People v. Freed

Case Date: 02/20/2002
Court: 4th District Appellate
Docket No: 4-01-0831 Rel

NO. 4-01-0831

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

HAROLD L. FREED,

Defendant-Appellee,

and

THE DEPARTMENT OF CORRECTIONS,

Appellant.

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Appeal from

Circuit Court of

Sangamon County

No. 98CF986



Honorable

Steven H. Nardulli,

Judge Presiding.

 


JUSTICE STEIGMANN delivered the opinion of the court:

In January 1999, the trial court found defendant,Harold L. Freed, to be a sexually dangerous person, as defined insection 1.01 of the Sexually Dangerous Persons Act (Act) (725ILCS 205/1.01 (West 1998)), and committed him to the Director ofthe Illinois Department of Corrections (Department). In February2001, defendant pro se filed an application showing recoveryunder section 9 of the Act (725 ILCS 205/9 (West 2000)). In June2001, defendant, through his appointed counsel, requested thatthe court appoint a psychiatrist not employed by the Departmentto conduct an independent psychiatric examination of him. InJuly 2001, the court granted defendant's request for an independent psychiatric examination.

On August 10, 2001, defendant filed a second-amendedpetition for writ of habeas corpus ad testificandum, requestingthat the trial court order the Department to bring him from BigMuddy River Correctional Center (Big Muddy) to the SangamonCounty jail (jail) on August 11, 2001, where he would be houseduntil August 14, 2001, for an independent psychiatric examinationand a "future hearing." That same day, the court issued an orderdirecting the Department to house defendant at the jail fromAugust 11, 2001, through August 14, 2001, "with custody to remainwith the [Department]."

The Department appeals the trial court's August 10,2001, order, and we reverse.

I. BACKGROUND

In October 1998, the State charged defendant withaggravated criminal sexual abuse (720 ILCS 5/12-16(a) (West1996)) and two counts of child pornography (720 ILCS 5/11-20.1(a)(1) (West 1994)). In November 1998, the State (1) petitioned the trial court to proceed under the Act (725 ILCS205/1.01 through 12 (West 1998)) and (2) moved the court toappoint two psychiatrists, Dr. Joseph Bohlen and Dr. TerryKillian, to examine defendant and report back to the court. Thecourt later granted both the State's petition and its motion.

In January 1999, the State filed a petition to havedefendant declared a sexually dangerous person under the Act (725ILCS 205/1.01 through 12 (West 1998)), alleging the following: (1) the charges then pending against defendant--namely, aggravated criminal sexual abuse (720 ILCS 5/12-16(a) (West 1996)) andtwo counts of child pornography (720 ILCS 5/11-20.1(a)(1) (West1994)); (2) defendant had a history of sexual involvement withchildren; and (3) both Killian and Bohlen had concluded thatdefendant was a sexually dangerous person in that he sufferedfrom a mental illness, pedophilia, which had existed for morethan a year. Later that month, defendant stipulated to andadmitted the allegations set forth in the State's petition, andthe trial court found him to be a sexually dangerous person andcommitted him to the Department. Defendant was later assigned toBig Muddy.

In February 2001, defendant pro se filed (1) an application showing recovery under section 9 of the Act (725 ILCS205/9 (West 2000)); and (2) a motion for writ of habeas corpus ad testificandum, requesting that he be produced before the trialcourt "at such time, and for such purpose, as may be required." Later that month, the court ordered the Department to prepare asocio-psychiatric report regarding defendant, and in May 2001,the Department filed that report with the court.

In June 2001, defendant requested that the trial courtappoint a psychiatrist not employed by the Department to conductan independent psychiatric examination of him. In a July 2001docket entry, the court granted defendant's request for anindependent psychiatric examination and directed that a writ was"to issue directing delivery of [defendant] to the [jail]." Later that month, defendant filed a petition for writ of habeas corpus ad testificandum, requesting that the court direct theDepartment to bring him to the jail on August 11, 2001, to beevaluated by Killian. That same day, the court entered an orderissuing the writ.

On August 7, 2001, the Department filed a motion toquash the trial court's July 2001 order, alleging that the courthad erred by issuing the writ because it was not for one of thepurposes provided in section 10-135 of the Code of Civil Procedure, which sets forth the proper procedure for bringing aninmate before the trial court (hereinafter habeas corpus ad testificandum statute) (735 ILCS 5/10-135 (West 2000)). OnAugust 8, 2001, the court granted defendant's amended petitionfor writ of habeas corpus ad testificandum, which requested thatthe court direct the Department to bring defendant to the jail onAugust 11, 2001, to be evaluated by Killian and for a "futurehearing."

