                           NO. 4-08-0036               Filed 12/19/08

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )   Appeal from
          Plaintiff-Appellee,          )   Circuit Court of
          v.                           )   Champaign County
CORNELIUS M. TAPSCOTT,                 )   No. 06CF212
          Defendant-Appellant.         )
                                       )   Honorable
                                       )   Thomas J. Difanis,
                                       )   Judge Presiding.
_________________________________________________________________

           JUSTICE MYERSCOUGH delivered the opinion of the court:

           In May 2006, defendant, Cornelius M. Tapscott, pleaded

guilty to criminal sexual assault (720 ILCS 5/12-13(a)(2) (West

2004)).    He was sentenced to 15 years in the Department of

Corrections (DOC) with 96 days' sentence credit.      Defendant

appealed his conviction and sentence.      This court remanded the

cause because defense counsel's certificate was not in compliance

with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)).      People

v. Tapscott, No. 4-06-0680 (July 30, 2007) (unpublished order

under Supreme Court Rule 23).     Defendant now appeals on the

following grounds: (1) the trial court's failure to sua sponte

conduct a fitness hearing and (2) alternatively, ineffective

assistance of counsel for counsel's failure to request a fitness

hearing.   We affirm.

                            I. BACKGROUND

           In January 2006, the State charged defendant by infor-
mation with two counts of aggravated criminal sexual assault.

Count I alleged that defendant committed the Class X felony of

aggravated criminal sexual assault when, with the threat of the

use of force, he placed his penis in the sex organ of the victim

while he was armed with a firearm (720 ILCS 5/12-14(a)(8), (d)

(West 2004).    Count II alleged that defendant committed the Class

X felony of aggravated criminal sexual assault when, with the

threat of the use of force, he placed his penis in the sex organ

of the victim while threatening the victim in such a way as to

believe under the circumstances he was utilizing a dangerous

weapon (720 ILCS 5/12-14(a)(1), (d) (West 2004)).   In February

2006, the grand jury returned a two-count indictment charging

defendant with the identical counts of aggravated criminal sexual

assault.

           On April 6, 2006, the State charged defendant by

information with the Class 1 felony of criminal sexual assault

(720 ILCS 5/12-13(a)(2), (b) (West 2004)) (count III).   That same

day, defendant filed a jury waiver.

           On April 7, 2006, the parties appeared for a guilty

plea hearing.   The trial court advised defendant that the State

filed an additional count (count III) charging him with criminal

sexual assault.   The court explained the new charge stated that

defendant committed an act of sexual penetration on the victim by

placing his penis in the vagina of the victim knowing that she


                                - 2 -
was unable to give knowing consent.      Defendant advised the court

he understood the charge.    The court further admonished defendant

that this was a Class 1 felony with a minimum sentence of 4 years

and a maximum sentence of 15 years, followed by a period of

mandatory supervised release of 2 years.     Defendant advised the

court he understood the potential penalties.     When asked, defen-

dant indicated his intention to plead guilty.

          The trial court further admonished defendant as fol-

lows:

                  "THE COURT: Now, [defendant], when you

          come in to court and offer to plead guilty,

          that means you're going to give up some

          rights.

                  You have an absolute right to a trial on

          this charge and that would either be a trial

          in front of a judge or a trial in front of a

          jury.

                  But when you come in to court and offer

          to plead guilty, that means you're going to

          give up your right to a trial and we're not

          going to have a trial of any kind; you under-

          stand that?

                  THE DEFENDANT: Yes, sir.

                  THE COURT: If we were going to have a


                                 - 3 -
trial, the State would have to prove you

guilty beyond a reasonable doubt before you

could be convicted.    You understand that?

     THE DEFENDANT: Yes, sir.

     THE COURT: And as you sit there now, you

can still plead not guilty and demand a

trial.   You understand that?

     THE DEFENDANT: Yes sir.

     THE COURT: Again, if there was a trial

in your case, you would have a right to hear

the witnesses testify.    They'd sit there in

the witness chair and they would testify in

open court.    You could sit there and listen

to what they had to say and then you could

ask them questions about what they had said

through your lawyer.    That's called cross-

examination.

     You could call witnesses at your trial

if you wanted.    And you could testify at your

trial if you wanted.    But if you did not want

to testify at your trial, no one could make

you do that if you didn't want to.    You un-

derstand that?

     THE DEFENDANT: Yes, sir.


                       - 4 -
                  THE COURT: So, you understand that when

          you plead guilty, that means you're going to

          give up your right to a trial and we won't

          have a trial of any kind; you understand

          that?

                  THE DEFENDANT: Yes, sir.

