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People v. Kastman

October 28, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
RICHARD A. KASTMAN, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 93--CM--4621 Honorable Donald H. Geiger, Judge, Presiding.

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

UNPUBLISHED

Respondent, Richard A. Kastman, appeals from the trial court's order denying his application for recovery pursuant to section 9 of the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/9 (West 2000)). Respondent contends that the trial court erred when it (1) placed the burden of proof on him to show that he was no longer sexually dangerous, and (2) denied his motion to strike the State's socio-psychiatric report. Respondent also challenges the constitutionality of the Act and the sufficiency of the State's evidence. We reverse and remand.

In October 1993 respondent was charged by information with numerous acts of public indecency involving children and disorderly conduct. In November 1993 the State filed a petition to declare respondent a sexually dangerous person pursuant to section 3 of the Act (725 ILCS 205/3 (West 1992)). Following a jury trial, respondent was adjudicated a sexually dangerous person. The trial court ordered respondent committed to the Department of Corrections (the Department) until he had recovered from his mental disorders and was no longer considered sexually dangerous. Respondent appealed, and this court affirmed his adjudication. See People v. Kastman, 2--94--0631 (1996) (unpublished order pursuant to Supreme Court Rule 23).

In July 1997 respondent filed a pro se application showing recovery and attached motions for an independent psychiatric examination, a jury trial, a speedy trial, and leave to proceed in forma pauperis. In October 1997 the State filed the Department's socio-psychiatric report on respondent as required by section 9 of the Act (725 ILCS 205/9 (West 1996)). The report was prepared and signed by correctional administrative psychologist Mark S. Carich, Ph.D.; psychiatrist Ijaz Jatala, M.D.; special treatment unit administrator Almeda L. Ball, M.S.W., C.A.D.C.; assistant warden/programs Allan R. Wisely; and warden Jack T. Hartwig. On October 31, 1997, the trial court conducted a hearing and denied respondent's motion for an independent psychiatric evaluation and his application showing recovery. The trial court did not rule on respondent's other motions.

Respondent appealed, and this court reversed the trial court's judgment and remanded the cause for further proceedings. See People v. Kastman, 309 Ill. App. 3d 516 (2000). We determined that the trial court committed reversible error when it proceeded to a hearing on respondent's application without addressing his jury demand or impaneling a jury. Kastman, 309 Ill. App. 3d at 519.

On October 8, 1999, during the pendency of the appeal, respondent filed another recovery application requesting release and motions to proceed in forma pauperis, for the appointment of counsel, for the appointment of an independent psychiatrist, for a speedy trial, and for a jury trial. The trial court ordered the Department to prepare a socio-psychiatric report in accordance with section 9 of the Act (725 ILCS 205/9 (West 1998)). On December 28, 1999, the Department filed its report dated December 7, 1999, and prepared and signed by correctional administrative psychologist Mark S. Carich, Ph.D.; psychiatrist Ijaz Jatala, M.D.; treatment counselor Kim Ford, M.S.W., L.C.S.W.; assistant warden/programs Allan R. Wisely; and warden Michael L. Holmes.

On February 22, 2000, respondent moved to strike the Department's socio-psychiatric report. In his motion, respondent challenged the credentials of the psychiatrist, sociologist, and psychologist, and the contents of the report itself. In April 2000 the trial court granted respondent's motion for leave to proceed in forma pauperis. On April 20, 2000, respondent moved again to strike the Department's socio-psychiatric report, claiming infirmities similar to those in his February 2000 motion to strike. For his relief, respondent requested the trial court, inter alia, to strike the report and order the Department to prepare a new report in compliance with section 9 of the Act.