On August 9, 2001, the Department filed a motion toquash the trial court's August 8, 2001, order, alleging that thecourt erred by (1) issuing the writ for an improper purpose underthe habeas corpus ad testificandum statute (735 ILCS 5/10-135(West 2000)), (2) transferring custody of defendant from theDepartment to jail officials, and (3) compelling the productionof defendant too far in advance of any scheduled court hearing. That same day, the court denied the Department's motion, uponfinding that (1) defendant had a right to an independent psychiatric examination; (2) the Department was reading thehabeas corpus ad testificandum statute too narrowly; and (3) quashingthe August 8, 2001, order would impose inappropriate burdens ondefendant. The court also directed defendant to file a secondamended petition for writ of habeas corpus ad testificandum,which would request that defendant be housed at the jail for alimited time, until August 14, 2001.

On August 10, 2001, defendant filed a second amendedpetition for writ for habeas corpus ad testificandum, requestingthat the trial court order the Department to bring him from BigMuddy to the jail on August 11, 2001, where he would be houseduntil August 14, 2001, to be evaluated by Killian and for a"future hearing." That same day, the court issued an orderdirecting the Department to house defendant at the jail fromAugust 11, 2001, through August 14, 2001, "with custody to remainwith the [Department]." The Department complied with the court'sorder the following day.

This interlocutory appeal followed.

II. ANALYSIS

A. Appellate Jurisdiction

Defendant concedes that this court has jurisdictionover the Department's appeal. Because the trial court's August10, 2001, order--which required that the Department do a particular thing--had the force and effect of an injunction, the Department properly filed an interlocutory appeal under Supreme CourtRule 307(a). 188 Ill. 2d R. 307(a)(1) ("An appeal may be takento the [a]ppellate [c]ourt from an interlocutory order of court*** granting, modifying, refusing, dissolving, or refusing todissolve or modify an injunction"); People v. Collins, 249 Ill.App. 3d 924, 926-27, 619 N.E.2d 871, 874 (1993) (holding that anorder directing the Department to transport an inmate to a countyjail for a hearing was in the nature of an interlocutory appeal,and, thus, an interlocutory appeal under Rule 307(a) was proper).

B. Mootness

The Department concedes that no live controversy existsbecause it complied with the trial court's August 10, 2001,order. However, the Department urges this court not to dismissits appeal as moot because (1) given the short duration of thisand similar orders, applying the mootness doctrine could insulatean entire class of cases from appellate review; and (2) the issueon appeal is of great public interest.

Illinois courts have held that when a case involves anevent of short duration that is "'capable of repetition, yetevading review,'" it may qualify for review even if it wouldotherwise be moot. In re Barbara H., 183 Ill. 2d 482, 491, 702N.E.2d 555, 559 (1998), quoting In re A Minor, 127 Ill. 2d 247,258, 537 N.E.2d 292, 297 (1989). To receive the benefit of thisexception, the complaining party must demonstrate that (1) thechallenged action is too short in duration to be fully litigatedprior to its cessation, and (2) a reasonable expectation existsthat the same complaining party would be subjected to the sameaction again. Barbara H., 183 Ill. 2d at 491, 702 N.E.2d at 559.

We agree with the Department that this case satisfiesboth of these requirements. Typically, challenged orders of habeas corpus ad testificandum will expire before appellatereview can be completed, as happened here. See People v. Ehlers,301 Ill. App. 3d 186, 188, 703 N.E.2d 539, 541 (1998) (notingthat an order of habeas corpus ad testificandum usually does notlast long). The trial court's August 10, 2001, order directedthe Department to bring defendant to the jail on the followingday, where he would remain until August 14, 2001. That period oftime was far too brief to permit appellate review of the court'sorder. To apply the mootness doctrine under these circumstanceswould mean that the Department would be left without any legalrecourse for challenging such orders.