                  THE COURT: Now, is your plea of guilty

          today voluntary?    Is this of your own free

          will?

                  THE DEFENDANT: Yes, sir."

          The State advised that in exchange for defendant's

guilty plea to count III, the State would move to dismiss counts

I and II as well as another pending felony case.    The agreement

did not include any sentencing recommendation.    The trial court

advised defendant as follows:

                  "THE COURT: [Defendant], as I understand

          the situation, we're going to continue this

          matter for a sentencing hearing.    And at that

          sentencing hearing, [c]ounts I and II are

          going to be dismissed, as well as the other

          felony matter.    And your penalty range will

          be anything from somewhere between 4 and 15

          years in prison.

                  Is that your understanding of where we


                                 - 5 -
           are right now?

                THE DEFENDANT: Yes, sir.

                THE COURT: Has anyone promised you any-

           thing else to get you to plead guilty?

                THE DEFENDANT: No sir,

                THE COURT: Has anyone forced you or

           threatened you?

                THE DEFENDANT: No sir."

           The factual basis indicated the evidence would show

that on April 25, 2005, the 16-year-old victim was at a home in

Champaign, Illinois, with some friends, during which time she

consumed both cannabis and alcohol.      Sometime later that night,

defendant sexually penetrated the victim.     Deoxyribonucleic acid

(DNA) from the victim later confirmed defendant's sexual penetra-

tion of her.

           Defendant persisted in his guilty plea.    The trial

court found the plea to be knowing and voluntary, without coer-

cion or threats, and that a factual basis was stated for the

plea.   The court set the matter over for sentencing.

           The presentence investigation (PSI) report filed in May

2006 reflected that defendant was 20 years old, unmarried, with a

child due in July 2006.     Defendant had a prior juvenile and adult

criminal history.   The juvenile history included adjudication for

three separate thefts, two of which were committed while defen-


                                 - 6 -
dant was on conditional discharge for the first theft.   His

conditional discharge was revoked, and he was resentenced to 24

months' probation.   While on probation, two petitions for finding

of indirect criminal contempt were filed alleging curfew viola-

tions.   Defendant was ultimately sentenced to serve time in the

youth detention center and the county jail.   Defendant later

stipulated to a delinquency petition alleging aggravated battery.

He was sentenced to DOC, Juvenile Division.

           Defendant's adult history included an October 2003

battery, for which defendant was sentenced to conditional dis-

charge; an August 2004 disorderly conduct, for which defendant

was sentenced to conditional discharge; and a September 2004

domestic battery, for which he was sentenced to 18 months'

probation.   A petition to revoke was filed in March 2005 that

alleged defendant attempted to destroy a drug-test sample.

Disposition of the revocation proceedings was pending when the

PSI report was filed.   The report reflected that defendant had

not complied with several other conditions of probation.   While

on probation, defendant committed the instant offense in April

2005 and was charged with theft in July 2005, resisting a peace

officer in September 2005, and attempt (murder) and aggravated

discharge of a firearm in November 2005.   Defendant also had

several traffic offenses.

           The PSI report reflected that defendant graduated from


                               - 7 -
high school by meeting the requirements of a special-education

student.    Defendant had received special-education services since

kindergarten.   The report reflected that defendant's reading

abilities are limited.    He is able to print but cannot write in

cursive.

            The PSI report further reflected that numerous mental

health and/or psychological evaluations had been completed on

defendant between 1992 and 2001.    These were performed at the

request of the public school programs, the Illinois Department of

Children and Family Services (DCFS), and DOC.    Various social-

service agencies had offered defendant counseling over the years.

Throughout his youth, he had also been prescribed various medica-

tions to address mental-health disorders, including intermittent

explosive disorder, conduct disorder, attention deficit hyperac-

tivity disorder (ADHD), and probable post-traumatic stress

disorder.   These medications included Ritalin, Tegretol,

clonodine, Haldol, and Prozac.

            Attached to the PSI report was a psychological assess-

ment report performed on defendant by the University of Illinois

(U of I) when defendant was 16 years old.    The report reflected

that defendant's father was not involved in his life and that he

had at various times been separated from his mother because of

DCFS intervention.   Defendant attended various schools mainly due

to behavioral problems.   He finished his education at Cunningham


                                 - 8 -
Children's Home's Circle Academy as a nonresident.    While at

Circle Academy, defendant's behavior and schoolwork improved

significantly.    Defendant developed a strong personal relation-

ship with teachers and staff at Circle Academy.    Defendant's

emotional and cognitive problems interfered with his schoolwork

and his social skills because he socially functioned well below

his peers.   Further, defendant was seen as a person who was

easily persuaded by his peers.    He was not someone who would

decide on his own to harm another.

