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SIXTH DIVISION
JULY 18, 2003

Defendant appeals from two orders of the circuit court of Cook County which denied hismotion for discharge or conditional release from the custody of the Illinois Department of HumanServices (the Department), and granted the State's motion to amend his "Thiem date," the designateddate marking the end of the maximum period of his involuntary commitment. He maintains that thetrial court's ruling on his motion was manifestly erroneous and in violation of his due process rights,and that the court erred in granting the State's motion in the absence of authority or proper evidence.

We affirm in part, reverse in part, and remand with directions.

On March 7, 1989, defendant was found not guilty by reason of insanity (NGRI) on chargesof attempted murder, aggravated battery and armed violence arising out of an attack on his father. He was found to be in need of inpatient mental health treatment and was remanded to the ElginMental Health Center. In accordance with section 5-2-4(b) of the Unified Code of Corrections (theCode) (Ill. Rev. Stat. 1989, ch. 38, par. 1005-2-4, recodified as amended at 730 ILCS 5/5-2-4(b)(West 2002)) a date establishing the maximum period of his involuntary commitment, or Thiem date(see People v. Thiem, 82 Ill. App. 3d 950, 962 (1980)), was established as December 12, 2002.

Defendant absented himself from the Elgin facility on May 23, 1990, after receiving groundspass privileges, or, to use the parlance of the mental health profession, defendant "eloped" from thefacility. On March 14, 1994, defendant surrendered himself in Seattle, Washington, and was sent tothe Chester Mental Health Center. On September 5, 1996, he was transferred back to Elgin, and, in1999, he was moved to the Alton Mental Health Center.

A treatment team at the Alton facility issued a report to the court on October 24, 2000. Thereport stated that defendant did not exhibit any signs or symptoms of a major mental illness, and thathe had not been a behavior problem during this residency. The report also reflected that defendanthas a master's degree and that he reads frequently, that he discusses his treatment plan and legal issueswith his treatment manager and that he has agreed to link with a community mental health clinic upondischarge. Defendant has also verbalized that his assault on his father was irrational, that the use ofviolence is not a viable, problem solving tool, and that in the future he would walk away from anargument rather than solve a dispute with violence.

The team, however, diagnosed him with an Axis II personality disorder, not otherwisespecified, and reported that he displays rigid thinking "with narcissistic-perception of the situation." The team concluded that defendant had made progress, but in its opinion, his current placementcontinued to be appropriate.⁽¹⁾

On December 14, 2000, defendant, through counsel, filed a petition for discharge orconditional release pursuant to section 5-2-4(e) of the Code. See 730 ILCS 5/5-2-4(e) (West 2000). Defendant alleged that he was not suffering from any mental illness, that he was not subject toinvoluntary admission, and that he was not in need of mental health services on an inpatient basis. See 730 ILCS 5/5-2-4(a)(1)(A), (B) (West 2000).

On February 6, 2001, the State filed a motion to amend defendant's Thiem date to October2, 2006, to reflect the nearly four years defendant had absented himself from the treatment facility andwas not receiving treatment as ordered. Defendant responded with a motion to dismiss claiming thatthere was no legal authority to provide for such an extension.

A hearing on both motions was held on October 12, 2001. At the commencement ofproceedings, defendant expressed his wish to represent himself or have the court appoint anotherattorney. Defendant acknowledged the previous replacement of another assistant public defender athis request, and the trial court informed him that he could not pick and choose among appointedcounsel. The trial court also attempted to dissuade defendant from representing himself, but finallyacceded to his request.

Dr. Carmen Mahmood, defendant's treating psychiatrist, was the only witness to testify at thehearing. After she was qualified as an expert in the field of forensic psychiatry, she testified for theState that she has been treating defendant for two years at Alton. Although defendant had the burden of proof and the burden of going forward with the evidence, the trial court allowed the State toproceed directly to its case in chief and present the testimony of Dr. Mahmood on direct examination. See 730 ILCS 5/5-2-4(g) (West 2000). Defendant did not object to the procedure and the record onappeal contains no explanation for the procedure used by the trial court. Dr. Mahmood believed thatdefendant was fit to appear in the hearing since he understands the significance of the proceedings,but she would not recommend his conditional release at this time.

