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In these proceedings under the Sexually Violent PersonsCommitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)),defendant James Joseph Ottinger appeals from an order of thecircuit court of McLean County dismissing his petition forconditional release and granting the State's motion for a findingof no probable cause upon review of a report of reexamination doneJuly 10, 2001. The issues on appeal are whether (1) the trialcourt erred in failing to appoint "neutral" or "independent"examiners, (2) the trial court improperly entered summary judgmenton the petitions, (3) there was sufficient probable cause torequire a full hearing on the discharge and conditional releasematters, (4) the Act is unconstitutional because it deprives adefendant of due process by not requiring proof beyond a reasonabledoubt and not authorizing the appointment of a sufficient number ofexperts for a defendant, and (5) defendant was deprived of theeffective assistance of counsel. We affirm.

On October 1, 1992, defendant pleaded guilty to criminalsexual assault. Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(1). The trial court sentenced him to 21 years' imprisonment. OnFebruary 5, 1999, the State filed a petition for commitment ofdefendant under the Act. On September 14, 1999, defendant admittedthe allegations of the petition. On November 23, 1999, the trialcourt committed defendant to the Illinois Department of HumanServices until such time as he was no longer a sexually violentperson. On December 21, 1999, defendant filed a motion toreconsider and vacate the judgment of commitment. On October 10,2000, the trial court denied the motion to reconsider and vacate. On appeal, this court affirmed the order of commitment on May 11,2001. In re Ottinger, No. 4-00-0932 (May 11, 2001) (unpublishedorder under Supreme Court Rule 23).

On October 10, 2000, defendant filed a pro se petitionfor conditional release pursuant to section 60 of the Act (725 ILCS207/60 (West 2000)). On October 12, 2000, the public defender wasappointed to represent defendant on the petition for conditionalrelease. On October 30, 2000, the public defender, Amy JohnsonDavis, filed a motion to withdraw as counsel because of defendant'scomplaints about her to the Attorney Registration and DisciplinaryCommission alleging coercion. On November 21, 2000, the motion towithdraw as counsel was denied. On November 29, 2000, on application by Ms. Davis as defendant's counsel, the trial court appointedDr. Larry Davis, a psychologist, to examine defendant and reportwithin 60 days. The mandate from the earlier appeal was filed inthe circuit court on June 13, 2001. On July 19, 2001, the trialcourt scheduled a status hearing for August 14, 2001. On July 20,2001, the State filed a psychological reexamination report preparedby Dr. Paul J. Heaton and a motion pursuant to section 55 of theAct (725 ILCS 207/55 (West 2000)) for a finding of no probablecause based upon review of the reevaluation report. The report ofDr. Davis was filed by defendant on August 27, 2001. On August 30,2001, the trial court conducted a hearing on the State's motion fora "no probable cause" finding and defendant's pro se petition forconditional release. The trial court found there was no probablecause to believe that (1) defendant was no longer a sexuallyviolent person under section 65(b)(2) of the Act (725 ILCS207/65(b)(2) (West 2000)) and (2) it was not substantially probablethat he would engage in acts of sexual violence if released onconditional release. The trial court dismissed defendant'spetition for conditional release and continued defendant'scommitment in a secure facility.

Defendant argues that the trial court erred in failing toappoint neutral examiners. Although recognizing that there were noobjections by defendant's counsel to the procedures employed in thetrial court, defendant contends that the alleged error amounted toplain error (134 Ill. 2d R. 615(a)) or ineffective assistance ofcounsel. We find no error in the appointment of examiners.

A committed person may file a petition for conditionalrelease under section 60 of the Act. Section 60(c) provides asfollows:

"Within 20 days after receipt of thepetition, the court shall appoint one or moreexaminers having the specialized knowledgedetermined by the court to be appropriate, whoshall examine the mental condition of theperson and furnish a written report of theexamination to the court within 30 days afterappointment. The examiners shall have reasonable access to the person for purposes ofexamination and to the person's past andpresent treatment records and patient healthcare records. If any such examiner believesthat the person is appropriate for conditionalrelease, the examiner shall report on the typeof treatment and services that the person mayneed while in the community on conditionalrelease. The State has the right to have theperson evaluated by experts chosen by theState. The court shall set a probable causehearing as soon as practical after the examiner's report is filed. If the court determines at the probable cause hearing that causeexists to believe that it is not substantiallyprobable that the person will engage in actsof sexual violence if on release or conditional release, the court shall set a hearingon the issue." 725 ILCS 207/60(c) (West Supp.2001) (effective August 17, 2001).

