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People v. Steppan

May 16, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DOMINICK STEPPAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 97 CR 822 Honorable Michael B. Bolan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hall

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DOMINICK STEPPAN, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County. No. 97 CR 822 Honorable Michael B. Bolan, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Hall

Following a bench trial, the defendant, Dominick Steppan, was found guilty of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)), armed violence (720 ILCS 5/33A-2(West 1996)), and aggravated battery (720 ILCS 5/12-4(a) (West 1996)). The defendant was sentenced to 26 years' imprisonment in the Department of Corrections on the aggravated battery with a firearm conviction.

 The defendant appeals, raising the following issues: (1) whether he was denied the effective assistance of counsel by his trial attorney's failure to request a fitness hearing prior to trial; (2) whether the trial court erred in retroactively finding him fit to stand trial; (3) whether the trial court erred in imposing sentence on his aggravated battery with a firearm conviction; and (4) whether the case must be remanded for sentencing. We affirm in part, vacate in part and remand for further proceedings.

The defendant was indicted and charged with the offenses of attempted first degree murder, aggravated battery with a firearm, two counts of armed violence, and three counts of aggravated battery, all in connection with the shooting of Charles Cox. Prior to trial, the State dismissed one of the armed violence counts and two of the aggravated battery counts.

At the defendant's bench trial, Cox testified that on December 23, 1996, he had been drinking at a bar with the defendant and Dave Siecky. Cox accepted a ride from the defendant and Siecky. Outside the bar, they were joined by a third man. The four men drove to an alley which, Cox subsequently learned, was behind the defendant's house. The defendant and Siecky went into the house. Approximately 15 minutes later, the defendant came out of the house and ordered Cox out of the car. When Cox exited the car, the defendant shot him in his right thigh, saying, "Merry Christmas, m----- f-----." Cox was eventually discovered and transported to a hospital. The defendant did not testify.

The trial court acquitted the defendant of attempted first degree murder and found him guilty of aggravated battery with a firearm, armed violence, and aggravated battery. The trial court also found that the aggravated battery conviction merged with the armed violence conviction.

Defense counsel filed a motion for a judgment of acquittal or, in the alternative, a new trial. He also filed a motion seeking to withdraw as counsel for the defendant on the basis that the defendant would not communicate or cooperate with him. The defendant filed a motion alleging that he had received ineffective assistance of counsel. Inter alia, the defendant alleged that defense counsel did not request a fitness hearing for the defendant even though he was aware that the defendant was taking psychotropic medication and was receiving out- patient treatment for a psychological disorder.

The trial court granted defense counsel's motion to withdraw and appointed the public defender to represent the defendant. The trial court also ordered that the defendant be examined to determine his fitness for trial and for sentencing. Subsequently, private counsel filed an appearance on behalf of the defendant.

Pursuant to the trial court's order, the defendant was examined by Dr. Stafford Christopher Henry, a forensic psychiatrist. Based upon his examination of the defendant, Dr. Henry concluded that the defendant was not currently fit for sentencing. In the course of his examination, Dr. Henry observed that the defendant initially had difficulty enumerating the charges of which he had been found guilty. The defendant described the trial judge as "sounding like a VCR going very fast" and that he could not understand what the trial judge was saying. The defendant described his mental state on the day of the trial as "confused and garbled." At one point he believed that a witness who was testifying was actually using the voice of another. When he attempted to bring his psychotic mental state to the attention of his attorney, the attorney told him to "shut-up."

The defendant told Dr. Henry that since the age of 13 he had heard voices commanding him to hurt himself. He experienced an auditory hallucination approximately four days before the trial. During the trial, he heard voices saying "there is no justice and to get out." The defendant admitted to a long history of depressive symptomatology and stated that he was currently and actively suicidal. At the time of the examination, the defendant was taking Depakote, Chlorpromazine and cithium carbonate.

