                                Illinois Official Reports                          Digitally signed by
                                                                                   Reporter of Decisions
                                                                                   Reason: I attest to the
                                                                                   accuracy and integrity of
                                                                                   this document
                                        Appellate Court                            Date: 2016.02.22 11:00:07
                                                                                   -06'00'




                      In re Commitment of Simons, 2015 IL App (5th) 140566



Appellate Court            In re COMMITMENT OF STEPHEN SIMONS (The People of the
Caption                    State of Illinois, Petitioner-Appellee, v. Stephen Simons, Respondent-
                           Appellant).


District & No.             Fifth District
                           Docket No. 5-14-0566


Rule 23 order filed        October 28, 2015
Motion to
publish granted            December 1, 2015
Opinion filed              December 1, 2015


Decision Under             Appeal from the Circuit Court of Madison County, No. 01-MR-74; the
Review                     Hon. Neil T. Schroeder, Judge, presiding.



Judgment                   Affirmed.



Counsel on                 Curtis L. Blood, of Collinsville, for appellant.
Appeal
                           Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
                           Solicitor General, Michael M. Glick and Gopi Kashyap, Assistant
                           Attorneys General, of counsel), for the People.



Panel                      JUSTICE WELCH delivered the judgment of the court, with opinion.
                           Justices Goldenhersh and Chapman concurred in the judgment and
                           opinion.
                                             OPINION

¶1       The respondent, Stephen Simons, a sexually violent person (SVP) committed to the
     Department of Human Services (DHS), appeals the decision of the circuit court of Madison
     County dismissing his petition for discharge and motion to appoint an expert. For the
     following reasons, we affirm.
¶2       After being adjudged an SVP, the respondent was committed to the DHS for care and
     treatment in a secure facility. In re Commitment of Simons, 213 Ill. 2d 523 (2004). The
     respondent has a lengthy history of committing sexually violent offenses against children,
     which includes aggravated criminal sexual abuse of a child under 13; aggravated criminal
     sexual assault of a child under 13; and criminal sexual assault of his 13-year-old
     stepdaughter. Id. at 525. Based on a review of the respondent’s record, it appears that since
     the respondent’s commitment, he has largely refused to participate in annual reexamination
     reviews, has declined interviews with DHS personnel, and has failed to participate in sex
     offender treatment.
¶3       On February 28, 2014, the respondent met briefly with DHS evaluator Dr. David Suire.
     The respondent was provided four forms, which included information related to SVP
     commitment, a consent form for reexamination, a notice of his right to petition for discharge,
     and a petition for discharge waiver. During this interaction, the respondent discussed briefly
     his current activities and present-day health status, but refused to consent to a formal
     interview, did not file a petition for discharge, and did not waive his right to petition for
     discharge at that time. Without a formal examination, Dr. Suire relied on past reexaminations
     to determine whether the respondent remained an SVP. The record reveals that after Dr.
     Suire considered the respondent’s history, present mental disorders, risk factors, age, and
     treatment participation, he concluded that the respondent had failed to participate in sex
     offender specific treatment over the past year. Further, Dr. Suire’s annual report, filed with
     the court on June 4, 2014, concluded that although the respondent’s age, at the time 62, could
     indicate some reduction in estimated risk, it was substantially probable that he would engage
     in acts of sexual violence if not confined to a secure facility. Thus, the respondent’s condition
     had not “so changed” since the last reexamination, such that he was no longer an SVP.
¶4       On June 4, 2014, the State filed a motion for a finding that there was no probable cause to
     believe the respondent’s SVP status had changed. The circuit court set the motion for hearing
     for July 17, 2014.
¶5       Pursuant to section 65(b)(1) of the Sexually Violent Persons Commitment Act (725 ILCS
     207/65(b)(1) (West 2014)), if a person does not file a petition for discharge, yet fails to waive
     the right to petition, then the probable cause hearing consists only of a review of the
     reexamination reports and arguments on behalf of the parties. Here, the respondent did not
     file a petition for discharge and failed to waive his right to petition at the time of
     reexamination on February 28, 2014, thus, the circuit court was required only to review past
     reexamination reports, as well as arguments on behalf of the parties at the hearing on July 17,
     2014. Following the hearing, the court concluded that no probable cause existed to warrant
     an evidentiary hearing to determine whether the respondent remained an SVP, pursuant to
     section 65(b)(2) of the Sexually Violent Persons Commitment Act (725 ILCS 207/65(b)(2)
     (West 2014)). The respondent was ordered to remain subject to institutional care in a secure
     facility.