On May 24, 2000, the State filed its response to respondent's motion to strike, and on June 1, 2000, the trial court conducted a hearing on respondent's motion to strike the socio-psychiatric report. Following the hearing, the trial court found that the Department's socio-psychiatric report failed to comply with the statutory requirements of section 9 in that five individuals signed the report when the statute mandated that only four sign. The trial court further found that no sociologist participated in the preparation of the report. The trial court also noted that, above the signature of the warden, Michael Holmes, there was impermissible limiting language reflecting that he only concurred in the administrative data contained in the report rather than participated in the preparation of the report. The trial court granted respondent's motion to strike and ordered the Department to prepare a new report in compliance with section 9 of the Act. On June 2, 2000, the trial court amended its June 1 order to include an additional finding that the socio-psychiatric report was deficient in that sections 2 and 3 of the Clinical Psychologist Licensing Act (225 ILCS 15/2, 3 (West 1998)) required that persons who hold themselves out to be psychologists must be licensed by the Department of Professional Regulation and that, in this case, Carich was not so licensed.

On June 20, 2000, the State filed a motion to reconsider the trial court's rulings of June 1 and 2, 2000. The State asserted that, pursuant to section 3(e) of the Clinical Psychologist Licensing Act (225 ILCS 15/3(e) (West 2000)), Carich was not required to be licensed. The State explained that, under section 3(e), psychologists are exempt from the licensing requirement when they are employed by a state agency and their services are a part of the duties of the position and are performed on behalf of the employer. See 225 ILCS 15/3(e) (West 2000). The State reasoned that, because Carich was employed by the Department of Corrections at Big Muddy Correctional Center (Big Muddy), a state agency, and because his duties included participating in the preparation of evaluations for sexually dangerous persons, he was exempt from the licensing requirement of section 3(e).

On June 30, 2000, the State moved to vacate the trial court's ruling on the socio-psychiatric report on an additional ground that, in People v. Sizemore, 311 Ill. App. 3d 917, 927-28 (2000), the reviewing court determined that Carich was qualified to participate as a psychologist in the preparation of a socio-psychiatric report under section 9 of the Act. Following a hearing on July 19, 2000, the trial court reversed its earlier rulings, finding that the December 1999 socio-psychiatric report complied with section 9 of the Act. On September 19, 2000, the trial court denied respondent's motion to reconsider.

On September 26, 2000, respondent waived his right to a jury trial, and the cause proceeded to a bench trial. The trial court informed the parties that it intended to conduct a hearing on both of respondent's applications, that is, the application from July 1997, which had recently been remanded by this court, and the application from October 1999. The trial court stated that, since it was hearing both applications, it would consider both socio-psychiatric reports. The trial court and the parties all agreed that the burden of proof rested on the respondent to prove by a preponderance of the evidence that he was no longer sexually dangerous.

Respondent testified on his own behalf in support of his application for recovery. Following his testimony, respondent rested his case. The State's sole witness was Carich. Following Carich's testimony and the parties' closing argument, the trial court issued its ruling. The trial court reiterated that the burden of proof was on respondent and ruled that respondent failed to meet his burden. The trial court complimented respondent's counsel for doing a "masterful job" of "poking holes" in the socio-psychiatric reports, but stated that the "unrebutted fact is that the psychologist's report signed by the psychiatrist, *** the warden, and the social worker all believe that [respondent] is still sexually dangerous," and that respondent's "testimony has [not] overcome that factor." The trial court thereafter denied respondent's application. Respondent timely appeals following the trial court's denial of his posttrial motion.

Respondent initially contends that the trial court committed reversible error when it placed the burden on him to establish, by a preponderance of the evidence, that he was no longer sexually dangerous. In support of his contention, respondent cites People v. Trainor, 196 Ill. 2d 318 (2001), wherein our supreme court held that, upon a respondent's application showing recovery, the State bears the burden to prove beyond a reasonable doubt that the respondent remains sexually dangerous. Trainor, 196 Ill. 2d at 335. The State acknowledges the holding in the Trainor decision; however, it maintains that Trainor cannot be applied retroactively.

Generally, our supreme court's decisions apply to all cases that are pending when its decision is announced, unless the court directs otherwise. See People v. Cox, 195 Ill. 2d 378, 386 (2001), citing People v. Linder, 186 Ill. 2d 67, 75 (1999); but cf. Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (discussing rules of retroactivity where a judicial decision announces a new constitutional rule of criminal procedure that is favorable to a defendant). The Trainor court did not direct that its decision be applied prospectively only. Therefore, because respondent's case was pending at the time the supreme court announced its decision in Trainor, we will apply it to the ...


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