APPEAL from the Circuit Court of Cook County; the Hon.
BENJAMIN S. MACKOFF, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
On March 12, 1973, after a bench trial, John Andson (petitioner) was found guilty of rape (Ill. Rev. Stat. 1971, ch. 38, par. 11-1) and sentenced to 5 to 15 years. On July 22, 1974, petitioner filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1973, ch. 38, par. 122-1 et seq.). Subsequently, he filed a supplemental petition wherein he alleged, inter alia, that there existed a bona fide doubt as to petitioner's fitness to stand trial in March of 1973. After a hearing, petitioner was granted a new trial. The State appeals.
We will first digress to consider petitioner's contention that the State has no right to appeal. Petitioner concedes that under Supreme Court Rule 27-1, in effect from January 1, 1964 to January 1, 1967, the State had the right to appeal from a final judgment in a post-conviction case. This is shown in People v. Joyce (1953), 1 Ill.2d 225, 115 N.E.2d 262, citing older authorities and also in People v. Hryciuk (1954), 5 Ill.2d 176, 177-78, 125 N.E.2d 61. In Joyce, the supreme court held that since a post-conviction proceeding "is civil in its nature, either the State or the defendant is entitled to a review of the judgment." (Joyce, 1 Ill.2d 225, 227.) The civil nature of post-conviction proceedings appears from many cases. See People v. Harper (1969), 43 Ill.2d 368, 372, 253 N.E.2d 451; People v. Clements (1967), 38 Ill.2d 213, 215, 230 N.E.2d 185; People v. Morris (1977), 47 Ill. App.3d 732, 736, 365 N.E.2d 424.
When Supreme Court Rule 651 was adopted to replace the former rule, paragraph (a) was added thereto. This paragraph presently reads (58 Ill.2d R. 651(a)):
"An appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located."
This rule also included paragraph (d) which provided that procedure for appeals in post-conviction cases "shall be in accordance with the rules governing criminal appeals, as near as may be." Petitioner depends on this paragraph (d) of the rule in support of his argument. Rule 651(d) is on its face procedural only. Rule 651(a) is substantive. As we would expect, the later cases proceed on the theory that the People have the right to appeal to the appellate court from final judgments in post-conviction cases. See People v. Thomas (1972), 51 Ill.2d 39, 41, 280 N.E.2d 433.
Turning now to the merits of this appeal, the evidence included certain of petitioner's medical records. The evidence showed that in Arizona in 1969 petitioner was found unfit to stand trial. On September 2, 1969, he was committed to Arizona State Hospital. He was diagnosed as a passive-aggressive personality. On April 18, 1970, petitioner left the hospital on unauthorized absence.
On June 7, 1970, petitioner was admitted to St. Elizabeth's Hospital in Washington, D.C., by order of the United States Court for the Western District of Virginia for a mental examination and report. The staff of that hospital diagnosed petitioner to be mentally incompetent for trial based on severe brain damage and inability to reason. They also found that at the time of the charged offense, April 26, 1970, petitioner knew of the criminality of the act but was unable to conform his behavior to legal requirements. He was diagnosed as suffering from mental illness, more specifically, alcoholic deterioration (psychosis with organic brain syndrome), psychosis with brain trauma, non-psychotic organic brain syndrome with epilepsy, and mild mental retardation with psychosocial deprivation. On the basis of this diagnosis petitioner was discharged from St. Elizabeth's on November 4, 1970, and committed to Southwestern State Hospital in Virginia by judicial order of the Municipal Court of Virginia.
At Southwestern the staff diagnosed petitioner to be suffering from schizophrenia, schizophrenia chronic undifferentiated type and/or psychosis with epilepsy and psychosis associated with other cerebral condition. Petitioner escaped from Southwestern on January 10, 1971, and was classified as discharged on February 8, 1971.
Petitioner was readmitted to St. Elizabeth's Hospital on June 2, 1971, by order of the United States District Court for the District of Maryland for a determination as to his competency and sanity in connection with an alleged offense on or about August 4, 1970. Dr. Robert Robertson found petitioner to have a factual and rational understanding of the proceedings pending against him. The doctor concluded that petitioner could rationally assist counsel in his own defense. However, the doctor also found that petitioner suffered from mental diseases (the same diagnosis as in his first admission) which substantially impaired his behavior controls so that although petitioner knew the criminality of his act, he was not able to conform his behavior to the requirements of the law. The doctor also added that petitioner's release to the community would endanger the safety of other persons, himself, property and the public interest in general. On the basis of this diagnosis, the indictment pending against petitioner was dismissed.
After petitioner's 1973 conviction for rape in Cook County, he was sent to the Illinois Department of Corrections. He was diagnosed as suffering from schizophrenic reaction, chronic undifferentiated type, and chronic brain syndrome with a convulsive disorder. In October of 1973, he was transferred to Menard Psychiatric Center.
In June 1977, at the request of an assistant public defender, Dr. John B. Goldsborough examined petitioner and his medical records. In a letter addressed to the public defender, Dr. Goldsborough stated that "it is difficult for any examiner, expert or otherwise, to reach totally dependable conclusions about incidents which occurred several years before the reevaluative examinations are made. However, some considerations appear obvious." Keeping that in mind, Dr. Goldsborough concluded that it must be assumed that at the time of the charge and trial for rape, petitioner was "mentally ill and/or defective and has been for many years probably back into his childhood". In response to the question whether petitioner was legally sane at the time of the alleged offense, Dr. Goldsborough stated that "[s]ince the disease processes, so diagnosed, are medically chronic, irreversible, and continuous, it can be assumed that the specifications for insanity were present." The doctor further stated that he doubted that petitioner fully understood anything about the trial for rape.
In Dr. Goldsborough's evidentiary deposition, he stated that petitioner is suffering from schizophrenia, undifferentiated and paranoid, and chronic brain syndrome, namely epilepsy or a convulsive disorder. He further stated there is a reasonable doubt that petitioner understood what was going on in the trial and that petitioner's mental illness is continuous and was present before, during, and after the trial. He doubted that petitioner "knew or possibly even cared about the proceedings."
The State presented the testimony of Robert Schulz, petitioner's court-appointed attorney during the rape trial. Schulz testified that he had been an assistant public defender from 1968 to 1972. He had tried 12 to 15 jury cases and 75 to 80 bench cases and interviewed hundreds of defendants in the process. During his career as a public defender, Schulz estimated that he filed 100 motions for Behavior Clinic ...