People v. Lopes , 2019 IL App (5th) 170258 ( 2019 )


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    Appellate Court                          Date: 2019.05.28
    10:15:29 -05'00'
    People v. Lopes, 
    2019 IL App (5th) 170258
    Appellate Court       THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee,
    Caption               v. JAMES LOPES, Respondent-Appellant.
    District & No.        Fifth District
    Docket No. 5-17-0258
    Rule 23 order filed   February 1, 2019
    Motion to publish
    granted               February 15, 2019
    Opinion filed         February 15, 2019
    Decision Under        Appeal from the Circuit Court of Madison County, No. 16-CF-1066;
    Review                the Hon. Neil T. Schroeder, Judge, presiding.
    Judgment              Affirmed.
    Counsel on            Donna S. Polinske and Brian L. Polinske, of Polinske & Associates,
    Appeal                P.C., of Edwardsville, for appellant.
    Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick
    Delfino, Patrick D. Daly, and Kelly M. Stacey, of State’s Attorneys
    Appellate Prosecutor’s Office, of counsel), for the People.
    Panel                     JUSTICE MOORE delivered the judgment of the court, with opinion.
    Presiding Justice Overstreet and Justice Welch concurred in the
    judgment and opinion.
    OPINION
    ¶1         The respondent, James Lopes, appeals the finding, by a jury in the circuit court of Madison
    County, that the respondent is a sexually dangerous person. For the following reasons, we
    affirm.
    ¶2                                                 FACTS
    ¶3          The facts necessary to our disposition of this appeal follow. On April 27, 2016, the State
    filed a criminal information naming the respondent as defendant and charging him with three
    counts of the Class 4 felony of grooming and three counts of disorderly conduct, a Class C
    misdemeanor. Also on April 27, 2016, the State filed a petition, pursuant to the Sexually
    Dangerous Persons Act (Act) (725 ILCS 205/0.01 et seq. (West 2016)), asking the trial court to
    declare the respondent to be a sexually dangerous person. In the petition, the State alleged,
    inter alia, that the respondent had “demonstrated criminal propensities to commit sex
    offenses” and had “demonstrated propensities toward acts of sexual assault” based upon his
    behavior (1) on or about April 22, 2016, April 23, 2016, and April 24, 2016, which included,
    inter alia, approaching multiple young girls and their parents or guardians, speaking with the
    young girls, and then giving their parents or guardians cards that referenced websites that
    contained information regarding the respondent’s “teachings on sexual conduct between adults
    and minors,” as well as approaching multiple other young girls and making inappropriate and
    alarming comments to them; (2) on August 17, 2012, at which time the respondent was
    arrested by authorities in Portland, Oregon, for felony sexual abuse (first degree) and
    misdemeanor harassment against a victim who was an eight-year-old girl; (3) in posting videos
    and writings to the Internet, “which discuss having sex with children, particularly children
    wearing green”; and (4) in making “admissions” to investigating authorities “of wanting to
    sexualize children ***, particularly children wearing green,” and stating to authorities, “ ‘We
    try to get them when they’re 12 and under.’ ”
    ¶4          On April 29, 2016, the trial judge entered an order that noted, inter alia, that the State had
    elected to proceed under the Act, and that therefore cancelled the respondent’s preliminary
    hearing that was set for May 13, 2016, on his criminal charges and instead set a case
    management conference for May 6, 2016. On May 6, 2016, at the case management
    conference, the trial judge ensured the respondent had a copy of the petition filed under the Act
    because the respondent previously did not have a copy. He explained to the respondent that the
    criminal proceedings were stayed while the petition moved forward and asked the respondent
    if he understood. The respondent answered, “Yes, [Y]our Honor.”
    ¶5          Thereafter, the respondent asked to file five pro se motions he had drafted, which pertained
    to, inter alia, speedy trial rights, discovery, dismissal of the charges, and suppression of his
    interviews with investigating officers. The trial judge noted that the motions were “neatly
    written” and instructed the respondent as to how to file motions in the future, in light of the
    respondent’s incarceration in the county jail. The respondent then requested “law library
    -2-
    time,” which led to the following colloquy with regard to the respondent’s desire to represent
    himself, which we quote in detail because of its significance to one of the issues raised by the
    respondent on appeal:
    “THE COURT: Well, Mr. Lopes, let’s talk about that. So what do you want to do
    about an attorney, Mr. Lopes? You have the right to be represented by an attorney of
    your choice. If you could not afford an attorney, the Court would appoint an attorney to
    represent you for free. You could also represent yourself. So what do you want to do
    about an attorney, Mr. Lopes?
    RESPONDENT LOPES: I want to go according to that stipulation in the law that’s
    never really mentioned like I would like to represent myself, but I would like at the
    State expense co-counsel. So a lawyer that can handle the stuff that I can’t while I am
    incarcerated because I will need some witnesses.
    THE COURT: So explain that to me a little further, Mr. Lopes. Exactly what are
    you wanting this attorney for?
    RESPONDENT LOPES: Exactly what I would want the attorney for? To organize
    different witnesses that I will need, e-mails that I send out to organize footage of the
    news of my case, Channel 4 and 5. That’s the ones I can think of on hand.
    THE COURT: Well, so you want to represent yourself primarily. Is that what you
    are telling me?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: So how old are you, Mr. Lopes?
    RESPONDENT LOPES: I am 40.
    THE COURT: How far did you go in school?
    RESPONDENT LOPES: I graduated.
    THE COURT: From high school?
    RESPONDENT LOPES: Yes, I also studied about two thousand hours of law.
    THE COURT: You studied about two thousand hours of law. Where was that?
    RESPONDENT LOPES: Usually in incarcerated situations like this, copying some
    things. Law interests me. Law is very important to me.