On October 10, 2000, defendant filed a pro se petitionfor conditional release. On November 29, 2000, the court appointedDr. Davis. In the interim, on October 12, 2000, the trial courtappointed counsel for defendant pursuant to section 60(b) of theAct (725 ILCS 207/60(b) (West 2000)), appointed counsel moved towithdraw as counsel on October 30, 2000, and on November 21, 2000,the trial court heard and denied the motion to withdraw. Defendantdoes not raise the failure to appoint Dr. Davis within 20 days asprejudicial error. Instead, defendant argues that Dr. Heaton wasa State expert, Dr. Davis was defendant's expert, and no "neutral"or "independent" expert was appointed by the court. He claims thisviolates the statute.

Dr. Davis was appointed on defendant's motion. Defendantmakes no statutory construction argument. Nor does he make anargument that demonstrates that section 60(c) evidences a legislative intent to require that the trial court appoint an examiner whowas not requested by either party. The court appointed an examineras required by the statute. There was no error, plain or otherwise.

Defendant's argument suggests that section 25(e) of theAct (725 ILCS 207/25(e) (West 2000)) affords him the opportunity tohave another expert appointed. We disagree. Although section25(c) (725 ILCS 207/25(c) (West 2000)) sets forth the proceduralrights of any person who is subject to a petition at "any hearing"under the Act, section 25 generally pertains to proceedings on thepetition under section 15 of the Act (725 ILCS 207/15 (West 2000)). 725 ILCS 207/25(a) (West 2000). Therefore, we do not read theprovision in section 25(e) as applying to the proceedings undersections 55, 60, and 65 of the Act in this case.

Nor has defendant demonstrated ineffective assistance ofcounsel on this basis. To establish ineffective assistance ofcounsel, defendant must demonstrate that his counsel's performancewas fundamentally deficient and, but for counsel's deficientperformance, the result of the proceeding would have been different. People v. Coleman, 183 Ill. 2d 366, 397-98, 701 N.E.2d 1063,1079 (1998). The failure of defendant's counsel to make a futileobjection does not constitute fundamentally deficient performance. See People v. Wilson, 164 Ill. 2d 436, 454, 647 N.E.2d 910, 919(1994) (failure to file a futile motion does not establishineffective assistance of counsel).

Defendant next argues that the procedure employed in thiscase amounted to an improper summary judgment for the State on thepetition for conditional release and the State's motion for a "noprobable cause" finding. Defendant relies on People v. Trainor,196 Ill. 2d 318, 752 N.E.2d 1055 (2001). Trainor is distinguishable from this case. In Trainor, the supreme court found thatsummary judgment was not authorized in a recovery proceeding underthe Sexually Dangerous Persons Act (725 ILCS 205/0.01 through 12(West 2000)). Trainor, 196 Ill. 2d at 338-42, 752 N.E.2d at 1067-69. Defendant recognizes the distinction between the SexuallyDangerous Persons Act, which authorizes a proceeding against aperson who has been charged with but not yet convicted of acriminal offense (725 ILCS 205/3 (West 2000)), and the Act, whichrequires that the person sought to be committed has been foundguilty of a sexually violent offense, either as an adult ordelinquent minor, or has been found not guilty of a sexuallyviolent offense by reason of insanity, mental disease, or mentaldefect (725 ILCS 207/15(b)(1)(A) through (b)(1)(C) (West 2000)).

