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 2022 IL App (5th) 210155 NOTICE 

Decision filed 02/22/22. The 

text of this decision may be NO. 5-21-0155 

changed or corrected prior to 

the filing of a Petition for IN THE 

Rehearing or the disposition of 

the same. APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

) Circuit Court of 

Petitioner-Appellee, ) Wayne County. 

) 

v. ) No. 11-CF-92 

) 

EDWARD ABEL, ) Honorable 

) Michael J. Molt, 

Respondent-Appellant. ) Judge, presiding. 

JUSTICE WELCH delivered the judgment of the court, with opinion. 

Presiding Justice Boie and Justice Cates concurred in the judgment and opinion. 

OPINION 

¶ 1 On September 9, 2011, the circuit court of Wayne County civilly committed the 

respondent, Edward Abel, as a sexually dangerous person under the Sexually Dangerous Persons 

Act (Act) (725 ILCS 205/0.01 et seq. (West 2010)). 

¶ 2 In February 2019, the respondent filed an application for discharge/conditional release. 

Subsequently, he filed a motion for appointment of an independent evaluator at the State’s 

expense. On March 16, 2020, the trial court denied the respondent’s motion. By agreement of the 

parties, the court conducted a stipulated bench trial as to the respondent’s application for 

discharge/conditional release on February 22, 2021. The court denied the application. 

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¶ 3 The respondent appeals, arguing that (1) he was denied due process when the trial court 

denied his motion for an independent evaluator and (2) the denial of his motion violated his right 

to equal protection. For the reasons that follow, we affirm. 

¶ 4 I. BACKGROUND 

¶ 5 On September 9, 2011, the State filed a petition pursuant to the Act against the respondent. 

The petition alleged that, in 2006 and 2010, the respondent was convicted of aggravated criminal 

sexual abuse and that he was facing an additional charge for aggravated criminal sexual abuse. 

The petition also alleged that the respondent had a mental disorder, which, when coupled with his 

criminal propensity to commit sex offenses, demonstrated that he had a propensity toward acts of 

sexual assault or sexual molestation against children. The State requested that the respondent be 

found to be a sexually dangerous person as defined in the Act. On December 3, 2012, a bench trial 

was held, and the trial court found that the respondent was a sexually dangerous person. He was 

committed to the custody of the director of the Illinois Department of Corrections. 

¶ 6 On February 28, 2019, the respondent, who is indigent, filed a pro se petition for 

discharge/conditional release pursuant to section 9 of the Act (id. § 9). He asked the trial court to 

determine that his current mental status no longer rendered him sexually dangerous and grant his 

release. He subsequently filed a motion for an independent psychiatric examination. 

¶ 7 On December 9, 2019, appointed counsel filed the respondent’s first amended motion for 

appointment of an independent evaluator at the State’s expense, asking that the trial court allow 

an independent expert to examine the respondent to determine whether he had made sufficient 

progress in treatment to be conditionally released. A hearing on the request for an independent 

expert was held on February 11, 2020. The parties agreed to address only the issue of whether the 

respondent was entitled to an independent evaluator at the State’s expense as a legal issue under 

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the Act and the United States Constitution. If the court denied his motion, the factual issue of 

whether the evaluator contracted by the Department of Corrections, Dr. Kristopher Clounch, was 

biased would be addressed. 

¶ 8 On March 16, 2020, the trial court denied the respondent’s first amended motion for 

appointment of an independent evaluator at the State’s expense. The court found that the 

respondent did not show that Dr. Clounch was unqualified or biased so that an additional 

evaluation would be required, citing People v. Grant, 2016 IL 119162, People v. Burns, 209 Ill. 

2d 551 (2004), and People v. Houde, 2019 IL App (3d) 180309. The respondent filed a motion to 

reconsider the order on April 13, 2020, which was denied. 

¶ 9 By agreement of the parties, the trial court conducted a stipulated bench trial on February 

22, 2021. The parties stipulated that Dr. Clounch, a licensed psychologist and sex offender 

evaluator, would be admitted as an expert in the recovery hearing. It was further stipulated that Dr. 

