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                                  Appellate Court                             Date: 2016.02.18 08:52:21
                                                                              -06'00'




                      People v. Garcia, 2015 IL App (1st) 131180



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



District & No.        First District, Second Division
                      Docket Nos. 1-13-1180, 1-13-1229 cons.



Filed                 September 8, 2015
Modified upon
denial of rehearing   February 2, 2016


Decision Under        Appeal from the Circuit Court of Cook County, Nos. 98-CR-30521,
Review                99-CR-25668; the Hon. Rickey Jones, Judge, presiding.



Judgment              Affirmed.



Counsel on            Michael J. Pelletier and Darrel F. Oman, both of State Appellate
Appeal                Defender’s Office, of Chicago, for appellant.

                      Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                      Christine Cook, and Katarina Durcova, Assistant State’s Attorneys, of
                      counsel), for the People.



Panel                 JUSTICE HYMAN delivered the judgment of the court, with opinion.
                      Presiding Justice Mason and Justice Pucinski concurred in the
                      judgment and opinion.
                                              OPINION

¶1       Defendant, Gerardo Garcia, appeals from the dismissal of his third-stage postconviction
     petition, contending the trial court erred when, after a retrospective fitness hearing, it found
     him fit to stand trial for first degree murder and to plead guilty to unlawful use of a weapon
     by a felon. Garcia further contends the trial court erred in failing to advance his ineffective
     assistance of counsel claim past second-stage proceedings. He argued that his trial counsel
     should not have stipulated to the State’s factual basis and allowed him to plead guilty to the
     felony weapons offense.
¶2       The trial court’s dismissal of Garcia’s postconviction petition following a third-stage
     evidentiary hearing was not manifestly erroneous. The State offered credible evidence in the
     form of both defense counsels’ testimony and a psychiatrist’s report finding Garcia fit to
     stand trial in the murder case and that he made his plea in the felony weapons case
     knowingly and intelligently.
¶3       Regarding Garcia’s challenge to the second-stage dismissal of his ineffective assistance
     of counsel claim, the parties dispute whether we may consider the merits. Contrary to the
     State’s contention that we lack jurisdiction to consider Garcia’s ineffective assistance claim
     because he did not include it in his notice of appeal, we find review of the issue proper where
     the only possible way for him to appeal the second-stage dismissal was by filing a timely
     notice of appeal after the remainder of his postconviction petition was denied after the
     third-stage hearing. Having done so, Garcia properly appealed the second-stage dismissal, a
     step in the procedural progression leading to the final judgment. Taking all well-pled facts as
     true, the trial court properly dismissed Garcia’s ineffective assistance of counsel claim during
     the second-stage proceedings finding he failed to make a substantial showing that trial
     counsel provided ineffective assistance of counsel in stipulating to the State’s factual basis,
     which supported a finding of guilt on the felony offense.

¶4                                       BACKGROUND
¶5                                      Procedural History
¶6       In 1998, the State charged Garcia with two counts of unlawful use of a weapon by a felon
     (UUWF) and two counts of simple unlawful use of a weapon (UUW) in case No. 98 CR
     30521. The following year, the weapon charges still pending, the State charged Garcia in
     case No. 99 CR 25668 with first degree murder, attempted first degree murder, and
     aggravated battery after Garcia brought a gun to a fist fight.

¶7                                      Mental Health History
¶8      On December 5, 2000, while in custody awaiting the murder trial, Garcia was admitted to
     Cermak Hospital and placed in full leather restraints for four hours after he threatened to
     commit suicide by hanging himself or cutting his wrists. Garcia reported he wanted to kill
     himself because his case appeared to be going “bad,” and because he was facing 20 to 40
     years in prison if found guilty. Garcia also reported he felt stress due to his incarceration, the
     possible outcome of the case, worry for his one-year-old daughter, and his ex-girlfriend’s
     pregnancy by another man. Doctors prescribed multiple medications to treat anxiety and
     depression (Zoloft, Trazodone and Lorazepam a/k/a Ativan). Lorazepam is a sedative when