    THE COURT: When was that? How recently?
    RESPONDENT LOPES: For the last ten years, probably 15 years actually, [Y]our
    Honor.
    THE COURT: Have you represented yourself before?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: Under what circumstances? Can you tell me about it?
    RESPONDENT LOPES: Usually under misdemeanor cases. I haven’t had any
    felony cases.
    THE COURT: What types of misdemeanor cases?
    RESPONDENT LOPES: Let’s see, usually trespass or obstruction of government
    operations.
    THE COURT: Have you ever had a trial?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    -3-
    THE COURT: And what type of trial was it? Was it a trial before a Judge or a trial
    before a jury?
    RESPONDENT LOPES: It was a trial before a Judge.
    THE COURT: And what type of case was that?
    RESPONDENT LOPES: That was misdemeanor. These different states they
    don’t—they have the different set up. I forget what the legal term is with it. Usually we
    have this court case and then they can go to appeal it and go to Supreme. It is a regular
    case but they are doing a lot across the country. In misdemeanor format they put in
    another case where you are not allowed six jurors the first time. The appeal is actually
    starting the first phase of normal court procedures. You know what I mean?
    THE COURT: That trial you are talking about, that actually went to a verdict?
    RESPONDENT LOPES: Yes.
    THE COURT: And the entire time you represented yourself?
    RESPONDENT LOPES: Yes, [Y]our Honor. I have done it a number of times, two
    or three.
    THE COURT: Do you understand that you will be held to the standards of an
    attorney if you choose to represent yourself? I can’t make exceptions for you under the
    law. You will be held to the same rules of evidence and procedure that the State is held
    to. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor. That’s why I ask for co-counsel so
    some expertise can help me.
    THE COURT: Well, you may or may not get co-counsel appointed. I haven’t
    decided that yet, and when you say co-counsel I think we refer to it in Illinois as
    standby counsel.
    RESPONDENT LOPES: Okay.
    THE COURT: So you want to be primarily responsible for your representation but
    you want an attorney there to help you out. So I am going to refer to it as standby
    counsel. So we haven’t answered that question yet, Mr. Lopes. Right now I am making
    inquiries to determine whether you have the requisite mental capacity to represent
    yourself. So we will get to the point of deciding whether or not you are afforded
    standby counsel in a few minutes. So let’s go on with some admonitions. I told you the
    first one. You understand that you are going to be held to the same rules of evidence
    and same procedures as you would be if you were an attorney. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: Do you understand that a lawyer has substantial experience in
    training and trial procedure, and obviously the prosecution is represented by an
    attorney so that may give them somewhat of an advantage over you, as they are
    represented by an experienced attorney and you are not an experienced attorney. Do
    you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: You may be unfamiliar with the legal procedures involved in this
    case. That may allow the prosecutor an advantage. You may fail to make objections to
    inadmissible evidence and allow evidence that wouldn’t otherwise be permitted to
    -4-
    come in. You may not make effective usage of such rights as voir dire questioning or
    questioning of prospective jurors. And you also, because you are not an attorney, you
    may make tactical decisions, while you think may be in your best interests, they may
    have unintended consequences that you may not realize. Do you understand that, Mr.
    Lopes?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: Another issue is, if you are representing yourself one issue you will
    not be able to complain about on appeal is ineffective assistance of counsel. That is
    usually a very ripe area for appeal. If you represent yourself you will not have that basis
    to appeal. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: You are also put in an unusual position when you represent yourself
    in that you have to act in a dual role as both the Defendant or Respondent in the case
    and the attorney. Normally the Defendant or Respondent sits at the table. They don’t
    speak very much unless they choose to take the stand. If you represent yourself, jurors
    or Judge will get to know you in a manner differently than they normally would be able
    to. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: You are incarcerated. You inquired earlier about library time. The
    library at the jail, I am not completely familiar with it. I have heard from other
    individuals that it certainly has a little bit to be desired as far as its currency and the
    books that it has. You are not going to get any special consideration for that. The jail
    will give you time in the library as they can, and you will be limited to whatever is in
    the library. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor. I also know that as representing
    myself I need to have adequate time and preparation and search material for cases.
    THE COURT: Well, that’s one down side of representing yourself. That’s why I
    am telling you this. I can’t have you transported to the St. Louis University Law School
    Library to do your research. You are going to be limited to the very limited resources
    that they have at the jail. The jail is not a law school, and it is not a law library. It is
    primarily a place where persons are held pending trial. So I am telling you right now
    that’s one of the down sides. That’s one of the choices you are making by representing
    yourself. You are going to be limiting the resources that you have. Do you understand
    that?
    RESPONDENT LOPES: Yes, sir. That should definitely give me some better odds
    of being able to have co-counsel so I can get them to help with the research and things
    I would ask the Court.
    THE COURT: Another issue that you will have if you represent yourself is you
    may not be aware of the existence of possible defenses. Therefore you may not use
    them. You are also in certain respects limited to [sic] in your communication abilities
    with the prosecutor. An attorney normally has regular conversations with the
    prosecutor about the progress of the case, and they may be able to attempt to resolve the
    matter in some manner. So you may be disadvantaged in that regard as to—in that
    regard as well, Mr. Lopes. Do you understand that?
