People v. Shaw , 2015 IL App (4th) 140106 ( 2016 )

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Appellate Court Date: 2016.01.25 14:16:48
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People v. Shaw, 2015 IL App (4th) 140106
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption PAUL D. SHAW, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-14-0106
Filed December 21, 2015
Decision Under Appeal from the Circuit Court of Champaign County, No. 13-CF-231;
Review the Hon. Thomas J. Difanis, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Amanda S. Kimmel
Appeal (argued), all of State Appellate Defender’s Office, of Springfield, for
appellant.
Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
Robinson, and Timothy J. Londrigan (argued), all of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justice Appleton concurred in the judgment and opinion.
Justice Steigmann specially concurred, with opinion.
OPINION
¶1 A jury found defendant, Paul D. Shaw, guilty of attempt (criminal sexual assault) (720
ILCS 5/8-4(a), 11-1.20(a)(1) (West 2012)) and the trial court sentenced him to 30 years in
prison. Defendant appeals, arguing (1) the court erred by failing to conduct an independent
inquiry into his fitness prior to trial and to sua sponte raise the issue of fitness at trial or
sentencing, (2) defense counsel provided ineffective assistance by failing to request a fitness
examination at trial or prior to sentencing, and (3) the court improperly failed to investigate
defendant’s ineffective assistance of counsel claims pursuant to People v. Krankel, 102 Ill. 2d
181, 464 N.E.2d 1045 (1984). We affirm.
¶2 I. BACKGROUND
¶3 On February 8, 2013, the State charged defendant with two counts of criminal sexual
assault (720 ILCS 5/11-1.20(a)(1), (a)(2) (West 2012)) (counts I and II); two counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(a)(6) (West 2012)) (counts III and IV);
and two counts of attempt (criminal sexual assault) (720 ILCS 5/8-4(a), 11-1.20(a)(1), (a)(2)
(West 2012)) (counts V and VI). Ultimately, counts II, III, IV, and VI were dismissed on the
State’s motion and defendant’s trial proceeded only on counts I and V. With respect to count I,
charging defendant with criminal sexual assault, the State specifically alleged defendant
“committed an act of sexual penetration by the use of force with [the victim, E.B.,] in that [he]
penetrated [E.B.’s] vagina with his finger. In connection with count V, charging defendant
with attempt (criminal sexual assault), the State alleged that, with the intent to commit the
offense of criminal sexual assault, defendant “performed a substantial step toward the
commission of that offense[,] in that he, by the use of force, tried to put his penis in [E.B.’s]
mouth.”
¶4 On April 12, 2013, prior to defendant’s trial, defense counsel filed a motion for
appointment of a psychiatrist pursuant to section 104-11(b) of the Code of Criminal Procedure
of 1963 (Code) (725 ILCS 5/104-11(b) (West 2012)). Counsel alleged he had a bona fide doubt
as to defendant’s fitness and requested the trial court appoint a psychiatrist to examine
defendant. On April 17, 2013, the court entered an order, appointing Dr. Lawrence Jeckel to
examine defendant.
¶5 On May 17, 2013, a report authored by Dr. Jeckel was filed with the trial court. With
respect to defendant’s mental health history, Dr. Jeckel noted that defendant reported being
“hospitalized *** for one year and five months in 1993 and prescribed clonidine, lithium[,] and
fluoxetine (Prozac) for depression and anger. The next year, he was hospitalized for two years
and five months ***.” Additionally, he stated jail records showed that, on April 25, 2013,
defendant “was observed to be acting strangely; he was frequently masturbating and exposing
himself in general population.” On examination, Dr. Jeckel noted defendant “answered
questions promptly and appropriately.” He found defendant was also “often vague and
rambling at times, but he could be easily redirected.” Dr. Jeckel further stated as follows:
“[Defendant] did not appear to be responding to internal stimuli. There was no
evidence of looseness of associations or flight of ideas. Thoughts, again, were
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somewhat tangential and rambling, but he could clarify and be more concise if
prompted. When he tried to defend himself against the [deoxyribonucleic acid (DNA)]
evidence, he became more vague and more rambling. He denied current hallucinations,
delusions, ideas of reference, ideas of influence or paranoid ideation.”
¶6 Dr. Jeckel diagnosed defendant with “History of Psychotic Disorder, NOS”; “Probable
Depressive Disorder, NOS”; and “Antisocial Personality Disorder.” Nevertheless, he opined
defendant was fit to stand trial, finding defendant was “able to understand the nature and
purpose of the proceedings against him and [could] assist his attorney in his defense.” As a
basis for his opinion, Dr. Jeckel stated he found defendant “to be relatively clear and coherent”
and that he did not observe any evidence of psychosis. Further, he noted defendant
appropriately answered questions about the functions of the various participants in a court of
law. Ultimately, Dr. Jeckel asserted he “did not find any evidence of a severe mental illness
that would prevent [defendant] from working with his attorney.”