Clounch would testify that he personally examined the respondent; assessed the respondent’s 

mental condition and probability of recidivism; filed an evaluation under the Act on June 28, 2019, 

containing his clinical opinion based upon his education and experience; reviewed additional 

treatment records up to June 2020; and confirmed his opinion. The parties stipulated that no 

witnesses, including the respondent, would testify and that no other evidence beyond Dr. 

Clounch’s evaluation would be considered. Dr. Clounch’s 40-page evaluation concluded, to a 

reasonable degree of psychological certainty, that the respondent remained sexually dangerous. 

¶ 10 On February 24, 2021, the trial court entered its judgment and order of remand, finding 

that the State disproved the allegations of the respondent’s petition for discharge/conditional 

release and that the respondent was still sexually dangerous. The respondent filed a motion to 

reconsider the judgment and the order denying his first amended motion for appointment of an 

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independent evaluator at the State’s expense. On May 3, 2021, the court denied the motion to 

reconsider. The respondent filed his notice of appeal on June 2, 2021. 

¶ 11 II. ANALYSIS 

¶ 12 On appeal, the respondent makes two contentions. First, that he was denied due process 

when the trial court denied his motion for an independent evaluator. Second, that the denial of his 

motion violated his right to equal protection. 

¶ 13 A. Due Process 

¶ 14 The respondent initially contends that he was denied due process when the trial court 

denied his motion for an independent evaluator at the State’s expense. Claims of due process 

violations are questions of law that we review de novo. People v. Craig, 403 Ill. App. 3d 762, 765 

(2010). In determining whether procedures are sufficient to comply with due process, courts 

balance three factors: 

“(1) the private interest that will be affected by the official action; (2) the risk of an 

erroneous deprivation of such interest through the procedures used, and the probable value, 

if any, of additional or substitute safeguards; and (3) the government’s interest, including 

the function involved and the fiscal and administrative burdens that the additional or 

substitute procedure requirement would entail.” Burns, 209 Ill. 2d at 566 (citing Mathews 

v. Eldridge, 424 U.S. 319, 335 (1976)). 

¶ 15 The Act provides for the involuntary civil commitment of individuals declared sexually 

dangerous as an alternative to criminal prosecutions. Craig, 403 Ill. App. 3d at 765. The Act serves 

both society and the individuals, as it provides treatment for sexually dangerous persons with the 

goals of recovery and rehabilitation while also protecting the public by sequestering sexually 

dangerous persons until they have recovered. Id. Although proceedings under the Act are civil in 

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nature, respondents are provided certain due process protections that are afforded to criminal 

defendants. Id. at 766. This is because an involuntary commitment constitutes a loss of liberty. Id. 

In any proceeding under the Act, a respondent has the right to demand a jury trial and to 

representation by counsel. 725 ILCS 205/5 (West 2018). A respondent also has the right to a 

speedy trial, to challenge the State’s evidence, and to confront and cross-examine the witnesses 

against him. Craig, 403 Ill. App. 3d at 766. 

¶ 16 “The Act is composed of two separate but interrelated proceedings: an initial commitment 

proceeding [citation] and a recovery proceeding [citation].” Id. At issue in this case is the recovery 

proceeding, which is governed by section 9 of the Act (725 ILCS 205/9 (West 2018)). Under 

section 9(a), a respondent who has been adjudicated sexually dangerous may file a written 

application containing facts showing he has recovered. Id. § 9(a). After the application is filed in 

the circuit court in which respondent was committed, the circuit court clerk is required to forward 

a copy of the application to the director of the Department of Corrections. Id. The director must 

then obtain a socio-psychiatric report concerning the applicant, which is sent to the circuit court. 

Id. The circuit court then sets a hearing date. Id. The applicant or the State may elect to have a 

hearing before a jury, and the State has the burden to prove by clear and convincing evidence that 

the applicant is still sexually dangerous. Id. § 9(b). A sexually dangerous person is allowed to file 

a new recovery application no sooner than two years after a finding that the person is still sexually 

dangerous. Id. § 9(d). 

¶ 17 The Illinois Supreme Court has repeatedly held that due process does not entitle a 

respondent to an independent evaluator in the absence of evidence that the evaluator chosen by the 

Department of Corrections is biased or prejudiced. Grant, 2016 IL 119162, ¶ 26; Burns, 209 Ill. 

