People v. Wilcoxen (In re Commitment of Wilcoxen)

48 N.E.3d 277

In re COMMITMENT OF Ricky A. WILCOXEN (The People of the State of Illinois, Petitioner–Appellee,

v. Ricky A. Wilcoxen, Respondent–Appellant).

No. 3–14–0359.

Appellate Court of Illinois, Third District.

Jan. 27, 2016.

Curtis Lane, of Barnhart, Tinsman & Lane, Ltd., Canton, for appellant.

Lisa Madigan, Attorney General, Chicago (Michael M. Glick and Joshua M. Schneider, Assistant Attorneys General, of counsel), for the People.

OPINION

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

¶ 1 Respondent, Ricky A. Wilcoxen, appeals from the trial court's order that found probable cause did not exist to warrant an evidentiary hearing to determine if respondent was still a sexually violent person. We reverse and remand for further proceedings.

¶ 2 FACTS

¶ 3 In 1992, respondent was sentenced to serve 22 years in prison for attempted criminal sexual assault. Pursuant to sentencing guidelines in effect at the time, his scheduled release date was May 4, 2002. On April 30, 2002, five days before he was to be released, the State filed a petition to have respondent declared a sexually violent person. 725 ILCS 207/1 et seq. (West 2002). Seven years later, in June 2009,¹ the matter proceeded to a jury trial. At trial, two of the State's experts testified that they reviewed the information contained in respondent's Illinois Department of Corrections files. Both experts opined that if respondent was released into the community there was a substantial probability that he would reoffend. The defense expert, Dr. Luis Rosell, agreed that respondent continued to meet the diagnosis for pedophilia, but opined that respondent was not a sexually violent person.

¶ 4 The jury found that respondent was a sexually violent person, and the trial court committed respondent to the custody of the Department of Human Services (DHS) until such time as he was no longer a sexually violent person. Thereafter, respondent was confined within the DHS treatment and detention facility at Rushville. On direct appeal, we affirmed the jury finding and commitment.

In re Commitment of Ricky A. W., No. 3–09–0771, 409 Ill.App.3d 1180, 377 Ill.Dec. 758, 2 N.E.3d 674 (2011) (unpublished order under Supreme Court Rule 23 ).

¶ 5 On September 21, 2011, October 28, 2013, and March 7, 2014, the State filed motions for a finding of no probable cause based upon its review of respondent's reevaluation reports. These motions were not ruled on before the April 11, 2014, probable cause hearing. Each of the State's motions was based on a report prepared by Dr. Steven Gaskell. Gaskell concluded in each of his reports that respondent should continue to be found a sexually violent person and remain in DHS custody. Respondent did not file a petition for discharge or conditional release. Respondent also did not waive his right to petition for discharge, which obligated the court to hold a probable cause hearing to determine whether he was entitled to an evidentiary hearing on the issue of whether he was still a sexually violent person.

¶ 6 Gaskell's most recent evaluation was dated February 28, 2014. The report was prepared using a variety of sources, which included: an interview with respondent, review of respondent's criminal history, psychiatric evaluations, a penile plethysmography (PPG) evaluation, DHS treatment progress reports, medical and mental health records, and Static–99R and Static–2002R evaluations.

¶ 7 Respondent's criminal history included 1973 convictions for attempted murder, rape, and indecent liberties with a child, and a 1992 conviction for attempted criminal sexual assault.

¶ 8 During an interview with Gaskell, respondent said that he did not feel that he was attracted to children anymore, he knew the consequences, and he no longer had fantasies about children. Respondent admitted that in the past he was sexually attracted to girls between the ages of three and nine years old and he had sexual offenses against 16 female children. Respondent said that he was currently attracted to adult women between the ages of 20 and 30 years old. Respondent also said that he was doing well in treatment, he was more assertive, and he tried to offer meaningful feedback. Respondent said that he was not likely to reoffend because he had no “inclination to do it anymore,” he no longer thought about sexual offenses, he avoided television shows that depicted children, and he felt disgusted by the thought of sexual offenses.

¶ 9 Gaskell noted that in February 2011, respondent did not actively participate in sex offender treatment. However, subsequent reports documented that respondent was attending his treatment groups, conducted himself appropriately in group sessions, demonstrated an understanding of the decision-making model, showed motivation in progressing through treatment, and incorporated feedback from his peers and facilitators.

