                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Johnson, 2012 IL App (5th) 070573




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



District & No.              Fifth District
                            Docket No. 5-07-0573


Filed                       February 3, 2012


Held                        Where defendant was found not guilty of burglary and retail theft by
(Note: This syllabus        reason of insanity, the order committing him to inpatient treatment at a
constitutes no part of      secure facility was affirmed, notwithstanding his contention that his
the opinion of the court    stipulation that a psychiatrist would testify in accordance with his report
but has been prepared       constituted a functional waiver of the entire hearing on whether such
by the Reporter of          treatment was necessary that was not allowed under the Mental Health
Decisions for the           Code, since defendant did not waive all of the rights associated with the
convenience of the          hearing, he waived only the right to have the psychiatrist’s testimony as
reader.)
                            to the facts in his report presented in open court, he did not agree to be
                            voluntarily admitted, he could not logically be admitted on a voluntary
                            basis unless the court first found that he did not need continued care in an
                            inpatient setting, and the stipulation was sufficiently specific to support
                            a finding that he required treatment on an inpatient basis by clear and
                            convincing evidence.


Decision Under              Appeal from the Circuit Court of St. Clair County, No. 05-CF-1915; the
Review                      Hon. Annette A. Eckert, Judge, presiding.


Judgment                    Affirmed.
Counsel on                 Veronique Baker and Barbara A. Goeben, both of Guardianship and
Appeal                     Advocacy Commission, of Alton, for appellant.

                           Brendan Kelly, State’s Attorney, of Belleville (Patrick Delfino, Stephen
                           E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
                           Justices Welch and Wexstten concurred in the judgment and opinion.



                                              OPINION

¶1           The defendant, James Johnson, was charged with burglary and retail theft, and he was
        found not guilty by reason of insanity. He appeals an order committing him to inpatient
        treatment at a secure facility. He argues that his stipulation that a psychiatrist would testify
        in accordance with his report constituted a functional waiver of the entire hearing, something
        that is not permissible under the Mental Health and Developmental Disabilities Code
        (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2006)). We affirm.
¶2           The defendant was charged with burglary and retail theft after stealing rings and pendants
        valued at approximately $300 from a mall jewelry kiosk. He was initially found unfit to stand
        trial; however, a little over a year later, he was found fit to stand trial. Based on stipulated
        facts, the court found the defendant not guilty by reason of insanity and set the matter for a
        hearing to determine whether he was still in need of psychiatric care. See 730 ILCS 5/5-2-
        4(a) (West 2006).
¶3           Prior to the hearing, Dr. Jagannath Patil filed a report with the court. Dr. Patil is a
        psychiatrist who examined the defendant. In his report, Dr. Patil diagnosed the defendant as
        suffering from schizoaffective disorder, bipolar type. He noted that the defendant’s
        symptoms included both grandiose and paranoid delusions as well as auditory hallucinations.
        He went on to state that the defendant had acted on these delusions and continued to do so.
        This has included acts of violence. As a result, the defendant had been continually
        institutionalized for nearly all of the previous 12 years and was required to register as a sex
        offender. The report noted that the defendant had no awareness of his mental illness, but was
        compliant with medications and received some benefits from the medications and from
        treatment in the inpatient setting. Dr. Patil noted that the defendant believed that his
        medications helped him to stay calm and sleep better, but did not believe they provided any
        other benefits. Dr. Patil recommended continued inpatient treatment for the defendant.
¶4           At the hearing, the parties focused their arguments on the proper Thiem date for the
        defendant. See People v. Thiem, 82 Ill. App. 3d 956, 962, 403 N.E.2d 647, 652 (1980)
        (explaining that the court must specify the maximum period of commitment, which cannot

