                                  Illinois Official Reports

                                          Appellate Court



                             People v. Miraglia, 2013 IL App (1st) 120286




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


District & No.               First District, First Division
                             Docket No. 1-12-0286


Filed                        December 2, 2013


Held                         Where the appellate court found on direct appeal from defendant’s
(Note: This syllabus         convictions for criminal sexual assault that the trial court erred when it
constitutes no part of the   determined, outside defendant’s presence, that there was no bona fide
opinion of the court but     doubt as to her fitness to stand trial that would require a fitness hearing
has been prepared by the     and remanded the cause to the trial court for a retrospective fitness
Reporter of Decisions        hearing, the trial court properly rejected defendant’s request for a jury
for the convenience of       determination of her retrospective fitness, since the issue was raised
the reader.)                 after the trial began and the statute provides that the court is to
                             determine defendant’s fitness at that time, and in defendant’s case, the
                             trial court’s finding that she was fit at the time of the trial was not
                             against the manifest weight of the evidence, especially in view of the
                             testimony that she understood the nature of the proceedings and could
                             assist in her defense, there was no conclusive evidence she was taking
                             psychotropic medication at the time of the trial or was under any
                             specific doctor’s care, and there was no observation of any behavior
                             suggesting unfitness.



Decision Under               Appeal from the Circuit Court of Cook County, No. 04-CR-15651; the
Review                       Hon. Gilbert J. Grossi, Judge, presiding.


Judgment                     Affirmed.
     Counsel on                Michael J. Pelletier, Alan D. Goldberg, and Emily S. Wood, all of
     Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                               William L. Toffenetti, and Margaret G. Lustig, Assistant State’s
                               Attorneys, of counsel), for the People.



     Panel                     JUSTICE HOFFMAN delivered the judgment of the court, with
                               opinion.
                               Justices Cunningham and Delort concurred in the judgment and
                               opinion.




