FIRST DIVISION

									March 29, 2004

No. 1-02-2878

THE PEOPLE OF THE STATE OF ILLINOIS, 

	Plaintiff/Appellee,

	v.

RAYMOND WOLST,

	Defendant/Appellant.		

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Appeal from the

Circuit Court of

Cook County

96 CR 15947

Hon. Gary L. Brownfield,

Judge Presiding.

	JUSTICE McBRIDE delivered the opinion of the court:

	Defendant, Raymond Wolst, suffers from paranoid schizophrenia.  In 1996, defendant shot and killed a

stranger in a health club while under the delusional belief that the victim was a federal agent.  While initially found

unfit for trial, defendant was subsequently found fit and not guilty by reason of insanity in November  1997. Defendant

was thereafter confined to Elgin Mental Health Center.  On January 23, 2002, the facility director at Elgin

recommended that defendant be transferred to a non-secure setting and that he be granted supervised off-grounds and

unsupervised on-grounds pass privileges.  On February 28, 2002, defendant petitioned the trial court for a transfer to

a non-secure setting; supervised off-grounds pass privileges; and unsupervised on-grounds pass privileges under section

5-2-4(e) of the Unified Code of Corrections (Corrections Code) (730 ILCS 5/5-2-4(e) (West 2000)).  On August 15,

2002, the trial court granted the unsupervised on-grounds pass privilege, but denied defendant's request to be

transferred to a nonsecure setting and request for supervised off-grounds pass privileges.  Defendant appeals the trial

court's denial of these two privileges.

	We address the following issues: (1) whether the trial court's decision to deny the two requested privileges was

against the manifest weight of the evidence; (2) whether the trial court's application of the current version of section

5-2-4(g) of the Corrections Code was an improper retroactive application of the law in violation of section 4 of the

Statute on Statutes (5 ILCS 70/4 (West 2000); (3) whether the application of the current version of section 5-2-4(g) violates the ex post facto clause of the United States Constitution; (4) whether section 5-2-4(g), as amended, violates defendant's substantive due process rights under the United States Constitution by shifting the burden of proof to defendant; and (5) whether section 5-2-4(g), as amended, violates procedural due process by failing to ensure adequate

safeguards for the protection of defendant's liberty interest.  We state the following background facts.

	At a hearing on July 17, 2002, defendant presented the testimony of four witnesses to support the relief

requested.  

	Judy Long, a social worker at Elgin, said she had known the defendant since 1997, and that he was the most

"appropriate" patient in the unit.  She stated defendant did not fight or argue with anyone, nor did he threaten or harm

anyone.  Long said that defendant had changed while admitted at Elgin, that he had a "good range of emotions," and

that he was no longer suffering from delusions.  

	Long explained that defendant had requested a transfer to William White Cottage (WWC), which is a

nonsecure unit approximately half a block from the Elgin facility.  While the windows and doors at WWC were locked

all the time, she stated that there was no security fence around the building.  She explained that if a patient wanted to

leave WWC, the patient would need an authorized pass and a legitimate destination.  A staff person at the doorway

checks the patients in and out.  To her knowledge, no one had ever escaped from WWC.  

	Long described an unsupervised on-ground pass privilege as allowing the bearer to travel about a half a block

between the housing building and the program building for treatment purposes.  In conjunction with the pass, the

patient's psychiatric ability is evaluated on a daily basis.  If the patient is determined to be unstable, then the privilege

is revoked.  

	Long then characterized defendant's third request, the off-grounds supervised privilege pass, as allowing the

patient to occasionally "go off the unit" with staff supervision for the purpose of reintegration into society.  An example

of this privilege might be "[going] to a driver's license facility and [getting] a state ID, or *** [learning] about

resources in the community."  For the off-ground trips, there is one staff member for every three patients.  In the event

a patient attempted to escape while on a trip, staff are trained in the use of restraints and handcuff procedures.

	Dr. Roni Seltzberg, a medical doctor and staff psychiatrist for the circuit court of Cook County forensic

medical services, testified that she evaluated defendant on June 6, 2002, pursuant to a court order.  In her opinion,

defendant's mental status had changed significantly since the crime.  She determined that defendant was no longer having delusions.  She diagnosed defendant as suffering from schizophrenia, paranoid type, which is currently in

remission with medication.  Seltzberg said that the medication is the major reason defendant had improved.  Defendant

currently receives two milligrams of Risperidone daily.  Risperidone is an antipsychotic agent.

	Seltzberg stated that defendant does not present a danger to himself or to others provided he continues with

his medication.  She pointed out that defendant has not threatened anyone or injured himself since he has been in

remission.  Seltzberg opined that defendant's transfer to WWC would not pose a danger to defendant or others and

would continue to benefit defendant.  She did not think the transfer created a risk that defendant would escape or that

other patients in the WWC unit would be at risk, as long as defendant continued to take his medication.  Seltzberg also

said that the transfer would not jeopardize the likelihood that defendant would continue to take his medicine because

he would still be in the structured, supervised, and hospital-like setting of WWC.   

	With regard to the unsupervised on-ground passes, Seltzberg  opined that granting this privilege would not

pose a risk because defendant did not represent any threat to others or any indication of an intent to escape. With regard

to the supervised off-ground pass, she found no evidence that defendant posed a risk of harm to himself or to others,

provided he continued taking his medication.  The Doctor said that her opinion would absolutely change if defendant

stopped taking his medication because her opinion was based upon defendant's continued compliance with taking

prescribed medications.  Seltzberg stated that the only thing that keeps defendant's symptoms from returning is the drug

defendant takes and that defendant will likely need to take the drug forever.  She also indicated that stress affected

defendant's disease.  

	Seltzberg described WWC as: 

		"a non-secure building in that it is outside the forensic fence that surrounds the

main forensic building, but it is still secure in the sense that it is a locked unit, and

the people that are residents are monitored, are provided medications, supervision,

and treatment as if they were in any other secured hospital where the doors are

locked.  They can't just walk in and out at will." 

Counsel for the State then asked Seltzberg:

			"Q.  But the only new stressers would be [defendant's responsibility for]

requesting his medicine at the appropriate time and being left alone?

			A.  I don't know that I would refer to it as being a stresser necessarily in

this case.

			Q.  You wouldn't consider that a difference in his environment that

wouldn't be considered a stress factor?

			A.  That may or may not [be] to certain individuals.  I don't believe that

would be a problem for Mr. Wolst."

Finally, Seltzberg said that defendant's failure to take medication would increase the likelihood that defendant could

potentially injure someone or himself.

	Dr. Albert Stipes, a staff psychiatrist and assistant director for forensic clinical services at the Cook County

circuit court, testified that he examined defendant on April 13, 2002.  He said that defendant's condition had changed

since the time of the offense and he diagnosed defendant as having schizophrenia, paranoid type, in remission with

medication.  Stipes stated that defendant's medication is the most important reason for defendant's improvement.  He

reiterated that defendant receives two milligrams of Risperidone daily which prevents delusions, hallucinations, and 

thought disorder associated with schizophrenia. 

	Dr. Stipes testified that defendant's transfer would be safe for the defendant and others because the treatment,

medication, and security measures would ensure everyone's safety.  He stated that WWC is a locked unit and that

patients can only leave if permitted by staff.  He said that he did not believe that defendant posed a risk of harm to

others or risk of escape from WWC.  In his view,  defendant's request for an unsupervised on-ground pass should have

been granted based on the improvement in defendant's clinical condition and the security measures in force for patients

with passes.  Stipes further endorsed the granting of an supervised off-ground pass because defendant would be

accompanied by staff ensuring the safety of others.  According to Stipes, it was necessary for defendant to continue

taking his medication, but none of the three requests made by defendant would interfere with him taking it.  The doctor

said that, if defendant stopped taking his medication, he would not be in favor of granting the passes or the transfer.  Stipes admitted that, theoretically, defendant could walk off the grounds with an unsupervised on-ground pass. 

However, he said that staff would likely see defendant because they would be looking out the window to watch him. 

