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In re Commitment of Rendon

Court of Appeals of Illinois, First District, Third Division

April 26, 2017

Enrique Rendon, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Cook County. No. 98 CR 80004 The Honorable Alfredo Maldonado Judge, presiding.

          JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and opinion.


          LAVIN, JUSTICE

         ¶ 1 This appeal is brought by the fourth person ever committed as a sexually violent person ("SVP") under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2014)) in Cook County. Respondent, Enrique Rendon, voluntarily stipulated to being an SVP and was civilly committed in 2002, then underwent sex offender treatment designed to reduce his risk of recidivism. After being recommended for release in 2010, respondent entered conditional release, where he remained in the community while scrupulously supervised by Department of Human Services (the Department) mental health professionals. The State then successfully moved to revoke his conditional release in 2012, claiming that he was a danger to the safety of others in the community and that he had violated several conditions of his release, including his alleged failure to honestly answer questions about his sexual behavior and fantasies in polygraph examinations. This court reversed that judgment, and once the mandate issued, respondent was returned to conditional release, over the State's specific objection. In re Commitment of Rendon, 2014 IL App (1st) 123090, ¶ 41.

         ¶ 2 This particular appeal stems from the trial court's determination, following review of respondent's 2015 annual mental health report, that there was no probable cause to find respondent had made sufficient progress in treatment such that he was no longer an SVP. This probable cause decision came despite some noted progress in treatment and even though he obtained the lowest possible score in standard testing designed to gauge the risk of sexual offender recidivism. The trial court therefore denied respondent a full evidentiary hearing in the matter. Had respondent succeeded in obtaining a full hearing, it would have been his first chance to argue whether he had reached such a low risk of recidivism as to warrant discharge. We reverse and remand with instructions for the trial court to conduct such an evidentiary hearing.

         ¶ 3 BACKGROUND

         ¶ 4 After being convicted and imprisoned for the kidnapping and sexual assault of an eight-year-old girl, respondent was imprisoned and was released after serving six years. He violated his parole just two years later by trying to lure children into his car. He was also found in bed by his 17-year-old daughter as he lay naked with her friend. The State then moved in 1998 to commit respondent under the Act. Four years later, respondent stipulated to the State's petitions and entered mental health sex offender treatment under the auspices of the Department in a "Treatment and Detention Facility" (TDF), where he remained from 2002 to 2010. This stipulation avoided any hearing in front of a judge or jury to decide whether he ought to have been committed as an SVP. During treatment, respondent admitted to a variety of sexual offenses apart from the sexual assault and luring incidents detailed above. We will not enumerate his many reported sexual offenses but do note that his self-reporting while in therapy filled more than three single-spaced pages and catalogued illegal sexual acts that reportedly began at age 11 and concluded at 50. He also boasted that on more than 20, 000 occasions in public places like the "L" train, he had engaged in "frottage, " the act of rubbing against a person (in his case, young women) for sexual gratification.

         ¶ 5 In 2010, based principally upon the report of Dr. Edward Smith, respondent entered conditional release. Dr. Smith's detailed report indicated that respondent had made significant progress, mainly by understanding his offense cycle, and that he had completed a relapse prevention plan. Along with other findings, this led Dr. Smith to conclude that respondent was a candidate for a "highly structured and supervised" conditional release, despite the fact that he felt respondent was still an SVP. As noted above, respondent remained on conditional release in an apartment for some 21 months where he was consistently monitored and tested by mental health professionals. He was also prescribed Eligard, a drug that helped him lessen his deviant urges through the lowering of testosterone levels. After it was determined that respondent may have lied during a polygraph examination when questioned about his sexual behavior/fantasies, the State successfully moved to revoke respondent's conditional release in June 2012, a judgment that was subsequently reversed by this court in November 2014. Id. ¶ 41.

