{ "id": 4287720, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD J. HILLIER, Defendant-Appellant", "name_abbreviation": "People v. Hillier", "decision_date": "2009-06-16", "docket_number": "No. 3\u201407\u20140717", "first_page": "66", "last_page": "80", "citations": [ { "type": "official", "cite": "392 Ill. App. 3d 66" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "44 F.3d 1193", "category": "reporters:federal", "reporter": "F.3d", "year": 2002, "pin_cites": [ { "page": "1199-1200", "parenthetical": "no Miranda warnings required prior to a postconviction psychosexual evaluation because it is more akin to a presentence interview than the pretrial competency evaluation in Estelle" } ], "opinion_index": 0 }, { "cite": "137 Idaho 138", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 1001444 ], "year": 2002, "pin_cites": [ { "page": "144-45", "parenthetical": "no Miranda warnings required prior to a postconviction psychosexual evaluation because it is more akin to a presentence interview than the pretrial competency evaluation in Estelle" } ], "opinion_index": 0, "case_paths": [ "/idaho/137/0138-01" ] }, { "cite": "118 Nev. 681", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 9219881 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "687" }, { "page": "685" }, { "page": "686" }, { "page": "686" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nev/118/0681-01" ] }, { "cite": "468 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "127 Ill. 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HOWARD J. HILLIER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nDefendant, Howard Hillier, was charged with predatory criminal sexual assault of a child (720 ILCS 5/12 \u2014 14.1(a)(1) (West 2006)). The trial court found defendant guilty. Before sentencing, the trial court ordered defendant to participate in a sex offender evaluation. The trial court sentenced defendant to 20 years in prison based, in part, on the results of the sex offender evaluation. On appeal, defendant asks that (1) his conviction be reversed because the evidence was insufficient to prove him guilty of predatory criminal sexual assault of a child, and (2) his sentence be vacated because the trial court violated Illinois law and his fifth amendment rights by compelling him to submit to a sex offender evaluation. We affirm.\nOn June 28, 2006, defendant was charged by information with predatory criminal sexual assault of a child \u201cin that from on or about February 15, 1998, to February 14, 2000, the said defendant, who was 17 years or older, committed an act of sexual penetration with J.L.J., who was under 13 years of age when the act was committed, in that the defendant placed his finger in the vagina of J.L.J. in violation of 720 ILCS 5/12 \u2014 14.1(a)(1).\u201d\nA bench trial was held on December 19 and 20, 2006. At defendant\u2019s trial, J.L.J. testified that she was born in 1991. Defendant was her stepfather and \u201csexually abused\u201d her for two years from approximately 1998 to 2000. The abuse began when J.L.J. was seven or eight years old. According to J.L.J., defendant \u201cput his hands down my pants and he fondled my breasts.\u201d The prosecutor asked J.L.J. the following questions and received the following responses from J.L.J.:\n\u201cQ. Did he ever do anything else to you? Did he touch you in any way or place his finger anywhere?\nA. Yes.\nQ. Where did he place his finger?\nA. My vagina.\u201d\nDefendant testified that he used to be married to J.L.J.\u2019s mother. He denied ever \u201cplacing [his] finger inside J.L.J.\u2019s vagina\u201d or \u201cfondling her breasts.\u201d\nThe trial court ruled that \u201cthe State proved its case beyond a reasonable doubt\u201d and found defendant guilty of predatory criminal sexual assault of a child. The trial court directed the probation office to prepare a presentence investigation.\nThe State then filed a motion for a sex offender evaluation. The trial court granted the motion and entered an order requiring defendant to undergo a sex offender evaluation. In its order, the court stated: \u201cThat it was the intention of the Court, at the time the Defendant was found guilty of the offense in the above captioned case, to order a sex offender evaluation as well as a pre-sentence investigation.\u201d\nDefendant underwent a sex offender evaluation, which was conducted by a clinical social worker at a mental health facility. During the evaluation, defendant denied sexually abusing J.L.J. As part of the evaluation, the social worker assessed defendant\u2019s risk to reoffend using STATIC 99, \u201can instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders.\u201d The results of that assessment were as follows:\n\u201cMr. Hillier scored a 6 on this risk assessment. Individuals with these characteristics, on average sexually reoffend at 39% over five years, 45% over 10 years and 52% over 15 years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 44% over 5 years, 51% over 10 years and 59% over 15 years.