People v. Zoph

2023 IL App (2d) 220123-UNo. 2-22-0123
Order filed May 15, 2023
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 04-CF-2440
)
JAMES E. ZOPH, ) Honorable
) George D. Strickland,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court.
Presiding Justice McLaren and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: Cause remanded for the limited purpose of conducting a retrospective fitness
hearing and determining the issue of defendant’s fitness for postconviction
proceedings.
Following a jury trial in the circuit court of Lake County, defendant, James E. Zoph, was convicted
of first-degree murder of a person 60 years of age or older by exceptionally brutal or heinous
behavior indicative of wanton cruelty (720 ILCS 5/9-1(b)(16) (West 2004)) and sentenced to
natural life imprisonment. We affirmed defendant’s conviction and sentence on direct appeal.
People v. Zoph, 381 Ill. App. 3d 435 (2008) (Zoph I). On May 14, 2008, defendant filed a pro se
2023 IL App (2d) 220123-Upetition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)).
Between July 2008 and February 2015, defendant filed 19 pro se supplemental and amended
postconviction petitions. In April 2015, counsel was appointed for defendant, and the matter was
advanced to the second stage of postconviction proceedings. Defendant’s counsel subsequently
moved for the appointment of a qualified fitness examiner to evaluate defendant as well as sought
a finding of bona fide doubt regarding defendant’s fitness for postconviction proceedings. On July
22, 2020, the court made a finding of bona fide doubt and ordered a fitness examination. The
appointed physician concluded that defendant was fit following a fitness examination, and the
postconviction proceedings continued without the court ultimately ruling whether defendant was
fit for postconviction proceedings. On June 21, 2021, postconviction counsel filed an amended
petition. Thereafter, at defendant’s request, his postconviction counsel was discharged, and
defendant was permitted to proceed pro se. On January 28, 2022, defendant filed his final amended
postconviction petition, and he raised two claims of ineffective assistance of trial counsel. One
claim was dismissed at the second stage of postconviction proceedings, and the other was
ultimately denied following an evidentiary hearing.
¶2 Defendant appeals, arguing that the trial court erred in: (1) failing to hold a fitness hearing
or rule on defendant’s fitness after it expressly found a bona fide doubt as to his fitness for
postconviction proceedings; and (2) dismissing one of defendant’s ineffective assistance of trial
counsel claims without an evidentiary hearing. We agree with defendant’s first claim of error and
remand the cause for the limited purpose of conducting a retrospective fitness hearing to determine
whether defendant was fit for postconviction proceedings.
¶3 I. BACKGROUND
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2023 IL App (2d) 220123-U¶4 The facts were thoroughly recounted by this court in Zoph I. We briefly summarize them
to give context to the instant appeal. On June 29, 2004, in Zion, Illinois, defendant’s aunt, Wanda
Walker, was found dead in the home that she shared with her sister, defendant’s adoptive mother,
Betty Zoph. Zoph adopted defendant when he was about eight years old, and defendant lived in
her home until about 1995, when defendant was in his mid-20’s. At the time of her death, Walker
was a 66-year-old woman who was physically disabled. She was discovered on the floor in the
basement of her home. Walker had bleeding in her brain, as well as fractures to her jaw, hyoid
bone in her neck, and eight ribs. She also showed signs of strangulation and had extensive bruising
on her face and neck. The pathologist concluded that blunt-force trauma caused Walker’s death.
¶5 Police arrived at the scene in response to an alarm from the home’s security system. Glass
from the basement window had been removed, apparently to frustrate the alarm system. Above
the window was a smudged palm print, which did not match defendant or anyone in the home. A
sliding glass door was slightly ajar, which the officers used to gain initial entry into the home. The
bathroom toilet in the basement had a wad of tissue paper in the bowl, above the water, and
defendant’s DNA was present on the paper. On June 30, 2004, at approximately 12:30 a.m.,
defendant was arrested while he attempted to steal a vehicle from a used car lot in Winthrop
Harbor.
