                                                                                      FILED
                                      2015 IL App (4th) 140106                      December 21, 2015
                                                                                       Carla Bender
                                            NO. 4-14-0106                           th
                                                                                   4 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
PAUL D. SHAW,                                  )     No. 13CF231
           Defendant-Appellant.                )
                                               )     Honorable
                                               )     Thomas J. Difanis,
                                               )     Judge Presiding.
______________________________________________________________________________

                JUSTICE HARRIS delivered the judgment of the court, with opinion.
                Justice Appleton concurred in the judgment and opinion.
                Justice Steigmann specially concurred, with opinion.

                                               OPINION

¶1              A jury found defendant, Paul D. Shaw, guilty of attempt (criminal sexual assault)

(720 ILCS 5/8-4(a), 11-1.20(a)(1) (West 2012)) and the trial court sentenced him to 30 years in

prison. Defendant appeals, arguing (1) the court erred by failing to conduct an independent in-

quiry into his fitness prior to trial and to sua sponte raise the issue of fitness at trial or sentencing,

(2) defense counsel provided ineffective assistance by failing to request a fitness examination at

trial or prior to sentencing, and (3) the court improperly failed to investigate defendant's ineffec-

tive-assistance-of-counsel claims pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d

1045 (1984). We affirm.

¶2                                        I. BACKGROUND
¶3              On February 8, 2013, the State charged defendant with two counts of criminal

sexual assault (720 ILCS 5/11-1.20(a)(1), (a)(2) (West 2012)) (counts I and II); two counts of

aggravated criminal sexual abuse (720 ILCS 5/11-1.60(a)(6) (West 2012)) (counts III and IV);

and two counts of attempt (criminal sexual assault) (720 ILCS 5/8-4(a), 11-1.20(a)(1), (a)(2)

(West 2012)) (counts V and VI). Ultimately, counts II, III, IV, and VI were dismissed on the

State's motion and defendant's trial proceeded only on counts I and V. With respect to count I,

charging defendant with criminal sexual assault, the State specifically alleged defendant "com-

mitted an act of sexual penetration by the use of force with [the victim, E.B.,] in that [he] pene-

trated [E.B.'s] vagina with his finger. In connection with count V, charging defendant with at-

tempt (criminal sexual assault), the State alleged that, with the intent to commit the offense of

criminal sexual assault, defendant "performed a substantial step toward the commission of that

offense[,] in that he, by the use of force, tried to put his penis in [E.B.'s] mouth."

¶4              On April 12, 2013, prior to defendant's trial, defense counsel filed a motion for

appointment of a psychiatrist pursuant to section 104-11(b) of the Code of Criminal Procedure of

1963 (Code) (725 ILCS 5/104-11(b) (West 2012)). Counsel alleged he had a bona fide doubt as

to defendant's fitness and requested the trial court appoint a psychiatrist to examine defendant.

On April 17, 2013, the court entered an order, appointing Dr. Lawrence Jeckel to examine de-

fendant.

¶5              On May 17, 2013, a report authored by Dr. Jeckel was filed with the trial court.

With respect to defendant's mental health history, Dr. Jeckel noted that defendant reported being

"hospitalized *** for one year and five months in 1993 and prescribed clonidine, lithium[,] and

fluoxetine (Prozac) for depression and anger. The next year, he was hospitalized for two years


                                                 -2-
and five months ***." Additionally, he stated jail records showed that, on April 25, 2013, de-

fendant "was observed to be acting strangely; he was frequently masturbating and exposing him-

self in general population." On examination, Dr. Jeckel noted defendant "answered questions

promptly and appropriately." He found defendant was also "often vague and rambling at times,

but he could be easily redirected." Dr. Jeckel further stated as follows:

               "[Defendant] did not appear to be responding to internal stimuli.

               There was no evidence of looseness of associations or flight of

               ideas. Thoughts, again, were somewhat tangential and rambling,

               but he could clarify and be more concise if prompted. When he

               tried to defend himself against the [deoxyribonucleic acid (DNA)]

               evidence, he became more vague and more rambling. He denied

               current hallucinations, delusions, ideas of reference, ideas of influ-

               ence or paranoid ideation."

¶6             Dr. Jeckel diagnosed defendant with "History of Psychotic Disorder, NOS";

"Probable Depressive Disorder, NOS"; and "Antisocial Personality Disorder." Nevertheless, he

opined defendant was fit to stand trial, finding defendant was "able to understand the nature and

purpose of the proceedings against him and [could] assist his attorney in his defense." As a basis

for his opinion, Dr. Jeckel stated he found defendant "to be relatively clear and coherent" and

that he did not observe any evidence of psychosis. Further, he noted defendant appropriately an-

swered questions about the functions of the various participants in a court of law. Ultimately,

Dr. Jeckel asserted he "did not find any evidence of a severe mental illness that would prevent

[defendant] from working with his attorney."


