                                Illinois Official Reports

                                        Appellate Court



                            People v. Wood, 2014 IL App (1st) 121408



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   JONATHAN WOOD, Defendant-Appellant.


District & No.            First District, Third Division
                          Docket No. 1-12-1408


Filed                     July 23, 2014


Held                       In a case where a finding of guilty but mentally ill would have been
(Note: This syllabus appropriate and likely if defense counsel had raised an insanity
constitutes no part of the defense and called an expert to testify at trial with respect to
opinion of the court but defendant’s diagnosis with schizophrenia and defendant was
has been prepared by the prejudiced by his counsel’s strategy, but defendant’s own expert
Reporter of Decisions determined that defendant was not insane at the time he killed his
for the convenience of mother and defendant refused to be examined by any other doctors,
the reader.)               defense counsel could not have substantiated an insanity defense with
                           a readily available witness, and asserting an insanity defense would
                           have violated the ethical constraints on defense counsel to certify any
                           defense without an adequate factual and legal basis; therefore,
                           defendant’s counsel was not ineffective in failing to pursue the
                           statutorily required defense of insanity as a prerequisite for obtaining a
                           finding of guilty but mentally ill, since he did not have and could not
                           obtain supporting evidence for the insanity defense.




Decision Under            Appeal from the Circuit Court of Cook County, No. 08-CR-22567; the
Review                    Hon. Bridget Jane Hughes, Judge, presiding.



Judgment                  Affirmed.
     Counsel on Appeal         Michael J. Pelletier, Alan D. Goldberg, and Robert N. Markfield, all of
     Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                               Mary P. Needham, and Samuel C. Ray, Assistant State’s Attorneys, of
                               counsel), for the People.




     Panel                     JUSTICE MASON delivered the judgment of the court, with opinion.
                               Presiding Justice Hyman and Justice Neville concurred in the
                               judgment and opinion.



                                                 OPINION

¶1         Following a bench trial, defendant Jonathan Wood was convicted of first degree murder,
       concealment of a homicidal death, aggravated unlawful restraint, violating an order of
       protection, and aggravated fleeing or eluding a police officer. He was sentenced to consecutive
       prison terms of 61 years for first degree murder and 3 years for concealment of a homicidal
       death, for a total of 64 years. He received concurrent sentences of two years on each of the
       remaining counts. On appeal, Wood contends that he received ineffective assistance of counsel
       where his trial counsel (1) requested a finding of guilty but mentally ill without presenting the
       statutorily required defense of insanity; and (2) failed to call his expert at trial to testify that
       Wood suffered from paranoid schizophrenia at the time the offense was committed. Finding no
       merit to Wood’s argument, we affirm the judgment of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3         On October 31, 2008, the body of Marilyn Wood, Wood’s mother, was discovered in the
       storage room of her basement. Marilyn’s body was found on a couch at the back of the storage
       room with numerous items piled on top of her. Marilyn had been gagged, there was electrical
       cord around her neck and her hands were bound behind her back with electrical wire.
¶4         Marilyn’s blue Saturn was missing from her garage. After Marilyn’s body was discovered,
       Marilyn’s office received a fax purportedly from Marilyn stating that she was attending a
       funeral in Minnesota. Her office notified the police and they went to the business originating
       the fax, where an employee described the man who had come in and asked her to send the fax.
       The police obtained a picture of Wood and the employee confirmed he was the person she had
       dealt with.
¶5         The police then situated themselves in vehicles at various points near Marilyn’s residence
       to see if Wood would return to the home. Later that night, an officer saw the Saturn in the
       vicinity and it was pursued by multiple officers. A high speed chase ensued that lasted more
       than 30 minutes, with Wood, who was driving the Saturn, finally jumping out of the car, which


                                                    -2-
       hit a tree, while Wood rolled down an embankment. Wood was taken into custody and
       subsequently charged with multiple offenses related to Marilyn’s death and his flight from the
       police.
¶6          Prior to trial, the court granted a defense motion for a behavioral clinical examination to
       determine Wood’s fitness to stand trial and his sanity at the time of the offense. The
       examination was conducted by Dr. Peter Lourgos of Forensic Clinical Services on July 31,
       2009. Dr. Lourgos submitted a report to the trial court stating that Wood was unfit to stand trial
       because he was exhibiting symptoms of schizophrenia. The report further noted that because of
       Wood’s current mental state, Dr. Lourgos was unable to render an opinion as to his sanity at
       the time of the alleged offense.
¶7          At the fitness hearing on September 29, 2009, Dr. Lourgos testified that Wood was unfit to
       stand trial because he had a lengthy documented history of schizophrenia and was currently
       exhibiting active symptoms of the illness which rendered him incapable of assisting counsel in
       his defense. Dr. Lourgos explained that Wood was actively psychotic, his judgment was
       impaired, and he had delusional ideations that the case was going to be dismissed. Dr. Lourgos
       opined that with treatment, Wood could attain fitness within one year. The trial court found
       that Wood was unfit to stand trial and was a danger to himself and others, but there was a good
       probability that he could be restored to fitness within one year with proper treatment. The court
       remanded Wood to the Illinois Department of Human Services with orders for the Department
       to propose a treatment plan within 30 days.
¶8          On October 4, 2010, Dr. Lourgos examined Wood again and submitted a report stating that
       Wood was fit to stand trial with medication. The report indicated that Dr. Lourgos was still
       unable to render an opinion on the issue of sanity at the time of the alleged offense. At the
       restoration hearing on November 12, 2010, Dr. Lourgos testified that Wood was currently able
       to cooperate with counsel in his own defense and was able to understand the nature of the
       proceedings and all of the charges against him. However, Wood declined to participate in a
       sanity evaluation and stated that he did not want to discuss the facts surrounding the alleged
       offense. The trial court found that Wood had been restored to fitness with medication and was
       fit to stand trial.
¶9          At a status hearing on December 29, 2011, defense counsel reported to the court that
       defense expert Dr. Robert Hanlon had completed his psychological evaluation of Wood but he
       would not be issuing a report. The court asked, “So you’re not going to proceed on–” and
       defense counsel interrupted and said, “Correct. That’s not–it’s not our intention and it’s not the
       desire of Mr. Wood. I was toying with the idea of having Mr. Wood examined by forensic
       clinical services but he indicated to me that he does not want to be examined by any other
       doctors and if he were to be sent up there, he’[d] refuse to cooperate.”
¶ 10        At trial, defense counsel argued in his opening statement that Wood was not guilty because
       there was no direct evidence that would connect Wood to Marilyn’s murder, or, in the
       alternative, Wood was guilty but mentally ill (GBMI). The parties stipulated that on September
       5, 2008, Marilyn obtained an emergency order of protection against Wood and that on
       September 26, 2008, she obtained a two-year plenary order of protection. Wood was present
       when the plenary order of protection was issued and was personally served in open court with
       the order. The order granted exclusive possession of the residence to Marilyn and prohibited
       Wood from physically abusing or harassing Marilyn, or from having any contact with her


