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                              Appellate Court                            document
                                                                         Date: 2017.01.20
                                                                         09:47:32 -06'00'




                  People v. Gillon, 2016 IL App (4th) 140801



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOHNNIE D. GILLON, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-14-0801



Filed             December 8, 2016



Decision Under    Appeal from the Circuit Court of Champaign County, No.
Review            13-CF-2096; the Hon. Heidi N. Ladd, Judge, presiding.



Judgment          Reversed and remanded.



Counsel on        Michael J. Pelletier, Patricia Mysza, and Bradley Jarka (argued), of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  David J. Robinson and John M. Zimmerman (argued), both of State’s
                  Attorneys Appellate Prosecutor’s Office, of Springfield, of counsel,
                  for the People.



Panel             JUSTICE APPLETON delivered the judgment of the court with
                  opinion.
                  Presiding Justice Knecht and Justice Steigmann concurred in the
                  judgment and opinion.
                                              OPINION

¶1       In December 2013, defendant, Johnnie D. Gillon, pleaded guilty to felony aggravated
     assault (720 ILCS 5/12-2(b)(4)(i) (West 2012)) in exchange for the State’s dismissal of two
     other pending charges. The trial court accepted defendant’s plea and sentenced him to 30
     months’ probation. After defendant allegedly committed two criminal offenses while on
     probation, the State filed a petition to revoke defendant’s probation.
¶2       Defendant’s counsel raised a bona fide doubt as to defendant’s fitness, and the trial court
     ordered defendant to be examined. Based on the opinion of a psychiatrist, the court found
     defendant unfit to stand trial and committed him to the Illinois Department of Human Services
     (Department). After the State and defense counsel stipulated defendant had been restored to
     fitness based upon the conclusions in the Department’s report, the court found defendant fit to
     stand trial. The court revoked defendant’s probation and sentenced him to five years in prison
     on the original offense.
¶3       Defendant appeals, arguing the trial court erred by (1) relying on the parties’ stipulation he
     was fit to stand trial instead of making an independent judicial determination on that issue, (2)
     not sua sponte raising the fitness issue based upon defendant’s conduct during subsequent
     court proceedings, and (3) failing to conduct a Krankel inquiry (see People v. Krankel, 102 Ill.
     2d 181 (1984)) into defendant’s claim, raised at the sentencing hearing, of counsel’s
     ineffective assistance.

¶4                                        I. BACKGROUND
¶5       In December 2013, the State charged defendant with unlawful possession of a weapon by a
     felon (720 ILCS 5/24-1.1(a) (West 2012)) (count I), felony aggravated assault (720 ILCS
     5/12-2(b)(4)(i) (West 2012)) (count II), and misdemeanor aggravated assault (720 ILCS
     5/12-2(a) (West 2012)) (count III). Defendant pleaded guilty to count II and was sentenced to
     30 months’ probation. The State dismissed counts I and III as part of the plea agreement.
¶6       On March 7, 2014, the State filed a petition to revoke defendant’s probation, alleging he
     committed criminal trespass and assault on February 28, 2014, in violation of the conditions of
     his probation. On March 19, 2014, defendant’s appointed counsel filed a motion for the
     appointment of a psychiatrist, raising a bona fide doubt as to defendant’s fitness to stand trial.
     The trial court granted counsel’s request, appointing psychiatrist Dr. Albert Lo.
¶7       On April 21, 2014, Dr. Lo prepared a report based upon the fitness evaluation of defendant
     conducted on an unknown date. Dr. Lo noted defendant’s history of paranoid schizophrenia
     and his need for medication. He said defendant was “able to discuss the differences between
     pleas of guilty and not guilty” and generally understood the legal system. However, Dr. Lo
     noted, as the interview progressed, defendant “became increasingly hostile, argumentative,
     and uncooperative.” Dr. Lo believed, due to his behavior, defendant would have difficulty
     working with an attorney. In Dr. Lo’s opinion, defendant was “currently able to understand the
     nature and purpose of the proceedings against him, but [was] unable to cooperate with an
     attorney and assist in providing a proper defense due to his mental illness.” Thus, Dr. Lo found
     defendant was currently unfit to stand trial.
¶8       On May 5, 2014, at a fitness hearing, the trial court accepted Dr. Lo’s evaluation and
     opinion, and without further evidence or argument from either side, it found defendant unfit to