\nBased on the STATIC 99 score this places Mr. Hillier in the high category or between the top 12% risk category relative to other male sex offenders.\u201d\nAt defendant\u2019s sentencing hearing, the trial court took into consideration the results of defendant\u2019s sex offender evaluation. The court explained: \u201cThis might be an entirely different situation had that assessment come back and said that you are not at risk of re-offending but this, in fact, indicated that you were a higher risk of re-offending because of everything contained within that statement.\u201d The trial court sentenced defendant to 20 years in prison.\nI. SUFFICIENCY OF THE EVIDENCE\nDefendant argues that he was not proven guilty beyond a reasonable doubt of predatory criminal sexual assault of a child because J.L.J. never testified that he placed his finger inside her vagina.\nA defendant is guilty of predatory criminal assault of a child if he \u201cwas 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed.\u201d 720 ILCS 5/12 \u2014 14.1(a)(1) (West 2006). \u201c \u2018Sexual penetration\u2019 means *** any intrusion, however slight, of any part of the body of one person *** into the sex organ or anus of another person.\u201d 720 ILCS 5/12\u201412(f) (West 2006). When a defendant challenges the sufficiency of the evidence, the appropriate standard of review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Bell, 234 Ill. App. 3d 631, 635-36, 600 N.E.2d 902, 906 (1992). Whether sexual penetration occurred is a question of fact to be determined by the trier of fact. People v. Herring, 324 Ill. App. 3d 458, 464, 754 N.E.2d 385, 390 (2001); Bell, 234 Ill. App. 3d at 636, 600 N.E.2d at 906.\nIt is the function of the trier of fact to determine credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Herring, 324 Ill. App. 3d at 464, 754 N.E.2d at 390. The trier of fact is entitled to draw all reasonable inferences from both circumstantial and direct evidence, including an inference of penetration. Herring, 324 Ill. App. 3d at 465, 754 N.E.2d at 391. A jury may reasonably infer that an act of penetration occurred based on testimony that the defendant \u201crubbed,\u201d \u201cfelt\u201d or \u201chandled\u201d the victim\u2019s vagina. Bell, 234 Ill. App. 3d at 636-67, 600 N.E.2d at 906-07. Such an inference is unreasonable only if the victim denies that penetration occurred. See Bell, 234 Ill. App. 3d at 637, 600 N.E.2d at 907.\nHere, there was sufficient evidence presented to establish that defendant sexually penetrated J.L.J. When J.L.J. was asked where defendant \u201cplaced his finger,\u201d she responded, \u201cmy vagina.\u201d J.L.J. never denied that defendant penetrated her. Based on J.L.J.\u2019s statement, the trial court could have reasonably inferred that defendant penetrated J.L.J.\u2019s vagina with his finger. See Bell, 234 Ill. App. 3d at 636-67, 600 N.E.2d at 906-07. Thus, defendant was proven guilty beyond a reasonable doubt of predatory criminal sexual assault of J.L.J.\nII. STATUTORY AND FIFTH AMENDMENT CLAIMS\nDefendant also argues that his sentence should be vacated because the trial court violated state law, as well as his fifth amendment rights, when it ordered him to participate in a sex offender evaluation.\nA. Statutory Claim\nIn Illinois, a presentence report must be completed in all felony cases, which sets forth certain information about the defendant. See 730 ILCS 5/5\u20143\u20142 (West 2006). When a felony sex offender is being considered for probation, he is required to submit to a sex offender evaluation as part of the presentence investigation. 20 ILCS 4026/16 (West 2006); 730 ILCS 5/5 \u2014 3\u20142(b\u20145) (West 2006). A sex offender evaluation must include an assessment of the defendant\u2019s risk of re-offending, which is to be evaluated by a \u201cvalidated risk instrument that is generally accepted by sex offender evaluators,\u201d such as \u201cSTATIC 99.\u201d 20 Ill. Adm. Code \u00a7\u00a71905.240(k)(5), (k)(7).\nHere, defendant was convicted of predatory criminal sexual assault of a child, a nonprobationary Class X felony. See 720 ILCS 5/12\u2014 14.1(b)(1) (West 2006); 730 ILCS 5/5 \u2014 5\u20143(c)(2)(c) (West 2006). Nevertheless, the trial court ordered defendant to undergo a sex offender evaluation. Based on defendant\u2019s STATIC 99 score, defendant fell in the \u201chigh category\u201d of recidivism. The trial court considered the results of the evaluation when sentencing defendant.\nDefendant contends that the trial court should not have ordered him to submit to a sex offender evaluation because he was not eligible for probation. There is no requirement for a sex offender who is not eligible for probation to submit to a sex offender evaluation. However, the statute does not prohibit a trial court from ordering a sex offender evaluation for a defendant who is not eligible for probation. In fact, the statute specifically allows the trial court to order supplementary information to be included in the report. See 730 ILCS 5/5 \u2014 3\u20142(a)(6), (b) (West 2006). We see no reason to disallow a sex offender evaluation in nonprobationary cases if the trial court deems it helpful in sentencing a defendant. The trial court did not err in requiring defendant to submit to the sex offender evaluation.