	Dr. Hargurmukh Signh, a psychiatrist employed by the forensic program at Elgin Mental Health Center,

testified that he knew  defendant and provided treatment to him almost every work day.  He  diagnosed defendant as

schizophrenic, paranoid type.  Signh explained that defendant had changed since the crime and that he no longer had

symptoms of schizophrenia and that he was considered one of the most stable patients in the unit.  The doctor

confirmed that defendant took two milligrams of Risperidone daily and he supported defendant receiving the relief

requested.  He said that no one from WWC had ever escaped because they were in possession of a supervised off-ground

pass.  The doctor stated that 25% of the patients who get the symptoms of paranoid schizophrenia relapse when they

do not take their medication.

	During Signh's testimony the trial judge asked the witness:

			"THE COURT: Now, if I want to grant [defendant] to be transferred to

the [WWC] building, and I was to grant him unsupervised on-ground passes,

where would he be allowed to go?

			THE WITNESS:  Mainly he will be allowed to come back to the main

forensic building to the programs which are available, and then when his

treatment team sees him suitable he will be allowed to go to building 110, which

is rehab, because they have a separate workshop ***.

						* * *

			THE COURT:  Is there a gate before you get to Route 131?

			THE WITNESS: Yes there is a traffic light, 131, and there is Elgin ***,

no security door.

			THE COURT:  No security, no guard?

			THE WITNESS:  No.

			THE COURT:  So, *** he could just walk out, correct?

			THE WITNESS:  Theoretically, yes.

						* * *

			THE COURT: Why is the proposal or recommendation, why is it [not]

one step at a time, rather than all three at once?

			THE WITNESS: Because doing one – this is just using the street

language, if you put him in White Cottage, don't give him ground pass –

			THE COURT: Let's make White Cottage the third step rather than the

first step, let's look at it.  Why would he go in a procedure where first we would

have on-ground passes unsupervised, the second step would be supervised off-

ground passes, and the third step would be William White.  Why wouldn't we

proceed in that fashion?  Why do we want to do all at once?

			THE WITNESS: We have seen that this way it is more effective, because

White Cottage [has] certain things available [that] we don't have.  For example,

they have what we call medication compliance program, which means there is

more emphasis on self-reliance, patients have to take their own risks, they have to

hear the nurses remind them, well, this is medication time, people come and get

their medication. 

			Everyone is expected to be there on time, they write it down, who came

on time, who didn't, and you keep score.

			So, there are several little things where the emphasis that the patient take

more responsibility on their own.

			So, having that environment, giving more privileges, responsibilities,

privileges, they both go hand in hand so he get optimum benefits by that

arrangement.

			It would take away one part, he doesn't get maximum benefits.  That is the way we as treatment team see it.

			THE COURT: And you don't see that by doing it in that fashion there is

not a possibility, not exactly a scientific word, but overload, which would increase

the relapse possibility?

			THE WITNESS: In my experience in the last several years, actually from

the patients who were transferred from my case load to White Cottage, they do

extremely well."

	At the hearing on August 15, 2002, the court stated:

			"Okay.  There [have] been *** requests of the Court.  The first is for

unsupervised ground passes, the second is for a transfer to a less-secure facility on

the Elgin grounds; the William White Unit, and lastly, a request for supervised

off-ground passes.  Among the goals of the mental health center on behalf of Mr.

Wolst are to remain in remission of psychosis and to develop an appropriate

relapse prevention plan and aftercare plan.  The court and the Elgin Mental Health

Center are concerned about the safety of Mr. Wolst and society.  A relapse by Mr.

Wolst could present a danger to Mr. Wolst or others.  The need for medication is

apparent by the progress that Mr. Wolst has made.  The doctors have expressed

that Mr. Wolst has made great progress with medication and that the medication

is an [integral] part of his treatment as well as to ensure his safety and the safety

of others.  The request for a transfer to a more non-secure facility in the William

White Unit is premature.  There needs to be a time – a period of time of

unsupervised ground passes to ensure that Mr. Wolst will remain at Elgin while

his medication is being fully monitored.  The testimony and opinion regarding

supervised off-ground passes does not provide the Court with enough information

regarding these.  There were a couple of examples given about passes with other patients, but there was not a plan or agenda on behalf of Mr. Wolst expressed; how

often Mr. Wolst would go on these outings; will Mr. Wolst be with other patients;

how long do they last; who and how many people will supervise; who will Mr.

Wolst come in contact with; will they involve contact with a small or large group

of people; will they entail situations where it will be difficult or easy to supervise. 

Additionally because of the need for medication and the risk and the grave

consequences if there was to be a relapse or an escape, the Court would want Mr.

Wolst's medication to be in a controlled environment including the receiving and

actual taking of the medication.

			The Court also finds that the transfer to the William White Unit is

premature in order to assure Mr. Wolst's stability, recovery, and to protect him and

so, I will need to proceed step by step without the danger of overloading him with

too many options during his therapeutic course of treatment which includes the

taking of medication as requirement for remission.

			Based on the testimony of the witnesses during the hearing, this Court

will allow unsupervised ground passes at the discretion of the Elgin Mental Health

Center, but the request for supervised off-ground passes and the transfer to the

William White Unit is denied."

Defendant appeals from the trial court's decision.

	We first examine whether the trial court's decision was against the manifest weight of the evidence.  Under

section 5-2-4(g) of the Corrections Code, the defendant must prove by clear and convincing evidence that the facility

director's determination  supporting his transfer to a nonsecure setting or the entitlement to certain pass privileges is

proper.  730 ILCS 5/5-2-4(g)(West 2000); People v. Cross, 289 Ill. App. 3d 876, 886, 684 N.E.2d 135 (1997).  The trial court's determination as to whether a defendant has carried his burden under section 5-2-4(g) by clear and

convincing evidence  must be respected unless such determination is against the manifest weight of the evidence.  People v. Cross, 301 Ill. App. 3d 90,  908-09 (1998).  "For decision to be against the manifest weight of the evidence, it must appear that a conclusion opposite to that reached by the trier of fact is clearly evident."  People v. Barwig, 334 Ill. App. 3d 738, 743, 778 N.E.2d 350 (2002).  

	In the instant case, there is ample evidence to support the trial court's decision.  The record makes clear that

the trial court's primary concern was that defendant, when placed in a less secure environment and charged with taking

his own medication, might fail  to do so and relapse.  Seltzberg and Stipes, defendant's own witnesses, testified that

the sole reason defendant was not delusional, a danger to himself or to others, was because he took his daily

medication, Risperidone, an antipsychotic agent.  They both concluded that the Risperidone was the major reason for

defendant's improvement.  Seltzberg and Stipes also both testified that, if defendant stopped taking his medication, they

would not be in favor of the transfer and the passes.  Dr. Seltzberg said that the only thing that keeps defendant's

symptoms from returning is the Risperidone and that defendant will likely need to take the drug forever.  Dr. Singh

stated that 25% of the patients who get the symptoms of paranoid schizophrenia relapse when they don't take their

medication.

	While all of the witnesses supported defendant's requests for relief, Seltzberg, Stipes, and Singh all testified

that defendant could relapse and could potentially injure someone in the event he stopped taking his medication.  The

record made clear that one of the responsibilities of defendant, if transferred to WWC, would be the added

responsibility of reminding staff that it was time for his medication.  While there was some indication that this task

would be monitored by WWC personnel, the clear objective of WWC is to transfer responsibilities back to the patient

for the purpose of preparing them for release into the community.

	Without question, the trial court determined that the grant of the transfer to WWC and the supervised off- grounds passes would overload defendant with too many responsibilities despite the witnesses' testimony to the

contrary.  As we noted above, the trial court expressed concern that the facility director's recommendation allowed three

privileges all at once as opposed to privileges being granted one at a time.  In its ruling, the trial court noted defendant's

"great progress with medication," but found that the  request for transfer was "premature" because a period was needed

where defendant utilized unsupervised grounds passes at the Elgin facility while his medication was being fully monitored.  