                                                   -3-
       whatsoever. The parties further stipulated that Marilyn previously obtained a similar order of
       protection in October 2002.
¶ 11       We need not recite in any detail the evidence of the gruesome murder of Wood’s mother
       adduced at trial except to note that it overwhelmingly establishes Wood’s guilt and, in fact, he
       does not contend otherwise on appeal. The only evidence we need focus on for purposes of
       addressing the ineffective assistance claim raised by Wood on appeal is that which bears upon
       his counsel’s decision not to assert insanity as a defense.
¶ 12       On the evening of October 12, 2008, John Larsen, a friend of Wood’s since childhood,
       spoke with Wood on the phone. Wood was angry and upset with Marilyn because, due to the
       order of protection, he was homeless. Wood used a lot of profanity, something he did not
       normally do, and said that his mother was “worse than an infidel” and that she was a “greedy
       Jezebel.”
¶ 13       On cross-examination, Larsen explained that while he never talked to Wood about whether
       he was taking any medication, he was aware that Wood had been treated by mental health
       professionals in the past. Larsen testified that he had admitted Wood to Alexian Brothers
       approximately 10 years earlier and had visited him a number of times at another institution
       while he was hospitalized.
¶ 14       Andrea Dittman and Marilyn worked for the same company. Dittman testified that Marilyn
       was an attentive, prompt employee who had never missed a day of work without notifying her
       supervisor. On the morning of October 30, 2008, Marilyn did not come to work at her regular
       starting time of 8:30 and did not call her supervisor. After failing to reach Marilyn at home,
       Dittman called the police and asked them to do a well-being check. On October 31, when
       Marilyn again failed to come to work, Dittman called the police again and asked them to do
       another well-being check. Approximately an hour later, a handwritten fax was received at
       Marilyn’s office. The fax said: “Went to Minnesota. Bro-in-law funeral. Emergency. Back
       Wednesday afternoon.” Dittman called the company shown at the top of the fax and was given
       a description of the person who asked a company employee to send the fax. Dittman then
       notified the police.
¶ 15       Claudia Sanchez was working at the Confia Insurance Agency on October 31, 2008. At
       approximately 9:45, Sanchez observed a blue Saturn pull into the agency’s parking lot with the
       tires squealing. Sanchez identified Wood as the individual who was driving the Saturn and
       subsequently came inside the agency and asked her to send a fax.
¶ 16       The police officers who responded to the request for a well-being check on October 30
       were able to gain entry through an unlocked door. Marilyn’s blue Saturn was inside the garage
       but the officers did not find anyone in the house. One officer checked the storage room in the
       basement, but did not walk all the way inside the room and inspect the part of the room that was
       blocked from view by the open door.
¶ 17       When the police returned to the house the following morning, the Saturn was gone. This
       time, an officer went completely inside the basement storage room, closed the door behind him
       and walked along a cleared pathway that extended to the end of the room. Using his flashlight,
       the officer saw a human leg sticking out on the armrest of a couch at the far end of the room
       from underneath a pile of debris. Upon closer inspection, the officer determined that the person
       was deceased.



