                           NO. 4-05-0942         Filed 5/24/07

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from
          Plaintiff-Appellee,             )   Circuit Court of
          v.                              )   Macon County
DAVID E. MANNS,                           )   No. 04CF912
          Defendant-Appellant.            )
                                          )   Honorable
                                          )   Scott B. Diamond,
                                          )   Judge Presiding.
_________________________________________________________________

            JUSTICE KNECHT delivered the opinion of the court:

            Defendant, David E. Manns, was charged by information

with one count of aggravated robbery (720 ILCS 5/18-5(a) (West

2004)).    The trial court found him unfit to stand trial.   The

trial court later held a discharge hearing and found the evidence

was sufficient to convict defendant of the charges.    Defendant

appeals from this finding, arguing (1) the evidence demonstrated

he was insane at the time of the offense and (2) his trial

counsel was ineffective in not raising an insanity defense to the

charges.    We reverse and remand.

                            I. BACKGROUND

            The charges against defendant were based on his conduct

on the morning of August 3, 2004, in which he took $100 from

Alisha Myers, a teller at Prairie State Bank, by stating he had a

gun.   On August 18, 2004, the day set for defendant's preliminary

hearing, the trial court ordered a fitness evaluation upon motion
of defense counsel.     At that hearing, the following exchange

occurred:

                   "[DEFENDANT]: I'm--I'm American president

            and.

                   THE COURT: Speak a little more slowly.

                   [DEFENDANT]: I'm an American president.

            And talking to a lawyer--and talking to a

            lawyer, the bank I robbed was my bank ***."

The trial court told defendant they would discuss that after he

was seen by Dr. Cuddeback.

            Dr. Georgia Cuddeback, a psychologist for the Rock

Springs Family Medical Center, examined defendant on August 23,

2004, to determine his fitness to stand trial.     She found his

"speech was so rapid and pressured as to be nearly

unintelligible.     He was also observed to yawn and to giggle

inappropriately. [Defendant] was delusional throughout the

evaluation."    Defendant maintained he wrote movies and songs that

had been stolen from him and he was attempting to take his cases

to court.    He stated he had been to Hollywood and acted in

movies.   Defendant denied auditory hallucinations, although his

mother stated he hears voices.     He was unable to recall his

attorney's name but knew he was charged with aggravated robbery.

Defendant was aware of the possible penalties upon conviction of

the charge against him and was aware of the roles of various

court officers.



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          Dr. Cuddeback noted defendant had a history of

psychiatric admissions to five different psychiatric centers or

hospitals.   He had a lengthy history of mental illness, most

likely schizophrenia, paranoid type.     His thought disorder is

characterized by persecutory and grandiose delusions,

hallucinations, and paranoia.   Dr. Cuddeback found while

defendant was aware of the charges against him, he had no

appreciation for the seriousness of the alleged act.     She found

he was unable to assist his attorney in his defense and was unfit

to stand trial.   Dr. Cuddeback also found defendant to be

inappropriate for independent living because his illness rendered

him incapable of conforming his conduct to acceptable standards.

          On September 8, 2004, the trial court considered Dr.

Cuddeback's report and found defendant unfit to stand trial but

likely to be found fit within one year.     Defendant was remanded

to the custody of the Department of Human Services.

          On October 15, 2004, Dr. Tyrone Hollerauer, clinical

psychologist at McFarland Mental Health Center, evaluated

defendant's fitness to stand trial.     Dr. Hollerauer found

defendant was aware of the charges against him and knew he was

being evaluated for his fitness to stand trial.     Defendant's

speech was rapid and his description of events leading to his

arrest was almost incoherent.   Dr. Hollerauer found defendant to

be of average intelligence and his memory to be intact but

tainted by psychosis.   Defendant could not understand how he



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could go to prison because he was just trying to make a point

about the bank stealing his ideas.

          Dr. Hollerauer further found:

          "Persecutory ideas are vaguely noted in that

          people try to take his fame and wealth.    His

          delusions tend to be grandiose in nature.    He

          believes he is extremely intelligent and has

          an 'IQ of 354.'   He also reports having

          studied medicine and wanting to become a

          doctor. [Defendant] felt that the name of the

          bank he allegedly robbed was an idea of his

          when he was in high school.   He reasons that

          the bank's use of this idea was tantamount to

          stealing from him.   He thus concluded that he

          deserves some ownership in the bank.

          [Defendant] also reports that he has authored

          books and songs that others have taken credit

          for."

