People v. Watcher

2023 IL App (2d) 220458-U

• Court: Appellate Court of Illinois
• Decided: October 30, 2023
• Docket: 2-22-0458
• Status: Unpublished

Opinion

2023 IL App (2d) 220458-U No. 2-22-0458 Order filed October 30, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 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 Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 09-CF-164 ) MARC J. WACHTER, ) Honorable ) John F.McAdams, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err by summarily denying defendant’s postconviction petition at the first stage.

¶2 Defendant, Marc J. Wachter, appeals from the first-stage dismissal of his pro se petition

under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). He contends

that his petition stated the gist of a claim for ineffective assistance of counsel based on counsel’s

failure to request a fitness hearing. We affirm.

¶3 I. BACKGROUND 2023 IL App (2d) 220458-U

¶4 In 2009, defendant was charged with seven counts of predatory criminal sexual assault

(720 ILCS 5/12-14.1(a)(1) (West 2008)) and three counts of aggravated criminal sexual abuse (720

ILCS 5/12-16(b) (West 2008)) relating to the alleged sexual abuse and assault of his stepdaughter,

S.L.

¶5 During pretrial proceedings, defense counsel requested Kane County Diagnostic Center

(KCDC) complete psychological and Miranda-waiver evaluations of defendant. Defense counsel

was due to receive the results of these evaluations before a March 12 hearing. However, before

this hearing, defendant entered a fully negotiated plea wherein he agreed to plead guilty to two

counts of predatory criminal sexual assault and, in exchange, he would be sentenced to two

consecutive terms of 10 years’ imprisonment. Additionally, this sentence was to run consecutive

to defendant’s 10-year term of imprisonment previously imposed in De Kalb County case No. 09-

CF-250. Defendant’s remaining charges were to be dismissed.

¶6 During the plea hearing, defendant was fully admonished of his rights pursuant to Illinois

Supreme Court Rule 402 (eff. July 1, 1997). Defendant indicated that he had no difficult reading

or understanding English, had three years of post-secondary education, was taking only his

prescribed medication, and had sufficient time to speak with his attorney regarding the plea

agreement. The circuit court then explained the charges and potential sentencing range. Defendant

stated multiple times that he understood what was being said to him and, with one exception, did

not have any questions. Defendant’s only question related to his police interrogation and the

promises of probation that were made to him by police during the investigation. Defendant noted

that he understood that the plea proceedings were different than the police investigation and that

promises had not been made to him outside of the investigation. Despite this concern, defendant

still stated that he wished to plead guilty to have a chance at getting his life back.

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¶7 The State then provided a factual basis, to which defense counsel stipulated. Defendant

formally pleaded guilty, and the circuit court accepted the plea, finding (1) there was a sufficient

factual basis, and (2) defendant knowingly and voluntarily entered his plea. The court then entered

the agreed-upon sentences of two consecutive 10-year terms of imprisonment and ordered

defendant’s sentences to run consecutive to the sentence imposed in the De Kalb County case. The

court admonished defendant pursuant to Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001).

Thereafter, the court ordered that since defendant pleaded guilty the evaluations previously ordered

from KCDC need not be completed.

¶8 More than 11 years later, defendant filed a pro se postconviction petition, alleging: (1)

since his sentencing, he was diagnosed with autism spectrum disorder (ASD) which impacted his

ability to communicate effectively about his case, assist in his own defense, and understand the

guilty plea procedure, such that his guilty plea violated due process; (2) during his interview with

police, he was “cue bound,” denied counsel, and denied medication, such that he would agree with

any police statements to secure his release; (3) the court improperly refused to withdraw

defendant’s guilty plea after inciting “a state of ASD” and after it was informed that defendant was

innocent; and (4) his attorney was ineffective for failing to follow through on defendant’s requests

for a competency hearing. Defendant did not attach any supporting documentation to his petition.

¶9 On January 5, 2022, the court summarily dismissed defendant’s petition, finding both that

it was untimely and that the issues raised were patently without merit. Specifically, the court noted

that defendant never asserted, at the time of the plea, that he was innocent or did not understand

what was occurring at the plea proceedings. Instead, defendant indicated that he understood the

proceedings, had some college education, and wished to plead guilty because that was his

opportunity to “get [his] life back, maybe if [he] live[s] that long.” Thereafter, on February 3, 2022

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(file stamped on February 14, 2022), defendant filed a timely motion to reconsider alleging that a

fair review of the petition was not conducted by the court considering the pleading standard and

that ASD is an all-encompassing communication disorder that tainted all of defendant’s

interactions with the court. Defendant did not attach any documents in support of his motion to

reconsider.

