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FIFTH DIVISION

JUSTICE GREIMAN delivered the opinion of the court:

Defendant Daniel Barichello appeals from a ruling of the circuit court finding him subject to involuntary admission pursuant to section 104-25(g)(2) of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure)(725 ILCS 5/104-25(g)(2) (West 1996)). Defendant contends that: (1) the circuit court erred by applying the wrong standard to the proceedings; (2) confinement under the standard employed violated his rights to due process and equal protection; and (3) the State failed to prove that he is subject to involuntary confinement.

For the reasons that follow, we affirm.

The essential procedural facts of this case were set forth in Barichello v. Campagna, 276 Ill. App. 3d 269 (1995). On September 29, 1983, defendant was found unfit to stand trial on charges of murder and the court committed him to the custody of the Department of Mental Health and Developmental Disabilities⁽¹⁾ (the Department) pursuant to section 104-17 of the Code of Criminal Procedure (Ill. Rev. Stat. 1983, ch. 38, par. 104-17 (now 725 ILCS 5/104-17 (West 1996))). After a discharge hearing pursuant to section 104-25 of the Code of Criminal Procedure (Ill. Rev. Stat. 1983, ch. 38, par. 104-25 (now 725 ILCS 5/104-25 (West 1996))), the circuit court determined that the State presented sufficient evidence to show that defendant should not be acquitted. The court remanded him to the custody of the Department for extended treatment under section 104-25(d) of the Code of Criminal Procedure (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(d) (now 725 ILCS 5/104-25(d) (West 1996))). In June 1989, at the expiration of the extended treatment period, the circuit court committed defendant to the custody of the Elgin Mental Health Center under section 104-25(g)(2) of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 104-25(g)(2) (now 725 ILCS 5/104-25(g)(2) (West 1996))).

In Barichello v. Campagna, 276 Ill. App. 3d at 272, this court ruled that the Department erred when it failed to regularly file recommitment proceedings after the June 1989 ruling. This court held, however, that the remedy for this error was not release of the defendant and that the circuit court properly granted the Department leave to file a commitment petition instanter.

In June 1997, the circuit court entered an order pursuant to section 104-25(g)(2) of the Code of Criminal Procedure (725 ILCS 104-25(g)(2) (West 1996)), finding defendant presently in need of inpatient services. The circuit court remanded defendant to the Department in a secure setting for a period not to exceed a period ending June 27, 2023. The court set the matter for rehearing in October 1997.

In October 1997, the staff at the Elgin Mental Health Center sent a report to the circuit court indicating that defendant continued to be in need of mental health treatment on an inpatient basis. On December 3, 1997, the circuit court also received a report from Dr. Albert Stipes regarding defendant's condition.

At a hearing on January 13, 1998, the State called Dr. John Raftery, a psychiatrist at the Elgin Mental Health Center, who testified that defendant had been found unfit for trial on a murder charge. Raftery had learned that the murder occurred in 1979 and thereafter, in 1983, defendant confessed to the police. Defendant indicated that on the day of the crime he had gone to church with his family and then went to the home of his friend, the victim. As they talked, defendant saw a knife on the coffee table. He picked up the knife and began to play with it. Defendant then stabbed the man in the chest. The man protested and defendant stabbed him 52 times. Raftery pointed out the sudden and unexpected nature of the crime. Defendant later explained that he thought the man was potentially dangerous or harmful to him.

Raftery further testified that defendant was first considered to have a psychiatric illness in 1979 and was hospitalized at a different facility. Defendant was hospitalized several times until 1983. When defendant came into the State's custody in 1983, he was placed in the Chester Mental Health Center for five years in an attempt to make him fit to stand trial. From 1985 to 1987, defendant was very withdrawn and isolative. He was suspicious of other people and described paranoid hallucinations and delusions. There were episodes in which he became aggressive and violent so as to require restraints. During that period, defendant made very little progress in his treatment. After that time, defendant made gradual improvements and was transferred to the Elgin facility in 1991.

