Opinion
No. 2-14-0635
12-23-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL OLSSON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Lake County.
No. 05-CF-3046
Honorable Christopher R. Stride, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Jorgensen and Birkett concurred in the judgment.
ORDER
¶ 1 Held: We declined to reverse the trial court's order following defendant's ninth hearing pursuant to section 104-25(g)(2)(i) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-25(g)(2)(i) (West 2012)), even though the court's findings did not mirror the language of section 104-25(g)(2)(i)(A-C) (725 ILCS 5/104-25(g)(2)(i)(A-C) (West 2012)), where the uncontested evidence showed that defendant was suffering from a mental illness, was non-compliant with his treatment plan, was likely to inflict harm upon others if he were to be released, and was in need of inpatient hospitalized treatment.
¶ 2 Defendant, Paul Olsson, appeals from the order entered by the circuit court of Lake County on May 5, 2014, remanding him to the Department of Human Services (Department)
after a hearing pursuant to section 104-25(g)(2)(i) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2)(i) (West 2012)). For the reasons that follow, we affirm.
¶ 3 I. BACKGROUND
¶ 4 In 2005, defendant was charged with sex offenses involving children. In October 2007, he was found unfit to stand trial. In December 2009, at a discharge hearing, the trial court found defendant "not not guilty" of several of the charged offenses. The court ordered defendant's treatment extended to October 12, 2010. In September 2010, the State filed a motion to commit defendant to the Department pursuant to section 104-25(g)(2) of the Code, and, after a hearing, the trial court committed defendant to the Department. While defendant is committed under section 104-25(g)(2), he is entitled to a review of his status and treatment needs every 180 days pursuant to section 104-25(g)(2)(i). People v. Olsson, 2012 IL App (2d) 110856, ¶ 6.
¶ 5 On May 5, 2014, the trial court conducted its ninth section 104-25(g)(2)(i) hearing in defendant's case. Defendant was not present. According to the affidavit of defendant's treating psychiatrist, Dr. Richard Malis, defendant refused to attend the hearing after being informed of the court date. Over defense counsel's objection, the trial court ruled that defendant validly waived his right to be present.
¶ 6 Dr. Malis was the only witness who testified. According to Dr. Malis, defendant was mentally ill in that he suffered from pedophilia. Dr. Malis explained that defendant met the clinical criteria for that diagnosis, because he had "multiple incidents of sexually inappropriate behaviors with children under the age of 12 that spanned more than a six-month period," he was over 16 years old at the time, and his victims were more than five years younger than he was. Dr. Malis opined that defendant required inpatient hospitalized treatment, because he "continue[d] to be a danger due to his untreated pedophilia." Dr. Malis said that the fact that
defendant's victims were male increased the risk of repeat offending behavior. Furthermore, Dr. Malis opined that defendant "would be likely to inflict harm upon others if he were to be released."
¶ 7 The court then questioned Dr. Malis regarding defendant's refusal to cooperate with the recommended treatment plan. Asked whether there was anything that could be done to encourage defendant to participate in sex offender treatment, Dr. Malis responded, "I mean if I thought of it I would have probably tried it." Dr. Malis explained that there are treatment centers focused solely on sex offender treatment, but he did not believe that defendant was eligible to be treated at those facilities given that he has been remanded to the custody of the Department pursuant to section 104-25(g)(2) of the Code.
¶ 8 Defense counsel's cross-examination of Dr. Malis focused on the decision to diagnose defendant based on the standards of the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, Text Revision (DSM-IV-TR) rather than the DSM-V. Dr. Malis testified that he had "not reviewed all of the specifics of DSM-V as how [sic] they apply to sex offender evaluation and treatment." He explained that "we have not adopted DSM-V yet," but it was not clear from his testimony whether such change would be made at the state level or come from changes to the Medicare guidelines.
¶ 9 At the conclusion of the evidence, the State argued to the court: "We've met our burden in this hearing. Based on the witness' testimony that [defendant is] currently mentally ill specifically with pedophilia, * * * it's necessary ** for [defendant] to have hospitalized mental health treatment." The State also argued that Dr. Malis' testimony showed that defendant was "reasonably expected to inflict serious physical harm upon himself or others in the future if the
Court releases him." In response, defense counsel criticized the fact that defendant appeared to be warehoused, stating: "I don't know what else to do but we need to do it."
