                          No. 3-07-0006
_________________________________________________________________
Filed November 7, 2008
                             IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                             A.D., 2008


PEOPLE OF THE STATE OF        )    Appeal from the Circuit Court
ILLINOIS,                     )    of the Tenth Judicial Circuit
                              )    Peoria County, Illinois
     Plaintiff-Appellee,      )
                              )
     v.                       )    No. 05-CF-351
                              )
SHONE L. JONES                )    Honorable
                              )    Scott Shore
     Defendant-Appellant.     )    Judge Presiding.
_________________________________________________________________

       JUSTICE LYTTON delivered the Opinion of the court:
_________________________________________________________________

     Defendant,   Shone   Jones,   was    charged   with   a     13-count

indictment.   Defendant’s attorney requested a hearing to determine

defendant’s fitness to stand trial.       A jury found defendant fit,

and defendant’s case proceeded to trial. After all of the evidence

had been presented at trial, defense counsel moved for a mistrial

so that defendant could be examined for fitness.      The trial court

denied the motion.   Defendant was found guilty of 11 of the charges

against him and was sentenced to 25 years in prison.           On appeal,

defendant argues that the trial court erred in finding him fit to

stand trial and denying his motion for a mistrial.     We reverse and

remand.
                                 BACKGROUND

     In April, 2005, defendant was charged with four counts of

armed violence, three counts of aggravated discharge of a firearm,

three   counts   of   aggravated   unlawful      restraint,    one   count   of

unlawful possession by a felon, one count of criminal damage to

property, and one count of unlawful possession of a controlled

substance. In June, 2005, defendant’s attorney, Thomas Iben, asked

that defendant undergo a psychiatric evaluation.

     On August 3, 2005, defendant wrote a handwritten note to the

trial judge alleging that Iben violated his sixth amendment rights.

The trial judge construed the note to be a motion for new counsel

and scheduled a hearing on the motion.            On August 9, 22, and 23,

2005, defendant submitted handwritten correspondence to the court

in which he alleged that the State filed fabricated and fraudulent

documents, that Iben was working against him, that Iben and the

assistant State’s Attorney, Joseph Bembenek, committed misconduct,

and that the court was practicing "illegal justice."

     On   August   26,   2006,   the   trial    court   held   a   hearing   on

defendant’s motion for new counsel.            At that hearing, defendant

accused Iben of violating his constitutional rights.                 The trial

court granted defendant’s request for new counsel.             Hugh Toner was

appointed as defendant’s new counsel.

     On September 21, 2005, the trial court received three more

handwritten letters from defendant.            In those letters, defendant


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accused Iben of being involved in a conspiracy with the State and

accused Judge Galley of professional violations.             On September 28,

2005, Toner filed a motion to require defendant to undergo a

psychological examination.           During the hearing on that motion,

defendant disrupted the court and was warned that the hearing would

be held without him if he continued to be disruptive.

      On October 6 and 9, 2005, defendant sent nine more letters to

the trial court, alleging that Judge Galley, Judge Shore, Toner and

Bembenek all committed constitutional and/or ethical violations.

He claimed that all of the attorneys and judges were against him.

From October 12 to November 10, 2005, defendant sent eight more

letters to the court, accusing the circuit clerk’s office of

assisting the State in criminal acts and alleged that the State and

police were involved in a conspiracy against him.

      On November 28, 2005, Toner notified the court that defendant

was     not    cooperating    with   him   regarding    the    psychological

evaluation.      At that time, the trial court admonished defendant

that he should cease writing letters to the court.            Defendant said

he understood.

      On December 9 and 13, 2005, defendant sent five more letters

to the trial court, alleging that Judge Galley, Bembenek, Iben and

Toner    all    defrauded    the   court   and   displayed    "a   pattern   of

misconduct."      On December 14, 2005, defendant sent a handwritten

motion to suppress evidence along with a handwritten letter to the


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clerk   of   the   court.   In   his   letter,   defendant   alleged   that

"something * * * wasn’t right about [the] court reporter who was at

my hearing Dec. 7, 2005.         Her fingers wasn’t moving like they

suppose too [sic]."