          Dr. Hollerauer diagnosed defendant with schizoaffective

disorder, bipolar type, and found he remained unfit to stand

trial although he was making progress toward attaining fitness

within one year. On November 18, 2004, the trial court found

defendant still unfit to stand trial.

          On January 6, 2005, Dr. Hollerauer again evaluated

defendant for fitness.   Dr. Hollerauer found defendant to be



                               - 4 -
"floridly psychotic and unstable psychiatrically" and still unfit

to stand trial.    Defendant did not accept counseling and was

delusional and grandiose.    He believed himself to be a lawyer and

a doctor and refused to deal with professionals trying to educate

him.   Defendant claimed the name of the bank was a name he

thought of in high school and concluded "they" stole "[his]

bank."   Dr. Hollerauer noted defendant stated "He was trying to

get everybody's attention 'by showing them that he had a right to

take money from his own bank.'"

           Further, defendant would not talk about his mental

illness and did not believe he had a mental illness.    He was at

that time gravely ill and noncompliant with attempts to treat him

for renal failure.    Although he gave his mother power of

attorney, he specified dialysis cannot be administered even to

save his life.    On February 17, 2005, the trial court found

defendant still unfit to stand trial.

           On February 18, 2005, the trial court received

correspondence from defendant that stated he was a student lawyer

and student doctor and "this case is a strange one, because the

bank I robbed is in fact a bank as I am, also a young

entrepenueur [sic], or businessman thought of as an idea to

prosper myself, but the idea for the bank (the Prairie State

Bank) was somehow stolen."

           On April 1, 2005, Dr. Hollerauer again evaluated

defendant for fitness.    Defendant had reduced spontaneous



                                - 5 -
reporting of delusional ideas although he was still grandiosely

delusional at times.   His physical condition remained serious but

stable.   Defendant appeared to be responding to medication

psychologically, and his impulse control was improving.    He was

willing to take psychotropic medication but did not fully

cooperate with medical care for his renal failure.   Dr.

Hollerauer found defendant still not able to cooperate with

counsel and understand the judicial process but found he was

making progress toward attaining fitness.   On May 16, 2005, the

trial court found defendant was still unfit to stand trial.

          On July 14, 2005, Dr. Hollerauer again evaluated

defendant.   Defendant denied hallucinations but was unreliable as

a historian and was openly paranoid and grandiose.   He believed

he was well-educated and wealthy and felt angry and victimized

when his renal diet was enforced.   He threatened to kill a case

manager and nurse because he could not obtain what he wanted.

Defendant continued to take psychotropic medication although he

had no insight into his mental illness.   His mood was hostile.

Dr. Hollerauer found defendant was unable to cooperate with

defense counsel and did not understand the judicial process.

Further, he was no longer making progress toward attaining

fitness within one year.

          A status hearing was set for September 15, 2005.

Defendant attended the hearing and told the court he was a "true

genius" and he had been trying to attend Southeast School in



                               - 6 -
Decatur since he was three, his mother would not let him finish

college, his high school grade average was a C but "people kept

psyching out--psyching me out about my grades, lowering my

grades."   Defendant asked for a discharge hearing.    A discharge

hearing was set for November 8, 2005.

           On October 12, 2005, defendant was evaluated again for

fitness.   Dr. Hollerauer found defendant's insight into his

mental illness was poor:

           "He does not believe he has a mental illness

           ***.   He denies hallucinations and

           depression.   He is delusional and continues

           to report grandiose ideas of wealth and

           special knowledge of the law and medicine.

           The belief that he owns the bank he allegedly

           robbed persists.   ***   His thoughts are

           illogical and at times incoherent."

Dr. Hollerauer concluded defendant remained unfit and was not

making progress toward attaining fitness within the one-year

requirement.

           On November 8, 2005, the trial court held a discharge

hearing.   Neither defense counsel nor the prosecutor offered an

opening statement.    Alisha Myers testified on the morning of

August 3, 2004, defendant approached her window and told her to

give him some money or he would shoot her.     At first Myers did

not understand what defendant was saying and asked him to repeat



                                - 7 -
himself.   Defendant's hands were not visible and she believed he

had a gun.   As Myers proceeded to get some money, defendant

stated he did not want much, just give him $100.   Myers gave

defendant the $100 and he gave her his identification (ID) card

and said he used to own the bank and it was taken from him.

After defendant walked out of the bank, Myers called the police.

