No. 2-13-0372 Opinion filed September 26, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re COMMITMENT OF FRANKIE N. ) Appeal from the Circuit Court WALKER, SR. ) of Lake County. ) ) No. 07-MR-152 ) (The People of the State of Illinois, Petitioner- ) Honorable Appellee, v. Frankie N. Walker, Sr., ) Victoria A. Rossetti, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices Schostok and Spence concurred in the judgment and opinion.

OPINION

¶1 Respondent, Frankie N. Walker, Sr., was adjudicated a sexually violent person (SVP) and

committed to confinement in a secure facility. He now appeals, raising a number of issues

regarding the authority of the trial court and the conduct of the proceedings below. For the

reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 In February 2007, the State filed a petition seeking respondent’s commitment in

accordance with the Sexually Violent Persons Commitment Act (Act or SVPA) (725 ILCS 207/1

et seq. (West 2006)). The petition alleged that defendant had pleaded guilty to the offense of

attempted predatory criminal sexual assault of a child. It also alleged that respondent had been

diagnosed by Dr. Ray Quackenbush with paraphilia, not otherwise specified (NOS), nonconsent,

which it described as “a congenital or acquired condition affecting [respondent’s] emotional or

volitional capacity, which predisposes [respondent] to commit acts of sexual violence.” It

continued, “Respondent is dangerous because this mental disorder makes it substantially

probable that he will engage in acts of sexual violence.” Quackenbush’s report was attached to

the petition. Following a hearing, the trial court found that there was probable cause to believe

that respondent is a sexually violent person within the meaning of section 5(f) of the Act (725

ILCS 207/5(f) (West 2006) (“ ‘Sexually violent person’ means a person who has been convicted

of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or

has been found not guilty of a sexually violent offense by reason of insanity and who is

dangerous because he or she suffers from a mental disorder that makes it substantially probable

that the person will engage in acts of sexual violence.”)). In April 2007, pursuant to

respondent’s request, the trial court appointed Dr. Ronald Baron as respondent’s expert.

Respondent was also examined by Dr. Raymond Wood on behalf of the State.

¶4 On July 8, 2008, the parties entered into a stipulation. Before accepting the stipulation,

the trial court addressed respondent:

“THE COURT: Before we go forward with [the stipulation], Mr. Walker, have

you gone over all of this with [your attorney]?

[RESPONDENT]: Yes.

THE COURT: Do you have any other questions or issues you need to go over

with him?

[RESPONDENT]: No.

THE COURT: Do you understand that you do have the right to a jury trial. Your

trial could be either in front of a Judge or in front of a jury. You understand that?

-2-

[RESPONDENT]: Yes.

THE COURT: Do you have any other questions about that that you need to go

over with [your attorney]?

[RESPONDENT]: About the trial? No, ma’am.

THE COURT: You understand that at the trial the State would bring in their

witnesses who would testify. You understand that?

[RESPONDENT]: Yes, I do.

THE COURT: [Your attorney] would have the ability to cross-examine or

question them. You understand that?

[RESPONDENT]: Yes.

THE COURT: You could bring in witnesses.

[RESPONDENT]: Okay.

THE COURT: You could testify if you wanted to. Do you understand that?

[RESPONDENT]: Yes, I do.

THE COURT: After going over this with [your attorney] again this is what you

choose to do?

[RESPONDENT]: I do.

THE COURT: Has anybody forced you or threatened you to get you to do this?

[RESPONDENT]: No, ma’am.

THE COURT: Have you been promised anything?

[RESPONDENT]: No.”

The State then went over what Quackenbush and Wood would testify to. The trial court again

addressed respondent:

-3-

“THE COURT: Mr. Walker, you have gone over that stipulation with [your

attorney]?

[RESPONDENT]: Yes.

THE COURT: You understand what was presented this morning?

[RESPONDENT]: Yes, I do.

After the stipulation was presented, the trial court stated, “[B]ased on the stipulation the Court

will find that you are a sexually violent person.”

¶5 The stipulation provided:

(1) “that [t]his Stipulation and Agreement is entered into by the Respondent freely

and voluntarily and after consulting with his attorney,”

(2) “that the Respondent has read and understands the allegations and request for

relief contained in the Petition for Sexually Violent Person Commitment filed herein,”

(3) “that Respondent understands that he has the right to deny the Petition or to

admit to the Petition,”

(4) “that Respondent waives the right to have a mental health professional present

evidence at trial,”

(5) “that Respondent waives his right to a trial by a jury or by a judge,”

(6) “that Respondent waives his right to present evidence at trial,”

(7) “that the Respondent waives his right to have the People prove that he is a

sexually violent person beyond a reasonable doubt,”

(8) “that Respondent has been adjudicated delinquent of the sexually violent

offense of Attempt Predatory Criminal Sexual Assault of a Child in Lake County,

Illinois, in 2002, in case number 02 CF 448,”

-4-

(9) “that if this case was to proceed to trial, the People would call Dr. Ray

Quackenbush and Dr. Ray Wood to testify,”

(10) “that Dr. Quackenbush and Dr. Wood are experts in clinical psychology in

the evaluation and treatment of sex offenders,”

(11) “that if Drs. Quackenbush and Wood were called to testify at trial, they

would testify to facts and information as contained in their evaluation reports dated

January 31, 2007 (Dr. Quackenbush) and May 25, 2007 (Dr. Wood), and previously filed

in this cause, attached as Exhibits A and B,”

(12) “that if Drs. Quackenbush and Wood were called to testify at trial, they

would testify that based on their experience, education, training, review of Respondent’s

records and their interviews of the Respondent, it is their opinion, within a reasonable

degree of psychological certainty, that the Respondent suffers from the mental disorders

of Paraphilia, Not Otherwise Specified, Nonconsent (Dr. Quackenbush) and Paraphilia,

Not Otherwise Specified, Sexually Attracted to Non-Consenting Females, Nonexclusive

type and Pedophilia, Sexually Attracted to Females, Nonexclusive Type (Dr. Wood).

Drs. Quackenbush and Wood would also testify that these mental disorders are congenital

or acquired conditions that seriously affect the Respondent’s emotional or volitional

capacity and predispose him to engage in acts of sexual violence. Drs. Quackenbush and

Wood would also testify that these mental disorders cause Respondent serious difficulty

in controlling his behavior. Drs. Quackenbush and Wood would also testify that

Respondent is dangerous because his mental disorders make it substantially probable that

Respondent will engage in future acts of sexual violence,”

(13) “that the Respondent is a sexually violent person,”

-5-

(14) “that Respondent has the right to a predispositional report and the right to a

dispositional hearing,” and

(15) “that the Respondent is committed to the custody of the Department of

Human Services for control, care and treatment in a secure setting until his dispositional

hearing.”

