                                         2018 IL App (3d) 160105

                                Opinion filed March 9, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     THE PEOPLE OF THE STATE                          )       Appeal from the Circuit Court
     OF ILLINOIS,                                     )       of the 10th Judicial Circuit,
                                                      )       Peoria County, Illinois.
            Plaintiff-Appellee,                       )
                                                      )       Appeal No. 3-16-0105
            v. 	                                      )       Circuit No. 10-CF-460

                                                      )

     EDJUAN PAYNE,                                    )       Honorable

                                                      )       Stephen Kouri,
            Defendant-Appellant.                      )       Judge, Presiding.

     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion. 

           Presiding Justice Carter and Justice Wright concurred in the judgment and opinion. 

     _____________________________________________________________________________

                                                OPINION


¶1          The defendant, Edjuan Payne, appeals from a retrospective fitness finding that he was

     restored to fitness, entered pursuant to this court’s remand in People v. Payne, 2015 IL App (3d)

     120147-U.

¶2                                                FACTS

¶3          The facts are more fully set forth in this court’s prior order, Payne, 2015 IL App (3d)

     120147-U. The victim in this case, O.D., was found dead in an alley on May 13, 2010. Her infant
     granddaughter was found with her, injured but alive. The defendant was charged with two counts

     of murder for the death of O.D. and attempted murder and aggravated battery of a child for the

     injuries to the granddaughter. Prior to trial, the defendant was examined by Dr. Ryan Finkenbine

     regarding the defendant’s fitness and sanity. On August 27, 2010, the parties stipulated that if Dr.

     Finkenbine was called as a witness, he would testify that he diagnosed the defendant with a

     psychiatric mood disorder and concluded that the defendant was not fit to stand trial at that time.

     The trial court found the defendant unfit to stand trial.

¶4          Dr. Nageswararao Vallabhaneni filed a 90-day fitness evaluation report with the court,

     dated February 17, 2011, indicating that the defendant did not have a serious mental illness and

     performed well on the fitness test. At the fitness restoration hearing on March 11, 2011, defense

     counsel indicated that, based on that report, the defendant had attained fitness for trial. He stated

     that the parties stipulated to the report and that Dr. Vallabhaneni would testify consistent with the

     report. Defense counsel also stated that the defense would stipulate to the finding of fitness. The

     prosecutor agreed with the stipulation and finding. The trial court stated that it would make the

     finding based on the stipulation that the defendant was now fit to stand trial. The defendant went

     to trial and was convicted of all counts.

¶5          On appeal, the defendant challenged the fitness restoration hearing, arguing that the trial

     court failed to make an independent determination of the defendant’s fitness to stand trial. This

     court found that it was ambiguous whether the finding of fitness was based upon the trial court’s

     analysis and evaluation of the expert’s stipulated testimony, which was proper, or whether the

     finding was based on the parties’ stipulation of the ultimate conclusion that the defendant was fit,

     which was not proper. Thus, this court remanded for a retrospective fitness hearing, ordering the

     trial court to consider Dr. Vallabhaneni’s February 17, 2011, report regarding the defendant’s


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     fitness, as well as the transcripts of the hearings between the original finding of unfitness on

     August 27, 2010, and the March 2011 fitness restoration hearing.

¶6          On remand, the trial court and the defense attorney expressed confusion regarding the

     stipulation regarding fitness. The trial court stated that it did not rely upon defense counsel’s

     stipulation as to the defendant’s fitness and had instead made a finding that the defendant was fit

     for trial based upon the content of the reports. At the retrospective fitness hearing, the trial court

     clarified that it did not rely upon the stipulation of fitness, reviewed the February 2011 report,

     considered the stipulation that the doctor would testify consistently with that report, and found

     retroactively that the defendant was fit to stand trial. The trial court noted that there was nothing

     at trial that made him question that finding. The trial court did not indicate that it considered the

     transcripts of the hearings between August 27, 2010, and March 2011, although he was the trial

     court judge for those hearings. The defendant appealed.