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     exceed the maximum sentence the defendant could have received had he been convicted on
     the most serious charge against him). After ruling on the Thiem date, the court asked the
     attorneys for both parties, “Would you stipulate to the report, please, of Dr. Patil dated
     February 28, 2007?” The court noted that if the parties stipulated to the report, “it would be
     appropriate for the court then at this time to make an order with regards to commitment and
     also in-patient status or out-patient status.” (Emphasis added.) Both attorneys indicated that
     they had previously stipulated to the report and did not object to the court entering it into
     evidence. The court then admitted the report into evidence.
¶5       Neither party offered any argument related to whether the defendant was in need of
     treatment on an inpatient basis. However, counsel for the defendant informed the court that
     the defendant’s main concern was that he continue to receive certain privileges, including
     being allowed an “unsupervised building pass.” The court stated that such privileges were
     up to the discretion of the defendant’s treatment team and that the only decision for the court
     to make was “whether *** there is to be in-patient or out-patient [treatment] and whether
     involuntary commitment should be a part of [the] order.” The court then noted that it had
     previously read Dr. Patil’s report and found the defendant to be in need of treatment on an
     inpatient basis. The court entered an order to that effect. The State filed a motion to
     reconsider the court’s ruling on the Thiem date, which the court granted. This appeal
     followed.
¶6       On appeal, the defendant argues that (1) because he stipulated to all of the evidence
     needed to support the determination that he was subject to commitment, the stipulation was
     tantamount to a waiver of the hearing, (2) the Mental Health Code does not contemplate a
     waiver of hearings in their entirety (see In re Michael H., 392 Ill. App. 3d 965, 979, 912
     N.E.2d 703, 714 (2009)), and (3) even assuming waiver is permissible, the record must
     demonstrate that the waiver was knowing and voluntary. He further contends that counsel’s
     decision to stipulate to all of the evidence necessary to commit him constituted ineffective
     assistance of counsel.
¶7       Before addressing these arguments, a brief overview of the procedures to be followed
     after a finding of not guilty by reason of insanity would be useful. Once a verdict of not
     guilty by reason of insanity is entered, the court must hold a hearing within 30 days to
     determine whether the defendant is currently in need of treatment and, if so, whether he
     needs treatment on an inpatient or outpatient basis. 730 ILCS 5/5-2-4(a) (West 2006). The
     hearing is governed by the procedures outlined in the Mental Health Code. 730 ILCS 5/5-2-
     4(a) (West 2006). Thus, the defendant cannot be found subject to involuntary commitment
     without the testimony of at least one psychiatrist, clinical psychologist, or clinical social
     worker who has actually examined him. 405 ILCS 5/3-807 (West 2006). The court must find
     that the defendant “is reasonably expected to inflict serious physical harm upon himself or
     another” and that he either needs care on an inpatient basis or would benefit from such care.
     730 ILCS 5/5-2-4(a)(1)(B) (West 2006). This finding must be supported by clear and
     convincing evidence. 730 ILCS 5/5-2-4(g) (West 2006); see also 405 ILCS 5/3-808 (West
     2006).
¶8       There are two key differences, however. An initial order admitting a patient to a facility
     in civil involuntary commitment proceedings expires after 90 days, with subsequent orders

