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No. 3--02--0560

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

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JUSTICE LYTTON delivered the opinion of the court:

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The defendant, Alvin Earl Vernon, was convicted of aggravatedcriminal sexual assault (720 ILCS 5/12--14(a)(2) (West 2000)) andsentenced to 14 years in prison. On appeal, the defendant assertsthat the trial court erred in failing to conduct a fitness hearingwhen a bona fide doubt had been raised as to his competence tostand trial. We affirm.

The defendant was charged with aggravated criminal sexualassault on November 14, 2001. At a pretrial hearing on February 5,2002, defense counsel informed the court that the defendant hadbeen hospitalized for psychiatric treatment several times

during the 1990's. In light of the defendant's history, he feltthe defendant's mental fitness "should be explored at this stagerather than have it crop up later perhaps and cause a problem." Counsel requested appointment of Dr. So Hee Lee to conduct apsychiatric examination of the defendant. The State did notobject, and the trial court appointed Dr. Lee. At the nexthearing, the defendant requested a continuance, stating that thefitness examination had yet to be conducted and was scheduled forthe following Sunday. The trial court continued the case andrescheduled the trial for May 28, 2002.

On May 28, the defendant appeared with counsel and waived hisright to a jury trial. The parties did not discuss whether apsychological evaluation had been conducted, and a report was notincluded in the record on appeal. The cause proceeded to a benchtrial. After considering the testimony, the trial court found thedefendant guilty of aggravated criminal sexual assault. Thedefendant's posttrial motion was denied, and the trial courtsentenced him to 14 years in prison. At no point in theproceedings did the defendant request a fitness hearing.

On appeal, the defendant contends that the trial court made animplicit finding that a bona fide doubt as to his fitness existedwhen it granted defense counsel's motion to appoint an expert toconduct an examination. He claims that, upon making such afinding, the trial court erred in failing to conduct a fitnesshearing. The defendant cites People v. Cleer, 328 Ill. App. 3d428, 766 N.E.2d 311 (2002) in support of his argument.

We note that the defendant did not object to the court'sfailure to conduct a fitness hearing or raise the issue in hisposttrial motion. While such issues are generally deemed waived,an issue may be reviewed as plain error when it concerns asubstantial right. People v. Basler, 193 Ill. 2d 545, 740 N.E.2d1 (2000). The determination of a defendant's fitness to standtrial concerns a substantial right. People v. Contorno, 322 Ill.App. 3d 177, 750 N.E.2d 290 (2001). Plain error review istherefore appropriate.

Due process bars the prosecution of a defendant who is not fitto stand trial. People v. Sandham, 174 Ill. 2d 379, 673 N.E.2d1032. A defendant is presumed to be competent. 725 ILCS 5/104--10(West 2000). However, a defendant is unfit if he is not able tounderstand the nature and purpose of the proceedings or to assistin his defense. 725 ILCS 5/104--10 (West 2000). An expert may beappointed to examine the defendant to determine if a bona fidedoubt as to his fitness may be raised. 725 ILCS 5/104--11(b) (West2000). Once a bona fide doubt has been raised with regard to thedefendant's fitness, the trial court has a duty to hold a fitnesshearing. People v. Griffin, 178 Ill. 2d 65, 687 N.E.2d 820 (1997). The question of whether a bona fide doubt exists is generally amatter within the discretion of the trial court. Sandham, 174 Ill.2d 379, 673 N.E.2d 1032.

In Cleer, defense counsel filed a motion for a fitnessevaluation and a fitness hearing. Cleer, 328 Ill. App. 3d 428, 766N.E.2d 311. The written motion stated that the defendant was notable to communicate with counsel or assist in his defense. Defensecounsel also averred that he believed there was a bona fide doubtas to the defendant's competence to stand trial. The motionspecifically requested a fitness hearing. The trial court grantedthe motion and appointed an expert. However, the court then failedto conduct a fitness hearing. Under the circumstances of thatcase, we held that the trial court implicitly found that a bonafide doubt existed when it accepted the defendant's motion. Cleer,328 Ill. App. 3d 428, 766 N.E.2d 311. We decline to apply ourfinding in Cleer beyond those facts.

Here, the defendant insists that the trial court made animplicit finding that a bona fide doubt existed when it appointedan expert to examine him. This claim is not supported by therecord. Unlike counsel in Cleer, defense counsel in this casesimply made an oral request for the appointment of an expert toconduct a psychiatric examination. He did not request a fitnesshearing. Defense counsel informed the court that he was asking fora fitness evaluation because the defendant had a tenuous history ofpsychiatric treatment and he wished to avoid any problems duringthe proceedings. There was no allegation that the defendant couldnot communicate with counsel, understand the nature of theproceedings or assist in his defense. At no time did counsel,formally or informally, raise a bona fide doubt as to thedefendant's fitness to stand trial.

The defendant argues that by requesting an examination, andnothing more, defense counsel raised a bona fide doubt as to thedefendant's fitness to stand trial. The defendant's argument,however, misconstrues the plain language of the statute under whichthe examination was sought. See People v. Koppa, 184 Ill. 2d 159,703 N.E.2d 91 (1998) (best indication of legislative intent is theplain language of the statute).

