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People v. Tursios

June 18, 2004


[6] Appeal from the Circuit Court of Lake County. No. 00--CF--2238 Honorable Victoria A. Rossetti,Judge, Presiding.

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

[8]  Defendant, Favio Tursios, appeals from the trial court's order denying his motion to withdraw his guilty plea. We affirm.

[9]  Defendant was charged with six criminal offenses arising out of the stabbing death of Yensi Rodriguez. A conference pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402) was held during which the trial court stated that it would enter a sentence of 20 to 25 years if defendant pleaded guilty to one count of first degree murder (720 ILCS 5/9--1 (West 2000)). Defendant asked that he be given until the following morning "to think about it." The next day, December 11, 2001, he pleaded guilty to one count of first degree murder. Pursuant to the plea negotiations, the State recommended a sentencing cap of 30 years. Defendant was admonished with the aid of an interpreter, as he was not fluent in English. A presentence report was ordered, and the case was continued for sentencing.

[10]   The presentence report was not complete on the next court date of February 15, 2002. Defense counsel Theodore Potkonjak informed the court that, during the preparation of the report, defendant told the probation officer that he did not want to cooperate because he was not guilty of first degree murder. He did not understand the procedures and thought that he had pleaded guilty to second degree murder. Defendant told Potkonjak that he wished to withdraw his guilty plea. Potkonjak did not think that he and his co-counsel, Scott Wineberg, could go forward with sentencing "because it puts us in the position that we have to ascertain whether or not there's a clear understanding of what he had pled guilty to." The court continued the matter for the filing of a written motion to withdraw the plea.

[11]   Counsel did not file a written motion. On the next court date, he informed the court that he had reviewed some of the transcripts regarding the guilty plea and discussed the plea with defendant, who no longer wished to withdraw the plea. When the court asked defendant, through an interpreter, if he had discussed this with his attorneys, defendant stated, "Yes, I would like to withdraw." Defense counsel then stated that he had "a bonafied [sic] doubt" about defendant's fitness to stand trial and requested a fitness evaluation. Counsel stated that, when he told things to defendant, "it seems to sink in, but it doesn't." Counsel wanted to clarify whether defendant truly could not understand the discussions regarding his plea or whether he was involved in "gamesmanship." Counsel also thought that the language barrier had something to do with the problem. The court did not find sufficient evidence of a bona fide doubt as to fitness and continued the case for preparation of the report and sentencing. The court stated:

[12]   "Now it seems to me that every time Mr. Turcios [sic]comes into Court he still can't make up his mind as to what he wants s [sic] to do. Yet, when he is in jail speaking with his attorneys he's satisfied with what he did in court. And then he comes into court, and maybe it's the - you know, when it's happening in the courtroom he can't make up his mind. I didn't find that there were any [sic] anything [sic] about the way he was questioned or talked to that he didn't understand what's happening. It may just be how the words are used, but he's asked questions. He understands the legal process. He's been able to communicate with his attorneys, and the only thing that he can't do is make up his mind as to whether or not he wants this motion to be filed to withdraw his plea."

[13]   Potkonjak also informed the court that he was leaving his practice before the next court date and that Wineberg would continue defendant's representation.

[14]   Before the next court date, Wineberg sent an investigator from his office to speak with defendant. Defendant told the investigator that his attorneys did nothing for him and did not tell him that he was pleading guilty to first degree murder. He wanted a sentence of less than 20 years in prison. Wineberg subsequently filed a motion to withdraw as attorney, citing a "total breakdown of communication." Wineberg stated that continued representation of defendant in pursuit of his motion to withdraw his plea would mean that Wineberg would have to allege the ineffectiveness of himself and Potkonjak, who had "since been bestowed a judicial robe." Further, he would still have to represent defendant at sentencing if a motion alleging his own ineffectiveness was denied. The trial court noted that defendant had never told Wineberg directly of any intent to allege ineffective assistance of counsel, nor had defendant informed the court of any such problem. The court continued the case for completion of the presentence report and recommended that Wineberg speak directly with defendant and "file whatever needs to be filed."

