People v. Tapscott ( 2008 )

NO. 4-08-0036 Filed 12/19/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
CORNELIUS M. TAPSCOTT, ) No. 06CF212
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In May 2006, defendant, Cornelius M. Tapscott, pleaded
guilty to criminal sexual assault (720 ILCS 5/12-13(a)(2) (West
2004)). He was sentenced to 15 years in the Department of
Corrections (DOC) with 96 days' sentence credit. Defendant
appealed his conviction and sentence. This court remanded the
cause because defense counsel's certificate was not in compliance
with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)). People
v. Tapscott, No. 4-06-0680 (July 30, 2007) (unpublished order
under Supreme Court Rule 23). Defendant now appeals on the
following grounds: (1) the trial court's failure to sua sponte
conduct a fitness hearing and (2) alternatively, ineffective
assistance of counsel for counsel's failure to request a fitness
hearing. We affirm.
I. BACKGROUND
In January 2006, the State charged defendant by infor-
mation with two counts of aggravated criminal sexual assault.
Count I alleged that defendant committed the Class X felony of
aggravated criminal sexual assault when, with the threat of the
use of force, he placed his penis in the sex organ of the victim
while he was armed with a firearm (720 ILCS 5/12-14(a)(8), (d)
(West 2004). Count II alleged that defendant committed the Class
X felony of aggravated criminal sexual assault when, with the
threat of the use of force, he placed his penis in the sex organ
of the victim while threatening the victim in such a way as to
believe under the circumstances he was utilizing a dangerous
weapon (720 ILCS 5/12-14(a)(1), (d) (West 2004)). In February
2006, the grand jury returned a two-count indictment charging
defendant with the identical counts of aggravated criminal sexual
assault.
On April 6, 2006, the State charged defendant by
information with the Class 1 felony of criminal sexual assault
(720 ILCS 5/12-13(a)(2), (b) (West 2004)) (count III). That same
day, defendant filed a jury waiver.
On April 7, 2006, the parties appeared for a guilty
plea hearing. The trial court advised defendant that the State
filed an additional count (count III) charging him with criminal
sexual assault. The court explained the new charge stated that
defendant committed an act of sexual penetration on the victim by
placing his penis in the vagina of the victim knowing that she
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was unable to give knowing consent. Defendant advised the court
he understood the charge. The court further admonished defendant
that this was a Class 1 felony with a minimum sentence of 4 years
and a maximum sentence of 15 years, followed by a period of
mandatory supervised release of 2 years. Defendant advised the
court he understood the potential penalties. When asked, defen-
dant indicated his intention to plead guilty.
The trial court further admonished defendant as fol-
lows:
"THE COURT: Now, [defendant], when you
come in to court and offer to plead guilty,
that means you're going to give up some
rights.
You have an absolute right to a trial on
this charge and that would either be a trial
in front of a judge or a trial in front of a
jury.
But when you come in to court and offer
to plead guilty, that means you're going to
give up your right to a trial and we're not
going to have a trial of any kind; you under-
stand that?
THE DEFENDANT: Yes, sir.
THE COURT: If we were going to have a
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trial, the State would have to prove you
guilty beyond a reasonable doubt before you
could be convicted. You understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And as you sit there now, you
can still plead not guilty and demand a
trial. You understand that?
THE DEFENDANT: Yes sir.
THE COURT: Again, if there was a trial
in your case, you would have a right to hear
the witnesses testify. They'd sit there in
the witness chair and they would testify in
open court. You could sit there and listen
to what they had to say and then you could
ask them questions about what they had said
through your lawyer. That's called cross-
examination.
You could call witnesses at your trial
if you wanted. And you could testify at your
trial if you wanted. But if you did not want
to testify at your trial, no one could make
you do that if you didn't want to. You un-
derstand that?
THE DEFENDANT: Yes, sir.
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THE COURT: So, you understand that when
you plead guilty, that means you're going to
give up your right to a trial and we won't
have a trial of any kind; you understand
that?
THE DEFENDANT: Yes, sir.
THE COURT: Now, is your plea of guilty
today voluntary? Is this of your own free
will?
THE DEFENDANT: Yes, sir."
The State advised that in exchange for defendant's
guilty plea to count III, the State would move to dismiss counts
I and II as well as another pending felony case. The agreement
did not include any sentencing recommendation. The trial court
advised defendant as follows:
"THE COURT: [Defendant], as I understand
the situation, we're going to continue this
matter for a sentencing hearing. And at that
sentencing hearing, [c]ounts I and II are
going to be dismissed, as well as the other
felony matter. And your penalty range will
be anything from somewhere between 4 and 15
years in prison.