                                                 -2-
       administered intramuscularly rather than orally. The hospital discharged Garcia the following
       day, but he remained on psychotropic medication while in Cook County jail.
¶9         On April 2, 2001, Garcia was taken to the Cermak emergency room following an
       attempted suicide by cutting his ankles and trying to overdose on medication, his own and
       that of fellow inmates. In May 2001, Garcia began taking an additional prescription
       antidepressant with a sedative function, Doxepin a/k/a Sinequan.
¶ 10       On June 29, 2001, following a bench trial, the court found Garcia guilty of first degree
       murder and aggravated battery. Garcia did not testify. When questioned by the court about
       his decision, Garcia answered “Yes,” “No,” and “No, I don’t want to testify.”
¶ 11       The following month, on July 19, Garcia again was taken to the Cermak emergency
       room. There a psychiatrist considered him at high risk of attempting suicide because he had
       planned ways to kill himself. That evening, the acute care unit admitted Garcia, who
       exhibited depression and mental confusion. The next day, a psychologist noted Garcia
       displayed “limited insight, judgment & impulse control.” The acute care unit discharged
       Garcia two days later.
¶ 12       On August 19, 2001, Garcia went to Cermak Hospital for exhibiting acute depression,
       mental confusion and psychotic symptoms, including auditory hallucinations and paranoid
       ideation. He reported he had been fine until taken off medication on account of stomach pain.
       Garcia resumed taking his medication and was discharged the next day.
¶ 13       On September 11, 2001, the night before his sentencing hearing on the first degree
       murder conviction, Garcia was taken to the emergency room and placed in restraints “for the
       protection of self and others” after fighting with another inmate. He remained in the restraints
       overnight for 16 hours. He received the sedative Lorazepam (Ativan) intramuscularly at 5:55
       p.m. “in order to achieve sedation and control.”
¶ 14       The next day, after returning from his sentencing hearing on his first degree murder
       conviction and his guilty plea hearing, Garcia was observed being socially withdrawn and
       resting in his room. On September 13 and 14, 2001, Garcia was calm, alert, and quietly
       resting.

¶ 15                                  Sentencing and Plea Hearing
¶ 16       On September 12, 2001, the court held Garcia’s sentencing hearing on his murder
       conviction. During mitigation, defense counsel informed the court, “since my client has been
       in custody for this, he has been put into the [Psych] Ward because of the suicide attempt, and
       he is on medication for that.” Counsel requested Garcia receive a sentence “much closer to
       the minimum than the maximum.” The trial court asked whether the medication counsel
       referred to was psychotropic; counsel responded, “No, it is not, [Y]our Honor, it is an
       anti-depressant.” The court replied, “Thank you. Likewise, I certainly could see nothing but
       that Mr. Garcia is anything other than competent. He certainly has conducted himself in an
       appropriate manner through these proceedings.” Defense counsel stated, “I agree, [Y]our
       Honor.” In allocution, Garcia stated he was sorry, “I was not meaning to kill nobody, you
       know. And I want you to have mercy in dealing with me in court.”
¶ 17       The trial court sentenced Garcia to 28 years’ imprisonment for first degree murder and to
       a concurrent term of 6 years for aggravated battery with a firearm.



                                                  -3-
¶ 18       The same day, Garcia pled guilty to UUWF in the weapons case (No. 98 CR 30521), in
       exchange for two years’ imprisonment to run consecutively to his earlier 28-year sentence.
       During the plea hearing, the court admonished Garcia of his rights and he answered
       appropriately all questions, including those concerning his decision to plead guilty, his right
       to a trial by jury, and whether he wished to waive the presentence investigation. Garcia
       replied with one-word answers of “yes.”
¶ 19       The State put forth a factual basis for Garcia’s guilty plea. Relevant for this appeal is the
       State’s contention that Garcia admitted to police officers that his car was at the location of
       the arrest and that he had a gun in it. The officer recovered from Garcia’s car a .25-caliber
       semiautomatic blue steel pistol loaded with four live rounds. Defense counsel stipulated to
       the evidence and the court found Garcia guilty of UUWF. Asked whether he wished to say
       anything before sentencing, Garcia replied, “No.” The court sentenced Garcia to two years in
       prison on count I, which alleged that he possessed a firearm “on or about his person.”
¶ 20       Following the hearing, Garcia returned to Cermak Hospital where he remained for two
       days before being taken back to the jail.

¶ 21                                        Direct Appeal
¶ 22      On appeal from his murder conviction, Garcia argued the State failed to prove him guilty
       beyond a reasonable doubt because he was acting in self-defense of a friend when he shot
       and killed the murder victim and shot the other victim. Alternatively, Garcia argued his first
       degree murder conviction should be reduced to second degree murder because he
       unreasonably believed the circumstances justified his use of deadly force in defense of
       another. This court affirmed Garcia’s murder conviction on direct appeal. People v. Garcia,
       343 Ill. App. 3d 1286 (2003) (table) (unpublished order under Supreme Court Rule 23).
       Garcia did not seek to withdraw his guilty plea or appeal his weapons conviction.

¶ 23                                   Postconviction Proceedings
¶ 24       On March 3, 2004, two and a half years after his plea in the weapons case, Garcia filed an
       untimely pro se motion to withdraw his guilty plea, citing his mental health condition,
       medication, and treatment at Cermak Hospital. The court denied his motion. Garcia did not
       appeal.
¶ 25       On September 15, 2004, Garcia filed a pro se postconviction petition in the weapons case
       raising issues regarding his fitness to stand trial, his decision to plead guilty and his
       sentencing. Garcia argued the combination of medications he was taking at the time of his
       guilty plea rendered him “totally lethargic and unable to assist in his defense or make any
       rational decisions.” Garcia also alleged his trial counsel was ineffective for failing to inform
       the court of his “irrational behavior/demeanor and the fact that he was on psychotropic
       drugs.” He further alleged ineffectiveness of counsel for failing to object to the State’s
       “inadequate” factual basis for his UUWF conviction in that no firearm was found on his
       person, he did not admit to being in possession of a firearm, and a firearm was found in his
       parked car.
¶ 26       On November 30, 2004, Garcia filed a postconviction petition contesting his first degree
       murder conviction, the details of which are not relevant to this decision.



