People v. Kirby , 2023 IL App (4th) 220879-U ( 2023 )

NOTICE 2023 IL App (4th) 220879-UThis Order was filed under
FILED
NO. 4-22-0879 May 30, 2023
Supreme Court Rule 23 and is
Carla Bender
not precedent except in the 4th District Appellate
limited circumstances allowed IN THE APPELLATE COURT
Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Hancock County
MARVIN L. KIRBY, ) No. 17CF139
Defendant-Appellant. )
) Honorable
) Rodney G. Clark,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Cavanagh and Zenoff concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err in denying defendant’s motion to withdraw guilty
plea notwithstanding defendant’s claims that (a) the court abused its discretion in
finding no bona fide doubt of defendant’s fitness to plead guilty and (b) plea
counsel was ineffective for failing to investigate defendant’s mental state around
the time of his plea and request a fitness examination and hearing.
(2) The decision to order restitution was second-prong plain error where the State
failed to establish defendant’s criminal conduct proximately caused the economic
loss at issue.
¶2 Defendant, Marvin L. Kirby, who pleaded guilty to seven counts of aggravated
criminal sexual abuse and was sentenced to a total of 70 years’ imprisonment, appeals directly
from the trial court’s judgment denying his motions to withdraw his guilty plea and reconsider
his sentence.
¶3 On appeal, defendant argues (1) the trial court erred in failing to recognize a
bona fide doubt of his fitness to plead guilty when presented with additional evidence at the
hearing on his postsentencing motions or, alternatively, plea counsel was ineffective for failing
to investigate his mental health history and request a fitness examination and hearing and (2) the
court erred in imposing restitution where the evidence presented at the sentencing hearing did not
establish that his criminal conduct proximately caused the economic loss at issue or,
alternatively, counsel was ineffective for failing to preserve the issue for appellate review. We
affirm in part, reverse in part, and remand with directions.
¶4 I. BACKGROUND
¶5 A. The Charges and Guilty Plea
¶6 On November 6, 2017, the State charged defendant with one count of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2016)). Counsel was appointed to represent
defendant the following day. The State filed its discovery disclosure on December 11, 2017. On
December 12, 2017, the State charged defendant by way of a second amended information with
seven counts of aggravated criminal sexual abuse (id.), alleging in each count that between July
1, 2017, and October 24, 2017, defendant, who was 17 years of age or older, committed an act of
sexual penetration on A.M.M. (born in November 2001) by placing his penis in her vagina.
¶7 On December 12, 2017, the same day the State filed its second amended
information, defendant pleaded guilty to all counts after expressing his desire to plead guilty to
the trial court. At the hearing, he informed the court that he had “been able to read everything”
shown to him by counsel and he had no questions about what he had reviewed. Defendant stated
the only questions he had had prior to the hearing were answered by counsel, and he was
satisfied with the answers provided to him. Defendant indicated to the court that he was not
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under the influence of alcohol or drugs, did not take any medication that would interfere with his
ability to understand the proceedings, and was “of clear mind.” The court admonished defendant
as to each of the charges against him, the potential sentences, and his rights.
¶8 As a factual basis for the plea, the State indicated it would be able to produce
certified copies of defendant’s and A.M.M.’s birth certificates showing defendant was 36 years
old during the relevant time and A.M.M. was 15 years old during the relevant time. Members of
the Hancock County Sheriff’s Office would testify to responding to A.M.M.’s suicide on
October 24, 2017, and subsequently executing search warrants for defendant’s residence, the
victim’s residence, and cell phones located at both. The State would also introduce a recorded
interview between Hancock County Sheriff Scott Bentzinger and defendant, during which
defendant admitted he had had “an ongoing sexual relationship with A.M.M. and had sexually
penetrated her vagina with his penis on at least seven different occasions.” Letters and text
messages between defendant and A.M.M. would verify a sexual relationship, and at least three
witnesses would testify to knowing about the relationship. Lastly, the State would introduce lab
reports indicating A.M.M.’s deoxyribonucleic acid (DNA) had been discovered on defendant’s
mattress and both defendant’s and A.M.M.’s DNA had been discovered on a condom located in
defendant’s residence. The trial court found the factual basis sufficient and accepted defendant’s
pleas as knowing and voluntary.
¶9 B. The Sentencing Hearing
¶ 10 On January 19, 2018, the trial court conducted a sentencing hearing. The State
called four witnesses and introduced several exhibits into evidence. Defendant did not present
any evidence.
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¶ 11 The State first called Joshua Smith, a deputy with the Hancock County Sheriff’s
Office. Smith testified that on October 24, 2017, he responded to a call at A.M.M.’s residence of
“a female juvenile with a gunshot wound to the head.” Upon arriving at the residence, Smith
discovered A.M.M. “deceased in her bedroom in the basement.” Smith recovered several pieces
of evidence from the residence, including a firearm and several handwritten letters written by
A.M.M. and another individual, later discovered to be defendant. Smith identified, over
defendant’s objection, People’s exhibit Nos. 4, 5, and 6, which he indicated were, respectively, a
“suicide note” written by A.M.M. and two separate letters written by defendant. The letters were
discovered in A.M.M.’s bedroom. Smith testified officers subsequently located defendant at
A.M.M.’s gravesite with a letter written to him by her, which he identified as People’s exhibit
No. 3. The trial court admitted each of the exhibits into evidence over defendant’s objection.
