                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            People v. Holt, 2013 IL App (2d) 120476




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARY M. HOLT, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0476


Filed                      October 29, 2013


Held                       Defendant’s appeal from a hearing finding that she was unfit to stand trial
(Note: This syllabus       on charges of resisting a peace officer was rendered moot by the finding
constitutes no part of     during the pendency of the appeal that defendant was fit to stand trial, but
the opinion of the court   the merits of the appeal alleging that her counsel at the hearing was
but has been prepared      ineffective in failing to advocate her position that she was fit would be
by the Reporter of         considered under the exception applicable when the stigma of the finding
Decisions for the          of unfitness could return to haunt defendant in later proceedings or other
convenience of the         parts of her life, and in defendant’s case, her counsel was not ineffective
reader.)
                           in exercising his professional judgment by rejecting her desire to be found
                           fit and arguing for a finding of unfitness in order to protect her right to
                           due process.


Decision Under             Appeal from the Circuit Court of Kendall County, Nos. 10-CM-1186, 11-
Review                     CM-562; the Hon. John A. Barsanti, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and R. Christopher White, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Eric C. Weis, State’s Attorney, of Yorkville (Lawrence M. Bauer and Jay
                           Paul Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office,
                           of counsel), for the People.


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




                                             OPINION

¶1          This appeal arises from an order of the circuit court of Kendall County finding defendant,
        Mary M. Holt, unfit to stand trial on charges of resisting a peace officer (720 ILCS 5/31-1
        (West 2010)), disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2010)), and criminal trespass
        to a residence (720 ILCS 5/19-4(a)(1) (West 2010)). The trial court entered the order after
        granting a motion by defendant’s attorney for a directed verdict in a fitness hearing held
        before a jury. Defendant contends that her position during the proceedings below was that
        she was fit. She argues on appeal that, because her attorney failed to advocate that position,
        she was deprived of the effective assistance of counsel. We affirm.
¶2          Defendant was initially charged with resisting a peace officer and disorderly conduct.
        Those charges arose from an incident that occurred in November 2010. In February of the
        following year, defendant entered a negotiated guilty plea to the charge of resisting a peace
        officer, and the other charge was nol-prossed. Defendant was sentenced to a 12-month term
        of probation. Defendant successfully moved to withdraw her plea, asserting that her privately
        retained attorney had misinformed her that her plea would not result in a conviction.
        Defendant’s attorney was given leave to withdraw and the office of the Kendall County
        public defender was appointed to represent defendant in the proceedings that ensued. In June
        2011, defendant was charged with criminal trespass to a residence. Shortly thereafter,
        however, the State advised the trial court that there was a bona fide doubt as to defendant’s
        fitness to stand trial. Defendant was ordered to submit to a fitness evaluation. Defendant
        unsuccessfully moved, pro se, to vacate that order. In her motion, defendant argued that there
        was no “necessity or basis” for the order. She asserted that she was “a College Degreed Grad
        and CURRENT Certified Educator in Illinois; able to manage court proceedings.”
¶3          Defendant’s fitness hearing took place on April 16, 2012. During its opening argument,
        the State advised the jury that it was the State’s burden to prove that defendant was fit to
        stand trial. The State conceded that it would be unable to meet that burden. The State
        presented the testimony of Timothy Brown, the clinical psychologist who supervised