                                                   -4-
¶ 27       The court appointed counsel and advanced Garcia’s postconviction petitions for
       second-stage consideration. On August 26, 2009, Garcia, through counsel, filed a single
       supplemental petition addressing both cases. He alleged he was unfit to stand trial, plead
       guilty, or be sentenced, citing his multiple suicide attempts and regime of psychotropic
       medications. Garcia also alleged ineffective assistance for trial counsel’s failure to
       investigate this issue, which led to counsel misrepresenting Garcia’s mental health to the
       court. In support of his supplemental petition, Garcia attached his medical records, the
       presentence investigative report, transcripts from 2001, and affidavits from his mother and
       sister highlighting changes in his behavior and cognitive abilities during his incarceration.
       Counsel also attached the report of Dr. James Corcoran, a board-certified forensic
       psychiatrist and the medical director of Chicago Reed Mental Health Center. Dr. Corcoran
       opined, “Mr. Garcia was unfit to stand trial and unfit to plead guilty” and that he would have
       been “unable to assist his attorney in his defense.” Dr. Corcoran concluded that Garcia was
       too sedated to assist defense counsel, despite his ability to understand the proceedings. Dr.
       Corcoran noted Garcia’s condition worsened over time with the increase in the number of
       psychotropic medications prescribed, resulting in disorganized thinking that made complex
       thought and communication “very difficult.”
¶ 28       The court granted the State’s motion to dismiss Garcia’s postconviction petition on all
       grounds for relief, except fitness, and advanced Garcia’s postconviction petition to
       third-stage proceedings on his fitness at the time of trial. The court ordered a behavior
       clinical examination (BCX). The issue of fitness was not raised at trial.

¶ 29                                  Behavior Clinical Examination
¶ 30       In September 2010, Dr. Monica Argumedo, a psychiatrist with forensic clinical services,
       conducted Garcia’s BCX. Dr. Argumedo evaluated Garcia with respect to his fitness at the
       time of his murder trial in 2001 and at the time he pled guilty to UUWF. Before her
       interview, Dr. Argumedo reviewed the fitness evaluation conducted by Dr. Corcoran on June
       15, 2008; the July 30, 2001, investigative report from the adult probation department; the
       affidavits of Garcia’s mother and sister; the transcripts of the court proceedings from
       September 12, 2001 (sentencing and plea hearings); the Chicago police department arrest
       investigative records; and the August 2010 records from Cermak Hospital. Three months
       after meeting with Garcia, Argumedo received and reviewed the records from the
       Department of Corrections and Cermak Hospital for December 2000 and December 2001.
       On March 2, 2011, Dr. Argumedo informed the court by letter of her opinion–Garcia was fit
       to stand trial and plead guilty in 2001.

¶ 31                                 Retrospective Fitness Hearing
¶ 32       During the retrospective hearing, which took place over several dates in 2012, the
       defense called Dr. Corcoran, as well as Garcia’s mother and sister. The State called Dr.
       Argumedo and Garcia’s two trial attorneys, Michael Clancy and David Peilet.
¶ 33       Dr. Corcoran testified that during his retrospective fitness evaluation, he relied primarily
       on his review of Garcia’s medical records, but also interviewed Garcia for 90 minutes and
       reviewed the trial transcripts, reports concerning Garcia’s mental health, and his family
       members’ affidavits. Corcoran opined that at the time of the trial and the guilty plea, Garcia
       was unfit and too sedated to assist defense counsel even though he was able to understand the