     On December 21, 2005, Toner notified the court in writing that

he believed there was a bona fide doubt as to defendant’s fitness

and requested a hearing before a jury to determine if defendant was

fit to stand trial. From December 28, 2005 to February 9, 2006,

defendant sent several more letters to the trial court.          In those

letters, he alleged that Bembenek framed him, that Toner was not

effectively representing him and that police officers involved in

his case falsified documents and lied to the grand jury.

     On February 17, 2006, Toner requested that defendant be

appointed a separate attorney to represent him during the fitness

hearing.     The trial court granted the request and entered an order

stating: "Court finds bona fide doubt as to Defendant’s fitness."

Marcia Straub was appointed to represent defendant at the fitness

hearing.     From March 24 to May 15, 2005, defendant sent several

more handwritten letters to the court, alleging that "everybody in

this case has been showing bias against me."

     On June 20, 2006, a hearing in front of a jury to determine

defendant’s fitness to stand trial began.          The State and defense

counsel stipulated that all of the letters defendant filed with the

court between August 9, 2005 and December 14, 2005 would be


                                       4
considered by the jury as evidence.

     The State’s only witness was Dr. Sohee Lee, an expert in the

field of psychiatry.   Dr. Lee attempted to interview defendant on

two different occasions. On the first occasion, defendant told Dr.

Lee that he didn’t want to talk to him because he would "just make

a story and try to turn me as a crazy person and put me away to the

crazy house."   On the second occasion, defendant refused to say

anything to Dr. Lee.

     Dr. Lee reviewed the police reports, grand jury transcript and

correspondence that defendant sent to the court and concluded that

defendant was probably suffering from a grandiose and persecutory

type of delusional disorder.     According to Dr. Lee, defendant

believes he was falsely accused and illegally detained and that the

entire court system is trying to punish him.   Dr. Lee saw evidence

of this from the police report and defendant’s letters.

     Dr. Lee also concluded that defendant has false beliefs and

misinterprets reality, such as his belief that the court reporter

was "acting funny."    Because of defendant’s delusions, Dr. Lee

thought that defendant would not be able to comprehend the charges

against him or cooperate with his defense attorney.        Dr. Lee

testified that there was a substantial probability that defendant

would attain fitness within one year if he was properly medicated.

     Defendant presented himself as his only witness.   Defendant’s

jaw was wired shut, so he responded to questions in writing.    He


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was able to identify his current and former attorneys, as well as

the current and former judges in his case.       He knew that he was

charged with 13 counts and said that he was able to understand the

charges against him.    He testified that he told Dr. Lee that he

didn’t want to talk because he "didn’t need no examination to beat

the case."

     The jury found defendant fit to stand trial, and the trial

court entered an order reflecting the jury’s decision. On June 30,

2006, Toner filed a notice of intent to rely on the defense of

insanity in defendant’s trial.    The trial court appointed Dr. Lee

to conduct a psychiatric evaluation of defendant and told defendant

that if he did not cooperate in the examination, he may be barred

from raising an insanity defense. On July 3, 2006, defendant wrote

two more letters to the court in which he accused Toner of ethics

violations and falsifying evidence.

     On July 15, 2006, Dr. Lee appeared at the Peoria County Jail

to perform his psychiatric examination of defendant.         Defendant

again refused to speak to Dr. Lee.      On July 19, 2006, the State

filed a motion to bar defendant from offering any evidence of

insanity.    On July 20, 2006, the trial court ruled that defendant

was barred from producing expert evidence or testimony of insanity.

On the same day, Toner advised the court that defendant accused him

of putting a contract or hit out on him.   The trial court found the

charge   baseless.     The   record   reflects   that   defendant   was


                                  6
"jabbering" throughout the court proceeding and had to be warned by

the trial judge to "be more cooperative."

     On August 2, 2006, Toner advised the court that defendant was

refusing to talk and cooperate with him.     The trial court ordered

defendant to cooperate with Toner.      On August 4, 2006, defendant

sent another letter to the trial court, accusing the clerk, court

reporters and judges of "fraud and criminal acts."

