No. 2--00--1379

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

The following relevant facts are taken from the record. In1990, respondent pleaded guilty to one count of aggravated criminalsexual abuse and was placed on probation in case No. 90--CF--945. Respondent committed the offense when he fondled the buttocks of aseven-year-old girl and placed his finger in her vagina. Theincident occurred while the victim was at his home visiting hisdaughter. In two separate incidents in 1993, while respondent wason probation, he sexually assaulted his 11-year-old daughter whenhe fondled her breasts, buttocks, and vagina while she was bathing. Both times, respondent brandished a knife and threatened to killher if she disclosed the incidents to anyone (case No. 93--DF--1156). Based on the incidents against his daughter, respondent'sprobation was revoked and he was sentenced to a seven-year term ofimprisonment in case No. 90--CF--945. Respondent pleaded guilty toone count of criminal sexual abuse in case No. 93--DF--1156, andthereafter he was sentenced to a seven-year term of imprisonment tobe served consecutively to the seven-year term imposed in case No.90--CF--945.

Respondent began serving his sentence for the convictions atthe Department of Corrections (DOC). Prior to release, he wasexamined by Dr. Agnes Jonas. Based on her evaluation, it wasdetermined that respondent was not to be the subject of a petitionto commit. Thereafter, respondent was released and placed onmandatory supervised release (MSR) on August 29, 1998.

Respondent allegedly violated the terms of the MSR by movingback into the home of his family where the daughter, whom he hadsexually assaulted, still resided. However, on November 4, 1998,the Prisoner Review Board declared respondent not to be an MSRviolator. Following his second release from physical custody onNovember 5, 1998, respondent violated MSR on November 10, 1998,when he resumed living with his family. Respondent was scheduledto be released from the custody of the DOC on September 5, 1999,and his parole was to be continued at that time.

On July 22, 1999, while respondent remained in the custody ofthe DOC for violating the conditions of his parole, Dr. Jonasevaluated respondent again and this time recommended commitment. On September 1, 1999, within 90 days of the second discharge, theState filed a petition to commit.

The petition alleged that respondent had been diagnosed assuffering from pedophilia, a "Sexually Attracted to Females,Nonexclusive Type." Respondent was also diagnosed as having apersonality disorder with antisocial features, seizure disorder,and psychological and environmental problems. The petition furtheralleged that respondent had a history of committing sexuallyviolent offenses and that these mental disorders created asubstantial probability that he would engage in acts of sexualviolence in the future.

On September 28, 1999, following a hearing, the trial courtdetermined there was probable cause to conduct further proceedingson the State's petition. The trial court also ordered thatrespondent be transferred to DHS for further evaluation. See 725ILCS 207/30(c) (West 1998).

The commitment trial began on September 12, 2000. Becauserespondent does not challenge the sufficiency of the evidence orthe credibility of the witnesses, we will briefly summarize theevidence presented at the trial.

At the trial, the State presented evidence of respondent'ssexually deviant behavior, previous sexual offenses, treatmentprogress, and the testimony of expert witnesses whose evaluationsled them to recommend that respondent be committed.

The State also called Dr. Agnes Jonas and Dr. Barry Leavitt. Dr. Jonas diagnosed respondent as a pedophile, sexually attractedto females, nonexclusive type. Dr. Jonas testified to the factualbasis of her diagnosis and identified several factors suggestingthat respondent would commit future acts of sexual violence. Inher opinion, there was a substantial probability that respondentwould commit a sexually violent offense in the future.

Dr. Leavitt interviewed respondent following the probablecause hearing. He diagnosed respondent as a nonexclusive, "femaletype" pedophile who also suffered from other various mentaldisorders. Dr. Leavitt used several recognized tests to predictrespondent's likelihood of reoffending. Based on respondent'sinterview, his history of sexual violence, mental health anddisciplinary problems, his failure to successfully complete treatment programs, and the results of the psychological testing,Dr. Leavitt opined that respondent's mental disorders predisposedhim to commit acts of sexual violence in the future. Dr. Leavittconcluded that a substantial probability existed that respondentwould commit another sexually violent crime in the future.

Respondent's expert, Dr. Eric Ostrov, a forensic psychologist,agreed that respondent suffered from a mental disorder as definedby the Act. Ostrov believed that there was insufficientinformation to sustain the diagnosis of pedophilia. He concludedthat, to a reasonable degree of medical certainty, there was not asubstantial probability that respondent would reoffend andstatistics showed such a prediction was correct 84% of the time.