                                                -3-
¶7             After the filing of Dr. Jeckel's report, no further action was taken regarding the

issue of defendant's fitness until August 30, 2013, when defense counsel filed a motion for a fit-

ness hearing pursuant to section 104-16 of the Code (725 ILCS 5/104-16 (West 2012)). He al-

leged he had recently spoken with defendant and believed defendant's mental health had deterio-

rated. Counsel asserted he continued to have a bona fide doubt as to whether defendant truly un-

derstood the nature and purpose of the proceedings against him and he believed defendant was

unable to assist in his defense. He requested the trial court conduct a hearing to determine the

issue of defendant's fitness.

¶8             On September 4, 2013, the parties appeared before the trial court in connection

with defense counsel's motion. Counsel reasserted his belief that defendant's mental condition

had deteriorated since defendant was evaluated by Dr. Jeckel. In response, the trial judge stated,

"[t]hat would not, quite frankly, surprise me." Ultimately, the court ordered a second fitness ex-

amination and appointed Dr. Albert Lo to examine defendant.

¶9             On October 21, 2013, a report authored by Dr. Lo was filed with the trial court.

Dr. Lo noted defendant reported a past medical history that included having no memory between

the ages of 8 and 11 due to being hit by a truck. Defendant also reported a previous psychiatric

history that included treatment with clonidine, lithium, and Prozac and admittance to a psychiat-

ric hospital. On examination of defendant, Dr. Lo noted as follows:

               "[Defendant] was wearing typical jail clothing and appeared to be

               mostly cooperative during the interview. At times he was difficult

               to converse with, as he would go into long rambling sentences

               which did not seem to contain a great deal of information. As an


                                              -4-
               example, he stated to me that 'a person considered charged for vio-

               lation of suspicion failed at a description, that's what they had did.

               That what they had witness, actually they see other guys[.'] [De-

               fendant] at times would become irritated during the interview, but

               was mostly cooperative. The irritability appeared to center around

               his legal issues and at times when I attempted to discuss the legal

               situation, he would become more animated and speak long sen-

               tences that didn't make sense."

With respect to defendant's speech, Dr. Lo specifically found defendant to be "mostly coherent

with no abnormalities in rate or tone." However, he reiterated that "at times" defendant spoke

"in a mannerism where he [said] a great deal about nothing in sentences that [did] not make a

great deal of sense, but [did] not appear to be part of a psychotic disorder."

¶ 10           Dr. Lo further noted that defendant had an extensive history of legal difficulties

and substance abuse. He stated jail mental health workers had numerous difficulties with de-

fendant, including that he compulsively masturbated in front of other inmates. Jail personnel

were "concerned about mental illness" and had "also notice[d] the same odd manner of speech at

times." According to Dr. Lo, defendant reported that he was paranoid, suspicious, and "doesn't

trust 'any of these people.' " Nevertheless, Dr. Lo found defendant was fit to stand trial, in that

defendant was able to understand the nature and purpose of the legal proceedings against him.

Dr. Lo stated as follows:

               "[Defendant] is able to discuss the function of a Judge, Jury, and

               the difference between a bench trial and a jury trial. He is also


                                                 -5-
               able to discuss the function of an attorney and the difference in

               [the] types of pleas of guilty and not guilty. He understands the

               meaning of sentencing, probation[,] and other legal terms, leading

               me to believe he is able to understand the legal proceedings and

               charges against him. He does express some suspicion about his at-

               torney. He expresses some distrust and makes some demands that

               his attorney follow his instructions in regards to his case. They do

               not appear to be psychotic requests, but he appears to be unreason-

               able in the expectations of what an attorney can do for him."

Ultimately, Dr. Lo set forth his diagnoses as "Marijuana Abuse"; "Rule out Mood Disorder[,]

NOS"; "Antisocial Personality Disorder"; and "Multiple Physical Complaints."

¶ 11           The record reflects defendant's case was set for trial on November 18, 2013. That

day, the parties appeared before the trial court and initially addressed the issue of defendant's fit-

ness. The following colloquy occurred between the court, defense counsel, and the State:

                       "THE COURT: All right. So Mr. Vargas [(defense attor-

               ney)], you did get the report from Dr. Lo dated October 9th?

                       MR. VARGAS: Yes, Judge.

                       THE COURT: And you got yours, Mr. Lozar [(assistant

               State's Attorney)]?

                       MR. LOZAR: Yes, Judge, and I stipulate to the contents.

                       THE COURT: And Mr. Vargas, you would stipulate that if

               Dr. Lo were called to testify, he would testify as set forth in his re-


                                                -6-
               port dated October 9th?

                       MR. VARGAS: Yes, Judge. Further, I've gone I think

               above and beyond. The court has given me great leeway to make

               sure that my client is fit, so—

                       THE COURT: All right.

                       MR. VARGAS: He has been examined by two different

               doctors.

                       THE COURT: Mr. Lozar, the same stipulation?

                       MR. LOZAR: Yes, Your Honor.

                       THE COURT: We will show based upon the evidence pre-

               sented, the court finds the defendant is now fit to plead and/or

               stand trial."

The court's November 18, 2013, docket entry states: "Parties stipulate to the Dr. Lo finding the

Defendant FIT to stand trial."

