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People v. Kessler

OPINION FILED MARCH 21, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

GERALD KESSLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Carroll County; the Hon. Richard E. DeMoss, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 25, 1983.

Gerald Kessler appeals from the denial of his motion to withdraw his pleas of guilty to the offenses of criminal damage to State-supported property (Ill. Rev. Stat. 1981, ch. 38, par. 21-4), and to driving while under the influence of intoxicating liquor (Ill. Rev. Stat. 1979, ch. 95 1/2, par. 11-501(a)). He seeks also to vacate the conviction and sentence of one year's probation on the criminal damage charge and 10 days in the county jail for the charge of driving while intoxicated. He contends that his prior adjudication as an incompetent created a prima facie presumption of unfitness to stand trial; that the trial court erred in failing to inquire into his fitness before accepting his plea; and that his plea was not knowingly and understandingly made.

The bystander's report shows that on April 28, 1981, the judge informed the defendant, who appeared pro se, of his right to counsel, to be appointed if he were indigent, of the nature of the charges, the range of penalties, and his right to plead not guilty and to have a trial. After defendant said he wished to plead guilty to both charges the court stated that defendant would be giving up his right to representation by an attorney and his right to a trial. The defendant answered that he understood. The defendant read the written guilty plea forms and signed them. After finding a sufficient factual basis for the pleas, judgments of conviction were entered.

On May 1, 1981, defendant's then attorney filed a motion to withdraw the defendant's guilty plea. At this hearing defendant admitted that he had been advised of his rights and said that he had understood the charges "pretty well."

In response to a further question defendant said that he did not take care of his own affairs, that his conservator manages his affairs, but that he took care of himself "a little bit" and that the conservator managed only his money.

Defense counsel has filed proof of the petition and order resulting in the appointment of a conservator for defendant on May 31, 1977. The order generally states that the defendant "is an incompetent as defined in Section 11-2 of the Probate Act *fn1 and incapable of managing his estate."

• 1, 2 Neither the defendant nor the State made a request for a fitness hearing at any time. However, because of the fundamental constitutional nature of the fitness requirement, the trial court has a duty to order a fitness hearing sua sponte once facts are brought to its attention which raise a bona fide doubt of the accused's fitness. (People v. Murphy (1978), 72 Ill.2d 421, 430; People v. Tilson (1982), 108 Ill. App.3d 973, 975.) The statutory provision in effect during the course of the proceedings below provided that the defendant, the State, or the court may raise the question of the accused's fitness to stand trial and be sentenced at any appropriate time before, during, or after trial. "When a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." (Ill. Rev. Stat. 1981, ch. 38, par. 104-11(a); People v. Barnard (1981), 95 Ill. App.3d 1132, 1135.) Whether a bona fide doubt exists is a decision which rests largely within the discretion of the trial court which, unlike the court of review, was in a position to observe the accused and evaluate his conduct. People v. Murphy (1978), 72 Ill.2d 421, 426.

• 3 A defendant is presumed to be fit to stand trial and be sentenced. (Ill. Rev. Stat. 1981, ch. 38, par. 104-10.) Fitness for trial or sentencing consists of the two qualities enumerated in section 104-10 of the Code of Criminal Procedure of 1963: the ability of the accused to understand the nature and purpose of the proceedings against him and to assist in his defense. Ill. Rev. Stat. 1981, ch. 38, par. 104-10; People v. Tilson (1982), 108 Ill. App.3d 973, 975.

Although the determination of whether there is a bona fide doubt of fitness depends upon the particular facts of the individual case (People v. Murphy (1978), 72 Ill.2d 421, 435), certain well-defined principles have emerged which provide guidance. Fitness involves only the accused's ability to function within the context of the legal proceeding; it does not refer to competency in other areas. Thus, a defendant may be fit for trial even though his mind is otherwise unsound. (People v. Murphy (1978), 72 Ill.2d 421, 432-33; People v. Tilson (1982), 108 Ill. App.3d 973, 975.) No one factor in itself raises a bona fide doubt of the defendant's fitness to stand trial. (People v. Davenport (1980), 92 Ill. App.3d 244, 246.) In particular, the mere fact that the accused suffers a mental disturbance or requires psychiatric treatment does not necessarily raise a bona fide doubt regarding his ability to understand the nature and purpose of the proceedings against him or to assist in his defense. (People v. Heral (1976), 62 Ill.2d 329, 336; People v. Jones (1982), 109 Ill. App.3d 120, 130.) Furthermore, prior mental problems or even prior commitment to a mental hospital do not by themselves raise a bona fide doubt of the defendant's fitness. (People v. Jones (1982), 109 Ill. App.3d 102, 129-30.) In addition, the defendant's limited mental capacity does not require the trial court to question to accused's fitness. People v. Murphy (1978), 72 Ill.2d 421, 432.

• 4 While the appointment of a conservator for defendant could have been on the basis of incapability of managing either person or estate under the statute then in effect, the adjudication order appears to support the conclusion of the trial judge that the conservator was appointed in the civil matter for the purpose of managing his estate or affairs and not his person. The evidence at the hearing to withdraw the guilty plea supports the conclusion that the conservator managed only defendant's financial affairs.

We also note that the decisions on which the defendant principally relies involve feeble-minded persons adjudicated incompetent under a former provision which required that the party be incapable of managing both himself and his affairs. (See Ill. Rev. Stat. 1947, ch. 23, par. 346; People ex rel. Wiseman v. Nierstheimer (1948), 401 Ill. 260, 274.) In fact, defense counsel argues only that since defendant had been adjudicated incapable of managing his own affairs he also should have been presumed incapable of pleading guilty. We cannot agree with this general statement, which is unsupported.

Here, the trial judge's comments reveal that the defendant was advised of his rights under Supreme Court Rules 401(a) and 402(a) (87 Ill.2d Rules 401(a), 402(a)) and stated that he understood them. The defendant himself testified during the hearing on his motion to withdraw his guilty pleas that he "pretty well" understood the rights the trial court indicated to him, including the charges to which he was pleading guilty. In denying the defendant's motion, the trial court properly remarked that a distinction existed between incompetency for purpose of managing one's affairs and the question whether an individual was unfit to enter guilty pleas to criminal charges. The court specifically found that the defendant "seemed fully aware" of what he was doing on the day he entered his guilty pleas and the court admonished him. Based on his observations of the defendant's conduct at the arraignment, the trial judge concluded that the defendant was sufficiently competent to understand substantially the information which the court conveyed to him.

• 5 In our opinion the court did not abuse its discretion in failing, sua sponte, to conduct a fitness hearing at the time the defendant pleaded guilty or thereafter. First, it is clear that the trial court did not know of the adjudication of incompetency with the appointment of a conservator of defendant's estate at the time the defendant pleaded guilty. In addition, apparently nothing about the defendant's conduct at the time he entered the guilty pleas demonstrated any indication of his unfitness to understand the nature of the charges against him or the purpose of the guilty plea proceedings. The trial judge had an ample opportunity to observe the defendant's demeanor, behavior and conversation during the guilty plea proceedings, and again during the subsequent hearing on his motion to withdraw the pleas. We agree with the finding of the trial court that ...


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