In re Commitment of Blakey

Opinion

Filed 5/1/08 NO. 4-07-0438

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Commitment of ) Appeal from ROBERT W. BLAKEY, a Sexually Violent ) Circuit Court of Person, ) Sangamon county THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 04MR112 Plaintiff-Appellee, ) v. ) Honorable ROBERT W. BLAKEY, ) Leo J. Zappa, Jr., Defendant-Appellant. ) Judge Presiding. _________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

In an 18-month reevaluation report performed in March

2007, Dr. Robert Brucker recommended that respondent, Robert W.

Blakey, should (1) continue to be found a sexually violent person

and (2) be ordered to conditional release in the community as

long as he demonstrates a willingness to cooperate with his plan.

On March 28, 2007, the State filed a motion for a finding of no

probable cause under section 65(b)(1) of the Code of Criminal

Procedure of 1963 to warrant an evidentiary hearing to determine

whether Blakey is still a sexually violent person (725 ILCS

207/65(b)(1) (West 2006)). On April 27, 2007, the trial court

conducted a probable-cause hearing to determine whether a further

evidentiary hearing was necessary to determine whether Blakey was

still a sexually violent person or whether Blakey was ready to be

conditionally released. The court heard argument from the

attorneys regarding the contents of Dr. Brucker's report. In a

written order that same day, the trial court entered an order

finding no probable cause to warrant a further evidentiary hearing. Blakey appeals, arguing that, based on Dr. Brucker's

second recommendation, probable cause existed to warrant an

evidentiary hearing to determine whether Blakey has made suffi-

cient progress to be conditionally released or discharged. We

affirm.

I. BACKGROUND

A. Underlying Offense and Treatment History

In July 1999, Blakey pleaded guilty in Sangamon County

circuit court to predatory criminal sexual abuse, and the court

sentenced Blakey to 12 years' imprisonment. People v. Blakey,

No. 98-CF-571 (Sangamon County, July 1999). Blakey, age 32 in

1999, molested three family members who were under the age of 13.

While in pretrial custody, Blakey bragged about the molestations

to fellow inmates, referring to himself as the "iceman" because

he was too slick to get caught. Blakey also told inmates that he

did not regret his actions and that he planned on getting a job

at a day care where he would be "a lot slicker" so as not to get

caught the next time. Blakey continues to admit his actions and

has recently told psychiatrists that, over the years, he has

molested 10 females and males, aged 2 to 11.

In 1999, Blakey was given the opportunity to partici-

pate in a sex-offender treatment program but refused. In 2001,

Blakey agreed to participate in the program. Blakey received

treatment in the program from 2001 to 2003. However, Dr. Timothy

Lawrence, a group therapist for the program, informed Blakey's

subsequent psychiatrist that:

- 2 - "[Blakey's] emotional commitment and involve-

ment in [the program] was minimal. Progress

was considered to be poor. [Blakey] was clin-

ically viewed as an immature,

non[]compliant[] participant in the group

process. *** [He has] a poor prognosis for

community adjustment."

After receiving the aforementioned sex-offender treatment in the

prison, Blakey apparently failed a subsequent screening process

and was referred for detention with the Department of Health and

Human Services.

In March 2004, after being in prison for less than five

years, the State filed a petition to commit respondent pursuant

to the Sexually Violent Persons Commitment Act (725 ILCS 207/1

through 99 (West 2004)). Following a mid-2005 bench trial, the

trial court adjudicated Blakey a sexually violent person and

committed Blakey to the Department of Health and Human Services

for control, care, and treatment until the court determined

Blakey to no longer be a sexually violent person. Blakey did not

appeal the adjudication.

On March 17, 2006, Dr. Brucker performed a section 55

six-month reevaluation (725 ILCS 207/55 (West 2006) (requiring

periodic reevaluations of committed persons)). Dr. Brucker noted

that Blakey had stopped participating in the "CORE" treatment

program and failed to participate in any sex-offender-specific

treatment program during the six-month evaluation period.

- 3 - Instead, Blakey was, in a sense, demoted to a therapy program

entitled "POWER to Change," which was designed for offenders who

struggled in the sexual-offense-specific programs. Dr. Brucker

recommended that Blakey continue to be found a sexually violent

person and remain committed to a secure facility for sex-offender

treatment.

