FILED 2016 IL App (4th) 140801 December 8, 2016 Carla Bender NO. 4-14-0801 4th District Appellate Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County JOHNNIE D. GILLON, ) No. 13CF2096 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.
JUSTICE APPLETON delivered the judgment of the court with opinion. Presiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.
OPINION ¶1 In December 2013, defendant, Johnnie D. Gillon, pleaded guilty to felony
aggravated assault (720 ILCS 5/12-2(b)(4)(i) (West 2012)) in exchange for the State’s dismissal
of two other pending charges. The trial court accepted defendant’s plea and sentenced him to 30
months’ probation. After defendant allegedly committed two criminal offenses while on
probation, the State filed a petition to revoke defendant’s probation.
¶2 Defendant’s counsel raised a bona fide doubt as to defendant’s fitness, and the
trial court ordered defendant to be examined. Based on the opinion of a psychiatrist, the court
found defendant unfit to stand trial and committed him to the Illinois Department of Human
Services (Department). After the State and defense counsel stipulated defendant had been
restored to fitness based upon the conclusions in the Department’s report, the court found defendant fit to stand trial. The court revoked defendant’s probation and sentenced him to five
years in prison on the original offense.
¶3 Defendant appeals, arguing the trial court erred by (1) relying on the parties’
stipulation he was fit to stand trial instead of making an independent judicial determination on
that issue, (2) not sua sponte raising the fitness issue based upon defendant’s conduct during
subsequent court proceedings, and (3) failing to conduct a Krankel inquiry (see People v.
Krankel, 102 Ill. 2d 181 (1984)) into defendant’s claim, raised at the sentencing hearing, of
counsel’s ineffective assistance.
¶4 I. BACKGROUND
¶5 In December 2013, the State charged defendant with unlawful possession of a
weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) (count I), felony aggravated assault (720
ILCS 5/12-2(b)(4)(i) (West 2012)) (count II), and misdemeanor aggravated assault (720 ILCS
5/12-2(a) (West 2012)) (count III). Defendant pleaded guilty to count II and was sentenced to 30
months’ probation. The State dismissed counts I and III as part of the plea agreement.
¶6 On March 7, 2014, the State filed a petition to revoke defendant’s probation,
alleging he committed criminal trespass and assault on February 28, 2014, in violation of the
conditions of his probation. On March 19, 2014, defendant’s appointed counsel filed a motion
for the appointment of a psychiatrist, raising a bona fide doubt as to defendant’s fitness to stand
trial. The trial court granted counsel’s request, appointing psychiatrist Dr. Albert Lo.
¶7 On April 21, 2014, Dr. Lo prepared a report based upon the fitness evaluation of
defendant conducted on an unknown date. Dr. Lo noted defendant’s history of paranoid
schizophrenia and his need for medication. He said defendant was “able to discuss the
differences between pleas of guilty and not guilty” and generally understood the legal system.
-2- However, Dr. Lo noted, as the interview progressed, defendant “became increasingly hostile,
argumentative, and uncooperative.” Dr. Lo believed, due to his behavior, defendant would have
difficulty working with an attorney. In Dr. Lo’s opinion, defendant was “currently able to
understand the nature and purpose of the proceedings against him, but [was] unable to cooperate
with an attorney and assist in providing a proper defense due to his mental illness.” Thus, Dr. Lo
found defendant was currently unfit to stand trial.
¶8 On May 5, 2014, at a fitness hearing, the trial court accepted Dr. Lo’s evaluation
and opinion, and without further evidence or argument from either side, it found defendant unfit
to plead or stand trial. The court ordered defendant placed in the custody of the Department for
evaluation, placement, and treatment.
¶9 On May 22, 2014, the Department prepared a report (filed June 13, 2014, with the
trial court), advising that, pursuant to its preplacement evaluation, conducted on May 16, 2014,
by a licensed clinical social worker, defendant was fit to stand trial. According to the report,
during the evaluation, defendant explained to the evaluator the circumstances pertaining to his
latest criminal behavior with logic and clarity. He admitted that prior to his arrest, he had not
taken his psychotropic medications. According to the evaluator, beginning March 1, 2014, since
defendant had been in jail, he had been given his medication and “ha[d] shown improvements” in
“mood stability and thought processes.” When asked to explain the purpose of the interview,
defendant said: “You have to see if I am fit. I am now.” Based on this evaluation, the Department
determined defendant was fit to stand trial.