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       lasting for 180 days. In re Michael H., 392 Ill. App. 3d at 971, 912 N.E.2d at 708 (citing 405
       ILCS 5/3-813 (West 2006)). Orders for continuing civil commitment must comply with all
       of the procedural requirements applicable to initial orders, including proof by clear and
       convincing evidence that the respondent meets the criteria for involuntary admission. In re
       Michael H., 392 Ill. App. 3d at 971, 912 N.E.2d at 708 (citing 405 ILCS 5/3-813 (West
       2006)).
¶9         By contrast, an initial order involuntarily committing a patient after a finding of not guilty
       by reason of insanity is for an “indefinite period” of time up to the length of the maximum
       sentence that could be imposed for the most serious offense charged. 730 ILCS 5/5-2-4(b)
       (West 2006). The defendant can be released prior to the expiration of the initial order one of
       two ways. The director of the facility can notify the court that the director has determined
       that the defendant no longer needs to be treated in an inpatient setting. 730 ILCS 5/5-2-4(d)
       (West 2006). The defendant can file his own petition to be discharged or moved to a less
       secure facility. 730 ILCS 5/5-2-4(e) (West 2006). In either case, the court must hold a
       hearing and its findings must be supported by clear and convincing evidence. 730 ILCS 5/5-
       2-4(g) (West 2006).
¶ 10       In addition, a civilly committed patient must be treated in the least restrictive setting
       appropriate (405 ILCS 5/3-811 (West 2006)), while a patient admitted after a finding of not
       guilty by reason of insanity is to be admitted to a secure facility unless there are compelling
       reasons why this is not necessary (730 ILCS 5/5-2-4(a) (West 2006)).
¶ 11       The primary issue in this case is whether the hearing conducted in this matter complied
       with section 3-807 of the Mental Health Code (405 ILCS 5/3-807 (West 2006)). As
       previously mentioned, that section provides that a respondent cannot be found subject to
       involuntary commitment without the testimony of at least one psychiatrist, clinical
       psychologist, or clinical social worker who actually examined him. The statute expressly
       provides, however, that this requirement may be waived with the approval of the court. 405
       ILCS 5/3-807 (West 2006). Here, by stipulating that Dr. Patil would testify in accordance
       with his report and agreeing to have the report admitted into evidence in lieu of Dr. Patil’s
       live testimony, the defendant waived the requirement of live testimony. As previously
       discussed, the defendant agreed to this stipulation through his attorney. The defendant, who
       was present at the hearing, remained silent when his attorney agreed to the stipulation and
       presented the defendant’s concerns about privileges to the court. On appeal, he contends that
       under the circumstances of this case, this was not sufficient.
¶ 12       We note that there are very few cases that deal with the question of what constitutes a
       sufficient waiver of the requirement of testimony. Those cases that have considered the
       question have all addressed waiver of the requirement that the witness who testifies actually
       examine the respondent. See, e.g., In re Michelle J., 209 Ill. 2d 428, 434, 808 N.E.2d 987,
       990 (2004); In re Barbara H., 183 Ill. 2d 482, 497, 702 N.E.2d 555, 562 (1998); In re James,
       67 Ill. App. 3d 49, 51, 384 N.E.2d 573, 575 (1978). We are aware of no cases addressing
       waiver of the requirement that there be live testimony, and both parties acknowledge the lack
       of case law directly on point.
¶ 13       The defendant points to a line of criminal cases which holds that if a defendant stipulates


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       to all of the evidence necessary to convict him, his stipulation is the functional equivalent of
       a guilty plea. See People v. Clendenin, 238 Ill. 2d 302, 319-20, 939 N.E.2d 310, 320 (2010)
       (citing People v. Campbell, 208 Ill. 2d 203, 218, 802 N.E.2d 1205, 1213 (2003)). He argues
       that the stipulation here was to all the evidence the State needed to find him subject to
       involuntary commitment. He argues, by analogy, that the stipulation in this case was the
       functional equivalent of a waiver of the entire commitment hearing. This court has previously
       held that the Mental Health Code does not contemplate the waiver of the entire hearing. In
       re Michael H., 392 Ill. App. 3d at 979, 912 N.E.2d at 714. The defendant contends that,
       under In re Michael H., he cannot effectively waive the entire hearing at all. Alternatively,
       he argues that, similar to a criminal defendant, he may only stipulate to all of the evidence
       necessary to find him subject to involuntary commitment if he makes a personal waiver that
       is knowing and voluntary. For the reasons that follow, we do not agree.
¶ 14        As a starting point, the defendant acknowledges, as he must, that, even in the criminal
       setting, the decision to stipulate to evidence is generally a tactical decision that can be made
       by a defendant’s attorney without any indication in the record that the defendant personally
       chose to waive his constitutional right to confront particular witnesses and without any
       indication that this waiver was knowing and voluntary. Clendenin, 238 Ill. 2d at 319-21, 939
       N.E.2d at 320-21. Our supreme court has explicitly stated that cases such as Clendenin and
       Campbell, relied upon by the defendant, carve out a narrow exception to this general rule.
       See Clendenin, 238 Ill. 2d at 319, 939 N.E.2d at 320. It is also worth noting that this court
       has indicated in dicta that a respondent may validly stipulate to evidence in a mental health
       proceeding. See In re Mark W., 348 Ill. App. 3d 1065, 1076, 811 N.E.2d 767, 775 (2004).
       The rationale underlying the supreme court’s rulings in Clendenin and Campbell is not
       applicable here, nor is the rationale underlying our decision in In re Michael H. We thus find
       no compelling reason to depart from these general principles.
¶ 15        In Clendenin, the supreme court explained that there are five decisions that a criminal
       defendant has a right to make personally: (1) whether to plead guilty, (2) whether to waive
       the right to a trial by jury, (3) whether to testify, (4) whether to appeal, and (5) whether to
       request jury instructions on lesser-included defenses. Clendenin, 238 Ill. 2d at 318-19, 939
       N.E.2d at 320. All other decisions–including, most notably, the decision of “ ‘ “whether and
       how to conduct cross-examination” ’ ”–are matters of trial strategy on which the “ultimate
       decision” is left to defense counsel’s judgment. Clendenin, 238 Ill. 2d at 319, 939 N.E.2d at
       320 (quoting Campbell, 208 Ill. 2d at 210, 802 N.E.2d at 1209, quoting People v. Ramey, 152
       Ill. 2d 41, 54, 604 N.E.2d 275, 281 (1992)). This is so despite the fact that a defendant in a
       criminal trial has a constitutional right to confront and cross-examine witnesses against him.
       See People v. Miller, 311 Ill. App. 3d 772, 785, 725 N.E.2d 48, 58 (2000) (citing Chapman
       v. California, 386 U.S. 18 (1967)). The sole reason our supreme court carved out an
       exception for cases where all evidence was the subject of a stipulation was its concern with
       the defendant’s right to personally make the decision to plead guilty. Campbell, 208 Ill. 2d
       at 218-19, 802 N.E.2d at 1213-14. This concern is not implicated in mental health
       proceedings where there is no plea to be entered.
¶ 16        This does not mean that the stipulation raises no due process concerns. Although there
       is no constitutional right to confront and cross-examine witnesses in a mental health case,

