People v. Garcia

2015 IL App (1st) 131180
Nos. 1-13-1180 & 1-13-1229 (cons.)
Opinion filed September 8, 2015
Second Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) Nos. 98 CR 30521 & 99 CR 25668
)
GERARDO GARCIA, ) The Honorable
) Rickey Jones,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.
OPINION
¶1 Defendant, Gerardo Garcia, appeals from the third stage dismissal of his petition for
relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)).
Garcia contends the trial court erred when it found, after a retrospective fitness hearing, that he
was fit in 2001 to be tried and sentenced for first-degree murder and to plead guilty to unlawful
use of a weapon by a felon. Garcia further contends the trial court erred in failing to advance his
ineffective assistance of counsel claim past second stage proceedings by rejecting his argument
that his trial counsel was ineffective for stipulating to the State's factual basis and allowing him
to plead guilty to the unproven felony weapons offense.
Nos. 1-13-1180 & 1-13-1229 (cons.)
¶2 We affirm. The trial court's dismissal of Garcia's postconviction petition following a third
stage evidentiary hearing was not manifestly erroneous. The State offered credible evidence in
the form of both defense counsels' testimony and a psychiatrist's report finding Garcia fit to stand
trial in the murder case and that he made his plea in the felony weapons case knowingly and
intelligently. Regarding Garcia's challenge to the second stage dismissal of his ineffective
assistance of counsel claim, we lack jurisdiction to reach the merits of the claim because the
notice of appeal fails to mention it.
¶3 BACKGROUND
¶4 Procedural History
¶5 In 1998, the State charged Garcia with two counts of unlawful use of a weapon by a felon
(UUWF) and two counts of simple unlawful use of a weapon (UUW) in case No. 98 CR 30521.
The following year, the weapon charges still pending, the State charged Garcia in case No. 99
CR 25668 with first-degree murder, attempted first-degree murder, and aggravated battery after
Garcia brought a gun to a fist fight.
¶6 Mental Health History
¶7 On December 5, 2000, while in custody awaiting the murder trial, Garcia was admitted to
Cermak Hospital and placed in full leather restraints for four hours after he threatened to commit
suicide by hanging himself or cutting his wrists. Garcia reported he wanted to kill himself
because his case appeared to be going "bad," and because he was facing 20 to 40 years in prison
if found guilty. Garcia also reported he felt stress due to his incarceration, the possible outcome
of the case, worry for his one-year-old daughter, and his ex-girlfriend's pregnancy by another
man. Doctors prescribed multiple medications to treat anxiety and depression (Zoloft, Trazodone
and Lorazepam a/k/a Ativan). Lorazepam is a sedative when administered intramuscularly rather
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than orally. The hospital discharged Garcia the following day, but he remained on psychotropic
medication while in Cook County jail.
¶8 On April 2, 2001, Garcia was taken to the Cermak emergency room following an
attempted suicide by cutting his ankles and trying to overdose on medication, his own and that of
fellow inmates. In May 2001, Garcia began taking an additional prescription antidepressant with
a sedative function, Doxepin a/k/a Sinequan.
¶9 On June 29, 2001, following a bench trial, the court found Garcia guilty of first-degree
murder and aggravated battery. Garcia did not testify. When questioned by the court about his
decision, Garcia answered "Yes," "No," and "No, I don't want to testify."
¶ 10 The following month, on July 19, Garcia again was taken to Cermak emergency room.
There a psychiatrist considered him at high risk of attempting suicide because he had planned
ways to kill himself. That evening, the acute care unit admitted Garcia, who exhibited depression
and mental confusion. The next day, a psychologist noted Garcia displayed "limited insight,
judgment & impulse control." The acute care unit discharged Garcia two days later.
¶ 11 On August 19, 2001, Garcia went to Cermak Hospital for exhibiting acute depression,
mental confusion and psychotic symptoms, including auditory hallucinations and paranoid
ideation. He reported he had been fine until taken off medication on account of stomach pain.
Garcia resumed taking his medication and was discharged the next day.
