In re COMMITMENT OF DEVIN M. KUGLER
Devin M. Kugler, Respondent-Appellant. The People of the State of Illinois, Petitioner-Appellee,
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
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.
SCHMIDT PRESIDING JUSTICE
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Kugler, No. 3-08-0123 (2009) (unpublished order under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
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 ...