¶7 After the filing of Dr. Jeckel’s report, no further action was taken regarding the issue of
defendant’s fitness until August 30, 2013, when defense counsel filed a motion for a fitness
hearing pursuant to section 104-16 of the Code (725 ILCS 5/104-16 (West 2012)). He alleged
he had recently spoken with defendant and believed defendant’s mental health had
deteriorated. Counsel asserted he continued to have a bona fide doubt as to whether defendant
truly understood the nature and purpose of the proceedings against him and he believed
defendant was unable to assist in his defense. He requested the trial court conduct a hearing to
determine the issue of defendant’s fitness.
¶8 On September 4, 2013, the parties appeared before the trial court in connection with
defense counsel’s motion. Counsel reasserted his belief that defendant’s mental condition had
deteriorated since defendant was evaluated by Dr. Jeckel. In response, the trial judge stated,
“[t]hat would not, quite frankly, surprise me.” Ultimately, the court ordered a second fitness
examination and appointed Dr. Albert Lo to examine defendant.
¶9 On October 21, 2013, a report authored by Dr. Lo was filed with the trial court. Dr. Lo
noted defendant reported a past medical history that included having no memory between the
ages of 8 and 11 due to being hit by a truck. Defendant also reported a previous psychiatric
history that included treatment with clonidine, lithium, and Prozac and admittance to a
psychiatric hospital. On examination of defendant, Dr. Lo noted as follows:
“[Defendant] was wearing typical jail clothing and appeared to be mostly cooperative
during the interview. At times he was difficult to converse with, as he would go into
long rambling sentences which did not seem to contain a great deal of information. As
an example, he stated to me that ‘a person considered charged for violation of suspicion
failed at a description, that’s what they had did. That what they had witness, actually
they see other guys[.’] [Defendant] at times would become irritated during the
interview, but was mostly cooperative. The irritability appeared to center around his
legal issues and at times when I attempted to discuss the legal situation, he would
become more animated and speak long sentences that didn’t make sense.”
With respect to defendant’s speech, Dr. Lo specifically found defendant to be “mostly coherent
with no abnormalities in rate or tone.” However, he reiterated that “at times” defendant spoke
“in a mannerism where he [said] a great deal about nothing in sentences that [did] not make a
great deal of sense, but [did] not appear to be part of a psychotic disorder.”
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¶ 10 Dr. Lo further noted that defendant had an extensive history of legal difficulties and
substance abuse. He stated jail mental health workers had numerous difficulties with
defendant, including that he compulsively masturbated in front of other inmates. Jail personnel
were “concerned about mental illness” and had “also notice[d] the same odd manner of speech
at times.” According to Dr. Lo, defendant reported that he was paranoid, suspicious, and
“doesn’t trust ‘any of these people.’ ” Nevertheless, Dr. Lo found defendant was fit to stand
trial, in that defendant was able to understand the nature and purpose of the legal proceedings
against him. Dr. Lo stated as follows:
“[Defendant] is able to discuss the function of a Judge, Jury, and the difference
between a bench trial and a jury trial. He is also able to discuss the function of an
attorney and the difference in [the] types of pleas of guilty and not guilty. He
understands the meaning of sentencing, probation[,] and other legal terms, leading me
to believe he is able to understand the legal proceedings and charges against him. He
does express some suspicion about his attorney. He expresses some distrust and makes
some demands that his attorney follow his instructions in regards to his case. They do
not appear to be psychotic requests, but he appears to be unreasonable in the
expectations of what an attorney can do for him.”
Ultimately, Dr. Lo set forth his diagnoses as “Marijuana Abuse”; “Rule out Mood Disorder[,]
NOS”; “Antisocial Personality Disorder”; and “Multiple Physical Complaints.”
¶ 11 The record reflects defendant’s case was set for trial on November 18, 2013. That day, the
parties appeared before the trial court and initially addressed the issue of defendant’s fitness.
The following colloquy occurred between the court, defense counsel, and the State:
“THE COURT: All right. So Mr. Vargas [(defense attorney)], you did get the report
from Dr. Lo dated October 9th?
MR. VARGAS: Yes, Judge.
THE COURT: And you got yours, Mr. Lozar [(assistant State’s Attorney)]?
MR. LOZAR: Yes, Judge, and I stipulate to the contents.
THE COURT: And Mr. Vargas, you would stipulate that if Dr. Lo were called to
testify, he would testify as set forth in his report dated October 9th?
MR. VARGAS: Yes, Judge. Further, I’ve gone I think above and beyond. The court
has given me great leeway to make sure that my client is fit, so–
THE COURT: All right.
MR. VARGAS: He has been examined by two different doctors.
THE COURT: Mr. Lozar, the same stipulation?
MR. LOZAR: Yes, Your Honor.
THE COURT: We will show based upon the evidence presented, the court finds the
defendant is now fit to plead and/or stand trial.”
The court’s November 18, 2013, docket entry states: “Parties stipulate to the Dr. Lo finding the
Defendant FIT to stand trial.”