                                                  -4-
¶ 18       After Marilyn’s body was discovered and the officers determined that Wood had sent a fax
       to her office, police officers were stationed at various locations leading to Marilyn’s residence,
       with instructions to be on the lookout for Marilyn’s blue Saturn. At approximately 9:37 p.m., a
       blue Saturn was spotted approaching the residence but then turning away after coming into
       view of a large police forensic van with lights on top. The officer who spotted the Saturn
       followed it, verified by the license plate that it was Marilyn’s vehicle, and radioed other
       officers.
¶ 19       Another officer approached from a different direction to assist in an unmarked car with the
       lights activated. The Saturn stopped but when the officer started to exit his vehicle, the Saturn
       went eastbound in the westbound lanes of Biesterfield and then cut across the median to go
       eastbound in the eastbound lanes. Three police cars with lights and sirens activated pursued the
       Saturn south on Route 53 to I-290 and from there to I-294. The Saturn was traveling at a high
       rate of speed and the driver was using the right and left shoulders of the highway to avoid
       traffic. At one point during the pursuit, the officers reached speeds of 125 miles per hour.
¶ 20       The pursuit continued as the Saturn exited I-294 at Willow Road and eventually proceeded
       to Park Boulevard in the town of Glencoe. The street ended and the Saturn turned into a park
       and proceeded on a pedestrian path. The driver got out of the vehicle while it was still rolling
       and the Saturn continued rolling until it hit a tree. The driver fell over a steep embankment onto
       another pedestrian path, approximately 35 feet below. The officers pursued the driver on foot
       and took him into custody. Wood was identified in court as the driver of the Saturn.
¶ 21       Officer Frank Gottardo, one of the officers in pursuit of the Saturn, testified that after
       Wood drove onto a pedestrian path and jumped out of the car, he fell to the ground and the
       Saturn rolled into a tree. Wood got back up, took a step to the right, and then disappeared into
       the darkness. Officer Gottardo followed him and discovered that Wood was rolling down a
       bluff toward the beach. Officer Gottardo went down the embankment to the south of where
       Wood was rolling. On his way down, Officer Gottardo broke his left foot going over a
       retention wall but continued to pursue Wood, tackling him to the ground and putting him in
       handcuffs. Officer Gottardo searched Wood and, from the pocket of his jacket, recovered
       several credit cards and a health insurance card, all in Marilyn’s name, Marilyn’s driver’s
       license, and a number of documents. Among the documents was one that purported to grant
       Wood power of attorney over Marilyn’s estate.
¶ 22       Officer Mike Carlson inventoried the items that were recovered from Wood’s jacket. One
       of the items recovered was a note that appeared to have been written in marker. It said: “Went
       to Minnesota. Bro-in-law funeral. Emergency. Back Wednesday afternoon.” It was signed
       “Marilyn Wood.” A fax number was written twice on the back of the note. A fax transmission
       report was also recovered. The report showed that a fax was transmitted from Confia Insurance
       Agency to the number that was written on the back of the note.
¶ 23       Dr. Joseph Cogan, an expert in forensic pathology, performed Marilyn’s autopsy.
       Marilyn’s body was fully clothed and she was gagged and bound. There was a scarf wrapped
       around her neck and over her mouth, covered by a white towel, with speaker wire wrapped
       around the towel to keep it tight. There were also wet paper towels inside her mouth. There was
       a petechial hemorrhage at the back of her throat, indicating that she was alive at the time the
       gag and bindings were put in place. Dr. Cogan explained that because Marilyn’s tongue was
       forced into the back of her throat blocking her airways, death would have occurred within a
       few minutes of the time she was gagged.

                                                   -5-
¶ 24        Dr. Cogan described multiple bruises, contusions and fractures on Marilyn’s head and
       upper body, including a subdural hemorrhage inside her skull, caused by blunt force trauma.
       Based on the aspiration of blood in her stomach and the fact that her bladder was filled with
       urine and there was urine on her clothing, Dr. Cogan concluded that Marilyn was alive when
       she received the blunt force trauma and that she was immobilized for a long period of time. Dr.
       Cogan opined that the cause of death was multiple injuries as a result of an assault.
¶ 25        Finally, the parties stipulated that at a hearing on December 13, 2010, Wood stated in open
       court: “I had restrained her, I had restrained her, I hadn’t done anything more than restrain
       her.” The State rested and Wood’s motion for a directed verdict was denied.
¶ 26        Defense counsel proceeded by way of stipulation. The parties stipulated the following: (1)
       Dr. Lourgos examined Wood on July 31, 2009, diagnosed him as having paranoid
       schizophrenia, and concluded that he was unfit for trial; (2) Wood was admitted to Elgin
       Mental Health Center on October 21, 2009, and was prescribed an antipsychotic medication
       and a mood-stabilizing medication; (3) Wood was diagnosed as having paranoid schizophrenia
       by Dr. Romulo Nazareno at Elgin on November 3, 2009; (4) Dr. Nazareno again diagnosed
       Wood as suffering from paranoid schizophrenia on September 4, 2010, but found him fit for
       trial with medication; (5) Dr. Lourgos concurred in the diagnosis of paranoid schizophrenia on
       October 4, 2010, and also found Wood fit for trial with medication, but was unable to render an
       opinion on sanity because Wood refused to be evaluated on that issue; (6) Dr. Robert Hanlon
       examined Wood on June 9, 2011, and concurred in the diagnosis of paranoid schizophrenia
       and the finding that Wood was fit for trial with medication; and (7) Dr. Hanlon examined
       Wood again on July 18, 2011, and concluded that he was not insane at the time of the alleged
       offense.
¶ 27        Wood then took the stand against defense counsel’s advice. He explained that he wanted to
       testify so that “the Judge [would] have a real account of the actual events that happened.”
       Wood testified that he had been hospitalized for mental illness three different times for two
       weeks each time. The first time was in 1997, around the time of his parents’ divorce. He was
       hospitalized a second time in 1999 or 2000 and again in 2004 or 2005.
¶ 28        Wood explained that he had been hearing angels’ voices and sensing the presence of angels
       since he was eight or nine years old. He had heard between 77 and 2,000 voices and they had
       spoken to him directly and also talked among themselves. Wood never told anyone about
       hearing voices, and when he was later hospitalized, he was told that it was “a schizophrenic
       thing” to be hearing voices so he was careful never to discuss it with people.
¶ 29        Each time Wood went to the hospital it was because he was having trouble sleeping and his
       mother wanted him to go and get some help. However, he did not take the antipsychotic
       medication they gave him after he left the hospital because he did not think there was anything
       wrong with him. Wood’s brother David was also diagnosed with schizophrenia.
¶ 30        Wood explained that his mother asked him to leave her house because he was “being
       entirely messy.” Wood went to the Red Roof Inn, but on October 27, when he started running
       out of money, he went back to Marilyn’s house and asked her to let him stay in the basement so
       that he would have a place to sleep.




