People v. Howe

2018 IL App (4th) 170576-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES G. HOWE, Defendant-Appellant.

NO. 4-17-0576

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

September 11, 2018

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 Scott County

No. 12CF9

Honorable John P. Schmidt, Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court.

Justices Steigmann and Cavanagh concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding the trial court did not abuse its discretion in (1) quashing defendant's subpoena duces tecum issued in a proceeding to revoke the conditional release of a sexually dangerous person, (2) denying his motion to continue the hearing, and (3) finding he failed to comply with treatment and possessed an Internet-capable device in violation of the terms of his conditional release.

¶ 2 In June 2017, the State filed a petition to revoke the conditional release of defendant, James G. Howe. Defendant filed a subpoena duces tecum, which was quashed, and a motion for a continuance, which was denied. Defendant proceeded to a hearing on the petition to revoke his conditional release, and the trial court found defendant in violation of his conditional release. The court revoked defendant's conditional release and remanded him to the custody of the Illinois Department of Corrections.

¶ 3 On appeal, defendant argues the trial court erred in (1) quashing his subpoena duces tecum, (2) denying his motion for a continuance, and (3) finding he failed to comply with treatment and possessed an Internet-capable device. We affirm.

¶ 4 I. BACKGROUND

¶ 5 In July 2012, defendant was charged by the State with aggravated criminal sexual assault, a Class X felony, and domestic battery, a Class 4 felony, due to a prior conviction for violation of an order of protection. In October 2012, the State filed a petition to proceed and for evaluations under the Sexually Dangerous Persons Act (725 ILCS 205/0.01 to 12 (West 2012)). In the petition, the State alleged defendant was suffering from a mental disorder that was coupled with criminal propensities to commit sexual offenses. It further alleged defendant had demonstrated propensities toward acts of sexual assault or sexual molestation of children and that he was a sexually dangerous person. The State contended defendant was a sexually dangerous person under the Sexually Dangerous Persons Act and sought evaluations to make that determination. The court ordered the evaluations in October 2012.

¶ 6 Based upon the written psychiatric evaluations submitted to the court, the State petitioned for defendant to be declared a sexually dangerous person in January 2013. Subsequent to a bench trial in October 2013, the court found defendant to be a sexually dangerous person, and he was committed to the custody of the Illinois Department of Corrections for treatment. On direct appeal, the trial court's finding that defendant was a sexually dangerous person was upheld in November 2014. See People v. Howe, 2014 IL App (4th) 140054, 21 N.E.3d 775.

¶ 7 Defendant filed a pro se petition for discharge or conditional release (recovery petition) pursuant to sections 9 and 10 of the Sexually Dangerous Persons Act (725 ILCS 205/9, 10 (West 2014)) in January 2015. The trial court appointed counsel to represent defendant in hisrecovery petition and the matter proceeded to a jury trial in January 2016, wherein the jury returned a verdict finding defendant "appears to be no longer sexually dangerous" and was subject to conditional release. As a recovery proceeding under the Sexually Dangerous Persons Act is civil in nature, the State filed a motion for judgment notwithstanding the verdict, which was denied, and defendant was conditionally released in February 2016 pursuant to an order for conditional release. The order contained 36 conditions for defendant to follow in order to avoid recommitment. Attached to the order was a document entitled "Certification of Compliance with Conditions of Release," containing each of the 36 paragraphs individually initialed and signed by defendant, acknowledging his awareness of each condition and agreement to comply therewith.

¶ 8 In June 2016, four months after defendant's release, the State filed a petition to revoke his conditional release, alleging a number of violations. After a hearing in February 2017, the trial court denied the petition, finding the State failed to prove the allegations by a preponderance of the evidence. Defendant was returned to his conditional release under the same terms as previously set forth.