¶ 12 On September 11, 2001, the night before his sentencing hearing on the first-degree
murder conviction, Garcia was taken to the emergency room and placed in restraints "for the
protection of self and others" after fighting with another inmate. He remained in the restraints
overnight for 16 hours. He received the sedative Lorazepam (Ativan) intramuscularly at 5:55
p.m. "in order to achieve sedation and control."
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¶ 13 The next day, after returning from his sentencing hearing on his first degree murder
conviction and his guilty plea hearing, Garcia was observed being socially withdrawn and resting
in his room. On September 13 and 14, 2001, Garcia was calm, alert, and quietly resting.
¶ 14 Sentencing and Plea Hearing
¶ 15 On September 12, 2001, the court held Garcia's sentencing hearing on his murder
conviction. During mitigation, defense counsel informed the court, "since my client has been in
custody for this, he has been put into the [Psych] Ward because of the suicide attempt, and he is
on medication for that." Counsel requested Garcia receive a sentence "much closer to the
minimum than the maximum." The trial court asked whether the medication counsel referred to
was psychotropic; counsel responded, "No, it is not, your Honor, it is an anti-depressant." The
court replied, "Thank you. Likewise, I certainly could see nothing but that Mr. Garcia is anything
other than competent. He certainly has conducted himself in an appropriate manner through these
proceedings." Defense counsel stated, "I agree, your Honor." In allocution, Garcia stated he was
sorry, "I was not meaning to kill nobody, you know. And I want you to have mercy in dealing
with me in court."
¶ 16 The trial court sentenced Garcia to 28 years' imprisonment for first-degree murder and to
a concurrent term of 6 years for aggravated battery with a firearm.
¶ 17 The same day, Garcia pled guilty to UUWF in the weapons case (98 CR 30521), in
exchange for two years' imprisonment to run consecutively to his earlier 28-year sentence.
During the plea hearing, the court admonished Garcia of his rights and he answered
appropriately all questions, including those concerning his decision to plead guilty, his right to a
trial by jury, and whether he wished to waive the presentence investigation. Garcia replied with
one-word answers of "yes."
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¶ 18 The State put forth a factual basis for Garcia's guilty plea. Relevant for this appeal is the
State's contention that Garcia admitted to police officers that his car was at the location of the
arrest and that he had a gun in it. The officer recovered from Garcia's car a .25 caliber
semiautomatic blue steel pistol loaded with four live rounds. Defense counsel stipulated to the
evidence and the court found Garcia guilty of UUWF. Asked whether he wished to say anything
before sentencing, Garcia replied, "No." The court sentenced Garcia to two years in prison on
count I, which alleged that he possessed a firearm "on or about his person."
¶ 19 Following the hearing, Garcia returned to Cermak Hospital where he remained for two
days before being taken back to the jail.
¶ 20 Direct Appeal
¶ 21 On appeal from his murder conviction, Garcia argued the State failed to prove him guilty
beyond a reasonable doubt because he was acting in self defense of a friend when he shot and
killed the murder victim and shot the other victim. Alternatively, Garcia argued his first-degree
murder conviction should be reduced to second-degree murder because he unreasonably believed
the circumstances justified his use of deadly force in defense of another. This court affirmed
Garcia's murder conviction on direct appeal. People v. Garcia, 343 Ill. App. 3d 1286 (2003)
(unpublished order under Supreme Court Rule 23). Garcia did not seek to withdraw his guilty
plea or appeal his weapons conviction.
¶ 22 Postconviction Proceedings
¶ 23 On March 3, 2004, 2 1/2 years after his plea in the weapons case, Garcia filed an
untimely pro se motion to withdraw his guilty plea, citing his mental health condition,
medication, and treatment at Cermak Hospital. The court denied his motion. Garcia did not
appeal.
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¶ 24 On September 15, 2004, Garcia filed a pro se postconviction petition in the weapons case
raising issues regarding his fitness to stand trial, his decision to plead guilty and his sentencing.
Garcia argued the combination of medications he was taking at the time of his guilty plea
rendered him "totally lethargic and unable to assist in his defense or make any rational
decisions." Garcia also alleged his trial counsel was ineffective for failing to inform the court of
his "irrational behavior/demeanor and the fact that he was on psychotropic drugs." He further
alleged ineffectiveness of counsel for failing to object to the State's "inadequate" factual basis for
his UUWF conviction in that no firearm was found on his person, he did not admit to being in
possession of a firearm, and a firearm was found in his parked car.
