## Illinois Official Reports

Appellate Court

People v. Bethke , 201 4 IL App ( 1st ) 122502

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff

- Appellee, v. MICHAEL BETHKE, Defendant

- Appellant.

District & No. First District, Fourth Division Docket No. 1

- 12

- 2502

Filed February 6, 2014

Held ( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader. ) On appeal from the denial of defendant ’ s request for “ supervised off

- grounds pass privileges ” after he had been in a mental health center for over 20 years following a finding in 1991 that he was not guilty of first degree murder by reason of insanity when he killed a coworker, the ap pellate court remanded the cause to allow the trial court to make more specific findings of fact and conclusions of law pursuant to the requirements of section 3

- 816(a) of the Mental Health and Developmental Disabilities Code and section 5

- 2

- 4 of the Unifi ed Code of Corrections.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 91

- C

- 660917

- 01; the Hon. Frank G. Zelezinski, Judge, presiding.

Judgment Remanded.

Counsel on Appeal Mark J. Heyrman, of Edwin F. Mandel Legal Aid Clinic, of Chicago, for appellant.

Anita M. Alvarez, State ’ s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Joan F. Frazier, Assistant State ’ s Attorneys, of counsel), for the People.- 2

- Panel JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Epstein concurred in the judgment and opinion.

OPINION

¶ 1 In this rather unusual appeal, we confront the trial court ’ s denial of a petition filed on behalf of defendant Michael Bethke recommending that he be allowed escorted leave of the mental health center ’ s premises, or “ supervised off

- grounds pass privileges ” pursuant to sections 5

- 2

- 4(b) and (e) of the Unified Code of Corrections (Code) (730 ILCS 5/5

- 2

- 4(b), (e) (West 2010)). Foll owing an evidentiary hearing on the matter , the trial court denied the petition. On appeal, defenda nt asserts that the trial court ’ s decision was against the manifest weight of the evidence, that the trial court based its decision on an impermissible stand ard, and that the trial court failed to make findings of fact as required by section 3

- 816(a) of the Mental Health and Developmental Disabilities Code ( Mental Health Code ) (405 ILCS 5/3

- 816(a) (West 2010)). We remand.

¶ 2 BACKGROUND ¶ 3 Defendant, age 49, has lived at the Elgin Mental Health Center in the custody of the Illinois Department of Human Services ( see 730 ILCS 5/5

- 2

- 4 (West 2010); 405 ILCS 5/3

- 100 et seq

. (West 2010)) since 1993 after the trial court found him not guilty of fir st degree murder by reason of insanity. For the sake of judicial context, we will briefly relate the rather grisly circumstances that led do this conviction. 1 On June 6, 1991, defendant apparently experienced irresistible “ command hallucinat ions ” urging him to kill his co worker at a White Hen Pantry. Unable to control these voices, defendant took a knife from the deli counter and decapitated his

co worker, then wrote on the co worker ’ s head in blood, and placed the head, as if on display, in the del i case. After wandering in the woods, defendant told a bystander to call the police. Doctors at the Elgin Mental Health Center (EMHC) diagnosed defendant with schizoaffective disorder, bipolar type with a history of substance abuse. He has been receiving i npatient treatment and medication since his admission to EMHC to control symptoms ranging from paranoid delusions to auditory hallucinations and mood swings. ¶ 4 In April 2012, defendant ’ s EMHC treatment team, consisting of his treating psychiatrist

, Hasina J aved, along with a psychologist and social worker, filed a report in support of the

1 Appellant ’ s opening brief was notably silent on the factual circumstances underlying his conviction, which is curious since these ghoulish facts seemed to constitute the primary basis of the trial
court ’ s ruling. The State, on the other hand, supplied this court with the necessary information in the first paragraph of its brief.- 3

