People v. Olsson

Illinois Official Reports

Appellate Court

People v. Olsson, 2014 IL App (2d) 131217

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption PAUL OLSSON, Defendant-Appellant.–THE PEOPLE OF THE

STATE OF ILLINOIS, Plaintiff-Appellee, v. PAUL OLSSON,

Defendant-Appellant.

District & No. Second District

Docket Nos. 2-13-1217, 2-13-1271 cons.

Filed June 30, 2014

Held Orders entered by the trial court remanding defendant, who was

(Note: This syllabus charged with sex offenses involving children and found unfit to stand

constitutes no part of the trial and “not not guilty,” to the Department of Human Services

opinion of the court but pursuant to hearings conducted under section 104-25(g)(2)(i) of the

has been prepared by the Code of Criminal Procedure were affirmed over defendant’s

Reporter of Decisions contentions that his rights to procedural due process were violated by

for the convenience of the State’s failure to present a treatment plan report that complied with

the reader.) the statutory requirements, since the treatment plan report addressed

the statutory factors, it stated that defendant’s unwillingness to

cooperate prevented the State from providing a plan, and under the

circumstances, the requirements of the statute were satisfied.

Decision Under Appeal from the Circuit Court of Lake County, Nos. 05-CF-3046,

Review 05-CF-3629; the Hon. Christopher R. Stride, Judge, presiding.

Judgment Affirmed.

Counsel on Gillian E. Gosch, of Gosch Law Firm, P.C., of Waukegan, for

Appeal appellant.

Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.

Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.

Justices Hutchinson and Birkett concurred in the judgment and

opinion.

OPINION

¶1 Defendant, Paul Olsson, appeals from orders entered by the circuit court of Lake County

on October 16, 2013, and November 7, 2013, remanding him to the Department of Human

Services (Department) after hearings 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 2012)). We affirm.

¶2 I. BACKGROUND

¶3 In 2005, defendant was charged with sex offenses involving children. In October 2007,

he was found unfit to stand trial. In December 2009, at a discharge hearing, the trial court

found defendant “not not guilty” of several of the charged offenses. The court ordered

defendant’s treatment extended to October 12, 2010. In September 2010, the State filed a

motion to commit defendant to the Department pursuant to section 104-25(g)(2) of the Code,

and, after a hearing, the trial court committed defendant to the Department. While defendant

is committed under section 104-25(g)(2), he is entitled to a review of his status and treatment

needs every 180 days. 725 ILCS 5/104-25(g)(2)(i) (West 2012). Pursuant to section

104-25(g)(2), every 90 days the Department must file with the trial court a treatment plan

report in which the Department includes, inter alia, (1) an assessment of the defendant’s

treatment needs; (2) a description of the services recommended for treatment; (3) the goals of

each type of element of service; (4) an anticipated timetable for the accomplishment of the

goals; and (5) a designation of the qualified professional responsible for the implementation

of the plan. 725 ILCS 5/104-25(g)(2) (West 2012); People v. Olsson, 2012 IL App (2d)

110856, ¶ 14.

¶4 On September 9, 2013, pursuant to our mandate (People v. Olsson, 2013 IL App (2d)

121036-U), the trial court conducted a section 104-25(g)(2)(i) hearing. Defendant was not

present. According to the treating psychiatrist’s affidavit, defendant refused to attend the

hearing after being informed of the court date. Over defense counsel’s objection, the trial

court ruled that defendant validly waived his right to be present.

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¶5 Defense counsel then objected to proceeding with the hearing, because the Department

had not filed a treatment plan report in compliance with section 104-25(g)(2) of the Code.

After reviewing the treatment plan report dated June 12, 2012, as revised on August 6, 2013,

the court overruled defendant’s objection, finding that the report was prepared in accordance

with section 104-25(g)(2).

¶6 Dr. Richard Malis, defendant’s treating psychiatrist, was the only witness who testified at

the September 9, 2013, hearing. According to Dr. Malis, defendant was mentally ill in that he

suffered from pedophilia. Dr. Malis opined that defendant required hospitalization for mental

health treatment because he continued to present a danger to others. Dr. Malis testified that

defendant’s refusal of treatment, his young age when he first offended, and the fact that his

victims were male increased the risk of recidivism. On cross-examination, Dr. Malis said that

he used the risk factors identified in formal risk assessments, but he admitted that he had not

personally conducted a formal risk assessment of defendant. He also testified that, because

defendant refused treatment, he had received no meaningful treatment or assessment beyond

a review of the offense file. At the conclusion of the September 9, 2013, hearing, the trial

court orally ruled that defendant presented a serious threat to public safety and remanded him

to the Department for further treatment. However, the trial court’s written order was not

entered until October 16, 2013. Defendant timely appealed (No. 2-13-1217).

¶7 On November 7, 2013, the trial court conducted another hearing pursuant to section

104-25(g)(2)(i). The record on appeal includes no treatment plan report relating to the

November 7, 2013, hearing. However, the State asserted at the hearing that the Department

had filed a treatment plan report on September 11, 2013–subsequent to the September 9

hearing–and one dated October 31, 2013. Asked if he had received those reports, counsel for

defendant replied: “I believe I have, your Honor.”

