People v. McCall

2024 IL App (5th) 220621-U

• Court: Appellate Court of Illinois
• Decided: March 8, 2024
• Docket: 5-22-0621
• Status: Unpublished

Opinion

2024 IL App (5th) 220621-U NOTICE NOTICE Decision filed 03/08/24. The This order was filed under text of this decision may be NO. 5-22-0621 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Fayette County. ) v. ) No. 16-CF-233 ) THOMAS J. McCALL, ) Honorable ) Kevin S. Parker, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court. Justices Welch and Boie concurred in the judgment.

ORDER

¶1 Held: We vacate the trial court’s finding of retrospective fitness and remand with directions for failure to fully comply with this court’s previous mandate.

¶2 The defendant, Thomas J. McCall, appeals his convictions and sentences, in the circuit

court of Fayette County, for methamphetamine and cannabis related offenses. In McCall’s initial

appeal, this court ruled that the trial court erred by not appointing counsel for the fitness

proceedings and remanded for the appointment of counsel and a retrospective fitness hearing.

People v. McCall, 2021 IL App (5th) 170488-U, ¶ 9 (modified upon denial of rehearing, June 18,

2021). Additionally, this court retained jurisdiction over the issue on direct appeal, whether the

defendant was deprived of his right to counsel, if the trial court found on remand that the defendant

was fit to stand trial in 2017. For the following reasons, we vacate the trial court’s finding of fitness

1 entered on September 2, 2022, and remand for the limited purpose of an additional psychological

examination and fitness hearing to determine the defendant’s retrospective fitness in accordance

with our previous mandate.

¶3 I. BACKGROUND

¶4 We state only those facts that are necessary for the disposition of this matter. As stated

above, this court previously remanded the matter to the trial court for the appointment of counsel

and retrospective fitness proceedings. Following remand, on August 27, 2021, the trial court

entered an order appointing the defendant counsel. On August 30, 2021, the trial court entered an

amended order for a psychiatric evaluation of the defendant to be conducted by Dr. Klug. The

order did not specify that the evaluation was to be a retrospective examination of the defendant’s

fitness to stand trial in 2017. On November 1, 2021, Dr. Klug submitted his psychological report

to the court and the parties. In his report, Dr. Klug ultimately concluded, “It is my opinion that Mr.

McCall is fit to stand trial at this time.” A fitness hearing was held on September 2, 2022, where

the trial court found that the defendant is now and was then fit to stand trial.

¶5 II. ANALYSIS

¶6 Whether a trial court complied with this court’s mandate is a question of law subject to

de novo review. Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 113, 118 (2006).

This matter was previously remanded for the defendant to be appointed counsel for a retrospective

fitness hearing. Although the trial court appointed an attorney for the defendant and held an

additional fitness hearing, the trial court did not direct Dr. Klug in its amended order for psychiatric

examination filed on August 30, 2021, to conduct a retrospective fitness evaluation, nor did the

parties present evidence at the hearing as to the defendant’s retrospective fitness prior to trial. The

only evidence admitted at the hearing, other than the defendant’s own testimony, was Dr. Klug’s

2 2021 psychological examination report which only addressed the defendant’s then present-day

fitness. It is evident that the 2021 report was an opinion as to the defendant’s present-day fitness

and not an opinion of retrospective fitness due to Dr. Klug’s ultimate determination being that

“Mr. McCall is fit to stand trial at this time.” “When the issue of fitness involves the defendant’s

mental condition, the court shall order an examination of the defendant by one or more licensed

physicians, clinical psychologists, or psychiatrists chosen by the court.” 725 ILCS 5/104-13(a)

(West 2020). We find that the trial court failed to fully comply with our previous mandate when

the trial court’s amended order appointing Dr. Klug to conduct a psychiatric evaluation failed to

provide the specific context, being a retrospective fitness examination, under which the defendant

should be evaluated. Without any psychological examination or report regarding the sole issue of

defendant’s retrospective fitness, the trial court is deprived of the opportunity to conduct the

required analysis and evaluation of the basis for the expert’s opinion. People v. Bilyew, 73 Ill. 2d

294, 302 (1978). Thus, it is impossible for the trial court to conduct a meaningful hearing as to the

defendant’s fitness at the time of trial in 2017.

¶7 III. CONCLUSION

¶8 Therefore, we vacate the trial court’s finding of fitness and remand this case to the circuit

court of Fayette County for the limited purpose of an additional retrospective fitness examination

and fitness hearing. We expressly note that if the retrospective fitness hearing in the trial court

results in a finding that the defendant was fit for trial, then pursuant to our reasoning in People v.

Moore, 408 Ill. App. 3d 706, 713 (2011), we retain jurisdiction, pursuant to Illinois Supreme Court

Rule 615(b)(2) (eff. Jan. 1, 1967), to consider the merits of the defendant’s claim that he was

deprived of his right to counsel, which we have declined to consider until the additional

retrospective fitness proceedings occur. Also pursuant to Moore (see id.), we direct the trial court

3 to deliver to the clerk of the Appellate Court a report of its findings and a record of the proceedings

on remand.

¶9 Fitness finding vacated; cause remanded with directions.