¶ 12           At trial, the State presented evidence that E.B. spent the night at a friend's apart-

ment after attending a party there and becoming intoxicated. She awoke to a man trying to re-

move her clothes. E.B. testified she struggled with the man and tried to resist but he removed

her shorts and put his finger in her vagina. She also recalled the man tried to force her to give

him oral sex. The following day, E.B. reported the incident and underwent a sexual assault ex-

amination. Evidence was collected, including E.B.'s underwear. The State further presented ev-

idence that forensic testing revealed the presence of semen on E.B.'s underwear, which matched

defendant's DNA profile.


                                                 -7-
¶ 13           Against defense counsel's advice, defendant elected to testify on his own behalf.

Upon questioning by his counsel, defendant provided his name and age, and he identified himself

as a resident of Champaign County. Counsel next asked defendant what he wanted to tell the

jury. Defendant responded with a lengthy narrative statement, which was largely rambling and

nonsensical.

¶ 14           After the parties finished presenting evidence but prior to closing arguments, de-

fense counsel informed the trial court that he wanted to bring a matter to the court's attention.

The following colloquy then occurred between defense counsel and the court:

                        "MR VARGAS: My client has indicated that he would like

               a different attorney at this time. I've explained to him that it's a lit-

               tle too—a day late and a dollar short, so to speak, but I told him I

               would bring it to the court's attention.

                        THE COURT: Well, at this point, [defendant], we are to

               the end of the trial, and I am not going to—it would be impossible

               to have another attorney appointed to represent you even if I was

               so inclined. The only way that would be done—well, it's not going

               to be done. So, I understand the request, and the request is de-

               nied."

On November 20, 2013, the jury returned a verdict, finding defendant guilty of attempt (criminal

sexual assault).

¶ 15           On December 17, 2013, defendant filed a posttrial motion for acquittal, or in the

alternative, a new trial, raising arguments not at issue on appeal. On December 27, 2013, the tri-


                                                 -8-
al court denied defendant's motion and conducted his sentencing hearing. During the hearing,

defendant made the following statement on his own behalf:

                       "Due to the fact that it was not the area pretty much the

               time around where it might have been some events that it might

               been just you a little bit too early to say that anything happened, as

               such as it is. And after that, it pretty much was just something that

               was just going by. But due to the fact that it been areas that I

               probably at, been just walking away and probably not had seen the

               individual, not even tentative go to the area or disturb anyone, it

               was just some things that I was just dealing with, as far as me just

               traveling somewhere.

                       And as far as being to the state of mind of being to the fact,

               like, I consider myself not to be issues that I can definitely work

               on, as—as it go on and it's being discussed amongst the Court, or

               you know, whatever decision that is, then that's what I'm able to

               do.

                       I—I think the lower range, as my attorney had asked for, is

               definitely the situation that I need to be for, so."

Ultimately, the court sentenced defendant to 30 years in prison.

¶ 16           On January 8 and 21, 2014, pro se letters from defendant were filed. In his corre-

spondence, which consisted of four handwritten pages, defendant requested an appeal, resentenc-

ing, and a new trial. The record reflects his pro se letters were rambling and difficult to under-


                                                 -9-
stand. In a letter filed January 8, 2014, defendant stated, in part: "I was not the person who

commit this crime and was held early befor [sic] it allgely [sic] happen it was misused in court

on several court dates to argue improper counsel." In a second pro se letter filed on January 8,

2014, defendant stated: "I ask for new trial it was improper handling through the court." Finally,

in correspondence filed January 21, 2014, defendant stated, in part, as follows: "I ask reviewing a

court date arguing a prolific argument from a attorney to a client."

¶ 17           On January 22, 2014, defendant's counsel filed a motion to reconsider, arguing

defendant's sentence was excessive. On February 10, 2014, the trial court denied the motion.

¶ 18           This appeal followed.

¶ 19                                       II. ANALYSIS

¶ 20                                   A. Defendant's Fitness

¶ 21                             1. Defendant's Fitness Prior to Trial

¶ 22           On appeal, defendant first argues his fitness hearing failed to meet minimal due

process requirements. Specifically, he contends the trial court erred by simply accepting the par-

ties' stipulations with respect to Dr. Lo's report rather than conducting an independent inquiry

into whether he was fit to stand trial. Defendant asks this court to remand the matter for a new

fitness hearing and, if necessary, a new trial.

¶ 23           Initially, we note defendant acknowledges that he failed to preserve this issue for

appellate review. However, he asserts, and we agree, that the issue may be reviewed for plain

error. See People v. Gipson, 2015 IL App (1st) 122451, ¶ 28, 34 N.E.3d 560 (stating a defend-

ant's fitness for trial involves a fundamental right and "alleged errors concerning fitness may be

reviewed under the plain error doctrine").


                                                  - 10 -
¶ 24           Due process bars the prosecution of a defendant who is unfit to stand trial. People

v. Holt, 2014 IL 116989, ¶ 51, 21 N.E.3d 695. "A defendant is presumed to be fit" but will be

deemed "unfit if, because of his mental or physical condition, he is unable to understand the na-

ture and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10

(West 2012).

