Appeal from the Circuit Court of Cook County. No. 92 CR 21041 The Honorable William P. Prendergast, Presiding Judge.
The opinion of the court was delivered by: Justice Buckley
Defendant William Ponyi appeals from the trial court's dismissal of his pro se petition for post-conviction relief. The issues on appeal are: (1) whether the trial court's determination of whether the pro se post-conviction petition was frivolous or without merit was tainted by a discussion that took place between the trial judge and the assistant State's Attorney; (2) whether defendant raised the gist of a meritorious claim that his right to the effective assistance of counsel was denied based on his allegation that defense counsel failed to explain the plea bargain process; and (3) whether defendant raised the gist of a meritorious claim that his right to the effective assistance of counsel was denied when trial counsel failed to request a fitness hearing pursuant to section 104-21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-21(a)(West 1994)). For the reasons that follow, we reverse and remand for the appointment of an attorney.
On January 28, 1994, after a jury trial, defendant was convicted of possession of a controlled substance and possession of a controlled substance with intent to deliver. He was sentenced on April 22, 1994, to 21 years in the Illinois Department of Corrections. His conviction and sentence were affirmed on direct appeal on June 10, 1996. People v. Ponyi, No. 1-94-1515 (1996) (unpublished order pursuant to Supreme Court Rule 23).
On January 2, 1997, defendant filed a pro se petition for post-conviction relief. Defendant alleged in the petition that his right to the effective assistance of counsel was denied when his trial counsel failed to inform him of the nature of a plea offer made by the State or to adequately explain the plea. Defendant also alleged that his right to the effective assistance of counsel was denied when his trial counsel failed to inform the trial court that he was on psychotropic drugs at the time of his sentencing hearing. Defendant also alleged that he was denied his right to due process of law when he was denied his right to a fitness hearing pursuant to section 104-21(a) (725 ILCS 5/104-21(a)(West 1994)). Attached to the petition were defendant's affidavit, a prison law clerk's affidavit, and a letter requesting defendant's medical records from Cermak Health Services. On February 27, 1997, the trial court dismissed defendant's petition as frivolous and without merit.
After filing his brief on appeal from the dismissal of the post-conviction petition, defendant filed a motion to supplement the record with the medical records he received from Cermak Health Services covering the time period of January 28, 1994, to April 6, 1994. The medical records from Cermak Health Services and the medication log sheets from the residential treatment unit indica-ted that Desipramine was administered to defendant from March 8 through March 31. Although the medication log sheets for the month of April were not included with the records, a prescription, dated April 11, 1994, was included, and it ordered Desipramine to continue with 50 milligrams in the morning and 100 millegrams at night. On August 12, 1998, this court granted defendant's motion to supplement the record on appeal with the medical records and remanded the matter to the trial court "for its consideration of the medical records and a reconsideration of its previous order."
On May 21, 1999, the trial court held the remand hearing. Harry Semrow, an assistant State's Attorney, appeared on behalf of the State. Defendant was not represented by an attorney. At the hearing, the trial court asked the State several questions about the law and the facts:
"THE COURT: Okay Mr. Semrow, what is the current fitness standard? What does that provide?
MR. SEMROW: Well, currently it provides there must be, absent the showing, before the Court, that the Defendant is not entitled to a fitness hearing. However, at the time that this offense occurred, the law provided that the Defendant would be entitled to a fitness hearing in the event that approximate to the, uh -
THE COURT: Date of sentencing.
MR. SEMROW: Well, approximate to the crucial period of time -
THE COURT: Either the trial or the date of sentencing.
MR. SEMROW: Yes. That he had ingested some psychotropic medications. It was, therefore, in this instance, and I believe the Court had an opportunity to review the records and to make a determination whether or not in this Court's judgment ...