good morning your honour's may please the court comical assistant attorney general lindsay payne on behalf of the people of the state of illinois and like to begin by addressing the dispositional hearing issue and i will address respondents cost regarding the sufficiency of the evidence on rebuttal but obviously if the court has any questions on that issue at any time i'm happy to answer them under the plain language of section forty one of the sexually violent person commitment act respondent was not  if the court lacks sufficient information at that time that it abuses its discretion by denying a continuance now section forty one of the act also states that the hearing whether continued or not must take place as soon as practicable after a trial so if the court adjourns the hearing and orders a supplemental a valuation the hearing still must take place as soon as practicable so the general scheme under the act then is that the court decides immediately after trial whether it needs additional information to make its dispositional rule at that time the respondent is free to call witnesses or proper to show evidence if the court denies respondent the opportunity to present witnesses at that time or denies a continuance despite a proper in the court's decision would be subject to an abuse of discretion review now these procedures setting the are favoring a dispositional hearing that takes place immediately after trial serve an important purpose under the act the relevant issue in s p p trial as in any mental health proceeding is the present mental state of the respondent in this case for example the pretrial litigation lasted approximately four years during that time the experts updated their opinions multiple times and were deposed multiple times so that they could provide up to date information to the trial court this being with regard to your comment about the important factors of the present mental condition of the respondent at the time but how could you have a dispositional hearing take place if there is no as testimony of commitment on the issue of commitment isn't that important dispositional hearing as well well i think that there were there was money and commitment in this case so there's three factors that are above it the dispositional decision under the act was was there any information on commitment in this case yes so the first two factors relate to the nature and circumstances of the respondents behavior that form the allegations under the petition so there was abundant testimony regarding what was respondents behavior the crimes that he had committed the other evidence that suffered from a mental disorder and that he was dangerous his mental history and present mental condition is the other factor again plenty of testimony on that and you know respondent he's in on this third factor the third factor of placement what was the testimony on placement for commitment also the factor is what arrangements are available to ensure that the person has access to and will participate in treatment so the evidence that was presented was that respondent has been offered treatment that he's been residing in a residential treatment facility but the he has not engaged in treatment and that in fact he has stated that treatment would be a waste of his time so there was evidence presented on that point respondent had the opportunity at that point the people had no burden to come forth with additional evidence on that factor at the dispositional hearing and so it was there was no evidence at the dispositional hearing and placement there was no educational press i'm sorry other than what you just described crap there i mean there was no additional testimony that was presented at the hearing on the third factor i would say that the evidence that was presented was respondants but in this case was there a dispositional hearing in all it seems like the court just relied upon the hearing that they had already very well i think once you answer the question does the trial court have the discretion to well i think the question is not to the court how was the court disallowing it but if if the court has the discretion to hold the hearing at that time and and the respondent is not prepared to present that evidence of  then it's incumbent on him to make a profit and i think the people are asking for a rule that's any different than the one that this court applied in people be collins people be collins was a capital criminal case immediately after trial the defendant in that case requested a continuance of the sentencing proceedings and he actually said i only need a continuance for one day your honor and he told the court exactly why he needed a continuance he said i need to investigate pending out of state charges because i expect that the prosecutor is going to present evidence of these out of state crimes in aggravation the trial court not wanting to deviate from its pre a continuance in this court affirmed holding that there was no error and specifically stated that the court would not reverse and remand for a new sentencing hearing because the defendant in that case had not demonstrated that he was prejudiced by the denial of the continuance so i think certainly your honor we've acknowledged that there are liberty interests at stake but those liberty interests are not greater than those based by a criminal and in a sentencing hearing or a trial and if the court can if a criminal trial or has the discretion to proceed directly to sentencing so t of the trial court have the discretion to proceed directly to sentencing and there's no due process violation simply for requiring that the respondent come forth with his proper he had that opportunity at the considered the evidence that had already been presented neither party offered additional evidence at the time of the hearing immediately after trial the hearing that took place met respondents own definition of appears that the senses he is saying that there is no right to a hearing which were for example he says mr quinn says we had to witness we want to put on for a dispositional hearing the court says if we have a disposition hearing i think pursuant to statute i'm entitled to states based on what i've heard to make that determination independently so that's what i'm going to rule it certainly appears that the judge's understanding of the statute was that he did not need another reading of the transcript is the court turns to respond and and ask what does the respondent want to do at this time and he's saying we want to date we want a supplemental about a ration and so under overwhelming evidence is that commitment to a secure treatment facility was the only appropriate option in this case a respondent demonstrated that he was not able to control  even within the highly structured environment of the t h s treatment facility just months before trial he was found to be possessing which he admitted and disseminating a d v d containing photos of nude young boys that his victim profile zoomed in on their genitalia clearly he's still acting out he's not controlling his urges he was also acting out violently towards other