APPEAL from the Circuit Court of De Kalb County; the Hon. CARL
A. SWANSON, JR., Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant appeals from a judgment that he was a sexually dangerous person (Ill. Rev. Stat. 1975, ch. 38, par. 105-1.01 et seq.) and ordered that he be committed to the custody of the Department of Corrections in custody of its director.
In his original brief defendant contended that the proceedings amounted to a "stipulated bench trial" (see People v. Stepheny, 56 Ill.2d 237 (1974); People v. Smith, 59 Ill.2d 236 (1974); People v. Stinnette, 49 Ill. App.3d 134, 363 N.E.2d 945 (1977)) without affording him various constitutional rights which would follow from what he maintains is essentially a guilty plea. In a supplemental brief filed subsequent to the publication of People v. Pembrock, 62 Ill.2d 317 (1976), defendant has raised the further issue that the trial court was obliged to and did not apply a standard of proof beyond a reasonable doubt.
We first consider the defendant's claim that the court applied the wrong standard of proof.
The judgment was rendered on November 26, 1975, prior to the Illinois Supreme Court's opinion in Pembrock which held that although the statute under which defendant was convicted characterizes the proceedings as civil (Ill. Rev. Stat. 1975, ch. 38, par. 105-3.01) the civil "label" is not conclusive, and due process standards as in criminal cases are applicable, requiring proof beyond a reasonable doubt. 62 Ill.2d 317, 320-21.
The trial judge in passing judgment made no reference to the standard of proof he followed in deciding that defendant was a sexually dangerous person. The defendant has not cited any authority nor have we found any which holds that a trial judge who sits as a trier of the facts in a criminal case must state for the record the standard of proof he has employed in making his decision. In the circumstances of this case it would, of course, have been particularly helpful if he had done so. However, it has been long settled that in determining the sufficiency of a verdict and a judgment of conviction based thereon the entire record will be searched to support the judgment. People v. Woods, 393 Ill. 586, 589 (1946). Cf. People v. Shelton, 33 Ill. App.3d 871, 876 (1975); Watson v. Auburn Iron Works, Inc., 23 Ill. App.3d 265, 273 (1974).
The defendant's argument is principally based on the claim that the governing statute was generally interpreted at the time of the trial to require that the State prove Thorpe's alleged condition only by a preponderance of the evidence, but that thereafter People v. Pembrock, 62 Ill.2d 317 (1976), established the rule that the proper standard of proof in proceedings under the Sexually Dangerous Persons Act is proof beyond a reasonable doubt. The defendant further contends that this ruling is retroactive pursuant to the views expressed in In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970), and Ivan v. City of New York, 407 U.S. 203, 32 L.Ed.2d 659, 92 S.Ct. 1951 (1972). See also Williams v. United States, 401 U.S. 646, 28 L.Ed.2d 388, 91 S.Ct. 1148 (1971) and United States ex rel. Morgan v. Sielaff, 546 F.2d 218 (7th Cir. 1976).
The State argues that we should presume that the trial judge applied the reasonable doubt standard since the First District appellate court in People v. Pembrock, 23 Ill. App.3d 991, 995 (1974), also had held prior to the hearing and judgment in this case that the reasonable doubt standard applied. In response the defendant cites the majority opinion of the Fourth District appellate court in People v. Oliver, 32 Ill. App.3d 772, 777 (1975), which had held that the preponderance of the evidence was the appropriate standard while the Pembrock case in the First District was on leave to appeal but before the supreme court ruled.
• 1 From our review of the record we are satisfied that the defendant was proven guilty beyond a reasonable doubt. We agree with the State's argument that we must presume that the court followed the Pembrock rule pursuant to the earlier appellate court opinion rather than the Oliver case and that therefore since the proof in the records satisfies the reasonable doubt standard we must affirm.
It is a well-established rule that "all reasonable intendments not contradicted by the record are to be taken in favor of the validity of the judgment." (People v. Bassinger, 403 Ill. 108, 111 (1949).) It is also clear that "`[e]rror is never presumed by a reviewing court, but must be affirmatively shown by the record.'" Flynn v. Vancil, 41 Ill.2d 236, 241-42 (1968).
• 2, 3 The defendant has not sustained his burden of showing on the record the error of which he complains. The decisions of an appellate court are binding precedent on all circuit courts> regardless of locale. (See, e.g., Garcia v. Hynes & Howes Real Estate, Inc., 29 Ill. App.3d 479, 481 (1975). Cf. United Mine Workers of America Hospital v. United Mine Workers of America District No. 50, 52 Ill.2d 496, 499 (1972).) Where two or more appellate districts are in conflict the circuit court should follow the decision of the appellate court of its district. (Garcia v. Hynes & Howes Real Estate, Inc., 29 Ill. App.3d 479, 482, (1975).) Here, no decision of this district had ruled contrary to the Pembrock opinion in the First District. However, prior to the hearing in this case the Seventh Circuit court of appeals had also held that proof beyond a reasonable doubt was constitutionally required in a sexual psychopath commitment proceeding, in Stachulak v. Coughlin, 520 F.2d 931 (7th Cir. 1975). Although the holding of a lower Federal tribunal is not binding precedent on Illinois courts> (see People v. Stansberry, 47 Ill.2d 541, 545 (1971)) the Stachulak ruling would have particularly alerted a trial judge to the danger of applying a lower standard of proof since the federal action was for habeas corpus relief with the practical effect that a defendant as to whom a standard of proof was applied other than beyond a reasonable doubt could have secured his release even if the Illinois Supreme Court had held otherwise. See also United States ex rel. Morgan v. Sielaff, 546 F.2d 218 (7th Cir. 1976), which granted class action relief to all persons whose commitments were accomplished by use of a standard of proof less than that beyond a reasonable doubt.
It would appear highly unlikely in any practical sense that the trial court would have followed People v. Oliver since that Fourth District opinion was filed on October 16, 1975, and did not appear in advanced publication form until December 10, 1975, 14 days after the trial court's decision in this case.
In this view, we do not reach the question of the retroactivity of the Illinois Supreme Court's decision in People v. Pembrock.
We then must consider defendant's argument that the proceedings amounted to a stipulated bench trial. A brief reference to the ...