                                     2013 IL App (1st) 120286

                                                               FIRST DIVISION
                                                               FILED: December 2, 2013

                                           No. 1-12-0286


                                          IN THE
                               APPELLATE COURT OF ILLINOIS
                                 FIRST JUDICIAL DISTRICT

 THE PEOPLE OF THE STATE OF                        )          Appeal from the
 ILLINOIS,                                         )          Circuit Court of
                                                   )          Cook County.
         Plaintiff-Appellee,                       )
                                                   )
                 v.                                )          No. 04-CR-15651
                                                   )
 KATHY MIRAGLIA,                                   )          Honorable
                                                   )          Gilbert J. Grossi,
         Defendant-Appellant.                      )          Judge Presiding.

       JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Justices Cunningham and Delort concurred in the judgment.

                                             OPINION

¶1     The defendant, Kathy Miraglia, appeals from the circuit court order which both denied her

a retrospective jury determination on the question of her fitness to stand trial and which found her

fit to stand trial. For the following reasons, we affirm.

¶2     Following a bench trial in 2006, the defendant was convicted of two counts of criminal

sexual assault (720 ILCS 5/12-13(A)(4) (West 2004)) and sentenced to two consecutive four-year

terms of imprisonment. The evidence adduced at trial revealed the following facts. In 2003, the

defendant, a clinical psychologist at Hillside Academy High School, held group counseling sessions

which included J.B., a 16-year old male junior at the school. J.B. testified that he began to meet with
2013 IL App (1st) 120286

the defendant in private sessions and that their conversations became "deeper." They eventually

exchanged phone numbers and the conversations became sexual in nature. Thereafter, the defendant

met with J.B. outside of school, and they engaged in sexual intercourse. On several occasions, the

defendant bought liquor for J.B. and gave him money to buy marijuana, which they shared. Mike

Miraglia, the defendant's husband, testified that on three separate occasions, he discovered letters

written by the defendant to J.B., detailing the couple's drug and alcohol use and their sexual

relationship.

¶3      Prior to trial, the State raised the question of the defendant's fitness to stand trial by informing

the court that records indicated that the defendant was taking antidepressant medication and had

checked herself into a mental health facility before her arrest in June 2004. Defense counsel

requested a hearing outside of the defendant's presence to discuss the issue of her fitness to stand

trial. The court expressed its reservations, but granted counsel's request and ordered the courtroom

cleared. Defense counsel informed the court that the defendant had previously attempted suicide and

had been hospitalized. He confirmed that she had been taking antidepressant medication, but could

not verify the specific medication. The court noted that it had not developed any bona fide doubt

concerning the defendant's fitness, but opined that defense counsel was better situated to make such

a judgment and elicited his opinion. After counsel concurred with the court's assessment, the court

concluded that was "all we have to go on," and the matter proceeded to trial without a fitness

hearing.

¶4      On direct appeal, the defendant argued, in relevant part, that she was denied her right to be

present during a critical stage of the trial because the court discussed the issue of her fitness outside


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of her presence. This court reviewed the issue, finding that a proceeding at which a defendant's

fitness to stand trial is discussed is a critical stage for purposes of a defendant's right to be present.

People v. Miraglia, No. 1-06-2654 (May 20, 2008) (unpublished order pursuant to Supreme Court

Rule 23). We concluded that the trial court erred in excluding the defendant from the proceeding

and remanded "the matter to the trial court for a retrospective fitness hearing." Id. We held that, if

the trial court determined that the defendant was unfit for trial, her convictions should be vacated

and the court should conduct further proceedings pursuant to section 104-10 of the Code of Criminal

Procedure of 1963 (Code) (725 ILCS 5/104-10 (West 2004)). Id. We further held that, if the trial

court determined that the defendant was fit, her convictions and sentences shall stand. Id.

¶5      On remand, the matter was returned to Judge Grossi, the trial judge in Maywood who

presided over the defendant's trial. The defendant requested that a jury be impaneled for purposes

of retrospectively determining her fitness to stand trial. Thereafter, the matter was transferred to the

criminal courthouse in Chicago where jury trials on fitness are conducted. On April 12, 2011, the

State moved to strike the defendant's request for a jury determination on the issue of her fitness,

asserting that she was not entitled to a jury because the proceeding was to take place after trial and

after her convictions were entered of record.

