People v. Tursios , 349 Ill. App. 3d 126 ( 2004 )

JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Favio Tursios, appeals from the trial court’s order denying his motion to withdraw his guilty plea. We affirm.

Defendant was charged with six criminal offenses arising out of the stabbing death of Yensi Rodriguez. A conference pursuant to Supreme Court Rule 402 (177 Ill. 2d R. 402) was held during which the trial court stated that it would enter a sentence of 20 to 25 years if defendant pleaded guilty to one count of first degree murder (720 ILCS 5/9 — 1 (West 2000)). Defendant asked that he be given until the following morning “to think about it.” The next day, December 11, 2001, he pleaded guilty to one count of first degree murder. Pursuant to the plea negotiations, the State recommended a sentencing cap of 30 years. Defendant was admonished with the aid of an interpreter, as he was not fluent in English. A presentence report was ordered, and the case was continued for sentencing.

The presentence report was not complete on the next court date of February 15, 2002. Defense counsel Theodore Potkonjak informed the court that, during the preparation of the report, defendant told the probation officer that he did not want to cooperate because he was not guilty of first degree murder. He did not understand the procedures and thought that he had pleaded guilty to second degree murder. Defendant told Potkonjak that he wished to withdraw his guilty plea. Potkonjak did not think that he and his co-counsel, Scott Wineberg, could go forward with sentencing “because it puts us in the position that we have to ascertain whether or not there’s a clear understanding of what he had pled guilty to.” The court continued the matter for the filing of a written motion to withdraw the plea.

Counsel did not file a written motion. On the next court date, he informed the court that he had reviewed some of the transcripts regarding the guilty plea and discussed the plea with defendant, who no longer wished to withdraw the plea. When the court asked defendant, through an interpreter, if he had discussed this with his attorneys, defendant stated, “Yes, I would like to withdraw.” Defense counsel then stated that he had “a bonafied [sic] doubt” about defendant’s fitness to stand trial and requested a fitness evaluation. Counsel stated that, when he told things to defendant, “it seems to sink in, but it doesn’t.” Counsel wanted to clarify whether defendant truly could not understand the discussions regarding his plea or whether he was involved in “gamesmanship.” Counsel also thought that the language barrier had something to do with the problem. The court did not find sufficient evidence of a bona fide d' ubt as to fitness and continued the case for preparation of the report and sentencing. The court stated:

“Now it seems to me that every time Mr. Turcios [sic] comes into Court he still can’t make up his mind as to what he wants s [sic] to do. Yet, when he is in jail speaking with his attorneys he’s satisfied with what he did in court. And then he comes into court, and maybe it’s the — you know, when it’s happening in the courtroom he can’t make up his mind. I didn’t find that there were any [sic] anything [sic] about the way he was questioned or talked to that he didn’t understand what’s happening. It may just be how the words are used, but he’s asked questions. He understands the legal process. He’s been able to communicate with his attorneys, and the only thing that he can’t do is make up his mind as to whether or not he wants this motion to be filed to withdraw his plea.”

Potkonjak also informed the court that he was leaving his practice before the next court date and that Wineberg would continue defendant’s representation.

Before the next court date, Wineberg sent an investigator from his office to speak with defendant. Defendant told the investigator that his attorneys did nothing for him and did not tell him that he was pleading guilty to first degree murder. He wanted a sentence of less than 20 years in prison. Wineberg subsequently filed a motion to withdraw as attorney, citing a “total breakdown of communication.” Wineberg stated that continued representation of defendant in pursuit of his motion to withdraw his plea would mean that Wineberg would have to allege the ineffectiveness of himself and Potkonjak, who had “since been bestowed a judicial robe.” Further, he would still have to represent defendant at sentencing if a motion alleging his own ineffectiveness was denied. The trial court noted that defendant had never told Wineberg directly of any intent to allege ineffective assistance of counsel, nor had defendant informed the court of any such problem. The court continued the case for completion of the presentence report and recommended that Wineberg speak directly with defendant and “file whatever needs to be filed.”

On the next court date, Wineberg stated that he had reviewed the transcripts of the Rule 402 conference and the plea, including the admonishments, and did not believe that a motion to withdraw defendant’s guilty plea would be meritorious. The following colloquy then took place, with an interpreter present:

“THE COURT: Mr. Tursios, did you go over withdrawing your plea with Mr. Wineberg?

