                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                     In re Commitment of Dodge, 2013 IL App (1st) 113603




Appellate Court            In re COMMITMENT OF REGINALD DODGE (The People of the State
Caption                    of Illinois, Petitioner-Appellee, v. Reginald Dodge, Respondent-
                           Appellant).


District & No.             First District, Fourth Division
                           Docket No. 1-11-3603


Rule 23 Order filed        March 21, 2013
Rehearing denied           April 17, 2013
Rule 23 Order
withdrawn                  April 17, 2013
Opinion filed              May 2, 2013


Held                       The trial court’s finding that respondent was a sexually violent person
(Note: This syllabus       pursuant to the Sexually Violent Persons Commitment Act and the
constitutes no part of     commitment of respondent to a secure facility for institutional care were
the opinion of the court   upheld, despite the deficiencies in the representation provided by
but has been prepared      respondent’s counsel, including counsel’s failure to object when the trial
by the Reporter of         court indicated that it would enter a disposition without input from
Decisions for the          respondent, since respondent failed to show that he was prejudiced or that
convenience of the         the disposition would have been different if the parties had been heard
reader.)
                           before the disposition was entered.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-CR-80007; the
Review                     Hon. Michael McHale, Judge, presiding.


Judgment                   Affirmed.
Counsel on                 Daniel T. Coyne, Matthew M. Daniels, and Elizabeth D. Leeb, all of Law
Appeal                     Offices of Chicago-Kent College of Law, of Chicago, for appellant.

                           Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
                           Solicitor General, Michael M. Glick and John R. Schleppenbach,
                           Assistant Attorneys General, of counsel), for the People.


Panel                      PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
                           opinion.
                           Justice Epstein concurred in the judgment and opinion.
                           Justice Pucinski specially concurred, with opinion.



                                              OPINION

¶1          Following a jury trial, respondent Reginald Dodge was found to be a sexually violent
        person under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et
        seq. (West 2006)). The trial court immediately conducted a “dispositional hearing” and
        ordered that respondent be committed to institutional care in a secure facility before the
        parties had been given the opportunity to present an argument or evidence as to the
        appropriate disposition. On appeal, respondent challenges numerous instances of counsel’s
        allegedly ineffective assistance both at trial and with regard to the dispositional hearing. We
        affirm the judgment finding respondent to be a sexually violent person. We also affirm the
        dispositional order committing respondent to institutional care in a secure facility, albeit
        somewhat reluctantly given the superficial hearing that occurred in this case.

¶2                                         I. BACKGROUND
¶3          In 2007, the State filed a petition to commit respondent to the Department of Human
        Services (DHS) as a sexually violent person. The State alleged that (1) respondent was
        serving a 50-year prison term for rape and deviant sexual assault; (2) he suffered from a
        mental disorder, specifically, paraphilia toward nonconsenting persons; and (3) respondent’s
        mental disorder made it substantially probable that he would engage in future acts of sexual
        violence.
¶4          Before trial, the State filed a motion in limine seeking, among other things, an order
        precluding respondent from placing any information regarding the potential commitment
        options before the jury. The State argued that such information would be improper and
        tantamount to commenting on sentencing during a criminal trial. Respondent’s attorney
        objected, stating that “there will be cross[-]examination of the experts regarding their opinion
        as to what is required for his commitment, whether or not it should be in a secure facility.”


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     The trial court granted the State’s motion, finding that such information “is for a
     dispositional hearing,” rather than trial.
¶5       At trial, the State presented the expert testimony of Dr. John Arroyo, a licensed
     psychologist, who testified that the Illinois Department of Corrections (IDOC) maintained
     a list of sex offenders who were subject to parole or discharge. Those individuals were
     screened to determine whether they were “okay” to be released or whether they were in the
     2% of inmates who required further evaluation. Dr. Arroyo evaluated respondent to
     determine if he was a candidate for commitment under the Act. After reviewing respondent’s
     master file, Dr. Arroyo interviewed respondent on November 30, 2010, and prepared a
     report. In forming an opinion, he considered respondent’s criminal history.
¶6       Respondent committed his most recent sexually violent offense in 1982 (case No. 82 CR
     9737) while on parole for a prior sex offense. Respondent, then 27 years old, entered the
     victim’s home through a balcony while armed with a knife and forced the victim to engage
     in oral, anal and vaginal sex. Respondent believed “she enjoyed it a little.” Respondent was
     convicted of rape, deviant sexual assault, armed robbery and home invasion. In addition,
     respondent was convicted of attempted residential burglary (case No. 82 CR 9766) as well
     as residential burglary (case No. 82 CR 9765) in 1982. In the latter case, the victim shouted
     upon finding respondent standing in his kitchen. Respondent fled, leaving behind a knife,
     pornographic magazines and a dildo.
¶7       In 1974, respondent, then 19 years old, was convicted of rape (case No. 74 CR 6032)
     when he forced a group of college women into a bedroom at gunpoint and assaulted one
     woman in front of the others. During his interview, respondent said that he picked the
     prettiest woman and believed that the women “were out for a good time” because they were
     wearing shorts and bikinis. Respondent also stated, however, that he was not attempting to
     justify his behavior and it would not have made a difference if they were dressed as goblins.
     Respondent believed that no one was hurt. In addition, respondent was convicted of another
     rape and burglary in 1974 (case No. 74 CR 6033). There, respondent, who had a gun, woke
     the victim and forced her to have sex while two other people ransacked her home. In a third
     case in 1974, respondent was convicted of burglary, armed robbery and attempted rape (case
     No. 75 CR 2176). Respondent entered through a window, took the victim’s gun and
     threatened to rape her but she persuaded him to leave. Furthermore, respondent had an
     additional theft case in 1974. Respondent also reported that when he was 14 years old, he
     was stabbed while raping a woman and was surprised at her reaction.
¶8       Dr. Arroyo testified that he discounted the possibility that the rapes just happened to
     occur while respondent was breaking into the homes because respondent conducted the rapes
     prior to taking items. Dr. Arroyo also considered respondent’s nonsexual criminal history,
     including one offense in which he shot at a federal officer. In addition, respondent had more
     than 125 disciplinary tickets in prison, including tickets for possessing shanks and blocking
     locks with razor blades. Respondent also failed to successfully complete a prior probation
     sentence. Furthermore, the IDOC had offered respondent sex offender treatment but he
     declined. Respondent stated that the authorities had eliminated his sexual feelings toward
     women by locking him up for so long and that he “didn’t feel much sexually anymore.” He
     was currently in the DHS treatment facility for sex offenders but declined to receive

