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08/06/87 the People of the State of v. Jerry Thompson

August 6, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JERRY THOMPSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

511 N.E.2d 993, 158 Ill. App. 3d 860, 110 Ill. Dec. 816 1987.IL.1137

Appeal from the Circuit Court of Mercer County; the Hon. Jeffrey W. O'Connor, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. SCOTT and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

The defendant, Jerry Thompson, was charged by information with the offense of armed violence. (Ill. Rev. Stat. 1985, ch. 38, par. 33A-1(a).) The defendant entered an open plea of guilty but mentally ill. The trial court conditionally accepted the plea pending the outcome of a future hearing on defendant's mental status at the time the crime was committed. After a hearing was held, the defendant was found guilty but mentally ill and was sentenced to a term of 20 years. On March 9, 1985, the defendant filed a petition for relief under the Illinois Post-Conviction Act. (Ill. Rev. Stat. 1985, ch. 38, par.122.) The defendant appeals the trial court's denial of his petition for post-conviction relief.

Defendant was arrested on March 2, 1982, for raping a woman at gunpoint. On March 11, 1982, on the motion of defendant's attorney, the trial court ordered that the defendant be examined to determine his fitness for trial. The defendant was examined by Dr. Thomas Tourlentes, executive director of the Comprehensive Community Mental Health Center of Rock Island and Mercer Counties.

On March 17, 1982, the State's Attorney and defense counsel stipulated to the written report of Dr. Tourlentes that the defendant was not fit to stand trial. The trial court then entered an order finding the defendant unfit to stand trial and ordering him transferred to the Department of Mental Health for a determination of whether there was a substantial probability that the defendant, if provided with a course of treatment, would attain fitness within one year. The court ordered the Department, pursuant to sections 104-16 and 104-17 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, pars. 104-16, 104-17), to report to the court within 30 days its opinion as to the probability of the defendant's attaining fitness within one year.

On August 30, 1982, a restoration hearing was held to determine whether the defendant was fit to stand trial. The State's Attorney and defense counsel stipulated to the reports of a psychiatrist and the superintendent of the Chester Mental Health Center, who found that the defendant was fit to stand trial. Defense counsel stated to the court that he had spoken with the defendant and that it was his opinion that the defendant did understand the charge against him. The court accepted the stipulations of the parties and, based on such stipulations and the medical reports of the doctors, found that the defendant was fit to stand trial.

On December 15, 1982, the defendant entered a plea of guilty but mentally ill to the charge of armed violence. The trial court made a conditional acceptance of the plea pending the outcome of another hearing to determine the defendant's mental status at the time of the offense. The hearing was held on February 4, 1983, and the trial Judge found the defendant guilty but mentally ill at the time of the commission of the offense.

On appeal, defendant contends that the trial court's denial of his petition for post-conviction relief was against the manifest weight of the evidence because: (1) the August 30, 1982, fitness hearing and stipulations offered at the hearing were constitutionally insufficient to establish defendant's fitness to stand trial or to plead; (2) his plea was entered and accepted in violation of his due process rights; and (3) the defendant was denied effective assistance of counsel because of a number of alleged errors by his appointed attorney.

Defendant first argues that he was denied due process of law because the stipulations as to his fitness at the August 30, 1982, hearing did not meet the minimum standards necessary for due process as discussed in People v. Lewis (1984), 103 Ill. 2d 111, 468 N.E.2d 1222. In each of the two cases consolidated in Lewis, the defendant was originally found not fit to stand trial. In subsequent proceedings, the defendants were found fit to stand trial solely on the stipulation of the State's Attorney and defense counsel. The parties stipulated that if called as witnesses, two psychiatrists would testify that in their opinion the defendants were now fit to stand trial. The trial courts accepted the stipulations and found the defendants fit to stand trial.

In reversing the trial court judgments, the appellate court relied primarily on People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219, finding that there was no showing in the records that the circuit court exercised discretion in finding that the defendants were restored to fitness. In Greene, at a restoration hearing to determine if the defendant was fit, the State and defense counsel stipulated to the findings of two psychiatrists who had examined the defendant and concluded in two written reports that he was fit for trial. The following conversation took place at the restoration hearing in Greene :

"'MR. ROBBINS [prosecutor]: Your Honor, on behalf of the people of the State of Illinois, we would be willing to stipulate to the findings of the two psychiatrists as contained in the reports and to ...


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