People v. Freed

• Decision Date: 20 February 2002
• Docket Number: No. 4-01-0831.,4-01-0831.
• Citation: 328 Ill. App.3d 459,262 Ill.Dec. 633,766 N.E.2d 253
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold L. FREED, Defendant-Appellee (The Department of Corrections, Appellant).
• Court: United States Appellate Court of Illinois

766 N.E.2d 253

328 Ill. App.3d 459

262 Ill.Dec. 633

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold L. FREED, Defendant-Appellee (The Department of Corrections, Appellant).

No. 4-01-0831.

Appellate Court of Illinois, Fourth District.

February 20, 2002.

James E. Ryan, Attorney General, Joel D. Bertocchi, Solicitor General, Brett E. Legner, Assistant Attorney General, Chicago, for Department of Corrections.

Jim R. Gudgel, Sangamon County Public Defender, Springfield, for Harold Freed.

John P. Schmidt, State's Attorney, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice STEIGMANN delivered the opinion of the court:

In January 1999, the trial court found defendant, Harold L. Freed, to be a sexually dangerous person, as defined in section 1.01 of the Sexually Dangerous Persons Act (Act) (725 ILCS 205/1.01 (West 1998)), and committed him to the Director of the Illinois Department of Corrections (Department). In February 2001, defendant pro se filed an application showing recovery under section 9 of the Act (725 ILCS 205/9 (West 2000)). In June 2001, defendant, through his appointed counsel, requested that the court appoint a psychiatrist not employed by the Department to conduct an independent psychiatric examination of him. In July 2001, the court granted defendant's request for an independent psychiatric examination.

On August 10, 2001, defendant filed a second-amended petition for writ of habeas corpus ad testificandum, requesting that the trial court order the Department to bring him from Big Muddy River Correctional Center (Big Muddy) to the Sangamon County jail (jail) on August 11, 2001, where he would be housed until August 14, 2001, for an independent psychiatric examination and a "future hearing." That same day, the court issued an order directing the Department to house defendant at the jail from August 11, 2001, through August 14, 2001, "with custody to remain with the [Department]."

The Department appeals the trial court's August 10, 2001, order, and we reverse.

I. BACKGROUND

In October 1998, the State charged defendant with aggravated criminal sexual abuse (720 ILCS 5/12-16(a) (West 1996)) and two counts of child pornography (720 ILCS 5/11-20.1(a)(1) (West 1994)). In November 1998, the State (1) petitioned the trial court to proceed under the Act (725 ILCS 205/1.01 through 12 (West 1998)) and (2) moved the court to appoint two psychiatrists, Dr. Joseph Bohlen and Dr. Terry Killian, to examine defendant and report back to the court. The court later granted both the State's petition and its motion.

In January 1999, the State filed a petition to have defendant declared a sexually dangerous person under the Act (725 ILCS 205/1.01 through 12 (West 1998)), alleging the following: (1) the charges then pending against defendant—namely, aggravated criminal sexual abuse (720 ILCS 5/12-16(a) (West 1996)) and two counts of child pornography (720 ILCS 5/11-20.1(a)(1) (West 1994)); (2) defendant had a history of sexual involvement with children; and (3) both Killian and Bohlen had concluded that defendant was a sexually dangerous person in that he suffered from a mental illness, pedophilia, which had existed for more than a year. Later that month, defendant stipulated to and admitted the allegations set forth in the State's petition, and the trial court found him to be a sexually dangerous person and committed him to the Department. Defendant was later assigned to Big Muddy.

In February 2001, defendant pro se filed (1) an application showing recovery under section 9 of the Act (725 ILCS 205/9 (West 2000)); and (2) a motion for writ of habeas corpus ad testificandum, requesting that he be produced before the trial court "at such time, and for such purpose, as may be required." Later that month, the court ordered the Department to prepare a socio-psychiatric report regarding defendant, and in May 2001, the Department filed that report with the court.

In June 2001, defendant requested that the trial court appoint a psychiatrist not employed by the Department to conduct an independent psychiatric examination of him. In a July 2001 docket entry, the court granted defendant's request for an independent psychiatric examination and directed that a writ was "to issue directing delivery of [defendant] to the [jail]." Later that month, defendant filed a petition for writ of habeas corpus ad testificandum, requesting that the court direct the Department to bring him to the jail on August 11, 2001, to be evaluated by Killian. That same day, the court entered an order issuing the writ.