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       treatment there as well, preferring to wait for the outcome of his trial before deciding if he
       would participate in treatment.
¶9         Dr. Arroyo testified that he considered the Diagnostic and Statistical Manual of Mental
       Disorders (DSM-IV-TR) in support of his conclusion that respondent had “paraphilia not
       otherwise specified, nonconsent and antisocial personality disorder.” Dr. Arroyo explained
       that paraphilia is a sexual fixation involving recurrent, intense sexually arousing fantasy,
       sexual urges or behaviors involving nonconsenting persons for a period of at least six
       months. The second criterion of paraphilia was that the urges or fantasies cause clinically
       significant distress or impairment in social functioning. In respondent’s case, he had been
       engaging in the aforementioned sexual urges and fantasies for years and continued to engage
       in sexually violent conduct despite having been sanctioned for it. In addition, Dr. Arroyo
       explained that antisocial personality disorder involved, among other things, a persistent
       pattern of violating others’ rights since age 15 and for a period of years. Dr. Arroyo observed
       that respondent had failed to conform to social norms regarding lawful behavior, recklessly
       disregarded the safety of others and lacked remorse, as indicated by rationalizing or
       indifference to his mistreatment of others. Specifically, respondent had stated that one victim
       somewhat enjoyed the rape and respondent did not believe he had harmed anyone with
       respect to the incident with the college students. Dr. Arroyo also stated that although
       antisocial personality disorder was not sexual in nature, one illness exacerbated the other.
       Furthermore, Dr. Arroyo lacked sufficient information to form an opinion as to potential
       substance abuse. Dr. Arroyo opined that respondent’s mental disorders affected his emotional
       or volitional capacity and predisposed him to engage in future acts of sexual violence.
¶ 10       Dr. Arroyo examined actuarial studies in determining respondent’s likelihood of
       committing another sex offense. According to Static-99R, respondent was high risk because
       he had chosen to engage in offending behavior despite having been sanctioned for it, and
       declined offers to be treated. Respondent was also in the high risk category according to the
       Minnesota Sex Offender Screen Tool Revised (MnSOST-R). In addition, respondent scored
       in the 83rd percentile as compared to other inmates in the Hare Psychopathy Check List
       Revised (PCLR), which examines antisocial behavior based on a respondent’s current state
       of mind. Dr. Arroyo also considered that respondent had committed offenses both as a
       juvenile and as an adult, had violated conditional release and had committed a new offense
       while under community supervision. Furthermore, although age is a protective factor that
       tends to decease risk, respondent was 56 years old, relatively young and able-bodied, and still
       able to reoffend. Similarly, although treatment was a protective factor, respondent had
       declined treatment. Dr. Arroyo opined that respondent was substantially probable to engage
       in future acts of sexual violence due to his mental disorders. Dr. Arroyo testified that by
       substantially probable, he meant “[m]uch more likely than not.”
¶ 11       On cross-examination, Dr. Arroyo testified that respondent was not of significant age,
       which would be 15 years or less of remaining life expectancy. Dr. Arroyo also testified,
       however, that he did not know respondent’s life expectancy and that sex offenders over the
       age of 60 were found to reoffend at the lowest rate. Dr. Arroyo further testified that while in
       prison, respondent did not receive tickets for sexual incidents, alcohol use or drug use.
¶ 12       Dr. Edward Smith, a clinical psychologist, testified that he conducted sexually violent

