APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 14, 1977.
Gregory Pierce, the defendant, appeals his convictions for attempt murder and aggravated battery, and appeals the order of the circuit court of Cook County denying his amended post-conviction petition.
The defendant was charged by indictment with attempt murder (Ill. Rev. Stat. 1971, ch. 38, par. 8-4), and with two counts of aggravated battery (Ill. Rev. Stat. 1971, ch. 38, par. 12-4(b)(1)), relating to the shooting of Herman Jones on May 6, 1972. On October 20, 1972, a bench trial commenced, defendant having waived trial by jury. Pierce testified as the sole witness in his behalf, generally denying the allegations of the State's witnesses. He also denied that the gun received in evidence was his and that he shot Herman Jones. Pierce was found guilty on all counts. At the hearing in aggravation and mitigation immediately following the trial, the defendant's mother, Mrs. Ginnie Pierce, testified that "sometime he don't seem like he know what he is doing," and she thought he should see a doctor. Following Mrs. Pierce's testimony, the trial judge sua sponte ordered the defendant to undergo a behavioral clinic examination.
The defendant was examined on November 9, 1972, and in the psychiatrist's opinion he was incompetent to be sentenced. On January 5, 1973, a competency hearing was held. The court offered the defense a jury determination of the issue, but defense counsel waived a jury. Dr. Malek, a psychiatrist, testified that he had examined the defendant on November 9, 1972, and it was his opinion that Pierce was incompetent. He further testified that his opinion only related to defendant's competency on November 9, and that he had no opinion of defendant's competency on October 20, 1972, the date of his trial. Defendant was found incompetent to be sentenced and remanded to the Department of Mental Health.
On October 12, 1973, the defendant appeared before Judge Dunne for a restoration hearing. The defendant did not demand a jury and, proceeding by stipulation, was found fit to be sentenced. He was thereafter sentenced to a term of 7 to 20 years for attempt murder with no sentence imposed on the aggravated battery counts. Notice of appeal was filed on October 15, 1973.
On January 28, 1976, defendant filed an amended post-conviction petition. A motion to dismiss the petition was filed by the State and, after a hearing, the petition was dismissed. An appeal was taken from this order which was consolidated with defendant's direct appeal.
The issues presented for review are (1) whether defendant knowingly waived his right to trial by jury where the trial judge sua sponte ordered a behavioral clinic examination of the defendant at the aggravation and mitigation hearing which was on the same day as the trial and jury waiver; (2) whether section 5-2-2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-2(b)) is unconstitutional; (3) whether defendant's convictions for aggravated battery must be reversed; and (4) whether the trial court erred in dismissing defendant's amended post-conviction petition.
Regarding the first issue presented for review, defendant relies solely on People v. Polito (1974), 21 Ill. App.3d 182, 315 N.E.2d 84, and he proposes that it is sufficiently analogous to the present case so as to lend support to his contention that where there was sufficient doubt of appellant's competence on the day of the jury waiver, so as to cause the court on its own motion to order a behavioral clinic examination, appellant did not knowingly waive his right to trial by jury. In Polito, the court found that the defendant, who had previously been adjudicated incompetent, had an absolute statutory right under section 104-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 104-2) (repealed by Pub. Act 77-2097, effective Jan. 1, 1973) to a trial by jury on the issue of restoration. Once the defendant had been adjudicated incompetent to stand trial, he could not knowingly and intelligently waive his statutory right to a jury at the restoration hearing. The instant case does not involve a defendant who was adjudicated incompetent to stand trial. Furthermore, the jury waiver questioned herein is a trial jury waiver, not a waiver at a restoration hearing or at a competency hearing. Therefore, the Polito case is inapposite.
It is within the sound discretion of the trial judge to decide whether the facts and circumstances of a case raise a bona fide doubt of defendant's competency so as to require a hearing. People v. Daliege (1976), 40 Ill. App.3d 706, 709, 352 N.E.2d 247, 250.
• 1 The record shows that the defendant was competent at the time of his jury waiver, that he competently testified in his own behalf, and that at no time did counsel complain that the defendant could not or would not cooperate with him. There was no showing of a history of mental disorders or of recent psychiatric hospitalization at the trial which could raise a bona fide doubt of defendant's competence to stand trial. (People v. Fontaine (1975), 28 Ill. App.3d 450, 328 N.E.2d 685; People v. Chambers (1973), 16 Ill. App.3d 177, 305 N.E.2d 634 (abstract opinion).) No motion was made regarding defendant's competence to stand trial before or during the trial, nor did any circumstances exist, nor was any evidence presented, which would raise a bona fide doubt as to defendant's competence before or during trial, which would compel the court to conduct an unrequested hearing into the defendant's competency. Because the trial court did not possess a bona fide doubt of defendant's competency to stand trial, it did not abuse its discretion in failing to order a competency hearing.
• 2 The judge ordered defendant to undergo a behavioral clinic examination after judgment but before sentencing. He ordered the examination after the defendant's mother testified at the aggravation and mitigation hearing which followed the trial. Referral to the behavioral clinic does not of itself raise a bona fide doubt as to the competency of the accused. (People v. Franklin (1971), 48 Ill.2d 254, 257, 269 N.E.2d 479, 481.) In fact, after the judge ordered the test, he remarked that the defendant's testimony and manner in court evidenced no irregularities, but he would be happy to have the test run because he is not a psychiatrist or a psychologist. Absent other indications of incompetency, the judge did not possess a bona fide doubt as to defendant's competency when he ordered the examination.
Assuming arguendo that the judge did possess a bona fide doubt as to defendant's competency at the aggravation and mitigation hearing, such doubt would have been raised after judgment but before sentencing, and, therefore, it would relate to defendant's competency to be sentenced, not to his competency to stand trial. In 1973, this view was codified by section 5-2-1(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-2-1(b)), which provides that the question of defendant's fitness may be raised before or during trial and the question of the defendant's fitness to be sentenced may be raised after judgment but before sentence.
• 3 Because no bona fide doubt as to defendant's competency to stand trial was ever raised, the defendant was competent to stand ...