No. 2-13-1139 Opinion filed September 17, 2014 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re COMMITMENT OF PAUL ) Appeal from the Circuit Court MITCHELL ) of Winnebago County. ) ) No. 10-MR-145 ) (The People of the State of Illinois, ) Honorable Petitioner-Appellee, v. Paul Mitchell, ) Rosemary Collins, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Spence concurred in the judgment and opinion.

OPINION

¶1 In September 2013, following a bench trial, the court found respondent, Paul Mitchell, to

be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Act)

(725 ILCS 207/1 et seq. (West 2010)). The court committed respondent to a secure facility for

treatment. Respondent appeals, arguing that the court improperly denied his late jury demand

and that, therefore, he is entitled to a new trial. Respondent concedes that he has no

constitutional right to a jury trial, and he makes no argument concerning the trial court’s

discretionary powers. Rather, he argues only that, where his request was “promptly” made after

the State withdrew its own jury demand, section 2-1105(a) of the Code of Civil Procedure

(Code) statutorily entitles him to a jury trial. 735 ILCS 5/2-1105(a) (West 2010). We reject

respondent’s argument, because the Act provides different guidelines for the timeliness of jury

demands. The Act requires that a respondent request a jury trial within 10 days of the probable-

cause hearing. Respondent did not do that. Therefore, he has no statutory right to a jury trial,

and we affirm.

¶2 I. BACKGROUND

¶3 In March 2010, the State petitioned to commit respondent under the Act. On March 3,

2010, respondent, through counsel, stipulated that there was probable cause to believe that he

was a sexually violent person. He waived his right to a speedy trial. Respondent remained

detained by the Illinois Department of Human Services.

¶4 On March 8, 2010, the State filed a jury demand pursuant to section 35(c) of the Act.

That section states:

“The person who is the subject of the petition, the person’s attorney, the Attorney

General or the State’s Attorney may request that a trial under this Section be by a jury. A

request for a jury trial under this subsection shall be made within 10 days after the

probable cause hearing under Section 30 of this Act. If no request is made, the trial shall

be by the court. The person, the person’s attorney[,] or the Attorney General or State’s

Attorney, whichever is applicable, may withdraw his or her request for a jury trial.”

(Emphases added.) 725 ILCS 207/35(c) (West 2010).

¶5 Two years later, on March 1, 2012, the State orally moved to withdraw its jury demand:

“Your Honor, at this time, we are about ready to set this matter for trial. The

People have previously filed a jury demand, and we would ask that we be allowed to

withdraw our demand for a jury and proceed by way of bench trial.”

The court granted the motion. Respondent, through counsel, orally moved to submit his own

jury demand. He posited that, upon the State’s withdrawal of its jury demand, though more than

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10 days after the probable-cause hearing, he had additional time to file his own jury demand

(implicating a statutory right under the Code (735 ILCS 5/2-1105(a) (West 2010)), not the Act).

The State disagreed, and the court set the matter for hearing. Five days later, respondent filed a

written jury demand.

¶6 At the hearing, respondent no longer referenced the additional time provided by the

Code. Instead, he conceded that he had no statutory right to a jury trial. He simply requested

that the court exercise its discretion to grant him a jury trial. Respondent hinted that he had not

made his own demand because he had relied on the State’s demand (“based on Mr. Mitchell’s

reliance on that posture, all the parties have *** proceeded [as if the case remained set for jury

trial]”). He further argued that the State would not be prejudiced by his late demand for a jury

trial.

¶7 The trial court denied the motion, noting that nothing “nefarious” had taken place.

Respondent “previously indicated that he did not want a jury trial,” and, later, he simply

“changed his mind.” Respondent failed to make a jury demand within 10 days of the probable-

cause hearing, as required by the Act. The court found “no reason” to excuse the lack of

timeliness. The case proceeded to a hearing on the merits.

