                                          2015 IL App (3d) 140497

                                Opinion filed October 1, 2015
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                 A.D., 2015

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 21st Judicial Circuit,
                                                       )       Iroquois County, Illinois,
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-14-0497
            v.                                         )       Circuit No. 06-CF-138
                                                       )
     CHRISTOPHER BAILEY,                               )       Honorable
                                                       )       Gordon L. Lustfeldt,
            Defendant-Appellant.                       )       Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justice Wright concurred in the judgment and opinion.
           Justice Schmidt concurring in part, dissenting in part, with opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          On May 29, 2012, defendant, Christopher Bailey, having been found a sexually

     dangerous person (SDP) in 2007, filed a pro se petition alleging recovery (725 ILCS 205/9(a),

     (e) (West 2012)). Following a bench trial, the court found that defendant remained an SDP. On

     appeal, defendant argues that the trial court, in finding that he remained an SDP, failed to find

     that he was substantially probable to sexually reoffend if not confined, as required by People v.

     Masterson, 207 Ill. 2d 305, 330 (2003). We vacate the trial court's ruling and remand for a new

     hearing on defendant's recovery petition.
¶2                                                 FACTS

¶3          In 2007, defendant was determined to be an SDP. The trial court appointed the Director

     of the Department of Corrections as the guardian of defendant and committed defendant to the

     Department of Corrections for an indefinite period for treatment. On appeal, this court affirmed

     the trial court's ruling that defendant was an SDP. People v. Bailey, 405 Ill. App. 3d 154 (2010).

¶4          On May 29, 2012, defendant filed a pro se petition alleging recovery (725 ILCS 205/9

     (West 2012)). The matter proceeded to a bench trial held on November 14, 2013. At trial, a

     sociopsychiatric evaluation report, performed pursuant to the Sexually Dangerous Persons Act

     (Act) (725 ILCS 205/9(a) (West 2012)), was entered into evidence. The report was dated April

     17, 2013, and was compiled by Dr. Kristopher Clounch, a licensed psychologist; Dr. N.

     Vallabhaneni, a board certified psychiatrist; and Dale Spitler, a licensed clinical social worker.

     Clounch, the primary author of the report, also testified for the State. The report indicated that

     defendant had not made sufficient progress in sexual offender treatment and was in need of

     improvement in most of the areas of evaluation. Defendant received a score of 7 on the Static-

     99R instrument, placing him in the high-risk category. Offenders with that score have been

     found to sexually reoffend at a rate of 5.25 times that of an average sex offender. The report also

     indicated defendant had been found in possession of pornographic or sexually arousing materials

     on a number of occasions while in prison.

¶5          Clounch testified that, in his opinion, defendant remained an SDP. Defendant testified on

     his own behalf, and acknowledged having acquired pornographic materials that he knew he was

     not permitted to have while in prison.

¶6          The court found that defendant remained an SDP. The court stated as follows:




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"I have considered the report that was prepared. I'm required by law to consider it

and I've considered all the evidence that was presented. I think the report speaks

for itself. It is fairly clear that there has been no progress and that [defendant] is

still sexually dangerous.

        Now, the sexually dangerous person is, of course, a form of mental

diagnosis or disorder that is set by state law. You have to have a mental disease

or disorder in order to be sexually dangerous. Those things are the nature where

they don't heal themselves like when you cut your leg and it heals up on its own.

Those things are by nature the kind of things that require treatment, intensive

treatment over a period of time to get better. And under the sexually dangerous

persons law if a person avails himself of that treatment and makes progress then

he can be released if he meets a certain goal.

        *** Even in your own testimony, [defendant], you didn't describe or point

to any progress that you made in therapy so I don't know how all the sudden you

are not dangerous when there was a finding that you were dangerous and you had

no treatment.

        I understand [defense counsel's] contentions about the report. This is how

most medical or psychological reports are done. By nature they rely on the

hearsay statements and documents of other people and collect them together and

make a report. But even if you take out the stuff that [defense counsel]

complained about and just went with the interview between [defendant] and these

3 mental health professionals and looked at the Static-99, and I understand your




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                    concerns about that, the only thing I can say is it is probably the most widely used

                    test they got. ***

                             ***

                             But on this record I can't make any finding other than to find that the State

                    has proved by clear and convincing evidence that you remain sexually dangerous.

