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In re Commitment of Smego

Court of Appeals of Illinois, Second District

November 2, 2017

Richard Smego, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

         Appeal from the Circuit Court of Lake County. No. 05-MR-1464 Honorable Victoria A. Rossetti, Judge, Presiding.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Spence concurred in the judgment and opinion.


          McLAREN, JUSTICE

         ¶ 1 In 2009, respondent, Richard Smego, was adjudicated a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2008)) and committed to the custody of the Department of Human Services (DHS). He now appeals a judgment denying, without an evidentiary hearing, his petition for conditional release (see 725 ILCS 207/60 (West 2014)). We affirm.

         ¶ 2 In 2005, the State petitioned to have respondent committed as an SVP, based on his 1995 convictions of aggravated criminal sexual abuse (720 ILCS 5/12-16(a)(1) (West 1994)) and other offenses. The victim was a 14-year-old male. The court found probable cause to detain respondent, and he was committed to the DHS. On June 17, 2009, the parties stipulated that Drs. Joseph Proctor and Raymond Wood had evaluated respondent, Proctor would testify that he had "Paraphilia Not Otherwise Specified [(NOS)], Sexually Attracted to Both, " Wood would testify that he had "Paraphilia Not Otherwise Specified, Sexually Attracted to Non-Consenting Adolescent Males, Nonexclusive [T]ype, " and both would testify that his mental disorder made it substantially probable that he would engage in future acts of sexual violence (see 725 ILCS 207/5(f) (West 2008)). On that day, by an agreed order, the trial court found that respondent was an SVP and committed him to the DHS until further order.

         ¶ 3 Respondent was reevaluated periodically (see 725 ILCS 207/55(b) (West 2010)) and, each time, the trial court found no probable cause to hold a hearing on whether he was still an SVP in need of treatment on a secure basis. On January 15, 2013, the State moved for a finding of no probable cause, submitting the report of Dr. Kimberly Weitl. On January 22, 2013, the trial court granted the State's motion and continued respondent's confinement.

         ¶ 4 On June 26, 2014, the State moved for a finding of no probable cause and respondent petitioned for conditional release. The State's motion attached a report by Dr. Steven Gaskell. Respondent requested that the court appoint Dr. Luis Rosell as his expert. Rosell had examined respondent in 2012.

         ¶ 5 Rosell's report was delayed. On June 25, 2015, the State again moved for a finding of no probable cause; its motion attached a report by Gaskell, dated June 4, 2015. We summarize the five pertinent reports, in chronological order.

         ¶ 6 In Weitl's report, dated December 8, 2012, and based on an evaluation that she conducted on October 30, 2012, and December 8, 2012, she stated as follows. At one point, respondent had said that he had sexually abused between 10 and 30 adolescents, ages 13 to 17, as to whom no charges had been brought. Most of the victims were male. Respondent withdrew from treatment in 2010 but started over in January 2012. He was still in the second phase of the five-phase program. Respondent had scored eight on the Static-99; this placed him in the high-risk category for recidivism. He had also scored in the high-risk range on the Minnesota Sex Offender Screening Tool-Revised. Additionally, he had several risk factors for which these tests did not account, including having been emotionally abused as a child, deviant sexual interests, intimacy deficits, and preoccupation with sex. His limited treatment experience, age (then 46), and medical condition were not protective factors. Weitl recommended continued confinement, given the substantial risk that respondent would reoffend.

         ¶ 7 In Rosell's first report, dated December 12, 2012, he stated as follows. He evaluated respondent on August 17, 2012, and September 6, 2012. In 1994, respondent abducted a 14-year-old male at knifepoint, drove him to a warehouse, and sexually assaulted him. In 2005, respondent drove to Las Vegas with three other people and was accused of sexually assaulting a 17-year-old male; an investigation turned up inconsistencies in the accusation and no charges were brought. Respondent told Rosell that he had previously withdrawn from treatment after being sexually assaulted by a member of his treatment group but then forced to remain in the group.

         ¶ 8 Rosell noted that Proctor, Wood, and subsequent evaluators had diagnosed respondent with paraphilia, not otherwise specified. Rosell stated, however, that "[t]he clinical diagnosis of mental disorders in the [American Psychiatric Association's diagnostic manual (DSM)] does not exist for legal purposes. The legal definition involves impairments and the issue of emotional or volitional capacity. These areas are not covered in the DSM nomenclature." Further, "whether Paraphilia, NOS, sexually attracted to nonconsenting persons is a legitimate diagnosis is controversial in the field."

         ¶ 9 Rosell also stated that risk-prediction tools such as the Static-99 had proven to be highly imprecise. According to Rosell, respondent's score of three on the Static-99 placed him in "the low-moderate range relative to other sex offenders." Rosell noted that Wood and Weitl had scored respondent higher, but he explained, "This was based on considering his 2005 violation as a sexual offense even though he was never charged with one." Respondent's score on the Static-2002R was four, placing him in the low-moderate range for likelihood of reoffending. Finally, his score of two on the MATS-1, a newer actuarial tool, placed him in the moderate range.

         ¶ 10 Rosell recommended conditional release for respondent. He believed, to a reasonable degree of psychological certainty, that because respondent was "lower risk compared to the majority of individuals who are currently [SVPs, respondent] could be supervised, managed and treated in the community."

         ¶ 11 We turn to Gaskell's 2014 report. It summarized respondent's criminal history. In addition to the 1994 offenses, it noted that, in November 1994, the son of respondent's girlfriend reported that respondent had sexually abused him in 1993 and might have molested the girlfriend's other son. In September 2005, respondent was arrested for violating his parole by going to Las Vegas. He denied having sex with anyone ...

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