Appeal from the Circuit Court of Kankakee County; the Hon.
John F. Michela, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Following a jury trial, the defendant, Leroy Leiker, was convicted of two counts of indecent liberties with a child and one count of indecent solicitation of a child. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-4(a)(2), (3), 11-6.) He was sentenced to a term of four years' imprisonment.
On appeal, the defendant raises four issues: (1) whether he was denied due process of law by an improper determination of his fitness to stand trial; (2) whether the trial judge improperly denied the defendant's motion to suppress his inculpatory statements on the grounds that he had not validly waived his Miranda rights; (3) whether the trial judge erred in entering judgment on two counts of indecent liberties with a child where the underlying acts allegedly occurred almost simultaneously and thus constituted one offense; and (4) whether the ambiguity in the defendant's sentence requires a remand for resentencing or for the imposition of additional sentences.
• 1 Taken with the case is a motion by the State and objections thereto to strike one sentence in the defendant's brief and an affidavit appended to the brief, both of which relate to the defendant's sentence as recorded at Menard Psychiatric Center where the defendant is incarcerated. The purpose of the contested language is to show that the defendant's sentence is ambiguous and was wrongly recorded. Because the affidavit is evidence not of record and the disputed sentence refers to institutional records of the Menard Psychiatric Center which were not before the lower court, we allow the State's motion to strike that material from the record on appeal. People v. Kalec (1982), 109 Ill. App.3d 696, 440 N.E.2d 1254; People v. Gossage (1980), 80 Ill. App.3d 36, 399 N.E.2d 334.
Facts relevant to the issues raised on appeal will be included in this opinion where appropriate.
The defendant first argues that the trial judge improperly failed to resolve the question of his fitness to stand trial by means of a full adversarial hearing. He claims that the judge found that a bona fide doubt existed regarding the defendant's fitness and that the judge subsequently erred in failing to conduct a full adversarial fitness hearing to resolve this doubt.
The record indicates that a non-adversarial hearing was held during which a previously ordered psychological report on the defendant was admitted without any discussion. No witnesses were called or any other evidence presented. The trial judge ruled that the defendant was fit to stand trial based solely on the psychologist's report.
The State responds to the defendant's first issue with a threefold argument. First, that the trial judge made no finding that a bona fide doubt existed regarding the defendant's fitness to stand trial and thus that the failure to hold a full adversarial hearing was not reversible error. Specifically, the State argues that a psychological examination of the defendant ordered by the trial judge was for the purpose of determining whether a bona fide doubt of the defendant's fitness existed not because such a doubt existed. Second, the State contends that the defendant has failed to show that he was prejudiced by the judge's error, if any. Third, the State argues that the defendant has waived any issue regarding the psychological report since he failed to object to the summary admission of the report in the lower court to raise the issue in a post-trial motion.
Addressing the waiver issue first, we hold that the alleged error regarding the determination of the defendant's fitness to stand trial is of such constitutional dimension that we will take cognizance of it under Supreme Court Rule 615(a) (87 Ill.2d R. 615(a)) despite the defendant's failure to object to the admission of the psychological report or to raise the issue in a post-trial motion. People v. Teague (1980), 83 Ill. App.3d 990, 404 N.E.2d 1054.
• 2 The failure to follow procedures adequate to protect a defendant's right not to be tried while incompetent violates the defendant's due process rights. (Pate v. Robinson (1966), 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836; People v. Teague (1980), 83 Ill. App.3d 990, 404 N.E.2d 1054.) Incompetency is defined as an inability to understand the nature and purpose of the proceedings and/or cooperate with counsel. Once a determination of incompetency has been made, trial may not be had until a restoration to fitness has occurred. Ill. Rev. Stat. 1981, ch. 38, par. 104-10 et seq.
• 3 When facts raising a bona fide doubt of a defendant's fitness are made known to the trial court, the court must hold a fitness hearing. (Ill. Rev. Stat. 1981, ch. 38, par. 104-11; Pate v. Robinson (1966), 383 U.S. 375, 15 L.Ed.2d 815, 86 S.Ct. 836.) We are concerned, in the case at bar, with the question of when and how a bona fide doubt may be raised. If no such doubt is raised, then the defendant may be tried without the necessity of an adversarial hearing to determine competency.
The defendant asserts a bona fide doubt existed in the trial judge's mind when, on July 7, 1982, at a hearing on the defendant's motion for the appointment of an expert to determine fitness, the judge stated: "It appearing to the Court the Defendant may be unable to stand trial, motion to determine Defendant's fitness is referred to Dr. Erwin J. Baukus." If, at that time, the trial judge believed a bona fide doubt of the defendant's fitness existed, the ensuing examination was conducted for the purpose of resolving the ultimate question of fitness and should have been considered by the trial judge only in the context of a full adversarial hearing. On the other hand, if the defendant's assertions of incompetency in his motion for appointment of an expert did not create a bona fide doubt of his fitness, then the examination by Dr. Baukus was for the purpose of determining whether a bona fide doubt of the defendant's fitness existed.
• 4 The determination of whether a bona fide doubt of the defendant's fitness exists rests within the sound discretion of the trial judge, who is in a superior position to observe the defendant and his conduct. (People v. Bivins (1981), 97 Ill. App.3d 386, 422 N.E.2d 1044.) In the instant case, we find no abuse of the trial judge's discretion in ruling that no bona fide doubt existed to warrant a full adversarial hearing on the question of the defendant's fitness to stand trial. The trial judge appropriately considered the report by Dr. Baukus in reaching his conclusion that no bona fide doubt existed. (People v. Plecko (1970), 46 Ill.2d 301, 263 N.E.2d 66.) Neither the assertions by the defendant in his motion for the appointment of an expert nor the trial judge's comments that the defendant might be unable to stand trial were sufficient to raise a bona fide doubt.
The second issue raised by the defendant is whether the trial judge erred in refusing to suppress certain incriminating statements made by the defendant to the police. The defendant's suppression motion was based in part on the allegation that his mental incapacity precluded a knowing and intelligent waiver of his Miranda rights. Reliance was placed on the psychological report prepared by Dr. Baukus. This report indicated that the defendant's intellectual capacity was above that of mental retardation but in the borderline range of intelligence. The defendant's IQ was measured at 75, giving him a mental age of 11 years, 11 months. His grammar, syntax and vocabulary were rated ...