October 30, 2001

PRESIDING JUSTICE STEIGMANN delivered the opinion ofthe court:

In September 1998, the State filed a petition under theSexually Violent Persons Commitment Act (Act) (725 ILCS 207/1through 90 (West 1998)) to have defendant, Raymond Rainey,committed as a sexually violent person. In February 2000,defendant admitted the allegations set forth in the petition. Following a May 2000 dispositional hearing, the trial courtordered defendant committed to a secure facility.

Defendant appeals, arguing that (1) his commitment isvoid for lack of jurisdiction because he was not served with asummons, pursuant to sections 2-201(a) and 2-203 of the Code ofCivil Procedure (Code) (735 ILCS 5/2-201(a), 2-203 (West 1998));(2) his due process rights were violated because he was notproperly served summons; (3) the trial court erred by acceptinghis admission to the State's petition; (4) he was denied effective assistance of counsel; and (5) the court abused its discretion by committing him to a secure facility. We affirm.

In 1993, defendant was found guilty but mentally ill ofaggravated criminal sexual abuse (720 ILCS 5/12-16 (West 1992)). The trial court later sentenced him to 12 years in prison. (Defendant was initially incarcerated at the Dixon SpecialTreatment Center (Dixon); he was later transferred to Big MuddyCorrectional Center (Big Muddy).) In March 1997, defendant wasreleased on mandatory supervisory release (MSR). In April 1998,his MSR was revoked for driving with a suspended license andfailing to attend sex-offender counseling. Defendant was imprisoned again at Big Muddy and scheduled to be released on MSR inOctober 1998.

On September 28, 1998, the State filed a petition underthe Act, seeking to have defendant committed as a sexuallyviolent person. The petition alleged that (1) defendant sufferedfrom (a) pedophilia, (b) alcohol abuse, (c) post-traumatic stressdisorder, (d) antisocial personality disorder, and (e) borderlinepersonality disorder; and (2) it was substantially probable thathe would engage in sexually violent acts if not committed to asecure facility. On that same date, the trial court entered anorder of habeas corpus ad prosequendum, which indicated that aprobable-cause hearing had been set for September 30, 1998. (Section 30(b) of the Act provides that when the person named inthe petition is in custody, a probable-cause hearing shall beheld within 72 hours of the filing of the petition. 725 ILCS207/30(b) (West 1998).)

At the September 30, 1998, probable-cause hearing, Dr.Jacqueline Buck, a clinical psychologist, testified as an experton sex-offender treatment and evaluation. She had revieweddefendant's "master file" maintained by the Department of Corrections (DOC) and conducted a two-hour clinical interview with himin July 1998. Defendant's master file showed the following priorconvictions for sex offenses: (1) indecent liberties with achild in 1978; (2) contributing to the sexual delinquency of achild in 1984; (3) aggravated criminal sexual assault in 1986;and (4) aggravated criminal sexual abuse in 1993.

When Buck interviewed defendant, he could not rememberanything about the 1978 offense. Regarding the 1984 conviction,he said he was accused of fondling his niece, who was then 9 or10 years old. In 1986, he was convicted of aggravated criminalsexual assault of his live-in girlfriend's daughter, who was then11 or 12 years old. When Buck asked defendant about the 1986incident, he became very angry and stated that "they gave him 30years for something he didn't do." Defendant's 1993 convictionwas for the 1991 sexual assault of his live-in girlfriend'sniece, who was then nine years old. Defendant explained to Buckthat his girlfriend discovered him in a room with her niece andmisunderstood what was happening. He insisted that he had notdone anything wrong.

Buck testified generally that defendant did not acceptresponsibility for his offenses and, instead, blamed "anybody andeverybody but himself." He did not show any remorse or empathyfor the victims.

Defendant's master file also showed that when he was atDixon, he was disciplined for participating in sexual behaviorwith a young man and transferred to Big Muddy. At the end of1995, he was again involved in sexual misconduct with a youngmale. In early 1996, defendant agreed for the first time toparticipate in sex-offender treatment. (Defendant had beenoffered sex-offender treatment since 1993.) He was later confronted by his peers and the treatment staff on at least threeoccasions for inappropriately associating with young males "onthe unit." Defendant had also been put in segregation forparticipating in mutual oral masturbation. The staff ultimatelydismissed defendant from the treatment program.

