                             2015 IL App (2d) 140955
                                  No. 2-14-0955
                            Opinion filed June 26, 2015
______________________________________________________________________________

                                           IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Lake County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 05-CF-3046
                                       )
PAUL OLSSON,                           ) Honorable
                                       ) Christopher R. Stride,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE ZENOFF delivered the judgment of the court, with opinion.
       Justices Hutchinson and Spence concurred in the judgment and opinion.

                                          OPINION

¶1     Defendant, Paul Olsson, appeals from an order following a hearing, which he refused to

attend, conducted pursuant to sections 104-25(g)(2) and 104-25(g)(2)(i) of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2), (g)(2)(i) (West 2012)).     Defendant argues

that the court improperly waived his presence at the hearing by determining that an affidavit

submitted by a treating psychiatrist complied with section 104-16(c) of the Code (725 ILCS

5/104-16(c) (West 2012)).   He also contends that the court erred when it failed to require the

Department of Human Services’ (Department’s) treatment staff to transport him to court and

conducted the hearing over defense counsel’s objection.   For the reasons that follow, we affirm.

¶2                                    I. BACKGROUND
2015 IL App (2d) 140955


¶3       We outlined the procedural history of this case in People v. Olsson, 2011 IL App (2d)

091351, ¶ 2, and People v. Olsson, 2012 IL App (2d) 110856, ¶ 7.          By way of background,

defendant was charged with sex offenses involving children and was found unfit to stand trial.

Following a discharge hearing (see 725 ILCS 5/104-25(a) (West 2012)), the court found

defendant “not not guilty” of several of the charged offenses and ordered an extended period of

treatment (see 725 ILCS 5/104-25(d) (West 2012)).            At the expiration of that extended

treatment period, the court remanded defendant to the Department for further treatment pursuant

to section 104-25(g)(2) of the Code, “which provides for the potentially long-term commitment of

a criminal defendant who has been found unfit to stand trial and for whom treatment to attain

fitness has been unsuccessful.” Olsson, 2012 IL App (2d) 110856, ¶ 1.

¶4       During the section 104-25(g)(2) period of treatment, defendant’s facility director must

file a typed treatment plan report with the court every 90 days. 725 ILCS 5/104-25(g)(2) (West

2012).    The statute permits the court to order a hearing on its own motion to review the

treatment plan. 725 ILCS 5/104-25(g)(2) (West 2012).          Additionally, the court must set a

hearing every 180 days to make a finding as to whether defendant is “(A) subject to involuntary

admission; or (B) in need of mental health services in the form of inpatient care; or (C) in need of

mental health services but not subject to involuntary admission nor inpatient care.” 725 ILCS

5/104-25(g)(2)(i) (West 2012); see also Olsson, 2012 IL App (2d) 110856, ¶¶ 6, 17.        Although

the court and the parties routinely refer to these proceedings as “(g)(2) hearings,” it is more

accurate to say that, every 90 days, the court has elected to both review the sufficiency of

defendant’s treatment plan on its own motion and hold section 104-25(g)(2)(i) hearings.

¶5       In a treatment plan report dated July 25, 2014, the Department opined that defendant was

fit to stand trial.   Alternatively, the Department believed that defendant was “subject to



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involuntary admission based on his diagnosis of Pedophilia and constitute[d] a serious threat to the

public safety.” The Department has consistently expressed this opinion. See Olsson, 2012 IL

App (2d) 110856, ¶ 10.      The July 2014 report noted that defendant “declines to explain what

specific issues prevent him from being able to assist his attorney but seems to feel that assisting his

attorney would not be in his best interest.” According to the report, defendant “is fully able to

discuss fitness related issues and terms on a rational and coherent level, so long as the counselor

does not attempt to go into the specific aspects of [his] current charges.” The Department

believed that defendant’s “refusal to work with his attorney appears to be a deliberate attempt to

remain Unfit and a legal strategy designed to serve as much of any possible sentence at Elgin

[Mental Health Center], as opposed to prison.”

¶6     On August 4, 2014, the court conducted a treatment plan review and held a hearing

pursuant to section 104-25(g)(2)(i).     Defendant was not present, even though the court had

previously granted the State’s petition for a writ directing the Department to bring him to the

hearing.   The State submitted to the court the affidavit of defendant’s treating psychiatrist, Dr.