          The U of I report reflected that throughout his life

defendant had been subjected to various tests to assess his

intelligence quotient (IQ).   In 1991, defendant's full-scale IQ

was 83, placing him in the "slow[-]learner range of intelli-

gence."   In 1995, defendant again was determined to have a full-

scale IQ of 83.   In 1997, defendant's full-scale IQ was 70,

placing him in the "mild[-]mental[-]retardation range."    In 1998,

defendant showed a full-scale IQ of 65, placing him in the

"mildly mentally impaired range."    In 1999, defendant's full-

scale IQ was 59, in the "mentally deficient range."    However, the

examiner noted that defendant "tended to give up easily, and

answer 'I don't know' to questions before really trying."    When

the U of I examiner tested defendant's IQ, his full-scale IQ was

63, in the "deficient range of intelligence."

          At the May 2006 sentencing hearing, the State presented


                                 - 9 -
the testimony of Lisa Staples, a detective with the Champaign

police department.    Staples testified that she conducted a

follow-up investigation of the sexual assault which is the

subject matter of this appeal.    Staples interviewed the 16-year-

old victim, Katie, approximately a week after the assault.      Katie

advised Staples that she had been at a party at a house in

Champaign.    She had been drinking and smoking cannabis.    While at

the party, Katie had physical contact with another individual.

Katie left the party in a car with two other people but ended up

getting out of the car because the female in the car was prosti-

tuting herself and Katie wanted no part of that.    The hour was

around midnight or 1 a.m.    Katie was walking along the street

trying to find a friend's house.    As Katie was walking down

Bradley Street, she was approached by a subject wearing a hooded

sweatshirt.    He started making sexual comments to her.    Katie

told the man she was not interested.    The man grabbed Katie and

stuck what she thought was a black gun in her left side.      He led

her behind a house.    He told Katie he wanted her to perform oral

sex on him or he would shoot her in the head.    Katie told the man

she did not know how.    The man told Katie to remove her pants.

She complied by taking one leg out of her pants and underwear.

At the man's direction, Katie laid down on the ground.      The man

forcibly sexually assaulted her.    During the interview, Katie

demonstrated for Staples how the man was on top of her during the


                               - 10 -
assault and had the gun in his left hand pointed at her head

while he rested on his elbow.    Katie was unable to identify her

assailant.   The gun was never located.

           Before Staples interviewed Katie, Katie had been taken

to the hospital where a rape kit was performed.   The vaginal swab

revealed male, human DNA.   Several months later, the DNA re-

trieved in the rape kit was run through the Combined DNA Index

System (CODIS).   It matched defendant's DNA.

           The State also called Mark Strzesak, a detective with

the Champaign police department.    Strzesak testified about a

November 2005 shooting incident in which defendant was implicated

as the shooter.   The victim stated he believed the gun used was a

black .38-caliber revolver.   The gun was never recovered.

Defendant was charged with attempt (murder), but ultimately the

charge was dismissed as part of the plea agreement in the instant

case.

           Defendant called Linda Fox, a special-education teacher

at Gerber School in Urbana.   Fox was defendant's one-on-one

assistant starting in 1995 when defendant was 10 years old, and

she continued with him in some capacity until he graduated in

2005.   Fox and her husband were also defendant's mentors.   They

invited him into their home and took him on family vacations.

Other teachers also took defendant into their homes and essen-

tially were his mentors.    Fox had not seen violence in defendant.


                                - 11 -
Fox also described defendant as a follower who was easily per-

suaded by others because of his low level of intellectual func-

tioning.

           Fox testified that in 1995, defendant was very intro-

verted and extremely depressed.    Defendant was unable to read and

had difficulties with math.   Defendant was subaverage in terms of

general intellectual functioning, which was reflected in his

delayed maturity, reduced learning ability, and inadequate social

adjustments.   Defendant worked best in a structured environment

with clear expectations.    He loved school so much that he actu-

ally sabotaged his graduation.    Consequently, Fox had to wait to

tell defendant he completed his requirements to graduate until a

point in time when he could not sabotage it.    In the 10 years Fox

knew defendant, she saw improvements in his ability to follow

rules and verbal instructions.    He improved his ability to

understand what people asked him to do, which Fox believed was

due to his improved reading and conversational abilities.

           The trial court stated it considered the PSI report,

documentation prepared and presented on defendant's behalf,

statutory factors in aggravation and mitigation, comments of

counsel, and defendant's written comments.    The court found

applicable the statutory factor in mitigation that defendant was

mildly mentally impaired.   Nonstatutory factors in mitigation the

court found applicable were defendant's age (20) and that defen-


                               - 12 -
dant pleaded guilty to the offense.     The court found statutory

factors in aggravation included defendant's prior juvenile and

adult history of criminal convictions and the need for deter-

rence.    The court noted that this was a deterrable offense.

