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                               Appellate Court                           Date: 2019.10.09
                                                                         13:19:41 -05'00'



                  People v. Wilber, 2018 IL App (2d) 170328



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            PATRICK J. WILBER, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-17-0328



Filed              November 14, 2018



Decision Under     Appeal from the Circuit Court of Stephenson County, No. 16-CM-
Review             522; the Hon. James M. Hauser, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State
Appeal             Appellate Defender’s Office, of Elgin, for appellant.

                   Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino, David
                   J. Robinson, and Sally A. Swiss, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE HUTCHINSON delivered the judgment of the court, with
                   opinion.
                   Justices Zenoff and Spence concurred in the judgment and opinion.
                                               OPINION

¶1       Defendant, Patrick J. Wilber, was charged by information with two counts of harassment
     through electronic communication (720 ILCS 5/26.5-3(a)(5) (West 2016)). The information
     alleged that defendant threatened injury to Carol Reinke and her family (count I) and to
     Clarence Reinke and his family (count II). The trial court found that there was a bona fide
     doubt as to defendant’s fitness to stand trial, and a fitness hearing was held before a jury.
     Defendant hoped to establish that he was fit, but defendant’s attorney moved for a directed
     verdict of unfitness at the close of the State’s case-in-chief. The trial court granted the motion,
     and defendant brought this appeal. We affirm.
¶2       On November 4, 2016, the trial court entered the order finding a bona fide doubt as to
     defendant’s fitness. Although defendant was represented by counsel, on November 17, 2016,
     defendant filed a long, rambling pro se document that defies a concise summary. Within the
     document, defendant explained that intoxication and a dispute over a lawnmower led him to
     send a text message threatening to kill Clarence if he “f***[ed]” with defendant anymore.
     Defendant contended that he used the word “kill” figuratively to express his anger, not as an
     actual threat. In support of the contention, he relied on, inter alia, biblical passages and a scene
     from “The Andy Griffith Show.” He also accused a police officer of trying to frame him,
     altering a video recording, and falsely reporting that defendant had made an inculpatory
     statement. Defendant compared the situation to a widely publicized incident in which a police
     officer had killed a motorist during a traffic stop. He accused his attorney of covering up the
     video by filing a motion to suppress. He also lamented the state of the world generally,
     mentioning earthquakes, terrorism, and refugeeism, among other things.
¶3       Jury selection proceeded swiftly. The trial court asked the jurors questions that it
     formulated in advance in consultation with the prosecutor and defense counsel. The prosecutor
     and defense counsel asked no questions. Furthermore, neither the prosecutor nor defense
     counsel challenged any juror for cause, used any peremptory challenges, or made an opening
     statement. Outside the presence of the jury, the prosecutor advised the trial court that he
     anticipated that the State would be unable to meet its burden of proving that defendant was fit.
¶4       At the hearing, Jennifer Aurand, a licensed clinical psychologist, testified for the State that
     defendant was referred to her for an evaluation of his fitness to stand trial. According to
     Aurand, the purpose of a fitness evaluation is to ascertain a defendant’s understanding of “the
     adversarial nature of the courtroom proceedings, as well as the roles and responsibilities of the
     individuals in the court.” A fitness evaluation is also designed to ascertain a defendant’s ability
     to assist in his or her defense.
¶5       As part of the evaluation, Aurand interviewed defendant for about 3½ hours. The interview
     took longer than usual because many of defendant’s answers were “circumstantial” or
     “tangential.” Aurand explained that an answer is circumstantial when the interviewee provides
     a lot of information before actually answering the question. An answer is tangential when it is
     irrelevant to the question. Aurand offered examples from defendant’s evaluation. When asked
     about the nature of his relationship with his attorney, defendant mentioned that she had used
     the word “investigate.” According to Aurand, defendant then “went off on a lengthy speech
     about how that implied that [defense counsel] was portraying herself as a law enforcement
     officer, a detective, who would investigate the ins and outs of the *** alleged offense.”
     Defendant had to be redirected to Aurand’s question several times. Aurand also testified that,

