Appeal from the Circuit Court of Du Page County. No. 95--CF--285 Honorable Ronald B. Mehling, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Pursuant to a plea agreement, defendant, Donald Troy Hill, a/k/a Troy Donald Hill, pleaded guilty to two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1994)) and was sentenced to two consecutive nine-year terms of incarceration. Defendant subsequently filed a petition for relief from the judgment pursuant to section 2--1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2--1401 (West 1998)). Defendant's pro se petition alleged that (1) the trial court erred because it did not sua sponte order a hearing on his fitness to stand trial and (2) that he was denied the effective assistance of counsel because his attorney failed to request a fitness hearing. On its own motion and without holding an evidentiary hearing, the trial court dismissed the petition as frivolous and without merit. Defendant timely appeals, contending that the trial court erred when it dismissed his petition because (1) it improperly applied the standards of the Post Conviction Hearing Act (Post-conviction Act) (725 ILCS 5/122- -1 et seq. (West 1998)) to his section 2--1401 petition (we address this contention in a nonpublished portion of this opinion); (2) his use of psychotropic medications at or near the time of his guilty plea entitled him to a fitness hearing; (3) a bona fide doubt existed as to his fitness, mandating a fitness hearing; (4) he was denied the effective assistance of counsel because his attorney failed to move for a fitness hearing; and (5) he was coerced into entering a guilty plea because his attorney instructed him that he must plead guilty despite his express desire for a trial (we address this contention in a nonpublished portion of this opinion). We affirm.
1. Defendant's Guilty Plea
On March 8, 1995, defendant was charged by indictment with three counts of aggravated criminal sexual assault in violation of section 12- -14(b)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12- 14(b)(1) (West 1994)) and one count of aggravated criminal sexual abuse in violation of section 12--16(c)(1)(i) of the Criminal Code (720 ILCS 5/12--16(c)(1)(i) (West 1994)).
The matter was continued several times while defense counsel sought defendant's medical and psychiatric records. On July 10, 1995, defense counsel requested an order requiring the county jail to provide defendant with the brand name medication prescribed for him because defendant had reacted poorly to generic substitutes. After determining that the medication was psychotropic, the trial court engaged defense counsel in the following colloquy:
THE COURT: There's been some recent case law that's dealt with this issue of psychotropic medication. *** Assuming he'll be going back to some psychotropic medication, then there may be a question regarding his fitness to stand trial. I am just wondering if we should appoint Dr. Ali or some other doctor at this point to make an examination.
MS. LACRONE [defense counsel]: Judge we are aware that may be an issue. That is the reason for which we are requesting all the medical [records] from the various medical agencies where [defendant] has been treated. After reviewing the records, we may come in before the Court to ask to evaluate [defendant]. But we are waiting to receive all the records, so we can ask, if we can ask the Court to do that.
THE COURT: All right. *** I just wanted to bring that to your
attention. If he does go back on the medication, then we may definitely be in a position where we have to proceed with some sort of examination, to clear up any issues regarding fitness to stand trial."
On August 15, 1995, the trial court appointed Dr. Syed Ali to evaluate defendant's fitness, and on October 23, 1995, Dr. Ali filed his report. In his report, Dr. Ali stated that he reviewed defendant's medical records, other case reports, and interviewed defendant. The interview lasted approximately 1½ hours and included, inter alia, defendant's social and family history, a mental status evaluation and a "competency assessment questionnaire." The questionnaire elicited defendant's responses to a series of questions regarding the nature of the charges and trial procedures. Dr. Ali concluded:
"It is the Conclusion of this Psychiatric Evaluation that [defendant] is presently clinically Fit to Stand Trial. It is being further concluded that [defendant] at the present time is not on any anti depressant [sic] or psychotropic medication. As of two weeks ago he did take an antidepressant medication called Imipramine. Were he to resume taking Imipramine my Conclusion would still remain the same ***."
Defense counsel requested one week to review the report. When defendant next appeared before the trial court, defense counsel indicated that he anticipated filing a motion to suppress defendant's statements to the police and did not anticipate filing any other motions. Defense counsel filed a motion to suppress but on December 1, 1995, the date set for hearing, informed the court that the parties had reached a plea agreement.
Defendant pleaded guilty to two counts of aggravated criminal sexual assault, and the State nol-prossed the remaining counts. The parties agreed that defendant would receive a nine-year sentence on each count, and, because the crimes arose from a single course of conduct but involved two victims, the sentences would be served consecutively. The trial court asked defendant whether he was now taking any drugs or medications, and defendant responded that he was not. In a series of questions, the trial court then asked defendant whether he understood the terms of the plea agreement. Defendant indicated that he understood everything except the consequences of consecutive sentences. The trial court passed the matter to allow defense counsel to explain the terms of the plea bargain to defendant. When the trial court recalled defendant's case, defendant requested clarification of the application of time served, asking, "The full-time, I didn't know if it went on the first nine or the back?" The trial court explained the application of credit for time served to consecutive sentences and continued to question defendant regarding his guilty plea.
After accepting defendant's plea, the trial court inquired further into the issue of defendant's fitness to stand trial as follows:
"THE COURT: I know we had an earlier forensic psychiatric evaluation. You have seen no indication or anything to lead you to believe that [defendant] does not understand or does not comprehend what is occurring today?
MR. KLEEMAN [defense counsel]: That's correct. *** Dr. Ali found him fit to stand trial, as the court can see from the report. The defendant at one time was on medication through the jail, but that was brought to the Court's attention. I have discussed previously those issues with [defendant], as well as the possibility of a psychiatric defense, and he is currently, Judge, not on any medication and has not been on any medication for I believe three weeks. I just wanted to make those matters of record.
THE COURT: Is that correct, [defendant]?
THE COURT: You discussed all of these things with your attorney. You want to proceed, I take it. The bottom line is, after discussing everything, ...