The second requirement is also satisfied in this case. Although a trial court is not required to provide an independentpsychiatrist to a defendant in proceedings under the Act (Peoplev. Trainor, 196 Ill. 2d 318, 339, 752 N.E.2d 1055, 1067 (2001)),the court, in its discretion, may appoint a psychiatrist toevaluate the defendant (see People v. McVeay, 302 Ill. App. 3d960, 964, 706 N.E.2d 539, 543 (1999) (discussing the trialcourt's discretion in appointing examining psychiatrists underthe Act)). Given this, we conclude that it is reasonable toexpect that the Department will again be faced with the same sortof order under the habeas corpus ad testificandum statute. Wealso agree with the Department that it is reasonable to expectthat in the future it will be subject to other types of ordersunder the habeas corpus ad testificandum statute (e.g., an orderto bring an inmate before the court to testify). See A Minor,127 Ill. 2d at 259, 537 N.E.2d at 297 (to satisfy the secondrequirement of the mootness doctrine exception, the party neednot show that the statute at issue will be applied again inprecisely the same circumstances or for precisely the samereasons; instead, "[i]t is sufficient that the same statutoryprovision will most likely be applied in future cases involvingthe same party").

We thus decline to dismiss this appeal as moot. Weneed not address the Department's contention that the publicinterest of the issue on appeal also requires us to disregard themootness doctrine.

C. The Department's Claim That the Trial Court Erred by

Entering the August 10, 2001, Order of

Habeas Corpus Ad Testificandum The Department argues that the trial court erred byentering the August 10, 2001, order of habeas corpus ad testificandum, which directed the Department to produce defendant at thejail from August 11, 2001, until August 14, 2001, for an independent psychiatric evaluation and a "future hearing." Specifically, the Department contends that the court's order did notcomport with the habeas corpus ad testificandum statute (735 ILCS5/10-135 (West 2000)). We agree.

Because the trial court's August 10, 2001, orderinvolved an interpretation of the habeas corpus ad testificandumstatute (735 ILCS 5/10-135 (West 2000)), we review de novo thecourt's decision. See In re Estate of Dierkes, 191 Ill. 2d 326,330, 730 N.E.2d 1101, 1103 (2000). A court's primary function ininterpreting a statute is to determine and give effect to theintent of the legislature, and legislative intent is best determined by the language of the statute.Walker v. Rogers, 272 Ill.App. 3d 86, 90, 650 N.E.2d 272, 275 (1995). A court reading astatute should give the statutory language its plain and popularly understood meaning.Roser v. Anderson, 222 Ill. App. 3d1071, 1075, 584 N.E.2d 865, 868 (1991). When a statute isunambiguous, courts must enforce it as enacted. Philips Electronics, N.V. v. New Hampshire Insurance Co., 295 Ill. App. 3d895, 904, 692 N.E.2d 1268, 1275 (1998). A court must not rewritea statute to make it consistent with the court's idea of orderliness and public policy.City of Springfield v. Judith JonesDietsch Trust, 321 Ill. App. 3d 239, 245, 746 N.E.2d 1272, 1277(2001).

The Department has sole discretion in placing, handling, and transferring inmates within its control. The legislature has given the Department both the ability and power toassign inmates to any of its facilities, and the Department hasbeen charged with the responsibility of maintaining programs ofcontrol and rehabilitation for inmates within its facilities. 730 ILCS 5/3-2-2(1)(b), (1)(d) (West 2000). In addition, section8 of the Act specifically grants the Director of the Departmentthe power to place a sexually dangerous person "in any facility"of the Department set aside for the care and treatment of sexually dangerous persons. 725 ILCS 205/8 (West 2000). Except asprovided by the legislature, courts may not intervene in mattersthat lie within the Department's discretion. People v. Fowler,14 Ill. 2d 252, 259, 151 N.E.2d 324, 328 (1958); People v. Lego,212 Ill. App. 3d 6, 8, 570 N.E.2d 402, 404 (1991).

Recognizing the Department's responsibility for placingand controlling inmates within its facilities, the legislatureenacted the habeas corpus ad testificandum statute, which setsforth the proper procedure for bringing an inmate before thetrial court (735 ILCS 5/10-135 (West 2000)). Collins, 249 Ill.App. 3d at 927, 619 N.E.2d at 874. That statute provides asfollows:

"The several courts having authority togrant relief by habeas corpus, may enterorders, when necessary, to bring before themany prisoner to testify, or to be surrenderedin discharge of bail, or for trial upon anycriminal charge lawfully pending in the samecourt[,] or to testify in a criminal proceeding in another state ***." 735 ILCS 5/10-135(West 2000).

Section 10-135 thus explicitly sets forth the purposes for whicha trial court may enter an order of habeas corpus ad testificandum to bring an inmate before the court--that is, (1) to testify,(2) to be surrendered in discharge of bail, (3) to attend theinmate's own criminal proceedings, and (4) to testify in out-of-state criminal proceedings.