Section 104--11 of the Code of Criminal Procedure of 1963(Code) (725 ILCS 5/104--11(b) (West 2000)) allows the defendant'sfitness to stand trial to be raised by the defense, the State orthe trial court at any time during the proceedings. Subsection (a)provides: "When a bona fide doubt of the defendant's fitness israised, the court shall order a determination of the issue beforeproceeding further." 725 ILCS 5/104--11(a) (West 2000). Subsection (b) states: "Upon request of the defendant that aqualified expert be appointed to examine him or her to determineprior to trial if a bona fide doubt as to his or her fitness tostand trial may be raised, the court, in its discretion, may orderan appropriate examination." 725 ILCS 5/104--11(b) (West 2000).

The plain language of subsection (b) specifically contemplatesthe appointment of an expert for the purpose of determining whethera bona fide doubt of the defendant's fitness will be raised. Appointment under this section clearly cannot be considered aconclusion, implicit or otherwise, concerning a bona fide doubt ofthe defendant's fitness. Indeed, the examination is requested todetermine if a bona fide doubt "may be raised." Therefore, thetrial judge commits no error by not holding a fitness hearingfollowing the mere appointment of an expert because no bona fidedoubt has been raised.

The defendant's position is further eroded by case law. Oursupreme court has set forth several factors to consider whendetermining whether a bona fide doubt of the defendant's fitnessexists, including the defendant's irrational behavior, thedefendant's demeanor at trial, and any prior medical opinions onthe defendant's competence. People v. Easley, 192 Ill. 2d 307, 736N.E.2d 975 (2000); People v. Harris, 206 Ill. 2d 293, 794 N.E.2d181 (2002). There are no fixed or immutable signs whichinvariably indicate the need for further inquiry. People v.Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 952 (1991). None of thefactors appear in the record of this case. The trial court'sdecision to allow a psychological evaluation does not indicate theneed for a fitness hearing. If that were true, those factorsenumerated by the supreme court would be unnecessary andirrelevant.

Based on the circumstances of this case, the trial court'sdecision to appoint a psychiatric expert to examined the defendantdid not, by itself, raise a bona fide doubt as to the defendant'sfitness to stand trial. The court therefore did not abuse itsdiscretion in failing to conduct a fitness hearing.

The judgment of the circuit court of Peoria County isaffirmed.

Affirmed.

SLATER, J., concurring and MCDADE, J., dissenting.

JUSTICE McDADE dissenting:

The majority finds that the trial court did not abuse itsdiscretion in failing to conduct a hearing to determine whetherdefendant, Alvin Vernon, was fit to stand trial. Implicit inthat finding is a determination that Vernon had a fair trial. Because I believe there was an abuse of the trial court'sdiscretion at an earlier stage in the fitness inquiry, I believedefendant should have a new trial and I respectfully dissent.

The relevant facts gleaned from the record before us show thattrial had been set for February 19, 2002, and that at a pre-trialhearing on February 5, 2002, defense counsel informed the courtthat Vernon had been hospitalized several times during the 1990'sfor psychiatric treatment. Counsel requested the appointment ofa psychiatrist to examine the defendant. That same day, thecourt, without objection from the State, appointed Dr. So Hee Leeto perform the evaluation. A new trial date of April 8, 2002,was set.

A second continuance was requested because, on April 9, thereport had still not been submitted. It appears from the recordthat the trial proceeded on May 28, 2002, without either receiptor evaluation of the psychiatric report.

ANALYSIS

"When the circuit court in the proper exercise of itsdiscretion orders a psychiatric examination of defendant, itundertakes a concomitant duty to ensure that the resultant reportfulfills the statutory requirements. Otherwise, the purpose ofthe statute would be defeated and the substance of the examiner'srecommendations would not be amenable to independent judicialscrutiny." People v. Harris, 113 Ill. App. 3d 663, 669, 447N.E.2d 941 (1983). How much truer is this if no report issubmitted at all?

The statutory requirements which the court has a duty toenforce are set out in section 5/104-15 (725 ILCS 5/104-15) (West2003) and they direct that the report "shall be submitted to thecourt, the State, and the defense within 30 days of the date ofthe order." (Emphasis added.) It is further required that "Thereport shall include: (1) A diagnosis and an explanation as tohow it was reached and the facts upon which it is based; (2) Adescription of the defendant's mental or physical disability, ifany; its severity; and an opinion as to whether and to whatextent it impairs the defendant's ability to understand thenature and purpose of the proceedings against him or to assist inhis defense, or both. ***" 725 ILCS 5/104-15 (West 2003)(Emphasis added.)

As can be seen, the issue of defendant's fitness to standtrial, once raised, cannot be allowed to simply languishunresolved. The court must secure the report that it has orderedand evaluate whether it raises a bona fide doubt of thedefendant's fitness to participate meaningfully in his defense. To require less creates a very real risk that defendant will bedeprived of due process.

"Convicting a person who is unfit to stand trial violatesdue process and it follows, then, that the State must provideadequate procedures to protect defendant's right not to be triedwhile unfit." People v. Guttierez, 271 Ill. App. 3d 301, 304,648 N.E.2d 928, appeal denied, 162 Ill. 2d 574, 652 N.E.2d 346(1995). The State has fulfilled its obligation to provide theprocedures, but enactment without enforcement is meaningless. The conviction of a person who is unfit to stand trial violatesdue process. This violation can occur where there is a failureto observe procedures adequate to protect a defendant's right notto be tried while unfit and it deprives him of his due processright to a fair trial. People v. Murphy, 72 Ill. 2d 421, 381N.E. 2d 677 (1978) (Emphasis added.)

For these reasons, I would find that defendant was deprivedof a fair trial and I would vacate the conviction and remand forappropriate fitness proceedings and a new trial.