                               Illinois Official Reports

                                       Appellate Court



                          People v. Zelenak, 2014 IL App (3d) 120639



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   GEORGE F. ZELENAK, Defendant-Appellant.


District & No.            Third District
                          Docket No. 3-12-0639


Filed                     October 9, 2014
Modified upon denial
of rehearing              March 5, 2015


Held                       The trial court abused its discretion when it did not hold a fitness
(Note: This syllabus hearing and reverse the denial of defendant’s motion to withdraw his
constitutes no part of the guilty plea to aggravated kidnapping and aggravated criminal sexual
opinion of the court but assault and remand the cause with instructions to conduct a fitness
has been prepared by the hearing before further postplea proceedings; therefore, the trial court’s
Reporter of Decisions judgment was reversed and the cause was remanded for a
for the convenience of determination of defendant’s fitness and further postplea proceedings.
the reader.)


Decision Under            Appeal from the Circuit Court of La Salle County, No. 08-CF-131; the
Review                    Hon. Howard C. Ryan, Jr., Judge, presiding.



Judgment                  Reversed and remanded.


Counsel on                Rikin Shah, of State Appellate Defender’s Office, of Elgin, for
Appeal                    appellant.

                          Brian Towne, State’s Attorney, of Ottawa (Mark A. Austill, of State’s
                          Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                   PRESIDING JUSTICE McDADE delivered the judgment of the
                             court, with opinion.
                             Justice O’Brien concurred in the judgment and opinion.
                             Justice Schmidt dissented, with opinion.


                                              OPINION

¶1        Defendant, George F. Zelenak, pled guilty to aggravated kidnapping (720 ILCS
       5/10-2(a)(3) (West 2008)) and aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2)
       (West 2008)) and was sentenced to a total of 36 years’ imprisonment. Defendant filed a
       motion to withdraw his plea, which the trial court denied. Defendant appeals, arguing that the
       court erred in conducting a hearing on defendant’s motion to withdraw his guilty plea
       without ordering a fitness evaluation. We reverse and remand.

¶2                                               FACTS
¶3          In March 2008, defendant was charged by indictment with aggravated kidnapping (720
       ILCS 5/10-2(a)(3) (West 2008)), aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2)
       (West 2008)), and criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2008)). On April
       15, 2009, private attorney Joseph Navarro filed a motion for a fitness evaluation. The trial
       court granted the motion. Dr. Timothy Brown’s evaluation concluded that defendant was fit,
       and the court found that defendant was fit to stand trial.
¶4          On December 3, 2009, defendant entered an open guilty plea to charges of aggravated
       kidnapping and aggravated criminal sexual assault in exchange for the dismissal of the
       criminal sexual assault charge. On January 15, 2010, the trial court sentenced defendant to
       two consecutive terms of 18 years’ imprisonment.
¶5          On February 11, 2010, Navarro filed a motion to withdraw the guilty plea, arguing that
       defendant did not enter into the plea knowingly and voluntarily. On February 16, 2010, the
       trial court allowed Navarro to withdraw and appointed the public defender to represent
       defendant. The matter was continued several times until December 17, 2010, when the public
       defender reported that a Department of Corrections (DOC) psychiatrist informed him that
       defendant had difficulty “comprehending what [was] going on.” As a result of defendant’s
       incarceration, the State arranged for further psychiatric testing, and the case was continued.
       The court subsequently ordered Dr. Robert Chapman to conduct a fitness examination.
¶6          Chapman’s report stated that defendant suffered from a mental condition that rendered
       him unable to understand the nature and purpose of the proceedings against him or assist in
       his defense. Chapman’s report concluded that it was unlikely that defendant would be
       rendered fit in one year with treatment.
¶7          On September 15, 2011, the State advised the court that it had also received a fitness
       evaluation from Brown. The State stipulated to the evaluations prepared by Chapman and
       Brown. Brown’s evaluation stated that defendant was not fit to stand trial, but could be
       returned to fitness in one year with the proper treatment. The State asked that the matter be
       set for a hearing on defendant’s motion to withdraw his plea, and the public defender