¶ 25           The Code provides that the trial court "shall conduct a hearing to determine the

issue of the defendant's fitness within 45 days of receipt of the final written report of the person

or persons conducting the examination." 725 ILCS 5/104-16(a) (West 2012). "On the basis of

the evidence before it, the court *** shall determine whether the defendant is fit to stand trial or

to plead." 725 ILCS 5/104-16(d) (Wet 2012). "Normally, a trial court's decision that a defend-

ant is fit to stand trial will not be reversed absent an abuse of discretion." People v. Contorno,

322 Ill. App. 3d 177, 179, 750 N.E.2d 290, 292 (2001). "However, because this issue is one of

constitutional dimension, the record must show an affirmative exercise of judicial discretion re-

garding the determination of fitness." Contorno, 322 Ill. App. 3d at 179, 750 N.E.2d at 292.

When assessing a defendant's fitness, the trial court "should be active, not passive." Gipson,

2015 IL App (1st) 122451, ¶ 29, 34 N.E.3d 560 (citing People v. Thompson, 158 Ill. App. 3d

860, 865, 511 N.E.2d 993, 996 (1987)).

¶ 26           "A trial court's determination of fitness may not be based solely upon a stipulation

to the existence of psychiatric conclusions or findings." Contorno, 322 Ill. App. 3d at 179, 750

N.E.2d at 292. "However, where the parties stipulate to what an expert would testify, rather than

to the expert's conclusion, a trial court may consider this stipulated testimony in exercising its

discretion." Contorno, 322 Ill. App. 3d at 179, 750 N.E.2d at 292. "The distinction between


                                               - 11 -
proper and improper stipulations, however, is a fine one." Gipson, 2015 IL App (1st) 122451,

¶ 30, 34 N.E.3d 560. "The ultimate decision as to a defendant's fitness must be made by the trial

court, not the experts" and "[a] trial court must analyze and evaluate the basis for an expert's

opinion instead of merely relying upon the expert's ultimate opinion." Contorno, 322 Ill. App.

3d at 179, 750 N.E.2d at 292-93. "Where the trial court's determination is based on not only

stipulations, but on the court's review of a psychological report and the court's own observations

of the defendant, due process is generally satisfied." Gipson, 2015 IL App (1st) 122451, ¶ 30, 34

N.E.3d 560.

¶ 27           In People v. Lewis, 103 Ill. 2d 111, 468 N.E.2d 1222 (1984), the supreme court

addressed the issue of proper and improper stipulations in the context of a fitness hearing. There,

the court reviewed two consolidated appeals in which the circuit courts found the defendants in-

volved had been restored to fitness based on stipulated evidence. Lewis, 103 Ill. 2d at 113-14,

468 N.E.2d at 1223-24. In one case, the parties stipulated that a psychiatrist had examined the

defendant and, if called as a witness, "would testify that he had examined [the] defendant and,

based upon his examination, [the] defendant was now mentally fit for trial, able to understand the

nature of the charges pending against him, and able to cooperate with counsel in his own de-

fense." Lewis, 103 Ill. 2d at 113, 468 N.E.2d at 1223. In the second case, the parties similarly

stipulated that a psychiatrist would testify that he examined the defendant and, after observing

and interviewing the defendant opined " 'that the defendant is mentally fit to stand trial and that

he understands the nature of the charges pending against him, the purpose of the proceedings,

and that he is able to cooperate with counsel in his own defense.' " Lewis, 103 Ill. 2d at 114, 468

N.E.2d at 1224.


                                              - 12 -
¶ 28           Ultimately, the supreme court determined "that the circuit courts did not err in

considering the stipulations regarding the psychiatrists' opinions as to [the] defendants' fitness."

Lewis, 103 Ill. 2d at 116, 468 N.E.2d at 1225. In so holding, it distinguished cases involving

stipulations "to the conclusion that the defendant had 'recovered from said insanity to the degree

that he can now co-operate with his counsel and can enter a plea.' [Citation.]" and "to 'the find-

ings of the two psychiatrists as contained in the reports and *** to the fact that the defendant is

fit for trial.' [Citation.]" Lewis, 103 Ill. 2d at 115-16, 468 N.E.2d at 1225. The court noted that,

in the case before it, "[t]he stipulations were not to the fact of fitness, but to the opinion testimo-

ny which would have been given by the psychiatrists. Upon considering these stipulations and

personally observing defendants, the circuit court could find defendants fit, seek more infor-

mation, or find the evidence insufficient to support a finding of restoration to fitness." Lewis,

103 Ill. 2d at 116, 468 N.E.2d at 1225.

¶ 29            The State maintains that, pursuant to Lewis, the trial court in the instant case ap-

propriately relied on stipulated evidence to find defendant fit to stand trial. We agree.