¶ 12 At trial, the State presented evidence that E.B. spent the night at a friend’s apartment after
attending a party there and becoming intoxicated. She awoke to a man trying to remove her
clothes. E.B. testified she struggled with the man and tried to resist but he removed her shorts
and put his finger in her vagina. She also recalled the man tried to force her to give him oral
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sex. The following day, E.B. reported the incident and underwent a sexual assault examination.
Evidence was collected, including E.B.’s underwear. The State further presented evidence that
forensic testing revealed the presence of semen on E.B.’s underwear, which matched
defendant’s DNA profile.
¶ 13 Against defense counsel’s advice, defendant elected to testify on his own behalf. Upon
questioning by his counsel, defendant provided his name and age, and he identified himself as
a resident of Champaign County. Counsel next asked defendant what he wanted to tell the jury.
Defendant responded with a lengthy narrative statement, which was largely rambling and
nonsensical.
¶ 14 After the parties finished presenting evidence but prior to closing arguments, defense
counsel informed the trial court that he wanted to bring a matter to the court’s attention. The
following colloquy then occurred between defense counsel and the court:
“MR VARGAS: My client has indicated that he would like a different attorney at
this time. I’ve explained to him that it’s a little too–a day late and a dollar short, so to
speak, but I told him I would bring it to the court’s attention.
THE COURT: Well, at this point, [defendant], we are to the end of the trial, and I
am not going to–it would be impossible to have another attorney appointed to represent
you even if I was so inclined. The only way that would be done–well, it’s not going to
be done. So, I understand the request, and the request is denied.”
On November 20, 2013, the jury returned a verdict, finding defendant guilty of attempt
(criminal sexual assault).
¶ 15 On December 17, 2013, defendant filed a posttrial motion for acquittal, or in the
alternative, a new trial, raising arguments not at issue on appeal. On December 27, 2013, the
trial court denied defendant’s motion and conducted his sentencing hearing. During the
hearing, defendant made the following statement on his own behalf:
“Due to the fact that it was not the area pretty much the time around where it might
have been some events that it might been just you a little bit too early to say that
anything happened, as such as it is. And after that, it pretty much was just something
that was just going by. But due to the fact that it been areas that I probably at, been just
walking away and probably not had seen the individual, not even tentative go to the
area or disturb anyone, it was just some things that I was just dealing with, as far as me
just traveling somewhere.
And as far as being to the state of mind of being to the fact, like, I consider myself
not to be issues that I can definitely work on, as–as it go on and it’s being discussed
amongst the Court, or you know, whatever decision that is, then that’s what I’m able to
do.
I–I think the lower range, as my attorney had asked for, is definitely the situation
that I need to be for, so.”
Ultimately, the court sentenced defendant to 30 years in prison.
¶ 16 On January 8 and 21, 2014, pro se letters from defendant were filed. In his correspondence,
which consisted of four handwritten pages, defendant requested an appeal, resentencing, and a
new trial. The record reflects his pro se letters were rambling and difficult to understand. In a
letter filed January 8, 2014, defendant stated, in part: “I was not the person who commit this
crime and was held early befor [sic] it allgely [sic] happen it was misused in court on several
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court dates to argue improper counsel.” In a second pro se letter filed on January 8, 2014,
defendant stated: “I ask for new trial it was improper handling through the court.” Finally, in
correspondence filed January 21, 2014, defendant stated, in part, as follows: “I ask reviewing a
court date arguing a prolific argument from a attorney to a client.”
¶ 17 On January 22, 2014, defendant’s counsel filed a motion to reconsider, arguing defendant’s
sentence was excessive. On February 10, 2014, the trial court denied the motion.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 A. Defendant’s Fitness
¶ 21 1. Defendant’s Fitness Prior to Trial
¶ 22 On appeal, defendant first argues his fitness hearing failed to meet minimal due process
requirements. Specifically, he contends the trial court erred by simply accepting the parties’
stipulations with respect to Dr. Lo’s report rather than conducting an independent inquiry into
whether he was fit to stand trial. Defendant asks this court to remand the matter for a new
fitness hearing and, if necessary, a new trial.
¶ 23 Initially, we note defendant acknowledges that he failed to preserve this issue for appellate
review. However, he asserts, and we agree, that the issue may be reviewed for plain error. See
People v. Gipson, 2015 IL App (1st) 122451, ¶ 28, 34 N.E.3d 560 (stating a defendant’s fitness
for trial involves a fundamental right and “alleged errors concerning fitness may be reviewed
under the plain error doctrine”).
¶ 24 Due process bars the prosecution of a defendant who is unfit to stand trial. People v. Holt,
2014 IL 116989, ¶ 51, 21 N.E.3d 695. “A defendant is presumed to be fit” but will be deemed
“unfit if, because of his mental or physical condition, he is unable to understand the nature and
purpose of the proceedings against him or to assist in his defense.” 725 ILCS 5/104-10 (West
2012).
