proceeding it follows as was stated by the united states supreme court in the selby smith that where a defendant in custody is faced with a psychological examination that he neither initiated nor se into evidence any answers that he gives in that inquiry cannot be used against him unless he is first advised that he has the right to remain silent and one of the consequences of participating in such an evaluation specifically that argument is an independent basis of relief as both an independent basis for relief and also as part of the argument under the constitutional argument ok so it is in a panic but that it merges into the kind of it a fair  ok the trial court wrongly thought that the evaluation was mandatory the evaluation is required under section sixteen of the sex offender management board act for a defendant who is eligible for probation the defendant in this cause was not eligible for probation as a class sex offense with range of six to thirty years based on the evaluation which as i say the trial court thought was mandatory and stated was mandatory and in fact stated that no sensing hearing could be conducted until the evaluation was completed the evaluation placed the defendant in the top twelve percent risk offenders or recidivism and the trial court based on this and saying based on everything contained within that statement since the defendant to twenty years now i will note first that there was no objection to the to the sex offender evaluation itself filed as part of the motion to reconsider sons and i was incorrect when i argued that in fact the state had waived that argument at the appellate court level the a public did the prosecutor did raise that argument in the  court but i would note that the appellate court did not consider waiver in this case and i would note that in a stealthy smith the seminal case on this issue the waiver argument was also dismissed largely because and as is argued here this is an issue of a constitutional violation of the defendant's rights as still the smith informs this case in numerous ways probably the most important is the notion that any evaluation such as this is appropriate  accepted under constitutional principles where it's neutral purpose is performed or where the stated purpose of an evaluation is the driving force however where is in a still be smith and as in the instant case where the neutral purpose is converted into a prosecutorial purpose that's when the evaluation becomes inappropriate and does not comport with the fifth amendment i would note that in a still be smith the court ordered a comp and see evaluation because the court did not want to consider a death penalty case without first determining that that defendant was competent following that however the state utilized at sentencing the and by limitation under the corrections code that this be provided only to defendants who are eligible for probation demonstrates that the purpose while a proper one to determine whether there was any risk to society of the defendant being released on probation relief that he could not have had in this case was improperly used when it was used by the courts to and by the state argued that defendant was a high risk reoffending and the court specifically stated based on that i'm elevating the sense from what might normally been the case he said this would have been a different question if the evaluation and come back and shown you were not likely to re offend but it shows that you're likely to reoffend and impose dishonest twenty go hasn't been e and the course specifically stated this would be a different question if the defendant were in custody the defendant and murphy was on probation he was free to come and go he was called in by his probation officer and it was during a probation interview that he gave evidence about commission of an offense from six years before again as stated in murphy it was a different question because that defendant was free to leave if he knew what the purpose of the evaluation was and he was not in custody to the extent that this defendant was in custody clearly then still the smith applies to the instant case in fact there are numerous parallels there further with you correct me well i mean i'll try to cover that as comprehensively as i can one of the distinctions between a cell and the instant case and it seems the one of the questions that you have and it was raised by the state is whether or not there's actually a statement that is used to that somehow incriminates the defendant by his own means and as in a stele there was no statement specifically attributed to the defendant style it was based on the evaluators opinion formed based upon those questions and that evaluation it wasn't any specific statement but it was the information that was provided in this case it appears that there were a minimum of two hundred twenty three questions posed to the defendant in the course of the sex offender evaluation it was based on those questions and while some of them may have related to his anger management difficulties his inability to control certain urges that he had the fact of the matter was that all of these questions were used to inform the evaluation  i cannot point with any specificity to these statements that were incriminating and i would note that that was not an issue in a style either that it wasn't specifically the statements that the defendant made but the evaluators finding that he lacked remorse that he liked the ability to control himself and would be and the basic conclusion that he would be likely to re offend it wasn't the statements that were found to violate constitutional principles but the information and the opinion that was formed on the basis of that i would also no that there's a great difficulty and this was pointed out in the foreign case of diesel that was utilized by the appellate court and has been utilized by the state as well diesel pointed out the very often in these cases the difficulty is that a defendant in fact denies any culpability for the offense denies that he did it denies that there is any difficulty and very often it is that denial that is the first and primary factor that is used against the defendant in determining that he has no ability to rehabilitate or that he is a threat for recidivism and a threat to society because he hasn't acknowledged his own conduct in this case the difficulty is that where an evalu this is required that denial alone that statement appears to be one of the factors used by the evaluator in finding that he was in denial of past misconduct she couldn't trust what he was saying and that was used yes defendant was represented represented by counsel right i'll know to the end of the question that there