Both respondent and his attorney personally signed the stipulation. The trial court also entered

an agreed order on that date. The order found that respondent’s attorney read to respondent—

and that respondent understood—the allegations against him; that he understood that he could be

committed to the custody of the Illinois Department of Human Services (DHS) until he is no

longer a sexually violent person; that respondent’s attorney read to respondent—and that

respondent understood—the stipulation; and that respondent is a sexually violent person. The

court committed respondent to the custody of DHS. In September 2008, the court appointed Dr.

Kirk Witherspoon to serve as respondent’s expert. Respondent received Witherspoon’s report on

March 31, 2009.

¶6 On that same day, respondent moved to withdraw the stipulation. Respondent alleged

that his decision to enter into the stipulation was based on the reports by Quackenbush and

Wood. However, respondent alleged, there were several problems with the bases for their

opinions. The trial court denied the motion. The trial court ruled, inter alia, that the mere fact

that respondent found Witherspoon’s report more favorable did not amount to a showing of good

cause to withdraw the stipulation.

¶7 On July 16, 2009, respondent moved to proceed pro se. The trial court granted the

motion. Respondent then moved the court to reconsider its denial of his motion to withdraw the

stipulation. Respondent also sought the appointment of standby counsel. Both motions were

-6-

denied. Respondent filed additional motions attacking the stipulation, all of which were denied.

Respondent also unsuccessfully raised the issue of the effectiveness of the representation he had

received.

¶8 A dispositional hearing was held over two dates in March 2013. At the beginning of the

hearing, respondent informed the trial court that he was not prepared to proceed. The trial court

noted that respondent had “filed the exact same motions since 2007 on the road towards the

dispositional hearing.” It then ruled that the hearing would proceed.

¶9 The State called Wood, a clinical psychologist. Wood testified to his credentials, and the

trial court recognized him as an expert in the field of “clinical and forensic psychology,

specifically in the area of sexually violent persons’ evaluations, diagnosis and risk assessment

and treatment.” Respondent answered negatively when the trial court asked him if he had any

objection. Wood examined respondent “relative to potential commitment as a sexually violent

person.” Wood interviewed respondent in 2007 and 2008; however, respondent declined to

participate in a 2009 interview.

¶ 10 Wood testified that respondent had committed sexually violent offenses. The predicate

offense to the instant petition involved the “eight-year-old daughter of his wife.” The victim

reported being assaulted on two or three occasions in February 2002. Respondent pleaded guilty

to attempted predatory criminal sexual assault of a child and received an 11-year sentence.

Respondent told Wood that his motivation for the assaults was “to seek some measure of revenge

because he believed his wife had been unfaithful.” While respondent felt some justification for

the assaults, he also felt some remorse.

¶ 11 Wood testified that in 1990, when respondent was 21 years old, he raped an 18-year-old

woman. He followed her off a bus to a dark area where he threatened her and sexually assaulted

-7-

her. He was convicted and served an eight-year prison sentence. Wood stated that respondent

had been arrested for 21 other offenses, including robbery, domestic abuse, batteries, and

violations of restraining orders.

¶ 12 Wood diagnosed respondent with paraphilia, NOS, sexually attracted to nonconsenting

females, nonexclusive type. He also diagnosed respondent with pedophilia, sexually attracted to

females, nonexclusive type. He further diagnosed alcohol dependence, cannabis and cocaine

abuse (Wood stated that he was not certain if it was abuse or dependence), and antisocial

personality disorder with narcissistic features. Wood noted that respondent was known to have

engaged in “nonconsensual sexual conduct” on two occasions. Moreover, when assessed during

his most recent incarceration, “there was evidence of arousal to coercive sexual contact.”

Additionally, “[t]here was also evidence of sexual arousal to grammar- and adolescent-age

females.” Wood further explained that alcohol use diminishes inhibitions and that antisocial

personality disorder involves a lack of concern for the rights and welfare of others; both

conditions increase “the predisposition to *** deviant paraphilic acts.”

¶ 13 At the detention facility, Wood explained, treatment could involve up to 10 sessions per

week, consisting of up to 21 hours per week (during cross-examination, Wood acknowledged

that only 15 of these hours would be sex-offender-specific treatment). There are also “ancillary”

or “offense related” treatments available to residents. Conversely, treatment for individuals on

conditional release typically consisted of two sessions per week of an hour-and-a-half each.

Wood opined that respondent needed the “intense” treatment available only at the detention

facility. In Wood’s opinion, outpatient treatment would be inadequate. During cross-

examination, respondent attacked the bases of Wood’s opinions as well as their timeliness.

Following Wood’s testimony the State rested. Respondent presented no witnesses.

-8-

¶ 14 The trial court noted that it had to consider three factors in accordance with section 40 of

the Act (725 ILCS 207/40 (West 2006)), specifically, the nature and circumstances of the

predicate behavior alleged in the SVP petition; respondent’s mental history and his present

mental condition; and the arrangements available to ensure that respondent has access to and will

participate in treatment he needs. As to the first consideration, the trial court observed that

respondent pleaded guilty to attempted predatory criminal sexual assault in 2002 and that in 1990

he was convicted of aggravated criminal sexual assault. Regarding the second factor, the court

noted Wood’s diagnoses of paraphilia, pedophilia, alcohol abuse, and antisocial personality

disorder. On the third factor, the trial court noted the difference in the amount of treatment

available in a secured facility as opposed to while on conditional release as well as the fact that

respondent had not participated in treatment during the 6½ years he had been detained leading up

to the dispositional hearing. Hence, the trial court found that respondent was in need of intensive

treatment and that the least restrictive environment in which respondent could receive such

treatment was secure detention. This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Respondent raises a number of issues on appeal. First, he contends that section 40 of the

Act (725 ILCS 207/40 (West 2006)) is unconstitutional because it does not allow him to demand

that factual issues be resolved by a jury and because it permits detention on proof less than

beyond a reasonable doubt. Second, respondent asserts that a finding that confinement was

necessary to prevent him from committing sex offenses in the future, which the trial court did not

make, was required before he could be detained. Third, he argues that the trial court should not

have accepted his stipulation, because no provision of the Act authorizes such a procedure.

Fourth, he claims that the trial court took inadequate steps to ensure that he understood the

-9-

consequences of the stipulation. Fifth, he argues that he received ineffective assistance of

counsel when his attorney permitted him to enter into the stipulation. Sixth, he protests the trial

court’s failure to hold a Krankel hearing (see People v. Krankel,

(1984)).