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       suggested that part of the hearing focus on the issue of whether defendant was required to be
       fit in order to cooperate with counsel on the motion to withdraw the guilty plea.
¶8          On October 18, 2011, defendant filed an amended motion to withdraw his guilty plea. In
       addition to the earlier arguments, defendant contended that he did not receive effective
       assistance of counsel. On October 20, 2011, the trial court allowed the public defender to
       withdraw, and attorney Randolph Gordon entered an appearance on defendant’s behalf.
¶9          On November 30, 2011, the State noted that there were two reports raising questions
       about defendant’s fitness, and defendant had been seeing a psychologist or psychiatrist while
       incarcerated. The court granted a continuance to allow defendant to receive further treatment.
¶ 10        On July 27, 2012, the case was called for a hearing on defendant’s amended motion to
       withdraw his guilty plea. Defendant testified that he did not understand the guilty plea
       proceedings and he pled guilty on his parents’ instruction. On cross-examination, defendant
       stated that his parents told him that he could no longer live at their house if he did not plead
       guilty. Defendant’s only memory of the plea was that before pleading guilty, Navarro
       advised defendant to sign a piece of paper that would allow defendant to “stay out for
       Christmas and New Year’s.” Defendant thought he was signing a document informing him
       that he needed to return for another court date.
¶ 11        Navarro testified that when he initially met with defendant, he observed some
       characteristics that might raise a fitness issue. However, after he was released on bond,
       defendant’s mental health improved. Ultimately, Navarro thought defendant was fit to stand
       trial. On the day of the plea, Navarro believed defendant knowingly and voluntarily entered
       the plea, and Navarro did not notice any threats from defendant’s parents.
¶ 12        The trial court found defendant received effective assistance of counsel, and defendant
       knowingly and voluntarily entered the guilty plea. The court denied defendant’s motion to
       withdraw his plea, and defendant appealed.

¶ 13                                             ANALYSIS
¶ 14        Defendant argues that the trial court abused its discretion by failing to order a fitness
       hearing before proceeding to the hearing on defendant’s motion to withdraw his guilty plea.
       We review the trial court’s fitness determination for an abuse of discretion. People v.
       Hanson, 212 Ill. 2d 212 (2004). A trial court abuses its discretion when its ruling is arbitrary,
       fanciful, or unreasonable, or where no reasonable person would take the view adopted by the
       trial court. People v. Tolefree, 2011 IL App (1st) 100689.
¶ 15        A defendant is presumed fit absent circumstances raising a bona fide doubt of his fitness.
       People v. Sanchez, 169 Ill. 2d 472 (1996). If a bona fide doubt as to a defendant’s fitness
       exists, the trial court is obligated to conduct a hearing to determine defendant’s competency.
       People v. McCallister, 193 Ill. 2d 63 (2000). The defense, State, or court, “at any appropriate
       time before a plea is entered or before, during, or after trial,” may raise the issue of a
       defendant’s fitness. 725 ILCS 5/104-11(a) (West 2008). A number of factors may be
       considered in determining whether a bona fide doubt of fitness is raised, including: “a
       defendant’s irrational behavior, demeanor at trial, any prior medical opinion on the
       defendant’s competence, and any representations by defense counsel on the defendant’s
       competence.” People v. Brown, 236 Ill. 2d 175, 186-87 (2010). A defendant is unfit to stand