                                                  -6-
¶ 31       On October 29,1 Wood was in the basement asleep when he heard Marilyn coming down
       the stairs at 4 or 5 a.m. Marilyn fell down the basement stairs in the dark and called out to
       Wood. When Wood turned on the light and went to her, Marilyn was facedown on the carpeted
       stairs. Wood saw that Marilyn’s face was bloody and she told him she thought she had broken
       her arm. Wood thought he heard an angel named Coda clapping at the top of the stairs.
¶ 32       Marilyn told Wood that if he took her to the hospital, she would not tell “them” Wood was
       at her house. Wood wondered who Marilyn meant by “them” and decided she could not mean
       the doctors so she must mean the police. Wood told Marilyn that she could not tell anyone he
       was there because that would be a violation of the restraining order and then he would have to
       go to jail. In the meantime, Wood was silently asking the angels if Marilyn’s arm was really
       broken and Coda told him that Marilyn’s arm was not broken and there was nothing wrong
       with her.
¶ 33       Wood felt Marilyn’s arms and she appeared to be fine. He ran upstairs and put some water
       on a paper towel so that he could clean up Marilyn’s face from what appeared to be a
       nosebleed. Marilyn also had a little bit of blood on the inside of her lip, but she did not have a
       black eye or any visible bruising.
¶ 34       Although Marilyn told Wood she would not tell anyone he had been at her house, Wood
       did not believe her because he thought she was also lying to him about having a broken arm.
       He decided to restrain Marilyn so that she would not be able to tell the police that he had been
       there. When Wood got an orange extension cord and began to tie Marilyn’s hands behind her
       back, she started calling out for help. Wood did not want the neighbors to hear her, so he put
       the paper towel he had used to clean up the blood in her mouth and also put the orange cord
       through her mouth. Wood then carried Marilyn to the couch in the storage room and left her
       there.
¶ 35       Wood was in the basement when he heard the police knocking on the door on October 30.
       He ran upstairs and hid in the front bedroom closet. Wood asked Michael, the archangel, to just
       have the police do a cursory check and then leave. Wood heard a police officer come down the
       hallway, but the officer left without coming into the bedroom.
¶ 36       After the police left, Wood went back downstairs and saw that the door to the storage room
       was open. He went inside the room and saw Marilyn kicking her foot in the air on the couch
       and could hear her mumbling, “ah, ah” through the cord that was in her mouth. Wood was
       afraid that if the police came back looking for her they would see her foot kicking in the air, so
       he put a rolled carpet on top of her. Marilyn was still able to kick her foot so Wood took part of
       the extension cord and tied her foot down to the ground. He also put a towel over Marilyn’s
       mouth and wrapped speaker wire around the towel. Wood did not remember putting a suitcase,
       clothing or plastic bags filled with things on top of the carpet, and did not remember tying
       Marilyn’s hands with speaker wire.
¶ 37       The next morning, Wood wrote out a note saying that Marilyn had gone to Minnesota
       because of a death in the family, signed it, and left the house so that he could fax it to Marilyn’s
       employer. Before leaving the house, Wood took Marilyn’s credit card from her purse so that he
       could put gas in the car in case he needed to take her to the hospital.

           1
            Although Wood testified that this happened in the early morning hours of October 29, the parties
       stipulated that Marilyn was videotaped using her credit card at a grocery store at 7:15 p.m. on October
       29 and her coworker testified that Marilyn did not miss work until October 30.

                                                      -7-
¶ 38        After sending the fax to Marilyn’s office, Wood ran some errands and signed up two new
       clients for his business. When he tried to return to the house much later that evening, he saw a
       police car that turned around and followed him. Wood thought the police were going to try and
       kill him because he tied Marilyn up, so he “hit the gas and took off.” When defense counsel
       asked Wood why he wanted to testify, Wood reiterated that he wanted the judge to know
       exactly what he had done. Wood stated that he had no idea Marilyn could die from being tied
       up, and that in his entire life, he had never heard of anyone dying from being tied up. He
       testified he did not kill Marilyn and that all he had done was unlawfully restrain her.
¶ 39        During closing argument, defense counsel told the trial court that his first argument had
       been that there was no direct evidence against Wood. However, because Wood had testified
       against counsel’s advice and admitted to tying Marilyn up and gagging her, he could no longer
       make that argument. Instead, defense counsel told the court that, if anything, Wood’s
       testimony revealed that he is clearly mentally ill and counsel asked the court to make a finding
       of GBMI.
¶ 40        The trial court found Wood guilty on all counts. In explaining its ruling, the court stated
       that in order for the court to enter a finding of GBMI, the defense would have had to prove by
       a preponderance of the evidence that Wood was mentally ill at the time he committed the
       offense. However, all of the stipulations presented by the defense involved examinations after
       the offense. Moreover, none of the doctors testified regarding Wood’s mental state at the time
       of the offense. The trial court noted that there was evidence regarding past medical history, but
       that was not sufficient and would require the trial court to make a “leap.”
¶ 41        At a hearing on Wood’s pro se posttrial motion that his trial counsel was ineffective, Wood
       told the court that his trial counsel advised him to plead not guilty by reason of insanity but that
       Wood did not want to because he knew he did not kill Marilyn and he wanted his attorney to
       argue involuntary manslaughter. Wood explained that he committed the reckless act of tying
       Marilyn up that caused her death but her death was accidental and was a result of the injuries
       she initially suffered from falling down the stairs.
¶ 42        Defense counsel testified he told Wood that the defense of involuntary manslaughter was
       not a workable defense because, beyond Wood’s testimony, there was no evidence that
       Marilyn had fallen down the stairs. However, defense counsel did not want Wood to testify
       because the cause of death was not merely blunt force trauma but also asphyxiation and Wood
       would therefore be admitting guilt in testifying that he bound and gagged Marilyn. Defense
       counsel also testified that he contacted the coroner and had a private conversation with him,
       and the coroner told him that Marilyn’s injuries were inconsistent with a fall down the stairs.
       The trial court denied the motion, finding that defense counsel’s representation was effective
       and that even if defense counsel had pursued the strategy Wood requested, there was
       overwhelming evidence of Wood’s guilt.
¶ 43        In support of his motion for a new trial, defense counsel explained to the court that he did
       not raise an insanity defense for two reasons: (1) he did not have an expert who would testify
       that Wood was insane at the time of the offense, and (2) doing so would have allowed the State
       to hire its own expert to examine Wood and would also have allowed the State access to Dr.
       Hanlon’s findings. Instead, defense counsel said he thought that under the circumstances of the
       case, it would be appropriate for the court to enter a finding of GBMI.
¶ 44        The trial court denied the motion for a new trial, explaining that there was not sufficient
       evidence that Wood was mentally ill at the time of the offense to support a finding of GBMI.