Trainor is also distinguishable from this case because nomotion for summary judgment was made here (see 735 ILCS 5/2-1005(West 2000)), summary judgment was not granted, and the procedureemployed by the trial court was precisely the probable causehearing contemplated by section 60(c) of the Act. Similarly,section 55 of the Act recognizes periodic examination of thecommitted person following initial commitment. Section 55 does notrequire a formal hearing, but only the submission of a report fromthe examiner conducting the examination (725 ILCS 207/55(b) (West2000)), although the court may appoint another expert to examinethe committed person at his request (725 ILCS 207/55(a) (West2000)). Section 55(d) anticipates that a petition for dischargemay be filed after reexamination, but requires that it comply withsection 65 of the Act. 725 ILCS 207/55(d) (West 2000). Defendantargues that the trial court did not comply with section 65(b) ofthe Act (725 ILCS 207/65(b) (West 2000)). Section 65(b)(1) of theAct provides:

"A person may petition the committingcourt for discharge from custody or supervision without the Secretary's approval. At thetime of an examination under subsection (a) ofSection 55 of this Act, the Secretary shallprovide the committed person with a writtennotice of the person's right to petition thecourt for discharge over the Secretary'sobjection. The notice shall contain a waiverof rights. The Secretary shall forward thenotice and waiver form to the court with thereport of the Department's examination underSection 55 of this Act. If the person does notaffirmatively waive the right to petition, thecourt shall set a probable cause hearing todetermine whether facts exist that warrant ahearing on whether the person is still asexually violent person. If a person does notfile a petition for discharge, yet fails towaive the right to petition under this Section, then the probable cause hearing consistsonly of a review of the reexamination reportsand arguments on behalf of the parties. Thecommitted person has a right to have an attorney represent him or her at the probable causehearing, but the person is not entitled to bepresent at the probable cause hearing. Theprobable cause hearing under this Section mustbe held within 45 days of the filing of thereexamination report under Section 55 of thisAct." 725 ILCS 207/65(b)(1) (West 2000).

In this case, defendant was given a notice of a right topetition for discharge and was provided a waiver of the right topetition for discharge, which he did not sign. A hearing is to bescheduled on the issue of discharge only if the trial courtdetermines at a probable cause hearing under section 65(b)(1) thatprobable cause exists to believe that the committed person is nolonger a sexually violent person. 725 ILCS 207/65(b)(2) (West2000). Because the probable cause hearing under section 65(b)(1)consists only of a review of the reexamination reports and thearguments of the parties, the procedure employed by the trial courtin this case comported with section 65(b)(1) and was not equivalentto granting summary judgment.

Defendant next argues that sufficient cause was shown torequire a full hearing on both the discharge and conditionalrelease issues. Whether probable cause exists to conduct a hearingon a petition for conditional release or discharge is a matterresting in the sound discretion of the trial court. On review,this court will not substitute its judgment for that of the trialcourt, but will ascertain whether the trial court's determinationresulted from an abuse of discretion. See Woolverton v. McCracken,321 Ill. App. 3d 440, 445, 748 N.E.2d 327, 331-32 (2001). Thetrial court will be deemed to have abused its discretion if itacted arbitrarily, without the employment of conscientiousjudgment, or exceeded the bounds of reason and ignored recognizedprinciples of law resulting in substantial prejudice. Wolverton,321 Ill. App. 3d at 445, 748 N.E.2d at 332.

Before proceeding to this issue on the merits, we mustresolve the question raised by defendant of whether the standardsfor determining the entitlement to a full hearing on the respectivepetitions are different in each of these proceedings. Defendantsuggests that the "cause" referred to in section 60(c) of the Actrelating to conditional release means something different than"probable cause" referred to in section 65(b)(1) of the Act andrequires a lesser standard.