¶ 10 On March 31, 2022, defendant filed a motion for a status update on his motion to

reconsider. Nearly two months later, he filed a notice of appeal with various pro se pleadings and

exhibits appended. Specifically, defendant included: a statement addressing culpable negligence;

exhibits explaining ASD; a pleading stating that he had undergone a partial evaluation by KCDC

and was never given the results; allegations that defendant was rushed into a guilty plea by his

defense attorney; and copies of his prison medical records diagnosing him with ASD, post-

traumatic stress disorder, and unspecified anxiety disorder. Defendant alleged that he began the

postconviction process as soon as he was diagnosed with ASD in 2020. He also included the order

from his De Kalb County case and asserted in his culpable-negligence statement that his identical

postconviction petition in that case was advanced to the second stage.

¶ 11 On June 6, 2022, defendant filed a motion demanding a response to his motion to

reconsider and reiterating that his De Kalb County petition advanced to the second stage. On July

18, 2022, the Office of the State Appellate Defender, which was appointed to represent defendant,

filed an unopposed motion to dismiss the appeal as premature.

¶ 12 Three days later, defendant moved to supplement the motion to reconsider. Therein,

defendant challenged the accuracy of the court transcripts, alleged a conspiracy by several court

officials to commit fraud, reiterated that he was rushed and forced into a guilty plea, asserted that

he was partially tested by KCDC but the testing was not completed and any results were withheld

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from him, appended an article about ASD, and attached additional medical records. That same

day, we granted appellate counsel’s unopposed motion to dismiss the appeal as premature,

recognizing that defendant filed a timely motion to reconsider that was still pending.

¶ 13 On September 2, 2022, the circuit court denied defendant’s motion to reconsider the

summary dismissal of his postconviction petition, finding that defendant’s allegations were

“meritless legal theories as they are completely contradicted by the record.” Thereafter, we allowed

defendant’s motion for leave to file a late notice of appeal.

¶ 14 II. ANALYSIS

¶ 15 On appeal, defendant contends that the circuit court erred in not granting his post-

conviction petition alleging ineffective assistance of counsel for failing to request a fitness hearing

before defendant pleaded guilty. Defendant makes no argument that the claims in his original

postconviction petition were sufficient to survive summary dismissal; instead, defendant

recognizes that the additional documentation was filed after the original petition but before a final

judgment. As such, defendant argues that, since the court received the supporting documentation

and a motion to supplement the motion to reconsider all before the court ruled on the motion to

reconsider, we should either address the merits of the petition (including all the supplemental

materials) or remand this case to the circuit court to consider the additional materials supporting

defendant’s petition. For the following reasons, we conclude that remand to the circuit court is

unnecessary.

¶ 16 The Act allows a defendant to collaterally attack his conviction if it resulted from a

substantial denial of his constitutional rights. 725 ILCS 5/122-1 (West 2022); People v. Hodges,

234 Ill. 2d 1, 9 (2009). At the first stage of postconviction proceedings, the circuit court reviews

the petition independently and determines whether the petition is frivolous or patently without

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merit. People v. Wallace, 2018 IL App (5th) 140385, ¶ 27. In other words, the court must determine

whether the petition has any arguable basis in law or fact or whether the petition relies on an

indisputably meritless legal theory or fanciful legal allegations. People v. Knapp, 2020 IL 124992,

¶ 45. All well-pleaded allegations in the petition must be taken as true unless positively rebutted

by the record. People v. Robinson, 2020 IL 123849, ¶ 45. If the petition states the gist of a

constitutional claim, it advances to the second stage, at which point the petitioner has the right to

counsel. Id. Conversely, if the circuit court determines that the petition is frivolous or patently

without merit, it may summarily dismiss the petition. Hodges, 234 Ill. 2d at 10-11.

¶ 17 If a postconviction petition is summarily dismissed, the defendant may move to reconsider

the dismissal within 30 days of the entry of that summary dismissal. People v. Dominguez, 366 Ill.

App. 3d 468, 472 (2006). This is akin to a motion to reconsider a final judgment in a civil

proceeding. Id. “[O]ne of the purposes of a motion for reconsideration is to bring to the court’s

attention newly discovered evidence. If the motion for reconsideration presents new evidence, it

lies within the trial court’s discretion whether to consider the new evidence.” (Emphasis added.)

(Internal citations omitted). People v. Coleman, 2012 IL App (4th) 110463, ¶ 62. However, the

circuit court need not consider new issues raised in a motion to reconsider. Id. ¶¶ 61-62; 725 ILCS

5/122-3 (West 2022) (“Any claim of substantial denial of constitutional rights not raised in the

original or an amended petition is [forfeited].”).