\nB. Fifth Amendment Claim\nThe fifth amendment to the United States Constitution provides that \u201c[n]o person *** shall be compelled in any criminal case to be a witness against himself.\u201d U.S. Const., amend. V. This prohibition permits an individual \u201c \u2018not to answer official questions put to him in any *** proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.\u2019 \u201d Minnesota v. Murphy, 465 U.S. 420, 426, 79 L. Ed. 2d 409, 418, 104 S. Ct. 1136, 1141 (1984), quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 281, 94 S. Ct. 316, 322 (1984). The fifth amendment privilege extends to sentencing proceedings. Mitchell v. United States, 526 U.S. 314, 325, 143 L. Ed. 2d 424, 435, 119 S. Ct. 1307, 1313-14 (1999).\nThe fifth amendment speaks of compulsion; it does not preclude a witness from testifying voluntarily in matters that may incriminate him. Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. Therefore, if a witness desires the protection of the privilege, he must claim it or he will not be considered to have been \u201ccompelled\u201d within the meaning of the amendment. Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. An exception to the general rule exists when the witness is interrogated while held in police custody, Murphy, 465 at 430, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143. When in police custody, a defendant must be notified of his fifth amendment right to remain silent and his right to the presence of an attorney before being questioned. Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612 (1966).\nMiranda warnings are necessary when police officers are interrogating defendants who are in custody because officers are \u201c \u2018acutely aware of the potentially incriminating nature of the disclosures sought\u2019 \u201d and the custodial setting contains \u201c \u2018inherently compelling pressures which work to undermine the individual\u2019s will to resist and to compel him to speak where he would not otherwise do so freely.\u2019 \u201d Murphy, 465 U.S. at 429-30, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143, quoting Garner v. United States, 424 U.S. 648, 657, 47 L. Ed. 2d 370, 379, 96 S. Ct. 1178, 1184 (1976), and quoting Miranda, 389 U.S. at 467, 16 L. Ed. 2d at 719, 86 S. Ct. at 1624. The Supreme Court has consistently held that Miranda \u201c \u2018does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.\u2019 \u201d Murphy, 465 U.S. at 430, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143-44, quoting Roberts v. United States, 445 U.S. 552, 560, 63 L. Ed. 2d 622, 630-31, 100 S. Ct. 1358, 1364 (1980).\nDefendant argues that he was entitled to Miranda warnings prior to the sex offender evaluation. In support thereof, he cites Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981). In Estelle, the defendant underwent a compelled pretrial psychiatric evaluation to determine if he was fit to stand trial. The State relied on statements the defendant made during that evaluation to establish his future dangerousness at the penalty phase of his capital trial. The Supreme Court held that the defendant\u2019s statements could not be used for that purpose because the defendant was not advised before the evaluation that he had a right to remain silent and that any statement he made could be used against him at sentencing. Estelle, 451 U.S. at 467-68, 68 L. Ed. 2d at 371, 101 S. Ct. at 1875-76.\nIn Estelle, the Supreme Court substantially limited its holding to the facts of that case, stating: \u201cwe do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.\u201d Estelle, 451 U.S. at 469 n.13, 68 L. Ed. 2d at 373 n.13, 101 S. Ct. at 1876 n.13. Relying on the above-quoted language, the court in Baumann v. United States, 692 E2d 565, 576 (9th Cir. 1982), held that Estelle did not require that a convicted defendant receive Miranda warnings prior to submitting to a presentence interview. The court explained:\n\u201c[T]here is a substantial difference between a psychiatric examination of the defendant in a capital case which seeks to elicit evidence from the defendant relating to the critical aggravating factor of dangerousness, and a \u2018routine\u2019 presentence interview [citation], restricted to gathering information upon which the district court, in its discretion, may rely when imposing sentence. As we read Estelle, the Court\u2019s fifth amendment holding is limited to the distinct circumstances of the bifurcated capital proceedings presented in that case.\u201d Baumann, 692 F.2d at 576.