People v. Montanez (In re Montanez)

• Decision Date: 06 May 2020
• Docket Number: No. 1-18-2239,1-18-2239
• Citation: 164 N.E.3d 683,444 Ill.Dec. 587,2020 IL App (1st) 182239
• Parties: IN RE COMMITMENT OF Jose MONTANEZ (The People of the State of Illinois, Petitioner-Appellee, v. Jose Montanez, Respondent-Appellant.)
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 182239

164 N.E.3d 683

444 Ill.Dec. 587

IN RE COMMITMENT OF Jose MONTANEZ

(The People of the State of Illinois, Petitioner-Appellee,

v.Jose Montanez, Respondent-Appellant.)

No. 1-18-2239

Appellate Court of Illinois, First District, THIRD DIVISION.

May 6, 2020

Michael R. Johnson, Kate E. Levine, and Ian C. Barnes, of Johnson & Levine LLC, of Chicago, for appellant.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Evan B. Elsner, Assistant Attorneys General, of counsel), for the People.

PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion.

¶ 1 Respondent, Jose Montanez, pleaded guilty to murder and aggravated criminal sexual assault based on a crime he committed in Illinois in 1987. As his 40-year sentence was expiring, the State petitioned to commit respondent as a sexually violent person (SVP). At the commitment hearing, which consisted solely of competing expert testimony, the trial court found that respondent so qualified and ordered him committed.

¶ 2 Respondent says the evidence was insufficient to support the finding. He also claims that the trial court improperly considered the underlying bases of the experts' testimony for its truth, and that the court improperly mischaracterized one expert's testimony. We find the evidence sufficient to support the finding and no error committed by the court. We thus affirm.

¶ 3 BACKGROUND

¶ 4 In 1992, respondent was arrested in California after allegedly attempting to rape two women at the apartment complex where he worked. At the time of this arrest, he was also wanted in connection with a 1987 murder committed in Illinois. Because he was suspected of murder, California dismissed its charges and extradited respondent to Illinois.

¶ 5 Illinois then charged respondent with first degree murder, aggravated criminal sexual assault, and concealing a homicidal death stemming from that 1987 murder. During trial, defendant entered a blind guilty plea to one count of first degree murder, one count of criminal sexual assault, and the concealment charge. He was ultimately sentenced to 40 years' imprisonment. See People v. Montanez , 2013 IL App (1st) 110168-U, ¶ 2, 2013 WL 3820723.

¶ 6 In October 2011, just before his anticipated release from prison, the State filed a petition under the Sexually Violent Persons Commitment Act (Act) ( 725 ILCS 207/1 et seq. (West 2010)), to commit respondent to the Department of Human Services (DHS). In December 2011, the trial court found probable cause to believe that respondent was an SVP and transferred him to DHS.

¶ 7 Over the next few years, respondent remained in DHS custody while the parties conducted their expert discovery. In 2017, nearly six years after the probable-cause finding, the case proceeded to trial. The trial testimony consisted of three expert witness, two for the State and one for respondent. The parties stipulated to the qualifications of each expert.

¶ 8 I. Dr. Allison Schechter

¶ 9 Dr. Allison Schechter performed respondent's SVP evaluation on behalf of the Illinois Department of Corrections (DOC).

When conducting an SVP evaluation, she reviews "documentation from an offender's master file, attempt[s] to conduct a clinical interview, conduct[s] a risk assessment, formulat[es] a diagnosis, formulat[es] an opinion and then writ[es] a report." The master file "contains information such as relevant court documents, police reports, and offender's Department of Corrections disciplinary record, medical records, and any other relevant documentation that's available."

¶ 10 In formulating her diagnosis and opinion, Dr. Schechter reviewed the documents in the master file. She also interviewed respondent in September 2011, while respondent was near the end of his prison sentence. Later in September 2011, she issued her first report, concluding that respondent was an SVP. She updated this report twice over the next six years, while respondent was held under the court's probable-cause finding with DHS. These updates were necessary to incorporate current records from the DHS Treatment and Detention Facility (TDF) as well as updating her diagnosis to conform to the newly released Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Respondent declined a new interview during this update process. These updates did not affect her opinions on respondent.