Smith further testified that during the course of the investigation, police learned that defendant
first met A.M.M. when he was hired by her mother and stepfather to remodel their living and
dining rooms.
¶ 12 In People’s exhibit No. 3, A.M.M. wrote about her love for defendant. She stated,
“I woke up this morning laying beside you and for a moment I forgot all about the bad things in
our lives and all limitations.” Later in the letter, she wrote, “I fell asleep picturing you hanging in
your closet. I’ve felt like I have been stuck in a world that doesn’t exist ever sense [sic]. Never
feeling too bad or too good, just numb.”
¶ 13 In People’s exhibit No. 4, the “suicide note,” A.M.M. wrote the following in
pertinent part:
“This first part is for Josh [(A.M.M.’s stepfather)] and my mom. Mom I know
you’re not a bad person and in some way I liked you until…Josh. Yea, at first he
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was cool and fun but when you married him his true colors were shone [sic]. I’m
not sure if you know but I can hear you when you talk bad about me in your room
or on the porch or anywhere inside really. It hurts my feeling[s] to know that you
feel those things towards me and you think its funny. Now Josh, you have the
potential to be a good guy just stop being yourself. You are a two faced jerk and
when I am gone don’t pretend you’re not, accept it. You lie to me you make fun
of me, you do nothing but make me hate you and my life.”
Later in the note, A.M.M. wrote, “No one could have stopped this so only Josh should feel bad.
BTW [(by the way)] its [sic] not cuz [sic] of the lectures[,] you’re just an awful person.” A.M.M.
also dedicated a portion of her note to a “special someone” she did not identify:
“I love you. I messed up. I hate myself for it. I don’t deserve you I really
don’t, you’re an amazing person and I am nothing but a common whore. *** I
only did what I did because I thought I was doing the best thing for everyone
because I had already convinced myself you didn’t love me and that whores [sic]
actions don’t matter. I was also scared. I’m sorry for hurting you. You shouldn’t
feel anything when I am gone I never really mattered anyways. I see that I was
wrong to do what I did and I stopped completely. *** I also want you to know
you were always first, you were never the second priority. I never loved Brandon
I was just scared he would kill himself and it would be on me. *** Yes, I
deserved feeling like shit, even when you would rub it in my face.”
¶ 14 In People’s exhibit No. 6, defendant wrote to A.M.M., “I promise you I’ll be the
guy you fell in love with and I’ll make Josh stop treating you so bad and I’ll keep you happy so
you never cut yourself again.”
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¶ 15 Scott Bentzinger, the Hancock County sheriff, testified that he interviewed
defendant on two separate occasions. During those interviews, defendant “admit[ted] to a sexual
relationship with A.M.M. on at least seven different occasions.” Defendant informed Bentzinger
that “they were together every night except for the time that she was in the hospital for
approximately a week.” Bentzinger testified that based on his office’s investigation, including
speaking with A.M.M.’s mother and stepfather, “A.M.M. had never received any mental health
treatment prior to her relationship with [defendant].”
¶ 16 Carla Bishop, defendant’s probation officer from a separate case, testified that she
prepared a presentence investigation report (PSI) in advance of the sentencing hearing.
According to the PSI, defendant was convicted of aggravated criminal sexual abuse in Hancock
County case No. 16-CF-37 and sentenced to probation. As a condition of his probation, he was
prohibited from “gain[ing] employment that provided him with access to children under age 18.”
Defendant reported that he met A.M.M. while remodeling her parents’ home. He “began
sleeping in A.M.M.’s bed with her at night to protect her in case [her stepfather] came into her
room to touch her.” Defendant knew A.M.M. had been “hospitalized in an adolescent psychiatric
unit” in October 2017. Defendant reported contemplating suicide when he discovered A.M.M.
“was talking to *** an 18 year old named Brandon.” On October 18, 2017, defendant “went into
his closet and wrapped a rope around his neck because he was having problems in all areas of his
life.” A.M.M. went to defendant’s house and discovered him in the closet with a rope around his
neck. Defendant reported that he “lost concern for everything” following A.M.M.’s death and
felt “extreme grief” and depression. On November 1, 2017, defendant intended to kill himself at
A.M.M.’s gravesite, but police intervened and prevented him from doing so. Defendant was
involuntarily admitted to Blessing Hospital as a result of this incident. He reported attempting
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suicide multiple times while hospitalized. Records from the hospital showed defendant was
discharged on November 6, 2017, and his “diagnoses included Major Depressive Disorder,
Severe, Recurrent, Without Psychiatric Features and, Personality Disorder.” The PSI also
indicated A.M.M.’s mother was requesting $2779.46 in restitution for (1) the cost of being
transported by ambulance to the hospital after she passed out upon discovering A.M.M.’s body
and (2) property damage resulting from A.M.M. shooting herself with a firearm in her home.
A.M.M.’s mother provided an invoice from Hancock County Ambulance and a State Farm
summary of loss invoice providing the amounts she had paid. No additional request for
restitution was contained in the PSI.