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       persons evaluations through a contract with DHS. Dr. Smith reviewed respondent’s master
       file, interviewed him, administered psychological testing and wrote reports. In forming his
       opinion, Dr. Smith considered respondent’s criminal history. Dr. Smith’s recitation of
       respondent’s criminal offenses substantially corroborated Dr. Arroyo’s testimony but Dr.
       Smith added that in case number 74 CR 6033, respondent reported being under the influence
       of drugs and alcohol during the offense. Dr. Smith also added that in case number 75 CR
       2176, respondent told the victim that someone had paid him to rape her. When the victim
       said she would pay respondent the same amount not to rape her, he said he would return the
       next day to let her know who was paying him to rape her. In addition, as to case number 82
       CR 9737, respondent believed his 50-year sentence was unfair because the offense was not
       heinous.
¶ 13        Dr. Smith testified that respondent talked about his sexual offenses in a very matter-of-
       fact manner with little emotional expression. He also used statements that minimized the
       significance of his crimes, stating that he had “only” vaginally raped his victim. In addition,
       he discussed the acts as if they were consensual. During most encounters, he was armed and
       broke into an individual’s residence. Dr. Smith also considered respondent’s nonsexual
       crimes, which included shooting at a federal officer, and his behavior in prison. Dr. Smith
       substantially corroborated Dr. Arroyo’s testimony regarding respondent’s infractions in
       prison and added that he was sentenced to segregation time for telling a female staff member
       that he loved her. Respondent declined officers of treatment while in prison because he
       believed he did not need it. He also declined treatment at DHS.
¶ 14        Respondent’s answers to the Minnesota Multiphasic Sex Inventory (MMPI-2) revealed
       that he minimized the significance of past events by using different justifications or excuses
       for the offenses he committed, reflecting that he felt little remorse but knew his conduct was
       wrong. Respondent stated that he was not as interested in sex as most men but did have basic
       sexual urges. In diagnosing respondent, Dr. Smith consulted the DSM-IV-TR. He diagnosed
       respondent with paraphilia involving attraction to nonconsenting females, antisocial
       personality disorder, alcohol abuse and cannabis abuse. As to the paraphilia diagnosis, Dr.
       Smith observed that respondent committed multiple rapes over a period of years, typically
       with the use of a weapon. In support of his finding that respondent had antisocial personality
       disorder, Dr. Smith noted that respondent had engaged in criminal activity from an early age
       and had acknowledged engaging in animal torture as an adolescent. In addition, paraphilia
       and antisocial personality disorder affected respondent’s emotional or volitional capacity and
       predisposed him to engage in acts of sexual violence. Respondent’s substance abuse also led
       to poor decision making.
¶ 15        To determine respondent’s likelihood of committing sexual offenses in the future, Dr.
       Smith considered the Static-99 and Static-99R. The two tests considered essentially the same
       factors but the latter test also considered age. Even with a one-point reduction based on his
       age, respondent was in the high risk category according to Static-99R. In addition,
       respondent fell within the high risk category of the MnSOST-R. Furthermore, an individual’s
       attitude toward sex crimes was a dynamic factor that could be changed with treatment and
       treatment was also a protective factor that could lower risk, but respondent had refused
       treatment. Although some research suggested that the likelihood of reoffending begins to

                                                -5-
       diminish at age 60, other studies showed that the occurrence of sexual offenses did not
       necessarily decline with age. Dr. Smith opined that respondent had engaged in sexually
       violent offenses, suffered from paraphilia and antisocial personality disorder, and was
       dangerous because his mental disorder made it substantially probable that he would engage
       in future acts of sexual violence. By substantially probable, Dr. Smith meant, “[m]ore likely
       than not.”
¶ 16       On cross-examination, Dr. Smith testified that the diagnosis of paraphilia was based on
       respondent’s history before 1982 and acknowledged that respondent had not engaged in
       sexual misconduct in prison. Dr. Smith testified that although the recurrence of sexual
       offenses diminished after age 60, it would be inaccurate to say that no one committed an
       offense after that age. Dr. Smith further testified, however, that in the very small sample
       forming the basis of comparison in Static-99R, no sex offenders over 60 years old were
       brought to the authorities’ attention.
¶ 17       Following Dr. Smith’s testimony, the State published before the jury certified copies of
       several of respondents’ convictions (case Nos. 82 CR 9737, 74 CR 6032, 74 CR 6033 and
       75 CR 2176) and then rested. Respondent rested without testifying or presenting evidence.
       The jury then found respondent to be a sexually violent person. The court immediately
       entered an order committing respondent to institutional care in a secure facility, rather than
       conditional release, before the parties were given a meaningful opportunity to present any
       arguments or evidence. Respondent now appeals.

¶ 18                      II. COUNSEL’S PERFORMANCE AT TRIAL
¶ 19       On appeal, respondent first asserts that counsel was ineffective at the trial which led to
       the jury’s finding that respondent is a sexually violent person. The Act permits the State to
       extend a criminal defendant’s incarceration beyond the time that he would otherwise be
       subject to release if that defendant is found to be “sexually violent.” In re Detention of
       Samuelson, 189 Ill. 2d 548, 552 (2000). At trial, the State must prove beyond a reasonable
       doubt that the respondent is a “sexually violent person” because (1) the respondent has been
       convicted of a sexually violent offense; (2) the respondent suffers from a mental disorder;
       and (3) he is dangerous because his mental disorder makes it substantially probable that he
       will commit future acts of sexual violence. 725 ILCS 207/5(f), 15, 35(d)(2) (West 2006). In
       addition, a “mental disorder” is “a congenital or acquired condition affecting the emotional
       or volitional capacity that predisposes a person to engage in acts of sexual violence.” 725
       ILCS 207/5(b) (West 2006).
¶ 20       Proceedings governing a petition alleging that a defendant is a sexually violent person
       are civil in nature. Samuelson, 189 Ill. 2d at 552; 725 ILCS 207/20 (West 2006).
       Nonetheless, the Act provides a respondent with the right to the effective assistance of
       counsel as provided in Strickland v. Washington, 466 U.S. 668, 686 (1984). People v.
       Rainey, 325 Ill. App. 3d 573, 585-86 (2001); 725 ILCS 207/25(c)(1) (West 2006). A
       successful ineffective assistance of counsel claim requires the claimant to prove that
       counsel’s conduct fell below an objective standard of reasonableness and a reasonable
       probability exists that but for counsel’s unprofessional conduct, the outcome would have