            The trial court remarked about the resources and

efforts expended on defendant's behalf to assist him in leading a

law-abiding life.    However, despite those efforts, defendant

continued his criminal conduct into adulthood, including many

violent offenses.    The court observed that ultimately defendant

could not be relieved of responsibility for his criminal conduct.

The court commented that defendant's record demonstrated that he

is a dangerous individual for whom a sentence must be fashioned

that protects society and that provides appropriate deterrence

for defendant and others similarly situated.     The court sentenced

defendant to 15 years in DOC with 96 days of sentence credit.

            On May 16, 2006, defense counsel filed a motion to

reconsider the sentence.    Defendant subsequently sent a letter to

the trial court indicating that he wanted to withdraw his guilty

plea.    In June 2006, defendant also filed a pro se motion to

withdraw his guilty plea, arguing ineffective assistance of

counsel.    In June 2006, the court appointed new counsel to

represent defendant.    In August 2006, newly appointed counsel

filed a motion to withdraw guilty plea, arguing that defense

counsel was ineffective for failing to (1) provide defendant with


                               - 13 -
ample time to discuss with his attorney the ramifications and

consequences of the plea; (2) investigate the case; or (3) file a

motion for substitution of judge, which defendant requested him

to do.   The motion further stated that defendant felt forced to

take the plea and did not voluntarily waive his right to trial.

            In August 2006, the trial court held a hearing to

address the motion to withdraw plea and motion to reconsider

sentence.    As to the motion to withdraw plea, defendant testified

that when he pleaded guilty he was represented by public defender

Randy Rosenbaum.   Defendant maintained that prior to his plea, he

spoke to Rosenbaum only two times regarding all of his pending

cases.   Defendant testified that during those conversations

Rosenbaum told defendant that he was going to get defendant the

minimum sentence of four years if he pleaded guilty to the Class

1 felony of criminal sexual assault.

            Defendant testified that he wanted Rosenbaum to file a

motion for substitution of judge because he felt there would be a

conflict of interest with Judge Difanis.    Rosenbaum never filed

the motion for substitution.    Defendant asked Rosenbaum to

investigate the sexual-assault case and to interview certain

witnesses.   Defendant maintained that Rosenbaum had not investi-

gated the case to his satisfaction or interviewed witnesses in

preparation for trial.

            Asked if, when the trial court went over his rights, he


                               - 14 -
understood the rights he was giving up when he pleaded guilty,

defendant responded, "[n]ot all of them."    When asked to be more

specific, defendant responded, "I said I really don't remember

most of them."   Counsel asked defendant why he told the court he

understood his rights.    Defendant responded, "I had--just had too

much stuff on my mind."   He said he was not thinking clearly.

Defendant denied being under the influence of alcohol, drugs, or

any other medications at the time.

          Defendant stated that as far as his plea being volun-

tary, he felt under a certain amount of stress and, to a certain

extent, forced to plead guilty.   When asked to explain why,

defendant responded, "[d]epressed."     Defendant stated that he was

in custody at the time of his plea but he had not sought out any

services or medication for his depression.    He talked to a couple

of mental-health staff.   When asked what sort of stress was

placed on him that affected his ability to voluntarily plead

guilty, defendant responded, "I thought I was gonna get four

years."   Defendant further indicated that the other pending cases

and the amount of time he was looking at put undue stress on him.

          On cross-examination, defendant acknowledged that when

Rosenbaum represented him he had pending an attempt (murder) case

as well as the sexual-assault case.     Defendant acknowledged that

Rosenbaum discussed with him the potential prison time he would

serve if he was convicted of both crimes.    He agreed he was


                               - 15 -
looking at the potential of serving considerable time, i.e., up

to 40 years consecutive.    Defendant stated that he and Rosenbaum

discussed the plea agreement before he entered into the negoti-

ated plea where the State dismissed the attempt (murder) charge.

Defendant acknowledged that he understood the negotiated plea

would result in him facing a lot less than 40 years in prison.

He further acknowledged he discussed that with Rosenbaum.      When

asked if he voluntarily entered into that agreement, defendant

responded that he entered into the plea because he was under

stress because he thought he was going to get four years.

Defendant acknowledged that he understood when he entered into

the plea agreement that there was still going to be a sentencing

hearing where the judge would decide the sentence.    When asked if

he voluntarily waived trial and agreed to enter into the plea,

defendant responded, "[y]es."