When defendant was paroled in 1997, he was required toattend sex-offender treatment as a condition of his MSR. Duringthe first three months following his release, defendant met andbegan living with a woman, Roberta, and Roberta's hearing-impaired daughter, Megan, who was nine years old at the time of theSeptember 1998 hearing. Sometime prior to the hearing, defendantand Roberta married. When his parole was revoked in April 1998,defendant had not attended sex-offender treatment in the previousnine months.

Following defendant's return to Big Muddy, he spokewith Megan on several occasions via a telecommunications devicefor the deaf (TDD). Counselors at Big Muddy monitored thosecalls, and Buck examined transcripts of TDD calls between defendant and Megan that occurred in the summer of 1998. In 11 calls,defendant spoke to Megan about going fishing and camping alonewith him.

Buck diagnosed defendant with the following five mentaldisorders: (1) pedophilia, sexually attracted to females, non-exclusive type; (2) alcohol abuse in a controlled environment;(3) post-traumatic stress disorder, chronic; (4) antisocialpersonality disorder; and (5) borderline personality disorder. Buck testified about each diagnosis in some detail. In heropinion, within a reasonable degree of psychological certainty,it was substantially probable that defendant would commit futuresexually violent acts.

The State provided no other testimony, and defendant'scounsel offered no argument. The trial court then initiated thefollowing colloquy:

"THE COURT: I only have one questionbefore a finding of probable cause, counsel. Looking at the statute which we're dealingwith, 725 ILCS 207[/1 through 90 (West1998)], and under that [s]ection 20, it sayscivil nature of proceedings, provisions ofthe civil practice law apply, and there'snothing in the file to indicate [defendanthas] been served with summons or any noticeof these proceedings. So I may not have anyjurisdiction.

MR. COLBURN [(State's Attorney)]: Just,he'd been served in [DOC] and was justfurther served this morning by sheriff'sdeputies, Your Honor (handing document to thecourt).

THE COURT: All right. Next question. I don't mean to be troublesome here, but ifwe're going to apply, use a civil proceedingin the, under the Civil Practice Act, I thinkeverything's initiated by the service ofsummons. Notice of the hearing wouldn'tnecessarily be, necessarily suffice to serveas summons. It's just a question. They saythe entire [Civil Practice] Act applies. Idon't know how you've done it elsewhere, butI just, I hate to leave just a question ofjurisdiction. It would be such a simple actjust to serve him with summons and a copy ofthe petition, just do it here in court, handhim a summons.

MR. COLBURN: That's what he was servedwith, Your Honor. That's what that reflects. He was served with the petition and summonsagain today by the deputies, the entirepetition prior to coming into the courtroom.

MR. CREWS [(Defense counsel)]: YourHonor, I'd stipulate to that. I was presentwhen Deputy Miller served [defendant] with acopy of the petition.

THE COURT: All right. Again, I don'tmean to be highly technical.

MR. CREWS: I understand.

THE COURT: But there's no evidence thatsummons was issued. He, the deputy servedhim with a copy of the petition and the orderof detention, but was a summons issued inthat? The [c]ourt gets jurisdiction from theissuance and service of summons under theCivil Practice Act. Unless he enters hisappearance, that's all involuntary.

MR. CREWS: We'll waive service, YourHonor, and enter an appearance in this case.

THE COURT: That would suffice. *** Defendant waives service of summons, andthere is proof of service of, notice of thefiling of the petition and order of detentionand hearing in this cause on file."

The trial court then found probable cause, noting thatBuck's testimony was unrebutted, and ordered defendanttransferred to the Department of Human Services (Department) foran evaluation, pursuant to section 30(c) of the Act. 725 ILCS207/30(c) (West 1998).