¶6      On May 9, 2011, Judge Mary Brosnahan granted the State's motion, finding that the facts of

the case did not present a scenario in which the defendant requested a jury determination of her

fitness hearing prior to trial. Rather, the court determined that, under the facts presented here, the

defendant was not entitled to a jury trial on the issue of her fitness as the issue of the defendant's

fitness was first raised after her trial had begun. See People v. Melka, 319 Ill. App. 3d 431, 744


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2013 IL App (1st) 120286

N.E.2d 290 (2000). The matter was then transferred back to Judge Grossi's courtroom in Maywood

for a non-jury determination of the defendant's fitness.

¶7     On August 3, 2011, the fitness hearing proceeded before Judge Grossi. Dr. Christofer

Cooper, a forensic psychologist, testified that he received the defendant's medical records, police

reports, and transcripts of some of the trial court proceedings, including the defendant's statement

in allocution. He also met with the defendant on September 22, 2008, for over two hours to evaluate

her present fitness. Dr. Cooper explained that to evaluate a defendant's retrospective fitness, he

considers the defendant's current fitness and assesses whether there have been any significant

changes or differences in the defendant's mental state or brain functioning from the time of trial. Dr.

Cooper noted that the defendant had a doctorate in psychology and had been employed as a school

counselor at the time of her offense. After her arrest, the defendant worked full-time for Ameri-

Suites Hotel until the time of her trial. At the time of her trial, the defendant stated she had been

taking medications prescribed by Dr. Blaise Wofrum. However, Dr. Cooper noted that Dr.

Wolfrum's records showed that he had not treated the defendant for approximately nine months

before her trial. There was also no record of any prescriptions from Dr. Wolfrum. According to the

records, the defendant was not under any doctor's care in June 2006.

¶8     Dr. Cooper testified that he also reviewed records from Dr. James Corcoran, who treated the

defendant for anxiety and depression about two months after her conviction. Dr. Cooper found it

relevant that the defendant did not exhibit any psychotic symptoms, such as hallucinations, delusions

or confused thinking when she saw Dr. Corcoran. He also noted that the defendant was not seen by

a psychiatrist or psychologist for any mental health treatment from the time of her trial in June 2006


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until she saw Dr. Corcoran in August 2006.

¶9      Upon examination, Dr. Cooper found the defendant to be cogent and coherent and that she

did not display any signs of disorganized thinking, confusion or psychotic symptoms.                 He

acknowledged that, before her June 2004 arrest, the defendant was hospitalized for depression and

anxiety for nine days and then reported ongoing symptoms after that point. However, based on her

clinical history, Dr. Cooper opined that, although the defendant had a history of depression, that

diagnosis did not render her unfit to stand trial. Dr. Cooper concluded that the defendant was fit to

stand trial in June 2006, because there was no clinical indication that she suffered from significant

symptoms of mental health disease that would have precluded or impeded her fitness at the time of

trial. In his opinion, the defendant was able to assist in her defense in June 2006 and was able to

understand the nature and purpose of the proceedings against her.

¶ 10    Dr. Peter Lourgos, a forensic psychiatrist, testified that he evaluated the defendant to

determine her fitness to stand trial in June 2006. He reviewed her psycho-social history, police

reports, and her medical and court records; he also interviewed the defendant. Dr. Lourgos noted

that the defendant's statement in allocution demonstrated that, at the time of trial, she had "very clear

and organized thoughts." He reviewed her medical records from 2004, which showed that the

defendant had a history of depressive symptoms and anxiety. Dr. Lourgos testified that the defendant

reported being on medication at the time of trial, but the medical records and the probation

department records do not indicate that she was on any medication. Dr. Lourgos noted that the

defendant was not being treated at the time of trial. He also noted that, after her conviction, the

defendant saw Dr. Corcoran, who documented that she suffered from depression and anxiety. Dr.


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Lourgos agreed that the defendant's symptoms seemed to demonstrate situational depression, the

result of the stress of her convictions, incarceration and pending divorce. Based upon his review of

the defendant's medical history and the court transcripts, Dr. Lourgos concluded that the defendant

understood the proceedings against her and participated in her defense. Dr. Lourgos noted that the

defendant's history of depression did not include any evidence that her illness rendered her non-

functioning as she completed her graduate education and maintained steady employment through the

time of trial. Dr. Lourgos opined that the defendant was fit to stand trial in June 2006, because she

was not suffering from a severe mental illness which would have impaired her understanding of the

nature and purpose of the proceedings against her, the roles of the various court personnel, or her

ability to assist in her defense.