residents and the justice of the all that evidence was before the court and so even if the court finds that there was error because there was no hearing whatsoever here that error was the respondent has are you that the people who are fitted that issue we respectfully disagree the argument was made to the court there has been no case directly on point addressing whether harmless error review applies in this situation when your whole turn title box both considered the overwhelming evidence that secure treatment was the only appropriate disposition in that then go to a highly fact specific abuse of discretion analysis which you know highlights the problem of the lack of a record in this case we don't know what this witness would trial and say the respondent offers a witness that's prepared to testify at that time does the court have discretion to not hear that witness but i think the same discretion that any trial judge has is for example there it was clear on the record that this witness had nothing to offer that was relevant whatsoever to the present some evidence on the issue of movement or loss of liberty but i think inherent in your question is that the evidence does relate to disposition so so in my scenario if the evidence was completely irrelevant to disposition then would the trial court have discretion not to hear that evidence i think we would have to judge that on a case by case basis but generally since since what the court has discretion to do is hold the hearing immediately after trial or decide to a drone it generally i think we would be in a situation where the court would be in most cases required to hear that ha question makes a great i think both of the court makes that determination and says the determination required under paragraph b two which is the dispositional nation and then it goes on to say if it doesn't have sufficient information to make that determination then it me to join the hearing so i read that to say that the court has the discretion to hear that you have the dispositional hearing immediately after trial and the as soon as practicable language is more generally referring to when any here must take place even if the court finds that it lacks sufficient information which it might do based just upon the trial record or it might do based upon a proffer from respondent saying i have something you haven't heard here's what it is even if the court were drawn to the hearing it must make an effort to have the hearing as soon as practicable because here we have again the general assembly displaying its intent to have these proceedings move quickly because of the need to have up to date information on the respondents mental because what i'm trying to sort out i haven't taken a position on this but if the court is in the opposite position of the court has sufficient to mention does the statute doesn't mean that without language that there's no need to hold the circuit here or do you think there's no question there has to be a separate well i think that what do we mean by separate hearings i think because i i answered thomas question that i the people's position is that this was a hearing to spite the fact that it dition all evidence was not presented because it's a hearing at which the court is considering all of these factors and rendering it determination so certainly i think that there does not need to be hearing on a separate date there is no requirement that additional evidence is presented you know respondent has argued that there's a burden on the state and we strongly disagree in the state is free to arrest upon the evidence that was presented at trial and it is incumbent upon the respondent if he has additional information to bring  to the court know what the substance of that testimony would be otherwise the court can't address whether it lacks sufficient information based upon something that is unaware  i think respondent also had the opportunity to do that in the post trial motion if respondent was caught off guard by the proceedings there was the opportunity to request argument at the post trial motion to build the record so that this court can apply the abuse of discretion standard that is set forth in the a s and so the way we envision it taking place under the plain language of the act is the the verdict is received from the jury the court makes its determination as to whether it lacks sufficient information based on the trial record the court may decide even without any proper from any party that it lacks sufficient information based on the track record and and that is the time then for the respondent to either call witnesses or proffer additional evidence and i think that the court has broad discretion to control when the hearing takes place and it only abuses that discretion if it lacks sufficient information or there's been a crocker demonstrating that there's some additional evidence t in recognition of those substantial liberty interests involved in this case the legislature enacted numerous procedural safeguards to ensure reliable and just results in these cases they enact in section twenty five providing respondents with numerous rights at ease here in conducted under the act they enacted section thirty five providing response with the right to be proven a sexually violent person beyond a reasonable doubt and then acted section forty providing response with the right to a dispositional here the safeguards put in place by the legislature or disregarded in this case we've raised two issues in our brief i'd like to focus on th and stand on the brief with respect to the proof beyond a reasonable doubt issue in this case there was no dispositional here immediately after the judgment was entered and the trial court asked trial counsel what's next i believe we have to select a date proc ounce i was asking for dave or this positional here and that request is made clear through the context that follows where the state says we believe the court has enough information to make a determination as to within the first discretion whether or not they have to make it is within the course discretion to determine whether they have whether it has sufficient information but that determination would only impact whether or not to order a supplemental through the word shall we know that the court must hold a hearing it's nondiscretionary then it goes on to say if the court lacks sufficient information to make the determination immediately after a trial then it may have journey hearing an order a presuppositional investigation so the adjournment of the hearing this tied to the ordering of a supplemental report a supplemental examination we accept the state's interpretation of the one wh if the court accepts that it would still be incumbent upon the state to prove that the burden was harmless and this case they forfeited the harmless error in three different ways as we've outlined in our brief the state felt to raise harmless error at all go to the substance of your response to that or with your the substance of it is that the court heard no evidence about why mr field should be committed to institutional care in a secure facility