                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Mutesha, 2012 IL App (2d) 110059




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    RONEX MUTESHA, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0059


Filed                      November 19, 2012


Held                       Because defendant’s appeal of a prior unfitness determination was still
(Note: This syllabus       pending when the trial court ruled on his posttrial motions and sentenced
constitutes no part of     him for aggravated battery to a peace officer, the rulings and sentence
the opinion of the court   were vacated as void due to the lack of jurisdiction and defendant’s
but has been prepared      appeal from those decisions was dismissed.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 08-CF-3783; the
Review                     Hon. Christopher R. Stride, Judge, presiding.



Judgment                   Vacated; appeal dismissed.
Counsel on                  Ronex Mutesha, of Oak Park, appellant pro se.
Appeal
                            Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                            and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
                            Justices McLaren and Hutchinson concurred in the judgment and opinion.




                                               OPINION

¶1          Defendant, Ronex Mutesha, appeals his conviction of aggravated battery to a peace
        officer (720 ILCS 5/12-4(b)(18) (West 2008)). He contends that the trial court erred when
        it denied his request to discharge his public defender and represent himself for posttrial
        motions and sentencing. The State contends that the denial was proper because there was a
        bona fide doubt as to his fitness. However, although defendant was fit when the court
        decided the posttrial motions and sentenced him, his appeal of a prior unfitness determination
        was still pending. We determine that, under People v. Elsholtz, 136 Ill. App. 3d 209 (1985),
        because that appeal was still pending, the trial court lacked jurisdiction to rule on the posttrial
        motions and sentence defendant. Accordingly, its orders on those matters are void, we vacate
        the denial of defendant’s posttrial motions and his sentence, and we dismiss the appeal.

¶2                                        I. BACKGROUND
¶3          Defendant was initially represented by public defender Robin Goodstein. He was
        convicted based on an incident outside of the offices of International Profits and Assessments
        (IPA), an organization that he had lost a lawsuit against. Before the incident, defendant made
        phone calls to IPA, stating that he was Jesus Christ and John Kennedy and claiming that a
        judge took a bribe in the lawsuit. Defendant then arrived at IPA and, when approached by
        police officers, he spat on one of them, leading to the aggravated battery charge. A jury later
        found defendant guilty.
¶4          Before trial, defendant, who had a history of psychiatric hospitalizations but was not
        currently medicated, was evaluated by psychologist Karen Chantry of the psychological
        services division of the circuit court. The evaluation was for the purpose of assessing
        psychological functioning and making treatment recommendations. It was not to determine
        fitness to stand trial, and no findings in regard to fitness were made. Chantry found mild
        symptoms of a delusional disorder, but not enough for a full diagnosis. The assessment
        indicated a narcissistic personality disorder. Chantry wrote that defendant could benefit from


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       therapy and psychotropic medications to stabilize his mood and to deal with aspects of his
       thinking that get derailed.
¶5          After trial, the court ordered a presentence investigation report (PSI) that would include
       mental health evaluations. The PSI stated that defendant had a history of mental health
       issues, including four hospitalizations, two of which were involuntary, and that he previously
       was diagnosed as bipolar/manic with psychosis. The PSI also included a follow-up report
       from Chantry, who found that there was an open question of fitness for sentencing.
¶6          On January 14, 2009, Goodstein filed motions for judgment notwithstanding the verdict
       and for a new trial. On January 16, 2009, defendant sent a letter to the trial court, stating that
       his name meant “almighty God understand all” or “Messiah” and that the jail was his
       launching pad for a mission on planet Earth. He wrote that there was evidence that did not
       get shown at trial, that witnesses were coached and permitted to lie, and that God would have
       found him not guilty.
¶7          On February 20, 2009, defendant sought to proceed pro se with Goodstein as backup
       counsel. The court stated that it believed that Goodstein did an excellent job as counsel, and
       it discussed defendant’s allegations with defendant and Goodstein. The court then stated that
       it would not discharge Goodstein or appoint her as standby counsel. However, the court said
       that it would consider defendant’s allegations as a supplement to Goodstein’s motion for
       judgment notwithstanding the verdict. The court then said that it would take everything under
       advisement and hold a hearing, because it appeared that defendant was continuing to prepare
       a motion for the court.
¶8          On March 25, 2009, Goodstein informed the court that defendant had filed a
       “supplemental motion for acquittal” that alleged in part that she had conspired with the State
       to deny him a fair trial. The matter was continued and on April 24, 2009, the court appointed
       Gillian Gosch as conflict counsel under People v. Krankel, 102 Ill. 2d 181 (1984), to address
       defendant’s concerns.
¶9          Defendant’s motion was 129 pages and included lengthy rambling arguments based
       primarily on the history of slavery, the meaning of his name and the names of others,
       multiple religious references, and alleged prophetic visions. On June 5, 2009, after several
       continuances, the trial court told defendant that, after reading the motion, it reviewed the
       mental health evaluations in the PSI. Over objection, the court then found that there was a
       bona fide doubt as to his fitness and ordered a fitness evaluation. On June 26, 2009, the court
       clarified that it had not yet ruled on any of the posttrial motions. Defendant later requested
       the appointment of an outside expert. At a hearing on the matter, defendant stated that he was
       representing himself.
¶ 10        Dr. Anthony Latham conducted the fitness evaluation and concluded that defendant did
       not possess the rational thought necessary to cooperate with his attorney concerning
       mitigation evidence or to appeal the guilty verdict. He recommended that defendant be found
       unfit for sentencing and committed to a mental health center where he could be treated. He
       found a fair probability that defendant could attain fitness within a year.
¶ 11        On September 4, 2009, the fitness hearing was held. Defendant stated that the hearing
       was improper because the judge was not impartial and the prosecutor, doctors, and witnesses