From November 1998 through January 2000, the trialcourt granted several continuances, in part, to accommodatedefendant's search for an expert or professional to conduct anindependent evaluation. In September 1999, defendant filed areport prepared by Dr. Larry Davis, a psychiatrist. According toDavis' report, he evaluated defendant in July 1999. Davisdisagreed with Buck's diagnoses of post-traumatic stressdisorder, antisocial personality disorder, and borderlinepersonality disorder. He diagnosed defendant with pedophilia andchronic depression.

In Davis' interview with defendant, defendant deniedresponsibility for the incidents that led to his 1984 and 1986convictions. When Davis asked defendant about his feelingstoward his victims, he replied, "I don't think they were harmedbecause of my meeting with them."

Davis also opined as follows: "[Defendant's] IQ[(intelligence quotient)] is 80 at best and his ability to haveeffectively gained useful information from a sex[-]offendertreatment program based on discussion and thinking is poor." Davis recommended that defendant receive outpatient therapy "at apractical and simple level" with an emphasis on behaviormodification. Davis also stated that if his recommendation wereaccepted, defendant's parole officer and psychotherapist wouldhave to monitor defendant's access to "familiar pubertal or pre-pubertal girls. He must not be allowed any ongoing contact withsuch young females." (Emphasis in original). Davis concludedthat it was not substantially probable that defendant wouldreoffend.

In February 2000, the trial court conducted a hearingto accept defendant's admission to the allegations set forth inthe State's petition. At that hearing, defense counsel informedthe court that he had gone through the petition with defendantand explained "each and every paragraph" to him. The courtelicited from defendant that he had an eighth-grade education andthat he was able to read the petition but did not understand it. The court then began to go through the petition in detail. Whenthe court reached paragraph four of the petition, the followingcolloquy occurred:

"THE COURT: And then it says in[paragraph] four that you have various mentaldisorders. There are five of them there, Ithink: Pedophilia, sexually attracted tofemales, nonexclusive type; alcohol abuse inthe controlled environment; post[-]traumaticstress disorder; chronic anti[]socialpersonality disorder; and borderlinepersonality disorder. Do you understand whatit says?

DEFENDANT: Well, I do, but I don't.

THE COURT: Well, I'm not sure Iunderstand what each of them mean. I thinkthey're probably discussed in the report ofthe psychologist that's attached. Is thereone attached to the petition?

MR. CREWS: Yes, sir, Your Honor.

THE COURT: Maybe counsel can help mewith that.

DEFENDANT: I know from myunderstanding, people explaining it to mewhat they mean. I can tell you I don't fitin either one of them."

The court then discussed with counsel whether it could certifythat defendant "knowingly and intelligently" admitted thepetition in light of defendant's disputing the mental healthdiagnoses. The resolution of that issue occurred off the record.

The trial court then asked defendant a series ofquestions to ascertain whether defendant understood that byadmitting to the petition, he was knowingly giving up certainrights and that he was voluntarily entering the admission. Atthe conclusion of the hearing, the court found that defendant"knowingly, understandingly, and voluntarily has executed thesexually violent person admission and waiver" and "knowingly,understandingly, voluntarily waives the rights expressed andadmits the sexually violent persons petition."

The trial court then asked the State to provide thefactual basis for defendant's admission to the State's petition. The State replied by reciting a summary of Buck's credentials andthe findings and conclusions that she would testify to. TheState added that the Department's evaluator, Dr. Phil Reidda, aboard-certified psychologist, confirmed Buck's findings. Thecourt found a factual basis for defendant's admission. The courtalso found that defendant's admission was knowingly andvoluntarily made.

At the May 2000 dispositional hearing, Reidda testifiedthat he had interviewed defendant on three occasions. Duringthose interviews, defendant discussed his four prior arrests forpedophilia incidents; he also discussed a couple of incidentsthat had gone unreported. Reidda also testified regardingdefendant's sexual misconduct while incarcerated. Reiddadescribed the TDD transcripts as follows: "[Defendant] wasanticipating a release, and he wanted this girl to agree to dosomething with him by herself. And she was, you know, he wasvery attentive to her, very supportive to her, but also verymanipulative." The doctor who monitored the call at Big Muddyfelt that it was an attempt at "grooming" Megan. Reiddaexplained that "grooming" is a term used to describe the way inwhich sexual predators set up their victims.