¶ 17 Ian Ballas testified that on October 23, 2017, the day before A.M.M. died by
suicide, he was driving home and saw defendant and a “little girl” standing on the sidewalk
having an argument. Ballas said the girl looked upset and may have been crying. Ballas saw
pictures of A.M.M. after her death and realized that she was the girl he had seen on October 23.
He reported the incident to authorities once he made the connection.
¶ 18 A.M.M.’s mother and stepfather prepared victim-impact statements and read them
to the trial court. Her stepfather, Josh, stated a loving “father/daughter” bond existed between
them. He stated A.M.M. “had been struggling in her day-to-day life” leading up to her death.
Josh and her mother knew A.M.M. needed help and they “used every possible form of help” to
get her through what they believed to be “regular teenage problems. As it turns out, we were
completely wrong. [Defendant] robbed an innocent girl of her sanctity. He preyed upon her much
like an animal preys upon its next meal. [Defendant] twisted her mind to suit his own nasty and
perverted desires, all the while mentally and emotionally wasting [A.M.M.]”
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¶ 19 A.M.M.’s mother, Christina, stated A.M.M.’s personality began to change once
they completed the remodeling project. “She was starting to fail some of her classes and dropped
out of cheerleading. *** The once sweet and hilarious daughter, full of life, was becoming
rapidly withdrawn and easily brought to tears.” A.M.M. “kept saying things like ‘I’m a terrible
daughter; I’m worthless,’ ” so they took her to Blessing Hospital. At the hospital, “she admitted
to cutting herself and feeling worthless.” A.M.M. was prescribed Lexapro and discharged from
the hospital after one week. Christina stated A.M.M. appeared to be doing better at home for
some time, until “our contractor entered the picture again to discuss new projects.”
¶ 20 Following the recommendations of the parties, the trial court sentenced defendant
to 10 years’ imprisonment on each count, with the sentences to be served consecutively, for a
total of 70 years’ imprisonment. The court then asked the State if restitution had been requested,
and the State informed the court that, in addition to the $2779.46 listed in the PSI, A.M.M.’s
parents were also requesting “$11,000 in lost wages,” for a total of $13,779.46. The court
granted the request and imposed restitution in the amount noted.
¶ 21 C. The Initial Motions to Withdraw
Guilty Plea and Reconsider Sentence
¶ 22 On February 1, 2018, defendant pro se filed a motion to withdraw guilty plea, in
which he alleged he received “inadequate representation by counsel” and that he “was not
mentally competent to enter a plea [because he] was going through serious mental health issues
at the time of [the] plea and was just released from [a] mental hospital.” Counsel was appointed
to assist defendant with his motion. Defendant did not file a motion to reconsider sentence within
30 days of being sentenced. In July 2018, defendant, through appointed postplea counsel, filed an
amended motion to withdraw guilty plea and a motion to reconsider sentence, both of which the
trial court denied. Defendant appealed, and, in July 2021, the appellate court entered an order
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reversing the court’s judgment in part and remanding for further proceedings due to counsel’s
failure to strictly comply with Illinois Supreme Court Rule 604(d) (eff. July 1, 2017). See People
v. Kirby, 2021 IL App (3d) 190466-U.
¶ 23 D. The Instant Motions to Withdraw
Guilty Plea and Reconsider Sentence
¶ 24 1. The Motions
¶ 25 On remand, defendant filed what he titled as a second amended motion to
withdraw guilty plea and a second amended motion to reconsider sentence. In the motion to
withdraw guilty plea, defendant argued he “did not have the benefit of effective counsel at the
time the pleas *** were made.” He alleged, in relevant part, “initial counsel did not request or
inspect the medical records of *** defendant or raise the issue of his diminished capacity in
relation to the statements made by *** defendant or make any attempt to suppress the same.”
Defendant summarized his ineffective-assistance claim as follows:
“It is the position of present counsel for the defendant that the original
counsel’s contact of less than one hour with the defendant outside of court, prior
to the plea, the fact that the plea was entered a day after discovery being produced
and with no opportunity to review the same with the client, the inaccurate
representations made to the client by counsel as to the possible sentence, the
complete lack of investigation into the client’s mental state despite his recent
release for psychiatric treatment, the lack of any discussion regarding potential
defenses or any corroboration necessary regarding confessions, and finally the
fact that the [PSI] was available for a week and only reviewed with the defendant,
if at all, the night prior to sentencing, when taken in total constitute a
[prima facie] case of ineffective assistance of counsel.”
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In the motion to reconsider sentence, defendant argued, in pertinent part, the trial court erred in
imposing restitution where there was no evidence his criminal conduct proximately caused the
economic loss at issue.
¶ 26 Defendant attached several documents to his motions, including a “Patient
Education” form from Blessing Hospital outlining various aspects of major depressive disorder,
such as its symptoms, how it is diagnosed, and effective treatments. The form included
defendant’s medical records identification number and indicated he was admitted to the hospital
on November 1, 2017, and discharged on November 6, 2017. According to the educational form,
major depressive disorder is a mental illness that “causes feelings of sadness, hopelessness, or
helplessness.” It is often trigged by “stressful life events,” such as “the death of a family member
or close friend.” It usually includes the following symptoms: (1) a lack of energy or motivation,
(2) feelings of guilt and worthlessness, (3) difficulty concentrating, remembering, or making
decisions, and (4) recurrent wishes for death or suicidal ideation. Defendant also attached jail
logs showing plea counsel met with him for 30 minutes on December 5, 2017, and again on
December 8, 2017, along with three other clients, for a total of 25 minutes.