Is that your understanding of where we
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are right now?
THE DEFENDANT: Yes, sir.
THE COURT: Has anyone promised you any-
thing else to get you to plead guilty?
THE DEFENDANT: No sir,
THE COURT: Has anyone forced you or
threatened you?
THE DEFENDANT: No sir."
The factual basis indicated the evidence would show
that on April 25, 2005, the 16-year-old victim was at a home in
Champaign, Illinois, with some friends, during which time she
consumed both cannabis and alcohol. Sometime later that night,
defendant sexually penetrated the victim. Deoxyribonucleic acid
(DNA) from the victim later confirmed defendant's sexual penetra-
tion of her.
Defendant persisted in his guilty plea. The trial
court found the plea to be knowing and voluntary, without coer-
cion or threats, and that a factual basis was stated for the
plea. The court set the matter over for sentencing.
The presentence investigation (PSI) report filed in May
2006 reflected that defendant was 20 years old, unmarried, with a
child due in July 2006. Defendant had a prior juvenile and adult
criminal history. The juvenile history included adjudication for
three separate thefts, two of which were committed while defen-
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dant was on conditional discharge for the first theft. His
conditional discharge was revoked, and he was resentenced to 24
months' probation. While on probation, two petitions for finding
of indirect criminal contempt were filed alleging curfew viola-
tions. Defendant was ultimately sentenced to serve time in the
youth detention center and the county jail. Defendant later
stipulated to a delinquency petition alleging aggravated battery.
He was sentenced to DOC, Juvenile Division.
Defendant's adult history included an October 2003
battery, for which defendant was sentenced to conditional dis-
charge; an August 2004 disorderly conduct, for which defendant
was sentenced to conditional discharge; and a September 2004
domestic battery, for which he was sentenced to 18 months'
probation. A petition to revoke was filed in March 2005 that
alleged defendant attempted to destroy a drug-test sample.
Disposition of the revocation proceedings was pending when the
PSI report was filed. The report reflected that defendant had
not complied with several other conditions of probation. While
on probation, defendant committed the instant offense in April
2005 and was charged with theft in July 2005, resisting a peace
officer in September 2005, and attempt (murder) and aggravated
discharge of a firearm in November 2005. Defendant also had
several traffic offenses.
The PSI report reflected that defendant graduated from
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high school by meeting the requirements of a special-education
student. Defendant had received special-education services since
kindergarten. The report reflected that defendant's reading
abilities are limited. He is able to print but cannot write in
cursive.
The PSI report further reflected that numerous mental
health and/or psychological evaluations had been completed on
defendant between 1992 and 2001. These were performed at the
request of the public school programs, the Illinois Department of
Children and Family Services (DCFS), and DOC. Various social-
service agencies had offered defendant counseling over the years.
Throughout his youth, he had also been prescribed various medica-
tions to address mental-health disorders, including intermittent
explosive disorder, conduct disorder, attention deficit hyperac-
tivity disorder (ADHD), and probable post-traumatic stress
disorder. These medications included Ritalin, Tegretol,
clonodine, Haldol, and Prozac.
Attached to the PSI report was a psychological assess-
ment report performed on defendant by the University of Illinois
(U of I) when defendant was 16 years old. The report reflected
that defendant's father was not involved in his life and that he
had at various times been separated from his mother because of
DCFS intervention. Defendant attended various schools mainly due
to behavioral problems. He finished his education at Cunningham
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Children's Home's Circle Academy as a nonresident. While at
Circle Academy, defendant's behavior and schoolwork improved
significantly. Defendant developed a strong personal relation-
ship with teachers and staff at Circle Academy. Defendant's
emotional and cognitive problems interfered with his schoolwork
and his social skills because he socially functioned well below
his peers. Further, defendant was seen as a person who was
easily persuaded by his peers. He was not someone who would
decide on his own to harm another.