            Rosenbaum testified in relevant part that he was

appointed to represent defendant on three pending cases: posses-

sion of a stolen vehicle, the instant sex offense, and attempt

(murder).    Rosenbaum's notes reflected that during the course of

his representation of defendant on the sex offense, he met

personally with defendant at the jail on five occasions and

talked with him on the telephone on six occasions.    He also had

contact with defendant's family.    Rosenbaum did not count the

number of contacts he had with defendant on the other pending


                                - 16 -
charges.

           Rosenbaum stated that during the course of the three

pending cases, numerous negotiations took place.    He discussed

these with defendant, and counteroffers were made.    Rosenbaum

discussed with defendant the possible risk he took if he went to

trial.   Defendant seemed to understand what he was being told.

Rosenbaum discussed the plea offer with defendant, including the

fact that the trial court could sentence him to between 4 and 15

years in DOC.    Rosenbaum noted that the plea negotiations were

not just for dismissal of the other charges.    The sex charge was

reduced from a Class X felony to a Class 1 felony and changed

from the use of force with a weapon to the victim's inability to

consent.   Rosenbaum maintained these were all matters defendant

told Rosenbaum he wanted in the plea agreement.

           Rosenbaum testified that the only time he remembered

mentioning four years in DOC was when defendant only had the

stolen vehicle case.    The offer at that time was for three or

four years.    Once the attempt (murder) and sex cases were filed,

he never mentioned four years to defendant.    Rosenbaum testified

he was not able to contact any witnesses for defendant because

defendant never gave him the full name or addresses of any

witnesses.    Rosenbaum did attempt to contact the victim's friend

and the friend's mother because he felt the victim was very

impeachable.    Subpoenas were issued for them but were returned


                               - 17 -
indicating that they had moved with no forwarding address.

Rosenbaum did not recall that defendant ever asked him to move

for substitution of judge.   The only indication in Rosenbaum's

file regarding substitution was in an e-mail from defendant's

sister after defendant was sentenced.    She felt another judge

should hear defendant's motion to withdraw the plea and motion to

reconsider the sentence.

          Rosenbaum testified that he was prepared to go to trial

with a defense and impeachment of the victim.    Defense counsel

testified that he was ready for trial with a defense.    He men-

tioned attacking the victim's version and that defendant told him

defendant and the victim were at the same party and there had

been "some consensual contact."    However, ultimately defendant

agreed to the negotiated plea.    From Rosenbaum's perspective,

defendant's trial waiver and plea were entered into voluntarily.

Defendant seemed to understand.    He never indicated to Rosenbaum

that he was not pleading voluntarily or that he was under any

stress or duress.

          Rosenbaum testified that on the day of the plea, the

procedure carried out by the trial judge was the normal procedure

with all the normal questions.    Defendant told the judge he

entered into the plea voluntarily and that he was not under any

stress or duress.   The following colloquy then took place between

defense counsel and Rosenbaum:


                              - 18 -
     "Q.     During the plea of guilty or just

prior to the plea of guilty, I'm sure you

went over with [defendant] the rights that he

was giving up and the fact that there would-

n't be a trial.    Did you have any sort of

indication that he didn't understand what was

going on?

     A.     Sometimes you would have to explain

things to him once or twice.     He slows [sic],

educational background, his IQ, but once you

explain it to him in very simple, basic

terms, he always seems to understand it, yes.

     Q.     Did you--was there any issue of

fitness, did that ever come up in your mind

that a fitness exam should be completed?

     A.     No.

     Q.     You never had any sort of bona fide

feeling that there might be a fitness issue?

     A.     Not a fitness, no.

                        ***

     Q.     During those conversations that you

had with him, either in person or by tele-

phone, did you have any occasion that he

didn't understand what the nature of your


                      - 19 -
          conversation was about?

               A.   No."

The court denied the motion to withdraw the guilty plea.

          Regarding the motion to reconsider the sentence, the

trial court found that the sentence imposed was appropriate.     The

motion to reconsider the sentence was denied.

          In August 2006, defendant appealed on the grounds that

counsel's certificate was not in strict compliance with Rule

604(d) (210 Ill. 2d R. 604(d)).    The State conceded.   This court

remanded the case to the trial court for further proceedings.

Tapscott, No. 4-06-0680.

          In January 2008, defense counsel filed a certificate in

compliance with Rule 604(d).   At the January 2008 hearing on

defendant's motion to withdraw guilty plea and motion to recon-

sider sentence, defense counsel indicated he stood on the previ-

ously filed motions.   Regarding the motion to reconsider sen-

tence, the trial court stated it had reviewed the transcript of

the sentencing hearing.    The court found the sentence appropriate

and denied the motion to reconsider the sentence.