¶ 25 On November 30, 2004, Garcia filed a postconviction petition contesting his first-degree
murder conviction, the details of which are not relevant to this decision.
¶ 26 The court appointed counsel and advanced Garcia's postconviction petitions for second
stage consideration. On August 26, 2009, Garcia, through counsel, filed a single supplemental
petition addressing both cases. He alleged he was unfit to stand trial, plead guilty, or be
sentenced, citing his multiple suicide attempts and regime of psychotropic medications. Garcia
also alleged ineffective assistance for trial counsel's failure to investigate this issue, which led to
counsel misrepresenting Garcia's mental health to the court. In support of his supplemental
petition, Garcia attached his medical records, the presentence investigative report, transcripts
from 2001, and affidavits from his mother and sister highlighting changes in his behavior and
cognitive abilities during his incarceration. Counsel also attached the report of Dr. James
Corcoran, a board-certified forensic psychiatrist and the medical director of Chicago Reed
Mental Health Center. Dr. Corcoran opined, "Mr. Garcia was unfit to stand trial and unfit to
plead guilty" and that he would have been "unable to assist his attorney in his defense." Dr.
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Corcoran concluded that Garcia was too sedated to assist defense counsel, despite his ability to
understand the proceedings. Dr. Corcoran noted Garcia's condition worsened over time with the
increase in the number of psychotropic medications prescribed, resulting in disorganized
thinking that made complex thought and communication "very difficult."
¶ 27 The court granted the State's motion to dismiss Garcia's postconviction petition on all
grounds for relief, except fitness, and advanced Garcia's postconviction petition to third stage
proceedings on his fitness at the time of trial. The court ordered a BCX (behavior clinical
examination). The issue of fitness was not raised at trial.
¶ 28 Behavior Clinical Examination
¶ 29 In September 2010, Dr. Monica Argumedo, a psychiatrist with forensic clinical services
conducted Garcia's BCX. Dr. Argumedo evaluated Garcia with respect to his fitness at the time
of his murder trial in 2001 and at the time he pled guilty to UUWF. Before her interview, Dr.
Argumedo reviewed the fitness evaluation conducted by Dr. Corcoran on June 15, 2008; the July
30, 2001, investigative report from the adult probation department; the affidavits of Garcia's
mother and sister; the transcripts of the court proceedings from September 12, 2001 (sentencing
and plea hearings); the Chicago police department arrest investigative records; and the August
2010 records from Cermak Hospital. Three months after meeting with Garcia, Argumedo
received and reviewed the records from the Department of Corrections and Cermak Hospital for
December 2000 and December 2001. On March 2, 2011, Dr. Argumedo informed the court by
letter of her opinion—Garcia was fit to stand trial and plead guilty in 2001.
¶ 30 Retrospective Fitness Hearing
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¶ 31 During the retrospective hearing, which took place over several dates in 2012, the
defense called Dr. Corcoran, as well as Garcia's mother and sister. The State called Dr.
Argumedo and Garcia's two trial attorneys, Michael Clancy and David Pielet.
¶ 32 Dr. Corcoran testified that during his retrospective fitness evaluation, he relied primarily
on his review of Garcia's medical records, but also interviewed Garcia for 90 minutes and
reviewed the trial transcripts, reports concerning Garcia's mental health, and his family members'
affidavits. Corcoran opined that at the time of the trial and the guilty plea, Garcia was unfit and
too sedated to assist defense counsel even though he was able to understand the proceedings.
Corcoran believed Garcia's mental condition worsened over time due to the number of
psychotropic medications he was prescribed, resulting in disorganized thinking. Corcoran noted
that Garcia's statements in response to the court's questioning during the trial proceedings did
not prove fitness. Corcoran considered it significant that Garcia did not testify and the court did
not ask complex questions calling for a narrative response.
¶ 33 Dr. Corcoran stood by his opinion even though he was aware that in November 2001,
shortly after Garcia's sentencing and guilty plea, Garcia went through the intake process at jail
and admitted he lied about trying to kill himself in an attempt to get moved to protective custody.
