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August 17, 1994


Appeal from the Circuit Court of the 9th Judicial Circuit, Fulton County, Illinois. No. 89CF77. Honorable Charles Wilhelm, Judge Presiding

Rehearing Denied and Released for Publication September 26, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

The circuit court of Fulton County found the respondent, Richard A. Bailey, to be a sexually dangerous person and ordered him to be confined in the Illinois Department of Corrections (IDOC) until found to be no longer sexually dangerous. He appeals the trial court's order. We reverse and remand because we find the respondent was denied his constitutional right to the effective assistance of counsel.


On June 29, 1989, the State filed an information against the respondent charging him with sexually molesting his minor daughter. The respondent was arrested and incarcerated in the Fulton County jail until December 4, 1989, when he was released after posting bond.

On July 24, 1989, the State filed a petition under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1991, ch. 38, par. 105 et seq.) (the Act) asking the court to find the respondent to be a sexually dangerous person. On September 19, 1989, the trial court appointed two psychiatrists, Dr. Robert Chapman and Dr. Richard Grant, to examine the respondent and render opinions with regard to his sexual dangerousness. Chapman conducted his interview and evaluation of the respondent on September 25, 1989. Grant examined and interviewed the respondent on October 20, 1989.

Due to discovery, defense counsel substitutions, and other pretrial matters, the trial of the case was delayed for nearly three years. In the meantime, the respondent's counsel procured two additional psychiatrists to interview and evaluate the respondent for sexual dangerousness. Dr. Mortimer Beck examined the defendant in January 1990, and Dr. Ian Kling conducted his evaluation in March 1992.

On May 22, 1992, the State filed a motion asking the court for leave to have Chapman and Grant reexamine the respondent. At the hearing on the State's motion on May 26, 1992, defense counsel opposed the motion. Defense counsel said a psychiatric reexamination of the respondent on the eve of trial would result in further delay and would probably necessitate further discovery. He also said there was no indication that the 1989 opinions and findings of Chapman and Grant were "invalid or no longer valid." As a result of defense counsel's remarks, the trial court denied the State's motion.

The case went to trial on June 2, 1992. Both Chapman and Grant said that, based upon their examinations in late 1989, the respondent was a sexually dangerous person. They both testified that the respondent had suffered from a mental disorder at the time he committed the offenses and continues to suffer from the same disorder. However, both Kling and Beck, who had conducted their evaluations later in time, testified that the respondent was not sexually dangerous and did not have a mental disorder.

After hearing the testimony of other witnesses, the trial court found the respondent to be a sexually dangerous person on November 9, 1992. The court based its ruling upon the reports and testimony of Grant and Chapman. In his findings, the trial Judge said he was displeased with the lengthy delay in litigating the case. The Judge also noted the respondent's unblemished record and good conduct during the time he was released on bond. At the time the court entered its findings, the respondent had been free on bond for nearly three years. Based on the Act, the court committed the respondent to IDOC for an indefinite period. The court stayed enforcement of its order while it considered the respondent's post-trial motion and motion for an appeal bond.

On December 21, 1992, the court denied the respondent's post-trial motion. The respondent filed a timely notice of appeal on December 30, 1992. The court granted the respondent's motion for an appeal bond on January 4, 1993. The court granted the bond based on the respondent's good conduct during the pendency of the petition and his current gainful ...

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