                                                  -5-
       proceedings. Corcoran believed Garcia’s mental condition worsened over time due to the
       number of psychotropic medications he was prescribed, resulting in disorganized thinking.
       Corcoran noted that Garcia’s statements in response to the court’s questioning during the trial
       proceedings did not prove fitness. Corcoran considered it significant that Garcia did not
       testify and the court did not ask complex questions calling for a narrative response.
¶ 34        Dr. Corcoran stood by his opinion even though he was aware that in November 2001,
       shortly after Garcia’s sentencing and guilty plea, Garcia went through the intake process at
       jail and admitted he lied about trying to kill himself in an attempt to get moved to protective
       custody. Corcoran explained the effects of the Ativan which Garcia received intramuscularly
       on September 11, 2001, as possibly including sedation, passivity, tiredness, and sometimes
       inability to focus. Dr. Corcoran testified that the combined effect of all of the psychotropic
       medications and Garcia’s depression could result in a behavior that would appear “under
       control” and “appropriate” by a lay person. Corcoran opined Garcia did not have the ability
       to assist or cooperate with his trial attorneys as he would have difficulty forming thoughts “in
       a coherent manner due to extensive sedation of the medications.”
¶ 35        Garcia’s mother and sister testified they regularly visited him in Cook County jail while
       he awaited trial. Initially, Garcia appeared his normal, sociable self, but over time, he began
       acting distracted like “his mind wasn’t there.” Garcia’s family members explained that he
       would only offer one-word answers to questions, often gave nonresponsive answers, and
       would repeat things he had already told them.
¶ 36        Dr. Argumedo testified she met with Garcia in 2010 and also reviewed Dr. Corcoran’s
       report, other reports, the family affidavits, Cermak records, and the court transcript from
       September 12, 2001 (the sentencing hearing). Dr. Argumedo testified that Garcia understood
       the court process in 2001 and in 2010, and that he was not experiencing any psychotic
       symptoms. She explained that in reaching her opinion, her main concern was with the
       incident involving restraints the night before his sentencing/plea hearing. She testified she
       wanted to know the reason for the restraints and what type of treatment he received. When
       she reviewed the records, she concluded that Garcia “was very upset, particularly about
       instances in his case.” When questioned, “Meaning what?” Argumedo explained, “Meaning
       when he was convicted, he reacted by becoming very depressed, having suicidal thoughts,
       saying, ‘I just want to die. I don’t want to die in jail,’ and it seemed to me that it sort of
       supported my opinion that he understood what was going on because when this occurred, he
       understood the significance of them.” Argumedo testified that during Garcia’s trial, the times
       he reported suicidal thoughts “were almost always in direct relation to something that was
       happening within his case, his case wasn’t going well, he was looking at a lot of time, and so
       he was worried, and so he would get depressed to the point where he would want to kill
       himself, or he would attack another inmate, something would happen along those lines, and it
       seemed like it fit a pattern.” In terms of fitness, Argumedo found the fact that Garcia’s
       depression correlated with how well his case seemed to be going indicated “a good
       understanding of what was going on in the trial.”
¶ 37        Dr. Argumedo reviewed Garcia’s medication and their side effects. That Garcia
       experienced abdominal discomfort while taking Zoloft and reported the side effect to a
       doctor, who changed the medication, indicated to Dr. Argumedo that Garcia had the “ability
       to be appropriately self-protective.” Argumedo opined that had Garcia experienced side
       effects such as mental confusion, inability to concentrate or deadening of emotions, she

                                                  -6-
       would have expected him to report those feelings as he did his depression and stomach
       discomfort. The absence of any reports like that was significant to Argumedo.
¶ 38       Argumedo testified specifically about the events surrounding Garcia’s time in restraints
       on September 11, 2001. According to the records, Garcia hit another inmate with a food tray
       and the altercation occurred. He was brought to Cermak Hospital and placed in restraints
       because he was “physically fighting them.” Argumedo testified the records show Garcia
       received a two milligram dose of Ativan, which she described as “a starting dose or on the
       smaller end of a dose, to calm him down.” After receiving the Ativan, Garcia was still
       agitated, but was “clear,” “alert and oriented.” Garcia was saying, “I had to take care of my
       business.” The records state he slept through the night. Argumedo stated that Garcia “didn’t
       seem overly sedated.” When questioned whether Garcia returned to the general population
       the next day, Argumedo replied, “It looked like the next day, but I’m not a hundred percent
       positive.” (Garcia remained at Cermak Hospital for two more days after the sentencing/plea
       hearing.)
¶ 39       Dr. Argumedo conceded defense counsel was wrong when he informed the court Garcia
       was not taking any psychotropic medications and that an individual taking these types of
       medications could be fit one day and unfit the next.
¶ 40       Garcia’s trial attorney, Michael Clancy, testified that he and David Peilet represented
       Garcia in his murder trial. They consulted with him at the jail in 1999 or 2000 to discuss the
       facts of the case and potential trial strategies. Clancy met with Garcia more than 20 times
       during the course of the case and Garcia told him his story and was “absolutely” able to assist
       in his defense. Clancy recalled that Garcia was “very involved” in explaining the
       circumstances of the shooting to his attorneys and the facts the defense presented at trial
       came from Garcia’s recollection.
¶ 41       Peilet testified Garcia assisted in his defense and that he and Clancy were able to
       formulate their trial strategy through communications with Garcia. In the past Peilet had
       represented clients for whom he requested fitness hearings due to doubt about their fitness,
       but he never had a doubt about Garcia’s fitness. The issue of Garcia’s fitness “never entered
       his mind” because Garcia was able to “intelligently discuss with him, and he was able to
       articulate certain specific facts that were needed in preparation of the defense.” According to
       Peilet, at no time during trial, sentencing, or plea hearing was Garcia unable to assist in his
       own defense.
¶ 42       Both attorneys testified Garcia always seemed appropriate and acted “compliant and
       cooperative” during all court dates and, therefore, they never doubted his fitness. The
       attorneys acknowledged they had no psychology training or familiarity with psychotropic
       medications. They also admitted they did not review Garcia’s records from Cermak Hospital
       and only learned about his attempted suicide from April 2001 and other mental health issues
       when they received the presentence investigative report just before sentencing in the murder
       case.
¶ 43       At the conclusion of the evidence, Garcia’s postconviction counsel argued Dr. Argumedo
       performed the wrong analysis in determining Garcia’s fitness. Postconviction counsel argued
       Argumedo improperly focused on the standard set forth in the insanity statutes and Garcia’s
       ability to understand the proceedings. Counsel argued Argumedo failed to analyze whether
       Garcia was able to assist his trial attorneys at all relevant times and pointed to the trial