                                                -6-
       been different. In re Detention of Tittlebach, 324 Ill. App. 3d 6, 10 (2001). In addition, both
       prongs of the test must be satisfied in order for a respondent to prevail. In re Commitment
       of Bushong, 351 Ill. App. 3d 807, 817 (2004); In re Detention of Erbe, 344 Ill. App. 3d 350,
       362 (2003). Furthermore, a respondent must overcome the strong presumption that the
       challenged action or inaction resulted from sound trial strategy, rather than incompetence,
       and every effort should be made to eliminate the distorting effects of hindsight. Erbe, 344
       Ill. App. 3d at 362. Trial counsel “is not required to manufacture a defense where no valid
       defense exists.” People v. Elam, 294 Ill. App. 3d 313, 323 (1998).
¶ 21        As a threshold matter, respondent acknowledges the two-prong test set forth in
       Strickland, but argues that no showing of prejudice is required where counsel entirely fails
       to subject the prosecution’s case at trial to meaningful adversarial testing. People v.
       Kozlowski, 266 Ill. App. 3d 595, 600 (1994) (citing United States v. Cronic, 466 U.S. 648,
       659 (1984)). Nonetheless, the record rebuts respondent’s contention that counsel failed to
       subject the State’s case to meaningful adversarial testing at trial.
¶ 22        Before trial, counsel argued that the State had not shown probable cause, presented
       several challenges to the State’s pretrial motion in limine, and moved to strike a potential
       juror for cause. At trial, counsel’s trial strategy was to undermine the second and third
       elements of the sexually violent person definition by challenging the State’s reliance on
       respondent’s past, rather than present, conduct and mental state and by portraying respondent
       as a former sex offender who was no longer a threat in light of his age and his lengthy prison
       sentence. See Samuelson, 189 Ill. 2d at 552, 559 (“A defendant cannot be involuntarily
       committed based on past conduct.”) Trial counsel also objected to the admission of certified
       copies of conviction, moved for a directed finding and filed a motion for a new trial.
¶ 23        As stated, the record does not support respondent’s assertion that trial counsel did
       nothing to attack the second and third elements necessary to find that respondent is a sexually
       violent person. An attorney takes his client as he finds him. See People v. Flores, 245 Ill.
       App. 3d 149, 157 (1993) (defense counsel is not required to manufacture a defense where
       none exists). Given the evidence presented, it appears that trial counsel had limited means
       of challenging the State’s evidence that respondent was mentally ill and that, as a result, it
       was substantially probable that he would commit future acts of sexual violence. Nonetheless,
       counsel’s theory, as shown by his arguments and examination of the State’s witnesses, was
       that even if the State could prove that respondent was formally mentally ill and a risk, the
       jury should not believe that respondent was presently mentally ill.
¶ 24        Similarly, counsel’s attempt to limit the application of the experts’ testimony to past
       events also suggested to the jury that the State could not prove that respondent was presently
       dangerous and much more likely than not to commit a future act of sexual violence.
       Moreover, counsel attempted to show it was unlikely that respondent would do so because
       he was 56 years old, almost 60 years old, and that the recidivism rate was low for sex
       offenders after the age of 60. As respondent acknowledges, this was a viable defense.
       Counsel also attacked the third element by suggesting respondent’s lengthy incarceration had
       significantly deceased his sex drive. Although respondent contends that counsel did not argue
       in closing that the State had failed to meet its burden of proof, that proposition was clearly
       the import of counsel’s argument, even if counsel did not expressly state as such. In light of

                                                -7-
       trial counsel’s foregoing strategies, albeit ultimately unsuccessful ones, we categorically
       reject respondent’s assertion that the State’s case was not subjected to meaningful adversarial
       testing at trial. Accordingly, respondent must establish both prongs of Strickland in order to
       obtain relief.
¶ 25        Respondent contends that trial counsel was ineffective for failing to move to strike two
       prospective jurors for cause after they indicated that they were not proficient with English.
       When read in its entirety, however, the record shows that both jurors were able to understand
       English (see 705 ILCS 305/2(3) (West 2006)). The trial court gave the jury several
       instructions during the voir dire and upon inquiry, none raised their hands to indicate a lack
       of understanding or acceptance of the instructions. When the court individually asked
       prospective juror Marusarz numerous questions, he provided answers that were both
       responsive and appropriate. When asked whether anything would interfere with his ability
       to be fair, the following colloquy ensued:
                “MR. MARUSARZ: I think my English may not be good enough for, you know, this
            kind of–
                THE COURT: Well, I just went through 20 questions with you and we have bantered
            back and forth pretty quickly.
                MR. MARUSARZ: Because I understand about some. When you talk before, when
            you speak, sometimes it’s hard to understand everything.”
¶ 26        The court also individually asked prospective juror Mazor numerous questions and
       received appropriate responses. When asked whether anything would interfere with his
       ability to be fair, he stated as follows:
                “MR. MAZOR: Only thing, my proficiency with English.
                THE COURT: Oh, no, I have to disagree with you there. You were doing just fine.
                MR. MAZOR: I’m talking about lawyer jargon.
                THE COURT: Lawyer jargon, well, we’ll keep it all right.”
¶ 27        The voir dire of Marusarz and Mazor, when read as a whole, showed that despite their
       own concerns, they were both able to sufficiently understand English. See In re Commitment
       of Trulock, 2012 IL App (3d) 110550, ¶ 44 (in determining whether a juror is competent, the
       trial court should consider the entire voir dire examination of that juror). In addition, the
       entire jury would be apprised of “lawyer jargon” through the jury instructions received at the
       end of trial. Accordingly, respondent’s attorney had no reason to move to strike Marusarz
       and Mazor for cause and his performance was neither deficient nor prejudicial.
¶ 28        Next, we reject respondent’s assertion that trial counsel was ineffective for remarking in
       his opening statement that respondent would testify at trial. Specifically, respondent contends
       that his ultimate decision not to testify was foreseeable because respondent repeatedly
       declined to be transported to pretrial hearings. At one pretrial hearing, trial counsel stated
       that respondent said he did not like the trip to court. The court then acknowledged that it was
       a long trip. At best, respondent’s absence at pretrial hearings showed that he disliked long
       bus rides and did not feel the need to attend short hearings during which very little occurred,
       not that he would decline to attend a trial at which he may be committed.