                                               OPINION


¶1         The defendant, Kathy Miraglia, appeals from the circuit court order which both denied her
       a retrospective jury determination on the question of her fitness to stand trial and found her fit
       to stand trial. For the following reasons, we affirm.
¶2         Following a bench trial in 2006, the defendant was convicted of two counts of criminal
       sexual assault (720 ILCS 5/12-13(a)(4) (West 2004)) and sentenced to two consecutive
       four-year terms of imprisonment. The evidence adduced at trial revealed the following facts. In
       2003, the defendant, a clinical psychologist at Hillside Academy High School, held group
       counseling sessions which included J.B., a 16-year-old male junior at the school. J.B. testified
       that he began to meet with the defendant in private sessions and that their conversations
       became “deeper.” They eventually exchanged phone numbers and the conversations became
       sexual in nature. Thereafter, the defendant met with J.B. outside of school, and they engaged in
       sexual intercourse. On several occasions, the defendant bought liquor for J.B. and gave him
       money to buy marijuana, which they shared. Mike Miraglia, the defendant’s husband, testified
       that on three separate occasions, he discovered letters written by the defendant to J.B.,
       detailing the couple’s drug and alcohol use and their sexual relationship.
¶3         Prior to trial, the State raised the question of the defendant’s fitness to stand trial by
       informing the court that records indicated that the defendant was taking antidepressant
       medication and had checked herself into a mental health facility before her arrest in June 2004.
       Defense counsel requested a hearing outside of the defendant’s presence to discuss the issue of
       her fitness to stand trial. The court expressed its reservations, but granted counsel’s request and
       ordered the courtroom cleared. Defense counsel informed the court that the defendant had
       previously attempted suicide and had been hospitalized. He confirmed that she had been taking
       antidepressant medication, but could not verify the specific medication. The court noted that it
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     had not developed any bona fide doubt concerning the defendant’s fitness, but opined that
     defense counsel was better situated to make such a judgment and elicited his opinion. After
     counsel concurred with the court’s assessment, the court concluded that was “all we have to go
     on,” and the matter proceeded to trial without a fitness hearing.
¶4       On direct appeal, the defendant argued, in relevant part, that she was denied her right to be
     present during a critical stage of the trial because the court discussed the issue of her fitness
     outside of her presence. This court reviewed the issue, finding that a proceeding at which a
     defendant’s fitness to stand trial is discussed is a critical stage for purposes of a defendant’s
     right to be present. People v. Miraglia, No. 1-06-2654 (2008) (unpublished order under
     Supreme Court Rule 23). We concluded that the trial court erred in excluding the defendant
     from the proceeding and remanded “the matter to the trial court for a retrospective fitness
     hearing.” Id. We held that, if the trial court determined that the defendant was unfit for trial, her
     convictions should be vacated and the court should conduct further proceedings pursuant to
     section 104-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-10 (West
     2004)). Miraglia, No. 1-06-2654. We further held that, if the trial court determined that the
     defendant was fit, her convictions and sentences shall stand. Id.
¶5       On remand, the matter was returned to Judge Grossi, the trial judge in Maywood who
     presided over the defendant’s trial. The defendant requested that a jury be impaneled for
     purposes of retrospectively determining her fitness to stand trial. Thereafter, the matter was
     transferred to the criminal courthouse in Chicago where jury trials on fitness are conducted. On
     April 12, 2011, the State moved to strike the defendant’s request for a jury determination on
     the issue of her fitness, asserting that she was not entitled to a jury because the proceeding was
     to take place after trial and after her convictions were entered of record.
¶6       On May 9, 2011, Judge Mary Brosnahan granted the State’s motion, finding that the facts
     of the case did not present a scenario in which the defendant requested a jury determination of
     her fitness hearing prior to trial. Rather, the court determined that, under the facts presented
     here, the defendant was not entitled to a jury trial on the issue of her fitness as the issue of the
     defendant’s fitness was first raised after her trial had begun. See People v. Melka, 319 Ill. App.
     3d 431 (2000). The matter was then transferred back to Judge Grossi’s courtroom in Maywood