On August 7, 2001, the Department filed a motion to quash the trial court's July 2001 order, alleging that the court had erred by issuing the writ because it was not for one of the purposes provided in section 10-135 of the Code of Civil Procedure, which sets forth the proper procedure for bringing an inmate before the trial court (hereinafter habeas corpus ad testificandum statute) (735 ILCS 5/10-135 (West 2000)). On August 8, 2001, the court granted defendant's amended petition for writ of habeas corpus ad testificandum, which requested that the court direct the Department to bring defendant to the jail on August 11, 2001, to be evaluated by Killian and for a "future hearing."

On August 9, 2001, the Department filed a motion to quash the trial court's August 8, 2001, order, alleging that the court erred by (1) issuing the writ for an improper purpose under the habeas corpus ad testificandum statute (735 ILCS 5/10-135 (West 2000)), (2) transferring custody of defendant from the Department to jail officials, and (3) compelling the production of defendant too far in advance of any scheduled court hearing. That same day, the court denied the Department's motion, upon finding that (1) defendant had a right to an independent psychiatric examination; (2) the Department was reading the habeas corpus ad testificandum statute too narrowly; and (3) quashing the August 8, 2001, order would impose inappropriate burdens on defendant. The court also directed defendant to file a second amended petition for writ of habeas corpus ad testificandum, which would request that defendant be housed at the jail for a limited time, until August 14, 2001.

On August 10, 2001, defendant filed a second amended petition for writ for habeas corpus ad testificandum, requesting that the trial court order the Department to bring him from Big Muddy to the jail on August 11, 2001, where he would be housed until August 14, 2001, to be evaluated by Killian and for a "future hearing." That same day, the court issued an order directing the Department to house defendant at the jail from August 11, 2001, through August 14, 2001, "with custody to remain with the [Department]." The Department complied with the court's order the following day.

This interlocutory appeal followed.

II. ANALYSIS

A. Appellate Jurisdiction

Defendant concedes that this court has jurisdiction over the Department's appeal. Because the trial court's August 10, 2001, order—which required that the Department do a particular thing—had the force and effect of an injunction, the Department properly filed an interlocutory appeal under Supreme Court Rule 307(a). 188 Ill.2d R. 307(a)(1) ("An appeal may be taken to the [a]ppellate [c]ourt from an interlocutory order of court * * * granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction"); People v. Collins, 249 Ill.App.3d 924, 926-27, 189 Ill.Dec. 170, 619 N.E.2d 871, 874 (1993) (holding that an order directing the Department to transport an inmate to a county jail for a hearing was in the nature of an interlocutory appeal, and, thus, an interlocutory appeal under Rule 307(a) was proper).

B. Mootness

The Department concedes that no live controversy exists because it complied with the trial court's August 10, 2001, order. However, the Department urges this court not to dismiss its appeal as moot because (1) given the short duration of this and similar orders, applying the mootness doctrine could insulate an entire class of cases from appellate review; and (2) the issue on appeal is of great public interest.

Illinois courts have held that when a case involves an event of short duration that is "`capable of repetition, yet evading review,'" it may qualify for review even if it would otherwise be moot. In re Barbara H., 183 Ill.2d 482, 491, 234 Ill.Dec. 215, 702 N.E.2d 555, 559 (1998), quoting In re A Minor, 127 Ill.2d 247, 258, 130 Ill.Dec. 225, 537 N.E.2d 292, 297 (1989). To receive the benefit of this exception, the complaining party must demonstrate that (1) the challenged action is too short in duration to be fully litigated prior to its cessation, and (2) a reasonable expectation exists that the same complaining party would be subjected to the same action again. Barbara H., 183 M.2d at 491, 234 Ill.Dec. 215, 702 N.E.2d at 559.

We agree with the Department that this case satisfies both of these requirements. Typically, challenged orders of habeas corpus ad testificandum will expire before appellate review can be completed, as happened here. See People v. Ehlers, 301 Ill.App.3d 186, 188, 234 Ill.Dec. 678, 703 N.E.2d 539, 541 (1998) (noting that an order of habeas corpus ad testificandum usually does not last long). The trial court's August 10, 2001, order directed the Department to bring defendant to the jail on the following day, where he would remain until August 14, 2001. That period of time was far too brief to permit appellate review of the court's order. To apply the mootness doctrine under these circumstances would mean that the Department would be left without any legal recourse for challenging such orders.

The second requirement is also satisfied in this case. Although a trial court is not required to provide an independent psychiatrist to a defendant in proceedings under the Act (People v....