2d at 574. In Burns, respondent applied for discharge from involuntary commitment under the Act 

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and moved for an independent psychiatric examination. Burns, 209 Ill. 2d at 554-55. In his motion, 

respondent alleged that the psychiatrist assigned to his case would not be able to give him an 

independent examination because the psychiatrist was an employee of the State and would 

therefore comply with the Department of Corrections’ desire to find respondent still qualified as a 

sexually dangerous person. Id. at 555. The court determined that Department of Corrections’ 

professionals who are employed by the institution where respondent is confined are not presumed 

biased or prejudiced. Id. at 567-68. The court also determined that independent psychiatric experts 

are not presumed to always testify contrary to the Department of Corrections’ professionals or 

always testify in favor of discharge. Id. at 568-69. 

¶ 18 In addressing the issue in Burns, the supreme court discussed People v. Capoldi, 37 Ill. 2d 

11 (1967), and People v. Trainor, 196 Ill. 2d 318 (2001). The court in Capoldi denied respondent’s 

request for an independent psychiatrist after determining there was no provision in the Act entitling 

him to an independent psychiatrist, and the court did not find that such services were necessary to 

protect respondent’s rights. Capoldi, 37 Ill. 2d at 18. A respondent filing a recovery petition under 

section 9 is not entitled to an independent psychiatric expert unless he can show that the experts 

employed by the State will not give an honest and unprejudiced opinion of respondent’s mental 

condition. Id. at 18-19. 

¶ 19 Thereafter, in Trainor, the supreme court reaffirmed that a respondent seeking discharge 

under section 9 is not entitled to an independent psychiatric expert. See Trainor, 196 Ill. 2d at 339, 

341. At issue there was whether the State could move for summary judgment on a respondent’s 

recovery application. The court found that because the State bears the burden of proof at a recovery 

proceeding, and because a respondent has a right to counsel and to demand a jury trial, summary 

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judgment was not appropriate in such proceedings because it would relieve the State of its burden 

of proof and circumvent a respondent’s right to a jury trial. Id. at 340-41. 

¶ 20 In analyzing the procedure previously followed by the appellate court, the supreme court 

explained: 

“If the recovery hearing scheme created by the appellate court, which places the 

burden of proof on the defendant, was approved, a defendant would gain nothing in terms 

of an opportunity to regain his freedom. Because, according to Illinois law, the trial court 

is not required to provide an independent psychiatrist to the defendant under the Act, the 

defendant would have nothing but his own application to present to the trier of fact. People 

v. McVeay, 302 Ill. App. 3d 960, 964 (1999). The necessarily limited allegations made in 

the defendant’s application alone would almost always be insufficient to sustain the burden 

placed on him to show by a preponderance of the evidence that he has recovered.” 

(Emphasis added.) Id. at 339. 

Moreover, in addressing the issue of summary judgment, the court again noted, “defendant is not 

entitled to appointment of an independent expert.” Id. at 341. 

¶ 21 The Burns court refused to speculate about whether Trainor intended to hold that an 

independent psychiatric exam is required in a recovery proceeding. Had the supreme court 

intended to so hold, it would have done so, especially since the appellate court in Trainor 

specifically addressed the issue and held that a respondent in a recovery proceeding was not 

entitled to the appointment of an independent expert. Burns, 209 Ill. 2d at 565. “Instead of 

reversing the appellate court’s ruling, Trainor twice quite clearly stated that a trial court is not 

required to provide an independent psychiatrist during recovery proceedings under the[Act].” Id. 

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¶ 22 The Burns court also clarified that a respondent is not even entitled to an independent 

psychiatric expert at the initial commitment proceedings under the Act. Id. Instead, section 4 of 

the Act provides that a respondent shall be examined by two evaluators appointed by the trial court 

at the initial commitment proceeding. Id.; see also 725 ILCS 205/4 (West 2018). “Nothing in 

section 4 of the [Act] provides that a trial court must allow a respondent to retain his own 

independent psychiatric expert.” Burns, 209 Ill. 2d at 565; see also 725 ILCS 205/4 (West 2018); 

McVeay, 302 Ill. App. 3d at 964. 