- petition to modify defen dant ’ s treatment plan and recommending off

- grounds pass privileges. They reported that over the course of the last 20 years, defendant made substant ial progress in his treatment and recovery. He accepted his mental illness and recognized his need to stay medicated while participating in psychotherapy. In fact, his team reported that his medication compliance was “ excellent. ” In 2000, defendant graduat ed from a mental illness and substance abuse program and completed online college education classes. According to the report, he continued to participate in therapy groups and workshops and complied with the doctors ’ treatment plans. In spite of these posi tive advancements and even though he was medicated at the time, defendant experienced extreme paranoia and auditory hallucinations , with voices telling him he was “ evil, ” following the events of September 11, 2001. The 2005 tsunami in Asia possibly precipi tated angry behavior and aggression toward another patient, but defendant ’ s medication was adjusted with positive results. T he report stated that, “ to manage his reaction to natural disaster events

, ” defendant used “ careful self monitoring, limited media

e xposure, and distraction

. ” ¶ 5 In 2009, at the request of the EMHC treatment team, defendant was granted unsupervised

on

- grounds passes, and he used those for some two years to take unescorted walks on hospital grounds without making any attempts to elope. ¶ 6 In June 2012, forensic clinical services director and forensic psychiatrist , Dr. Mathew Markos, examined defendant pursuant to court order. Following review of relevant records and consistent with the treatment team report, Dr. Markos recommended that defe ndant be allowed supervised off

- grounds pass privileges ( to visit such places as the YMCA, the public library, or the mall while being escorted by EMHC staff )

. In support of this recommendation, Dr. Markos stated that with medication defendant was in remis sion of his mental illness, defendant was clinically and behaviorally stable and compliant with treatment, and defendant had used his

on

- ground s pa ss since 2009 without incident. ¶ 7 An evidentiary hearing on the petition for supervised off

- grounds passes ens ued, and the defense called Dr. Markos, wh o testified consistent with his court

- ordered examination of defendant, and the defense also called Dr. Javed at EMHC. Both doctors testified that the
passes were safe, in sofar as defendant was not likely to harm h imself or others, and the pa sses would have the beneficial effect of facilitating defendant ’ s continuing progress in treatment. Dr. Markos emphasized that defendant had been mentally stable since 2009 and compliant with treatment recommendations , and Dr. M arkos emphasized that the passes would enable defendant to attend a community drug rehabilitation program

, help ing with defendant ’ s

“ reintegration ” into society. He ad ded that during the off

- grounds ventures, the ratio of staff to patients was “ approximate ly three to one ” with staff making sure the p atients “ get their medication, ” although Dr. Markos did allow on cross

- examination that he was unsure of the staff members ’ training or whether they could recognize if defendant ’ s mental state were to deteriorat e. Dr. Markos also stated that if defendant did not receive his medication, he could relapse within one to two days or within weeks. ¶ 8 Dr. Javed testified that defendant was aware that if he did not take his medications, his symptoms would return , but she a lso added that “ any ma jor disaster or event, ” like September 11 or the tsunami, could “ trigger psychosis ” even though defendant was medicated. Regarding- 4

- the tsunami, Dr. Javed emphasized that defendant was able to report his symptoms of psychosis to staff and obtain relief. Dr. Javed testified that during outings defendant would be escorted by a security officer or an “ activity therapist

. ” The only escort at the drug rehabilitation facilit y wo uld be a security officer. She testified that before each t rip, she would assess defendant, and i f defendant was not stable or if he declined medication, h e would not be allowed to leave. Dr. Javed conceded on cross

- examination that she would not be able t o determine if defendant in fact had taken his medication. ¶ 9 Following evidence and argument, the court denied the petition. The court noted the testimony of both doctors, the argument by counsel, and the fact that defendant had been in EMHC for an extended period of time based on the court ’ s previous finding of not guilty by reason of insanity. The court also noted that defendant had been granted on

- grounds pass privileges. The court stated it had “ looked at all the other factors here, ” then stated:

“ The C ourt cannot but not [ sic ] look at the reasons why Mr. Bethke is in fact at the Illinois Department of Human Services under treatment. I have heard the testimony of the [ sic ] Dr. Markos for that matter, indicating there is in fact a risk factor to be consi dered. Considering all factors here, this Court is not convinced that t he defendant will be guaranteed

– [t]hat he will not be a risk to himself and others if allowed into the general public. And, therefore, the request for supervised off ground privileges is denied. ” ¶ 10 This timely appeal followed.

