Appeal from the Circuit Court of Clinton County. No. 03-CF-16. Honorable Kelly D. Long, Judge, presiding.
The opinion of the court was delivered by: Justice Kuehn
Rule 23 order filed February 14, 2005; Motion to publish granted March 17, 2005.
Alfred Roby, the defendant, appeals from the denial by the circuit court of Clinton County of his motion to withdraw his negotiated plea of guilty to aggravated battery. He asserts that the trial court committed reversible error when it conducted a hearing on his motion to withdraw his plea, because the defendant was mentally unfit at the time of the hearing on the motion. He seeks the reversal of the trial court's denial of his postplea motion and a remand of the case to the circuit court with directions to make a determination of his current mental status and to allow him to participate in a hearing on his motion to withdraw his plea when he is mentally fit to do so.
On February 25, 2003, the defendant, then an inmate in the Department of Corrections (Department) at Centralia Correctional Center (Centralia), was charged in Clinton County with aggravated battery for having struck another inmate with a barbell on November 6, 2002. The record substantiates that he was transferred to Menard Correctional Center (Menard) in November 2002. Attorney John Hudspeth (Hudspeth) was appointed to represent him, and on June 3, 2003, the defendant entered a negotiated plea of guilty to aggravated battery in exchange for a recommendation of a sentence of three years' imprisonment. The defendant participated in the plea process by providing what were in essence "yes" or "no" answers to the court's inquiries. The preliminary hearing testimony of a Department employee about the defendant's act of striking another inmate with a 30-pound barbell was utilized by the court as the factual basis for the plea. The court was informed about the defendant's criminal history and accepted the plea. The defendant was sentenced to a term of three years in prison, to be served consecutively to the sentence for retail theft for which he was then incarcerated.
On June 26, 2003, the defendant filed a pro se motion to withdraw his plea and vacate his sentence. He contended that his plea was entered while he was mentally incompetent due to the conditions under which he was being held in segregation at Menard, where he was subjected to ill treatment at the hands of other prisoners and the correctional officers, who were conspiring to extend his time in custody and disregarding his medical needs. Joseph Heiligenstein (Heiligenstein) was appointed on July 1, 2003, to represent the defendant on his motion to withdraw his plea. On September 5, 2003, counsel filed a motion to withdraw the plea and a certificate pursuant to Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). On October 16, 2003, counsel moved for a fitness examination and a fitness hearing. The motion was granted on November 3, 2003.
On November 12, 2003, S. D. Parwatikar, M.D., examined the defendant. On January 7, 2004, he filed a report that was dated December 2, 2003. The report related that the defendant had been diagnosed and treated for bipolar disorder and paranoid schizophrenia since the age of 36, that he was periodically treated by the Department for his mental illness, that he had been transferred from Centralia to Menard in November 2002, and that after his transfer to that prison he refused to take the medication that was prescribed by Dr. Mirza Baig, the chief psychiatrist at Menard. Dr. Parwatikar diagnosed the defendant as being a paranoid schizophrenic who exhibited acute symptomology due to his refusal to accept the treatment provided for him at Menard by Dr. Baig. The doctor found that the defendant's mental status rendered him unfit to stand trial. He lacked the capacity to assist his attorney in his defense, but if medicated, he would respond to medications and return to fitness. Dr. Parwatikar also filed a letter in which he related that Dr. Baig had confirmed that the defendant was being treated for bipolar disorder, not otherwise specified, and substance-induced mood disorder and that he had paranoid and persecutory delusions. Dr. Baig had also confirmed that the defendant had been hospitalized a number of times from 1979 forward for mental health reasons. Dr. Baig stated that at times the defendant did agree to take his medication but that even when he took his medication, he did not take it in the manner in which it was prescribed.
On January 5, 2004, defense counsel filed an amended motion to withdraw the defendant's plea. The amended motion reasserted the prior allegations and added the allegation that the defendant was mentally unfit to enter his plea.
