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People v. Coan, No. 2-98-1207

2nd District, 10 February 2000

JUSTICE GALASSO delivered the opinion of the court:

Defendant, Wesley A. Coan, appeals the circuit court's order committing him to the Illinois Department of Corrections as asexually dangerous person. He contends that the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq.(West 1998)) violates his constitutional rights to due process and equal protection because it (1) does not permit the court toconsider whether defendant may be treated in a less restrictive setting than the Department of Corrections; and (2) does notset a maximum period of commitment as is the case for those found not guilty by reason of insanity.

Defendant was charged by information with one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West1996)). The State later filed a petition to commit defendant as a sexually dangerous person. The court appointed twopsychiatrists to examine defendant and allowed defendant to hire his own expert to evaluate him.

Defendant agreed to a stipulated bench trial and the State presented the following evidence. Defendant had convictions in1979 for aggravated incest (Ill. Rev. Stat. 1979, ch. 38, par. 11--10(a)(2)), in 1981 for indecent liberties with a child (Ill.Rev. Stat. 1981, ch. 38, par. 11--4(a)(2)), and in 1990 for aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38,par. 12--14), in addition to the pending charge.

Two psychiatrists had evaluated defendant and determined that he had suffered from a mental disorder for at least one yearprior to the filing of the petition, that he had criminal propensities to commit sex offenses and toward the sexual molestationof children, and that he was sexually dangerous.

Defendant presented no evidence. The court found defendant a sexually dangerous person, committed him to theDepartment of Corrections (DOC), and appointed the Director of the Department as defendant's guardian. Defendant filed atimely notice of appeal.

Defendant first contends that the Act violates his rights to due process and equal protection because the provision forautomatic commitment to the DOC does not permit consideration of whether he may be treated in a less restrictiveenvironment, as is the case with those committed under the Sexually Violent Persons Commitment Act. See 725 ILCS207/40(b)(2) (West 1998). Defendant argues that the latter statute, as well as the civil commitment provisions of the MentalHealth and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/3--811 (West 1998)), the statute governingthose found unfit for trial (725 ILCS 5/104--10 et seq. (West 1998)), and those found not guilty by reason of insanity (730ILCS 5/5--2--4 (West 1998)), all demonstrate a preference for treatment in the least restrictive setting, but the Act does not.Defendant contends that he is being denied due process of law and being treated differently from others who are similarlysituated.

As the State points out, this court has rejected this argument twice. See People v. McVeay, 302 Ill. App. 3d 960 (1999);People v. McDougle, 303 Ill. App. 3d 509 (1999). In McDougle, this court held that defendants committed pursuant to theAct and the Sexually Violent Persons Commitment Act were not similarly situated because the former provides analternative to criminal prosecution while the latter is pursued in addition to criminal prosecution. McDougle, 303 Ill. App.3d at 522. The court also determined that, although certain differences exist in the commitment procedures under the twoacts, defendants committed under the Act are not treated significantly more harshly than those committed as sexuallyviolent persons. Of particular relevance here is the court's holding that, while the Act does not explicitly require the DOC totreat a person in the least restrictive setting, the Act does provide the DOC with a number of treatment alternatives. Thecourt concluded that "both statutes are rationally tailored to achieve their dual objectives to provide treatment and to protectthe public from sexual violence." McDougle, 303 Ill. App. 3d at 523.

Defendant acknowledges McVeay (but not McDougle, which was filed shortly before defendant filed his brief) and asks usto reconsider it. We decline to revisit this issue. McDougle addresses many of the concerns defendant raises. Together,McVeay and McDougle represent a thorough consideration of this issue, and defendant has provided no compelling reasonto reconsider those decisions.

Defendant also contends that the Act violates equal protection guarantees because it does not provide for a maximum termof commitment as is the case for those found not guilty by reason of insanity. Defendant contends that one found not guiltyby reason of insanity and one found to be sexually dangerous are similarly situated in that, in each case, the person hascommitted an offense to which criminal responsibility does not attach because of the person's mental condition. He arguesthat no rational basis exists for subjecting persons found to be sexually dangerous to indefinite commitment while limitingthe maximum term of commitment for those found not guilty by reason of insanity. In response, the State acknowledgesthat this specific issue was not addressed in McVeay and McDougle, but argues that similar considerations apply.

Defendant argues that the Act violates his right to the equal protection of the laws. U.S. Const., amend. XIV; Ill. Const.1970, art. I,