is a question in my representation ok he knew what the evaluation was going to be used for correct i would say that he didn't because the court's order said that the evaluation was pursuant to sex and sixteen of the sex offender management board act which by its terms concerns probation and the ability or the propriety of releasing a defendant on probation you didn't object and there is no controversy you did not object he did object he didn't object on that basis and part of counsel's objection was the fact that he was seeking to withdraw and that and that's ones are the assumption within your question that the defendant knew the purpose of the evaluation and that it was used for that purpose and in fact as in a stel it was not in a stellar was a competency evaluation that was the purpose of it and it's not that the evaluation itself changed is that the use of the evaluation changed when that evaluation was used at sentencing a stele and in the instant case it went from a determination in a style of competency in the instant case of the propriety of probation to being used to aggravate the sentence that was imposed against the defendant so the primary theme i would say underlying a stele that informs this case is where an evaluation or some sort of inquiry is used for designated and begins with one purpose and that purpose may carry throughout the inquiry but then ultimately those results are used for a different purpose without advising the defendant of the fact that can be used against them and the fact that the statements that were made and some of the prohibited where the defendant is not first made aware that he has the right to remain silent and that the statements can be used against him in miranda obviously it was a trial situation pre conviction but mitchell of as much information as possible to fashion appropriate sentence and the statute requires that in a case where probation is to be considered that the sexual valuation is to be done is your argument concerning the violation of the fifth amendment privileges and rights that this defendant is claiming broad enough to cover those situations where the orders  prior to considering probation and aren't the defendants in those cases being asked the same questions and or the court to determine whether probation should be granted or whether it should be granted and it's in the court of using this here to determine whether the sentence should be more lengthy or not and i guess the question is are you also indicating that the fifth amendment rights of people who are being considered the the short answer is that yes that it does involve both it may be a different set of analysis and part of your question can be divided up into another sad subcategory where there is a person who is not in custody at the time that he undergoes the evaluation and that's more likely to be a candidate for probation in the first place and under those circumstances the question might turn to the second exception that was noted  both in a style and in minnesota v murphy where the question is whether requiring a defendant to to undergo an evaluation to determine whether or not he will receive probation whether under those circumstances that  a compulsion that undermines the defendant's will and ability to refuse to participate where the i think the quicker answer or the easier answer here is that where an evaluation such as this  urs it be limited unless the defendant is advised ahead of time and given the opportunity to refuse to participate in the evaluation an opportunity he wasn't given in the instant case short of that then the only remedy is to not allow that to be used for purposes other than the determination of probation eligibility or probation propriety but instead of being used as was in the instant case right arguments that you've just  this is a problem in that apply with equal force all persons investigations no to the extent that most pretty sons investigations are for a set purpose and don't require a statement by the defendant one of the one of the difficulties here is that the defendant was advised that he could not proceed to sentencing until he participated in this evaluation of the past record of the defendant both in terms of has to fences his work record his family history none of these require statements from the defendant that allow the evaluator to use the defendant's own answers to in this case over two hundred twenty three questions to then determine the likelihood of recidivism it's a different question with a parole officer or a probation officer in terms of the fact that again that is an evaluation the purpose of which is known and the purpose of which doesn't change counsel at what point did the parties become aware that they were misusing this act because i'm not certain that the parties were aware of that until the matter was appealed to the trial courts throughout indicated that this was a mandatory evaluation and that sentencing couldn't occur until the evaluation occurred there it does in terms of beyond the constitutional issue the fact that this was not an authorized evaluation by the court instead this is really limited only to probation matters to the extent that psychological evaluations are provided the court again exercise no discretion and therefore the claim that this is part of the catch all that it was a means of gathering other information is inappropriate  except that even before the amendment which says the civically is not to be conducted when they defend is not eligible for probation it limits by its own language the evaluation to those who are being considered for probation and the sex offender management board act separately says when a defendant is be considered for probation these things need to be done these treatments need to be considered and it's in this fashion that it will be done and the things if there are no further questions i thank  you please the court i'm assistant attorney general aaron o'connell on behalf of the people of the state of illinois there are two grounds on which this court should deny relief to the defendant first he has forfeited his claims second there meritless and first like to address the forfeiture issue as defendant has conceded here in oral argument the people did preserve their argument in the appellate court the appellate court simply opted not to rely on the forfeiture issue however is justice thomas has pointed out this court tends to rely on on constitutional grounds where possible and here forfeiture provides such an opportunity the defendant has has responded that he didn't fact  object page one seventy eight of the record and that this somehow preserved his claims here if the court looks at that objection it will note