¶8 The evidence showed that respondent, approximately age 60, had been diagnosed with,

inter alia, pedophilia (sexually attracted to females) and personality disorder not otherwise

specified, with significant narcissistic traits (demonstrating a lack of empathy in a variety of

contexts). In recent psychological evaluations, he admitted that he had committed sexual acts

against as many as 17 victims. These victims were typically young girls or women whom

respondent perceived as innocent. He molested his daughter, his niece, and a cognitively

challenged woman. He admitted to seeking out adult relationships only so that he could have

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access to his partners’ children. He broke the conditions of his most recent release by keeping

toys within his residence (which was part of his grooming pattern to lure children) and by having

sex with the cognitively challenged woman. He recently told a treatment provider that he did not

trust himself to stop victimizing others.

¶9 Upon the trial court’s finding that he was a sexually violent person, respondent moved to

reconsider. He alleged, inter alia, that the trial court erred in denying his late jury demand. The

court denied the motion to reconsider. This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 Respondent argues that the trial court erred in denying his late jury demand. Respondent

concedes that he has no constitutional right to a jury trial in proceedings under the Act (In re

Detention of Samuelson,

(2000) (there is no constitutional right to a jury

trial in a sexually-violent-person case)), and he makes no argument that the trial court should

have exercised its discretionary powers to grant him a jury trial. Rather, he posits that he has a

statutory right to a jury trial. 1

¶ 12 Respondent points to section 2-1105(a) of the Code in support of his argument that he is

statutorily entitled to a jury trial. 735 ILCS 5/2-1105(a) (West 2010). Pursuant to section 2-

1105(a) of the Code, a defendant shall have a trial by jury when the demand is made “promptly”

after the plaintiff’s withdrawal of its jury demand. (Emphasis added.)

Because respondent

orally made his demand the same day that the State withdrew its own demand and the trial court

1 We acknowledge that, at trial, respondent did not argue that he had a statutory right to a

jury trial. Rather, he urged the trial court to exercise its discretion to grant him one. However,

because respondent never abandoned his position that he was entitled to a jury trial, and because

the question raised on appeal can be determined as a matter of law, we address the argument.

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then and there agreed to hear the issue (and respondent filed his written jury demand five days

later), there is no question that respondent’s demand was made “promptly” after the State’s

withdrawal. Therefore, if section 2-1105(a) of the Code applies, respondent is statutorily entitled

to a jury trial. Respondent urges that section 2-1105(a) should apply, because provisions of the

Code apply to proceedings under the Act, except as otherwise provided by the Act. 725 ILCS

207/20 (West 2010).

¶ 13 However, as will be explained, section 2-1105(a) does not apply, because the Act

provides adequate instructions on the topic of jury demands such that one need not look to the

Code. Additionally, we note that the First District, in People v. Miller,

, has already heard, and rejected, the same statutory-interpretation argument raised by

respondent. Respondent has made no attempt to challenge the rationale set forth in Miller, which

we largely adopt herein.

¶ 14 We review issues of statutory construction de novo. In re Detention of Hardin,

(2010). The primary goal of statutory interpretation is to ascertain and effectuate the

legislature’s intent in enacting the statute. People v. Marshall,

(2011). The

best indicator of intent is the plain and ordinary meaning of the statute’s language.

Where

the language is clear and unambiguous, we apply the statute without reading into it any

conditions, exceptions, or limitations not expressed by the drafter. Timothy Whelan Law

Associates, Ltd. v. Kruppe,

(2011). We interpret each provision not in

isolation but in light of the statute as a whole. People v. Spurlock,

(2009).

¶ 15 Here, as we have discussed, the two provisions at issue are section 2-1105(a) of the Code

and section 35(c) of the Act. Section 2-1105(a) states:

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“A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the

time the action is commenced. A defendant desirous of a trial by jury must file a demand

therefor not later than the filing of his or her answer. Otherwise, the party waives a jury.

*** If the plaintiff files a jury demand and thereafter waives a jury, any defendant and,

in the case of multiple defendants, if the defendant who filed a jury demand thereafter

waives a jury, any other defendant shall be granted a jury trial upon demand therefor

made promptly after being advised of the waiver and upon payment of the proper fees, if

any, to the clerk.” (Emphases added.) 735 ILCS 5/2-1105(a) (West 2010).