¶ 10 The court reviewed the treatment plan report dated May 5, 2014, submitted by Elgin Mental Health Center, in which the treatment team opined that defendant was making an effort to spend his time there rather than in the Illinois Department of Corrections. The court disagreed with that assessment, stating: "It's hard for this Court to look at that and say anybody that would raise their [sic] hand and say leave me in Elgin for up to 30 years is anything but mentally ill." The court found that defendant "constitutes a serious threat to public safety" and remanded him to the Department for further treatment. The court's written order likewise indicates that the court found that defendant "constitutes a serious threat to the public safety." Defendant timely appeals.
¶ 11 II. ANALYSIS
¶ 12 As an initial matter, the State urges us to dismiss the appeal as moot, arguing that the 180 day time period following the May 5, 2014, order has passed. "An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party." (Internal quotation marks omitted.) In re Merrilee M., 409 Ill. App. 3d 983, 984 (2011). We disagree that we cannot grant effectual relief to defendant. In Olsson, 2012 IL App (2d) 110856, we held that it was error for the trial court to proceed without treatment plan reports that complied with the statute, and we remanded for a new hearing pursuant to section 104-25(g)(2)(i). Olsson, 2012 IL App (2d) 110856, ¶¶ 18, 25. Additionally, we have explicitly rejected the State's mootness argument on numerous occasions. See People v. Olsson, 2013 IL App (2d) 130603-U, ¶ 7 (summary order); People v. Olsson, 2013 IL App (2d)
121418-U, ¶ 12 (summary order); People v. Olsson, 2013 IL App (2d) 121036-U, ¶ 7 (summary order); People v. Olsson, 2012 IL App (2d) 120634-U, ¶ 4 (summary order). If, as defendant claims, the trial court made improper findings at the May 5, 2014, hearing, the appropriate relief could be to reverse and remand for a new hearing, as we have done in the past.
¶ 13 The State also argues that defendant forfeited his right to argue on appeal that the trial court made improper findings by failing to raise the issue in the trial court. In this case, any objection to the court's findings could only have been made in a motion to reconsider the judgment. In People v. Waid, 221 Ill. 2d 464, 472 (2006), our supreme court held that discharge hearings pursuant to section 104-25 of the Code are civil rather than criminal in nature, and the court's jurisdiction fell under the rules for civil appeals. The court reasoned that it is unconstitutional to prosecute a defendant who is unfit to stand trial, that a discharge hearing is an "innocence only" hearing rather than a criminal prosecution, and that the issue of guilt is deferred until such time as the defendant is fit to stand trial. Waid, 221 Ill. 2d at 470-01. It follows that hearings pursuant to section 104-25(g)(2)(i) of the Code are civil in nature as well, because only defendants who remain unfit to stand trial after the extended period of treatment authorized by section 104-25(d) are subject to such proceedings. According to Illinois Supreme Court Rule 366(b)(3)(ii) (eff. Feb. 1, 1994), defendant's failure to file a postjudgment motion does not limit our review. The State cites People v. Lang, 113 Ill. 2d 407, 469 (1986), but that case is distinguishable, because it did not involve the forfeiture of an argument that the trial court made improper findings. Therefore, we reject the State's suggestion that defendant forfeited his argument by failing to raise it in the trial court.
¶ 14 We now turn to the merits of the case. Defendant argues that the trial court erred in failing to specifically find that the State proved that he was subject to admission under the
Mental Health and Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2012)). He observes that section 104-25(g)(2) of the Code provides, in part: "If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the [Mental Health Code] or constitutes a serious threat to the public safety." (Emphasis added.) 725 ILCS 5/104-25(g)(2) (West 2012). He also notes that the court in People v. Young, 287 Ill. App. 3d 394, 398 (1997), interpreted the language "constitutes a serious threat to the public safety" in section 104-25(g)(2) to "refer to circumstances in which a person is unfit, but for reasons of physical and not mental disability." Defendant argues that, because he has never been found unfit due to a physical ailment, the trial court erred in finding that he "constitutes a serious threat to the public safety."
¶ 15 In response, the State argues that, taken in context, the trial court's comments indicate that it actually found defendant to be subject to involuntary admission under the Mental Health Code, not merely a threat to the public safety. This case requires us to interpret the language of section 104-25(g)(2), and our review is de novo. People v. Orengo, 2012 IL App (1st) 111071, ¶ 22.