Seventh, respondent alleges that the trial court should have held a “meaningful evidentiary

hearing” on his motion to withdraw his stipulation. Eighth, he asserts that the trial court should

have held a Frye hearing (see Frye v. United States,

(D.C. Cir. 1923)) regarding

certain methodologies employed by Wood. We will address these issues in the order raised by

respondent.

¶ 17 A. CONSTITUTIONALITY OF SECTION 40 OF THE ACT

¶ 18 Respondent first claims that section 40 of the Act (725 ILCS 207/40 (West 2006)) is

unconstitutional. The constitutionality of a statute is an issue we review de novo. People v.

Malchow,

(2000). Any doubts are to be resolved in favor of upholding the

validity of the statute. People v. Jamesson,

(2002). Respondent first

argues that factual issues should have been decided by a jury. He also asserts that the

reasonable-doubt standard should apply in these proceedings. We find neither contention

persuasive.

¶ 19 Respondent’s argument regarding a jury-trial right attaching to such proceedings rests

entirely on Apprendi v. New Jersey,

(2000). Apprendi, of course, was a criminal

case.

Proceedings under the Act are civil. 725 ILCS 270/20 (West 2006). Respondent cites

no case applying Apprendi’s rule in a civil proceeding. In People v. Wagener,

(2001), our supreme court adopted a narrow interpretation of Apprendi’s reach, refusing to

extend it to cover consecutive sentences:

- 10 -

“We are bound to follow the United States Supreme Court’s interpretation of the

Constitution of the United States. [Citations.] But we are not bound to extend the

decisions of the Court to arenas which it did not purport to address ***.”

Hence, absent some compelling authority justifying such an extension, none of which has been

called to our attention, we cannot simply disregard the supreme court’s admonishment and

extend Apprendi to civil proceedings.

¶ 20 We turn now to respondent’s contention that the reasonable-doubt standard should apply

to proceedings under section 40 of the Act. Indeed, he contends that the section is

unconstitutional because if fails to specify who bears the burden of proof and what that burden

is. Statutes are presumed constitutional, and the party challenging the statute bears the burden of

establishing its unconstitutionality. People v. Aguilar,

, ¶ 15. Moreover, a court

has a duty to construe a statute in a way that upholds its validity and constitutionality, if that can

reasonably be done. Id.

¶ 21 Constitutional challenges come in two varieties: facial and as applied. See People v.

Normand,

(2004). To succeed on an as-applied challenge, a party need

show only that the statute is unconstitutional as it is enforced upon him or her. See Vuagniaux v.

Department of Professional Regulation,

(2003). Facial challenges are more

difficult. Tomm’s Redemption, Inc. v. Hamer,

. Mounting a

successful facial challenge requires that a party demonstrate that there are no circumstances

under which the statute could be constitutionally applied. Jackson v. City of Chicago,

. A successful facial challenge voids a statute in all contexts for all

parties.

Where a statute is challenged on its face, the facts of a party’s particular case are

irrelevant. Id. ¶ 27.

- 11 -

¶ 22 Respondent’s challenge is clearly facial. He asserts that section 40 is fatally,

constitutionally flawed because it does not specify a burden of proof and that, constitutionally, it

should require proof beyond a reasonable doubt. While it is true that the trial court did not

specify what burden of proof it was applying, we note that the trial court made an affirmative

finding that respondent “is in need of intensive treatment and the least restrictive facility for

treatment is in secured detention.” Thus, it is apparent that the trial court based its decision on

the State’s presentation of evidence rather than respondent’s failure to prove that detention was

not appropriate. As such, the burden of proof was clearly on the State. Moreover, that the trial

court did not identify what burden of proof it was using would not typically be a basis to disturb

its decision. Trial judges are presumed to know the law. People v. Koch,

(1993). Absent some indication in the record to the contrary, we presume that the judge

applied the law correctly. People v. Blair,

(2005). Assuming, arguendo,

that respondent is correct that the reasonable-doubt standard applies, respondent points to

nothing in the record that would suggest that the trial court did not apply it, so an as-applied

challenge would necessarily fail. In any event, as respondent’s challenge is facial, the conduct of

the dispositional hearing in this case is beside the point.

¶ 23 Instead, we must consider whether section 40 is constitutionally sound. That is, we must

consider whether a set of circumstances exists under which the law could be constitutionally

applied. Jackson,

. Respondent relies on People v. Pembrock,

(1976), and People v. Trainor,

(2001), in support of his argument.

Both cases concern versions of the Sexually Dangerous Persons Act (SPDA) (Ill. Rev. Stat.

1971, ch. 38, ¶ 105-1.01 et seq.; 725 ILCS 205/1.01 et seq. (West 1998)). There are differences

between the SPDA and the SVPA. See People v. Runge,

(2004) (“A

- 12 -

person committed to DHS or awaiting commitment under the Sexually Violent Persons Act has

been previously convicted of a sexually violent offense or found not guilty of such offense by

reason of insanity. [Citation.] In this respect, such persons are not similarly situated to persons

committed under the Sexually Dangerous Persons Act [citation], who have been charged but not

convicted, or to other residents of DHS, whose involuntary commitment does not follow a

criminal conviction for a sexually violent offense.”). Nevertheless, the acts are sufficiently

similar such that the cases cited by respondent provide us with some guidance. We will

therefore assume—for the sake of argument—that due process requires the application of the

reasonable-doubt standard in proceedings under section 40.

¶ 24 However, nothing in section 40 precludes the application of that standard. Assuming that

respondent is correct that these cases require the use of the reasonable-doubt standard in

proceedings under section 40, there is no reason that the trial court could not rely upon them and

apply that standard to such proceedings. In People v. Boand,

(2005),

the defendant argued that “the drug-induced-homicide statute [was] unconstitutionally vague

because it does not specify what mental state subjects an accused to criminal liability.” The

Boand court rejected the constitutional challenge, explaining that “the drug-induced-homicide

statute incorporates the ‘knowing’ mental state element from section 401 of the [Illinois

Controlled Substances] Act.”

. Thus, it is apparent that a court may look beyond the

four corners of a statute in assessing its constitutionality. This is particularly true where, as here,

nothing in the statute precludes looking to relevant case law or contradicts the substance of those

cases. See People v. Masterson,

(2003) (holding that portions of the SVPA

should be “read into” the SDPA to cure potential constitutional problem); see also People v.