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       plead or stand trial. The court ordered defendant placed in the custody of the Department for
       evaluation, placement, and treatment.
¶9         On May 22, 2014, the Department prepared a report (filed June 13, 2014, with the trial
       court), advising that, pursuant to its preplacement evaluation, conducted on May 16, 2014, by a
       licensed clinical social worker, defendant was fit to stand trial. According to the report, during
       the evaluation, defendant explained to the evaluator the circumstances pertaining to his latest
       criminal behavior with logic and clarity. He admitted that prior to his arrest, he had not taken
       his psychotropic medications. According to the evaluator, beginning March 1, 2014, since
       defendant had been in jail, he had been given his medication and “ha[d] shown improvements”
       in “mood stability and thought processes.” When asked to explain the purpose of the interview,
       defendant said: “You have to see if I am fit. I am now.” Based on this evaluation, the
       Department determined defendant was fit to stand trial.
¶ 10       On June 30, 2014, the trial court conducted a fitness hearing. The court accepted the
       parties’ stipulation to the Department’s report. Neither party produced further evidence, and
       both waived argument. The court accepted the report and found defendant was “now fit to
       stand trial.” Defendant’s counsel presented the court with an “order for restoration of fitness.”
       The parties agreed to set the matter for a hearing on the State’s petition to revoke.
¶ 11       On July 28, 2014, the trial court conducted a hearing on the State’s petition to revoke
       defendant’s probation. Elizabeth Porter, store manager of Little Caesars Pizza in Urbana,
       testified as the State’s only witness. She said on February 28, 2014, defendant came into the
       store and began yelling that Porter owed him a pizza. She said he was cussing at customers.
       Porter told defendant she would give him a pizza if he waited outside. Defendant interrupted
       her testimony, saying, “She’s lyin’.” The court admonished defendant to not “say anything out
       loud.” Porter continued her testimony. She said when she told defendant to wait outside, he
       cursed at her, at another employee, and at customers. Porter said she “got in between”
       defendant and the customers during the altercation. According to Porter, defendant threatened
       to hit her and kill her as they stood face-to-face just inches apart. At that point, the police
       arrived and escorted defendant outside.
¶ 12       Defendant testified a police officer had given him money for a pizza. He said a male
       employee refused to make him a pizza and came around the counter to where defendant was
       standing. The employee “started putting some gloves on his hands tightenin’ them up.” He told
       defendant to stop begging for food. He said Porter grabbed the employee by the shirt. He said
       Porter told him to go outside so the employee could beat him up. Defendant said he was afraid
       to go outside because the employee was “a real big heavyset guy” and was waiting for him.
       Porter told him to go outside or go to jail, and that is when the police walked in.
¶ 13       After considering the testimony, the trial court found the State had proved the allegations in
       the petition to revoke probation by a preponderance of the evidence. The court revoked
       defendant’s probation. After the court announced its ruling, defendant yelled out in court: “I
       didn’t do it, Judge. Why don’t you believe? I didn’t do nothin’. Please, ma’am. I didn’t do
       nothin’. That lady just came here and lied and you all goin’ to let her lie.”
¶ 14       The trial court noted as follows:
                    “The record will reflect that [defendant] has become increasingly agitated as the
                court made its ruling. He then started yelling out disputing the court’s ruling and he’s
                become more and more agitated and—and screaming at this point. He could be heard
                through two locked doors as he was being removed. Because he was so out of control

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               and it’s still apparent that he’s escalating in his degree of being upset, we have had him
               removed from the courtroom.”
¶ 15       At the resentencing hearing, the trial court considered the presentence investigation report,
       counsels’ recommendations, and defendant’s statement in allocution, wherein he told the court
       he did not remember the incident because he was “off [his] medication.” The court advised
       defendant of his right to appeal. Defendant stated:
                   “One more thing. I wasn’t involved with no plea bargains or nothing. I—I was
               thinking like, I—I was wondering why come [defendant’s counsel] only called me one
               time out of nine months before—and—I didn’t get no plea bargains, and I didn’t get
               no—I—I—I would call it a—I’m trying to think of what you call it, innocent of
               counsel.”
       In response, the court told defendant it was proceeding to sentencing, as any potential offer by
       the State is “not something the court becomes involved in.” The court explained its findings
       before pronouncing defendant’s sentence. During the court’s explanation, defendant
       interrupted several times to dispute the court’s finding or express his promise to do better.
       Nevertheless, the court sentenced defendant to five years in prison. This appeal followed.