Under cross-examination by defendant, pro se, Dr. Mahmood stated that beforerecommending conditional release, her team wanted to feel comfortable that defendant could takecare of himself and adjust to the community without interference by his psychiatric illness. She statedthat this would be accomplished through changing his setting from maximum to the less secure. Defendant had yet to be placed in the less secure setting because of his disagreement over whichfacility would be chosen.

Dr. Mahmood acknowledged that defendant had no major psychosis and explicitly stated thatdefendant was not "mentally ill." However, she considered him dangerous because of his rigidthinking and inability to acknowledge his crime and his feelings. She further acknowledged thatdefendant had no record of violence since his crime, but referred to a letter which he sent to anemployee at the Elgin Center that the recipient perceived as inappropriate and which the doctorcharacterized as stalking. Dr. Mahmood also stated that the treatment team believed defendant hassome altered personality traits, and based on his criminal history, the team was not prepared to saythat defendant should be released into the community. She testified she was unsure of whetherdefendant would injure someone in the future.

The trial court indicated that it was denying defendant's petition for discharge or conditionalrelease. In response, defendant moved for the appointment of a psychiatrist for an independentexamination and argued that he had not been allowed to present his case. The State objected that themotion was untimely. Defendant responded that on February 28, 2001, he had made an oral requestfor an independent examination. The record on appeal, however, does not contain a report ofproceedings for that date. After allowing defendant to argue his case, the trial court denieddefendant's motion, denied his petition for discharge, and held that he could file a new petition afterwaiting the 120 days required by section 5-2-4(e) of the Code.

The parties then presented their arguments on the State's motion to extend defendant's Thiemdate. Defendant objected that the request was untimely, coming seven years after he surrendered. The trial court found that there was no clear case law on the subject but, as a "simple matter ofcommon sense," found that he should not be credited for the time he absented himself from theinstitution. The trial court then amended defendant's Thiem date to add an additional 46 monthsestablishing October 12, 2006, as the new Thiem date. This appeal follows.

Defendant contends that the trial court erred in extending his Thiem date. He maintains thatthe statute provides no basis for amending a Thiem date as requested by the State's motion, and themotion, filed seven years after his return to the facility, should have been denied.

When a defendant is found NGRI and subject to involuntary admission or in need of mentalhealth services on an inpatient basis, the court must commit the defendant to the Department. 730ILCS 5/5-2-4(b) (West 2002); People v. Palmer, 148 Ill. 2d 70, 83 (1992). Section 5-2-4(b) alsorequires the trial court to set a maximum period of involuntary commitment which:

"shall not exceed the maximum length of time that defendant would have been required toserve, less credit for good behavior, before becoming eligible for release had he beenconvicted of and received the maximum sentence for the most serious crime for which he hasbeen acquitted by reason of insanity. The Court shall determine the maximum period ofcommitment by an appropriate order." 730 ILCS 5/5-2-4(b) (West 2000).

The maximum period of commitment is determined by reference to maximum sentence permittedunder the existing sentencing scheme reduced by the maximum potential credit for good behavior (Inre Commitment of Guy, 126 Ill. App. 3d 267, 269 (1984)), and the date ending the maximum periodof involuntary commitment is referred to as the "Thiem date" (People v. Cross, 274 Ill. App. 3d 155,161 (1995)).

In this case, defendant was found NGRI of attempted murder and subject to involuntaryadmission. In accordance with section 5-2-4(b), the trial court set his Thiem date as December 12,2002, reflecting the maximum sentence for the most serious crime of attempted murder. On February6, 2001, the State filed a motion requesting that this date be extended to exclude from the period ofcommitment the period during which defendant eloped or absented himself from the facility.