¶7                                                ANALYSIS

¶8           The defendant argues that the trial court did not comply with the mandate on remand

     from this court for a retrospective fitness hearing. The defendant points out that the trial court

     made no mention of the transcripts of the hearings referenced by the appellate court. The State

     argues that the trial court properly followed the mandate. It also argues that the defendant waived

     the issue by agreeing to the procedure used by the trial court.

¶9          Where directions from a reviewing court are specific, the court to which the cause is

     remanded has a positive duty to enter an order or decree in accordance with the directions

     contained in the mandate. People ex rel. Daley v. Schreier, 92 Ill. 2d 271, 276 (1982). Whether

     the trial judge complied with this court’s mandate is a question of law subject to de novo review.

     Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 113, 118 (2006).


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¶ 10           Under principles of due process, a defendant may not be prosecuted if he is unfit to stand

       trial. People v. Shum, 207 Ill. 2d 47, 57 (2003). A defendant is presumed to be fit to stand trial or

       to plead, but he will be found unfit if his mental or physical condition prevents him from

       understanding the nature and purpose of the proceedings against him or from assisting in his own

       defense. Id.; 725 ILCS 5/104-11(a) (West 2010). If there is a bona fide doubt concerning the

       defendant’s fitness, the trial court must hold a fitness hearing. Shum, 207 Ill. 2d at 57. At the

       fitness hearing, the State bears the burden of proving that the defendant is fit by a preponderance

       of the evidence. 725 ILCS 5/104-11(c) (West 2010). A defendant who has previously been found

       unfit is presumed to remain unfit until there has been a valid hearing finding him fit. People v.

       Thompson, 158 Ill. App. 3d 860, 865 (1987). The trial court’s role in assessing the defendant’s

       fitness must be an active determination, not reliant solely on an expert’s conclusion that the

       defendant is fit. People v. Gipson, 2015 IL App (1st) 112451, ¶¶ 29-30.

¶ 11           Historically, when a defendant was denied his right to a fitness hearing, courts

       automatically reversed the defendant’s conviction and remanded for a new trial. See, e.g., People

       v. Gevas, 166 Ill. 2d 461, 467-68 (1995); People v. Birdsall, 172 Ill. 2d 464, 479 (1996). 1 For

       example, in Gevas, the Illinois Supreme Court reversed the defendant’s convictions for

       murdering his two infant children, finding that the trial court should have held a fitness hearing.

       Gevas, 166 Ill. 2d at 467-68. The Gevas court found that, two years later, it would be impossible

       to conduct a meaningful retrospective hearing as to defendant’s fitness at the time of trial and

       sentencing. Id. at 471. In reversing and remanding, the Gevas court noted that relatively few

               1
                For the most part, the bona fide doubt as to the defendant’s fitness in these cases arose by virtue
       of an old version of section 104-21 of the Code of Criminal Procedure (725 ILCS 5/104-21(a) (West
       1994)) that was interpreted as providing that, if the defendant was taking psychotropic medication, there
       was a bona fide doubt as to the defendant’s fitness, and a fitness hearing must be held. That statute has
       been amended to remove the presumption of unfitness solely by virtue of the psychotropic drugs. 725
       ILCS 5/104-21(a) (West 2010). However, the cases are still applicable here in terms of the remedy when
       the defendant’s fitness hearing is inadequate.
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       judicial resources had been expended on the case, as defendant pleaded guilty and the sentencing

       hearing was very brief. Id. at 472.

¶ 12          In People v. Burgess, 176 Ill. 2d 289, 303 (1997), however, the supreme court—while

       acknowledging its previous stance on retrospective fitness hearings and noting the difficulty of

       determining the mental functioning of the defendant after the fact—departed from the rule of

       automatic reversal in the context of a prior version of the statute, which stated that a defendant

       who was receiving psychotropic drugs was entitled to a hearing on the issue of fitness (725 ILCS

       5/104-21(a) (West 1994)). The court accepted the trial court’s finding at a special supplemental

       hearing that the defendant was not impaired by those drugs at the time of trial.