	The trial court further held that the testimony and opinion regarding supervised off-grounds passes did not

provide the court with sufficient information.  The court noted that there was no plan or agenda expressed with regard

to defendant that set forth: how often he would go on outings; whether he would be with other patients; how long  the

outings would last; who and how many people would supervise; who defendant would come into contact with; whether

the contact would involve a large or small group of people; and whether the situations would be easy or difficult to

supervise.

	The trial court also found that the transfer to WWC was premature in order to assure defendant's stability and

recovery, "and to protect him and so, [the court] will need to proceed step by step with out the danger of overloading

[defendant] with too many options during his therapeutic course of treatment which include the taking or medication

as a requirement for remission."  The court then allowed the unsupervised grounds pass at Elgin.

	In analyzing section 5-2-4(b), this court has held that:

			"The language of *** [section 5-2-4(b)] clearly gives the trial court wide

discretion in granting and tailoring passes.  The statute provides that the trial

court may grant the passes, and may impose conditions on those passes.  730 ILCS 5/5-2-4(b)(West 1996).  We agree with the State that requiring the trial court to

grant the passes any time a defendant's treatment team requests them because the team believes they should be granted would defeat the purpose of the statute's language mandating that the passes may only be granted based on the trial court's approval.  We therefore find that the clear language of the statute does not

mandate that the trial court grant pass privileges solely because defendant's

treatment team, including the facility director, recommends the passes be granted." 

(Emphasis in original.) Cross, 301 Ill. App. 3d at 910.

The Cross court, citing People v. Williams, 140 Ill. App. 3d 216, 226, 488 N.E.2d 649 (1986), also acknowledged,    "' it is the trier of fact, and not the psychiatrists, who is to consider and weigh all the evidence in [the] case.' "  Cross, 301 Ill. App. 3d at 911.

	In its ruling here, the trial court stated its concern about the safety of defendant and society at large.  As we

discussed above, the trial court was concerned with defendant's need for medication as a part of his treatment as well

as to ensure his safety and the safety of others.  As a result, the court determined that the request for transfer to WWC

and the supervised off-ground pass privilege were premature and could overload the defendant.  We cannot say that

this determination was against the manifest weight of the evidence because the opposite conclusion is not clearly

evident under these facts.        

	In support of his position, defendant relies on People v. Blumenshine, 72 Ill. App. 3d 949, 391 N.E.2d 232 (1979), and People v. Nelson, 244 Ill. App. 3d 356, 614 N.E.2d 277 (1993).    

	Blumenshine considered whether the defendant, found not guilty by reason of insanity for the offense of murder, had established that he was entitled to a petition for discharge under section 5-2-4(e) by clear and convincing

evidence.  730 ILCS 5/5-2-4(e) (West 2000) (formerly, Ill. Rev. Stat.1975, ch. 38 par. 1005-2-4)).  After a hearing

involving the testimony of two psychiatrists who recommended discharge, the trial court denied the petition.

	At the hearing, Dr. Pai, who directly treated the defendant,  concluded that the defendant's psychosis was in

remission and recommended that the defendant should be discharged subject to certain conditions.  The testimony of

Dr. Bornstein, the court-appointed psychiatrist, was consistent with the opinion and evaluation of Dr. Pai.  The State

concurred in defense counsel's recommendation that the defendant be discharged.  The recommended discharge was

conditioned upon the defendant living with his mother; continuing outpatient care; and continuing participation in

rehabilitative alcohol treatment.  

	Despite the unanimous testimony by Dr. Pai and Dr. Bornstein and the State's concurrence, the trial court

denied the discharge and rejected the expert's opinions doubting that the defendant could refrain from drinking, despite

the condition that he continue in Alcoholics Anonymous, and doubting that the experts were correct in concluding that

the defendant should live with his mother.  The appellate court reversed because the trial court made its own

determination that the three conditions could not be met "to the exclusion of adequate consideration of expert

testimony."  Blumenshine, 72 Ill. App. 3d at 953-54. 	

	The facts in Blumenshine are distinguishable from those in this case.  In Blumenshine, there was evidence that defendant had not consumed alcohol since he had been hospitalized and had been off his medication for eight

months.  Two psychiatrists in that case determined that the defendant had gained control over his psychotic symptoms

and the alcohol abuse that contributed to them.  The State even concurred in defense counsel's  recommendation that

defendant be discharged subject to the three conditions.  Contrary to the witnesses' testimony and all of the evidence,

the trial court had doubts that the defendant could avoid relapse because of the witnesses' inability to guarantee that

the defendant would remain nondangerous or not violent.

	Here, the evidence shows that defendant is progressing positively, but also indicates that defendant would

relapse in the event he did not take his medication.  As a result, he could become a danger to himself and to others. 

The trial court reasoned that  a transfer to a nonsecure setting and allowing defendant to leave the grounds, even under

the supervision of hospital staff, might place too much responsibility on defendant too quickly.  As pointed out by the

State, the trial court granted the unsupervised on-ground pass, a portion of the relief requested.  The instant case does

not place defendant in the "catch-22" paradox referred to in Blumenshine because all the evidence in Blumenshine established reasonable assurances for the safety of others, yet the trial court sought a guarantee from the two

psychiatrists that the defendant would remain nonviolent.  Here, the testimony of the evaluating medical personnel

reveals that defendant is required to take medication for the rest of his life to avoid psychotic delusions.  The testimony

established that, in the event defendant failed to take his medication, the delusions  that could lead to potentially violent

behavior will return.  Despite these facts, defendant argues that he is ready for the responsibility of taking his own

medication in a nonsecure setting which could lead to his escape or to the injury of others.  Thus, Blumenshine is distinguishable from this case.

	Next, defendant relies upon Nelson, 244 Ill. App. 3d at 363, for the proposition that, "the statute [section 5-2-4 of the Corrections Code] sets up a strong presumption that the professional staff treating the defendant is best capable

of determining the proper treatment for defendant."  While Nelson states this proposition, it was considering a previous version of the statute.  Under the Code at that time, the burden of proof rested with the State when a hearing was held

to review that determination of the facility director that the defendant should be transferred to a nonsecure setting.  Ill. Rev.  Stat. 1991, ch. 38, par. 1005-2-4(g); Nelson, 244 Ill. App. 3d 358-59.  As we have indicated above, section 5-2- 4(g) of the Code now states: "The burden of proof and the burden of going forth with evidence rest with defendant ***

when a hearing is held to review the determination of the facility director that the defendant should be transferred to

a non-secure setting."  730 ILCS 5/5-2-4(g) (West 2000). 

	In Nelson, the facility director recommended the conditional release of the defendant, who had received over 10 years of inpatient psychological treatment after his acquittal for murder by reason of insanity.  Under the Code at

that time, the State had the burden of proving that the facility director's recommendation was improper.  The State

presented only one witness, a police detective, who testified to the facts of the murder.  The witness admitted that he

had not spoken to the defendant since the defendant's trial, more than a decade before the hearing on the defendant's

conditional release.  The witness also admitted that he had no training in the area of mental health.        

	On the defendant's behalf, the acting deputy facility director testified that, if granted conditional release, the

defendant would be accepted at a halfway house where the staff would assure that the defendant took his medication

daily.  Dr. Block, a psychiatrist, testified that he had been exposed to the defendant daily for the past year and a half. 

He opined that the defendant suffered from paranoid schizophrenia, but the illness was in remission and he was not

dangerous.  He emphasized that the defendant's medication at the halfway house would be supervised and that, if the

defendant stopped taking his medication, he would begin to decompensate and show signs of psychosis, but that staff

at the halfway house would be able to observe any sign of decompensation. Later, the trial judge asked Block if he could

guarantee the defendant would take his medication if left the responsibility and  if he could guarantee that the

defendant would not attack anybody.  Block said he could not.  Dr. Kelly, medical director of the outpatient clinic

where defendant would receive treatment, also evaluated defendant and found the defendant suitable for conditional

release.  He said that the staff and the halfway house would give him his medication and watch him take it daily.

	Despite the testimony of these doctors, the trial court ruled that the evidence was insufficient to meet the

defendant's burden of showing that he was no longer an danger to himself and to others.  

