People v. Olsson

50 N.E.3d 731

401 Ill.Dec. 589

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Paul OLSSON, Defendant–Appellant.

No. 2–15–0874.

Appellate Court of Illinois, Second District.

March 14, 2016.

Keith Grant, of Lake County Public Defender's Office, Waukegan, for appellant.

Michael G. Nerheim, State's Attorney, Waukegan (Lawrence M. Bauer and Diane L. Campbell, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice ZENOFF delivered the judgment of the court, with opinion.

¶ 1 Defendant, Paul Olsson, appeals from an order entered by the circuit court of Lake County on July 23, 2015, 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 2014)). For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 In 2005, defendant was charged with sex offenses involving children and was later found unfit to stand trial. Following a discharge hearing (see 725 ILCS 5/104–25(a) (West 2014)), the court found defendant “not not guilty” of several of the charged offenses, including predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2008)) and aggravated criminal sexual abuse (720 ILCS 5/12–16 (West 2008) ), and ordered an extended period of treatment (see 725 ILCS 5/104–25(d) (West 2014)). At the expiration of that extended treatment period, the court remanded defendant to the Department for further treatment pursuant to section 104–25(g)(2) of the Code. Section 104–25(g)(2) “provides for the potentially long-term commitment of a criminal defendant who has been found unfit to stand trial and for whom treatment to attain fitness has been unsuccessful.” People v. Olsson, 2012 IL App (2d) 110856, ¶ 1, 366 Ill.Dec. 181, 979 N.E.2d 982.

¶ 4 During the section 104–25(g)(2) period of treatment, the facility director must file a typed treatment plan report with the court every 90 days. 725 ILCS 5/104–25(g)(2) (West 2014). The parties may request a review of the treatment plan or the court may order such a review on its own motion. 725 ILCS 5/104–25(g)(2) (West 2014). The court must, however, hold a hearing every 180 days to 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) (West 2014).

¶ 5 On July 16, 2015, the trial court conducted a hearing in defendant's case pursuant to section 104–25(g)(2)(i) of the Code. Defendant was not present. According to the affidavit of defendant's treating psychiatrist, Dr. Usha Kumari Kartan, defendant refused to attend the hearing. Over defense counsel's objection, the hearing proceeded in defendant's absence.

¶ 6 Dr. Kartan was the only witness who testified. Without objection from defense counsel, the court found Dr. Kartan to be an expert in psychiatry and forensic psychiatry. Although defendant had resided at the Elgin Mental Health Center since approximately the summer of 2010, he had been only recently assigned to Dr. Kartan. Prior to April 2015, Dr. Richard Malis was defendant's treating psychiatrist. Dr. Kartan testified that she met with defendant two or three times per week until she “was able to get information to her satisfaction.” However, according to Dr. Kartan, information has been coming in piece-by-piece, as defendant is not cooperating with treatment. Aside from these meetings, she also observes defendant on the unit several times daily. When she became defendant's treating psychiatrist, she reviewed his chart, which contains evaluations from the past five years.

¶ 7 Dr. Kartan testified that she was aware of sex crimes that defendant had committed against several individuals in 2004 and 2005. She opined that defendant is mentally ill and has “several disorders.” The first is pedophilic disorder, and the second is depressive disorder, not otherwise specified. There is also “suspected malingering.” According to Dr. Kartan, defendant “falls into textbook description of pedophilic disorder” and “definitely is in need of continued inpatient treatment.” She explained that defendant is uncooperative and disputes his diagnosis of pedophilic disorder. Instead, he “considers himself [as] being depressed or having an anxiety disorder.” In her opinion, defendant poses a danger to public safety “because this illness has not been treated.”

