APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 94-CR-8731. THE HONORABLE JOHN J. MORAN, JUDGE PRESIDING.
Presiding Justice Cousins delivered the opinion of the court. Gordon and Leavitt, JJ., concur.
The opinion of the court was delivered by: Cousins
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
Defendant, Bruce Carlson, was convicted in a jury trial of forgery and theft on January 10, 1996. On appeal of his conviction and sentence, defendant seeks reversal and remand for a new trial, a reduction of his sentence, or a remand for a new sentencing hearing on the grounds that: (1) defendant was not given a fitness hearing despite the fact that both the trial court and defense counsel knew that defendant was taking psychotropic medication before and during the trial; and (2) the trial judge's improper comments during the sentencing hearing in conjunction with an imposition of the maximum sentence allowable indicated that defendant was being punished for exercising his right to a jury trial and for refusing to admit guilt.
On January 10, 1996, a jury found defendant guilty of forgery and theft for forging signatures on a rental lease agreement and an unauthorized check for a security deposit and first month's rent. At a continuance held before trial, defense counsel informed the trial court that defendant was unable to appear in court due to an adverse reaction he had suffered from lithium. At an appeal bond hearing on January 26, 1996, defense counsel informed the trial court that defendant had been diagnosed as manic depressive and had been taking lithium. On February 9, 1996, defense counsel added to the presentence investigation report a letter from defendant's physician stating that defendant had been his medical psychiatric patient since April 3, 1993, and had been receiving 450 milligrams of lithium three times daily for his chronic manic depressive disorder. After defendant's motion for a new trial was denied, sentencing evidence was heard in aggravation and mitigation. Defendant gave a statement to the trial court during sentencing, in which he stated that, ever since he had been put on 1,350 milligrams of lithium per day in 1992, he had not engaged in any criminal behavior. The trial court sentenced defendant to five years' imprisonment in the Illinois Department of Corrections.
I Defendant first contends that he must be granted a new trial on the grounds that the trial court failed to conduct a fitness hearing to which defendant was entitled. Defendant bases this argument on the fact that he was receiving psychotropic drugs under medical direction before and during the trial.
It is well established that the due process clause of the fourteenth amendment prohibits the criminal prosecution of a person who is not competent to stand trial. U.S. Const., amend XIV; see Medina v. California, 505 U.S. 437, 439, 120 L. Ed. 2d 353, 359, 112 S. Ct. 2572, 2574 (1992); People v. Brandon, 162 Ill. 2d 450, 455, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994). To further ensure the protection of this right, Illinois courts have adopted the rule promulgated by the Supreme Court of the United States that a failure to observe procedures adequate to protect a defendant's right not to be tried while unfit deprives a defendant of due process. Drope v. Missouri, 420 U.S. 162, 172, 43 L. Ed. 2d 103, 113, 95 S. Ct. 896, 904 (1975); People v. Nitz, 173 Ill. 2d 151, 156, 218 Ill. Dec. 950, 670 N.E.2d 672 (1996), citing People v. Murphy, 72 Ill. 2d 421, 430, 21 Ill. Dec. 350, 381 N.E.2d 677 (1978); People v. Ralon, 211 Ill. App. 3d 927, 937, 570 N.E.2d 742, 749, 156 Ill. Dec. 266 (1991). The Illinois legislature has enacted several provisions in accordance with this general mandate for adequate procedural safeguards. Section 104-10 of the Illinois Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104-10 (West 1994)) provides that a "defendant is presumed to be fit to stand trial or to plead, and be sentenced." Section 104-11(a) states that the "issue of the defendant's fitness for trial, to plead, or to be sentenced may be raised by the defense, the State or the Court *** before, during, or after trial." 725 ILCS 5/104-11(a) (West 1994). That section also states that, "when a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." 725 ILCS 5/104-11(a) (West 1994). Of particular relevance in the instant case is section 104-21(a), which, at the time of defendant's trial and sentencing, provided in part that a "defendant who is receiving psychotropic drugs or other medications under medical direction is entitled to a hearing on the issue of his fitness while under medication." (Emphasis added.) 725 ILCS 5/104-21(a) (West 1994). We note that the amendment to section 104-21(a) (Pub. Act 89--428, art. 6, § 605, eff. December 13, 1995) in effect at the time of defendant's trial and sentencing was held by the Supreme Court of Illinois to be unconstitutional and invalid for violating the "single subject rule" of article IV, section 8(d), of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)). Johnson v. Edgar, 176 Ill. 2d 499, 514-18, 224 Ill. Dec. 1, 680 N.E.2d 1372 (1997). Consequently, we deem the excerpt from section 104-21(a) quoted above to have been the only valid version of that provision at the time of defendant's trial and sentencing.
