
No. 2--03--0325

_
_____________________________________________________________________________



IN THE



APPELLATE COURT OF ILLINOIS



SECOND DISTRICT

______________________________________________________________________________



THE PEOPLE OF THE STATE OF	)	Appeal from the Circuit Court of 

ILLINOIS,	)	Du Page County.

)

Plaintiff-Appellee,	)	No. 00--CF--2782

)

v.	)

)

EDWARD SMITH, JR.,	)	Honorable

)	Ann Brackley Jorgensen,

Defendant-Appellant.	)	Judge, Presiding.

______________________________________________________________________________



JUSTICE BYRNE delivered 
the
 opinion of 
the
 court:

Following a bench trial, defendant, Edward Smith, Jr., was found guilty of eight counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a) (West 2000)), eight counts of criminal sexual assault (720 ILCS 5/12--13(a) (West 2000)), one count of aggravated domestic battery (720 ILCS 5/12--3.3 (West 2000)), two counts of aggravated battery (720 ILCS 5/12--4(a) (West 2000)), one count of unlawful restraint (720 ILCS 5/10--3 (West 2000)), and one count of armed violence (720 ILCS 5/33A--2(a) (West 2000)).  The trial court sentenced 
defendant
 to consecutive prison terms of 25 years each on four of 
the
 counts of aggravated criminal sexual assault, and concurrent extended-term sentences of 12 years each 
for aggravated domestic battery and armed violence and 6 years each for unlawful restraint and aggravated battery.  Judgments of conviction were entered on 
the
 remaining guilty verdicts, but 
the
 counts were merged.  On appeal, defendant contends that the trial court committed reversible error by failing to conduct a fitness hearing after 
the
 trial court, 
sua sponte
, raised a 
bona
 
fide
 doubt of his fitness to stand trial.  Defendant argues further 
that 
the
 trial court also erred by: (1) entering judgments of conviction for too many offenses and imposing sentences that are unauthorized under 
the
 Unified Code of Corrections (730 ILCS 5/1--1--1 
et
 
seq.
 (West 2000));
 (2) improperly admonishing him pursuant to Supreme Court Rule 605(a) (134 Ill. 2d R. 605(a)); and (3) failing to credit him for time spent in custody before sentencing.  We reverse and remand with directions because we find that 
the
 trial court committed reversible error by failing to conduct a fitness hearing after 
the
 court raised a 
bona
 
fide
 doubt of 
defendant
's fitness to stand trial
.  Because we reverse and remand based on 
defendant
's
 first contention
, we need not address 
the
 remaining issues.

BACKGROUND

On November 6, 2000, prior to defendant's trial, 
the
 assistant public defender filed a motion for a fitness evaluation, alleging that 
defendant
 had a history of mental health treatment, including current treatment at Good Samaritan Hospital, and that hallucinations could interfere with 
hi
s ability to cooperate with counsel.  Counsel stated that he had a 
bona
 
fide
 doubt of 
defendant
's fitness and requested that 
the
 court appoint Dr. Chiapetta to psychologically evaluate 
defendant
.  The trial judge ordered a fitness evaluation.  Based on
 records from 
the
 hospital and jail and 
interviews with 
defendant
, Dr. Chiapetta concluded that 
defendant
 was fit to stand trial.  At 
a 
hearing on February 20, 2001, 
the
 attorneys stipulated that Dr. Chiapetta was a qualified clinical psychologist
 and would testify consistently with his report.  Thereafter
, 
the
 trial judge found 
defendant
 to be fit to stand trial.

Before, during, and after 
the
 February hearing, 
defendant
 expressed to 
the
 court his dissatisfaction with 
the
 assistant public defenders assigned to his case.  The court had to continue 
the
 case several times for 
defendant
 to consider whether he wanted to represent himself.  On July 23, 2001, 
defendant
 again insisted that he wished to fire 
the
 assistant public defenders and represent himself.  Thereafter, 
the
 trial court, 
sua
 
sponte
 in a written order, ordered 
the
 following:

"[T]he court having raised a 
bona
 
fide
 doubt as to 
the
 
defendant
's fitness to stand trial, 
the
 
defendant
 shall be examined by Dr. Murray of 
the
 probation department.  The 
defendant
 shall also be examined by Dr. Murray regarding 
the
 
defendant
's cognitive ability to waive his 
Miranda
 [
v. Arizona
, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)] Rights."

The public defender's office remained on 
the
 case in 
the
 interim.