\nSince the Baumann decision, several courts have agreed that Miranda warnings are not required to be given prior to presentence interviews. See United States v. Rogers, 921 F.2d 975 (10th Cir. 1990); United States v. Miller, 910 F.2d 1321 (6th Cir. 1990); United States v. Cortes, 922 F.2d 123 (2d Cir. 1990); People v. Corrigan, 129 Ill. App. 3d 787, 473 N.E.2d 140 (1985); People v. Bachman, 127 Ill. App. 3d 179, 468 N.E.2d 817 (1984). In Cortes, the court explained that the pretrial psychological evaluation in Estelle was readily distinguishable from a presentence interview because the defendant in Estelle was ordered to submit to an interrogation for one purpose and did not know that the prosecution would subsequently use the information against him for an entirely different purpose. See Cortes, 922 F.2d at 126-27. A defendant participating in a presentence interview, on the other hand, knows that the information he provides will be used in sentencing and may have an adverse effect on his sentence. Cortes, 922 F.2d at 126-27. See also Rogers, 921 F.2d at 981 (found psychological examination in Estelle distinguishable from a postconviction presentence interview because the examination in Estelle occurred before defendant\u2019s trial, and the information obtained in that evaluation \u201cwas used by the government to carry its burden of proof at the penalty phase of a capital murder trial\u201d).\nIn the same vein, courts have ruled that a defendant need not be provided Miranda warnings before being required to submit to a presentence psychosexual evaluation. In Dzul v. State, 118 Nev. 681, 687, 56 E3d 875, 879 (2002), the Nevada Supreme Court considered whether a defendant was entitled to Miranda warnings before psychosexual interviews. The defendant in Dzul cited Estelle in support of his position that he was entitled to Miranda warnings. Dzul, 118 Nev. at 685, 56 F.3d at 878. The court found Estelle distinguishable because the defendant in Dzul was interviewed after he was convicted and was informed in advance that the psychosexual evaluation was for the purpose of determining his sentence. Dzul, 118 Nev. at 686; 56 E3d at 878. The court also noted that \u201cDzul had the assistance of counsel throughout the proceedings, never invoked his right against self-incrimination, and does not dispute that he was Mirandized when he first spoke with police during their investigation in this case.\u201d Dzul, 118 Nev. at 686, 56 F.3d at 878-89. The court concluded that the State did not violate Dzul\u2019s constitutional rights. Dzul, 118 Nev. at 687, 56 F.3d at 879. See also State v. Curless, 137 Idaho 138, 144-45, 44 F.3d 1193, 1199-1200 (App. 2002) (no Miranda warnings required prior to a postconviction psychosexual evaluation because it is more akin to a presentence interview than the pretrial competency evaluation in Estelle).\nWe find these cases persuasive. Unlike the defendant in Estelle who was required to undergo a pretrial competency evaluation, defendant here was ordered to participate in the evaluation after he was convicted. Additionally, defendant was informed of the purpose of the evaluation, and the evaluation was used solely for that purpose. Thus, Estelle is distinguishable and not controlling here; defendant was not entitled to Miranda warnings prior to being compelled to participate in the court-ordered sex offender evaluation.\nWhen defendants are not entitled to Miranda warnings, they must either claim the fifth amendment privilege or they waive it. See Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. Here, since defendant never asserted his fifth amendment privilege, he was not entitled to its protections, and his claim must fail.\nCONCLUSION\nThe judgment of the circuit court of Knox County is affirmed.\nAffirmed.\nSCHMIDT, J., concurs.", "type": "majority", "author": "JUSTICE LYTTON" }, { "text": "JUSTICE McDADE,\ndissenting:\nThe majority has found that the State proved defendant guilty of predatory criminal sexual assault of a child beyond a reasonable doubt (392 Ill. App. 3d at 69), that the trial court did not violate defendant\u2019s state rights by ordering him to complete a sex offender evaluation which it \u201cconsidered *** when sentencing defendant\u201d (392 Ill. App. 3d at 70), and, finally, that the trial court did not violate defendant\u2019s fifth amendment rights by compelling him to complete the sex offender evaluation and using the results to sentence him (392 Ill. App. 3d at 73). The majority based its final judgment on the rule that \u201c[w]hen defendants are not entitled to Miranda warnings, they must either claim the fifth amendment privilege or they waive it\u201d (392 Ill. App. 3d at 73), and, here, defendant was not entitled to Miranda warnings (392 Ill. App. 3d at 73) and did not claim his fifth amendment privilege. I concur with the majority\u2019s judgment that the State proved defendant guilty of predatory criminal sexual assault of a child beyond a reasonable doubt. I disagree with the majority\u2019s judgment that the trial court did not violate defendant\u2019s state and constitutional rights. I dissent from that portion of the judgment affirming defendant\u2019s sentence.