Corcoran explained the effects of the Ativan which Garcia received intramuscularly on
September 11, 2001, as possibly including sedation, passivity, tiredness, and sometimes inability
to focus. Dr. Corcoran testified that the combined effect of all of the psychotropic medications
and Garcia's depression could result in a behavior that would appear "under control" and
"appropriate" by a lay person. Corcoran opined Garcia did not have the ability to assist or
cooperate with his trial attorneys as he would have difficulty forming thoughts "in a coherent
manner due to extensive sedation of the medications."
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¶ 34 Garcia's mother and sister testified they regularly visited him in Cook County jail while
he awaited trial. Initially, Garcia appeared his normal, sociable self, but over time, he began
acting distracted like "his mind wasn't there." Garcia's family members explained that he would
only offer one-word answers to questions, often gave nonresponsive answers, and would repeat
things he had already told them.
¶ 35 Dr. Argumedo testified she met with Garcia in 2010 and also reviewed Dr. Corcoran's
report, other reports, the family affidavits, Cermak records, and the court transcript from
September 12, 2001 (the sentencing hearing). Dr. Argumedo testified that Garcia understood the
court process in 2001 and in 2010, and that he was not experiencing any psychotic symptoms.
She explained that in reaching her opinion, her main concern was with the incident involving
restraints the night before his sentencing/plea hearing. She testified she wanted to know the
reason for the restraints and what type of treatment he received. When she reviewed the records,
she concluded that Garcia "was very upset, particularly about instances in his case." When
questioned, "Meaning what?" Argumedo explained, "Meaning when he was convicted, he
reacted by becoming very depressed, having suicidal thoughts, saying, 'I just want to die. I don't
want to die in jail,' and it seemed to me that it sort of supported my opinion that he understood
what was going on because when this occurred, he understood the significance of them."
Argumedo testified that during Garcia's trial, the times he reported suicidal thoughts "were
almost always in direct relation to something that was happening within his case, his case wasn't
going well, he was looking at a lot of time, and so he was worried, and so he would get
depressed to the point where he would want to kill himself, or he would attack another inmate,
something would happen along those lines, and it seemed like it fit a pattern." In terms of fitness,
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Argumedo found the fact that Garcia's depression correlated with how well his case seemed to be
going indicated "a good understanding of what was going on in the trial."
¶ 36 Dr. Argumedo reviewed Garcia's medication and their side effects. That Garcia
experienced abdominal discomfort while taking Zoloft and reported the side effect to a doctor,
who changed the medication, indicated to Dr. Argumedo that Garcia had the "ability to be
appropriately self-protective." Argumedo opined that had Garcia experienced side effects such as
mental confusion, inability to concentrate or deadening of emotions, she would have expected
him to report those feelings as he did his depression and stomach discomfort. The absence of any
reports like that was significant to Argumedo.
¶ 37 Argumedo testified specifically about the events surrounding Garcia's time in restraints
on September 11, 2001. According to the records, Garcia hit another inmate with a food tray and
the altercation occurred. He was brought to Cermak Hospital and placed in restraints because he
was "physically fighting them." Argumedo testified the records show Garcia received a two
milligram dose of Ativan, which she described as "a starting dose or on the smaller end of a
dose, to calm him down." After receiving the Ativan, Garcia was still agitated, but was "clear,"
"alert and oriented." Garcia was saying, "I had to take care of my business." The records state he
slept through the night. Argumedo stated that Garcia "didn't seem overly sedated." When
questioned whether Garcia returned to the general population the next day, Argumedo replied, "It
looked like the next day, but I'm not a hundred percent positive." (Garcia remained at Cermak
Hospital for two more days after the sentencing/plea hearing.)
¶ 38 Dr. Argumedo conceded defense counsel was wrong when he informed the court Garcia
was not taking any psychotropic medications and that an individual taking these types of
medications could be fit one day and unfit the next.
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¶ 39 Garcia's trial attorney, Michael Clancy, testified that he and David Peilet represented
Garcia in his murder trial. They consulted with him at the jail in 1999 or 2000 to discuss the facts
of the case and potential trial strategies. Clancy met with Garcia over 20 times during the course
of the case and Garcia told him his story and was "absolutely" able to assist in his defense.