¶6 The State’s evidence showed that defendant confessed to the murder during questioning by
investigators Charles Schletz and Kevin Harris of the Lake County Major Crimes Task Force.
Specifically, defendant told the investigators that he had arrived in the area a few days prior in
order to investigate an inheritance from his father that defendant believed he was cheated out of.
Defendant reported that he approached the house from the rear and removed a window to evade
the security system. He entered the lower level of the house to look for some papers. At the time
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2023 IL App (2d) 220123-Uhe entered the house, he wore black leather gloves and a black t-shirt with a Maltese cross on it.
He was carrying a duffel bag and tools. As defendant searched the basement, Walker came
downstairs and confronted him. Defendant put Walker in a chokehold until he believed she had
passed out, and he laid her on the floor. He resumed his search for the papers, but Walker sat up,
and defendant kicked her in the head, causing her to fall back to the floor. Walker sat back up
again, and defendant “lost it.” He choked her and stomped on her head, chest, and face until she
stopped moving.
¶7 Defendant then gathered his tools in his duffel bag and left the house, which caused the
alarm to go off. Defendant walked to Beulah Park, where he walked in circles to throw off any
bloodhounds that the police might use to track him. There, in a wooded area, he discarded the t-
shirt and gloves he had been wearing, and he discarded his duffel bag under some powerlines on
the side of a road. In the evening, defendant visited a friend to get a screwdriver and then
proceeded to a used car lot, where he attempted to steal a vehicle in order to leave town. He was
apprehended while he sat in one of the vehicles.
¶8 During his questioning, defendant offered to show the investigators where he discarded the
t-shirt and gloves. The detectives arranged for evidence technicians to meet them, and they drove
defendant to Beulah Park. Once there, defendant showed them the approximate area where he
discarded the items. The investigators transported defendant back to the Sheriff’s department
while the evidence technicians searched the area. As they drove, defendant pointed out the route
that he had walked from Walker’s house to Beulah Park. The evidence technicians eventually
recovered a black t-shirt with a Maltese cross on it and a pair of black leather gloves in the woods.
¶9 When they returned to the Sheriff’s department, defendant agreed to provide a handwritten
statement. The statement contained the same facts set out above. After defendant completed the
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2023 IL App (2d) 220123-Uwritten statement, the officers asked defendant if he would read the statement while being video
recorded, but he declined. Forensic testing showed that Walker’s blood was found on the cuff of
the pants defendant was wearing, and defendant’s DNA was found on the tissue that was recovered
from the toilet in Walker’s home.
¶ 10 Defendant testified at trial on his own behalf. He denied any involvement in the murder.
Specifically, he testified that at the time of the murder, he was “basically homeless” and was
sleeping at various locations in the Lake County area. On the morning of June 29, 2004, he had
just returned from Indiana, and he went to his mother’s house because he had nowhere else to go.
He approached the home from the rear alley and observed that a window and screen had been
removed. At the time, he was carrying a bag of clothes, which included a black t-shirt with a
Maltese cross. He climbed through the window and found Walker’s body on the floor. Defendant
tried to find Walker’s pulse, but she did not have one. Defendant testified that he heard noises
coming from upstairs, and he crept up a few stairs and “could see movement in [Walker’s] room.”
He became startled and then “bolted” out through the rear sliding glass door of the residence,
which caused the alarm to go off. He did not contact the authorities because he was afraid that he
would be blamed for the murder. Defendant testified that he then walked to Beulah Park, and
thereafter spent the day at various locations in Winthrop Harbor. He purchased food at a
convenience store and latex rubber gloves, which he intended to use to steal a vehicle later that
evening. He also visited a friend’s house to borrow a large screwdriver, “because it’s a great tool
for peeling the column on a GM vehicle.” Defendant walked to a used car lot, where he was
arrested while attempting to steal a truck.