¶ 11    The defense called Dr. Tony Allen Fletcher, a forensic psychologist, who testified that he

conducted a retroactive fitness evaluation of the defendant and found her unfit at the time of trial.

Dr. Fletcher stated that he relied upon collateral interviews he conducted with the defendant's family

members, prior psychiatrist and prior attorney to evaluate her state of mind at the time of trial. He

also reviewed her prior medical records. Dr. Fletcher testified that he learned that the defendant was

severely depressed and had suicidal thoughts when she was treated at River Edge Hospital in 2004.

Those records noted that the defendant had auditory hallucinations and delusional paranoid thoughts.

¶ 12    Dr. Fletcher also reviewed the defendant's medical records from August 2006, which he

testified showed that she suffered from major depression after her conviction. He noted that Dr.

Corcoran prescribed three different medications for the defendant's depression, mood, and anxiety.

Dr. Fletcher also observed that, after hearing her sentence, the defendant collapsed and was placed


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2013 IL App (1st) 120286

on suicide watch at Cermak Hospital. He noted that the defendant has had depression and anxiety

symptoms since her conviction. He also noted that Dr. Corcoran documented that the defendant had

poor concentration, depressed mood, and poor decision-making ability when he saw her after her

conviction.

¶ 13    Dr. Fletcher testified that the defendant's parents reported to him that, at the time of trial, the

defendant appeared to be staring into space and neglected her appearance. They informed him that

she did not understand the charges against her or her potential sentence. The defendant's brother

related that, during the time of trial, he would find the defendant in a fetal position in bed, crying and

incoherent. The defendant's trial attorney, Randy Franklin, told Dr. Fletcher that he knew the

defendant was on medication but he did not which drugs she was taking. Franklin reported that the

defendant deferred a few decisions to him, and he considered her to be depressed. Franklin told Dr.

Fletcher that the defendant, at times, was explosive and distraught and became confused about what

was going on.

¶ 14    Upon interviewing the defendant, Dr. Fletcher noted that she was unable to appreciate the

penalties she faced and was unable to "think things through for herself," but she understood the roles

and purposes of the court personnel and understood the "factual information about what was going

on." In his opinion, Dr. Fletcher did not believe that the defendant was fit to stand trial in June 2006,

because she had major depressive disorder with psychotic features.

¶ 15    On cross-examination, Dr. Fletcher stated that he did not think the defendant understood the

severity of the charges against her, but she knew that she was in the criminal court. He did not

believe that she understood the nature and the purpose of the proceedings. Dr. Fletcher admitted that


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he did not review the trial transcripts and was unaware that the defendant made a statement in

allocution.

¶ 16    Frederick Allen, the defendant's brother, testified that, in May 2004, the defendant called him

and threatened to kill herself. He called the police to assist her and she was hospitalized. Allen

traveled to Chicago to sign the defendant out of the hospital, but when he arrived, she was abrasive

and incoherent. He chose not to sign her out at the time. At the time of the trial, Allen observed the

defendant curled up in a fetal position and frantically crying. He described the defendant as

incoherent and stated that she cried about not wanting to lose custody of her children. Allen tried

to speak to the defendant about her trial, but she could not speak rationally about the situation. She

would tell him that probation was the only option because she had to be with her children. After her

conviction, Allen helped the defendant write her statement in allocution. However, Allen denied that

he told the defendant what to write.

¶ 17    In her statement in allocution, the defendant stated that she was sorry for what she had done.

She explained that the past several years had been traumatic considering her divorce, a battle with

cancer, and the criminal charges. She stated she cared for her elderly parents and her three children

and that her marriage had been abusive. However, Allen testified that he was unaware that the

defendant cared for their parents in any way. In allocution at trial, the defendant also stated that J.B.

had sexually harassed her at school, drugged her, and fondled her. She claimed that he threatened

her and threatened that his gang would kill her family if she told anyone about the incident.

According to the defendant, J.B. also threatened her if she did not call him regularly, which

explained the phone records admitted at trial. The defendant stated that she was too afraid to report


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any of this to the police. The defendant said that, on one occasion, J.B. raped her at her home. She

denied that the letters that her husband found, which were admitted into evidence, represented her

true feelings. The defendant expressed regret for her handling of the situation and stated that she

acted out of fear and humiliation.

