Appeal from the Circuit Court of Du Page County. No. 98--MR--155 Honorable Robert E. Byrne, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Bowman
This matter comes before the court as an interlocutory appeal pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). On September 20, 1993, respondent, Alvin Anders, was sentenced to 10 years' imprisonment on a conviction of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1992)). On January 9, 1998, Gerald Burgener, a psychologist with the Illinois Department of Corrections, evaluated respondent while he was in custody serving his sentence. On March 9, 1998, the State filed a petition pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West Supp. 1997)), seeking an order of commitment. Dr. Burgener's mental health evaluation accompanied the petition.
After the State filed the petition, the trial court held a probable cause hearing on March 11, 1998. Following the hearing, the trial court concluded that there was probable cause to believe that respondent was subject to commitment under section 35(f) of the Act (725 ILCS 207/35(f) (West Supp. 1997)) and entered an initial order of commitment. Pursuant to the trial court's initial order of commitment, respondent was detained pending further court order and was immediately transferred to the portion of the Sheridan Correctional Facility under the control of the Department of Human Services, where respondent was to undergo evaluation pursuant to the Act.
Respondent subsequently moved to dismiss the petition for commitment pursuant to sections 2--615 and 2--619 of the Code of Civil Procedure (735 ILCS 5/2--615, 2--619 (West 1996)). Respondent also filed a motion to bar the testimony of Dr. Burgener. An amended motion to bar was subsequently filed. On July 7, 1998, the trial court issued a memorandum opinion and order denying respondent's motion to dismiss and motion to bar.
On July 20, 1998, the trial court certified the following questions pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308):
"A. Whether the right to remain silent, pursuant to 725 ILCS 207/25 and the Constitutions of the State of Illinois and of the United States, granted to Respondent Alvin Anders, attaches prior to the evaluation of Dr. Burgener on January 9, 1998."
"B. Assuming that the right to remain silent attaches prior to the evaluation of Dr. Burgener, whether there is probable cause to believe that the Respondent Alvin Anders is a sexually violent person even though the portion of Dr. Burgener's opinion that is based solely on statements made by the respondent to Dr. Burgener is stricken."
"C. Whether the right to remain silent, pursuant to 725 ILCS 207/25 and the Constitutions of the State of Illinois and of the United States, attaches at the time Respondent Alvin Anders receives post-conviction treatment subsequent to his conviction in case number 92 CF 2478, on September 20, 1993, in DuPage County, Illinois."
"D. Whether the patient/physician privilege attaches to treatment provided by the State of Illinois or its employees or agents to Respondent Alvin Anders subsequent to his conviction under 92 CF 2478, on September 20, 1993, in DuPage County, Illinois."
"E. Whether the evaluation of Respondent Alvin Anders by Dr. Burgener done on January 9, 1998[,] violates the patient/physician privilege, even though Respondent's mental state is put at issue by the petition filed by the State of Illinois on March 9, 1998."
"F. Whether the evaluation of Respondent Alvin Anders by Dr. Burgener, done January 9, 1998, prior to the filing of the Petition in this cause should be barred, or suppressed, as violative of the statutory provisions under 725 ILCS 207/1, et seq., [sic] and specifically Sections 10 and 25."
Thereafter, respondent filed this timely petition for leave to appeal, and we allowed respondent's petition for leave to appeal.
Before assessing the merits of the certified questions, we briefly summarize the standards governing commitment under the Act. The Act applies to a person who is "within 90 days of discharge or entry into mandatory supervised release from a Department of Corrections correctional facility for a sentence that was imposed upon a conviction for a sexually violent offense." 725 ILCS 207/15(b)(2) (West Supp. 1997). Upon receiving notice from an agency with control or custody of a person who may meet the criteria for commitment, the State may file a petition alleging that the person is a sexually violent person. 725 ILCS 207/10, 15 (West Supp. 1997). After the State files a petition pursuant to section 15 (725 ILCS 207/15 (West Supp. 1997)), a hearing is held to determine whether there is probable cause to believe that the person is a sexually violent person (725 ILCS 207/30(b) (West Supp. 1997)). If the trial court determines that there is probable cause to believe that the person is a sexually violent person, the trial court shall order the person to be transferred to a facility for an evaluation to determine whether the person is a sexually violent person. 725 ILCS 207/30(c) (West Supp. 1997). A trial is subsequently held to determine whether the person who is the subject of a petition is a sexually violent person. 725 ILCS 207/35 (West Supp. 1997).
The scope of our review pursuant to Supreme Court Rule 308 (155 Ill. 2d Rule 308) is strictly limited to the questions certified by the trial court. Lanxon v. Magnus, 296 Ill. App. 3d 377, 379 (1998). We conduct a de novo review ...