APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
532 N.E.2d 442, 177 Ill. App. 3d 492, 126 Ill. Dec. 757 1988.IL.1821
Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.
JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant Alced Green was charged with rape, deviate sexual assault, indecent liberties with a child, and aggravated incest. The victim, E.C., was defendant's 13-year-old daughter. After having been found unfit to stand trial, defendant was committed to Manteno Mental Health Center for treatment. Approximately one year later, he was found fit to stand trial. After a bench trial, he was found guilty of all of the charges and was sentenced to a 40-year extended prison term. Defendant appeals his sentence and, alternatively, his convictions on the basis of an inadequate fitness hearing. He also appeals the denial of his motion for a new trial on the ground of newly discovered evidence. These two appeals have been consolidated.
The facts are mostly undisputed. On the morning of January 14, 1984, defendant picked up his daughter at her home, where she lived with her mother and sister. The two of them spent the day visiting relatives and started to return to E.C.'s home at approximately 9 p.m. They got off a bus two blocks before the right stop and defendant, whom E.C. said had been drinking, went into an alley to throw up. When he returned, they went into a nearby building to an empty, first-floor room that was lit only by a streetlight shining through the window. Defendant told E.C. that he was not her father and that she should take off her clothes. When she first refused, he started to undress her and she finally did as she was told. Subsequently, defendant forced his daughter to commit three acts of fellatio, two acts of vaginal intercourse, and one act of anal intercourse. During this time, E.C. heard people in the alley and screamed for help. Defendant then slapped her and threatened her with a knife. Afterwards, defendant told E.C. that she was still his baby and began to cry.
Defendant and E.C. arrived at her home around 12:15 a.m. E.C.'s mother testified that when defendant dropped his daughter off he appeared very sad and said, "[If] only I had a bullet." After defendant left the home, E.C. told her mother of the occurrence and the police were called. Police officers took E.C. and her mother to the building, where they found E.C.'s underwear, belt, gloves, and a knife. E.C. was then taken to a hospital for examination where tests confirmed that sexual intercourse had recently taken place.
On June 26, 1984, Dr. Gilbert Bogen of the psychiatric institute of the circuit court of Cook County examined defendant and found him to have been legally sane at the time of the offense, but incompetent to stand trial on the examination date. A year later, both counsel stipulated that defendant had been reexamined by Dr. Bogen, who would testify that he was now mentally fit to stand trial with medication for testimonial purposes. The doctor found that defendant understood the nature of the charges and was able to cooperate with his attorney. After the stipulation, defense counsel stated that he believed defendant would cooperate with him and then asked defendant if he would, to which defendant responded affirmatively.
E.C. and her mother testified at trial. No evidence was presented on defendant's behalf. The trial court found defendant guilty on all counts and sentenced him on the rape and deviate sexual assault convictions, noting that the indecent liberties with a child and aggravated incest convictions merged into the former charges. Factors in aggravation included the victim's age (13), the fact that she was defendant's daughter, and the threatening of her with a knife. Mitigation factors consisted of defendant's age (31), no prior felony convictions, his unhappy childhood, and past problems with alcohol and drugs. In addition, defendant had a history of psychiatric problems and short hospitalizations therefor. Defense counsel called the court's attention to defendant's showing of immediate remorse after the offense and requested a six-year sentence. The court gave defendant an extended-term sentence of 40 years after finding that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.
Thereafter defendant filed a motion for a new trial based on newly discovered evidence. At the hearings on the motion, two witnesses testified for defendant. Ethel Kitchen, with whom defendant had lived off and on for about nine years, said she thought of him as a son. She alleged that E.C. also had lived with her at various times, and testified that E.C. told her that defendant had not raped her; she was instead raped by her mother's boyfriend. Kitchen said that she never had a chance to tell defendant's lawyer about the conversations, although she had told defendant. Kitchen's granddaughter, Marcella Webster, also testified that E.C. had told her that she had been raped by her mother's boyfriend, not her father. E.C. denied making any of these statements and testified that she had never lived in, or stayed overnight at, Kitchen's home. E.C. stated that after defendant's trial, Kitchen had tried to get her to say the boyfriend was the offender. After the hearings, the trial court denied the motion for a new trial, stating that it did not believe the testimony of either Kitchen or Webster.
On appeal, defendant contends that (1) his extended-term sentence based on wanton and heinous behavior was improper; (2) the trial court's reliance upon stipulated testimony of the examining psychiatrist as to defendant's mental fitness to stand trial was error; (3) defendant received ineffective assistance of counsel because of his attorney's stipulation to defendant's restoration to fitness and because defense counsel failed to call certain witnesses on his behalf; and (4) the trial court's denial of his motion for a new trial was an abuse of discretion.
We affirm defendant's convictions but must reduce his extended-term sentence for the following reasons.
With respect to defendant's contention that his fitness hearing was inadequate, the opinion set forth in People v. Lewis (1984), 103 Ill. 2d 111, 468 N.E.2d 1222, is controlling. In Lewis, the court considered restoration to fitness hearings in which stipulations as to what the examining psychiatrist would testify if called to the stand. The court distinguished the earlier cases of People v. Reeves (1952), 412 Ill. 555, 107 N.E.2d 861, and People v. Greene (1981), 102 Ill. App. 3d 639, 430 N.E.2d 219, in which it was held to be error to base a finding of fitness solely on unsupported stipulations. And, stipulations as to the fact of fitness, as opposed to psychiatric opinion testimony which would have been given, are improper. In approving the use of stipulations concerning ...