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       there is a statutory right to do so. See 730 ILCS 5/5-2-4(g) (West 2006); 405 ILCS 5/3-807
       (West 2006). In addition, there are general due process considerations. Our courts have long
       recognized that involuntary mental health care involves a “ ‘massive curtailment of liberty.’ ”
       In re Barbara H., 183 Ill. 2d at 496, 702 N.E.2d at 561 (quoting Vitek v. Jones, 445 U.S. 480,
       491 (1980)). As such, patients in mental health proceedings have a fundamental liberty
       interest in not being subjected to treatment against their will absent compelling reasons. In
       re Evelyn S., 337 Ill. App. 3d 1096, 1102-03, 788 N.E.2d 310, 316 (2003).
¶ 17       Due process, however, is a “flexible concept,” and the precise procedures necessary to
       afford due process depend on both the nature of the proceedings and the private interest
       affected. People v. Lindsey, 199 Ill. 2d 460, 472, 771 N.E.2d 399, 409 (2002). The United
       States Supreme Court has held (in the context of determining the appropriate burden of proof
       in a mental health case) that civil commitment proceedings required a less rigorous standard
       than criminal proceedings. The Court reasoned that this is so, in part, because in mental
       health proceedings, “state power is not exercised in a punitive sense.” Addington v. Texas,
       441 U.S. 418, 428 (1979). In light of this, we believe that compliance with the procedures
       outlined in the Mental Health Code and the statute governing proceedings after a finding of
       not guilty by reason of insanity is sufficient to protect the defendant’s due process rights. See
       In re Michael H., 392 Ill. App. 3d at 972, 912 N.E.2d at 709 (explaining that the provisions
       of the Mental Health Code are designed to protect a patient’s right to due process).
¶ 18       The defendant argues that under this court’s decision in In re Michael H., the procedures
       followed in this case did not comply with the requirements of the Mental Health Code. We
       find this case distinguishable from In re Michael H. and do not agree.
¶ 19       There, the respondent’s attorney informed the court that his client “ ‘indicated he would
       give up his right to the hearing scheduled for [that] morning.’ ” In re Michael H., 392 Ill.
       App. 3d at 968, 912 N.E.2d at 705-06. The court asked only two questions of the respondent
       before entering an order involuntarily admitting him to a facility. The court first asked if the
       respondent understood what his attorney had told the court, to which he replied, “ ‘Yeah. He
       said I would be here for another six months.’ ” In re Michael H., 392 Ill. App. 3d at 968, 912
       N.E.2d at 706. The court then asked if the respondent objected to the entry of an order
       finding him subject to involuntary admission, and the respondent indicated that he had no
       objection. The court found that he had knowingly and voluntarily waived his right to a
       hearing. In re Michael H., 392 Ill. App. 3d at 968, 912 N.E.2d at 706. This brief discussion
       made up the entire hearing. In re Michael H., 392 Ill. App. 3d at 968, 912 N.E.2d at 705.
       Unlike what occurred in the instant case, the court did not admit into evidence any reports
       prepared by members of the respondent’s treatment team, nor did the court consider any
       factual issues at all.
¶ 20       In finding that this violated the provisions of the Mental Health Code, this court had two
       primary concerns. One was the lack of any indication that the respondent’s waiver was, in
       fact, knowing and voluntary. We noted that the respondent was never asked if he understood
       what he was giving up by agreeing to “waive his right to all the applicable procedural
       safeguards” involved in having a hearing. (Emphasis in original.) In re Michael H., 392 Ill.
       App. 3d at 975, 912 N.E.2d at 711. He was never asked if he understood that the State had
       to meet a very high standard of proof if he did not agree to waive the hearing, and he was

