                                                                                       FILED
                                                                                  February 17, 2017
                                                                                     Carla Bender
                                    2017 IL App (4th) 150054                     4th District Appellate
                                                                                       Court, IL
                                          NO. 4-15-0054

                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from
            Plaintiff-Appellee,                             )       Circuit Court of
            v.                                              )       Coles County
 ALEXANDRIA A. WASHINGTON,                                  )       No. 14CM452.
            Defendant-Appellant.                            )
                                                            )       Honorable
                                                            )       James R. Glenn,
                                                            )       Judge Presiding.


       JUSTICE POPE delivered the judgment of the court, with opinion.
       Justices Steigmann and Appleton concurred in the judgment and opinion.

                                            OPINION

¶1      Defendant, Alexandria A. Washington, appeals the trial court’s decision finding her unfit

to stand trial. On appeal, defendant argues the court’s decision should be reversed and the cause

remanded for a new fitness hearing because once the court had a bona fide doubt as to her

fitness, the court was required to appoint counsel to represent her during the fitness hearing, even

over her objection. The State concedes the trial court erred by failing to appoint counsel to

represent defendant at the fitness hearing and agrees the court’s decision should be reversed and

this cause remanded for a new fitness hearing, during which defendant is to be represented by

counsel. We reverse and remand with directions.
¶2                                      I. BACKGROUND

¶3             On August 7, 2014, defendant was charged by information with two Class A

misdemeanor counts of resisting or obstructing a peace officer and a correctional institution

employee. 720 ILCS 5/31-1(a) (West 2014). At her August 2014 arraignment, defendant waived

her right to counsel, electing to proceed pro se, and requested the judge establish jurisdiction.

When the trial court informed defendant the court had personal jurisdiction over her, defendant

responded: “No. That just means like I’ve been kidnapped and held for ransom which is bail, but

I’m trying to establish proper jurisdiction.” Defendant then refused to plead, stating: “I’m not

pleading. I don’t relinquish any jurisdiction to you. I’m not pleading at all.” The trial court then

set a hearing on jurisdiction for September 3, 2014, and released defendant on a personal

recognizance bond.

¶4             Prior to the hearing, defendant filed multiple documents with the trial court,

challenging the court’s jurisdiction and seeking dismissal on that ground. One of the documents

was styled “United States of America, Plaintiff Vs. Azmiyah Bey a.k.a. Alexandria Washington”

and entitled “Take Judicial Notice and Administrative Notice; In Nature Of a Writ Of Nobis,

And A demand For For (sic) Failure to State The Jurisdiction And Venue.” At the hearing, the

trial court denied defendant’s motion, finding it had personal jurisdiction of the defendant and

jurisdiction over the charges. Following this ruling, the trial court set a trial date, but defendant

continued to challenge the court’s jurisdiction. At this point, the State raised the issue of fitness.

The court then asked defendant whether any medical professional had indicated whether she was

fit for trial, which defendant refused to answer. (Apparently, defendant had another case pending

with the trial court, case No. 11-JA-14, and the court appears to be inquiring about potential

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findings in that case. That case had a “Petition for Termination of Parental Rights” pending.) The

court stated it did not have a bona fide doubt as to defendant’s fitness at that time. The court then

asked defendant whether she pleaded guilty or not guilty, to which she responded: “I am not

relinquishing any jurisdiction to this court, so.” The court interpreted this response as a plea of

not guilty and set the cause for trial.

¶5              At a hearing on September 17, 2014, in both the juvenile and misdemeanor cases,

defendant continued to contest the court’s jurisdiction, arguing jurisdiction cannot be established

until each and every person in the State of Illinois appeared against her because the cause of

action named “The People of the State of Illinois” as the plaintiff.

¶6              At a hearing on October 10, 2014, defendant continued to contest the trial court’s

jurisdiction. At this hearing, defendant stated she would not return to court unless the court

established jurisdiction by allowing defendant to face her accusers, which she contended were all

the people in the State of Illinois. She repeatedly interrupted the court and remained fixated on

whether the court had jurisdiction. The court attempted to proceed with the motions in limine

filed by the State, and defendant continued to contest the court’s jurisdiction. Once the court

ruled on the motions, the State again questioned defendant’s fitness. The court determined there

was a bona fide doubt of defendant’s fitness and ordered a fitness evaluation. (We note the trial

judge was eminently patient with defendant at each and every hearing in this matter.)