Richard Malis.    In his affidavit, Dr. Malis stated the following.       Defendant had refused to

attend hearings since October 2011.       On August 1, 2014, Dr. Malis met with defendant and

asked whether he was willing to be transported to court on August 4.       Defendant responded that

he did not plan to go to court, indicating that he had no main reason for declining to attend and

that his reasons were the same as in the past.   Dr. Malis noted in his affidavit that defendant had

previously stated that motion sickness was one of the reasons why he did not want to be

transported.   When Dr. Malis asked defendant whether this was the reason he was refusing to

attend court, defendant said that it was one factor, but not the main factor.   Dr. Malis then asked

defendant whether he was willing to take medication to alleviate his motion sickness.



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2015 IL App (2d) 140955


Defendant responded that he would take the medication if he were physically forced to attend.

Dr. Malis noted that defendant had previously indicated that he thought that the hearings were a

sham.   Dr. Malis asked defendant whether this was the reason he refused to attend court, and he

once again said that it was one factor, but not the main factor. Defendant told Dr. Malis that he

would not struggle if force were used to bring him to court, but he said that he would go under

verbal protest.   Dr. Malis could not confirm that a medical condition prevented defendant from

being transported to court, despite what defendant had expressed to him.

¶7      The State requested to proceed in defendant’s absence, asserting that Dr. Malis’s affidavit

was filed pursuant to section 104-16 of the Code, which provides the procedure for waiving a

defendant’s right to be present at hearings “on the issue of his fitness.”    725 ILCS 5/104-16(c)

(West 2012). The assistant public defender who represented defendant objected on the basis

that the affidavit did not “meet the criteria set forth in the statute,” presumably section 104-16(c).

Specifically, defense counsel argued that defendant was “just choosing not to be here,” which

counsel did not believe was a proper ground under the statute to waive defendant’s presence.

Defense counsel objected to proceeding in defendant’s absence and moved to continue the matter

until he was present.

¶8      After reviewing Dr. Malis’s affidavit, the court stated: “And again, my position is the

same.   I’m not going to require the Department of Human Services to lay hands on Mr. Olsson,

put him in restraints and force him to attend the hearing.   He’s got a right to attend.   I’m going

to find that the State has satisfied section 725 ILCS 5/104-16(c), and I’m going to waive Mr.

Olsson’s presence.”

¶9      Dr. Malis was the only witness at the hearing.     He testified that defendant was mentally

ill and had been diagnosed with pedophilia.     Defendant had never been treated for pedophilia, a



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factor that Dr. Malis believed increased defendant’s risk of recidivism. Dr. Malis opined that

defendant required inpatient treatment and was “reasonably expected to inflict serious physical

harm upon others in the near future if he was released.” On cross-examination, Dr. Malis

explained that the reason why defendant was not being treated for pedophilia was that “he

refuses to cooperate with evaluation and treatment.” On examination by the court, Dr. Malis

outlined what defendant’s treatment would be if he were to avail himself of treatment.           Dr.

Malis testified that certain aspects of treatment could not be completed without defendant’s

cooperation.

¶ 10   At the conclusion of the evidence, the court expressed its frustration that defendant was

“going to be stuck in this position” until he acquiesced to being treated.   The court encouraged

the Department to revisit the “description of services recommended for treatment,” but noted that

the treatment plan complied with statutory requirements.    In its oral ruling, the court declined to

make a finding as to whether defendant remained unfit to stand trial, stating: “He doesn’t raise

fitness, whether or not he’s fit, so I’m really not in a position to address that piece of it.”

However, the written order, which the court had used in the past, provided, in relevant part:

“[T]he defendant, as evidenced in the Treatment Plan Report and by direct testimony, has not

availed himself of fitness restoration treatment and *** as a result, the evidence does not

establish by a preponderance of the evidence that the [defendant] has become fit.” The court

remanded defendant to the Department for further treatment and set another hearing in 90 days

“in the hope that at some point [defendant] decides to avail himself of treatment.”

¶ 11   Defendant timely appealed, and appellate counsel was appointed.

¶ 12                                     II. ANALYSIS




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¶ 13   Defendant argues that the trial court improperly determined that Dr. Malis’s affidavit

complied with section 104-16(c) of the Code.     He also argues that the court erred when it failed

to require the Department’s treatment staff to transport him to court and conducted the hearing

over defense counsel’s objection.