Clancy recalled that Garcia was "very involved" in explaining the circumstances of the shooting
to his attorneys and the facts the defense presented at trial came from Garcia's recollection.
¶ 40 Peilet testified Garcia assisted in his defense and that he and Clancy were able to
formulate their trial strategy through communications with Garcia. In the past Peilet had
represented clients for whom he requested fitness hearings due to doubt about their fitness, but
he never had a doubt about Garcia's fitness. The issue of Garcia's fitness "never entered his
mind" because Garcia was able to "intelligently discuss with him, and he was able to articulate
certain specific facts that were needed in preparation of the defense." According to Peilet, at no
time during trial, sentencing, or plea hearing was Garcia unable to assist in his own defense.
¶ 41 Both attorneys testified Garcia always seemed appropriate and acted "compliant and
cooperative" during all court dates and, therefore, they never doubted his fitness. The attorneys
acknowledged they had no psychology training or familiarity with psychotropic medications.
They also admitted they did not review Garcia's records from Cermak Hospital and only learned
about his attempted suicide from April 2001 and other mental health issues when they received
the presentence investigative report just before sentencing in the murder case.
¶ 42 At the conclusion of the evidence, Garcia's postconviction counsel argued Dr. Argumedo
performed the wrong analysis in determining Garcia's fitness. Postconviction counsel argued
Argumedo improperly focused on the standard set forth in the insanity statutes and Garcia's
ability to understand the proceedings. Counsel argued Argumedo failed to analyze whether
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Garcia was able to assist his trial attorneys at all relevant times, and pointed to the trial attorneys'
lack of psychological training. Counsel argued that their interpretation of Garcia as fit because of
his calm and compliant state actually shows that Garcia was "highly sedated."
¶ 43 The court denied Garcia's supplemental postconviction petition, finding Garcia was fit at
all relevant times during the proceedings. The court found the testimony of the State's witnesses
more credible than that of the defense witnesses.
¶ 44 Garcia appeals, contending that the trial court erred in finding him fit, where the
undisputed record shows he spent the night before he pled guilty and was sentenced in full
restraints and under the effects of sedatives.
¶ 45 ANALYSIS
¶ 46 The Illinois Post-Conviction Hearing Act provides a process by which a criminal
defendant may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2010). A
postconviction action is a collateral attack on a prior conviction and sentence, "not a substitute
for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill. 2d 325, 328 (1994). To be
accorded relief under the Act, a defendant must show there was a substantial deprivation of his
or her constitutional rights in the proceedings that produced the conviction. People v. Pendleton,
223 Ill. 2d 458, 471 (2006). The Act "provides for postconviction proceedings that may consist
of as many as three stages." Id. at 472. At the third stage, the trial court hears evidence and
determines whether, based on that evidence, the defendant is entitled to relief. People v.
Chatman, 357 Ill. App. 3d 695, 698 (2005). "[T]he post-conviction trial judge is able to observe
and hear the witnesses at the evidentiary hearing and, therefore, occupies a 'position of advantage
in a search for the truth' which 'is infinitely superior to that of a tribunal where the sole guide is
the printed record.' " People v. Coleman, 183 Ill. 2d 366, 384 (1998) (quoting Johnson v.
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Fulkerson, 12 Ill. 2d 69, 75 (1957)). Accordingly, when the circuit court holds an evidentiary
hearing to consider new evidence and weigh witness credibility, the court's judgment will not be
disturbed absent manifest error. People v. Morgan, 212 Ill. 2d 148, 155 (2004). "Manifest error
is error which is ' "clearly evident, plain, and indisputable." ' " Id. (quoting People v. Johnson,
206 Ill. 2d 348, 360 (2002), quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).
¶ 47 The trial court ordered a third stage evidentiary hearing on the issue of Garcia's fitness to
stand trial for first-degree murder and to plead guilty to UUWF. Following the hearing, the trial
court found Garcia retrospectively fit for both.
