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In re Detention of Kortte

October 24, 2000

IN RE DETENTION OF DONALD KORTTE (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE, RESPONDENT-APPELLANT).


Appeal from the Circuit Court of McHenry County. No. 98--MR--220 Honorable v. Donald Kortte, Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

Respondent, Donald Kortte, appeals the trial court's order committing him pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 1998)). He argues that section 30(c) of the Act (725 ILCS 207/30(c) (West 1998)) unconstitutionally prevented him from calling an expert witness at his trial.

Specifically, he contends that the provision (1) deprived him of due process of law (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2); and (2) violates the separation of powers (Ill. Const. 1970, art. II, §1). We reverse and remand.

On November 20, 1998, the State petitioned for an order of commitment, alleging as follows. In 1988, respondent was convicted of two counts of aggravated criminal sexual assault. The victim of those crimes was a minor. Respondent was sentenced to 21 years in the Department of Corrections (DOC). While he was incarcerated, respondent possessed pictures of nude minors and a document that graphically described sexual activities with minors. Within 90 days, respondent would begin a period of supervised release. Dr. Marc Levinson, a clinical psychologist for the DOC, had diagnosed respondent with pedophilia. Respondent had failed to take advantage of opportunities for treatment. He was dangerous because his mental disorder created a substantial probability that he would commit future acts of sexual violence.

Attached to the petition was a certified statement showing that respondent had been convicted of aggravated criminal sexual assault. Also attached was Levinson's evaluation of respondent. Levinson performed that evaluation to determine whether respondent was subject to commitment under the Act. Because respondent refused to participate, Levinson assessed him by reviewing his DOC "master file" and communicating with his DOC treatment providers. Levinson outlined the factual basis for his diagnosis of pedophilia and identified several factors indicating that respondent would be a recidivist. According to Levinson, respondent's pedophilia was a mental disorder that created a substantial probability that he would engage in further acts of sexual violence. Levinson recommended that respondent be committed under the Act.

On November 24, 1998, the court conducted a hearing to determine whether there was probable cause to believe that respondent was sexually violent. Levinson testified in accordance with his evaluation, specifying that the DOC master file contained respondent's criminal records, mental health and treatment records, and DOC disciplinary history. The court found probable cause and ordered the Department of Human Services (DHS) to detain and evaluate respondent. The case was set for trial.

On January 15, 1999, the State moved to compel respondent to submit to the DHS evaluation, in which he had refused to participate. Alternatively, the State moved to prohibit respondent from calling an expert witness at trial. The court ruled that respondent could not be forced to submit to the evaluation. However, in accordance with section 30(c) of the Act, the court barred respondent from calling any expert who evaluated him.

On March 29, 1999, respondent waived his right to a jury and was tried by the court. The State called Levinson, who testified again in accordance with his evaluation. Daniel Kazy-Garey, a Harvard police officer, testified about the facts that led to respondent's convictions of aggravated criminal sexual assault. Anthony J. Wehmhoff, a DOC official, testified that he discovered in respondent's possession the sexually explicit pictures and document to which the State's petition referred.

Finally, the State called Dr. Barry Mark Leavitt, who was engaged by the DHS to evaluate respondent. Because respondent refused to participate, Leavitt evaluated him by reviewing the DOC master file. Leavitt stated that the file contained mental health evaluations, disciplinary reports, psychiatric notes, treatment reports, and police reports. Like Levinson, Leavitt diagnosed respondent with pedophilia. He testified to the factual basis for his diagnosis and identified several factors suggesting that respondent would be a recidivist. He concluded that, because of respondent's mental disorder, a substantial probability existed that respondent would commit another sexually violent crime.

The State rested, and respondent proffered no evidence. The court found that respondent was sexually violent and committed him to the custody of the DHS for as long as he was sexually violent. Respondent's motion for a new trial was denied, and he appealed.

The Act "allows the State to extend the incarceration of criminal defendants beyond the time they would otherwise be entitled to release if those defendants are found to be 'sexually violent.' " In re Detention of Samuelson, 189 Ill. 2d 548, 552 (2000). A "sexually violent person" is one who

"has been convicted of a sexually violent offense *** and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 1998).

Here, respondent had been convicted of aggravated criminal sexual assault (720 ILCS 5/12--14 (West 1998)), which is a "sexually violent offense." See 725 ILCS 207/5(e)(1) (West 1998).

When a person is imprisoned for a sexually violent offense and "may meet the criteria for commitment as a sexually violent person," the agency that is authorized to release him must notify the Attorney General and the relevant State's Attorney "as soon as possible beginning 3 months prior to the applicable date of" release. 725 ILCS 207/10(b) (West 1998). The agency must also provide a "comprehensive evaluation of the person's mental condition, the basis upon which a determination has been made that the person is subject to commitment" under the Act. 725 ILCS ...


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