¶ 11 Defendant testified that investigators Schletz and Harris initially asked him to write a
statement implicating defendant’s father-in-law in Walker’s murder. Defendant began to write a
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2023 IL App (2d) 220123-Ustatement against his father-in-law, but he changed his mind and “invoked [his] right to counsel.”
The officers responded that “that wasn’t going to happen,” and they “denied [defendant] access to
anyone.” The investigators threatened that if defendant did not implicate his father-in-law, they
would make it look like defendant had murdered Walker. Defendant reiterated his request for an
attorney, but the investigators again refused. The investigators took defendant to Beulah Park in
an unmarked police vehicle. When they arrived, Schletz opened the trunk of the vehicle and
proceeded into the woods. Defendant remained in the car and could not see what Schletz did in
the trunk. He also could not tell if Schletz carried anything as he entered the woods. Schletz
returned to the car about ten minutes later, and the investigators walked defendant into a cornfield,
stood with him there for three minutes, and then drove him back to the Sheriff’s department.
¶ 12 Defendant testified that, when they returned to the interrogation room, Schletz continued
to threaten him. Schletz told defendant that he was defendant’s only chance to avoid a death or
natural life sentence. According to defendant, he asked Schletz what he would have to do in order
to be allowed to make a phone call. Defendant testified that he really wanted to speak with [his]
wife, [Michelle Tully], who also [was] an attorney.” Schletz told him to “write the statement that
[Schletz] want[ed],” and defendant would be allowed to make a call. Defendant stated that he
“failed creative writing,” and so Schletz wrote out a statement and instructed defendant to copy it
verbatim. Defendant testified that he then copied the statement in his own handwriting onto an
official statement form, because that was the only way to get Schletz “out of [his] face.”
¶ 13 During his testimony, defendant then proceeded to deny the pertinent details of the written
statement. He acknowledged entering Walker’s home through the window and subsequently
traveling through Beulah Park, but he denied killing Walker. He testified that, as far as he knew,
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2023 IL App (2d) 220123-Uhis t-shirt was in his bag when he was arrested, but he agreed it was possible that he dropped it in
Beulah Park as he was searching for something in the bag. He denied ever owning leather gloves.
¶ 14 The jury found defendant guilty of first-degree murder of a person 60 years of age or older
by exceptionally brutal or heinous behavior indicative of wanton cruelty. The trial court denied
defendant’s motion for a new trial and sentenced him to natural life imprisonment. We affirmed
defendant’s conviction and sentence on direct appeal. Zoph I, 381 Ill. App. 3d 435.
¶ 15 Defendant filed the first version of his pro se postconviction petition on May 14, 2008.
Among other claims, defendant alleged that his statements to the detectives were taken in violation
of his fifth amendment right to counsel because his wife, Tully, was at the Sheriff’s department,
identified herself as defendant’s attorney, and was denied access to him prior to him making any
incriminating statements.
¶ 16 Between the filing of his first pro se petition on May 14, 2008, and February 4, 2015,
defendant filed 19 amended pro se postconviction petitions. In his February 4, 2015, supplemental
postconviction petition, defendant stated that he made “a good faith effort to exercise due
diligence” and “made several pro se supplemental amendments.” He further stated that he “is
skizaphrenic [sic] and *** was not being treated with psychiatric medicine for this serious mental
health condition and the pro-se amendments were made in a scatter-brained nature.” He thereafter
purported to raise 21 separate constitutional violations.
¶ 17 Relevant to the second issue defendant raises in this appeal, defendant’s April 29, 2010,
amendment included an affidavit from Tully, executed March 3, 2010, averring that on June 30,
2004, at approximately 12:30 p.m., she arrived at the Lake County Sheriff’s department and
“attempted to see [her] client, James E. Zoph,” but she was “denied access to him.” She further
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2023 IL App (2d) 220123-Uaverred that she “tried a few hours later and again was denied access.” She also called the Sheriff’s
department later that evening but was given no information.