After reviewing 
the
 various records, including Dr. Chiapetta's report and a psychiatric evaluation from March 2000, and interviewing 
defendant, Dr. Murray
 diagnosed 
that defendant
 had a mood disorder, not otherwise specified, that was in remission, and that he had an antisocial personality disorder.  Dr. Murray concluded that 
defendant
 was fit to stand trial, as he was of average intelligence, understood 
the
 nature of court proceedings, and could assist in his defense.

On August 21, 2001, after Dr. Murray had prepared his report, 
the
 case came before 
the
 trial court.  Defendant immediately reiterated his desire to fire 
the
 public defender.  The judge noted that Dr. Murray had found 
defendant
 fit to stand trial.  After a brief colloquy with 
defendant
, 
the
 judge indicated that 
defendant
 would be permitted to fire 
the
 public defender and to represent himself.  Defendant requested standby counsel, and 
the
 judge responded that 
the
 public defender would be appointed in that capacity.  The assistant public defender offered to check with 
the
 head public defender about assigning a different assistant.  The assistant public defender further pointed out that 
the
 report from Dr. Murray needed to be addressed before a trial date was set.  The court continued 
the
 case to August 27 for status, stating that 
the
 State would have to decide whether to stipulate to 
Dr. Murray's
 report.

However, when 
the
 case was called on August 27, 
the
 question of fitness was never addressed.  A new assistant public defender appeared to serve as standby counsel, and 
the
 cause was continued for
 
defendant
 to receive discovery.  The issue of 
defendant
's fitness was not addressed again until after 
the
 completion of 
the
 bench trial, which began at 
the
 end of May 2002.

More than three months after 
the
 pronouncement of 
guilt 
on June 3, 2002, 
defendant
 retained counsel to represent him for posttrial motions and sentencing.  Counsel filed a motion for a new trial on January 6, 2003.  He also filed a motion for a fitness examination, alleging that 
defendant
 had not been in a proper state of mind to represent himself at trial.  In court, counsel informed 
the
 trial judge that he had a 
bona
 
fide
 doubt of 
defendant
's fitness.  The court responded by entering an order raising a 
bona
 
fide
 doubt and requiring a fitness evaluation by Dr. Corcoran.

Dr. Corcoran evaluated 
defendant
 and prepared a report wherein he concluded that 
defendant
 was fit to be sentenced.  Dr. Corcoran found 
that defendant
 did not display any psychotic symptoms and offered a diagnosis of depressive disorder, not otherwise specified, and antisocial personality disorder.  The parties eventually stipulated to 
the
 report, and 
the
 trial court found 
defendant
 fit to be sentenced.  The cause thereafter proceeded to final judgment.

ANALYSIS

Defendant now contends on appeal that his due process rights were violated because 
the
 trial court expressly raised, 
sua
 
sponte
, 
a 
bona
 
fide
 doubt as to 
defendant
's fitness to stand trial and 
the
 court proceeded to trial without first holding a fitness hearing.  
The State responds that, 
despite 
the
 fact that the
 trial court explicitly stated in its written order that it had raised a 
bona
 
fide
 doubt as to 
defendant
's fitness, 
the
 trial court merely intended to appoint an expert to examine 
defendant
 to determine 
whether
 a 
bona
 
fide
 doubt of 
defendant
's fitness existed, because the
 record simply did not reflect that 
defendant
 was unfit.

The right to be fit for trial is fundamental.  
People v. Eddmonds
, 143 Ill. 2d 501, 512-13 (1991).  Accordingly, prosecuting a defendant where there is a 
bona
 
fide
 doubt as to that defendant's fitness renders the proceedings fundamentally unfair, and we review this contention under the plain error rule.  
People v. Sandham
, 174 Ill. 2d 379, 382 (1996).

Due process bars prosecuting or sentencing a defendant who is not competent to stand trial.  
Eddmonds
, 143 Ill. 2d at 512-13.  Fitness to stand trial requires that a defendant understand the nature and purpose of the proceedings against him and be able to assist in his defense.  725 ILCS 5/104--10 (West 2000).  Whether a 
bona
 
fide
 doubt as to a defendant's fitness has arisen is generally a matter within the discretion of the trial court.  
People v. Murphy
, 72 Ill. 2d 421, 431 (1978).  However, once the trial court concludes that a 
bona
 
fide
 doubt exists concerning the defendant's fitness, the defendant becomes constitutionally entitled to a fitness hearing.  
People v. Contorno
, 322 Ill. App. 3d 177, 179 (2001); 
People v. Teague
, 83 Ill. App. 3d 990, 993 (1980).  In fact, although a defendant's fitness is presumed by statute (725 ILCS 5/104--10 (West 2000)), the trial court has a duty to order a fitness hearing, 
sua
 
sponte
, any time a 
bona
 
fide
 doubt arises regarding a defendant's ability to understand the nature and purpose of the proceedings or assist in his defense.  
Sandham
, 174 Ill. 2d at 382.