In construing a statute, courts ascertain and give effectto the intent of the legislature; the language of the statute isthe best evidence of legislative intent; and statutes are construedto avoid absurd and unjust results. In re A.P., 179 Ill. 2d 184,195, 688 N.E.2d 642, 648 (1997). In this case, defendant canmaintain his argument only by taking the word "cause" out ofcontext in the last sentence of section 60(c), which states in itsentirety: "If the court determines at the probable cause hearingthat cause exists to believe that it is not substantially probablethat the person will engage in acts of sexual violence if onrelease or conditional release, the court shall set a hearing onthe issue." (Emphasis added.) 725 ILCS 207/60(c) (West 2000). Itis readily apparent that the legislature intended a "probablecause" determination be made to establish entitlement to a hearingon conditional release. Therefore, the standard to be applied bythe trial court in a probable cause hearing under section 60(c) isnot a lesser standard than it would be required to apply undersection 65(b)(1) and, by reason of the use of the term "substantially" in section 60(c), it may place a greater burden ondefendant to demonstrate entitlement to a hearing on conditionalrelease, but that is not an issue raised in this appeal and we donot decide it. Section 65(b)(2) states in the positive therequirement of proof that probable cause exists to believe thecommitted person is no longer a sexually violent person. Section60(c) allows the trial court to grant a full hearing for conditional release on the finding of the obverse, that it is notsubstantially probable that defendant will engage in acts of sexualviolence if released.

Dr. Heaton found that defendant continued to be asubstantial risk for sexual reoffense; he required furtherintensive, secure care sex-offender treatment; and his treatmentprogress was painfully slow. In reaching those conclusions, Dr.Heaton relied on the facts that defendant did not consistentlyattend treatment classes, continued to deny guilt for a 1991aggravated criminal sexual assault of a mentally and physicallyhandicapped adult male to which he pleaded guilty, reported thattreatment classes did not help him and he would rely on "commonsense" to prevent recurrence, three times failed to pass groupclasses, was undergoing ongoing treatment for alcohol abuse, andhad no noticeable behavior changes.

Although Dr. Davis recommended that defendant be grantedconditional release, he observed that defendant demonstrated apattern of chronic psychological maladjustment; was likely to bechronically disoriented, alienated, and withdrawn from others; wascynical and might see others as threatening and harmful; had aprofile suggesting a borderline psychotic condition, excessivefocus on his physical body and health, and a schizotypal personality disorder, meaning an unusual process of thinking and interacting not truly psychotic; and had a tendency for substance abuse oraddictive proneness. Dr. Davis's report further indicated thatdefendant continued to adamantly insist he did not sexually abusethe alleged victim and he pleaded guilty to avoid a greatersentence because of earlier charges of molesting two youngchildren. We note that Dr. Davis was the original defendant'sexpert in this case and has maintained all along that defendant wasnot a sexually violent person.

In addition, without objection by defendant, the trialcourt took notice of its file, including the original evaluation byDr. Jacqueline Buck. Buck's report related that defendant had anextensive criminal history; he indicated that he had only beencaught once; and he did not display remorse, guilt, shame, orempathy with the victims. Buck concluded that defendant sufferedfrom long-standing angry, hurtful, and impulsive behavior directedtoward persons he could control or dominate, including throughsexual violence. According to Buck, defendant had a stronglyingrained pattern of antisocial behavior. While on parole in 1997,defendant physically and verbally intimidated the handicapped manhe had sodomized years before. According to Buck, defendant had nounderstanding about his pattern of sexual offense, what triggeredit, and what changes must be made to ensure that he did notcontinue the sexually violent acts.

"Probable cause" is defined as:

"Reasonable cause; having more evidencefor than against. A reasonable ground forbelief in the existence of facts warrantingthe proceedings complained of. An apparentstate of facts found to exist upon reasonableinquiry (that is, such inquiry as the givencase renders convenient and proper), whichwould induce a reasonably intelligent andprudent man to believe, in a criminal case,that the accused person had committed thecrime charged, or, in a civil case, that acause of action existed." Black's Law Dictionary 1081 (5th ed. 1979).

As to the petition for conditional release, defendant failed toprove facts that would lead the trial court to reasonably believethat it was not substantially probable that he will engage in actsof sexual violence if conditionally released. No facts demonstrated that he can control his own behavior outside of a controlled environment. Nor had he undertaken the steps necessary toget to that point. For the same reasons, there was no probablecause to believe that defendant was no longer a sexually dangerousperson. The trial court may give greater weight to the opinions ofDrs. Buck and Heaton than to those of Dr. Davis because Dr. Davisrelied substantially on what defendant told him and did not mentionor refute any treatment progress notes. The trial court did notcommit an abuse of discretion by determining that defendant was notentitled to a full hearing on conditional release or discharge.