                    There's been no, no progress in treatment, constant violations of all kinds and they

                    might be minor, but violations nonetheless. And you are as the report states an

                    intelligent man. You could do it if you wanted to and you haven't wanted to.

                    That's the bottom line, I think."

     The court did not enter a formal, written order, but entered into the record the following minutes:

     "Evidence and arguments heard. [T]he court finds that the State has meet [sic] its burden of

     proof and that by clear and convincing evidence, the defendant is found to still be sexually

     dangerous and is ordered remained committed for further treatment."

¶7          Defendant subsequently filed a motion to reconsider, in which he argued that the State's

     evidence was insufficient to prove by clear and convincing evidence that he remained an SDP.

     The trial court denied the motion and stated as follows:

                    "[T]he real significance for me is the fact that some of the things that he is alleged

                    to have violated while he was in IDOC would have been violations if he had been

                    on conditional release. Well, if you can't behave yourself in prison where there's

                    no privacy and there's constant supervision then how is the court supposed to

                    believe that you have regained the necessary amount of self control that it would

                    take to be on conditional release or simply to be released out in the community

                    free?"


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¶8                                                 ANALYSIS

¶9            On appeal, defendant argues that the trial court failed to make an explicit finding that he

       was substantially probable to sexually reoffend if not confined, as required by Masterson, 207

       Ill. 2d at 330. On this basis, defendant contends that the trial court's order that he remain

       committed for further treatment should be reversed outright. Defendant also argues that the

       evidence presented by the State was insufficient to prove by clear and convincing evidence that

       he remained an SDP.

¶ 10          The State, in response, posits that the trial court did make a finding that defendant was

       substantially probable to sexually reoffend if not committed. Specifically, the State contends

       that the trial court's comments upon denial of defendant's motion to reconsider satisfied the

       Masterson requirement. Alternatively, the State argues that any error the trial court committed in

       failing to make the Masterson finding does not mandate reversal. For the reasons set forth

       below, we find that the trial court failed to comply with our supreme court's clear rule set forth in

       Masterson. Further, we find that the proper remedy for such a failure is vacatur of the trial

       court's order that defendant remain committed and remand for a full rehearing on defendant's

       recovery petition.

¶ 11                                     I. The Masterson Requirement

¶ 12          In recovery proceedings under the Act, it is the State's burden to prove, by clear and

       convincing evidence, that the defendant remains an SDP. 725 ILCS 205/9(b) (West 2012). The

       statutory elements of an SDP are: (1) a mental disorder existing for at least one year prior to the

       filing of the petition; (2) criminal propensities to the commission of sex offenses; and (3)

       demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children.

       725 ILCS 205/1.01 (West 2012); People v. Bingham, 2014 IL 115964, ¶ 27.


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¶ 13          In Masterson, 207 Ill. 2d at 330, our supreme court held that a finding of sexual

       dangerousness must "be accompanied by an explicit finding that it is 'substantially probable' the

       person subject to the commitment proceeding will engage in the commission of sex offenses in

       the future if not confined." The court has recently rejected the argument that this requirement

       may be satisfied when the evidence adduced would be sufficient to support such a finding,

       reiterating that "Masterson plainly requires an explicit finding***." (Emphasis added.)

       Bingham, 2014 IL 115964, ¶ 35.

¶ 14          Though Masterson and Bingham each arose in the context of a commitment proceeding,

       in which a defendant is declared sexually dangerous for the first time, the Act does not redefine

       SDP for the purposes of the recovery hearing. See 725 ILCS 205/9 (West 2012). Indeed, the

       requirement that a trial court make such an explicit finding has been applied in recovery

       proceedings. See, e.g., People v. Donath, 2013 IL App (3d) 120251.

¶ 15          In the present case, the trial court clearly made no explicit finding that there was a

       substantial probability defendant would engage in the commission of sex offenses in the future if

       not confined. We reject the State's contention that the trial court's comments upon the denial of

       defendant's motion for reconsideration were sufficient to constitute such a finding.

¶ 16          Initially, we note that our supreme court has been quite clear in requiring that the

       Masterson finding be "explicit." Masterson, 207 Ill. 2d at 330; Bingham, 2014 IL 115964, ¶ 35.

       Such a finding is plainly not explicit where it requires this court to engage in interpretation of the

       trial court's intention, as the State suggests we do here. Further, we would note that the

       Masterson court requires that the substantial probability finding "accompan[y]" a finding of

       sexual dangerousness. Masterson, 207 Ill. 2d at 330. Here, the trial court's comments were

       made days after its original finding.