                                                    -8-
       The trial judge also stated for the record that she had observed Wood during his testimony,
       specifically, the way he responded to her, the way he looked at her while he answered the
       questions he was asked, and the way he explained things to her. She stated that she did not
       believe Wood, further explaining that she thought he was malingering and dishonest, he
       exaggerated, and his statements were self-serving.
¶ 45       At Wood’s sentencing hearing, the State presented evidence of a 1998 incident where
       Wood pleaded guilty to public indecency and disorderly conduct after trying to lure two
       teenage girls into his car. The State also presented evidence of the following domestic
       incidents that occurred at Marilyn’s residence: (1) in 1999, Marilyn called to request
       ambulance transport for Wood to a hospital for psychiatric evaluation after Wood kept her up
       most of the night talking and acting irrationally and an hour later she awoke to find Wood
       standing in her room holding a steak knife to his chest; (2) in 2002, when police attempted to
       arrest Wood on a home monitoring violation, he locked himself in the bathroom and continued
       to resist arrest after police officers kicked the door in; (3) in 2002, the day Marilyn obtained an
       order of protection against him, Wood removed items from the house that he had purchased
       using Marilyn’s credit card without her permission and drove away in a car that Wood obtained
       registration for by forging Marilyn’s name on the title; and (4) in 2008, Marilyn barricaded
       herself in her bedroom and called the police to take her to the courthouse to obtain an order of
       protection because Wood had kept her up all night screaming and playing loud music and she
       was afraid that he would prevent her from leaving the house to obtain the order.
¶ 46       In mitigation, defense counsel called Dr. Robert Hanlon. Dr. Hanlon interviewed Wood on
       three separate occasions. Dr. Hanlon conducted an extensive seven-hour neuropsychological
       examination, an assessment of Wood’s fitness to stand trial, and an assessment of Wood’s
       sanity at the time of the offense. Dr. Hanlon concluded that Wood suffered from schizophrenia,
       a chronic disabling mental disorder characterized by hallucinations and delusional thinking,
       for which there is no cure.
¶ 47       Wood related to Dr. Hanlon that he was concerned that Marilyn was going to take action
       regarding the restraining order so he caused Marilyn to fall down the stairs. Wood did not think
       Marilyn was significantly injured and he restrained her on a couch in a room in the basement.
       Wood subsequently tied one of Marilyn’s legs down so that she could not move that leg and
       eventually put some type of large cushion on top of her and left her there.
¶ 48       On the basis of Wood’s description of his thoughts and actions at the time of the offense,
       Dr. Hanlon concluded that Wood could appreciate the criminality of his actions. Although
       Wood stated consistently throughout his interviews that he had regular communication with a
       multitude of angels, good and bad, and Dr. Hanlon believed this manifestation of psychotic
       symptoms had been ongoing for years and was present at the time of the offense, Dr. Hanlon
       concluded that Wood killed Marilyn not because of his psychotic symptoms but because he did
       not want to go to jail. Wood understood that there was an existing order of protection and that
       he was not allowed to be near Marilyn or inside her house. On redirect, Dr. Hanlon explained
       that he had conducted tests to determine whether Wood was malingering, that is fabricating or
       exaggerating symptoms, and the results of the testing showed that Wood was not malingering
       psychiatric symptoms, psychopathology or cognitive problems.
¶ 49       Wood addressed the court and stated that he knew that he tied his mother up and that tying
       her up was wrong, but he did not intend to kill her and did not have any idea that she could die


                                                    -9-
       from being tied up. He thought he was simply preventing her from going to the police and
       believed that the longer she was tied up, the happier she would be when he released her.
¶ 50       The trial court explained that an extended-term sentence was appropriate because the
       following aggravating factors were present: (1) the crime was brutal and heinous, indicative of
       wanton cruelty; (2) the victim was over the age of 60; and (3) there was an order of protection
       in place at the time of the murder where the victim was the petitioner and Wood was the
       respondent. The trial court sentenced Wood to 61 years for first degree murder and a
       consecutive 3 years for concealment of a homicide, for a total of 64 years in prison. Wood was
       sentenced to two years on each of the remaining charges, to run concurrently. The motion to
       reconsider sentence was denied and Wood timely filed this appeal.