                                                -8-
¶ 29        As trial drew near, counsel told the court that respondent would be at the trial and, as
       represented, respondent did attend. During his opening statement, counsel stated that
       respondent would testify and the jury would “get a feel for him,” essentially urging the jury
       to see him as a now harmless older man, “a 56-year-old American Indian.” After the State
       rested its case, however, respondent’s answers to the trial court’s questions showed that
       respondent himself, rather than his attorney, decided that respondent would not testify.
       Respondent has failed to demonstrate how respondent’s failure to attend pretrial hearings has
       any bearing on the likelihood that respondent would attend his trial but not testify. Cf. People
       v. Briones, 352 Ill. App. 3d 913 (5th Dist. 2004) (counsel’s performance may be
       unreasonable if the failure to present promised testimony is foreseeable). Although counsel
       stated at one pretrial hearing that it was possible that respondent would not testify, counsel
       also stated that respondent intended to testify. Furthermore, every case presents the
       possibility that the defendant or respondent will change his mind about testifying. Absent
       evidence that respondent told his attorney prior to trial that respondent would not testify, or
       evidence that counsel advised respondent not to testify, it was entirely reasonable for counsel
       to implement respondent’s prospective testimony into his opening statement. See People v.
       Manning, 334 Ill. App. 3d 882, 893 (2002) (the First District presumed counsel’s failure to
       present the defendant’s promised testimony was not deficient where the defendant did not
       allege that counsel’s opening statement was made without consulting the defendant or that
       counsel advised him not to testify, and where the record did not show why the defendant did
       not testify); but see Briones, 352 Ill. App. 3d at 919 (the Fifth District found counsel was
       deficient for failing to present the defendant’s promised testimony where counsel failed to
       make a record showing that the defendant changed his mind about testifying or that counsel
       broke her promise as a matter of sound trial strategy).
¶ 30        Respondent also contends that trial counsel was ineffective in cross-examining Dr.
       Arroyo because counsel failed to establish that respondent was unlikely to reoffend in light
       of his age. On direct examination, Dr. Arroyo testified that although age can be a protective
       factor that decreases risk, respondent, 56 years old, was relatively young. On cross-
       examination, counsel attacked that testimony. After Dr. Arroyo testified that a significant age
       required 15 years or less of life expectancy, trial counsel elicited testimony that Dr. Arroyo
       did not know respondent’s life expectancy. Counsel also elicited testimony from Dr. Arroyo
       that sex offenders over the age of 60 were found to reoffend at the lowest rate. Although
       respondent seems to suggest that counsel would be ineffective for eliciting anything less than
       an unequivocal concession that respondent’s age made it impossible for him to reoffend, we
       find counsel’s cross-examination of Dr. Arroyo was reasonable in light of the facts with
       which counsel was presented. See People v. Tolefree, 2011 IL App (1st) 100689, ¶ 34
       (counsel’s decision as to when and how to cross-examine a witness is generally a matter of
       trial strategy that will not support an ineffective assistance of counsel claim).
¶ 31        We also find the record does not support respondent’s assertion that trial counsel
       intended to impeach Dr. Arroyo with prior deposition testimony but failed to order the
       deposition transcripts as required to perfect his impeachment. During cross-examination, trial
       counsel attempted to ask Dr. Arroyo about his deposition testimony and the following
       colloquy ensued:

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                “MR. TELISMAN [Assistant Attorney General]: I’m objecting because it appears
           that counsel is going to attempt to impeach the witness, and I don’t believe he can perfect
           it. *** The transcript was never typed up. ***
                MR. DOSCH [respondent’s attorney]: I’m not trying to impeach him, I’m trying to
           elaborate on the last thing he testified to is [sic] about the 15-year-life expectancy, which
           he also discussed during the deposition.
                MR. TELISMAN: The moment I hear a question beginning ‘Didn’t you say in your
           deposition,’ that sounds like impeachment to me.
                MR. DOSCH: I’m just drawing his attention to that.
                THE COURT: I’m concerned as well. *** Do you expect to go to things he said at
           the deposition versus what he’s saying here today at trial? I would have to agree with the
           State, if that’s the direction you’re going, there’s no way you’re going to be able to
           perfect it.
                MR. DOSCH: I’m not trying to perfect anything, Judge. I’m trying to get some
           information out regarding–
                THE COURT: You can ask him as he sits here today.
                MR. DOSCH: I can.
                THE COURT: What his belief is or what he said during his direct, but I can’t see you
           going anywhere into what he said at a deposition unless you have the transcript. Okay?
                MR. DOSCH: I’m not intending to do that.”
¶ 32       Thus, the record shows neither that trial counsel attempted to impeach Dr. Arroyo nor
       that there was any impeachment to perfect. Accordingly, respondent cannot demonstrate that
       counsel was deficient or that respondent was prejudiced as a result.
¶ 33       Next, respondent asserts that trial counsel was ineffective for failing to object to the
       State’s opening statement and Dr. Arroyo’s irrelevant testimony regarding the sex offender
       evaluation process. Specifically, respondent asserts that counsel failed to object to the State’s
       opening remark that the IDOC screens “every single person who has [committed] a sexually
       violent offense,” but that only “[a]bout 2 percent of that population gets out, and [goes] onto
       the next level, which is an evaluation level *** to see if they’re a sexually violent person.”
       In addition, respondent argues that trial counsel failed to object when the State elicited the
       same information from Dr. Arroyo. This information was relevant, however, to explain how
       Dr. Arroyo came to evaluate respondent. Even assuming counsel should have objected to this
       testimony as irrelevant, respondent cannot demonstrate prejudice resulting from this minor
       deficiency.
¶ 34       Respondent does not dispute that he has been convicted of a sexually violent offense. In
       addition, both experts testified that he suffers from mental disorders, specifically, paraphilia
       as to nonconsenting females and antisocial personality disorder. Dr. Smith also opined that
       respondent engaged in substance abuse. Moreover, Dr. Arroyo opined that it was
       substantially probable that respondent would engage in future acts of sexual violence and that
       by “substantially probable,” he meant “[m]uch more likely than not.” Similarly, Dr. Smith
       opined that it was substantially probable that respondent would engage in future acts of