         ¶ 6 Between the time respondent's conditional release was revoked and while the matter was pending on appeal, respondent was returned to institutional treatment. There, he admitted that he had been regularly fantasizing about offending women and young females with frottage while on conditional release and thus engaging in high-risk, deviant fantasies and masturbatory behaviors. He had been making plans to bring women to his apartment. Specifically, in therapy respondent admitted that he had been "holding in" information by keeping secrets and being dishonest, especially prior to the allegedly failed polygraph and before the Eligard treatments. On a scale of 1 to 10, with 10 being the highest, he said he was at a 7 with regard to his sexual urges, deviant fantasies, and masturbatory behavior. He reported that during that period he was "slipping a lot" yet denied having any unauthorized people in his apartment. Respondent eventually joined "Phase V" of the therapy group, the highest therapy level intended to transition an SVP into the community.

         ¶ 7 In spite of these noted problems and while waiting for this court's opinion to issue, in August 2014, respondent petitioned for conditional release while also asking the court to appoint an expert on his behalf and asking for a probable cause hearing. As stated, some months later, in November 2014, this court reversed the trial court's judgment terminating respondent's conditional release.

         ¶ 8 With that reversal and respondent's pending release back into the community, the State moved to again revoke his conditional release based upon a January 2015 report by Dr. Smith in which he stated that despite respondent's noted progress, respondent was an SVP who should remain in a treatment facility. One month later, a Dr. Raymond Wood prepared a report pursuant to respondent's earlier request. In that report, Dr. Wood found that respondent had made progress but also believed that he should remain on conditional release, as opposed to discharge. (Not surprisingly, though it would have been statutorily admissible, Wood's report was not later submitted for the court's consideration in the probable cause hearing.) In February 2015, pursuant to this court's mandate and over the State's objection, the trial court ordered respondent back on conditional release but of a type that was described as "maximum supervision, " enabling respondent to "take out his garbage, collect his mail and do laundry in his building."

         ¶ 9 Some four months into this second stint on conditional release, in June 2015, Dr. Smith conducted another annual reexamination. This is the reexamination that was used in the "no probable cause hearing" that is the subject of this appeal. In the 32-page report, Dr. Smith laid out, in detailed fashion, a litany of self-reported sexual offenses committed by respondent prior to his confinement, as well as the treatment that he had received over the years while in the TDF and on conditional release, including consideration of annual reexaminations of respondent from 2008 to 2014. This analysis included reports of numerous professional tests of respondent designed to assess his truthfulness, i.e., whether he was still perseverating about sexual deviancy, whether he would react physiologically to materials designed to test or trigger his erotic responses, and otherwise gauging his progress in treatment. Respondent's most recent 2013 penile plethysmography (PPG) test, for example, indicated no deviant arousal on the 22 segments of images presented.

         ¶ 10 Dr. Smith opined that respondent met the criteria for five separate sexual disorders as listed in the fifth and latest edition of the Diagnostic and Statistic Manual (DSM-5). Those diagnoses are "Pedophilic Disorder, Sexually Attracted to Females, Nonexclusive Type" (owing to his numerous sexual offenses against prepubescent females including the crimes that he was imprisoned for); "Other Specified Paraphilic Disorder, Non-Consenting Females" (related to his reporting of numerous instances of using force, weapons, and intimidation to gain sexual compliance); "Frotteuristic Disorder" (stemming from his self-reported obsession with rubbing against people for sexual pleasure); "Alcohol and Stimulant Use Disorder"; and "Antisocial Personality Disorder." Dr. Smith's lengthy report and analysis established that respondent over the course of his time in the Department had made some significant progress while still identifying some very sobering issues related to the possibility that respondent was not being entirely truthful about his potential to reoffend, as respondent had admitted truthfulness problems.

         ¶ 11 Nonetheless, when interviewed by Dr. Smith in June 2015, respondent reported he was transparent in therapy and kept his mind occupied so as to avoid deviant thoughts, thus steadily decreasing in deviant sexual fantasies, and stated he had not masturbated since returning on conditional release in February 2015. Fantasies came and went, but respondent successfully intervened, for example, when viewing young females on television and completed sexual fantasy/masturbation logs, budget sheets, and phone logs. He was taking Eligard, which he reported was quite successful in sublimating his deviant sexual urges. Respondent's conditional release agent described him as compliant and self-reliant, having adjusted back to community living from the TDF ...

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