¶ 11 Dr. Schechter diagnosed respondent with antisocial personality disorder and drug abuse disorders. These diagnoses were consistent among all three experts and were not contested at trial. However, Dr. Schechter also diagnosed respondent with "other specified paraphilic disorder. * * * Nonconsenting females in a controlled environment."

¶ 12 She testified that, according to the DSM-5, a "paraphilia denotes any intense and persistent sexual interest other than sexual interest in genital stimulation or preparatory fondling with phenotypically normal, physically mature consenting human partners." A paraphilic disorder "is a paraphilia that is causing distress or impairment to the individual or whose satisfaction entails personal harm or risk of harm to others." Other specific paraphilic disorders are those "in which symptoms that are characteristic of a paraphilic disorder that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning predominate" but do not meet the criteria for the eight specific paraphilic disorders. Additionally, the impairment must be present for at least a six-month period.

¶ 13 In Dr. Schechter's view, the "[e]vidence suggests Mr. Montanez has demonstrated a repeated pattern that * * * is indicative of him having a sexual interest in sexual activity with females who are unwilling to engage in sexual activity with him. He seeks satisfaction of this paraphilic interest in a manner that entails personal harm or risk of harm to others." She found a "repeated pattern" based on the details of respondent's crimes contained in the master file. There was only evidence that respondent has committed three sex-related crimes: the Illinois murder, the attempted rape in California, and a charge for contributing to the sexual delinquency of a child from 1974.

¶ 14 First, the Illinois case. Dr. Schechter testified that "according to all documentation that I saw, the offense occurred in 1987 in Cook County. Mr. Montanez brought the victim back to his apartment, sexually assaulted her, strangled her to death, and then sexually assaulted her again after she was deceased." Doctor Schechter cited information in the documentation she reviewed indicating that respondent reportedly bragged to his friends about committing the crime by saying, "I f*** her, I killed her, and then I f*** her again."

¶ 15 After the murder in 1987, respondent fled to California. While in California, in 1991, the records indicated that respondent attempted to rape two women who lived in an apartment complex where he was working as a handyman. Dr. Schechter stated that "[a]ccording to police reports, photographs of the victims on the day of the offense as well as sworn testimony of the victims testifying under oath," respondent went over to the victims' apartment and told them that he "had a surprise for them, but he wanted them to come separately to see the surprise."

¶ 16 One of the victims followed. He led the victim to a vacant apartment where he "had set up an air mattress and had a hammer and duct tape." According the reports, respondent then attacked the victim and restrained her with duct tape. Respondent tried to remove the victim's pants but could not because she was wearing a belt. After subduing the first victim, respondent went back to the apartment to lure the second woman. The first victim was able to escape and alert her roommate that respondent had attempted to sexually assault her. The two women fought back, and respondent fled the scene. Though respondent was never convicted of the California crime, Dr. Schechter considered it because "it spoke to a pattern of behavior that has occurred over time."

¶ 17 As the final sex crime, Dr. Schechter considered a 1974 conviction for contributing to the sexual delinquency of a child. At the time, respondent was 17 years old. The doctor admitted that there was very limited information about this crime, but the limited information available showed that respondent was "known to be harboring and having sex with a 16-year-old girl who had been reported as missing to the police."

¶ 18 Dr. Schechter was specifically questioned about respondent's lack of sexual misconduct while incarcerated. Based on DOC records, respondent had relatively few misconduct tickets and absolutely none were, in any way, sexual in nature. Based on this, counsel asked how she could determine that respondent still had paraphilic disorder if he had not exhibited sexual misconduct since 1991. She responded that "based on all that I know about this disorder, this disorder is not likely to simply go away or remit on its own. It can be effectively managed with significant treatment, but it is not likely to simply go away on its own." Although it had been offered, respondent had not undergone therapy or treatment.

¶ 19 As noted above, Dr. Schechter also diagnosed respondent with antisocial personality disorder and various substance abuse disorders. She explained that these disorders "exacerbate the paraphilic disorder or make it worse. It makes it more likely Mr. Montanez will engage in criminal and violent behavior towards others without considering other people's rights or safety." For example, police records state that respondent indicated that "when he drinks he gets the urge to choke people. He was under the influence of substances at the time of his 1987 offense, and at the time he was arrested in California." As for the antisocial personality disorder, it is indicated by a "disregard for the safety of others" and "lack of remorse, as...