Burgess,

(1997) (“A limiting construction may save a statutory aggravating

- 13 -

circumstance that must otherwise be considered unconstitutionally vague under the eighth

amendment.”); People v. Hill,

(2002) (“A statute regulating conduct is

overbroad if it (1) criminalizes a substantial amount of protected behavior, relative to the law’s

plainly legitimate sweep; and (2) is not susceptible to a limiting construction that avoids

constitutional problems.”). In sum, nothing in section 40 prevents a trial court from applying the

reasonable-doubt standard (assuming it applies) and respondent has failed to show that the

section is incapable of constitutional application. Accordingly, his facial challenge to its

constitutionality fails.

¶ 25 B. FINDING OF FUTURE DANGEROUSNESS

¶ 26 Respondent argues that, in accordance with the supreme court’s decision in Masterson, a

prerequisite to secure detention was a finding that it was necessary to prevent him from

committing future acts of sexual violence. The State contends that Masterson does not apply

here. We conclude that the SVPA already incorporates the principles set forth in Masterson; as

such, it provides no basis for granting any relief to respondent.

¶ 27 Initially, we note that, to the extent that respondent argues that—in addition to the other

findings required by the SVPA—Masterson requires a separate finding that secure confinement

is necessary to prevent him from engaging in future acts of sexual violence, his argument is not

well taken. We have already held that a trial court need not select the least restrictive alternative

during section 40 proceedings. In re Commitment of Brown,

(citing In re Detection of Lenczycki,

(2010) (“Illinois case law also

suggests that selecting the ‘least restrictive alternative’ is a requirement under certain statutes,

but it is not a constitutional requirement of due process” (citing Bernstein v. Department of

Human Services,

(2009)))). Moreover, we note that respondent’s

- 14 -

assertion that a finding of sexual dangerousness must occur during the course of section 40

proceedings is unsupported by citation to authority. In fact, as we explain below, such a finding

must be made at an earlier stage. As such, the SVPA satisfies the requirements imposed by the

supreme court in Masterson, and that case requires no additional finding regarding the necessity

of confinement.

¶ 28 In Masterson, the supreme court considered whether the SDPA (725 ILCS 205/1.01 et

seq. (West 2000)) was constitutional in light of two recent United States Supreme Court

decisions (Kansas v. Hendricks,

(1997), and Kansas v. Crane,

(2002)). The issue, in conformance with this line of cases, was whether the SDPA required a

finding that a respondent had “serious difficulty” in controlling his or her behavior. Masterson,

.

¶ 29 Our supreme court determined that this act met “minimum constitutional standards”:

“The language of the SDPA implies that the mental disorder which afflicts the subject of

the commitment proceeding must be causally related to the person’s propensity to

commit sex offenses, and the requirement that the person has demonstrated that

propensity by his or her actions is an important indicator of both mental abnormality or

disorder and future dangerousness, as Hendricks acknowledged. See Hendricks,

***. By acting upon their propensities, those suffering from mental disorders

demonstrate dangerousness and impaired volitional capacity. Dangerousness and lack of

control are the touchstones for civil commitment under Hendricks.” (Emphases in

original.) Id. at 328.

It acknowledged, however, that the SDPA suffered from “certain significant ambiguities”: “we

note that the SDPA, unlike similar statutes in other states and our own SVPA, does not

- 15 -

specifically address volitional capacity, it fails to define the term ‘mental disorder’ and it does

not provide an explicit standard for gauging the probability or likelihood that the subject of the

proceeding will commit sexual offenses in the future.” (Emphasis in original.) Id. at 328-29. As

the SDPA was unclear, it looked to the SVPA for guidance. Id. at 329. It held that “the SVPA’s

definition of ‘mental disorder’ should be read into the SDPA to the extent consistency allows and

augmented with the standard that appears to emerge from Crane,” and it “construe[d] the term

‘mental disorder,’ as used in the SDPA, to mean a congenital or acquired condition affecting the

emotional or volitional capacity that predisposes a person to engage in the commission of sex

offenses and results in serious difficulty controlling sexual behavior.” Id. It ultimately

concluded that “a finding of sexual dangerousness premised upon the elements of section 1.01 of

the SDPA (725 ILCS 205/1.01 (West 2000)) must hereafter be accompanied by an explicit

finding that it is ‘substantially probable’ the person subject to the commitment proceeding will

engage in the commission of sex offenses in the future if not confined.” Masterson,

. Put succinctly, the Masterson court incorporated the requirement contained in section 5 of

the SVPA—that it be substantially probable that a respondent will engage in future acts of sexual

violence—into the SDPA’s definition of “sexually dangerous person” (see 725 ILCS 205/1.01

(West 2000)).

¶ 30 That is, Masterson took a requirement from the SVPA—the act at issue here—and

applied it to the SDPA. Respondent now contends that this requirement should be applied to the

SVPA. The obvious problem for respondent is that this requirement already applies to the

SVPA. It does not, however, apply to the section 40 proceeding.

¶ 31 Section 5 of the Act defines “sexually violent person” as:

- 16 -

“a person who has been convicted of a sexually violent offense, has been adjudicated

delinquent for a sexually violent offense, or has been found not guilty of a sexually

violent offense by reason of insanity and who is dangerous because he or she suffers from

a mental disorder that makes it substantially probable that the person will engage in acts

of sexual violence.” 725 ILCS 207/5(f) (West 2006).

Section 35 provides that “[i]f the court or jury determines that the person *** is a sexually

violent person, the court shall enter a judgment on that finding and shall commit the person as

provided under Section 40 of this Act.” 725 ILCS 207/35(f) (West 2006). Section 40 provides,

in pertinent part, “In determining whether commitment shall be for institutional care in a secure

facility or for conditional release, the court shall consider the nature and circumstances of the

behavior that was the basis of the allegation in the petition under paragraph (b)(1) of Section 15,

the person’s mental history and present mental condition, *** and what arrangements are

available to ensure that the person has access to and will participate in necessary treatment.” 725

ILCS 207/40(b)(2) (West 2006).

¶ 32 Respondent contends that in the section 40 proceeding the trial court had to find that it is

“substantially probable that [he] will engage in acts of sexual violence” (725 ILCS 207/5(f)

(West 2006)) prior to ordering secure confinement. Respondent concedes that he “entered into a

stipulation that appears to satisfy sections 5 and 35 of the [SVPA].” Indeed, respondent

stipulated that he “waives his right to have the People prove that he is a sexually violent person

beyond a reasonable doubt.” The substantially-probable criterion is relevant to the determination

of whether respondent is a “sexually violent person,” as the definition of this term in section 5

makes clear. Moreover, that determination is made in a section 35 proceeding. As such, prior to

the dispositional proceeding under section 40, it was already established—via respondent’s

- 17 -

stipulation—that respondent is a sexually violent person and that it is therefore “substantially

probable that [he] will engage in acts of sexual violence.” There was no need for the trial court

to revisit this issue during the section 40 proceeding.