¶ 30           The record shows that, on November 18, 2013, immediately prior to defendant's

trial, the trial court and the parties addressed the issue of defendant's fitness. The court asked the

parties if they "would stipulate that if Dr. Lo were called to testify, he would testify as set forth

in his report dated October 9th." Both the State and defendant's counsel stated they would and

no further evidence was offered or presented as to the issue of fitness. The court then stated that

it found defendant fit to stand trial "based upon the evidence presented." We find the stipulations

made by the parties and accepted by the court were proper as the record reflects they were based

on the opinion testimony Dr. Lo would have given if called to testify rather than solely his ulti-


                                                - 13 -
mate conclusion that defendant was fit to stand trial. The court was free to rely on the parties'

proper stipulations—the only evidence presented as to defendant's fitness—when exercising its

discretion and determining whether defendant was fit to stand trial.

¶ 31           On appeal, defendant points to the trial court's November 18, 2013, docket entry,

which stated the "[p]arties stipulate to the Dr. Lo finding the Defendant FIT to stand trial," as

providing support for his position. He argues the docket entry evidences the lack of independent

judicial analysis by the court with respect to the issue of fitness. We disagree and find the court's

actual comments in open court present a more comprehensive and reliable reflection of the

court's considerations and exercise of its discretion.

¶ 32           Based on the circumstances presented here, we find the trial court committed no

error in finding defendant fit to stand trial. The record reflects the trial court relied on proper

stipulations as to the psychiatric expert's opinion testimony rather than the expert's ultimate con-

clusions. Thus, the court appropriately exercised its discretion and independent judgment when

addressing the issue of defendant's fitness for trial. We find the cases cited by defendant are dis-

tinguishable from the facts presented in this case and his argument is without merit.

¶ 33                   2. Defendant's Fitness During Trial and Sentencing

¶ 34           On appeal, defendant also raises additional issues with respect to his fitness dur-

ing his trial and sentencing. Specifically, he argues that he became incomprehensible during his

trial and sentencing, evidencing a deterioration of his mental condition and raising a bona fide

doubt as to his continued fitness. As a result, he maintains the trial court erred by failing to sua

sponte order a fitness examination and his trial counsel was ineffective for not requesting a fur-

ther fitness examination. With respect to these additional contentions, defendant asks this court


                                                - 14 -
to vacate his conviction and remand for a new trial.

¶ 35           "[A]lthough any party may raise the issue of a defendant's fitness to stand trial at

an appropriate time, whenever a bona fide doubt of the defendant's fitness arises, the trial court

must sua sponte order a determination of the defendant's fitness before proceeding further."

People v. Nichols, 2012 IL App (4th) 110519, ¶ 31, 979 N.E.2d 1002. "Factors relevant to de-

termining whether a bona fide doubt of the defendant's fitness exists include the rationality of the

defendant's behavior and demeanor at trial, any prior medical opinions on the defendant's fitness,

and defense counsel's representations concerning the defendant's competency." Nichols, 2012 IL

App (4th) 110519, ¶ 32, 979 N.E.2d 1002. "Whether a bona fide doubt of the defendant's fitness

exists is a matter within the trial court's discretion." Nichols, 2012 IL App (4th) 110519, ¶ 31,

979 N.E.2d 1002. On review, we will reverse a defendant's conviction and remand for a new

trial only when "the trial court abused its discretion in failing to act on a bona fide doubt of the

defendant's fitness." Nichols, 2012 IL App (4th) 110519, ¶ 31, 979 N.E.2d 1002.

¶ 36           Additionally, to establish a claim for ineffective assistance of counsel, a defendant

must show "both that his attorney's performance was deficient and that he was prejudiced as a

result of the deficient performance." People v. Tapscott, 386 Ill. App. 3d 1064, 1078, 899

N.E.2d 597, 610 (2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). "The fail-

ure to establish either prong is fatal to a defendant's claim" and "[a] court need not consider

whether counsel's performance was deficient before examining the prejudice suffered by the de-

fendant." Tapscott, 386 Ill. App. 3d at 1078, 899 N.E.2d at 610.

¶ 37           Further, to establish that he was prejudiced when arguing that his counsel was in-

effective for failing to seek a fitness hearing, a "defendant 'must demonstrate that facts existed at


                                               - 15 -
the time of his trial which raised a bona fide doubt of his ability to understand the nature and

purpose of the proceedings and to assist in his defense.' " Tapscott, 386 Ill. App. 3d at 1079, 899

N.E.2d at 610 (quoting People v. Eddmonds, 143 Ill. 2d 501, 512-13, 578 N.E.2d 952, 957

(1991)). "Therefore, defendant must demonstrate that the trial court would have found a bona

fide doubt of his fitness and ordered a fitness hearing had defense counsel requested it under the

circumstances presented." Tapscott, 386 Ill. App. 3d at 1079, 899 N.E.2d at 610.

¶ 38           Here, in arguing that his mental health had further deteriorated after Dr. Lo's

evaluation, defendant primarily relies on his trial testimony, which occurred less than two

months after Dr. Lo's October 9, 2013, report, and his statement in allocution at sentencing,

which occurred less than three months after the date of Dr. Lo's report. Although, in both in-

stances, defendant made statements that, in large part, were rambling and difficult to understand,

we reject defendant's position that his statements reflect a worsening of his mental health. Spe-

cifically, while Dr. Lo and Dr. Jeckel both found defendant fit to stand trial, each doctor made a

point to note that defendant would speak in a manner that was rambling and nonsensical.