	On review, the appellate court determined that, under the Code at that time, the State had the burden to show

that the petition for conditional release was inappropriate.  Nelson, 244 Ill. App. 3d at 362.  The court noted that the State presented only one witness and no evidence, apart from testimony regarding the killing, which occurred over a

decade ago.  Nelson, 244 Ill. App. 3d at 363.  On the other hand, defendant's three witnesses, all qualified experts who evaluated the defendant's mental condition, testified in support of the recommendation provided the defendant took

his medication.  Nelson, 244 Ill. App. 3d at 363.  Ultimately, the appellate court found that the trial court contravened the express statutory language by imposing the burden of proof upon defendant.  Nelson, 244 Ill. App. 3d at 363.  It also concluded that the State did not effectively impeach the witnesses' testimony that, if the defendant avoided

medication at the halfway house, staff would observe the behavior and impose medication.  Nelson, 244 Ill. App. 3d at 365.  It further found that the State failed to counter the witnesses' consistent testimony that, when defendant was

medicated, he was not a danger to himself or others.  As a result, the trial court was reversed.  Nelson, 244 Ill. App. 3d at 365. 

	We do not find Nelson controlling because it was decided when the burden of proof rested with the State, unlike the current statute (section 5-2-4(g)), which requires a defendant to prove by clear and convincing evidence that

the facility director's recommendation was proper.  Moreover, Seltzberg's testimony reveals that she was not very

familiar with the procedure at WWC, saying, she "believe[d]" that the staff at WWC made sure patients took their

medication.  Thus, the assurance in this case that defendant would be administered his medicine if unwilling to do so

himself is absent, unlike Nelson, where it was stated that the halfway house would impose intramusuclar medication if necessary.  Nelson, 244 Ill. App. 3d at 365.  As a result, we find Nelson to be distinguishable on this additional ground.

	Finally, defendant argues that the trial court failed to apply a three-pronged standard for the two denied

requests under section 5-2-4(b) of the Code.  730 ILCS 5/5-2-4(b) (West 2000).  Defendant claims that the applicable

standard for each request is whether the request, "reasonably assure[s] the defendant's satisfactory progress in treatment

and the safety of defendant and others."  730 ILCS 5/5-2-4(b) (West 2000).  From this language, defendant gleans a

three-pronged test requiring: (1) "the proposed privilege must reasonably assure the safety of the defendant"; (2) "the

proposed privilege must assure the safety of others"; and (3) "the proposed privilege must reasonably assure the

defendant's satisfactory progress in treatment."  

	According to defendant, this three-pronged inquiry must be independently applied by the trial court for the

requested relief.  Defendant contends that the evidence overwhelmingly supported these requirements.  We disagree

with this conclusion and because defendant has cited no authority for this proposition, the issue has been waived under

Supreme Court Rule 341 (e)(7) (134 Ill. 2d R. 341 (e)(7).  People v. Ford, 301 Ill. App. 3d 56, 59, 703 N.E. 2d 436 (1998).

	In sum, there was evidence in the record to support both the trial judge's decision to allow for the unsupervised

on-ground pass and the denial of the transfer and the supervised off-ground pass.  We therefore find that defendant

failed to meet his burden that the two privileges denied should have been granted.  As a result, the trial court's

determination to deny the two privileges at issue was not against the manifest weight of the evidence.

	Defendant next argues that the current version of section 5-2-4(g), as  amended by Public Act 91-770 (Pub.

Act. 91-770 eff. January 1, 2001), should not have been applied to him because the retroactive application of this new

statute is a substantive change in the law.  Defendant contends that the amended version of the statute imposes a new

burden upon him that he had no notice of when he was found not guilty by reason of insanity and that violates section

4 of the Statute on Statutes.  5 ILCS 70/4 (West 2000).  Section 4 of the Statute on Statutes provides:

			"No new law shall be construed to repeal a former law, whether such

former law is expressly repealed or not, as to any offense committed against the

former law, or as to any act done, any penalty, forfeiture or punishment incurred,

or any right accrued, or claim arising under the former law, or in any way

whatever to affect any such offense or act so committed or done, or any penalty,

forfeiture or punishment so incurred, or any right accrued, or claim arising before

the new law takes affect, save only that the proceedings thereafter shall conform,

so far as practicable, to the laws in force at the time of such proceeding.  If any

penalty, forfeiture or punishment be mitigated by any provisions of a new law,

such provision may, by the consent of the party affected, be applied to any

judgment pronounced after the new law takes effect.  This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the

act making any new provision upon the same subject or in any other act."  5 ILCS

70/4 (West 2000).

	The current version of section 5-2-4(g) states:

		"The findings of the Court shall be established by clear and convincing evidence. 

The burden of proof and the burden of going forth with the evidence rest with the

defendant *** when a hearing is held to review the determination of the facility

director that the defendant should be transferred to a non-secure setting ***."  730

ILCS 5/5-2-4(g) (West 2000).

	The prior version of section 5-2-4(g) stated:

		"The findings of the court shall be established by clear and convincing evidence. 

The burden of proof and the burden of going forth with the evidence rest with the

State when a hearing is held to review the determination of the facility director

that the defendant should be transferred to a non-secure setting ***."  730 ILCS

5/5-2-4(g) (West 1998).

As outlined above, prior to the enactment of Public Act 91-770, the burden of proof was on the State when a hearing

was "held to review the determination of the facility director that the defendant should be transferred to a non-secure

setting."  730 ILCS 5/5-2-4(g) (West 1998). 

	Under the current law, section 5-2-4(g) places the burden on the defendant to present evidence and convince

the court that a change in status should be granted.  730 ILCS 5/5-2-4(g)(West 2000).

	On this issue, defendant first claims that the correct timing for purposes of a retroactivity analysis is "not when

the Facility Director triggered the hearing, but when defendant made the decision to plead not guilty by reason of

insanity," which occurred years before the current law became effective.  Defendant next contends that at the time he

pled "not guilty by reason of insanity, he had reason to believe that if he conformed his behavior to maximize

psychiatric treatment, the Facility Director would trigger the hearing necessary for [defendant] to continue progressing in treatment."  Defendant further contends that, at the time he pled not guilty by reason of insanity, he was under the

belief that, upon being found not guilty by reason of insanity, he would be committed to a state psychiatric institution

and that the Facility Director "would control his treatment unless the States['] Attorney could prove the treatment did

not adequately provide for public safety."  Therefore, defendant claims he was denied notice that his decision to plead

not guilty by reason of insanity would result in him carrying the burden of proof to demonstrate "the adequacy of the

Facility Director's determinations regarding his therapeutic progress."  According to defendant, this change in the

burden of proof is an improper retroactive application of a statute that violates section 4 of the Statute on Statutes.

	The State responds that section 5-2-4(g), as currently codified, was properly applied because the amendment

had already taken effect when the recommendations of the facility director were  made.  Further, it contends that

section 5-2-4(g) was not triggered by the commission of the offenses or by the defendant's decision to plead not guilty

by reason of insanity, but by the facility director's recommendations, which occurred in 2002.  Finally, the State claims

that the application of section 5-2-4(g) does not violate section 4 of the Statute on Statutes because it is a procedural

change that affects hearings on a defendant's mental condition and is not a substantive change that has a true

retroactive impact.

	The State relies upon criteria set forth in Commonwealth Edison Co. v. Will County Collector ,196 Ill. 2d 27, 39, 749 N.E.2d 964 (2001), to argue that this amendment is procedural in nature, does not affect defendant's

substantive rights, and does not violate section 4 of the Statute on Statutes.  Before discussing Commonwealth Edison, we must decide at what point to begin the retroactivity analysis, and whether such an analysis is applicable under these

facts.  

	Defendant contends that the analysis begins at the time he was found not guilty by reason of insanity, while

the State argues that it begins at the time of the hearing triggered by the facility director's recommendations.  We agree

with the State's position for several reasons.  

	Defendant does not cite a single case to support his conclusion that "the appropriate timing *** for

retroactivity is the time when [defendant] made the decision to plead not guilty by reason of insanity."  Failure to cite

to any relevant authority in support of an argument results in its waiver.  People v. Davis, 335 Ill. App. 3d 1, 20, 779 N.E. 2d 443 (2002).

