Appeal from Circuit Court of McLean County No. 99MR14 Honorable Elizabeth A. Robb, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McCULLOUGH
In these proceedings under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)), defendant James Joseph Ottinger appeals from an order of the circuit court of McLean County dismissing his petition for conditional release and granting the State's motion for a finding of no probable cause upon review of a report of reexamination done July 10, 2001. The issues on appeal are whether (1) the trial court erred in failing to appoint "neutral" or "independent" examiners, (2) the trial court improperly entered summary judgment on the petitions, (3) there was sufficient probable cause to require a full hearing on the discharge and conditional release matters, (4) the Act is unconstitutional because it deprives a defendant of due process by not requiring proof beyond a reasonable doubt and not authorizing the appointment of a sufficient number of experts for a defendant, and (5) defendant was deprived of the effective assistance of counsel. We affirm.
On October 1, 1992, defendant pleaded guilty to criminal sexual assault. Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(1). The trial court sentenced him to 21 years' imprisonment. On February 5, 1999, the State filed a petition for commitment of defendant under the Act. On September 14, 1999, defendant admitted the allegations of the petition. On November 23, 1999, the trial court committed defendant to the Illinois Department of Human Services until such time as he was no longer a sexually violent person. On December 21, 1999, defendant filed a motion to reconsider and vacate the judgment of commitment. On October 10, 2000, the trial court denied the motion to reconsider and vacate. On appeal, this court affirmed the order of commitment on May 11, 2001. In re Ottinger, No. 4-00-0932 (May 11, 2001) (unpublished order under Supreme Court Rule 23).
On October 10, 2000, defendant filed a pro se petition for conditional release pursuant to section 60 of the Act (725 ILCS 207/60 (West 2000)). On October 12, 2000, the public defender was appointed to represent defendant on the petition for conditional release. On October 30, 2000, the public defender, Amy Johnson Davis, filed a motion to withdraw as counsel because of defendant's complaints about her to the Attorney Registration and Disciplinary Commission alleging coercion. On November 21, 2000, the motion to withdraw as counsel was denied. On November 29, 2000, on application by Ms. Davis as defendant's counsel, the trial court appointed Dr. Larry Davis, a psychologist, to examine defendant and report within 60 days. The mandate from the earlier appeal was filed in the circuit court on June 13, 2001. On July 19, 2001, the trial court scheduled a status hearing for August 14, 2001. On July 20, 2001, the State filed a psychological reexamination report prepared by Dr. Paul J. Heaton and a motion pursuant to section 55 of the Act (725 ILCS 207/55 (West 2000)) for a finding of no probable cause based upon review of the reevaluation report. The report of Dr. Davis was filed by defendant on August 27, 2001. On August 30, 2001, the trial court conducted a hearing on the State's motion for a "no probable cause" finding and defendant's pro se petition for conditional release. The trial court found there was no probable cause to believe that (1) defendant was no longer a sexually violent person under section 65(b)(2) of the Act (725 ILCS 207/65(b)(2) (West 2000)) and (2) it was not substantially probable that he would engage in acts of sexual violence if released on conditional release. The trial court dismissed defendant's petition for conditional release and continued defendant's commitment in a secure facility.
Defendant argues that the trial court erred in failing to appoint neutral examiners. Although recognizing that there were no objections by defendant's counsel to the procedures employed in the trial court, defendant contends that the alleged error amounted to plain error (134 Ill. 2d R. 615(a)) or ineffective assistance of counsel. We find no error in the appointment of examiners.
A committed person may file a petition for conditional release under section 60 of the Act. Section 60(c) provides as follows:
"Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the mental condition of the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records and patient health care records. If any such examiner believes that the person is appropriate for conditional release, the examiner shall report on the type of treatment and services that the person may need while in the community on conditional release. The State has the right to have the person evaluated by experts chosen by the State. The court shall set a probable cause hearing as soon as practical after the examiner's report is filed. If the court determines at the probable cause hearing that cause exists to believe that it is not substantially probable that the person will engage in acts of sexual violence if on release or conditional release, the court shall set a hearing on the issue." 725 ILCS 207/60(c) (West Supp. 2001) (effective August 17, 2001).