\nThe majority acknowledges that \u201c[t]here is no requirement for a sex offender who is not eligible for probation to submit to a sex offender evaluation\u201d (392 Ill. App. 3d at 70) but concluded that the trial court did not violate defendant\u2019s rights in requiring him to do so because \u201cthe statute does not prohibit a trial court from ordering a sex offender evaluation for a defendant who is not eligible for probation\u201d (emphasis added) (392 Ill. App. 3d at 70). The majority concludes that the trial court did not violate defendant\u2019s state rights because sections 5 \u2014 3\u20142(a)(6) and 5 \u2014 3\u20142(b) of the Unified Code of Corrections \u201callow[ ] the trial court to order supplementary information to be included in the [presentence] report\u201d (392 Ill. App. 3d at 70) and that no reason exists \u201cto disallow a sex offender evaluation in nonprobationary cases if the trial court deems it helpful in sentencing a defendant\u201d (392 Ill. App. 3d at 70). Section 5 \u2014 3\u20142(a)(6) reads as follows: \u201c(a) In felony cases, the presentence report shall set forth: *** (6) any other matters *** the court directs to be included.\u201d 730 ILCS 5/5 \u2014 3\u20142(a)(6) (West 2006). Section 5 \u2014 3\u20142(b) reads, in pertinent part, as follows:\n\u201c(b) The investigation shall include a physical and mental examination of the defendant when so ordered by the court. If the court determines that such an examination should be made, it shall issue an order that the defendant submit to examination at such time and place as designated by the court and that such examination be conducted by a physician, psychologist or psychiatrist designated by the court.\u201d 730 ILCS 5/5 \u2014 3\u20142(b) (West 2006).\nThere are, in fact, two reasons to disallow a sex offender evaluation in nonprobationary cases, regardless of whether the trial court deems it helpful in sentencing a defendant. First, the trial court has no direct authority to order the testing. The majority recognizes this fact when it finds that nothing in the Code prohibits the trial court\u2019s order but fails to find an express grant of authority for the trial court\u2019s order. What the majority fails to acknowledge is that an order entered without authority is void.\nThe supreme court, in construing section 5 \u2014 5\u20143 of the Code, has expressly held that \u201c[a] sentence not authorized by statute is void.\u201d People v. Williams, 179 Ill. 2d 331, 336, 688 N.E.2d 1153, 1155 (1997). Despite the provision in section 5 \u2014 3\u20142(a)(6) for \u201cany other matters *** the court directs to be included\u201d in the presentence report, that provision in section 5 \u2014 3\u20142(a)(6) is not broad enough to encompass a sex offender evaluation under well-established rules of statutory construction.\nThe rule of statutory construction that I believe contradicts the majority\u2019s judgment that section 5 \u2014 3\u20142(a)(6) permits the trial court to order a sex offender evaluation in a nonprobationary case, simply because it deems it helpful in sentencing the defendant, is the rule, which our supreme court has found to be \u201caxiomatic[,] that specific statutory provisions generally control over general provisions on the same subject.\u201d Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 63, 697 N.E.2d 699, 716 (1998). The rule that \u201c[wjhere two statutory provisions cover the same subject matter, the more specific statute governs\u201d (Huskey v. Board of Managers of Condominiums of Edelweiss, Inc., 297 Ill. App. 3d 292, 295, 696 N.E.2d 753, 755 (1998)), applies where different sections of the same statute \u201cprovide for a different procedure\u201d covering the same subject matter (Huskey, 297 Ill. App. 3d at 295, 696 N.E.2d at 755). Additionally, in interpreting written instruments, we follow the principle that \u201cit is the better rule that the intention should be given full effect which appears in the more principal and specific clause, and that the general clause should be subjected to such modification or qualification as the specific clause makes necessary.\u201d Heifner v. Board of Education of Morris Community High School District No. 101, Grundy County, 32 Ill. App. 3d 83, 88, 335 N.E.2d 600, 604 (1975).\nSection 5 \u2014 3\u20142(b\u20145) of the Code, which defendant relies on to argue that the trial court exceeded its authority, reads as follows:\n\u201cIn cases involving felony sex offenses in which the offender is being considered for probation or any felony offense that is sexually motivated as defined in the Sex Offender Management Board Act in which the offender is being considered for probation, the investigation shall include a sex offender evaluation by an evaluator approved by the Board and conducted in conformance with the standards developed under the Sex Offender Management Board Act.