¶ 25 The Code provides that the trial court “shall conduct a hearing to determine the issue of the
defendant’s fitness within 45 days of receipt of the final written report of the person or persons
conducting the examination.” 725 ILCS 5/104-16(a) (West 2012). “On the basis of the
evidence before it, the court *** shall determine whether the defendant is fit to stand trial or to
plead.” 725 ILCS 5/104-16(d) (West 2012). “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, 750 N.E.2d 290, 292 (2001). “However, because this issue is one of
constitutional dimension, the record must show an affirmative exercise of judicial discretion
regarding the determination of fitness.” Contorno, 322 Ill. App. 3d at 179, 750 N.E.2d at 292.
When assessing a defendant’s fitness, the trial court “should be active, not passive.” Gipson,
2015 IL App (1st) 122451, ¶ 29, 34 N.E.3d 560 (citing People v. Thompson, 158 Ill. App. 3d
860, 865, 511 N.E.2d 993, 996 (1987)).
¶ 26 “A trial court’s determination of fitness may not be based solely upon a stipulation to the
existence of psychiatric conclusions or findings.” Contorno, 322 Ill. App. 3d at 179, 750
N.E.2d at 292. “However, where the parties stipulate to what an expert would testify, rather
than to the expert’s conclusion, a trial court may consider this stipulated testimony in
exercising its discretion.” Contorno, 322 Ill. App. 3d at 179, 750 N.E.2d at 292. “The
distinction between proper and improper stipulations, however, is a fine one.” Gipson, 2015 IL
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App (1st) 122451, ¶ 30, 34 N.E.3d 560. “The ultimate decision as to a defendant’s fitness must
be made by the trial court, not the experts” and “[a] trial court must analyze and evaluate the
basis for an expert’s opinion instead of merely relying upon the expert’s ultimate opinion.”
Contorno, 322 Ill. App. 3d at 179, 750 N.E.2d at 292-93. “Where the trial court’s
determination is based on not only stipulations, but on the court’s review of a psychological
report and the court’s own observations of the defendant, due process is generally satisfied.”
Gipson, 2015 IL App (1st) 122451, ¶ 30, 34 N.E.3d 560.
¶ 27 In People v. Lewis, 103 Ill. 2d 111, 468 N.E.2d 1222 (1984), the supreme court addressed
the issue of proper and improper stipulations in the context of a fitness hearing. There, the
court reviewed two consolidated appeals in which the circuit courts found the defendants
involved had been restored to fitness based on stipulated evidence. Lewis, 103 Ill. 2d at 113-14,
468 N.E.2d at 1223-24. In one case, the parties stipulated that a psychiatrist had examined the
defendant and, if called as a witness, “would testify that he had examined [the] defendant and,
based upon his examination, [the] defendant was now mentally fit for trial, able to understand
the nature of the charges pending against him, and able to cooperate with counsel in his own
defense.” Lewis, 103 Ill. 2d at 113, 468 N.E.2d at 1223. In the second case, the parties similarly
stipulated that a psychiatrist would testify that he examined the defendant and, after observing
and interviewing the defendant, opined “ ‘that the defendant is mentally fit to stand trial and
that he understands the nature of the charges pending against him, the purpose of the
proceedings, and that he is able to cooperate with counsel in his own defense.’ ” Lewis, 103 Ill.
2d at 114, 468 N.E.2d at 1224.
¶ 28 Ultimately, the supreme court determined “that the circuit courts did not err in considering
the stipulations regarding the psychiatrists’ opinions as to [the] defendants’ fitness.” Lewis,
103 Ill. 2d at 116, 468 N.E.2d at 1225. In so holding, it distinguished cases involving
stipulations “to the conclusion that the defendant had ‘recovered from said insanity to the
degree that he can now co-operate with his counsel and can enter a plea.’ [Citation.]” and “to
‘the findings of the two psychiatrists as contained in the reports and *** to the fact that the
defendant is fit for trial.’ [Citation.]” Lewis, 103 Ill. 2d at 115-16, 468 N.E.2d at 1225. The
court noted that, in the case before it, “[t]he stipulations were not to the fact of fitness, but to
the opinion testimony which would have been given by the psychiatrists. Upon considering
these stipulations and personally observing defendants, the circuit court could find defendants
fit, seek more information, or find the evidence insufficient to support a finding of restoration
to fitness.” Lewis, 103 Ill. 2d at 116, 468 N.E.2d at 1225.
¶ 29 The State maintains that, pursuant to Lewis, the trial court in the instant case appropriately
relied on stipulated evidence to find defendant fit to stand trial. We agree.