                                                  -7-
       attorneys’ lack of psychological training. Counsel argued that their interpretation of Garcia as
       fit because of his calm and compliant state actually shows that Garcia was “highly sedated.”
¶ 44        The court denied Garcia’s supplemental postconviction petition, finding Garcia was fit at
       all relevant times during the proceedings. The court found the testimony of the State’s
       witnesses more credible than that of the defense witnesses.
¶ 45        Garcia appeals, contending that the trial court erred in finding him fit, where the
       undisputed record shows he spent the night before he pled guilty and was sentenced in full
       restraints and under the effects of sedatives.

¶ 46                                            ANALYSIS
¶ 47        The Post-Conviction Hearing Act (Act) provides a process by which a criminal defendant
       may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2010). A postconviction
       action is a collateral attack on a prior conviction and sentence, “not a substitute for, or an
       addendum to, direct appeal.” People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). To be
       accorded relief under the Act, a defendant must show there was a substantial deprivation of
       his or her constitutional rights in the proceedings that produced the conviction. People v.
       Pendleton, 223 Ill. 2d 458, 471 (2006). The Act “provides for postconviction proceedings
       that may consist of as many as three stages.” Id. at 472. At the third stage, the trial court
       hears evidence and determines whether, based on that evidence, the defendant is entitled to
       relief. People v. Chatman, 357 Ill. App. 3d 695, 698 (2005). “[T]he post-conviction trial
       judge is able to observe and hear the witnesses at the evidentiary hearing and, therefore,
       occupies a ‘position of advantage in a search for the truth’ which ‘is infinitely superior to that
       of a tribunal where the sole guide is the printed record.’ ” People v. Coleman, 183 Ill. 2d 366,
       384 (1998) (quoting Johnson v. Fulkerson, 12 Ill. 2d 69, 75 (1957)). Accordingly, when the
       circuit court holds an evidentiary hearing to consider new evidence and weigh witness
       credibility, the court’s judgment will not be disturbed absent manifest error. People v.
       Morgan, 212 Ill. 2d 148, 155 (2004). “Manifest error is error which is ‘ “clearly evident,
       plain, and indisputable.” ’ ” Id. (quoting People v. Johnson, 206 Ill. 2d 348, 360 (2002),
       quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).
¶ 48        The trial court ordered a third-stage evidentiary hearing on the issue of Garcia’s fitness to
       stand trial for first degree murder and to plead guilty to UUWF. Following the hearing, the
       trial court found Garcia retrospectively fit for both.

¶ 49                                        Garcia’s Fitness
¶ 50       Garcia contends the trial court erred in dismissing his postconviction petition following
       the third-stage evidentiary hearing. Garcia claims he could not assist in his defense at
       sentencing and pled guilty as a consequence of his use of psychotropic medications and his
       mental state, including psychotic episodes and attempted suicide.
¶ 51       The due process clause of the fourteenth amendment prohibits the conviction and
       sentencing of a defendant who is not fit to stand trial. U.S. Const., amend. XIV; People v.
       Johnson, 206 Ill. 2d 348, 361 (2002). Illinois law presumes a defendant fit to stand trial and
       considers a defendant unfit only if his or her mental condition prevents him or her from
       understanding the nature and purpose of the proceedings or assisting in the defense. 725
       ILCS 5/104-11(a) (West 2010); People v. Shum, 207 Ill. 2d 47, 57 (2003). When a bona fide