The U of I report reflected that throughout his life
defendant had been subjected to various tests to assess his
intelligence quotient (IQ). In 1991, defendant's full-scale IQ
was 83, placing him in the "slow[-]learner range of intelli-
gence." In 1995, defendant again was determined to have a full-
scale IQ of 83. In 1997, defendant's full-scale IQ was 70,
placing him in the "mild[-]mental[-]retardation range." In 1998,
defendant showed a full-scale IQ of 65, placing him in the
"mildly mentally impaired range." In 1999, defendant's full-
scale IQ was 59, in the "mentally deficient range." However, the
examiner noted that defendant "tended to give up easily, and
answer 'I don't know' to questions before really trying." When
the U of I examiner tested defendant's IQ, his full-scale IQ was
63, in the "deficient range of intelligence."
At the May 2006 sentencing hearing, the State presented
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the testimony of Lisa Staples, a detective with the Champaign
police department. Staples testified that she conducted a
follow-up investigation of the sexual assault which is the
subject matter of this appeal. Staples interviewed the 16-year-
old victim, Katie, approximately a week after the assault. Katie
advised Staples that she had been at a party at a house in
Champaign. She had been drinking and smoking cannabis. While at
the party, Katie had physical contact with another individual.
Katie left the party in a car with two other people but ended up
getting out of the car because the female in the car was prosti-
tuting herself and Katie wanted no part of that. The hour was
around midnight or 1 a.m. Katie was walking along the street
trying to find a friend's house. As Katie was walking down
Bradley Street, she was approached by a subject wearing a hooded
sweatshirt. He started making sexual comments to her. Katie
told the man she was not interested. The man grabbed Katie and
stuck what she thought was a black gun in her left side. He led
her behind a house. He told Katie he wanted her to perform oral
sex on him or he would shoot her in the head. Katie told the man
she did not know how. The man told Katie to remove her pants.
She complied by taking one leg out of her pants and underwear.
At the man's direction, Katie laid down on the ground. The man
forcibly sexually assaulted her. During the interview, Katie
demonstrated for Staples how the man was on top of her during the
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assault and had the gun in his left hand pointed at her head
while he rested on his elbow. Katie was unable to identify her
assailant. The gun was never located.
Before Staples interviewed Katie, Katie had been taken
to the hospital where a rape kit was performed. The vaginal swab
revealed male, human DNA. Several months later, the DNA re-
trieved in the rape kit was run through the Combined DNA Index
System (CODIS). It matched defendant's DNA.
The State also called Mark Strzesak, a detective with
the Champaign police department. Strzesak testified about a
November 2005 shooting incident in which defendant was implicated
as the shooter. The victim stated he believed the gun used was a
black .38-caliber revolver. The gun was never recovered.
Defendant was charged with attempt (murder), but ultimately the
charge was dismissed as part of the plea agreement in the instant
case.
Defendant called Linda Fox, a special-education teacher
at Gerber School in Urbana. Fox was defendant's one-on-one
assistant starting in 1995 when defendant was 10 years old, and
she continued with him in some capacity until he graduated in
2005. Fox and her husband were also defendant's mentors. They
invited him into their home and took him on family vacations.
Other teachers also took defendant into their homes and essen-
tially were his mentors. Fox had not seen violence in defendant.
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Fox also described defendant as a follower who was easily per-
suaded by others because of his low level of intellectual func-
tioning.
Fox testified that in 1995, defendant was very intro-
verted and extremely depressed. Defendant was unable to read and
had difficulties with math. Defendant was subaverage in terms of
general intellectual functioning, which was reflected in his
delayed maturity, reduced learning ability, and inadequate social
adjustments. Defendant worked best in a structured environment
with clear expectations. He loved school so much that he actu-
ally sabotaged his graduation. Consequently, Fox had to wait to
tell defendant he completed his requirements to graduate until a
point in time when he could not sabotage it. In the 10 years Fox
knew defendant, she saw improvements in his ability to follow
rules and verbal instructions. He improved his ability to
understand what people asked him to do, which Fox believed was
due to his improved reading and conversational abilities.
The trial court stated it considered the PSI report,
documentation prepared and presented on defendant's behalf,
statutory factors in aggravation and mitigation, comments of
counsel, and defendant's written comments. The court found
applicable the statutory factor in mitigation that defendant was
mildly mentally impaired. Nonstatutory factors in mitigation the
court found applicable were defendant's age (20) and that defen-
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dant pleaded guilty to the offense. The court found statutory
factors in aggravation included defendant's prior juvenile and
adult history of criminal convictions and the need for deter-
rence. The court noted that this was a deterrable offense.