Myers identified the picture on the ID card and defendant as the

man to whom she gave the $100.

           On cross-examination, Myers restated defendant said he

only wanted $100 and the bank had been stolen from him.    She

stated that was all defendant said as he walked out.     Myers also

stated within 30 minutes after the incident, the police took her

to defendant's home to identify him.

           Brian Cleary, a Decatur police officer, testified he

responded to a call about a robbery at Prairie State Bank on

August 3, 2004.   He spoke with Myers, who gave him an ID card of

the suspect.   The ID was a veteran's universal access

identification card with a picture in the right-hand corner of

defendant.   After determining his location, Cleary went to

defendant's home, where defendant identified himself.    Defendant

stated he knew why Cleary was there, removed his right shoe, took

out a $100 bill, and gave it to Cleary.   Defendant told Cleary he

had just gotten the $100 bill from Prairie State Bank.    Myers

identified defendant as the person who had robbed her.

           After Cleary read defendant his Miranda rights (Miranda



                                 - 8 -
v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602

(1966)), defendant stated he wanted to talk to Cleary without his

attorney present.   Cleary said defendant told him the following:

          "[H]e wanted to get caught.   He went there to

          rob the bank.   He said that he asked her for

          a $100.00 [sic].   He told her that he would

          shoot her and pretended like he had a gun so

          that she would give him his money.   He told

          me that he threw his ID down on the counter

          because he wanted to get caught because he

          wanted to go talk to the judge so the judge

          would give him back his bank.   He had

          indicated that when he was in high school, he

          had the idea to open the bank and that the

          president of the bank had stolen the idea

          from him; so, he wanted the bank back.

                               * * *

               *** [H]e went on to speak about, he

          wrote the movie--uh--Fatal Attraction, and

          used the name, Michael Douglas.   He said that

          Michael Douglas stole the name of the movie

          from him.   He indicated that he had grown up

          across the street--uh living on Whitmer

          Street, here in Decatur, across the street

          from President Clinton and that President



                               - 9 -
          Clinton got to be President by causing him,

          [defendant,] pain.    Said that President

          Clinton, also, caused him to use heroin and

          that Mr.--or President Clinton moved to

          Harlem now because Harlem is Heroin City.    He

          further made statements about his mother

          having him admitted to Adolf Myers when he

          was 18, that he had joined the Marine Corps,

          and that another marine had him discharged by

          causing him pain in his head."

          Defense counsel did not cross-examine Cleary.     Defense

counsel did not offer any evidence on behalf of defendant and

declined closing argument.    The State argued it proved beyond a

reasonable doubt that defendant committed the charged offense.

          The trial court found the hearing did not result in an

acquittal of defendant and remanded him to the custody of the

Department of Mental Health and Developmental Disabilities

(Department) for further treatment for a period not to exceed two

years, the statutory maximum (see 725 ILCS 5/104-25(d)(1) (West

2004)), and ordered the Department to submit reports to the court

every 90 days on defendant's fitness to stand trial.

          This appeal followed.

                             II. ANALYSIS

          A defendant who has been found unfit to stand trial is

entitled to a discharge hearing if he remains unfit after one



                                - 10 -
year from the original finding of unfitness.     725 ILCS 5/104-

23(a), 104-25 (West 2004).    A discharge hearing under section

104-25 is an "innocence only" proceeding to determine     whether a

defendant is entitled to a judgment of acquittal.     The purpose of

the hearing is not to make a determination of guilt.     People v.

Waid, 221 Ill. 2d 464, 469-70, 851 N.E.2d 1210, 1213-14 (2006).

The question of guilt is deferred until a defendant is fit to

stand trial.    People v. Rink, 97 Ill. 2d 533, 543, 455 N.E.2d 64,

69 (1983).

            At a discharge hearing, the trial court may make one of

three findings.    First, the court could find the State has

carried its burden of proof in providing evidence by which the

defendant may be proved guilty beyond a reasonable doubt.

Second, the court may acquit the defendant.     Finally, the court

may acquit the defendant based on a finding the defendant is not

guilty by reason of insanity.    725 ILCS 5/104-25(a), (b), (c)

(West 2004).

            The Criminal Code of 1961 provides "[a] person is not

criminally responsible for conduct if at the time of such

conduct, as a result of mental disease or mental defect, he lacks

substantial capacity to appreciate the criminality of his

conduct."    720 ILCS 5/6-2(a) (West 2004).   When the defense of

insanity is presented at trial, the defendant has the burden of

proving by clear and convincing evidence he is not guilty by

reason of insanity.    720 ILCS 5/6-2(e) (West 2004).