¶ 33 C. THE STIPULATION

¶ 34 Respondent next makes two attacks upon the stipulation itself. First, he argues that the

stipulation was not authorized by the Act. Second, he contends that the trial court failed to

ensure that he understood his rights and what he was doing when he entered into the stipulation.

¶ 35 1. Whether the Stipulation was Authorized

¶ 36 We find respondent’s first contention ill taken. Respondent argues that nothing in the

Act authorized the stipulation; therefore, he asserts, the trial court should not have accepted it.

Essentially, respondent is arguing that a respondent in proceedings under the Act must be

compelled to partake in an evidentiary hearing, even where he or she does not desire one. We

cannot infer such a rule from the fact that the Act does not expressly contemplate stipulations.

Indeed, respondent points to no authority barring the use of stipulations in proceedings under the

Act. As the State points out, stipulations are generally favored, as they promote the efficient

disposition of cases, simplify issues, and reduce the expense of litigation. People v. Woods,

(2005). Stipulations will be enforced unless unreasonable, procured by fraud, or

violative of public policy. Fitzpatrick v. Human Rights Comm’n,

(1994). Respondent also analogizes his stipulation to a guilty plea; however, as noted,

proceedings under the Act are civil. 725 ILCS 270/20 (West 2006); In re Detention of

Samuelson,

(2000).

¶ 37 Respondent also argues that he should not have been allowed to stipulate to a legal

conclusion. Citing American Pharmaseal v. TEC Systems,

(1987),

- 18 -

respondent argues that such stipulations invade the province of the trial court. It is true that,

“while parties may bind themselves by stipulation, they ‘cannot bind a court by stipulating to a

question of law or the legal effect of facts.’ ”

(quoting Domagalski v. Industrial Comm’n,

(1983)). The problem with the stipulation in American Pharmaseal was that,

beyond stipulating to the amount of damages, it “direct[ed] the court as to how it must assess the

amount of judgment based on those stipulated facts and any comparative fault the jury might

attribute to the plaintiff.”

In this case, the parties simply stipulated that respondent was a

sexually violent person; they did not attempt to direct the trial court as to how to proceed in light

of the stipulation. Indeed, the trial court made its own finding that respondent was a sexually

violent person: “[B]ased on the stipulation the Court will find that you are a sexually violent

person.” As such, the stipulation did not share the defect that the stipulation in American

Pharmaseal possessed. Accordingly, that case is distinguishable.

¶ 38 In short, respondent’s contention that stipulations cannot be used in proceedings under

the Act, because they are not expressly statutorily authorized, is wholly unpersuasive.

¶ 39 2. Admonishments

¶ 40 Respondent next contends that the trial court should not have accepted his stipulation

without taking steps to ensure that he understood the consequences of the stipulation.

Specifically, respondent contends that the trial court should have: (1) taken steps to ensure that

he understood “every aspect and implication of his stipulation”; (2) advised him of the rights he

was giving up under section 35 (see 725 ILCS 207/35 (West 2006)); (3) advised him of the

nature of a hearing under section 40 (see 725 ILCS 207/40 (West 2006)); (4) advised him of his

right to move to withdraw the stipulation; and (5) ensured that he understood the evidence

- 19 -

against him. We review these issues de novo. People v. DePaolo,

(2000); see also People v. Saleh,

.

¶ 41 Initially, we note that respondent relies largely upon cases involving guilty pleas. In

People v. Phillips,

(2005), upon which respondent relies, the supreme court

held that, where a stipulation is the functional equivalent of a guilty plea, a trial court must

admonish the defendant regarding the implications and consequences of the stipulation.

Respondent’s reliance on such cases is of dubious value. As we have previously noted,

proceedings under the Act are civil. 725 ILCS 270/20 (West 2006); Samuelson,

. Moreover, the objective of detention under the Act is treatment, not punishment. In re

Detention of New,

(citing In re Lance H.,

); In re Detention of Cain,

(2003) (“Civil commitment is

nonpunitive and lasts only so long as is necessary to address an individual’s problems.”). Hence,

cases involving guilty pleas provide little guidance here. That said, we turn to respondent’s first

argument.

¶ 42 Respondent first argues that the trial court was obligated to ensure that he had a “full

understanding of what he was giving up” and to “ensure [his] understanding of every aspect and

implication of the stipulation.” This exceeds even what is required of a trial court when it

accepts a guilty plea. Quite simply, a trial court need not inform a criminal defendant of every

“aspect and implication” of a plea. It is well settled, for example, that a criminal defendant need

not be aware of the collateral consequences of a plea. People v. Williams,

(1999). Respondent provides us with no basis to impose a greater duty on the trial court in the

present context.

- 20 -

¶ 43 Next, respondent claims that the trial court should have advised him of the rights he was

waiving under section 35. He relies exclusively on cases from the criminal milieu. Respondent

asserts that the trial court should have explained to him that the State would have to prove

beyond a reasonable doubt each element required by the Act. However, the stipulation signed by

respondent stated that he “waives his right to have the People prove that he is a sexually violent

person beyond a reasonable doubt.” Though the elements were not mentioned here, the

stipulation elsewhere stated that respondent “read and understands the allegations and request for

relief contained in the Petition for Sexually Violent Person Commitment filed herein.”

Moreover, the trial court orally inquired of respondent whether he had gone over the stipulation

with his attorney and whether he had any further questions. Thus, the trial court took substantial

steps to ensure that respondent understood what he was doing, and we perceive no due process

violation here. Respondent cites two criminal cases that require more; nevertheless, we find the

procedures employed by the trial court adequate in the instant context. Moreover, we find it of

no moment that the trial court did not explain with more detail respondent’s right to a jury trial or

to call witnesses and that it did not mention the right against self incrimination. Thus, assuming

that the trial court was required to give these admonishments, we hold that they were adequate.

¶ 44 Respondent next asserts that the trial court should have admonished him regarding the

nature of a section 40 proceeding. Respondent provides no authority for this argument (save a

general cite to a criminal case: “See Phillips”). As such, we deem it forfeited. People v. Ward,

(2005). Having reviewed this argument, we also do not find it persuasive.