¶ 16 We reject defendant's argument. Both defendant and the State focus on the incorrect portion of section 104-25. Specifically, the parties dispute whether the trial court made a proper finding under section 104-25(g)(2). The standard that the parties cite applies when a trial court initially remands an unfit defendant to the Department at the expiration of the extended period of treatment authorized by section 104-25(d) of the Code. See Olsson, 2012 IL App (2d) 110856, ¶ 6 ("Section 104-25(g)(2) *** provides for the continued commitment of the defendant if he or she remains unfit at the end of the extended treatment period under section 104-25(d)."). The standard for commitment under section 104-25(g)(2) is that the defendant "is subject to
involuntary admission under the [Mental Health Code] or constitutes a serious threat to the public safety." 725 ILCS 5/104-25(g)(2) (West 2012); see also Waid, 221 Ill. 2d at 471; Olsson, 2012 IL App (2d) 110856, ¶ 6.
¶ 17 As previously noted, several years ago, defendant was remanded to the Department pursuant to section 104-25(g)(2) following the extended period of treatment. On May 5, 2014, the matter came before the court for the ninth hearing pursuant to section 104-25(g)(2)(i), not for a hearing to initially remand defendant to the Department pursuant to section 104-25(g)(2). At a section 104-25(g)(2)(i) hearing, the statute instructs that the trial court "shall make a finding as to whether the defendant is: (A) subject to involuntary admission; or (B) in need of mental health services in the form of inpatient care; or (C) in need of mental health services but not subject to involuntary admission nor inpatient care." 725 ILCS 5/104-25(g)(2)(i)(A-C) (West 2012); see also People v. Taylor, 2013 IL App (3d) 110876, ¶ 15; Olsson, 2012 IL App (2d) 110856, ¶ 6. Neither defendant nor the State raise arguments as to whether the trial court made proper findings under this provision of the statute.
¶ 18 The problem is further compounded by the fact that the trial court's written order more closely resembles an initial commitment order under section 104-25(g)(2) than an order pursuant to section 104-25(g)(2)(i). Nowhere in the written order or in its statements on the record did the trial court explicitly make any finding mirroring the language of the findings enumerated in section 104-25(g)(2)(i)(A-C).
¶ 19 Nevertheless, it is clear that the trial court had in mind that defendant was "in need of mental health services in the form of inpatient care" within the meaning of section 104-25(g)(2)(i)(B). In fact, the trial court has made that specific finding at prior section 104-25(g)(2)(i) hearings. See Olsson, 2012 IL App (2d) 110856, ¶¶ 11-13 (noting that the trial court
made such finding on August 1, 2011, and November 21, 2011, also finding defendant to be "subject to involuntary admission" under section 104-25(g)(2)(i)(A)); People v. Barichello, 305 Ill. App. 3d 13, 22 (1999) (observing that the phrase "in need of mental health services in the form of inpatient care" under section 104-25(g)(2)(i)(B) has the same meaning as the phrase "[i]n need of mental health services on an inpatient basis," which is defined in section 5-2-4 of the Unified Code of Corrections (730 ILCS 5/5-2-4 (West 1996)).
¶ 20 The uncontested evidence at the May 5, 2014, hearing showed that defendant is: mentally ill in that he suffers from pedophilia; non-compliant with his treatment plan; likely to inflict harm upon others if he were to be released; and in need of inpatient hospitalized treatment. In its argument to the trial court, the State similarly urged that defendant was "currently mentally ill specifically with pedophilia," that he needed "hospitalized mental health treatment," and that he was "reasonably expected to inflict serious physical harm upon himself or others in the future if the Court releases him." Defendant did not dispute in the trial court—and he does not dispute now—that the State proved by clear and convincing evidence that he is "in need of mental health services in the form of inpatient care" as that term is used in section 104-25(g)(2)(i)(B). In light of Dr. Malis' uncontested testimony, the trial court could not reasonably have concluded otherwise. Indeed, the trial court specifically found defendant to be mentally ill, rejecting the treatment staff's suggestion that he was making an effort to spend his time at Elgin Mental Health Center rather than in the Illinois Department of Corrections. Under these unique circumstances, we cannot conclude that the trial court's failure to articulate its findings in the precise language of section 104-25(g)(2)(i)(B) requires us to remand the matter for a new hearing.
¶ 21 Going forward, we urge the trial court to ensure that its oral and written findings at section 104-25(g)(2)(i) hearings conform to the language of section 104-25(g)(2)(i)(A-C). Upon reviewing our orders and opinions from defendant's prior appeals, it appears that the trial court has made findings that defendant "constitutes a serious threat to the public safety" at several other 104-25(g)(2)(i) hearings, although those findings have not been criticized on appeal until now. For the sake of clarity, it is imperative that the parties confine their arguments, and the trial court couch its findings, in the terms used in the appropriate section of the statute.
¶ 22 III. CONCLUSION
¶ 23 For the reasons stated, we affirm the judgment of the trial court.
¶ 24 Affirmed.