¶ 30 The record shows that, on November 18, 2013, immediately prior to defendant’s trial, the
trial court and the parties addressed the issue of defendant’s fitness. The court asked the parties
if they “would stipulate that if Dr. Lo were called to testify, he would testify as set forth in his
report dated October 9th.” Both the State and defendant’s counsel stated they would and no
further evidence was offered or presented as to the issue of fitness. The court then stated that it
found defendant fit to stand trial “based upon the evidence presented.” We find the stipulations
made by the parties and accepted by the court were proper as the record reflects they were
based on the opinion testimony Dr. Lo would have given if called to testify rather than solely
his ultimate conclusion that defendant was fit to stand trial. The court was free to rely on the
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parties’ proper stipulations–the only evidence presented as to defendant’s fitness–when
exercising its discretion and determining whether defendant was fit to stand trial.
¶ 31 On appeal, defendant points to the trial court’s November 18, 2013, docket entry, which
stated the “[p]arties stipulate to the Dr. Lo finding the Defendant FIT to stand trial,” as
providing support for his position. He argues the docket entry evidences the lack of
independent judicial analysis by the court with respect to the issue of fitness. We disagree and
find the court’s actual comments in open court present a more comprehensive and reliable
reflection of the court’s considerations and exercise of its discretion.
¶ 32 Based on the circumstances presented here, we find the trial court committed no error in
finding defendant fit to stand trial. The record reflects the trial court relied on proper
stipulations as to the psychiatric expert’s opinion testimony rather than the expert’s ultimate
conclusions. Thus, the court appropriately exercised its discretion and independent judgment
when addressing the issue of defendant’s fitness for trial. We find the cases cited by defendant
are distinguishable from the facts presented in this case and his argument is without merit.
¶ 33 2. Defendant’s Fitness During Trial and Sentencing
¶ 34 On appeal, defendant also raises additional issues with respect to his fitness during his trial
and sentencing. Specifically, he argues that he became incomprehensible during his trial and
sentencing, evidencing a deterioration of his mental condition and raising a bona fide doubt as
to his continued fitness. As a result, he maintains the trial court erred by failing to sua sponte
order a fitness examination and his trial counsel was ineffective for not requesting a further
fitness examination. With respect to these additional contentions, defendant asks this court to
vacate his conviction and remand for a new trial.
¶ 35 “[A]lthough any party may raise the issue of a defendant’s fitness to stand trial at an
appropriate time, whenever a bona fide doubt of the defendant’s fitness arises, the trial court
must sua sponte order a determination of the defendant’s fitness before proceeding further.”
People v. Nichols, 2012 IL App (4th) 110519, ¶ 31, 979 N.E.2d 1002. “Factors relevant to
determining whether a bona fide doubt of the defendant’s fitness exists include the rationality
of the defendant’s behavior and demeanor at trial, any prior medical opinions on the
defendant’s fitness, and defense counsel’s representations concerning the defendant’s
competency.” Nichols, 2012 IL App (4th) 110519, ¶ 32, 979 N.E.2d 1002. “Whether a
bona fide doubt of the defendant’s fitness exists is a matter within the trial court’s discretion.”
Nichols, 2012 IL App (4th) 110519, ¶ 31, 979 N.E.2d 1002. On review, we will reverse a
defendant’s conviction and remand for a new trial only when “the trial court abused its
discretion in failing to act on a bona fide doubt of the defendant’s fitness.” Nichols, 2012 IL
App (4th) 110519, ¶ 31, 979 N.E.2d 1002.
¶ 36 Additionally, to establish a claim for ineffective assistance of counsel, a defendant must
show “both that his attorney’s performance was deficient and that he was prejudiced as a result
of the deficient performance.” People v. Tapscott, 386 Ill. App. 3d 1064, 1078, 899 N.E.2d
597, 610 (2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “The failure to
establish either prong is fatal to a defendant’s claim” and “[a] court need not consider whether
counsel’s performance was deficient before examining the prejudice suffered by the
defendant.” Tapscott, 386 Ill. App. 3d at 1078, 899 N.E.2d at 610.
¶ 37 Further, to establish that he was prejudiced when arguing that his counsel was ineffective
for failing to seek a fitness hearing, a “defendant ‘must demonstrate that facts existed at the
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time of his trial which raised a bona fide doubt of his ability to understand the nature and
purpose of the proceedings and to assist in his defense.’ ” Tapscott, 386 Ill. App. 3d at 1079,
899 N.E.2d at 610 (quoting People v. Eddmonds, 143 Ill. 2d 501, 512-13, 578 N.E.2d 952, 957
(1991)). “Therefore, defendant must demonstrate that the trial court would have found a
bona fide doubt of his fitness and ordered a fitness hearing had defense counsel requested it
under the circumstances presented.” Tapscott, 386 Ill. App. 3d at 1079, 899 N.E.2d at 610.
¶ 38 Here, in arguing that his mental health had further deteriorated after Dr. Lo’s evaluation,
defendant primarily relies on his trial testimony, which occurred less than two months after Dr.
Lo’s October 9, 2013, report, and his statement in allocution at sentencing, which occurred less
than three months after the date of Dr. Lo’s report. Although, in both instances, defendant
made statements that, in large part, were rambling and difficult to understand, we reject
defendant’s position that his statements reflect a worsening of his mental health. Specifically,
while Dr. Lo and Dr. Jeckel both found defendant fit to stand trial, each doctor made a point to
note that defendant would speak in a manner that was rambling and nonsensical.