The defendant's motion to withdraw his plea was heard on January 8, 2004. Dr. Parwatikar testified that the defendant was delusional and exhibited paranoid and persecutory ideation, that he was not capable of imparting information in a rational and factual manner when the doctor examined him on November 12, 2003, and that he was not feigning mental illness. The doctor related that it was impossible to discern whether the defendant's refusal to take his antipsychotic and antianxiety medication was sporadic or continuous. Dr. Parwatikar believed that the defendant could become capable of communicating effectively with his counsel if he took his medication. The doctor used the term "fit to stand trial" to describe the mental state that was desired for the defendant, although he was admittedly not being examined in order to determine whether a prosecution could proceed against him. He was unable to retroactively assess the defendant's mental condition or to state whether or not the defendant was able to assist in his defense on June 3, 2003, when he entered his guilty plea.
Attorney Hudspeth was called to testify. When Hudspeth questioned whether the defendant had waived the attorney-client privilege, Heiligenstein stated that he needed to speak with the defendant about whether he wished to waive the privilege but that he did not know whether or not the defendant could assist Heiligenstein. A recess was taken to allow Heiligenstein to confer with the defendant. The proceedings resumed without any discussion of whether the defendant was capable of waiving attorney-client confidentiality or if he had in fact agreed to do so. Hudspeth testified about the circumstances surrounding the defendant's entry of the plea. He asserted that he and the defendant had discussed the facts of the case and his legal options, they had discussed two different offers that had been made by the State, and the defendant "seemed very pleased and relieved and satisfied" when he entered his plea. Hudspeth testified that at the time of the plea he had no questions about the defendant's mental ability to understand the charge against him or his ability to assist his counsel and that he would not have allowed the defendant to plead if doubts about his mental status had been present. Hudspeth recognized that the defendant was emotionally troubled, and he knew that the defendant had a history of being medicated by prison physicians, but he could not state whether the defendant had been taking medications at the time that he entered his plea. Hudspeth admitted that the defendant was emotionally distraught when he spoke with him about the case, but the attorney was certain that the defendant was not emotionally distraught when he pleaded guilty. Hudspeth would have sought a fitness examination if he had believed that the defendant was unfit to plead guilty.
The court took judicial notice of the transcripts of the preliminary hearing and the guilty plea, the contents of the court file, and Dr. Parwatikar's report and letter. It characterized the proceeding before it as a fitness hearing "in kind of an indirect way." Defense counsel argued that the defendant was unfit at the time that he pleaded guilty and that thus he was entitled to have his guilty plea vacated. The State contended that the defendant had failed to meet his burden of proof in regard to his allegation that he was unfit to enter his plea despite the fact that the evidence seemed to establish that the defendant was unfit to assist his counsel at the hearing taking place. The court took the matter under advisement, and on March 5, 2004, it made an extensive docket sheet entry in which it denied the defendant's motion to withdraw his plea.
On appeal, the defendant contends that he is entitled to the vacation of the denial of his motion to withdraw his guilty plea because the court committed reversible error by holding a hearing on his motion to withdraw his plea at a time when the defendant was unfit to assist his counsel in presenting his case. He seeks the remand of his case for a new hearing on his motion to withdraw his plea when he is mentally fit to participate in his defense. The defendant urges the court to address the issues despite the fact they might be considered to have been waived through counsel's failure to seek a continuance of the hearing. In the alternative, he asserts that posttrial counsel provided inadequate assistance by proceeding with the hearing at a time when the defendant was unfit to participate in his own defense, warranting the consideration of the issue that could otherwise be deemed to have been waived.
The State concedes that statutory law and case law "suggest" that the provisions for the appointment of counsel to represent a defendant in posttrial proceedings are meaningless if a defendant is mentally unfit to rationally communicate with counsel. It contends that in the case at bar the defendant's alleged unfitness at the time of the hearing on his motion to withdraw his plea did not prejudice the defendant's cause because his counsel competently represented him at the hearing in regard to matters that were of record and the record supported the conclusion that he had been fit to enter his guilty plea. It argues that any claims that might be based on extrarecord personal recollection or information that is known only to the defendant may be litigated via the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2002)) when he becomes mentally fit. The State does not address ...