\u201d 730 ILCS 5/5 \u2014 3\u20142(b\u20145) (West 2006).\nSection 5 \u2014 3\u20142(b\u20145) is a specific grant of authority in limited situations to order a defendant to submit to a sex offender evaluation and controls over any general grant of authority in section 5 \u2014 3\u2014 2(a)(6) to order \u201cother matters\u201d to be included in a presentence report. Section 5 \u2014 3\u20142(b\u20145) is also more specific in addressing sex offender evaluations than the general authority to order a \u201cmental examination\u201d under section 5 \u2014 3\u20142(b). Under the controlling provision of the Code, the trial court may only order a sex offender evaluation when \u201cthe offender is being considered for probation\u201d (730 ILCS 5/5 \u2014 3\u2014 2(b \u2014 5) (West 2006)). The trial court lacked any authority to order defendant to submit to a sex offender evaluation. Its order is, therefore, void. Accordingly, I would reverse the trial court\u2019s order that defendant submit to a sex offender evaluation and remand for new sentencing proceedings in which the trial court did not use the results of the examination in sentencing defendant.\nThe second reason to disallow the trial court\u2019s actions in this case is that the trial court effectively used the results of the sex offender evaluation to impose a harsher sentence on defendant without requiring the State to prove those results beyond a reasonable doubt. Doing so, the trial court violated defendant\u2019s sixth and fourteenth amendment rights as described by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 476-77, 147 L. Ed. 2d 435, 447, 120 S. Ct. 2348, 2355-56 (2000). The court violated defendant\u2019s rights even though it sentenced him within the applicable statutory range. The Illinois Supreme Court has recognized that \u201cApprendi \u201c*** requires the State to prove to the jury beyond a reasonable doubt all facts underlying the sentence imposed on the defendant.\u2019 (Emphasis added.) [Citation.]\u201d People v. Green, 225 Ill. 2d 612, 621, 870 N.E.2d 394, 400 (2007), quoting Hill v. Cowan, 202 Ill. 2d 151, 158, 781 N.E.2d 1065 (2002). The Illinois Supreme Court interpreted Apprendi to hold that the rights addressed in Apprendi \u201cextend[ ] to all facts necessary to establish the range of penalties potentially applicable to the defendant.\u201d Cowan, 202 Ill. 2d at 154, 781 N.E.2d at 1067.\nHere, in sentencing defendant, the trial court stated as follows:\n\u201cThis might be an entirely different situation had that assessment come back and said that you are not at risk of reoffending but this, in fact, indicated that you were a higher risk of reoffend-ing because of everything contained within that statement.\u201d\nThis court should be left with no doubt the trial court relied heavily on defendant\u2019s sex offender evaluation in fashioning his sentence and that the results of that evaluation resulted in a harsher sentence against him. Because the trial court relied on facts not proved beyond a reasonable doubt to subject defendant to a harsher sentence, I would find that the court violated his constitutional rights. Accordingly, I would reverse his sentence and remand for a new sentencing hearing.\nRegardless of my findings that the trial court both exceeded its statutory authority under Illinois law and violated defendant\u2019s federal constitutional rights, I dissent because I believe the majority\u2019s reasoning is flawed in that it misapplies the law with regard to the fifth amendment privilege against self-incrimination.\nThe majority finds that defendant forfeited his fifth amendment rights because \u201cdefendant was not entitled to Miranda warnings prior to being compelled to participate in the court-ordered sex offender evaluation\u201d (392 Ill. App. 3d at 73) and defendant did not assert his fifth amendment privilege against self-incrimination. The basis of the majority\u2019s judgment that defendant\u2019s failure to assert the fifth amendment privilege in the trial court results in forfeiture of his fifth amendment rights is its misapplication of the rule, stated by the United States Supreme Court, that, absent a requirement for Miranda warnings, a defendant who \u201c \u2018desires the protection of the [fifth amendment] privilege *** must claim it or he will not be considered to have been \u201ccompelled\u201d within the meaning of the Amendment.\u2019 \u201d Minnesota v. Murphy, 465 U.S. 420, 427, 79 L. Ed. 2d 409, 419, 104 S. Ct. 1136, 1142 (1984), quoting United States v. Monia, 317 U.S. 424, 427, 87 L. Ed. 376, 380, 63 S. Ct. 409, 410-11 (1943).\nInitially, I note that, as previously discussed, the trial court\u2019s order that defendant submit to a sex offender evaluation lacked statutory authority and was void. \u201cAn argument that an order or judgment is void is not subject to waiver.