¶ 27 The State filed a response to defendant’s motions. In relevant part, the State
argued the trial court should “disregard any argument and dismiss any reference to [the] Motion
to Reconsider Sentence” because he failed to challenge his sentence within 30 days of its
imposition. The State also argued that the “suggestion that *** defendant had limited mental
capacity” was not sufficient to raise a bona fide doubt of his fitness and that the record
demonstrated defendant was able to participate in his own defense by “communicating and
conferring” with plea counsel.
¶ 28 2. The Hearing
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¶ 29 On September 26, 2022, the trial court conducted a hearing on defendant’s
motions. Defendant and plea counsel were the only witnesses to testify.
¶ 30 Defendant testified that shortly before being arrested in this case, he had been
involuntarily hospitalized at Blessing Hospital for approximately one week due to a suicide
attempt. His attending physicians prescribed him psychotropic medication, although he refused
to take it. Defendant testified his only focus while in the hospital was committing suicide. He
stated he lied to his doctors about his mental state to secure his release from the hospital.
Defendant was taken into custody immediately after being released from the hospital, and his
suicidal ideation continued while in custody. Plea counsel was appointed to represent defendant
the day after his arrest. He testified counsel never asked him about his mental state or his
competency to stand trial, his recent hospitalization, or whether he was taking any psychotropic
medications. Defendant also testified that counsel never showed him any of the discovery
materials or discussed potential trial strategies with him. According to defendant, plea counsel
told him that the maximum sentence he “could possibly get by law” was 20 years’ imprisonment,
served at 50%. Defendant testified that at the time he entered his guilty plea, his main concern
remained committing suicide, he was “having trouble comprehending things going on around”
him, and he was “dealing with a lot.”
¶ 31 Plea counsel testified he could not recall if he knew at the time of his appointment
to this case that defendant had recently been released from the hospital. He also could not recall
if he requested any of defendant’s medical records. Plea counsel explained that if defendant had
been admitted to and subsequently released from the hospital, he “wouldn’t have anything to say
that the person has any problems if they’ve released him.” He further explained it would not
have been helpful to look at defendant’s medical records given what he “was hearing regarding
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the evidence that they had.” Plea counsel testified that although discovery was not formally filed
until the day before defendant entered his plea, the prosecutor had given him some of the
discovery materials prior to that date. Plea counsel attempted to review the materials with
defendant, but defendant “pushed it away” and “said he did not want to see it.” According to
counsel, defendant “wanted to get it over with. He was very fatalistic because the girl involved
had committed suicide and he kept saying it was his fault and he *** needed to plead guilty.”
When asked if there was anything to suggest defendant “didn’t understand what he was doing in
processing the information,” plea counsel answered, “My impressions of him were that he knew
exactly what he was doing whenever he did it. There wasn’t anything that he said to lead me to
believe that he had any mental failing in this.” Plea counsel later testified defendant was “acting
despondent,” so he “had to have the jail put him on a suicide watch, but he didn’t convey to me
any mental health problems.”
¶ 32 During its argument, the State conceded that the $11,000 portion of the restitution
award for lost wages was improper because it was not supported by any evidence. Following the
arguments of the parties, the trial court issued its findings and ruled that defendant had failed to
establish plea counsel was ineffective. The court found plea counsel to be credible and accepted
his version of the events, noting defendant “has already admitted he lied to the hospital, possibly
he’s lying to the Court.” The court also noted, “Today we still don’t have any indication that
[defendant] was suffering from some kind of mental illness. There’s no records put forth. And
he’s saying, ‘Oh, I would’ve brought all these witnesses.’ But not one listed, not any indication
to this Court as to what that would’ve walked like and talked like.” In the court’s view,
“Defendant fully understood what he was confessing to, and he was hoping to get a lighter
sentence.” The court further found as follows:
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“[THE COURT:] This court saw [defendant]. Not only did I have
[defendant], I was the trial judge in the first trial, but I went through this with him.
I was able to see his mannerism; I was able to see his demeanor. There was no
indication to this Court that he was suffering from any kind of mental problems or
was uncomfortable in any way with his plea. And I can tell you that I look at
defendants, and I look to make sure they’re comfortable. Matter of fact, history
could show that I have stopped proceedings because I don’t feel that a defendant
is comfortable. And I stop the proceedings and we go about it a different way.
He said he was satisfied with his counsel, but all of a sudden now he’s not.
He was satisfied with his counsel because [defendant] wanted to plead guilty,
because he was guilty. He just didn’t like the sentence. I can’t say that enough.”
With respect to restitution, the court stated, “The evidence at the sentencing hearing, it was
relevant, it was reliable, and the Court did not hold [defendant] specifically responsible for the
minor’s passing but it was something that was relevant.” The court accepted the State’s
concession with respect to the $11,000 for lost wages and vacated that portion of the restitution
award but otherwise denied defendant’s motions.