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       would lie. He said that he was not represented by his counsel and that he was representing
       himself. The court told defendant that he could not represent himself when there was a bona
       fide doubt about fitness.
¶ 12       The court ultimately found defendant unfit, and he appealed, contending that the court
       erred when it found him unfit and when it denied his request for an outside expert. While the
       appeal was pending, defendant was restored to fitness. We affirmed, finding that the issue
       of fitness was moot and that defendant was not entitled to an outside expert. People v.
       Mutesha, No. 2-09-1042 (2011) (unpublished order under Supreme Court Rule 23).
¶ 13       After he was restored to fitness, but while the appeal was still pending, Gosch adopted
       the part of defendant’s pro se posttrial motion concerning Goodstein’s failure to call
       witnesses. The posttrial motions were denied, and defendant was sentenced to periodic
       imprisonment, which the court found was already served, and to a term of probation.
       Defendant appealed, contending that he was denied his right to self-representation.

¶ 14                                        II. ANALYSIS
¶ 15       Neither party initially discussed jurisdiction on appeal. However, the trial court decided
       the merits of the posttrial motions and sentenced defendant while the first appeal was still
       pending. We have an independent duty to consider jurisdiction even if the issue is not raised
       by the parties. People v. Lewis, 234 Ill. 2d 32, 36-37 (2009). Thus, we ordered supplemental
       briefs from the parties on the issue of jurisdiction under Elsholtz.
¶ 16       Defendant contends that Elsholtz applies and that, as a result, the trial court lacked
       jurisdiction to rule on his posttrial motions and to sentence him. The State recognizes that
       Elsholtz would require us to vacate the trial court’s orders, but it essentially asks us to
       disapprove of the case.
¶ 17       Our review of whether the trial court properly exercised jurisdiction is de novo. Schlosser
       v. State, 2012 IL App (3d) 110115, ¶ 18. The general rule is that, although the filing of a
       notice of appeal vests jurisdiction in the appellate court, the trial court retains jurisdiction to
       decide matters that are independent of, and collateral to, the judgment on appeal. Moenning
       v. Union Pacific R.R. Co., 2012 IL App (1st) 101866, ¶ 22. “ ‘Collateral or supplemental
       matters include those lying outside the issues in the appeal or arising subsequent to delivery
       of the judgment appealed from.’ ” Id. (quoting Town of Libertyville v. Bank of Waukegan,
       152 Ill. App. 3d 1066, 1073 (1987)). Under facts similar to the facts of this case, we held in
       Elsholtz that the trial of a criminal defendant is not a matter that is independent of, and
       collateral to, an earlier finding of unfitness to stand trial. Elsholtz, 136 Ill. App. 3d at 211.
       Therefore, even despite the defendant’s restoration to fitness, the pendency of an appeal of
       the unfitness finding deprives the trial court of jurisdiction to decide the defendant’s guilt.
       Id.
¶ 18       In Elsholtz, the trial court found the defendant unfit to stand trial. The defendant
       appealed, but while the appeal was pending the trial court ruled that the defendant had been
       restored to fitness, held a bench trial, and found the defendant guilty. At the time of the trial,
       the defendant’s motion to dismiss his appeal was pending in this court, but we had not ruled
       on it. Id. at 209-10.