The jury returned a verdict finding respondent to besubstantially likely to reoffend. Following a dispositionalhearing, the trial court ordered respondent committed to the DHS. Respondent's motion for a new trial was denied, and he timelyappeals.

Respondent first contends on appeal that the order committingrespondent to the DHS must be reversed because the petition tocommit was not timely filed by the State. The applicable sectionof the Act at the time the petition was filed on September 1, 1999,provides, in pertinent part:

"(b) A petition filed under this [s]ection shall allegethat all of the following apply to the person alleged to be asexually violent person:

* * *

(2) The person is within 90 days of dischargeor entry into mandatory supervised release from aDepartment of Corrections correctional facility fora sentence that was imposed upon a conviction for asexually violent offense or for a sentence that isbeing served concurrently or consecutively with asexually violent offense or is within the initial30 days of the person's entry date into parole ormandatory supervised release[.]" 725 ILCS207/15(b)(2) (West Supp. 1999).

Respondent asserts that he was "initially" placed on MSR onAugust 29, 1998, and therefore the State had 30 days from hisinitial MSR, or until September 28, 1998, to file a timelypetition. Because the petition was filed on September 1, 1999,more than 30 days from his entry into the initial MSR, respondentcontends that the petition was untimely filed. The State countersthat, at the time the commitment petition was filed, respondent wasincarcerated for violating MSR and was still serving time for theaggravated criminal sexual abuse convictions at the DOC and,because the petition was filed within 90 days of respondent'ssecond discharge date of September 5, 1999, the petition was timelyfiled.

This issue requires interpreting section 15 of the Act. Inconstruing the statute, we must ascertain and give effect to thelegislature's intent. The language of the statute generallyprovides the best evidence of the legislature's intent. Where thestatutory language is clear and unambiguous, a court must giveeffect to the plain and ordinary meaning of the words withoutresorting to extrinsic aids for construction. In re Detention ofGardner, 307 Ill. App. 3d 85, 90 (1999). Moreover, a statute mustbe read as a whole, and no word or paragraph should be interpretedso as to be rendered meaningless. Collins v. Board of Trustees ofthe Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993). The construction of a statute is a question of law, which we review de novo. Gardner, 307Ill. App. 3d at 90.

With these principles in mind, we find that the petition wastimely filed. The statute specifically references the dates forfiling a petition: "within 90 days of discharge or entry intomandatory supervised release" or "within the initial 30 days of theperson's entry date into parole or mandatory supervised release." 725 ILCS 207/15(b)(2) (West Supp. 1999). Contrary to respondent'sargument, there are no limitations to filing a petition within 30days of the first MSR or parole date, as the word "initial" doesnot modify the terms "discharge," "mandatory supervised release,"or "parole."

Moreover, because there are no restrictions to filing apetition within 30 days following the initial MSR or parole entrydate, it is clear that the legislature did not contemplate anylimitations to filing a petition within 30 days of the offender'sentry date following a violation of parole or mandatory supervisedrelease. Had the State been required to file a petition followingthe date of the first parole or mandatory supervised release orfollowing the first violation of parole or mandatory supervisedrelease, that language would have been incorporated in the Act. Ifthis court can ascertain the legislative intent from the plainlanguage of the statute itself, the intent must prevail. Barnettv. Zion Park District, 171 Ill. 2d 378, 389 (1996). We will notdepart from the plain language of the statute by reading into itexceptions, limitations, or conditions that conflict with theexpress legislative intent. See Barnett, 171 Ill. 2d at 389. Wealso note that the most recent version of section 15 of the Act (725 ILCS 207/15(b--5) (West 2000)), effective January 1, 2000,does not contain the limitations that respondent advocates.

Respondent maintains that "the second parole violation hadabsolutely no bearing on the timeliness of the sexually violentpetition." Respondent asserts that, by gaining a second "bite ofthe apple" to file a petition, "the State could at any time filefalse parole violations in order to indefinitely elongate the timefor filing a timely petition," and this cannot be what thelegislature envisioned. We reject this argument. In fact, we findthat the plain language of the statute clearly allows the State tohave unlimited "bites of the apple," as long as the petition isfiled within the time limits prescribed. Furthermore, if we wereto adopt respondent's reasoning, there would be little incentive toencourage parole because the State would always be precluded fromfiling a commitment petition in the case where a sexually violentrespondent violates parole more than 30 days after his release. We therefore hold that section 15(b) clearly directs the Stateto file a petition to have an offender committed as a sexuallyviolent person either (1) within 90 days of any discharge or entryinto MSR from a DOC correctional facility for a sentence that wasimposed upon a conviction for a sexually violent offense or (2)within the initial 30 days of the person's entry date into any MSRor parole. Respondent was within 90 days of discharge from a DOCcorrectional facility for a sentence that was imposed upon hisconviction for a sexually violent offense when the State filed thepetition to have respondent committed as a sexually violent person. Accordingly, the petition was timely filed.