¶ 48 Garcia's Fitness
¶ 49 Garcia contends the trial court erred in dismissing his postconviction petition following
the third stage evidentiary hearing. Garcia claims he could not assist in his defense at sentencing
and pled guilty as a consequence of his use of psychotropic medications and his mental state,
including psychotic episodes and attempted suicide.
¶ 50 The due process clause of the fourteenth amendment prohibits the conviction and
sentencing of a defendant who is not fit to stand trial. U.S. Const., amend. XIV; People v.
Johnson, 206 Ill. 2d 348, 361 (2002). Illinois law presumes a defendant fit to stand trial and
considers a defendant unfit only if his or her mental condition prevents him or her from
understanding the nature and purpose of the proceedings or assisting in the defense. 725 ILCS
5/104-11(a) (West 2010); People v. Shum, 207 Ill. 2d 47, 57 (2003). When a bona fide doubt
concerning a defendant's fitness to stand trial exists, the court must order a fitness hearing to
resolve the question of fitness before the case can proceed further. 725 ILCS 5/104-11(a) (West
2010); Johnson, 206 Ill. 2d at 361. The well-settled test for fitness necessitates that a defendant
have "sufficient present ability to consult with his [or her] lawyer with a reasonable degree of
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rational understanding … [and] a rational as well as factual understanding of the proceedings
against him [or her]." (Internal quotation marks omitted.) People v. Stahl, 2014 IL 115804, ¶ 24
(quoting Cooper v. Oklahoma, 517 U.S. 348, 354 (1996), quoting Dusky v. United States, 362
U.S. 402, 402 (1960) (per curiam)). A fitness examination order is not evidence of a bona fide
doubt as to the defendant's fitness. People v. Hill, 345 Ill. App. 3d 620, 627 (2003) ("decision to
appoint an expert to examine a defendant has no bearing on the court's ultimate conclusion as to
whether a bona fide doubt as to the defendant's fitness to stand trial has been raised"). Once a
bona fide doubt has been raised as to the defendant's fitness to stand trial, the State must prove
the defendant fit by a preponderance of the evidence. People v. Clay, 361 Ill. App. 3d 310, 331
(2005).
¶ 51 Fitness and mental illness differ: fitness is a legal term determined by a judge or jury;
mental illness is diagnosed by a licensed physician or psychologist. People v. Tuduj, 2014 IL
App (1st) 092536, ¶ 89. "Fitness speaks only to a person's ability to function within the context
of a trial. It does not refer to sanity or competence in other areas. A defendant can be fit for trial
although his or her mind may be otherwise unsound." People v. Easley, 192 Ill. 2d 307, 320
(2000). Evidence at a fitness hearing may include a report from forensic clinical services, or
from private psychiatrists or psychologists retained by either side, but the court must make the
ultimate decision as to the defendant's fitness, not the experts. People v. Bilyew, 73 Ill. 2d 294,
302 (1978). Courts determine fitness by considering "the defendant's irrational behavior, the
defendant's demeanor at trial, and any prior medical opinion on the defendant's competence" to
stand trial. People v. Harris, 206 Ill. 2d 293, 304 (2002).
¶ 52 Garcia contends that "[u]nder no circumstances should a defendant be deemed fit at the
time he was committed to the pscyh ward at Cermak Hospital." He maintains that his trial
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attorneys and the judge were not aware of the full scope of his mental health treatment (his
psychotropic medication and night in full leather restraints), so "they presumed he was fit" at the
sentencing/plea hearing. Garcia asks that we reverse and "make it clear that it is illegal to engage
in an important criminal proceeding while the defendant is *** heavily medicated and [in] a
suicidal ward of a mental hospital."
¶ 53 But the issue before the trial court did not involve whether Garcia was mentally ill or
required psychotropic medication; the issue before the trial court was whether Garcia could
understand the nature of the proceedings against him and cooperate with counsel in his defense
during the murder trial, and at the time he was sentenced and pled guilty to UUWF. See Easley,
192 Ill. 2d at 322-23. Following the fitness hearing, the trial court determined that during the trial
and at the time of Garcia's sentencing, and when he pled guilty to the weapons offense, there
were no facts in existence which raised a real, substantial, and legitimate doubt as to his mental
capacity to understand the nature and purpose of the proceedings against him and meaningfully
participate. We will uphold the trial court's ruling unless manifestly erroneous. See Morgan, 212
Ill. 2d at 155.