¶ 51                                               ANALYSIS
¶ 52        Wood contends that trial counsel provided ineffective assistance when he (1) requested a
       finding of GBMI without presenting an insanity defense, and (2) failed to call his expert to
       testify at trial that Wood suffered from a mental illness–paranoid schizophrenia–at the time of
       the commission of the offense.
¶ 53        As an initial matter, the State argues that Wood has forfeited his claims of ineffective
       assistance on appeal by failing to raise them in his pro se posttrial motion, in which he raised
       other claims of ineffective assistance. Therefore, the State contends that we can only review
       these claims for plain error. The plain-error rule applies to unpreserved errors, and in order to
       preserve an error for review, a defendant must both object to the error at trial and raise the issue
       in a posttrial motion. People v. Thompson, 238 Ill. 2d 598, 611-13 (2010).
¶ 54        The State’s argument is not well taken. The State does not even acknowledge the obvious:
       that defense counsel certainly did not object at trial on the grounds of his own ineffectiveness.
       If we were to carry this argument to its logical extreme, it would mean that all ineffective
       assistance claims are unpreserved errors that must be reviewed for plain error, because it is not
       likely that trial counsel would ever object at trial on the grounds of his or her own ineffective
       assistance.
¶ 55        In fact, although the State cites to standard authority that a defendant preserves an error for
       review by objecting at trial and raising the issue in a posttrial motion, the State does not frame
       its argument in terms of whether the claimed error has been preserved. Instead, the State argues
       that because Wood raised some ineffective assistance claims in his pro se posttrial motion, he
       has forfeited all remaining ineffective assistance claims and the plain-error rule should apply.
       In other words, if Wood had not raised any ineffective assistance claims at all in his pro se
       motion, then the plain-error rule would not apply, but because he did, he can only obtain
       plain-error review of any ineffective assistance claims that were not raised. The State cites no
       authority for this proposition, and we note that adopting such a position would impose undue
       hardship on criminal defendants who believe they have received ineffective assistance but
       cannot afford to retain other counsel in connection with their posttrial motions and therefore
       must raise such claims pro se.
¶ 56        Moreover, this court has noted that claims of ineffective assistance and the plain-error rule
       overlap because a successful claim of ineffective assistance of counsel would necessarily
       satisfy the second prong of the plain-error rule. People v. McCarter, 2011 IL App (1st) 092864,
       ¶ 37 (“The second prong of the plain error rule is triggered if a defendant can successfully


                                                    - 10 -
       prove ineffective assistance of counsel [because] this is considered a substantial impairment of
       fundamental rights ***.” (Internal quotation marks omitted.)). Therefore, we will consider the
       merits of Wood’s ineffective assistance claims independent of the plain-error doctrine.
¶ 57        The State also contends that Wood’s ineffective assistance claims are barred by the
       doctrine of invited error. The State argues that because Wood refused to allow his attorney to
       pursue an insanity defense and repeatedly stated that he wanted his attorney to pursue an
       involuntary manslaughter defense, he cannot now complain that his attorney was ineffective
       on the grounds that he failed to pursue a strategy that Wood did not want him to pursue.
¶ 58        “Under the doctrine of invited error, an accused may not request to proceed in one manner
       and then later contend on appeal that the course of action was in error.” People v. Carter, 208
       Ill. 2d 309, 319 (2003). The doctrine of invited error has been held to bar review of claims on
       appeal in cases where a defendant opposed the giving of a lesser-included-offense instruction
       to the jury but argued on appeal that the instruction should have been given (id.), tendered an
       instruction to the jury but claimed the instruction was erroneous on appeal (People v. Patrick,
       233 Ill. 2d 62, 77 (2009)), and requested the very verdict forms that were challenged on appeal
       (People v. Villarreal, 198 Ill. 2d 209, 227 (2001)).
¶ 59        We have found no circumstances similar to the facts of this case in which the doctrine has
       been applied, and we decline to apply it here. Wood’s trial counsel pursued two arguments at
       trial, namely, that there was no direct evidence tying Wood to Marilyn’s murder and, in the
       alternative, that Wood was guilty but mentally ill. Notably, Wood’s trial counsel did not pursue
       the theory that Wood wanted him to pursue, that Wood committed involuntary manslaughter.
       The record is also clear that trial counsel did not abandon an insanity defense merely because
       Wood did not want him to pursue it but, rather, because he did not have the necessary evidence
       to support such a defense and did not want to allow the State to hire an expert to interview
       Wood or to access his own expert’s findings. Therefore, we will address the issue of whether
       trial counsel’s decisions amounted to ineffective assistance.
¶ 60        Ineffective assistance of counsel claims are measured against the standard set forth in
       Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance,
       a defendant must show both that counsel’s representation fell below an objective standard of
       reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been different. Id. at 687-88, 694; see also
       People v. Edwards, 195 Ill. 2d 142, 162-63 (2001). “A reasonable probability is a probability
       sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
¶ 61        To establish that trial counsel’s performance was deficient, a defendant must overcome the
       strong presumption that counsel’s action or inaction was the result of sound trial strategy.
       People v. Evans, 186 Ill. 2d 83, 93 (1999). A reviewing court is highly deferential to trial
       counsel on matters of trial strategy and must make every effort to consider counsel’s
       performance from his perspective at the time, rather than in hindsight. People v. Perry, 224 Ill.
       2d 312, 344 (2007).
¶ 62        Under Illinois law, a defendant must raise the defense of insanity in order to be eligible for
       a GBMI conviction. People v. Gosier, 145 Ill. 2d 127, 142 (1991). When the defendant has
       raised an insanity defense, a court may find the defendant guilty but mentally ill if the State has
       proven the defendant guilty of the offense beyond a reasonable doubt, the defendant has failed
       to prove insanity, and the defendant has proven by a preponderance of the evidence that he was
       mentally ill at the time of the offense. 725 ILCS 5/115-3(c)(1)-(3) (West 2010).