¶ 9 In June 2017, the State filed a petition to revoke defendant's conditional release, alleging defendant (1) failed to complete sex-offender treatment in that he was unsuccessfully discharged; (2) failed to attend a polygraph examination on May 16, 2017; (3) traveled to his parents' and grandparents' residence on 38 occasions without authorization; and (4) entered a geographical location he was forbidden to enter. On June 14, 2017, defendant filed a subpoena duces tecum, which requested "[a]ny and all records relating to the supervision of [defendant] from February 22, 2017, to present, and any and all correspondence (including email) between [the Corrections Senior Parole Agent] and [defendant's therapist] relating in any way to [defendant] from February 22, 2017, to present." Eight days after the original petition, the Statefiled an amended petition to revoke defendant's conditional release, adding allegations that defendant (1) obtained a cell phone not reported to his parole agent, (2) accessed the Internet without authorization, (3) made many inappropriate sexual comments to female coworkers while on conditional release, and (4) refused to take a drug test on June 15, 2017. The day after filing the amended petition, a supplement to the amended petition to revoke defendant's conditional release was filed, which added allegations stating defendant began a dating relationship without prior written notice to his parole agent and was verbally, mentally, physically, and sexually abusive. Prior to the hearing on the petition to revoke his conditional release, the trial court heard arguments on the subpoena duces tecum and the State's subsequent motion to quash the subpoena. The court granted the motion to quash, stating, "we're here on a petition to revoke conditional release. It's been clearly laid out in the petition what the alleged violations are. This subpoena would—these records, any and all, is way over broad and quite frankly as the case law says a fishing expedition." After the hearing on the amended petition, the court found defendant failed to complete treatment, had possession of a cell phone, entered a forbidden geographical area, and refused a drug test. The court revoked the conditional release and returned defendant to the custody of the Illinois Department of Corrections.

¶ 10 This appeal followed.

¶ 11 II. ANALYSIS

¶ 12 A. Subpoena Duces Tecum

¶ 13 Defendant argues the trial court erred in quashing his subpoena duces tecum, claiming defendants in a conditional release revocation hearing pursuant to the Sexually Dangerous Persons Act are allowed to file a subpoena duces tecum in lieu of formal discovery.

¶ 14 Despite defendant's contentions, the trial court made no finding on the applicability of a subpoena duces tecum but instead stated the subpoena was "way over broad and quite frankly as case law says a fishing expedition." Defendant unconvincingly argues there is nothing to bar the court from granting a subpoena duces tecum, but that issue is not before us. As "Illinois judges have no authority to issue advisory opinions" (Howlett v. Scott, 69 Ill. 2d 135, 143, 370 N.E.2d 1036, 1039 (1977)), we focus instead on the issue properly brought before this court, which is whether the trial court abused its discretion in denying the subpoena.

¶ 15 A trial court's decision to quash a subpoena duces tecum is reviewed for an abuse of discretion. See People v. Brummett, 279 Ill. App. 3d 421, 425, 664 N.E.2d 1074, 1078 (1996). "An abuse of discretion occurs only when the trial court's ruling is arbitrary, fanciful, or unreasonable or when no reasonable person would take the same view." People v. Vannote, 2012 IL App (4th) 100798, ¶ 24, 970 N.E.2d 72.

"A subpoena duces tecum will be quashed if the requesting party fails to show: (1) that the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) that the requesting party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and is not intended as a general 'fishing expedition.' " People v. Cannon, 127 Ill. App. 3d 663, 665, 469 N.E.2d 375, 377 (1984) (quoting United States v. Nixon, 418 U.S. 683, 700 (1974)).

¶ 16 In the subpoena, defendant requested "[a]ny and all records relating to the supervision of [defendant] from February 22, 2017, to present, and any and all correspondence (including email) between [the Corrections Senior Parole Agent] and [defendant's therapist] relating in any way to [defendant] from February 22, 2017, to present." The trial court asked defendant what he was seeking in the subpoena. After the court acknowledged its familiarity with the standard applicable to a motion to quash a subpoena duces tecum, the court ruled the subpoena was overbroad. Defendant argues this point without citation to either the record or supporting authority, relying instead on general due process claims. He thereby waives argument on this issue, and nothing within the record leads us to believe the court abused its discretion in its ruling. See People v. Hood, 210...