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In re Commitment of Kugler

Court of Appeals of Illinois, Third District

December 4, 2019

Devin M. Kugler, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,

          Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. Circuit No. 07-MR-214 Honorable Frank R. Fuhr, Judge, Presiding.

          Attorneys Nate Nieman, of Rock Island, for appellant. for Appellant:

          Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, for Solicitor General, and Michael M. Glick and Rachel L. Barbat, Appellee: Assistant Attorneys General, of counsel), for the People.

          PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and Lytton concurred in the judgment and opinion.



         ¶ 1 Following a bench trial, the court found that respondent, Devin M. Kugler, was a sexually violent person (SVP) subject to commitment under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2006)) based on acts he committed when he was 16. Respondent appealed his commitment. This court affirmed. See In re Detention of Kugler, No. 3-08-0123 (2009) (unpublished order under Illinois Supreme Court Rule 23). In September 2017, the State filed its tenth motion for periodic reexamination as required by the Act. In May 2018, respondent filed a combined motion to vacate order of commitment/dismiss. On May 18, 2018, the circuit court held a hearing on the motions. It denied respondent's combined motions and granted the State's motion. On appeal, respondent argues that his commitment is unconstitutional as applied to him in light of Miller v. Alabama, 567 U.S. 460 (2012). We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The actions underlying respondent's commitment are detailed in this court's order affirming his commitment. See Kugler, No. 3-08-0123. We will repeat only those facts necessary to our analysis.

         ¶ 4 In April 2007, the State filed a petition alleging respondent, then age 21, was an SVP subject to commitment under the Act. The petition alleged that in 2002, when respondent was 16 years old, a court adjudicated respondent delinquent for the offense of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2002)) because he penetrated the anus of an 8-year-old girl with his finger and rubbed her buttocks. At the time of conviction, he admitted that he fantasized about having sex with young children between the ages of 8 and 11. Treatment providers for respondent alleged he reported sexually abusing two other young girls, ages six and eight. Also, respondent had sexually deviant fantasies about his young cousin. A doctor diagnosed respondent with (1) pedophilia, sexually attracted to females, and (2) antisocial personality disorder. The petition contended that these mental disorders affected respondent's emotional and volitional capacity and created a substantial probability that he would commit future acts of sexual violence.

         ¶ 5 The court held a bench trial on the matter. A clinical psychologist testified as an expert in the evaluation and treatment of SVPs. She interviewed respondent as part of the SVP commitment proceedings. Respondent admitted to the offense that led to his 2002 conviction. The psychologist reviewed his records from a treatment facility where he admitted to engaging in sexual activities with his foster sister when she was 4 or 6 and he was 12. He would take showers with her, masturbate in front of her, fondle her, and place his penis against her buttocks when they were in a pool. Respondent performed oral sex on another girl when she was eight or nine. Respondent denied these acts when the psychologist questioned him. He did admit to having sexual fantasies about his underage cousin but claimed he did not act on them. The psychologist was concerned that respondent's deviant behavior had persisted from age 12 through age 20.

         ¶ 6 Respondent also committed several nonsexual offenses, including two convictions and an additional charge for aggravated battery. In 2006, a young woman obtained an order of protection against respondent. She alleged that respondent threatened to kill everyone she loved, called her multiple times a day, stalked her at the mall, tried to get her alone, begged her for sex, and told her that he wanted to rape her. The psychologist opined that these offenses indicated respondent's tendency to disobey the law and demonstrate violent, sometimes sexually violent, behavior.

         ¶ 7 The circuit court found the State proved beyond a reasonable doubt that respondent was an SVP under the Act. Respondent chose not to have a dispositional hearing. The court ordered respondent committed for institutional care in a secure facility. Respondent appealed, arguing that the State failed to meet its burden of proof. This court affirmed.

         ¶ 8 The Act requires the State to file a motion for periodic reexamination at least annually. 725 ILCS 207/55 (West 2006). In September 2017, the State filed its tenth motion for periodic reexamination. In May 2018, respondent filed a motion to vacate order of commitment/motion to dismiss, citing Miller's holding "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller, 567 U.S. at 479.

         ¶ 9 On May 18, 2018, the court held a hearing on the pending motions. The court considered Dr. David Suire's written report based on his July 2017 examination of respondent. Suire opined that respondent remained in the self-application (or third) phase of the treatment program for SVPs. Although respondent made progress since his last reexamination, he continued to struggle with many reoccurring issues like denial of his recidivism risk and inappropriate sexual interests. Respondent remained ignorant as to the full range of his treatment needs and risk factors. He stopped taking his psychotropic medication. Suire found this decision concerning due to respondent's therapist's observation that respondent was developing a romantic/sexual interest in a female therapist. This was a reoccurring issue for respondent over the course of his treatment. Respondent denied behaving inappropriately toward the woman who obtained a restraining order against him, suggesting a lack of insight into his behavior. Suire scored respondent on the STATIC-99, which is an actuarial assessment that measures an offender's sexual recidivism risk. Respondent's risk of recidivism was between three and a half and four times higher than the typical sex offender in the normative sample. Suire found that respondent met the diagnostic criteria for pedophilic disorder, sexually attracted to females, nonconsenting females, delusional ...

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