Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Rosado

Court of Appeals of Illinois, First District, Fifth Division

September 9, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
NESTOR ROSADO, Defendant-Appellant

         Appeal from the Circuit Court of Cook County, Nos. 03-CR-11388-01, 04-CR-13881-01; the Hon. Charles P. Burns, Judge, presiding.

          Raymond G. Wigell and Huma Rashid, both of Law Offices of Raymond G. Wigell, Ltd., of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jon Walters, and Nancy Colletti, Assistant State's Attorneys, of counsel), for the People.

          Panel JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.

          OPINION

          REYES, JUSTICE

         ¶ 1 This appeal arises from the dismissal of defendant Nestor Rosado's first-stage postconviction petition. More than eight years after pleading guilty to two separate crimes of aggravated criminal sexual assault, defendant filed a postconviction petition alleging that the trial court erred in failing to conduct a sua sponte fitness hearing and that he received ineffective assistance of trial counsel. The circuit court dismissed the petition, and defendant appealed. While defendant raises four enumerated arguments on appeal, we find these arguments can be combined into two issues. Thus, on appeal, defendant contends he set forth adequate postconviction claims that (1) he was denied due process where the trial court erred in failing to conduct a sua sponte fitness hearing and (2) his trial counsel was ineffective for failing to request a fitness hearing. For the reasons that follow, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Initially, we observe that defendant has failed to provide this court with a complete record, as numerous transcripts are missing. Accordingly, the facts recited herein are limited to the record provided to this court. We further observe that the record is sufficient to permit proper consideration of defendant's specific claims of error.

         ¶ 4 Defendant's postconviction petition challenged two separate convictions. In the first case, defendant was charged with 24 counts of aggravated criminal sexual assault, 4 counts of aggravated kidnapping, and 2 counts of kidnapping. In the second case, defendant was charged with 12 counts of aggravated criminal sexual assault, 3 counts of criminal sexual assault, 2 counts of aggravated kidnapping, 1 count of kidnapping, and 1 count of unlawful restraint. Each case occurred between 2002 and 2003.

         ¶ 5 Defense counsel requested a behavior clinical evaluation on July 7, 2003, to evaluate defendant's fitness to stand trial. Defense counsel informed the trial court that defendant informed counsel that he "has been on certain medications in the past." The trial court granted defendant's request.

         ¶ 6 Sharon Coleman (Coleman), a licensed clinical psychologist, examined defendant on July 16, 2003. Coleman opined, to a reasonable degree of psychological and scientific certainty, that defendant was fit to stand trial. Coleman observed that although defendant "presents with a history of chemical dependence and symptoms of a thought process disturbance, his condition appears to be in an adequate state of remission at this time and does not dramatically compromise his ability to understand the nature and the purpose of the proceedings currently pending against him." In fact, Coleman found defendant conveyed a "clear awareness of his current charge status and an adequate understanding of courtroom procedure, the role responsibilities of key courtroom personnel, and possible dispositions that could be rendered in his case. In addition, [defendant] was able to identify his public defender and adequately describe [counsel's] role. He also appropriately discussed his ability to work with [counsel] regarding his legal case." Coleman, however, indicated that defendant's fitness to stand trial with medication would need to be addressed by a forensic clinical services physician.

         ¶ 7 Dr. Carol Flippen (Flippen), a forensic clinical services physician, examined defendant on August 1, 2003. Flippen opined that, based on her examination and review of defendant's medical records, defendant was fit to stand trial with medication. Flippen indicated that defendant "understands the nature of the proceedings against him and his current criminal charge." Flippen further found that if defendant chose to cooperate, he has the ability to assist his counsel toward his defense. Flippen indicated that, "If Mr. Rosado does not take the medications as prescribed, the symptoms of his mental illness can worsen and compromise his fitness to stand trial. It is recommended that Mr. Rosado take the psychotropic medication as prescribed and adjusted by his treating psychiatrist, to maintain fitness to stand trial."

         ¶ 8 On July 28, 2004, defense counsel informed the trial court that, after speaking with defendant, he caused counsel to believe that he was in need of a fitness evaluation. The trial court referred defendant to be examined for his fitness to stand trial and regarding his sanity at the time of the offenses.