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       never asked if he understood that he had the option to ask to be voluntarily admitted and have
       the petition for involuntary admission dismissed. In re Michael H., 392 Ill. App. 3d at 975,
       912 N.E.2d at 711.
¶ 21       Here, the defendant’s main contention is likewise that the record does not establish that
       his waiver was knowing and voluntary. However, there is one key distinction. Here, the
       defendant has not waived all of the rights associated with a hearing. Significantly, he has not
       waived the right to require clear and convincing evidence that he continues to be in need of
       treatment at a secure inpatient facility. Dr. Patil’s report was entered into evidence and
       considered by the court in reaching that finding. As we will discuss in more detail later in
       this opinion, Dr. Patil’s report provides a sufficient factual basis to support the court’s
       finding by clear and convincing evidence.
¶ 22       Here, the defendant has waived only the right to have Dr. Patil’s testimony to the facts
       in his report presented in open court, something expressly permitted by statute. See 405 ILCS
       5/3-807 (West 2006). This is not a distinction without a difference. In In re Michael H., the
       respondent noted that while the Mental Health Code provides that each of the individual
       procedural safeguards associated with mental health hearings can be waived, it makes no
       provision for the complete waiver of a hearing in its entirety. In re Michael H., 392 Ill. App.
       3d at 972, 912 N.E.2d at 709. Although we did not discuss this argument in great detail, we
       did emphasize the fact that the respondent there was giving up all of the rights associated
       with a hearing (In re Michael H., 392 Ill. App. 3d at 975, 912 N.E.2d at 711), including the
       right to require the State to provide clear and convincing evidence (In re Michael H., 392 Ill.
       App. 3d at 976, 912 N.E.2d at 712).
¶ 23       Our second concern in In re Michael H. was the fact that the court’s decision to allow the
       respondent to waive his entire hearing was inconsistent with the provisions in the Mental
       Health Code governing voluntary admissions. In re Michael H., 392 Ill. App. 3d at 978, 912
       N.E.2d at 714. We explained that a patient who is voluntarily admitted to a facility has the
       right to seek an immediate discharge at any time. In re Michael H., 392 Ill. App. 3d at 973,
       912 N.E.2d at 710 (citing 405 ILCS 5/3-403 (West 2006)). We further explained that if a
       respondent asks to be admitted to a facility as a voluntary patient while a petition for
       involuntary admission is pending, the court may either dismiss the pending petition
       immediately and treat the respondent as a voluntarily admitted patient or require proof that
       dismissal is in the best interests of the public and the respondent. In re Michael H., 392 Ill.
       App. 3d at 973, 912 N.E.2d at 710 (citing 405 ILCS 5/3-801 (West 2006)). If the court
       decides not to dismiss the petition, we explained, the petition “remains pending and is
       subject to all the procedural safeguards ordinarily applicable.” In re Michael H., 392 Ill. App.
       3d at 978-79, 912 N.E.2d at 714. We concluded that “[t]hese procedures make it clear that
       a respondent’s agreement to receive inpatient treatment cannot be used as an end-run around
       the requirements imposed where a respondent is alleged to be subject to involuntary
       admission.” In re Michael H., 392 Ill. App. 3d at 979, 912 N.E.2d at 714.
¶ 24       These concerns are not implicated in the instant case. The defendant did not waive his
       entire hearing and did not specifically agree to be voluntarily admitted. We also note that
       because this case involves proceedings after a finding of not guilty by reason of insanity, the
       defendant cannot logically be admitted on a voluntary basis unless the court first finds that

