In re Detention of Erbe

• Decision Date: 13 November 2003
• Docket Number: No. 4-02-0764.,4-02-0764.
• Citation: 344 Ill. App.3d 350,800 N.E.2d 137,279 Ill.Dec. 295
• Parties: In re the DETENTION OF John M. ERBE (The People of the State of Illinois, Plaintiff-Appellee, v. John M. Erbe, Defendant-Appellant).
• Court: United States Appellate Court of Illinois

800 N.E.2d 137

344 Ill. App.3d 350

279 Ill.Dec. 295

In re the DETENTION OF John M. ERBE (The People of the State of Illinois, Plaintiff-Appellee, v. John M. Erbe, Defendant-Appellant).

No. 4-02-0764.

Appellate Court of Illinois, Fourth District.

Argued June 25, 2003.

Decided November 13, 2003.

David W. Butler (argued), Bloomington, for John Erbe.

Lisa Madigan, Attorney General, Gary S. Feinerman, Solicitor General, Lisa Anne Hoffman, Karen Kaplan, Assistant Attorneys General, Chicago, for the People.

Robert John Kane (argued), Springfield, for Appellee.

Justice STEIGMANN delivered the opinion of the court:

Following a June 2002 bench trial, the trial court found defendant, John M. Erbe, to be a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)). Following an August 2002 dispositional hearing, the court ordered him committed to the Department of Human Services (DHS) for institutional care in a secure facility.

Defendant appeals, arguing that (1) he received ineffective assistance of counsel when his initial appointed counsel (a) failed to challenge personal jurisdiction, and (b) moved to continue the probable-cause hearing; (2) the trial court abused its discretion by denying his motion for a Frye evidentiary hearing on the admissibility of evidence regarding actuarial instruments used by the State's experts in assessing defendant's risk of reoffending; (3) the court's finding that he was a sexually violent person was against the manifest weight of the evidence; and (4) the court abused its discretion by ordering him committed to institutional care in a secure facility. We affirm.

I. BACKGROUND

On June 14, 2000, the State filed a petition under the Act, seeking to have defendant committed as a sexually violent person to DHS indefinitely. At that time, defendant was an inmate at the Centralia Correctional Center and was scheduled for entry into mandatory supervised release on June 20, 2000, following the completion of his sentence on 1988 convictions for home invasion (Ill.Rev.Stat.1987, ch. 38, par. 12-11) and aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14(a)(1)). On that same day, the trial court entered an order of detention in which the court (1) set a probable-cause hearing for June 19, 2000; and (2) appointed McLean County public defender Amy Davis to represent defendant.

On June 16, 2000, Davis filed a motion to continue the probable-cause hearing because she needed additional time to review the materials the State had filed with its petition. Davis then telephoned the trial court's secretary and indicated that she and the assistant Attorney General had agreed that the probable-cause hearing should be continued. The court informed counsel that it would reschedule that hearing if both parties agreed and requested that the attorneys agree upon a new hearing date. The assistant Attorney General later telephoned the court's secretary and indicated that the parties had agreed to reschedule the probable-cause hearing for June 26, 2000.

At the June 26, 2000, probable-cause hearing, defendant appeared with his appointed counsel. After considering the evidence presented, the trial court found probable cause existed and ordered defendant transferred to DHS for an evaluation, pursuant to section 30(c) of the Act (725 ILCS 207/30(c) (West 2000)).

In July 2000, defendant pro se filed a motion to dismiss the State's petition, alleging, inter alia, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State's petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) he was not "properly served with process." That same day, defendant pro se filed a motion, seeking appointment of counsel other than a McLean County public defender on the ground that Davis moved to continue the probable-cause hearing without his consent.

At a July 2000 hearing on defendant's motion seeking appointment of other counsel, Davis informed the trial court that she requested a continuance (1) because she had other matters to which she had to attend when she received the State's petition; and (2) in "an effort for [her] to be prepared for [the probable-cause] hearing." She acknowledged that because her office usually receives the State's petitions under the Act "pretty much at the last minute," she routinely seeks to continue probable-cause hearings to allow time to carefully review the petitions. After considering the arguments, the trial court denied defendant's motion.