¶ 33 This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 On appeal, defendant argues (1) the trial court erred in failing to find a bona fide
doubt of his fitness to plead guilty when presented with additional evidence at the hearing on his
postsentencing motions or, alternatively, plea counsel was ineffective for failing to investigate
his mental state and request a fitness hearing and (2) the court erred in imposing restitution
where the evidence presented at the sentencing hearing did not establish that his criminal conduct
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proximately caused the economic loss at issue or, alternatively, counsel was ineffective for
failing to preserve the issue for appellate review.
¶ 36 A. Fitness
¶ 37 First, defendant argues the trial court erred in failing to find a bona fide doubt of
his fitness at the time of his guilty plea when presented with additional evidence at the hearing
on his postsentencing motions because “the record developed below establishes *** [he] was not
competent to assist in his defense due to his mental condition.” Specifically, he contends the
evidence presented—i.e., plea counsel’s testimony at the hearing, the information contained in
the PSI, and the Blessing Hospital educational form attached to his motion—establishes his
major depressive disorder manifested itself around the time of his plea, as demonstrated in his
irrational demand to plead guilty without first reviewing the State’s evidence against him or
considering possible defenses. Alternatively, defendant argues plea counsel rendered ineffective
assistance “by failing to investigate [his] mental-health history, raise the issue of a bona fide
doubt of [his] fitness, and request both a fitness examination and fitness hearing.”
¶ 38 “Due process bars prosecuting or sentencing a defendant who is not competent to
stand trial.” People v. Sandham, 174 Ill. 2d 379, 382 (1996). “Although a defendant’s fitness is
presumed by statute [citation], the [trial] court has a duty to order a fitness hearing, sua sponte,
any time a bona fide doubt arises regarding a defendant’s ability to understand the nature and
purpose of the proceedings or assist in his defense.” Id.; see People v. Nichols, 2012 IL App
(4th) 110519, ¶ 32 (“A defendant is unfit only if, because of a mental or physical condition, he is
unable to understand the nature of the proceedings against him or to assist in his defense.”
(Emphasis in original.)); People v. Tapscott, 386 Ill. App. 3d 1064, 1075 (2008) (“The
competency standard to plead guilty or stand trial is the same, i.e., the defendant must understand
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the nature of the charge and purpose of the proceedings and be able to assist in his defense.”).
“Fitness speaks only to a person’s ability to function within the context of trial; it does not refer
to sanity or competence in other areas. [Citation.] A person can be fit for trial although his mind
may be otherwise unsound.” People v. Coleman, 168 Ill. 2d 509, 524 (1995). “Factors that are
relevant for the trial court to consider in assessing the existence of a bona fide doubt of the
defendant’s fitness include (1) the rationality of the defendant’s behavior and demeanor at trial
and (2) any prior medical opinions on the issue of the defendant’s fitness.” Tapscott, 386 Ill.
App. 3d at 1075-76. “Further, defense counsel’s representations concerning his client’s
competency, while not conclusive, are another important factor to consider.” Id. at 1076.
¶ 39 Whether a bona fide doubt of a defendant’s fitness exists is a matter within the
trial court’s discretion. Sandham, 174 Ill. 2d at 382. “Where no fitness hearing was held, we will
reverse a conviction and remand *** only where 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. “A
trial court abuses its discretion only when its ruling is arbitrary, fanciful or unreasonable or
where no reasonable man would take the view adopted by the trial court.” (Internal quotation
marks omitted.) People v. Santos, 211 Ill. 2d 395, 401 (2004). “In evaluating the trial court's
exercise of its discretion, we will keep in mind that the trial court is in a superior position to view
the defendant’s behavior firsthand and to determine based on its observation whether the
requisite doubt exists.” Nichols, 2012 IL App (4th) 110519 ¶ 31.
¶ 40 In their briefs, the parties cite Sandham and Nichols. In Sandham, our supreme
court held that the trial court had abused its discretion by failing to rule that the following events
and testimony combined to raise a bona fide doubt of the defendant’s fitness to stand trial or be
sentenced:
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“(1) the public defender’s oral motion, which the trial court granted, to obtain a
psychiatric evaluation to determine defendant’s fitness; (2) the continuance of the
trial due to defendant’s inability to cooperate with defense counsel except with
difficulty and the defendant’s ensuing commitment to a psychiatric ward;
(3) defendant’s two letters to the court which were complimentary and
exceedingly hostile, respectively, and which spoke of defendant beginning his
‘real life’ after sentencing; (4) defendant’s threatening phone calls to the trial
judge; (5) the testimony of complainant’s mother that defendant was not ‘all the
way there’ and would sometimes run outside and start praying loudly to God;
(6) the Pfeiffer Center evaluation testimony which suggested that defendant had a
slight chemical imbalance and was slightly schizophrenic; (7) defendant’s
ingestion of psychotropic medications at or about the time of trial and/or
sentencing; and (8) defendant’s irrational outbursts during the sentencing hearing
regarding his brain being cut out, his conversation with his mother, his ‘top of the
charts’ albums and his comic books.” Sandham, 174 Ill. 2d at 388.
