-recidivism risk to conclude that he is safe to be

managed in the community on conditional release.

                    D. The Trial Court's Judgment

           After noting that it had considered the respective

expert reports and the parties' arguments, the trial court made

the following findings:

           "[T]he court found [respondent] to be a sexu-

           ally violent person[--]had the appropriate

           diagnosis and findings [in February 2008].


                                - 7 -
          [The court does not] see where the [State's]

          expert, *** Smith, has found that there is

          anything different than that, based on what

          has occurred between now and the time of the

          original finding.

                  Witherspoon, if [the court] remembers

          correctly, came up with many of the same

          conclusions at the time of the original hear-

          ing, and that's in fact what was determined

          by the jury.    So it seems to [this court

          that] at this point[,] there is no probable

          cause to proceed with a full hearing on the

          matter, and the court would so rule."

          In February 2010, the trial court entered a written

order (1) denying respondent's amended petition and (2) granting

the State's motion.    Specifically, the court found that based on

a "review of the reports, concerning the 18-month re[]evaluation

of respondent," no probable cause existed to warrant an eviden-

tiary hearing to determine whether respondent remained a sexually

violent person.    (Emphasis in original.)

          This appeal followed.

      II. THE TRIAL COURT'S FINDING THAT NO PROBABLE CAUSE
            EXISTED TO WARRANT AN EVIDENTIARY HEARING

          Respondent argues that the trial court abused its

discretion by denying his amended petition for discharge from

IDHS custody and control.    Specifically, respondent contends that

the court weighed the conflicting testimony of the parties'

                                 - 8 -
respective experts instead of determining only whether the

evidence presented established probable cause to warrant an

evidentiary hearing.   We agree.

               A. The Appropriate Standard of Review

          The parties disagree over the proper standard of

review.   Respondent, citing In re Ottinger, 333 Ill. App. 3d 114,

120, 775 N.E.2d 203, 208 (2002), argues that whether probable

cause exists to warrant an evidentiary hearing under the Act is a

matter resting within the sound discretion of the trial court.

However, in the context of the case before us--namely, a case in

which the trial court considered only the written reports of the

parties' respective experts, instead of considering their

testimony--we agree with the State that our review is de novo.

See Schmitz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 405

Ill. App. 3d 240, 244, 939 N.E.2d 40, 44 (2010) (the appellate

court reviews de novo a trial court's determination that is based

solely on documentary evidence).

       B. Sexually Violent Person as Defined Under the Act

          Section 5(f) of the Act provides as follows:

          " 'Sexually violent person' means a person

          who has been convicted of a sexually violent

          offense *** 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 vio-

          lence."   725 ILCS 207/5(f) (West 2008).


                               - 9 -
                   C. Proceedings Under the Act

          Section 70 of the Act, entitled "Additional discharge

petitions," provides as follows:

          "In addition to the procedures under Section

          65 of this Act, a committed person may peti-

          tion the committing court for discharge at

          any time, and the court must set the matter

          for a probable cause hearing ***.   ***   If

          the person has not previously filed a peti-

          tion for discharge without the Secretary's

          approval, the court shall set a probable

          cause hearing and continue proceedings under

          paragraph (b)(2) of Section 65, if appropri-

          ate."   725 ILCS 207/70 (West 2008).

(Section 65(b)(2) of the Act mandates an evidentiary hearing when

a trial court finds probable cause exists to believe a respondent

is no longer a sexually violent person.)

D. Respondent's Claim That the Trial Court Abused Its Discretion
          by Denying His Amended Petition for Discharge

          As previously stated, respondent contends that the

trial court abused its discretion by weighing the conflicting

testimony of the parties' respective experts instead of determin-

ing only whether the evidence presented established probable

cause to warrant an evidentiary hearing.   In support of his

contention, respondent relies, in part, on Justice Stewart's

dissent in In re Detention of Cain, 402 Ill. App. 3d 390, 397-

400, 931 N.E.2d 337, 342-44 (2010) (Stewart, J., dissenting),

                              - 10 -
which involved facts similar to this case.

           In Cain, 402 Ill. App. 3d at 391, 931 N.E.2d at 337,

the respondent was (1) adjudicated a sexually violent person

under the Act and (2) committed to IDHS for care, custody, and

treatment.   Eight years later, after denial of numerous previous

petitions, the respondent filed another petition for discharge or

conditional release pursuant to the Act.     Cain, 402 Ill. App. 3d

at 391, 931 N.E.2d at 337-38.    At a probable-cause hearing on the

respondent's petition, the trial court considered (1) the State's

reexamination evaluation prepared by Dr. Raymond Wood and (2) a

psychological evaluation prepared by the respondent's court-

appointed expert, Dr. Kirk Witherspoon, the same expert whose

report is at issue in the present case.    Id., at 391-92, 931

N.E.2d at 338.

