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People v. McClellan

December 2, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANNA M. MCCLELLAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Clinton County. No. 98-CF-82. Honorable Kelly D. Long, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

PUBLISHED

The defendant, Anna M. McClellan, was charged by a second amended information with aggravated criminal sexual abuse (720 ILCS 5/ 12-16(c)(1) (West 1998)) for sexually abusing her minor son in 1995 and 1996. She pleaded guilty and was sentenced to three years of probation. The terms of her probation required her to obtain a mental health evaluation and to complete any counseling recommended as a result of the evaluation. The defendant was also required to complete sex offender counseling. The trial court revoked her probation on the basis that the defendant had failed to complete sex offender counseling, and the court sentenced her to five years in prison. For the reasons that follow, we reverse the ruling of the trial court.

The defendant is a 39-year-old woman from Breese, Illinois. This case involves her oldest son, T.B., now 21 years old. In June 1998, when T.B. was 15, his biological father and stepmother informed law enforcement that they suspected that the defendant had sexually abused T.B. over a 12-year period. T.B. informed authorities that the sexual abuse had begun when he was three or four but that he did not remember much of it. He recalled that it began again in 1995 and continued thereafter. Given the timing of the latest abuse, he suspected that he was the father of his mother's youngest son.

On June 11, 1998, the State charged the defendant by information with one count of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). The State filed an amended information on January 27, 1999, adding a second count for aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1998)). Although not made a part of the record, it appears that the State filed a second amended information on July 21, 1999, adding a third count for aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 1998)). The defendant pleaded guilty to the third count in exchange for the State dismissing the first two counts and recommending three years of probation. The trial court sentenced her to three years of probation, from July 21, 1999, until July 21, 2002. The probation order stated that the defendant was required to obtain a mental health evaluation and complete any counseling recommended as a result of the evaluation, in addition to completing sex offender counseling.

A summary of the defendant's counseling history follows. The mental health evaluation required by the probation order was performed by Karol Kiel, M.A., who provided individual therapy to the defendant from January 6, 2000, until March 1, 2001. The written report of the evaluation, entitled "Mental Health Assessment", is not dated. The defendant had been seeing Kiel to work on personal issues, including emotional stress resulting from the sexual abuse charges and her divorce. Kiel recommended in the report that the defendant continue individual therapy and treatment for sex offenders. Nothing in the record demonstrates that the defendant followed Kiel's recommendation that she continue individual therapy.

The defendant entered group therapy for sexual offenders with Darlene Diamond-Bushue, M.A., in September 1999. She attended and participated in Diamond-Bushue's group for two years. On September 8, 2001, Diamond-Bushue discharged the defendant and authored a progress report which states that the defendant maintained her innocence through the course of treatment and was being discharged because she had reached maximum benefit as a result of her denial of guilt. Diamond-Bushue recommended that the defendant obtain individual therapy with a female sex offender specialist to address any unresolved issues. Again, nothing in the record demonstrates that the defendant engaged in the specialized individual therapy recommended by Diamond-Bushue in September 2001.

The defendant reentered group therapy with Diamond-Bushue on November 19, 2001, approximately one month after she had been discharged. Therapy continued until June 2002 and concluded in conjunction with the termination of her probation. Diamond-Bushue authored two additional documents during this second period of therapy with the defendant. The first document, dated March 25, 2002, entitled "Client Staffing Evaluation", was authored by Diamond-Bushue four months into this second period of therapy. Diamond-Bushue noted that the defendant had made progress in all the areas evaluated, including behavior control, group therapy involvement, understanding criminal thinking, and appreciation of the harm and costs of crimes. However, Diamond-Bushue noted that the defendant had made minimal or no progress in her ability to disclose her abusive history, and she recommended that the defendant continue in group therapy, which she did. Diamond-Bushue stated in her August 5, 2002, "Discharge Summary" that the defendant had consistently attended and actively participated in group therapy sessions and demonstrated knowledge and understanding of the concepts presented. Diamond-Bushue further stated that the defendant was able to confront other group members about their offenses and to provide insight. Nonetheless, at the end of the defendant's third and final year of probation and counseling, Diamond-Bushue discharged her "unsuccessfully" based on her "lack of accountability regarding sexual abuse allegations". She recommended that the defendant participate in a sex offender evaluation and a clinical polygraph examination to determine her level of risk to children. Like the individual therapy recommended by Kiel and Diamond-Bushue in 2001, there is no evidence in the record that reflects that the defendant participated in a sex offender evaluation or polygraph examination as recommended.

During her second course of treatment with Diamond-Bushue, the defendant contacted Marie Clark, M.A., of the Behavioral Science Institute on November 5, 2001. It is not clear from the record whether she treated with Clark voluntarily. It is also not clear whether Clark specialized in female sex offenders, as had been recommended by Diamond-Bushue two months earlier. Regardless, it appears that the defendant did not obtain any therapy from Clark at all. She only completed an intake evaluation over the course of three appointments in November and December 2001.

In summary, after our review of the documentation of the defendant's group sex offender counseling, individual therapy, and evaluations, it appears that she first attended group sex offender counseling with Diamond-Bushue from September 1999 until June 2002, which was interrupted for one to two months following her first discharge. From January 6, 2000, until March 1, 2001, she attended individual therapy with Kiel, who authored the mental health evaluation required by the probation order. Last, the defendant completed the intake process with Clark over three visits in November and December 2001 but did not engage in any therapy during that time.

On July 3, 2002, shortly after the defendant was discharged from therapy by Diamond-Bushue for the second time, the State filed a petition to revoke probation, alleging that the defendant had violated the terms of her probation by failing to support her lawful dependents and by failing to complete sex offender counseling. The petition was filed less than three weeks before the defendant's probationary period expired. The defendant filed a memorandum in opposition to the State's petition. She argued that she had complied with the trial court's probation order in every respect and that the trial court could not revoke her probation because she was not "cured" or because she did not benefit from the court-ordered therapy. She relied solely on People v. Prusak, 200 Ill. App. 3d 146, 558 N.E.2d 696 (1990) (holding that a condition placed on the sex offender's probation-to complete a treatment program-was not violated when the offender was asked to leave group therapy when he would not accept responsibility for his sexual misconduct).

The parties filed a stipulation related to the State's revocation petition. The parties agreed to the following facts. They agreed that the defendant had been ordered to complete sex offender counseling. She attended therapy with Diamond-Bushue from September 1999 until September 2001 and from October 2001 until March 2002*fn1 . The parties also agreed that the defendant had attended and participated in all the group sessions required and had demonstrated appropriate effort on homework assignments and contributed to group discussions. She had made good progress in every respect except she had not admitted the offense. The parties attached exhibits to the stipulation: Diamond-Bushue's progress report, client staffing evaluation, and discharge summary. It appears, however, that Kiel's mental health assessment required by the probation order was omitted from the parties' stipulation.

The trial court heard argument on the State's petition to revoke on October 28, 2002. The parties' arguments focused mostly on the applicability and propriety of Prusak, upon which the defendant relied. The trial court took the matter under advisement and on November 6, 2002, revoked the defendant's probation "for her failure to complete sex offender counseling." The docket entry states in pertinent part:

"4) Whether or not defendant is willing to admit the acts for which she is on probation has not been considered by this court on the issue of whether ...


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