The supreme court further “observe[d] that the trial judge himself appear[ed] to have recognized
a bona fide doubt regarding [the] defendant’s fitness when he stated that [the] defendant ‘did not
even seem to understand what’s going on’ and ‘whether you understand what I am saying or not
I am not sure.’ ” Id. at 389. The Sandham court concluded that although a bona fide doubt likely
existed before the trial judge made his observations, “there [wa]s no question that the trial judge
had no discretion and was required to conduct, sua sponte, a fitness hearing at the point he
questioned [the] defendant’s capacity to comprehend what was transpiring at the sentencing
hearing.” Id.- 16 -
¶ 41 In Nichols, this court rejected the defendant’s argument that “the trial court erred
by not ordering a fitness hearing on its own motion in response to allegedly incoherent and
delusional statements [the] defendant made and his treatment during [the] proceedings for
schizophrenia.” Nichols, 2012 IL App (4th) 110519, ¶ 2. The record in Nichols established the
defendant had been diagnosed with schizophrenia, was prescribed psychotropic medication, and
had been housed in the prison’s mental health unit throughout the proceedings. Id. ¶ 23.
According to a “mental health diagnostic and treatment note” prepared around the time of his
trial, the defendant’s “thought process [was] at times loose, at time[s] making statements like
‘London family.’ ” Id. The note also indicated the possibility of auditory hallucinations and that
his insight and judgment were poor. Id. Nonetheless, the defendant chose to represent himself at
his jury trial. Id. ¶ 6. At one point during the trial, when the defendant was requesting the court to
admit evidence of prior bad acts committed by the State’s key witness, the court reporter
interrupted and “stated, ‘I am not understanding him.’ ” Id. ¶ 18. In response, the “court
remarked, ‘I will show the defendant is not making much sense here.’ ” Id.¶ 42 On appeal, we concluded that, “notwithstanding some evidence suggesting he was
being held in the prison’s mental health unit and treated for schizophrenia, no bona fide doubt of
[the] defendant’s fitness *** arose during these proceedings.” Id. ¶ 38. In support of our
conclusion, we reasoned that despite the evidence he was being treated for schizophrenia at the
time of his trial, “nothing we perceive indicates that defendant’s schizophrenia manifested during
trial or sentencing or impaired [his] capacity for understanding the nature of the proceedings
against him or his ability to present his defense.” Id. ¶ 33. Further, we found the defendant’s
“statements and allegations [we]re not so plainly delusional and grandiose that, evaluating [the
trial court’s] exercise of discretion against a cold record, we would conclude the court erred in
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not ordering a fitness hearing.” Id. ¶ 36. Finally, the Nichols court distinguished the facts before
it from those in Sandham, noting that unlike in the latter case, “the trial court never questioned
whether defendant was consciously engaged in his trial and sentencing,” and the defendant
“made no comments indicating that he was unaware of the nature of the ongoing proceedings.”
Id. ¶ 38.
¶ 43 Here, in support of his argument that he was unable to assist in his defense due to
his mental state, defendant highlights plea counsel’s testimony at the hearing, which he contends
was corroborated by the information in the PSI, and the Blessing Hospital educational form he
attached to his motion to withdraw guilty plea. Specifically, plea counsel described defendant as
being “very fatalistic” and “despondent” and stated he was “demanding” to plead guilty “from
the onset.” Plea counsel testified defendant refused to review discovery with him. Because
defendant appeared so despondent, plea counsel requested that the jail place him on a suicide
watch. According to the PSI, defendant intended to die by suicide at A.M.M.’s gravesite on
November 1, 2017, but was unsuccessful due to police intervention. He was involuntarily
admitted to the psychiatric unit at Blessing Hospital, where he again attempted suicide multiple
times. “His diagnoses included Major Depressive Disorder, Severe, Recurrent, Without
Psychiatric Features and, Personality Disorder.” According to the Blessing Hospital educational
form, major depressive disorder is a mental illness that “causes feelings of sadness, hopelessness,
or helplessness.” It is often trigged by “stressful life events” such as “the death of a family
member or close friend.” It usually includes the following symptoms: (1) a lack of energy or
motivation, (2) feelings of guilt and worthlessness, (3) difficulty concentrating, remembering, or
making decisions, and (4) recurrent wishes for death or suicidal ideation.
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¶ 44 We find the evidence defendant cites does not establish the trial court abused its
discretion in finding no bona fide doubt of his fitness to plead guilty. The facts in this case are
closer to those in Nichols and distinguishable from those in Sandham. In both Nichols and the
instant case, the defendant presented some evidence of a mental illness, but not enough evidence
to suggest unfitness. See Nichols, 2012 IL App (4th) 110519, ¶ 33 (“[N]othing we perceive
indicates that defendant’s schizophrenia manifested during trial or sentencing or impaired
defendant’s capacity for understanding the nature of the proceedings against him or his ability to
present his defense.”).
¶ 45 Here, defendant argues plea counsel’s testimony demonstrates he “was so
overcome with feelings of grief, guilt, and helplessness that he had no motivation or ability to
assist in his defense.” Although defendant did present evidence showing he experienced feelings
of grief, guilt, and helplessness around the time of his plea, he failed to demonstrate those
feelings rendered him unable, as opposed to unwilling, to assist in his defense. For example,
defendant presented no evidence he was unable to communicate with plea counsel or understand
what he was being told. In fact, defendant informed the court prior to entering his plea that “[t]he
only questions that I’ve had for [plea counsel] he had answered during a visit at the jail.” Plea
counsel testified it was his impression “that [defendant] knew exactly what he was doing
whenever he did it. There wasn’t anything that he said to lead me to believe that he had any
mental failing in this.” The fact that defendant felt grief and insisted on pleading guilty without
reviewing discovery does not necessarily mean he was acting irrationally. To the contrary, a
rational person would almost certainly feel grief if they believed their actions had caused a loved
one to die by suicide. A rational person might also choose to accept responsibility for their
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actions in such a situation rather than endure a trial that would prolong their exposure to the
source of their despair.