¶ 45 Respondent further argues that the trial court should have admonished him about his right

to move to withdraw his stipulation. Respondent points out that one of the reasons the trial court

cited in denying his motion to withdraw was that it was not timely. He then cites Illinois

- 21 -

Supreme Court Rule 605(b) (eff. Oct. 1, 2001), which requires a trial court to admonish a

criminal defendant that he or she has 30 days to move to withdraw a guilty plea. Initially, we

note that any analogy between Rule 605(b) and this case is dubious in that Rule 605(b) concerns

the course of proceedings after judgment is entered, 30 days after which the trial court’s

jurisdiction will lapse. Here, at issue is a stipulation entered into during the course of ongoing

proceedings over which the trial court will continue to retain jurisdiction. Thus, Rule 605(b)

provides little support—even by analogy—for the proposition that a trial court must admonish a

respondent after the entry of a stipulation as in the present case. Indeed, a respondent might be

able to show good cause well after a 30-day period following a stipulation if his or her mental

condition has changed. Thus, whether a motion to withdraw is timely is likely dependent on the

facts and circumstances of an individual case. Respondent does not elaborate on the merits of

the trial court’s finding that his motion was untimely. In sum, as it is unclear that such a

limitation is appropriate in proceedings like these, we cannot say that the trial court should have

admonished respondent in such a fashion.

¶ 46 Respondent finally argues that the trial court should have taken steps to ensure that he

fully understood the evidence against him. Notably, the stipulation contained a recitation of

what Quackenbush and Wood would testify to. The trial court inquired of respondent whether he

had gone over the stipulation with his attorney, understood it, and had any further questions.

Respondent never manifested any hesitation or doubt that would indicate that he did not

understand what was transpiring. Again, assuming that they were necessary, we hold that the

trial court’s admonishments were adequate in this context.

¶ 47 Respondent claims that he should have been allowed to review the reports by

Quackenbush and Wood. He acknowledges that not even a criminal defendant has a right to

- 22 -

review discovery. People v. Davison,

(1997). However, he claims

that this case is “closer to the situation in People v. Smith,

(1994).” Indeed,

those two cases are diametrically opposed, as Smith concludes that the decision to allow a client

to review evidence is a matter of trial strategy and Davison holds to the contrary (see also People

v. James,

(2005)). However, neither case provides significant guidance

here. Aside from being criminal cases, they both involve ineffective-assistance-of-counsel

claims and thus concern the duties of counsel rather than the court.

¶ 48 To conclude, we reject respondent’s allegations that the trial court should have taken

additional steps to protect respondent’s rights before accepting the stipulation, as the steps it took

were more than adequate.

¶ 49 D. EFFECTIVE ASSISTANCE OF COUNSEL

¶ 50 Respondent next complains of the representation he received in connection with the

stipulation. He asserts that allowing him to enter into the stipulation constituted ineffective

assistance. To make out a claim of ineffective assistance of counsel, a respondent under the Act

must show that counsel’s performance fell below an objective standard of reasonableness and

that there is a reasonable probability that the outcome of the proceedings would have been

different but for counsel’s unprofessional error. In re Commitment of Dodge,

. Both prongs must be satisfied.

¶ 51 Here, respondent fails to show prejudice. He claims that, but for the stipulation, the trial

court could not have conducted the dispositional hearing pursuant to section 40 and that it ended

his “chances of engaging in an adversarial process regarding Section 35.” This is not prejudice.

Quite simply, the opportunity to engage in an adversarial hearing says nothing as to whether the

outcome of that hearing would have been different. Respondent points to nothing to establish “a

- 23 -

reasonable probability that *** the outcome [of the proceedings] would have been different.”

We therefore reject this argument.

¶ 52 Before proceeding further, we note that respondent contends that he should not be

required to show prejudice, because his attorney failed to subject the State’s case to meaningful

adversarial testing. See People v. Kozlowski,

(1994). Respondent

bases this contention entirely on the stipulation; however, we cannot conclude that the mere fact

that respondent entered into the stipulation constitutes a failure to engage in adversarial testing of

the State’s case. Such a holding would imply that any use of such a stipulation—or, for that

matter, a guilty plea—would constitute ineffective assistance.

¶ 53 E. KRANKEL INQUIRY

¶ 54 Respondent contends that the trial court did not make an appropriate inquiry into his

claims of ineffective assistance of counsel in accordance with People v. Krankel,

(1984). Respondent cites no case applying Krankel outside of the criminal realm. At oral

argument, respondent argued that the need to hold a Krankel hearing flows necessarily from the

fact that a respondent in a proceeding like this one has a right to counsel. Dodge,

. Respondent suggests that the right to counsel would be meaningless if there

were no way to vindicate it.

¶ 55 This is simply not the case. In In re Detention of Morris,

(2005), the First District considered and rejected on the merits a claim, advanced in a petition

brought under section 2-1401 of the Civil Practice Law (735 ILCS 5/2-1401 (West 2000)), that a

respondent had received ineffective assistance in a proceeding under the Act. The Morris court

relied on People v. Lawton,

(2004), a supreme court case holding that a

respondent in proceedings under the SDPA may raise such a claim in a section 2-1401 petition.

- 24 -

Thus, a respondent in a proceeding under the Act has an avenue to vindicate his or her right to

counsel. In fact, “[m]ost jurisdictions considering this issue *** express a clear preference that

ineffectiveness claims be raised in collateral review proceedings.” Commonwealth v. Grant,

(Pa. 2002). We also note that the procedure established in Krankel is not required

by federal due process principles. See United States ex rel. Sumner v. Washington,

(N.D. Ill. 1993) (In deciding whether a claim of ineffectiveness had been procedurally

defaulted for the purpose of a habeas corpus petition, the court, later citing Krankel, explained:

“As for the failure to interview Barnes and to call her to testify, Sumner’s petition for leave to

appeal did not raise those matters as an independent claim necessitating review. Instead Sumner

contended before the Illinois Supreme Court that review should be granted to decide whether

under state law the trial judge had improperly failed to order a new post-trial hearing to

determine if trial counsel had been ineffective[] ***.”); see also Dolis v. Gilson, No. 07 C 1816,

, at *13 (N.D. Ill. Dec. 23, 2009) (“[The petitioner] does not allege any

violation of federal law as determined by the Supreme Court, and no Supreme Court precedent

mandates the [Krankel] inquiry ***.”).

¶ 56 Hence, the procedure set forth in Krankel is not an essential component of due process,

most jurisdictions do not employ a similar procedure, and an alternate procedure exists through

which respondent can assert any potential violations of his right to counsel. As such, we hold

that Krankel does not apply in cases under the Act, and we need not address respondent’s

arguments along these lines any further. Any remedy for counsel’s alleged incompetence would

lie in a collateral attack.

¶ 57 F. EVIDENTIARY HEARING

- 25 -

¶ 58 Respondent next complains that the trial court failed to conduct an adequate evidentiary

hearing on his motion to withdraw his stipulation. He again bases his argument on criminal

cases, in this instance two that construe Illinois Supreme Court Rule 604(d) (eff. July 1, 2006).