                                                   - 11 -
¶ 63        Although this court may dispose of an ineffective assistance claim without considering
       whether counsel’s performance was deficient if a defendant fails to establish prejudice, we
       believe that Wood has established prejudice here. Under the statute, a defendant whose
       insanity defense fails may be found GBMI if he establishes by a preponderance of the evidence
       that he was mentally ill at the time of the offense. As the State points out, the trial court
       considered whether Wood had met this burden even though he did not present an insanity
       defense, and concluded that he had not. Although the finding would not have been available to
       Wood here regardless of whether Wood had met this burden, it is clear that if defense counsel
       had raised an insanity defense and Dr. Hanlon or another expert had testified at trial, a finding
       of GBMI would have been appropriate.
¶ 64        Some of the trial court’s comments seem to indicate that the trial court may have conflated
       the symptoms of mental illness with the illness itself. However, the trial court also appeared to
       believe that without expert testimony that Wood was suffering from a mental illness at the time
       of the offense, even though there was evidence of a history of mental illness, a GBMI finding
       was inappropriate. We note that the statute does not require such expert testimony. Rather, the
       defendant must simply prove by a preponderance of the evidence that he was suffering from a
       mental illness at the time of the offense, and the trial court noted that there was evidence of a
       long history of mental illness.
¶ 65        We do not believe it requires a “leap” to conclude that if a person has presented
       uncontradicted evidence that he was diagnosed with a mental illness a number of years before
       an offense, although there may be times when his symptoms are not acute or are controlled
       with medication, the underlying illness does not disappear. Therefore, uncontradicted
       testimony that Wood had been treated for mental illness prior to the murder together with
       stipulations by multiple doctors who examined Wood after the murder and were in agreement
       that Wood suffered from schizophrenia would have been sufficient to prove by a
       preponderance of the evidence that Wood was mentally ill at the time of the murder.
¶ 66        But even if the trial court correctly concluded that more evidence was needed to establish
       the fact of Wood’s mental illness at the time of the offense, such evidence would have been
       amply provided if Dr. Hanlon had testified at trial. At the sentencing hearing, Dr. Hanlon
       testified that schizophrenia is a degenerative brain disease with no cure, at least seven doctors
       had diagnosed Wood with schizophrenia, and the medical records established he had been
       suffering from the illness for more than a decade prior to the murder. Dr. Hanlon further
       testified that although Wood’s illness did not prevent him from understanding the criminality
       of his actions and did not cause him to commit the offense, he manifested psychotic symptoms
       during the offense in the form of delusions that angels were present and he was communicating
       with them. Thus, if defense counsel had raised an insanity defense and Dr. Hanlon had testified
       at trial, the result would almost certainly have been a finding of GBMI.
¶ 67        We reject the State’s argument that Wood cannot show prejudice because a finding of
       GBMI would result in no difference to Wood. In support of this argument, the State points to
       the statutory provision that allows the court to impose any sentence that could have been
       imposed in the absence of a finding of mental illness. See 730 ILCS 5/5-2-6(a) (West 2010).
       Yet, the State then goes on to point out that there is, in fact, a difference. Upon a finding of
       GBMI, the Illinois Department of Corrections “shall cause periodic inquiry and examination to
       be made concerning the nature, extent, continuance, and treatment of defendant’s mental
       illness” and “shall provide such psychiatric, psychological, or other counseling and treatment

                                                  - 12 -
       for the defendant as it determines necessary.” 730 ILCS 5/5-2-6(b) (West 2010). While a
       finding of GBMI would most likely not have resulted in a lower sentence, especially given that
       the trial court stated at the sentencing hearing that it had considered in mitigation that Wood
       “suffer[ed] from a mental disturbance and a brain disease,” it would have entitled Wood to the
       treatment provided in section 5-2-6(b). See also People v. Rainey, 149 Ill. App. 3d 327, 331
       (1986) (noting that while a GBMI finding may not have resulted in a reduced sentence, the
       defendant was deprived of statutorily provided treatment). Wood has therefore established
       prejudice in the absence of a finding of GBMI. To conclude otherwise would be to render a
       finding of GBMI meaningless.
¶ 68       Therefore, we must address the issue of whether counsel’s performance was deficient. We
       conclude that it was not.
¶ 69       Wood relies on Rainey, in which this court held that the failure to assert a defense of
       insanity at trial in order to obtain a finding of GBMI constituted ineffective assistance of
       counsel. See id. In Rainey, the defendant underwent a psychological examination prior to trial
       and was determined to be fit to stand trial but mentally ill. Id. at 328-29. At trial, no evidence
       was presented concerning the defendant’s mental condition. Id. at 329. However, at the
       sentencing hearing, the expert who examined the defendant prior to trial testified that he was
       mentally ill at the time of the offense. Id. On the basis of the expert testimony, defense counsel
       asked the court to amend its finding to GBMI. Id. The request was denied on the grounds that a
       finding of GBMI was not available. Id. The trial court stated that if defense counsel had raised
       the defense of insanity and presented at trial the expert testimony that was provided at the
       sentencing hearing, the court would have had no choice but to enter a finding of GBMI. Id. at
       329-30.
¶ 70       The State attempts to distinguish Rainey on the grounds that the trial court in Rainey stated
       that if counsel had argued insanity and presented the expert testimony that was presented at the
       sentencing hearing, it would have entered a finding of GBMI, whereas the court here
       considered and rejected a request for a finding of GBMI. This argument is unavailing. As
       previously discussed, the trial court here never acknowledged that the finding was statutorily
       unavailable but instead rejected defense counsel’s request on the grounds that no evidence had
       been presented at trial on the issue of whether Wood was mentally ill at the time of the offense.
       It follows then, even without the trial court explicitly making such a statement, that if such
       evidence had been presented, a finding of GBMI would have been appropriate if an insanity
       defense had been raised.
¶ 71       There are, however, two significant differences between the facts of this case and the facts
       in Rainey. First, the defendant in Rainey was found fit to stand trial and no evidence of his
       mental condition was presented at trial. Here, Wood was originally found unfit to stand trial
       and required a year of treatment to be restored to fitness, and there was ample evidence
       presented at trial of Wood’s long history of mental illness and the conclusions of doctors who
       had examined him after the offense. Second, and more importantly, the Rainey court based its
       conclusion in part on the fact that, in that case, it had defense counsel’s “frank admission” that
       he had “misconstrued the law” when counsel stated that if he had raised an insanity defense, it
       would have been an admission that the defendant committed the acts. Id. at 330-31.
¶ 72       Here, we have defense counsel’s statement that he thought a finding of GBMI would still
       be appropriate even though he had not raised an insanity defense, which is clearly not the law,
       but we also have defense counsel’s reasonable explanation for why he did not raise the