Respondent next contends that section 25(e) of the Act (725ILCS 207/25(e) (West 1998)) violates his constitutional right todue process of law because it does not provide an indigentrespondent with as many medical experts as the State uses. Respondent contends that this "uneven playing field" is prejudicialbecause the jurors are likely to view the greater number of expertstestifying for the State as indicative of the weakness of his case.

Section 25(e) provides that, whenever a person who is thesubject of the petition is required to submit to an examinationunder the Act, he or she may retain experts or professional personsto perform an examination. If the person is indigent, the court isrequired to appoint a qualified and available expert or aprofessional person to perform an examination, and the county mustpay the costs of the examination and participation in the trial. 725 ILCS 207/25(e) (West 1998).

We review de novo the constitutionality of a statute. In reDetention of Varner, 315 Ill. App. 3d 626, 633 (2000). The partychallenging a statute bears the burden of clearly establishing thatit is unconstitutional. People v. DePalma, 256 Ill. App. 3d 206,210 (1994). All statutes carry a strong presumption ofconstitutionality; we will uphold a statute whenever reasonablypossible, and any doubts will be resolved in favor of the law'svalidity. People v. Jeffries, 164 Ill. 2d 104, 111 (1995).

The right to due process of law is the right to afundamentally fair trial. Chambers v. Mississippi, 410 U.S. 284,294, 35 L. Ed. 2d 297, 308, 93 S. Ct. 1038, 1045 (1973). Incriminal proceedings, the State may not maintain a strategicadvantage over the defendant when that advantage casts a pall onthe proceedings. See Ake v. Oklahoma, 470 U.S. 68, 79, 84 L. Ed.2d 53, 63, 105 S. Ct. 1087, 1094 (1985). The Act provides that allconstitutional rights available to a defendant in a criminalproceeding are available to the person who is the subject of apetition under section 15. 725 ILCS 205/35(b) (West 1998). See People v. Capoldi, 37 Ill. 2d 11, 18 (1967).

Procedural due process issues require a three-part analysisthat considers the following: first, whether there exists aliberty or property interest that has been interfered with by theState; second, the risk of an erroneous deprivation of such aninterest through the procedures already in place, while consideringthe value of additional safeguards; and third, the effect theadministrative and monetary burdens would have on the State'sinterest. Varner, 315 Ill. App. 3d at 635.

There is no doubt that respondent's liberty is jeopardized. We must therefore examine the risk of an erroneous deprivation inthe context of the procedural safeguards already existing in thestatute. East St. Louis Federation of Teachers, Local 1220 v. EastSt. Louis School District No. 189 Financial Oversight Panel, 178Ill. 2d 399, 419 (1997). Procedural due process guarantees that a defendant has the right to present relevant, competent evidence inhis defense and that the State must take steps to ensure that theindigent defendant has a fair opportunity to present his defense. See, e.g., Ake, 470 U.S. at 76, 84 L. Ed. 2d at 61, 105 S. Ct. at1092 (State must pay for psychiatric evaluation); People v. Watson,36 Ill. 2d 228, 232 (1966)(indigent defendant should receive court-appointed handwriting expert to defend against forgery charge). The Act already guarantees that an indigent respondent is entitledto a competent medical expert. 725 ILCS 207/25(e) (West 1998). Given the procedural safeguards already existing in the Act, therisk of erroneous deprivation in this case is negligible.

Respondent mistakenly equates the quantity of experts with thequality of their testimony. By focusing on the number of expertstestifying at the hearing, respondent ignores the availability ofother procedural safeguards. As stated above, respondent isentitled to counsel and to a jury trial. See People v. Trainor,196 Ill. 2d 318, 335-36 (2001). The appointed counsel cancompensate for the lack of additionally appointed expert witnessesby thoroughly cross-examining the State's experts and by exposingto the jury the weaknesses of the State's case. We note too thatrespondent also fails to suggest how another appointed expert wouldhave bolstered his defense or placed him on par with the State.