¶ 16                                           II. ANALYSIS
¶ 17       Defendant presents three arguments on appeal. First, defendant claims the trial court erred
       when it found him restored to fitness in a “truncated restoration hearing” consisting only of the
       conclusory opinion of the Department and the parties’ stipulation thereto. Second, defendant
       claims the court erred when it failed to sua sponte reopen the issue of his fitness based upon his
       behavior at subsequent proceedings. And third, the court erred in failing to conduct a Krankel
       inquiry when defendant questioned his attorney’s failure to adequately communicate with him.
       Because we agree with defendant’s first two contentions of error, we need not address the
       third, as it is moot.
¶ 18       At the June 30, 2014, fitness hearing, the trial court was presented with (1) the
       Department’s report finding defendant fit to stand trial and (2) a proposed order restoring
       defendant’s fitness. Both sides stipulated to the Department’s finding of fitness. Defendant
       contends the court erred by relying on the parties’ stipulations instead of making an
       independent judicial determination. We agree. The court should have either questioned the
       Department’s finding at the time of the stipulations, or, after accepting the stipulations,
       reopened the issue of defendant’s fitness based upon his behavior in open court.
¶ 19       Initially, we note defendant acknowledges he failed to preserve this issue for our review.
       However, he claims, and we agree, the issue may be reviewed for plain error. See People v.
       Gipson, 2015 IL App (1st) 122451, ¶ 28 (stating a defendant’s fitness for trial involves a
       fundamental right and “alleged errors concerning fitness may be reviewed under the plain error
       doctrine”). See also People v. Shaw, 2015 IL App (4th) 140106, ¶ 23.
¶ 20       “The due process clause of the fourteenth amendment bars prosecution of a defendant unfit
       to stand trial.” People v. Holt, 2014 IL 116989, ¶ 51. A defendant is unfit to stand trial if a
       mental or physical condition prevents him from understanding the nature and purpose of the
       proceedings against him or assisting in his defense. 725 ILCS 5/104-10 (West 2012). “[W]here
       a defendant was previously adjudicated to be unfit to stand trial, a presumption exists that the
       condition of unfitness remains until the defendant has been adjudicated to be fit at a valid


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       subsequent hearing.” Gipson, 2015 IL App (1st) 122451, ¶ 29 (citing People v. Greene, 102 Ill.
       App. 3d 639, 641-42 (1981)).
¶ 21        “Normally, a trial court’s decision that a defendant is fit to stand trial will not be reversed
       absent an abuse of discretion.” People v. Contorno, 322 Ill. App. 3d 177, 179 (2001) (citing
       People v. Newell, 196 Ill. App. 3d 373, 377 (1990)). However, because the issue of fitness is
       constitutional in dimension, the record must affirmatively show that the court’s fitness
       determination was the product of judicial discretion and judgment. Gipson, 2015 IL App (1st)
       122451, ¶ 29; People v. Cook, 2014 IL App (2d) 130545, ¶ 13; Contorno, 322 Ill. App. 3d at
       179; Greene, 102 Ill. App. 3d at 642. In other words, the court may not simply “rubber stamp”
       an expert’s ultimate conclusion that a defendant has been restored to fitness. See Contorno,
       322 Ill. App. 3d at 179 (“The ultimate decision as to a defendant’s fitness must be made by the
       trial court, not the experts.” (citing People v. Bilyew, 73 Ill. 2d 294, 302 (1978))); see also
       Gipson, 2015 IL App (1st) 122451, ¶ 29 (“[T]he court should be active, not passive, in
       assessing a defendant’s fitness.”).
¶ 22        Our supreme court stated “[i]f a defendant is insane and unable to answer for himself, he
       certainly is in no position to authorize his counsel to stipulate, nor is counsel warranted in
       stipulating, to his restoration [to fitness].” People v. Reeves, 412 Ill. 555, 560 (1952). This is
       not to say, however, that a trial court may never base its fitness determination upon a
       stipulation. As the First District recently noted, “[t]he distinction between proper and improper
       stipulations *** is a fine one.” Gipson, 2015 IL App (1st) 122451, ¶ 30.
¶ 23        In People v. Lewis, 103 Ill. 2d 111 (1984), our supreme court discussed the distinction
       between proper and improper stipulations. That is, the court noted a difference between the
       parties stipulating to the fact of fitness and thereby accepting the expert’s opinion and
       conclusion as true and correct (see Reeves, 412 Ill. at 560-61), versus stipulating to the content
       of the opinion testimony that would have been presented by the expert had the expert testified
       (see Lewis, 103 Ill. 2d at 116). In the latter circumstance, the court could find the defendant fit,
       seek more information, or find the evidence insufficient to support a finding of restoration to
       fitness. Lewis, 103 Ill. 2d at 116. With this latter and proper stipulation, the ultimate decision
       rests with the court, not the experts. Lewis, 103 Ill. 2d at 116.
¶ 24        The Second District discussed the distinction presented in Lewis as follows:
                    “Where a trial court fails to conduct an independent inquiry into a defendant’s
                fitness but, instead, relies exclusively on the parties’ stipulation to a psychological
                report finding the defendant fit, the defendant’s due process rights are violated.
                [Citations.] However, where a trial court’s finding of fitness is based not only on
                stipulations but also on its observations of the defendant and a review of a
                psychological report, the defendant’s due process rights are not offended. [Citations.]”
                Cook, 2014 IL App (2d) 130545, ¶ 15.
¶ 25        It is apparent from the record before us the trial court relied solely on the parties’
       stipulations in finding defendant had been restored to fitness. The court stated it had indeed
       reviewed the Department’s report, but there was no discussion as to the bases or opinions
       contained therein. The extent of the fitness hearing was as follows:
                    “THE COURT: *** [T]his is a fitness determination then.
                    MS. JESSUP [Defense Attorney]: Yes, [Y]our Honor.