The trial court remarked about the resources and
efforts expended on defendant's behalf to assist him in leading a
law-abiding life. However, despite those efforts, defendant
continued his criminal conduct into adulthood, including many
violent offenses. The court observed that ultimately defendant
could not be relieved of responsibility for his criminal conduct.
The court commented that defendant's record demonstrated that he
is a dangerous individual for whom a sentence must be fashioned
that protects society and that provides appropriate deterrence
for defendant and others similarly situated. The court sentenced
defendant to 15 years in DOC with 96 days of sentence credit.
On May 16, 2006, defense counsel filed a motion to
reconsider the sentence. Defendant subsequently sent a letter to
the trial court indicating that he wanted to withdraw his guilty
plea. In June 2006, defendant also filed a pro se motion to
withdraw his guilty plea, arguing ineffective assistance of
counsel. In June 2006, the court appointed new counsel to
represent defendant. In August 2006, newly appointed counsel
filed a motion to withdraw guilty plea, arguing that defense
counsel was ineffective for failing to (1) provide defendant with
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ample time to discuss with his attorney the ramifications and
consequences of the plea; (2) investigate the case; or (3) file a
motion for substitution of judge, which defendant requested him
to do. The motion further stated that defendant felt forced to
take the plea and did not voluntarily waive his right to trial.
In August 2006, the trial court held a hearing to
address the motion to withdraw plea and motion to reconsider
sentence. As to the motion to withdraw plea, defendant testified
that when he pleaded guilty he was represented by public defender
Randy Rosenbaum. Defendant maintained that prior to his plea, he
spoke to Rosenbaum only two times regarding all of his pending
cases. Defendant testified that during those conversations
Rosenbaum told defendant that he was going to get defendant the
minimum sentence of four years if he pleaded guilty to the Class
1 felony of criminal sexual assault.
Defendant testified that he wanted Rosenbaum to file a
motion for substitution of judge because he felt there would be a
conflict of interest with Judge Difanis. Rosenbaum never filed
the motion for substitution. Defendant asked Rosenbaum to
investigate the sexual-assault case and to interview certain
witnesses. Defendant maintained that Rosenbaum had not investi-
gated the case to his satisfaction or interviewed witnesses in
preparation for trial.
Asked if, when the trial court went over his rights, he
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understood the rights he was giving up when he pleaded guilty,
defendant responded, "[n]ot all of them." When asked to be more
specific, defendant responded, "I said I really don't remember
most of them." Counsel asked defendant why he told the court he
understood his rights. Defendant responded, "I had--just had too
much stuff on my mind." He said he was not thinking clearly.
Defendant denied being under the influence of alcohol, drugs, or
any other medications at the time.
Defendant stated that as far as his plea being volun-
tary, he felt under a certain amount of stress and, to a certain
extent, forced to plead guilty. When asked to explain why,
defendant responded, "[d]epressed." Defendant stated that he was
in custody at the time of his plea but he had not sought out any
services or medication for his depression. He talked to a couple
of mental-health staff. When asked what sort of stress was
placed on him that affected his ability to voluntarily plead
guilty, defendant responded, "I thought I was gonna get four
years." Defendant further indicated that the other pending cases
and the amount of time he was looking at put undue stress on him.
On cross-examination, defendant acknowledged that when
Rosenbaum represented him he had pending an attempt (murder) case
as well as the sexual-assault case. Defendant acknowledged that
Rosenbaum discussed with him the potential prison time he would
serve if he was convicted of both crimes. He agreed he was
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looking at the potential of serving considerable time, i.e., up
to 40 years consecutive. Defendant stated that he and Rosenbaum
discussed the plea agreement before he entered into the negoti-
ated plea where the State dismissed the attempt (murder) charge.
Defendant acknowledged that he understood the negotiated plea
would result in him facing a lot less than 40 years in prison.
He further acknowledged he discussed that with Rosenbaum. When
asked if he voluntarily entered into that agreement, defendant
responded that he entered into the plea because he was under
stress because he thought he was going to get four years.
Defendant acknowledged that he understood when he entered into
the plea agreement that there was still going to be a sentencing
hearing where the judge would decide the sentence. When asked if
he voluntarily waived trial and agreed to enter into the plea,
defendant responded, "[y]es."
Rosenbaum testified in relevant part that he was
appointed to represent defendant on three pending cases: posses-
sion of a stolen vehicle, the instant sex offense, and attempt
(murder). Rosenbaum's notes reflected that during the course of
his representation of defendant on the sex offense, he met
personally with defendant at the jail on five occasions and
talked with him on the telephone on six occasions. He also had
contact with defendant's family. Rosenbaum did not count the
number of contacts he had with defendant on the other pending
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charges.