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       sexual violence and that by “substantially probable,” he meant “[m]ore likely than not,”
       somewhat corroborating Dr. Arroyo’s opinion. In light of such testimony, respondent cannot
       demonstrate that the outcome would have been different had information regarding the
       evaluation process not been placed before the jury.
¶ 35        Respondent further asserts that trial counsel misunderstood the law. Specifically,
       respondent alleges that counsel did not understand that “substantially probable” under the
       Act means “much more likely than not.” (Emphasis added.) In re Commitment of Curtner,
       2012 IL App (4th) 110820, ¶¶ 30-37; In re Detention of Hayes, 321 Ill. App. 3d 178, 188
       (2001). Respondent assumes that counsel misunderstood the law because he did not address
       the deficiency in Dr. Smith’s opinion that respondent’s mental disorder merely made it
       “[m]ore likely than not” that he would engage in future sexually violent acts. People v.
       Steward, 295 Ill. App. 3d 735, 742 (1998) (counsel may be deemed ineffective where he has
       misunderstood the applicable law). Notwithstanding respondent’s speculation, counsel may
       have decided to pursue a different strategy in light of Dr. Arroyo’s testimony that respondent
       was “[m]uch more likely than not” (emphasis added) to reoffend. See Erbe, 344 Ill. App. 3d
       at 373 (it is the trier of fact’s responsibility to evaluate the witnesses’ credibility, resolve
       evidentiary conflicts and decide what reasonable inferences are to be drawn). In addition, had
       trial counsel cross-examined Dr. Smith regarding this testimony, it may have given him the
       opportunity to correct his testimony and placed undue emphasis on unfavorable evidence.
       We find that counsel’s conduct was neither deficient nor prejudicial in this regard.

¶ 36                             III. DISPOSITIONAL HEARING
¶ 37       Finally, respondent asserts that trial counsel failed to follow through on respondent’s
       right to a dispositional hearing. The Act requires that the trial court conduct a hearing prior
       to entering a commitment order. People v. Winterhalter, 313 Ill. App. 3d 972, 981 (2000).
       Section 40(b)(1) states that “[t]he court shall enter an initial commitment order under this
       Section pursuant to a hearing held as soon as practicable after the judgment is entered that
       the person who is the subject of a petition under Section 15 is a sexually violent person.
       (Emphases added).” 725 ILCS 207/40(b)(1) (West 2006). Section 40(b)(1) also states that
       the trial court “may adjourn the hearing to obtain additional information if the court lacks
       sufficient information” (emphasis added; internal quotation marks omitted) to determine
       whether the respondent should be placed in institutional care in a secure facility or be placed
       on conditional release. Tittlebach, 324 Ill. App. 3d at 12 (quoting 725 ILCS 207/40(b)(2)
       (West 1998)). It follows that the court may also determine that it has sufficient information
       to make that determination without adjourning proceedings. Indeed, this court has
       specifically held that the Act grants the trial court discretion to immediately hold a
       dispositional hearing where the court believes neither a supplemental examination nor a
       predisposition investigation is necessary to frame the commitment order. In re Commitment
       of Fields, 2012 IL App (1st) 112191, ¶ 73 (citing 725 ILCS 207/40(b)(1) (West 2010)).
¶ 38       That said, the Act does not state that the court may enter a commitment order without a
       hearing. In addition, the Act enumerates the following factors for the court to consider in
       determining whether a respondent should be committed to institutional care in a secure