	Next, while our research has revealed no authority directly on point, a decision involving a comparable statute

supports the State's position that a retroactivity analysis would begin at the time of the hearing triggered by the facility

director's recommendations. 

	In re Detention of Samuelson, 189 Ill. 2d 548, 558-59, 727 N.E.2d 228 (2000), involved proceedings under the Illinois Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/1 et seq. (West 1998)).  The SVPCA permits the State "to extend the incarceration of criminal defendants beyond the time they would otherwise be entitled

to release if those defendants are found to be 'sexually violent.' "  In re Detention of Samuelson, 189 Ill. 2d at 552.   

	Under the SVPCA, a person is considered a sexually violent person, and therefore subject to extended

incarceration, if he or she "has been convicted of a sexually violent offense, has been adjudicated delinquent for a

sexually violent offense, or has been found not guilty of a sexually violent offense by reason of insanity and *** is

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

engage in acts of sexual violence."  725 ILCS 207/5(f) (West 2000).  

	One of the issues in the Samuelson case was whether the SVPCA violated ex post facto principles under the United States Constitution.  For the purposes of its analysis, the supreme court observed that the provisions of the

SVPCA are triggered "when a defendant who has been *** found not guilty of a sexually violent offense by reason of

insanity is nearing release or discharge from custody."  In re Detention of Samuelson, 189 Ill. 2d at 553.  It further found that the SVPCA did not have a retroactive effect because a "defendant cannot be involuntarily committed based

on past conduct."    In re Detention of Samuelson, 189 Ill. 2d at 559.  Specifically, the court found that "[i]nvoluntary confinement is permissible only where the defendant presently suffers from a mental disorder and the disorder creates

a substantial probability that he will engage in acts of sexual violence in the future."  In re Detention of Samuelson, 189 Ill. 2d at 559.  On this ground, the court rejected the defendant's ex post facto challenge.  In re Detention of Samuelson, 189 Ill. 2d at 559.

	Similarly, we find that section 5-2-4 is triggered when the facility director makes a recommendation that a

change be made in a defendant's commitment status resulting in a subsequent hearing on defendant's mental fitness for the requested privileges.  As in  In re Detention of Samuelson, defendant here suffers from a present mental disorder and the disorder continues to create a concern that he will engage in acts of violence in the future.  As a result,

defendant's continued commitment is not based on past conduct but, rather, his present mental condition.

	Third, a serious question is raised as to whether the amended version of section 5-2-4(g) could have any

retroactive effect in the instant case because the statute became effective well before the facility director recommended

a change in defendant's confinement status.  Section 5-2-4(g) became effective on January 1, 2001, more than one year

before the facility director made his recommendations on January 23, 2002.  

	Finally, there is other authority which suggests that the statute was not retroactively applied in this case.  In Commonwealth Edison, cited above, the supreme court addressed the issue of whether certain tax rate amendments to the Counties Code (55 ILCS 5/5-1024 (1994)) and the Local Governmental and Governmental Employees Tort

Immunity Act (745 ILCS 10/9-107 (West 1994)) should be given retroactive application.  In discussing whether a

statute can be applied retroactively, the court held: 

		" 'A statute is not applied "retrospectively" merely because it is applied in a case

arising from conduct antedating the statute's enactment *** or upsets expectations

based in prior law.  Rather the court must ask whether the new provision attaches

new legal consequences to events completed before its enactment.  The conclusion

that a particular rule operates 'retroactively' comes at the end of a process of

judgment concerning the nature and the extent of the change in the law and the

degree of connection between the operation of the new rule and a relevant past

event."  Commonwealth Edison, 196 Ill. 2d 39, quoting Landgraf v. USI Film Products, 511 U.S. 244, 269-70, 128 L.Ed. 229, 254-55, 114 S.Ct. 1483, 1499 (1994).

	In the instant case, the amendment to section 5-2-4(g), which shifts the burden of proof to defendant, did not

attach new legal consequences to defendant's murder conviction or to his decision to plead not guilty by reason of

insanity.  It was the facility director's recommendations that triggered a hearing on the issue of defendant's present mental condition, not the finding of not guilty by reason of insanity.  Section 5-2-4(g) was amended more than one year

before those recommendations were ever made.  We therefore conclude that the new version of section 5-2-4(g) had

no retroactive effect.   

	As further support we have reviewed People v. Valdez, 79 Ill. 2d 74, 81, 402 N.E.2d 187 (1980), which reinforces our conclusion that the amendment to section 5-2-4(g) did not have a true retroactive impact under these

facts.  In Valdez, the supreme court addressed the issue of whether an amendment to section 5-2-4 could be applied retroactively in instances where the offense, that served as the basis for the defendant's acquittal of not guilty by reason

of insanity was committed prior to the effective date of the amendment to the statute.  

	On May 3, 1978, following a bench trial, the defendant in Valdez was acquitted by reason of insanity for murdering two individuals on April 3, 1977, and April 4, 1977, respectively.  After a hearing on May 11, 1978, the

defendant was placed into a mental health center for treatment.  At the time of the murders, section 5-2-4(b) of the

Corrections Code provided that, in the event of an acquittal, the trial court shall enter an order hospitalizing the

defendant for an initial period not to exceed 12 months.  At the time of the defendant's trial, section 5-2-4 had been

amended, effective August 1, 1977, to provide that, in the event of an acquittal of not guilty by reason of insanity, a

hearing was to be held to determine whether the defendant was in need of mental treatment.  If the trial court found

that the defendant was in need of mental treatment, the trial court could commit the defendant for an indefinite period,

not to exceed the period of confinement, subject to certain criteria, had he been convicted.  In response to a notice,

dated November 1, 1978, that the Department was considering granting the defendant off-ground  privileges, the State's

Attorney requested a hearing under the amended statute.  After an evidentiary hearing, the trial court denied the

requested privileges.  The defendant argued that the retroactive application of the amended statute violated rules of

statutory construction and equal protection.

	The supreme court rejected the application of the amended statute as retroactive, stating that " ' it is well

established that a statute is not retroactive just because it relates to antecedent events. [Citations.]' "  Valdez, 79 Ill. 2d at 81, quoting Sipple v. University of Illinois, 4 Ill. 2d 593, 597 (1955).  It further stated, "[t]he occurrence which invoked the provisions of the statute was not the commission of the offenses with which defendant was originally charged."  Valdez, 79 Ill. 2d at 81.  Thus, the court found that the amendment to section 5-2-4 did not have a retroactive effect.  The reasoning in Valdez was adopted by the appellate court in a similar case.  See People v. Thiem, 82 Ill. App. 3d 956, 960, 403 N.E.647 (1980).  Based upon all of the above, we conclude the statute was not applied

retroactively.   

	Additionally, even if we were to conduct a retroactivity analysis in this case, we find that the amendment to

section 5-2-4(g) is procedural in nature and does not violate section 4 of the Stature on Statutes.  In Commonwealth Edison, the Illinois Supreme Court, for the first time, adopted the retroactivity analysis established by the United States Supreme Court in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994), for purposes of determining whether an amendment to a statute can be retroactively applied.  Commonwealth Edison, 196 Ill. 2d at 39.  In doing so, the Commonwealth Edison court said:

			"Under the Landgraf test, if the legislature has clearly indicated what the temporal reach of an amended statute should be, then, absent a constitutional

prohibition, that expression of legislative intent must be given effect.  However,

when the legislature has not indicated what the reach of a statute should be, then

the court must determine whether applying the statute would have a retroactive

impact, i.e., 'whether it would impair rights a party possessed when he acted,

increase a party's liability for past conduct, or impose new duties with respect to

transactions already completed.'  [Citation.] If there would be no retroactive

impact, as that term is defined by the court, then the amended law may be applied.

[Citation.] If, however, applying the  amended version of the law would have a

retroactive impact, then the court must presume that the legislature did not intend

that it be so applied. [Citation.]"  Commonwealth Edison, 196 Ill. 2d at 38. 