    -5-
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: If I do allow you to represent yourself and the case proceeds, at
    some point there will be a trial in this matter. At that trial or shortly before should you
    choose to then assert your right to counsel, depending on the timing of that assertion, it
    may or may not be allowed. So what I am saying, Mr. Lopes, is—I will give you an
    example. Some persons want to represent themselves up to a certain point, and that
    point sometimes is the day of trial. So when it is the day of trial or shortly before trial
    your request to have counsel appointed if you no longer want to represent yourself may
    or may not be allowed by the Court. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: So with regard to—normally I would explain to someone the range
    of penalties to make sure they understand the range of penalties. I know you were just
    given this Petition, Mr. Lopes. Basically what this Petition seeks is that you be
    remanded to a treatment facility until such time as you would be deemed fit to be
    released. That can be a short time. It could be the rest of your life. So there is a
    substantial amount of your liberty at stake here, Mr. Lopes. Do you understand that?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: So, Mr. Lopes, I find that you freely, knowingly and intelligently
    desire to waive your right to an attorney, and you want to represent yourself. Correct,
    Mr. Lopes?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: Of course we will bring up the subject of standby counsel. As you sit
    there right now you want to represent yourself, correct?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: I find that you have the requisite capacity to do so, and I will allow
    you to proceed as your own attorney. So make whatever argument you want to make
    right now, Mr. Lopes, as to the issue of standby counsel and why I should appoint you
    standby counsel.
    RESPONDENT LOPES: I should be able to have standby counsel for the old law
    library information in the law library, the actual time that I can see or get to the
    information pertinent to my case and study at that particular library, and for—so my
    standby counsel can get me the adequate information for my case and also be able to
    arrange better the witnesses and different things, submissions of evidence I may need
    within this case, [Y]our Honor.
    THE COURT: Mr. Lopes, the Court is well aware that it has the discretion to
    appoint standby counsel, and at this point I am going to deny that request. So at this
    time you will be the only attorney on your case. And knowing that, Mr. Lopes, do you
    still wish to proceed as your own attorney?
    RESPONDENT LOPES: Yes, [Y]our Honor.
    THE COURT: So we will proceed in that manner.”
    ¶6       At the respondent’s next hearing, which was held a week later, on May 13, 2016, the trial
    judge appointed two experts—Dr. Kimberly Weitl and Dr. Mark S. Carich—to examine the
    respondent, as required by the Act. The respondent participated in the hearing in a rational and
    coherent manner and at one point posed a hearsay objection and a relevance objection to
    -6-
    materials received from a court in Portland, Oregon. He also requested a copy of the “Sex
    Offender Management Board Act.” When asked why he wanted it, the respondent replied,
    “Because that’s what the evaluators have to go by in their questioning and their evaluations of
    me.”
    ¶7       The next hearing in this case was held on June 9, 2016, during which the court took up
    numerous motions that had been filed pro se by the respondent. The respondent again
    participated in a rational and coherent manner, posing objections, withdrawing those of his
    pro se motions that were rendered irrelevant by the staying of the criminal proceedings, and
    arguing the merits of his remaining pro se motions. His pro se motion for a jury trial was
    granted, with the trial judge noting, “that is your right, Mr. Lopes.” In support of other motions,
    the respondent cited various Illinois court cases and made arguments on the basis thereof,
    including arguments in rebuttal to the State’s oral responses to his initial arguments. With
    regard to some of the respondent’s relevance arguments, the trial judge pointed out that
    regardless of the relevance of some of the evidentiary materials to the respondent’s criminal
    case, the matter currently before the court was the petition filed pursuant to the Act, to which
    he determined the materials were relevant. Near the conclusion of the hearing, when the
    respondent asked the State to obtain for him DVD copies of footage of media coverage of his
    arrest, the trial judge noted the potential pitfalls of the respondent’s request and questioned the
    relevance of the request. The trial judge added:
    “I would say, and this is the first time you’ve necessarily done it, but I’ll remind you,
    you know, one of the negatives about you representing yourself is you obviously have
    to make statements on your own in court. And it’s possible those statements can be
    used against you. So, you know, when you’re arguing something and if you start
    talking about facts of other things, maybe the State doesn’t know about that, and maybe
    you’re letting them know things that they wouldn’t otherwise know, because you’re
    representing yourself and making argument that you believe is proper, which may or
    may not be proper. So I’ll just caution you about that. And that caution continues
    throughout the case, Mr. Lopes. But I cannot direct the State to produce this. I don’t see
    how it’s relevant. They say they don’t have it in their possession. There are probably
    ways that you could obtain that if you wanted to. And I wouldn’t—you know, I don’t
    know what it is or I don’t know what you would offer it for, but there are ways probably
    for you to obtain it. But, again, you’re representing yourself. One of the things I
    cautioned you about in representing yourself was that, you know, you’re going to be at
    a disadvantage in this case because of it, Mr. Lopes. You don’t know the law. You’re
    not a lawyer. And it’s probably—you know, you just don’t have the experience or
    knowledge of the ways you could go about obtaining that. And I’m not here to advise
    you how to do it or how you can do it. All I can say is that your request to have the State
    produce these things is denied.”
    ¶8       The trial judge began to move on to the next point in one of the respondent’s pro se
    motions, then backtracked, stating:
    “Mr. Lopes, while we were on the topic I [was] just talking about, I’ll also remind you
    that your decision to represent yourself, it’s not—you can always change your mind.
    I’m not saying you should. That’s your choice. We’ve already gone through that once
    before. But I don’t want you to feel that because you said you were going to represent
    yourself, I just want to make it clear to you that that is not a set in concrete decision. If
    -7-
    at any time you change your mind, you think you want the assistance of an attorney,
    you want me to appoint someone to represent you, I’ll certainly do that. Okay. Go
    ahead.”
    The respondent did not respond verbally to the trial judge’s admonition. Instead, he moved on
    to his next point, taking issue with a preliminary evaluation of him conducted by Dr. Daniel J.
    Cuneo, noting that he never agreed to be evaluated. The trial judge responded:
    “Well, the issue of Dr. Cuneo’s evaluation is somewhat interesting. The defendant’s
    fitness isn’t an issue in a sexually dangerous persons petition. So had that been filed
    immediately, which it almost was, I think it was actually—it’s unusual. It was ordered
    in the misdemeanor cases, filed by Dr. Cuneo in the felony case.”