¶8 Defendant was not present at the hearing, and the trial court found, over defense

counsel’s objection, that defendant waived his right to be present. Dr. Malis once again was

the only witness to testify at the hearing, and his testimony was substantially similar to his

testimony at the September 9, 2013, hearing. During cross-examination, he stated that

defendant continued to refuse most of the recommended treatment and that the treatment that

defendant agreed to receive was very peripheral to the diagnosis of pedophilia. He added that

defendant had recently made progress regarding his fitness to stand trial, because he had been

cooperating with defense counsel. Dr. Malis explained that on October 15, 2013, defendant

met with defense counsel about filing an appeal. Additionally, Dr. Malis stated that on

October 16 or 17, defendant sent correspondence to defense counsel requesting assistance in

filing a motion to attend a funeral. Dr. Malis viewed these acts as showing an ability to

cooperate with counsel, and he said that his opinion would not change if defense counsel

were to represent that he initiated the meeting or that defendant’s first statement to him had

been that he was not defendant’s attorney.

¶9 At the conclusion of testimony and arguments, the trial court noted that it considered the

testimony of Dr. Malis as well as the October 31, 2013, treatment plan report and stated:

“that report will be made part of this record and treated the same way as all fitness reports are

treated with respect to the file.” The court then described the contents of the report,

concluding that it complied with the statute. The court found that defendant presented a

serious threat to public safety and again remanded him to the Department for further

treatment. Following the court’s ruling, defense counsel represented for the record that he

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had received a “legally threatening and demanding” communication from defendant and that

defendant did not cooperate with him or discuss the case with him in any meaningful or

substantive way. The court entered a written order the same day, and defendant timely

appealed (No. 2-13-1271).

¶ 10 II. ANALYSIS

¶ 11 Defendant first contends that the trial court violated his procedural due process rights by

failing to require the State to present a treatment plan report and/or testimony complying with

the requirements of section 104-25(g)(2) at the hearing on November 7, 2013. We review

de novo the issue of whether defendant’s procedural due process rights were violated. In re

Shirley M., 368 Ill. App. 3d 1187, 1190 (2006).

¶ 12 The record on appeal contains the August 6, 2013, treatment plan report, but not the

October 31, 2013, report. Defendant declares in his brief that “the treatment plan reviewed by

the court on November 7, 2013, was not filed,” yet he acknowledges that the State

represented on the record that a plan had been filed on October 31, 2013. Defendant’s

appellate counsel asserts that she was unable to locate the October 31, 2013, report, but she

has not provided this court with an affidavit or any other information detailing her efforts to

obtain the document.

¶ 13 Section 104-19 of the Code provides:

“Any report filed of record with the court concerning diagnosis, treatment or

treatment plans made pursuant to this Article shall not be placed in the defendant’s

court record but shall be maintained separately by the clerk of the court and shall be

available only to the court or an appellate court, the State and the defense, a facility or

program which is providing treatment to the defendant pursuant to an order of the

court or such other persons as the court may direct.” 725 ILCS 5/104-19 (West 2012).

Although treatment plan reports must be filed with the trial court (and copies forwarded to

the clerk of the court, the State’s Attorney, and the defendant’s attorney) (725 ILCS

5/104-25(g)(2) (West 2012)), section 104-19 requires the clerk of the court to maintain the

reports separately from the defendant’s court record (725 ILCS 5/104-19 (West 2012)). The

statute does not specify the manner in which the clerk of the court should separate the

reports–i.e., by impounding the documents or by some other means. Indeed, there appears to

be some inconsistency as to how the reports have been handled in the present case.

Moreover, some of the reports were included in the record on appeal, in sealed envelopes as

impounded documents, while other reports, apparently properly filed by the Department,

were not. In any event, when appealing from an order following a section 104-25(g)(2)(i)

hearing, the appellant must ensure that the appellate court receives a complete record,

including any treatment plan reports. If a treatment plan report at issue is not included in the

record as an impounded document, the appellant should move to supplement the record to

include it, in accordance with Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006).

¶ 14 Because defendant has failed to present a complete record on appeal in compliance with

Illinois Supreme Court Rule 321 (eff. Feb. 1, 1994), having not included the October 31,

2013, treatment plan report, we must presume that the trial court’s ruling on November 7,

2013, was in conformity with the law and had a sufficient factual basis. See Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92 (1984) (appellant bears the burden to “present a sufficiently

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complete record of the proceedings at trial to support a claim of error, and in the absence of

such a record on appeal, it will be presumed that the order entered by the trial court was in

conformity with law and had a sufficient factual basis”). Section 104-25(g)(2) of the Code

requires the Department to file its treatment plan reports with the court, and it appears from

the transcript of the November 7, 2013, hearing that the October 31, 2013, report was filed

with the court. The State asserted on the record that the treatment plan had been filed, and

neither defense counsel nor the trial court cast doubt on the State’s representation. Yet, it is

defendant’s burden to present a sufficient record, and because the transcript of the November

7, 2013, hearing indicates that the report was filed and it is not included in the record on

appeal, we must resolve the incompleteness of the record against defendant. See Foutch, 99

Ill. 2d at 391-92.