¶ 18    Following the retrospective fitness hearing, the trial court concluded that, based on the

defendant's statement in allocution and the State's two doctors' testimony, that she was fit to stand

trial in June 2006. The court noted that Dr. Fletcher had not reviewed the defendant's statement in

allocution. Moreover, the court noted that Dr. Fletcher's diagnosis was major depression, which was

insufficient to render the defendant unfit to stand trial.

¶ 19    On November 17, 2011, the defendant filed a motion for reconsideration, arguing both that

she should have received a jury determination on the question of her fitness and that the evidence

supported a finding of unfitness. The trial court denied the motion, and this appeal followed.

¶ 20    The defendant first argues that, on remand, she should have been granted a hearing before

a jury on the issue of her fitness to stand trial. We disagree.

¶ 21    In the initial proceedings before the defendant's trial, the State inquired as to whether the

defendant was fit to stand trial because her medical records revealed that she had been prescribed

psychotropic medication and had received in-patient mental health treatment. The trial court and

defense counsel agreed that the defendant exhibited no signs of being unfit and therefore the court

determined that there was no bona fide doubt of fitness which would require a hearing. On appeal,

we determined that the court erred in making its determination outside of the defendant's presence.

We did not determine whether the court's conclusion that no bona fide doubt existed as to the


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defendant's fitness was erroneous. We merely remanded the "matter to the trial court for a

retrospective fitness hearing."

¶ 22    There is no constitutional right to a jury determination of a defendant's fitness to stand trial.

People v. Manning, 76 Ill.2d 235, 239, 390 N.E.2d 903 (1979). Rather, the provision for a jury

determination of a defendant's fitness is statutory in origin. Id. Section 104-12 of the Code states:

                "Right to Jury. The issue of the defendant's fitness may be determined in the first

        instance by the court or by a jury. The defense or the State may demand a jury or the court

        on its own motion may order a jury. However, when the issue is raised after trial has begun

        or after conviction but before sentencing, or when the issue is to be redetermined under

        Section 104-20 or 104-27, the issue shall be determined by the court." 725 ILCS 5/104-12

        (West 2004).

¶ 23    Whether the defendant was entitled to a jury trial on the issue of fitness is a question of

statutory interpretation subject to de novo review. People v. Giraud, 2012 IL 113116, ¶ 6, 980

N.E.2d 1107, 1109. When interpreting a statute, our primary objective is to ascertain and give effect

to legislative intent, which is done using the statutory language itself, given its plain and ordinary

meaning. Id. In determining the plain meaning of statutory terms, we consider the statute in its

entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting

it. Id. Where the language of the statute is clear and unambiguous, we must apply it as written,

without resorting to extrinsic aids to statutory construction. Id. Applying these principles, we

consider the plain language of section 104-12 of the Code.

¶ 24    Section 104-12 provides that the State or the defense may demand or the trial court may order


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a jury determination of the question of a defendant's fitness to stand trial unless one of three

situations occur: (1) the issue is raised after the trial has begun; (2) the issue is raised after conviction

but before sentencing; or (3) the issue of fitness is being redetermined under sections 104-20 or 104-

27 of the Code (725 ILCS 5/104-20, 104-27 (West 2004) (which involve secondary determinations

of fitness after an initial finding of unfitness)). It is clear that the third situation was not involved

here as this case did not involve a second determination of the defendant's fitness under either

section 104-20 or section 104-27 of the Code.

¶ 25    The parties, however, dispute whether the first two situations apply in this case. The State

argues that the defendant did not demand a jury or fitness hearing until she filed her appeal and that

a retrospective fitness determination cannot be considered to have been made in the first instance

before the trial began. The defendant argues that her first opportunity to demand a jury occurred on

remand, but the issue of her fitness was first raised before her trial.

¶ 26    Construing the language of the statute, giving its words their plain and ordinary meaning, we

conclude that section 104-12 unambiguously provides that the defendant does not have a right to a

jury determination of her fitness when the demand is made "after trial has begun." 725 ILCS 5/104-

12 (West 2012). Section 104-12 of the Code explicitly states that either the defense or the State may

demand a jury or the court may order one except "when the issue is raised after trial has begun." Id.