    He then asked the State, “But how is Dr. Cuneo’s examination or his opinion of Mr. Lopes’
    competence to stand trial relevant to the State’s doctor’s evaluations?” The State responded as
    follows:
    “Your Honor, in a review of Dr. Cuneo’s evaluation there is other information that’s
    included. It’s not just specifically about his fitness. It was apparently ordered by
    another judge in this county to evaluate him for the purposes of establishing an opinion
    for fitness to stand trial. But there is other information that is compiled through the
    course of that interview, through the course of that evaluation, including a diagnosis for
    Dr. Cuneo’s evaluation. So I would argue that all of those things are relevant and
    probative to doctors evaluating the defendant’s propensity underneath the sexually
    dangerous persons statute, but not necessarily taken into consideration whether he was
    fit or unfit because that isn’t a requirement for the sexually dangerous persons petition.
    But the other information that had been provided would be important to the doctors,
    would be relevant to their evaluations, and would be probative to be included for the
    Court.”
    Pressed for more detail, the State added:
    “In the evaluation, your Honor, the defendant does talk about his church and how he
    got to the area, his history. It references the church and sexuality, history of alcohol or
    drug use, which would be relevant to the evaluator’s assessment of the defendant, and
    past interactions with law and interactions with the Courts. So those things would all be
    relevant and probative to the doctors.”
    The trial judge confirmed that Dr. Cuneo’s report had not been provided to the two
    experts—Dr. Weitl and Dr. Carich—yet, then reserved ruling on whether it was to be so
    provided.
    ¶9       The next hearing in the case was held on August 25, 2016. Therein, the trial judge ruled
    that Dr. Cuneo’s report could be provided to the two experts for them to consider as they
    compiled their reports on the respondent pursuant to the requirements of the Act. As in his
    previous appearances, the respondent again participated in a rational and coherent manner, as
    the parties went through his remaining pro se motions. With regard to the respondent’s motion
    to access his Gmail account to help him prepare for his trial, the trial judge granted the motion
    and commented as follows:
    “So Mr. Lopes is in custody, he’s representing himself, and he has the right to defend
    himself in whatever manner he thinks is appropriate. He has to have access to his email
    account in order to do that. The Court’s going to order that the State permit him access
    -8-
    to his Gmail account for the specific purpose of accessing his sent email folder and
    printing out whatever emails he wants to print from his sent email folder.”
    The trial judge then addressed additional motions, with coherent input from both the
    respondent and the State. When the respondent raised the issue of his access to materials in the
    law library and the negative impact that had on his ability to represent himself, the trial judge
    reminded the respondent that he had previously warned the respondent about that very issue
    but that the respondent had persisted in his desire to represent himself and “clearly persist[ed]
    in it to this day.” The trial judge added:
    “And it’s your absolute right to represent yourself, Mr. Lopes, but I previously
    informed you as to the negatives. This is one of the negatives, and you’re just going to
    have to deal with the system that the jail has.”
    The respondent did not indicate a desire to seek counsel, and the hearing continued, moving on
    to other issues.
    ¶ 10        The next hearing in the case was held on October 12, 2016. At the hearing, the trial judge
    indicated that he had received the evaluation reports from Dr. Carich and Dr. Weitl. The
    respondent indicated that he had received copies of the reports as well. The respondent posed
    an objection to the reports, and asked for a motion to dismiss, stating, “They used a bunch of
    information that’s not legal to use, like police reports and past *** arrests that [did not result
    in] convictions.” The trial judge stated that he would not entertain oral motions and that the
    respondent should put his motion in writing. A trial date in the case was set for December 5,
    2016. Thereafter, the trial judge stated, “So, Mr. Lopes, if you want to file any motions, please
    do so. I’ll set them for hearing and we will get that done prior to trial.”
    ¶ 11        An additional pretrial hearing was held on November 30, 2016, at which time additional
    new motions were handled. As in all previous appearances, the respondent participated in a
    rational and coherent manner, able to follow all conversations and provide responsive answers
    when questioned by the trial judge. As the hearing progressed, the respondent stated that he
    wanted to preserve for appeal all the issues he had raised at previous hearings and the present
    one, which led to the following colloquy:
    “THE COURT: Well, I’m not going to advise you on what you need to do, Mr.
    Lopes. We’ve gone through in detail about you representing yourself. You’re not a
    lawyer, you may think you know a lot, but there’s a lot a lawyer would know that you
    don’t know and I think you recognize that. I don’t understand why you would want to
    continue to represent yourself when I would gladly appoint you a competent attorney to
    assist you, but that’s your choice, Mr. Lopes. Everything I’ve seen from your conduct
    in court, your demeanor, your interactions with me, all still lead me to believe that you
    are of a mind to be able to do this. I’m not going to say that you are incompetent. I don’t
    see anything to indicate that you are actively suffering from schizophrenia, I don’t
    think you hear voices, you’ve demonstrated that. I don’t think you see things that aren’t
    there. You’ve always acted appropriately. You seem to be an intelligent gentleman. So
    again, I will give you some latitude, you know. I told you when I said I’d allow you to
    represent yourself that in most respects I’m going to treat you as if you were an
    attorney. There’s a little slack that I can give you and I’ve been giving that to you
    during these motion hearings by trying to explain things to you. But you are choosing
    to proceed without an attorney. Do you still want to do that, Mr. Lopes? You don’t
    want an attorney to represent you?
    -9-
    RESPONDENT LOPES: Yes, Your Honor.
    THE COURT: Okay. So, you need to do whatever you think you need to do, Mr.
    Lopes.
    RESPONDENT LOPES: Okay.”