     for a nonjury determination of the defendant’s fitness.
¶7       On August 3, 2011, the fitness hearing proceeded before Judge Grossi. Dr. Christofer
     Cooper, a forensic psychologist, testified that he received the defendant’s medical records,
     police reports, and transcripts of some of the trial court proceedings, including the defendant’s
     statement in allocution. He also met with the defendant on September 22, 2008, for over two
     hours to evaluate her present fitness. Dr. Cooper explained that to evaluate a defendant’s
     retrospective fitness, he considers the defendant’s current fitness and assesses whether there
     have been any significant changes or differences in the defendant’s mental state or brain
     functioning from the time of trial. Dr. Cooper noted that the defendant had a doctorate in
     psychology and had been employed as a school counselor at the time of her offense. After her
     arrest, the defendant worked full-time for Ameri-Suites Hotel until the time of her trial. At the
     time of her trial, the defendant stated she had been taking medications prescribed by Dr. Blaise
     Wolfrum. However, Dr. Cooper noted that Dr. Wolfrum’s records showed that he had not
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       treated the defendant for approximately nine months before her trial. There was also no record
       of any prescriptions from Dr. Wolfrum. According to the records, the defendant was not under
       any doctor’s care in June 2006.
¶8         Dr. Cooper testified that he also reviewed records from Dr. James Corcoran, who treated
       the defendant for anxiety and depression about two months after her conviction. Dr. Cooper
       found it relevant that the defendant did not exhibit any psychotic symptoms, such as
       hallucinations, delusions or confused thinking when she saw Dr. Corcoran. He also noted that
       the defendant was not seen by a psychiatrist or psychologist for any mental health treatment
       from the time of her trial in June 2006 until she saw Dr. Corcoran in August 2006.
¶9         Upon examination, Dr. Cooper found the defendant to be cogent and coherent and that she
       did not display any signs of disorganized thinking, confusion or psychotic symptoms. He
       acknowledged that, before her June 2004 arrest, the defendant was hospitalized for depression
       and anxiety for nine days and then reported ongoing symptoms after that point. However,
       based on her clinical history, Dr. Cooper opined that, although the defendant had a history of
       depression, that diagnosis did not render her unfit to stand trial. Dr. Cooper concluded that the
       defendant was fit to stand trial in June 2006, because there was no clinical indication that she
       suffered from significant symptoms of mental health disease that would have precluded or
       impeded her fitness at the time of trial. In his opinion, the defendant was able to assist in her
       defense in June 2006 and was able to understand the nature and purpose of the proceedings
       against her.
¶ 10       Dr. Peter Lourgos, a forensic psychiatrist, testified that he evaluated the defendant to
       determine her fitness to stand trial in June 2006. He reviewed her psycho-social history, police
       reports, and her medical and court records; he also interviewed the defendant. Dr. Lourgos
       noted that the defendant’s statement in allocution demonstrated that, at the time of trial, she
       had “very clear and organized thoughts.” He reviewed her medical records from 2004, which
       showed that the defendant had a history of depressive symptoms and anxiety. Dr. Lourgos
       testified that the defendant reported being on medication at the time of trial, but the medical
       records and the probation department records do not indicate that she was on any medication.
       Dr. Lourgos noted that the defendant was not being treated at the time of trial. He also noted
       that, after her conviction, the defendant saw Dr. Corcoran, who documented that she suffered
       from depression and anxiety. Dr. Lourgos agreed that the defendant’s symptoms seemed to
       demonstrate situational depression, the result of the stress of her convictions, incarceration and
       pending divorce. Based upon his review of the defendant’s medical history and the court
       transcripts, Dr. Lourgos concluded that the defendant understood the proceedings against her
       and participated in her defense. Dr. Lourgos noted that the defendant’s history of depression
       did not include any evidence that her illness rendered her nonfunctioning as she completed her
       graduate education and maintained steady employment through the time of trial. Dr. Lourgos
       opined that the defendant was fit to stand trial in June 2006, because she was not suffering from
       a severe mental illness which would have impaired her understanding of the nature and
       purpose of the proceedings against her, the roles of the various court personnel, or her ability to
       assist in her defense.