¶ 18 On April 6, 2015, the trial court entered an order stating that, although defendant’s various
petitions were “sometimes repetitive, sometimes contradictory, sometimes confusing, sometimes
irrelevant[,] and sometimes facially inaccurate,” defendant nevertheless, “at times[,] stated the gist
of a constitutional claim.” The court therefore appointed counsel to represent defendant and
advanced the matter to the second stage of postconviction proceedings. Between 2017 and 2019,
postconviction counsel requested and received time to review the record and amend the petition,
while defendant wrote letters to the court complaining about her representation.
¶ 19 On February 4, 2019, defendant requested and was allowed to proceed pro se. Then, on
October 11, 2019, defendant filed a pro se amended postconviction petition. Pertinently, the
amended petition alleged that his trial counsel was ineffective for failing to discover that Tully had
been interviewed at the Sheriff’s department at 1:30 p.m. on June 30, 2004. Attached to the
petition was Tully’s March 3, 2010, affidavit and a police report.
¶ 20 On October 18, 2019, at defendant’s request, the court reappointed counsel to represent
defendant.
¶ 21 On May 4, 2020, the court received a letter from defendant that stated he had “late-breaking
information that will have a drastic impact on [his] constitutional claims, as well as the outcome
of this procedure.” The letter did not specify what the information was.
¶ 22 Defendant sent a second letter to the court, which the court received on June 24, 2020.
Among other topics, defendant stated in the letter that he advised postconviction counsel that his
“ ‘given’ name is actually ‘James Samuel Webb,’ and [he] was abducted in Australia in 1969 by
a ‘Margo Petterson’ and a ‘Claudia Petterson.’ ” Defendant continued that this information was
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2023 IL App (2d) 220123-U“materially relevant” because Margo Petterson testified at defendant’s trial “while using the
‘assumed identity’ of ‘Betty R. Zoph,’ ” defendant’s adoptive mother. He further stated that, to
the best of his knowledge, Margo Petterson had “a warrant (out of Australia) for murder and
kidnapping.” Defendant lamented that the public defenders who had represented him refused to
review or investigate this claim.
¶ 23 The court received a third letter from defendant on July 6, 2020. Defendant restated several
assertions from his second letter to the court. Specifically, he stated that his “given name is James
Samuel Webb and [he] was abducted out of Australia in 1969 by a ‘Margot Petterson’ and ***
was trafficked into the United States by Margo and Claudia Petterson.” 1 He continued that
“ ‘Margo Petterson’ is currently residing in Zion, IL and currently using the assumed identity of
Betty Zoph.” He stated that whenever he attempted to address this information with trial counsel,
his counsel “would immediately end the visit.” Defendant also asserted that counsel was “aware
that [defendant did] not have any grade school records” because he “was not allowed to attend
grade school because Margo Petterson (a.k.a. ‘Betty Zoph’) was not able to establish that
[defendant had] any ‘official’ birth records.” Defendant stated that he spoke with postconviction
counsel via telephone on June 29, 2020, and counsel informed him that she would make a “motion
for a ‘fitness exam’ on July 21, 2020.” Defendant continued in his letter that a fitness examination
was irrelevant to his constitutional claims and was a “stalling tactic” to protect the State’s case.
Defendant concluded his letter by stating that, if the court were to order a fitness examination, he
would comply with the order.
1
We observe that defendant spelled his alleged abductor’s name as both “Margot” and
“Margo” within this letter.
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2023 IL App (2d) 220123-U¶ 24 In court on July 22, 2020, the following colloquy transpired between postconviction
counsel and the court:
“MS. SNYDER [(POSTCONVICTION COUNSEL)]: Good morning. I had an
opportunity to speak to [defendant] telephonically since our last court. I know he has
caused to be filed some more documents to the Court. Based upon the documents I am
receiving from him and my conversations with him, I am asking the Court to order a fitness
evaluation which I know is certainly not the usual practice in a post-conviction.