¶ 14   As an initial matter, the State contends that this appeal is moot but proposes that several

exceptions to the mootness doctrine apply.    “The test for mootness is whether the issues involved

in the trial court no longer exist because intervening events have rendered it impossible for the

reviewing court to grant effectual relief to the complaining party.” In re James W., 2014 IL

114483, ¶ 19.   We disagree that we cannot grant effectual relief to defendant.     In Olsson, 2012

IL App (2d) 110856, ¶¶ 18, 25, we held that it was error for the trial court to proceed with

section 104-25(g)(2)(i) hearings without proper treatment plan reports, and we remanded for a

new hearing. If, as defendant claims, Dr. Malis’s affidavit did not meet statutory requirements,

the appropriate relief would be to remand for a new hearing, as we have done in the past. See

People v. Peterson, 404 Ill. App. 3d 145, 149-50 (2010) (in an appeal following a discharge

hearing, the matter was not moot, because the record did not foreclose the possibility that the

defendant had subsequently been committed pursuant to section 104-25(g)(2), and “[t]he matter

could not be moot while he remained committed”).

¶ 15   We now turn to the merits of the appeal.          Defendant first argues that Dr. Malis’s

affidavit did not comply with section 104-16(c) of the Code, which provides:

       “The defendant has the right to be present at every hearing on the issue of his fitness. The

       defendant’s presence may be waived only if there is filed with the court a certificate stating

       that the defendant is physically unable to be present and the reasons therefor. The




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2015 IL App (2d) 140955


        certificate shall be signed by a licensed physician who, within 7 days, has examined the

        defendant.” 725 ILCS 5/104-16(c) (West 2012).

According to defendant, the affidavit at issue established not that he was “physically unable” to

attend the hearing, but merely that he did not want to attend.

¶ 16    Defendant takes for granted that section 104-16(c), which is part of a section entitled

“Fitness Hearing” (725 ILCS 5/104-16 (West 2012)), applied to the proceedings at issue.

However, as we explain below, because the August 4, 2014, hearing was not a hearing on the issue

of fitness, section 104-16(c) did not apply.

¶ 17    Because the resolution of this appeal requires us to interpret several statutes, our review is

de novo. People v. Stahl, 2014 IL 115804, ¶ 25.         “The primary objective in construing a statute

is to give effect to the intention of the legislature,” and “[t]he best indication of this intent are the

words of the statute.” People v. Waid, 221 Ill. 2d 464, 473 (2006). We review the trial court’s

judgment rather than its reasoning, and we may affirm on any basis supported by the record.           In

re Commitment of Tittelbach, 2015 IL App (2d) 140392, ¶ 23.

¶ 18    In Olsson, 2012 IL App (2d) 110856, ¶¶ 2-6, we provided an overview of some of the

Code’s provisions concerning fitness to stand trial.          In short, before a defendant may be

remanded to the Department pursuant to section 104-25(g)(2), he or she must have been found

unfit to stand trial (see 725 ILCS 5/104-16(d) (West 2012)); been found “not not guilty” of one or

more charges at an innocence-only discharge hearing (see 725 ILCS 5/104-25(a) (West 2012);

Waid, 221 Ill. 2d at 478); undergone an extended period of treatment pursuant to section

104-25(d); remained unfit at the expiration of that extended treatment period; and ultimately been

found to be “subject to involuntary admission under the Mental Health and Developmental




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2015 IL App (2d) 140955


Disabilities Code” (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2012)) or to

“constitute[] a serious threat to the public safety” (725 ILCS 5/104-25(g)(2) (West 2012)).

¶ 19   Once a defendant is remanded to the Department pursuant to section 104-25(g)(2) for a

period up to “the maximum sentence to which the defendant would have been subject had he or she

been convicted in a criminal proceeding” (725 ILCS 5/104-25(g)(2) (West 2012); see also 725

ILCS 5/104-25(g)(4) (West 2012)), the court must hold hearings pursuant to section

104-25(g)(2)(i), which provides:

       “180 days after a defendant is remanded to the Department ***, under paragraph (2), and

       every 180 days thereafter for so long as the defendant is confined under the order entered

       thereunder, the court shall set a hearing and shall direct that notice of the time and place of

       the hearing be served upon the defendant, the facility director, the State’s Attorney, and the

       defendant’s attorney. If requested by either the State or the defense or if the court

       determines that it is appropriate, an impartial examination of the defendant by a

       psychiatrist or clinical psychologist as defined in Section 1-103 of the [Mental Health

       Code] who is not in the employ of the Department *** shall be ordered, and the report

       considered at the time of the hearing. If the defendant is not currently represented by

       counsel the court shall appoint the public defender to represent the defendant at the

       hearing. The court shall make a finding as to whether the defendant is:

                      (A) subject to involuntary admission; or

                      (B) in need of mental health services in the form of inpatient care; or

                      (C) in need of mental health services but not subject to involuntary

               admission nor inpatient care.