Dr. Henry diagnosed the defendant as suffering from a bipolar affective disorder, a personality disorder not otherwise specified with antisocial features, alcohol dependence, and attention deficit disorder. In Dr. Henry's opinion, the defendant was unfit for sentencing and was subject to involuntary admission. However, Dr. Henry was unable to render an opinion at that time as to whether the defendant had been fit to stand trial, due to the defendant's current inability to discuss his thoughts and behavior at the trial as well as the fact that the doctor had not yet received the defendant's medical records which would provide information regarding his mental state at the time of his trial.

The defendant was placed in the custody of the mental health department and sent to the Elgin Mental Health Center. After treatment, the staff at Elgin concluded that the defendant was fit for sentencing with medication. After examining the defendant, Dr. Henry agreed that the defendant was fit for sentencing with medication. The defendant was currently taking lithium and Depakote for mood vacillations and impulsivity, and Thorazine for nervousness, agitation, irritability and impulsivity.

On September 2, 1999, following a hearing, the trial court found the defendant fit for sentencing with medication. However, the trial court ordered that the defendant be examined to determine whether he had been fit to stand trial.

At the defendant's October 26, 1999, fitness for trial hearing, Dr. Henry testified as follows.

Dr. Henry examined the defendant on September 28, 1999. During the examination, the defendant attempted to focus on his belief that he had received inadequate representation at his trial. One of the traits of the antisocial personality disorder that the defendant suffered from was deceitfulness. Dr. Henry noted several instances in which the defendant had been deceitful. The defendant stated that he had been an alcoholic since age 13 and had a long history of alcohol dependence. However, in his Cermak Health Service records, the defendant described himself as a "social drinker." When the doctor confronted him about the discrepancy, the defendant responded that he lied because he did not like going to meetings. The defendant also told Dr. Henry that he drank alcohol repeatedly in the weeks preceding the trial as well as during the trial itself. He even secreted alcohol on his person so that he could drink during the trial. However, he told the probation department in connection with its social investigation that he had last consumed alcohol one year ago and had been sober ever since. A pivotal factor in Dr. Henry's conclusion that the defendant was unfit for sentencing was the defendant's suicidal feelings. However, upon his admission to Elgin, the defendant reported that his thoughts of suicide were fleeting and were nothing serious. In addition, the defendant had only been at Elgin for 21 days when he was deemed fit to be sentenced; in Dr. Henry's experience, people were generally at Elgin for a significant amount of time and that a shorter stay was not common.

Dr. Henry further testified that the defendant's initial recollection of his trial was confused and garbled but, upon further questioning, he was able to provide details about what he remembered occurring at the time of his trial. He was aware that he had been offered a plea bargain of two years in exchange for a plea of guilty to a lesser charge and that he had refused the offer because he had not committed the crime. The defendant also recalled specific exchanges with his attorney; how he tried to bring certain matters to his attorney's attention, such as the existence of two witnesses he wanted his attorney to call and the fact that he was on psychotropic medication. He also recalled the testimony of a witness and his response to it.

One of the documents Dr. Henry utilized in reaching his conclusion was the transcript of the proceeding wherein the defendant elected to waive a jury trial in favor of a bench trial. Dr. Henry read into the record the following colloquy which had occurred at that proceeding:

"'THE COURT: Let the record reflect we are in the Judge's chambers because we have a jury in the courtroom in the presence of the Defendant, his attorney, and the Prosecutors in this case.

Your lawyer indicated to me, Mr. Steppan, that you are asking, waiving the right to trial by jury and are proceeding to trial by the Court. Realize that, before you do that, the right to trial by jury is one that is guaranteed by the Constitution of the United States, and it consists of 12 persons deciding whether or not you are guilty, and so if you decide to have the case tried by the Judge, you give up a constitutional right. Do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: And there are no promises or considerations made?

THE DEFENDANT: From nobody, from nobody, no, sir; it is my choice. This is ...


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