¶ 46 In short, notwithstanding defendant’s expression of “feelings of grief, guilt, and
helplessness” around the time of his plea, he has failed to show the trial court abused its
discretion in finding no bona fide doubt of his fitness. See Coleman, 168 Ill. 2d at 524 (“Fitness
speaks only to a person’s ability to function within the context of trial; it does not refer to sanity
or competence in other areas. [Citation.] A person can be fit for trial although his mind may be
otherwise unsound.”); see also People v. Sanchez, 169 Ill. 2d 472, 484 (1996) (“[E]vidence
documenting the defendant’s suicide attempt does not show that the defendant’s capacity to
understand the proceedings or to assist in his own defense was diminished or impaired at the
time of the sentencing hearing.”).
¶ 47 As noted above, plea counsel testified that he believed defendant “knew exactly
what he was doing whenever he did it” and never said anything to make counsel think “he had
any mental failing in this.” See Tapscott, 386 Ill. App. 3d at 1076. (“[D]efense counsel’s
representations concerning his client’s competency, while not conclusive, are another important
factor to consider.”). Additionally, the trial court never expressed any uncertainty regarding
defendant’s fitness. In fact, the court noted it had presided over defendant’s previous trial and
had carefully observed his “mannerism[s]” in the instant proceedings, and it found “[t]here was
no indication *** that he was suffering from any kind of mental problems or was uncomfortable
in any way with his plea.” See Santos, 211 Ill. 2d at 401 (“In evaluating the trial court’s exercise
of its discretion, we will keep in mind that the trial court is in a superior position to view the
defendant’s behavior firsthand and to determine based on its observation whether the requisite
doubt exists.”). Given the trial court’s superior position to evaluate defendant’s behavior,
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coupled with this court’s deferential standard of review, we cannot say it was unreasonable for
the court to find no bona fide doubt of defendant’s fitness to plead guilty. Nichols, 2012 IL App
(4th) 110519 ¶ 31.
¶ 48 As previously noted, defendant argues in the alternative that plea counsel
rendered ineffective assistance “by failing to investigate [his] mental-health history, raise the
issue of a bona fide doubt of [his] fitness, and request both a fitness examination and fitness
hearing.” This court reviews ineffective-assistance claims de novo. People v. Hibbler, 2019 IL
App (4th) 160897, ¶ 88.
¶ 49 “Every defendant has a constitutional right to the effective assistance of counsel
under the sixth amendment to the United States Constitution and the Constitution of Illinois.”
People v. Domagala, 2013 IL 113688, ¶ 36 (citing U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, § 8). A claim of ineffective assistance is governed by the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504 (1984)
(adopting Strickland). Under Strickland, “a defendant must demonstrate that counsel’s
performance was deficient and that the deficient performance prejudiced the defendant.”
Domagala, 2013 IL 113688, ¶ 36. “More specifically, a defendant must show that counsel’s
performance was objectively unreasonable under prevailing professional norms and that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”(Internal quotation marks omitted.) Id. “To establish that the failure
to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant
must show that facts existed at the time of trial that 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.” (Internal quotation marks omitted.) People v. Harris, 206 Ill. 2d 293, 304 (2002).
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“Defendant is entitled to relief *** only if he shows that the trial court would have found a
bona fide doubt of his fitness and ordered a fitness hearing if it had been apprised of the evidence
now offered.” People v. Easley, 192 Ill. 2d 307, 319 (2000).
¶ 50 Here, with respect to the prejudice prong, defendant argues that “if a bona fide
doubt existed at the time of [his] plea, [he] was prejudiced by [plea counsel’s] failure to raise it,
even if the record illustrates that the circuit court erroneously believed on remand that a
bona fide doubt as to [his] fitness did not exist at the time of the plea.” However, as discussed
above, the trial court did not err in finding no bona fide doubt of defendant’s fitness existed, and
he is unable to establish prejudice as a result. Accordingly, we reject his ineffective-assistance
claim. See People v. Simpson, 2015 IL 116512, ¶ 35 (“A defendant must satisfy both prongs of
the Strickland test and a failure to satisfy any one of the prongs precludes a finding of
ineffectiveness.”).
¶ 51 B. Restitution
¶ 52 Next, defendant argues the trial court erred in imposing restitution because the
evidence presented at the sentencing hearing did not establish that his criminal conduct
proximately caused the economic loss at issue. Specifically, while conceding the damages at
issue were caused by A.M.M.’s suicide, he contends they were “not of a type that a reasonable
person would foresee as being the likely result of A.M.M. merely having sex with defendant.”
He also asserts the court erred in finding proximate causation “[b]ecause the record does not
establish why A.M.M. chose to commit suicide, let alone that she did so because she had sex
with defendant.” Defendant acknowledges that he forfeited this argument by failing to include it
in a timely motion to reconsider sentence but nonetheless asks this court to review it under the
second prong of the plain-error doctrine. Alternatively, he contends counsel was ineffective for
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failing to include the issue in a timely motion to reconsider sentence and preserve it for appellate
review.