     Before jury selection in defendant’s trial began on August 28,

2006, the trial court advised defendant that he had the right to

wear street clothes and not be visibly shackled, but defendant

chose to wear his prison attire and hand and feet shackles.       Toner

again advised the court that he did not believe that defendant was

fit to stand trial.    The trial court replied, "On the issue of

fitness, we’ve gone over all of this."    Before the jury entered the

courtroom, the court reminded defendant that he did not have to

wear shackles.   At that time, defendant requested that his wrist

shackles be removed but wanted the leg shackles to remain.

     On the second day of trial, the trial court again questioned

defendant about his desire to be shackled and in prison garb.     This

time, defendant told the court that he wanted to wear street

clothes and be unshackled.

     On the third day of trial, defendant addressed the court and

accused Toner of "not abiding by the scopes of representation,

misconduct,   dishonesty,    deceit,   misrepresentation"   and   "not


                                  7
addressing the issue I want to address." Toner explained that "for

a long period of time, my client wouldn’t talk to me."        Toner

stated that he would have called some witnesses on defendant’s

behalf, but defendant would not permit it.

     After the close of evidence, Toner requested a mistrial "for

the purpose of having [defendant] examined for fitness." According

to Toner, defendant was "unable to truly assist in preparation and

participating in the [trial] process, because he becomes obsessed

and focused on essentially what have been described as * * * almost

a paranoid fascination of delusion that people are out to get him."

The trial court denied the motion, explaining that although he was

initially concerned with defendant’s decision to wear jail clothing

and remained shackled "that did not raise a sufficient concern as

to fitness of the Defendant for me to find [a] bona fide doubt, and

the issue has been previously addressed by a jury, and I accept the

verdict that was previously rendered that the Defendant was, in

fact, fit to proceed to trial."

     The jury found defendant guilty of four counts of armed

violence, two counts of aggravated discharge of a firearm, two

counts of aggravated unlawful restraint and one count each of

unlawful possession of a weapon by a felon, criminal damage to

property and unlawful possession of a controlled substance.

     Defense counsel filed a motion for a new trial, arguing in

part that the court erred in "allowing the Jury verdict on the


                                  8
issue of Fitness" and "denying the Defense’s motion for a mistrial

concerning the Defendant’s mental status."           On December 4, 2006,

defendant sent a final letter to the trial court, again alleging

that his constitutional and statutory rights had been violated and

asserting that "[a]s far as I can tell everything is illegal that

have anything do with my case."

     On December 22, 2006, the trial court held a hearing on post-

trial motions and sentencing. The court heard arguments on defense

counsel’s motion for a new trial and on defendant’s claims that

Toner did not effectively represent him.           The trial court denied

the motion for a new trial and found that defendant’s allegations

against Toner did not raise a bona fide issue as to ineffective

assistance.   The trial court then sentenced defendant to 25 years

imprisonment.




                                 ANALYSIS

                                     I.

     Defendant argues that the trial court erred in finding him fit

to stand trial because the State conceded that he was unfit, the

uncontradicted expert testimony was that he was unfit and defense

counsel   repeatedly   advised    the     court   that   defendant   was   not

assisting in his defense.

     The due process clause of the fourteenth amendment bars


                                     9
prosecuting a defendant who is unfit to stand trial.                   People v.

Shum, 207 Ill. 2d 47, 57, 797 N.E.2d 609, 615 (2003).             A defendant

is   unfit   to   stand   trial   if,   based   on   a   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 2006); People v. Burton, 184 Ill. 2d 1, 13, 703

N.E.2d 49, 55 (1998).

      When a bona fide doubt of defendant’s fitness has been raised,

the party alleging that defendant is fit has the burden of proving,

by a preponderance of the evidence, that defendant is fit to stand

trial.   See People v. Baugh,      358 Ill. App. 3d 718, 732, 832 N.E.2d

903, 915 (2005).     A court’s ruling on the issue of fitness will be

reversed if it is against the manifest weight of the evidence.

People v. Jamison, 197 Ill. 2d 135, 153, 756 N.E.2d 788, 797

(2001); Burton, 184 Ill. 2d at 13, 703 N.E.2d at 55.

      In reaching its fitness determination, the trial court is not

required to accept the opinions of psychiatrists.                      People v.

Baldwin, 185 Ill. App. 3d 1079, 1086, 541 N.E.2d 1315, 1320 (1989).

