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People v. Sizemore

March 10, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANIEL K. SIZEMORE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County No. 84CF48 Honorable Donald D. Bernardi, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cook

In March 1985, the trial court committed defendant Daniel K. Sizemore to the Department of Corrections (DOC) as a sexually dangerous person. On October 9, 1997, Sizemore filed a petition for recovery and/or conditional discharge in the circuit court of Woodford County. After completing an evidentiary hearing on August 21, 1998, the circuit court denied the petition. Sizemore appeals, arguing that he met his burden of proof, establishing his right to conditional discharge. He contends that the circuit court's decision was against the manifest weight of the evidence. We disagree and affirm the circuit court's ruling.

I. JURISDICTION

We must first address the State's assertion that we lack jurisdiction to review the circuit court's decision because Sizemore filed an untimely appeal. Sizemore's pro se notice of appeal was mailed on September 24, 1998, and file stamped by the clerk's office on September 28, 1998.

Section 3.01 of the Sexually Dangerous Persons Act provides that proceedings under the Act are civil in nature and that "[t]he provisions of the Civil Practice Law, and all existing and future amendments of that Law and modifications thereof and the Supreme Court Rules now or hereafter adopted in relation to that Law shall apply to all proceedings hereunder except as otherwise provided in this Act." 725 ILCS 205/3.01 (West 1998).

Supreme Court Rule 303, controlling civil appeals, provides that a notice of appeal must be filed within 30 days from the date judgment is entered. 155 Ill. 2d R. 303(a)(1). In Illinois, notices of appeal mailed within the 30-day period and received and file stamped thereafter are considered timely filed. See Harrisburg-Raleigh Airport Authority v. Department of Revenue, 126 Ill. 2d 326, 340, 533 N.E.2d 1072, 1078 (1989). Here, Sizemore mailed the notice of appeal on September 24, 1998, 34 days after the circuit court judgment was entered. Technically, the notice of appeal was untimely. However, Rule 303(d) permits the appellate court to review untimely appeals where the appellant files a motion demonstrating a reasonable excuse for the untimely filing within 60 days after entry of the judgment. 155 Ill. 2d R. 303(d).

In his reply brief, Sizemore notes that his untimely filing was due to the fact that he was waiting for a written order from the circuit court denying his petition before he filed his pro se appeal. When the written order did not arrive, he filed the notice of appeal anyway.

We recognize that the circuit court was not required to enter a written order denying Sizemore's petition. The docket order entered by the clerk after the circuit court's oral ruling was sufficient to trigger to 30-day period for filing an appeal. However, in the interests of justice and under these circumstances, we will consider Sizemore's notice of appeal as a motion for leave to proceed with an untimely appeal to this court. We grant Sizemore leave to proceed with his appeal. As such, we will address the merits of his claims.

II. DEMONSTRATING RECOVERY AND APPLYING FOR DISCHARGE UNDER THE SEXUALLY DANGEROUS PERSONS ACT

Pursuant to the Sexually Dangerous Person Act (Act) (725 ILCS 205/9 (West 1998)), a person adjudicated to be sexually dangerous can file an application with the court setting forth the facts that show that he has recovered. The applicant is entitled to a hearing to determine whether he has recovered and should be released. Sizemore's pro se application for discharge alleged that he had made "significant progress" through group therapy and was able to control his sexually inappropriate behavior. Sizemore claimed that he had recovered to a point where he could function in a less "restrictive environment as part of his reintegration with society."

After the petition is filed, the Director of DOC must coordinate preparation of a sociopsychiatric report concerning the applicant. 725 ILCS 205/9 (West 1998). The report must be "prepared by the psychiatrist, sociologist, psychologist, and warden of, or assigned to, the institution wherein such applicant is confined." 725 ILCS 205/9 (West 1998). Sizemore's socio-psychiatric report, dated December 9, 1997, and updated on August 18, 1998, complies with the Act. The report concluded that Sizemore was sexually dangerous, with a high risk to reoffend.

The circuit court then conducts a hearing, considering testimony, the report, and any other relevant information submitted by the applicant. Absent a jury demand, the court determines whether the applicant remains sexually dangerous. The applicant must be discharged if the court determines that he is no longer dangerous. An applicant can be conditionally discharged if the court finds the applicant "appears no longer to be dangerous but that it is impossible to determine with certainty under conditions of institutional care that such person has fully recovered." 725 ILCS 205/9 (West 1998). Under a conditional discharge, the applicant is permitted to "go at large subject to such conditions and such supervision by the Director as in the opinion of the court will adequately protect the public." 725 ILCS 205/9 (West 1998). Neither expert in Sizemore's case advocated full discharge. Sizemore's expert suggested that he be conditionally released, with regular supervision. The State's expert requested that Sizemore be remanded to DOC for further treatment.

III. EVIDENTIARY HEARING ON SIZEMORE'S APPLICATION FOR DISCHARGE

The evidentiary hearing was originally scheduled for July 10, 1998. The matter was continued because DOC failed to abide by a writ that ordered that Sizemore be transported to court on that day. The hearing was continued for a status hearing a week later, where Sizemore waived his right to have a jury decide his case. The trial court conducted an evidentiary hearing on August 21, 1998. Robert Chapman, M.D., S.C., a court- appointed forensic psychiatrist, testified for Sizemore, while Mark S. Carich, Ph.D., testified for the State. Sizemore also testified on his own behalf.

A. Dr. Robert Chapman

Dr. Chapman met with Sizemore on April 15, 1998. Prior to meeting with Sizemore, Dr. Chapman had reviewed a 1995 forensic psychiatric evaluation, Dr. Carich's 1995 mental health evaluation, and the court order adjudicating Sizemore a sexually dangerous person.

During the two-hour examination, Dr. Chapman administered the Minnesota Multiphasic Personality Inventory test (MMPI) to Sizemore, but the test was invalid because Sizemore did not finish the test and randomly answered questions. Dr. Chapman believed that Sizemore's poor reading abilities and attention deficit disorder made it difficult for him to complete the test. Sizemore told Dr. Chapman that upon entering DOC in 1985, the sexual offender treatment program at Menard consisted of weekly two-hour group meetings of 20 to 30 inmates who were supervised by a specialist. In 1987, the program increased to 2-hour group sessions 3 to 4 times a week with only 15 inmates in a group with 2 supervising specialists, 1 of whom was Dr. Carich. Sizemore quit the treatment program in 1987 after he was moved to the segregation unit for six months. He chose not to participate in the sexual offender treatment program from 1987 to 1994.

In 1994, he reentered the program in Menard, and in 1995 was transferred to Big Muddy River Correctional Center, which offered 2- to 3-hour therapy sessions 3 times a week with 2 supervisors and about 25 inmates. Sizemore claimed that since 1994, he made significant progress by developing empathy for his victims, whose ages ranged from 9 to 13, by recognizing his own victimization as a child, expressing his feelings, and identifying his cycle of offending.

Dr. Chapman stated that Sizemore did not take advantage of or benefit from treatment that was offered to him prior to 1994, but after 1994, had sincerely engaged in therapy and had benefitted from it. When Dr. Chapman compared the previous examinations and reports concerning Sizemore to his current ...


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