¶ 8 On cross-examination, Dr. Kartan testified that she wants to rule out malingering. Defendant had been diagnosed with pedophilic disorder by Dr. Malis, and she agreed with the diagnosis. She acknowledged that it was “a suspected possibility” that defendant was “malingering as to the diagnosis of pedophilia,” and malingering was a rule-out diagnosis. Dr. Kartan explained that defendant is willing to take certain medications, including Abilify (an antipsychotic and antidepressant), which he took briefly in April 2015. Defendant is also taking Wellbutrin and Lorazepam. According to Dr. Kartan, defendant has a “negative attitude towards Dr. Malis because he is a male figure and * * * an authority figure.” Defendant is “much more comfortable working with woman [sic ].” Nevertheless, although she would meet with defendant for “hours at times,” he “has been uncooperative from the very start” and “selective in reporting.” Defendant “is not cooperative with treatment” or her efforts to evaluate him. Dr. Kartan testified that defendant is “afraid to come to court” and “afraid of the label that has been enforced [sic ] on him.” She acknowledged that treatment is at a standstill because defendant's acknowledgment of his symptoms is necessary for proper treatment. According to Dr. Kartan, a patient must be willing to get well and take the lead. No plan can be effective unless the patient wants help and collaborates for that change.

¶ 9 In his closing argument, defense counsel asserted that the evidence showed that there was “a very real possibility that [defendant] is misrepresenting his symptomatology in such a way that skews” the pedophilia diagnosis. The court then asked defense counsel what the Elgin Mental Health Center should do with a young man who “does nothing to avail himself of any kind of treatment.” Defense counsel responded: “Treat him.” When asked how that could be done, defense counsel replied: “With the state-of-the-art medical training that they have received. With the psychiatric knowledge that you [the judge] and I both lack.” During the ensuing colloquy between the court and defense counsel, counsel mentioned that he did not think that defendant's treatment team could determine that he suffered from pedophilia, given that “they are not even sure if he is malingering or not.” According to defense counsel, the treatment team is not treating defendant and never would. The court continued the matter to July 23, 2015, for ruling.

¶ 10 On July 23, 2015, the court remanded defendant to the Department for further treatment, finding that he “continues to have some serious threat to public safety.” Defense counsel then raised the issue of malingering again. The court asked defense counsel whether he wanted the court to direct the Department to evaluate defendant for malingering. Defense counsel responded that “some analysis of that should be done,” given that there was a question as to the validity of the pedophilia diagnosis. After a continued colloquy, the court indicated that it would order the Department to evaluate defendant for malingering if defense counsel so requested. Defense counsel replied, in relevant portion, that there was some confusion as to defendant's diagnosis that needed to be cleared up, and “[i]f the court is going to do that by conducting a malingering evaluation * * * then so be it.”

¶ 11 The court added the following language to its written order:

“DHS shall conduct an examination to determine if Mr. Olsson is malingering with respect to any diagnosis made by any physician that has treated Mr. Olsson while in the care and custody of the DHS. The results of that examination shall be made available to the parties within 30 days of the entry of this order.”

The court set a date in September 2015 for status on the Department's efforts to determine whether defendant is malingering. Additionally, the court set a date in January 2016 for review of the treatment plan and a hearing pursuant to section 104–25(g)(2)(i) of the Code.

¶ 12 Defendant filed a timely pro se notice of appeal, and appellate counsel (the same attorney who represented him in the trial court) was appointed on his behalf.

¶ 13 II. ANALYSIS

¶ 14 As an initial matter, the State contends that the case is moot because the 180–day treatment period authorized by the July 23, 2015, order has expired and because the next scheduled review hearing has already occurred. We reject this argument, as we have every time the State has raised it. So long as defendant remains committed pursuant to section 104–25(g)(2) of the Code, the mere passage of time does not render his appeals moot. See People v. Olsson, 2015 IL App (2d) 140955, ¶ 14, 393 Ill.Dec. 869, 35 N.E.3d 641 ; People v. Peterson, 404 Ill.App.3d 145, 149–50, 343 Ill.Dec. 895, 935 N.E.2d 1123 (2010) (in an appeal following a discharge hearing, the matter was not moot, because the record did not foreclose the possibility that the defendant had subsequently been committed pursuant to section 104–25(g)(2) of the Code, and “[t]he matter could not be moot while he remained committed”).

¶ 15 As another preliminary matter, during the briefing of this appeal, the State moved to strike numerous argumentative portions of defendant's statement of facts. We ordered the motion to be taken with the case. Illinois Supreme Court Rule 341(h)(6) (eff. Jan. 1, 2016) provides, in relevant portion, that a...