B. The Section 55 18-Month Reevaluation

In March 2007, Dr. Brucker performed the 18-month

reevaluation pursuant to section 55 that is at issue in the

instant appeal. 725 ILCS 207/55 (West 2006). The evaluation

concluded that Blakey continued to suffer from a mental disorder,

namely pedophila (sexually attracted to both genders, nonexclu-

sive type), combined with a personality disorder (not otherwise

specified, with antisocial traits). Dr. Brucker stated that "due

to [Blakey's] mental disorders, it [is] substantially probable

that [Blakey] will engage in future acts of sexual violence."

Dr. Brucker performed several psychological tests on

Blakey, which revealed that Blakey (1) had fantasies about

sexually touching children and found the idea of touching chil-

dren to be slightly arousing; (2) strongly disagreed with the

statement, "sex between a 13-year-old (or younger) child and an

adult causes the child emotional problems"; (3) demonstrated

significant sexual interest in preschool, adolescent, and adult

females; and (4) demonstrated significant sexual interest in

sexual stories involving male and female infants, male (coercive

and persuasive storylines) and female (persuasive) preschool

- 4 - children, male (coercive) and female (coercive and persuasive)

grammar-school children, and female teens (persuasive). Dr.

Brucker believed that Blakey attempted to interfere with response

patterns on these tests in 9 of 22 segments.

Since the last evaluation, Blakey continued to partici-

pate in the POWER treatment program, but still had not partici-

pated in the sex-offender-specific CORE treatment program.

Blakey told Dr. Brucker that, through the POWER program, he had

improved his anger-management skills, his ability to analyze his

feelings, and his relationships with other residents.

Based on the reevaluation, Dr. Brucker recommended that

Blakey should (1) continue to be found a sexually violent person,

and (2) be ordered to conditional release in the community as

long as he demonstrates a willingness to cooperate with his plan.

Concurrent with the section 55 reevaluation, Blakey received

notice stating:

"If you do not sign [a] waiver form, the

[c]ourt [will] begin the process it must

follow to determine if you have made enough

progress to be conditionally released or

discharged. This means the [c]ourt will set

a probable[-]cause hearing where it will be

reviewing the examiner's report of your exam-

ination. *** If the [c]ourt believes you

have made enough progress to be transferred

to conditional release or discharge, a full

- 5 - hearing will be set."

Following the 18-month reevaluation, Blakey did not file a

petition for conditional release or a petition for discharge.

However, he also never signed a waiver of his right to petition

for conditional release or discharge. Because Blakey did not

sign the waiver, the matter was set for a probable-cause hearing

to determine whether an evidentiary hearing was necessary to

determine if Blakey was still a sexually violent person. 725

ILCS 207/65(b)(1) (West 2006) (requiring a probable-cause hearing

where the committed person does not sign a waiver of his right to

petition for discharge following a section 55 reevaluation).

C. Probable-Cause Hearing

On March 28, 2007, the State filed a motion for a

finding of no probable cause to warrant an evidentiary hearing to

determine whether Blakey remained a sexually violent person

pursuant to section 65(b). 725 ILCS 207/65(b) (West 2006). The

State erroneously stated in the petition that Dr. Brucker recom-

mended continued commitment in a secured facility, and attached

Dr. Brucker's 18-month reevaluation.

On April 27, 2007, the trial court conducted the

probable-cause hearing. At the conclusion of the hearing, the

trial court stated:

"I've never seen so much factual information

so [inconsistent with the] final outcome [of

a recommendation for conditional release] ***

[it's] unbelievable. *** Sorry, this man is

- 6 - not ready for conditional release."

In its written order, the court held that there was no probable

cause to warrant an evidentiary hearing to determine whether

Blakey was still a sexually violent person pursuant to section

65. 725 ILCS 207/65 (West 2006). The court also stated that

there was no probable cause to hold an evidentiary hearing to

determine whether Blakey was ready for conditional release, but

the court did not refer to any section in the statute in so

stating. This appeal followed.