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       trial if, as a result of mental or physical condition, he is unable to understand the nature and
       purpose of the proceedings or to assist in his defense. People v. Burt, 205 Ill. 2d 28 (2001).
¶ 16        Supreme Court Rule 605(c) provides, in relevant part, that the trial court shall admonish
       defendant of certain rights after the entry of his guilty plea, including:
                     “(5) that if the defendant is indigent, a copy of the transcript of the proceedings at
                 the time of the defendant’s plea of guilty and sentence will be provided without cost
                 to the defendant and counsel will be appointed to assist the defendant with the
                 preparation of the motions.” Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001).
       The provision by the supreme court for the appointment of counsel at the posttrial motion
       stage is indicative of the court’s “continuing concern for the constitutional rights of
       defendants, even after they have lost the presumption of innocence.” People v. Roby, 356 Ill.
       App. 3d 567, 572 (2005). If there is a bona fide question as to defendant’s fitness, defendant
       cannot be presumed to have understood the Rule 605(c) admonishments. See People v.
       McKay, 282 Ill. App. 3d 108, 112 (1996) (court will not find that defendant waived his right
       to appeal because there was a bona fide question as to defendant’s competence at the time he
       was admonished under Illinois Supreme Court Rules 604(d) (eff. Aug. 1, 1992) and 605).
       Defendant must be fit to assist counsel, who was appointed under Rule 605(c), with the
       posttrial proceedings. See People v. Owens, 139 Ill. 2d 351, 359-60 (1990).
¶ 17        Based on the foregoing principles, we conclude that the cause must be remanded for a
       fitness hearing. Our conclusion is supported by Owens, where our supreme court was faced
       with a posttrial fitness issue. There, the petitioner appealed from the denial of his
       postconviction petition and argued that the trial court erred in failing to hold a fitness hearing
       to determine whether he could meaningfully communicate with and assist his postconviction
       counsel. The supreme court held that the trial court was obligated to consider whether a
       postconviction petitioner was mentally competent to consult with his appointed counsel at the
       time his postconviction petition was considered. Absent such a consideration, the
       appointment of counsel was rendered “ ‘an empty formality,’ ” as the postconviction
       petitioner was unable to communicate with counsel in a rational manner. Owens, 139 Ill. 2d
       at 360 (quoting People v. Garrison, 43 Ill. 2d 121, 123 (1969)). The Owens case was
       remanded to the trial court for a determination of whether there was a bona fide doubt about
       the petitioner’s mental ability to communicate with his postconviction counsel. If such a
       doubt existed and a psychiatric examination and evidentiary hearing disclosed that the
       petitioner was incompetent to consult with his postconviction counsel, the petitioner was to
       be remanded to the DOC until he was rendered fit to consult with counsel in the presentation
       of his postconviction petition. Owens, 139 Ill. 2d at 366.
¶ 18        The instant case, unlike Owens, is before this court on direct appeal from the denial of
       defendant’s motion to withdraw his guilty plea. However, the principles underlying the
       remand in Owens would apply with at least as much force and effect. As a direct attack on
       the underlying conviction, defendant must be able to assist his counsel to very nearly the
       same degree as was necessary at the time that his guilt or innocence was determined. Roby,
       356 Ill. App. 3d at 573-74.
¶ 19        In Roby, the court was faced with a similar fitness issue that arose during postplea
       proceedings. After a postplea psychiatric evaluation reported that defendant was unfit, the
       trial court conducted a hearing on defendant’s motion to withdraw his guilty plea. Despite the
       court’s knowledge of the report, defendant’s guilty plea counsel was allowed to testify about