         ¶ 9 On August 4, 2004, Dr. Peter Lourgos (Lourgos), a staff forensic psychiatrist, indicated that he attempted to evaluate defendant but that defendant was uncooperative with the examination. According to Lourgos, defendant's presentation was "extreme and consistent with malingering of symptoms as opposed to symptoms consistent with any known mental illness." Due to defendant's behavior, Lourgos was unable to render an opinion as to defendant's fitness to stand trial or his sanity at the time of the offenses.

         ¶ 10 The issue of defendant's fitness to stand trial was before the court on September 8, 2004. The trial court acknowledged its receipt of Lourgos's report and informed defendant that he had a choice of either cooperating with the doctor or waiving the issue. Defense counsel requested another evaluation and indicated she would speak with defendant. The trial court continued the matter to October 14, 2004.

         ¶ 11 On October 5, 2004, Coleman again evaluated defendant regarding his fitness to stand trial. Coleman, however, was unable to provide an opinion because defendant refused to participate or answer questions. According to Coleman, defendant's behavior "appears to be largely volitional and attributable to malingering." Upon receipt of this report, the trial court allowed defendant to obtain another fitness evaluation.

         ¶ 12 Lourgos informed the court on November 24, 2004, that he attempted to examine defendant on three separate occasions (August 4, 2004; September 24, 2004; and November 18, 2004) for the purpose of assessing defendant's fitness to stand trial and sanity at the time of the offenses. Lourgos indicated that defendant was uncooperative with the examinations as he refused to provide him with even basic information and further refused to participate in the examinations or answer questions. According to Lourgos, "Although there is evidence that Mr. Rosado suffers from a psychotic disorder, his current presentation appears to be largely volitional (i.e., an attempt to malinger mental illness) as opposed to symptoms consistent with any known mental illness." Lourgos concluded that, due to defendant's uncooperativeness, he was unable to render an independent opinion as to his fitness to stand trial and his sanity. Based on this report, on November 29, 2004, defense counsel informed the trial court that defendant again had failed to cooperate and obtain a fitness evaluation. The trial court then set the matter for hearing on defendant's motion to suppress.

         ¶ 13 After the court conducted an evidentiary hearing and denied defendant's motion to suppress, on May 3, 2005, defense counsel again requested that the trial court order defendant be evaluated for sanity at the time of the offenses. The trial court acknowledged that defendant had not been complying with the physicians. Defense counsel replied that she had spoken with defendant. The trial court then continued the matter for defendant to obtain a fitness evaluation.

         ¶ 14 Licensed clinical psychologist Erick Neu (Neu) indicated in a June 3, 2005, letter to the trial court that, based on his examination of defendant, defendant was legally sane at the time of the offenses. According to Neu, "Although he appears to suffer from a legitimate psychotic disorder, there is ample evidence that he is exaggerating the severity of his symptoms (i.e. that he is malingering). *** Although he may have been suffering from a mental illness at the time of the alleged offense, it does not appear that his symptoms prevented him from being capable of appreciating the criminality of his behavior."

         ¶ 15 Thereafter, defendant agreed to a Rule 402 conference, and on October 4, 2005, the trial court explained to defendant the following:

"THE COURT: Mr. Rosado, your attorney informs me you wish to have a 402 conference. That is a conference between your attorney, the State's Attorney, and myself, the purpose of which is to see if the case can be disposed of without going to trial. Normally that is done through a plea of guilty.
At the end of this conference I would inform your attorney what I would do in exchange for a plea of guilty. The fact that I do that does not require you to plead guilty. You can continue to plead not guilty, have a trial-bench or jury-whatever you wish. Understand?
DEFENDANT: Yes.
THE COURT: At the conference I would hear facts about you in this case I wouldn't normally hear. The fact I hear this information does not entitle you to ask for a substitution of judge. The case will stay here in front of me. Do you understand that?
DEFENDANT: Yes.
THE COURT: Nothing I hear at this conference if you choose not to plead guilty will be used against you in any way. It would still be in front of me. DEFENDANT: Yes.
THE COURT: Do you understand what I've just told you?
DEFENDANT: Yes.
THE COURT: Do you wish me to have this conference?
DEFENDANT: Yes."

         ¶ 16 The trial court then conducted a Rule 402 conference off the record. Upon recommencing the proceedings, the trial court informed defendant that both offenses were Class X felonies punishable by 6 to 30 years in the penitentiary or 30 to 60 years with an extended term and that the sentences would be served consecutively. The trial court further informed defendant that upon completion of his sentence he would be subject to three years of mandatory supervised release. The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.