FILED

December 8, 2016 Carla Bender NO. 4-14-0801 4th District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County JOHNNIE D. GILLON, ) No. 13CF2096 Defendant-Appellant. ) ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE APPLETON delivered the judgment of the court with opinion. Presiding Justice Knecht and Justice Steigmann concurred in the judgment and opinion.

OPINION ¶1 In December 2013, defendant, Johnnie D. Gillon, pleaded guilty to felony

aggravated assault (720 ILCS 5/12-2(b)(4)(i) (West 2012)) in exchange for the State’s dismissal

of two other pending charges. The trial court accepted defendant’s plea and sentenced him to 30

months’ probation. After defendant allegedly committed two criminal offenses while on

probation, the State filed a petition to revoke defendant’s probation.

¶2 Defendant’s counsel raised a bona fide doubt as to defendant’s fitness, and the

trial court ordered defendant to be examined. Based on the opinion of a psychiatrist, the court

found defendant unfit to stand trial and committed him to the Illinois Department of Human

Services (Department). After the State and defense counsel stipulated defendant had been

restored to fitness based upon the conclusions in the Department’s report, the court found defendant fit to stand trial. The court revoked defendant’s probation and sentenced him to five

years in prison on the original offense.

¶3 Defendant appeals, arguing the trial court erred by (1) relying on the parties’

stipulation he was fit to stand trial instead of making an independent judicial determination on

that issue, (2) not sua sponte raising the fitness issue based upon defendant’s conduct during

subsequent court proceedings, and (3) failing to conduct a Krankel inquiry (see People v.

Krankel,

(1984)) into defendant’s claim, raised at the sentencing hearing, of

counsel’s ineffective assistance.

¶4 I. BACKGROUND

¶5 In December 2013, the State charged defendant with unlawful possession of a

weapon by a felon (720 ILCS 5/24-1.1(a) (West 2012)) (count I), felony aggravated assault (720

ILCS 5/12-2(b)(4)(i) (West 2012)) (count II), and misdemeanor aggravated assault (720 ILCS

5/12-2(a) (West 2012)) (count III). Defendant pleaded guilty to count II and was sentenced to 30

months’ probation. The State dismissed counts I and III as part of the plea agreement.

¶6 On March 7, 2014, the State filed a petition to revoke defendant’s probation,

alleging he committed criminal trespass and assault on February 28, 2014, in violation of the

conditions of his probation. On March 19, 2014, defendant’s appointed counsel filed a motion

for the appointment of a psychiatrist, raising a bona fide doubt as to defendant’s fitness to stand

trial. The trial court granted counsel’s request, appointing psychiatrist Dr. Albert Lo.

¶7 On April 21, 2014, Dr. Lo prepared a report based upon the fitness evaluation of

defendant conducted on an unknown date. Dr. Lo noted defendant’s history of paranoid

schizophrenia and his need for medication. He said defendant was “able to discuss the

differences between pleas of guilty and not guilty” and generally understood the legal system.

-2- However, Dr. Lo noted, as the interview progressed, defendant “became increasingly hostile,

argumentative, and uncooperative.” Dr. Lo believed, due to his behavior, defendant would have

difficulty working with an attorney. In Dr. Lo’s opinion, defendant was “currently able to

understand the nature and purpose of the proceedings against him, but [was] unable to cooperate

with an attorney and assist in providing a proper defense due to his mental illness.” Thus, Dr. Lo

found defendant was currently unfit to stand trial.

¶8 On May 5, 2014, at a fitness hearing, the trial court accepted Dr. Lo’s evaluation

and opinion, and without further evidence or argument from either side, it found defendant unfit

to plead or stand trial. The court ordered defendant placed in the custody of the Department for

evaluation, placement, and treatment.

¶9 On May 22, 2014, the Department prepared a report (filed June 13, 2014, with the

trial court), advising that, pursuant to its preplacement evaluation, conducted on May 16, 2014,

by a licensed clinical social worker, defendant was fit to stand trial. According to the report,

during the evaluation, defendant explained to the evaluator the circumstances pertaining to his

latest criminal behavior with logic and clarity. He admitted that prior to his arrest, he had not

taken his psychotropic medications. According to the evaluator, beginning March 1, 2014, since

defendant had been in jail, he had been given his medication and “ha[d] shown improvements” in

“mood stability and thought processes.” When asked to explain the purpose of the interview,

defendant said: “You have to see if I am fit. I am now.” Based on this evaluation, the Department

determined defendant was fit to stand trial.

¶ 10 On June 30, 2014, the trial court conducted a fitness hearing. The court accepted

the parties’ stipulation to the Department’s report. Neither party produced further evidence, and

both waived argument. The court accepted the report and found defendant was “now fit to stand

-3- trial.” Defendant’s counsel presented the court with an “order for restoration of fitness.” The

parties agreed to set the matter for a hearing on the State’s petition to revoke.