Respondent's reliance on In re Detention of Kortte, 317 Ill.App. 3d 111 (2000), is misplaced. In that case, the respondent wasdeprived of a "level playing field" because he was prohibited fromcalling any expert of his own and therefore was virtually incapableof rebutting the State's evidence. Kortte, 317 Ill. App. 3d at116. Here, however, respondent was able to rebut the State'sevidence with his own expert.

Respondent also ignores that a State need not "purchase forthe indigent defendant all the assistance that his wealthiercounterpart might buy." (Emphasis added.) Ake, 470 U.S. at 77, 84L. Ed. 2d at 62, 105 S. Ct. at 1093. "[F]undamental fairnessentitles indigent defendants to 'an adequate opportunity to presenttheir claims fairly within the adversary system.' " Ake, 470 U.S.at 77, 84 L. Ed. 2d at 62, 105 S. Ct. at 1093, quoting Ross v.Moffitt, 417 U.S. 600, 612, 41 L. Ed. 2d 341, 352, 94 S. Ct. 2437,2444 (1974). We find that respondent has had an adequateopportunity to present his claim fairly within the adversarysystem. We therefore hold that the Act does not violate proceduraldue process by failing to provide an indigent respondent with thesame number of expert witnesses as the State.

Respondent next contends that the repeated and inflammatorydetailed accounts of the previous sexual offenses committed byrespondent had a prejudicial effect on the jury. Respondentconcedes that he technically waived this argument when his trialcounsel failed to object to the introduction of this evidence attrial. However, he contends that we should nevertheless addressthe issue under the plain error doctrine because his trial counselrendered ineffective assistance when he failed to object.

Relevant evidence is defined as evidence having any tendencyto fairly make the existence of any fact that is of consequence tothe determination of the action more probable than it would bewithout the evidence. People v. Eyler, 133 Ill. 2d 173, 217(1989). The Supreme Court in Kansas v. Hendricks, 521 U.S. 346,362, 138 L. Ed. 2d 501, 515, 117 S. Ct. 2072, 2082 (1997),implicitly approved the introduction of sexual-propensity evidence,finding that such evidence was intended not to punish past misdeedsbut primarily to show the respondent's mental condition and topredict future behavior. We note also that evidence ofrespondent's sexual offenses, which forms the basis for hiscommitment, must be shown by the State to meet its burden of proofunder the Act. See 725 ILCS 207/5(b), (f) (West 1998). In thiscase, the details of the previous sexual offenses committed byrespondent are relevant to prove that he suffers from pedophiliaand is likely to engage in predatory acts of sexual violence in thefuture.

The Appellate Court, First District, recently consideredwhether the Act violates procedural due process " 'because thepresentation of sexual[-]propensity evidence to a lay jurycompromises the integrity and accuracy of the fact-finding process,creating an unacceptable risk that the Respondent will beerroneously deprived of liberty.' " In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086-87 (2000). In rejecting the respondent'sargument, the court concluded that, although sexual-propensityevidence may be prejudicial, it nevertheless is clearly relevant tothe proceedings under the Act. Bailey, 317 Ill. App. 3d at 1089-90.

While respondent frames the issue differently here than therespondent in Bailey, respondent's ultimate contention is the same,and so is our conclusion. In the trial court's discretion,relevant evidence may be excluded if its prejudicial effectsubstantially outweighs its probative value. People v. Eyler, 133Ill. 2d 173, 218 (1989). Here, the evidence was probative in thatit was material to the State's burden of proof, to the diagnosis ofrespondent's mental disorders, and to the substantial probabilitythat respondent will commit further acts of sexual violence. Anydegree of prejudice resulting from this evidence flows from itsnatural probative effect. We therefore conclude that the sexual-propensity evidence outweighed its prejudicial effect.

We also find that trial counsel was not ineffective forfailing to object to the introduction of the sexual-propensityevidence. To prevail on a claim of the ineffective assistance ofcounsel, the claimant must prove both that counsel's conduct fellbelow an objective standard of reasonableness and that there was areasonable probability that, but for counsel's unprofessionalconduct, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674,693-98, 104 S. Ct. 2052, 2064-68 (1984); People v. Howery, 178 Ill.2d 1, 51 (1997). Because the evidence was relevant and itoutweighed the prejudicial effect, any objection would have beenunavailing. Therefore, respondent has failed to show that histrial counsel was ineffective.

For the foregoing reasons, the judgment of the circuit courtof Lake County is affirmed.

Affirmed.

McLAREN and BOWMAN, JJ., concur.