¶ 18 Regarding motions to reconsider, we review for an abuse of discretion a court’s ruling

considering additional facts or new arguments; however, “regardless of whether the motion to

reconsider presents new facts, we review de novo the trial court’s application of law to the facts.”

In re County Collector of Lake County, 343 Ill. App. 3d 363, 371 (2003). We also review de novo

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the dismissal of a postconviction petition without an evidentiary hearing. People v. Coleman, 183

Ill. 2d 366, 388-89 (1998).

¶ 19 The State asserts first that defendant failed to support his pro se petition with

documentation and that the materials that were submitted were untimely. Defendant acknowledges

that his pro se petition and the motion to reconsider did not contain any supporting materials. Yet,

defendant argues that all the supporting materials were filed before a final judgment was rendered,

and, thus, should be considered on appeal. Alternatively, defendant argues that, to the extent that

the record is unclear about whether the court was aware of the supplemental materials and the

motion to supplement the record, this cause should be remanded for the court to consider whether

to accept the additional supporting materials. We conclude that remanding this cause to the circuit

court is unnecessary.

¶ 20 It is presumed the circuit court was aware of the contents of the record filed in defendant’s

case. People v. Kuhn, 291 Ill. 154, 164 (1919) (judge is presumed to know the contents of the

record filed by the clerk at the direction of the judge); accord People v. Keener, 275 Ill. App. 3d

1, 6 (1995) (“Attorneys representing clients before the appellate courts are presumed to have

knowledge of the contents of the record.”). Moreover, at the time that he denied the motion to

reconsider on September 2, 2022, the court here entered an order finding that he conducted

“another thorough review of the record.” Accordingly, we presume the court reviewed the medical

records, documentation, and pleadings filed by defendant on May 24, June 6, and July 22, 2022,

all of which were included in the record at the time of the court’s final order. It was required to

address new evidence, not new issues and, based on all the evidence, the court found that

defendant’s allegations amounted to “meritless legal theories as they are completely contradicted

by the record.” Accordingly, defendant’s request that the case be remanded to the circuit court for

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it to determine whether to accept additional materials in support of defendant’s petition is not

necessary. We now turn to the merits of defendant’s petition.

¶ 21 Defendant argues that he was denied the effective assistance of plea counsel, where his

attorney was aware that there were questions regarding defendant’s mental state but failed to

request a fitness hearing before defendant pleaded guilty. Generally, claims of ineffective

assistance of counsel in the guilty plea process are analyzed under the two-part test outlined in

Strickland v. Washington, 466 U.S. 668 (1984). However, this test must be tailored to the lower

pleading standards of first-stage postconviction proceedings. Accordingly, defendant must allege

that “(1) counsel’s performance arguably fell below an objective standard of reasonableness; and

(2) the petitioner was arguably prejudiced as a result.” (Emphasis added.) People v. Brown, 236

Ill. 2d 175, 185 (2010).

¶ 22 Regarding the issue of fitness during plea proceedings, due process prohibits courts from

accepting guilty pleas from individuals who are unfit. People v. Bolanos, 2022 IL App (1st)

200790, ¶ 33. A defendant is presumed to be fit to stand trial, plead guilty, and be sentenced. 725

ILCS 5/104-10 (West 2020). However, if there is a bona fide doubt about the defendant’s fitness,

the circuit court must order a fitness hearing so that the defendant’s competency may be resolved

before any further action is taken in the case. A defendant is fit to plead guilty, stand trial, or be

sentenced if he is able to understand the nature and purpose of the proceedings against him and to

assist in his defense. 725 ILCS 5/104-10 (West 2020). To establish that counsel’s failure to request

a fitness hearing prejudiced a defendant within the meaning of Strickland (during first-stage

proceedings), a defendant must show that facts existed at the time of trial that arguably would have

raised a bona fide doubt of his ability “to understand the nature and purpose of the proceedings

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against him or to assist in his defense.” People v. Harris, 206 Ill. 2d 293, 304 (2002) (quoting 725

ILCS 5/104-10 (West 1998)); Brown, 236 Ill. 2d at 185.

¶ 23 In this case, none of the attachments to defendant’s postconviction petition support his

allegation that he suffered from a mental illness that rendered him unfit to plead guilty. Defendant’s

medical records show that he can communicate well, his thought processes are clear and coherent,

his memory is intact, his judgment and insight are adequate, and he is of “average” intelligence.

Overall, even considering the low pleading standard and the liberal construction of defendant’s

claims, these records do not establish any past concerns that defendant’s condition prevented him

from understanding the purpose and nature of the proceedings or his ability to assist in his own

defense.