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     defendant’s fitness evaluation. Brown testified that his opinion was that defendant was not
     fit to stand trial. As noted, defendant’s attorney moved for a directed verdict and the trial
     court granted the motion. The court also concluded that, with treatment, defendant was likely
     to attain fitness within one year. The court remanded defendant to the Department of Human
     Services for inpatient mental-health treatment. This appeal followed.
¶4        We note that defendant has advised us that, during the pendency of this appeal, she has
     been found fit to stand trial. As a result, the issue of whether she received the effective
     assistance of counsel during the proceedings below is moot. However, we may consider an
     otherwise moot case where a finding that a defendant was unfit to stand trial because of a
     mental condition, and an order that the defendant undergo treatment in a mental-health
     facility, “ ‘could return to plague the [defendant] in some future proceedings or could affect
     other aspects of the [defendant’s] life.’ ” In re Charles H., 409 Ill. App. 3d 1047, 1053
     (2011), appeal allowed, No. 112603 (Ill. Sept. 28, 2011), and No. 112562 (Ill. Nov. 30,
     2011) (quoting In re Val Q., 396 Ill. App. 3d 155, 159 (2009)). That is the case here. Beyond
     the stigma attached to the finding and treatment order, defendant could suffer adverse legal
     consequences including, for instance, limitations on her right to own firearms (see 430 ILCS
     65/8(e) (West 2012)). Accordingly, we will decide defendant’s appeal on the merits.
¶5        The due process clause forbids conviction of a defendant who is unfit to stand trial.
     People v. McCallister, 193 Ill. 2d 63, 110 (2000). Section 104-11(a) of the Code of Criminal
     Procedure of 1963 (Code) (725 ILCS 5/104-11(a) (West 2012)) provides:
          “The issue of the defendant’s fitness for trial, to plead, or to be sentenced may be raised
          by the defense, the State or the Court at any appropriate time before a plea is entered or
          before, during, or after trial. When a bona fide doubt of the defendant’s fitness is raised,
          the court shall order a determination of the issue before proceeding further.”
¶6        When the issue of fitness is raised before trial, either the State or the defendant may
     demand that the issue be decided by a jury, or the trial court may order a jury on its own
     motion. 725 ILCS 5/104-12 (West 2012). Pursuant to section 104-11(c) of the Code (725
     ILCS 5/104-11(c) (West 2012)), “[w]hen a bona fide doubt of the defendant’s fitness has
     been raised, the burden of proving that the defendant is fit by a preponderance of the
     evidence and the burden of going forward with the evidence are on the State.” Section 104-
     10 of the Code (725 ILCS 5/104-10 (West 2012)) provides that “[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.” If the court or the jury
     finds that the defendant is unfit, it shall also determine “whether there is substantial
     probability that the defendant, if provided with a course of treatment, will attain fitness
     within one year,” in which case the court shall order the defendant to undergo treatment for
     the purpose of rendering him or her fit. 725 ILCS 5/104-16(d) (West 2012). Section 104-
     17(b) of the Code (725 ILCS 5/104-17(b) (West 2012)) provides that, if the defendant is unfit
     due to a mental condition, “the court may order him placed for treatment in the custody of
     the Department of Human Services, or the court may order him placed in the custody of any
     other appropriate public or private mental health facility or treatment program which has
     agreed to provide treatment to the defendant.”


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¶7         Here, a bona fide doubt of defendant’s fitness was raised by the State. In a pro se motion,
       defendant essentially disputed that her fitness was in doubt. At the fitness hearing, the State
       did not present evidence to show that defendant was fit; to the contrary, the State
       acknowledged that it would not be able to meet its burden of establishing fitness. Defendant
       argues that she was deprived of her right to the effective assistance of counsel inasmuch as
       “defense counsel failed to even nominally assert [defendant’s] position of fitness, and in fact
       asked for a directed verdict in favor of the State [sic].”
¶8         Ordinarily, claims of ineffective assistance of counsel are evaluated under the two-prong
       test set forth in Strickland v. Washington, 466 U.S. 668 (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.” Id.
       at 688, 694. However, a defendant need not make the showing of prejudice (as that term is
       used in Strickland) “if counsel entirely fails to subject the prosecution’s case to meaningful
       adversarial testing.” United States v. Cronic, 466 U.S. 648, 659 (1984). In that situation,
       “there has been a denial of Sixth Amendment rights that makes the adversary process itself
       presumptively unreliable.” Id. Defendant contends that that is what occurred here. As noted,
       however, it was the State’s burden to prove that defendant was fit. Defense counsel subjected
       the State’s case to meaningful adversarial testing by successfully arguing that the State had
       failed to meet its burden of proof and thereby obtaining a directed verdict. Granted, the State
       made defense counsel’s job easy by conceding that it would be unable to sustain its burden.
       That, however, is no reason to conclude that defense counsel’s performance was deficient.
¶9         The thrust of defendant’s argument is not so much that counsel was an ineffective
       adversary to the State but, rather, that counsel’s position on fitness was antithetical to
       defendant’s personal preference for a finding that she was fit to stand trial. Underlying that
       argument is the assumption, for which no authority is cited, that a criminal defendant whose
       fitness is subject to a bona fide doubt is entitled to decide whether to seek a finding of fitness
       or unfitness and that his or her attorney is bound by that decision. This assumption is
       incorrect.
¶ 10       There is authority that an attorney is not obliged to assist a defendant in an attempt to
       feign a mental condition to obtain a finding that the defendant is not fit to stand trial. It has
       been observed:
                “Where a defense attorney knows that his client is capable of communicating
           intelligently, and the client, in an apparent attempt to deceive the trier of fact, presents
           confused or self-contradictory testimony, it is the ethical responsibility of defense
           counsel to disclose to the trial court the facts as he knows them. [Citation.] Our supreme
           court has held [citation] that defense counsel’s duty with respect to the issue of a
           defendant’s fitness consists not in exerting a maximum effort to obtain a finding that the
           defendant is unfit, but, rather, in taking all necessary steps to insure a fair determination
           of the issue.” People v. Lewis, 75 Ill. App. 3d 560, 565-66 (1979) (citing People v.
           Brown, 31 Ill. 2d 415 (1964)).
       However, our research has not uncovered any published opinion in Illinois addressing the