¶ 10 On June 30, 2014, the trial court conducted a fitness hearing. The court accepted
the parties’ stipulation to the Department’s report. Neither party produced further evidence, and
both waived argument. The court accepted the report and found defendant was “now fit to stand
-3- trial.” Defendant’s counsel presented the court with an “order for restoration of fitness.” The
parties agreed to set the matter for a hearing on the State’s petition to revoke.
¶ 11 On July 28, 2014, the trial court conducted a hearing on the State’s petition to
revoke defendant’s probation. Elizabeth Porter, store manager of Little Caesars Pizza in Urbana,
testified as the State’s only witness. She said on February 28, 2014, defendant came into the
store and began yelling that Porter owed him a pizza. She said he was cussing at customers.
Porter told defendant she would give him a pizza if he waited outside. Defendant interrupted her
testimony, saying, “She’s lyin’.” The court admonished defendant to not “say anything out
loud.” Porter continued her testimony. She said when she told defendant to wait outside, he
cursed at her, at another employee, and at customers. Porter said she “got in between” defendant
and the customers during the altercation. According to Porter, defendant threatened to hit her and
kill her as they stood face-to-face just inches apart. At that point, the police arrived and escorted
defendant outside.
¶ 12 Defendant testified a police officer had given him money for a pizza. He said a
male employee refused to make him a pizza and came around the counter to where defendant
was standing. The employee “started putting some gloves on his hands tightenin’ them up.” He
told defendant to stop begging for food. He said Porter grabbed the employee by the shirt. He
said Porter told him to go outside so the employee could beat him up. Defendant said he was
afraid to go outside because the employee was “a real big heavyset guy” and was waiting for
him. Porter told him to go outside or go to jail, and that is when the police walked in.
¶ 13 After considering the testimony, the trial court found the State had proved the
allegations in the petition to revoke probation by a preponderance of the evidence. The court
revoked defendant’s probation. After the court announced its ruling, defendant yelled out in
-4- court: “I didn’t do it, Judge. Why don’t you believe? I didn’t do nothin’. Please, ma’am. I didn’t
do nothin’. That lady just came here and lied and you all goin’ to let her lie.”
¶ 14 The trial court noted as follows:
“The record will reflect that [defendant] has become increasingly agitated
as the court made its ruling. He then started yelling out disputing the court’s
ruling and he’s become more and more agitated and—and screaming at this point.
He could be heard through two locked doors as he was being removed. Because
he was so out of control and it’s still apparent that he’s escalating in his degree of
being upset, we have had him removed from the courtroom.”
¶ 15 At the resentencing hearing, the trial court considered the presentence
investigation report, counsels’ recommendations, and defendant’s statement in allocution,
wherein he told the court he did not remember the incident because he was “off [his]
medication.” The court advised defendant of his right to appeal. Defendant stated:
“One more thing. I wasn’t involved with no plea bargains or nothing. I—I
was thinking like, I—I was wondering why come [defendant’s counsel] only
called me one time out of nine months before—and—I didn’t get no plea
bargains, and I didn’t get no—I—I—I would call it a—I’m trying to think of what
you call it, innocent of counsel.”
In response, the court told defendant it was proceeding to sentencing, as any potential offer by
the State is “not something the court becomes involved in.” The court explained its findings
before pronouncing defendant’s sentence. During the court’s explanation, defendant interrupted
several times to dispute the court’s finding or express his promise to do better. Nevertheless, the
court sentenced defendant to five years in prison. This appeal followed.