Section 35(c) states:

“The person who is the subject of the petition, the person’s attorney, the Attorney

General or the State’s Attorney may request that a trial under this Section be by a jury. A

request for a jury trial under this subsection shall be made within 10 days after the

probable cause hearing under Section 30 of this Act. If no request is made, the trial shall

be by the court. The person, the person’s attorney[,] or the Attorney General or State’s

Attorney, whichever is applicable, may withdraw his or her request for a jury trial.”

(Emphases added.) 725 ILCS 207/35(c) (West 2010).

¶ 16 We reject respondent’s argument, because we disagree with its underlying premise, i.e.,

that the Act does not adequately set forth the time by which a respondent must make a jury

demand. The Act specifies that a respondent shall make his or her demand for a jury trial within

10 days of the probable-cause hearing; otherwise, the trial shall be by court. The Act further

specifies that whichever party made the demand may withdraw it. It does not, however, state

that such a withdrawal reactivates the other party’s opportunity to demand a jury trial. Where

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the plain language does not include an exception to the 10-day rule, we should not read an

exception into the statute. See, e.g., Timothy Whelan,

.

¶ 17 As noted by the First District in Miller, section 35(c) of the Act and section 2-1105(a) of

the Code each govern the same issue: when to file a jury demand in proceedings under each

respective statute. Miller,

. Notably, although section 2-1105(a)

states that a defendant shall be granted a jury trial if the demand is made promptly upon the

plaintiff’s withdrawal, it is not a distinct section but, rather, is part of the section that sets forth

the general deadlines for filing a jury demand.

If the legislature had intended for a similar

exception to apply upon the State’s withdrawal of a jury demand during proceedings under the

Act, it could have so stated in the Act’s section detailing the general deadlines for filing a jury

demand.

¶ 18 Moreover, as also noted by the First District in Miller, the legislative history indicates

that the legislature did not intend for the State’s withdrawal to provide an exception to the 10-day

rule. Id. ¶ 19. In enacting section 35(c), it seems, the legislature initially drafted the section to

state that the jury demand may be withdrawn only if the party that did not make the demand

consents to the withdrawal. See 90th Ill. Gen. Assem., Senate Bill 6, 1997 Sess., Summary. 2

However, a subsequently adopted amendment to the draft “[e]liminate[d] the requirement that

the jury trial may be withdrawn only if the party that did not make that request consents to the

withdrawal.” Id. Indeed, as the current provision stands, there is no such requirement. 725

ILCS 207/35(c) (West 2010). The Act’s stricken requirement that the respondent must consent

to the State’s withdrawal is effectively the same as the Code’s standing requirement that the

2 This document can be found at http://www.ilga.gov/legislation/legisnet90/summary/900

SB0006.html.

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defendant be allowed to promptly submit his or her own jury demand upon the plaintiff’s

withdrawal. Miller,

. That the legislature chose to strike the

requirement in the Act and leave it standing in the Code evinces an intent that a respondent

subject to proceedings under the Act must make his or her jury demand within 10 days following

the probable-cause hearing, regardless of the State’s actions.

¶ 19 We express no opinion as to whether a trial court could or should exercise its discretion

to grant a respondent a jury trial when the demand is made promptly after the State’s withdrawal

of its jury demand. In any case, here, the trial court rejected the factual assertions underlying

respondent’s request that it exercise its discretionary powers. The court stated that respondent

had not relied on the State’s jury demand but had “previously indicated that he did not want a

jury trial” and, later, simply “changed his mind.” Therefore, in the court’s view, this was not a

situation where respondent had a proverbial rug pulled out from underneath him. Here, the only

question before us is whether a respondent in proceedings under the Act has a statutory right to a

jury when a demand is made promptly upon the State’s withdrawal of its demand but more than

10 days after the probable-cause hearing. For the above-stated reasons, we answer in the

negative.

¶ 20 III. CONCLUSION

¶ 21 For the aforementioned reasons, we affirm the judgment of the trial court.

¶ 22 Affirmed.

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