[15]   On the next court date, Wineberg stated that he had reviewed the transcripts of the Rule 402 conference and the plea, including the admonishments, and did not believe that a motion to withdraw defendant's guilty plea would be meritorious. The following colloquy then took place, with an interpreter present:

[16]   "THE COURT: Mr. Tursios, did you go over withdrawing your plea with Mr. Wineberg?

[17]   THE DEFENDANT: What? I didn't understand.

[18]   THE COURT: Did you talk to Mr. Wineberg about withdrawing or taking back your plea of guilty?

[19]   THE DEFENDANT: Yeah.

[20]   THE COURT: And you do not wish to do that? You wish to go forward with the sentencing today?

[21]   THE DEFENDANT: No, I just want to get the sentence now.

[22]   THE COURT: So you want to be sentenced today?

[23]   THE DEFENDANT: Yes."

[24]   Appended to the presentence report was a psychological evaluation by clinical psychologist Karen Chandry. Defendant told Chandry that he had trouble learning and concentrating in school when he was a child in Honduras. He also told of several untreated head injuries that he suffered as a child. As an adult, he traveled alone for four months through four countries to get to the United States. After he began to live with Yensi Rodriguez, the victim in this case, he began to use alcohol and marijuana. He was under the influence of both substances and did not know what he was doing when he stabbed Rodriguez during a fight. Since he was arrested, defendant suffered from post-traumatic stress disorder, resulting in nightmares of the offense and thoughts of suicide.

[25]   Chandry described defendant as cooperative with the evaluation process. Defendant "indicated by his questions and comments that he was having difficulty comprehending questions asked him." While he appeared to have "cognitive defects complicated by depression," he demonstrated "no evidence of delusional thinking or any other indicators of a formal thought disorder." He was "alert and oriented to time, place, and person." His ability to concentrate "appeared compromised," his judgment and level of insight were assessed as "fair to poor," and his intellectual functioning was rated as "low average." He appeared to have problems with frustration and anger and was impulsive and unpredictable. Chandry recommended that defendant be evaluated by a psychiatrist "for the usefulness of psychotropic medication" and "observed for further suicidal ideation and intentions, particularly after his sentencing and after he is first transferred to the Illinois Department of Corrections."

[26]   Following arguments, the court sentenced defendant to 23 years in the Department of Corrections. Defendant subsequently filed a motion to withdraw his guilty plea, which was written by Wineberg. The motion alleged that "something was lost in the translation" by the interpreters involved in the case such that defendant was not aware that he was pleading guilty to first degree murder and that he could receive a sentence of no less than 20 years in prison. He also argued that he had a meritorious defense of self-defense and that his "wavering" on his guilty plea was evidence that "he was pushed into making a hasty decision to forego his right to trial." The trial court denied this motion after a hearing. This appeal followed.

[27]   Defendant first contends that the trial court erred by not ordering a fitness hearing. Due process prohibits prosecuting or sentencing a defendant who is not competent to stand trial. People v. Sandham, 174 Ill. 2d 379, 382 (1996). Fitness to stand trial requires that the defendant understand the nature and purpose of the proceedings against him and be able to assist in his defense. Sandham, 174 Ill. 2d at 382. Fitness refers to a person's ability to function in the context of a trial and does not refer to sanity or competence in other areas; a defendant can be fit for trial although his mind may be otherwise unsound. People v. Easley, 192 Ill. 2d 307, 320 (2000). A defendant is entitled to a fitness hearing only when a bona fide doubt arises about the defendant's fitness. Easley, 192 Ill. 2d at 318. While there are no fixed or immutable signs that invariably indicate the need for further inquiry, relevant factors that the trial court may consider include the defendant's irrational behavior, the defendant's demeanor in ...

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