At the hearing on this motion, defendant asserted that the request was untimely. The trialcourt responded that it was not aware of any timeliness issues on a Thiem date, and that while thecase law was not clear on this issue, as a matter of common sense, the trial court determined thatdefendant would not get credit for the time he had absented himself from the Department. The datewas then set back to account for his absence. We find no error in the trial court's ruling that amodification of defendant's Thiem date was required.

We believe that the issue raised in this case is created, in part, by ambiguity related to the useof the phrase "Thiem date." The phrase "Thiem date" is a useful shorthand for "the maximum periodof commitment," and is commonly used by attorneys and judges. Earlier reported decisions havereferred to Thiem dates, the State's motion asked the trial court to modify the Thiem date, the partiesreferred to modification of the Thiem date in their briefs and at oral argument, and we have used theterm "Thiem date" in this opinion. However, we believe that use of the term "Thiem date" onlyserves to obscure the real issue in this case. The Code does not require the trial court to set a Thiemdate, instead, the code requires a trial court to establish a "maximum period of commitment." Although trial courts routinely identify the date on which a defendant's involuntary commitment mustend, those dates are based on the assumption that a defendant's period of commitment will includethe entire period between the entry of the commitment order and the calculated Thiem date. It is thevalidity of that assumption and the meaning of the phrase "period of commitment" that lies at theheart of the case before us.

In other words, the issue in this case involves a matter of statutory interpretation, and we mustdetermine whether a defendant's "period of commitment" includes those periods during which he haseloped or absented himself from the treatment facility without authorization. When interpreting astatute a court's primary goal is to ascertain and give effect to the intent of the legislature, and thatthe best evidence of that intent is the statutory language. People v. Donoho, 204 Ill. 2d 159, 171(2003). The Code does not define "period of commitment." Accordingly, our primary task is to givethose words their plain ordinary meaning. See Donoho, 204 Ill. 2d at 171. We determine, as the trialcourt did, that a common sense interpretation of the phrase "period of commitment" does not includethose periods during which a NGRI acquittee has eloped from the treatment facility to which he wasremanded. Moreover, we believe that an examination of the purposes of the Code supports thisinterpretation. The commitment required by section 5-2-4 of the Code serves two purposes: (1) itallows for the treatment of the individual's mental illness; and (2) it protects the individual and societyfrom his potential dangerousness. People v. Pastewski, 164 Ill. 2d 189, 197 (1995) quoting Peoplev. Williams, 140 Ill. App. 3d 216, 228 (1986). Numerous provisions in section 5-2-4 reflect thesepurposes. For example, the facility director must file a treatment plan for an insanity acquittee within30 days after admission and every 60 days thereafter. 730 ILCS 5/5-2-4(b) (West 2002). Further,section 5-2-4 requires that insanity acquittees be placed in secure facilities and that they not bepermitted in the community in any manner except as allowed by a plan approved by the trial court. 730 ILCS 5/5-2-4(b) (West 2002).

During the period while defendant had eloped from the facility, neither of the purposes of thecommitment provision of the Code was being served. Defendant was present in the communitywithout court authorization, and it was impossible to provide him with any treatment for his mentalillness. Therefore, we determine that the period of defendant's unauthorized absence, or elopement,from the facility did not constitute a period of commitment within the meaning of the Code. Accordingly, we conclude that the trial court was authorized to amend defendant's Thiem date. Webelieve that doing so did not change the "maximum period of commitment" authorized by the statute. Instead, by amending defendant's Thiem date the trial court merely modified its commitment orderto reflect that defendant's absence from the facility was not part of his period of commitment.

Defendant further argues that the State's motion should have been denied under the doctrineof laches. This equitable defense bars claims by those who neglect their rights to the detriment ofothers, and requires a showing of a lack of due diligence by the party asserting the claim and prejudiceto the party asserting the doctrine. People v. Wells, 182 Ill. 2d 471, 490 (1998).

