People v. Mischler

2020 IL App (2d) 180041-U

• Court: Appellate Court of Illinois
• Decided: May 27, 2020
• Docket: 2-18-0041
• Status: Unpublished

Opinion

2020 IL App (2d) 180041-U No. 2-18-0041 Order filed May 27, 2020

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lee County. ) Plaintiff-Appellee, ) ) v. ) No. 11-CF-108 ) JEFFREY K. MISCHLER, ) Honorable ) Ronald M. Jacobson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Bridges and Brennan concurred in the judgment.

ORDER

¶1 Held: The trial court properly summarily dismissed defendant’s postconviction petition, as he did not state a claim of unfitness to be sentenced: although defendant provided records to show that he was prescribed psychotropic medication and claimed also to be taking his wife’s medication, the record refuted his claim that he could not understand the proceedings.

¶2 Defendant, Jeffrey K. Mischler, appeals the trial court’s dismissal of his petition pursuant

to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). He contends

that the petition stated the gist of a meritorious claim that he was unfit to be sentenced. We affirm.

¶3 I. BACKGROUND 2020 IL App (2d) 180041-U

¶4 Defendant pleaded guilty to aggravated criminal sexual assault (720 ILCS 5/12-14(a)(4)

(West 2010)). In exchange, the State dismissed counts of home invasion, criminal sexual assault,

and criminal trespass to a residence and agreed to recommend a sentence of no more than 10 years

in prison.

¶5 At the plea hearing, the trial court handed defendant a “Waiver of Rights” form that listed

the rights he was giving up by pleading guilty. The court said that it would go through the form

with defendant and if, at any time, defendant did not understand, he should inform the court, which

would “take whatever time we need to make sure you understand.”

¶6 The court informed defendant that he was giving up the right to plead not guilty, to have a

bench or jury trial, to have a speedy trial, to cross-examine witnesses, to offer evidence in his

defense, to assert his privilege against self-incrimination, and to be proven guilty beyond a

reasonable doubt. The court asked defendant whether he understood each right. Each time,

defendant responded, “Yes, Your Honor.”

¶7 The factual basis for the plea showed that defendant, a high school teacher, went with two

female coworkers to a bar in Dixon to celebrate the end of the school year. One coworker, J.N.,

became visibly intoxicated. Later that night, defendant broke into J.N.’s house, helped her remove

her clothes, and had sexual intercourse with her. Defendant gave a statement admitting that he

broke into J.N.’s house knowing that she was intoxicated.

¶8 On November 19, 2015, the court held a sentencing hearing. Defendant’s therapist, Jodi

Knox-Holub, testified that defendant’s primary diagnosis was substance abuse. He was “highly

motivated,” “very open” and “able to communicate.” Defendant gave a statement expressing

remorse and apologizing to J.N. and his own family. He acknowledged that alcohol use had made

him selfish and inconsiderate.

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¶9 The trial court sentenced defendant to seven and a half years’ imprisonment. Defendant

did not file a postplea motion or a direct appeal.

¶ 10 In 2017, defendant filed a postconviction petition. The petition raised five issues, including

that defendant was “unfit and uncapable to understand” the sentencing proceedings because he

was under the influence of prescription medications. In addition, his “abusive inability to stop

addictive pattern’s [sic] *** may have impaired his comprehension of the sentencing hearing”

because he had also taken medication prescribed for his wife and the combined effect of the two

drugs “may have” led to additional side effects.

¶ 11 The petition included documents showing that defendant was seen on November 12, 2015,

by Dr. Charles Shaw, who prescribed 20 milligrams of citalopram for anxiety and mood disorder.

Defendant also documented his wife’s alprazolam prescription. Further documents showed that a

drug such as alprazolam “[a]ffects the limbic system of brain, the part that controls emotions” and

that the drug’s sedative side effects can increase when combined with an antidepressant like

citalopram. The trial court summarily dismissed the petition and defendant timely appeals.

¶ 12 II. ANALYSIS

¶ 13 The Act permits a defendant to challenge his or her conviction on the basis of violations of

federal or state constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183 (2005). The Act

contemplates three stages of proceedings. People v. Edwards, 197 Ill. 2d 239, 244 (2001). At the

first stage, the trial court independently reviews the petition and should dismiss it if it is frivolous

or patently without merit. Id.; see 725 ILCS 5/122-2.1(a)(2) (West 2018). To survive dismissal

at this stage, a petition must state the gist of a meritorious claim that the defendant’s constitutional

rights have been violated. Edwards, 197 Ill. 2d at 244. A petition should be dismissed as frivolous

or patently without merit only if the petition has no arguable basis either in law or in fact. People

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v. Hodges, 234 Ill. 2d 1, 11-12 (2009). A petition lacks an arguable basis in law or in fact if it is

based on an indisputably meritless legal theory or a fanciful factual allegation. Id. at 16. An

example of an indisputably meritless legal theory is one that is completely contradicted by the

record. Id.