that this was an objection that the court should not rule at that hearing defendant was given an opportunity to object to the p s i i the sex offender evaluation report was attached to the p s i i the defendant made no objection at that time so the people have cited the cases to that effect and the defendant has it never at any point of fifth amendment grounds to the trial court's consideration of the results of the sex offender evaluation such a relevant objection would be necessary to preserve his claim in addition as he's conceded he did not include in the post sentencing motion that would be sufficient grounds by itself to find that this is forfeited there is freedom aren't good reason in this case to find a forfeiture and require the defendant to show plain error as a result of his failure to object the record is completely devoid of any information as to what actually transpired at this particular sex offender evaluation of the parties argue the merits of the claims based on a set of assumed facts as to what would be expected to occur at a sex offender evaluation the people's position is that this court can deny this this claim on the merits just based on those assumed facts as a general matter miranda warnings  not required before reaching pre sentence investigation or sex offender evaluation that's ordered as supplementary to the traditional pre sentence investigation defendant has not even at any point our view that he can demonstrate plain error here there was there was a motion to reconsider sentence which did not raise the claims here but it was considered a separate hearing the court at that time its attention was called to some contradictory advocates in the record their it as a result of the sex offender evaluation the evaluat concluded he had a high risk of or said of his i'm however there is also something called a rapid risk assessment which was attached to the p s i i and it was something not done by the sex offender evaluator but by the person filling  opportunity the trial judge explained that it was not relevant to his determination of defendant sentence whether he had a low risk or a high risk of recidivism the court clarified at that time that it was this serious  damage a psychological damage that defendant had caused his victim that motivated the court to impose a sentence of twenty years there were also additional factors such as the need to deter future such crimes that  court did cite in the initial sentencing hearing as additional reasons behind this twenty  rule does not apply here because we are not considering the constitutionality of any statute defendant defendant has stated here that he is raising the lack of authority to order sex offender evaluation as an independent basis for relief from his sen because he never objected to the trial court's ordering of the sex offender evaluation however he still needs to show plain error here he even even given his argument that the trial court did not exercise and discretion in ordering this evaluation and instead just by mistake believe that it was it was mandatory even where a trial judge makes such a mistake this court still applies a plan or a test it's not an automatic reversal where a trial judge fails to properly exercised his discretion defendant for all the reason stated cannot demonstrate that this was plain error to order the sex offender evaluation defendant does respond to the people's argument that seven thirty aisles yes five five dash two which is the provision that allows the court to order a mental examination did not actually confer on the port authority to order and evaluate a sex offender evaluation in this case and he cites to the language that the mental examination should be ordered to be performed by a psychologist or psychiatrist admitted here the sex offender evaluator was a licensed clinical social worker however this court interpreted statutes does afford terms their plain ordinary meaning the people submit that the plain ordinary meaning of the term psychologist is broad enough to encompass a licensed clinical social worker finally as to the issue of whether miranda warnings were required the court is no desire many factors that distinguish this case from a still the primary most significant distinction is that this occurred post trial pre sentencing a cell dealt with a pretrial examination the differences are that by the time of a post trial examination a defendant while versed in this fifth amendment right he's also counseled its spirit this point to place the burden on the defendant to raise his fifth amendment right at the time he is being asked an incriminating question here it would be fair to assume that counsel would take on the obligation of explaining to defendant that if you were asked a particular incriminating question at the sex offender evaluation he does have a fifth amendment right to at that time not refuse to answer that question want this in this particular case where you have a pre sentence investigation it's not the situation that this state is relying on the information of teens for an adversarial purpose  dealt with the prosecutor putting the evaluator on the stand and having him give affirmative testimony to meet the state's burden of proof that the defendant posed future danger to society here the state did nothing to rely on the results of the sex offender evaluation the state didn't even mention in its argument to the court at sentencing that this was a factor that should be used to aggravate the defendant since the trial court judge was the only person to mention the results of the evaluation that brings us outside of the purview of a cell because we're dealing with a neutral party the court relying on this information simply did inform and it's exercise of it sensing discretion and that by the state in an attempt to impose a more severe penalty on the defendant another distinction is that the defendant was aware of the purpose to which the evaluation would be used i think it's a fair presumption given that none of the parties ever raised the issue that a sex offender evaluation is typically intended to be used to guide a determination of whether to impose a sense of probation none of the parties understood this evaluation to be so restricted in its relevance at the sentencing hearing that that would be its only use the parties understood from the outset that the court was ordering this evaluation to inform it sensing discretion the parties also knew that probation was not an option so the party did have a basic understanding of what it what point where the parties were the fact that they were misusing this i don't believe that the as she was raised until the appeal that is at the end just mentioned that the state