                                                    -5-
                     THE COURT: There was a report that was filed. The last one that I have is June
                13th of 2014. Do you have that report then, Mr. Banach [(assistant State’s Attorney)]?
                     MR. BANACH: Your Honor, may I have a moment?
                     THE COURT: You may. And if you do not have it, we’ll make you a copy. It was
                filed June 13th, dated May 22nd.
                     MR. BANACH: Yes, [Y]our Honor, I have the report dated May 22nd.
                     THE COURT: You have that as well, Ms. Jessup?
                     MS. JESSUP: Yes, Your Honor.
                     THE COURT: All right. Then I’ll call that for hearing. Mr. Banach.
                     MR. BANACH: Your Honor, the State would stipulate to the report from [the
                Department] dated May 22nd.
                     THE COURT: And Ms. Jessup, is that agreeable?
                     MS. JESSUP: Yes, Your Honor.
                     THE COURT: All right. We’ll show then that the court has considered that report.
                It was authored on May 22nd, 2014, from the Department of Human Services. Did the
                State wish further evidence then, Mr. Banach?
                     MR. BANACH: No, thank you, Your Honor.
                     THE COURT: Is there any evidence on behalf of the defendant then, Ms. Jessup?
                     MS. JESSUP: No, Your Honor.
                     THE COURT: Did you wish argument then, Mr. Banach?
                     MR. BANACH: No, thank you.
                     THE COURT: Ms. Jessup, any argument on behalf of the defendant?
                     MS. JESSUP: No, thank you, Your Honor.
                     THE COURT: I have considered that report. It is the determination of the
                professionals working with [defendant] that he’s now fit to stand trial, so I do find that
                he’s able to assist in his own defense, understands the nature and purpose of the
                proceedings, and fit to proceed to trial or plead, able to help his attorney as well. In that
                regard then, did you want to set it for further proceeding then, Ms. Jessup?”
¶ 26        Due to the important constitutional ramifications involved in a restoration hearing, we find
       the trial court should have given close consideration to the circumstances of this particular
       case. We do not go so far as to find the court should never accept a stipulation at a restoration
       hearing. However, in this case, certain circumstances existed which gave rise to pivotal
       concerns questioning defendant’s fitness.
¶ 27        First, in general, there should be a high level of judicial scrutiny in a restoration hearing.
       The constitutional ramifications and liberty interests at stake justify careful consideration of
       the expert’s opinion. Extra precautions may be needed to ensure the bases and grounds set
       forth in the expert’s report are justified and satisfactory to the court’s determination. A
       potential error in the Department’s restoration finding may subject an otherwise unfit person to
       a trial and sentencing. Because the due process clause forbids conviction of a defendant who is
       unfit to stand trial (People v. McCallister, 193 Ill. 2d 63, 110 (2000)), the court should take
       great care to ensure to its satisfaction the defendant’s fitness has been restored. That is, the
       court should take steps to ensure the defendant is indeed able to understand the nature of the
       proceedings and to assist in his own defense. Cook, 2014 IL App (2d) 130545, ¶ 12.