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2015 IL App (2d) 140955


         The findings of the court shall be established by clear and convincing evidence and the

         burden of proof and the burden of going forward with the evidence shall rest with the

         State’s Attorney. Upon finding by the court, the court shall enter its findings and an

         appropriate order.” 725 ILCS 5/104-25(g)(2)(i) (West 2012).

The subjects to be addressed at section 104-25(g)(2)(i) hearings “are distinct from the question of

whether the defendant is fit to stand trial.” Olsson, 2012 IL App (2d) 110856, ¶ 18.

¶ 20     Article 104 of the Code also provides for a second type of hearing during the section

104-25(g)(2) period of treatment.      Every 90 days, the facility director must file a typed

treatment plan report containing, among other things, “an opinion as to whether the defendant is

fit to stand trial.”   725 ILCS 5/104-25(g)(2) (West 2012). This court has observed that

“[r]equiring those responsible for the defendant’s treatment to monitor and report on the

defendant’s fitness helps the defense reach an informed decision whether to seek a fitness

hearing.” Olsson, 2012 IL App (2d) 110856, ¶ 22. The State or the defendant may request a

review of the treatment plan every 90 days “to determine whether the plan complies with”

statutory requirements.    725 ILCS 5/104-25(g)(2) (West 2012).      The trial court may also order

a hearing on its own motion to review the treatment plan.         725 ILCS 5/104-25(g)(2) (West

2012).    As noted above, every 90 days, the trial court in the present case reviews the sufficiency

of defendant’s treatment plan and holds hearings pursuant to section 104-25(g)(2)(i).

¶ 21     In Olsson, we explained that “[n]othing in section 104-25(g)(2) requires a fitness hearing

to be held after the trial court makes the threshold finding necessary to remand the defendant to

the Department under that provision.” Olsson, 2012 IL App (2d) 110856, ¶ 18.          We held that,

in the absence of a request for a fitness hearing, the trial court did not have “an independent duty,

as a matter of due process, to review the defendant’s fitness.”        Olsson, 2012 IL App (2d)



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110856, ¶ 22.         Instead, during the section 104-25(g)(2) period, “due process is satisfied if the

defendant is afforded periodic review of fitness upon request.” 1 Olsson, 2012 IL App (2d)

110856, ¶ 22.         To that end, we noted that, where the evidence of guilt is strong, the defense

might pursue a strategy geared toward obtaining care in the least restrictive setting rather than

seeking to establish fitness and “clearing the way for a criminal trial that the defendant would

likely lose.” Olsson, 2012 IL App (2d) 110856, ¶ 24.

¶ 22       According to the plain language of the statute, section 104-16(c), which pertains to a

defendant’s “right to be present at every hearing on the issue of his fitness” (725 ILCS

5/104-16(c) (West 2012)), applies only to fitness hearings.         As explained above, treatment plan

reviews during the section 104-25(g)(2) period of treatment and hearings conducted pursuant to

section 104-25(g)(2)(i) are not fitness hearings.       Therefore, we hold that section 104-16(c) does

not apply to such proceedings. 2

¶ 23       The trial court in the present case did not conduct a hearing on the issue of fitness on

August 4, 2014.         Indeed, the court stated on the record that it was “not in a position to address”

fitness.       We recognize that the written order indicated that defendant “has not availed himself of

fitness restoration treatment and *** as a result, the evidence does not establish by a

preponderance of the evidence that the [defendant] has become fit.”                Nevertheless, neither

           1
               Interestingly, nothing in Article 104 of the Code appears to prohibit the trial court from

raising the issue of fitness on its own initiative during the section 104-25(g)(2) period and setting

the matter for hearing on the issue of fitness.
           2
               We previously reached this conclusion in an unpublished disposition of one of

defendant’s prior appeals.         See People v. Olsson, 2013 IL App (2d) 121418-U, ¶ 11 (summary

order).