Reidda diagnosed defendant with pedophilia, borderlinepersonality disorder, and antisocial personality disorder.Reidda's risk assessment of defendant indicated that he was at"very high risk" for reoffending, and Reidda answered in theaffirmative when asked whether it was "substantially probable"that defendant would reoffend.

Reidda also conducted a predisposition investigation ofdefendant. Defendant was at that time detained but not involvedin treatment. Defendant had vague plans to live with a cousin ifhe was released. Defendant said that he was in favor of clinicaltreatment if it did not interfere with his work. Reidda foundthat defendant was still "unable to understand the gravity of[his criminal] behavior or acknowledge his participation in it." Reidda considered the available options and concluded that theleast-restrictive care that would be best for defendant would besecure care. He stated that defendant needed to be monitored 24hours a day because he had "a 20[-]year history of very poorimpulse control over his behavior, and, in fact, nothing [has]changed. *** Even in prison he has acted on those sexualimpulses."

William Loveland testified that he was defendant'scounselor while defendant was on MSR in July 1997. Counselingsessions were scheduled to occur weekly. Between July 1, 1997,and August 28, 1997, defendant attended only five sessions andthen stopped attending altogether.

Brad Besson testified that he was the DOC officerresponsible for monitoring defendant on MSR from March 1997 toApril 1998. At the time defendant's MSR was revoked, Besson hadno indication that defendant had reoffended.

Defendant testified he was in the process of divorcingRoberta and would not be living with her and Megan if he wasreleased. He would live with his cousin in Ripley where therewould be "no children around." He would attend counseling andunderstood that if he ceased to do so he would be returned toprison.

At the conclusion of the hearing, the trial courtordered defendant submitted to the State's sexually violentpersons treatment and detention center. This appeal followed.

1. The Trial Court's Jurisdiction

Defendant first argues that the trial court lackedpersonal jurisdiction over him at the probable cause hearingbecause he was not served summons, pursuant to section 2-203 ofthe Code (735 ILCS 5/2-203 (West 1998)). We disagree.

Section 20 of the Act provides as follows:

"The proceedings under this Act shall becivil in nature. The provisions of the CivilPractice Law, and all existing and futureamendments of that Law shall apply to allproceedings hereunder except as otherwiseprovided in this Act." 725 ILCS 207/20 (West1998).

The Civil Practice Law was incorporated into the Code when it wasenacted in 1982. See Pub. Act 82-280, eff. July 1, 1982 (1981Ill. Laws 1381). In civil suits, a trial court is vested withpersonal jurisdiction when an action is filed and proper summonsis served on the defendant. Mugavero v. Kenzler, 317 Ill. App.3d 162, 164, 739 N.E.2d 979, 981 (2000); 735 ILCS 5/2-201 (West1998). However, jurisdiction may also be obtained when theparty, although not served, participates in the proceedings. Such participation constitutes a submission to the court'sjurisdiction and forfeits the right to later contest the court'spersonal jurisdiction over the party. Morey Fish Co. v. RymerFoods, Inc., 240 Ill. App. 3d 61, 67, 608 N.E.2d 74, 78 (1992)rev'd on other grounds, 158 Ill. 2d 179, 632 N.E.2d 1020 (1994). Whether a court had personal jurisdiction is a question of law,which we review de novo. Mugavero, 317 Ill. App. 3d at 164, 739N.E.2d at 981.

In this case, we conclude that the trial court obtainedpersonal jurisdiction over defendant when defendant appeared andparticipated at the probable-cause hearing. In so concluding, weacknowledge that defendant had little choice but to appear incourt, given his incarceration and the court's order of habeascorpus ad prosequendum. However, defendant was represented bycounsel at the probable cause hearing, and his counsel expresslywaived service of summons. Defendant thereby submitted to thecourt's jurisdiction.

Defendant next argues that the State's failure toproperly serve him with summons deprived him of his right to dueprocess of law under the fourteenth amendment to the UnitedStates Constitution and section 2 of article I of the IllinoisConstitution (U.S. Const., amend. XIV; Ill. Const. 1970, art. I,