                                                   -8-
       doubt concerning a defendant’s fitness to stand trial exists, the court must order a fitness
       hearing to resolve the question of fitness before the case can proceed further. 725 ILCS
       5/104-11(a) (West 2010); Johnson, 206 Ill. 2d at 361. The well-settled test for fitness
       necessitates that a defendant have “sufficient present ability to consult with his [or her]
       lawyer with a reasonable degree of rational understanding … [and] a rational as well as
       factual understanding of the proceedings against him [or her].” (Internal quotation marks
       omitted.) People v. Stahl, 2014 IL 115804, ¶ 24 (quoting Cooper v. Oklahoma, 517 U.S. 348,
       354 (1996), quoting Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam)). A
       fitness examination order is not evidence of a bona fide doubt as to the defendant’s fitness.
       People v. Hill, 345 Ill. App. 3d 620, 627 (2003) (“decision to appoint an expert to examine a
       defendant has no bearing on the court’s ultimate conclusion as to whether a bona fide doubt
       as to the defendant’s fitness to stand trial has been raised”). Once a bona fide doubt has been
       raised as to the defendant’s fitness to stand trial, the State must prove the defendant fit by a
       preponderance of the evidence. People v. Clay, 361 Ill. App. 3d 310, 331 (2005).
¶ 52        Fitness and mental illness differ: fitness is a legal term determined by a judge or jury;
       mental illness is diagnosed by a licensed physician or psychologist. People v. Tuduj, 2014 IL
       App (1st) 092536, ¶ 89. “Fitness speaks only to a person’s ability to function within the
       context of a trial. It does not refer to sanity or competence in other areas. A defendant can be
       fit for trial although his or her mind may be otherwise unsound.” People v. Easley, 192 Ill. 2d
       307, 320 (2000). Evidence at a fitness hearing may include a report from forensic clinical
       services, or from private psychiatrists or psychologists retained by either side, but the court
       must make the ultimate decision as to the defendant’s fitness, not the experts. People v.
       Bilyew, 73 Ill. 2d 294, 302 (1978). Courts determine fitness by considering “the defendant’s
       irrational behavior, the defendant’s demeanor at trial, and any prior medical opinion on the
       defendant’s competence” to stand trial. People v. Harris, 206 Ill. 2d 293, 304 (2002).
¶ 53        Garcia contends that “[u]nder no circumstances should a defendant be deemed fit at the
       time he was committed to the pscyh ward at Cermak Hospital.” He maintains that his trial
       attorneys and the judge were not aware of the full scope of his mental health treatment (his
       psychotropic medication and night in full leather restraints), so “they presumed he was fit” at
       the sentencing/plea hearing. Garcia asks that we reverse and “make it clear that it is illegal to
       engage in an important criminal proceeding while the defendant is *** heavily medicated
       and [in] a suicidal ward of a mental hospital.”
¶ 54        But the issue before the trial court did not involve whether Garcia was mentally ill or
       required psychotropic medication; the issue before the trial court was whether Garcia could
       understand the nature of the proceedings against him and cooperate with counsel in his
       defense during the murder trial and at the time he was sentenced and pled guilty to UUWF.
       See Easley, 192 Ill. 2d at 322-23. Following the fitness hearing, the trial court determined
       that during the trial and at the time of Garcia’s sentencing, and when he pled guilty to the
       weapons offense, there were no facts in existence which raised a real, substantial, and
       legitimate doubt as to his mental capacity to understand the nature and purpose of the
       proceedings against him and meaningfully participate. We will uphold the trial court’s ruling
       unless manifestly erroneous. See Morgan, 212 Ill. 2d at 155.
¶ 55        A defendant’s fitness depends on whether the defendant “has sufficient present ability to
       consult with his [or her] lawyer with a reasonable degree of rational understanding–and
       whether he [or she] has a rational as well as factual understanding of the proceedings against