	The language relied upon by the State in Commonwealth Edison, quoting Landgraf, states, "retroactivity is a matter on which judges tend to have 'sound  ... instinct[s],' and familiar considerations of fair notice, reasonable

reliance, and settled expectations offer sound guidance."  Commonwealth Edison, 196 Ill. 2d at 39 quoting Landgraf, 511 U.S. at 269-70, 128 L. Ed. 2d at 255, 114 S.Ct. at 1499.

	The State claims that Public Act 91-770, or the current amendment of section 5-2-4(g), did nothing to deprive

defendant of fair notice because defendant had no control over the triggering of the recommendations made by the

facility director.  In essence, the State claims that a change in defendant's privileges was within the exclusive purview

of the facility director.  Thus, prior to any recommendation by the facility director, a change in the burden of proof

requiring defendant to show the facility director's recommendation was proper did not violate defendant's right to fair

notice.  The State explains that defendant's contention that he was denied fair notice is to claim that he would have

behaved differently before January 1, 2001, if he had known the burden of proof was going to change.  However, prior

to January 1, 2001, defendant had no control over his own fate absent a recommendation for change in privileges by

the facility director.  Therefore, the State claims that defendant cannot assert that a change in the burden of proof

denied him fair notice under these circumstances.

	The State also asserts that defendant's reasonable reliance on the old statute did not affect his substantive

rights in the instant case for the same reason that he was not deprived of fair notice.  Under these facts, the State claims

that defendant cannot argue he reasonably relied upon the former statute because, even under the old statute, he had

no control over whether the facility director would trigger a hearing and subsequent recommendation for privileges.

	Finally, the State contends that settled expectations, or the third element set forth above, means that "stability

in the law promotes reliable planning, which is good for society."  See Landgraf, 511 U.S. at 271, 128 L. Ed at 256, 114 S. Ct. at 1500.  Again, the State claims that defendant could not have had "any settled expectations as to the

consequences of the actions he took before the law changed on January 1, 2001, because he had no control over whether

the director would trigger a hearing by making a recommendation that he be transferred."  The State points out that

the facility director's recommendation did not occur until January 23, 2002, more than a year after section 5-2-4(g) was

amended; thus, defendant could not have expected that a favorable recommendation would come before the statute was

amended.  The State points out that the amendment of section 5-2-4(g) could not have disturbed any settled expectation of defendant's.  Based on the above, the State concludes that section 5-2-4(g) is procedural in nature and that its

retroactive application did not affect defendant's substantive rights or violate section 4 of the Statute on Statutes.  We agree for two reasons.

	First, defendant concedes that the amendment, which shifts the burden of proof, is a procedural change. 

Nevertheless, he argues the fact that an amendment to a statute is procedural in nature does not end the inquiry and

that his substantive rights have been affected.  He contends that applying section 5-2-4(g) retroactively affected his substantive rights because, at the time he pled not guilty by reason of insanity, he "could not have known that this

action would result in the legal consequence of him carrying the burden of proof to demonstrate the adequacy of the

Facility Director's therapeutic proposals."  As we noted above, however, defendant cites no authority for the proposition

that the correct timing of the retroactivity analysis was when defendant decided to plead not guilty by reason of

insanity.  Thus, we reject this argument.

	Second, we agree with the State's analysis that defendant's substantive rights of fair notice, reasonable reliance,

and settled expectations set forth in Commonwealth Edison have not been affected.  As the State points out, once the defendant was placed into Elgin, the most he could control was his own behavior in the hope that the facility director

would some day recommend that he be transferred to a less secure facility.  Therefore, a change in the law shifting the

burden of proof to defendant for the purpose of showing that the facility director's decision was proper did not impact

defendant's substantive rights.  We conclude the amendment to section 5-2-4(g) is procedural in nature and its

application in this case does not violate section 4 of the Statute on Statutes.  

	[Non-publishable material under Supreme Court Rule 23 removed here.]  

We next address whether the amended version of section 5-2-4(g) of the Correction Code is unconstitutional under the ex post facto clause of the United States Constitution.  The constitutionality of a statute is a question of law that we review de novo.  People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000).  Further, "[s]tatutes carry a strong presumption of constitutionality, and the party challenging the constitutionality of a statute bears the burden of

rebutting this presumption."  People v. Maness, 191 Ill. 2d 478, 483, 732 N.E.2d 545 (2000). 

	The Illinois supreme court held that, "in construing the State's constitutional provision, we are without a basis

to depart from the Supreme Court's construction of the Federal ex post facto clause."  Barger v. Peters, 163 Ill. 2d 357, 360, 645 N.E.2d 175 (1995).  The United States Constitution prohibits the passing of any ex post facto law.  U.S. Const., art. 1, § 10.  The ex post facto clause forbids:

			"Any statute which punishes as a crime an act previously committed,

which was innocent when done; which makes more burdensome the punishment

for a crime, after its commission, or which deprives one charged with crime of any

defense available according to the law at the time when the act was committed, is

prohibited ex post facto.  [Citations.]" Collins v. Youngblood, 497 U.S. 37, 42,  111 L.Ed.2d 30, 39, 110 S.Ct. 2715, 2719 (1990).

 Further: 

		"A law is ex post facto if it is both retroactive and disadvantageous to the defendant.  [Citation.]  A law disadvantages a defendant if it criminalizes an act

that was innocent when done, increases the punishment for a previously

committed offense, or alters the rules of evidence by making a conviction easier." 

Malchow, 193 Ill. 2d at 418. 

	We find that section 5-2-4(g), as amended, does not violate the ex post facto clause for the following two reasons.  

	First, under Collins the court held that, "the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them," and section 5-2-4(g) is not a penal statute, it is civil

in nature.  Collins, 497 U.S. at 41, 111 L. Ed. 2d at 38, 110 S.Ct. at 2719.   

	Our conclusion is based upon several statutes involving comparable commitment procedures which have been

held to be "civil" commitment procedures.  For example, Shannon v. United States, 512 U.S. 573, 576, 129 L.Ed. 2d 459, 464, 114 S. Ct. 2419, 2422 (1994), involved the federal Insanity Defense Reform Act of 1984 (IDRA) (18 U.S.C.

§§ 17 1984), a similar law to section 5-2-4(g).  Under the IDRA, insanity was made an affirmative defense to be proved

by the defendant by clear and convincing evidence and created a special verdict of "not guilty only by reason of insanity

(NGRI verdict)."  Within 40 days of an NGRI verdict, a defendant, whose offense involved certain criteria must

demonstrate by clear and convincing evidence that he is entitled to release.  This procedure was referred to by the United States Supreme Court as a "comprehensive civil commitment procedure."  Shannon, 512 U.S. at 577, 129 L. Ed. 2d at 465, 114 S.Ct. at 577.

	As we noted above, In re Detention of Samuelson, 189 Ill. 2d at 558-59, involved proceedings under the Illinois Sexually Violent Persons Commitment Act (SVPCA) (725 ILCS 207/1 et seq. (West 1998)).  Again, the SVPCA allows the State to extend the incarceration of criminal defendants found not guilty of a sexually violent offense

by reason of insanity, but who, after a hearing, meet the criteria of a sexually violent person.  In Samuelson, the defendant claimed that the SVPCA violated ex post facto principles.  The Illinois supreme court disagreed and found that proceedings under the SVPCA were civil rather than criminal in nature and also held the law did not raise ex post facto concerns because it did not impose a punishment.  In re Detention of Samuelson, 189 Ill. 2d at 558-59.

	The State also points out that defendant conceded in his opening brief that, "hearings on transfers to a non-

secure setting for insanity acquitees are civil in nature."        

	Defendant, however, suggests that section 5-2-4(g) is a penal statute because: (1) it was placed in the

Corrections Code, "the chapter of Illinois statute devoted to the punishment of criminals;" (2) hearings under the statute

are held in the criminal courts by criminal prosecutors; and (3) the text of the statute refers to the acquitee as

"defendant."  Beyond these statements, defendant relies upon no  authority for his claim that section 5-2-4 is penal in

nature.  Based upon the reasoning in Shannon and Samuelson above, we find that commitment hearings under section 5-2-4 are civil in nature, are not criminal proceedings, and are therefore not subject to an ex post facto challenge.