rather than to conditional release everything that the state just talked about about his past and present mental condition his past behavior those that testimony was offered in the evidence for the limited purpose of explaining why he was a sexually violent person was not offered into evidence or its truth the evidence about a d v d and a drawing and whatever's contained on there that was not introduced in that happens it's not even clear that it exists at all in fact mr fields received the warning for is not a controlling determination anything that he said in treatment prior to trial would be used against him at trial and furthermore he told dr levitt that if treatment or acquired he would do it that evidence was before the court so in that regard there was no harm it was mr feels was prejudiced by the trial court's refusal to hold a disposition moreover in considering the evidence presented at trial the court considered that evidence without giving mr fields an opportunity to cross examine that evidence as it relates to this was issued now this court has recognized the people versus rice that the motive of cross examination at a suppression hearing is so obviously not the same as the motive to cross examine at trial and i submit to the court that is precisely the situation here where mr fields at trial his cross examination was motivated by showing that he did not suffer from mental disorder that he was not substantially probable to reoffend that the records the doctors reviewed were unreliable that the actuarial instruments that they used were moderately accurate those were the kinds of cross examination that was brought out at trial process and mr fields was not allowed to cross examine at trial about how these conditions of conditional release would impact whether he could be placed on a conditional section forty b five provides  numerous conditions which are mandatory in cases of conditional release one of those is that the respondent must serve a term of house arrest another is that the respondent may be tracked with g p s there was no testimony at all about why those kinds of conditions were insufficient to allow mr fields to be conditionally released and with respect to his past sexually violent behavior this is an individual who has only served three years in  sentenced to three years for an aggravated criminal sexual abuse and that came as a result of a negotiated plea offered by the state's attorney of put county that essentially offered him three years after he had already served three hundred  well no i would say that the court must clearly hearing and that the only way it would a german hearing is if it needed more information or some other reason that would fall under the as soon as practicable standard so this was not a hearing that took place after a trial and for that reason it was not a request to adjourn the hearing the language in the statute about what the court made during the hearing relates specifically to the court's order to process is flexible and calls for those protections and procedures as the case may require and in this case there are substantial liberty interests at stake and if this was a hearing at all it was a hearing on whether mr fields had a right to a hearing dispositional hearing in the trial court decided they did not have that right to a hearing in fact in the nine the motion for a new trial the trial court stated paragraph twenty five to thirty one make reference to the right for an immediate dispositional hearing which is rights that basically doesn't exist in the court went on to say that it certainly heard plenty at the jury trial which allowed me to make a ruling that we did not need to have a dispositional hearing so there was no hearing in this case and once the hearing takes place if there is a hearing at a minimum the respond have an opportunity to cross examine the state's witnesses if the court and the state is going to offer their testimony from trial into evidence or hearing those doctors must be made available for cross examination at the hearing and then respondent must be given an opportunity to present additional evidence if he so desires and those are the key factors which distinguish this case from winter all there because in that case the respondent was indeed given an opportunity to present evidence is given an opportunity to testify is given an opportunity for his counsel to argue why he should be committed to conditional release rather than to secure care and those are the distinguishing features at a minimum of what is required and contemplated by the dispositional hearing acquirement in section forty pounds for i know it's your position that there was no hearing but if we go to that second per second sentence you were talking about if the court lacks sufficient information to make the determination immediately after a trial  hearing and order the department or conduct a predisposition investigation or a supplementary mental examination or both is that the limit the or the limited purpose for which the adjournment can be made you know the order ours it can be our position is that the hearing be now the soon as practicable give the trial court discretion to the hearing of the time when it's convenient for the parties and that just because it may have sufficient information doesn't mean that th the hearing has to be held immediately after a trial it should be held as soon as practicable but that language allows for continuances for other reasons aside from ordering a supplemental examination and the idea that this is a hearing that took place immediately after trial this is also incorrect in the sense that respondent was not given notice that this is going to take place now a hearing could certainly be held in future cases or in any case where notice is given that if there's a verdict against the respondent that there will be a disposition of hearing immediately after a trial but no notice was given in this case with notice is given the parties will have an opportunity to be have the witness there waiting for the hearing to take place and as the appellate court noted in this case you can to a continuance could be just for a day but with notice it could be immediate absolutely immediate course this case is also not titled walk or born in both of those cases there were sponsored given an opportunity to introduce evidence relating to disposition during the trial our position is that that evidence should have been excluded under the rules of evidence but nonetheless it was admitted without objection in both of those cases and title block was a bench trial so perhaps that would have been less of a problem in varner it was a jury trial but again there was no objection to introducing evidence about disposition during the trial and the failure to hold a hearing in those cases may essential or be seen as harmless error because they were given an opportunity to be heard and apparently they were given notice that that evidence was going to come in during the trial and in that regard they had their opportunity to be heard and for the trial court to consider the evidence that they wanted to present