¶ 14 Defendant contends that his petition raised the gist of a claim that his use of psychotropic

medications rendered him unfit to be sentenced. Due process prohibits the conviction and

sentencing of a person who is unfit to stand trial. All defendants are presumed fit. 725 ILCS

5/104-10 (West 2016). A defendant is unfit if he or she is unable to understand the nature and

purpose of the proceedings or to assist in his or her defense. Id. If either party or the court raises

a bona fide doubt of a defendant’s fitness, the trial court must decide that issue before proceeding

further. Id. § 104-11(a). A defendant bears the burden of establishing a bona fide doubt of fitness.

People v. Hanson, 212 Ill. 2d 212, 222 (2004). The use of psychotropic medication alone does not

create a bona fide doubt of fitness. People v. Mitchell, 189 Ill. 2d 312, 330 (2000).

¶ 15 Defendant insists that his petition states the gist of a claim that he was unfit, but offers

nothing more than his self-serving allegation that he was “unfit and uncapable to understand” the

proceedings. He insists that this allegation is not contradicted by the record and thus is not

indisputably meritless. We disagree.

¶ 16 Defendant acknowledges that he was presumed fit and that the mere use of psychotropic

medication did not render him unfit. He further concedes that no one raised a bona fide doubt of

his fitness during the proceedings. If the presumption of fitness is to mean anything, a defendant

cannot simply point to a silent record and claim that it creates a doubt of his fitness. Allowing

defendant to do so would shift the burden of proof to the State. Moreover, as the State contends,

the record affirmatively supports a finding that defendant was fit.

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¶ 17 At the guilty plea hearing, the trial court admonished defendant about the various rights he

was giving up and asked whether he understood each right. Defendant gave appropriate responses,

indicating that he understood. The sentencing hearing occurred three months later. Defendant

points to nothing occurring in the interim except that he “may have,” on some unspecified date,

taken his wife’s prescription medication, which “may have” exacerbated his unspecified

symptoms. But at sentencing he gave an appropriate statement taking responsibility for his actions

and apologizing to the victim and his family. He said or did nothing to give anyone cause to

believe that he was having difficulty following the proceedings. His therapist testified at the

hearing that defendant was doing very well and was “able to communicate.” While the therapist

was not specifically asked whether defendant could understand the proceedings, she said nothing

that would cause anyone to believe that he could not.

¶ 18 Defendant’s argument that “the fact that he was able to give a short statement when

prompted does not mean that he was necessarily fit or able to assist in his defense” misses the

mark. Defendant has the burden of proving his unfitness and cogent and appropriate statements

certainly do not prove that he was unfit. Defendant complains that the trial court “never questioned

[defendant] about his mental state.” Defendant cites no authority for the implicit assertion that the

court had to, and such a requirement would be inconsistent with the presumption of fitness.

Defendant points to nothing in the record that created a bona fide doubt of his fitness and would

have triggered a duty by the trial court to inquire about his “mental state.”

¶ 19 Defendant’s petition shows only that he had been prescribed medication and that he had

access to his wife’s medication that could have side effects potentially affecting his mental state.

However, the petition includes no specific allegations that he was affected. It does not allege that

he actually took the medication on or near the date of the sentencing hearing. It includes no

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allegations about what symptoms he was experiencing or how they rendered him incapable of

understanding the proceedings. In this respect, the petition is similar to one found insufficient to

merit relief in People v. Williams, 364 Ill. App. 3d 1017 (2006). There, the defendant’s

postconviction petition alleged that he had been unfit to plead guilty due to various mental

illnesses. The postconviction court rejected that claim. Although documents attached to the

petition established that the defendant suffered from mental illnesses, none of the documents

“supported [the] allegation that he suffered from untreated mental illnesses that rendered him unfit

to plead guilty.” (Emphasis in original.) Id. at 1024. The postconviction court further noted that

the record positively rebutted the defendant’s claim that he was unfit. When the trial court

explained to the defendant the charges against him, the possible penalties, the rights he was giving

up and the terms of the plea agreement, the defendant said that he understood. Moreover, the

defendant did not exhibit any irrational or odd behavior in court. Id. at 1025.

¶ 20 The Williams court distinguished People v. Shanklin, 351 Ill. App. 3d 303 (2004). There,

the defendant changed his plea in the middle of a bench trial. The presentence report showed that

defendant had been hospitalized three times for mental health problems, and tests conducted during

those stays showed that the defendant was mildly mentally retarded. Documents attached to the

defendant’s postconviction petition showed that the defendant had difficulty receiving and

retaining verbal information. The Shanklin court held that, at the very least, there was a legitimate

concern as to whether the defendant could fully comprehend what the court and defense counsel

told him about the terms of the guilty plea. Id. at 306. Williams found that the allegations in

Shanklin were far more detailed and specific than those in the case before it.

¶ 21 This case is more like Williams than Shanklin. The petition alleged only vaguely that

defendant was being treated with psychotropic medication. It contained no specific allegations

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that the medication rendered him unfit to be sentenced. Thus, the trial court properly dismissed

the petition.

¶ 22 III. CONCLUSION

¶ 23 The judgment of the circuit court of Lee County is affirmed.

¶ 24 Affirmed.

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