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05/20/94 PEOPLE STATE ILLINOIS v. LAWRENCE LAVOLD

May 20, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LAWRENCE LAVOLD, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOHN E. MORRISSEY, JUDGE PRESIDING.

As Corrected May 20, 1994. Second Correction June 9, 1994. Released for Publication July 14, 1994. As Corrected July 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Following a civil discharge hearing pursuant to section 104-25 of the Code of Criminal Procedure (725 ILCS 5/104-25 (West 1992)), Lawrence Lavold (Lavold), an unfit defendant, was found not, not guilty of the charges of first degree murder and arson, and was remanded to the custody of the Department of Mental Health and Developmental Disabilities for extended treatment. After the expiration of the extended treatment period, a hearing was held and the trial court determined that Lavold remained unfit for trial. The court also determined that Lavold constituted a danger to himself and others and was subject to involuntary commitment for a period equal to the maximum sentence for first degree murder. On appeal, Lavold argues that (1) the trial court lost jurisdiction after the expiration of the extended treatment period and, therefore, its order subjecting him to involuntary commitment is void; (2) he was denied due process and effective assistance of counsel at the discharge hearing; (3) he was denied effective assistance of counsel at the habeas corpus hearing; and (4) the trial court erroneously determined that Lavold was subject to the criminal court's jurisdiction until the year 2035.

BACKGROUND

In November 1975, Lavold was charged with first degree murder and arson. Subsequently, he posted bail and was released. On December 23, 1975, Lavold failed to appear in court and a warrant was issued for his arrest. The case was stricken from the call with leave to reinstate.

On June 22, 1981, the case was reinstated and Lavold moved for a psychiatric examination to determine fitness. On August 11, 1981, a psychiatric report was filed with the trial court and a fitness hearing was held. The psychiatric report indicated that Lavold was not mentally fit for trial; the report stated that Lavold was "unable to understand the nature of the charges pending against him and unable to cooperate with counsel in his own defense, because he [was] actively psychotic." Based upon the psychiatric report and stipulated testimony, the trial court determined that Lavold was not fit for trial. Lavold was remanded to the custody of the Department of Mental Health and Developmental Disabilities. The case was stricken from the call with leave to reinstate.

Periodic examinations were conducted on Lavold to determine whether he would attain fitness within one year. Each of the reports filed with the court indicated that Lavold was not mentally fit for trial. On May 17, 1982, a letter was sent to the trial court by the superintendent of the Mental Health Center at Chester. In his opinion, there was not a substantial probability that Lavold would attain fitness within a period of one year from the date of the original finding of unfitness. The report also stated, that pursuant to statute, it was the understanding of Department of Mental Health that Lavold should be brought to court for a hearing. There is no evidence that this letter was filed with the court or entered as part of the record prior to July 19, 1983, when it was included in a motion filed by Lavold.

On January 26, 1983, Lavold's counsel withdrew from the case and new counsel was appointed on June 2, 1983. It is unclear from the record who was representing Lavold during the interim, but the only action taken was the ordering and filing of fitness examinations. On July 19, 1983, counsel for Lavold filed a motion for a discharge hearing pursuant to section 104-23(a) of the Code of Criminal Procedure (725 ILCS 5/104-23(a) (West 1992)).

On September 6, 1983, Lavold filed a letter with the court stating that he had fired defense counsel because counsel was deceptive, "maleficent" of duty and conducted himself in an illegal fashion. On September 20, 1983, Lavold requested new counsel and a change of venue.

A fitness hearing was commenced in August 1983 and concluded on October 13, 1983. The court concluded that Lavold was not fit for trial and would not be fit for trial within one year.

On November 10, 1983, a discharge hearing was commenced and after a series of continuances was concluded on May 17, 1984. The State's evidence at the discharge hearing consisted of one witness and stipulated testimony. Lavold did not present any witnesses. Throughout the hearing, Lavold was disruptive and refused the assistance of counsel. The trial court acknowledged Lavold's desire to fire his attorney but appointed counsel over Lavold's objection because the court did not believe that Lavold had the capacity to make such a decision. Lavold's conduct became so disruptive that the trial court ordered the sheriff to remove him from the courtroom. Lavold was able to hear the proceedings over a speaker in the lock-up area.

At the Conclusion of the hearing, Lavold was found not, not guilty and discharge was denied. Lavold was remanded back to the Department of Mental Health for an extended five year period of treatment pursuant to section 104-25(d) of the Code of Criminal Procedure (725 ILCS 5/104-25(d) (West 1992)). A certificate was filed, at the time of the discharge hearing, which stated that Lavold was "extremely dangerous" and "a person who [was] mentally ill and because of his illness [was] reasonably expected to inflict serious physical harm upon himself or another in the near future." The case was stricken from the call with leave to reinstate.

On December 2, 1986, defense counsel filed a petition for attorney's fees and expenses incurred from June 21, 1983 through August 8, 1986. The trial court granted the petition and ordered the Treasurer of Cook County to pay defense counsel $2,777.48 for services rendered.

On August 11, 1989, Lavold filed a pro se Federal habeas corpus petition pursuant to 28 U.S.C. section 2254 (1989). The petition was denied on March 15, 1990. The District court found that Lavold's initial five year period of commitment had expired without the State making any attempt to hold an extension hearing as required by law. Therefore, the District court concluded that Lavold was being held in violation of State law and should seek his release in a State habeas corpus proceeding.