In this case defendant "surrendered" himself to the Department in 1994 and the State filed itsmotion to amend the Thiem date in 2001. The record in this court reveals that defendant filed threeunsuccessful petitions for discharge (see People v. Youngerman, No. 1-97-3128 (1998)(unpublishedorder under Supreme Court Rule 23) and cases cited therein) during that time period, but there is norecord of any comparable attempt to amend the Thiem date by the State. The attempt, coming sevenyears later, may not be described as diligent, but it is apparent that the date only became significantwhen the Department continued to recommend inpatient treatment for defendant. In that respect, wedo not construe the lapse in time as an instance of the State knowingly sleeping on its rights to thedetriment of defendant. See Wells, 182 Ill. 2d at 490.

However, even if it we were to construe the delay as a lack of diligence on the part of theState, we find that defendant failed to show how he was prejudiced by the State's request. The amended order reflected the original commitment period with the adjustment to account for hisunauthorized absence which we have determined was not part of his period of commitment. Inaddition, defendant offered no evidence or argument to the court as to how he was prejudiced, andhere offers only speculative arguments that it would be impossible for him "to prove that he wastricked into leaving Elgin or that the Elgin staff consented to his leaving after he informed them ofhis desire to leave." As the State points out, defendant informed the court that he "turned himself in"while he was in Seattle, and did not object when the court stated that he had "absented" himself fromthe Department for nearly four years. Thus, the record belies his claims, and his further unsupportedargument that the State's inaction amounted to subterfuge does not establish prejudice to warrant theapplication of laches in this case.

Finally, we note that defendant argues that the amended Thiem date established by the trialcourt was incorrect. Defendant's original Thiem date was December 12, 2002. In its motion, theState argued that the amended date should have been October 2, 2006. On appeal, defendant arguesthat the proper date should have been October 3, 2006. The trial court set the amended Thiem dateas October 12, 2006. The trial court arrived at this date by calculating that defendant was absentfrom the facility for two months less than four years and adding that length of time to his originalThiem date. We find that the trial court erred when it rounded the length of defendant's absence upto a number of whole months. We believe that an apt analogy can be drawn with the rules forcrediting a criminal defendant for time served in custody prior to sentencing. In such cases adefendant is entitled to one day of credit for each day (or portion thereof) that he spends in custodyprior to sentencing, including the day he is taken into custody. See People v. Ligons, 325 Ill. App.3d 753, 759 (2001). In this case, defendant eloped from the facility on May 23, 1990. We find thatbecause he was "in custody" for a portion of that day that he is entitled to one day of credit againstthe maximum period of his commitment for that day. Defendant surrendered himself to authoritiesin Seattle on March 14, 1994. Similarly, we find that because he was "in custody" for a portion ofthat day he is entitled to one day of credit against the maximum period of his commitment for thatday. The interval between those dates is 1,390 days. By adding 1,390 days to the original Thiemdate of December 12, 2002, we arrive at a new Thiem date of October 2, 2006. We conclude thatthe date calculated by the State in its motion was correct and that the trial court erred by consideringthe number of months defendant had eloped rather than the number of days. Defendant's calculationis incorrect because he fails to credit himself for the partial days he was "in custody." Therefore, onremand we direct the trial court to enter a new commitment order reflecting a revised Thiem date ofOctober 2, 2006. We emphasize, however, that although we have used the "Thiem date" terminologycommonly referred to in NGRI commitments, that language is merely short hand for "the maximumperiod of commitment." As we observed above, the maximum period of defendant's commitment hasnot changed and the Thiem date we have calculated merely reflects the date upon which the maximumperiod of commitment will be reached, if defendant remains committed and does not again elope fromthe facility.

Defendant also contends that the trial court erred when it denied his petition for discharge orconditional release. Defendant presents several arguments challenging the trial court's finding thathe is dangerous. Defendant alternatively argues that, even if he is dangerous, he is not subject tocontinued commitment because Mahmood's testimony unequivocally established that he is notmentally ill. The State responds that, even if defendant is not mentally ill, the Code authorizes theState to commit him until his Thiem date on the basis of dangerousness alone.