Rosenbaum stated that during the course of the three
pending cases, numerous negotiations took place. He discussed
these with defendant, and counteroffers were made. Rosenbaum
discussed with defendant the possible risk he took if he went to
trial. Defendant seemed to understand what he was being told.
Rosenbaum discussed the plea offer with defendant, including the
fact that the trial court could sentence him to between 4 and 15
years in DOC. Rosenbaum noted that the plea negotiations were
not just for dismissal of the other charges. The sex charge was
reduced from a Class X felony to a Class 1 felony and changed
from the use of force with a weapon to the victim's inability to
consent. Rosenbaum maintained these were all matters defendant
told Rosenbaum he wanted in the plea agreement.
Rosenbaum testified that the only time he remembered
mentioning four years in DOC was when defendant only had the
stolen vehicle case. The offer at that time was for three or
four years. Once the attempt (murder) and sex cases were filed,
he never mentioned four years to defendant. Rosenbaum testified
he was not able to contact any witnesses for defendant because
defendant never gave him the full name or addresses of any
witnesses. Rosenbaum did attempt to contact the victim's friend
and the friend's mother because he felt the victim was very
impeachable. Subpoenas were issued for them but were returned
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indicating that they had moved with no forwarding address.
Rosenbaum did not recall that defendant ever asked him to move
for substitution of judge. The only indication in Rosenbaum's
file regarding substitution was in an e-mail from defendant's
sister after defendant was sentenced. She felt another judge
should hear defendant's motion to withdraw the plea and motion to
reconsider the sentence.
Rosenbaum testified that he was prepared to go to trial
with a defense and impeachment of the victim. Defense counsel
testified that he was ready for trial with a defense. He men-
tioned attacking the victim's version and that defendant told him
defendant and the victim were at the same party and there had
been "some consensual contact." However, ultimately defendant
agreed to the negotiated plea. From Rosenbaum's perspective,
defendant's trial waiver and plea were entered into voluntarily.
Defendant seemed to understand. He never indicated to Rosenbaum
that he was not pleading voluntarily or that he was under any
stress or duress.
Rosenbaum testified that on the day of the plea, the
procedure carried out by the trial judge was the normal procedure
with all the normal questions. Defendant told the judge he
entered into the plea voluntarily and that he was not under any
stress or duress. The following colloquy then took place between
defense counsel and Rosenbaum:
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"Q. During the plea of guilty or just
prior to the plea of guilty, I'm sure you
went over with [defendant] the rights that he
was giving up and the fact that there would-
n't be a trial. Did you have any sort of
indication that he didn't understand what was
going on?
A. Sometimes you would have to explain
things to him once or twice. He slows [sic],
educational background, his IQ, but once you
explain it to him in very simple, basic
terms, he always seems to understand it, yes.
Q. Did you--was there any issue of
fitness, did that ever come up in your mind
that a fitness exam should be completed?
A. No.
Q. You never had any sort of bona fide
feeling that there might be a fitness issue?
A. Not a fitness, no.
***
Q. During those conversations that you
had with him, either in person or by tele-
phone, did you have any occasion that he
didn't understand what the nature of your
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conversation was about?
A. No."
The court denied the motion to withdraw the guilty plea.
Regarding the motion to reconsider the sentence, the
trial court found that the sentence imposed was appropriate. The
motion to reconsider the sentence was denied.
In August 2006, defendant appealed on the grounds that
counsel's certificate was not in strict compliance with Rule
604(d) (210 Ill. 2d R. 604(d)). The State conceded. This court
remanded the case to the trial court for further proceedings.
Tapscott, No. 4-06-0680.
In January 2008, defense counsel filed a certificate in
compliance with Rule 604(d). At the January 2008 hearing on
defendant's motion to withdraw guilty plea and motion to recon-
sider sentence, defense counsel indicated he stood on the previ-
ously filed motions. Regarding the motion to reconsider sen-
tence, the trial court stated it had reviewed the transcript of
the sentencing hearing. The court found the sentence appropriate
and denied the motion to reconsider the sentence.
Regarding the motion to withdraw his guilty plea,
defendant testified that he asked counsel to file a motion to
withdraw because he was unsatisfied with the representation he
received during the proceedings. Defendant asked the attorney to
request a substitution of judge, but the attorney did not do so.