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       facility or whether he should be committed to conditional release: (1) the nature and
       circumstances of the behavior alleged in the petition (725 ILCS 207/15(b)(1) (West 2006));
       (2) the respondent’s mental history; (3) the respondent’s present mental condition; and (4)
       “what arrangements are available to ensure that the person has access to and will participate
       in necessary treatment” (725 ILCS 207/40(b)(2) (West 2010)). At the time the petition was
       filed, section 40(b) also listed as factors the respondent’s prospective living arrangements
       and ability to support himself upon release. 725 ILCS 207/40(b) (West 2006).
¶ 39       After the trial court entered judgment on the jury’s verdict, the State made the following
       remarks:
                “Your Honor, pursuant to Section 40 of the Act, the Section 40B1 states the Court
           shall enter a commitment order as pursuant to [a] hearing held as soon as practicable after
           the judgment is entered. Otherwise the Court can either set the matter for a dispositional
           hearing or simply commit the Respondent to secure institutional care for care, custody,
           and treatment.
                If the Court deems it necessary, of course, the Court can order a predispositional
           evaluation which will be done by the DHS evaluator.”
       The court then asked respondent’s attorney for his position on what should happen next but
       did not permit him to answer. Instead, the following colloquy ensued:
                “THE COURT: I’m going to consider this a dispositional hearing. I don’t feel I need
           any further evidence to make a decision on the appropriate next steps for Mr. Dodge, so–
                MR. DOSCH [respondent’s attorney]: Well, irregardless, Judge, I will need a date
           to file a motion for new trial.
                THE COURT: Of course. Of course, I agree.
                Nevertheless, based on the testimony that I have heard from two expert witnesses
           during this trial, I find Mr. Dodge is not an appropriate candidate for conditional release.
           I don’t need to hear any additional information. I don’t need a predispositional
           investigation conducted in any way, shape or form.
                He’s not in treatment. He is suffering from a mental disorder. Those are my findings.
           He will be remanded to the TDF until further notice.”
¶ 40       We agree with respondent that this proceeding does not comport with a meaningful
       dispositional hearing. The court asked trial counsel for his position on whether a continuance
       was needed before the disposition was entered but, having decided to proceed to the
       disposition without permitting counsel to answer, the court did not ask trial counsel for his
       position on the appropriate disposition. Instead, the court committed respondent to a secure
       facility without the presentation of any argument or additional evidence while respondent’s
       attorney stood mutely by. In this “hearing,” then, the respondent was not heard at all.
¶ 41       We cannot help but find that trial counsel’s conduct in failing to object to the court’s
       entry of a disposition without input from respondent fell below an objective standard of
       reasonableness. Cf. People v. Whalum, 2012 IL App (1st) 110959, ¶ 22 (the waiver rule may
       be relaxed where an objection would fall on deaf ears). We acknowledge that although
       counsel indicated at the hearing on the motion in limine that he wanted to cross-examine the


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       State’s expert witnesses regarding the appropriate disposition, the record does not
       demonstrate that trial counsel had any favorable evidence to present at the hearing on the
       motion in limine. Nonetheless, trial counsel could have argued, as he essentially did at trial,
       that respondent did not presently suffer from a significant mental disorder. Counsel could
       have argued that commitment to a secure facility was therefore unnecessary. Counsel may
       also have been able to argue that if respondent was ordered to participate in treatment while
       on conditional release, he would do so. In addition, counsel could have argued that the State
       had not presented specific evidence that conditional release was not appropriate for
       respondent. At a minimum, counsel could have stated respondent’s position regarding the
       appropriate disposition.
¶ 42        To be clear, counsel is not always required to present evidence or a thorough argument.
       Elam, 294 Ill. App. 3d at 323 (counsel “is not required to manufacture a defense where no
       valid defense exists”); see also In re Dante W., 383 Ill. App. 3d 401, 411-13 (2008) (counsel
       is not per se ineffective for conceding his client’s guilt to offenses for which there is
       overwhelming evidence). In addition, the trial court need not expressly apply the facts before
       it to the factors enumerated in the Act. Nonetheless, the Act contemplates more than what
       ensued here. Counsel was deficient for failing to ensure that respondent was heard before the
       disposition was entered.
¶ 43        Notwithstanding these troubling proceedings, this court lacks any legal basis to grant
       respondent a new dispositional hearing. Respondent has not characterized the deficiency that
       occurred here as trial court error. As a result, any error committed by the trial court does not
       present a basis to provide respondent with a new dispositional hearing, but rather, our power
       to grant respondent his desired relief is limited to the context of his ineffective assistance of
       counsel claim.
¶ 44        As with the purported deficiencies at trial, respondent asks this court to find that this case
       presents exceptional circumstances that warrant presuming prejudice, rather than requiring
       respondent to demonstrate actual prejudice. See Florida v. Nixon, 543 U.S. 175, 190 (2004)
       (circumstances justifying a presumption of ineffectiveness are infrequent); Kozlowski, 266
       Ill. App. 3d at 599 (prejudice is presumed under only exceptional circumstances). A
       respondent must overcome a high burden for a court to forsake the Strickland test (see Dante
       W., 383 Ill. App. 3d at 415) and here, respondent has cited no cases applying this exception
       to commitment proceedings under the Act. In addition, this is not a case where trial counsel
       failed throughout the proceedings in the trial court to test the State’s case. Cf. People v.
       Shelton, 281 Ill. App. 3d 1027, 1030-31, 1037 (1996) (where the assistant public defender
       (the APD) was appointed to represent the defendant regarding his pro se petition for
       discharge, expressed surprise that the respondent could file the petition, and presented no
       argument whatsoever, the APD failed to act as a true advocate); Kozlowski, 266 Ill. App. 3d
       at 599-601 (counsel completely failed to subject the State’s case to adversarial testing where
       counsel relied on a legally unavailable defense). On the contrary, counsel did submit the
       State’s case to adversarial testing at trial, notwithstanding that his strategies did not prevail.
       See People v. Woods, 2011 IL App (1st) 092908, ¶ 29 (the court declined to apply Cronic to
       the defendant’s ineffective assistance of counsel claim where counsel conceded the
       defendant’s guilt but nonetheless acted as his advocate throughout proceedings). Moreover,