¶ 11 ANALYSIS ¶ 12 On appeal, defendant contends (1) that the trial court ’ s denial of the off

- grounds passes was against the manifest weight of the evidence, (2) that the trial court based its decision on a requirement of a guar antee that defendant ’ s future behavior while on such a pass posed no risk

, and (3) that the trial court failed to make findings of fact, as required by section 3

- 816(a) of the Mental Health Code (405 ILCS 5/3

- 816(a) (West 2010)). We conclude that defendant ’ s third contention is dispositive and therefore need not address his remaining contentions.

¶ 13 Treatment Plan Review and Modification ¶ 14 When an individual has been acquitted of a crime by reason of insanity, his subsequent treatment is governed by section 5

- 2

- 4 of the Code, which authorizes the acquittee ’ s involuntary commitment i n order to treat the individual ’ s mental illness and also to protect him and society from his potential dangero usness. 730 ILCS 5/5

- 2

- 4 (West 2010) ; People v. Jurisec , 199 Ill. 2d 108, 115 (2002). The request for off

- grounds pass privileges from such a defendant is specifically governed by sections 5

- 2

- 4(b) and (e) of the Code. 730 ILCS 5/5

- 2

- 4(b) , (e) (West 2010). Section 5

- 2

- 4(b) relates to inpatient mental health services after a person is acquitted by reason of insanity and says, in relevant part, that the facility director shall file a treatment plan report, which may include a request for off

- grounds pass priv ileges. 730 ILCS 5/5

- 2

- 4(b) (West 2010).- 5

- ¶ 15 In this case, i t is clear that while defendant ’ s previous treatment plan provided for

on

- grou nds pass privileges, it did not go so far as to provide off

- grounds privileges. When a petition for treatment plan review is filed by the defendant or, in this case, a person on the defendant ’ s behalf, including a request for off

- grounds pass privileges, a hearing must follow

. If evidence is presented, the burden of proof remains with the defendant and the “ findings of the C ourt shall be established by clear and convincing evidence. ” 730 ILCS 5/5

- 2

- 4(e), (g) (West 2010); see also People v. Cross , 289 Ill. App. 3d 876, 887 (1997) (section 5

- 2

- 4 (b) applies when application for pass privileges constitu tes a modification of defen dant ’ s treatment plan). Section 5

- 2

- 4(b) requires that such privileges be approved by court order

,

“ which order may include such conditions on the defendant as the Court may deem appropriate and necessary to reasonably assure the defendant ’ s satisfactory p rogress in treatment and the safety of the defendant and others. ” 730 ILCS 5/5

- 2

- 4(b) (West 201 0 ). ¶ 16 Defendant, in arguing that “ the trial court committed reversible error when it f ailed to make findings of fact, ” points to section 3

- 816(a) of the Mental Health Code (405 ILCS 5/3

- 816(a) (West 2010)), which provides: “ Every final order entered by the court under this Act [ Mental Health Code ] shall be in writing and shall be accompanied by a statement on the record of the
court ’ s findings of fact and conclus ions of law. ” The Mental Health Code similarly addresses the institutional care and commitment of individuals for mental health reasons. The State acknowledges that section 5

- 2

- 4(b) provides that the review of treatment plans for defendants acquitted by re ason of insanity “ shall be under the Mental Health and Developmental Disabilities Code ” (730 ILCS 5/5

- 2

- 4(b) (West 2010)) but asserts that section 3

- 816(a)