    Thereafter, the trial judge explained in detail to the respondent the procedure that would be
    followed for the selection of a jury at his trial and discussed peremptory challenges and
    challenges for cause. He also explained the procedure for making objections. He asked if the
    respondent understood everything they had discussed, and the respondent indicated that he did.
    He then asked the State for input, and the State noted that it needed to request a continuance of
    the trial because of the unavailability of one of its material witnesses. Over the objection of the
    respondent, the trial was continued to January 17, 2017.
    ¶ 12       On January 17, 2017, the respondent’s jury trial began. Of relevance to the first issue raised
    on appeal by the respondent, the respondent continued to participate in a rational and coherent
    manner in the various proceedings, including the disposition of motions he filed on that day,
    the questioning and selection of the jury that afternoon, dealing with a last-minute problem
    with a juror that led the court, with the respondent’s agreement, to dismiss the juror and replace
    him with the first alternate juror, opening statements (which took place on the morning of
    January 18, 2017), the examination of witnesses (including himself in his case in chief), a
    conference on the instructions to be given to the jury, and closing arguments. At all times, he
    was respectful of the various parties and of the rules the trial judge had explained to him prior
    to, and during, the trial. Of relevance to the evidentiary issue raised on appeal by the
    respondent, during the questioning by the State of witness Amanda Armstrong, the following
    colloquy relating to events that took place near a fountain in Portland, Oregon, on August 17,
    2012, between the respondent and an eight-year-old girl that Armstrong was supervising
    occurred:
    “Q. After you went up to them were you able to usher this little girl away?
    A. Yes.
    Q. Were you able to ask her what happened?
    A. Yes, I was.
    Q. What did she tell you?
    A. She told me that he offered—
    RESPONDENT LOPES: Object, Your Honor, this is hearsay evidence.
    MS. FOLEY: Your Honor, if I may? I believe any statement by this little girl is an
    excited utterance, and the testimony was that it was an alarming situation and it was
    merely seconds after it happened and any statements that Mr. Lopes would have made
    to the little girl would be an admission.
    THE COURT: I’m going to need more foundation about an excited utterance, Ms.
    Foley. Sustained as to excited utterance—or hearsay, I’m sorry.
    [MS. FOLEY]: Thank you, Your Honor. How was this little girl acting?
    A. She looked really alarmed and confused obviously, concerned and
    scared—terrified I would describe it.
    Q. So certainly this was an event that she wasn’t expecting to happen?
    A. No.
    - 10 -
    Q. How long after this event were you able to ask her what had happened?
    A. Immediately.
    Q. And did she respond to you immediately?
    A. Yes.
    Q. What did she say?
    A. She said that Mr. Lopes asked her to pull her pants down.
    Q. After that happened what did you do next?
    A. I tried to draw attention to myself and get somebody to call the police because I
    was there, like I said, with ten children alone and needed assistance at that point, so
    several people were able to come—my coworker was at lunch at the time, so that’s why
    I was by myself.
    Q. What did this man do after you ushered the little girl away?
    A. He seemed almost confused as to why I was upset by that happening. He wasn’t
    violent, he wasn’t angry, just confused as to why I would be very upset by that.”
    ¶ 13        Later, during his own testimony, the respondent denied that he had asked the young girl in
    Portland, Oregon, to pull down her pants. At the conclusion of the trial, the jury found the
    respondent to be a sexually dangerous person under the Act. On January 23, 2017, a hearing
    was convened wherein the trial judge noted that the respondent had mentioned at the end of his
    trial that he wished to begin the appeal process, and wherein the trial judge asked the
    respondent if he still wished to represent himself. The respondent indicated that he wished to
    have counsel appointed to assist him both with a posttrial motion and with an appeal.
    ¶ 14        Counsel was appointed, and on July 3, 2017, the case proceeded to a dispositional hearing,
    as well as a hearing on the posttrial motion filed by counsel. Counsel argued, inter alia, that the
    respondent should not have been permitted to represent himself. The trial judge responded:
    “I have stated repeatedly on the record throughout these proceedings that I believe Mr.
    Lopes does possess the abilities to make that decision, although I advised him
    numerous times I thought it was a poor decision and not in his best interest. But I think
    if you look at Mr. Lopes’ conduct throughout these proceedings, his conduct during the
    trial, I think it is clear Mr. Lopes does in fact possess the requisite mental capacity to
    knowingly and intelligently waive his right to counsel and represent himself. It is his
    Constitutional right to do so. He chose to exercise that right. I believe it was to his
    detriment, but nevertheless that was his choice.”
    Accordingly, the trial judge denied the posttrial motion and proceeded to the dispositional
    hearing. Pursuant thereto, the director of the Department of Corrections was appointed as the
    guardian of the respondent’s person, and the respondent was committed to the custody of the
    director of the Department of Corrections for treatment. This timely appeal, filed by counsel
    appointed to represent the respondent on appeal, followed.
    ¶ 15                                             ANALYSIS
    ¶ 16        On appeal, the respondent contends he should not have been allowed to represent himself
    at trial and that he “was denied a fair trial due to plain error.” With regard to the first point, the
    respondent acknowledges his fundamental constitutional right to self-representation, but
    contends that it is clear from the findings of Dr. Cuneo—which led Dr. Cuneo to conclude that
    - 11 -
    the respondent was unfit to stand trial criminally—that the respondent also lacked the mental
    capacity “to conduct his defense without the assistance of counsel.” Accordingly, the
    respondent contends on appeal, the trial judge should have denied the respondent’s request to
    represent himself and should have instead appointed counsel to represent him. Other than the
    evidentiary issue the respondent raises as his second point on appeal, discussed in detail below,
    the respondent does not point to any particular action or inaction that occurred in the course of
    the respondent’s representation of himself that clearly demonstrates he lacked the mental
    capacity and ability to represent himself. Instead, the respondent essentially urges this court to
    adopt a blanket rule that once a person is deemed, or even merely suggested,1 to be unfit to
    stand trial in a criminal proceeding, that person is incapable of self-representation at any trial,
    even if the trial is civil in nature, as with proceedings under the Act.