-5- ¶ 16 II. ANALYSIS
¶ 17 Defendant presents three arguments on appeal. First, defendant claims the trial
court erred when it found him restored to fitness in a “truncated restoration hearing” consisting
only of the conclusory opinion of the Department and the parties’ stipulation thereto. Second,
defendant claims the court erred when it failed to sua sponte reopen the issue of his fitness based
upon his behavior at subsequent proceedings. And third, the court erred in failing to conduct a
Krankel inquiry when defendant questioned his attorney’s failure to adequately communicate
with him. Because we agree with defendant’s first two contentions of error, we need not address
the third, as it is moot.
¶ 18 At the June 30, 2014, fitness hearing, the trial court was presented with (1) the
Department’s report finding defendant fit to stand trial and (2) a proposed order restoring
defendant’s fitness. Both sides stipulated to the Department’s finding of fitness. Defendant
contends the court erred by relying on the parties’ stipulations instead of making an independent
judicial determination. We agree. The court should have either questioned the Department’s
finding at the time of the stipulations, or, after accepting the stipulations, reopened the issue of
defendant’s fitness based upon his behavior in open court.
¶ 19 Initially, we note defendant acknowledges he failed to preserve this issue for our
review. However, he claims, and we agree, the issue may be reviewed for plain error. See People
v. Gipson, 2015 IL App (1st) 122451, ¶ 28 (stating a defendant’s fitness for trial involves a
fundamental right and “alleged errors concerning fitness may be reviewed under the plain error
doctrine”). See also People v. Shaw, 2015 IL App (4th) 140106, ¶ 23.
¶ 20 “The due process clause of the fourteenth amendment bars prosecution of a
defendant unfit to stand trial.” People v. Holt, 2014 IL 116989, ¶ 51. A defendant is unfit to
-6- stand trial if a mental or physical condition prevents him from understanding the nature and
purpose of the proceedings against him or assisting in his defense. 725 ILCS 5/104-10 (West
2012). “[W]here a defendant was previously adjudicated to be unfit to stand trial, a presumption
exists that the condition of unfitness remains until the defendant has been adjudicated to be fit at
a valid subsequent hearing.” Gipson, 2015 IL App (1st) 122451, ¶ 29 (citing People v. Greene,
102 Ill. App. 3d 639, 641-42 (1981)).
¶ 21 “Normally, a trial court’s decision that a defendant is fit to stand trial will not be
reversed absent an abuse of discretion.” People v. Contorno, 322 Ill. App. 3d 177, 179 (2001)
(citing People v. Newell, 196 Ill. App. 3d 373, 377 (1990)). However, because the issue of fitness
is constitutional in dimension, the record must affirmatively show that the court’s fitness
determination was the product of judicial discretion and judgment. Gipson, 2015 IL App (1st)
122451, ¶ 29; People v. Cook, 2014 IL App (2d) 130545, ¶ 13; Contorno, 322 Ill. App. 3d at
179; Greene, 102 Ill. App. 3d at 642. In other words, the court may not simply “rubber stamp” an
expert’s ultimate conclusion that a defendant has been restored to fitness. See Contorno, 322 Ill.
App. 3d at 179 (“The ultimate decision as to a defendant’s fitness must be made by the trial
court, not the experts.” (citing People v. Bilyew, 73 Ill. 2d 294, 302 (1978))); see also Gipson,
2015 IL App (1st) 122451, ¶ 29 (“[T]he court should be active, not passive, in assessing a
defendant’s fitness.”).
¶ 22 Our supreme court stated “[i]f a defendant is insane and unable to answer for
himself, he certainly is in no position to authorize his counsel to stipulate, nor is counsel
warranted in stipulating, to his restoration [to fitness].” People v. Reeves, 412 Ill. 555, 560
(1952). This is not to say, however, that a trial court may never base its fitness determination
-7- upon a stipulation. As the First District recently noted, “[t]he distinction between proper and
improper stipulations *** is a fine one.” Gipson, 2015 IL App (1st) 122451, ¶ 30.