                                                 -2-
¶6         On July 31, 2014, 14 days after the circuit court’s July 17, 2014, order, the respondent
       simultaneously filed two motions, first, a petition for discharge, and second, a motion for the
       appointment of Dr. Craig Rypma, an expert, for reexamination purposes. The respondent’s
       petition was titled “Petition for Discharge” and stated, in relevant part:
                    “Respondent *** prays *** that [he] be DISCHARGED from DHS, as he no
               longer is a sexually violent person. The petitioner would base his request for
               DISCHARGE on his progress while at the DHS facility, his lack of sexual drive, his
               age, his no longer being a SVP, and any and all additional factors this court may
               consider, including his no longer being a danger to society; and he further would
               request [appointment of] an expert to examine him and make a report to this court
               regarding his request for conditional release; and upon the State[’]s petition for
               finding no probable cause; as[k] our expert to examine the Respondent for all matter
               herein one Dr. Craig Rypma ***.”
¶7         On August 6, 2014, the circuit court entered orders setting the petition for discharge for
       hearing on September 25, 2014, as well as appointing Dr. Rypma as a reexamination expert
       for the respondent.
¶8         On August 25, 2014, the State moved to dismiss the respondent’s petition for discharge
       and vacate the circuit court’s August 6, 2014, order appointing Dr. Rypma. The State argued
       that the respondent’s petition for discharge, filed July 31, 2014, was untimely and improper,
       as it was filed 14 days after the July 17, 2014, no probable cause hearing; that appointment of
       an expert was unwarranted; and that the respondent remained an SVP based on past
       reexamination reports, which Dr. Suire relied on in forming his conclusions within his 2014
       report.
¶9         On September 25, 2014, the circuit court heard arguments on the State’s motion to vacate
       and dismiss the petition for discharge. The State argued that the respondent’s filing of the
       petition for discharge was “essentially asking the Court to say that since the most recent
       periodic examination that the Respondent has changed such that he’s no longer [an] SVP.”
       The State argued that since his commitment in 2002, the respondent had been diagnosed with
       pedophilic disorder, a lifelong disorder, and that the filing was improper, as the court had
       found him to be an SVP on July 17, 2014, just two weeks before his petition for discharge
       was filed with the court.
¶ 10       Counsel for the respondent argued that he was “under the impression [he] could file a
       petition for discharge” after the no probable cause hearing. Further, counsel stated, “I would
       perhaps say it’s oversight on my part thinking that I could continue in the past tradition I had
       done in the 16 years of filing these petitions whenever my client required me or asked me to
       do it ***.”
¶ 11       On October 14, 2014, the circuit court vacated its order appointing Dr. Rypma, and
       dismissed the respondent’s petition for discharge as untimely, as he failed to file prior to the
       July 17, 2014, no probable cause hearing. The respondent timely filed an appeal on
       November 10, 2014.
¶ 12       The issue before this court is whether the circuit court properly dismissed the
       respondent’s petition for discharge and motion appointing an expert. Because resolution of
       this issue involves statutory construction, our review is de novo. Lutkauskas v. Ricker, 2015
       IL 117090, ¶ 29.


                                                  -3-
¶ 13       The Sexually Violent Persons Commitment Act (Act) authorizes the civil commitment of
       persons deemed sexually violent. 725 ILCS 207/1 et seq. (West 2012). The Act allows the
       State to petition the court for the civil commitment of SVPs after the court conducts a hearing
       “to determine whether there is probable cause to believe that the person *** is a sexually
       violent person.” 725 ILCS 207/30(b) (West 2012).
¶ 14       Following a civil commitment, the DHS must conduct a reexamination of the committed
       person’s mental condition within six months of the initial commitment, and additional
       reexaminations must occur in at least 12-month intervals. 725 ILCS 207/55(a) (West 2012).
       At the time of each reexamination under section 55 of this Act, the committed person shall
       receive written notice of the right to petition the court for discharge, accompanied by a
       waiver of rights. 725 ILCS 207/65(b)(1) (West 2012). If the committed person does not
       waive the right to petition for discharge, the court then conducts a hearing to determine if
       there is probable cause to warrant an evidentiary hearing on whether respondent is an SVP.
       Id.
¶ 15       The State argues that the Act allows a committed person to file a petition for discharge
       only in a limited window of time, which, the State contends, is after receiving notice of the
       respondent’s right to petition at the time of the yearly reexamination, but before the probable
       cause hearing. Thus, because the respondent filed after the hearing, the State maintains that
       the petition and accompanying motion are untimely.
¶ 16       A plain reading of section 65(b) of the Act provides that the respondent’s right to file a
       petition for discharge is triggered by the yearly reexamination required by section 55 of the
       Act. Furthermore, the repeal of section 70 of the Act in 2012, which permitted the filing of a
       petition for discharge “at any time,” makes it clear that the legislature specifically intended to
       prohibit filings in this manner. 725 ILCS 207/70 (West 2000). Thus, the circuit court did not
       err in finding the petition for discharge and motion for appointment of an expert untimely
       under the Act.
¶ 17       The respondent concedes that the Act required his petition for discharge to be filed at the
       time of his yearly reexamination; however, he maintains that this concession does not resolve
       this appeal. Rather, he grounds his argument in the timing of the filing of the petition for
       discharge, arguing that the petition was a postjudgment motion.
¶ 18       In addressing whether the respondent’s petition for discharge was a valid postjudgment
       motion, we turn to section 2-1203(a) of the Code of Civil Procedure (Code), which governs
       postjudgment motions in cases decided without a jury and provides that:
               “In all cases tried without a jury, any party may, within 30 days after the entry of the
               judgment or within any further time the court may allow within the 30 days or any
               extensions thereof, file a motion for a rehearing, or a retrial, or modification of the
               judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203(a) (West
               2010).
¶ 19       The respondent essentially argues that this court must consider what a postjudgment
       motion must have and what it need not have. Relying on Kingbrook, Inc. v. Pupurs, 202 Ill.
       2d 24 (2002), the respondent argues that because he filed within 14 days after the July 17,
       2014, order, the petition is timely, as it was filed within the required 30-day window. Further,
       the respondent argues that pursuant to Kingbrook, the only qualification besides timeliness is
       a request for section 2-1203(a) relief, and that no specificity within the petition is mandated.