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       his interactions with defendant prior to and at the time of the entry of the plea. As a result of
       defendant’s unfitness, the reviewing court concluded that defendant could not have made a
       valid waiver of the attorney-client privilege and was unable to assist postplea counsel. The
       Roby court vacated the denial of defendant’s postplea motion and remanded the cause with
       directions for the trial court to ascertain whether defendant had become competent to assist
       appointed counsel, and, if so, to conduct new proceedings on the postplea motion. Roby, 356
       Ill. App. 3d at 574.
¶ 20        The State argues that Roby is inapplicable to the present case because, in Roby, defense
       counsel requested a fitness hearing and the trial court conducted the “functional equivalent of
       a fitness hearing.” Roby, 356 Ill. App. 3d at 572. Although defense counsel in the instant case
       did not request a fitness hearing, defendant’s DOC mental health treatment and evaluations
       concluding that he was unfit raised a bona fide doubt of defendant’s fitness. After entry of
       the guilty plea, defendant’s fitness was questioned, and two mental health evaluations were
       conducted. The two evaluations concluded that defendant was unfit, and the court continued
       the case to allow defendant to continue receiving mental health treatment. It did not,
       however, set the matter for a fitness hearing. From the record, it seems that the public
       defender intended to use the hearing on the motion to withdraw the guilty plea as a hybrid
       fitness hearing, but defendant’s postplea fitness was not made a part of the July 2012 hearing.
       Given this record, the trial court had a duty to sua sponte order a fitness hearing and further
       investigate the issue of defendant’s fitness before it conducted a hearing on defendant’s
       postplea motion. McCallister, 193 Ill. 2d at 110-11 (the court has a duty to order a fitness
       hearing sua sponte once facts are presented that raise a bona fide doubt of a defendant’s
       fitness because it is a violation of due process to convict an unfit defendant (citing People v.
       Murphy, 72 Ill. 2d 421, 430 (1978) (fundamental constitutional nature of the fitness
       requirement creates a duty for the trial court to hold a fitness hearing once a bona fide doubt
       of a defendant’s fitness is raised))). Like Roby, the psychiatric evaluations put the court and
       parties on notice that defendant was likely unfit. Despite the reports, the trial court conducted
       a hearing on defendant’s motion and permitted defendant and counsel to testify at a time
       when defendant’s fitness was uncertain. As a result, the trial court abused its discretion when
       it did not hold a fitness hearing before it denied defendant’s motion to withdraw his guilty
       plea.
¶ 21        The dissent contends that Owens lowered the fitness requirements for posttrial
       proceedings. While we agree that the supreme court noted in Owens that a greater degree of
       incompetence must be shown in a postconviction proceeding as compared with fitness issues
       occurring prior to trial, we emphasize that the instant case is before this court on direct
       appeal. At this stage, in contrast to a postconviction proceeding, a defendant has a
       constitutional right to counsel. People v. Hughes, 315 Ill. App. 3d 86, 95 (2000); U.S. Const.,
       amends. VI, XIV; but see People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004)
       (postconviction petitioner has no constitutional right to the assistance of counsel and the right
       is wholly statutory). To effectively benefit from this right, defendant must be able to
       communicate with counsel in a rational manner. See Owens, 139 Ill. 2d at 360. In light of this
       crucial distinction and the fitness concerns apparent in the record, the trial court needed to
       verify that defendant was mentally competent to assist counsel with the posttrial matters
       before proceeding on defendant’s motion to withdraw the guilty plea. Thus, the court erred



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       when it conducted a hearing on defendant’s motion based on the presumption that defendant
       had received the necessary mental health treatment and was fit.
¶ 22      Due to the procedural posture of this case and parallels with the Owens and Roby
       decisions, we reverse the order denying defendant’s motion to withdraw the guilty plea and
       remand the cause with instruction to conduct a fitness hearing before conducting further
       postplea proceedings.

¶ 23                                       CONCLUSION
¶ 24      The judgment of the circuit court of La Salle County is reversed, and the cause is
       remanded for a fitness determination and further postplea proceedings.

¶ 25      Reversed and remanded.

¶ 26       JUSTICE SCHMIDT, dissenting.
¶ 27       To be clear, the defendant does not argue that the trial court erred in denying his motion
       to withdraw his guilty plea. As the State correctly notes, a defendant does not have an
       automatic right to withdraw a plea of guilty. People v. Delvillar, 235 Ill. 2d 507, 520 (2009).
       “Rather, defendant must show a manifest injustice under the facts involved. [Citation.] The
       decision of the trial court will not be disturbed unless the plea was entered through a
       misapprehension of the facts or of the law, or if there is doubt as to the guilt of the accused
       and justice would be better served by conducting a trial. [Citation.] Where the defendant has
       claimed a misapprehension of the facts or of the law, the misapprehension must be shown by
       the defendant. [Citation.]” Id.
¶ 28       Nowhere in defendant’s arguments to this court can I find an assertion that the trial court
       improperly denied his motion to withdraw his guilty plea due to his misapprehension of the
       law or the facts. Nor can I find an argument made by defendant that justice would be better
       served by conducting a trial. This is not surprising given the factual basis offered below of
       defendant’s guilt. The State proffered that the victim would positively identify the defendant
       as the person who had beaten, kidnapped and sexually assaulted her. The State also indicated
       that the victim made a point of preserving deoxyribonucleic acid (DNA) evidence, which
       would prove defendant’s DNA was both in and on the victim after the attack. Moreover, the
       victim’s blood was found inside defendant’s vehicle. It is not surprising defendant fails to
       argue that the trial court abused its discretion when denying his motion; it is hard to
       contemplate exactly how the defendant could satisfy the factors discussed in Delvillar
       entitling him to withdraw his guilty plea.
¶ 29       Nevertheless, the majority concludes that the trial court erred by conducting the hearing
       on defendant’s motion to withdraw his guilty plea without first holding a fitness hearing. The
       only statutory support for this conclusion cited by the majority is section 104-11 of the Code
       of Criminal Procedure of 1963 (725 ILCS 5/104-11 (West 2008)).
¶ 30       The majority’s reliance on McCallister is misplaced. Citing to McCallister, the majority
       concludes that “the trial court had a duty to sua sponte order a fitness hearing” in this matter
       “because it is a violation of due process to convict an unfit defendant.” Supra ¶ 20.
       Defendant had already been convicted. This motion was not about convicting defendant but,
       rather, “unconvicting” defendant. No one here, including defendant, has raised an issue