knew that there was a  i own this state never at any point raised this to the court's attention neither did defendant that this provision the court was relying on was the incorrect provision before the appellate court the defendant did argue that it was sex well the sex offender evaluation would come within the language of being a mental examination so because the language is so broad in general in the statute and there was nothing that would preclude the court from ordering a sex offender evaluation i mean there's certainly a question whether that would be the case now that the statute has been amended that broad authority did allow the court to order the sex that would be just ordinary common meaning interpretation of the word psychologist a licensed clinical social worker often serves identical purposes to a psychologist it's fair to read the term psychologist to include the licensed clinical social worker here is the term psychologists could apply to it's certainly a question of staff stranger potations whether psychologists would it would include a licensed clinical social worker however again even even if the court had had no authority to order the evaluation this still does not rise to the level of plain error and therefore it should not provide a basis for relief or defend and then finally there is no alternative basis for finding that miranda warnings would be required and that's even though it still does not apply miranda still says if you have a custodial interrogation you need to provide miranda warning people of use that miranda warnings were not required under that test because this was not custodial nor was it interrogation now a defendant has argued that he was in custody simply technical custody because he was in the custody of jail officials while he was awaiting sentencing however this court in people versus patterson said that's not enough there's not a per se custody finding for miranda purposes simply because someone is technically in the custody of jail or prison officials defendant has never attempted to make that additional showing that somehow this sex offender evaluation was more restrictive than the jail environment to which he was accustomed nor could he do so here he was taken from the jail to a place where mental health evaluation and treatment was the focus he was not subjected to interrogation by someone affiliated with law enforcement it was a licensed clinical social worker whose whose emphasis is on evaluating the severely of his his psychological traits that would tend to support a finding that he was at a high risk of re offending in that sense this was less restrictive in certain aspects then was the jail environments which it was accustomed therefore under paterson this court has held that that does not amount to custody for miranda purposes it also does not meet the requirement of interrogation because the licensed clinical social worker was not an agent of law enforcement at any point the meaning of interrogation requires that there be at least some involvement from law enforcement seeking to prosecute someone on the basis of past conduct that was simply not present in this case and although a style said it that it can constitute interrogation if the prosecution and up using mess that also didn't occur in this case the prosecution made no attempt to even bring the recent visit to the court's attention as an aggravating factor therefore this would not fall within the more general test for whether miranda warnings would be required in this circumstance real distinction between a sex offender evaluation and of pre sentence investigation in terms of the sorts of information that will be gathered there is a potential certainly in a pre sentence investigation the defendant is asked about his prior conduct other instances of criminal behavior those are the types of questions that are traditionally seeking and incriminating response courts have fairly universally held that in that context miranda warnings are not required there's really no principle distinction for sex offender evaluation that was somehow make the rule different in this circumstance i think one of because me again turning to a comparison to a style i think that one of the things to be noted is that while the state claims that there was a general authority provided by the corrections code allowing the trial court to delve into virtually any area that might help inform its decision i would note that the same argument was made in the  home in a style the court noted that any sort of catchall was not appropriate to the extent that it concerns a constitutional violation where there was an overbearing of the defendants will and a a  where the defendant was not informed of his constitutional rights that exceeded any sort of authority that might be provided by the catchall that was used by the texas legislature and evaluated by the texas  in the same case while there are some exceptions and some ability for the trial court to inquire into certain areas first of all it should be noted one that's limited to the extent that the court finds it useful and here it wasn't that the court found that this would be useful or beneficial to the court rather the court stated it had no option it was mandatory so it wasn't an exercise of discretion secondly the inquiry violated the constitutional freedom from self incrimination and in that extent parallels a style and brings us out of the realm of a catch all provision third i would note that while the state claims that the state had no hand in the use of this at sentencing it should be noted that the court granted the state's motion the state sought the inquiry in the first place and that's how it came to the court's attention and was provided to for use at sentencing again the primary question is the purpose of the evaluation in the first place and then it's all to use at the sentencing hearing and in the instant case that's what changed the the probation officer in this case the license clinical social worker from a neutral party to somebody who was providing information for purposes of enhancing the defendant's sentence and while the state argues that the record is devoid of any showing that might be useful to the court as to whether the defendant was provided miranda rights by the licensed clinical social worker it should be noted here that the court's affirmative statement that the defendant had no choice but to participate in the evaluation brings this case into the realm of violating its constitutional rights and provides any it effectively vitiate any warnings that might have been given to the defendant for those reasons if there are no further questions i would conclude by asking that this matter be remanded