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In Re Detention of Steven Ehrlich v. Steven Ehrlich

May 29, 2012

IN RE DETENTION OF STEVEN EHRLICH
THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
STEVEN EHRLICH,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 99 CR 80009 The Honorable Paul P. Biebel, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Harris

Unpublished opinion

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Cunningham and Connors concurred in the judgment and opinion.

OPINION

¶ 1 The State filed a petition seeking respondent's commitment under sections 15 and 40 of the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/15, 40 (West 1998)). The State alleged defendant had been convicted of four sexually violent offenses, that defendant had been diagnosed with two mental disorders, and that respondent's mental disorders made it substantially probable that he would engage in future acts of sexual violence. The circuit court of Cook County found probable cause to detain respondent. After a bench trial, the circuit court entered a judgment finding respondent a sexually violent person. After a dispositional hearing, the circuit court ordered respondent be committed to the custody of the Department of Human Services (DHS) for treatment in a secure facility.

¶ 2 Respondent raises the following issues on appeal: (1) whether the circuit court erred in failing to dismiss the State's petition based on the alleged breach of a previous plea agreement or under collateral estoppel principles; (2) whether the circuit court erred in allowing the State to present evidence that respondent did not submit to an interview with a DHS psychologist or participate in any treatment in the DHS facility, where he was detained while awaiting trial; (3) whether the circuit court abused its discretion in denying respondent's motion for a new trial where the State allegedly failed to timely disclose an updated report from its expert; (4) whether the evidence was sufficient to prove that respondent is a sexually violent person; and (5) whether the circuit court abused its discretion when it committed respondent to institutional care in a secure facility rather than place him on conditional release.

¶ 3 We hold the circuit court properly denied respondent's motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)) because respondent failed to prove the existence of a plea agreement whereby the State agreed not to seek respondent's future civil commitment. Additionally, the respondent failed to prove collateral estoppel. We hold respondent has waived his argument that the circuit court erred in allowing evidence that he did not participate in an evaluation with the State's expert or participated in treatment while in custody because he failed to object to the testimony at trial. We hold respondent is procedurally defaulted from raising the issue of the State's alleged discovery violation under the rule of invited error. We hold the State proved respondent guilty beyond a reasonable doubt. We hold the circuit court did not abuse its discretion when it ordered respondent to be committed to institutional care in a secure facility.

¶ 4 JURISDICTION

¶ 5 On June 30, 2010, after a dispositional hearing, the circuit court ordered respondent be committed to DHS custody for treatment in a secure facility. On July 22, 2010, respondent timely filed his notice of appeal. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008); see also 725 ILCS 207/20 (West 1998) ("The proceedings under this Act shall be civil in nature."); In re Detention of Hardin, 238 Ill. 2d 33, 41-43 (2010).

¶ 6 BACKGROUND

¶ 7 On July 1, 1999, the State filed a petition seeking respondent's commitment under sections 15 and 40 of the Act (725 ILCS 207/15, 40 (West 1998)). In support of its petition, the State alleged respondent was convicted and sentenced to four sexually violent offenses. In 1980, he was sentenced to four years' probation for indecent liberties with a child by the circuit court of DuPage County. Also in 1980, he was sentenced to three years' probation for indecent liberties with a child by the circuit court of Cook County. In 1990, he was sentenced to 10 years in the Illinois Department of Corrections (IDOC) for aggravated sexual abuse/bodily harm by the circuit court of DuPage County. In 1998, he was sentenced to 17 years in IDOC for aggravated criminal sexual assault by the circuit court of Cook County. The State alleged respondent had been diagnosed as having the mental disorders of: pedophilia, primarily sexually attracted to females, nonexclusive type, and personality disorder not otherwise specified with narcissistic features. The State alleged that "[a]s a result of the Respondent's sexual offense history and his mental health diagnosis, which indicate that he suffers from a mental disorder, it is substantially probable that Respondent will engage in future acts of sexual violence." At the time of the State's petition, respondent was within 90 days of being placed into mandatory supervised release. Also on July 1, 1999, the circuit court entered an order for detention.

¶ 8 On August 4, 1999, after a hearing, the circuit court found there was probable cause to believe that respondent is a sexually violent person. The circuit court ordered respondent's detention to continue and for DHS to evaluate respondent pursuant to section 30(c) of the Act (725 ILCS 207/30(c) (West 1998)).

¶ 9 On May 31, 2001, respondent filed a motion to dismiss pursuant to section 2-619 of the Code*fn1 (735 ILCS 5/2-619 (West 2000)). In his motion, respondent alleged that his four convictions, as listed in the State's petition, were all based on pleas of guilty. He alleged that at the time he entered into a fully negotiated guilty plea with the State in his latest conviction, the State did not inform him that it intended to seek his commitment under the Act. Respondent argued the State's petition must be dismissed based on this alleged breach. Respondent also argued that the State is precluded, by the doctrine of collateral estoppel, from asserting that he had a mental disorder at the time of the offenses for which he was convicted and that he has a mental disorder that creates a substantial probability that he will engage in future acts of sexual violence.*fn2

¶ 10 Respondent attached to his section 2-619 motion the transcript from his latest conviction where he pled guilty.*fn3 According to the transcript, the assistant State's Attorney (ASA) explained the State's offer, stating "On a plea to Count One, the offer was seventeen years Illinois Department of Corrections. That would be concurrent nunc pro tunc with Case No. 88CF2342." The ASA then stated "[a]s part of the plea agreement, the [S]tate will be dismissing the remaining counts. That is essentially the agreement." Defendant then pled guilty.