    ¶ 17       We begin our analysis with the law relevant to proceedings under the Act. To succeed on a
    petition filed pursuant to the Act, the State must prove the respondent has (1) a mental disorder
    that has existed for at least one year prior to the filing of the petition, (2) criminal propensities
    to the commission of sex offenses, and (3) demonstrated propensities toward acts of sexual
    assault or acts of sexual molestation of children. E.g., People v. Bingham, 
    2014 IL 115964
    ,
    ¶ 27; see also 725 ILCS 205/1.01 (West 2016). When, on appeal, a respondent challenges an
    adverse ruling under the Act, the court of review considers all of the evidence adduced at the
    respondent’s trial, in the light most favorable to the State, and then must determine whether
    any rational trier of fact could have found, on the basis of that evidence, the essential elements
    to be proven beyond a reasonable doubt. Bingham, 
    2014 IL 115964
    , ¶ 30. As the respondent’s
    argument correctly notes, proceedings under the Act are civil in nature. E.g., People v. Lawton,
    
    212 Ill. 2d 285
    , 295 (2004). However, because such proceedings may “result in deprivation of
    liberty and incarceration in the penitentiary for psychiatric treatment,” a respondent in such
    proceedings “must be accorded the same essential protections available to defendants in a
    criminal prosecution.” 
    Id.
     This includes the right to counsel, a right that is derived both from
    the plain language of the Act (see 725 ILCS 205/5 (West 2016)) and from the United States
    Constitution. Lawton, 
    212 Ill. 2d at 295
    . It stands to reason, therefore, that the right to
    self-representation—enshrined among the rights fundamental to criminal defendants2—must
    also be present to the same extent to a respondent in proceedings under the Act. Accordingly,
    we conclude that any limits placed upon the right to self-representation in proceedings under
    the Act must not run afoul of the constitutional protections of that right for criminal
    defendants.
    ¶ 18       In People v. Allen, 
    401 Ill. App. 3d 840
     (2010), our colleagues in the First District grappled
    with the parameters, in a criminal prosecution for first degree murder and home invasion, of
    the right to self-representation of a defendant of questionable mental competence. In Allen, the
    1
    As the State aptly notes, because the criminal proceedings in this case were stayed, then nullified
    following the jury’s finding that the respondent is a sexually dangerous person, there was never an
    official finding by the trial judge that, based upon Dr. Cuneo’s report or any other evidence, the
    respondent was or was not fit to stand trial on the criminal charges. As both parties also aptly note, there
    is no requirement that a respondent under the Act be fit to stand trial. See 725 ILCS 205/0.01 et seq.
    (West 2016).
    2
    See, e.g., People v. Nelson, 
    47 Ill. 2d 570
    , 574 (1971) (“The ‘right of a defendant to represent
    himself, when his choice is intelligently made, is as basic and fundamental as his right to be represented
    by counsel.’ ” (quoting People v. Bush, 
    32 Ill. 2d 484
    , 487 (1965))).
    - 12 -
    first expert—Dr. Ferguson, a licensed clinical psychologist—to evaluate the defendant found
    that the defendant was fit to stand trial. Id. at 842. The court ordered a second expert—Dr.
    Kelly, a psychiatrist—to evaluate the defendant thereafter, and Dr. Kelly also found the
    defendant fit to stand trial. Id. at 843. When, several weeks later, the defendant asked to
    discharge his court-appointed attorney and represent himself, a third evaluation was ordered.
    Id. The third expert—Dr. Nadkarni, also a psychiatrist—also found the defendant fit to stand
    trial. Id. Two months later, a fourth expert—Dr. Lourgos, also a psychiatrist—evaluated the
    defendant and found the defendant was not fit to stand trial. Id. Dr. Lourgos opined that the
    defendant “ ‘appear[ed] to be harboring numerous persecutory delusions’ ” and that the
    defendant’s court filings were “ ‘replete with delusional material’ ” that Dr. Lourgos
    concluded hampered the defendant’s ability to effectively assist his counsel in his defense. Id.
    Following a hearing, the trial judge “ordered Drs. Ferguson, Kelly and Nadkarni to review
    defendant’s pro se motions and update their opinions regarding his fitness.” Id.
    ¶ 19        Thereafter, a fitness hearing was held, at which the defendant was represented by counsel.
    Id. at 844. Drs. Ferguson, Kelly, and Lourgos testified that the defendant was not fit to stand
    trial. Id. Although all three agreed that the defendant understood the charges he faced, and the
    court proceedings, they all “questioned whether he would be able to assist in his defense” and
    “all diagnosed defendant with psychotic delusional disorder.” Id. Dr. Nadkarni testified that he
    believed the defendant was fit to stand trial. Id. He “based his opinion on the fact that
    defendant provided rational and logical reasons for his pro se motions” and “had written some
    of the information in his motions based on his anger with how his case was proceeding in
    court.” Id. A jury found the defendant unfit to stand trial, and he was subsequently treated for
    six months, without medication, at a state facility. Id. Thereafter, Dr. Kelly found the
    defendant fit to stand trial, concluding that he was able to assist in his defense. Id. It does not
    appear that Dr. Kelly commented on the existence or absence of delusional thinking at that
    time. See id. The trial judge found that the defendant had been restored to fitness and therefore
    was fit for trial. Id.