                                                   -4-
       The respondent contends that his request for discharge and conditional release is “close
       enough” to a request to rehear and vacate or modify the court’s previous order. We disagree.
¶ 20       In Kingbrook, the issue before our supreme court concerned whether a postjudgment
       motion must present some detail or argument to toll the time to appeal. Id. at 31. The motion
       at issue was titled “ ‘Motion For Reconsideration,’ ” and the substance of the document
       requested “ ‘the Court to reconsider its decision granting severing [sic] judgment in favor of
       the Defendants.’ ” Id. at 26-27. Our supreme court found no basis for a specificity
       requirement in the plain language of the Code or the supreme court rules. Id. at 31.
¶ 21       Unlike Kingbrook, the question to be addressed here, similar to that in Heiden v. DNA
       Diagnostics Center, Inc., 396 Ill. App. 3d 135, 139-40 (2009) (court found plaintiff’s motion
       was not a valid postjudgment motion, because although the caption and prayer for relief
       requested reconsideration, the substance of the motion asked only for clarification of the
       court’s earlier ruling, thus the request was not directed against the judgment, as one of the
       forms of relief set out in section 2-1203(a) was not sought), is whether the respondent sought
       section 2-1203(a) relief at all.
¶ 22       In another post-Kingbrook case, Shutkas Electric, Inc. v. Ford Motor Co., 366 Ill. App.
       3d 76, 81 (2006), plaintiff’s caption asked for modification, but the substance of the motion
       requested the addition of a party plaintiff and for leave to file a second amended complaint.
       The court concluded that regardless of the caption, the substance of the motion lacked a form
       of section 2-1203(a) relief, including a rehearing, a retrial, a modification, a vacation of an
       earlier judgment or for other similar relief. Id. Thus, the court dismissed the motion because
       “[t]he nature of a motion is determined by its substance rather than its caption.” (Internal
       quotation marks omitted.) Id.
¶ 23       After a careful review, we do not interpret the respondent’s request to be a valid
       postjudgment motion. As the State properly argues, it is important to note that section 2-1203
       postjudgment motions for relief serve “to alert the trial court to errors it has made and to
       afford an opportunity for their correction.” In re Marriage of King, 336 Ill. App. 3d 83, 87
       (2002). Not only did the respondent’s caption read, “Petition for Discharge,” but the
       substance of the petition requested discharge and conditional release. The respondent did not
       refer to, let alone challenge, the reliability of Dr. Suire’s 2014 report. Instead, the petition
       essentially requested the court to grant a new proceeding to examine the respondent’s mental
       condition independent from the court’s previous order. For all intents and purposes, the
       respondent’s filing invited the court to treat the petition as a petition for discharge, not as a
       postjudgment motion directed at the previous judgment. See Heiden, 396 Ill. App. 3d at 140;
       Shutkas Electric, 366 Ill. App. 3d at 81. Thus, the court did not err in dismissing the petition
       for discharge and motion for appointment of an expert.
¶ 24       For the foregoing reasons, the judgment of the circuit court of Madison County is
       affirmed.

¶ 25      Affirmed.




                                                   -5-