The parties' arguments present a constitutional issue that is not clearly resolved by theprecedents cited in the parties' briefs, and our own research has not revealed case law directly onpoint. The leading case addressing the constitutionality of the confinement of NGRI acquittees isFoucha v. Louisiana, 504 U.S. 71, 118 L. Ed. 2d 437, 112 S. Ct. 1780 (1992). In Foucha, theSupreme Court addressed the constitutionality of a Louisiana statue that allowed for the continuedcommitment of insanity acquittees until they proved that they were not dangerous, whether or notthey were mentally ill. The Court reaffirmed the general rule that the state may not confine a mentallyill person unless it proves by clear and convincing evidence that the individual is both mentally ill anddangerous. Foucha, 504 U.S. at 80, 118 L. Ed. 2d at 448, 112 S. Ct. at 1786. The Court observedthat in United States v. Salerno, 481 U.S. 739, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987), it hadupheld provisions of the Bail Reform Act of 1984 which allowed for the pretrial detention ofindividuals who posed a danger to others or to the community. However, the Court distinguishedSalerno noting that the duration of such confinement was strictly limited by speedy trial requirements. Foucha, 504 U.S. at 81, 118 L. Ed. 2d at 449, 112 S. Ct. at 1786. The Supreme Court concludedthat, in our society, liberty is the norm, and detention prior to trial or without trial is a carefullylimited exception that the Court would not apply to "a law like Louisiana's, which permits theindefinite detention of insanity acquittees who are not mentally ill but who do not prove they wouldnot be dangerous to others." (Emphasis added.) Foucha, 504 U.S. at 83, 118 L. Ed. 2d at 450, 112S. Ct. at 1787.

In People v. Hager, 253 Ill. App. 3d 37 (1993), this court considered the limitations of Fouchaas applied to the commitment provisions of section 5-2-4 of the Code. In Hager, the defendant wasa NGRI acquittee who was mentally ill, but the only expert who testified at the commitment hearingtestified that the defendant would not pose a danger to himself or to others in the near future. TheHager court restated the holding of Foucha as "Once a defendant is involuntarily admitted, he maybe held only as long as he is both mentally ill and dangerous." Hager, 253 Ill. App. 3d at 41. Thereviewing court concluded that because the State did not prove that the defendant was dangerous hecould not be involuntarily confined. Hager, 253 Ill. App. 3d at 42.

We find that neither Foucha nor Hager resolves the constitutional issue raised by the casebefore us. Unlike the defendant in Foucha, defendant is not subject to indefinite commitment. Aswe observed above, his Thiem date sets an upper limit on the period of his commitment. Further, theevidence in this case presents the opposite factual scenario to that presented in Hager. There, theexpert testified that the defendant was mentally ill but not dangerous, while here, the expert testifiedthat defendant was dangerous but not mentally ill. Accordingly, we are presented with the questionof whether it is constitutionally permissible for the State to confine a NGRI acquittee who isdangerous but not mentally ill for a determinate period of time, i.e., until his Thiem date.

Although we have identified an unresolved constitutional question, we decline to address itin this case. Generally, courts should avoid addressing constitutional questions if they areunnecessary to a resolution of the case. See In re Detention of Traynoff, No. 2-01-0880 (May 8,2003). As the Traynoff court observed, "Courts are not to compromise the stability of the legalsystem by declaring legislation unconstitutional when a particular case does not require it." Traynoff,No. 2-01-0880, slip op. at 9, citing Trent v. Winningham, 172 Ill. 2d 420, 425 (1996). We believethat it is inappropriate to address this constitutional issue because our examination of the record hasrevealed a procedural defect that requires remand. Although the parties did not fully address thisissue in their briefs, the matter was addressed during oral argument. Moreover, as our supreme courthas recently observed, the responsibility for a just result and for the maintenance of a sound anduniform body of precedent sometimes overrides the considerations of waiver that would ordinarilybar this court from considering issues not properly presented in the parties' briefs. See People v. DeLa Paz, No. 93208 (May 8, 2003) slip op. at 7-8.

