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05/17/95 PEOPLE STATE ILLINOIS v. TERRENCE J. GALBA

May 17, 1995

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TERRENCE J. GALBA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Whiteside County, Illinois. No. 94-CF-84. Honorable Dan A. Dunagan, Judge Presiding.

As Corrected August 24, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice. Honorable Tom M. Lytton, Justice. Honorable William E. Holdridge, Justice. Presiding Justice Stouder delivered the opinion of the court: Lytton and Holdridge, JJ., concur.

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

The defendant, Terrence J. Galba, appeals from a judgment finding him a sexually dangerous person under the provisions of the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West 1994)). The finding was the result of a plea agreement which the defendant claims was contrary to the Act and the interpreting case law. The defendant also alleges the State failed to show the two examining psychiatrists were "qualified" as that term is defined under section 4.01 of the Act (725 ILCS 205/4.01 (West 1994)). We reverse and remand.

The defendant was charged by criminal complaint with aggravated kidnapping (720 ILCS 5/10-2(a)(2) (West 1994)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 1994)). The basis for the charges were allegations that the defendant, posing as a family friend, removed a child from a Whiteside County elementary school, took that child to the defendant's residence and sexually abused the child. After the complaint was filed, the state brought a petition pursuant to section 3 of the Act (725 ILCS 205/3 (West 1994)) alleging the defendant was a sexually dangerous person and requesting an order appointing two qualified psychiatrists to examine the defendant. A two-count information was thereafter filed in place of the complaint.

On June 21, 1994, a hearing was held on the petition and the underlying information. It had been agreed prior to the hearing that the defendant would stipulate to the reports of the two examining psychiatrists, which found, to a reasonable degree of medical certainty, that he met the criteria of a sexually dangerous person as defined in the Act (See 725 ILCS 205/1.01 (West 1994)). The defendant also was to admit to the facts supporting a finding that he was a sexually dangerous person. In addition, under the agreement, the defendant agreed to plead guilty to both counts in the information and to be sentenced to the maximum term for each offense.

After being admonished as to his rights, and questioned as to whether he agreed to each of the provisions of the agreement concerning the dangerousness petition, the court found the defendant to be a sexually dangerous person. The court committed him to the custody of the Director of the Department of Corrections for an indefinite term. The Director was appointed the defendant's guardian.

Immediately after making this finding, the circuit court addressed the defendant's guilty pleas. After fully admonishing the defendant, the court found the pleas of guilty were knowingly and intelligently made and that there was factual support therefore. The defendant waived a sentencing hearing and presentence report. The court entered a judgment sentencing the defendant to 15 years in prison for aggravated kidnapping and 7 years in prison for aggravated criminal sexual assault, the maximum for both offenses.

At the hearing, it was pointed out to the defendant, that his indefinite commitment as a sexually dangerous person ran concurrent with his sentences on the criminal offenses. Thus, if he was found to no longer be a sexually dangerous person prior to expiration of his sentences on the criminal charges, he would be transferred to a different facility within the Department of Corrections to complete the remainder of his sentences. On the other hand, even after his criminal sentences had expired he could still be held as a sexually dangerous person, as long as there was no finding that he was no longer sexually dangerous.

On appeal, the defendant contends the order finding him a sexually dangerous person should be vacated because it is the product of a plea agreement which is contrary to the Act and case law. The defendant argues the Act contemplates that a commitment as a sexually dangerous person is a non-punitive treatment alternative to a prosecution of a defendant for his actions. Thus, a defendant cannot be committed as a sexually dangerous person and simultaneously criminally punished for the same underlying acts giving rise to the finding of dangerousness. We agree.

Initially, we note the State challenges our jurisdiction to address this argument by claiming that the defendant failed to appeal from his guilty pleas to the underlying charges. We are mystified by this assertion because the defendant is only challenging the judgment which found him to be sexually dangerous. The defendant raises no challenge to his guilty pleas. The defendant's notice of appeal only raised a challenge to the judgment finding him a sexually dangerous person.

Also at the outset, we must emphasize that we are presented with a direct appeal from an initial commitment proceeding in which the defendant has been both committed as sexually dangerous and convicted of the offense underlying the dangerousness finding. The defendant was charged with only one sexual offense. The principle cases relied on by the State and the defendant all concern revocation of a conditional release, or denial of an application for release. (See People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661; People v. Burkhart (1983), 116 Ill. App. 3d 708, 452 N.E.2d 375, 72 Ill. Dec. 250; People v. Oetgen (1995), 269 Ill. App. 3d 1000, 647 N.E.2d 1083, 207 Ill. Dec. 590.) There is apparently no case directly on point, therefore, the exact question before us has never squarely been addressed by a court of review.

The defendant places principle reliance on People v. Patch (1972), 9 Ill. App. 3d 134, 293 N.E.2d 661. In Patch, the defendant was found to be a criminal sexual psychopathic person under "an Act to provide for the commitment and detention of criminal sexual psychopathic persons" (Ill. Rev. Stat. 1947, ch. 38, par. 820 et seq.). This was in 1947. In March 1966, the defendant was granted a conditional release under section 9 of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1965, ch. 38, par. 105-9). ...


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