¶ 23 After the preceding cases were decided, however, section 9 of the Act was amended in 

2013 so that the current procedure states: 

“(a) An application in writing setting forth facts showing that the sexually 

dangerous person or criminal sexual psychopathic person has recovered may be filed 

before the committing court. Upon receipt thereof, the clerk of the court shall cause a copy 

of the application to be sent to the Director of the Department of Corrections. The Director 

shall then cause to be prepared and sent to the court a socio-psychiatric report concerning 

the applicant. The report shall be prepared by an evaluator licensed under the Sex Offender 

Evaluation and Treatment Provider Act [(225 ILCS 109/1 et seq. (West 2018))]. The court 

shall set a date for the hearing upon the application and shall consider the report so prepared 

under the direction of the Director of the Department of Corrections and any other relevant 

information submitted by or on behalf of the applicant.” (Emphasis added.) 725 ILCS 

205/9(a) (West 2018). 

Whereas the prior version provided that a socio-psychiatric report concerning the applicant “shall 

be prepared by a social worker and psychologist under the supervision of a licensed psychiatrist 

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assigned to the institution wherein such applicant is confined.” (Emphasis added.) 725 ILCS 205/9 

(West 2010). 

¶ 24 The respondent argues that this amendment altered the procedural safeguards so that the 

aforementioned case law is no longer precedential and due process now requires an independent 

evaluator to be appointed. He contends that with respect to the second Mathews factor, “the risk 

of an erroneous deprivation of liberty in a § 9 recovery hearing has escalated since 2013 under the 

new recovery procedure utilizing only one contract evaluator.” The State responds that the 

amendment does not undermine the due process analysis from Burns, as the statute still contains 

sufficient procedural safeguards to protect against the risk of an incorrect result in a recovery 

proceeding. We agree with the State’s position. 

¶ 25 In reviewing the Mathews considerations in the present case, the private interest at stake is 

the respondent’s liberty interest. We acknowledge that “ ‘civil commitment for any purpose 

constitutes a significant deprivation of liberty that requires due process protection.’ ” Burns, 209 

Ill. 2d at 566 (quoting Addington v. Texas, 441 U.S. 418, 425 (1979)); see also Craig, 403 Ill. App. 

3d at 766. However, it has also been reiterated with respect to the third factor that the State has a 

strong interest in treating sexually dangerous persons and in protecting the public from the 

dangerous tendencies of those individuals. Burns, 209 Ill. 2d at 566 (citing Allen v. Illinois, 478 

U.S. 364, 373 (1986)). “Indeed, the purpose of the [Act] is to protect the public by sequestering 

the sexually dangerous person until he is recovered and to provide treatment to the sexually 

dangerous person so that he may recover and be rehabilitated.” Id. at 566-67. We also find it 

important to note, as relevant to the third factor, that requiring trial courts to grant any request by 

an indigent recovery applicant for the appointment of an independent evaluator at the State’s 

expense would impose significant fiscal and administrative burdens on the State, even with the 

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newly imposed limit that a respondent may only file a recovery application two years after he was 

last found to be sexually dangerous. See 725 ILCS 205/9(d) (West 2018). 

¶ 26 As to the second factor, we find that the risk of an erroneous deprivation of the respondent’s 

liberty interest is minimal, considering the procedural safeguards contained in the Act. Although 

section 9 was amended, the Act still provides sufficient protections for sexually dangerous persons 

during recovery proceedings. The amendment at issue calls for the socio-psychiatric report 

concerning the applicant to be prepared by “an evaluator licensed under the Sex Offender 

Evaluation and Treatment Provider Act,” instead of “a social worker and psychologist under the 

supervision of a licensed psychiatrist assigned to the institution wherein such applicant is 

confined.” We begin by noting that the reduction of the number of evaluators from three to one 

does not alter the due process analysis, as the Burns court did not rely on the fact that three 

evaluators were involved in preparing the socio-psychiatric report as part of its due process 

analysis. 

¶ 27 The Sex Offender Evaluation and Treatment Provider Act (Provider Act) (225 ILCS 109/5 

(West 2018)) was enacted “to establish standards of qualifications for sex offender evaluators and 

sex offender treatment providers” to protect the public from unauthorized or unqualified sex 

offender evaluators and treatment providers and from unprofessional conduct by licensed sex 

offender evaluators and treatment providers. In furtherance of this legislative intent, the Provider 

Act sets forth certain educational and clinical requirements for licensure and for license renewal. 