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       when she explained that the evaluation would not be confidential, defendant “went *** on a
       lengthy discussion about how *** his belief was that the news should get [the evaluation], it
       holds people accountable, and that his belief was that he was wronged in the defense in this
       case.” Aurand stated, “[Defendant] kind of went on along that bend until he was redirected
       again so that I could ensure that he understood that this was not a confidential evaluation just
       between he and I.”
¶6         Aurand testified that she “redirected” defendant both verbally and with the “time out” hand
       gesture. Defendant gave direct answers about 10% of the time. Otherwise, he needed to be
       redirected. Defendant displayed an understanding of the basic nature of the roles of the
       individuals in the courtroom as well as the adversarial nature of the courtroom. However, he
       “showed a great deal of distrust and concern that his attorney had misled him as well as made
       motions that he believed *** would not benefit his case.” At times, defendant contradicted
       himself. For instance, he was concerned that a video recording of his encounter with police
       had been altered to show him in a negative light. However, he complained that his attorney’s
       attempt to bar the recording from being admitted as evidence was detrimental to his case.
¶7         According to Aurand, when she asked defendant about his background, his answers were
       often tangential and circumstantial. Defendant talked very quickly and “interrupted himself
       without awareness that he interrupted himself.” Several times, Aurand had to ask defendant to
       finish his sentences so that she could understand what he was trying to communicate. Aurand
       testified that defendant’s difficulty discussing his background suggested that he would have
       difficulty conveying information to his attorney. Defendant’s overall demeanor was “[l]abile
       and somewhat anxious and suspicious.” Aurand explained that “labile refers to something
       that’s constantly changing.” Aurand added that in “the three-plus hours we talked, [defendant
       was] laughing, crying, speaking loudly and angrily and speaking softly and cooperatively, kind
       of all across the board.”
¶8         Aurand testified that defendant met the diagnostic criteria for bipolar I disorder. She
       concluded that defendant would be unable to assist in his trial and was therefore unfit.
¶9         Defendant argues on appeal that the trial court erred by directing a verdict of unfitness.
       Defendant also argues that, by failing to establish that he was fit, his attorney violated his right
       to the effective assistance of counsel. Before considering these issues, we note, as have both
       parties, that this appeal is moot because defendant has been found to have been restored to
       fitness. Defendant argues, however, that the public-interest exception to the mootness doctrine
       applies. “The public interest exception has three requirements: (1) the question presented must
       be public rather than case-specific in nature; (2) an authoritative determination is needed to
       guide public officers; and (3) the question is likely to recur.” People v. Holt, 2014 IL 116989,
       ¶ 47. We conclude that both issues defendant raises meet all three requirements.
¶ 10       Both issues raised are public in nature. First, defendant asks us to hold that a directed
       verdict may not be entered in a fitness hearing before a jury when the defendant insists that he
       or she is fit but the State and defense counsel take the opposite position. Second, defendant
       asks us to hold that when a defendant insists that he is fit, and the evidence does not clearly
       show otherwise, defense counsel’s failure to advocate the defendant’s position is ineffective
       assistance of counsel, per se. Both these issues raise legal questions of broad applicability, and
       an authoritative determination is necessary to guide courts, prosecutors, and defense attorneys.
       Finally, it is likely that, in future cases, defendants will likewise insist that they are fit when
       the State and defense counsel believe otherwise. It is also likely that many of these cases will

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       be resolved by a directed verdict and that questions will arise as to defense counsel’s duty to
       advocate the defendant’s position. Accordingly, we will consider the merits of the appeal.
¶ 11        A criminal defendant’s right to due process precludes trial if he or she is unfit. People v.
       Shum, 207 Ill. 2d 47, 57 (2003). “A defendant is unfit to stand trial if his mental or physical
       condition prevents him from understanding the nature and purpose of the proceedings against
       him or to assist in his defense.” Id. A fitness hearing must be held when there is a bona fide
       doubt as to the defendant’s fitness. Id. Either the defendant or the State may demand a jury in
       a fitness hearing, and the trial court may order a jury on its own motion. 725 ILCS 5/104-12
       (West 2016). People v. Speck, 41 Ill. 2d 177, 205 (1968), and People v. Brown, 31 Ill. 2d 415,
       420 (1964), illustrate that, in proper cases, the trial court may enter a directed verdict in a
       fitness hearing. “[V]erdicts ought to be directed *** only in those cases in which all of the
       evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors
       [the] movant that no contrary verdict based on that evidence could ever stand.” Pedrick v.
       Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967).
¶ 12        Defendant argues that, because defense counsel did not advocate his position that he was
       fit, he had to rely on the State to do so. However, because the State also took the position that
       defendant was unfit, he had no opportunity to establish his fitness. According to defendant,
       when the State rests without meeting its burden of proof, the court will not know whether the
       State withheld evidence that might have shown that the defendant was fit. Defendant contends
       that the State refrained from introducing certain documents that he filed pro se that could have
       persuaded the jury that he was capable of assisting in his defense. According to defendant,
       “[t]he jury fitness hearing *** was uncontested and was never intended to result in the jury
       reaching a verdict.” Defendant argues that, in light of these circumstances, the directed verdict
       deprived him of the opportunity to prove that he was fit.
¶ 13        It is clear that defense counsel’s duty to a defendant does not necessarily obligate counsel
       to adopt the defendant’s position as to his or her fitness. In Holt, 2014 IL 116989, ¶ 51, our
       supreme court observed as follows:
                 “No plausible interpretation of the right to counsel would require defendant’s lawyers
                 to fight for an outcome that, in counsel’s estimation—and in fact—would violate due
                 process. The due process clause of the fourteenth amendment bars prosecution of a
                 defendant unfit to stand trial. [Citation.] As the Supreme Court made clear in Cooper
                 v. Oklahoma, 517 U.S. 348, 354 (1996): ‘ “Competence to stand trial is rudimentary,
                 for upon it depends the main part of those rights deemed essential to a fair trial,
                 including the right to effective assistance of counsel, the rights to summon, to confront,
                 and to cross-examine witnesses, and the right to testify on one’s own behalf or to remain
                 silent without penalty for doing so. [Citation.]” ’ [Citation.] In Cooper, the Court stated
                 that a defendant may not be put to trial unless he has sufficient present ability to consult
                 with his lawyer with a reasonable degree of rational understanding and a rational as
                 well as factual understanding of the proceedings against him. [Citation.] Where a
                 defendant does not have that ability, how can a defendant make informed decisions
                 regarding the course of her representation? In Pate v. Robinson, 383 U.S. 375, 384
                 (1966), the Court observed that it is contradictory to argue that a defendant may be
                 incompetent, and yet knowingly or intelligently waive his right to have the court
                 determine his capacity to stand trial. It would seem to us a corollary principle that such
                 a defendant may not direct defense counsel to do so.”

