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In re Commitment of Anderson

Court of Appeals of Illinois, Third District

June 3, 2014

In re COMMITMENT OF BRIAN C. ANDERSON
v.
Brian C. Anderson, Respondent-Appellant) (The People of the State of Illinois, Petitioner-Appellee,

Page 446

As Corrected.

Appeal fro the Circuit Court of the 14th Judicial Circuit Whiteside County, Illinois. Circuit No. 10-MR-6. Honorable John L. Hauptman, Judge, Presiding.

SYLLABUS

Respondent was properly found to be a sexually violent person and committed to the Department of Human Services for institutional treatment in a secure facility, despite his contentions that his motion to exclude the testimony of the State's expert witness was improperly denied, that his counsel was ineffective in agreeing to the State's motion for the appointment of an expert and that his commitment to a secure facility was an abuse of discretion, since the State had a right to have respondent evaluated by an expert of its own choosing, even if respondent's due process rights were violated when he was not in the courtroom and was unable to object to the State's motion for an expert, the violation was harmless and respondent was not prejudiced by his counsel's agreement to the State's motion for an expert, and the evidence supported respondent's commitment to a secure facility.

Allison Fagerman (argued), of Pignatelli & Associates, of Rock Falls, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro, Solicitor General, and Brian McLeish (argued), Assistant Attorney General, of counsel), for the People.

PRESIDING JUSTICE LYTTON delivered the judgment of the court, with opinion. Justice O'Brien concurred in the judgment and opinion. Justice McDade dissented, with opinion.

OPINION

LYTTON PRESIDING JUSTICE.

Page 447

[¶1] After a jury trial, respondent, Brian C. Anderson, was found to be a sexually violent person (SVP) and was committed to the custody of the Department of Human Services (DHS) for institutional treatment. On appeal, respondent argues that (1) the trial court abused its discretion in denying his motion to exclude testimony, (2) he was denied effective assistance of counsel, and (3) the trial court abused its discretion in committing him to treatment in a secure facility. We affirm.

[¶2] When respondent was 14 years old, he sexually assaulted two children, ages 8

Page 448

and 5. According to respondent, he anally penetrated the five-year-old " on three or four occasions," and the eight-year-old once. Respondent was adjudicated delinquent and sentenced to five years of probation.

[¶3] Ten years later, respondent sexually assaulted his fourteen-year-old neighbor. Respondent performed oral sex on the victim, and the victim performed oral sex on respondent. Respondent knew the victim was under the age of 16. Respondent was convicted of aggravated sexual assault and sentenced to four years of imprisonment.

[¶4] In 2010, shortly before respondent completed his prison sentence, the State filed a petition seeking his commitment under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq . (West 2010)). Dr. John Arroyo evaluated respondent on behalf of the Illinois Department of Corrections (IDOC). He concluded that respondent was a sexually violent person and recommended him for civil commitment under the Act.

[¶5] After a probable cause hearing, Dr. Robert Brucker conducted an evaluation of respondent on behalf of DHS. He concluded that respondent had a significant risk of committing future sexually violent offenses but did not qualify as a sexually violent person because he did not have a mental disorder, as defined by the Act. The circuit court appointed Dr. Kirk Witherspoon as respondent's expert.

[¶6] On March 24, 2010, the State moved for the appointment of Dr. Paul Heaton to examine respondent at the State's expense. Respondent was not present when the State's motion was presented in court. Respondent's counsel waived respondent's presence. Counsel also waived any objection to the State's motion. The court entered an " Agreed Order" noting that counsel had waived respondent's presence and stipulated to the State's motion.

[¶7] Two days later, counsel wrote a letter to respondent informing him of Dr. Heaton's appointment. Before respondent received the letter, Dr. Heaton attempted to interview respondent. Respondent refused to cooperate, even after counsel encouraged him to participate in the evaluation.

[¶8] Approximately a year later, on March 31, 2011, respondent, with a new attorney, filed a motion to exclude Dr. Heaton from testifying at trial. Respondent argued that the entry of the " Agreed Order" violated his statutory right to be present at all hearings conducted under the Act. Following a hearing, the trial court denied respondent's motion, holding that ...


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