, requiring findings of fact by the trial court

, conflicts with section 5

- 2

- 4 of the Code. But see 40 5 ILCS 5/3

- 814(c) (West 2010) (noting that a not

- guilty

- by

- reason

- of

- insanity defendant ’ s

“ treatment plan and its review shall be subject to th e provisions of Section 5

- 2

- 4 ” )

. The State
argues that in the event of a conflict between the M ental Health Code and the Code , section 5

- 2

- 4(k) provides that the Code controls. See 730 ILCS 5/5

- 2

- 4(k) (West 2010). ¶ 17 We fail to see any such statutory conflict. Our primary objective in interpreting a sta tute is to give effect to the legislature ’ s intent, which is best d one by reviewing statutory language in its plain and ordinary meaning. People v. Giraud , 2012 IL 113116, ¶ 6. The language in each section of a statute must be examined in light of the statute as a whole, which is construed in conjunction with other statut es touching on similar and related enactments, though not strictly in pari materia

. Relf v. Shatayeva

, 2013 IL 114925

, ¶¶ 23, 39. We must presume that several statutes relating to the same subject are governed by one spirit and a single policy, and that th e legislature intended the several statutes to be consistent and harmonious. Id

. ¶ 39. Here, we conclude that section 3

- 816(a) does not conflict with section 5

- 2

- 4, but is consistent with that statutory provisio n and clarifies the trial court ’ s duties in a case like the present. See

, e.g. , People v. Chiakulas , 288 Ill. App. 3d 248, 252 (1997) (finding the Code and M ental Health Code sections on treatment plans complementary, rather than conflicting); but see People v. Owens , 269 Ill. App. 3d 152, 154

- 55 (19 94) (section 5

- 2

- 4 of the Code controls). The clear language of section 5

- 2

- 4 of the Code, giving the trial court wide discretion in granting and tailoring passes, when read together with section 3

- 816(a) of the M ental Health Code supports our conclusion t hat the trial court must make adequate findings of fact and conclusions of law- 6

- for a reviewing court to effe ctively address the trial court ’ s judgment. See 730 ILCS 5/5

- 2

- 4(b) (West 2010) (providing that the court “ may ” impose “ conditions ” on the defendant in relation to the privileges) ; see also People v. Cross , 301 Ill. App. 3d 901, 910 (1998) (holding that the statute does not mandate that the trial court grant pass privileges even if defendant ’ s treatment team, including the facility director, recommend s the passes be granted) ; People v. Williams

, 140 Ill. App. 3d 216

, 226 (1986) (it is the trier of fact and not the psychiatrists who considers and weighs the evidence). This statutory interpretation is also consistent with our deferential standard of revi ew on appeal, for we will not reverse a trial court ’ s determination regarding pass privileges unless it is against the manifest weight of the evidence, which occurs only when the opposite conclusion is clearly evident. See People v. Wolst , 347 Ill. App. 3d 782, 790 (2004). Given the delicacy o f cases involving an individual ’ s mental health treatment and its relationship to public safety, the discretion vested in the trial court is even greater than an ordinary appeal applying the manifest weight principle. Cf

. In re R.S. , 382 Ill. App. 3d 453, 459

- 60 (2008). ¶ 18 Having determined that the trial court is required to make sufficient findings of fact and conclusions of law in relation to the denial of pass privileges following an evidentiary hearing

, we conclude that the fact findings in this case fell demonstrably short of satisfying that standard. Here, the trial court identified the statutory standard requiring that the passes be conducive with the safety of defendant and others, but then the tria l court denied the supervised off

- grounds pass privileges almost exclusively because of the undeniably horrific nature of the original crime committed some 20 years ago while defendant was not being treated for his psychiatric illness. Suffice it to say th at merely reciting the facts of the crime committed while mentally ill does not supply the trial court with “ clear and convincing ” evidence that off