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       regarding defendant’s fitness at the time he was convicted. The entire discussion of fitness in
       McCallister involved “the accused’s fitness to stand trial or be sentenced.” McCallister, 193
       Ill. 2d at 111. Moreover, the McCallister court held that the trial court did not err by failing
       to “sua sponte inquire into defendant’s fitness following” testimony that a nurse at the county
       jail stated defendant had not been taking various medications. Id. at 112.
¶ 31        The majority relies heavily upon People v. Owens for the notion that the trial court here
       had a duty to sua sponte conduct a fitness hearing where none had been requested. Owens
       does not support that notion. The majority concludes, based on its review of the record, that
       “the psychiatric evaluations put the court and parties on notice that defendant was likely
       unfit.” Supra ¶ 20. I disagree. The reports that the majority apparently refers to are those in
       February of 2010 and reports from 2011. Over the course of 2½ years, defendant was
       evaluated and treated while in the DOC. Also, during that time, the public defender was
       allowed to withdraw and attorney Randolph Gordon entered an appearance on defendant’s
       behalf. The hearing on defendant’s motion to withdraw his guilty plea was continued
       numerous times over that period while defendant was being treated. Supra ¶¶ 5-10. It is clear
       from the record that neither defense counsel, the State nor the court wanted this hearing to
       take place until defendant was fit. Finally, on July 27, 2012, the hearing took place. The
       defendant was present with counsel who made no request for a fitness hearing and who
       raised no issue about defendant’s ability to cooperate with him, despite the fact of having
       done so in the past. To the contrary, prior to the hearing on the motion to withdraw the guilty
       plea, Gordon filed a Rule 604(d) certificate confirming that he had consulted with defendant
       “in person on a number of occasions” regarding the motion to withdraw the plea. There is
       nothing in this record to suggest that defendant was unfit on July 27, 2012.
¶ 32        In Owens, the trial court denied a defendant’s request for a fitness hearing before denying
       his posttrial motion. The trial court felt that it had no authority to conduct such a hearing. The
       supreme court said it did and remanded for that hearing. In doing so, the supreme court also
       noted that “a greater degree of incompetence must be shown to demonstrate that a petitioner
       is not competent to participate in post-conviction proceedings than is required to show that a
       defendant is not competent to stand trial.” Owens, 139 Ill. 2d at 363. “A post-conviction
       petitioner, on the other hand, will be considered unfit only if he demonstrates that he, because
       of a mental condition, is unable to communicate with his post-conviction counsel in the
       manner contemplated by section 122-4 of the Code of Criminal Procedure and Supreme
       Court Rule 651.” Id. There is nothing in the record to suggest that defendant was unfit at the
       time of the hearing on his motion to withdraw his guilty plea. There was no request by
       defendant, his counsel, or the State for a fitness hearing. There is nothing in defendant’s
       testimony at the hearing that would suggest that he was unfit to communicate and participate.
       In fact, his testimony is exactly what one would expect under the circumstances.
¶ 33        In this postconviction proceeding, it is clear from the record that everyone involved was
       satisfied that defendant was fit. I believe the only thing that could reasonably be gleaned
       from this record is that defendant previously had fitness issues. He was treated over a
       two-year period and the hearing was held only when everyone was satisfied that he was fit.
       There is nothing in the record to suggest that he was not fit to participate in the
       postconviction proceeding.
¶ 34        I, therefore, respectfully dissent.


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