¶ 54 A defendant's fitness depends on whether the defendant "has sufficient present ability to
consult with his [or her] lawyer with a reasonable degree of rational understanding—and whether
he [or she] has a rational as well as a factual understanding of the proceedings against him [or
her]." Dusky, 362 U.S. at 402. The same test applies to fitness hearings conducted
retrospectively. See People v. Mitchell, 189 Ill. 2d 312, 339 (2000).
¶ 55 The record indicates that Garcia's mental health began deteriorating in late 2000, when he
was admitted to Cermak Hospital for the first time after threatening suicide. Garcia continued to
experience mental health episodes, including one the night before his sentencing hearing and
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guilty plea. On September 11, 2001, he was taken to the emergency room and placed in restraints
overnight. He also received the sedative Ativan intramuscularly.
¶ 56 On September 12, 2001, Garcia attended the sentencing hearing and pled guilty to
UUWF. He listened as the court admonished him of his rights and answered all of the court's
questions appropriately, albeit with one word responses of "Yes" and "No." There is nothing
atypical or suspect about a defendant's one-word response during a plea hearing. Indeed, the
purpose of the hearing is to confirm or disprove defendant's understanding of the rights he or she
is giving up by pleading guilty. Thus, we attach no particular significance to the fact that the
court's questions did not call for narrative answers. Garcia declined the opportunity to speak
before sentencing on his guilty plea, but did make a statement in allocution during the sentencing
hearing for his first-degree murder conviction. Garcia stated he was sorry, "I was not meaning to
kill nobody, you know. And I want you to have mercy in dealing with me in court."
¶ 57 Dr. Argumedo testified Garcia was fit to stand trial. She found his depression, suicidal
thoughts, and anxiety to be situational and only triggered when he believed his trial was going
poorly. Dr. Corcoran offered conflicting testimony, finding Garcia unfit based primarily on his
mental condition worsening over time, along with an increase in the number of psychotropic
medications he was prescribed, resulting in disorganized thinking. The court credited
Argumedo's testimony over Corcoran's. As a reviewing court, it is not for us to disregard the
credibility determinations of the trial court. See People v. Houseworth, 388 Ill. App. 3d 37, 52
(2008) (where there is conflicting expert testimony, trial court, as trier of fact, determines which
expert to consider more credible).
¶ 58 Garcia's defense attorneys both testified he cooperated with them throughout the trial,
participated in formulating their defense strategy, and that they had no bona fide doubt
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concerning his fitness at any time during their representation. Garcia argues his trial counsel
"seriously underestimated the gravity of the situation" when he responded to the court's question
incorrectly by stating that Garcia was not under the influence of psychotropic medications when
he was. At the time of the retrospective fitness hearing, the trial court was aware the medication
Garcia was taking was psychotropic and, as our supreme court has observed, the use of
psychotropic medication is not equivalent to a bona fide doubt of a defendant's fitness. See
People v. Mitchell, 189 Ill. 2d 312, 338-89 (2000). Further, any weight the trial court gave
defense counsels' testimony regarding Garcia's fitness was not manifestly erroneous. See People
v. Eddmonds, 143 Ill. 2d 501, 518 (1991) ("The representations of defendant's counsel
concerning the competence of his client, while not conclusive, are another important factor to
consider." (citing Drope v. Missouri, 420 U.S. 162, 177 n. 13 (1975)).
¶ 59 The trial court observed Garcia's demeanor throughout the proceedings and held no
concerns about his ability to understand the proceedings or participate with his attorneys in his
own defense. The trial court credited the State's witnesses over that of the defense on the issue of
Garcia's fitness and concluded that Garcia had been fit to stand trial and plead guilty. The trial
court's conclusion—that there is nothing in the record to indicate Garcia was confused, lacked
understanding, or could not assist in his own defense as a result of the medication he was taking
during his murder trial or sentencing/guilty plea on September 12, 2001—is not manifestly
erroneous. Accordingly, the trial court properly denied Garcia postconviction relief following the
third stage evidentiary hearing.