¶7              Following the finding of bona fide doubt as to defendant’s fitness, but before the

fitness evaluation was finalized, the court held three status hearings in November 2014. At the

first November 2014 hearing, the State suggested counsel should be appointed to represent

defendant before the case moved any further because the bona fide doubt as to defendant’s

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fitness rendered her waiver of counsel invalid. Counsel was not appointed, and defendant

appeared pro se at each hearing.

¶8            At a hearing on December 18, 2014, the trial court received the results from the

fitness evaluation, which indicated defendant was unfit. Defendant appeared pro se. The court set

a fitness hearing, and the State proffered if defendant were to be found unfit, due process would

require the court to appoint a lawyer to represent her in the underlying proceeding. The State

further represented it was unsure whether defendant should have counsel appointed prior to the

fitness hearing. The court opined it would wait until it made a finding with respect to fitness

before deciding whether to appoint counsel. The State agreed this was the correct procedure.

¶9            The fitness hearing occurred on January 9, 2015, and defendant appeared pro se.

Dr. Jerry Boyd, the clinical psychologist who evaluated defendant, testified on behalf of the

State, and his professional opinion was defendant was not fit to stand trial. Defendant did not

cross-examine Dr. Boyd or call a medical professional to rebut Dr. Boyd’s testimony. When

asked by the trial court whether she had any evidence to present, defendant responded, “No.”

The court then asked if she would mind answering a few questions. Defendant agreed to answer

questions and was sworn as a witness. The trial court conducted the direct examination, and the

State did not cross-examine her. The court asked defendant to explain how she created some of

the documents she had filed with the court and to explain the nature of the proceedings. The

court then requested Dr. Boyd be recalled to the stand and asked whether defendant’s testimony

changed his medical opinion. Dr. Boyd stated his medical opinion was unchanged. Defendant

then elected to cross-examine Dr. Boyd. Defendant’s cross-examination focused on her belief

she was no longer suffering from a mental illness because she had been off medication since

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2010, and she questioned how she could be unfit to stand trial if she was no longer medicated.

Dr. Boyd explained how the stress of court proceedings could prompt prior illnesses to manifest

again, even if the symptoms had been dormant.

¶ 10          Following the presentation of evidence, the State argued defendant should be

determined unfit because of her fixation on tertiary matters, such as jurisdiction. This fixation

prevented defendant from assisting with her defense. The State also argued to allow defendant to

proceed pro se would deprive defendant of her due process rights. Defendant did not present an

argument. The trial court concluded defendant was unfit and began considering whom to appoint

as counsel for defendant. Defendant stated she would not accept an attorney. In response, the

State argued counsel must be appointed, even over defendant’s objection, to ensure defendant

received due process of law. The court explained this fact to defendant and appointed the public

defender.

¶ 11          Notice of appeal challenging the finding of unfitness was timely filed on January

23, 2015. An order finding a defendant unfit to stand trial is an appealable order pursuant to

Illinois Supreme Court Rule 604(e) (eff. Dec. 11, 2014).

¶ 12                                    II. ANALYSIS

¶ 13          On appeal, defendant and the State agree the trial court erred by failing to appoint

counsel once the court found a bona fide doubt of defendant’s fitness. Both defendant and the

State request we reverse the court’s order finding defendant unfit and remand for a new fitness

hearing, during which defendant is to be represented by counsel.

¶ 14                                 A. Standard of Review

¶ 15          This case presents the question of whether defendant’s right to counsel was

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violated when the trial court, after recognizing a bona fide doubt existed as to her fitness to stand

trial, did not appoint counsel to represent defendant at subsequent hearings—most importantly,

the fitness hearing. This is a constitutional question of law, i.e., whether this failure to appoint

counsel violated defendant’s sixth amendment right to counsel. See U.S. Const., amend VI.

Accordingly, our review is de novo. See In re Torski C., 395 Ill. App. 3d 1010, 1017, 918 N.E.2d

1218, 1225 (2009) (“The standard of review for constitutional questions, like other questions of

law, is de novo.”).