¶ 39 In his report, Dr. Lo stated defendant was, at times, “difficult to converse with” and “would
go into long rambling sentences which did not seem to contain a great deal of information.” He
further noted that, when discussing his legal situation, defendant “would become more
animated and speak long sentences that didn’t make sense.” Dr. Lo reiterated that “at times”
defendant spoke “in a mannerism where he [said] a great deal about nothing in sentences that
[did] not make a great deal of sense, but [did] not appear to be part of a psychotic disorder.”
According to Dr. Lo, jail personnel had “also notice[d] the same odd manner of speech at
times.” Similarly, months earlier, Dr Jeckel found defendant was “often vague and rambling at
times, but he could be easily redirected.” Further, he noted defendant’s “[t]houghts *** were
somewhat tangential and rambling, but he could clarify and be more concise if prompted.
When he tried to defend himself against the DNA evidence, he became more vague and more
rambling.”
¶ 40 In this instance, the manner of speech defendant exhibited at trial and at sentencing was
consistent with the observations of both Dr. Lo and Dr. Jeckel at the time of their respective
fitness evaluations. As a result, the record fails to reflect defendant’s mental health changed in
any significant way from the time his fitness for trial was evaluated and the time of his trial or
sentencing. Under these circumstances, the trial court committed no error by failing to
sua sponte order a fitness hearing during the trial and sentencing phases of the underlying
proceedings. For the same reasons, defendant failed to establish his counsel’s ineffectiveness.
¶ 41 B. Krankel Inquiry
¶ 42 Finally, defendant argues on appeal that the trial court failed to inquire into his pro se
ineffective assistance of counsel claims. He maintains he raised ineffective assistance claims
that the court should have investigated both during his trial and after his sentencing.
¶ 43 “The common law procedure developed in Krankel and subsequent cases is intended to
promote consideration of pro se ineffective assistance claims in the trial court and to limit
issues on appeal.” People v. Patrick, 2011 IL 111666, ¶ 41, 960 N.E.2d 1114. Pursuant to
Krankel, the following procedure has developed:
“New counsel is not automatically required in every case in which a defendant presents
a pro se posttrial motion alleging ineffective assistance of counsel. Rather, when a
defendant presents a pro se posttrial claim of ineffective assistance of counsel, the trial
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court should first examine the factual basis of the defendant’s claim. If the trial court
determines that the claim lacks merit or pertains only to matters of trial strategy, then
the court need not appoint new counsel and may deny the pro se motion. However, if
the allegations show possible neglect of the case, new counsel should be appointed.”
People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637 (2003).
¶ 44 “[A] pro se defendant is not required to do any more than bring his or her claim to the trial
court’s attention ***.” Moore, 207 Ill. 2d at 79, 797 N.E.2d at 638. On review, “[t]he operative
concern *** is whether the trial court conducted an adequate inquiry into the defendant’s
pro se allegations of ineffective assistance of counsel.” Moore, 207 Ill. 2d at 78, 797 N.E.2d at
638. A trial court may conduct an adequate inquiry into a defendant’s claims by questioning
defense counsel, questioning the defendant, or by relying on its own knowledge of defense
counsel’s performance. Moore, 207 Ill. 2d at 78-79, 797 N.E.2d at 638. Whether the trial court
conducted a proper Krankel inquiry presents a legal question that is subject to de novo review.
People v. Jolly, 2014 IL 117142, ¶ 28, 25 N.E.3d 1127.
¶ 45 In People v. Taylor, 237 Ill. 2d 68, 75-76, 927 N.E.2d 1172, 1176 (2010), the supreme
court considered whether a defendant’s statement at his sentencing constituted a pro se
ineffective assistance of counsel claim that was sufficient to trigger a Krankel inquiry. In
finding that it was not, the court initially noted “that nowhere in [the] defendant’s statement at
sentencing did he specifically complain about his attorney’s performance, or expressly state he
was claiming ineffective assistance of counsel.” Taylor, 237 Ill. 2d at 76, 927 N.E.2d at 1176.
Further, the court stated as follows:
“As the State correctly notes, there is nothing in [the] defendant’s statement
specifically informing the court that [the] defendant is complaining about his attorney’s
performance. Indeed, defendant does not mention his attorney. In addition, because of
the rambling nature of [the] defendant’s statement, it is amenable to more than one
interpretation. For example, according to the State, ‘defendant’s statement merely
shows regret at not accepting the more advantageous plea deal before trial, and not that
he rejected the offer based upon a material misunderstanding of what sentence he
faced.’ [Citation] (rejecting argument that trial court erred in failing to give particular
jury instruction, stating: ‘If a defendant does not articulate his theory *** he cannot
reasonably expect the trial court, unaided, to divine his intent’). If defendant’s
statement in the case at bar were deemed sufficient to require a Krankel inquiry, few
statements would be insufficient. We agree with the State that defendant’s statement at
sentencing was insufficient to require such an inquiry.” Taylor, 237 Ill. 2d at 77, 927
N.E.2d at 1177.