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       the serious consequences of a dispositional hearing do not themselves justify presuming
       prejudice, as courts have declined to apply this rule even where a disposition has grave
       consequences. See Florida, 543 U.S. at 190-92 (the Supreme Court applied Strickland rather
       than Cronic where trial counsel conceded the defendant’s guilt in a capital case); People v.
       Harris, 182 Ill. 2d 114, 151-55 (1998) (where the defendant asserted that trial counsel, who
       had contested the defendant’s guilt at trial, was ineffective for stipulating to the defendant’s
       eligibility for the death penalty, the supreme court applied Strickland rather than Cronic and
       found no prejudice); see also People v. Adkins, 239 Ill. 2d 1, 35-47 (2010) (where the
       defendant challenged trial counsel’s concession that the defendant committed residential
       burglary in a capital case, the supreme court found that counsel was not presumptively
       ineffective under Cronic). We further note that treating counsel’s failure to present a case for
       conditional discharge on respondent’s behalf as automatic reversible error may encourage
       attorneys in future cases to abstain from doing so in order to create a basis for reversal on
       appeal. Accordingly, respondent must demonstrate prejudice pursuant to Strickland in order
       to obtain relief.
¶ 45        Based on the record before us, however, respondent cannot demonstrate prejudice.
       Respondent would likely have received a more meaningful dispositional hearing but for
       counsel’s performance. Nonetheless, it is extremely unlikely under these circumstances that
       the outcome of that hearing would be different, as necessary to show prejudice within the
       meaning of Strickland. Tittlebach, 324 Ill. App. 3d at 10; see also People v. Richardson, 401
       Ill. App. 3d 45, 47 (2010) (it is not enough to show that the error had some conceivable effect
       on the outcome of the proceeding, but rather, the defendant must demonstrate a reasonable
       probability that the fact finder would have had reasonable doubt of his guilt). The evidence
       presented at trial and properly before the trial court at the dispositional hearing was
       overwhelming. See Bushong, 351 Ill. App. 3d at 817 (respondent could not demonstrate that
       counsel was ineffective where “the State’s evidence was so overwhelming that respondent
       was not prejudiced”). Central to the trial court’s finding that respondent was not suitable for
       conditional release was respondent’s mental disorder and lack of treatment. See 725 ILCS
       207/40(b)(1) (West 2006). The evidence presented at trial strongly suggests that respondent
       is unlikely to attend treatment because he does not appreciate the seriousness of his
       condition. Moreover, because he has declined to receive treatment to date, he has not yet
       begun the process of recovery. Thus, the court may have found that respondent’s release in
       his present condition would pose too great of a threat to others. The trial court, having before
       it the facts adduced at trial, had ample evidence from which to determine that conditional
       discharge would not be appropriate.
¶ 46        Moreover, respondent has not identified any available argument or evidence that could
       have changed the disposition had counsel insisted that the parties be heard before the
       disposition was entered. Even if this court were to speculate that such evidence existed, it is
       not properly before us in considering whether respondent can demonstrate prejudice from
       counsel’s inaction. It is well settled that a reviewing court cannot find counsel was
       ineffective based on the alleged possibility that evidence exists but does not appear in the
       record due to counsel’s inaction. See Richardson, 401 Ill. App. 3d at 46-48 (respondent could
       not show counsel was ineffective for failing to offer expert testimony where any such

                                                -14-
       evidence would be outside the record on appeal); People v. Phillips, 383 Ill. App. 3d 521,
       544-45 (2008) (the reviewing court declined to review the defendant’s claim that counsel was
       ineffective for failing to introduce a report as substantive evidence where this claim relied
       on matters not contained in the record); People v. Villanueva, 382 Ill. App. 3d 301, 308-09
       (2008) (in reviewing the defendant’s ineffective assistance of counsel claim, the reviewing
       court could not infer that a favorable witness existed where doing so would ask the court to
       venture outside the record); People v. Millsap, 374 Ill. App. 3d 857, 863 (2007) (where the
       defendant asserted that counsel failed to file a motion to suppress statements to the police,
       the reviewing court declined to consider the claim where it was not clear that the record
       contained all of the evidence that could have been presented and thus, the claim involved
       matters outside the record). As a result, respondent’s only means for obtaining relief must
       be found in the Act or the Code of Civil Procedure.
¶ 47       As stated, we are troubled by the proceedings in this case. Commitment clearly places
       respondent’s liberty interest at stake. See In re Commitment of Weekly, 2011 IL App (1st)
       102276, ¶ 47. Nonetheless, in reviewing respondent’s ineffective assistance of counsel claim,
       we are constrained by the limitations of Strickland. Bushong, 351 Ill. App. 3d at 816-20
       (where trial counsel did not preserve a meritorious due process claim, the reviewing court
       considered the claim in the context of the respondent’s ineffective assistance of counsel
       assertion but nonetheless found that respondent was not prejudiced where the evidence was
       overwhelming). Accordingly, while we find counsel was deficient for failing to protect
       respondent’s right to a genuine hearing, respondent cannot demonstrate the requisite
       prejudice under these circumstances. With that said, in the future, we admonish the trial court
       and trial counsel to consider the serious consequences of the Act and treat the dispositional
       hearing provided by the Act as more than a mere formality. See also Fields, 2012 IL App
       (1st) 112191, ¶¶ 73-79 (the trial court erred by not holding a dispositional hearing to afford
       the respondent an opportunity to present evidence where the trial court denied his request to
       do so).
¶ 48       For the foregoing reasons, we affirm the trial court’s judgment.

¶ 49       Affirmed.

¶ 50       JUSTICE PUCINSKI, specially concurring.
¶ 51       I respectfully add my special concurrence. In this matter we are asked if the judge took
       a short cut on the dispositional hearing. I believe he did and that a full hearing and findings
       are required under the statute because a liberty interest is at stake. However, since I agree that
       the appellants have failed to satisfy the second prong of Strickland, I do not see how, without
       having judge error before us, this matter could be decided by us in any other way.




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