THE DEFENDANT: What? I didn’t understand.

THE COURT: Did you talk to Mr. Wineberg about withdrawing or taking back your plea of guilty?

THE DEFENDANT: Yeah.

THE COURT: And you do not wish to do that? You wish to go forward with the sentencing today?

THE DEFENDANT: No, I just want to get the sentence now.

THE COURT: So you want to be sentenced today?

THE DEFENDANT: Yes.”

Appended to the presentence report was a psychological evaluation by clinical psychologist Karen Chandry. Defendant told Chandry that he had trouble learning and concentrating in school when he was a child in Honduras. He also told of several untreated head injuries that he suffered as a child. As an adult, he traveled alone for four months through four countries to get to the United States. After he began to live with Yensi Rodriguez, the victim in this case, he began to use alcohol and marijuana. He was under the influence of both substances and did not know what he was doing when he stabbed Rodriguez during a fight. Since he was arrested, defendant suffered from post-traumatic stress disorder, resulting in nightmares of the offense and thoughts of suicide.

Chandry described defendant as cooperative with the evaluation process. Defendant “indicated by his questions and comments that he was having difficulty comprehending questions asked him.” While he appeared to have “cognitive defects complicated by depression,” he demonstrated “no evidence of delusional thinking or any other indicators of a formal thought disorder.” He was “alert and oriented to time, place, and person.” His ability to concentrate “appeared compromised,” his judgment and level of insight were assessed as “fair to poor,” and his intellectual functioning was rated as “low average.” He appeared to have problems with frustration and anger and was impulsive and unpredictable. Chandry recommended that defendant be evaluated by a psychiatrist “for the usefulness of psychotropic medication” and “observed for further suicidal ideation and intentions, particularly after his sentencing and after he is first transferred to the Illinois Department of Corrections.”

Following arguments, the court sentenced defendant to 23 years in the Department of Corrections. Defendant subsequently filed a motion to withdraw his guilty plea, which was written by Wineberg. The motion alleged that “something was lost in the translation” by the interpreters involved in the case such that defendant was not aware that he was pleading guilty to first degree murder and that he could receive a sentence of no less than 20 years in prison. He also argued that he had a meritorious defense of self-defense and that his “wavering” on his guilty plea was evidence that “he was pushed into making a hasty decision to forego his right to trial.” The trial court denied this motion after a hearing. This appeal followed.

Defendant first contends that the trial court erred by not ordering a fitness hearing. Due process prohibits prosecuting or sentencing a defendant who is not competent to stand trial. People v. Sandham, 174 Ill. 2d 379, 382 (1996). Fitness to stand trial requires that the defendant understand the nature and purpose of the proceedings against him and be able to assist in his defense. Sandham, 174 Ill. 2d at 382. Fitness refers to a person’s ability to function in the context of a trial and does not refer to sanity or competence in other areas; a defendant can be fit for trial although his mind may be otherwise unsound. People v. Easley, 192 Ill. 2d 307, 320 (2000). A defendant is entitled to a fitness hearing only when a bona fide doubt arises about the defendant’s fitness. Easley, 192 Ill. 2d at 318. While there are no fixed or immutable signs that invariably indicate the need for further inquiry, relevant factors that the trial court may consider include the defendant’s irrational behavior, the defendant’s demeanor in court proceedings, and any prior medical opinion on the defendant’s competence to stand trial. Easley, 192 Ill. 2d at 319. Whether a bona fide doubt about a defendant’s fitness has arisen is a matter within the trial court’s discretion. Sandham, 174 Ill. 2d at 382.

Defendant argues that Potkonjak raised a bona fide doubt of fitness when he informed the trial court of his own bona fide doubt of fitness. We disagree. Potkonjak, while raising the specter of defendant’s unfitness, also raised the possibility that defendant was engaged in “gamesmanship.” Potkonjak also stated that he thought that the language barrier may have played a role in defendant’s equivocation. In denying the motion for a fitness hearing, the court commented on defendant’s behavior during the court proceedings and how he responded to questions while in court. The court also noted that “how the words are used” may have had an impact vis-a-vis the language barrier. The court found that defendant understood the proceedings and communicated with his attorneys. Defendant himself brought up the difference between first and second degree murder and the possible sentences involved. While defense counsel may have used the magic words of bona fide doubt, we conclude that the trial court did not err in refusing to order a fitness hearing on this basis.