¶ 60 Ineffective Assistance of Counsel Claim
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¶ 61 Garcia argues his counsel's stipulation to the State's insufficient factual basis for the
weapons charge, UUWF, and his counsel's consequent advice to plead guilty to that unproven
offense deprived him of his constitutional right to effective assistance of counsel.
¶ 62 Garcia argues he made a substantial showing that trial counsel was ineffective for failing
to object to the sufficiency of the factual basis for his guilty plea. He contends the factual basis
did not establish he "possessed a firearm 'on or about his person,' " an essential element of the
UUWF charges. Garcia argues it is significant that he was charged with two counts of UUWF
and two counts of simple UUW and that both counts of UUWF and one count of UUW alleged
he carried the firearm "on or about his person" and the other count of UUW alleged the firearm
was "in a vehicle." Garcia further contends the factual basis only supported a conviction for
UUW, not UUWF, to which he pled guilty. Garcia argues his counsel should have objected to
the factual basis as inadequate to prove the enhanced offense and should have prevented him
from pleading guilty. Because of counsel's "deficient representation," Garcia contends that his
conviction and sentence involved a more serious offense than the State could prove. Garcia
argues he sufficiently alleged this claim in his postconviction petition and the trial court erred
when it dismissed the claim at the second stage, advancing only his fitness contentions to third
stage proceedings.
¶ 63 The trial court dismissed Garcia's postconviction petition at the second stage, finding he
failed to make a "substantial showing of a constitutional violation." People v. Edwards, 197 Ill.
2d 239, 246 (2001). During second stage review, unless the petitioner's allegations are
affirmatively refuted by the record, they are taken as true, and the question becomes whether the
allegations establish a constitutional violation. People v. Coleman, 183 Ill. 2d 366, 380 (1998).
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Meaning, if proven at a third stage evidentiary hearing, the petitioner would be entitled to relief.
Id. We review a second stage dismissal de novo. Id. at 389.
¶ 64 Before proceeding to the merits, however, we must address our jurisdiction. As an
appellate court, we have a duty to consider jurisdiction and dismiss an appeal if jurisdiction is
wanting. See generally In re M.W., 232 Ill. 2d 408, 414-15 (2009).
¶ 65 We agree with the State that we lack jurisdiction to consider the merits of Garcia's
ineffective assistance of counsel claim. Garcia failed to raise his claim of ineffective assistance
of counsel in his notice of appeal. Garcia only stated he was appealing the trial court's denial of
his postconviction claim following the third stage evidentiary hearing on March 28, 2013.
¶ 66 A notice of appeal serves two functions: (1) vests this court with jurisdiction and (2)
informs the prevailing party that the losing party is seeking review by a higher court. Waste
Management, Inc. v. International Surplus Lines Insurance Co., 144 Ill. 2d 178, 188 (1991).
Although we liberally construe the contents of a notice of appeal and will not consider "[m]ere
technical defects in form," (id. at 189) the notice must "fairly and accurately advise the
successful party of the nature of the appeal" (internal quotation marks omitted) (In re F.S., 347
Ill. App. 3d 55, 71 (2004)).
¶ 67 Garcia's notice of appeal specified the appeal was being taken from the trial court's order
of March 28, 2013, "Post-Conviction Petition denied after Stage III hearing." Hence, Garcia's
notice of appeal did not "fairly and accurately" advise the State that he intended to challenge the
court's second stage dismissal, even when liberally construed. By now claiming the trial court
erred in dismissing his ineffective assistance of counsel claim at the second stage, Garcia
improperly tries to appeal a ruling from July 27, 2010, which was not raised in his notice of
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Nos. 1-13-1180 & 1-13-1229 (cons.)
appeal. This court has no jurisdiction to consider an issue not included in Garcia's notice of
appeal.
¶ 68 CONCLUSION
¶ 69 The court properly dismissed Garcia's petition for postconviction relief following the
evidentiary hearing. We lack jurisdiction to consider the trial court's second stage dismissal of
Garcia's ineffective assistance of counsel claim.
¶ 70 Affirmed in part; dismissed in part.
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