¶ 16    B. Defendant’s Ability To Waive Right to Counsel After Bona Fide Doubt of Fitness

¶ 17           “The right to self-representation and the assistance of counsel are separate rights

depicted on the opposite sides of the same Sixth Amendment coin. To choose one obviously

means to forego the other.” United States v. Purnett, 910 F.2d 51, 54 (2d Cir. 1990); see also

U.S. Const., amend. VI. Courts have consistently held “a defendant’s waiver of counsel is valid

only when it can be shown from the record that the waiver was made knowingly and

intelligently.” Purnett, 910 F.2d at 54-55. Our supreme court rules require any waiver of counsel

to be made in open court, and the court is required to determine the defendant understands,

among other things, the nature of the charge. Ill. S. Ct. R. 401(a) (eff. July 1, 1984).

¶ 18           Both defendant and the State cite People v. Rath, 121 Ill. App. 3d 548, 459

N.E.2d 1134 (1984), as authority in this case. In Rath, the defendant elected to waive the right to

counsel, but the trial court found a bona fide doubt existed as to the defendant’s fitness. Id. at

549, 459 N.E.2d at 1135. The court appointed the public defender “ ‘to assist the defendant on a

standby basis’ should he wish to consult with an attorney.” Id. During these proceedings, the

defendant refused any assistance from the public defender. Id. A jury determined the defendant

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was not fit to stand trial. Id. at 550, 459 N.E.2d at 1136. The defendant appealed the finding of

unfitness, believing he was fit to stand trial. Id.

¶ 19            On appeal, defense counsel “contend[ed] that it was error under the facts of this

case to permit the defendant to waive counsel when it was apparent that there was a bona fide

doubt of the defendant’s mental ability to make a valid waiver.” Id. The Third District held:

                “[T]he circuit court correctly believed that a bona fide doubt

                existed as to defendant’s fitness to stand trial. Having properly

                declared that such a doubt existed, the court then erred in allowing

                the defendant to represent himself. Until the shadow of defendant’s

                questioned ability to understand the nature of the charges against

                him and his ability to cooperate in his own defense was removed,

                he was not only entitled to be represented by competent counsel, it

                was required, even if against his will.” Id. at 551, 459 N.E.2d at

                1136.

Accordingly, the court reversed the trial court’s order finding the defendant unfit and remanded

the cause for a new fitness hearing, during which the defendant was to be represented by the

public defender, or other appointed counsel, “as an active adversary on the defendant’s behalf

instead of as a passive bystander to the proceedings.” Id. at 551, 459 N.E.2d at 1137; see also

People v. Esang, 396 Ill. App. 3d 833, 841, 920 N.E.2d 565, 572 (2009) (“Where a bona fide

doubt exists as to a defendant’s competency to stand trial, that defendant cannot intelligently

waive his constitutional right to representation by counsel and permitting him to represent

himself is reversible error.”).

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¶ 20           The United States Court of Appeals for the Second Circuit reached the same

conclusion in Purnett. The Second Circuit persuasively reasoned:

               “[T]he trial court should not accept a waiver of counsel unless and

               until it is persuaded that the waiver is knowing and intelligent.

               Logically, the trial court cannot simultaneously question a

               defendant’s mental competence to stand trial and at one and the

               same time be convinced that the defendant has knowingly and

               intelligently waived his right to counsel.” Purnett, 910 F.2d at 55.

¶ 21           We agree with the reasoning of the Rath and Purnett courts and conclude where a

trial court finds a bona fide doubt exists as to a defendant’s fitness to stand trial, the defendant

loses the ability to knowingly and intelligently waive the right to counsel. To allow the defendant

to proceed pro se is therefore a violation of the sixth amendment right to counsel. Once this bona

fide doubt is established, the court is required—even over the defendant’s objection—to appoint

counsel to represent the defendant until he or she regains fitness to stand trial. Thus, we conclude

the trial court here erred by failing to appoint counsel to represent defendant in the hearings

following the court’s November 2014 determination there was a bona fide doubt as to her fitness.

¶ 22                                   III. CONCLUSION

¶ 23           For the reasons stated, we reverse the trial court’s order finding defendant unfit

and remand to the trial court to conduct a new fitness hearing, during which the defendant is to

be represented by counsel.

¶ 24           Reversed; cause remanded with directions.



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