                                                   -9-
       him [or her].” (Internal quotation marks omitted.) Dusky, 362 U.S. at 402. The same test
       applies to fitness hearings conducted retrospectively. See People v. Mitchell, 189 Ill. 2d 312,
       339 (2000).
¶ 56       The record indicates that Garcia’s mental health began deteriorating in late 2000, when
       he was admitted to Cermak Hospital for the first time after threatening suicide. Garcia
       continued to experience mental health episodes, including one the night before his sentencing
       hearing and guilty plea. On September 11, 2001, he was taken to the emergency room and
       placed in restraints overnight. He also received the sedative Ativan intramuscularly.
¶ 57       On September 12, 2001, Garcia attended the sentencing hearing and pled guilty to
       UUWF. He listened as the court admonished him of his rights and answered all of the court’s
       questions appropriately, albeit with one-word responses of “Yes” and “No.” There is nothing
       atypical or suspect about a defendant’s one-word response during a plea hearing. Indeed, the
       purpose of the hearing is to confirm or disprove defendant’s understanding of the rights he or
       she is giving up by pleading guilty. Thus, we attach no particular significance to the fact that
       the court’s questions did not call for narrative answers. Garcia declined the opportunity to
       speak before sentencing on his guilty plea, but did make a statement in allocution during the
       sentencing hearing for his first degree murder conviction. Garcia stated he was sorry, “I was
       not meaning to kill nobody, you know. And I want you to have mercy in dealing with me in
       court.”
¶ 58       Dr. Argumedo testified Garcia was fit to stand trial. She found his depression, suicidal
       thoughts, and anxiety to be situational and only triggered when he believed his trial was
       going poorly. Dr. Corcoran offered conflicting testimony, finding Garcia unfit based
       primarily on his mental condition worsening over time, along with an increase in the number
       of psychotropic medications he was prescribed, resulting in disorganized thinking. The court
       credited Argumedo’s testimony over Corcoran’s. As a reviewing court, it is not for us to
       disregard the credibility determinations of the trial court. See People v. Houseworth, 388 Ill.
       App. 3d 37, 52 (2008) (where there is conflicting expert testimony, trial court, as trier of fact,
       determines which expert to consider more credible).
¶ 59       Garcia’s defense attorneys both testified he cooperated with them throughout the trial,
       participated in formulating their defense strategy, and that they had no bona fide doubt
       concerning his fitness at any time during their representation. Garcia argues his trial counsel
       “seriously underestimated the gravity of the situation” when he responded to the court’s
       question incorrectly by stating that Garcia was not under the influence of psychotropic
       medications when he was. At the time of the retrospective fitness hearing, the trial court was
       aware the medication Garcia was taking was psychotropic and, as our supreme court has
       observed, the use of psychotropic medication is not equivalent to a bona fide doubt of a
       defendant’s fitness. See People v. Mitchell, 189 Ill. 2d 312, 338-89 (2000). Further, any
       weight the trial court gave defense counsels’ testimony regarding Garcia’s fitness was not
       manifestly erroneous. See People v. Eddmonds, 143 Ill. 2d 501, 518 (1991) (“The
       representations of defendant’s counsel concerning the competence of his client, while not
       conclusive, are another important factor to consider.” (citing Drope v. Missouri, 420 U.S.
       162, 177 n.13 (1975))).
¶ 60       The trial court observed Garcia’s demeanor throughout the proceedings and held no
       concerns about his ability to understand the proceedings or participate with his attorneys in
       his own defense. The trial court credited the State’s witnesses over that of the defense on the

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       issue of Garcia’s fitness and concluded that Garcia had been fit to stand trial and plead guilty.
       The trial court’s conclusion–that there is nothing in the record to indicate Garcia was
       confused, lacked understanding, or could not assist in his own defense as a result of the
       medication he was taking during his murder trial or sentencing/guilty plea on September 12,
       2001–is not manifestly erroneous. Accordingly, the trial court properly denied Garcia
       postconviction relief following the third-stage evidentiary hearing.

¶ 61                              Ineffective Assistance of Counsel Claim
¶ 62        Garcia argues his counsel’s stipulation to the State’s insufficient factual basis for the
       weapons charge, UUWF, and his counsel’s consequent advice to plead guilty to that
       unproven offense deprived him of his constitutional right to effective assistance of counsel.
¶ 63        Garcia argues he made a substantial showing that trial counsel was ineffective for failing
       to object to the sufficiency of the factual basis for his guilty plea. He contends the factual
       basis did not establish he “possessed a firearm ‘on or about his person,’ ” an essential
       element of the UUWF charges. Garcia argues it is significant that he was charged with two
       counts of UUWF and two counts of simple UUW and that both counts of UUWF and one
       count of UUW alleged he carried the firearm “on or about his person” and the other count of
       UUW alleged the firearm was “in a vehicle.” Garcia further contends the factual basis only
       supported a conviction for UUW, not UUWF, to which he pled guilty. Garcia argues his
       counsel should have objected to the factual basis as inadequate to prove the enhanced offense
       and should have prevented him from pleading guilty. Because of counsel’s “deficient
       representation,” Garcia contends his conviction and sentence involved a more serious offense
       than the State could prove. Garcia argues he sufficiently alleged this claim in his
       postconviction petition and the trial court erred when it dismissed the claim at the second
       stage, advancing only his fitness contentions to third-stage proceedings.
¶ 64        The trial court dismissed Garcia’s postconviction petition at the second stage, finding he
       failed to make a “substantial showing of a constitutional violation.” People v. Edwards, 197
       Ill. 2d 239, 246 (2001). During second-stage review, unless the record affirmatively refutes
       the petitioner’s allegations, they are taken as true, and the question becomes whether the
       allegations establish a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 380
       (1998). Meaning, if proven at a third-stage evidentiary hearing, the petitioner would be
       entitled to relief. Id. We review a second-stage dismissal de novo. Id. at 389.
¶ 65        Before proceeding to the merits, however, we must address our jurisdiction. As an
       appellate court, we have a duty to consider jurisdiction and dismiss an appeal if jurisdiction is
       wanting. See generally In re M.W., 232 Ill. 2d 408, 414-15 (2009).
¶ 66        The State contends we lack jurisdiction to consider the merits of Garcia’s ineffective
       assistance of counsel claim. The State maintains Garcia failed to raise this claim in his notice
       of appeal by only referencing the trial court’s denial of his postconviction claim following
       the third-stage evidentiary hearing on March 28, 2013. The State contends Garcia
       affirmatively chose to only appeal the third-stage fitness issue, not the entire judgment as he
       alleges. The State argues there is no procedural relation between the third-stage fitness issue
       and the second-stage ineffective assistance claim and, therefore, even liberal construction of
       Garcia’s notice of appeal cannot vest this court with jurisdiction to hear his claim. We
       disagree.