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¶ 11        The defense called Dr. Tony Allen Fletcher, a forensic psychologist, who testified that he
       conducted a retroactive fitness evaluation of the defendant and found her unfit at the time of
       trial. Dr. Fletcher stated that he relied upon collateral interviews he conducted with the
       defendant’s family members, prior psychiatrist and prior attorney to evaluate her state of mind
       at the time of trial. He also reviewed her prior medical records. Dr. Fletcher testified that he
       learned that the defendant was severely depressed and had suicidal thoughts when she was
       treated at River Edge Hospital in 2004. Those records noted that the defendant had auditory
       hallucinations and delusional paranoid thoughts.
¶ 12        Dr. Fletcher also reviewed the defendant’s medical records from August 2006, which he
       testified showed that she suffered from major depression after her conviction. He noted that
       Dr. Corcoran prescribed three different medications for the defendant’s depression, mood, and
       anxiety. Dr. Fletcher also observed that, after hearing her sentence, the defendant collapsed
       and was placed on suicide watch at Cermak Hospital. He noted that the defendant has had
       depression and anxiety symptoms since her conviction. He also noted that Dr. Corcoran
       documented that the defendant had poor concentration, depressed mood, and poor
       decision-making ability when he saw her after her conviction.
¶ 13        Dr. Fletcher testified that the defendant’s parents reported to him that, at the time of trial,
       the defendant appeared to be staring into space and neglected her appearance. They informed
       him that she did not understand the charges against her or her potential sentence. The
       defendant’s brother related that, during the time of trial, he would find the defendant in a fetal
       position in bed, crying and incoherent. The defendant’s trial attorney, Randy Franklin, told Dr.
       Fletcher that he knew the defendant was on medication but he did not know which drugs she
       was taking. Franklin reported that the defendant deferred a few decisions to him, and he
       considered her to be depressed. Franklin told Dr. Fletcher that the defendant, at times, was
       explosive and distraught and became confused about what was going on.
¶ 14        Upon interviewing the defendant, Dr. Fletcher noted that she was unable to appreciate the
       penalties she faced and was unable to “think things through for herself,” but she understood the
       roles and purposes of the court personnel and understood the “factual information about what
       was going on.” In his opinion, Dr. Fletcher did not believe that the defendant was fit to stand
       trial in June 2006, because she had major depressive disorder with psychotic features.
¶ 15        On cross-examination, Dr. Fletcher stated that he did not think the defendant understood
       the severity of the charges against her, but she knew that she was in the criminal court. He did
       not believe that she understood the nature and the purpose of the proceedings. Dr. Fletcher
       admitted that he did not review the trial transcripts and was unaware that the defendant made a
       statement in allocution.
¶ 16        Frederick Allen, the defendant’s brother, testified that, in May 2004, the defendant called
       him and threatened to kill herself. He called the police to assist her and she was hospitalized.
       Allen traveled to Chicago to sign the defendant out of the hospital, but when he arrived, she
       was abrasive and incoherent. He chose not to sign her out at the time. At the time of the trial,
       Allen observed the defendant curled up in a fetal position and frantically crying. He described
       the defendant as incoherent and stated that she cried about not wanting to lose custody of her
       children. Allen tried to speak to the defendant about her trial, but she could not speak rationally
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       about the situation. She would tell him that probation was the only option because she had to be
       with her children. After her conviction, Allen helped the defendant write her statement in
       allocution. However, Allen denied that he told the defendant what to write.
¶ 17        In her statement in allocution, the defendant stated that she was sorry for what she had
       done. She explained that the past several years had been traumatic considering her divorce, a
       battle with cancer, and the criminal charges. She stated she cared for her elderly parents and
       her three children and that her marriage had been abusive. However, Allen testified that he was
       unaware that the defendant cared for their parents in any way. In allocution at trial, the
       defendant also stated that J.B. had sexually harassed her at school, drugged her, and fondled
       her. She claimed that he threatened her and threatened that his gang would kill her family if she
       told anyone about the incident. According to the defendant, J.B. also threatened her if she did
       not call him regularly, which explained the phone records admitted at trial. The defendant
       stated that she was too afraid to report any of this to the police. The defendant said that, on one
       occasion, J.B. raped her at her home. She denied that the letters that her husband found, which
       were admitted into evidence, represented her true feelings. The defendant expressed regret for
       her handling of the situation and stated that she acted out of fear and humiliation.
¶ 18        Following the retrospective fitness hearing, the trial court concluded that, based on the
       defendant’s statement in allocution and the State’s two doctors’ testimony, she was fit to stand
       trial in June 2006. The court noted that Dr. Fletcher had not reviewed the defendant’s statement
       in allocution. Moreover, the court noted that Dr. Fletcher’s diagnosis was major depression,
       which was insufficient to render the defendant unfit to stand trial.
¶ 19        On November 17, 2011, the defendant filed a motion for reconsideration, arguing both that
       she should have received a jury determination on the question of her fitness and that the
       evidence supported a finding of unfitness. The trial court denied the motion, and this appeal
       followed.
¶ 20        The defendant first argues that, on remand, she should have been granted a hearing before a
       jury on the issue of her fitness to stand trial. We disagree.
¶ 21        In the initial proceedings before the defendant’s trial, the State inquired as to whether the
       defendant was fit to stand trial because her medical records revealed that she had been
       prescribed psychotropic medication and had received in-patient mental health treatment. The
       trial court and defense counsel agreed that the defendant exhibited no signs of being unfit and
       therefore the court determined that there was no bona fide doubt of fitness which would require
       a hearing. On appeal, we determined that the court erred in making its determination outside of
       the defendant’s presence. We did not determine whether the court’s conclusion that no bona
       fide doubt existed as to the defendant’s fitness was erroneous. We merely remanded the
       “matter to the trial court for a retrospective fitness hearing.”
¶ 22        There is no constitutional right to a jury determination of a defendant’s fitness to stand
       trial. People v. Manning, 76 Ill. 2d 235, 239 (1979). Rather, the provision for a jury
       determination of a defendant’s fitness is statutory in origin. Id. Section 104-12 of the Code
       states:


