In re Steven E.

Case Date: 06/30/2003
Court: 2nd District Appellate
Docket No: 2-02-0703 Rel

No. 2--02--0703


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re STEVEN E., a Minor, ) Appeal from the Circuit Court
) of Winnebago County.
)
) No. 97--JD--33
)
(The People of the State of )
Illinois, Petitioner-Appellee ) Honorable
v. Steven E., Respondent- ) Steven M. Nash,
Appellant). ) Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

Respondent, Steven E., a minor, appeals the trial court'sorder continuing his wardship until his twenty-first birthday. Weaffirm.

The facts are taken from the record. On September 16, 1997,the minor admitted to four counts of criminal sexual assault (720ILCS 5/12--13(a)(3) (West 1996)), in that the minor committed actsof sexual penetration by placing his penis in the anus and mouth oftwo of his minor male cousins and placing his penis in his minorbrother's rectum. The minor was placed on probation for fiveyears. On February 2, 1998, the minor admitted to two counts ofthe State's rule to show cause, in that the minor was suspendedfrom school for one week and that he had nonconsensual sexualcontact with someone at school. On March 19, 1998, the minor'sprobation was revoked after he admitted to one count of criminalsexual abuse, in that between February and March 1998, the minor"committed an act of sexual penetration" with another minor boy. The minor was committed to the Department of Corrections for a fullcommitment. On March 29, 2002, the State petitioned the trialcourt to continue respondent's wardship until his twenty-firstbirthday.

At the hearing on the petition to continue wardship, KennethHeinrichs, a licensed clinical psychologist with a doctorate inclinical psychology, testified that he worked with the minor whileemployed in the Department of Corrections, Juvenile Division, atValley View Youth Correctional Facility, Sex Offender Unit, AbleHall. For one year, beginning in December 2000, Heinrichs met withthe minor, twice in group therapy, once or twice a week in formalindividual therapy sessions, and many other times in informalmeetings. Heinrichs prepared a written report for the hearing.

Heinrichs opined that the minor was at risk of reoffending inthe community. He based his opinion on meetings with the minor,observation of the minor during group sessions and other treatment,and the minor's writing assignments. Heinrichs testified that theminor continued to engage in "grooming behavior" of other youths inthe hall. "Grooming" is a manipulative behavior intended to set upa sexual offense, including staring at another youth, invading hisspace, and inappropriate touching. Heinrichs saw the minorinappropriately touch other youths during group therapy. Further,the minor's peers complained of the minor's grooming behavior asrecently as one month before the hearing. Heinrichs stated in aletter that the minor, who had been transferred to the Mill programin Rockford, was transferred back to Valley View in December 2000because the minor had pornography in his possession and hadinappropriately touched another resident. Heinrichs describedthese incidents as stalking and predatory.

Heinrichs also stated that the minor minimized the extent ofthe use of force with his victims. The minor presented theoffenses in "such a way that his victims were going along with thebehavior, that it was consensual acting out." When confronted withthis during a group session, the minor admitted that he commandedone of his victims to hold still while he engaged in a deviant act. Heinrichs stated that there was an element of coercion that theminor never really addressed.

Heinrichs stated that the minor showed some success intreatment and tried to manage his deviant desires but that hisgrooming behavior demonstrated that the minor was manipulative. Heinrichs believed that the minor was malingering in treatment. The minor falsely presented as a normal adolescent in certainchecklist assessments, but his history reflected a deviant profilein which all of his victims had been boys. Heinrichs stated thathe did not perform any empirical tests to determine the minor'slikelihood to reoffend. However, Heinrichs opined that the minorneeded to be monitored very closely and needed to continue to workon his relapse prevention plan. The minor needed an intensiveoutpatient program, individual therapy sessions, group work withother sex offenders, and family meetings to make the family awareof the minor's triggers and behavioral cycle. The minor needed tobe monitored. Heinrichs offered hope, saying that the minor shouldbe reevaluated after two years at the latest because the minor ischanging and hopefully will continue to change. He acknowledgedthat anyone who had committed the kinds of offenses committed bythe minor was at risk to reoffend. Finally, Heinrichs opined thatit was in the best interest of both the public and the minor toextend wardship.

The minor testified that continued monitoring would help himcontrol his impulses. As long as the minor could talk to hismother, counselor, or family members, the minor believed he couldcontrol his impulses without monitoring. On release, the minorwould live with his mother, who now lives alone, in the Rockfordarea. At times, his mother would not be available to talk to him. On such occasions it may be harder for him to control his impulses.The minor may have a position working for his father's company orat the Metro Center in Rockford. The minor was close to receivinghis high school diploma and had inquired about various sex offendertreatment counselors in the Rockford area.

