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9 August 2000

JUSTICE RAPP delivered the opinion of the court:

Respondent, Herbert Varner, appeals from a jury verdict finding him to bea sexually violent person and the trial court's entry of a commitment orderpursuant to the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1et seq. (West 1998)). On appeal, respondent challenges the constitutionality ofthe Act. Respondent also contends that the trial court erred in ordering himcommitted to institutional care in a secure facility and that he was denied theeffective assistance of counsel. We affirm.

On August 18, 1998, the State initiated proceedings to commit respondentindefinitely to the Department of Human Services (DHS) pursuant to the SexuallyViolent Persons Commitment Act (725 ILCS 207/1 et seq. (West 1998)). Respondentwas an inmate in the Department of Corrections (DOC) at the Sheridan CorrectionalCenter and was scheduled for entry into mandatory supervised release on August22, 1998, following the completion of his sentence for aggravated criminal sexualassault.

On August 20, 1998, the trial court held a hearing to determine whetherthere was probable cause to believe that respondent was a sexually violent personwithin the meaning of the Act. Based on evidence presented at the hearing, thetrial court determined that probable cause existed and ordered respondenttransferred to a DHS facility for evaluation to determine whether he was asexually violent person. See 725 ILCS 207/30 (West 1998). Also on August 20,the State filed its demand for a jury trial pursuant to section 35(c) of the Act. 725 ILCS 207/35(c) (West 1998).

On October 1, 1998, the trial court ordered that a mental health expertselected by respondent, Dr. Eric Ostrov, evaluate respondent at the county'sexpense. On October 20, respondent filed a motion seeking the dismissal of theState's petition, alleging the unconstitutionality of the Act. Respondentalleged that the Act deprived him of substantive due process and violatedprohibitions against double jeopardy and ex post facto laws. The trial courtdenied respondent's motion.

A jury trial commenced on January 25, 1999. Dr. Marc Levinson, a DOCpsychologist, testified that he evaluated respondent for the probable causehearing. Levinson stated that he reviewed the contents of the DOC "Master File." The Master File also contained respondent's presentence report, which revealedthat in 1982 he was convicted of "annoying [sic], molesting a child," and thatin 1992 respondent was convicted of aggravated criminal sexual assault forperforming sexual acts on his four-year-old niece. Respondent's mental healthrecords indicated that he had been offered and had declined an opportunity toparticipate in group sex offender therapy.

Levinson also conducted a personal interview with respondent on June 25,1998. With regard to his 1982 conviction, respondent denied that he committedthe charged conduct, which involved a 10-year-old child. Respondent suggestedthat the child could have been abused by her mother's boyfriend. Levinsonobserved that respondent's explanation was inconsistent with the explanation hegave to the author of his 1992 presentence report; at that time respondentaverred that he committed the conduct in 1982 but that he did so in his sleep,having mistaken the child for his wife.

According to Levinson, respondent also denied committing the conductresulting in his 1992 conviction. Respondent told Levinson that a man who wasliving with him and his wife at the time and who smoked marijuana and drank mayhave committed the crime. Levinson again noted that respondent's denial wasinconsistent with the account set forth in his presentence report, in whichrespondent stated that he committed the conduct but did so while asleep,mistaking his niece for his wife.

Levinson also noted that a statement of facts contained in the Master Filerevealed that there were additional allegations made in 1992 that respondent hadmolested another niece and his daughter. Respondent denied having sexualinvolvement with any children.

Levinson outlined two types of sex offender treatment programs offered bythe DOC. One program is a 24-hour residential program involving placement in aspecial housing unit where peer interaction and counselors are availablecontinuously. The other program is an outpatient program offered to inmatesresiding in ordinary cell blocks, involving group therapy and usually involvingweekly meetings. Respondent did not participate in either program. Accordingto Levinson, respondent said that he did not need sex offender treatment becausehe had not committed any sex offenses against children. When asked how he wouldprevent future occurrences of sex offenses, respondent stated that he would stayaway from all women and all situations involving children.