¶ 23 In People v. Lewis, 103 Ill. 2d 111 (1984), our supreme court discussed the
distinction between proper and improper stipulations. That is, the court noted a difference
between the parties stipulating to the fact of fitness and thereby accepting the expert’s opinion
and conclusion as true and correct (see Reeves, 412 Ill. at 560-61), versus stipulating to the
content of the opinion testimony that would have been presented by the expert had the expert
testified (see Lewis, 103 Ill. 2d at 116). In the latter circumstance, the court could find the
defendant fit, seek more information, or find the evidence insufficient to support a finding of
restoration to fitness. Lewis, 103 Ill. 2d at 116. With this latter and proper stipulation, the
ultimate decision rests with the court, not the experts. Lewis, 103 Ill. 2d at 116.
¶ 24 The Second District discussed the distinction presented in Lewis as follows:
“Where a trial court fails to conduct an independent inquiry into a
defendant’s fitness but, instead, relies exclusively on the parties’ stipulation to a
psychological report finding the defendant fit, the defendant’s due process rights
are violated. [Citations.] However, where a trial court’s finding of fitness is based
not only on stipulations but also on its observations of the defendant and a review
of a psychological report, the defendant’s due process rights are not offended.
[Citations.]” Cook, 2014 IL App (2d) 130545, ¶ 15.
¶ 25 It is apparent from the record before us the trial court relied solely on the parties’
stipulations in finding defendant had been restored to fitness. The court stated it had indeed
reviewed the Department’s report, but there was no discussion as to the bases or opinions
contained therein. The extent of the fitness hearing was as follows:
-8- “THE COURT: *** [T]his is a fitness determination then.
MS. JESSUP [(defense attorney):] Yes, your Honor.
THE COURT: There was a report that was filed. The last one that I have is
June 13th of 2014. Do you have that report then, Mr. Banach [(assistant State’s
Attorney)]?
MR. BANACH: Your Honor, may I have a moment?
THE COURT: You may. And if you do not have it, we’ll make you a
copy. It was filed June 13th, dated May 22nd.
MR. BANACH: Yes, your Honor, I have the report dated May 22nd.
THE COURT: You have that as well, Ms. Jessup?
MS. JESSUP: Yes, Your Honor.
THE COURT: All right. Then I’ll call that for hearing. Mr. Banach.
MR. BANACH: Your Honor, the State would stipulate to the report from
[the Department] dated May 22nd.
THE COURT: And Ms. Jessup, is that agreeable?
THE COURT: All right. We’ll show then that the court has considered
that report. It was authored on May 22nd, 2014, from the Department of Human
Services. Did the State wish further evidence then, Mr. Banach?
MR. BANACH: No, thank you, Your Honor.
THE COURT: Is there any evidence on behalf of the defendant then, Ms.
Jessup?
MS. JESSUP: No, Your Honor.
-9- THE COURT: Did you wish argument then, Mr. Banach?
MR. BANACH: No, thank you.
THE COURT: Ms. Jessup, any argument on behalf of the defendant?
MS. JESSUP: No, thank you, Your Honor.
THE COURT: I have considered that report. It is the determination of the
professionals working with [defendant] that he’s now fit to stand trial, so I do find
that he’s able to assist in his own defense, understands the nature and purpose of
the proceedings, and fit to proceed to trial or plead, able to help his attorney as
well. In that regard then, did you want to set it for further proceeding then, Ms.
Jessup?”
¶ 26 Due to the important constitutional ramifications involved in a restoration
hearing, we find the trial court should have given close consideration to the circumstances of this
particular case. We do not go so far as to find the court should never accept a stipulation at a
restoration hearing. However, in this case, certain circumstances existed which gave rise to
pivotal concerns questioning defendant’s fitness.
¶ 27 First, in general, there should be a high level of judicial scrutiny in a restoration
hearing. The constitutional ramifications and liberty interests at stake justify careful
consideration of the expert’s opinion. Extra precautions may be needed to ensure the bases and
grounds set forth in the expert’s report are justified and satisfactory to the court’s determination.