          Regarding the motion to withdraw his guilty plea,

defendant testified that he asked counsel to file a motion to

withdraw because he was unsatisfied with the representation he

received during the proceedings.    Defendant asked the attorney to

request a substitution of judge, but the attorney did not do so.


                               - 20 -
Defendant gave the attorney a list of witnesses he wanted him to

contact and interview.   Defendant talked to the people, and they

said his attorney never contacted them.

           On cross-examination, defendant testified that one of

the people he wanted his attorney to contact was his godfather,

Alonzo Bass, Jr.   Bass was not present on the night of the sex

offense.   Defendant also wanted him to call two of his friends,

Rico Bolden and Terry Moore, who were present on the night of the

rape.   Defendant stated they would testify that he did not rape

the victim.

           The State and defense counsel advised the trial court

their agreement that, if Rosenbaum were to testify at the hear-

ing, his testimony would be the same as in August 2006.    The

judge stated that he reviewed Rosenbaum's previous testimony.

The court noted that Rosenbaum testified that defendant had not

provided him with the names of any witnesses and that he was

prepared to go to trial.   The court also reviewed the transcript

of the plea proceedings and observed that defendant received

proper admonishments when he pleaded guilty.    The court denied

the motion to withdraw guilty plea.    This appeal followed.

                           II. ANALYSIS

           Defendant raises two issues on appeal: (1) the trial

court erred in not sua sponte ordering a fitness hearing after

the PSI report indicated that defendant (a) was mildly mentally


                              - 21 -
impaired, (b) had been diagnosed with and treated for a number of

mental-health disorders, and (c) had been prescribed numerous

medications for the mental disorders, and (2) in the alternative,

defense counsel was ineffective for not requesting a fitness

hearing.    The State argues that the court did not err and defense

counsel was not ineffective.    We agree with the State.

            The Code of Criminal Procedure of 1963 states that

there is a presumption of fitness to stand trial and be sen-

tenced.    725 ILCS 5/104-10 (West 2004).   The defendant bears the

burden to show that a bona fide doubt exists as to his fitness to

stand trial.    People v. Hanson, 212 Ill. 2d 212, 221-22, 817

N.E.2d 472, 477 (2004).    However, subjecting an unfit defendant

to trial is a violation of the defendant's substantive due-

process rights.    U.S. Const., amend. XIV; Ill. Const. 1970, art.

I, §2; Hanson, 212 Ill. 2d at 216, 817 N.E.2d at 474.      More

specifically, a due-process violation would occur if the defen-

dant is unable to understand the nature and purpose of the

proceedings or assist defense counsel in his own defense.

Hanson, 212 Ill. 2d at 218, 817 N.E.2d at 475.    The competency

standard to plead guilty or stand trial is the same, i.e., the

defendant must understand the nature of the charge and purpose of

the proceedings and be able to assist in his defense.      People v.

Heral, 62 Ill. 2d 329, 334, 342 N.E.2d 34, 36 (1976).

            Although any party may raise the issue of a defendant's


                               - 22 -
fitness at any appropriate time, when a bona fide doubt exists as

to the defendant's fitness, the trial court must sua sponte order

a determination of the defendant's fitness before proceeding

further.   725 ILCS 5/104-11(a) (West 2004).   Whether a bona fide

doubt exists is an issue that is within the trial court's discre-

tion.   People v. Straub, 292 Ill. App. 3d 193, 198, 685 N.E.2d

429, 432 (1997).   The trial court is in a superior position to

this court to view the defendant's behavior firsthand and make a

determination based on its observance as to whether a bona fide

doubt exists as to the defendant's fitness.     People v. Murphy, 72

Ill. 2d 421, 431, 381 N.E.2d 677, 682 (1978).

           "Fitness speaks only to a person's ability to function

within the context of trial; it does not refer to sanity or

competence in other areas. [Citation.]     A person can be fit for

trial although his mind may be otherwise unsound."     People v.

Coleman, 168 Ill. 2d 509, 524, 660 N.E.2d 919, 928 (1995).    A

defendant's diminished mental capacity does not, standing alone,

make the defendant unfit to stand trial.    People v. Johnson, 183

Ill. 2d 176, 194, 700 N.E.2d 996, 1005 (1998).    Factors that are

relevant for the trial court to consider in assessing the exis-

tence of a bona fide doubt of the defendant's fitness include (1)

the rationality of the defendant's behavior and demeanor at trial

and (2) any prior medical opinions on the issue of the defen-

dant's fitness.    People v. Eddmonds, 143 Ill. 2d 501, 518, 578


                               - 23 -
N.E.2d 952, 959 (1991); see Drope v. Missouri, 420 U.S. 162, 180,

43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975).    Further,

defense counsel's representations concerning his client's compe-

tency, while not conclusive, are another important factor to

consider.   Eddmonds, 143 Ill. 2d at 518, 578 N.E.2d at 959.

