People v. Hayes (In re Hayes)

• Decision Date: 26 August 2015
• Docket Number: No. 1–14–2424.,1–14–2424.
• Citation: 40 N.E.3d 374
• Parties: In re DETENTION OF Lawrence HAYES (The People of the State of Illinois, Petitioner–Appellee, v. Lawrence Hayes, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

40 N.E.3d 374

In re DETENTION OF Lawrence HAYES (The People of the State of Illinois, Petitioner–Appellee,

v. Lawrence Hayes, Respondent–Appellant).

No. 1–14–2424.

Appellate Court of Illinois, First District, Third Division.

Aug. 26, 2015.

Stephen F. Potts, of Law Office of Stephen F. Potts, Des Plaines, for appellant.

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

OPINION

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

¶ 1 In November 2011, a jury determined respondent, Lawrence Hayes, to be a sexually violent person under the Sexually Violent Persons Commitment Act (SVP Act) (725 ILCS 207/1 et seq. (West 2006)). The trial court committed Hayes to the custody of the Illinois Department of Human Services (DHS) for institutional care in a secure facility. On direct appeal, we affirmed Hayes's commitment, finding that paraphilia not otherwise specified, attracted to nonconsenting adolescents and adults (PNOS Nonconsent) was generally accepted as a valid diagnosis. See In re Detention of Hayes, 2014 IL App (1st) 120364, 380 Ill.Dec. 480, 8 N.E.3d 650 (Hayes I ).

¶ 2 In May 2013, as required by statute (725 ILCS 207/55 (West 2012) ), a forensic psychologist reevaluated Hayes and submitted a report, which he updated in July 2013. Based on the reevaluation, the State moved to find no probable cause to hold an evidentiary hearing on Hayes's status as a sexually violent person. The trial court agreed with the State. Hayes asks us to reverse and remand for a full evidentiary hearing because of a purported change in the latest edition of the disorder's criteria published in American Psychiatric Association, Diagnostic and Statistical Manual, 5th Edition, DSM–5 (2013) (DSM–5). Hayes was committed as a Sexually Violent Person (SVP) under American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, DSM–IV–TR (2000) (DSM–IV–TR), based on his PNOS Nonconsent diagnosis.

¶ 3 We affirm the trial court's decision that no probable cause existed to warrant an evidentiary hearing on whether Hayes was still a SVP. We conclude that Hayes' underlying condition and diagnosis remained unchanged under the DSM–5 criteria.

¶ 4 Background

¶ 5 In Hayes I, we described Hayes' underlying offenses. In summary, between 1980 and 1998, Hayes accumulated convictions on multiple sex offenses for which he was sentenced to prison. In 2000, after pleading guilty to aggravated criminal sexual assault and child pornography, he received concurrent prison terms of 20 years and 6 years, respectively. In November 2007, the State sought Hayes' commitment as a sexually violent person, alleging he suffered from PNOS Nonconsent. The State's petition included evaluations from two psychologists; Dr. Steven Gaskell, a forensic psychologist, and Dr. Martha Bellew–Smith, a clinical psychologist. Both doctors diagnosed Hayes with PNOS Nonconsent as defined in the DSM–IV–TR. Hayes also was diagnosed with a “personality disorder not otherwise specified with antisocial features.” The jury determined Hayes to be a sexually violent person and the trial court committed Hayes to the DHS for institutional care and treatment in a secure facility until further court order. As provided by the SVP Act, the trial court's order required an initial periodic reexamination within six months. See Hayes I, 2014 IL App (1st) 120364, ¶ 9, 380 Ill.Dec. 480, 8 N.E.3d 650.

¶ 6 Section 55 of the SVP Act dictates that the DHS “submit a written report to the court on his or her mental condition at least once every 12 months after an initial commitment * * * for the purpose of determining whether: (1) the person has made sufficient progress in treatment to be conditionally released and (2) the person's condition has so changed since the most recent periodic reexamination (or initial commitment, if there has not yet been a periodic reexamination) that he or she is no longer a sexually violent person.” 725 ILCS 207/55 (West 2012). On May 15, 2012, Dr. Gaskell filed a reevaluation report indicating that Hayes declined evaluation. Based on a review of Hayes' records, Gaskell again opined that Hayes met the DSM–IV–TR diagnostic criteria for PNOS Nonconsent. The report noted that this diagnosis “is used for coding Paraphilias that do not meet the criteria for any of the specific paraphilias.” Based on this diagnosis and a risk of reoffending analysis, Dr. Gaskell recommended Hayes remain committed to DHS for further secure care and treatment.