Levinson diagnosed respondent as suffering from pedophilia and personalitydisorder. Levinson based his diagnoses on the Diagnostic Statistical Manual ofMental Disorders (DSM). The criteria set forth by DSM for diagnosing pedophiliaare (1) that over a period of at least six months the individual has exhibitedurges, fantasies, or behaviors of a sexually arousing nature involvingprepubescent children; (2) that those urges, fantasies, or behavior causesignificant personal distress or impairment in occupational or socialfunctioning; and (3) that the individual is either at least 16 years old or atleast 5 years older than the children involved.

Levinson opined that all three criteria were met in this case. First,Levinson noted that the 1982 and 1992 convictions were based on events thatoccurred more than six months apart. Second, the 1992 prosecution contributedto respondent's incarceration, the end of his marriage, the estrangement from hisdaughter, the loss of friendships, and the loss of ability to communicate withothers concerning his experiences. The third criterion was met because at thetime of the 1982 offense respondent was in his early 20s and the child was about10 years old and at the time of the second offense respondent was in his late 20sand the child was 4 years old.

Levinson also explained his diagnosis of a personality disorder of a typenot specifically defined in the DSM. Levinson stated his professional opinionthat there is a substantial probability that respondent will engage in acts ofsexual violence in the future if he is released. Levinson said his assessmentof respondent included the consideration of recognized recidivist factors. Thosefactors included that respondent had a prior conviction of a sexual offense, hisvictims included a nonrelative, his relationship with his mother had negativeaspects, he was relatively young when he committed his first offense, he has apersonality disorder, he has impulse and anger control problems, and he hadrefused sex offender treatment when offered. Levinson stated that, in hisprofessional opinion, respondent's mental disorders increased the likelihood thathe will offend again.

On cross-examination, Levinson acknowledged that not every child molesteris a pedophile. Levinson also acknowledged that respondent had requestedindividual sex offender counseling and treatment while incarcerated but wasturned down. When questioned about the criteria for pedophilia, Levinson statedthat two occurrences were enough to satisfy the criteria.

Levinson also opined that respondent should, at least initially, be placedin a residential program for sex offender treatment. Levinson conceded that sucha program would be similar to the residential programs provided by the DOC, buthe acknowledged that the DOC did not assign respondent to a residential programduring his incarceration.

Dr. Paul Heaton, a clinical psychologist employed by a group that contractswith DHS to perform evaluations for purposes of the Act, evaluated respondent onthree occasions in 1998. Respondent told Heaton that his wife tried to get hisdaughter to charge him with sexual abuse to ensure that she would get custody oftheir daughter. Respondent denied ever abusing his daughter.

With regard to the 1982 case, respondent told Heaton that he pleaded guiltyin order to avoid prison and that he was asleep when the abuse occurred and knewnothing about it. Heaton said that respondent's account was inconsistent withthe fact that respondent had "groomed" the victim by sending her "love notes" andgifts before abusing her.

Using the same criteria as Dr. Levinson, Heaton diagnosed respondent assuffering from pedophilia. Heaton stated that recidivist risk factors presentin this case were that respondent had child behavioral problems, a history ofalcohol abuse, two prior sex offense convictions, anger problems, a victim whowas not a relative, an elevated paranoia score, and a low motivation fortreatment. Heaton opined that there was a substantial probability thatrespondent would reoffend due to his mental disorder.

On cross-examination, Heaton acknowledged that respondent's 1982 convictionwas a misdemeanor. Heaton also opined that two incidents six years apart met therecurrent pedophilia criteria. Heaton acknowledged that respondent had requestedand was denied individual counseling by DOC. Heaton opined that respondentshould be placed in a secure locked facility and subjected to group therapytreatment. When asked by defense counsel about biological treatment such as thedrug Depo Provera, Heaton stated that he viewed this approach as experimental andsaid that it was too soon to tell whether such drugs would be effective longterm.