¶ 46 Here, the record similarly fails to contain any specific or express complaints by defendant
about his counsel’s performance. At trial–after the parties’ presentation of evidence but prior
to closing arguments–defendant’s counsel informed the trial court that defendant wanted a
different attorney. However, no specific ineffective assistance of counsel claims were raised at
that time and there is nothing in the record to indicate the basis for defendant’s desire for new
counsel.
¶ 47 Following his sentencing, defendant pro se also sent letters to the trial court. His
correspondence consisted of four handwritten pages, in which he expressly requested an
appeal, resentencing, and a new trial. Again, defendant’s letters fail to contain even a bare
claim of ineffective assistance of counsel. Although in one sentence he used the phrase
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“improper counsel” (stating, “I was not the person who commit this crime and was held early
befor [sic] it allgely [sic] happen it was misused in court on several court dates to argue
improper counsel”), his letters are rambling and his meaning is unclear. Further, sentences in
which defendant asked for a new trial based on “improper handling through the court” and “a
court date arguing a prolific argument from a attorney to a client” do not necessarily implicate
issues related to his counsel’s representation or performance. Like in Taylor, defendant’s
statements could be amenable to more than a single interpretation.
¶ 48 Under the circumstances presented, both defendant’s request for new counsel at trial and
the statements made in his postsentencing pro se correspondence were insufficient to warrant a
Krankel inquiry. The trial court committed no error.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we
grant the State’s request that defendant be assessed $75 as costs for this appeal.
¶ 51 Affirmed.
¶ 52 STEIGMANN, J., specially concurring.
¶ 53 Although I fully agree with the majority, I write this special concurrence because of my
concerns about Lewis. This court cannot overrule decisions of the Supreme Court of Illinois.
But we can call to that court’s attention one of its decisions that we respectfully suggest
requires reconsideration. Thirty years’ experience with Lewis has shown that it is unnecessary
and imposes unwarranted costs upon the criminal justice system.
¶ 54 Lewis stands for the proposition that the parties can stipulate to what an expert would
testify, but a trial court may not accept a stipulation regarding a defendant’s fitness. Supra
¶¶ 28-29. Specifically, the supreme court in Lewis noted that in the cases before it, the parties
stipulated that if called to the witness stand, the qualified psychiatrists who had examined the
respective defendants would testify that in their opinions, each of the defendants was mentally
fit to stand trial. The supreme court then explained that “[t]he stipulations were not to the fact
of fitness, but to the opinion testimony which would have been given by the psychiatrists.
Upon considering these stipulations and personally observing [the] defendants, the circuit
court could find [the] defendants fit, seek more information, or find the evidence insufficient to
support a finding of restoration to fitness.” Lewis, 103 Ill. 2d at 116, 468 N.E.2d at 1225.
¶ 55 In my opinion, the distinction drawn by Lewis between a stipulation that (1) a defendant is
fit to stand trial based upon an uncontested psychiatric report and (2) the court may consider
that same psychiatric report in deciding whether defendant is fit to stand trial is a distinction
without a difference, as this very case shows.
¶ 56 I. PROCEDURAL BACKGROUND
¶ 57 In April 2013, defense counsel sought to have defendant examined by a psychiatrist,
because counsel alleged he had a bona fide doubt as to defendant’s fitness to stand trial. In
response, the trial court appointed Dr. Lawrence Jeckel to examine defendant. The following
month, Dr. Jeckel opined in a written report provided to the court and counsel that defendant
was fit to stand trial.
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¶ 58 In August 2013, defense counsel again moved for an examination of defendant for a fitness
hearing based on counsel’s concern that defendant’s mental health had deteriorated. The court
ordered a second fitness examination and this time appointed Dr. Albert Lo. In October 2013,
Dr. Lo filed his report with the court and each counsel, in which he opined that although
defendant was paranoid, he was fit to stand trial.
¶ 59 Shortly before defendant’s November 2013 trial, the trial court conducted a hearing on the
question of defendant’s fitness to stand trial. The court asked defense counsel if he would
stipulate that if Dr. Lo were called to testify, he would testify as set forth in his October 2013
report. Counsel responded yes. The prosecutor agreed to the same stipulation, and the court
then stated: “We will show based upon the evidence presented, the court finds the defendant is
fit to plead and/or stand trial.” Despite what the court said, the docket entry for that date states
the “[p]arties stipulate to the Dr. Lo finding the defendant FIT to stand trial.”
