Appeal from the Circuit Court of Lake County. No. 05-CF-3046. Honorable Christopher R. Stride, Judge, Presiding.
Gillian E. Gosch, of Gosch Law Firm, P.C., of Wauconda, for appellant.
Michael G. Nerheim, State's Attorney, of Waukegan (Lawrence M. Bauer and Diane L. Campbell, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.
[¶1] Defendant, Paul Olsson, appeals from an order following a hearing, which he refused to attend, conducted pursuant to sections 104-25(g)(2) and 104-25(g)(2)(i) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-25(g)(2), (g)(2)(i) (West 2012)). Defendant argues that the court improperly waived his presence at the hearing by determining that an affidavit submitted by a treating psychiatrist complied with section 104-16(c) of the Code (725 ILCS 5/104-16(c) (West 2012)). He also contends that the court erred when it failed to require the Department of Human Services' (Department's) treatment staff to transport him to court and conducted the hearing over defense counsel's objection. For the reasons that follow, we affirm.
[¶2] I. BACKGROUND
[¶3] We outlined the procedural history of this case in People v. Olsson, 2011 IL App. (2d) 091351, ¶ 2, 958 N.E.2d 356, 354 Ill.Dec. 613, and People v. Olsson, 2012 IL App. (2d) 110856, ¶ 7, 979 N.E.2d 982, 366 Ill.Dec. 181. By way of background, defendant was charged with sex offenses involving children and was found unfit to stand trial. Following a discharge hearing (see 725 ILCS 5/104-25(a) (West 2012)), the court found defendant " not not guilty" of several of the charged offenses and ordered an extended period of treatment (see 725 ILCS 5/104-25(d) (West 2012)). At the expiration of that extended treatment period, the court remanded defendant to the Department for further treatment pursuant to section 104-25(g)(2) of the Code, " 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." Olsson, 2012 IL App. (2d) 110856, ¶ 1.
[¶4] During the section 104-25(g)(2) period of treatment, defendant's facility director must file a typed treatment plan report with the court every 90 days. 725 ILCS 5/104-25(g)(2) (West 2012). The statute permits the court to order a hearing on its own motion to review the treatment plan. 725 ILCS 5/104-25(g)(2) (West 2012). Additionally, the court must set a hearing every 180 days to make a finding as to whether defendant is " (A) subject to involuntary admission; or (B) in need of mental health services in the form of inpatient care; or (C) in need of mental health services but not subject to involuntary admission nor inpatient care." 725 ILCS 5/104-25(g)(2)(i) (West 2012); see also Olsson, 2012 IL App. (2d) 110856, 979 N.E.2d 982, 366 Ill.Dec. 181 ¶ ¶ 6, 17. Although the court and the parties routinely refer to these proceedings as " (g)(2) hearings," it is more accurate to say that, every 90 days, the court has elected to both review the sufficiency of defendant's treatment plan on its own motion and hold section 104-25(g)(2)(i) hearings.
[¶5] In a treatment plan report dated July 25, 2014, the Department opined that defendant was fit to stand trial. Alternatively, the Department believed that defendant was " subject to involuntary admission based on his diagnosis of Pedophilia and constitute[d] a serious threat to the public safety." The Department has consistently expressed this opinion. See Olsson, 2012 IL App. (2d) 110856, ¶ 10. The July 2014 report noted that defendant " declines to explain what specific issues prevent him from being able to assist his attorney but seems to feel that assisting his attorney would not be in his best interest." According to the report, defendant " is fully able to discuss fitness related issues and terms on a rational and coherent level, so long as the counselor does not attempt to go into the specific aspects of [his] current charges." The Department believed that defendant's " refusal to work with his attorney appears to be a deliberate attempt to remain Unfit and a legal strategy designed to serve as much of any possible sentence at Elgin [Mental Health Center], as opposed to prison."
[¶6] On August 4, 2014, the court conducted a treatment plan review and held a hearing pursuant to section 104-25(g)(2)(i). Defendant was not present, even though the court had previously granted the State's petition for a writ directing the Department to bring him to the hearing. The State submitted to the court the affidavit of defendant's treating psychiatrist, Dr. Richard Malis. In his affidavit, Dr. Malis stated the following. Defendant had refused to attend hearings since October 2011. On August 1, 2014, Dr. Malis met with defendant and asked whether he was willing to be transported to court on August 4. Defendant responded that he did not plan to go to court, indicating that he had no main reason for declining to attend and that his reasons were the same as in the past. Dr. Malis noted in his affidavit that defendant had previously stated that motion sickness was one of the reasons why he did not want to be transported. When Dr. Malis asked defendant whether this was the reason he was refusing to attend court, defendant said that it was one factor, but not the main factor. Dr. Malis then asked defendant whether he was willing to take medication to alleviate his motion sickness. Defendant responded that he would take the medication if he were physically forced to attend. Dr. Malis noted that defendant had previously indicated
that he thought that the hearings were a sham. Dr. Malis asked defendant whether this was the reason he refused to attend court, and he once again said that it was one factor, but not the main factor. Defendant told Dr. Malis that he would not struggle if force were used to bring him to court, but he said that he would go under verbal protest. Dr. Malis could not confirm that a medical condition prevented defendant from being transported to court, despite what defendant had expressed to him.
[¶7] The State requested to proceed in defendant's absence, asserting that Dr. Malis's affidavit was filed pursuant to section 104-16 of the Code, which provides the procedure for waiving a defendant's right to be present at hearings " on the issue of his fitness." 725 ILCS 5/104-16(c) (West 2012). The assistant public defender who represented defendant objected on the basis that the affidavit did not " meet the criteria set forth in the statute," presumably section 104-16(c). Specifically, defense counsel argued that defendant was " just choosing not to be here," which counsel did not believe was a proper ground under the statute to waive defendant's presence. Defense counsel objected to proceeding in defendant's absence and moved to continue the matter until he was present.
[¶8] After reviewing Dr. Malis's affidavit, the court stated: " And again, my position is the same. I'm not going to require the Department of Human Services to lay hands on Mr. Olsson, put him in restraints and force him to attend the hearing. He's got a right to attend. I'm going to find that the State has satisfied section 725 ...