            Defendant relies on this court's decision in People v.

Shanklin, 351 Ill. App. 3d 303, 814 N.E.2d 139 (2004), as sup-

portive of his argument.   In Shanklin, the defendant pleaded

guilty to attempt (murder) in the middle of a bench trial.

Included in the PSI report was information that (1) the defendant

had been hospitalized three times for mental-health problems and

(2) tests conducted during the hospital stays indicated that the

defendant was mildly mentally retarded.    The defendant later

filed a postconviction petition, alleging, in part, that he was

unfit or incompetent when he entered his guilty plea.    Shanklin,

351 Ill. App. 3d at 304-05, 814 N.E.2d at 141-42.    The defendant

supported his petition with copies of a psychological evaluation

from a hospital that indicated, in pertinent part, the following:

(1) the defendant had been admitted to Hartgove Hospital on three

separate occasions when he was 15 or 16 years old, (2) he was

seen for violent and disruptive behavior and assessed by psychi-

atric and social-work staff, and (3) the defendant had a low IQ

in the mildly mentally retarded range and had difficulty receiv-

ing and retaining verbal information.     Shanklin, 351 Ill. App. 3d


                               - 24 -
at 306-07, 814 N.E.2d at 143.    The trial court later summarily

dismissed the defendant's petition.      Shanklin, 351 Ill. App. 3d

at 305, 814 N.E.2d at 142.

          The defendant appealed, and this court reversed the

trial court's summary dismissal of his postconviction petition.

We concluded that at sentencing (based on the information in the

PSI report), the trial court should have been put on notice that

"there was either a bona fide doubt of defendant's fitness to

enter his guilty plea or at least a serious question as to his

ability to comprehend what he was being asked."      Shanklin, 351

Ill. App. 3d at 308, 814 N.E.2d at 144.     We further concluded

that the trial court should have conducted a fitness hearing.

Shanklin, 351 Ill. App. 3d at 308, 814 N.E.2d at 144.     In so

concluding, we noted that the defendant's hospital information

indicated that (1) the defendant's mental-health professionals

made a clinical judgment that the defendant had significant

problems in his verbal learning skills and an IQ in the mildly

mentally retarded range and (2) the defendant "may not have been

able to fully comprehend what was being verbally communicated to

him either by counsel or the trial court as to the consequences

of a guilty plea in this case."    Shanklin, 351 Ill. App. 3d at

306, 814 N.E.2d at 143.

          The case sub judice is factually similar to Shanklin

but also distinguishable therefrom.      Whether a bona fide doubt of


                                - 25 -
a defendant's fitness exists involves a fact-specific inquiry.

See Eddmonds, 143 Ill. 2d at 518, 578 N.E.2d at 959, quoting

Drope, 420 U.S. at 180, 43 L. Ed. 2d at 118, 95 S. Ct. at 908

("there are 'no fixed or immutable signs which invariably indi-

cate the need for further inquiry to determine fitness to pro-

ceed; the question is often a difficult one in which a wide range

of manifestations and subtle nuances are implicated'").

           Here, similar to Shanklin, when defendant was 16 years

old, he was evaluated by the U of I.   At that time, defendant was

again diagnosed with a low IQ (63) in the "deficient range of

intelligence," showing significant strengths in arithmetic and

significant weaknesses in similarities, vocabulary, and block

design.   Defendant showed limited reading abilities; could not

write in cursive; and had been diagnosed with behavior and

conduct disorders, depression and anxiety, and ADHD.   He was

found to be emotionally much younger than his age with difficulty

expressing himself.   Defendant had a tendency to seek peer

relationships with other youth who engaged in antisocial activi-

ties, and defendant would follow.

           Several factors make the instant case distinguishable

from Shanklin and support the conclusion that defendant under-

stood the proceedings and assisted in his defense.   Testimony at

the sentencing hearing from defendant's former teacher indicated

that he made significant improvements in his ability to follow


                              - 26 -
rules, understand what people asked of him, read, and converse.

Rosenbaum testified that during his many interactions with

defendant both in person and on the phone, he saw no evidence

that defendant did not understand the proceedings.   Rosenbaum

acknowledged that defendant was slow and that sometimes he would

have to explain things more than once but said he saw no indica-

tion that defendant did not understand.   Rosenbaum saw nothing to

indicate that defendant was not entering into the plea volun-

tarily or that defendant was under any stress or duress.

