Appeal from the Circuit Court ) of Lake County. Nos. 05-CF-3046 ) 05-CF-3629 Honorable Christopher R. Stride, Judge, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.
¶ 1 These consolidated appeals arise from orders entered during the period when defendant, Paul Olsson, was in the custody of the Department of Human Services (Department) pursuant to section 104-25(g)(2) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2) (West 2010)), which provides for the potentially long-term commitment of a criminal defendant who has been found unfit to stand trial and for whom treatment to attain fitness has been unsuccessful. The period of commitment under this provision may be as long as the maximum sentence for the charged offense. Id. While the defendant is committed under section 104-25(g)(2), the trial court must periodically review his or her condition and treatment needs. Defendant argues that the trial court's review proceedings were deficient because (1) the facility to which he is committed failed to comply with its statutory duty to report on his treatment and his condition, and (2) the trial court failed to conduct a meaningful hearing to determine whether he had been restored to fitness. We agree with the first argument and therefore vacate the orders and remand for further proceedings. We find no error, however, relative to the question of defendant's fitness.
¶ 2 At the outset, a somewhat detailed overview of the Code's provisions concerning fitness to stand trial will serve as a useful backdrop for an understanding of the procedural history of these appeals and of the issues defendant raises. "A defendant is unfit to stand trial if he is 'unable to understand the nature and purpose of the proceedings against him or to assist in his defense.' " People v. Weeks, 393 Ill. App. 3d 1004, 1008 (2009) (quoting People v. Burton, 184 Ill. 2d 1, 13 (1998)). The due process clause forbids conviction of a defendant who is unfit to stand trial. People v. McCallister, 193 Ill. 2d 63, 110 (2000). Section 104-13(a) of the Code (725 ILCS 5/104-13(a) (West 2010)) provides that, when an issue of fitness involves the defendant's mental condition, the court shall order the defendant to be examined by one or more physicians, clinical psychologists, or psychiatrists. The person or persons conducting the examination must submit a written report. 725 ILCS 5/104-15(a) (West 2010). If the report indicates that the defendant is unfit to stand trial, it shall also include an opinion as to whether, with treatment, the defendant is likely to attain fitness within one year. 725 ILCS 5/104-15(b) (West 2010). The trial court shall conduct a fitness hearing within 45 days of receipt of the report. 725 ILCS 5/104-16(a) (West 2010). Either the State or the defendant may demand that the issue of fitness be heard by a jury. 725 ILCS 5/104-12 (West 2010). Additionally, the court, on its own motion, may refer the question to a jury. Id.
¶ 3 If the court or the jury finds that the defendant is unfit, it shall also determine "whether there is substantial probability that the defendant, if provided with a course of treatment, will attain fitness within one year," in which case the trial court shall order the defendant to undergo treatment for the purpose of rendering him or her fit. 725 ILCS 5/104-16(d) (West 2010). Pursuant to section 104-18(a) of the Code (725 ILCS 5/104-18(a) (West 2010)), the defendant's treatment supervisor must submit a written progress report at least seven days before any fitness hearing or whenever the treatment supervisor believes that the defendant has attained fitness or that there is not a substantial probability the defendant will attain fitness within one year of the original finding of unfitness. Section 104-20(a) of the Code (725 ILCS 5/104-20(a) (West Supp. 2011)) provides that the trial court shall set a date to re-examine the issue of fitness not more than 90 days after "entry or continuation of any order to undergo treatment" or within 14 days after receipt of a progress report indicating that the defendant has attained fitness or that there is not a substantial probability the defendant will attain fitness within one year of the original finding of unfitness. If the court finds that the defendant is making progress toward fitness, the court may continue or modify the original treatment order. 725 ILCS 5/104-20(b) (West Supp. 2011). If the court finds that the defendant remains unfit and is not making progress toward attaining fitness within one year of the original finding of unfitness, the court must proceed in accordance with section 104-23 of the Code (725 ILCS 5/104-23 (West 2010)).
¶ 4 Section 104-23 provides, in pertinent part, as follows:
"(a) Upon a determination that there is not a substantial probability that the defendant will attain fitness within one year from the original finding of unfitness, a defendant or the attorney for the defendant may move for a discharge hearing pursuant to the provisions of Section 104-25. The discharge hearing shall be held within 120 days of the filing of a motion for a discharge hearing, unless the delay is occasioned by the defendant.
(b) If at any time the court determines that there is not a substantial probability that the defendant will become fit to stand trial or to plead within one year from the date of the original finding of unfitness, or if at the end of one year from that date the court finds the defendant still unfit and for whom no special provisions or assistance can compensate for his disabilities and render him fit, the State shall request the court:
(1) To set the matter for hearing pursuant to Section 104-25 unless a hearing has already been held pursuant to paragraph (a) of this Section; or
(2) To release the defendant from custody and to dismiss with prejudice the charges against him; or
(3) To remand the defendant to the custody of the Department *** and order a [civil commitment] hearing to be conducted pursuant to the provisions of the Mental Health and Developmental Disabilities Code [(Mental Health Code) (405 ILCS 5/100 et seq. (West 2010))] ***. *** If the defendant is committed to the Department *** pursuant to such hearing, the court having jurisdiction over the criminal matter shall dismiss the charges against the defendant, with the leave to reinstate. *** A defendant who is not committed shall be remanded to the court having jurisdiction of the criminal matter for disposition pursuant to subparagraph
(1) or (2) of paragraph (b) of this Section." Id.
¶ 5 At the discharge hearing referred to in subsections (a) and (b)(1) of section 104-23 (725 ILCS 5/104-23(a), (b)(1) (West 2010)), the trial court must determine whether there is sufficient evidence to prove beyond a reasonable doubt that the defendant is guilty of a crime. If so, the defendant may be remanded pursuant to section 104-25(d) (725 ILCS 104-25(d) (West 2010)) for further treatment, and the treatment period may be extended to a maximum period of 5 years when the crime is first-degree murder; 2 years when the crime is a Class X or Class 1 felony; or 15 months if the crime is a Class 2, 3, or 4 felony. Id.
¶ 6 Section 104-25(g)(2) (725 ILCS 5/104-25(g)(2) (West 2010)), which is central to these appeals, provides for the continued commitment of the defendant if he or she remains unfit at the end of the extended treatment period under section 104-25(d). The threshold requirement for commitment under section 104-25(g)(2) is a determination that the defendant "is subject to involuntary admission under the [Mental Health Code] or constitutes a serious threat to the public safety." Id. A treatment plan shall be prepared for a defendant committed under this provision and every 90 days the director of the facility in which the defendant has been placed must file with the trial court a written treatment plan report. (The contents of the ...