See People v. Wilk,

(1988); People v. Spriggle,

(2005).

Respondent contends that the following principles should control:

“A defendant may seek to withdraw his or her guilty plea on the grounds that the plea

was entered based on a misapprehension of fact or of the law, or if there is doubt of the

guilt of the accused and the ends of justice would better be served by submitting the case

to a trial.” Spriggle,

.

As noted above, we find criminal cases to be of limited guidance in civil proceedings. Thus, we

will not simply apply such rules wholesale in this case.

¶ 59 Instead, we look to relevant civil principles for guidance. In Bloome v. Wiseman,

Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C.,

(1996), the Fifth

District of this appellate court held as follows:

“Stipulations are not necessarily conclusive. [Citation.] In the exercise of sound judicial

discretion and to further the ends of justice, a trial court can relieve the parties from

stipulations. [Citation.] On appeal, the trial court’s discretion will not be disturbed

unless a party proves manifest abuse.”

Bloome cites Brink v. Industrial Comm’n,

(1938), in which our supreme court

explained:

“Parties will not be relieved from a stipulation in the absence of a clear showing that the

matter stipulated is untrue, and then only when the application is seasonably made.

[Citations.] However, courts may, in the exercise of a sound judicial discretion and in the

- 26 -

furtherance of justice, relieve parties from stipulations which they have entered into in the

course of judicial proceedings, and that discretion will not be interfered with, except

where manifest abuse of it is disclosed.”

See also Ellis v. American Family Mutual Insurance Co.,

(2001);

Filko v. Filko,

(1970). Moreover, in Sanborn v. Sanborn,

(1979), the First District held: “Parties are bound by their stipulations unless such

stipulations are shown to be unreasonable, the result of fraud or violative of public policy.”

Interestingly, the First District did not include in its list that the stipulation is untrue.

Nevertheless, that consideration appears in numerous other cases (including those cited above),

so we deem it a valid basis as well. From the foregoing, we discern that a party may be relieved

from a stipulation where it is clearly shown that the stipulation is untrue, violative of public

policy, unreasonable, or procured by fraud. Moreover, the motion to withdraw the stipulation

must be timely, and the decision is within the discretion of the trial court. Hence, civil law

provides adequate guidance, and we need not import principles from criminal cases.

¶ 60 Respondent moved to withdraw his stipulation in March 2009. In his motion, he asserted

that his decision to stipulate was based on the reports by the State’s doctors (Wood and

Quackenbush), that some of their conclusions were false, and that he would not have stipulated

had he been aware of the falsities. Specifically, he alleged that “[t]he risk tables for the Static 99

which were used by the State’s evaluators are outdated,” “[t]he rearrest estimate figures used in

the MnSOST-R are not accurate,” and “rape does not fit the ‘Paraphilia NOS’ classification.”

¶ 61 The trial court held a hearing on respondent’s motion (albeit not an evidentiary hearing).

Respondent argued that “the scientific evidence had changed since the preparation of the

evaluations.” (Emphasis in original.) Respondent’s attorney explained that they had become

- 27 -

aware of certain defects in the reports by the State’s experts “subsequent to the stipulation and

basically as a result of the report which was prepared as a predispositional report evaluation.”

Counsel was presumably referring to Witherspoon’s report.

¶ 62 The trial court ruled as follows:

“The Court has reviewed the motions [and] the case law submitted. *** The

stipulation was entered on July 8th of 2008, and at the time of the stipulation *** the

[respondent] had the benefit of having reviewed the reports of Dr. Quackenbush and Dr.

Wood and his own doctor, Dr. Baron ***. The Court went through rights to a trial and

hearing with [respondent]. He indicated he had gone over everything with his attorney,

that there were no threats or promises, and the Court found that it was knowing and

voluntary and accepted the stipulation.

The facts of the stipulation were presented orally on the record as well as the

stipulation was in writing presented to [respondent] and it was signed. The Court then

ordered a predispositional report, and the State’s report was prepared in August of 2008,

and Dr. Witherspoon was appointed, the Court granting the [respondent’s] *** request

for Dr. Witherspoon back in September, and the report was completed in November of

2008. And then a revised report was filed in January of 2009. And it was in March ***

when [respondent] filed his motion to withdraw the stipulation. And [it] was amended on

May 26th with the allegations regarding the State’s doctors, the conclusions of the State’s

doctors were false or faulty, and that had he been aware of this, he would not have

stipulated.

With regard to *** the withdrawal of the stipulation, the Court finds that although

the Attorney General does not agree to the withdrawal, the Court can look to whether or

- 28 -

not there is good cause shown and whether or not there was fraud, unreasonableness or

any violation of public policy. And just because now with the request of the dispositional

report and [respondent] now liking the opinion of the dispositional report and Dr.

Witherspoon better than the reports that they had of Dr. Baron or Dr. Wood or Dr.

Quackenbush does not elevate this to good cause shown. He had access to his own

reports. The stipulation was with full knowledge. It was not timely. And, therefore, no

good cause has been shown, and it is not the result of any faulty false fraud,

unreasonable, or violative of public policy issues. So there is no due process violation,

and the request for a hearing is denied.”

We perceive no error in the trial court’s decision.

¶ 63 Initially, we find ill taken respondent’s claims that the trial court denied the motion based

upon its timing or the Attorney General’s position on the motion. As for the former, it is true

that the trial court cited the untimeliness of the motion when it ruled; however, that was but one

of several bases articulated by the trial court. Most significantly, the trial court found that the

fact that Witherspoon’s report undermined the reports of the State’s experts did not constitute

good cause to allow respondent to withdraw the stipulation. This finding is wholly independent

of the finding on timeliness. The latter contention is disingenuous. The trial court did not rely

on the fact that the Attorney General did not agree to the withdrawal; rather, the trial court

expressly disregarded the Attorney General’s position: “[T]he Court finds that although the

Attorney General does not agree to the withdrawal, the Court can look to whether or not there is

good cause shown.” Neither of these first two contentions is persuasive.

¶ 64 Respondent’s most significant challenge to the stipulation concerns the report by

Witherspoon. Witherspoon’s report contradicted and undermined the reports by Wood and

- 29 -

Quackenbush. Respondent contends that, because he alleged that he misapprehended relevant

facts, the trial court was required to conduct an evidentiary hearing on the issue. Of course, the

necessity for an evidentiary hearing does not arise merely because a party alleges something;

what is alleged must be sufficient to create a factual issue requiring resolution. See Tuite v.

Corbitt,

(2006). Thus, the operative question is whether the existence of

Witherspoon’s report created such an issue.