¶ 39           In his report, Dr. Lo stated defendant was, at times, "difficult to converse with"

and "would go into long rambling sentences which did not seem to contain a great deal of infor-

mation." He further noted that, when discussing his legal situation, defendant "would become

more animated and speak long sentences that didn't make sense." Dr. Lo reiterated that "at

times" defendant spoke "in a mannerism where he [said] a great deal about nothing in sentences

that [did] not make a great deal of sense, but [did] not appear to be part of a psychotic disorder."

According to Dr. Lo, jail personnel had "also notice[d] the same odd manner of speech at times."

Similarly, months earlier, Dr Jeckel found defendant was "often vague and rambling at times, but


                                               - 16 -
he could be easily redirected." Further, he noted defendant's "[t]houghts *** were somewhat

tangential and rambling, but he could clarify and be more concise if prompted. When he tried to

defend himself against the DNA evidence, he became more vague and more rambling."

¶ 40           In this instance, the manner of speech defendant exhibited at trial and at sentenc-

ing was consistent with the observations of both Dr. Lo and Dr. Jeckel at the time of their respec-

tive fitness evaluations. As a result, the record fails to reflect defendant's mental health changed

in any significant way from the time his fitness for trial was evaluated and the time of his trial or

sentencing. Under these circumstances, the trial court committed no error by failing to sua

sponte order a fitness hearing during the trial and sentencing phases of the underlying proceed-

ings. For the same reasons, defendant failed to establish his counsel's ineffectiveness.

¶ 41                                     B. Krankel Inquiry

¶ 42           Finally, defendant argues on appeal that the trial court failed to inquire into his

pro se ineffective-assistance-of-counsel claims. He maintains he raised ineffective-assistance

claims that the court should have investigated both during his trial and after his sentencing.

¶ 43           "The common law procedure developed in Krankel and subsequent cases is in-

tended to promote consideration of pro se ineffective assistance claims in the trial court and to

limit issues on appeal." People v. Patrick, 2011 IL 111666, ¶ 41, 960 N.E.2d 1114. Pursuant to

Krankel, the following procedure has developed:

               "New counsel is not automatically required in every case in which

               a defendant presents a pro se posttrial motion alleging ineffective

               assistance of counsel. Rather, when a defendant presents a pro se

               posttrial claim of ineffective assistance of counsel, the trial court


                                               - 17 -
               should first examine the factual basis of the defendant's claim. If

               the trial court determines that the claim lacks merit or pertains only

               to matters of trial strategy, then the court need not appoint new

               counsel and may deny the pro se motion. However, if the allega-

               tions show possible neglect of the case, new counsel should be ap-

               pointed." People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631,

               637 (2003).

¶ 44           "[A] pro se defendant is not required to do any more than bring his or her claim to

the trial court's attention ***." Moore, 207 Ill. 2d at 79, 797 N.E.2d at 638. On review, "[t]he

operative concern *** is whether the trial court conducted an adequate inquiry into the defend-

ant's pro se allegations of ineffective assistance of counsel." Moore, 207 Ill. 2d at 78, 797

N.E.2d at 638. A trial court may conduct an adequate inquiry into a defendant's claims by ques-

tioning defense counsel, questioning the defendant, or by relying on its own knowledge of de-

fense counsel's performance. Moore, 207 Ill. 2d at 78-79, 797 N.E.2d at 638. Whether the trial

court conducted a proper Krankel inquiry presents a legal question that is subject to de novo re-

view. People v. Jolly, 2014 IL 117142, ¶ 28, 25 N.E.3d 1127.

¶ 45           In People v. Taylor, 237 Ill. 2d 68, 75-76, 927 N.E.2d 1172, 1176 (2010), the su-

preme court considered whether a defendant's statement at his sentencing constituted a pro se

ineffective-assistance-of-counsel claim that was sufficient to trigger a Krankel inquiry. In find-

ing that it was not, the court initially noted "that nowhere in [the] defendant's statement at sen-

tencing did he specifically complain about his attorney's performance, or expressly state he was

claiming ineffective assistance of counsel." Taylor, 237 Ill. 2d at 76, 927 N.E.2d at 1176. Fur-


                                               - 18 -
ther, the court stated as follows:

               "As the State correctly notes, there is nothing in [the] defendant's

               statement specifically informing the court that [the] defendant is

               complaining about his attorney's performance. Indeed, defendant

               does not mention his attorney. In addition, because of the ram-

               bling nature of [the] defendant's statement, it is amenable to more

               than one interpretation.    For example, according to the State,

               'defendant's statement merely shows regret at not accepting the

               more advantageous plea deal before trial, and not that he rejected

               the offer based upon a material misunderstanding of what sentence

               he faced.' [Citation] (rejecting argument that trial court erred in

               failing to give particular jury instruction, stating: 'If a defendant

               does not articulate his theory *** he cannot reasonably expect the

               trial court, unaided, to divine his intent'). If defendant's statement

               in the case at bar were deemed sufficient to require a Krankel in-

               quiry, few statements would be insufficient. We agree with the

               State that defendant's statement at sentencing was insufficient to

               require such an inquiry." Taylor, 237 Ill. 2d at 77, 927 N.E.2d at

               1177.