However, based upon my most recent conversations with [defendant], I am asking
the Court to order the evaluation. I did file with the Court my reasons for asking the court
to find a bona fide doubt and order a fitness evaluation. I hope it made the court file. I am
not sure procedurally how the Court would like to proceed. Do you want to have him
evaluated here or evaluated in the Department of Corrections?
THE COURT: He can’t be brought back here at the moment. Based on your
observations and your communication, I will find a bona fide doubt. What I am going to
do is sign an order to have him evaluated in the Department. I am not quite sure what that
is going to look like, but we will at least give them an opportunity to initiate that process.
MS. SNYDER: He did advise me, Judge, that he was going to refuse to cooperate.
I think maybe a shorter date might make sense just to see if he is going to comply with the
request.”
The court then set the matter for status for August 18, 2020.
¶ 25 The order, filed on July 23, 2020, pertinently provided:
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2023 IL App (2d) 220123-U“THIS MATTER COMING BEFORE THE COURT, present before the
Court is the State, counsel for defendant and the defendant, the Court making the
following findings of fact:
The Petitioner has filed with the court and communicated to counsel that he
is not, in fact, James Zoph. That he was abducted from Australia as a child and
brought to the United States. That his abductor is currently posing as Betty Zoph.
He makes demands that this matter be investigated as a precursor to any further
dealings on his post-conviction petition. In prior post-conviction filings by the
Petitioner, he indicates that he was diagnosed with manic-depressive disorder, has
been psychiatrically hospitalized, has auditory hallucinations and suffers from
PTSD.
Counsel attempted to speak to Mr. Zoph, who insists he is actually James
Webb, but he refused to speak to any issues other than his abduction and asking
counsel to investigate markings on [sic] scars on Betty Zoph’s body to establish
that she abducted him. He would not discuss his post-conviction petition.
Based upon this, the Court finds there is a bona fide doubt as to the
defendant’s fitness to proceed with his postconviction petition.
IT IS HEREBY ordered that a doctor designated by the 19th Judicial Circuit
shall conduct a fitness evaluation pursuant to 725 ILCS 5/104-13 for purposes of
determining the defendant’s fitness to proceed with his post-conviction petition.”
¶ 26 Dr. Anthony P. Latham evaluated defendant on August 6, 2020, via the Zoom
videoconferencing application and filed a fitness report with the court on August 17, 2020. Dr.
Latham noted that defendant “has been diagnosed with serious and persistent psychiatric disorder
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2023 IL App (2d) 220123-Ufor nearly two decades per reviewed records,” and his “diagnostic impressions *** include bipolar
disorder, schizoaffective disorder, and delusional disorder.” Dr. Latham stated that, “[c]onsistent
with past reported delusional thought, [defendant] asserted he was abducted in childhood by the
Petterson women. He also reported that Margo Petterson assumed the identity of Ms. Betty Zoph
and provided perjured testimony at his murder trial in which he was found guilty.” Dr. Latham
noted that “[d]elusional thought associated with delusional disorder is often specific or
encapsulated to discrete experiences.”
¶ 27 In the report, Dr. Latham stated his belief that defendant had a factual understanding of the
legal proceedings, including the role of the judge, the State, and postconviction counsel. He stated
that defendant’s insistence that “events or processes are in accordance with his desires” may impact
his ability to work cooperatively with others but, as of the date of the examination, defendant
“appear[ed] to present capacity to assist defense counsel in the preparation of a postconviction
petition.” Dr. Latham ultimately recommended that the trial court find defendant fit.
¶ 28 At the next status hearing on August 18, 2020, the parties appeared in court to discuss the
results of the fitness examination. The following is the entirety of the court proceedings that day
regarding this case:
“THE CLERK: This is People versus Zoph, 04 CF 2440.
MR. NEWMAN [(ASSISTANT STATE’S ATTORNEY)]: People by Assistant
State’s Attorney Jim Newman. The Defendant is not present. He is in the custody of the
Illinois Illinois [sic] Department of Corrections. Jennifer Snyder is present on his behalf.