The State argues that, despite signing 
the
 order with 
the
 words "
bona
 
fide
 doubt," 
the
 court did not actually intend to raise a substantive 
bona
 
fide
 doubt of 
defendant
's fitness but rather wanted to ensure that 
defendant
 was fully capable of defending himself 
pro
 
se
 and that he understood his 
Miranda
 rights.  The State asserts that 
the
 judge's order was more akin to one in which 
the
 trial court orders a 
defendant
 to undergo a preliminary fitness examination to assist in 
the
 determination of 
whether
 a 
bona
 
fide
 doubt of fitness exists under section 104--11(b) of 
the
 fitness provisions of 
the
 Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104--11(b) (West 2000)), rather than section 104--11(a), which requires that, 
when
 a 
bona
 
fide
 doubt of 
defendant
's fitness is raised, 
the
 court must conduct a fitness hearing
 before proceeding further (725 ILCS 5/104--11(a) (West 2000)).

The State points to several factors to support its assertion that the trial court ordered a fitness examination only to determine whether there was a 
bona
 
fide
 doubt of 
defendant
's fitness.  First, 
the
 State points out that there was no evidence that 
defendant
 was unfit to stand trial.  Second,
 although 
the
 court signed 
the
 order with 
the
 words "
bona
 
fide
 doubt," 
the
 court never articulated its reasons for finding a 
bona
 
fide
 doubt either verbally or in 
the
 order.  Third, 
the
 court informed 
defendant
 that Dr. Murray's report indicated he was fit for trial and neither party
 on 
subsequent court dates asserted that a formal ruling needed to be made regarding 
the
 issue.  The State further maintains that, "by proceeding to trial in 
the
 absence of a formal ruling, 
the
 court obviously felt that a formal ruling was not needed since 
the
 report was identical to that of Dr. Chiapetta."  Fourth, 
the
 State argues that 
the
 court never intended its order to entitle 
defendant
 to a fitness hearing
, because 
the
 court allowed 
defendant
 to dismiss 
the
 defense attorney and proceed 
pro
 
se
 immediately after informing 
defendant
 that Dr. Murray found him fit for trial
.  Fifth, the State claims that 
the
 statements made by 
the
 trial court following 
defendant
's motion for a new trial show that 
the
 court did not actually intend its order to raise a 
bona
 
fide
 doubt of 
defendant
's fitness to stand trial.

The State's claim relies solely on 
the
 presumption that 
the
 trial court never found a 
bona
 
fide
 doubt of fitness to exist in spite of 
the
 trial court's explicit written finding to 
the
 contrary.
  
We find no authority in 
the
 statutes or case law, and 
the
 State has not cited any, that required 
the
 trial court to articulate its reasons for finding that a 
bona
 
fide
 doubt of 
defendant
's fitness existed.  Moreover, 
the
 State never questioned or sought to have 
the
 court explain its written finding.  Whether a 
bona
 
fide
 doubt as to a 
defendant
's fitness has arisen is generally a matter within 
the
 discretion of 
the
 trial court.  
Sandham
, 174 
Ill. 2d
 at 382.  Here,
 
the
 judge observed 
defendant
's demeanor as he repeatedly asserted his desire to fire 
the
 public defender and represent himself.  Indeed, 
the
 judge articulated her concern regarding 
defendant
's potential for "outbursts."  The trial court was aware of Dr. Chiapetta's report, which disclosed 
defendant
's history of psychological problems, including a psychiatric commitment in December 1999.  The judge had 
the
 discretion to determine whether a 
bona
 
fide
 doubt of fitness was raised and did make such a determination based on 
the
 facts before her.  On 
the
 basis of her observations at 
the
 time of 
the
 order on July 23, 2001
, 
the
 judge expressly found that a 
bona
 
fide
 doubt of 
defendant
's fitness existed.
  We find no abuse of discretion, and we will not presume otherwise
.

Recently, our supreme court in 
People v. Hanson
, No. 96869 (September 23, 2004), provided the following 
statutory distinction between sections 104--11(a) and (b):

"Sections 104--11(a) and (b) may be applied in tandem or separately, depending on if and when the trial court determines a 
bona
 
fide
 doubt of fitness is raised.  If the trial court is not convinced 
bona
 
fide
 doubt is raised, it has 
the
 discretion under section 104--11(b) to grant the defendant's request for appointment of an expert to aid in that determination.  [Citation.]  Even for a motion filed under section 104--11(a), the trial court could specify its need for a fitness examination by an expert to aid in its determination of whether a 
bona
 
fide
 doubt is raised without a fitness hearing becoming mandatory.  In either instance, after completion of the fitness examination, if the trial court determines there is 
bona
 
fide
 doubt, then a fitness hearing would be mandatory under section 104--11(a).  ***  In sum, the primary distinction between sections 104--11(a) and 104--11(b) is that section 104--11(a) ensures that a defendant's due process rights are not violated when the trial court has already found 
bona
 
fide
 doubt to have been raised, while section 104--11(b) aides the trial court in deciding whether there is a 
bona
 
fide
 doubt of fitness."  
Hanson
, slip op. at 3-4.