Kimberly E., the minor's mother, testified that she has aheart condition, is on disability, and lives alone. The motherstated that upon release the minor could live with her and that themother's counselor agreed to see her and the minor in groupcounseling and the minor in individual counseling. The motherstated that she had seen changes in the minor during hisincarceration.

After considering the evidence and arguments, the trial courtgranted the State's petition to continue the minor's wardship untilhis twenty-first birthday. The trial court found that there wassatisfactory evidence presented that it was in the best interest ofthe minor and the public that wardship continue. The trial courtdenied the minor's motion for reconsideration and this appealfollowed.

On appeal, the minor argues that the extension of his wardshipviolates Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), because the State proved the extension wasin the best interest of the minor and the public by only"satisfactory evidence." 705 ILCS 405/5--34 (West 1994). Theminor argues that the extension increases the minor's sentencebeyond the statutory maximum and, thus, Apprendi requires that thebest interest be proven beyond a reasonable doubt. We disagree.

At the time the minor admitted his delinquency petition,section 5--34 of the Juvenile Court Act of 1987 (Juvenile CourtAct) provided in pertinent part:

"(1) All proceedings under this Act in respect of anyminor for whom a petition was filed after the effective dateof this amendatory Act of 1991 automatically terminate uponhis attaining the age of 19 years, except that:

***

(b) a court may continue the wardship of a minor

until age 21 for good cause when there is satisfactoryevidence presented to the court that the best interestsof the minor and the public require the continuation ofthe wardship." 705 ILCS 405/5--34 (West 1994).

The United States Supreme Court delivered the followingholding in Apprendi as its bottom line:

"Other than a fact of a prior conviction, any fact thatincreases the penalty for a crime beyond the prescribedstatutory maximum must be submitted to a jury and provedbeyond a reasonable doubt." Apprendi, 530 U.S. at 490, 147 L.Ed. 2d at 455, 120 S. Ct. at 2362-63.

In this case, the consideration of whether it is in the bestinterest of the public and the minor to continue wardship does notconcern an increase of the minor's maximum possible sentencebecause, once a minor is found to be delinquent, the prescribedstatutory maximum is wardship until the age of 21. See 705 ILCS405/5--34 (West 1994); see also People v. Hopkins, 201 Ill. 2d 26,39-40 (2002). Further, unlike a sentence, wardship is a status,not a penalty, and, thus, Apprendi does not apply.

Next, the minor argues that there was insufficient evidence tosupport the trial court's finding that it was in the best interestof the public and the minor to extend wardship. We disagree.

Here, Dr. Heinrichs expressly opined that it was in the bestinterest of the public and the minor to extend the minor'swardship. Heinrichs stated that he based his opinion on theminor's behavior and the fact that he minimized aspects of hisoffenses. The minor engaged in grooming behavior one month beforethe hearing, and the purpose of this behavior was to prepare othervictims. Heinrichs saw the minor inappropriately touch other boysin the hall. The minor also minimized his responsibility for hispast conduct by failing to recognize that he had used force on hisvictims. Heinrichs stated that the minor needed constant treatmentand monitoring, and the record showed that, upon the minor'srelease, it was uncertain whether that would occur. We acknowledgethat Heinrichs stated that anyone with the minor's history had arisk of reoffending, but that was not the basis of his opinion. Further, Heinrichs did not expressly state that his opinion waswithin a reasonable degree of medical certainty. However, thetestimony reveals that Heinrichs based his opinion on hisspecialized knowledge and experience as a trained psychologist andsexual abuse counselor. The minor's assertion that Heinrichs basedhis opinion on a gut feeling misstates the record. The transcriptof the testimony reveals that Heinrichs expressly rejected thischaracterization of the basis for his opinion. In light of themore than satisfactory evidence contained in the record to supportthe State's petition, we cannot say that the trial court's findingswere against the manifest weight of the evidence. In re Bettie JoR., 277 Ill. App. 3d 401, 405 (1995).

Lastly, the minor argues that Heinrichs's opinion must bedisregarded because it could not pass the Frye test. See Frye v.United States, 293 F. 1013 (D.C. Cir. 1923). It is well settledthat a psychologist's opinion regarding an individual's futuredangerousness is generally admissible without application of theFrye test when his opinion is based on clinical observation orpersonal experience and not a novel scientific methodology. SeePeople v. Taylor, 335 Ill. App. 3d 965 (2002). Because Heinrichsbased his opinion on his own observation and experience and not anew methodology, Frye does not apply.

The judgment of the circuit court of Winnebago County isaffirmed.

Affirmed.

HUTCHINSON, P.J., and KAPALA, J., concur.