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Defendant gave the attorney a list of witnesses he wanted him to
contact and interview. Defendant talked to the people, and they
said his attorney never contacted them.
On cross-examination, defendant testified that one of
the people he wanted his attorney to contact was his godfather,
Alonzo Bass, Jr. Bass was not present on the night of the sex
offense. Defendant also wanted him to call two of his friends,
Rico Bolden and Terry Moore, who were present on the night of the
rape. Defendant stated they would testify that he did not rape
the victim.
The State and defense counsel advised the trial court
their agreement that, if Rosenbaum were to testify at the hear-
ing, his testimony would be the same as in August 2006. The
judge stated that he reviewed Rosenbaum's previous testimony.
The court noted that Rosenbaum testified that defendant had not
provided him with the names of any witnesses and that he was
prepared to go to trial. The court also reviewed the transcript
of the plea proceedings and observed that defendant received
proper admonishments when he pleaded guilty. The court denied
the motion to withdraw guilty plea. This appeal followed.
II. ANALYSIS
Defendant raises two issues on appeal: (1) the trial
court erred in not sua sponte ordering a fitness hearing after
the PSI report indicated that defendant (a) was mildly mentally
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impaired, (b) had been diagnosed with and treated for a number of
mental-health disorders, and (c) had been prescribed numerous
medications for the mental disorders, and (2) in the alternative,
defense counsel was ineffective for not requesting a fitness
hearing. The State argues that the court did not err and defense
counsel was not ineffective. We agree with the State.
The Code of Criminal Procedure of 1963 states that
there is a presumption of fitness to stand trial and be sen-
tenced. 725 ILCS 5/104-10 (West 2004). The defendant bears the
burden to show that a bona fide doubt exists as to his fitness to
stand trial. People v. Hanson, 212 Ill. 2d 212, 221-22, 817
N.E.2d 472, 477 (2004). However, subjecting an unfit defendant
to trial is a violation of the defendant's substantive due-
process rights. U.S. Const., amend. XIV; Ill. Const. 1970, art.
I, §2; Hanson, 212 Ill. 2d at 216, 817 N.E.2d at 474. More
specifically, a due-process violation would occur if the defen-
dant is unable to understand the nature and purpose of the
proceedings or assist defense counsel in his own defense.
Hanson, 212 Ill. 2d at 218, 817 N.E.2d at 475. The competency
standard to plead guilty or stand trial is the same, i.e., the
defendant must understand the nature of the charge and purpose of
the proceedings and be able to assist in his defense. People v.
Heral, 62 Ill. 2d 329, 334, 342 N.E.2d 34, 36 (1976).
Although any party may raise the issue of a defendant's
- 22 -
fitness at any appropriate time, when a bona fide doubt exists as
to the defendant's fitness, the trial court must sua sponte order
a determination of the defendant's fitness before proceeding
further. 725 ILCS 5/104-11(a) (West 2004). Whether a bona fide
doubt exists is an issue that is within the trial court's discre-
tion. People v. Straub, 292 Ill. App. 3d 193, 198, 685 N.E.2d
429, 432 (1997). The trial court is in a superior position to
this court to view the defendant's behavior firsthand and make a
determination based on its observance as to whether a bona fide
doubt exists as to the defendant's fitness. People v. Murphy, 72
Ill. 2d 421, 431, 381 N.E.2d 677, 682 (1978).
"Fitness speaks only to a person's ability to function
within the context of trial; it does not refer to sanity or
competence in other areas. [Citation.] A person can be fit for
trial although his mind may be otherwise unsound." People v.
Coleman, 168 Ill. 2d 509, 524, 660 N.E.2d 919, 928 (1995). A
defendant's diminished mental capacity does not, standing alone,
make the defendant unfit to stand trial. People v. Johnson, 183
Ill. 2d 176, 194, 700 N.E.2d 996, 1005 (1998). Factors that are
relevant for the trial court to consider in assessing the exis-
tence of a bona fide doubt of the defendant's fitness include (1)
the rationality of the defendant's behavior and demeanor at trial
and (2) any prior medical opinions on the issue of the defen-
dant's fitness. People v. Eddmonds, 143 Ill. 2d 501, 518, 578
- 23 -
N.E.2d 952, 959 (1991); see Drope v. Missouri, 420 U.S. 162, 180,
43 L. Ed. 2d 103, 118, 95 S. Ct. 896, 908 (1975). Further,
defense counsel's representations concerning his client's compe-
tency, while not conclusive, are another important factor to
consider. Eddmonds, 143 Ill. 2d at 518, 578 N.E.2d at 959.