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       he is not in need of continued care in an inpatient setting. Nothing in In re Michael H.
       requires us to equate the defendant’s stipulation to Dr. Patil’s report with a waiver of the
       entire hearing.
¶ 25        The defendant raises two additional issues. First, he contends that the stipulation here,
       like the stipulation at issue in In re Mark W., is not sufficiently specific to support a finding
       that he requires treatment on an inpatient basis by clear and convincing evidence. We
       disagree.
¶ 26        As previously discussed, the report of Dr. Patil was admitted into evidence. Dr. Patil
       examined the defendant and prepared the report just weeks before the hearing. That report
       provided detailed descriptions of the defendant’s symptoms and the way in which those
       symptoms impacted his behavior. Significantly, the report states that the defendant suffers
       from auditory hallucinations and grandiose and paranoid delusions, that he acts on his
       delusions, that he has engaged in acts of aggression due to his delusions, and that he would
       benefit from continued treatment in an inpatient setting.
¶ 27        In the In re Mark W. case, by contrast, the respondent stipulated that the State would
       present testimony that he met the statutory criteria for the involuntary administration of
       psychotropic medication. He did not, however, stipulate that the State’s witness would testify
       to any specific underlying facts to support this conclusion. In re Mark W., 348 Ill. App. 3d
       at 1075, 811 N.E.2d at 775. Significantly, the stipulation in that case did not include the
       treating psychiatrist’s report. In re Mark W., 348 Ill. App. 3d at 1076, 811 N.E.2d at 775.
       This court has found even live testimony similar to the stipulation in In re Mark W.
       insufficient to support a finding by clear and convincing evidence that a respondent is subject
       to involuntary admission. See In re Joseph M., 405 Ill. App. 3d 1167, 1176, 939 N.E.2d 959,
       967 (2010); In re Phillip E., 385 Ill. App. 3d 278, 284-85, 895 N.E.2d 33, 41 (2008). The
       stipulation here does not suffer from the same infirmity. We thus find that it was sufficiently
       specific to support the court’s order.
¶ 28        The defendant finally contends that he did not receive effective assistance of counsel due
       to counsel’s decision to stipulate to the report. Again, we disagree. To prevail on this claim,
       the defendant must demonstrate both that counsel’s performance was deficient and that it
       caused “substantial prejudice” to the defendant such that “the result would probably have
       been different.” People v. Williams, 140 Ill. App. 3d 216, 228, 488 N.E.2d 649, 657 (1986).
       We find that the defendant fails to meet the second part of this test.
¶ 29        Here, the report of Dr. Patil was entered into evidence and considered by the court. As
       we have just concluded, the report provided sufficient factual detail to find the defendant in
       need of inpatient care. It is true that had Dr. Patil been called to testify at the hearing, his
       testimony would have been subject to cross-examination. While it is theoretically possible
       that the court could have found Dr. Patil not to be a credible witness under such
       circumstances, that possibility is speculative.
¶ 30        We also reiterate that the defendant was present at the hearing and did not object to the
       stipulation or entry into evidence of the report. In addition, counsel informed the court that
       the defendant’s primary concern was with retaining certain privileges he enjoyed at the
       facility. Thus, although the record does not affirmatively establish that the defendant


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       understood that counsel was waiving his right to confront and cross-examine Dr. Patil
       (something we have already found was not required), it appears that counsel consulted with
       the defendant and presented to the court those matters that the defendant indicated were of
       greatest concern to him. In any case, we do not believe the defendant has met his burden of
       showing that the result probably would have been different had counsel not agreed to the
       stipulation. We thus reject his claim of ineffective assistance.
¶ 31       For the foregoing reasons, we affirm the court’s order.

¶ 32      Affirmed.




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