this case is also not similar to the cases that have come out of the first the shirt after fields which are a dodge while they are there like in each of those cases responding to not offer a witness to testify and the appellate court found that the air there was nowhere because there was no offer of a witness in the event that this court finds that the error may be subject to harmless error analysis and the state did not forfeit that air the burden would still be on the state to prove that the air was harmless because the air in this case was preserved this is not a case of playing there moreover the error in this case the state is characterized as structurally the appellate court did not say that it was holding that this was structural what if the court accept that argument this case doesn't do present structural error this is not an error that this is an error that defies harmless error analysis and it indeed affects the framework in which the disposition is rendered because there was no hearing it was that was the structure on which the court was to consider evidence and that structure did not take place moreover in any way detention of train or this court considered whether the summary judgment was appropriate for the state to use in a recovery petition in especially dangerous persons case and would merely african clued in that it was not appropriate the court reversed without considering whether prejudice was present and similarly in this case as we argue in our brief the state had a burden to prove that mr fields should be committed to institutional care in a secure facility and by allowing the court to make the decision without holding the court on the side of the state to that burden this was essentially the same type of there that cannot be subject to a harmless error analysis the state also argues in its brief that requiring a dispositional room would be a drastic alteration of that fifi act practice in procedure in this state that's not that cannot be true the states argument is based on two mistaken premises first trial but the plain language of section forty one provides that should be held as soon as practicable requiring a hearing is nothing more than requiring it here instead of fundamental principles of due process in the bedrock for respondent brings up the issue of notice as an initial matter as we've seen in our brief that issue is forfeited responded did not so much cite section twenty five of the act before the  but forfeiture aside respondent here hadn't noticed through a number of avenues first he had statutory notice based on the plain language of the act second a number of published cases completely unaware of the existence of proceedings against them here respondent was at the hearing he was at the hearing represented by counsel so he had at least the opportunity to make a proper of what evidence it was that he wished for sat and he should be required to do so just as criminal defendants people the collins are required to do or civil litigants respond and are used that the court didn't have the discretion to hold the hearing immediately after the trial but as i said there's no reason that respondents under the act  directly to the policy behind the act this is not a criminal proceeding where say it said seeing the prime i mean only the evidence is going to be retrospective everything is in the past it's not going to change if you delay the hearing by a month here things are after a balding and there were multiple rounds of depositions in this case for that reason so if respondents behavior facility were to change in between the trial and the dispositional hearing then we're in a situation where the court does need to order a supplemental evaluation and that's not what the act and contrary to respondents assertion title by the states that title back had evidence presented during trial about disposition that's not true there was a statement about potential parole conditions if respondent was not found to be an s p title back is just like this case there was no testimony on the dispositional hearing and yet the court preceded directly to disposition under the act it considered as section forty one requires do i lack sufficient information at this time i do not has anyone offered to call a witness right now or proffered any relevant testimony no no one has therefore under the act it's within my discretion to make my dispositional grueling at this time turning to respond and violently and respond to questions whether the evidence presented during trial on that point was competent because it was brought in through experts rather then i witness as i suppose but the evidence would have come in exactly the same way in the dispositional hearing what's what's at issue here is an expert psychological opinion about whether respondent is substantially probable to commit acts of sexual violence if he's released into the community and so the evidence would have come in the same way and this is why there's no requirement under the act while the act requires a hearing a bifurcated hearing does not necessarily mean that then we have to present the same evidence all over again even in a criminal proceeding if no one offers a witness it's that it does not violate due process for a criminal defendant to be sentenced based soley upon the evidence presented at trial because that evidence is an undoubtedly rel and here the people had no burden of proof at the dispositional hearing just as there is no burden of proof in criminal sentencing it's a weighing process the general assembly said that the court has two options conditional release or secure care there's three factors only that are relevant to that and the general assembly demonstrated that when they intended to create a burden they knew how to do so section thirty five of the act states that the people have the burden of proving that the respondent is an s v p beyond a reasonable doubt the general simply created no such burden for the dispositional days because it would be inappropriate that it's within the trial court's discretion to consider all the evidence before it to weigh the factors and to decide that secure care was with the only appropriate disposition in this case and it what's respondent says that a lack of treatment is not dispositive issue there's three factors that are to be considered but the lack of treatment is highly relevant and the court has the discretion to weigh that factor heavily here the lack of treatment was not the only basis supporting the conclusion that secure treatment was the only appropriate disposition respondent as the experts have testified had escalated in his behavior from an opportunistic sexual assault upon a nine year old boy to then one that involved manipulation force and kidnapping of a nine year old boy and then ronnie was unable to control his ability or his in th s custody on top of that he had received no more than one day of treatment after that he refused to participate if there's no further questions to ask the court reversed the judgment of the appellate court below which vacated the trial court's disposition thank you he's number one one five