On September 21, 1989, counsel for Lavold filed a motion for a hearing following treatment pursuant section 104-25(g) of the Code of Criminal Procedure (725 ILCS 5/104-25(g) (West 1992)). The trial court reinstated the case and placed it on call for December 13, 1989. On June 7, 1990, a hearing was held to determine if Lavold was fit for trial or subject to involuntary commitment pursuant to section 104-25(g)(2). Both stipulated and live testimony were heard by the trial court. However, the record of this hearing was not included in the record on appeal. Due to a series of continuances, judgment was not rendered by the trial court until December 13, 1990.

In the interim, Lavold filed a State habeas corpus petition. On December 13, 1990, prior to the trial court issuing judgment on the motion for hearing following treatment, argument was presented on the State habeas corpus petition. Throughout the hearing Lavold was represented by a public defender. Again, Lavold continually fired defense counsel. Because of his disruptions, Lavold was removed from the courtroom, but allowed to listen to the proceedings through a speaker system.

On his behalf, defense counsel argued that the jurisdiction of the criminal courts expired on May 17, 1989, and any action taken by the court subsequent to that date, including the hearing on June 7, 1990, to determine involuntary admission, was null and void. The trial court denied the State habeas corpus petition, finding that the lack of action from the spring of 1989 until December of 1989 was not sufficient to warrant a remedy of habeas corpus. Furthermore, the trial court noted that the State had made adequate attempts to hold the extension hearing.

The trial court also found that Lavold remained unfit for trial, in need of hospitalization, and a serious threat to public safety. Therefore, pursuant to section 104-25(g)(2), the trial court committed Lavold to the Department of Mental Health for a period not to exceed 60 years, the length of the maximum sentence for first degree murder. The trial court retained jurisdiction to approve any conditional release or discharge of Lavold until December 2035. This appeal followed.

I

Initially, Lavold contends that the trial court lost jurisdiction after the expiration of the extended treatment period on August 11, 1987 and, therefore, its order subjecting him to involuntary commitment is void. Lavold also argues that he was entitled to be released as of August 11, 1987 and, therefore, the court erred in denying his petition for habeas corpus.

According to section 104-25(d) of the Code of Criminal Procedure, an unfit defendant may be remanded to the Department of Mental Health for an initial treatment period of one year, as set forth in section 104-23, and this treatment may be extended for a maximum period of five years for the charge of murder. (See 725 ILCS 5/104-25(d), 5/104-23 (West 1992).) At the Conclusion of that six year period, section 104-25(g) requires the court to determine whether the defendant is still unfit for trial. (See 725 ILCS 5/104-25(g) (West 1992).) If he remains unfit, the court must next determine whether the defendant is subject to involuntary commitment under the Mental Health and Developmental Disabilities Code. (See 725 ILCS 5/104-25(g)(2) (West 1992).) If so, defendant will be committed to the Department of Mental Health and the trial court will retain jurisdiction solely to approve any conditional release or discharge for a period not to exceed the maximum sentence to which the defendant would have been subject if he or she had been convicted in a criminal proceeding. See 725 ILCS 5/104-25(g)(2) (West 1992).

The date of the trial court's supervisory jurisdiction over the defendant begins to run from the date of the original finding of defendant's unfitness. ( People v. Rasgaitis (1991), 222 Ill. App. 3d 855, 165 Ill. Dec. 272, 584 N.E.2d 451.) The extended period for treatment would then begin or relate back to one year from the original finding of unfitness. People v. Burton (1988), 166 Ill. App. 3d 143, 116 Ill. Dec. 732, 519 N.E.2d 947.

In this case, the maximum treatment period permitted before the court was required to hold a section 104-25(g) hearing was six years. Lavold was initially found unfit on August 11, 1981, and was remanded for treatment for one year to attain fitness for trial. When Lavold did not attain fitness within one year, his treatment was extended for five years. The trial court erroneously began the five year extended treatment period on May 17, 1984, at the Conclusion of the discharge hearing. That five year period ended May 17, 1989. On December 13, 1989, the case was put back on the trial call and on June 7, 1990, a section 104-25(g) hearing was commenced.

Following Rasgaitis and Burton, the trial court should have related back the start date of the five year extended treatment period to August 11, 1982, one year from the finding of unfitness. Thus, Lavold's extended treatment period should have concluded on August 11, 1987, and not on May 17, 1989. Both parties agree that the trial court exceeded Lavold's maximum treatment period without a hearing following treatment by a little over two years before the court placed the case back on the call. The issue before this court is whether that two year delay deprived the trial court of jurisdiction. We conclude that it did not.

Section 5/104-25(g) of the Code of Criminal Procedure provides in pertinent part:

"(g) At the expiration of an extended period of treatment ordered pursuant to this Section:

(2) If the defendant continues to be unfit to stand trial, the court shall determine whether he or she is subject to involuntary admission under the Mental Health and Developmental Disabilities Code or constitutes a serious threat to the public safety. If so found, the defendant shall be remanded to the Department of Mental Health and Developmental Disabilities * * * for further treatment and shall be treated in the same manner as a civilly committed patient for all purposes, except that the original court having jurisdiction over the defendant shall be required to approve any conditional release or discharge of the defendant, for ...


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