¶ 11 On July 28, 2014, the trial court conducted a hearing on the State’s petition to

revoke defendant’s probation. Elizabeth Porter, store manager of Little Caesars Pizza in Urbana,

testified as the State’s only witness. She said on February 28, 2014, defendant came into the

store and began yelling that Porter owed him a pizza. She said he was cussing at customers.

Porter told defendant she would give him a pizza if he waited outside. Defendant interrupted her

testimony, saying, “She’s lyin’.” The court admonished defendant to not “say anything out

loud.” Porter continued her testimony. She said when she told defendant to wait outside, he

cursed at her, at another employee, and at customers. Porter said she “got in between” defendant

and the customers during the altercation. According to Porter, defendant threatened to hit her and

kill her as they stood face-to-face just inches apart. At that point, the police arrived and escorted

defendant outside.

¶ 12 Defendant testified a police officer had given him money for a pizza. He said a

male employee refused to make him a pizza and came around the counter to where defendant

was standing. The employee “started putting some gloves on his hands tightenin’ them up.” He

told defendant to stop begging for food. He said Porter grabbed the employee by the shirt. He

said Porter told him to go outside so the employee could beat him up. Defendant said he was

afraid to go outside because the employee was “a real big heavyset guy” and was waiting for

him. Porter told him to go outside or go to jail, and that is when the police walked in.

¶ 13 After considering the testimony, the trial court found the State had proved the

allegations in the petition to revoke probation by a preponderance of the evidence. The court

revoked defendant’s probation. After the court announced its ruling, defendant yelled out in

-4- court: “I didn’t do it, Judge. Why don’t you believe? I didn’t do nothin’. Please, ma’am. I didn’t

do nothin’. That lady just came here and lied and you all goin’ to let her lie.”

¶ 14 The trial court noted as follows:

“The record will reflect that [defendant] has become increasingly agitated

as the court made its ruling. He then started yelling out disputing the court’s

ruling and he’s become more and more agitated and—and screaming at this point.

He could be heard through two locked doors as he was being removed. Because

he was so out of control and it’s still apparent that he’s escalating in his degree of

being upset, we have had him removed from the courtroom.”

¶ 15 At the resentencing hearing, the trial court considered the presentence

investigation report, counsels’ recommendations, and defendant’s statement in allocution,

wherein he told the court he did not remember the incident because he was “off [his]

medication.” The court advised defendant of his right to appeal. Defendant stated:

“One more thing. I wasn’t involved with no plea bargains or nothing. I—I

was thinking like, I—I was wondering why come [defendant’s counsel] only

called me one time out of nine months before—and—I didn’t get no plea

bargains, and I didn’t get no—I—I—I would call it a—I’m trying to think of what

you call it, innocent of counsel.”

In response, the court told defendant it was proceeding to sentencing, as any potential offer by

the State is “not something the court becomes involved in.” The court explained its findings

before pronouncing defendant’s sentence. During the court’s explanation, defendant interrupted

several times to dispute the court’s finding or express his promise to do better. Nevertheless, the

court sentenced defendant to five years in prison. This appeal followed.

-5- ¶ 16 II. ANALYSIS

¶ 17 Defendant presents three arguments on appeal. First, defendant claims the trial

court erred when it found him restored to fitness in a “truncated restoration hearing” consisting

only of the conclusory opinion of the Department and the parties’ stipulation thereto. Second,

defendant claims the court erred when it failed to sua sponte reopen the issue of his fitness based

upon his behavior at subsequent proceedings. And third, the court erred in failing to conduct a

Krankel inquiry when defendant questioned his attorney’s failure to adequately communicate

with him. Because we agree with defendant’s first two contentions of error, we need not address

the third, as it is moot.

¶ 18 At the June 30, 2014, fitness hearing, the trial court was presented with (1) the

Department’s report finding defendant fit to stand trial and (2) a proposed order restoring

defendant’s fitness. Both sides stipulated to the Department’s finding of fitness. Defendant

contends the court erred by relying on the parties’ stipulations instead of making an independent

judicial determination. We agree. The court should have either questioned the Department’s

finding at the time of the stipulations, or, after accepting the stipulations, reopened the issue of

defendant’s fitness based upon his behavior in open court.

¶ 19 Initially, we note defendant acknowledges he failed to preserve this issue for our

review. However, he claims, and we agree, the issue may be reviewed for plain error. See People

v. Gipson,

(stating a defendant’s fitness for trial involves a

fundamental right and “alleged errors concerning fitness may be reviewed under the plain error

doctrine”). See also People v. Shaw,

.