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¶ 17          Even if we were to engage in the State's suggested analysis, we could not find that the

       trial court's comments amount to a finding that there was a substantial probability defendant

       would engage in the commission of sex offenses in the future if not confined. The court's

       comments 1 make no reference to a "substantial probability" that defendant might reoffend, but

       merely indicate the court's doubts concerning defendant's self-control. The supreme court has

       found that a substantial probability of committing sex offenses in the future if not confined

       means that it is " 'much more likely than not' " (In re Detention of Hayes, 321 Ill. App. 3d 178,

       189 (2001) (quoting In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086 (2000))) that the

       subject will commit offenses in the future, not just that the subject has some condition affecting

       volitional capacity. Indeed, the court in Masterson clearly considered volitional impairment and

       the "substantially probable" finding to be two separate requirements for civil commitment.

       Masterson, 207 Ill. 2d at 328-29. The trial court's comments in the case at hand gave no

       indication that it found defendant "much more likely than not" to commit sex offenses if not

       confined, and was far too vague to satisfy the Masterson requirement.

¶ 18                                                II. Remedy

¶ 19          Having found that the trial court failed to make the mandatory Masterson finding, we

       must next decide the proper remedy for such a failure. Though defendant urges that we outright

       reverse the order of the trial court, and the State suggests that we may take no action at all,



              1
                  "Well, if you can't behave yourself in prison where there's no privacy and there's

       constant supervision then how is the court supposed to believe that you have regained the

       necessary amount of self control that it would take to be on conditional release or simply to be

       released out in the community free?"


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       neither party is able to cite any authority in supports of its position. Indeed, it appears that the

       present matter is one of first impression for this or any other reviewing court in Illinois.

¶ 20          At the outset of our analysis, we recognize that our supreme court in Bingham, while

       reaffirming the mandate of Masterson, affirmed the appellate court's reversal of a finding of

       sexual dangerousness. Bingham, 2014 IL 115964, ¶ 35. However, because the supreme court

       found the evidence in general had been insufficient for the trial court to find the defendant

       sexually dangerous, it "need[ed] not determine whether the lack of an explicit finding alone

       constitutes reversible error." Id. Accordingly, the issue of a remedy for the lack of an explicit

       finding, absent other errors, remains unresolved. 2

¶ 21          We hold that a trial court's failure to make a finding that there was a substantial

       probability defendant would engage in the commission of sex offenses in the future if not

       confined may not amount to harmless error. Our supreme court has held on multiple occasions

       that a finding of sexual dangerousness must be accompanied by a substantial probability finding.

       Masterson, 207 Ill. 2d at 330; Bingham, 2014 IL 115964, ¶ 35. The court has explicitly rejected

              2
                  Though defendant here does proffer an insufficiency of the evidence argument, the lone

       contention within that argument is that "the State failed to prove by clear and convincing

       evidence that [defendant] will probably engage in the commission of sex offenses in the future if

       not confined." We interpret defendant's argument as an argument in the alternative. In other

       words, defendant argues primarily that the trial court made no finding on substantial probability

       to reoffend; in the alternative, he argues that to the extent the court did make such a finding, it

       was erroneous. Because we find that the trial court made no such finding, it would be

       inappropriate for this court to weigh the evidence for a first time and determine whether it was

       sufficient to support such a finding.


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       the position the failure of a court to make that finding is cured where the evidence at trial would

       have supported the finding. Id. To find that such an error is harmless would be to completely

       ignore the supreme court's opinions in Masterson and Bingham. A rule with no remedy would

       be no rule at all.

¶ 22           Though such an error may not be harmless, it does not follow that the error must result in

       an outright reversal of the trial court's order, as defendant here suggests. At this point in the

       analysis, we do find it relevant that defendant is presently civilly committed, and seeking his

       release via a recovery petition. He has already been through initial civil commitment

       proceedings, and had been adjudicated an SDP. See Bailey, 405 Ill. App. 3d at 155-56. An

       outright reversal would result in defendant's immediate release. However, the Act contains a

       number of procedures and guidelines for the release of a former SDP pursuant to a recovery

       petition. 725 ILCS 205/9(e), 10 (West 2012). Release pursuant to an outright reversal may have

       the unintended effect of bypassing these statutory guidelines. More broadly, we doubt the

       supreme court, in adopting the Masterson rule, contemplated that outright reversal would be the

       proper remedy for violation of that rule. Indeed, in setting forth the rule originally, the court

       remanded the matter so that the trial court may apply it upon rehearing. Masterson, 207 Ill. 2d at

       330. Accordingly, we vacate the trial court's order and remand the matter for rehearing on

       defendant's recovery petition.