It is up today for status, Judge. Ms. Snyder was kind enough to send the fitness evaluation
that was recently completed. I just was reading it this morning[,] so that is what it is up for
today.
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2023 IL App (2d) 220123-UMS. SNYDER: Good morning.
THE COURT: I’m sorry. I haven’t seen it yet.
MS. SNYDER: And I received a file copy and an e-mail from Dr. Latham so I think
there is a copy that may be making it to the Court, but I can certainly forward mine if you
like.
THE COURT: What was Dr. Latham’s conclusion?
MS. SNYDER: Fit.
THE COURT: Okay. So what would you like to do, Ms. Snyder?
MS. SNYDER: Judge, if I could continue it to October 20th, if that is an okay date
with the court. I’m hoping that Mr. Zoph and I can move forward.
THE COURT: Motion defendant 10-20.
MS. SNYDER: Thank you, Judge. Have a good day.
THE COURT: You too.
MR. NEWMAN: Thank you.”
¶ 29 On June 9, 2021, postconviction counsel filed a “Supplemental Petition for Post-
Conviction Relief.” Counsel included a brief procedural history of the postconviction proceedings
as well as raised two claims, namely that: (1) trial counsel was ineffective for failing to file a
motion directing the State to run certain fingerprint evidence through the Automated Fingerprint
Identification System (AFIS); and (2) appellate counsel was ineffective for failing to speak with
defendant regarding his claims of error. On October 26, 2021, the State moved to dismiss the
petition.
¶ 30 Before that motion was heard, however, defendant sent the trial court a letter on December
13, 2021, requesting that his appointed counsel be discharged because the supplemental petition
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2023 IL App (2d) 220123-Uthat counsel filed on defendant’s behalf “grossly understat[ed]” his constitutional claims.
Defendant also stated in the letter his intention to file another pro se supplemental petition. On
January 6, 2022, the trial court granted defendant’s request to discharge his counsel and allowed
defendant to represent himself pro se.
¶ 31 On January 28, 2022, defendant filed what would be his final amended pro se
postconviction petition. He raised two claims, namely that: (1) trial counsel was ineffective for
failing to discover and introduce evidence at the hearing on the motion to suppress confession
showing defendant invoked his right to counsel during police questioning, and that Tully was at
the Sheriff’s department and requested to see defendant as his attorney before defendant made any
incriminating statements; and (2) trial counsel was ineffective for failing to request further forensic
testing of certain evidence that was recovered at the crime scene. Defendant attached several
exhibits to his petition, including a copy of Tully’s March 3, 2010, affidavit, as well as an affidavit
executed by defendant on January 3, 2022. In that affidavit, defendant averred that he entered
Walker’s house at the time of the murder and observed Nick Vitruls and Mark Miller attacking
Walker, but he then “blacked out” for two to three minutes. He continued in the affidavit that,
after he regained consciousness, he observed Walker on the floor. Defendant stated that his pants
leg accidentally brushed Walker’s right ear, which was bleeding, as he picked up her broken
eyeglasses from the floor. He further averred that, during his police interrogation on June 30,
2004, he requested an attorney at 7:00 a.m., 9:00 a.m., 11:00 a.m., and 12:00 p.m., but the requests
were denied. Defendant further stated in his affidavit that he did not make any incriminating
statements until after 1:00 p.m., which was when Schletz coerced him into copying the statement
that Schletz had prepared.
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2023 IL App (2d) 220123-U¶ 32 At a hearing on February 2, 2022, defendant clarified that he was proceeding on his January
28, 2022, postconviction petition, and no other.