¶ 20 “The due process clause of the fourteenth amendment bars prosecution of a

defendant unfit to stand trial.” People v. Holt,

, ¶ 51. A defendant is unfit to

-6- stand trial if a mental or physical condition prevents him from understanding the nature and

purpose of the proceedings against him or assisting in his defense. 725 ILCS 5/104-10 (West

2012). “[W]here a defendant was previously adjudicated to be unfit to stand trial, a presumption

exists that the condition of unfitness remains until the defendant has been adjudicated to be fit at

a valid subsequent hearing.” Gipson,

(citing People v. Greene,

(1981)).

¶ 21 “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,

(2001)

(citing People v. Newell,

(1990)). However, because the issue of fitness

is constitutional in dimension, the record must affirmatively show that the court’s fitness

determination was the product of judicial discretion and judgment. Gipson,

; People v. Cook,

; Contorno,

; Greene,

. In other words, the court may not simply “rubber stamp” an

expert’s ultimate conclusion that a defendant has been restored to fitness. See Contorno,

(“The ultimate decision as to a defendant’s fitness must be made by the trial

court, not the experts.” (citing People v. Bilyew,

(1978))); see also Gipson,

(“[T]he court should be active, not passive, in assessing a

defendant’s fitness.”).

¶ 22 Our supreme court stated “[i]f a defendant is insane and unable to answer for

himself, he certainly is in no position to authorize his counsel to stipulate, nor is counsel

warranted in stipulating, to his restoration [to fitness].” People v. Reeves,

(1952). This is not to say, however, that a trial court may never base its fitness determination

-7- upon a stipulation. As the First District recently noted, “[t]he distinction between proper and

improper stipulations *** is a fine one.” Gipson,

, ¶ 30.

¶ 23 In People v. Lewis,

(1984), our supreme court discussed the

distinction between proper and improper stipulations. That is, the court noted a difference

between the parties stipulating to the fact of fitness and thereby accepting the expert’s opinion

and conclusion as true and correct (see Reeves,

), versus stipulating to the

content of the opinion testimony that would have been presented by the expert had the expert

testified (see Lewis,

). In the latter circumstance, the court could find the

defendant fit, seek more information, or find the evidence insufficient to support a finding of

restoration to fitness. Lewis,

. With this latter and proper stipulation, the

ultimate decision rests with the court, not the experts. Lewis,

.

¶ 24 The Second District discussed the distinction presented in Lewis as follows:

“Where a trial court fails to conduct an independent inquiry into a

defendant’s fitness but, instead, relies exclusively on the parties’ stipulation to a

psychological report finding the defendant fit, the defendant’s due process rights

are violated. [Citations.] However, where a trial court’s finding of fitness is based

not only on stipulations but also on its observations of the defendant and a review

of a psychological report, the defendant’s due process rights are not offended.

[Citations.]” Cook,

.

¶ 25 It is apparent from the record before us the trial court relied solely on the parties’

stipulations in finding defendant had been restored to fitness. The court stated it had indeed

reviewed the Department’s report, but there was no discussion as to the bases or opinions

contained therein. The extent of the fitness hearing was as follows:

-8- “THE COURT: *** [T]his is a fitness determination then.

MS. JESSUP [(defense attorney):] Yes, your Honor.

THE COURT: There was a report that was filed. The last one that I have is

June 13th of 2014. Do you have that report then, Mr. Banach [(assistant State’s

Attorney)]?

MR. BANACH: Your Honor, may I have a moment?

THE COURT: You may. And if you do not have it, we’ll make you a

copy. It was filed June 13th, dated May 22nd.

MR. BANACH: Yes, your Honor, I have the report dated May 22nd.

THE COURT: You have that as well, Ms. Jessup?

MS. JESSUP: Yes, Your Honor.

THE COURT: All right. Then I’ll call that for hearing. Mr. Banach.

MR. BANACH: Your Honor, the State would stipulate to the report from

[the Department] dated May 22nd.

THE COURT: And Ms. Jessup, is that agreeable?

MS. JESSUP: Yes, Your Honor.

THE COURT: All right. We’ll show then that the court has considered

that report. It was authored on May 22nd, 2014, from the Department of Human

Services. Did the State wish further evidence then, Mr. Banach?

MR. BANACH: No, thank you, Your Honor.

THE COURT: Is there any evidence on behalf of the defendant then, Ms.

Jessup?

MS. JESSUP: No, Your Honor.

-9- THE COURT: Did you wish argument then, Mr. Banach?

MR. BANACH: No, thank you.

THE COURT: Ms. Jessup, any argument on behalf of the defendant?

MS. JESSUP: No, thank you, Your Honor.

THE COURT: I have considered that report. It is the determination of the

professionals working with [defendant] that he’s now fit to stand trial, so I do find

that he’s able to assist in his own defense, understands the nature and purpose of

the proceedings, and fit to proceed to trial or plead, able to help his attorney as

well. In that regard then, did you want to set it for further proceeding then, Ms.