Raftery stated that in the last few years defendant's condition had improved, particularly since he began taking a drug called Risperidone. Defendant had been given unsupervised on-grounds passes and had generally been free of active psychotic symptoms, hallucinations, and delusions, although it has been noted that he still has some degree of formal thought disorder, which is a residual symptom of his schizophrenic psychotic disorder. It is also noted that defendant tends to be somewhat withdrawn and is reluctant to participate in some activities. There are certain people that he prefers not to be around or certain groups that he prefers not to go to because he has uncomfortable feelings.

Raftery also stated that on December 5, 1997, defendant told him that he thought he may need to switch medications. Defendant was concerned about a relapse and whether he could manage when he was released from the hospital. Defendant told Raftery that, at times, he thought another patient was John Wayne Gacy, although he realized that was probably a "magical thought." Defendant also thought another person was someone else. Defendant felt at times that his roommates were harassing him but he was aware that these were probably symptoms. These symptoms concerned Raftery because they had not been noted for a while.

Raftery testified that Risperidone is a newer antipsychotic medication. Defendant has improved on the medication in terms of active psychotic symptoms, but based on the information Raftery learned in December, he did not believe that the Risperidone has resolved defendant's potential for delusional ideas.

Raftery observed that every time defendant experienced a change he became somewhat anxious and uncertain, to some degree symptomatic. Thus, Raftery recommended small, methodical movements in this case. Raftery added that defendant gradually adjusted and had done well after each change. Raftery did not know of any evidence to indicate that defendant ever tried to hurt himself while at Elgin. To Raftery's knowledge, defendant has not attempted to leave the center and he had no evidence of violence towards any other patient.

Raftery diagnosed defendant with the mental illness of paranoid schizophrenia. He is also considered to have schizo-affective disorder. In addition to the Risperidone, defendant takes Depakote, which is a mood stabilizing medicine. Raftery stated that the most significate part of defendant's illness is the schizophrenic part. When stressed, defendant's thinking becomes somewhat illogical, his association thoughts become loose or somewhat tangential and circumstantial, and his thinking becomes a little vague. He has the potential to have delusions, which are fixed false beliefs about other people or hallucinations. There was a time when defendant heard voices. Raftery was concerned about defendant thinking another person might be John Wayne Gacy because that is someone that one might fear or dislike.

Raftery also stated that defendant had lived continuously in psychiatric facilities for 14 years. He has had his food prepared and his bed provided during that time. His family provides him with some money. Defendant has not had an opportunity to demonstrate an ability to manage these things. Raftery was unclear how easily defendant could provide for his basic needs outside the facility because he has not done so for many years. The center was asking for passes to gradually introduce him to the outside world. Raftery stated he would be anxious about suddenly putting defendant in a relatively independent status because it could exacerbate his illness and lead to psychiatric symptoms. Raftery opined that defendant needs inpatient psychiatric hospitalization, although he hoped that the hospitalization would move toward an outpatient plan.

Raftery recognized that a person would be subject to involuntary admission if there was some reason to think that based on his psychiatric disorder he had considerable potential for immediate harm to himself or others. Before December, Raftery believed that defendant still exhibited some thought disorder and some withdrawals, but he did not show hallucinations or delusions and had not exhibited aggressive or injurious behavior towards himself or others. However, because of defendant's reported concerns in December and the context of the alleged crime, Raftery changed his position and felt defendant "probably still is" subject to involuntary admission. Raftery indicated that under stress defendant could have delusions of a paranoid and potentially dangerous nature with respect to someone else. Raftery also stated that defendant reported mixed feelings about whether he wanted to be discharged. The next reasonable step should be supervised off-grounds passes. Raftery thought that defendant is aware that he has a disorder without being totally aware of its level of severity or its potentiality. Raftery admitted that he had equivocated a bit about whether defendant is subject to involuntary admission, but he did not equivocate about his belief that defendant should receive inpatient care.

On cross-examination, Raftery stated that he had no evidence that defendant had made any homicidal threats, or had suicidal or self-injurious thoughts. Defendant participated in activities at Elgin, specifically groups to address coping with mental illness in the community and chemical dependency, and a course to develop some skills for life in the community. Raftery admitted that the treatment team did write in the report that defendant's mental illness had been in remission. However, Raftery stated that is not true. Defendant has consistently shown evidence of thought disorder, a loosening of association, and that stress worsens this condition. Raftery also stated that given the example of December 5, 1997, defendant still has some potential for some degree of delusional thinking.