                                - 11 -
                  A. Evidence at Discharge Hearing

          Defendant first contends there was ample evidence in

the record at the discharge hearing to find he was legally insane

at the time of the alleged aggravated robbery.      After a bench

trial, a determination of sanity will not be reversed unless it

is so improbable or unsatisfactory as to create a reasonable

doubt of defendant's sanity.     People v. Hoots, 228 Ill. App. 3d

42, 53, 592 N.E.2d 483, 491 (1992).      This was a discharge

hearing, however, and when the trial court entered its judgment,

there was no indication the court considered the question of

defendant's sanity.

          The trial court had the benefit of testimony by both

Myers and Officer Cleary as well as evaluations made by

psychiatric professionals as to defendant's progress during the

year he was an inpatient with the Department of Human Services in

an attempt to make him fit to stand trial.      Evidence was

presented that could have supported a finding of insanity at the

time of the offense because defendant had a lengthy history of

mental illness.

          Insanity is an affirmative defense that must be raised

by the defendant.     People v. Fosdick, 166 Ill. App. 3d 491, 499,

519 N.E.2d 1102, 1108 (1988).    Defendant also bears the burden of

proving it by clear and convincing evidence.      See 720 ILCS 5/6-

2(a), (e), 3-2 (West 2004).    Although evidence in the record

might have supported the defense of insanity, it was not raised



                                - 12 -
by defendant.   The trial court did not err in failing to make a

finding on that issue under these circumstances.

 B. Ineffectiveness of Counsel for Not Raising Insanity Defense

          To prevail on a claim of ineffective assistance of

counsel, a defendant ordinarily must show (1) counsel's

performance was deficient and (2) this deficient performance

prejudiced the defense.     Strickland v. Washington, 466 U.S. 668,

687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984).        To

establish prejudice, a defendant must show there is a reasonable

probability, but for counsel's unprofessional errors, the result

of the proceeding would have been different.       Strickland, 466

U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.       "A

reasonable probability is a probability sufficient to undermine

confidence in the outcome."     Strickland, 466 U.S. at 694, 80 L.

Ed. 2d at 698, 104 S. Ct. at 2068.       A reviewing court must focus

on the fundamental fairness of the proceeding and consider

"whether, despite the strong presumption of reliability, the

result of the particular proceeding is unreliable because of a

breakdown in the adversarial process that our system counts on to

produce just results."    Strickland, 466 U.S. at 696, 80 L. Ed. 2d

at 699, 104 S. Ct. at 2069.

          Under certain circumstances, prejudice may be presumed.

Where defense counsel fails to subject the prosecution's case to

meaningful adversarial testing, the adversary process is

presumptively unreliable.     Unites States v. Cronic, 466 U.S. 648,



                                - 13 -
658-59, 80 L. Ed. 2d 657, 667-68, 104 S. Ct. 2039, 2046-47

(1984).

          The facts in this case are similar to those in People

v. Young, 220 Ill. App. 3d 98, 581 N.E.2d 371 (1991), where the

court found defense counsel ineffective for failing to raise an

insanity defense at a discharge hearing.    In Young, the defendant

was charged with armed violence, intimidation, and unlawful use

of weapons and was found unfit to stand trial.    Young, 220 Ill.

App. 3d at 99, 581 N.E.2d at 373.    At his discharge hearing,

defense counsel presented a defense based on the theory a

conviction of armed violence would be an improper double

enhancement of an intimidation conviction.    Young, 220 Ill. App.

3d at 107, 581 N.E.2d at 379.    Defense counsel put on no

witnesses and engaged in minimal cross-examination and argument.

Further, the court found counsel had put on a defense that was

unsound as a matter of law.   Because the defendant did not

express a wish to concede guilt, defense counsel had not

subjected the prosecution's case to meaningful testing.      Young,

220 Ill. App. 3d at 107-08, 581 N.E.2d at 379.    The court found

because counsel failed to subject the prosecution's case to

meaningful adversarial testing, the result of the discharge

hearing may be presumed to be unreliable.    Young, 220 Ill. App.

3d at 107, 581 N.E.2d at 378-79.

