Appeal from the Circuit Court of Cook County. Nos. 01 CR 80011, 07 CR 80012, 08 CR 80012, 09 CR 80005, 10 CR 80010 Honorable Paul P. Biebel, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Garcia and McBride concurred in the judgment and opinion.
¶ 1 This matter is before us on interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 1, 1994) to consider three questions certified by the trial court. In separate petitions, the State sought the involuntary commitment of each of the respondents, Bernard Weekly, Luis Tenorio, Timothy Richardson, Alfred Edwards, and Zachary Hatter, under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2004)). In each case, respondents' counsel*fn1 sought a fitness examination to determine if the respondent was fit and, if not, whether he could be restored to fitness. The trial court consolidated the cases for the purpose of ruling on the petitions for fitness examinations and denied the petitions. Respondents moved for a permissive interlocutory appeal pursuant to Rule 308, and the trial court granted respondents' motion, certifying three questions for review.
¶ 3 Respondents are five men who have been convicted of sexually violent offenses and have been subject to petitions seeking their commitment under the Act. Each respondent's background is set forth below.
¶ 5 On September 7, 2001, the State filed a petition to commit respondent Bernard Weekly as a sexually violent person pursuant to the Act. According to the petition, Weekly had three prior sexual convictions. On March 2, 1982, Weekly was convicted of unlawful restraint and sentenced to three years in the Illinois Department of Corrections (IDOC). On June 27, 1983, Weekly was convicted of rape and deviate sexual assault and sentenced to 15 years in the IDOC for each charge, to be served concurrently. On February 5, 1992, Weekly was convicted of attempted aggravated criminal sexual assault and sentenced to 20 years in the IDOC.
¶ 6 The petition claimed that Weekly had the mental disorders of "Paraphilia, Not Otherwise Specified (Non-consenting Sexual Partners)" and "Personality Disorder, Not Otherwise Specified with Antisocial Features." The petition alleged that Weekly was dangerous to others because his mental disorders created a substantial probability that he would engage in acts of sexual violence in the future. The petition further claimed that Weekly had a "lengthy history of mental problems dating back to age ten," had been prescribed a number of psychotropic medications, and had an extremely difficult time handling stress or situations in which his immediate needs were not met. The petition stated that Weekly had not sought sex offender treatment or substance abuse treatment while in the IDOC or on parole.
¶ 7 The petition also included a psychological evaluation prepared by Agnes R. Jonas, Psy.D., a clinical psychologist with the IDOC who evaluated Weekly on April 11, 2001. In her report, Dr. Jonas stated that Weekly gave consistently contradictory information, which appeared to be a deliberate distortion of the truth; this pattern was consistent with psychopathic antisocial personality disorder. She noted that Weekly mentioned that he heard the voice of his dead friend, "Tyrone," frequently, and she opined that the " 'use' " of Tyrone was "for the purpose of appearing more disturbed than is actually the case in order to manipulate the system to get his perceived needs met." Dr. Jonas placed Weekly's intellectual functioning in the "[b]orderline range."
¶ 8 On September 7, 2001, the court ordered Weekly detained by the Illinois Department of Human Services upon release from the IDOC pending a probable cause hearing. On October 5, 2001, the court found probable cause to believe that Weekly was a sexually violent person.
¶ 9 On January 30, 2007, the State requested a current evaluation of Weekly and on March 10, 2009, Jacqueline Buck, Psy.D., a licensed clinical psychologist with the IDOC, prepared a report detailing her evaluation of Weekly. Dr. Buck concluded that "Mr. Weekly suffers from the Axis I disorders of Paraphilia, Sexually Attracted to Non-consenting Females, Non-exclusive Type; Schizoaffective Disorder; Alcohol Dependence, Without Physiological Dependence, In a Controlled Environment; and Polysubstance Abuse (cocaine, marijuana, heroin), In a Controlled Environment; the Axis II disorders of Antisocial Personality Disorder, and Borderline Intellectual Functioning." Dr. Buck opined that Weekly's disorders made it substantially probable that he would engage in continued acts of sexual violence if he was released.
¶ 11 On October 22, 2007, the State filed a petition to commit respondent Luis Tenorio as a sexually violent person pursuant to the Act. The petition claimed that Tenorio had been convicted of aggravated criminal sexual abuse and was sentenced to five years in the IDOC. The record*fn2 establishes that Tenorio was convicted on May 5, 2007, and that at one point during the pendency of his case, Tenorio was determined to be unfit to stand trial. The record further indicates that Tenorio was previously convicted of aggravated criminal sexual abuse on June 11, 2003, and that he was sentenced to three years in the IDOC for the offense. Again, Tenorio was found unfit to stand trial at one point during the pendency of that case.
¶ 12 The petition claimed that Tenorio had two mental disorders: "Pedophilia, Sexually Attracted to Females"; and "Pervasive Development Disorder, Not Otherwise Specified." The State claimed that the mental disorders made it substantially probable that he would engage in acts of sexual violence.
¶ 13 Attached to the petition was a psychological evaluation completed on October 12, 2007, by Ray Quackenbush, Psy.D., a "consultant psychologist" with Affiliated Psychologists, Ltd. (Affiliated), an independent company providing evaluation services to the IDOC. Dr. Quackenbush reported that his first interview with Tenorio was terminated after one hour. Dr. Quackenbush requested that prison personnel evaluate Tenorio for possible risk of suicide, after which Tenorio was kept in the prison infirmary for five days until he "calmed."
¶ 14 During his second interview, Dr. Quackenbush opined that Tenorio expressed himself in a way "consistent with someone who might be in the low average to borderline intelligence range of cognition." He reported that Tenorio had attended special education classes for his entire academic career and had been reported to behave as though he was 10 to 12 years old; Dr. Quackenbush agreed that "[h]is presentation [was] consistent with someone who suffers from a pervasive developmental delay."