           Wood employed two actuarial assessment instruments to

designate the 71-year-old respondent as a moderate to high risk

to sexually reoffend.   Cain, 402 Ill. App. 3d at 393, 931 N.E.2d

at 339.   Wood's evaluation noted the respondent had additional

risk factors, which included his (1) personality disorder, (2)

low motivation for treatment, (3) lack of remorse, (4) victim-

blaming stance, (5) tolerant sex-crimes attitude, and (6) sexual

interest in children.   Wood also noted that respondent did not

warrant a reduction in his recidivism risk because of his medical

condition, age, or progress in sex-offense-specific treatment.

Cain, 402 Ill. App. 3d at 393-94, 931 N.E.2d at 339.    Wood

characterized the respondent as "dangerous" in that it was


                                - 11 -
substantially probable that he would engage in further acts of

sexual violence if released.   Cain, 402 Ill. App. 3d at 394, 931

N.E.2d at 339.

          Witherspoon countered by administering two different

actuarial assessment instruments, which showed that the respon-

dent (1) was " 'not associated with marked antisocial tendencies'

" and (2) had a profile that suggested a low recidivism risk.

Cain, 402 Ill. App. 3d at 395, 931 N.E.2d at 340.      Witherspoon

recommended that the respondent be discharged from IDHS custody

and control based on his (1) low recidivism risk due primarily to

his age, (2) increasing infirmity, and (3) abated, if not absent,

sexually deviant interests and propensities.     Id.

          In affirming the trial court's dismissal of the respon-

dent's petition for discharge or conditional release, the appel-

late court noted that the trial court "obviously gave Wood's

opinions regarding the respondent's dangerousness greater weight

than Witherspoon's."   Cain, 402 Ill. App. 3d at 397, 931 N.E.2d

at 342.

          Justice Stewart dissented, concluding that the con-

flicting opinions of the qualified experts as to the respondent's

recidivism risk constituted sufficient probable cause to warrant

an evidentiary hearing.   Cain, 402 Ill. App. 3d at 397, 931

N.E.2d at 342 (Stewart, J., dissenting).   In support of his

position, Justice Stewart noted the following:

          "The procedure the majority affirms allows

          the trial court to choose between conflicting


                               - 12 -
expert reports as the primary basis of its

decision that one who is imprisoned indefi-

nitely, albeit for treatment, is not entitled

to a trial to determine if he must remain

imprisoned indefinitely.     Instead of allowing

a trial at which disputed questions of fact

can be resolved, this procedure allows the

court to bypass all of the truth-seeking

functions and protections of our rules of

evidence.   The problem with the procedure the

majority affirms is that it is devoid of any

standard by which it can be determined what

must be presented by a detainee to justify a

finding of probable cause.     If the statutory

procedures by which a detainee is allowed to

raise the possibility of his discharge or

conditional release are to have any meaning,

then a detainee should be able to discern

what is required in order to obtain a trial

at which a trier of fact can consider and

resolve disputed issues of fact.

                     * * *

     The procedure affirmed by the majority

is contrary to the rules of evidence and is

not supported by the plain words of the Act.

It is contrary to the rules of evidence be-


                    - 13 -
          cause it requires a trial judge to do the

          impossible--make credibility and reliability

          determinations based upon the content of

          written reports of experts without any testi-

          mony from the authors.   It is not supported

          by the plain words of the Act because the

          plain meaning of a probable cause hearing is

          to determine whether reasonable grounds exist

          to believe that a detainee should be dis-

          charged or conditionally released.   If such

          grounds exist, the detainee is entitled to a

          trial where a trier of fact weighs the credi-

          bility of witnesses, not reports, and deter-

          mines the ultimate issue.   Surely, the writ-

          ten opinion of a qualified expert that a

          detainee should be discharged meets the prob-

          able cause standard."    Cain, 402 Ill. App. 3d

          at 397-400, 931 N.E.2d at 342-44 (Stewart,

          J., dissenting).

We find Justice Stewart's rationale and reasoning persuasive and

agree with his conclusion that the trial court's responsibility

at a probable-cause hearing under the Act does not involve the

weighing of conflicting expert opinions but, instead, determining

whether reasonable grounds exist to believe that a detainee

should be discharged or conditionally released.

          We find support for that conclusion in In re Detention


                             - 14 -
of Hardin, 238 Ill. 2d 33, 932 N.E.2d 1016 (2010), a case decided

the day before Cain.    One of the issues decided in Hardin in-

volved determining "the quantum of evidence necessary to estab-

lish the three elements required for a finding of probable cause

in a [sexually violent person] proceeding" under section 30 of

the Act (725 ILCS 207/30 (West 2008)).      Hardin, 238 Ill. 2d at

44, 932 N.E.2d at 1022.   In defining that evidentiary standard--

an issue of first impression--the supreme court adopted the

following rationale employed in State v. Watson, 227 Wis. 2d 167,

205, 595 N.W.2d 403, 420 (1999), a case involving a Wisconsin

statute similar to the one at issue in this case:

               "In a [sexually violent person] probable

          cause hearing, the Watson court merely re-

          quired the State to 'establish a plausible

          account on each of the required elements to

          assure the court that there is a substantial

          basis for the petition.'      (Emphasis added.)