                                                   - 13 -
       defense. At a status hearing prior to trial, the trial court questioned whether defense counsel
       would be raising an insanity defense. Defense counsel explained that Wood had been
       examined by an expert but he would not be submitting a report from that expert. Defense
       counsel further explained that he had been “toying” with the idea of having Wood examined by
       another doctor but Wood had informed him that he would refuse to cooperate with any other
       examinations. At the hearing on his motion for a new trial, defense counsel informed the trial
       court that he had not raised an insanity defense because he did not have an expert who would
       testify that Wood was insane at the time of the offense and because he did not want to allow the
       State to hire its own expert to examine Wood and have access to Dr. Hanlon’s findings.
¶ 73        The Rainey court’s conclusion that trial counsel provided ineffective assistance appears to
       be two-fold. We do not believe that the testimony of the expert alone, who testified at the
       sentencing hearing just as Dr. Hanlon did here that the defendant in Rainey was not insane,
       would have been sufficient evidence to support raising an insanity defense in that case. The
       Rainey court’s explanation for why counsel provided ineffective assistance also included trial
       counsel’s explanation that the only reason he did not raise the defense is that he thought it
       would constitute an admission of guilt. Although Rainey was silent on this issue, we believe
       trial counsel in that case would also have had to obtain some evidence that the defendant in
       Rainey was insane at the time of the offense in order to plead insanity in good faith.
¶ 74        Here, Wood does not explain how his trial counsel could have proceeded on an insanity
       defense in good faith, but simply states that, having decided to argue GBMI, “it was counsel’s
       professional obligation to assert that defense in a way that conformed to statutory
       requirements, and then to substantiate the defense with a readily available witness.” As an
       initial matter, we note that GBMI is not a defense. See 720 ILCS 5/6-4 (West 2010) (“mental
       illness is not an affirmative defense, but an alternative plea or finding”). To obtain a finding of
       GBMI, a defendant has only two options: a defendant may enter a plea of guilty but mentally
       ill, either before or during trial (725 ILCS 5/115-2(b) (West 2010)); or a defendant may raise
       the defense of insanity and, if he fails to establish insanity but proves by a preponderance of the
       evidence that he was mentally ill at the time of the offense, he may be found guilty but
       mentally ill (725 ILCS 5/115-3(c)(1)-(3) (West 2010)).
¶ 75        Under Illinois law, all people are presumed sane and, in order to raise the affirmative
       defense of insanity, a defendant must present some evidence of insanity. People v. Silagy, 101
       Ill. 2d 147, 168 (1984). See also 720 ILCS 5/3-2(a) (West 2010) (to raise an affirmative
       defense, a defendant must present some evidence thereon). A person is insane and not
       criminally responsible for his conduct if he lacks substantial capacity to appreciate the
       criminality of that conduct due to a mental disease or defect. 720 ILCS 5/6-2(a) (West 2010).
¶ 76        Here, Wood’s own expert concluded that Wood understood the criminality of his actions.
       This conclusion is supported by the substantial evidence presented at trial regarding Wood’s
       ability to appreciate the criminality of his conduct, including his anger at his mother for
       obtaining the protective order, which rendered him homeless, his desire to prevent his mother
       from informing the police of his violation of the protective order, his conduct in faxing an
       explanation for his mother’s absence from work and his conduct in fleeing and eluding police
       after his mother’s body was discovered. Wood’s counsel explained to the court that he was
       considering having Wood examined by another expert, but Wood had informed him that he
       would not cooperate with any other doctors. In light of the fact that his own expert determined
       that Wood was not insane at the time of the offense and Wood refused to be examined by any

                                                   - 14 -
       other doctors, defense counsel clearly could not have “substantiated [an insanity] defense with
       a readily available witness.”
¶ 77       Moreover, an attorney must sign every pleading, motion or other document entered on
       behalf of a party he is representing, and his signature constitutes a certification that, to the best
       of his knowledge, information and belief formed after reasonable inquiry, it is well grounded
       in fact and is warranted by existing law. Ill. S. Ct. R. 137(a) (eff. July 1, 2013). Further, the
       Rules of Professional Conduct provide “[a] lawyer shall not bring or defend a proceeding, or
       assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is
       not frivolous, which includes a good-faith argument for an extension, modification or reversal
       of existing law.” Ill. R. Prof. Conduct (2010) R. 3.1 (eff. Jan. 1, 2010). Defense counsel’s
       conduct in asserting an insanity defense in light of Dr. Hanlon’s opinion that Wood was not
       insane at the time he murdered his mother would have constituted a violation of the foregoing
       ethical constraints. We cannot conclude that defense counsel’s failure to pursue a defense for
       which he lacked an adequate factual and legal basis constitutes ineffective assistance.
¶ 78       We note that the facts of this case highlight a problem with the underlying statute. In cases
       such as this, a defendant is precluded from obtaining a finding of GBMI even where it would
       clearly be appropriate because such a finding requires raising an insanity defense in the
       absence of any supporting evidence. But we cannot set a standard of conduct that requires
       lawyers to plead a defense that is not supported by a good faith belief in its factual and legal
       viability. Correcting this defect in the statute is a matter for the legislature. Although we
       believe that a finding of GBMI would have been appropriate here, we cannot say that counsel
       provided ineffective assistance in deciding not to pursue a statutorily required defense for
       which he did not have and could not obtain any supporting evidence.
¶ 79       For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 80       Affirmed.




                                                    - 15 -