We find nothing in section 104--11(a) that prevents 
a court from raising 
the existence of
 a 
bona
 
fide
 doubt of fitness before it orders an expert to conduct an evaluation
.  In this case, 
the
 trial court did not order a preliminary evaluation under section 104--11(b) 
because it already expressly found a 
bona
 
fide
 doubt of 
defendant
's fitness to stand trial pursuant to section 104--11(a).

In 
Hanson
, the supreme court was asked to decide whether the grant of a defense motion for a psychological examination, without more, creates a sufficient inference that the trial court found 
a 
bona
 
fide
 doubt of the defendant's fitness to stand trial so as to require a remand for a retrospective fitness hearing.  The supreme court held that it does not because the defense motion specifically referred only to section 104--13(a) of the Code (725 ILCS 5/104--13(a) (West 2000)) and made no reference to section 104--11(a) or (b).  
Hanson
, slip op. at 4.  Section 104--13(a) only specifies who may be appointed to examine a defendant when the question of fitness involves mental health issues and can be used in conjunction with section 104--11(a) or (b).  
Hanson
, slip op. at 5.

In this case, unlike in 
Hanson
,
 
the
 judge expressly found that a 
bona
 
fide
 doubt existed, and therefore, it triggered 
the
 requirement for an evidentiary hearing pursuant to section 104--11(a)
. 
 
When a 
bona
 
fide
 doubt as to a 
defendant
's fitness to stand trial exists, 
the
 court must order a fitness hearing to resolve 
the
 question of fitness before 
the
 case proceeds any further.  725 ILCS 5/104--11(a) (West 2000); 
People v. Johnson
, 206 
Ill. 2d
 348, 361 (2002).  Once 
the
 judge found that a doubt existed, 
the
 court was constitutionally obligated to conduct a hearing.  See 
Contorno
, 322 
Ill. App. 3d
 at 179.  
Accordingly, we reject 
the
 State's arguments.

Finally, 
the
 State argues that, if we decide that 
the
 court erred in failing to hold a hearing, 
the
 error was harmless because 
of 
the
 curative effect of 
the
 second fitness hearing held before sentencing.  
Contrary to the State's assertions, the trial court could not dispense with a hearing before trial simply by subsequently finding 
defendant to be fit for sentencing
.  We fail to understand how, in fairness, 
the
 court can determine retroactively whether 
a defendant
 had been fit before 
trial.  That determination should have been made by the trial court 
following an evidentiary hearing in which defendant should have been given 
the
 opportunity to cross-examine 
the
 witnesses and present his case. 
 Moreover, 
the
 fact that he may have been fit in January 2003 does not mean that he was fit before trial.  
W
e also reject the State's apparent assertion that this court is qualified to make that judgment simply because, as the State submits, defendant's actions throughout 
the
 proceedings demonstrate that he was fit for trial, in that he had 
the
 ability while representing himself to file and argue motions, including motions to quash his arrest and suppress evidence, dismiss 
the
 indictment, change venue, and merge offenses.  
That determination must be made by 
the
 trial court following a hearing.  We conclude that the trial court committed reversible error by allowing the case to proceed to trial without first holding a fitness hearing after finding that a 
bona
 
fide
 doubt existed as to 
defendant
's fitness to stand trial.

Based on the foregoing, we reverse the judgment of the circuit court of Du Page County and remand the cause for a fitness hearing and, if appropriate, a new trial.  
Because there remains the possibility that (1) defendant may be found unfit to stand trial at all or (2) the evidence presented at a new trial may be different from the evidence presented in the present case, we need not pass on defendant's remaining contentions
.  We note that 
the
 trial court found 
defendant
 not guilty of count XXIX of aggravated battery, but erroneously marked 
the
 criminal sentence form with a finding of guilty and sentenced 
defendant
 to six years' imprisonment for it.  The State concedes, and we confirm,
 that this sentence on remand 
should be vacated under double-jeopardy principles.  See 
People v. Henry
, 204 
Ill. 2d
 267, 283 (2003).

Reversed and remanded with directions.

BOWMAN and CALLUM, JJ., concur.