¶ 7 In May 2013, Dr. Gaskell submitted a re-evaluation in further compliance with section 55. This time, Hayes consented to be evaluated. Gaskell again diagnosed Hayes as suffering from the mental disorder PNOS Nonconsent as defined in the DSM–IV–TR. On May 15, 2013, the State filed a “Motion for Finding of No Probable Cause Based on Annual Re-examination Report,” requesting that the trial court enter an order finding that no probable cause existed to believe that respondent was no longer a sexually violent person, which would have precluded a further evidentiary hearing on that issue. After the release of DSM–5 in May 2013, Dr. Gaskell submitted an updated reevaluation on July 2. The updated report stated that Hayes met the DSM–5 criteria for “Other Specified Paraphilic Disorder Sexually Attracted to Nonconsenting Adolescent and Adult Females. Nonexclusive Type [OSPD] (formally) [sic ] [PNOS Nonconsent] in the DSM–IV–TR).” Regarding future risk analysis, Dr. Gaskell indicated Hayes fell in the “High” risk category on one test and in the “Moderate–High” risk category on another test. Hayes “also had additional risk factors which were not measured by the actuarial instruments which suggested he [was] substantially probable to engage in acts of sexual violence in the future.”

¶ 8 Referring to the new designation of OSPD, the report noted: “[a]lthough there are no changes to the diagnostic criteria for Mr. Hayes' mental disorders, one of his mental disorders has changed in name only. His diagnosis of [PNOS Nonconsent] is now [OSPD].” Again, in the report: “[OSPD] is a mental disorder as defined by the Act. This disorder was [formerly] called [PNOS Nonconsent]. There was no change in the diagnostic criteria for this disorder from the DSM–IV–TR to the DSM–5.”

¶ 9 Gaskell's “Sources of Information” included: a 75–minute clinical interview with Hayes in April 2012; Hayes's criminal history information, investigative reports, and other court records; the DHS “Master Treatment Plan [s]” dated December 2012 and April 2013; the DHS “Progress Notes” from July 2012 through February 2013; the Illinois Department of Corrections (DOC) disciplinary and mental health records; the DOC “Sex Offender Pre–Release Evaluation” dated September 2007; the “[SVP Act] Evaluation” by Dr. Ray Quackenbush in November 2007; the “[SVP Act] Examination” by Gaskell in December 2007; and, in May 2012, two risk assessment tests, the Static 99R and the Static 2002R. Gaskell's report also stated that OSPD “ is used for coding paraphilias that do not meet the criteria for any of the specific paraphilic disorders.”

¶ 10 Hayes did not file a petition for discharge or for conditional release. On August 28, 2013, Hayes responded to the State's petition by pointing out that he had never been diagnosed with OSPD as opined in the updated psychological reexamination and “this mental disorder did not form the basis” for his commitment. Hayes further asserted that the DSM–5 did not recognize the PNOS Nonconsent diagnosis, citing Kansas v. Hendricks, 521 U.S. 346, 372–73, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), for the proposition that his “mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified.”

¶ 11 In its reply, the State insisted that: (1) Gaskell's diagnostic reasoning had not changed; (2) only the diagnostic name changed from PNOS Nonconsent to OSPD; and (3) no substantive distinction exists between the two.

¶ 12 One year later, on July 2, 2014, during arguments on whether probable cause existed for a full evidentiary hearing, Hayes argued that the DSM–5 incorporated a substantive change in the professional knowledge and methods used to evaluate a person's mental disorder or risk of reoffending. The trial court agreed with the State, ruling that Hayes failed to establish the requisite probable cause to proceed to a full evidentiary hearing.

¶ 13 ANALYSIS

¶ 14 Standard of Review

¶ 15 Courts in Illinois have disagreed regarding the standard of review for a probable cause hearing. This court has stated that we review the ultimate question of whether respondent established probable cause de novo. In re Detention of Lieberman, 2011 IL App (1st) 090796, ¶ 40, 352 Ill.Dec. 942, 955 N.E.2d 118, aff'd, In re Detention of Stanbridge, 2012 IL 112337, 366 Ill.Dec. 505, 980 N.E.2d 598. Further, where the evidence before a trial court consists of depositions, transcripts, or evidence otherwise documentary in nature, we may review the record de novo. Addison Insurance Co. v. Fay, 232 Ill.2d 446, 453, 328 Ill.Dec. 858, 905 N.E.2d 747 (2009). Meanwhile, the Fifth and Fourth Districts review trial courts' probable cause decisions for an abuse of discretion. See In re Detention of Cain, 341 Ill.App.3d 480, 482, 275 Ill.Dec. 325, 792 N.E.2d 800 (2003) ; In re Ottinger, 333 Ill.App.3d 114, 120, 266 Ill.Dec. 641, 775 N.E.2d 203 (2002). While we believe the appropriate standard is that employed in Lieberman, under either standard our result would be the same.

¶ 16 Sexually Violent Persons Commitment Act

¶ 17 The SVP Act mandates the procedures for the State to petition to commit a person who previously has been convicted of a sexually violent offense. 725 ILCS 207/15 (West 2012). After trial and initial commitment as an SVP, section 55 of the SVP Act requires periodic reexaminations to determine whether the respondent has...