                                                     -6-
¶ 28        Second, the Department’s preplacement evaluation determining defendant was restored to
       fitness was conducted less than two weeks after the trial court had declared defendant unfit to
       stand trial based upon Dr. Lo’s psychiatric examination. According to the Department’s report,
       defendant was evaluated May 16, 2014 (the report was dated May 22, 2014, and filed with the
       court on June 13, 2014). To justify this seemingly quick turn of events, the court should have,
       on the record, questioned the parties as to how or why defendant had gained fitness in a matter
       of days.
¶ 29        Third, the Department’s report was submitted by the “evaluator,” Kimberly A. Swenka, a
       licensed clinical social worker, rather than a psychiatrist or a psychologist. It appears Swenka
       indeed conducted the evaluation herself and determined respondent was currently fit to stand
       trial. The applicable statutory section provides as follows:
                “If upon the completion of the placement process[,] the Department of Human Services
                determines that the defendant is currently fit to stand trial, it shall immediately notify
                the court and shall submit a written report within 7 days. In that circumstance[,] the
                placement shall be held pending a court hearing on the Department’s report.” 725 ILCS
                5/104-17(b) (West 2012).
       We acknowledge this statutory section does not specifically require the fitness decision be
       made by a psychiatrist or a psychologist. However, we note the legislature specifically
       required the initial fitness examination to be performed by “one or more licensed physicians,
       clinical psychologists, or psychiatrists chosen by the court.” 725 ILCS 5/104-13(a) (West
       2012). Although the statute does not specifically prohibit a licensed clinical social worker from
       conducting the Department’s pretreatment evaluation, we find, in this particular case, the
       social worker’s decision restoring defendant to fitness required the court to perhaps perform a
       more thorough analysis than otherwise necessary if presented with an opinion from a
       psychiatrist or psychologist.
¶ 30        Finally, defendant’s behavior in proceedings conducted after he had been restored to
       fitness should have put the parties and the court on notice as to whether the Department’s
       opinion was correct. His later behavior seemed to raise a bona fide doubt again as to his fitness.
       It is plausible defendant appeared fit during the Department’s preplacement evaluation, when
       his environment was calm and controlled. However, when he later appeared in court and was
       subjected to the confrontational environment of a hearing, in the presence of witnesses,
       attorneys, and a judge, his mental faculties changed. His paranoid behavior surfaced, as he was
       seemingly unable to control his outbursts and agitation. In fact, the trial court had him removed
       from the courtroom because “he was so out of control and it’s still apparent that he’s escalating
       in his degree of being upset.” Defendant’s behavior during these court proceedings was more
       akin to the behavior observed by Dr. Lo during his psychiatric evaluation.
¶ 31        Given the above considerations and the cumulative effect of each upon the other, we hold
       the trial court erred in accepting the parties’ stipulations that defendant had been restored to
       fitness. In so holding, we are mindful of what our supreme court cautioned some 60 years ago:
                “Albeit, in order to avoid the repetition of situations similar to the case at bar[,] the
                courts should exercise care to see that restoration proceedings be determined as
                directed by statute; that the issue submitted as one of fact be determined by the jury;
                and that directed verdicts be sparingly used only where the evidence properly warrants
                that action. They should not exercise the prerogative of directing a verdict solely upon


                                                    -7-
              the unsupported stipulation, agreement, or plea, alone, made by the accused or by his
              counsel.” Reeves, 412 Ill. at 561.
       See also People v. Johnson, 15 Ill. App. 3d 680, 686 (1973).

¶ 32                                     III. CONCLUSION
¶ 33       Based on the above, we reverse the trial court’s order revoking defendant’s probation. The
       cause is remanded for a restoration hearing consistent with this opinion and such other
       proceedings as may be appropriate. Likewise, the order of June 30, 2014, restoring defendant’s
       fitness is set aside.

¶ 34      Reversed and remanded.




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