Defendant relies on this court's decision in People v.
Shanklin, 351 Ill. App. 3d 303, 814 N.E.2d 139 (2004), as sup-
portive of his argument. In Shanklin, the defendant pleaded
guilty to attempt (murder) in the middle of a bench trial.
Included in the PSI report was information that (1) the defendant
had been hospitalized three times for mental-health problems and
(2) tests conducted during the hospital stays indicated that the
defendant was mildly mentally retarded. The defendant later
filed a postconviction petition, alleging, in part, that he was
unfit or incompetent when he entered his guilty plea. Shanklin,
351 Ill. App. 3d at 304-05, 814 N.E.2d at 141-42. The defendant
supported his petition with copies of a psychological evaluation
from a hospital that indicated, in pertinent part, the following:
(1) the defendant had been admitted to Hartgove Hospital on three
separate occasions when he was 15 or 16 years old, (2) he was
seen for violent and disruptive behavior and assessed by psychi-
atric and social-work staff, and (3) the defendant had a low IQ
in the mildly mentally retarded range and had difficulty receiv-
ing and retaining verbal information. Shanklin, 351 Ill. App. 3d
- 24 -
at 306-07, 814 N.E.2d at 143. The trial court later summarily
dismissed the defendant's petition. Shanklin, 351 Ill. App. 3d
at 305, 814 N.E.2d at 142.
The defendant appealed, and this court reversed the
trial court's summary dismissal of his postconviction petition.
We concluded that at sentencing (based on the information in the
PSI report), the trial court should have been put on notice that
"there was either a bona fide doubt of defendant's fitness to
enter his guilty plea or at least a serious question as to his
ability to comprehend what he was being asked." Shanklin, 351
Ill. App. 3d at 308, 814 N.E.2d at 144. We further concluded
that the trial court should have conducted a fitness hearing.
Shanklin, 351 Ill. App. 3d at 308, 814 N.E.2d at 144. In so
concluding, we noted that the defendant's hospital information
indicated that (1) the defendant's mental-health professionals
made a clinical judgment that the defendant had significant
problems in his verbal learning skills and an IQ in the mildly
mentally retarded range and (2) the defendant "may not have been
able to fully comprehend what was being verbally communicated to
him either by counsel or the trial court as to the consequences
of a guilty plea in this case." Shanklin, 351 Ill. App. 3d at
306, 814 N.E.2d at 143.
The case sub judice is factually similar to Shanklin
but also distinguishable therefrom. Whether a bona fide doubt of
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a defendant's fitness exists involves a fact-specific inquiry.
See Eddmonds, 143 Ill. 2d at 518, 578 N.E.2d at 959, quoting
Drope, 420 U.S. at 180, 43 L. Ed. 2d at 118, 95 S. Ct. at 908("there are 'no fixed or immutable signs which invariably indi-
cate the need for further inquiry to determine fitness to pro-
ceed; the question is often a difficult one in which a wide range
of manifestations and subtle nuances are implicated'").
Here, similar to Shanklin, when defendant was 16 years
old, he was evaluated by the U of I. At that time, defendant was
again diagnosed with a low IQ (63) in the "deficient range of
intelligence," showing significant strengths in arithmetic and
significant weaknesses in similarities, vocabulary, and block
design. Defendant showed limited reading abilities; could not
write in cursive; and had been diagnosed with behavior and
conduct disorders, depression and anxiety, and ADHD. He was
found to be emotionally much younger than his age with difficulty
expressing himself. Defendant had a tendency to seek peer
relationships with other youth who engaged in antisocial activi-
ties, and defendant would follow.
Several factors make the instant case distinguishable
from Shanklin and support the conclusion that defendant under-
stood the proceedings and assisted in his defense. Testimony at
the sentencing hearing from defendant's former teacher indicated
that he made significant improvements in his ability to follow
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rules, understand what people asked of him, read, and converse.
Rosenbaum testified that during his many interactions with
defendant both in person and on the phone, he saw no evidence
that defendant did not understand the proceedings. Rosenbaum
acknowledged that defendant was slow and that sometimes he would
have to explain things more than once but said he saw no indica-
tion that defendant did not understand. Rosenbaum saw nothing to
indicate that defendant was not entering into the plea volun-
tarily or that defendant was under any stress or duress.