Dr. Eric Ostrov, a clinical psychologist and lawyer, testified forrespondent. Respondent told Ostrov that he must have committed the offenses ofwhich he was convicted but that he was not conscious of having done so. Ostrovopined that respondent did commit the crimes but cannot psychologically affordto admit it. Ostrov stated that respondent is not necessarily a pedophile. Heopined that two isolated occurrences separated by several years did not meet therecurrent-sex-offenses requirement. According to Ostrov, one can be a childmolester without being a pedophile.

Ostrov also assessed respondent in terms of recognizing recidivist riskfactors. The factors found included that respondent had more than one convictionof a sex offense, one victim was a neighbor, he was young when he first offended,and he had refused treatment at DOC.

Ostrov opined that respondent could benefit from sex offender treatment butthat respondent must admit what he had done, which would be very difficult forhim. In Ostrov's view, biological treatment with Depo Provera, a chemical thatlowers testosterone levels and thereby reduces the sex drive, would beappropriate. Ostrov stated that respondent had expressed a willingness toparticipate in this approach.

Ostrov had discussed respondent's refusal of treatment with him. Respondent told Ostrov that a female psychologist had insisted that he acceptgroup treatment and had refused to consider the individual counseling thatrespondent requested. Respondent found her insufficiently empathetic andrejected her offer of group treatment. Ostrov stated that group treatment wouldbe very difficult for respondent, given his refusal to admit that he committedthe offenses.

Ostrov determined that there was insufficient evidence to conclude thatrespondent is a pedophile. He stated that respondent was at a moderate risk toreoffend but that the risk could be reduced to minimal. According to Ostrov,whether respondent will reoffend is a function of circumstances; as long asrespondent did not find himself in a bed with a female child, he was not likelyto reoffend. Ostrov noted that respondent's denials evidenced that he does notlike what he did. Ostrov proposed that respondent be given outpatient biologicaltreatment to reinforce his desire not to reoffend and that exposure to childrenbe limited and controlled.

On cross-examination, Ostrov stated that he diagnosed respondent as havinga personality disorder that could predispose him to commit more sexual violence. Ostrov also said that he could not rule out pedophilia but that there was notenough information to support that diagnosis.

Respondent declined to testify. The jury found respondent to be a sexuallydangerous person. Following the jury's verdict, the trial court asked theparties if they had any evidence to present regarding an appropriate placementfor respondent. Neither the State nor defense counsel presented any additionalevidence. The trial court then questioned respondent concerning where he wouldlive and how he would support himself if placed on a conditional release fortreatment. Respondent answered that he planned to live and work with his brotherin Ohio. The State then suggested that Dr. Heaton be asked to prepare a reporton appropriate placements for respondent and to ascertain whether DHS can managerespondent in Ohio. The trial court responded that no additional information wasneeded to enable the court to make its determination.

Following comments by counsel, the trial court ordered that respondent beprovided institutional care and treatment in a secure facility under DHS andfurther ordered that respondent be transported to the Sheridan CorrectionalCenter for treatment in a secure facility. The trial court denied respondent'ssubsequent motion for a new trial and respondent timely appealed.

I. CONSTITUTIONALITY OF THE SEXUALLY VIOLENT

PERSONS COMMITMENT ACT

Respondent challenges the constitutionality of the Sexually Violent PersonsCommitment Act (725 ILCS 207/1 et seq. (West 1998)). The Act authorizes theindefinite involuntary commitment of individuals found to be sexually violentpersons. We review de novo a circuit court's holding with respect to theconstitutionality of a statute. Russell v. Department of Natural Resources, 183Ill. 2d 434, 441 (1998). The party challenging a statute bears the burden ofclearly establishing that it is unconstitutional. People v. DePalma, 256 Ill.App. 3d 206, 210 (1994). All statutes carry a strong presumption ofconstitutionality; we will uphold a statute whenever reasonably possible, and anydoubts will be resolved in favor of the law's validity. People v. Jeffries, 164Ill. 2d 104, 111 (1995).