    ¶ 20        Several months later, the defendant again asked to represent himself. Id. The trial judge
    admonished the defendant that the defendant would be held to the same standards as would a
    licensed attorney, and the defendant replied that he understood. Id. The trial judge then stated,
    “ ‘I believe that because of the motions that you’ve filed and things that you’ve done so far,
    notwithstanding the fact that you were referred to the Department of Mental Health, it appears
    to me that you may be capable of doing this on your own.’ ” Id. Accordingly, the trial judge
    dismissed appointed counsel and allowed the defendant to proceed pro se. Id. However, as the
    case proceeded, the trial judge again had doubts, stating during a pretrial hearing, “ ‘I have a
    bona fide doubt once again about whether or not you are fit to stand trial. And, I’m going to
    have you examined once again. Just to be certain.’ ” Id. at 845. Dr. Kelly again examined the
    defendant and again found him fit to stand trial. Id. The case was transferred to another judge
    for a jury trial. Id. The new trial judge again admonished the defendant regarding
    self-representation, then allowed the defendant to proceed pro se. Id. Following the trial, at
    which the defendant testified on his own behalf, the defendant was convicted of first degree
    murder and home invasion. Id. at 847.
    ¶ 21        In light of the foregoing facts, on appeal the Allen court examined the United States
    Supreme Court case of Indiana v. Edwards, 
    554 U.S. 164
     (2008), which the Allen court noted
    “concerned whether there was a mental-illness-related limitation on the scope of the right of
    - 13 -
    self-representation” in a criminal case. Allen, 401 Ill. App. 3d at 851 (citing Edwards, 
    554 U.S. at 171
    ). The court concluded that Edwards stood for the proposition “that a defendant’s right to
    self-representation was not absolute and could be limited if a defendant was not mentally
    competent to proceed pro se, yet was still competent to stand trial with representation.” 
    Id.
     The
    Allen court noted that in the case before it, the trial judge had conducted an in-depth dialogue
    with the defendant to determine the defendant’s desire to represent himself and competence to
    do so (id. at 852-53), concluding that “[t]he trial judge conducted the matter appropriately
    based on the information before the court” and was not required to look “beyond the
    information [the trial judge] was provided and somehow discern unfitness to proceed pro se.”
    Id. at 853. The court noted that although the defendant made mistakes as he represented
    himself at trial “as a result of defendant not being an attorney,” nevertheless “these deficiencies
    were not the result of mental incompetence,” and the defendant “was able to carry out the basic
    tasks needed to present his own defense without the help of counsel.” Id. at 852. The court
    reiterated: “Defendant was misguided by his own choices, not his lack of mental competence.”
    Id. at 853. Accordingly, the Allen court concluded that the trial judge did not err in permitting
    the defendant to represent himself. Id.
    ¶ 22        As the State aptly notes, Illinois courts have consistently held that whether a criminal
    defendant has effectively waived his or her right to counsel is a question left to the sound
    discretion of the trial court, and the trial court’s decision will be reversed by this court only if
    the decision constitutes an abuse of discretion. See, e.g., People v. Griffin, 
    305 Ill. App. 3d 326
    ,
    329 (1999). It is axiomatic under Illinois law that an abuse of discretion exists only if the trial
    court’s decision is arbitrary, fanciful, or unreasonable to such an extent that no reasonable
    person would agree with the decision. E.g., People v. Lerma, 
    2016 IL 118496
    , ¶ 23.
    ¶ 23        As noted above, in the case before us on appeal, the respondent urges this court to conclude
    that Allen and Edwards support the conclusion that Dr. Cuneo’s opinion that the respondent
    was unfit to stand trial in the criminal case should extend to the civil proceedings under the Act
    and should, in essence, nullify the individualized determination made by the trial judge in this
    case that the respondent possessed the requisite mental capacity to represent himself.
    Specifically, the respondent posits that if previous cases “have found that an individual may
    well be able to satisfy the mental competence standard to stand trial when represented by
    counsel, yet may be unable to carry out the basic tasks needed to present his own defense
    without the help of counsel,” then someone such as the respondent “who is found unfit to stand
    trial should not be allowed to represent himself at trial, even if it is a civil trial in nature.”
    However, as noted above, the respondent in this case was never found to be unfit to stand trial.
    Accordingly, the respondent’s entire argument is based upon a faulty premise—that the
    respondent was found unfit to stand trial. Moreover, as Allen makes amply clear, different
    mental health experts can have different opinions about an individual criminal defendant’s
    fitness to stand trial, and those opinions are situational and can change with time; Allen also
    makes amply clear that the trier of fact may consider conflicting opinions of mental health
    experts and make a determination about fitness that is contrary to one or more of those expert
    opinions. Accordingly, the mere presence of Dr. Cuneo’s report is not the equivalent of a
    judicial finding of unfitness.
    ¶ 24        In this case, the trial judge was well aware of Dr. Cuneo’s report and its conclusion but
    noted that there was no requirement under the Act that the respondent be fit to stand trial and
    therefore concluded that the report was of limited utility in the proceedings under the Act. As a
    - 14 -
    result, instead of merely relying on Dr. Cuneo’s report—and at the risk of stating the obvious,
    we reiterate that Dr. Cuneo (who prefaced his report by stating that it was compiled “for the
    purpose of establishing an opinion as to [the respondent’s] fitness to stand trial”) was never
    asked, nor did he sua sponte opine with regard to, whether the respondent possessed the
    requisite mental capacity to represent himself in the proceedings under the Act—the trial judge
    undertook an individualized, and ongoing, determination, based upon his discussions with the
    respondent and the respondent’s behavior in the courtroom, of whether the respondent
    possessed the requisite mental capacity to represent himself in the proceedings under the Act.