¶ 11 The State responded that its petition seeking respondent's commitment under the Act is a collateral consequence of his guilty plea and, therefore, the State did not have an obligation to inform him of the possibility of a future civil commitment. The State argued that the doctrine of collateral estoppel was not applicable because the litigated issues in respondent's criminal convictions were not identical to those the State had to prove at a future civil commitment trial under the Act.

¶ 12 In reply, respondent acknowledged the State's argument that his guilty plea was a collateral consequence, but did not address it's merits. Rather, respondent maintained that the State violated its plea agreement based on contract principles and fundamental fairness.

¶ 13 On the first day of trial, July 12, 2006, the record reveals that respondent filed a motion to bar testimony based on an alleged violation of Illinois Supreme Court Rule 213.*fn4 Ill. S. Ct. R. 213 (eff. July 1, 2002). Respondent argued that Dr. Barry Leavitt's 2006 update to his evaluation of respondent violated Rule 213 and should be barred. Ill. S. Ct. R. 213 (eff. July 1, 2002). Dr. Leavitt did his original evaluation of respondent in 1999 and provided updated reports in March of 2002 and September 2004 and on July 6, 2006. The ASA explained to the court that the updates contained the following new information: an evaluation report from a medical doctor employed by DHS outlining respondent's medical condition, and "a line stating that [respondent] is able to ambulate for short distances with the use of a walker, but still utilizing a wheelchair for long distances." The ASA argued that Dr. Leavitt is responsible for making sure his reports are up to date and current.

¶ 14 Respondent, relying on Illinois Supreme Court Rules 218, 213(f), and 213(g), argued that expert opinions have to be supplemented at least 60 days prior to trial. Ill. S. Ct. R. 218 (eff. Oct. 4, 2002); R. 213(f),(g) (eff. July 1, 2002). Respondent's counsel indicated to the court that he received the updated report about a week before trial. The following colloquy occurred between the court and respondent's counsel:

"THE COURT: What I would suggest is this. I will allow Dr. Leavitt to be redeposed if you're willing on the basis of whatever information that you can gather and we can move from there if you want to do it that way. I want the deposition to take place in a prompt fashion.

Now, [respondent's counsel], do you want to do that, the element of surprise is taken out of it that way.

*** I want full information from everybody. And if that will be helpful to me if you wish to have a deposition of Dr. Leavitt taken or whatever else you want to do, I will open it up for that purpose because I will make the judicial statement that this case has been set several times.

RESPONDENT'S COUNSEL: Judge, I will go ahead and proceed today.

THE COURT: You want to proceed today?

RESPONDENT'S COUNSEL: I would just like the liberal opportunity on cross-examination with regards to his reliance on a new report.

THE COURT: Sure, or we can start today and I could enter and continue for you to look at it if you want.

RESPONDENT'S COUNSEL: If that becomes necessary, I will inform the court and request that.

THE COURT: Fine.

RESPONDENT'S COUNSEL: And I would like to proceed today."

¶ 15 The case proceeded to trial after respondent waived his right to a jury trial and the State withdrew its jury demand.

¶ 16 Dr. Barry Leavitt testified on behalf of the State. The parties stipulated that Dr. Leavitt is a licensed clinical psychologist and an expert in the field of evaluating sex offenders for the risk of reoffending. Dr. Leavitt conducts post-probable cause civil commitment evaluations under the Act. On October 12, 1999, Dr. Leavitt conducted a clinical evaluation of respondent to determine whether respondent was a sexually violent person under the Act. Respondent agreed to participate in the interview. Prior to meeting with respondent, Dr. Leavitt reviewed respondent's IDOC master file, police reports, investigative reports, and presentence investigation reports. He believed that he also reviewed reports from the Department of Children and Family Services. Dr. Leavitt testified that the above documents he reviewed are generally relied upon and accepted by experts in his field to determine whether a sex offender risks reoffending. He completed the evaluation and issued a written report, finding respondent's mental disorders make it substantially probable that he will engage in future acts of sexual violence.

¶ 17 Following the initial evaluation in October of 1999, Dr. Leavitt completed three updated reports on respondent: in 2002 and 2004 and several weeks before trial.*fn5 The following exchange occurred between the ASA, the court, and Dr. Leavitt:

"Q. [ASA]: And in those three updates, did you have personal face-to-face interviews with [respondent]?

A. I did not.

Q. Did you attempt to?

A. On two occasions I did, yes.

Q. What happened?

A. [Respondent] refused to participate in ...


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