          [Citation.]   In making that determination,

          the trial judge must consider 'all reasonable

          inferences that can be drawn from the facts

          in evidence.'   [Citation.]     The requirement

          that the evidence supporting each element be

          'plausible' indicates that trial judges need

          not ignore blatant credibility problems, but

          the Watson court stressed that this type of

          hearing was 'not a proper forum to choose


                               - 15 -
          between conflicting facts or inferences.'

          [Citation.]   Consequently[,] if after hearing

          the evidence, the trial judge decides the

          probable cause determination is supported by

          a reasonable inference, the cause should be

          held over for a full trial.

               Today we adopt the Watson evidentiary

          standards to guide our own [sexually violent

          person] probable cause proceedings.     They are

          consistent with our traditional approach in

          criminal cases and provide significant guid-

          ance to our trial courts for probable cause

          hearings in [sexually violent person] pro-

          ceedings."    Hardin, 238 Ill. 2d at 48, 932

          N.E.2d at 1024.

          The supreme court clarified the probable-cause standard

further in Hardin by quoting the following:

          "In People v. Jackson, we explained that

               'whether probable cause exists is

               governed by commonsense consider-

               ations, and the calculation con-

               cerns the probability of criminal

               activity, rather than proof beyond

               a reasonable doubt.      [Citation.]

               "Indeed, probable cause does not

               even demand a showing that the


                               - 16 -
               belief that the suspect has commit-

               ted a crime be more likely true

               than false."   [Citation.]'    (Empha-

               sis added.)    People v. Jackson, 232

               Ill. 2d 246, 275[, 903 N.E.2d 388,

               403] (2009).

          Although Jackson addressed probable cause in

          the context of a motion to quash arrest and

          suppress evidence (Jackson, 232 Ill. 2d at

          274[, 903 N.E.2d at 403]), the same concept

          is applicable in other criminal contexts,

          such as preliminary hearings (725 ILCS

          5/111-2(a) (West 2006) ***)."      Hardin, 238

          Ill. 2d at 45, 932 N.E.2d at 1022-23.

          In light of the aforementioned principles, we turn to

the merits of respondent's contention that the trial court abused

its discretion by weighing the conflicting testimony of the

parties' respective experts instead of determining only whether

the evidence presented established probable cause to warrant an

evidentiary hearing.

          In this case, the evidence respondent presented at the

January 2010 probable-cause hearing (through the report of

Witherspoon, whose expertise the State does not challenge) showed

that (1) he did not exhibit (a) present or historic antisocial

tendencies or (b) any form of deviant sexual psychopathology; (2)

he was assessed as a "low to moderate" recidivism risk on one


                               - 17 -
actuarial assessment and a "low" recidivism risk on two other

actuarial assessments; and (3) Witherspoon, a clinical and

forensic psychologist, recommended respondent's discharge from

IDHS care and control based on his expert opinion that respondent

did not demonstrate significant emotional, interpersonal, behav-

ioral, or cognitive problems.

          Notwithstanding the aforementioned evidence, the trial

court's comments immediately prior to denying respondent's

amended petition at the January 2010 hearing showed that it (1)

relied on the State's expert evaluation to find that nothing had

changed since respondent's commitment in February 2008 and (2)

discounted Witherspoon's evidence by referring only to the

evidence Witherspoon presented at the October 2007 trial on the

State's original petition to detain him.    In addition, although

the court stated in its February 2010 written order that it

considered Witherspoon's amended psychological evaluation, the

court's February 2010 order clearly shows that it placed greater

emphasis on the State's expert evidence when it (1) denied

respondent's amended petition for discharge from IDHS custody and

control under section 70 of the Act (725 ILCS 207/70 (West 2008))

and (2) granted the State's motion for finding of no probable

cause based upon review of reevaluation report under section 55

of the Act (725 ILCS 207/55 (West 2008)).

          As the supreme court stated in Hardin, 238 Ill. 2d at

52, 932 N.E.2d at 1026, a probable-cause hearing under the Act is

a preliminary proceeding that "determine[s] essential or basic


                                - 18 -
facts as to probabilities *** while remaining cognizant of the

respondent's liberty rights."    (Internal quotation marks omit-

ted.)   Here, the trial court improperly weighed the contradictory

evidence presented by the parties' respective psychological

experts instead of determining whether respondent's evidence that

he was no longer a sexually violent person was plausible.    See

Hardin, 238 Ill. 2d at 49, 932 N.E.2d at 1025 (as long as the

evidence establishes a plausible account, probable cause is

established).   Because we conclude that the evidence respondent

presented was sufficient to establish probable cause that he was

no longer a sexually violent person, we reverse the trial court's

judgment and, consistent with the legislature's intent as ex-

pressed in section 65(b)(2) of the Act, remand with directions

that the court conduct an evidentiary hearing on respondent's

amended petition for discharge from IDHS custody and control.

                          III. CONCLUSION

           For the reasons stated, we reverse the trial court's

judgment and remand with directions that it conduct an eviden-

tiary hearing pursuant to section 65(b)(2) of the Act (725 ILCS

207/65(b)(2) (West 2008)).

           Reversed; cause remanded with directions.




                                - 19 -