¶ 10 In December 2012, DHS investigated an incident where respondent was found hugging his roommate. During the investigation, respondent disclosed that in 2011, he performed oral sex on another resident. A DHS staff member then encouraged respondent to disclose and process the incident during his group session.

¶ 11 Based on a review of respondent's record and clinical interviews, Gaskell concluded that respondent met the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th Edition, DSM–5 (2013) criteria for pedophilic disorder, sexually attracted to females, and personality disorder with antisocial traits.

¶ 12 On July 24, 2012, respondent submitted to a PPG evaluation. On the PPG, respondent displayed a clinically significant arousal to two segments: female grammar and female preschool. On the posttest questionnaire, respondent reported that he was “most sexually attracted in real life” to females ages seven to adult. Respondent also reported having erectile difficulties, but noted that he successfully masturbated on a biweekly basis.

¶ 13 Gaskell further evaluated respondent using several actuarial assessments. On the Static–99R, respondent scored a four. To translate respondent's score into a statistical probability of reoffense, Gaskell first classified respondent as a high-risk/high needs individual because he was previously found to be a sexually violent person. Gaskell then compared respondent's Static–99R score with similarly situated individuals who were found to sexually reoffend at a rate of 20.1% in 5 years and 29.6% in 10 years. On the Static–2002R evaluation, respondent scored a two, which placed him in the low-risk category for being charged or convicted of another sexual offense.

¶ 14 After reviewing respondent's sex offender treatment history, Gaskell concluded that respondent had not made sufficient progress to lower his risk or to be ready for conditional release. Gaskell said that “it is substantially probable [respondent] will engage in acts of sexual violence in the future” and recommended that respondent continue to be found a sexually violent person and remain committed to DHS.

¶ 15 On March 13, 2013, counsel for respondent filed a motion for an independent evaluation. The trial court granted respondent leave to obtain an independent evaluation and appointed Rosell. A report prepared on December 31, 2013, documented Rosell's evaluation of respondent. In the report, Rosell noted that he had reviewed respondent's treatment evaluations and record, conducted a one-hour interview with respondent, performed two actuarial analyses, and considered the effect of respondent's age on his probability of reoffense.

¶ 16 In his report, Rosell noted that respondent began sex offender treatment in February 2011. As of December 6, 2013, respondent had completed phase one of treatment, and he was halfway through his timeline. At the time of the evaluation, respondent was attending five different group sessions, three days per week. Respondent also had completed eight different programs: Mindfulness, DBT (interpersonal effectiveness, emotional regulation, distress tolerance, emotional regulation), Good Lives Group, Orientation, Thinking Errors, Treatment Foundation, Autobiography, and Decision Making Model.

¶ 17 Rosell noted that, behaviorally, respondent had been a “model resident” with the exception of a single incident of misconduct in 2011. Respondent told Rosell that he admitted to DHS staff that he performed oral sex on one occasion while he was committed. Respondent said that he had not engaged in any other sexual misconduct while he was incarcerated or committed.

¶ 18 During Rosell's interview, respondent said that he would like to get a conditional release “where [he] could do treatment in Peoria.” Respondent explained that in the past, “boredom” had caused him to reoffend. Respondent thought that as long as he stayed busy, he was safe from reoffending. Respondent recognized that in the past he initiated interactions with young females by grooming and becoming familiar with the minor's family dynamics. Respondent knew that he could no longer make excuses to be around children. Respondent also intended to seek support from others if he became evasive and began to associate with a young girl. Respondent's support group included his sister and brother-in-law.

Respondent acknowledged that he had caused much harm and he victimized approximately 15 individuals, and he rated his current risk of reoffense as a 0 on a scale of 0 to 10.

¶ 19 Rosell also stated that “in the past [respondent] met criteria for pedophilia, attracted to females, nonexclusive type”; however, the course of pedophilia “may fluctuate, increase, or decrease with age” and advanced age is likely to diminish the frequency of sexual behavior involving children. Rosell noted that sexual behaviors are reduced in men over their lifespan and sexual arousal reduced with age. Further, respondent's offenses were committed prior to 1992, when he was 39 years old and younger. Respondent was 61 years old at the time of evaluation....