\u201d People v. Thompson, 209 Ill. 2d 19, 27, 805 N.E.2d 1200, 1205 (2004). The majority misreads the Supreme Court\u2019s holding in Murphy. Although it did rely on the general proposition quoted above, the Murphy Court clarified that the issue is always whether the defendant has been \u201ccompelled,\u201d and that the fifth amendment \u201c \u2018privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him ***.\u2019 [Citation.]\u201d Murphy, 465 U.S. at 426, 79 L. Ed. 2d at 418, 104 S. Ct. at 1141, quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 281, 94 S. Ct. 316, 322 (1973).\nIn Murphy, the Court found that the government had not \u201ccompelled\u201d the defendant to answer incriminating questions because he was under only a general obligation to appear and answer questions truthfully. The Court found that such an obligation \u201cdid not in itself convert Murphy\u2019s otherwise voluntary statements into compelled ones.\u201d Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. The Court further explained that a witness under a general compulsion to testify and who answers incriminating questions has not been compelled to be a witness against himself if he answers a question which \u201cboth he and the government should reasonably expect to incriminate him.\u201d Murphy, 465 U.S. at 428, 79 L. Ed. 2d at 420, 104 S. Ct. at 1142.\nTherefore, to the extent Murphy stands for the proposition that a failure to assert the privilege against self-incrimination results in the forfeiture of the privilege, it only goes so far as to hold that the privilege is forfeited when a reasonable person compelled to answer questions would expect his answers to incriminate him. See Murphy, 465 U.S. at 429 n.5, 79 L. Ed. 2d at 421 n.5, 104 S. Ct. at 1143 n.5 (\u201cWe emphasize that Murphy was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting\u201d).\nThe Court reached its conclusion because \u201c \u2018[the] Constitution does not forbid the asking of criminative [sic] questions.\u2019 [Citation.]\u201d Murphy, 465 U.S. at 428, 79 L. Ed. 2d at 420, 104 S. Ct. at 1142, quoting United States v. Monia, 317 U.S. 424, 433, 87 L. Ed. 376, 382-83, 63 S. Ct. 409, 413 (1943) (Frankfurter, J., dissenting). Nonetheless, the Court made clear that even when the witness is only under a general compulsion to testify (not to answer specific questions) the court must still \u201cask *** whether the particular disclosure was \u2018compelled\u2019 within the meaning of the Fifth Amendment.\u201d Murphy, 465 U.S. at 428, 79 L. Ed. 2d at 420, 104 S. Ct. at 1143-43. Here, the majority concedes that the trial court ordered defendant to complete the sex offender evaluation and offers nothing to suggest that defendant could, at any time, refuse to cooperate in the evaluation. Although the majority states that \u201cdefendant was informed of the purpose of the evaluation, and the evaluation was used solely for that purpose\u201d (392 Ill. App. 3d at 73), nothing suggests defendant knew the trial court would impose a harsher sentence based solely on the results of the evaluation and that he could refuse to participate. The trial court clearly believed, erroneously, that it had the authority to order the evaluation, and its statements at sentencing reveal that it imposed a harsher sentence based on the evaluation without informing defendant he could refuse to participate in violation of defendant\u2019s fifth amendment rights. Thus I find that the majority\u2019s fifth amendment analysis is fatally flawed and its purported reliance on Murphy totally misplaced.\nEven were this court to read Murphy to stand broadly, as the majority mistakenly has, for the proposition that absent an independent requirement that a defendant receive Miranda warnings, he \u201cordinarily must assert the privilege rather than answer if he desires not to incriminate himself\u2019 (Murphy, 465 U.S. at 429, 79 L. Ed. 2d at 420, 104 S. Ct. at 1143), the Murphy Court went on to hold that \u201capplication of this general rule is inappropriate in certain well-defined situations.\u201d Murphy, 465 U.S. at 429, 79 L. Ed. 2d at 420, 104 S. Ct. at 1143. Those situations include ones where \u201csome identifiable factor \u2018was held to deny the individual a \u201cfree choice to admit, to deny, or to refuse to answer.\u201d \u2019 [Citation.]\u201d Murphy, 465 U.S. at 429, 79 L. Ed. 2d at 420, 104 S. Ct. at 1143, quoting Garner v. United States, 424 U.S. 648, 657, 47 L. Ed. 2d 370, 378-79, 96 S. Ct. 1178, 1183 (1976), quoting Lisenba v. California, 314 U.S. 219, 241, 86 L. Ed. 166, 182, 62 S. Ct. 280, 292 (1941).