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People v. Vernon

February 27, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALVIN EARL VERNON, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, No. 01-CF-1092 Honorable Michael E. Brandt, Judge, Presiding.

[7] The opinion of the court was delivered by: Justice Lytton

[8]  The defendant, Alvin Earl Vernon, was convicted of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 2000)) and sentenced to 14 years in prison. On appeal, the defendant asserts that the trial court erred in failing to conduct a fitness hearing when a bona fide doubt had been raised as to his competence to stand trial. We affirm.

[9]  FACTS

[10]   The defendant was charged with aggravated criminal sexual assault on November 14, 2001. At a pretrial hearing on February 5, 2002, defense counsel informed the court that the defendant had been hospitalized for psychiatric treatment several times during the 1990's. In light of the defendant's history, he felt the defendant's mental fitness "should be explored at this stage rather than have it crop up later perhaps and cause a problem." Counsel requested appointment of Dr. So Hee Lee to conduct a psychiatric examination of the defendant. The State did not object, and the trial court appointed Dr. Lee. At the next hearing, the defendant requested a continuance, stating that the fitness examination had yet to be conducted and was scheduled for the following Sunday. The trial court continued the case and rescheduled the trial for May 28, 2002.

[11]   On May 28, the defendant appeared with counsel and waived his right to a jury trial. The parties did not discuss whether a psychological evaluation had been conducted, and a report was not included in the record on appeal. The cause proceeded to a bench trial. After considering the testimony, the trial court found the defendant guilty of aggravated criminal sexual assault. The defendant's posttrial motion was denied, and the trial court sentenced him to 14 years in prison. At no point in the proceedings did the defendant request a fitness hearing.

[12]   ANALYSIS

[13]   On appeal, the defendant contends that the trial court made an implicit finding that a bona fide doubt as to his fitness existed when it granted defense counsel's motion to appoint an expert to conduct an examination. He claims that, upon making such a finding, the trial court erred in failing to conduct a fitness hearing. The defendant cites People v. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311 (2002) in support of his argument.

[14]   We note that the defendant did not object to the court's failure to conduct a fitness hearing or raise the issue in his posttrial motion. While such issues are generally deemed waived, an issue may be reviewed as plain error when it concerns a substantial right. People v. Basler, 193 Ill. 2d 545, 740 N.E.2d 1 (2000). The determination of a defendant's fitness to stand trial concerns a substantial right. People v. Contorno, 322 Ill. App. 3d 177, 750 N.E.2d 290 (2001). Plain error review is therefore appropriate.

[15]   Due process bars the prosecution of a defendant who is not fit to stand trial. People v. Sandham, 174 Ill. 2d 379, 673 N.E.2d 1032. A defendant is presumed to be competent. 725 ILCS 5/104--10 (West 2000). However, a defendant is unfit if he is not able to understand the nature and purpose of the proceedings or to assist in his defense. 725 ILCS 5/104--10 (West 2000). An expert may be appointed to examine the defendant to determine if a bona fide doubt as to his fitness may be raised. 725 ILCS 5/104--11(b) (West 2000). Once a bona fide doubt has been raised with regard to the defendant's fitness, the trial court has a duty to hold a fitness hearing. People v. Griffin, 178 Ill. 2d 65, 687 N.E.2d 820 (1997). The question of whether a bona fide doubt exists is generally a matter within the discretion of the trial court. Sandham, 174 Ill. 2d 379, 673 N.E.2d 1032.

[16]   In Cleer, defense counsel filed a motion for a fitness evaluation and a fitness hearing. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311. The written motion stated that the defendant was not able to communicate with counsel or assist in his defense. Defense counsel also averred that he believed there was a bona fide doubt as to the defendant's competence to stand trial. The motion specifically requested a fitness hearing. The trial court granted the motion and appointed an expert. However, the court then failed to conduct a fitness hearing. Under the circumstances of that case, we held that the trial court implicitly found that a bona fide doubt existed when it accepted the defendant's motion. Cleer, 328 Ill. App. 3d 428, 766 N.E.2d 311. We decline to apply our finding in Cleer beyond those facts.

[17]   Here, the defendant insists that the trial court made an implicit finding that a bona fide doubt existed when it appointed an expert to examine him. This claim is not supported by the record. Unlike counsel in Cleer, defense counsel in this case simply made an oral request for the appointment of an expert to conduct a psychiatric examination. He did not request a fitness hearing. Defense counsel informed the court that he was asking for a fitness evaluation because the defendant had a tenuous history of psychiatric treatment and he wished to avoid any problems during the proceedings. There was no allegation that the defendant could not communicate with counsel, understand the nature of the proceedings or assist in his defense. At no time did counsel, formally or informally, raise a bona fide doubt as to the defendant's fitness to stand trial.

[18]   The defendant argues that by requesting an examination, and nothing more, defense counsel raised a bona fide doubt as to the defendant's fitness to stand trial. The defendant's argument, however, misconstrues the plain language of the statute under which the examination was sought. See People v. Koppa, 184 Ill. 2d 159, 703 N.E.2d 91 (1998) (best indication of legislative intent is the plain language of the statute).

[19]   Section 104--11 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104--11(b) (West 2000)) allows the defendant's fitness to stand trial to be raised by the defense, the State or the trial court at any time during the proceedings. Subsection (a) provides: "When a bona fide doubt of the defendant's fitness is raised, the court shall order a determination of the issue before proceeding further." 725 ILCS 5/104--11(a) (West 2000). Subsection (b) states: "Upon request of the defendant that a qualified expert be appointed to examine him or her to determine prior to trial if a bona fide doubt as to his or her fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination." 725 ILCS 5/104--11(b) (West 2000).

[20]   The plain language of subsection (b) specifically contemplates the appointment of an expert for the purpose of determining whether a bona fide doubt of the defendant's fitness will be raised. Appointment under this section clearly cannot be considered a conclusion, implicit or otherwise, concerning a bona fide doubt of the defendant's fitness. Indeed, the examination is requested to determine if a bona fide doubt "may be raised." Therefore, the trial judge commits no ...


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