¶ 13          Following Burgess was the case of People v. Neal, 179 Ill. 2d 541 (1997), a case also

       concerned with psychotropic drugs and no fitness hearing under section 104-21(a) of the Code of

       Criminal Procedure (725 ILCS 5/104-21(a) (West 1996)). The Neal court determined that the

       procedural context of a retrospective fitness hearing did not matter, i.e., whether it was pursuant

       to a remand order on direct review or in postconviction proceedings, but that the passage of time

       could matter. Neal, 179 Ill. 2d at 553. The Neal court noted that a delay of more than a year

       would be problematic but not necessarily dispositive. Id. The court stated that

              “retrospective fitness determinations will normally be inadequate to protect a defendant’s

              due process rights when more than a year has passed since the original trial and

              sentencing. In exceptional cases, however, circumstances may be such that the issue of

              defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately

              determined long after the fact. In such cases *** a defendant will not automatically be

              entitled to have his original conviction and sentence automatically set aside for a new

              trial.” Id. at 554.


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       The Neal court found that a case-by-case approach was better and found no problem with the

       retrospective fitness hearing conducted 15 years after the defendant’s trial and sentencing. Id.

¶ 14           Rather than automatic reversal, “ ‘retrospective fitness hearings are now the norm.’ ”

       Gipson, 2015 IL App (1st) 112451, ¶ 38 (quoting People v. Mitchell, 189 Ill. 2d 312, 339

       (2000)). This court has already considered the propriety of a new fitness hearing and, despite the

       passage of three years, determined that the defendant’s fitness to stand trial could be “fairly and

       accurately determined” upon remand for a retrospective fitness hearing. Payne, 2015 IL App

       (3d) 120147-U, ¶ 65. However, it is clear that the trial court had difficulty with the appellate

       court’s instructions on remand and seemed to believe that an explanation for the ruling at the

       previous fitness hearing was all that was being required, rather than a hearing. We will review

       the proceedings on remand, however, to determine if the findings on remand comported with due

       process.

¶ 15           Since the defendant was found unfit, the presumption was that he remained unfit until the

       contrary was shown. Gipson, 2015 IL App (1st) 112451, ¶ 36. At the retrospective fitness

       hearing, the question was whether the trial court could rule out the possibility that the defendant

       was still unfit. Id. A retrospective fitness hearing requires the same active role of the court in

       assessing the defendant’s fitness as an original fitness or restoration hearing. The record must

       show that, although the trial court may consider an expert’s stipulated findings regarding a

       defendant’s fitness, the trial court did not rely solely on stipulations, or a stipulation as to

       ultimate fitness, and made an independent evaluation and determination of fitness. Id. ¶¶ 29-30.

¶ 16           At the retrospective fitness hearing, the trial court in this case clarified that it did not rely

       upon the stipulation of fitness, reviewed the February 2011 report, considered the stipulation that

       the doctor would testify consistently with that report, and found retroactively that the defendant


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       was fit to stand trial. It noted that there was nothing at trial that made it question that finding.

       The trial judge on remand was the same judge who presided over all of the proceedings

       subsequent to the original hearing where the defendant was found unfit. Cf. Gipson, 2015 IL App

       (1st) 122451, ¶¶ 15, 35 (fitness restoration hearing was insufficient when expert opinions

       conflicted, the hearing was the judge’s only contact with the defendant, and the judge did not

       question the defendant or defense counsel). While a better approach would have been to conduct

       a full retrospective fitness hearing on the record in accordance with our remand order, the

       proceedings on remand were sufficient so as to afford the defendant due process. The trial

       court’s conclusion that the defendant had been restored to fitness prior to trial, based upon its

       own observations of the defendant, along with the expert’s stipulated findings, was a sufficient

       independent evaluation and determination of fitness. See People v. Stahl, 2014 IL 115804, ¶ 26

       (“Ultimately, fitness must be judged based on the totality of the circumstances.”).

¶ 17                                              CONCLUSION

¶ 18           The judgment of the circuit court of Peoria County is affirmed.

¶ 19           Affirmed.




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