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People v. Mcbrien





Appeal from the Circuit Court of Macoupin County; the Hon. Joseph P. Koval, Judge, presiding.


Defendant was charged by information with one count of aggravated battery, one count of criminal trespass to a residence, and two counts of unlawful use of weapons. These charges arose out of an incident where the defendant entered a vacant house, refused to come out at the request of police, sprayed an officer with mace, allegedly fired a gun, and was later found inside in possession of certain firearms. After a competency hearing held May 21, 1985, a jury found the defendant unfit to stand trial. The jury also found there was no substantial probability that the defendant would attain fitness within one year even if provided with a course of treatment.

The defendant thereupon filed a motion for a discharge hearing as provided for under sections 104-23 and 104-25 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1983, ch. 38, pars. 104-23, 104-25). The circuit court of Macoupin County, upon hearing the evidence at the July 10, 1985, hearing, acquitted defendant of two of the counts against him. However, because the court believed there existed sufficient grounds for finding the defendant guilty of the remaining two counts, it denied acquittal as to count I (aggravated battery) and count IV (unlawful use of weapons). Defendant was then remanded to the custody of the Department of Mental Health and Developmental Disabilities, with the treatment period set at 15 months. He appeals, contending that the trial court erred in not ordering acquittal of all four counts in the information.

Initially, we note the Code provides that the defendant is properly able to appeal from what is in essence an order of nonacquittal after a discharge hearing. (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(f).) We pause to consider those sections of the Code setting out the procedures and findings surrounding discharge hearings, a discussion of some merit when considering the substantive issues raised.

Article 104 of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 104-10 et seq.) sets out a comprehensive scheme for criminal defendants found unfit to stand trial. One of the primary objectives in enacting these provisions was to ensure that criminal defendants who are found unfit, and for whom there is no substantial possibility of attaining fitness, will not be indeterminately institutionalized. People v. Raseaitis (1984), 126 Ill. App.3d 600, 605, 467 N.E.2d 1098, 1102; Report, Governor's Commission for Revision of the Mental Health Code of Illinois of 1976 (1976).

The principal vehicle for achieving this objective is a "discharge hearing." A defendant may move for such a hearing pursuant to section 104-25 upon a finding that there is no substantial probability of his attaining fitness within one year. (Ill. Rev. Stat. 1983, ch. 38, par. 104-23(a).) In other instances, a hearing may be called where a defendant remains unfit one year after the initial finding of unfitness, or when it is determined that the defendant will not attain fitness within that one-year period. Ill. Rev. Stat. 1983, ch. 38, par. 104-23(b).

The details of a discharge hearing are set forth under section 104-25. Any such hearing is to be conducted by the court sitting without a jury. The purpose of a discharge hearing is "to determine the sufficiency of the evidence" of the defendant's guilt of the crimes with which he is charged. (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(a).) If the evidence presented by the State fails to prove the defendant's guilt beyond a reasonable doubt, or if he is found not guilty by reason of insanity, the court "shall" order a judgment of acquittal. (Ill. Rev. Stat. 1983, ch. 38, pars. 104-25(b), (c).) The converse of this, of course, is that if the court does not order acquittal, then the State must have met its burden of proving guilt beyond a reasonable doubt. Our supreme court has stated that a discharge hearing:

"[I]s to be an `innocence only' hearing, that is to say, a proceeding to determine only whether to enter a judgment of acquittal, not to make a determination of guilt. The question of guilt is to be deferred until the defendant is fit to stand trial. That is clear from the language of section 104-25 of the Act." People v. Rink (1983), 97 Ill.2d 533, 543, 455 N.E.2d 64, 69.

Returning to the text of the statute, section 104-25(f) provides:

"If the court fails to enter an order of acquittal the defendant may appeal from such judgment in the same manner provided for an appeal from a conviction in a criminal case." Ill. Rev. Stat. 1983, ch. 38, par. 104-25(f).

Interestingly, then, while guilt is not to be technically established, any order denying acquittal is directly appealable. Therefore, the defendant here is permitted to appeal the order of the court refusing to acquit him of counts I and IV.

• 1, 2 Some additional comments concerning the discharge hearing statute are necessary. Significantly, only if the State sustains its burden of proof at the discharge hearing may a defendant be remanded for a period of treatment longer than the one-year period from the finding of unfitness for in section 104-23. (People v. Rink (1983), 97 Ill.2d 533, 455 N.E.2d 64.) Defendants are not to be committed solely because they are unfit to stand trial; the primary foundation for commitment is evidence of criminal acts or offenses perpetrated. (People v. Polachek (1984), 128 Ill. App.3d 200, 205, 470 N.E.2d 584,587; People v. Raseaitis (1984), 126 Ill. App.3d 600, 467 N.E.2d 1098.) By statute, the defendant's extended commitment period is dependent on the most serious charge upon which the State has sustained its burden. For Class 2, 3, or 4 felonies, the maximum treatment period is 15 months; for Class 1 or Class X felonies, the maximum treatment period is two years; for a charge of murder, five years. Ill. Rev. Stat. 1983, ch. 38, par. 104-25(d)(1), (2).

Section 104-25(g) governs the procedures at the expiration of the extended treatment periods, providing in part that a court may proceed to trial upon a finding at this time that the defendant is fit. (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(g)(1).) If the defendant continues to be unfit, he shall either be remanded for civil commitment or released. (Ill. Rev. Stat. 1983, ch. 38, pars. 104-25(g)(2), (3).) In no event may any treatment period exceed the maximum sentence the defendant would have been subject to had he or she been actually convicted in a criminal proceeding. Ill. Rev. Stat. 1983, ch. 38, par. 104-25(g)(4).

We may now briefly summarize the relevant testimony adduced at the discharge hearing. Staunton Chief of Police Larry Grabruck stated he received a telephone call on September 24, 1984, indicating someone had broken into a vacant home. When Chief Grabruck arrived at the house, he discovered the defendant whom he had known for years, inside with the television and air conditioner turned on. All the doors were locked. Chief Grabruck asked the defendant to leave the house and talk, but defendant stated it was his house, he did not have to leave, and he would not allow anyone else to enter. After continuing to knock on the door for several minutes, Grabruck suddenly felt a liquid falling on him. He looked up ...

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