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People v. Rainey

October 30, 2001


Appeal from Circuit Court of Morgan County No. 98MR41 Honorable J. David Bone, Judge Presiding.

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


In September 1998, the State filed a petition under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 90 (West 1998)) to have defendant, Raymond Rainey, committed as a sexually violent person. In February 2000, defendant admitted the allegations set forth in the petition. Following a May 2000 dispositional hearing, the trial court ordered defendant committed to a secure facility.

Defendant appeals, arguing that (1) his commitment is void for lack of jurisdiction because he was not served with a summons, pursuant to sections 2-201(a) and 2-203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-201(a), 2-203 (West 1998)); (2) his due process rights were violated because he was not properly served summons; (3) the trial court erred by accepting his admission to the State's petition; (4) he was denied effective assistance of counsel; and (5) the court abused its discretion by committing him to a secure facility. We affirm.


In 1993, defendant was found guilty but mentally ill of aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 1992)). The trial court later sentenced him to 12 years in prison. (Defendant was initially incarcerated at the Dixon Special Treatment Center (Dixon); he was later transferred to Big Muddy Correctional Center (Big Muddy).) In March 1997, defendant was released on mandatory supervisory release (MSR). In April 1998, his MSR was revoked for driving with a suspended license and failing to attend sex-offender counseling. Defendant was imprisoned again at Big Muddy and scheduled to be released on MSR in October 1998.

On September 28, 1998, the State filed a petition under the Act, seeking to have defendant committed as a sexually violent person. The petition alleged that (1) defendant suffered from (a) pedophilia, (b) alcohol abuse, (c) post-traumatic stress disorder, (d) antisocial personality disorder, and (e) borderline personality disorder; and (2) it was substantially probable that he would engage in sexually violent acts if not committed to a secure facility. On that same date, the trial court entered an order of habeas corpus ad prosequendum, which indicated that a probable-cause hearing had been set for September 30, 1998. (Section 30(b) of the Act provides that when the person named in the petition is in custody, a probable-cause hearing shall be held within 72 hours of the filing of the petition. 725 ILCS 207/30(b) (West 1998).)

At the September 30, 1998, probable-cause hearing, Dr. Jacqueline Buck, a clinical psychologist, testified as an expert on sex- offender treatment and evaluation. She had reviewed defendant's "master file" maintained by the Department of Corrections (DOC) and conducted a two-hour clinical interview with him in July 1998. Defendant's master file showed the following prior convictions for sex offenses: (1) indecent liberties with a child in 1978; (2) contributing to the sexual delinquency of a child in 1984; (3) aggravated criminal sexual assault in 1986; and (4) aggravated criminal sexual abuse in 1993.

When Buck interviewed defendant, he could not remember anything about the 1978 offense. Regarding the 1984 conviction, he said he was accused of fondling his niece, who was then 9 or 10 years old. In 1986, he was convicted of aggravated criminal sexual assault of his live-in girlfriend's daughter, who was then 11 or 12 years old. When Buck asked defendant about the 1986 incident, he became very angry and stated that "they gave him 30 years for something he didn't do."

Defendant's 1993 conviction was for the 1991 sexual assault of his live- in girlfriend's niece, who was then nine years old. Defendant explained to Buck that his girlfriend discovered him in a room with her niece and misunderstood what was happening. He insisted that he had not done anything wrong.

Buck testified generally that defendant did not accept responsibility for his offenses and, instead, blamed "anybody and everybody but himself." He did not show any remorse or empathy for the victims.

Defendant's master file also showed that when he was at Dixon, he was disciplined for participating in sexual behavior with a young man and transferred to Big Muddy. At the end of 1995, he was again involved in sexual misconduct with a young male. In early 1996, defendant agreed for the first time to participate in sex-offender treatment. (Defendant had been offered sex-offender treatment since 1993.) He was later confronted by his peers and the treatment staff on at least three occasions for inappropriately associating with young males "on the unit."

Defendant had also been put in segregation for participating in mutual oral masturbation. The staff ultimately dismissed defendant from the treatment program.

When defendant was paroled in 1997, he was required to attend sex-offender treatment as a condition of his MSR. During the first three months following his release, defendant met and began living with a woman, Roberta, and Roberta's hearing-impaired daughter, Megan, who was nine years old at the time of the September 1998 hearing. Sometime prior to the hearing, defendant and Roberta married. When his parole was revoked in April 1998, defendant had not attended sex-offender treatment in the previous nine months.

Following defendant's return to Big Muddy, he spoke with Megan on several occasions via a telecommunications device for the deaf (TDD). Counselors at Big Muddy monitored those calls, and Buck examined transcripts of TDD calls between defendant and Megan that occurred in the summer of 1998. In 11 calls, defendant spoke to Megan about going fishing and camping alone with him.

Buck diagnosed defendant with the following five mental disorders: (1) pedophilia, sexually attracted to females, non-exclusive type; (2) alcohol abuse in a controlled environment; (3) post-traumatic stress disorder, chronic; (4) antisocial personality disorder; and (5) borderline personality disorder. Buck testified about each diagnosis in some detail. In her opinion, within a reasonable degree of psychological certainty, it was substantially probable that defendant would commit future sexually violent acts.

The State provided no other testimony, and defendant's counsel offered no argument. The trial court then initiated the following colloquy:

"THE COURT: I only have one question before a finding of probable cause, counsel. Looking at the statute which we're dealing with, 725 ILCS 207[/1 through 90 (West 1998)], and under that [s]section 20, it says civil nature of proceedings, provisions of the civil practice law apply, and there's nothing in the file to indicate [defendant has] been served with summons or any notice of these proceedings. So I may not have any jurisdiction.

MR. COLBURN [(State's Attorney)]: Just, he'd been served in [DOC] and was just further served this morning by sheriff's deputies, Your Honor (handing document to the court).

THE COURT: All right. Next question. I don't mean to be troublesome here, but if we're going to apply, use a civil proceeding in the, under the Civil Practice Act, I think everything's initiated by the service of summons. Notice of the hearing wouldn't necessarily be, necessarily suffice to serve as summons. It's just a question. They say the entire [Civil Practice] Act applies. I don't know how you've done it elsewhere, but I just, I hate to leave just a question of jurisdiction. It would be such a simple act just to serve him with summons and a copy of the petition, just do it here in court, hand him a summons.

MR. COLBURN: That's what he was served with, Your Honor. That's what that reflects. He was served with the petition and summons again today by the deputies, the entire petition prior to coming into the courtroom.

MR. CREWS [(Defense counsel)]: Your Honor, I'd stipulate to that. I was present when Deputy Miller served [defendant] with a copy of the petition.

THE COURT: All right. Again, I don't mean to be highly technical.

MR. CREWS: I understand.

THE COURT: But there's no evidence that summons was issued. He, the deputy served him with a copy of the petition and the order of detention, but was a summons issued in that? The [c]court gets jurisdiction from the issuance and service of summons under the Civil Practice Act. Unless he enters his appearance, that's all involuntary.

MR. CREWS: We'll waive service, Your Honor, and enter an appearance in this case.

THE COURT: That would suffice. *** Defendant waives service of summons, and there is proof of service of, notice of the filing of the petition and order of detention and hearing in this cause on file."

The trial court then found probable cause, noting that Buck's testimony was unrebutted, and ordered defendant transferred to the Department of Human Services (Department) for an evaluation, pursuant to ...

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