¶ 60 II. THE NEED FOR “MAGICAL INCANTATIONS”
¶ 61 Based upon Lewis, defendant contends that the trial court erred by accepting a stipulation
by the parties that, based upon Dr. Lo’s report, defendant was fit to stand trial. At oral
argument before this court, I asked defense counsel to consider the following hypothetical:
Assume that after noting that the parties stipulated that Dr. Lo would testify as indicated in his
report regarding defendant’s fitness to stand trial, the trial court asked both the prosecutor and
defense counsel if either had any additional evidence to present on the issue of defendant’s
fitness to stand trial, and each indicated he did not. And the court says, “Based upon the
evidence before me, I am finding defendant fit.” Would that inquiry and statement by the court
have satisfied the requirements of Lewis and provided due process for defendant? Defense
counsel at oral argument conceded that it would but suggested that these additional remarks by
the trial court were important, in part, because they reflected “independent judicial analysis.” I
conclude they are not important and constitute nothing more than a requirement that the court
utter “magical incantations” that provide no additional or meaningful protections for
defendant.
¶ 62 The record before us makes absolutely clear that the trial court fully understood at the
November 2013 fitness hearing that neither the State nor defendant had any additional
evidence to present on the question of defendant’s fitness to stand trial. The sole evidence on
point was Dr. Lo’s report. In fact, if this case were the extraordinarily unusual one in which
either party had some evidence to present beside Dr. Lo’s report, either attorney could have
spoken up at that hearing to so indicate. Their silence simply reflects what everyone knew: the
only evidence on point would be Dr. Lo’s report. No “magical incantations” were needed by
the court to demonstrate that it knew the ultimate decision regarding defendant’s fitness was
the court’s. Instead, the court’s remarks simply moved the proceedings to the next
stage–trial–because (1) the court knew no further evidence was going to be presented
regarding defendant’s fitness to stand trial, and (2) in the absence of any additional or contrary
evidence, the court was going to find the defendant fit.
¶ 63 Despite defendant’s contention that the parties’ stipulation was the only evidence before
the trial court regarding defendant’s fitness, the court had in fact the opportunity of observing
defendant on numerous occasions, and, if the court had any further concerns or doubts about
his fitness, it could have (using Lewis’s own language) “sought more information” on the
subject. Of course, as the Lewis court wrote, the ultimate issue of fitness was for the trial court,
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not experts, to decide, but in the absence of any other evidence, the court was going to accept
Dr. Lo’s report and conclude defendant was fit to stand trial. And the court was correct to do
so.
¶ 64 III. THE COSTS OF LEWIS
¶ 65 If this court were to reverse defendant’s conviction because of the absence of “magical
incantations” by the trial court, serious costs would be imposed. The victim in this case, E.B.,
testified at defendant’s November 2013 jury trial that on the day she was sexually assaulted,
she was an 18-year-old student at the University of Illinois, majoring in animal science. On that
day, she had returned from a spring-break trip to Mississippi, where she had assisted children
with disabilities at a therapeutic horse camp. Because the campus dormitory where E.B. lived
had yet to reopen, she stayed the night at a friend’s apartment.
¶ 66 E.B. testified at trial that she awakened to discover a man she had never before seen trying
to get her shorts and underwear off. She succeeded in temporarily stopping his efforts, but he
then threw her on the floor and placed his penis on her face as if he was trying to force her to
give him oral sex. As a result of her continuing struggle, the man finally ceased his efforts and
left.
¶ 67 A later medical exam showed bruising to E.B.’s right upper arm. Semen was on E.B.’s
underwear, and DNA extracted from that semen matched defendant.
¶ 68 One can only imagine how difficult and unpleasant it was for E.B. to testify about these
traumatic events at defendant’s November 2013 jury trial, the result of which he was convicted
of attempt (criminal sexual assault) and later sentenced to 30 years in prison. And yet, as bad as
it was for E.B. the first time, defendant contends that she should be forced to go through it all
again because of Lewis. And by the time this case is retried, at least 2½ years will have passed
since E.B. last testified, and surely during that time, she has sought to put these terrible events
behind her. Yet defendant argues that the supreme court’s decision in Lewis requires her to
have to relive those terrifying moments and again describe them in a courtroom full of
strangers–a process like tearing the scab off a healing serious wound, but that is in fact much
worse.
¶ 69 And for what?
¶ 70 Because, according to defendant, the trial court did not use “magical incantations” that
would have added nothing and provided no additional protections whatsoever to defendant.
¶ 71 Sometimes the costs of questionable legal decisions are hidden, but that is not so regarding
Lewis. If defendant’s argument prevailed, the costs here would be stark and vivid, and if they
continue to be inflicted in similar cases in the future, the judiciary has no one to blame but
itself.
¶ 72 IV. DEFENDANT’S DUE PROCESS CLAIM
¶ 73 Defendant contends on appeal that the trial court’s failure to use the “magical incantations”
discussed earlier in this special concurrence deprived him of due process. I emphatically
disagree.
¶ 74 Due process is an important concept, enshrined in our constitution, and part of the bedrock
of those essential rights that any defendant charged in a criminal proceeding may embrace to
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ensure that he receives a fair trial. Calling the absence of the “magical incantations” at issue in
this case a denial of due process demeans and diminishes that important concept.
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