Rosenbaum saw nothing to indicate a need for a fitness exam nor

did he get any feeling that a bona fide issue of fitness existed.

           Further, after being sentenced, defendant wrote to the

trial court indicating he wanted to withdraw his guilty plea, and

he also filed a pro se motion to withdraw his guilty plea alleg-

ing Rosenbaum provided him with ineffective assistance of coun-

sel.   At the hearing on the motion to withdraw, defendant's

testimony demonstrated his grasp of the legal process.    He

testified that he wanted Rosenbaum to file for a substitution of

judge because he felt Judge Difanis was prejudiced against him

from previous encounters between the judge and defendant and his

family.   Defendant testified that Rosenbaum failed to investigate

the case to his satisfaction because he failed to interview

witnesses whose names defendant had given to Rosenbaum.

           Defendant claimed he did not understand the rights he


                              - 27 -
was waiving, but when asked to be more specific, defendant said

he did not remember most of them.   Not remembering is different

from not understanding.   Defendant's stated reason for having

told the court he understood his rights at the time they were

given was that he "just had too much stuff on [his] mind."

Again, this is quite different from not understanding.   Defendant

claimed he felt forced to plead guilty because he was "depressed"

and that he thought he was going to get four years' imprisonment.

However, defendant acknowledged that he knew the plea negotia-

tions did not include any specific sentence and that he was going

to be sentenced by the judge after a hearing.   Defendant also

admitted that he understood that as a part of the plea agreement,

other serious charges (attempt (murder) and a higher-class sex

crime) were being dismissed.   He understood that he faced signif-

icantly less prison time because of the plea.

          In this case, the record clearly illustrates that

defendant understood the nature and purpose of the proceedings.

The trial court provided defendant with a detailed explanation of

the proceedings and informed defendant of his rights during those

proceedings.   Defendant stated that he understood.   Further, the

record shows that defendant participated in his own defense by

communicating and conferring with his trial counsel.   Defendant's

counsel saw no evidence that a bona fide doubt existed of defen-

dant's fitness to plead and be sentenced.   Therefore, the trial


                               - 28 -
court did not abuse its discretion by not sua sponte ordering a

fitness hearing.

          Further, defendant has not established that his trial

counsel was ineffective for not seeking a fitness hearing.       To

establish a claim for ineffective assistance of counsel, defen-

dant must meet the test set forth in Strickland v. Washington,

466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).       That is,

he must establish both that his attorney's performance was

deficient and that he was prejudiced as a result of the deficient

performance.    Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,

104 S. Ct. at 2064.   The failure to establish either prong is

fatal to a defendant's claim.    People v. Caffey, 205 Ill. 2d 52,

106, 792 N.E.2d 1163, 1197 (2001).       A court need not consider

whether counsel's performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged

deficiencies.   If the ineffective-assistance claim can be dis-

posed of on the ground that the defendant did not suffer suffi-

cient prejudice, the court need not decide whether counsel's

errors were serious enough to constitute less than reasonably

effective assistance.    Strickland, 466 U.S. at 697, 80 L. Ed.2d

at 699, 104 S. Ct. at 2069.

          To establish that his trial counsel's alleged incompe-

tency prejudiced him, defendant "must demonstrate that facts

existed at the time of his trial which raised a bona fide doubt


                                - 29 -
of his ability to understand the nature and purpose of the

proceedings and to assist in his defense" (Eddmonds, 143 Ill. 2d

at 512-13, 578 N.E.2d at 957).    Therefore, defendant must demon-

strate that the trial court would have found a bona fide doubt of

his fitness and ordered a fitness hearing had defense counsel

requested it under the circumstances presented.      See Eddmonds,

143 Ill. 2d at 513, 578 N.E.2d at 957.

            As discussed above, the record herein demonstrates that

defendant both understood the nature of the proceedings and

participated in his defense.    Defense counsel testified that

throughout his representation of defendant he saw nothing to

indicate that defendant did not understand the proceedings or

that there was a bona fide doubt of defendant's fitness.      The

trial court had several opportunities to observe defendant and

interact with him in the courtroom.      The court was aware of

defendant's low IQ.    For these reasons, under the circumstances

of this case, it is unlikely that the court would have held a

fitness hearing.    Therefore, defendant did not receive ineffec-

tive assistance of counsel because he cannot prove the prejudice

prong of the Strickland test.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal.


                                - 30 -
Affirmed.

KNECHT and TURNER, JJ., concur.




                   - 31 -