          As the court noted in Young, if no bona fide defense

existed, defense counsel would not be ineffective for not raising



                                - 14 -
one.   Young, 220 Ill. App. 3d at 108, 581 N.e.2d at 379.     But the

argument the defendant was insane at the time of the offense "was

not so lacking in merit as to make it objectively reasonable for

defense counsel to forego any meaningful attempt to raise it."

Young, 220 Ill. App. 3d at 108, 581 N.E.2d at 379.    The defendant

there had been examined by a number of experts who unanimously

concluded he suffered from delusional thinking and paranoia and

had a history of psychological disorders.   Further, his thinking

was found to be in line with a person suffering persecutory

delusions.   Young, 220 Ill. App. 3d at 108, 581 N.E.2d at 379.

The court concluded, even if no witnesses were called on the

issue of insanity, there was no reason counsel could not have at

least attempted to incorporate the evidence on the defendant's

mental health already of record, and it remanded for a new

discharge hearing.   Young, 220 Ill. App. 3d at 108-09, 581 N.E.2d

at 379-80.

           The same result is warranted here.   The finding

defendant was unfit to stand trial and remained unfit was not

proof of insanity at the time of the offense (People v. Britton,

119 Ill. App. 2d 110, 113, 255 N.E.2d 211, 212-13 (1970));

however, the accounts of defendant's behavior at the time of the

offense, statements he made in court, and his fitness evaluations

demonstrate he was delusional at the time of the offense and lend

support to the defense he was unable to appreciate the

criminality of his conduct.



                              - 15 -
           Myers testified she was unable to understand defendant

at first, and in an evaluation only 20 days later, defendant's

speech was found to be "so rapid and pressured as to be nearly

unintelligible"; his description of events leading to his arrest

"almost incoherent."   At those early evaluations, defendant was

found to have "no appreciation for the seriousness of the alleged

act."   He was found to be delusional with probable hallucinations

and had deficits in memory, abstract reasoning, and judgment.

Defendant's delusions were illustrated in his belief he owned the

bank in question or it had been stolen from him, and he was,

therefore, entitled to withdraw money from it.   The trial court

had the benefit of testimony by both Myers and Officer Cleary as

well as evaluations made by psychiatric professionals as to

defendant's progress during the year he was an inpatient with the

Department of Human Services in an attempt to make him fit to

stand trial.   Defendant thought his conduct would be excused

because he believed he "owned the bank."

           Yet defense counsel only cross-examined Myers as to

verify defendant only wanted $100 and said the bank had been

taken from him.   He did not cross-examine Cleary at all.    He did

not offer additional evidence other than defendant's own

testimony.   While the State argued it was proved beyond a

reasonable doubt defendant committed the offense charged, defense

counsel offered no argument at all.    He did not suggest the court

acquit defendant by reason of insanity.    An insanity defense in



                              - 16 -
this case had merit, and it was objectively unreasonable to

forego presenting the defense.   Like the defendant in Young,

defendant was examined by more than one expert who concluded he

suffered from delusional thinking and paranoia.     Dr. Cuddeback

also opined defendant had "no appreciation for the seriousness of

the alleged act."

          Based on the bizarre nature of the offense and

defendant's psychological evaluations, his conduct was more in

line with a person suffering persecutory delusions than a

rational man.   Counsel could have presented evidence or argued in

closing, based on the evidence already before the court, that

defendant should be acquitted by reason of insanity.     Defense

counsel's failure to do so results, as in Young, in a presumption

of prejudice and renders the result of the discharge hearing

unreliable.

          Actual prejudice existed here where an insanity defense

was reasonable based on the evidence in the record and it is the

only viable defense defendant had.     Defendant suffered actual

prejudice because defense counsel failed to present the only

viable defense available to him.   We express no opinion on the

likelihood of success.   The definitions of insanity and fitness

differ.   The question of insanity focuses on the mental state of

the defendant at the time of the offense.     The question of

fitness focuses on the mental state of the defendant at the time

of trial or preparation for trial.     However, this defendant's



                              - 17 -
mental state just 22 days after the alleged offense coupled with

his history of mental illness and his bizarre conduct and

statements on the day of the offense bespeak the merits of the

defense.   While facing a formidable challenge due to the burden

of proof, defense counsel was ineffective for failing to mount a

challenge to the State by presenting the defense of insanity.

                          III. CONCLUSION

           For the foregoing reasons, we reverse the trial court's

judgment and remand the cause.

           Reversed and remanded.

           APPLETON and McCULLOUGH, JJ., concur.




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