¶ 65 We conclude that, in the context of a motion to withdraw a stipulation, it did not. In his

motion, respondent alleged three defects in the reports by the State’s experts, namely, defects in

two actuarial tools and controversy surrounding the diagnosis of paraphilia, NOS, sexually

attracted to nonconsenting females. Granting respondent these points, they fall far short of “a

clear showing that the matter stipulated is untrue.” Brink,

. These were but three

bases of the State’s experts’ opinions. There were numerous others. At the beginning of his

report, for example, Quackenbush stated that he gathered data from an interview with

respondent; an Illinois Department of Corrections (IDOC) Sex Offender Pre-Release Evaluation;

his IDOC master file; his IDOC medical file; records from the state police; and arrest records

from various local police departments. These included respondent’s history of offenses,

disciplinary history while incarcerated, and sex-offender treatment history. He also noted

respondent’s history of substance abuse. Moreover, in addition to the Static-99 and MnSOST-R,

Quackenbush considered the results of the PCL-R (Hare Psychotherapy Checklist-Revised).

Wood’s report cited 20 sources of information. Wood also relied on the results of a penile

plethysmography test performed in 2003 that “indicated significant deviant sexual arousal.”

Given the complexity of the bases of these reports, respondent’s ability to point to three alleged

- 30 -

defects does not establish their falsity, and none of the other bases for withdrawing a stipulation

are present here.

¶ 66 Before leaving this issue, we point out that the issue is not whether respondent would

have stipulated if he had known at the time of the stipulation what he subsequently learned.

Again, relevant considerations are whether the stipulation is untrue, violative of public policy,

unreasonable, or procured by fraud. Brink,

; Sanborn,

.

The mere fact that a party might have come to a different decision on whether to stipulate is not

one of the allowable bases to undo a stipulation. Having failed to allege anything that would

have established one of these factors, we cannot say that the trial court needed to hold an

evidentiary hearing on respondent’s motion.

¶ 67 G. FRYE

¶ 68 Respondent finally contends that the trial court should have held a Frye hearing regarding

the methods employed by Wood and that, in turn, it should have barred Wood from testifying at

the dispositional hearing. Respondent contends that the diagnosis by Wood—paraphilia, NOS,

sexually attracted to nonconsenting females, nonexclusive type—has not achieved general

acceptance in the scientific community of experts who specialize in diagnosing and treating sex

offenders. The State responds that a diagnosis is not a methodology and is not subject to Frye

and that, if Frye applies, this diagnosis passes the Frye test.

¶ 69 The Frye test requires the proponent of evidence derived from a new or novel scientific

methodology to demonstrate that it is “ ‘sufficiently established to have gained general

acceptance in the particular field in which it belongs.’ ” In re Commitment of Simons,

(2004) (quoting Frye,

). Universal acceptance is not necessary. Id. at

530. In fact, “general acceptance” does not even require that a majority of experts in the field

- 31 -

accepts the methodology.

It is sufficient that a significant subset of experts reasonably relies

upon the methodology. In re Commitment of Sandry,

(2006).

¶ 70 The State’s contention that a diagnosis (as opposed to a methodology) is outside the

scope of Frye has been rejected on three occasions by the First District. See In re Detention of

Hayes,

; In re Detention of Melcher,

; New,

. The First District’s rationale is that “a prerequisite

for a diagnosis is scientific evidence that such a mental condition exists” and that “[a] Frye

hearing is appropriate to determine whether an emerging diagnosis is an actual illness or

disorder.” New,

. We find this reasoning persuasive and reject

the State’s contention here as well.

¶ 71 The First District is split as to whether this diagnosis satisfies Frye. In Hayes and

Melcher, it held that the diagnosis met the general-acceptance standard. In Melcher,

, the court, quoting In re Detention of Lieberman, 2011 IL App (1st),

¶ 53, observed that the diagnosis had “ ‘been the basis for numerous probable cause or sexually

violent person findings in this state and other jurisdictions outside of this state.’ ” The Melcher

court also cited McGee v. Bartow,

(7th Cir. 2010), where the Seventh Circuit

“conducted an extensive analysis of the validity of the diagnosis in addressing whether a civil

commitment predicated thereon satisfied due process.” Melcher,

. It noted that the McGee court ultimately concluded that “the diagnosis of a paraphilic

disorder related to rape is not so unsupported by science that it should be excluded absolutely

from consideration by the trier of fact.” McGee,

.

¶ 72 In Hayes,

, the court recognized that, as the diagnosis

had been found to satisfy Frye in Melcher, “a Frye hearing was unnecessary.” We have

- 32 -

previously noted that the issues that arise in a Frye hearing typically transcend any particular

case. Sandry,

(citing Simons,

). As Melcher and Hayes

are persuasively reasoned, they provide strong support for the notion that a Frye hearing was not

necessary in this case to assess whether the paraphilia, NOS, nonconsent diagnosis is generally

accepted by a significant subset of the community of specialists who work with sex offenders.

¶ 73 Conversely, in New,

, a case involving an analogous diagnosis

(paraphilia, NOS, sexually attracted to adolescents), the First District reversed an order of

commitment and remanded for a Frye hearing on the validity of the diagnosis. New was decided

before Hayes and Melcher and therefore did not have the benefit of their analysis. Moreover, the

New court’s reasoning does not comport with a proper analysis pursuant to Frye. In addressing

general acceptance, it noted that the respondent had “raised serious questions regarding the

validity and unorthodoxy of the State’s diagnosis of paraphilia not otherwise specified sexually

attracted to adolescent males, also known as hebephilia.” Id. ¶ 61. A true Frye analysis does not

involve an inquiry into a methodology’s validity. See Simons,

(“Under the

Frye standard, the trial court is not asked to determine the validity of a particular scientific

technique.”). Furthermore, New cited the fact that there was “controversy” surrounding the

diagnosis. New,

. However, the mere fact that the experts who

accept a methodology do not constitute a majority does not mean that a methodology fails to

satisfy Frye’s standard for admissibility. Sandry,

. Rather, such concerns

go to the weight of such evidence.

(“Further questions about the reliability of the

procedure are matters that can be explored at trial.”).

¶ 74 In sum, we hold, in accordance with Hayes and Melcher, that a Frye hearing was not

necessary regarding the paraphilia, NOS, nonconsent diagnosis. Any methodological defects in

- 33 -

the diagnosis went to the weight of such evidence and would have been properly addressed

before the trial court.

¶ 75 IV. CONCLUSION

¶ 76 In light of the foregoing, the judgment of the circuit court of Lake County is affirmed.

¶ 77 Affirmed.

- 34 -