\nThe nature of the information and the manner in which the court obtained it present a situation which the Supreme Court has already found to deny the defendant the free choice to refuse to answer and one which can result in a violation of fifth amendment rights even when the defendant does not assert the fifth amendment privilege. In Estelle v. Smith, 451 U.S. 454, 461, 68 L. Ed. 2d 359, 368, 101 S. Ct. 1866, 1872 (1981), cited by defendant in the case at bar, the Supreme Court held that the admission of testimony concerning the results of a pretrial psychiatric evaluation at the penalty phase of the defendant\u2019s trial violated his fifth amendment privilege against compelled self-incrimination because the defendant was not advised before the examination that he had a right to remain silent and that any statement he made could be used against him in sentencing proceedings. Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873.\nThe Court began by holding that \u201cthe State\u2019s attempt to establish *** future dangerousness by relying on the unwarned statements *** infringes Fifth Amendment values.\u201d Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873. The court found that because the respondent\u2019s \u201cfuture dangerousness was a critical issue at the sentencing hearing, and one on which the State had the burden of proof beyond a reasonable doubt\u201d (Estelle, 451 U.S. at 466, 68 L. Ed. 2d at 371, 101 S. Ct. at 1874-75), \u201cthe Fifth Amendment privilege was implicated\u201d (Estelle, 451 U.S. at 466, 68 L. Ed. 2d at 371, 101 S. Ct. at 1875).\nFor reasons I have already discussed, I would find that the trial court\u2019s use of the sexual offender evaluation to increase defendant\u2019s penalty required that the record contain proof of those results beyond a reasonable doubt. Regardless, the holding in Estelle is not limited to the situation where state law mandates proof of a sentencing factor beyond a reasonable doubt or even where a sentence is increased beyond a statutory minimum based on a factor applied at sentencing. The Court made clear that the fifth amendment is implicated whenever compelled statements are used at the sentencing phase of trial because \u201c[w]e can discern no basis to distinguish between the guilt and penalty phases *** so far as the protection of the Fifth Amendment privilege is concerned. Given the gravity of the decision to be made at the penalty phase, the State is not relieved of the obligation to observe fundamental constitutional guarantees.\u201d Estelle, 451 U.S. at 462-63, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873.\nThe Estelle Court did not rely on the State\u2019s attempt to prove an element of the offense, as it pertains to sentencing, with the defendant\u2019s self-incriminating statements. Rather, the Court stated generally that \u201c[a]ny effort by the State to compel respondent to testify against his will at the sentencing hearing clearly would contravene the Fifth Amendment.\u201d Estelle, 451 U.S. at 463, 68 L. Ed. 2d at 369, 101 S. Ct. at 1873. The Court\u2019s holding is clear that \u201c[a] criminal defendant *** may not be compelled to respond to a psychiatrist if his statements can be used against him at a *** sentencing proceeding.\u201d Estelle, 451 U.S. at 468, 68 L. Ed. 2d at 372, 101 S. Ct. at 1876.\nThe fifth amendment, as applied by the United States Supreme Court in Estelle, prohibits the trial court\u2019s actions in this case. The trial court compelled defendant to respond to a psychiatrist and then used his statements against him at sentencing proceedings. Defendant received no warnings of his right to refuse to participate in the sex offender evaluation based on his privilege against self-incrimination before making the statements. Under Estelle, defendant cannot be said to have waived the privilege. The trial court, in using defendant\u2019s compelled statements against him at sentencing, violated defendant\u2019s fifth amendment rights.\nBecause I concur with the majority that the evidence is sufficient to prove defendant\u2019s guilt beyond a reasonable doubt, I concur in that portion of its judgment. Because I agree with defendant that the trial court violated his fifth amendment rights, I would vacate defendant\u2019s sentence and remand for a new sentencing hearing. I would further order the trial court that it may not compel defendant to participate in a sex offender evaluation because (a) it lacks any statutory authority to do so and, nonetheless, (b) any use of compelled statements defendant made in such an evaluation in sentencing him would violate the fifth amendment. Accordingly, I dissent from that portion of the majority\u2019s judgment affirming defendant\u2019s sentence.", "type": "dissent", "author": "JUSTICE McDADE," } ], "attorneys": [ "Jay Wiegman, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "John T. Pepmeyer, State\u2019s Attorney, of Galesburg (Terry A. Mertel and Dawn D. Duffy, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD J. HILLIER, Defendant-Appellant.\nThird District\nNo. 3\u201407\u20140717\nOpinion filed June 16, 2009.\nMcDADE, J., dissenting.\nJay Wiegman, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nJohn T. Pepmeyer, State\u2019s Attorney, of Galesburg (Terry A. Mertel and Dawn D. Duffy, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0066-01", "first_page_order": 82, "last_page_order": 96 }