    The efforts of the trial judge to safeguard the respondent’s fundamental right to
    self-representation, while simultaneously ensuring the respondent at all times possessed the
    requisite mental capacity to exercise that right, are documented in detail above. Those efforts
    were thorough and laudable, and we conclude that regardless of the respondent’s mental state
    when he was interviewed by Dr. Cuneo (and we reiterate that the respondent contended he
    never agreed to an interview with Dr. Cuneo, which could explain some of the agitation on the
    part of the respondent during the interview), it is abundantly clear from the record, described in
    detail above, that in all of the respondent’s court proceedings in this case under the Act—as he
    sought to represent himself, and as he did in fact represent himself—the respondent had the
    requisite mental capacity to invoke and enjoy his fundamental right to self-representation.
    Although perhaps one might agree with the trial judge that the respondent would have been
    served better had he chosen the assistance of counsel with more knowledge of Illinois law and
    more experience in proceedings under the Act, our review of the record on appeal leaves us
    confident that the respondent had the requisite mental capacity to make the decision to
    represent himself. We are convinced, as was the Allen court with the defendant in that case,
    that to the extent the respondent in this case made mistakes in his representation of himself,
    those mistakes were based upon the respondent’s lack of legal knowledge, not his lack of
    mental capacity. See Allen, 401 Ill. App. 3d at 852-53.
    ¶ 25        Moreover, we agree with the State that the admonishments and questioning of the
    respondent in this case—had they occurred in a criminal proceeding or a mental health
    proceeding—would have been sufficient to satisfy the requirements for an effective waiver of
    counsel in those proceedings. See Ill. S. Ct. R. 401(a) (eff. July 1, 1984) (requirements for
    waiver of counsel for persons “accused of an offense punishable by imprisonment”); In re
    Lawrence S., 
    319 Ill. App. 3d 476
    , 480-82 (2001) (discussing requirements for effective
    waiver of counsel in proceedings under Mental Health Code). Accordingly, we conclude the
    trial judge did not abuse his discretion when he concluded that the respondent had effectively
    waived his right to counsel in the proceedings under the Act and when he allowed the
    respondent to proceed pro se. See, e.g., Griffin, 
    305 Ill. App. 3d 326
    , 329 (1999) (trial judge’s
    decision regarding effective waiver of counsel reviewed for abuse of discretion); Lerma, 
    2016 IL 118496
    , ¶ 23 (abuse of discretion exists only if the trial court’s decision is arbitrary,
    fanciful, or unreasonable to such an extent that no reasonable person would agree with the
    decision).
    ¶ 26        With regard to his second point on appeal, the respondent contends he “was denied a fair
    trial due to plain error” because he alleges that the only evidence that established the third
    element of the State’s claim that the respondent is a sexually dangerous person—that the
    respondent has demonstrated his criminal “propensities toward acts of sexual assault or acts of
    sexual molestation of children” (see 725 ILCS 205/1.01 (West 2016))—was admitted
    - 15 -
    erroneously but without objection from the respondent. Specifically, the respondent contends
    that evidence consisted of the testimony of Armstrong that, on August 17, 2012, an
    eight-year-old girl who allegedly had been accosted by the respondent near a fountain in
    Portland, Oregon, told Armstrong that the respondent asked the girl “to pull her pants down.”
    As described above, the respondent posed a hearsay objection when the State first attempted to
    elicit this information from Armstrong. The State posited that the statement would qualify as
    an excited utterance and thus would constitute an admissible exception to the hearsay doctrine.
    The trial judge responded, “I’m going to need more foundation about an excited utterance, Ms.
    Foley. Sustained as to excited utterance—or hearsay, I’m sorry.” The following colloquy then
    occurred:
    “[MS. FOLEY]: Thank you, Your Honor. How was this little girl acting?
    A. She looked really alarmed and confused obviously, concerned and
    scared—terrified I would describe it.
    Q. So certainly this was an event that she wasn’t expecting to happen?
    A. No.
    Q. How long after this event were you able to ask her what had happened?
    A. Immediately.
    Q. And did she respond to you immediately?
    A. Yes.
    Q. What did she say?
    A. She said that Mr. Lopes asked her to pull her pants down.”
    ¶ 27       It is well established that in Illinois, a party that wishes to invoke the plain error doctrine
    bears the burden of persuasion. E.g., People v. Herron, 
    215 Ill. 2d 167
    , 187 (2005). The first
    step in determining if plain error exists is to determine if any error occurred at all. E.g., People
    v. Taylor, 
    2011 IL 110067
    , ¶ 30. In this case, there was no error, and thus the respondent’s
    attempt to invoke the plain error doctrine fails. After the trial judge sustained the respondent’s
    hearsay objection, noting that he needed more foundation to determine if the excited utterance
    exception applied, the State provided that foundation, quoted above. As the respondent may
    well have realized, any further attempt by the respondent to object to Armstrong’s testimony
    on the basis of hearsay would have been futile, and the admission of that testimony by the trial
    judge was not erroneous. See, e.g., People v. McCoy, 
    2016 IL App (1st) 130988
    , ¶ 92 (excited
    utterance exception to hearsay rule satisfied if (1) occurrence sufficiently startling to produce
    spontaneous and unreflecting statement, (2) absence of time for declarant to fabricate the
    statement, and (3) statement related to the circumstances of the occurrence; relevant factors to
    consider include time, nature of event, mental and physical condition of declarant, and
    presence or absence of self-interest; time factor varies greatly, as critical inquiry with respect
    to time is whether statement was made while excitement of event predominated). Where, as
    here, there is no initial error at trial, there can be no plain error. See Herron, 
    215 Ill. 2d at 187
    .
    ¶ 28                                      CONCLUSION
    ¶ 29      For the foregoing reasons, we affirm the jury’s finding that the respondent is a sexually
    dangerous person and affirm his commitment to secure care and treatment in the Illinois
    Department of Human Services.
    - 16 -
    ¶ 30   Affirmed.
    - 17 -