II. ANALYSIS

On appeal, Blakey argues that the trial court erred

when it found no probable cause to warrant an evidentiary hearing

to determine whether Blakey had made sufficient progress to be

conditionally released or discharged. Blakey argues that, under

section 65(b)(1), the court may only consider the reevaluation

report and the argument of both parties. 725 ILCS 207/65(b)(1)

(West 2006). Because Dr. Brucker's reevaluation recommendation

was that the court order that Blakey was ready for conditional

release, Blakey contends the trial court abused its discretion in

declining to find probable cause to proceed to an evidentiary

hearing on the matter. See In re Ottinger, 333 Ill. App. 3d 114,

120, 775 N.E.2d 203, 208 (2002) (generally noting that the trial

court's decision not to proceed to an evidentiary hearing follow-

ing a probable-cause hearing is reviewed only for abuse of

discretion).

First, we note that Blakey points to the wrong section

- 7 - in the Sexually Violent Persons Commitment Act. Section 65,

entitled "Petition for discharge," governs probable cause to

warrant an evidentiary hearing to determine whether a person

should still be considered a sexually violent person. 725 ILCS

207/65 (West 2006). If a committed person receives a reevalua-

tion under section 55, as Blakey did, the person shall receive a

notice of his right to petition the court for discharge. 725

ILCS 207/65(b)(1), 55 (West 2006) (the Department shall conduct a

reevaluation every 12 months from the completion of the last

evaluation). If the person does not affirmatively waive the

right to petition for discharge, the court shall set a probable-

cause hearing to determine whether the facts warrant a further

hearing to determine whether the person is still a sexually

violent person. 725 ILCS 207/65(b)(1) (West 2006). Under

section 65, a person will be discharged from the custody and

supervision of the Department of Health and Human Services if he

is found at the evidentiary hearing to no longer be a sexually

violent person. 725 ILCS 207/65(b)(2),(b)(3) (West 2006).

However, in this case, both parties concede that Blakey is still

a sexually violent person. Therefore, it is Blakey's conditional

release, and not his discharge, that is contested, and an eviden-

tiary hearing under section 65 is not appropriate here.

Section 60, entitled "Petition for conditional re-

lease," governs the procedure for the court to follow in deter-

mining whether a sexually violent person may be conditionally

released. 725 ILCS 207/60 (West 2006). Blakey did not file a

- 8 - petition for conditional release. And, unlike section 65,

section 60 does not automatically provide for a probable-cause

hearing where the committed person takes no action following a

section 55 reevaluation. Nevertheless, assuming, arguendo, that

the question of whether Blakey should be conditionally released

was properly before the trial court at the probable-cause hearing

by virtue of the fact that Dr. Brucker recommended a conditional

release in the section 55 reevaluation and by virtue of the fact

that Blakey never signed the accompanying waiver, the trial court

was not required to find probable cause to warrant a further

evidentiary hearing. "If the court determines at the probable[-

]cause hearing that cause exists to believe that it is not

substantially probable that the person will engage in acts of

sexual violence if on release or conditional release, the court

shall set [an evidentiary] hearing on the issue." 725 ILCS

207/60(c) (West 2006).

Here, the trial court stated that nothing in the

reevaluation report supported Dr. Brucker's surprising recommen-

dation that Blakey was ready for conditional release, which

constituted Dr. Brucker's final sentence in the 24-page report.

In fact, just a few paragraphs prior to that somewhat startling

recommendation, Dr. Brucker specifically concluded that "due to

[Blakey's] mental disorders, it [is] substantially probable that

[Blakey] will engage in future acts of sexual violence." This

language mirrors the standard set forth in section 60(c), which

precludes conditional release under such circumstances. 725 ILCS

- 9 - 207/60(c) (West 2006). Dr. Brucker reported that Blakey still

held the distorted belief that it was not emotionally damaging

for a child under 13 years old to have sex with an adult.

Additionally, Dr. Brucker reported that Blakey had not yet

participated in any sex-offender-specific treatment programs,

making it difficult to understand why Dr. Brucker would recommend

conditional release as opposed to continued commitment in a

secured facility where Blakey could graduate to sex-offender-

specific treatment. Aside from the final sentence of Dr.

Brucker's report, the evidence overwhelmingly favored continued

commitment in a secured facility. The court was not required to

hold a further evidentiary hearing on the matter.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial

court's judgment.

Affirmed.

APPLETON, P.J., and STEIGMANN, J., concur.

- 10 -