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August 17, 2001

No. 2--99--1266

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BYRNE delivered the opinion of the court:

Following a bench trial, respondent, John Tittlebach, wasadjudicated to be a sexually violent person pursuant to theSexually Violent Persons Commitment Act (the Commitment Act) (725ILCS 207/1 et seq. (West 1998)). On appeal, respondent argues that(1) the State failed to prove beyond a reasonable doubt that he wasa sexually violent person; (2) the trial court failed to provide astatutorily required hearing prior to ordering respondent committedto a secure facility; and (3) his commitment was unconstitutionalbecause the trial court did not specifically find that he lackedvolitional control over his violent criminal behavior. We affirm.

The present action began when the State filed a petitionrequesting that respondent be evaluated and adjudicated a sexuallyviolent person and committed to the care and custody of theDepartment of Human Services (DHS). See 725 ILCS 207/15 (West1998). The petition alleged that, in 1997, respondent had beenconvicted of criminal sexual assault and sentenced to four years'imprisonment and, in 1980, respondent had pleaded guilty to twocounts of indecent liberties with a minor and had received fouryears' probation. Respondent was scheduled for mandatorysupervised release on May 13, 1999, for the 1997 offense. Thepetition alleged that respondent had been diagnosed as sufferingfrom pedophilia, a "sexually attracted to females, nonexclusivetype," and "alcohol abuse in a controlled environment" and thatthese mental disorders created a substantial probability that hewill engage in acts of sexual violence.

On June 8, 1999, following a hearing, the trial courtdetermined there was probable cause to conduct further proceedingson the State's petition. The trial court also ordered thatrespondent be transferred to the DHS for an evaluation as towhether he was a sexually violent person. See 725 ILCS 207/30(c)(West 1998).

At the commitment trial, Sara Windle testified about the factsthat led to respondent's 1997 conviction. Respondent sexuallyassaulted Windle over a nine-year period when he lived with Windleand her mother. The abuse, which included oral and digitalpenetration, began when Windle was seven years old.

The State also called Dr. Agnes Jonas and Dr. Barry Leavitt. Dr. Jonas interviewed respondent prior to and following theprobable cause hearing and diagnosed respondent as a pedophile,sexually attracted to females, nonexclusive type. Dr. Jonas alsodiagnosed respondent as afflicted with alcohol abuse. Dr. Jonastestified to the factual basis of her diagnosis and identifiedseveral factors suggesting that respondent would commit future actsof sexual violence. In her opinion, there was a substantialprobability that respondent would commit a sexually violent offensein the future.

Dr. Leavitt interviewed respondent following the probablecause hearing. He diagnosed respondent as a nonexclusive, "femaletype" pedophile, suffering from "alcohol abuse in a controlledenvironment," and having a personality disorder not otherwisespecified with narcissistic and antisocial personality features. Dr. Leavitt used several recognized tests to predict respondent'slikelihood of reoffending. Based on his interviews withrespondent, respondent's history of sexual violence, and theresults of the psychological testing, Dr. Leavitt opined thatrespondent's emotional or volitional capacity predisposed him tocommit acts of sexual violence. Dr. Leavitt concluded that asubstantial probability existed that respondent would commitanother sexually violent crime in the future.

Respondent's expert, Dr. Larry Davis, interviewed respondentfor two hours and reviewed Dr. Leavitt's and Dr. Jonas's reports. Davis agreed that respondent was a pedophile but concluded that, toa reasonable degree of medical certainty, there was not asubstantial probability that respondent would reoffend. Dr. Davisbased this opinion on the fact that respondent demonstrated apattern of molestation that slowly developed only in the intimateenvironment of a family setting. Because respondent was now 52years old, his sex drive was diminished, and he most likely wouldhave a relationship with a woman his own age who would not haveyoung girls in the home, Dr. Davis concluded that there was not asubstantial probability of reoffending. Dr. Davis suggested thata parole term could include a condition that respondent not residein a home with prepubescent girls.

During closing, the trial court asked the prosecutor toaddress Dr. Davis's premise that living arrangements and age wouldrender respondent less than substantially likely to reoffend. While admitting that a possible term for parole could include acondition that respondent not reside with prepubescent girls, theprosecutor argued that any parole term was limited and that womenin their late forties can bear children or have custody ofgrandchildren.

The trial court adjudicated respondent to be a sexuallyviolent person and ordered respondent committed to an institutionin a secure facility for treatment. Respondent timely appeals.

Respondent first contends on appeal that the State failed toprove beyond a reasonable doubt that he was a sexually violentperson. Respondent asserts that, because Dr. Jonas was notqualified to testify as an expert and Dr. Leavitt's testimony wasnot credible, the State has failed to sustain its burden of proof. Regarding Dr. Jonas's allegedly inadequate qualifications,respondent admits that his counsel stipulated to Dr. Jonas'squalifications. However, he argues that his counsel wasineffective by agreeing to the stipulation. Respondent bases thisclaim on the administrative rules implementing the Commitment Actthat provides the standards for qualifying as an expert.

To prevail on a claim of ineffective assistance of counsel,the claimant must prove both that counsel's conduct fell below anobjective standard of reasonableness and that there is a reasonableprobability that, but for counsel's unprofessional conduct, theresult of the proceedings would have been different. Strickland v.Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S.Ct. 2052, 2064-68 (1984); People v. Howery, 178 Ill. 2d 1, 51(1997).

Expert testimony is admissible at trial when the expert hasknowledge or experience not common to a layperson and thisknowledge or experience would aid the trier of fact in determiningthe facts at issue. People v. Miles, 217 Ill. App. 3d 393, 404(1991). The admission of expert testimony is within the discretionof the trial court and will not be reversed on appeal absent anabuse of discretion. Miles, 217 Ill. App. 3d at 403.

Section 299.220 of the Illinois Administrative Code requiresthat an evaluator must be a physician, psychiatrist, or clinicalpsychologist who has a minimum of two years' experience providingsex offender evaluation and treatment. 59 Ill. Adm. Code