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¶ 67       Garcia’s notice of appeal specified the appeal was being taken from the trial court’s order
       of March 28, 2013, “Post-Conviction Petition denied after Stage III hearing.” As the State
       acknowledges, Garcia could not appeal the July 27, 2010, ruling dismissing his ineffective
       assistance claim at the second stage until after there was a final and appealable judgment, and
       that meant waiting for the outcome of the third-stage hearing on March 28, 2013. The rules
       for postconviction proceedings do not provide for interlocutory appeals, so Garcia had to
       wait until the “final judgment” disposing of the entire petition. See Ill. S. Ct. R. 651 (eff. Feb.
       6, 2013) (addressing appeals “from a final judgment of the circuit court in any
       post-conviction proceeding” and stating they abide by “the rules governing criminal appeals,
       as near as may be”).
¶ 68       Our supreme court has explained that an appeal from a final judgment includes every
       previous ruling that represents a “step in the procedural progression leading to the judgment
       specified” and every “preliminary determination necessary to the ultimate relief.” (Internal
       quotation marks omitted.) Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435-36
       (1979). See also In re Isaiah D., 2015 IL App (1st) 143507, ¶¶ 21-22 (listing only date of
       final judgment sufficient as “[t]here is nothing in the applicable rules of our supreme court
       suggesting that the notice of appeal must contain further specificity”).
¶ 69       The July 27, 2010, order partially dismissing Garcia’s petition and advancing it for a
       third-stage hearing only on the fitness issue was both a step in the procedural progression of
       his case and a preliminary determination necessary to reach the final judgment. The July
       ruling cannot be separated from the later ruling on Garcia’s fitness claim and, therefore, the
       notice of appeal must be interpreted to include both rulings. Nevertheless, when a
       postconviction petition raises several claims having distinct factual bases and that were not
       resolved in one hearing, the better practice would be to specify all of the orders resolving the
       distinct claims in the notice of appeal. Garcia’s notice of appeal correctly identified the date
       and nature of the final judgment, “Post-Conviction Petition denied after Stage III Hearing”;
       “March 28, 2013” and, therefore, we can and must address the merits of Garcia’s ineffective
       assistance argument.
¶ 70       Garcia was charged with two counts of UUWF and two counts of UUW. Both UUWF
       and one of the UUW counts alleged he carried a firearm “on or about his person.” The other
       UUW count alleged the firearm was “in a vehicle.” Garcia agreed to plead guilty to a single
       count of UUWF in exchange for a two-year sentence.
¶ 71       Defense counsel stipulated to the State’s factual basis in support of the guilty plea. The
       factual basis included that Garcia told police that his parked car contained a gun. The officers
       searched the car and recovered a .25-caliber pistol. The court found Garcia guilty of UUWF.
¶ 72       The factual basis as presented supports the charge that Garcia possessed a firearm after
       being previously convicted of a felony, the only two essential elements of the offense of
       UUWF. 720 ILCS 5/24-1.1(a) (West 1998). “Knowing possession” can be either actual or
       constructive. People v. Brown, 327 Ill. App. 3d 816, 824 (2002). Because Garcia was not
       found in actual possession of the firearm, the State had to prove that he constructively
       possessed it. See People v. McCarter, 339 Ill. App. 3d 876, 879 (2003). The State established
       Garcia constructively possessed the firearm by showing he had “knowledge of the presence
       of the weapon” (he informed the police of its existence and location) and that he “exercised
       immediate and exclusive control over the area where the weapon was found” (it was found in


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       his car on the floor of the passenger side). Id.; see generally People v. Davis, 408 Ill. App. 3d
       747 (2011) (defendant convicted of UUWF after backpack of guns found in his car).
¶ 73       Based on this factual record, Garcia was proven guilty of UUWF. The parties properly
       stipulated to the only two essential elements of a charge of UUWF: knowing possession of
       the .25-caliber gun and a prior felony under case No. 97 CF 4450010. Accordingly, Garcia
       failed to make a substantial showing his trial counsel should have objected to the factual
       basis as inadequate and prevented Garcia from pleading guilty. Garcia failed to make a
       substantial showing of both prongs of a meritorious ineffective assistance claim. See
       Strickland v. Washington, 466 U.S. 668 (1984) (criminal defendant’s constitutional right to
       effective assistance infringed if counsel’s performance unreasonable and prejudiced
       defendant).
¶ 74       The trial court properly dismissed the claim at the second stage.

¶ 75      Affirmed.




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