	Second, even if section 5-2-4 were deemed penal in nature, it would not violate the ex post facto clause.  The ex post facto clause is triggered in three situations: (1) when a new statute punishes as a crime an act previously

committed, which was innocent when done; (2) when a new statute makes more burdensome the punishment of a

crime, after its commission; and (3) when a new statute deprives one charged with a crime of any defense available

according to law at the time when the act was committed.  Collins, 497 U.S. at 42, 111 L. Ed. 2d at 39, 110 S.Ct. at 2719. 

	As noted by the State, in California Department of Corrections v. Morales, 514 U.S. 499, 506 n.3, 131 L. Ed. 2d 588, 595 n.3, 115 S. Ct. 1597, 1602 n.3 (1995), after Collins, "the focus on the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage,' *** but on whether any such change

alters the definition of criminal conduct or increases the penalty by which a crime is punishable."  As a result, the three

factors set forth in Collins are controlling. 

	Defendant's crime of murder was a crime when it was committed so the first factor in Collins is not implicated by the current version of section 5-2-4(g).  Also, section 5-2-4(g), as amended, did not deprive defendant of a defense

available when he committed a crime of murder and the third factor in Collins was not implicated.  As the State correctly observes, the only remaining question concerns the second factor, whether the current version of section 5-2-

4(g) makes the punishment of defendant's crime more burdensome after its commission.  We find that the current

version of section 5-2-4(g) is not punishment because the commitment of a mentally ill person due to their present

dangerousness had been held not to be a punishment.  In Kansas v. Hendricks, 521 U.S. 346, 361-62, 138 L. Ed. 2d 501, 515, 117 S. Ct. 2072, 2082 (1997), the United States Supreme Court found that  civil commitment proceedings

under the State of Kansas' Sexually Violent Predator Act (SVPA) (Kan. Stat. Ann. § 59-29a01 et seq. (1994)) did not "implicate either of the two primary objectives of criminal punishment: retribution or deterrence."  The court further

found that because the SVPA did not impose punishment, its application did not raise ex post facto concerns.  Hendricks, 521 U.S. 370-71, 138 L. Ed. 2d at 520, 117 S.Ct. at 2086.  Because the current version of 5-2-4(g) is not punishment, the second factor in Collins was not met and there was no ex post facto violation.  

	Defendant specifically argues that the amendment to section 5-2-4(g) negatively impacted his substantive

rights by forcing him "to carry the burden of proof, where previously the State bore the burden of proof, [making

section 5-4-2] more onerous that it was prior to amendment."  We are not persuaded by any of the authority proffered

by defendant in support of this argument.  Kring v. Missouri, 107 U.S. 221, 27 L. Ed. 506, 2 S.Ct. 443 (1882), relied upon by defendant, was overruled by Collins, 497 U.S. at 50, 111 L. Ed. 2d at 44, 110 S.Ct. at 2723.  Carmell v. Texas, 529 U.S. 513 146 L.Ed.2d 577, 120 S.Ct. 1620 (2000), and Cummings v. Missouri, 71 U.S. 277, 18 L. Ed. 356 (1866), also relied upon by defendant, did not involve a statute where the burden of proof actually shifted and did not involve

a civil commitment proceeding like the one at issue here.  For the reasons above, we reject defendant's ex post facto challenge to the current version of section 5-2-4(g).   [The preceding material is non-publishable under Supreme Court Rule 23.]

	We next address whether, by shifting the burden of proof to defendant, the application of amended section 5-2-4(g) violated defendant's substantive due process rights under the due process clause of the United States

Constitution.  As we noted above, the constitutionality of a statute is a question of law that we review de novo.  People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000).  Additionally, statutes are presumed constitutional and the party challenging the constitutionality of a statute bears the burden of rebutting the presumption.    People v. Maness, 191 Ill. 2d 478, 483, 732 N.E.2d 545 (2000). 

	As a preliminary matter, defendant, in his reply brief, asserts that he is not claiming that his substantive due

process rights were violated.  However, the first sentence in section VI of his opening brief states, "in addition to violating the substantive Due Process requirements outlined in Foucha, Public Act 91-770 also violates procedural due process."  Thus, we will assume that defendant is making a substantive due process claim and address it.

	As noted by the State, "the Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions 'regardless of fairness of the procedures used to implement them.' [Citation.]"  Zinermon v. Burch, 494 U.S. 113, 125, 108 L. Ed.2d 100, 113, 110 S.Ct. 975, 983 (1990).   In addition,   " ' [t]he substantive component of the Due Process Clause protects those rights that are 'fundamental,' that is, rights that are 'implicit in

the concept of ordered liberty.' [Citations.]"  Vinyard v. Wilson, 311 F.3d 1340, 1356 (11th Cir. 2002).  

	Under the due process clause, the State may not confine a defendant once it has been determined that he is

no longer  mentally ill and dangerous.  Foucha v. Louisiana, 504 U.S. 71, 77, 118 L. Ed.2d 437, 446, 112 S.Ct. 1780, 1784 (1992).  On the other hand, "the Constitution permits the Government, on the basis of the insanity judgment, to

confine [a defendant] to a mental institution until such time as he has regained his sanity or is no longer a danger to

himself or society."  Jones v. United States, 463 U.S. 354, 370, 77 L. Ed. 2d 694, 709, 103 S. Ct. 3043, 3052-53 (1983).

	We agree with the State that the way in which the government determines whether a defendant should remain

confined is a matter of procedural due process.  In Addington v. Texas, the United States Supreme Court held that, "[a]s the substantive standards for civil commitment may vary from state to state, procedures must be allowed to vary

so long as they meet the constitutional minimum."  Addington v. Texas, 441 U.S. 418, 431, 60 L. Ed. 2d 323, 334, 99 S.Ct. 1804, 1812 (1979).  The court then went on to hold that the use of a "clear, unequivocal, and convincing"

evidence standard of proof in a civil commitment proceeding was constitutionally adequate.  Addington, 441 U.S. at 433, 60 L. Ed. 2d at 335, 99 S.Ct. at 1813.  Therefore, Addington makes clear that the burden of proof at a commitment hearing is an issue of procedure not substance.

	The defendant does not rely upon any authority where the burden of proof in a civil commitment proceeding

was treated as a matter of substantive due process. Defendant argues that section 5-2-4(g) is unconstitutional because

it places the burden of proof on defendant, even when the State has determined that the original basis for confining

defendant in a secure setting no longer exists.  According to defendant, requiring him to prove, by clear and convincing

evidence, that he no longer requires placement in a secure setting violates the due process clause of the fourteenth amendment to the United States Constitution.  U.S. Const., amend XIV.  

	In support of this argument, defendant relies upon the United States Supreme Court decision in Foucha, cited above.   However, defendant's reliance upon Foucha is misplaced.  

	In Foucha, it was undisputed that the defendant was no longer mentally ill under the State of Louisiana's not guilty-by-reason-of-insanity statute, yet the State sought to continue to confine the defendant on the basis of his

antisocial personality.  The court held that "the State must establish insanity and dangerousness by clear and

convincing evidence in order to confine an insane convict beyond his criminal sentence, when the basis for his original confinement no longer exists."  (Emphasis added.)  Foucha, 504 U.S. at 86, 118 L. Ed. 2d at 1788, 112 S. Ct. at 452.  Thus, Foucha required that, if the State wanted the continued commitment of the defendant despite the fact that he was no longer considered mentally ill, it had to proceed through a civil commitment hearing and establish the defendant's

insanity and dangerousness by clear and convincing evidence.  The court also held that, the defendant "[could] no

longer be held as an insanity acquitee in a mental hospital, [and was] entitled to constitutionally adequate procedures to establish the grounds for his confinement."  (Emphasis added.)  Foucha, 504 U.S. at 80, 118 L. Ed. 2d at 1785, 112 S.Ct. at 447.  Thus, Foucha reinforces the conclusion that the burden of proof in a civil commitment proceeding is procedural and not substantive in nature. 