During the hearing on his petition for discharge, defendant requested an independentpsychiatric examination. Section 5-2-4(f) provides: "If requested by either the State or the defenseof if the Court feels it is appropriate, an impartial examination of the defendant by a psychiatrist orclinical psychologist *** shall be ordered, and the report considered at the time of the hearing." 730ILCS 5/5-2-4(f) (West 2000). This language is mandatory and a request for an independentexamination is not subject to the trial court's discretion. People v. Bledsoe, 268 Ill. App. 3d 869, 872(1994). The Bledsoe court observed that without an independent examination the only witnesseslikely to testify regarding a petition for discharge are the defendant and the treating psychiatrist. Bledsoe, 268 Ill. App. 3d at 872. The court further held: "The right to obtain an independentpsychiatric examination, therefore, is often necessary to effectuate the right to a fair hearing on apetition for discharge." Bledsoe, 268 Ill. App. 3d at 872.

In the case before us, defendant unequivocally requested an independent examination and thetrial court denied defendant's request. We note that the request was made after the hearing had begunand after Mahmood had testified. However, we do not believe that, under the circumstances of thiscase, the question of timeliness warranted denial of defendant's request. First, the Code does notspecify either a specific form for a request for an independent examination or provide a time limit formaking such a request. To the contrary, this court has previously held that the legislature intendedto make it "simple" for a NGRI acquittee to obtain an independent examination and a hearing on hispetition. People v. Shelton, 281 Ill. App. 3d 1027, 1035 (1996). Second, although the trial court hadalready commenced the hearing on defendant's petition, it granted defendant leave to discharge thepublic defender representing him shortly before the hearing began. We do not believe that the briefdelay before requesting an independent examination was unreasonable for a pro se defendant. Further, we believe that this delay is understandable in light of the trial court's decision to allow theState to proceed with its case in chief prior to allowing defendant to present his case. Finally,defendant alleged that he had previously attempted to request an independent examination at a timewhile he was represented by the Public Defender's office. We find it significant that the trial courtmade no apparent attempt to verify this allegation. Therefore, we conclude that the trial court erredwhen it denied defendant's request for an independent examination. Accordingly, we remand thismatter to the trial court. On remand, the trial court shall order an independent examination andconduct a new hearing on defendant's petition within 120 days.

We conclude that the trial court properly "amended" defendant's Thiem date becauseamending the Thiem date to reflect the period during which defendant had eloped from the facilitydid not increase the maximum period of his commitment. We conclude, however, that the trial courterred when it calculated the amended Thiem date by rounding the period of defendant's unauthorizedabsence up to a period of months instead of calculating the number of days defendant was absent. Therefore, we affirm that portion of the trial court's order which granted the State's motion to amenddefendant's Thiem date, but reverse the portion of the order establishing the date. On remand, wedirect the trial court to enter an amended order setting defendant's Thiem date as October 2, 2006. We also conclude that the trial court erred when it denied defendant's request for an independentexamination. Therefore, we reverse the trial court's order denying defendant's petition for dischargeor conditional release. On remand, we direct the trial court to order an independent examination andconduct a hearing on defendant's petition within 120 days.

Affirmed in part, reversed in part, and remanded with directions.

GALLAGHER and O'MARA FROSSARD, JJ., concur.

1. We allowed defendant to supplement the record on appeal with the February 26, 2002, reportto the court from the clinical coordinator and treating supervisor of the Alton Mental Health Center. See People v. Grant, 295 Ill. App. 3d 750, 761 (1998). This report, which post-dated the hearing ondefendant's petition, reflected the continuing opinion of the treatment team that defendant was in needof inpatient mental health services although he was not subject to involuntary admission.