The opinion of the court was delivered by: Presiding Justice Campbell
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE FRED SURIA, JUDGE PRESIDING.
Following a jury trial in the circuit court of Cook County, defendant Thomas Melka was found guilty of first degree murder, attempted first degree murder, aggravated battery with a firearm, home invasion and aggravated battery. *fn1 Defendant was sentenced to natural life imprisonment for murder and consecutive prison terms of 45 years for attempted first degree murder and home invasion.
In a prior Rule 23 order, relying on People v. Brandon, 162 Ill. 2d 450, 643 N.E.2d 712 (1994), this court reversed and remanded, holding that the trial court erred in failing to hold a fitness hearing, despite knowledge that defendant was taking psychotropic drugs. People v. Melka, No. 95-0747 (Sept. 20, 1996). On remand, the trial court conducted a retrospective fitness hearing and found that defendant had been fit to stand trial. Defendant now appeals.
The record on appeal discloses that on remand, the State filed a motion to have defendant's conviction affirmed or to conduct a retrospective fitness hearing. The State argued that this court's prior order was based on Brandon, but that the Illinois Supreme Court's opinion in People v. Burgess, 176 Ill. 2d 289, 680 N.E.2d 357 (1997), decided after this court's order in this case, was controlling and did not require a new trial. Defendant's counsel objected, arguing that this court's order was the law of the case.
On September 2, 1997, the trial court reserved ruling on the State's motions, pending a determination of whether defendant was fit to participate in a retrospective fitness hearing. Defense counsel objected to the fitness evaluation. Defendant refused to sign consent forms for the release of his medical records on advice of counsel. On October 9, 1997, the trial court received a medical report concluding that defendant was currently fit.
On November 20, 1997, defense counsel moved for substitution of judge for prejudice. The trial court denied the motion, ordered that there would be a hearing on whether defendant was currently fit and whether defendant had been fit to stand trial. The transcript of proceedings discloses that the trial judge so ruled because he believed the law was changed by later judicial decisions. The trial court also stated that if defendant's position was upheld by the Illinois Supreme Court, he would recuse himself from further proceedings.
At the outset of the hearing, defense counsel unsuccessfully argued that this case was distinguishable from Burgess. The trial court conducted the fitness hearing. The State presented testimony from Dr. Matthew Markos, a forensic psychiatrist who submitted a written report to the trial court before defendant's trial opining that defendant was fit to stand trial. At the hearing, Dr. Markos testified that he examined defendant in October 1997, although defendant told Dr. Markos his participation would be limited on advice of counsel. Dr. Markos opined that defendant was currently fit to participate in the hearing. Defense counsel questioned Dr. Markos regarding defendant's past and current mental condition.
Defense counsel told the trial court that it was not waiving its motion for substitution of judge and was not waiving defendant's right to a jury trial. The trial court responded that defendant had not demanded a jury trial for the fitness hearing.
Harry Gunn, Ph.D., a forensic psychologist, testified on behalf of defendant. Dr. Gunn testified that defendant's "Axis I" diagnosis was bipolar affect disorder with psychosis and paranoid features. Dr. Gunn also opined that defendant's "Axis II" diagnosis was paranoid personality.
On cross-examination, Dr. Gunn admitted these diagnoses were based completely on a review of defendant's medical records. Dr. Gunn admitted that he had not examined the defendant. Dr. Gunn further testified that he would have to examine defendant to determine his fitness.
Following this testimony, the trial court ruled that defendant was currently fit and that the retrospective fitness hearing would proceed. Defense counsel invited the trial court to hold him in contempt, as counsel had no intention of participating in the hearing. The trial court declined to do so. The State called Dr. Markos, who opined that based on his review of the medical records and his own examinations of defendant, defendant was fit to stand trial in January 1995. The records Dr. Markos reviewed included a report by Dr. Larry Heinrich, a psychiatrist who examined defendant in May, August and September of 1994, that concluded that defendant was fit to stand trial. Dr. Markos also reviewed a report by social worker John Goodman containing a similar conclusion.
At the conclusion of Dr. Markos's direct testimony, defense counsel reiterated that he was not participating in the hearing, adding that he had inadvertently fallen asleep during them. Defense counsel declined to cross-examine Dr. Markos. The State rested. Defense counsel declined to present witnesses.
Based on Dr. Markos's testimony, the trial court found that defendant had been fit to stand trial in January 1995. Based on the original jury verdicts, the trial court entered judgment on the verdict and reimposed defendant's original sentence. Defendant now appeals to this court.
Initially, this court must consider our supreme court's decision in People v. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254 (2000), and its impact on this appeal. As noted above, this court's prior order relied on the supreme court's decision in People v. Brandon, 162 Ill. 2d 450, 643 N.E.2d 712 (1994). The Mitchell decision, handed down while the current appeal was pending before this court, held that the supreme court had erred in implying in Brandon "that the legislature equated the administering of psychotropic medication to a defendant with a bona fide doubt as to his fitness to stand trial, and we no longer adhere to that conclusion." Mitchell, 189 Ill. 2d at 331, 727 N.E.2d at 267.
The Mitchell court also overruled the holding in Brandon that it was ineffective assistance of counsel per se to fail to request a fitness hearing where the defendant was taking psychotropic medication, holding that:
"defining the test as whether a defendant would have received a fitness hearing cannot be correct. If a defendant would have been found fit to stand trial, he suffered no prejudice by not having a fitness hearing. The correct test for evaluating prejudice in these situations is whether a reasonable probability exists that, if defendant would have received the section 104-21(a) fitness hearing to which he was entitled, the result of the proceeding would have been that he was found unfit to stand trial." Mitchell, 189 Ill. 2d at 334, 727 N.E.2d at 268.
The Mitchell court also recognized that in the cases decided since Brandon, retrospective fitness hearings that were considered improper under Brandon have now become the norm. Mitchell, 189 Ill. 2d at 339, 727 N.E.2d at 270.
The State requested leave to cite Mitchell as supplemental authority in this case. We allowed the motion and further directed the parties to file supplemental briefs on the matter, which the parties did prior to oral argument in this case.
Defendant does not claim that Mitchell is inapplicable to this appeal. Nevertheless, it is worth noting that our supreme court's decisions generally apply retroactively to causes pending at the time they are announced, including cases pending on direct review. People v. Cortes, 181 Ill. 2d 249, 276, 692 N.E.2d 1129, 1140 (1998). Indeed, Cortes involved the retroactive application of Burgess, ...