A. EQUAL PROTECTION

Respondent argues that the Act violates his right to equal protection. Respondent contends that persons adjudicated under the Act are denied equalprotection of the law because they are not afforded the rights, protections, andsafeguards provided (1) in proceedings under the Sexually Dangerous Persons Act(725 ILCS 205/1.01 et seq. (West 1998)); or (2) for civil commitments under theMental Health and Developmental Disabilities Code (405 ILCS 5/1--100 et seq.(West 1998)).

In In re Detention of Samuelson, 189 Ill. 2d 548, 562-64 (2000), oursupreme court rejected the claim that the Act denies equal protection because itdoes not afford the same rights that are available to defendants in criminalcases or to persons facing civil commitment under the Mental Health andDevelopmental Disabilities Code. Respondent acknowledges this holding but pointsout that the supreme court did not address an equal protection claim by makinga comparison with the Sexually Dangerous Persons Act. Respondent admits thatthis court has rejected similar equal protection challenges from the perspectiveof persons adjudicated under the Sexually Dangerous Persons Act, but he asks thiscourt to reconsider the argument from the perspective of persons adjudicatedunder the Sexually Violent Persons Commitment Act.

This court has specifically held that individuals committed under eitherthe Sexually Violent Persons Act or the Sexually Dangerous Persons Act are notsimilarly situated and that both statutes are rationally tailored to achievetheir dual objectives to provide treatment and to protect the public from sexualviolence. People v. McVeay, 302 Ill. App. 3d 960, 967-68 (1999); People v.McDougle, 303 Ill. App. 3d 509, 523 (1999). Respondent asks this court toreconsider those holdings. This court has previously declined to reconsiderthose decisions. People v. Kastman, 309 Ill. App. 3d 516, 519 (2000); People v.Coan, 311 Ill. App. 3d 296, 299 (2000). We see no reason to revisit this issue.

Based on the supreme court's holding in Samuelson, and this court'sdecisions in McVeay and McDougle, we reject respondent's equal protectionchallenge.

B. DUE PROCESS

Respondent next argues that the Act's procedures for postcommitmentdischarge under the Act violate due process because the State is not required toprove beyond a reasonable doubt, at least annually, that the person remainssexually violent. In Samuelson, the supreme court held that due process does notrequire the State to prove its case beyond a reasonable doubt at a dischargehearing. Samuelson, 189 Ill. 2d at 564. We therefore reject this argument.

Respondent also argues that the Act's postcommitment discharge proceduresviolate procedural due process because they limit a detainee's right to petitionthe government for discharge. Respondent contends that the Act penalizes acommitted person for filing a petition for discharge without the approval of theSecretary of DHS.

Three different discharge procedures are available under the Act. First,if the Secretary of DHS determines, at any time, that the committed person isno longer sexually violent, the Secretary must authorize the committed person topetition for discharge. 725 ILCS 207/65(a)(1) (West 1998).

The second procedure for discharge is triggered whenever the committedperson undergoes periodic mental examinations pursuant to section 55(a) of theAct. 725 ILCS 207/55(a) (West 1998) (mental examination to be conducted within6 months of initial commitment and again at least once every 12 months for thepurpose of determining whether the person has made sufficient progress to beconditionally released or discharged). At the time of each examination, thecommitted person must be given written notice that he or she has the right topetition for discharge over the Secretary's objection, and, if the committedperson does not affirmatively waive that right, the court must set a probablecause hearing to determine whether facts exist that warrant a hearing on whetherthe committed person is still a sexually violent person. 725 ILCS 207/65(b)(1)(West 1998).

Finally, committed persons may petition for discharge at any time withoutthe approval of the Secretary. If the committed person has not previously fileda petition for discharge without the Secretary's approval, the court must set aprobable cause hearing. If, however, a committed person has previously filed apetition for discharge without the Secretary's approval and the court determined,either upon review of the petition or following a hearing, that the petition wasfrivolous or that the committed person was still a sexually violent person, thenthe court is required to dismiss the petition without a hearing unless thepetition contains facts that would support a finding that the committed personhas so changed that a hearing is warranted. 725 ILCS 207/70 (West 1998).