¶ 53 Under the plain-error doctrine, we may consider an unpreserved error where, in
relevant part, “a clear or obvious error occurred and that error is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of
the closeness of the evidence.” People v. Birge, 2021 IL 125644, ¶ 24. The defendant bears the
burden of persuasion under either prong of the doctrine. Id. Generally, the first step of plain-error
review requires this court to determine whether a clear or obvious error occurred. People v.
Sebby, 2017 IL 119445, ¶ 49. Thus, in this instance, we must determine whether the trial court
committed a clear or obvious error in finding defendant’s criminal conduct proximately caused
the economic loss at issue—i.e., (1) the ambulance bill and (2) the cost to repair the property
damage caused by A.M.M.’s discharge of a firearm.
¶ 54 Section 5-5-6 of the Code of Corrections (730 ILCS 5/5-5-6 (West 2016))
provides that in “all convictions for offenses in violation of *** the Criminal Code of 2012 ***
in which the person received any injury to his or her person or damage to his or her real or
personal property as a result of the criminal act of the defendant, the court shall order
restitution.” Subsection (b) of section 5-5-6 explains how the trial court is to fix the amount of
restitution to be paid: “the court shall assess the actual out-of-pocket expenses, losses, damages,
and injuries suffered by the victim named in the charge and any other victims who may also have
suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same
criminal conduct of the defendant.” Id. § 5-5-6(b). We will not reverse a restitution order absent
an abuse of discretion. People v. Clausell, 385 Ill. App. 3d 1079, 1080 (2008).
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¶ 55 “[T]he principal of proximate cause applies to both [civil and criminal] cases.
Causal relation is the universal factor common to all legal liability.” (Internal quotation marks
omitted.) People v. Hudson, 222 Ill. 2d 392, 401 (2006). “The term ‘proximate cause’ describes
two distinct requirements: cause in fact and legal cause.” Id. “ ‘Cause in fact’ is established
where there is reasonable certainty that the injury would not have occurred ‘but for’ the
defendant’s conduct or where a defendant’s conduct was a ‘substantial factor’ in bringing about
the harm.” Stanphill v. Ortberg, 2018 IL 122974, ¶ 34. Legal cause, on the other hand, involves a
question of foreseeability. Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 24. “Courts ask
whether the injury is the type of injury that a reasonable person would see as a ‘likely result’ of
his or her conduct, or whether the injury is so ‘highly extraordinary’ that imposing liability is not
justified.” Id. “The question is one of policy—How far should a defendant’s legal responsibility
extend for conduct that did, in fact, cause the harm?” City of Chicago v. Beretta U.S.A. Corp.,
213 Ill. 2d 351, 395 (2004).
¶ 56 Here, we agree with defendant that clear error occurred as a result of the trial
court finding defendant’s criminal conduct proximately caused the economic loss at issue. In its
argument, the State asserts defendant “engaged in a pattern of systemic [sic] mental and sexual
abuse over the course of months against A.M.M.” and “engaged in a horrific pattern of
manipulation so that he could achieve his abusive desires.” For example, the State points to the
fact that A.M.M. discovered defendant with a noose around his neck just days before she died by
suicide. The State further highlights that “A.M.M. spent much of her suicide letter to defendant
belittling herself and apologizing for what she did with Brandon.” Essentially, the State argues
we should consider the entirety of defendant’s relationship with A.M.M., and not just the
unlawful sexual contact, to conclude that defendant’s conduct was likely to result in A.M.M.
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dying by suicide. However, this conduct referenced by the State was not part of the criminal act
for which defendant was convicted. Importantly, in assessing whether restitution is proper, a
court may only consider a defendant’s criminal conduct for which he was convicted. See 730
ILCS 5/5-5-6(b) (West 2016).
¶ 57 The criminal conduct for which defendant was convicted consisted of “knowingly
committ[ing] an act of sexual penetration on a minor, *** who at the time of the offense was at
least 13 years of age but under 17 years of age,” by “plac[ing] his penis inside the vagina of
A.M.M.” See 720 ILCS 5/11-1.60(d) (West 2016). This is the only conduct we may consider in
determining whether the restitution ordered by the trial court was proper. The State has failed to
cite any authority holding that unlawful sexual contact by a defendant may be considered the
proximate cause of a victim’s subsequent suicide. Indeed, in the civil realm, the general rule is
that “suicide is unforeseeable as a matter of law” and “the plaintiff bears a heavy burden of
pleading and proving facts that would overcome application of the rule.” Turcios, 2015 IL
117962, ¶ 31. Here, the State did not meet its burden of proving proximate cause. Accordingly,
we find the court committed second-prong plain error in finding defendant’s criminal conduct
proximately caused the economic loss at issue, and we remand with directions that the court
vacate the restitution award. See, e.g., People v. McCormick, 332 Ill. App. 3d 491, 499 (2002)
(vacating improper restitution order under the second prong of the plain-error doctrine).
¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the trial court’s judgment in part, reverse it in
part, and remand with directions.
¶ 60 Affirmed in part and reversed in part; cause remanded with directions.
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