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2015 IL App (2d) 140955


defendant nor the State requested a fitness hearing, and the court did not set the matter for such a

hearing. Instead, the purpose of the hearing was to review defendant’s treatment plan and to

determine whether he was “subject to involuntary admission,” “in need of mental health services

in the form of inpatient care,” or “in need of mental health services but not subject to involuntary

admission nor inpatient care.” 725 ILCS 5/104-25(g)(2)(i) (West 2012); see also In re William

H., 407 Ill. App. 3d 858, 866 (2011) (where oral ruling conflicts with written judgment, oral ruling

controls). It appears that the trial court has been using a form order that is not specifically tailored

to section 104-25(g)(2)(i) hearings and treatment plan reviews, but rather more closely resembles

an initial commitment order pursuant to section 104-25(g)(2).            We recently addressed that

problem in a nonprecedential order (People v. Olsson, 2014 IL App (2d) 140635-U, ¶¶ 18, 21), but

the trial court’s August 4, 2014, order preceded our disposition of that appeal. In any event, the

August 4, 2014, hearing was not a “hearing on the issue of [defendant’s] fitness” within the

meaning of section 104-16(c), and Dr. Malis’s affidavit did not have to comply with that

provision.

¶ 24    We stress that we do not dispute that defendant had a right to attend the hearing.

However, defendant rejected the court’s attempts to facilitate his attendance. That distinguishes

the matter from People v. Williams, 312 Ill. App. 3d 232 (2000), in which the defendant was

denied the opportunity to be present at a discharge hearing. Williams, 312 Ill. App. 3d at 235.

The court in that case noted that, “[a]lthough the discharge hearing statute does not specify

whether a defendant has the right to be present, Illinois courts have permitted defendants to be

present [citation] and testify [citation] at discharge hearings.” Williams, 312 Ill. App. 3d at

234-35.




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2015 IL App (2d) 140955


¶ 25   Defendant’s other argument is that the trial court erred when it failed to require the

Department’s treatment staff to transport him to court and conducted the hearing over defense

counsel’s objection. Defendant again incorrectly assumes that his appearance at the hearing

could be waived only pursuant to section 104-16(c).      Additionally, he proposes that, by virtue of

his unfitness, he was “legally incompetent of making legal decisions on his own,” so it was for his

counsel to decide whether it was necessary and in his best interests to appear in court. He insists

that the court should not have overridden his counsel’s request that he be brought to court simply

because he did not want to attend or because he believed that the proceedings were a sham.

Defendant frames this as a question of whether an unfit individual, as opposed to his or her

counsel, should have the ultimate authority to make litigation decisions.

¶ 26   Defendant has forfeited this argument by failing to raise it below. See People v. Cruz,

2013 IL 113399, ¶ 20 (“Generally, an issue not raised in the trial court is forfeited on appeal.”). In

the trial court, the only basis for the motion for a continuance was defense counsel’s incorrect

belief that section 104-16(c) applied. See In re Commitment of Hooker, 2012 IL App (2d)

101007, ¶ 54 (objection made on specific grounds forfeits all other grounds). Further, defendant

does not offer any reason for us to overlook the forfeiture. Therefore, we decline to address

defendant’s second argument, which would require us to consider, in the abstract, the appropriate

balance of decision-making authority between an unfit defendant and his or her attorney during a

section 104-25(g)(2) period of treatment.

¶ 27   Finally, we note that the State argues for the first time on appeal that section 3-806 of the

Mental Health Code (405 ILCS 5/3-806 (West 2012)) applied to the proceedings at issue. That

statute provides:




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               “(a) The respondent shall be present at any hearing held under this Act unless his

        attorney waives his right to be present and the court is satisfied by a clear showing that the

        respondent’s attendance would subject him to substantial risk of serious physical or

        emotional harm.

               (b) The court shall make reasonable accommodation of any request by the

        recipient’s attorney concerning the location of the hearing. If the recipient’s attorney

        advises the court that the recipient refuses to attend, the hearing may proceed in his or her

        absence.

               (c) No inference may be drawn from the recipient’s non-attendance pursuant to

        either subsection (a) or (b) of this Section.” 405 ILCS 5/3-806 (West 2012).

Having rejected defendant’s specific contentions, we need not address the State’s argument on

this point.

¶ 28                                    III. CONCLUSION

¶ 29    The judgment of the circuit court of Lake County is affirmed.

¶ 30    Affirmed.




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