A potential error in the Department’s restoration finding may subject an otherwise unfit person to
a trial and sentencing. Because the due process clause forbids conviction of a defendant who is
unfit to stand trial (People v. McCallister, 193 Ill. 2d 63, 110 (2000)), the court should take great
care to ensure to its satisfaction the defendant’s fitness has been restored. That is, the court
- 10 - should take steps to ensure the defendant is indeed able to understand the nature of the
proceedings and to assist in his own defense. Cook, 2014 IL App (2d) 130545, ¶ 12.
¶ 28 Second, the Department’s preplacement evaluation determining defendant was
restored to fitness was conducted less than two weeks after the trial court had declared defendant
unfit to stand trial based upon Dr. Lo’s psychiatric examination. According to the Department’s
report, defendant was evaluated May 16, 2014 (the report was dated May 22, 2014, and filed
with the court on June 13, 2014). To justify this seemingly quick turn of events, the court should
have, on the record, questioned the parties as to how or why defendant had gained fitness in a
matter of days.
¶ 29 Third, the Department’s report was submitted by the “evaluator,” Kimberly A.
Swenka, a licensed clinical social worker, rather than a psychiatrist or a psychologist. It appears
Swenka indeed conducted the evaluation herself and determined respondent was currently fit to
stand trial. The applicable statutory section provides as follows:
“If upon the completion of the placement process[,] the Department of Human
Services determines that the defendant is currently fit to stand trial, it shall
immediately notify the court and shall submit a written report within 7 days. In
that circumstance[,] the placement shall be held pending a court hearing on the
Department’s report.” 725 ILCS 5/104-17(b) (West 2012).
We acknowledge this statutory section does not specifically require the fitness decision be made
by a psychiatrist or a psychologist. However, we note the legislature specifically required the
initial fitness examination to be performed by “one or more licensed physicians, clinical
psychologists, or psychiatrists chosen by the court.” 725 ILCS 5/104-13(a) (West 2012).
Although the statute does not specifically prohibit a licensed clinical social worker from
- 11 - conducting the Department’s pretreatment evaluation, we find, in this particular case, the social
worker’s decision restoring defendant to fitness required the court to perhaps perform a more
thorough analysis than otherwise necessary if presented with an opinion from a psychiatrist or
psychologist.
¶ 30 Finally, defendant’s behavior in proceedings conducted after he had been restored
to fitness should have put the parties and the court on notice as to whether the Department’s
opinion was correct. His later behavior seemed to raise a bona fide doubt again as to his fitness.
It is plausible defendant appeared fit during the Department’s preplacement evaluation, when his
environment was calm and controlled. However, when he later appeared in court and was
subjected to the confrontational environment of a hearing, in the presence of witnesses,
attorneys, and a judge, his mental faculties changed. His paranoid behavior surfaced, as he was
seemingly unable to control his outbursts and agitation. In fact, the trial court had him removed
from the courtroom because “he was so out of control and it’s still apparent that he’s escalating
in his degree of being upset.” Defendant’s behavior during these court proceedings was more
akin to the behavior observed by Dr. Lo during his psychiatric evaluation.
¶ 31 Given the above considerations and the cumulative effect of each upon the other,
we hold the trial court erred in accepting the parties’ stipulations that defendant had been
restored to fitness. In so holding, we are mindful of what our supreme court cautioned some 60
years ago:
“Albeit, in order to avoid the repetition of situations similar to the case at bar[,]
the courts should exercise care to see that restoration proceedings be determined
as directed by statute; that the issue submitted as one of fact be determined by the
jury; and that directed verdicts be sparingly used only where the evidence
- 12 - properly warrants that action. They should not exercise the prerogative of
directing a verdict solely upon the unsupported stipulation, agreement, or plea,
alone, made by the accused or by his counsel.” Reeves, 412 Ill. at 561.
See also People v. Johnson, 15 Ill. App. 3d 680, 686 (1973).
¶ 32 III. CONCLUSION
¶ 33 Based on the above, we reverse the trial court’s order revoking defendant’s
probation. The cause is remanded for a restoration hearing consistent with this opinion and such
other proceedings as may be appropriate. Likewise, the order of June 30, 2014, restoring
defendant’s fitness is set aside.
¶ 34 Reversed and remanded.
- 13 -