¶ 24 Additionally, the record shows that defendant was participating in psychological and

Miranda-waiver evaluations. There was no indication by defense counsel or the court that there

was a bona fide doubt as to defendant’s fitness or that the evaluations were ordered to resolve a

potential fitness issue. Merely requesting psychological and Miranda-waiver evaluations does not

automatically raise concerns regarding defendant’s fitness to plead guilty.

¶ 25 At the guilty plea proceedings, defendant was properly medicated (and appears to still be

taking the same medication), has some college education, had no issues communicating

appropriately with the court, and had ample opportunity to meet with counsel and to continue to

meet with counsel. The circuit court thoroughly explained to defendant the charges against him,

the possible penalties, the rights he was giving up by pleading guilty, and the terms of his plea

agreement. Throughout these admonishments, defendant informed the court that he understood

them. Additionally, the record does not reflect that defendant exhibited any irrational, belligerent,

or odd behavior in court.

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¶ 26 Defendant’s words alone are not the only evidence that he understood the proceedings and

was able to communicate effectively. Defendant’s actions, in the greater context of the case,

showed that he was able to communicate effectively. For example, defendant demonstrated his

ability to assist in his defense and his understanding of the guilty-plea proceedings by interjecting

to note that he was promised probation by police. After a discussion between the court and

defendant, he demonstrated his understanding that the investigatory period was separate from the

prosecution of his case and that no one had promised him anything in exchange for his plea of

guilty during the prosecution of the case. This behavior does not support his position that he was

“cue bound” and not able to effectively communicate with the court. This interaction shows,

instead, that he was able to understand the proceedings in real time, interject with relevant

concerns, and communicate with the court about his concerns and his desired resolution. Defendant

was not just mindlessly following along. We thus conclude that defendant failed to state the gist

of a constitutional claim that he was unfit to plead guilty.

¶ 27 In so concluding, we note that the decision in People v. Robinson, 2020 IL 123849, ¶ 60,

which is the primary authority upon which defendant relies, does not require a different result. In

that case, the defendant sought leave to file a successive postconviction petition alleging actual

innocence. The petition included several affidavits that supported his allegations that he was

innocent of the crimes for which he was convicted. Id. ¶ 21. On appeal, the appellate court

determined that the “evidence in the supporting affidavits was positively rebutted simply because

it was contradicted by the evidence presented at trial.” Id. ¶ 60. Our supreme court found that there

was a difference between evidence that conflicts with the trial record and evidence that positively

rebuts the record. Id. Specifically, the court concluded that, “[f]or new evidence to be positively

rebutted, it must be clear from the trial record that no fact finder could ever accept the truth of that

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evidence, such as where it is affirmatively and incontestably demonstrated to be false or

impossible[.]”

¶ 28 Despite the procedural differences between Robinson and the present case, defendant’s

claims of error here were positively rebutted by the record, even under the Robinson standard.

Determining whether a fitness hearing is necessary because there was a bona fide doubt as to

defendant’s fitness involves a fact-specific inquiry. See People v. Eddmonds, 143 Ill. 2d 501, 518

(1991) (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)) (there are “ ‘no fixed or immutable

signs which invariably indicate the need for further inquiry to determine fitness to proceed; the

question is often a difficult one in which a wide range of manifestations and subtle nuances are

implicated’ ”). Here, defendant’s documents in support of his postconviction petition did not

reflect that he (1) had a developmental disability that affected his ability to participate in his own

defense and understand what was happening at the time of the plea; or (2) was unable to

communicate effectively about his case. Instead, as discussed above, defendant’s supporting

documents affirmatively demonstrated that, while he was diagnosed with ASD, it did not manifest

in ways that left him unable to communicate effectively with the court or defense counsel, and it

did not impact his ability to understand the guilty plea proceedings. Simply put, defendant’s

postconviction filings were positively rebutted by the record.

¶ 29 Defendant has failed to state the gist of a meritorious claim that his counsel’s performance

fell below an objective standard of reasonableness where counsel did not pursue frivolous

competency evaluations. In addition, because neither the record nor defendant’s postconviction

filings support his claim that facts existed at the time of his guilty plea that arguably would have

raised a bona fide doubt of his ability to understand the nature and purpose of the proceedings

against him or to assist in his defense, defendant has failed to state the gist of a meritorious claim

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that counsel’s failure to pursue fitness evaluations and request a fitness hearing prejudiced him.

Brown, 236 Ill. 2d at 185; Harris, 206 Ill. 2d at 304. As such, we conclude that (1) defendant has

failed to state the gist of a constitutional claim that he received ineffective assistance of counsel,

and (2) the circuit court did not err by summarily dismissing defendant’s postconviction petition.

¶ 30 III. CONCLUSION

¶ 31 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.

¶ 32 Affirmed.

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