¶ 46           Here, the record similarly fails to contain any specific or express complaints by

defendant about his counsel's performance. At trial—after the parties' presentation of evidence

but prior to closing arguments—defendant's counsel informed the trial court that defendant


                                               - 19 -
wanted a different attorney. However, no specific ineffective-assistance-of-counsel claims were

raised at that time and there is nothing in the record to indicate the basis for defendant's desire

for new counsel.

¶ 47           Following his sentencing, defendant pro se also sent letters to the trial court. His

correspondence consisted of four handwritten pages, in which he expressly requested an appeal,

resentencing, and a new trial. Again, defendant's letters fail to contain even a bare claim of inef-

fective assistance of counsel. Although in one sentence he used the phrase "improper counsel"

(stating, "I was not the person who commit this crime and was held early befor [sic] it allgely

[sic] happen it was misused in court on several court dates to argue improper counsel"), his let-

ters are rambling and his meaning is unclear. Further, sentences in which defendant asked for a

new trial based on "improper handling through the court" and "a court date arguing a prolific ar-

gument from a attorney to a client" do not necessarily implicate issues related to his counsel's

representation or performance. Like in Taylor, defendant's statements could be amenable to

more than a single interpretation.

¶ 48           Under the circumstances presented, both defendant's request for new counsel at

trial and the statements made in his postsentencing pro se correspondence were insufficient to

warrant a Krankel inquiry. The trial court committed no error.

¶ 49                                   III. CONCLUSION

¶ 50           For the reasons stated, we affirm the trial court's judgment. As part of our judg-

ment, we grant the State's request that defendant be assessed $75 as costs for this appeal.

¶ 51           Affirmed.




                                               - 20 -
¶ 52           STEIGMANN, J., specially concurring.

¶ 53           Although I fully agree with the majority, I write this special concurrence because

of my concerns about Lewis. This court cannot overrule decisions of the Supreme Court of Illi-

nois. But we can call to that court's attention one of its decisions that we respectfully suggest

requires reconsideration. Thirty years' experience with Lewis has shown that it is unnecessary

and imposes unwarranted costs upon the criminal justice system.

¶ 54           Lewis stands for the proposition that the parties can stipulate to what an expert

would testify, but a trial court may not accept a stipulation regarding a defendant's fitness. Supra

¶¶ 28-29. Specifically, the supreme court in Lewis noted that in the cases before it, the parties

stipulated that if called to the witness stand, the qualified psychiatrists who had examined the

respective defendants would testify that in their opinions, each of the defendants was mentally fit

to stand trial. The supreme court then explained that "[t]he stipulations were not to the fact of

fitness, but to the opinion testimony which would have been given by the psychiatrists. Upon

considering these stipulations and personally observing [the] defendants, the circuit court could

find [the] defendants fit, seek more information, or find the evidence insufficient to support a

finding of restoration to fitness." Lewis, 103 Ill. 2d at 116, 468 N.E.2d at 1225.

¶ 55           In my opinion, the distinction drawn by Lewis between a stipulation that (1) a de-

fendant is fit to stand trial based upon an uncontested psychiatric report and (2) the court may

consider that same psychiatric report in deciding whether defendant is fit to stand trial is a dis-

tinction without a difference, as this very case shows.

¶ 56                            I. PROCEDURAL BACKGROUND




                                                - 21 -
¶ 57             In April 2013, defense counsel sought to have defendant examined by a psychia-

trist, because counsel alleged he had a bona fide doubt as to defendant's fitness to stand trial. In

response, the trial court appointed Dr. Lawrence Jeckel to examine defendant. The following

month, Dr. Jeckel opined in a written report provided to the court and counsel that defendant was

fit to stand trial.

¶ 58             In August 2013, defense counsel again moved for an examination of defendant for

a fitness hearing based on counsel's concern that defendant's mental health had deteriorated. The

court ordered a second fitness examination and this time appointed Dr. Albert Lo. In October

2013, Dr. Lo filed his report with the court and each counsel, in which he opined that although

defendant was paranoid, he was fit to stand trial.

¶ 59             Shortly before defendant's November 2013 trial, the trial court conducted a hear-

ing on the question of defendant's fitness to stand trial. The court asked defense counsel if he

would stipulate that if Dr. Lo were called to testify, he would testify as set forth in his October

2013 report. Counsel responded yes. The prosecutor agreed to the same stipulation, and the

court then stated: "We will show based upon the evidence presented, the court finds the defend-

ant is fit to plead and/or stand trial." Despite what the court said, the docket entry for that date

states the "[p]arties stipulate to the Dr. Lo finding the defendant FIT to stand trial."

