In re Commitment of Phillips

857 N.E.2d 746

In re COMMITMENT OF Louis Gene PHILLIPS The People of the State of Illinois, Petitioner-Appellee, v. Louis Gene Phillips, Respondent-Appellant.

No. 5-05-0303.

Appellate Court of Illinois, Fifth District.

August 24, 2006.

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John M. Delaney, Jr., East Alton, Curtis L. Blood, Collinsville, for Appellant.

Lisa Madigan, Attorney General of Illinois, Gary Feinerman, Solicitor General, Linda D. Woloshin, Leah C. Myers, Assistant Attorneys General, Chicago, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

Louis Gene Phillips appeals from the trial court's April 20, 2005, order summarily dismissing three pending motions that sought a discharge, in various forms of relief, from his commitment as a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Sexually Violent Persons Act) (725 ILCS 207/1 et seq. (West 2002)). We affirm.

This appeal is not the direct appeal from the jury's February 7, 2001, finding that he is a sexually violent person. That appeal has already been heard and decided by this court. On October 29, 2002, in an order pursuant to Supreme Court Rule 23 (166 Ill.2d R. 23), we affirmed the jury's finding and Phillips' commitment to the Department of Human Services for control, custody, and treatment. In re Commitment of Phillips, 335 Ill.App.3d 1224, 297 Ill.Dec. 219, 836 N.E.2d 950 (2002) (unpublished order under Rule 23).

Phillips' convictions for sexual abuse and assault began many years ago. Complete details are missing from the record, but we know that the attacks occurred in both Oregon and Illinois and involved his two daughters. Phillips served some time in prison and also received probation relative to one or more of those charges.

Thereafter, on March 21, 1994, Phillips pled guilty to aggravated criminal sexual assault for the digital penetration of his granddaughter's vagina, for which he received an eight-year prison sentence. He served four years in prison on that conviction and was thereafter given a mandatory supervised release on July 30, 1997. There were certain rules and restrictions associated with this release, including the requirements that Phillips have no contact with children, drink no alcohol, and complete a sex-offender treatment program.

On May 3, 1999, a host-site visit was conducted by the Community Services Division of the Department of Corrections. The agent found Phillips intoxicated in this home and also found that Phillips was babysitting two six-year-old girls — one of whom was his granddaughter. The following day, Phillips' sex-offender treatment therapist discharged him from treatment. Phillips was then notified that he had violated all three of the above-specified conditions of his mandatory supervised release. Phillips returned to prison.

Phillips was scheduled to be released from prison on December 16, 1999. Two days prior to the scheduled discharge, the State filed a petition seeking to commit Phillips pursuant to the Sexually Violent Persons Act. In this petition, the State indicated that Phillips had been diagnosed with various mental disorders — pedophilia, alcohol dependency, and antisocial personality disorder. As indicated earlier in this opinion, a jury found that Phillips was a sexually violent person, and the court entered its order directing his treatment in a secure setting. We affirmed that judgment and the treatment order.

During the next three-plus years, Phillips filed numerous petitions and motions with the court — both pro se and with appointed counsel. Specifically, Phillips filed an October 8, 2002, motion asking the trial court to dismiss his disposition, grant him a new trial, or reconsider earlier court orders. On January 13, 2003, Phillips filed the same type of motion again, with additional or new authority. On July 17, 2003, Phillips filed a motion asking the court to declare the Sexually Violent Persons Act to be unconstitutional as applied to him. From the record, it appears that the three motions were denied. Phillips also was reevaluated at 6, 18, and 30 months after his commitment, and he filed two petitions for a conditional release — on July 12, 2002 (denied on February 11, 2004), and on March 16, 2005 (apparently still pending).

Phillips filed three additional motions, which are the subject matter of this appeal.