Jessup?”

¶ 26 Due to the important constitutional ramifications involved in a restoration

hearing, we find the trial court should have given close consideration to the circumstances of this

particular case. We do not go so far as to find the court should never accept a stipulation at a

restoration hearing. However, in this case, certain circumstances existed which gave rise to

pivotal concerns questioning defendant’s fitness.

¶ 27 First, in general, there should be a high level of judicial scrutiny in a restoration

hearing. The constitutional ramifications and liberty interests at stake justify careful

consideration of the expert’s opinion. Extra precautions may be needed to ensure the bases and

grounds set forth in the expert’s report are justified and satisfactory to the court’s determination.

A potential error in the Department’s restoration finding may subject an otherwise unfit person to

a trial and sentencing. Because the due process clause forbids conviction of a defendant who is

unfit to stand trial (People v. McCallister,

(2000)), the court should take great

care to ensure to its satisfaction the defendant’s fitness has been restored. That is, the court

- 10 - should take steps to ensure the defendant is indeed able to understand the nature of the

proceedings and to assist in his own defense. Cook,

.

¶ 28 Second, the Department’s preplacement evaluation determining defendant was

restored to fitness was conducted less than two weeks after the trial court had declared defendant

unfit to stand trial based upon Dr. Lo’s psychiatric examination. According to the Department’s

report, defendant was evaluated May 16, 2014 (the report was dated May 22, 2014, and filed

with the court on June 13, 2014). To justify this seemingly quick turn of events, the court should

have, on the record, questioned the parties as to how or why defendant had gained fitness in a

matter of days.

¶ 29 Third, the Department’s report was submitted by the “evaluator,” Kimberly A.

Swenka, a licensed clinical social worker, rather than a psychiatrist or a psychologist. It appears

Swenka indeed conducted the evaluation herself and determined respondent was currently fit to

stand trial. The applicable statutory section provides as follows:

“If upon the completion of the placement process[,] the Department of Human

Services determines that the defendant is currently fit to stand trial, it shall

immediately notify the court and shall submit a written report within 7 days. In

that circumstance[,] the placement shall be held pending a court hearing on the

Department’s report.” 725 ILCS 5/104-17(b) (West 2012).

We acknowledge this statutory section does not specifically require the fitness decision be made

by a psychiatrist or a psychologist. However, we note the legislature specifically required the

initial fitness examination to be performed by “one or more licensed physicians, clinical

psychologists, or psychiatrists chosen by the court.” 725 ILCS 5/104-13(a) (West 2012).

Although the statute does not specifically prohibit a licensed clinical social worker from

- 11 - conducting the Department’s pretreatment evaluation, we find, in this particular case, the social

worker’s decision restoring defendant to fitness required the court to perhaps perform a more

thorough analysis than otherwise necessary if presented with an opinion from a psychiatrist or

psychologist.

¶ 30 Finally, defendant’s behavior in proceedings conducted after he had been restored

to fitness should have put the parties and the court on notice as to whether the Department’s

opinion was correct. His later behavior seemed to raise a bona fide doubt again as to his fitness.

It is plausible defendant appeared fit during the Department’s preplacement evaluation, when his

environment was calm and controlled. However, when he later appeared in court and was

subjected to the confrontational environment of a hearing, in the presence of witnesses,

attorneys, and a judge, his mental faculties changed. His paranoid behavior surfaced, as he was

seemingly unable to control his outbursts and agitation. In fact, the trial court had him removed

from the courtroom because “he was so out of control and it’s still apparent that he’s escalating

in his degree of being upset.” Defendant’s behavior during these court proceedings was more

akin to the behavior observed by Dr. Lo during his psychiatric evaluation.

¶ 31 Given the above considerations and the cumulative effect of each upon the other,

we hold the trial court erred in accepting the parties’ stipulations that defendant had been

restored to fitness. In so holding, we are mindful of what our supreme court cautioned some 60

years ago:

“Albeit, in order to avoid the repetition of situations similar to the case at bar[,]

the courts should exercise care to see that restoration proceedings be determined

as directed by statute; that the issue submitted as one of fact be determined by the

jury; and that directed verdicts be sparingly used only where the evidence

- 12 - properly warrants that action. They should not exercise the prerogative of

directing a verdict solely upon the unsupported stipulation, agreement, or plea,

alone, made by the accused or by his counsel.” Reeves,

.

See also People v. Johnson,

(1973).

¶ 32 III. CONCLUSION

¶ 33 Based on the above, we reverse the trial court’s order revoking defendant’s

probation. The cause is remanded for a restoration hearing consistent with this opinion and such

other proceedings as may be appropriate. Likewise, the order of June 30, 2014, restoring

defendant’s fitness is set aside.

¶ 34 Reversed and remanded.

- 13 -