Defendant also argues that the psychological evaluation raised a bona fide doubt of his fitness. We disagree. Chandry noted defendant’s many difficulties, including prior head injuries and problems with comprehension, impulsive behavior, concentration, post-traumatic stress, and substance abuse. However, Chandry also noted that defendant was “alert and oriented to time, place, and person” and did not demonstrate any evidence of “delusional thinking or any other indicators of a formal thought disorder.” Significantly, Chandry did not opine that defendant’s problems would have prevented him from understanding the nature and purpose of the proceedings against him and being able to assist in his own defense. This report was one factor that the trial court could consider in determining defendant’s competence to stand trial. See Easley, 192 Ill. 2d at 319. The trial court clearly considered the report, along with defendant’s behavior and demeanor in the courtroom. While defendant may have had difficulty making up his mind and sticking to his decision, we cannot conclude that the trial court abused its discretion by not ordering a fitness hearing.

Defendant next contends that the trial court erred in failing to conduct a preliminary inquiry or make any ruling when it was informed that defendant wished to withdraw his plea on the basis of ineffective assistance of counsel. Defendant claims that there were two occasions where the trial court was put on notice that he intended to raise ineffective assistance of counsel in his motion to withdraw his guilty plea. However, we are not persuaded that, in either instance, defendant actually expressed an intent to allege ineffective assistance of counsel; therefore, the trial court did not err in failing to investigate the nonexistent claims. Defendant first cites to the February 15, 2002, court date, when Potkonjak first informed the court that defendant wanted to withdraw his plea. Defendant argues:

“Potkonjak suggested to the judge that it would not be proper for either Weinberg [sic] or himself to continue representing defendant because defendant wanted to withdraw his plea on the basis that he had been led to believe that he had pled guilty to second-degree murder.”

Our review of the transcript of the proceedings on that day reveals no mention of ineffective assistance of counsel. Potkonjak was merely stating that they could not proceed with sentencing before they could “ascertain whether or not there’s a clear understanding of what he had pled guilty to.” Defendant could have misunderstood for reasons other than attorney incompetence. Defendant’s lack of English-speaking skills are well documented. Clearly, there was no mention of the intent to allege ineffective assistance of counsel in this instance.

Defendant next cites to Wineberg’s motion to withdraw as defense counsel. In the motion, Wineberg clearly raised the issue of ineffective assistance of counsel. However, Wineberg raised the issue without speaking directly with defendant to learn his intentions. Instead, the issue was raised based on an investigator’s interview with defendant. The trial court recommended that Wineberg speak directly with defendant and then “file whatever needs to be filed.” Again, there was no clear indication that defendant planned to allege ineffective assistance as a basis for withdrawing his plea. A hearsay statement is not sufficient to apprise the court of a defendant’s true intentions.

The dissent cites to People v. Moore, 207 Ill. 2d 68 (2003), and People v. Friend, 341 Ill. App. 3d 139 (2003), to support its argument that the trial court should have inquired further into defendant’s claims of ineffective assistance of counsel. However, these cases are distinguishable. In Moore, the defendant actually filed a pro se motion seeking appointment of new counsel, on which the trial court failed to rule, even after defense counsel brought the motion to the court’s attention. Moore, 207 Ill. 2d at 73-74. The defendant also specifically told the court of his complaints against counsel. Moore, 207 Ill. 2d at 75-76. In Friend, the presentence report contained a five-page statement by the defendant alleging specific actions by defense counsel, including the failure of counsel to file any motions after charging the defendant $10,000 to file motions, leaving the defendant without funds to fight the case further. Friend, 341 Ill. App. 3d at 143. Here, defendant never filed a pro se motion with allegations into which the court could inquire. Defendant never told the court of any problems he had with his counsels’ representation. The presentence report contained only a one-sentence generic reference to complaints that defendant made to a probation officer at the time of the preparation of the report and several months earlier. None of the complaints, in any event, specifically alleged ineffective assistance of counsel. The record in this case simply does not show that the trial court was presented with specific allegations of ineffective assistance of counsel such that it was required to inquire further. A trial court is not required to chase after hearsay and rumors. Therefore, we find no error here.

For these reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

HUTCHINSON, J., concurs.