We agree with the Department that the trial court'sAugust 10, 2001, order, which directed that the Department housedefendant at the jail from August 11, 2001, until August 14,2001, for an evaluation by Killian and a "future hearing," didnot fall within any of the statutorily enumerated purposes forentering an order of habeas corpus ad testificandum.

The habeas corpus ad testificandum statute clearly doesnot allow a trial court to order the Department to house aninmate at a county jail so that he may be examined locally by apsychiatrist. See Lego, 212 Ill. App. 3d at 8, 570 N.E.2d at 404(holding that the habeas corpus ad testificandum statute did notallow for the trial court's order that an inmate be transferredfor the convenience of his attorney, psychiatrist, and investigator). In so concluding, we reject defendant's argument that thetrial court's order was proper under the habeas corpus ad testificandum statute because defendant was effectively "testifying"when he spoke to Killian during his psychiatric evaluation. Oneof the purposes of the habeas corpus ad testificandum statute isto provide a mechanism by which a trial court can bring an inmate before the court to testify (735 ILCS 5/10-135 (West 2000)). Contrary to defendant's claim, his discussions with Killian atthe jail simply cannot be construed as testimony given by defendant before the trialcourt.

The case on which defendant relies, People v. Bryant,85 Ill. App. 3d 836, 841, 407 N.E.2d 597, 601 (1980), isinapposite. In that case, the appellate court construed the habeas corpus ad testificandum statute to include transfer of aninmate for participation in a lineup. The Department correctlypoints out that in the two decades since it was decided, no courthas cited Bryant for its interpretation of the habeas corpus ad testificandum statute. Although we agree with the Departmentthat the reasonableness of the Bryant court's interpretation isquestionable, we need not address that issue because the trialcourt's order in this case--that defendant be transferred to thejail to be examined locally by a psychiatrist--went far beyondthe trial court's order in Bryant.

In addition, we conclude that the plain language of the habeas corpus adtestificandum statute does not allow a trialcourt to order the Department to produce an inmate at a countyjail to be housed until an unspecified "future" hearing. Thestatute was enacted to provide a mechanism by which a trial courtcan bring an inmate before it to, among other things, testify orattend a scheduled hearing in a criminal proceeding (735 ILCS5/10-135 (West 2000)). Given the quasi-criminal nature of theproceedings under the Act (see Trainor, 196 Ill. 2d at 339, 752N.E.2d at 1067 (recognizing that proceedings under the Act arecivil-criminal hybrids)), the trial court certainly could haveordered that defendant be brought before it to attend a scheduledrecovery hearing. However, no such hearing had been scheduled.

Further, we note that even if defendant's recoveryapplication had been set for a hearing, the court's order of habeas corpus ad testificandum could only direct that the Department produce defendantat that hearing. It could not interferewith the Department's custody of defendant. See Ehlers, 301 Ill.App. 3d at 190, 703 N.E.2d at 542 (holding that a court may notenter an order of habeas corpus ad testificandum directing thatan inmate be housed in a local facility, even for a limited timebefore he testifies; such an order deprives the Department of itscustody of the inmate); see also People ex rel. Lucey v. Kersten,269 Ill. 597, 601, 109 N.E. 1012, 1014 (1915) ("The issuance of awrit of habeas corpus ad testificandum does not have the effectof taking the prisoner out of the custody of the officer in whosecharge he is, and in this case it was the duty of the warden, inproducing [the inmate] in answer to the writ, to retain custodyof him and to return him to the penitentiary immediately upon theconclusion of his testimony").

Because the trial court's August 10, 2001, order of habeas corpus ad testificandum, which directed the Department toproduce defendant at the jail from August 11, 2001, until August14, 2001, for an independent psychiatric evaluation and a "futurehearing," was erroneous under the habeas corpus ad testificandumstatute (735 ILCS 5/10-135 (West 2000)), we reverse that order. Despite so holding, we concede that we appreciate the concernswhich motivated the trial court's decision. However, both thiscourt and the trial court are limited to interpreting statutes aswritten, and "[w]e are powerless to annex to a statute a provision or condition which the General Assembly did not see fit toimpose." People v. Garner, 147 Ill. 2d 467, 476, 590 N.E.2d 470,474 (1992). See Judith Jones Dietsch Trust, 321 Ill. App. 3d at245, 746 N.E.2d at 1277 (a court must not rewrite a statute tomake it consistent with the court's idea of orderliness andpublic policy).



III. CONCLUSION

For the reasons stated, we reverse the trial court's judgment.

Reversed.

KNECHT and TURNER, JJ., concur.