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       precise question raised here, to wit, whether an attorney must defer to a defendant who takes
       the position that he or she is fit for trial. Accordingly, it is appropriate to look to decisions
       from other states for guidance. See Rhone v. First American Title Insurance Co., 401 Ill.
       App. 3d 802, 812 (2010) (“Although the decisions of foreign courts are not binding, ‘the use
       of foreign decisions as persuasive authority is appropriate where Illinois authority on point
       is lacking or absent.’ ” (quoting Carroll v. Curry, 392 Ill. App. 3d 511, 517 (2009))).
¶ 11        We are persuaded by the reasoning of the California Court of Appeal in People v. Bolden,
       160 Cal. Rptr. 268 (Cal. Ct. App. 1979). In Bolden, two psychiatrists testified for the
       prosecution that the defendant, who was charged with a violent crime, was suffering
       delusions and was therefore not competent to stand trial. Defense counsel explained to the
       trial court that the defendant wanted to testify at the hearing on competency and wanted to
       be found competent to stand trial. Counsel indicated, however, that the defendant’s wishes
       were in conflict with the defendant’s best interests. Counsel believed that the defendant had
       a potentially viable insanity defense, but that the defendant’s cooperation was necessary to
       advance that defense. Counsel further believed that the defendant’s mental condition
       interfered with the defendant’s ability to cooperate in the defense. As the Bolden court
       explained, “[c]ounsel’s solution to this dilemma was to place [the defendant] on the witness
       stand to testify to his competence, and then to offer his own psychiatric witness who testified
       [that the defendant] was not competent to stand trial.” Id. at 269. On appeal from a jury
       verdict finding the defendant not competent to stand trial, the defendant claimed that he did
       not receive the effective assistance of counsel. The court rejected the argument, reasoning
       as follows:
                “[The defendant] contends [that] *** he did not receive ‘the kind of legal assistance
            to be expected of a reasonably competent attorney acting as a conscientious, diligent
            advocate.’ [Citation.] No complaint is made about the skill of his attorney or the
            attorney’s dedication to his client. [The defendant’s] contention is the attorney was acting
            in what he felt was the best interest of his client rather than as an advocate of his client’s
            position. By his attorney ‘siding’ with the People in offering evidence of incompetence,
            [the defendant] contends, his desire to be found competent went unrepresented.
                Diligent advocacy does not require an attorney to blindly follow every desire of his
            client. An attorney can ordinarily make binding waivers of many of his client’s rights as
            to matters of trial tactics [citation]. When the attorney doubts the present sanity of his
            client, he may assume his client cannot act in his own best interests and may act even
            contrary to the express desires of his client [citation]. To do otherwise may cause
            prejudicial error [citation].” (Emphasis in original.) Id. at 270.
¶ 12        Expounding on the reasoning in Bolden, the California Court of Appeal has further
       observed:
            “Defense counsel’s ultimate responsibility to his client is to ensure that [the due process
            clause’s prohibition against convicting a defendant who is unfit to stand trial is] not
            violated. It would place defense counsel and the integrity of the criminal justice system
            in an impossible position to suggest that defense counsel must ignore his or her bona fide
            doubt as to the defendant’s present competence, simply because the defendant is


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           personally confident that he or she is competent.” People v. Harris, 18 Cal. Rptr. 2d 92,
           98 (Cal. Ct. App. 1993).
¶ 13       Moreover, although an attorney may choose (as the attorney in Bolden did) to call a
       defendant to testify that he or she is competent, it is not a sine qua non. See People v.
       Blacksher, 259 P.3d 370, 436 (Cal. 2011) (“we have never suggested that the Bolden
       procedure was mandatory under any circumstance”). In this setting, counsel must exercise
       professional judgment in order to ensure that the defendant, if unfit, is not tried in violation
       of his or her right to due process of law. A rigid procedural rule requiring counsel to call the
       defendant to testify would undermine counsel’s ability to most effectively protect the
       defendant’s constitutional rights and could cause reversible error.
¶ 14       For the foregoing reasons, the judgment of the circuit court of Kendall County is
       affirmed.

¶ 15      Affirmed.




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