On October 10, 2000, defendant filed a pro se petition for conditional release. On November 29, 2000, the court appointed Dr. Davis. In the interim, on October 12, 2000, the trial court appointed counsel for defendant pursuant to section 60(b) of the Act (725 ILCS 207/60(b) (West 2000)), appointed counsel moved to withdraw as counsel on October 30, 2000, and on November 21, 2000, the trial court heard and denied the motion to withdraw. Defendant does not raise the failure to appoint Dr. Davis within 20 days as prejudicial error. Instead, defendant argues that Dr. Heaton was a State expert, Dr. Davis was defendant's expert, and no "neutral" or "independent" expert was appointed by the court. He claims this violates the statute.
Dr. Davis was appointed on defendant's motion. Defendant makes no statutory construction argument. Nor does he make an argument that demonstrates that section 60(c) evidences a legislative intent to require that the trial court appoint an examiner who was not requested by either party. The court appointed an examiner as required by the statute. There was no error, plain or otherwise.
Defendant's argument suggests that section 25(e) of the Act (725 ILCS 207/25(e) (West 2000)) affords him the opportunity to have another expert appointed. We disagree. Although section 25(c) (725 ILCS 207/25(c) (West 2000)) sets forth the procedural rights of any person who is subject to a petition at "any hearing" under the Act, section 25 generally pertains to proceedings on the petition under section 15 of the Act (725 ILCS 207/15 (West 2000)). 725 ILCS 207/25(a) (West 2000). Therefore, we do not read the provision in section 25(e) as applying to the proceedings under sections 55, 60, and 65 of the Act in this case.
Nor has defendant demonstrated ineffective assistance of counsel on this basis. To establish ineffective assistance of counsel, defendant must demonstrate that his counsel's performance was fundamentally deficient and, but for counsel's deficient performance, the result of the proceeding would have been different. People v. Coleman, 183 Ill. 2d 366, 397-98, 701 N.E.2d 1063, 1079 (1998). The failure of defendant's counsel to make a futile objection does not constitute fundamentally deficient performance. See People v. Wilson, 164 Ill. 2d 436, 454, 647 N.E.2d 910, 919 (1994) (failure to file a futile motion does not establish ineffective assistance of counsel).
Defendant next argues that the procedure employed in this case amounted to an improper summary judgment for the State on the petition for conditional release and the State's motion for a "no probable cause" finding. Defendant relies on People v. Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (2001). Trainor is distinguishable from this case. In Trainor, the supreme court found that summary judgment was not authorized in a recovery proceeding under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 through 12 (West 2000)). Trainor, 196 Ill. 2d at 338-42, 752 N.E.2d at 1067-69. Defendant recognizes the distinction between the Sexually Dangerous Persons Act, which authorizes a proceeding against a person who has been charged with but not yet convicted of a criminal offense (725 ILCS 205/3 (West 2000)), and the Act, which requires that the person sought to be committed has been found guilty of a sexually violent offense, either as an adult or delinquent minor, or has been found not guilty of a sexually violent offense by reason of insanity, mental disease, or mental defect (725 ILCS 207/15(b)(1)(A) through (b)(1)(C) (West 2000)).
Trainor is also distinguishable from this case because no motion for summary judgment was made here (see 735 ILCS 5/2-1005 (West 2000)), summary judgment was not granted, and the procedure employed by the trial court was precisely the probable cause hearing contemplated by section 60(c) of the Act. Similarly, section 55 of the Act recognizes periodic examination of the committed person following initial commitment. Section 55 does not require a formal hearing, but only the submission of a report from the examiner conducting the examination (725 ILCS 207/55(b) (West 2000)), although the court may appoint another expert to examine the committed person at his request (725 ILCS 207/55(a) (West 2000)). Section 55(d) anticipates that a petition for discharge may be filed after reexamination, but requires that it comply with section 65 of the Act. 725 ILCS 207/55(d) (West 2000). Defendant argues that the trial court did not comply with section 65(b) of the Act (725 ILCS 207/65(b) (West 2000)). Section 65(b)(1) of the Act provides:
"A person may petition the committing court for discharge from custody or supervision without the Secretary's approval. At the time of an examination under subsection (a) of Section 55 of this Act, the Secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the Secretary's objection. The notice shall contain a waiver of rights. The Secretary shall forward the notice and waiver form to the court with the report of the Department's examination under Section 55 of this Act. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. If a person does not file a petition for discharge, yet fails to waive the right to petition under this Section, then the probable cause hearing consists only of a review of the reexamination reports and arguments on behalf of the parties. The committed person has a right to have an attorney represent him or her at the ...