¶ 23           Finally, we find it necessary to point out that the hearing on remand should be a full

       hearing on the merits of defendant's recovery petition, rather than on the sole issue of defendant's

       probability to reoffend. This result is dictated by the Act. See 725 ILCS 205/9(b) (West 2012);

       Masterson, 207 Ill. 2d at 330. Because the trial court's finding that defendant remained sexually

       dangerous was not accompanied by the required Masterson finding, its order was invalid under


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       the Act. See Masterson, 207 Ill. 2d at 330 (clarifying that substantial probability finding is an

       "implicit requirement" of the Act). The court's order having been vacated by this court,

       defendant's recovery petition remains unresolved. The Act provides that pursuant to recovery

       proceedings, "[t]he State has the burden of proving by clear and convincing evidence that the

       applicant is still [an SDP]." (Emphasis added.) 725 ILCS 205/9(b) (West 2012).

¶ 24          Numerous courts have held that the elements of SDP under the Act refer to present

       mental conditions, rather that conditions that may have existed in the past. See, e.g., People v.

       Bailey, 265 Ill. App. 3d 758 (1994). In People v. Sly, 82 Ill. App. 3d 742 (1980), for example,

       the defendant, on remand, was retried under the original petition and found to be sexually

       dangerous. The appellate court reversed, finding that the 10-year-old psychiatric evaluation did

       not speak to whether he was presently a sexually dangerous person. Id. at 747. Consequently,

       we have found that a trial court must determine whether a defendant is sexually dangerous on the

       date of its decision. Bailey, 265 Ill. App. 3d at 763. We agree with the dissent that the State may

       opt to stand on its original evidence—including the sociopsychiatric evaluation report from April

       of 2013—if it so chooses. However, as that evidence will be approaching three years old by the

       time of rehearing, we must caution that "the remoteness in time of the psychiatrist's report [is an]

       important factor[] to be considered by the trial court" when it determines whether a person is

       sexually dangerous under the Act. Id.

¶ 25          A full rehearing is also the most desirable of the other possible options. Remand so that

       the trial court could simply make the required finding would amount to mere formality, and

       would undermine the purpose of the rule set out in Masterson. Similarly, rehearing on the sole

       issue of probability to reoffend, should the trial court find defendant substantially probable to

       reoffend, would circumvent Masterson's requirement that a substantial probability finding


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       "accompan[y]" a civil commitment order. Masterson, 207 Ill. 2d at 330. Accordingly we find

       vacatur of the trial court's order and remand for a full rehearing to be the proper remedy.

¶ 26                                             CONCLUSION

¶ 27          The judgment of the circuit court of Iroquois County is vacated and the cause is

       remanded with instructions.

¶ 28          Vacated; cause remanded with instructions.

¶ 29          JUSTICE SCHMIDT, concurring in part and dissenting in part.

¶ 30          I agree that the failure to include the required specific language requires remand.

       However, on remand the parties should be given the opportunity to offer any new evidence and

       argument, then the trial court should decide the case. If the court finds that defendant is sexually

       dangerous, it must include a finding of a substantial probability to reoffend. I do not agree that

       the two findings are separate issues.

¶ 31          If there is no substantial probability to reoffend, then defendant is not sexually dangerous.

       A person is a SDP because he or she has a substantial probability to reoffend. The supreme court

       requires the explicit language to make sure that the trial court fully considers what is necessary to

       find one a SDP.

¶ 32          I do not think the hearing necessarily needs to start again from square one. The evidence

       has been presented. Again, the parties should have the opportunity to offer any new evidence.

       The majority holds that a “full rehearing is also the most desirable of the other possible options.”

       Supra ¶ 25. I believe that the majority construes the “past” and “present” terms too literally.

       Every hearing on a SDP involves “past” conduct. It seems unlikely that all the evaluations,

       interviews, et cetera, could take place on the day of trial. If the trial court denies defendant’s

       release based upon the evidence and makes the required findings, defendant is not barred from

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bringing another petition in the future should he have new evidence to support his claims that he

is no longer sexually dangerous.




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