The trial court should assess the credibility and weight to give an

expert’s testimony and independently analyze and evaluate the

factual basis for the expert’s opinion.          See Baugh, 358 Ill. App.

3d at 732,    832 N.E.2d at 915; Baldwin, 185 Ill. App. 3d at 1086,

541 N.E.2d at 1320.         However, a trial court cannot reject an

expert’s opinion that a defendant is unfit without testimony or


                                        10
evidence   that   defendant   was   fit,   other   than   defendant’s   own

statement.   See People v. McKinstray, 30 Ill. 2d 611, 616-17, 198

N.E.2d 829, 832 (1964); People v. Schoreck, No. 2-06-0452, slip op.

at 21-24 (Ill. App. Aug. 15, 2008); Baldwin, 185 Ill. App. 3d at

1087, 541 N.E.2d at 1321.

     An incompetent defendant is not a reliable witness regarding

his own competency.     See McKinstray, 30 Ill. 2d at 616-17, 198

N.E.2d at 832; Schoreck, No. 2-06-0452, slip op. at 21-22; Baldwin,

185 Ill. App. 3d at 1086, 541 N.E.2d at 1320.        As explained by our

supreme court in McKinstray:

     "To accept defendant’s opinion that he is able to co-

     operate with counsel in his defense, when the purpose of

     the hearing is to determine that very fact, would make a

     sham out of the sanity hearing, especially here where

     there is * * * the opinion of the sole medical witness

     that the defendant, although understanding the nature of

     the crime with which he was charged, was unable to co-

     operate with his counsel * * *."        McKinstray, 30 Ill.2d

     at 616-17, 198 N.E.2d at 832.

Similarly, the court in Schoreck held that a trial court cannot

consider a defendant’s opinions about whether he is fit to stand

trial, understands the proceedings against him or can participate

in his defense, "for such would be clear question-begging" and

"would circumvent the fitness inquiry." Schoreck, No. 2-06-0452,


                                    11
slip op. at 21 and 22.

      Here, defendant provided his opinion at the fitness hearing

that he understood the proceedings against him.               The only other

evidence    presented    was    the   uncontradicted       testimony    of   the

psychiatric expert, Dr. Lee, who testified that defendant suffered

from a grandiose and persecutory type of delusional disorder that

rendered him unable to understand the charges against him and

unable to assist in his defense.           Dr. Lee ’s opinion was supported

by   his   review   of   many   documents,     including    over   30   letters

defendant wrote to the court showing defendant’s false beliefs and

misinterpretation of reality.

      Since the uncontradicted expert testimony was that defendant

was unfit and the only evidence to the contrary was defendant’s own

statement, the jury’s conclusion that defendant was fit to stand

trial was against the manifest weight of the evidence.                       See

McKinstray, 30 Ill. 2d at 616-17, 198 N.E.2d at 832; Baldwin, 185

Ill. App. 3d at 1087, 541 N.E.2d at 1321.           The trial court should

not have entered an order finding defendant fit based on the jury’s

verdict but should have entered a directed verdict of unfitness

based on the evidence presented.            See McKinstray, 30 Ill. 2d at

617, 198 N.E.2d at 832.

      Because defendant was unfit to stand trial two months before

his trial and no subsequent hearing was held finding defendant fit,

defendant should not have been placed on trial.            See Shum, 207 Ill.


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2d at 57, 797 N.E.2d at 615.              The judgment convicting defendant

must be reversed.       See McKinstray, 30 Ill. 2d at 617, 198 N.E.2d at

832.    On remand, the trial court shall conduct a new hearing to

determine if defendant is now fit to stand trial.                      See 725 ILCS

5/104-16 (West 2006).

                                         II.

       Because we find that the jury’s finding of fitness was against

the    manifest    weight     of   the   evidence     and   reverse     defendants’

convictions       on   that   basis,     we    need   not   consider    defendant’s

additional argument that the trial court erred in denying the

motion for a mistrial.

                                     CONCLUSION

       The judgment of the Circuit Court of Peoria County is reversed

and remanded.

       Reversed and remanded.

       MCDADE, PJ., and WRIGHT, J., concurring.




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