The first motion was filed on November 25, 2003, and was labeled "Respondent's Motion and Memorandum to Vacate Commitment as Unconstitutional in Violation of the Americans with Disabilities Act." In this motion, Phillips urged the court to vacate his commitment as unconstitutional in violation of the Americans with Disabilities Act of 1990 (Americans with Disabilities Act) (42 U.S.C. § 12101 et seq. (2000)). Specifically, Phillips complained about the adequacy of the treatment he was receiving, arguing that the "treatment" being provided violated his due process rights. Phillips also argued that he did not have access to rehabilitative services. Arguing case law from the State of Washington, Phillips contended that the State of Illinois was required to prove that he was guilty of a "recent overt act" in order to establish that he is a sexually violent person. Finally, he argues that his commitment violates the Americans with Disabilities Act in that he suffers from a disability — the mental disorder established to commit him as a sexually violent person — and that he is being discriminated against because he is not receiving treatment in an "appropriate community-based treatment program."

The second motion at issue in this appeal was filed on March 8, 2004. This motion was labeled "Respondent's Combined Motion to Dismiss the Civil Commitment Order Based Upon the Lack of a `Recent Overt Act' Prior to His Commitment, and Based on the Illinois Decision in People v. Gilford," and was absolutely identical to a motion filed earlier on September 8, 2003, upon which the trial court apparently never ruled. This motion also argues that Illinois should follow the law of the State of Washington relative to a requirement of a "recent overt act." Phillips interpreted and argued the case of People v. Gilford, 336 Ill.App.3d 722, 271 Ill.Dec. 287, 784 N.E.2d 841 (2002), vacated, 206 Ill.2d 630, 278 Ill.Dec. 814, 799 N.E.2d 679 (2003), as requiring a separate finding that he lacked control relative to a substantial probability of reoffending. Phillips argues that this separate finding was lacking in this case.

The third motion was filed on July 7, 2004, and was entitled "Motion for Relief from Judgment." The specific wording of this motion provides that Phillips was seeking relief from his judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)). The only issue raised in this motion appears to relate to the expert witness's testimony at his commitment trial. Specifically, Phillips objects to the actuarial-risk-assessment testimony offered by the State's experts. Phillips argues that the trial court's determination that the evidence and related testimony met the Frye test (Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) was incorrect. This motion lists no new facts discovered relative and subsequent to his commitment hearing.

At a motions hearing held in the trial court on August 19, 2004, the court mentioned the pending motions. To that point, the State had not filed any written response to any of the three motions. We also found no argument contrary to the motions in the transcripts included in the record on appeal. At this motion hearing, Judge Hackett brought the motions to the attention of the attorneys. He referenced an earlier hearing in 2004, but the transcript, if any, is absent from the record. The court represented that at this earlier hearing, the parties and the court had discussed motions one and two, which were then the only two pending. The parties were in agreement at that time that no further evidence was going to be submitted, and the trial court was supposed to go ahead and rule on those motions. With respect to the third motion, the State was granted 21 days to respond, after which Phillips would be granted an additional 7 days to reply. The court suggested that a hearing be scheduled — presumably regarding the third motion only, although the judge's comments do not specify whether it would relate to one motion or all of them. The State's counsel asked Phillips' counsel if he wanted to argue the motion(s) or "just let the Judge rule," to which Phillips' counsel stated, "I think we can do it based on the briefs." Any opportunity to argue the motions was therefore waived by both sides.

Thereafter, the State filed no response to the third motion. The trial court ultimately ruled solely on the basis of the arguments raised by Phillips in his motions. On April 18, 2005, the court summarily denied all three of these motions. From this order, Phillips timely appealed.

Only the third motion references section 2-1401 of the Code of Civil Procedure. On appeal, the parties urge us to consider all three motions as being filed pursuant to this procedural section.

The State urges us to do so because it claims that all three motions would have been filed outside the statutory limitations period. Section 2-1401(c) states, "[T]he petition must be filed not later than 2 years after the entry of the order or judgment." 735 ILCS 5/2-1401(c) (West 2002). The section provides an exception to the two-year period if the person seeking relief is found to have been under a legal disability or duress or if the ground for relief was fraudulently concealed.

Because the date of the judgment at issue was February 7, 2001, the time frame under which Phillips was operating expired on or about February 7, 2003. The three motions were filed on November 25, 2003, March 8, 2004, and July 7, 2004 — all well past the allowable statutory time frame. However, after examining the record, we conclude that...