¶ 15 On October 22, 2007, the trial court ordered Tenorio detained pending a probable cause hearing. On November 5, 2007, the court found that there was probable cause to believe that Tenorio was a sexually violent person.
¶ 16 III. Timothy Richardson
¶ 17 On August 21, 2008, the State filed a petition to commit respondent Timothy Richardson as a sexually violent person under the Act. According to the petition, Richardson had been convicted of two sexually violent offenses. Richardson was convicted of aggravated criminal sexual assault and home invasion and was sentenced to 10 years in the IDOC; the record indicates that the date of the conviction was December 17, 1987, and that at some point during the pendency of his case, Richardson was found unfit to stand trial. Additionally, on March 8, 2004, Richardson was convicted of attempted aggravated criminal sexual abuse and attempted robbery and was sentenced to five years in the IDOC.
¶ 18 The petition claimed that Richardson had been diagnosed with the following mental disorders: "Paraphilia NOS"; "Exhibitionism"; "Schizophrenia, Undifferentiated Type"; and "Antisocial Personality Disorder" and claimed that Richardson was dangerous to others because his mental disorders made it substantially probable that he would engage in acts of sexual violence.
¶ 19 Attached to the petition was a psychological evaluation prepared on August 18, 2008, by Phil Reidda, Ph.D., ABPP, a "consultant psychologist" with Affiliated. Dr. Reidda's report revealed that Richardson had received 314 behavioral incident reports between November 1, 1998, and May 24, 2007. Eighty-five of those incidents concerned assault or attempted assault of IDOC staff members and twenty involved issues of sexual misconduct. Dr. Reidda's report also recounted an incident occurring shortly before the evaluation was performed in which Richardson attacked an IDOC staff member. The report is not entirely clear, but it appears that Richardson faced criminal charges stemming from the attack and came before a trial court on July 16, 2008, at which point the court transferred him to a mental health facility for an evaluation of his fitness to stand trial. On July 18, 2008, Richardson was found fit to stand trial.*fn3
¶ 20 On August 21, 2008, the trial court entered an order detaining Richardson pending a probable cause hearing. Richardson waived the time period requirements of the probable cause hearing and as of the time of the instant appeal has not had a probable cause hearing.
¶ 22 On September 22, 2009, the State filed a petition to commit respondent Alfred Edwards as a sexually violent person pursuant to the Act. The petition stated that on August 25, 2000, Edwards was convicted of attempted criminal sexual assault in two separate cases and was sentenced to seven years in the IDOC on each count, with the sentences to run concurrently. The record reveals that at some point during the pendency of his cases, Edwards was found unfit to stand trial and was involuntarily committed to a mental health facility.
¶ 23 The petition claimed that Edwards had been diagnosed with the following mental disorders: "Paraphilia, Not Otherwise Specified, Non-consenting Persons" and "Schizophrenia, Undifferentiated, Chronic." The petition further claimed that Edwards' mental disorders made it substantially probable that he would engage in acts of sexual violence.
¶ 24 Attached to the petition was a psychological evaluation prepared by Dr. Quackenbush*fn4 on September 21, 2009. Dr. Quackenbush reported that he read Edwards a " 'Notice of Sexually Violent Persons Commitment Act Evaluation, Interview and Limits of Confidentiality and Privilege' " form, which included information that the interview was voluntary. Edwards told Dr. Quackenbush several times that Edwards was required to speak with him because Dr. Quackenbush was a doctor. Since Edwards did not appear to understand that the interview was voluntary, Dr. Quackenbush elected not to interview him. Dr. Quackenbush also related that Edwards was experiencing auditory and visual hallucinations, stating that he heard people in the room making jokes and that he saw Lucille Ball standing behind Dr. Quackenbush and waving.
¶ 25 Dr. Quackenbush additionally noted that Edwards had an "extensive" mental health history and was on forced medication; Edwards usually did not cooperate with taking medication, and, when he was not on medication, "he becomes quite violent and both attacks staff members and acts out sexually." Dr. Quackenbush revealed that Edwards had received 208 discipline tickets in the IDOC since March 2001, with 22 of them being assaults against IDOC staff and 6 being for sexual misconduct.
¶ 26 On September 22, 2009, the trial court ordered Edwards detained pending a probable cause hearing. As of the date of the instant appeal, the probable cause hearing has not yet occurred.
¶ 28 On May 10, 2010, the State filed a petition to commit respondent Zachary Hatter as a sexually violent person pursuant to the Act. The petition set forth two convictions for sexually violent offenses. On November 22, 1991, Hatter was convicted of aggravated criminal sexual abuse and aggravated unlawful restraint and was sentenced to four years in the IDOC. The record reveals that during the pendency of his case, Hatter was found unfit to stand trial twice. On May 11, 2009, Hatter was convicted of aggravated criminal sexual abuse and was sentenced to a total of five years in the IDOC. Again, the record reveals that during the pendency of his case, Hatter was found unfit to stand trial three times.
¶ 29 The petition claimed that Hatter suffered from "Bipolar Disorder with Psychotic Features, Per Records," which predisposed him to commit future acts of sexual violence. Attached to the petition was a psychological evaluation prepared on May 5, 2010, by Vasiliki Tsoflias, Psy.D., a "consultant psychologist" with Affiliated. Dr. Tsoflias reported that he was unable to receive consent from Hatter to conduct the interview "due to Mr. Hatter's expression of overt delusional thoughts, manic symptoms, and inability to express an understanding of why he was being seen." Dr. Tsoflias recommended that Hatter be committed to a mental health ...