¶ 60                     II. THE NEED FOR "MAGICAL INCANTATIONS"

¶ 61             Based upon Lewis, defendant contends that the trial court erred by accepting a

stipulation by the parties that, based upon Dr. Lo's report, defendant was fit to stand trial. At oral

argument before this court, I asked defense counsel to consider the following hypothetical: As-

sume that after noting that the parties stipulated that Dr. Lo would testify as indicated in his re-


                                                - 22 -
port regarding defendant's fitness to stand trial, the trial court asked both the prosecutor and de-

fense counsel if either had any additional evidence to present on the issue of defendant's fitness

to stand trial, and each indicated he did not. And the court says, "Based upon the evidence be-

fore me, I am finding defendant fit." Would that inquiry and statement by the court have satis-

fied the requirements of Lewis and provided due process for defendant? Defense counsel at oral

argument conceded that it would but suggested that these additional remarks by the trial court

were important, in part, because they reflected "independent judicial analysis." I conclude they

are not important and constitute nothing more than a requirement that the court utter "magical

incantations" that provide no additional or meaningful protections for defendant.

¶ 62           The record before us makes absolutely clear that the trial court fully understood at

the November 2013 fitness hearing that neither the State nor defendant had any additional evi-

dence to present on the question of defendant's fitness to stand trial. The sole evidence on point

was Dr. Lo's report. In fact, if this case were the extraordinarily unusual one in which either par-

ty had some evidence to present beside Dr. Lo's report, either attorney could have spoken up at

that hearing to so indicate. Their silence simply reflects what everyone knew: the only evidence

on point would be Dr. Lo's report. No "magical incantations" were needed by the court to

demonstrate that it knew the ultimate decision regarding defendant's fitness was the court's. In-

stead, the court's remarks simply moved the proceedings to the next stage—trial—because (1)

the court knew no further evidence was going to be presented regarding defendant's fitness to

stand trial and (2) in the absence of any additional or contrary evidence, the court was going to

find the defendant fit.




                                                - 23 -
¶ 63            Despite defendant's contention that the parties' stipulation was the only evidence

before the trial court regarding defendant's fitness, the court had in fact the opportunity of ob-

serving defendant on numerous occasions, and, if the court had any further concerns or doubts

about his fitness, it could have (using Lewis' own language) "sought more information" on the

subject. Of course, as the Lewis court wrote, the ultimate issue of fitness was for the trial court,

not experts, to decide, but in the absence of any other evidence, the court was going to accept

Dr. Lo's report and conclude defendant was fit to stand trial. And the court was correct to do so.

¶ 64                               III. THE COSTS OF LEWIS

¶ 65            If this court were to reverse defendant's conviction because of the absence of

"magical incantations" by the trial court, serious costs would be imposed. The victim in this

case, E.B., testified at defendant's November 2013 jury trial that on the day she was sexually as-

saulted, she was an 18-year-old student at the University of Illinois, majoring in animal science.

On that day, she had returned from a spring-break trip to Mississippi, where she had assisted

children with disabilities at a therapeutic horse camp. Because the campus dormitory where E.B.

lived had yet to reopen, she stayed the night at a friend's apartment.

¶ 66            E.B. testified at trial that she awakened to discover a man she had never before

seen trying to get her shorts and underwear off. She succeeded in temporarily stopping his ef-

forts, but he then threw her on the floor and placed his penis on her face as if he was trying to

force her to give him oral sex. As a result of her continuing struggle, the man finally ceased his

efforts and left.

¶ 67            A later medical exam showed bruising to E.B.'s right upper arm. Semen was on

E.B.'s underwear, and DNA extracted from that semen matched defendant.


                                                - 24 -
¶ 68              One can only imagine how difficult and unpleasant it was for E.B. to testify about

these traumatic events at defendant's November 2013 jury trial, the result of which he was con-

victed of attempt (criminal sexual assault) and later sentenced to 30 years in prison. And yet, as

bad as it was for E.B. the first time, defendant contends that she should be forced to go through it

all again because of Lewis. And by the time this case is retried, at least 2 1/2 years will have

passed since E.B. last testified, and surely during that time, she has sought to put these terrible

events behind her. Yet defendant argues that the supreme court's decision in Lewis requires her

to have to relive those terrifying moments and again describe them in a courtroom full of

strangers—a process like tearing the scab off a healing serious wound, but that is in fact much

worse.

¶ 69              And for what?

¶ 70              Because, according to defendant, the trial court did not use "magical incantations"

that would have added nothing and provided no additional protections whatsoever to defendant.

¶ 71              Sometimes the costs of questionable legal decisions are hidden, but that is not so

regarding Lewis. If defendant's argument prevailed, the costs here would be stark and vivid, and

if they continue to be inflicted in similar cases in the future, the judiciary has no one to blame but

itself.

¶ 72                          IV. DEFENDANT'S DUE PROCESS CLAIM

¶ 73              Defendant contends on appeal that the trial court's failure to use the "magical in-

cantations" discussed earlier in this special concurrence deprived him of due process. I emphati-

cally disagree.




                                                  - 25 -
¶ 74           Due process is an important concept, enshrined in our constitution, and part of the

bedrock of those essential rights that any defendant charged in a criminal proceeding may em-

brace to ensure that he receives a fair trial. Calling the absence of the "magical incantations" at

issue in this case a denial of due process demeans and diminishes that important concept.




                                               - 26 -