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       Furthermore, although the State bears the burden of showing that the defendant is fit, the
       prosecutor may, for ethical reasons, refrain from attempting to meet that burden. “The duty of
       a public prosecutor is to seek justice, not merely to convict.” Ill. R. Prof’l Conduct (2010) R.
       3.8 (eff. Jan. 1, 2016). A prosecutor should not seek to convict an unfit defendant; doing so
       would deprive the defendant of due process of law.
¶ 14       Defendant argues that the principles governing directed verdicts were developed in cases
       involving adversarial proceedings in which the trial court can presume that the party with the
       burden of proof will introduce all of the evidence he or she can to meet that burden. Defendant
       insists that those principles are unsuited to fitness proceedings in which the prosecutor and
       defense counsel are not in an adversarial posture. According to defendant, the entry of a
       directed verdict is proper only in cases like Speck and Brown. In those cases, our supreme court
       affirmed directed verdicts of fitness where all the experts who testified—one expert in Brown
       and seven in Speck—concluded that the defendant was fit. Defendant argues that because the
       prosecutor and defense counsel will not necessarily assume an adversarial posture in a fitness
       proceeding, the trial court has no assurance that the parties have presented all evidence bearing
       on fitness. Thus, according to defendant, verdicts should not be directed in cases less “one-
       sided” than Speck and Brown. In his reply brief, defendant argues that a “proper case” for
       directing a verdict is one “in which the record is overwhelmingly one-sided with respect to
       fitness, to the point where both the trial judge and the reviewing court can be confident that no
       evidence contrary to the directed verdict exists.” We disagree.
¶ 15       Neither Speck nor Brown established a special standard for deciding directed-verdict
       motions in fitness proceedings. Speck specifically employed the Pedrick standard, and Brown
       was decided before the Pedrick standard was announced. Moreover, establishing a different
       standard would not necessarily guarantee that the State has introduced all evidence that might
       establish that a defendant is fit for trial. Indeed, the evidence might well be “one-sided” only
       because the State has decided not to present other evidence (as is its prerogative).
¶ 16       Defendant does not explain how the trial court could ever be confident that the State has
       offered all available evidence. In any event, it is not clear what would be accomplished by
       denying an otherwise meritorious motion for a directed verdict. Doing so would not result in
       the jury hearing any additional evidence from the State, and defense counsel, having moved
       for a directed verdict of unfitness, presumably would not introduce evidence that the defendant
       was fit.
¶ 17       We next consider defendant’s argument that he did not receive the effective assistance of
       counsel. Ordinarily claims of ineffective assistance of counsel are evaluated under the two-
       prong test set forth in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), which requires
       a showing that counsel’s performance “fell below an objective standard of reasonableness” and
       that the deficient performance was prejudicial in that “there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
       However, pursuant to United States v. Cronic, 466 U.S. 648, 659 (1984), and People v. Hattery,
       109 Ill. 2d 449, 461 (1985), prejudice is presumed when defense counsel entirely fails to
       subject the State’s case to meaningful adversarial testing.
¶ 18       Our analysis thus far has assumed that, per Holt, defense counsel was not obligated to defer
       to defendant’s desire for a finding that he was fit to stand trial. Defendant notes, however, that
       the Holt court expressly limited its holding, stating, “Where, as here, the evidence clearly
       indicates that defendant is unfit to stand trial, but a defendant contends that he or she is fit,

                                                   -5-
       defense counsel is not obligated to adopt the defendant’s position and argue for a finding of
       fitness.” (Emphases added.) Holt, 2014 IL 116989, ¶ 56. Defendant argues that he was not
       clearly unfit and thus his attorney’s failure to advocate his position that he was fit constituted
       ineffective assistance of counsel per se under Cronic and Hattery. We disagree. Holt’s limited
       holding—that counsel is not required to defer to the defendant when the defendant is clearly
       unfit—does not imply that the converse is true, i.e., that counsel must defer to the defendant
       when there is arguably some possibility that the defendant is fit. In our view, requiring counsel
       to defer to the defendant whenever he or she might be fit creates an unacceptable risk of
       violating the defendant’s right to due process.
¶ 19       For the foregoing reasons, we conclude that the trial court did not err in granting
       defendant’s motion for a directed verdict. We further conclude that defendant was not deprived
       of his right to the effective assistance of counsel. We therefore affirm the judgment of the
       circuit court of Stephenson County.

¶ 20      Affirmed.




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