Raftery did not know if it is possible to have a good understanding of defendant's mental status around the time of the alleged crime, but the information suggests that defendant committed this crime very unexpectedly and Raftery found reason to believe that the crime is related to his psychiatric illness. Given the fact that at least one time recently defendant had a symptom of a delusional and paranoid nature, and given that he still has some degree of thought disorder, Raftery could not state that defendant is unequivocally not a danger to the community. Raftery was concerned that if defendant was released and stopped taking his medication, he would become actively very psychotic and have the potential to commit a crime.

The State also called James O'Brien, a mental health specialist at the Elgin Mental Health Center and a member of the committee that reviews defendant's status. He recommended supervised off-grounds passes for defendant. The court ruled that the request for supervised off-grounds passes be implemented.

The defense called Dr. Albert Stipes, who examined defendant on November 25, 1997. Stipes opined that there was not a reasonable probability that defendant would inflict serious physical harm on himself or another in the near future. He also stated that defendant is able to provide for his basic physical needs so as to guard himself from serious harm, but initially he may need some help with this. Stipes further opined that it is not reasonably expected that defendant would inflict serious physical harm upon himself and it is not reasonably expected that defendant would inflict serious harm upon another unless he had not taken his medication, which would result in a return of his psychotic symptoms and could make him harmful to others.

Stipes' current diagnosis of defendant is schizophrenia, undifferentiated type, which can be managed with medication. If defendant stopped taking his medication, he would become psychotic again. He would be completely out of touch with reality and would be expected to become very paranoid and harmful to others. As long as defendant is on his medication, there is not a reasonable probability that he will harm others. As long as defendant is supervised, it would be assured that he would take his medication.

Stipes did not believe that defendant is subject to involuntary admission, but he opined that defendant is in need of inpatient care because defendant must take medication on a regular basis. Defendant needs more inpatient guidance and education before he would be ready for a residential placement. Stipes recommended supervised off-grounds passes.

Upon completion of the hearing, the court observed that Dr. Raftery was concerned that defendant may not be doing as well on his current medication as previously thought. The court was concerned by the testimony that every time there is a change in defendant's environment, defendant becomes anxious and symptomatic even though the changes have not been very significant. The court stated that the gist of the doctor's testimony is that the prudent course of action would be to take methodical, small steps in his course of treatment.

The court stated that although there was no evidence that defendant had hurt himself or others in the past 14 years, that is not as probative as it would otherwise be, given the facts alleged in this crime and the impulsive nature of that event. The court also found it undisputed that, when stressed, defendant becomes illogical and more symptomatic. The court was troubled by defendant's reported belief that another patient could be John Wayne Gacy. The court agreed with Raftery that this is a "serious red flag." The court found it clear and convincing evidence that there should be grave concern about the possibility of assaultive thoughts on the part of the defendant, stating:

"There is clear and convincing evidence based on all the testimony, but most particularly that testimony, that the illness is not in remission. That coupled with the nature of the offense in this case, the unquestioned testimony that the defendant becomes psychotic when exposed to stress, the undisputed testimony that he would become psychotic if he stopped taking his medication, the fact he has never been exposed to anything more challenging than unsupervised on grounds pass[es] leads me to the unquestioned belief that he is if not reasonably expected to inflict serious physical harm upon himself or another, he is certainly unquestionably unable to provide for his basic physical needs [so] as to guard himself from serious harm."

The court gave greater consideration to the testimony of Dr. Raftery, who saw defendant on a daily basis. Further, the court noted that Stipes' opinion did not incorporate the events of December 5. The court found clear and convincing evidence to establish that defendant is subject to involuntary admission.

On appeal, defendant argues that the circuit court applied the wrong standard when it determined that he was subject to involuntary admission. He contends that the court should not have relied on language in section 5-2-4 of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5-2-4 (West 1996)) but should have relied on the standard found in the Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-119 (West 1996)), which includes a preference for outpatient care.