Procedural due process issues require a three-part analysis that considersthe following: first, whether there exists a liberty or property interest thathas been interfered with by the State; second, the risk of an erroneousdeprivation of such an interest through the procedures already in place, whileconsidering the value of additional safeguards; and third, the effect theadministrative and monetary burdens would have on the State's interest. Mathewsv. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 33, 96 S. Ct. 893, 903 (1976);East St. Louis Federation of Teachers Local 1220 v. East St. Louis SchoolDistrict No. 189 Financial Oversight Panel, 178 Ill. 2d 399, 415-16 (1997).

There is no question that respondent's liberty is at stake. We mustexamine the risk of an erroneous deprivation in the context of the proceduralsafeguards already existing in the statute. East St. Louis Federation ofTeachers, 178 Ill. 2d at 419. The Act provides several safeguards to ensure thatcommitted persons who are no longer sexually violent are discharged. As outlinedabove, the Act provides three different mechanisms that are available for acommitted person to obtain a discharge. The Act also gives the committed personthe right to retain or to have the court appoint a qualified expert orprofessional person to examine him or her at the time of a reexamination. 725ILCS 207/55(a) (West 1998). Additionally, the court that committed the personmay order a reexamination at any time. 725 ILCS 207/55(c) (West 1998). In lightof the procedural safeguards already existing in the statute, we find that therisk of erroneous deprivation is slight.

We next examine respondent's contention that section 70 of the Act detersthe filing of petitions without the Secretary's approval, which is subject to nospecific standards. This provision of the Act applies only to committed personswho have previously filed a petition for discharge without the Secretary'sapproval and where the court determined that the petition was frivolous or thatthe person was still sexually violent. The Act does not limit the number ofpetitions for discharge that a committed person may file, nor does it place anytime limitations on such petitions. Rather, the Act simply does not require afull evidentiary hearing whenever a petition for discharge is filed in theabsence of facts showing that the petition has possible merit. The Act does notdeprive the committed person of the right to have a judge examine every petitionfor possible merit.

Proceedings under the Act are civil rather than criminal in nature. Samuelson, 189 Ill. 2d at 559-60. "A civil commitment is nonpunitive and lastsonly as long as is necessary to address a respondent's problems." In re Perona,294 Ill. App. 3d 755, 765 (1998). Because a civil commitment is a lesserintrusion on the liberty of the respondent than a criminal confinement, ittriggers fewer procedural due process rights. See Perona, 294 Ill. App. 3d at765.

The extra costs, to both committed persons and the State, of requiring anevidentiary hearing in every instance when a committed person files a petitionfor discharge are high in comparison to any additional protection this wouldprovide. We cannot conclude that due process requires an evidentiary hearingevery time a committed person files a petition for discharge. We therefore holdthat the Act provides sufficient safeguards to ensure that committed persons whoare no longer sexually violent are discharged.

C. DOUBLE JEOPARDY, EX POST FACTO, RIGHT TO WAIVE JURY TRIAL

Respondent next argues that the Act violates the prohibitions againstdouble jeopardy and ex post facto laws and deprives him of the right to waive ajury trial. Respondent acknowledges that these arguments were recently rejectedby the supreme court in Samuelson, 189 Ill. 2d 548. We therefore find no meritin respondent's arguments.

D. SUBSTANTIVE DUE PROCESS

Respondent next argues that the Act violates substantive due processbecause it does not require the State to prove that respondent lacks volitionalcontrol over his sexual behavior. Respondent contends that the Supreme Court'sdecision in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072(1997), requires that, to be valid, a commitment statute must require a findingthat the respondent is unable to control his or her behavior and that theSexually Violent Persons Commitment Act does not include such a requirement.

In Hendricks, a majority of the Supreme Court upheld the Kansas SexuallyViolent Predator's Act (Kan. Stat. Ann.