Rosenbaum saw nothing to indicate a need for a fitness exam nor
did he get any feeling that a bona fide issue of fitness existed.
Further, after being sentenced, defendant wrote to the
trial court indicating he wanted to withdraw his guilty plea, and
he also filed a pro se motion to withdraw his guilty plea alleg-
ing Rosenbaum provided him with ineffective assistance of coun-
sel. At the hearing on the motion to withdraw, defendant's
testimony demonstrated his grasp of the legal process. He
testified that he wanted Rosenbaum to file for a substitution of
judge because he felt Judge Difanis was prejudiced against him
from previous encounters between the judge and defendant and his
family. Defendant testified that Rosenbaum failed to investigate
the case to his satisfaction because he failed to interview
witnesses whose names defendant had given to Rosenbaum.
Defendant claimed he did not understand the rights he
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was waiving, but when asked to be more specific, defendant said
he did not remember most of them. Not remembering is different
from not understanding. Defendant's stated reason for having
told the court he understood his rights at the time they were
given was that he "just had too much stuff on [his] mind."
Again, this is quite different from not understanding. Defendant
claimed he felt forced to plead guilty because he was "depressed"
and that he thought he was going to get four years' imprisonment.
However, defendant acknowledged that he knew the plea negotia-
tions did not include any specific sentence and that he was going
to be sentenced by the judge after a hearing. Defendant also
admitted that he understood that as a part of the plea agreement,
other serious charges (attempt (murder) and a higher-class sex
crime) were being dismissed. He understood that he faced signif-
icantly less prison time because of the plea.
In this case, the record clearly illustrates that
defendant understood the nature and purpose of the proceedings.
The trial court provided defendant with a detailed explanation of
the proceedings and informed defendant of his rights during those
proceedings. Defendant stated that he understood. Further, the
record shows that defendant participated in his own defense by
communicating and conferring with his trial counsel. Defendant's
counsel saw no evidence that a bona fide doubt existed of defen-
dant's fitness to plead and be sentenced. Therefore, the trial
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court did not abuse its discretion by not sua sponte ordering a
fitness hearing.
Further, defendant has not established that his trial
counsel was ineffective for not seeking a fitness hearing. To
establish a claim for ineffective assistance of counsel, defen-
dant must meet the test set forth in Strickland v. Washington,
466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). That is,
he must establish both that his attorney's performance was
deficient and that he was prejudiced as a result of the deficient
performance. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693,
104 S. Ct. at 2064. The failure to establish either prong is
fatal to a defendant's claim. People v. Caffey, 205 Ill. 2d 52,
106, 792 N.E.2d 1163, 1197 (2001). A court need not consider
whether counsel's performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies. If the ineffective-assistance claim can be dis-
posed of on the ground that the defendant did not suffer suffi-
cient prejudice, the court need not decide whether counsel's
errors were serious enough to constitute less than reasonably
effective assistance. Strickland, 466 U.S. at 697, 80 L. Ed.2d
at 699, 104 S. Ct. at 2069.
To establish that his trial counsel's alleged incompe-
tency prejudiced him, defendant "must demonstrate that facts
existed at the time of his trial which raised a bona fide doubt
- 29 -
of his ability to understand the nature and purpose of the
proceedings and to assist in his defense" (Eddmonds, 143 Ill. 2d
at 512-13, 578 N.E.2d at 957). Therefore, defendant must demon-
strate that the trial court would have found a bona fide doubt of
his fitness and ordered a fitness hearing had defense counsel
requested it under the circumstances presented. See Eddmonds,
143 Ill. 2d at 513, 578 N.E.2d at 957.
As discussed above, the record herein demonstrates that
defendant both understood the nature of the proceedings and
participated in his defense. Defense counsel testified that
throughout his representation of defendant he saw nothing to
indicate that defendant did not understand the proceedings or
that there was a bona fide doubt of defendant's fitness. The
trial court had several opportunities to observe defendant and
interact with him in the courtroom. The court was aware of
defendant's low IQ. For these reasons, under the circumstances
of this case, it is unlikely that the court would have held a
fitness hearing. Therefore, defendant did not receive ineffec-
tive assistance of counsel because he cannot prove the prejudice
prong of the Strickland test.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal.
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Affirmed.
KNECHT and TURNER, JJ., concur.
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