After trial has begun, a defendant's fitness "shall be determined by the court." Id. In this case,

neither the State nor the defense demanded nor did the court order a jury determination before the

defendant's trial commenced. During pretrial proceedings, while in the presence of the defendant,

the State raised the issue of fitness, but it did not demand a jury determination of her fitness to stand


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trial. The defendant, defense counsel, and the trial court also did not demand or order a jury

determination of her fitness. It was not until the remand, long "after trial began," that the defendant

raised the issue of a jury determination of her retrospective fitness. Because the issue was raised

after trial began, the statute provides that the court, not a jury, was to determine the defendant's

fitness to stand trial. Therefore, based on the plain language of section 104-12 of the Code, the trial

court did not err in refusing the defendant's request for a jury determination of her retrospective

fitness.

¶ 27       We note that the trial court relied on Melka, 319 Ill. App. 3d at 443, for its decision that the

defendant was not entitled to a jury determination of her retrospective fitness to stand trial. We do

not find that persuasive because, unlike the defendant here, the defendant in Melka did not request

a jury trial upon remand. Id. at 435-36. Nevertheless, the trial court's application of the statute was

correct, even if its reliance on Melka was misplaced.

¶ 28       Next, we consider the defendant's argument that the trial court erred in determining that she

was fit to stand trial. "The trial court's ruling on the issue of fitness will be reversed only if it is

against the manifest weight of the evidence." People v. Haynes, 174 Ill. 2d 204, 226, 673 N.E.2d

318 (1996). A finding is against the manifest weight of the evidence only if the opposite conclusion

is clearly evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence

presented. People v. Deleon, 227 Ill. 2d 322, 332, 882 N.E.2d 999 (2008). Under the manifest

weight standard, we give deference to the trial court as the finder of fact because it is in the best

position to observe the conduct and demeanor of the parties and witnesses. Id.

¶ 29       A defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2004)); People v.


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Stephens, 2012 IL App (1st) 110296, ¶ 90, 980 N.E.2d 654, 670, appeal denied, 982 N.E.2d 774

(2013)), and the State has the burden of proving the defendant's fitness by a preponderance of the

evidence (725 ILCS 5/104-11(c) (West 2004)). A defendant is unfit "if, because of his mental or

physical condition, he is unable to understand the nature and purpose of the proceedings against him

or to assist in his defense." 725 ILCS 5/104-10 (West 2000); Stephens, 2012 IL App (1st) 110296,

¶ 90. "Fitness speaks only to a person's ability to function within the context of a trial; a defendant

may be fit to stand trial even though his mind is otherwise unsound." Haynes, 174 Ill. 2d at 226.

Section 104-16 of the Code states that the trial court may consider evidence of the defendant's

fitness, including but not limited to: his knowledge and understanding of the charge, the proceedings,

and the functions of the participants in the trial process; his ability to observe and relate occurrences,

especially those related to the offense involved; and his social behavior and orientation to time and

place. See 725 ILCS 5/104-16 (West 2004).

¶ 30    In this case, there was ample evidence supporting the trial court's finding that the defendant

was fit to stand trial in June 2006. The State presented Drs. Cooper and Lourgos who both opined

that, despite her depression and anxiety, the defendant was able to understand the nature and purpose

of the proceedings against her and assist in her defense. Even Dr. Fletcher, the defense's expert,

admitted that the defendant understood the roles of the trial court personnel, understood she was in

criminal court, and understood the factual information surrounding the proceedings. Dr. Fletcher's

diagnosis of depression was also consistent with the diagnoses of Drs. Cooper and Lourgos and with

the diagnosis documented in the defendant's pretrial hospital stay. In addition, there was no

conclusive evidence that the defendant was taking any psychotropic medication at the time of her


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trial or that she was under any specific doctor's care at that time. Dr. Fletcher also admitted that he

had not read the defendant's statement in allocution, which demonstrated the defendant's ability to

coherently discuss the events and the evidence related to her offense. Furthermore, neither the court

nor defense counsel observed any behavior by the defendant during the pretrial proceedings or the

trial and sentencing hearing that suggested that she was unfit. Given the record before us, we cannot

conclude that the trial court's finding of the defendant's fitness is against the manifest weight of the

evidence.

¶ 31    Based on the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 32    Affirmed.




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