- grounds privileges should not be granted. While the court cited a “ risk factor ” identified by Dr. Markos as a potential basis for denial of the passes, it did not elaborate on what that risk factor was, leaving this court to do the guesswork. Given the apparent importance placed by mental health professionals on this sort of activity, we must call upon the tria l court to justify its ruling by referencing facts related to defendant ’ s current mental health status as opposed to reflexive reference to the admittedly horrific underlying crime. T he trial court is certainly

e ntitled to consider a defendant ’ s original r eason for inpatient institutionalization, but it cannot rely on that alone; it must also consider the individual ’ s treatment history and current me n tal status in determining whether to grant or deny passes that serve as a step toward possibly renewing the patient ’ s liberty. See 730 ILCS 5/5

- 2

- 4(g) (West 2010); People v. Robin , 312 Ill. App. 3d 710, 716 (2000) (once a not

- guilty

- by

- reason

- of

- insanity defendant is involuntarily admitted, he may be held only so long as he is both mentally ill and dangerous, an d as a matter of due process, it is unconstitutional for the State to confine a harmless mentally ill person); People v. Shelton , 281 Ill. App. 3d 1027, 1036 (1996) (same); Cross , 301 Ill. App. 3d at 9 11

- 12 (considering past behavior in denying supervised off

- grounds pass privileges); see also People v. Harrison , 366 Ill. App. 3d 210, 216

- 17 (2006) (the confinement of a person found not guilty by reason of insanity is not for punishment, but rather treatment and protection); Turner v. Campagna , 281 Ill. App . 3d 1090, 1093

- 94 (1996) (noting same regarding primary objective of section 5

- 2

- 4). In addition, the standard cannot be a “ guarantee ” of future behavior,- 7

- otherwise no person in defendant ’ s place would be permitted off

- grounds passes or any form of releas e. See People v. Blumenshine , 72 Ill. App. 3d 949, 955 (1979). ¶ 19 From our reading of the record, in denying the passes, the trial court could have found the evidence insufficient to ensure that defendant would be medicated prior to the off

- grounds outings. Likewise, although defendant was progressing positively, the evidence also indicated he could easily relapse if he did not take his medication or, even while medicated, if he was exposed to a traumatic event. The trial court could have found there were ins ufficient safeguards to address such a relapse should it take place in public and there was no indication that trained staff w ould be present to effectively han dle the relapse given defendant ’ s large size and apparen t strength. As we are not the “ fact find er ” with a view of the witnesses ’ credibility, however, we are not in a position to be making these factual conclusions to support the court ’ s judgment. See, e.g. , In re G.W.

, 357 Ill. App. 3d 1058, 1060 (2005) (appellate court cannot meaningfully review o r defer to findings that were never made). Thus, although there is evidence in the record and testimony from the witnesses t hat would support the court ’ s denial of the off

- grounds pass privileges, we decline to address the merits of the case absent additio nal findings of fact from the trial court. See In re Madison H.

, 215 Ill. 2d 364, 378 (2005); see also In re James S. , 388 Ill. App. 3d 1102, 1105, 1107 (2009) (trial court ’ s statement , “ having heard the testimony and observed the witnesses, ” was an insuff icient finding of fact under section 3

- 816(a) for the involuntary administration of psychotropic medication).

¶ 20 CONCLUSION ¶ 21 Accordingly, we remand the cause to the trial court for the limited purpose of allowing the court to enter more specific findings of fact and conclusions of law, consistent with the requirements of section 3

- 816(a) of the M ental Health Code and section 5

- 2

- 4 of the Code. 405 ILCS 5/3

- 816(a) (West 2010); 730 ILCS 5/5

- 2

- 4 (West 2010); see In re Madison H.

, 215 Ill. 2d at 378. In the u nlikely event the trial court deems the evidence sufficient to support off

- ground s pass privileges, we hold that additional evidence must be presented showing defendant ’ s mental health and treatment have not changed since the passes were initially

recommen ded in 2012.

¶ 22 Remanded.