	Defendant suggests that Foucha stands for the proposition that "a state statute violates the Due Process Clause *** if it places on an insanity acquitee the burden of proof in a hearing for his release once the state itself has found

that the basis for his initial commitment no longer exists."  This statement is a misinterpretation of Foucha and section 5-2-4(g) in the instant case.  Foucha clearly places the burden on the State to establish, by clear and convincing evidence, a defendant's insanity and dangerousness when the basis for his original confinement no longer exists. 

Foucha does not prohibit a state statute that places the burden on a defendant to prove by clear and convincing evidence that he is no longer in need of confinement.  In Foucha, the State  conceded that the defendant was no longer mentally ill.  Thus, at issue was the State's burden to continue the defendant's confinement, not on the basis of his mental illness,

but on the basis of his antisocial personality, which was not the ground for his original confinement. 

	In the instant case, the State correctly contends that section 5-2-4 "gives the facility director the power to trigger a hearing," but reserves for the trial court "the ultimate decision of whether an *** acquitee is still mentally

ill and dangerous."  See 730 ILCS 5/5-2-4(h) (West 2000).  Thus, here, the question of whether defendant was in need

of further commitment was still viable and was properly within the discretion of the trial court.  We therefore find that

defendant's reliance is on Foucha  misplaced and we reject defendant's substantive due process claim.      	

	Last we examine whether section 5-2-4(g), as amended, violates procedural due process by failing to ensure

adequate safeguards for the protection of defendant's liberty interest in being free from confinement in a secure setting. 

Once again, the constitutionality of a statute is a question of law that we review de novo.  Malchow, 193 Ill. 2d at 418.  Moreover, statutes are presumed constitutional and the party challenging the constitutionality of a statute bears the

burden of rebutting the presumption.  Maness, 191 Ill. 2d at 483.  

	Defendant argues that section 5-2-4(g), as amended, violates procedural due process because it "creates

inadequate procedural safeguards against the deprivation of an insanity acquitee's liberty interest in being free from

confinement in a secure setting."  The State responds that the statute comports with due process requirements.

	As noted by the parties, the seminal case on procedural due process law is Mathews v. Eldridge, 424 U.S. 319, 47 L.Ed.2d 18, 96 S.Ct. 893 (1976).  Mathews set forth three distinct factors to be considered for the purpose of protecting individuals from an erroneous deprivation of a property or liberty interest: (1) the private interest that will

be affected by the individual 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 procedural safeguards; and (3) the government's interest,

including the function involved and the fiscal and administrative burdens that the additional or substitute procedural

requirement would entail.  Mathews, 424 U.S. at 335, 47 L. Ed. 2d at 33,  96 S.Ct. at 903.  

	We note that seven years after Mathews, the Illinois appellate court upheld the constitutional validity of the prior version of section 5-2-4 which placed the burden on a not guilty by reason of insanity acquitee when the acquitee

made the request for a change in confinement conditions.  In re King, 114 Ill. App. 3d 346, 351, 448 N.E.2d 887 (1983).  Specifically, the King court stated, "we believe that a statute requiring the petitioner to bear the burden of proof in showing a change of condition in a release hearing does not violate the petitioner's constitutional right to due

process."  King, 114 Ill. App. 3d at 351.  

	Further, the federal court of appeals determined that a federal statute, which placed the burden on a not guilty

by reason of insanity acquitee to prove that he was no longer mentally ill  or dangerous, did not violate due process

rights after weighing the three factors set forth in Mathews.  United States v. Wattleton, 296 F.3d 1184, 1201 (11th Cir. 2002).

	With regard to the first Mathews factor, the Wattleton court observed that commitment constituted a significant deprivation of liberty requiring due process protection.  However, the court noted that this concern was

offset by countervailing factors ameliorating the negative effects on the insanity acquitee's private interests.  For

instance, the court noted that the defendant was committed in a facility where he would receive the benefits of

hospitalization, care, and treatment.  Wattleton, 296 F.3d at 1199. 

	Concerning the second Mathews factor, the court in Wattleton  noted that the difficulty of predicting whether a person is no longer mentally ill and dangerous exists regardless of which party had the burden of proof.  Wattleton, 296 F.3d at 1199.  But the court noted that practical considerations support allocating the burden of proof to the

insanity acquitee.  As part of the assessment of the acquitee's mental illness and dangerousness, mental health experts

examine the insanity acquitee.  If the government were to bear the burden of proof, these risk assessments could be

impeded by an acquitee who was reluctant or unwilling to participate in the process.  However, if the acquitee bears

the burden of proof, he has an incentive to cooperate in the mental examination.  Wattleton, 296 F.3d at 1200.

	Finally, with regard to the third Mathews factor, the Wattleton court stated,"[t]he government undoubtedly has a strong interest in safeguarding society from individuals who pose a danger to persons or property because of their

mental illness."  Wattleton, 296 F.3d at 1200.  The court also noted the government's interest in avoiding relitigation of the trial at the dangerousness hearing.  Wattleton, 296 F.3d at 1200-01.  It further repeated the concern that, in the event the burden were on the government, the government could potentially confront an insanity acquitee who is

unwilling to cooperate in a necessary mental examination.  Wattleton, 296 F.3d at 1201.  The court then concluded that, after weighing all of the Mathews factors, the federal statute placing the burden on the insanity acquitee to prove his readiness for change in confinement did not violate his due process rights.  Wattleton, 296 F.3d at 1201. 

	Based on the holdings in King, Wattleton, and the factors in Mathews, we find that section 5-2-4 did not violate defendant's procedural due process rights.

	   [The following material is nNon-publishable material under Supreme Court Rule 23 removed here.]   

	Defendant makes two final arguments that we now address.  First, defendant relies upon fives cases where

the appellate court found that the trial court erroneously decided not to release an insanity acquitee.  See People v. Grant, 295 Ill. App. 3d 750, 692 N.E.2d 1295 (1998); People v. Nelson, 244 Ill. App. 3d 356, 614 N.E.2d 277 (1993); People v. Smith, 126 Ill. App. 3d 5, 466 N.E.2d 1226 (1984); People v. Risner, 110 Ill. App. 3d 368, 442 N.E.2d 541 (1982); and People v. Czyz, 92 Ill. App. 3d 21, 416 N.E.2d 1 (1980).  Based on these cases, defendant claims that trial courts in Illinois have "consistently and erroneously refused to release insanity acquitees even when the burden of proof

was on the State."  Thus, defendant concludes that the risk of error will be substantially reduced by holding the current

version of 5-2-4 unconstitutional and placing the burden back upon the State.

	Neither the argument raised by defendant, nor any of the authority relied upon above, address the issue of

whether section 5-2-4, as amended, violates defendant's procedural rights under the Due Process Clause.   As a result,

we reject this argument.

	Second, defendant claims that the government's interest in placing the burden of proof on the insanity acquitee

is minimal.  He relies upon an interpretation of the third Mathews factor reasoning that "[s]ince the additional costs of placing the burden of proof on the State would be minimal, this Mathews factor also points in favor of requiring the State to bear the burden of proof."  As we noted above, the Waddleton court concluded that "[t]he government undoubtedly has a strong interest in safeguarding society from individuals who pose a danger to persons or property

because of their mental illness."  Wattleton, 296 F.3d at 1201.  The court also concluded, with regard to the second Mathews factor,  that placing the burden on the insanity acquitee gives that individual an incentive to cooperate in mental examinations for the purpose of evaluating mental illness and dangerousness.  Wattleton, 296 F.3d at 1200.  Because of the State's interest in protecting the public, we find that the government's interest in placing the burden on

the insanity acquitee is significant and therefore reject this argument.    [The preceding material is non-publishable under Supreme Court Rule 23.]   

	Based on the above, we find that the factors for consideration established in Mathews have been satisfied and that section 5-2-4(g), as amended, does not unfairly deprive defendant of his liberty interest in violation of the due

process clause.

	The judgment of the trial court is affirmed.

	Affirmed.  

	O'MALLEY, P.J., and GORDON, J., concur.