¶ 15 Additionally, although in the “issues presented for review” section of his brief defendant

states that the trial court erred in failing to require the State to present a proper treatment plan

report and/or testimony complying with section 104-25(g)(2) at the September 9, 2013,

hearing, he does not actually argue that the August 6, 2013, treatment plan report, which the

trial court considered at the hearing, was deficient. Accordingly, defendant has forfeited any

argument as to the sufficiency of that treatment plan report. See Ill. S. Ct. R. 341(h)(7) (eff.

Feb. 6, 2013) (the appellant’s brief must include “[a]rgument, which shall contain the

contentions of the appellant and the reasons therefor, with citation of the authorities and the

pages of the record relied on”); Cundiff v. Patel, 2012 IL App (4th) 120031, ¶ 22 (“[A]

party’s failure to argue a point in his brief will result in forfeiture of the issue on appeal.”).

Nevertheless, forfeiture aside, we find that the August 6, 2013, treatment plan report

comported with the statutory requirements. In People v. Olsson, 2012 IL App (2d) 110856,

¶ 16, we said that if a defendant’s refusal to cooperate frustrates the Department’s efforts to

develop a treatment program, it is incumbent upon the author of the treatment plan report to

say so explicitly, rather than leave the court to guess whether proper efforts have been made

to care for the defendant. The record shows that the Department filed a treatment plan report

that addressed all of the statutory factors. The report clearly stated that the Department was

not able to provide a plan because defendant was unwilling to cooperate. Thus, under Olsson,

the August 6, 2013, treatment plan report complied with the statute.

¶ 16 Defendant next argues that his right to equal protection under the law was violated

because, absent the finding of unfitness, his commitment would have to have been pursuant

to either the Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/1 et seq.

(West 2012)) or the Mental Health and Developmental Disabilities Code (Mental Health

Code) (405 ILCS 5/1-100 et seq. (West 2012)), which, according to defendant, would have

entitled him to “substantially greater rights.” Without citation of any authority, defendant

asserts that “[t]he commitment procedure under the [Mental Health Code] is more stringent

and there are more lenient standards for release” than under section 104-25(g)(2) of the

Code. Defendant has forfeited his equal protection argument by failing to cite appropriate

authority and by failing to articulate any rights under the Mental Health Code or the SVPCA

that he is not accorded under section 104-25(g)(2) of the Code. Ill. S. Ct. R. 341(h)(7) (eff.

Feb. 6, 2013). “[A]n appellant must present clearly defined issues to the court, supported by

relevant authority: this court is ‘not simply a repository in which appellants may dump the

burden of argument and research.’ ” People v. Robinson, 2013 IL App (2d) 120087, ¶ 15

(quoting People v. Chatman, 357 Ill. App. 3d 695, 703 (2005)).

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¶ 17 Forfeiture notwithstanding, defendant’s argument is unavailing. Defendant appears to

take exception to the fact that the Department has not used risk assessment instruments such

as the Static-99-R or the Minnesota Sex Offender Screening Tool-Revised, which

purportedly do not require the defendant’s cooperation. However, defendant cites no

authority–and we are aware of none–holding that, in the absence of a formal assessment, the

trial court must discount an expert opinion on a sex offender’s risk of recidivism. Moreover,

defendant cites only one case in support of his equal protection argument: Jackson v. Indiana,

406 U.S. 715 (1972). As the State points out, Jackson does not support an equal protection

challenge against section 104-25(g)(2). See People v. Barichello, 305 Ill. App. 3d 13, 24

(1999); People v. Polachek, 128 Ill. App. 3d 200, 205 (1984).

¶ 18 Finally, defendant expresses concern that he could be committed to the Department under

section 104-25(g)(2) until the previously set termination date and that then, prior to his

release, the State could file a petition pursuant to the SVPCA. However, as the State

observes, defendant is not subject to the SVPCA, because he has not been convicted of any

criminal offense. People v. Olsson, 2011 IL App (2d) 091351, ¶ 4 (“If the evidence presented

at a discharge hearing is sufficient to establish the defendant’s guilt, no conviction results;

instead, the defendant is found ‘not not guilty.’ ”); see also 725 ILCS 207/5(f) (West 2012)

(defining “sexually violent person” as “a person who has been convicted of a sexually violent

offense, has been adjudicated delinquent for a sexually violent offense, or has been found not

guilty of a sexually violent offense by reason of insanity and who is dangerous because he or

she suffers from a mental disorder that makes it substantially probable that the person will

engage in acts of sexual violence”).

¶ 19 III. CONCLUSION

¶ 20 The judgments of the circuit court of Lake County are affirmed.

¶ 21 Affirmed.

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