Although the Code presumes that a defendant is fit to stand trial and requires that a bona fide doubt of competency exist in order to justify a fitness hearing, Illinois courts have consistently interpreted section 104-21(a) of the Code to mean that a defendant's receipt of psychotropic medication at or near the time of trial or sentencing in and of itself raises a bona fide doubt of the defendant's fitness and automatically triggers his or her right to a competency hearing. People v. Birdsall, 172 Ill. 2d 464, 475, 219 Ill. Dec. 22, 670 N.E.2d 700 (1996); People v. Kinkead, 168 Ill. 2d 394, 407, 214 Ill. Dec. 145, 660 N.E.2d 852 (1995); People v. Gevas, 166 Ill. 2d 461, 469, 211 Ill. Dec. 511, 655 N.E.2d 894 (1995); People v. Brandon, 162 Ill. 2d 450, 457, 205 Ill. Dec. 421, 643 N.E.2d 712 (1994). A defendant's right under section 104-21(a), therefore, must be enforced and is not a matter of the court's discretion. Kinkead, 168 Ill. 2d at 407; Brandon, 162 Ill. 2d at 460-61; People v. Guttierez, 271 Ill. App. 3d 301, 305, 648 N.E.2d 928, 931, 208 Ill. Dec. 6 (1995). Furthermore, even if neither party raises the issue of a defendant's competency at trial, the trial court has a duty to conduct a fitness hearing sua sponte once it has learned that the defendant has taken psychotropic drugs during or proximate to the proceedings or sentencing. Kinkead, 168 Ill. 2d at 411; Gevas, 166 Ill. 2d at 469; Brandon, 162 Ill. 2d at 456, 459; Guttierez, 271 Ill. App. 3d at 306, 648 N.E.2d at 932.
In the case sub judice, the trial court was informed on four separate occasions that defendant was taking psychotropic medication: at a pretrial continuance, at defendant's appeal bond hearing, in defendant's physician's letter attached to the presentencing investigation report, and in defendant's statement during the sentencing hearing. We believe that the foregoing facts were sufficient to put the trial court on notice of the issue of defendant's mental competency to stand trial and whether defendant was, therefore, entitled to a fitness hearing. We do not believe, however, that there is adequate evidence on record to verify defendant's assertion that he received psychotropic drugs during his trial and sentencing. That is, the record lacks reliable evidence showing that defendant's receipt of lithium occurred during or near the time of the proceedings, and the record fails to show in what manner the drug may have influenced defendant's mental faculties, temperament, and behavior in the courtroom. As our supreme court stated in Kinkead, "further inquiry into the specifics of defendant's drug usage at the time of his sentencing would have provided the trial court with facts relevant to whether the court had a further duty, under section 104-21(a), to conduct a formal fitness hearing." Kinkead, 168 Ill. 2d at 415. Since this threshold question concerning the proximity of defendant's receipt of psychotropic drugs to the trial proceedings must be answered concretely before we can say that defendant was denied due process of law, we hold that a limited remand directing the trial court to make findings with respect to defendant's possible use of psychotropic medication during the critical stages of litigation is necessary. This conclusion accords with a number of cases in which the trial courts failed to conduct fitness hearings despite being put on notice of the defendants' use of psychotropic drugs, yet the records lacked sufficient evidence for higher courts to definitively conclude that the defendants should have been given fitness hearings. See Kinkead, 168 Ill. 2d at 415-17; People v. McKay, 282 Ill. App. 3d 108, 114, 668 N.E.2d 580, 585, 218 Ill. Dec. 96 (1996); People v. Johnson, 276 Ill. App. 3d 656, 658, 659 N.E.2d 22, 24, 213 Ill. Dec. 392 (1995).
We do not believe, however, that the present case warrants automatic reversal upon the trial court's finding that defendant was receiving psychotropic drugs during the proceedings. Although Illinois courts have often refused to conduct retrospective fitness hearings (see, e.g., People v. Nitz, 173 Ill. 2d 151, 163-64, 218 Ill. Dec. 950, 670 N.E.2d 672 (1996); People v. Birdsall, 172 Ill. 2d 464, 476-80, 219 Ill. Dec. 22, 670 N.E.2d 700 (1996); People v. Gevas, 166 Ill. 2d 461, 471, 211 Ill. Dec. 511, 655 N.E.2d 894 (1995)), we believe that our supreme court's recent decision in People v. Burgess, 176 Ill. 2d 289, 303, 223 Ill. Dec. 624, 680 N.E.2d 357 (1997), supports our holding that a fitness hearing conducted nunc pro tunc is appropriate in the instant case. In Burgess, the court stated:
"There will be some circumstances in which it can be said that the use of psychotropic medication did not affect the defendant's mental functioning in such a way that relief would be appropriate. *** We believe that, at least in the present case, there are sufficient reasons to depart from our previous practice of automatic reversal and to make a case-specific inquiry into the psychotropic drugs administered to this particular defendant.
*** We should not automatically assume that every psychotropic drug will inevitably render the person taking it unfit for purposes of trial or sentencing, and we therefore conclude that retrospective hearings ...