The opinion of the court was delivered by: Justice Bilandic
Following a jury trial in the circuit court of Cook County, defendant, Mark Johnson, was convicted of murder and aggravated criminal sexual assault. The same jury determined that defendant was eligible for the death penalty and that there were no mitigating factors sufficient to preclude a sentence of death. Accordingly, the circuit court sentenced defendant to death. On direct appeal, we affirmed defendant's convictions and sentence. People v. Johnson, 146 Ill. 2d 109 (1991). The United States Supreme Court denied defendant's petition for a writ of certiorari. Johnson v. Illinois, 506 U.S. 834, 121 L. Ed. 2d 65, 113 S. Ct. 106 (1992).
Defendant, through appointed counsel, subsequently filed a petition for post-conviction relief, as well as two supplemental petitions, arguing, inter alia, that he was denied the effective assistance of trial counsel, that he was suffering from a mental disease or defect at the time of the offenses, and that he was unfit to stand trial. The State filed a motion to dismiss and a supplemental motion to dismiss, arguing, inter alia, that defendant's claims are barred by the doctrines of res judicata and waiver. During argument on the State's motions, the issue of defendant's fitness to participate in post-conviction proceedings was raised. The circuit court found no bona fide doubt of defendant's fitness to proceed with post-conviction proceedings, but nonetheless conducted a hearing on that issue. At the same time, the circuit court conducted a retrospective fitness hearing to determine whether defendant was fit to stand trial.
The circuit court found that defendant is fit to proceed with post- conviction proceedings and that he was fit at the time of his trial. The circuit court also granted the State's motions to dismiss and dismissed defendant's post-conviction petition and supplemental petitions without a further evidentiary hearing. Because defendant was sentenced to death for the underlying murder conviction, defendant's appeal from the dismissal of his post-conviction petition and supplemental petitions lies directly to this court. See 134 Ill. 2d R. 651(a).
For the reasons set forth below, we vacate the judgment of the circuit court, and remand for further proceedings.
Defendant's trial and a discussion of the evidence presented against him are discussed in this court's opinion on direct appeal. See People v. Johnson, 146 Ill. 2d 109 (1991). We provide a brief summary here.
On the afternoon of November 26, 1985, C.L., defendant, and C.L.'s uncle, Willie Robinson, went to an apartment, from which C.L. had been evicted, to pack and remove her belongings. Robinson left the apartment twice to purchase alcohol. During his second absence, defendant, who had a knife, forced C.L. to disrobe, and tied her hands and feet. When Robinson returned, defendant grabbed him from behind and cut his throat. The two struggled, and defendant repeatedly stabbed Robinson.
During the next several hours, defendant forced C.L. to perform repeated acts of oral sex on him, between which he continued to cut Robinson's throat. Defendant also raped C.L., urinated on her, forced her to lick the blood from the knife used on Robinson, and forced her to perform oral sex on Robinson, who was lying on the floor. Defendant left the apartment at 10 or 11 p.m., but returned a half-hour later for a few minutes and then left again. C.L. eventually freed herself and fled to a neighbor's apartment where she called police.
On December 5, 1985, police arrested defendant on an unrelated rape charge. During a search of defendant in connection with this arrest, police recovered a knife that was consistent with the type of knife used to stab Robinson. While defendant was under arrest, police questioned him about the murder of Robinson and took a written statement, which was introduced at trial. Defendant's statement generally corroborated C.L.'s testimony.
At trial, defendant argued that he was insane at the time of the offenses, focusing on the sadistic, brutal and bizarre nature of the crimes.
The jury was instructed on the defense of insanity and the verdict of guilty but mentally ill. The jury found that defendant was guilty of murder and aggravated criminal sexual assault. The same jury later found that defendant was eligible for the death penalty, and that there were no mitigating factors sufficient to preclude imposition of that sentence. The circuit court, therefore, sentenced defendant to death.
B. Post-Conviction Proceedings
On April 5, 1993, defendant, through appointed counsel, filed a petition for post-conviction relief. Defendant later filed two supplemental petitions for post-conviction relief. (For ease of discussion, we refer to defendant's initial post-conviction petition, together with his supplemental petitions, simply as defendant's post- conviction petition, in the singular.) In his post-conviction petition, defendant claimed that he was denied the effective assistance of counsel prior to trial, at trial, and at sentencing. Defendant also claimed constitutional deprivations based on improper jury instructions, improper psychiatric testimony as to defendant's sanity, defendant's unfitness at trial due to the ingestion of certain medication, and the trial court's improper denial of defendant's pretrial motions. Defendant further claimed that he was suffering from a mental disease or defect, or was insane, at the time of the offenses, and that he was unfit to stand trial. Lastly, defendant challenged the constitutionality of the death penalty statute.
In support of his post-conviction petition, defendant submitted copies of his records from the Psychiatric Institute of the Circuit Court of Cook County (Psychiatric Institute) and Cermak Health Services. Defendant also submitted his own affidavit, as well as affidavits from Dr. Michael Gelbort, a neuropsychologist; Dr. James R. Merikangas, a psychiatrist; Assistant Public Defender Shelton O. Green, who represented defendant at trial; and three family members.
During oral argument on the State's motions to dismiss defendant's post-conviction petition, the State argued that defendant's claim that he had been suffering from a long-term mental illness was undermined by the absence of any claim by his post-conviction counsel that defendant was not fit to proceed with post-conviction proceedings. Upon subsequent questioning by the circuit court, defendant's counsel indicated that there had been communication problems with defendant. The circuit court determined that a fitness hearing may be appropriate, and subsequently ordered that defendant be examined by the Psychiatric Institute. The circuit court also allowed defendant to be examined by Dr. Gelbort for the same purpose.
Dr. Gelbort later filed a supplemental affidavit with the circuit court in which he concludes that defendant is not fit to proceed with his post-conviction petition, but that with appropriate treatment, defendant might be competent within a 6- to 12-month period. Dr. Albert Stipes, a staff psychiatrist with the Circuit Court of Cook County Forensic Clinical Services (formerly the Psychiatric Institute), who examined defendant pursuant to the circuit court's order, also submitted his written findings to the court. Dr. Stipes found that defendant is unfit to proceed with the ...