In January 2001, defendant filed a motion for a Frye evidentiary hearing (see Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) to determine the admissibility of evidence regarding actuarial risk-assessment instruments used by the State's experts in assessing defendant's risk of reoffending. In February 2001, the trial court conducted a hearing on defendant's motion and took the matter under advisement. Later that month, the court denied the motion, upon finding that (1) the actuarial risk-assessment instruments did not constitute scientific evidence subject to the Frye standard; and (2) even if the instruments were subject to the Frye standard, they had been generally accepted in the relevant scientific community.

From February 2001 through May 2002, the trial court granted several continuances. Also during that time, defendant pro se filed a petition for writ of habeas corpus in which he raised some of the same issues raised in his July 2000 pro se motion to dismiss. In November 2001, the court dismissed defendant's petition for writ of habeas corpus, and in May 2002, this court dismissed defendant's appeal from the November 2001 order.

In June 2002, the trial court conducted a hearing on defendant's pro se July 2000 motion to dismiss the State's petition. At that hearing, defendant was represented by a different appointed counsel, who adopted and argued defendant's motion. Although defendant's motion contained numerous allegations, defendant addressed only two allegations at the hearing—namely, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State's petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) the trial court lacked jurisdiction because he was not "properly served with process." Defendant testified that he received the State's June 14, 2000, petition and the order of detention, which indicated that (1) the court had appointed a McLean County public defender to represent him; and (2) the probable-cause hearing was scheduled for June 19, 2000. However, he was not served with summons. He later learned that his probable-cause hearing was rescheduled for June 26, 2000. Defendant appeared at the June 26, 2000, probable-cause hearing, where he was represented by Davis. At that hearing, he attempted to tell the court that he had not been served with summons and had not asked for a continuance, but the court did not give him permission to speak. Defendant stated that he did not authorize Davis to file a motion to continue his probable-cause hearing. After considering the evidence and counsels' arguments, the trial court denied defendant's motion to dismiss.

At defendant's June 2002 bench trial, Dr. Jacqueline Buck, a clinical psychologist and special evaluator for the Illinois Department of Corrections (DOC), testified that she had reviewed defendant's DOC master file, which contained all of the court records related to defendant, including the written judgment of sentence, the presentence investigation reports, psychiatric and psychological evaluations, DOC records, and his criminal history.

Buck's review of defendant's master file showed that when defendant was 11 years old and living in California, he began engaging in criminal activity, including grand theft auto and shoplifting. He also began running away, fighting at school, and on one occasion, he attacked a teacher. When he was 13 years old, he was expelled from school after raping a 12-year-old girl. Around that time, defendant's mother moved from California to McLean County, Illinois. Defendant stayed in California and lived either on the streets or with one of his former stepfathers. In 1974, defendant was declared an "incorrigible juvenile" and was placed in juvenile hall and, later, several group homes. Defendant admitted raping a young girl during that time.

Later in 1974, when defendant was 15 years old, he moved to McLean County to live with his mother. He had been in McLean County for only three days when police arrested him for rape. They later released him to his mother. In 1975, defendant committed numerous offenses, including deviate sexual assault, armed robbery, home invasion, aggravated criminal sexual assault, and rape. In the rape case, he entered a woman's apartment, held a knife to her throat, and threatened to kill her. He raped her three times and forced her to perform oral sex on him. He then tied her up and left the apartment. A baby was in the room during the rape. (Buck acknowledged that in her report, she had mistakenly indicated that defendant had held a knife to the baby's throat.) Later in 1975, while incarcerated at the McLean County juvenile detention center, he sexually assaulted a male inmate and was charged with deviate sexual assault.

Based on some of defendant's 1975 offenses, the State filed a petition seeking to have defendant declared a sexually dangerous person. He was later found to be sexually dangerous based on the 1975 rape offense. Defendant was initially sent to DOC's youth division, where he participated in treatment for a few months. A jury later convicted him as an adult for the 1975 rape (McLean County case No. 75-CF-483), and the trial court sentenced him to 4 to 10 years in prison. Defendant was paroled in 1980.

In 1981, defendant was charged with rape, home invasion, and (attempt) burglary (McLean County case No. 81-CF-430). During this...