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                “Right to Jury. The issue of the defendant’s fitness may be determined in the first
                instance by the court or by a jury. The defense or the State may demand a jury or the
                court on its own motion may order a jury. However, when the issue is raised after trial
                has begun or after conviction but before sentencing, or when the issue is to be
                redetermined under Section 104-20 or 104-27, the issue shall be determined by the
                court.” 725 ILCS 5/104-12 (West 2004).
¶ 23       Whether the defendant was entitled to a jury trial on the issue of fitness is a question of
       statutory interpretation subject to de novo review. People v. Giraud, 2012 IL 113116, ¶ 6.
       When interpreting a statute, our primary objective is to ascertain and give effect to legislative
       intent, which is done using the statutory language itself, given its plain and ordinary meaning.
       Id. In determining the plain meaning of statutory terms, we consider the statute in its entirety,
       keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it.
       Id. Where the language of the statute is clear and unambiguous, we must apply it as written,
       without resorting to extrinsic aids to statutory construction. Id. Applying these principles, we
       consider the plain language of section 104-12 of the Code.
¶ 24       Section 104-12 provides that the State or the defense may demand or the trial court may
       order a jury determination of the question of a defendant’s fitness to stand trial unless one of
       three situations occur: (1) the issue is raised after the trial has begun; (2) the issue is raised after
       conviction but before sentencing; or (3) the issue of fitness is being redetermined under section
       104-20 or 104-27 of the Code (725 ILCS 5/104-20, 104-27 (West 2004) (which involve
       secondary determinations of fitness after an initial finding of unfitness)). It is clear that the
       third situation was not involved here as this case did not involve a second determination of the
       defendant’s fitness under either section 104-20 or section 104-27 of the Code.
¶ 25       The parties, however, dispute whether the first two situations apply in this case. The State
       argues that the defendant did not demand a jury or fitness hearing until she filed her appeal and
       that a retrospective fitness determination cannot be considered to have been made in the first
       instance before the trial began. The defendant argues that her first opportunity to demand a jury
       occurred on remand, but the issue of her fitness was first raised before her trial.
¶ 26       Construing the language of the statute, giving its words their plain and ordinary meaning,
       we conclude that section 104-12 unambiguously provides that the defendant does not have a
       right to a jury determination of her fitness when the demand is made “after trial has begun.”
       725 ILCS 5/104-12 (West 2004). Section 104-12 of the Code explicitly states that either the
       defense or the State may demand a jury or the court may order one except “when the issue is
       raised after trial has begun.” Id. After trial has begun, a defendant’s fitness “shall be
       determined by the court.” Id. In this case, neither the State nor the defense demanded nor did
       the court order a jury determination before the defendant’s trial commenced. During pretrial
       proceedings, while in the presence of the defendant, the State raised the issue of fitness, but it
       did not demand a jury determination of her fitness to stand trial. The defendant, defense
       counsel, and the trial court also did not demand or order a jury determination of her fitness. It
       was not until the remand, long “after trial began,” that the defendant raised the issue of a jury
       determination of her retrospective fitness. Because the issue was raised after trial began, the
       statute provides that the court, not a jury, was to determine the defendant’s fitness to stand trial.
                                                      -7-
       Therefore, based on the plain language of section 104-12 of the Code, the trial court did not err
       in refusing the defendant’s request for a jury determination of her retrospective fitness.
¶ 27        We note that the trial court relied on Melka, 319 Ill. App. 3d at 443, for its decision that the
       defendant was not entitled to a jury determination of her retrospective fitness to stand trial. We
       do not find that persuasive because, unlike the defendant here, the defendant in Melka did not
       request a jury trial upon remand. Id. at 435-36. Nevertheless, the trial court’s application of the
       statute was correct, even if its reliance on Melka was misplaced.
¶ 28        Next, we consider the defendant’s argument that the trial court erred in determining that
       she was fit to stand trial. “The trial court’s ruling on the issue of fitness will be reversed only if
       it is against the manifest weight of the evidence.” People v. Haynes, 174 Ill. 2d 204, 226
       (1996). A finding is against the manifest weight of the evidence only if the opposite conclusion
       is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence
       presented. People v. Deleon, 227 Ill. 2d 322, 332 (2008). Under the manifest weight standard,
       we give deference to the trial court as the finder of fact because it is in the best position to
       observe the conduct and demeanor of the parties and witnesses. Id.
¶ 29        A defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2004); People v.
       Stephens, 2012 IL App (1st) 110296, ¶ 90, appeal denied, No. 115299 (Ill. Jan. 30, 2013)), and
       the State has the burden of proving the defendant’s fitness by a preponderance of the evidence
       (725 ILCS 5/104-11(c) (West 2004)). A defendant is unfit “if, because of his mental or
       physical condition, he is unable to understand the nature and purpose of the proceedings
       against him or to assist in his defense.” 725 ILCS 5/104-10 (West 2004); Stephens, 2012 IL
       App (1st) 110296, ¶ 90. “Fitness speaks only to a person’s ability to function within the context
       of a trial; a defendant may be fit to stand trial even though his mind is otherwise unsound.”
       Haynes, 174 Ill. 2d at 226. Section 104-16 of the Code states that the trial court may consider
       evidence of the defendant’s fitness, including but not limited to: his knowledge and
       understanding of the charge, the proceedings, and the functions of the participants in the trial
       process; his ability to observe and relate occurrences, especially those related to the offense
       involved; and his social behavior and orientation to time and place. See 725 ILCS 5/104-16
       (West 2004).
¶ 30        In this case, there was ample evidence supporting the trial court’s finding that the
       defendant was fit to stand trial in June 2006. The State presented Drs. Cooper and Lourgos,
       who both opined that, despite her depression and anxiety, the defendant was able to understand
       the nature and purpose of the proceedings against her and assist in her defense. Even Dr.
       Fletcher, the defense’s expert, admitted that the defendant understood the roles of the trial
       court personnel, understood she was in criminal court, and understood the factual information
       surrounding the proceedings. Dr. Fletcher’s diagnosis of depression was also consistent with
       the diagnoses of Drs. Cooper and Lourgos and with the diagnosis documented in the
       defendant’s pretrial hospital stay. In addition, there was no conclusive evidence that the
       defendant was taking any psychotropic medication at the time of her trial or that she was under
       any specific doctor’s care at that time. Dr. Fletcher also admitted that he had not read the
       defendant’s statement in allocution, which demonstrated the defendant’s ability to coherently
       discuss the events and the evidence related to her offense. Furthermore, neither the court nor
                                                     -8-
       defense counsel observed any behavior by the defendant during the pretrial proceedings or the
       trial and sentencing hearing that suggested that she was unfit. Given the record before us, we
       cannot conclude that the trial court’s finding of the defendant’s fitness is against the manifest
       weight of the evidence.
¶ 31        Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook
       County.

¶ 32      Affirmed.




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