The Code of Criminal Procedure provides that when a defendant has been deemed unfit to stand for trial, a discharge hearing must be conducted to determine the sufficiency of the evidence against the defendant. 725 ILCS 5/104-25 (West 1996). If the hearing does not result in an acquittal, the defendant may be remanded for further treatment. 725 ILCS 5/104-25(d) (West 1996). If the State sustains its burden of proof on a charge of first degree murder, the treatment period may be extended up to a maximum treatment period of five years. 725 ILCS 5/104-25 (d)(2) (West 1996). If the defendant continues to be unfit at the expiration of the extended treatment period, the court must determine whether he is subject to involuntary admission under the Mental Health Code or constitutes a serious threat to the public safety. 725 ILCS 5/104-25(g)(2) (West 1996). If so found, the defendant must be remanded to the Department for further treatment and must be treated in the same manner as a civilly committed patient for all purposes, except the court is required to approve any conditional release or discharge of the defendant, for the period of commitment equal to the maximum sentence to which the defendant would have been subject had he been convicted in a criminal proceeding. 725 ILCS 5/104-25(g)(2) (West 1996). If the defendant is remanded to the Department, he must be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary. 725 ILCS 5/104-25(g)(2) (West 1996).

Section 104-25(g)(2)(i) further provides that 180 days after a defendant is remanded to the Department, and every 180 days thereafter for as long as the defendant is so confined, the facility director shall file a treatment plan with the circuit court. 725 ILCS 5/104-25(g)(2)(i) (West 1996).⁽²⁾ The court then must conduct a hearing and

"make a finding as to whether the defendant is:

(A) subject to involuntary admission; or

(B) in need of mental health services in the form of inpatient care; or

(C) in need of mental health services but not subject to involuntary admission nor inpatient care.

The findings of the court shall be established by clear and convincing evidence and the burden of proof and the burden of going forward with the evidence shall rest with the State's Attorney." 725 ILCS 5/104-25(g)(2)(i) (West 1996).

Defendant recognizes that section 104-25(g)(2)(ii) (725 ILCS 5/104-25(g)(2)(ii) (West 1996)) states that the standards listed shall have the meanings ascribed in clause (d)(3) of section 5-2-4 of the Code of Corrections (730 ILCS 5/5-2-4 (West 1996)). He contends, however, that the definitions from the Code of Corrections should not apply because they only apply to defendants who have been found not guilty by reason of insanity.

Section 5-2-4(d)(3) of the Code of Corrections (730 ILCS 5/5-2-4(d)(3) (West 1996)) discusses findings after a hearing regarding release of a defendant found not guilty by reason of insanity. Section 5-2-4(a)(1) defines the terms as follows:

"(A) 'Subject to involuntary admission' means: A defendant has been found not guilty by reason of insanity; and

(i) who is mentally ill and who because of his mental illness is reasonably expected to inflict serious physical harm upon himself or another in the near future; or

(ii) who is mentally ill and who because of his illness is unable to provide for his basic physical needs so as to guard himself from serious harm.

(B) 'In need of mental health services on an inpatient basis' means: a defendant who has been found not guilty by reason of insanity who is not subject to involuntary admission but who is reasonably expected to inflict serious physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care." 730 ILCS 5/5-2-4 (West 1996).

While these definitions are contained in the sections pertaining to defendants found not guilty by reason of insanity, they have been adopted by the legislature to apply under section 104-25(g)(2)(i) of the Code of Criminal Procedure. Therefore, the circuit court properly followed these definitions.

Further, we note that section 104-25(g)(2) states that if a defendant is remanded to the Department, he shall be placed in a secure setting unless the court determines that is unnecessary. Section 104-29 of the Code of Criminal Procedure (725 ILCS 5/104-29 (West 1996)) directs that if there is a conflict between that code and Mental Health Code, the Code of Criminal Procedure governs. In Maust v. Headley, 959 F.2d 644 (7th Cir. 1992), the court found that section 104-17(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 104-17(b) (now 725 ILCS 5/104-17(b) (West 1996))), which required that a defendant found unfit for trial and placed in the custody of the Department be placed in a secure setting, conflicted with provisions of the Mental Health Code providing for confinement in the least restrictive environment (Ill. Rev. Stat. 1981, ch. 91