Defendant next argues that the Act is unconstitutionalbecause the statutory procedures employed in this case violated hisright to due process by continuing his detention without proofbeyond a reasonable doubt. Defendant challenges the clear andconvincing evidence burden of proof incorporated in sections 60(d)and 65(b)(2) for full hearings on petitions for conditional releaseand discharge, respectively. However, because defendant has failedto establish entitlement to a hearing under either section, wedecline to address this issue because it requests an advisoryopinion. A party does not have standing to challenge the constitutionality of a statute unless he has sustained or is in danger ofsustaining a direct injury as a result of its enforcement;otherwise the challenge requests an advisory opinion. Flynn v.Ryan, 199 Ill. 2d 430, 437-38, ___ N.E.2d ___, ___ (2002); seePeople v. Hill, 199 Ill. 2d 440, 445, ___ N.E.2d ___, ___ (2002)("A defendant does not ordinarily have standing to challenge astatute as it might be applied to others in different circumstances"). Moreover, the Supreme Court of Illinois has alreadydetermined that a burden of proof of clear and convincing evidencein a proceeding under the Act does not violate due process. In reDetention of Samuelson, 189 Ill. 2d 548, 564, 727 N.E.2d 228, 237(2000).

Defendant also argues that he was denied due processbecause the State, in essence, had two experts, Drs. Heaton andBuck, and he only had one, Dr. Davis. Defendant was given theopportunity to have an examiner appointed, and he chose Dr. Davisto examine him, probably because Dr. Davis gave the originalopinion that defendant was not a sexually violent person. Haddefendant chosen to have another examiner, the Act would notprevent his doing so. The cases relied on by defendant, In reDetention of Trevino, 317 Ill. App. 3d 324, 331, 740 N.E.2d 810,815 (2000), and In re Detention of Kortte, 317 Ill. App. 3d 111,118, 738 N.E.2d 983, 988 (2000), are distinguishable because theydealt with a provision of the Act that denied the respondentstherein an opportunity to defend themselves by barring presentationof an expert witness to contradict the State's expert on the basisof the respondents' failure to cooperate with a court-orderedevaluation (see 725 ILCS 207/30(c) (West 2000)). Here, defendantwas not prevented from presenting his expert witness. He couldhave chosen a different examiner, thus enabling him to refer toDavis's original report and the report of the new examiner. TheAct, as applied in this case, does not violate defendant's right todue process. As a result, defendant's claim of ineffectiveassistance of counsel for failing to make a "meaningful" constitutional challenge to the Act lacks merit.

Finally, we address defendant's contention that he wasprovided ineffective assistance of counsel because of the delay incausing his petition for conditional release to be heard. Defendant notes that Dr. Davis's report was dated April 2, 2001,and it was filed in the circuit court on August 27, 2001.

When an examiner is appointed, the examiner is to providea written report of examination to the court within 30 days afterthe appointment. 725 ILCS 207/60(c) (West 2000). Withoutobjection from defendant and indeed on defendant's motion, thecourt granted Davis 60 days to file the report. We agree thatdefendant's counsel should have followed this case to ensure thatDavis's report was provided to the court in a timely fashion. However, the failure to do so did not prejudice defendant in theoutcome of the proceeding. The prejudice required to demonstrateineffective assistance of counsel is that, but for counsel'sdeficient performance, the result of the proceeding would have beendifferent. Coleman, 183 Ill. 2d at 397, 701 N.E.2d at 1079. Defendant argues that he is prejudiced because, as a result of thedelay, he could not file another petition for conditional releaseuntil six months after the dismissal of this petition. See 725ILCS 207/60(a) (West 2000). That, however, is a collateral matterand not the type of prejudice that establishes ineffectiveassistance of counsel because it does not demonstrate that theproceeding subject to this appeal would have resulted differentlyhad there been no delay. The State would still have had theopportunity to obtain the report of an expert. See 725 ILCS207/60(c) (West 2000).

The judgment of the circuit court of McLean County isaffirmed.

Affirmed.

KNECHT and APPLETON, JJ., concur.