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¶ 19        We first explained that the trial court had jurisdiction to hold the restoration hearing and
       rule that the defendant was fit, because, where a defendant is expected to become fit with
       treatment, the fitness statute provides for hearings to reexamine fitness at maximum intervals
       of 90 days. Id. at 210; see also 725 ILCS 5/104-20(a) (West 2010) (court must hold a fitness
       hearing within 21 days of a report that defendant has regained fitness). We then analogized
       a trial court’s continued jurisdiction to find a defendant restored to fitness to a trial court’s
       continued jurisdiction, while a child-support order is on appeal, to enter a new child-support
       order in response to changed circumstances. Elsholtz, 136 Ill. App. 3d at 210-11 (citing In
       re Marriage of Petramale, 102 Ill. App. 3d 1049, 1052-53 (1981)). When a matter is
       independent of, and collateral to, the judgment on appeal, the trial court retains jurisdiction
       to hear and decide the matter. Id. at 211. Thus, because a new fitness finding, like a new
       child-support order, is based on new facts, it is independent of, and collateral to, the finding
       of unfitness that is on appeal. See id. at 210-11. However, the determination of guilt, because
       it is the central issue in a criminal matter, is not collateral to the appeal of the finding of
       unfitness. Accordingly, we determined that the trial court lacked jurisdiction to try the
       defendant while the appeal was pending. Id. at 211.
¶ 20        Here, Elsholtz applies. As in Elsholtz, defendant was found unfit, appealed, and was
       restored to fitness while the appeal was pending. The trial court then went on to rule on
       posttrial motions and sentence him. Both of those were central issues in the matter and were
       not collateral to the appeal. Thus, the court lacked jurisdiction to rule on the matters and the
       orders are void. See Wierzbicki v. Gleason, 388 Ill. App. 3d 921, 926 (2009) (“[A]ny order
       entered while the circuit court is divested of jurisdiction during the pendency of an appeal
       *** is void.”).
¶ 21        The State recognizes our holding in Elsholtz but argues that we should not apply it,
       because the fitness statute says that, once a defendant is restored to fitness, “the court shall
       set the matter for trial.” 725 ILCS 5/104-20(b) (West 2010). But this ignores that the statute
       does not set a specific time frame for the trial, nor does it provide jurisdiction for the court
       to hold a trial when jurisdiction would otherwise be lacking. The State also argues that,
       because the restoration of fitness renders the pending appeal moot, jurisdiction should return
       to the trial court to then make determinations on the merits. But we have jurisdiction to
       decide whether an exception to the mootness doctrine applies, so the law cannot be that the
       reviewing court loses jurisdiction when a defendant is restored to fitness. See In re Alfred
       H.H., 233 Ill. 2d 345, 350-51 (2009).
¶ 22        Of course, before the reviewing court has made a decision on the merits, an appellant has
       the right to have the appeal dismissed. People ex rel. Waite v. Bristow, 391 Ill. 101, 111
       (1945); Safeway Insurance Co. v. American Arbitration Ass’n, 247 Ill. App. 3d 355, 358-59
       (1993). Thus, the appellant can return jurisdiction to the trial court nearly at will should he
       or she wish to immediately proceed to trial.
¶ 23        Here, the State’s arguments ask us to disapprove of Elsholtz. We decline to do so.
       Accordingly, the trial court’s rulings on defendant’s posttrial motions and its sentencing
       order are void.
¶ 24        Finally, defendant asks us to reach a determination on the merits of his posttrial motions.


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       However, because the trial court’s orders are void, we have no authority to do so. Instead,
       we must vacate the void orders and dismiss this appeal. See People v. Flowers, 208 Ill. 2d
       291, 307 (2003). Upon the issuance of our mandate, defendant may pursue his posttrial
       motions and may reassert his request to represent himself if he still desires to do so.

¶ 25                                   III. CONCLUSION
¶ 26      The trial court lacked jurisdiction to rule on posttrial motions and sentence defendant.
       Accordingly, those orders are void. Thus, we vacate the orders and dismiss this appeal.

¶ 27      Vacated; appeal dismissed.




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