Id. §§ 35, 80. Evaluators and treatment providers licensed under the Provider Act are also subject 

to regulation and discipline by the Sex Offender Evaluation and Treatment Provider Licensing and 

Disciplinary Board. See id. § 20. Thus, under the new statutory procedure, respondents in recovery 

proceedings are provided with the additional safeguard that the socio-psychiatric report will be 

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prepared by a licensed and qualified evaluator, where the examiners were not required to be 

licensed before the amendment. See Burns, 209 Ill. 2d at 572. 

¶ 28 We also decline to find a due process violation based on the argument that the evaluator 

who prepares the report is no longer personally involved in a respondent’s treatment and is chosen 

by the director of the Department of Corrections with no input from respondent. The prior statute 

did not allow respondents’ input into who was chosen to prepare the report. In this case, although 

Dr. Clounch was not personally involved in the respondent’s treatment, Dr. Clounch reviewed the 

respondent’s treatment records when preparing the evaluation and interviewed the respondent. 

Moreover, Dr. Clounch was not employed by the State but was instead contracted by the State to 

prepare the report. We will not presume that he was inherently biased due to his affiliation with 

the State. See id. at 567-68. There is no indication that an evaluator chosen by the State will never 

recommend discharge, just as there is no evidence that an expert hired by respondent will always 

recommend discharge. See id. at 568-69. 

¶ 29 Further, a respondent may be entitled to the appointment of an independent evaluator if he 

can establish that the State’s evaluator was biased or prejudiced. Id. at 574; Capoldi, 37 Ill. 2d at 

18-19. We find this sufficient to protect a respondent’s due process rights when combined with the 

additional protections that a respondent in a recovery proceeding is provided, including the rights 

to demand a jury trial, to representation by counsel, to a speedy trial, to challenge the State’s 

evidence, and to confront and cross-examine the witnesses against him. 725 ILCS 205/5 (West 

2018); Craig, 403 Ill. App. 3d at 766. Additionally, an applicant may circumvent the limit on the 

number of recovery applications he may file if he can establish that the new application “is 

accompanied by a statement from the treatment provider that the applicant has made exceptional 

progress and the application contains facts upon which a court could find that the condition of the 

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person had so changed that a hearing is warranted.” 725 ILCS 205/9(d) (West 2018). Thus, in 

considering the Mathews factors, we conclude that due process does not entitle the respondent to 

the appointment of an independent evaluator at the State’s expense. 

¶ 30 B. Equal Protection 

¶ 31 The respondent also asserts that the denial of his motion for an independent evaluator at 

the State’s expense violated his right to equal protection as guaranteed by the fourteenth 

amendment to the United States Constitution (U.S. Const., amend. XIV). In response, the State 

argues that the respondent forfeited this claim by failing to raise it before the trial court. It is well 

settled that an appellant’s failure to raise an issue in the trial court results in forfeiture of that issue 

on appeal. See People v. Smith, 2019 IL 123901, ¶ 14. Although the respondent disputes the State’s 

contention, our review of the record reveals that he failed to include an equal protection claim in 

his motion for an independent evaluator at the State’s expense, assert it orally during the motion 

hearing, or raise it in his motion to reconsider. Accordingly, we find that he has forfeited this claim. 

He has not requested that we review the claim for plain error; thus, we need not address the merits 

of this issue. See People v. Hillier, 237 Ill. 2d 539, 549-50 (2010). 

¶ 32 III. CONCLUSION 

¶ 33 Therefore, we affirm the judgment of the circuit court of Wayne County. 

¶ 34 Affirmed. 

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No. 5-21-0155 

Cite as: People v. Abel, 2022 IL App (5th) 210155 

Decision Under Review: Appeal from the Circuit Court of Wayne County, No. 11-CF-92; 

the Hon. Michael J. Molt, Judge, presiding. 

Attorneys Heidi Hoffee, of Hoffee Law Firm, of Fairfield, for appellant. 

for 

Appellant: 

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, 

for Solicitor General, and Michael M. Glick, Mitchell J. Ness, and 

Appellee: Erin M. O’Connell, Assistant Attorneys General, of counsel), for 

the People. 

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