¶ 33 On February 9, 2022, the State filed a motion to dismiss defendant’s January 28, 2022, pro
se supplemental petition for postconviction relief. Concerning the first issue raised, the State
argued that, even if Tully’s affidavit were true, defendant had already waived his Miranda rights,
given a full confession to the police, and accompanied the police to Beulah Park before 12:30 p.m.
on June 30, 2004, which is when Tully alleges in her affidavit she arrived at the Sheriff’s
department. Additionally, the State argued that Tully’s affidavit was refuted by a police report
that defendant attached to his October 11, 2019, petition, which indicated Tully was interviewed
at the Sheriff’s department at 1:45 p.m. on June 30, 2004. Concerning defendant’s second claim,
the State argued that any further forensic analysis was entirely predicated on his claim, made many
years after he testified at trial, that he either saw two assailants attacking Walker, or that he saw
the assailants running from the crime scene. It stressed that defendant’s theory contradicted his
trial testimony and his postconviction petitions that he filed prior to 2015.
¶ 34 On February 17, 2022, after a hearing, the trial court granted the State’s motion to dismiss
defendant’s first claim. Specifically, it found that even if Tully was at the Sheriff’s department at
12:30 p.m. on June 30, 2004, the defendant had already made the “most damaging” part of his
statement, in that he had already reenacted the crime and led the investigators to Beulah Park,
where evidence of the murder was found. The court continued that, at best, Tully arrived at the
Sheriff’s department “near the end” of when defendant finished his written statement, and the
“police are not required to stop everything they’re doing because somebody who identifies
themselves as an attorney is there.” The court also found it significant that Tully did not prepare
her affidavit until 2010, despite her availability during defendant’s trial.
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2023 IL App (2d) 220123-U¶ 35 The trial court denied the State’s motion to dismiss the defendant’s second claim, and that
claim proceeded to a third-stage evidentiary hearing on March 2, 2022. On April 11, 2022, the
trial court entered an order denying defendant’s January 28, 2022, postconviction petition.
¶ 36 Defendant timely filed a notice of appeal.
¶ 37 II. ANALYSIS
¶ 38 The Act provides a mechanism by which a person under a criminal sentence may challenge
his or her conviction as being the result of a substantial denial of his or her rights under the federal
or state constitution. People v. Mendez, 402 Ill. App. 3d 95, 98 (2010). A proceeding under the
Act is not an appeal, but rather, is a collateral attack on the prior judgment. People v. Clark, 2023
IL 127273, ¶ 38. The Act allows “inquiry into constitutional issues relating to the conviction or
sentence that were not, and could not have been, determined on direct appeal.” Id. (quoting People
v. Barrow, 195 Ill. 2d 506, 519 (2001)). Such a proceeding is commenced by filing a petition
which clearly sets forth how the defendant’s constitutional rights were violated. People v. Hodges,
224 Ill. 2d 1, 9 (2009). The Act contemplates the filing of just one petition (People v. Edwards,
2012 IL 111711, ¶ 21), and any claim not raised in the original or amended postconviction petition
is forfeited (725 ILCS 5/122-3 (West 2020)). Counsel may be appointed to indigent petitioners in
postconviction proceedings if the original petition is determined to be nonfrivolous. Id. § 122-4;
People v. Owens, 139 Ill. 2d 351, 358 (1990). The defendant bears the burden of making a
substantial showing of a constitutional violation (People v. Shaw, 2019 IL App (1st) 152994, ¶ 19)
and is entitled to an evidentiary hearing on the petition only if he or she meets this burden (People
v. Shum, 207 Ill. 2d 47, 57 (2003)).
¶ 39 Defendant contends that, after expressly finding a bona fide doubt as to his fitness for
postconviction proceedings, the trial court erred by failing to hold a fitness hearing and
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2023 IL App (2d) 220123-Udetermining whether or not defendant was fit. In defendant’s view, because the trial court’s bona
fide doubt was never resolved, the orders dismissing and denying his postconviction petition
should be reversed and the cause remanded for a contemporaneous fitness hearing and new
postconviction proceedings.
¶ 40 In response, the State disputes that the trial court found a bona fide doubt as to defendant’s
fitness. It argues instead that the court merely granted defendant a fitness examination, which the
State emphasizes concluded defendant was fit. Therefore, the State contends that, in the absence
of a finding of bona fide doubt, defendant had no right to a fitness hearing. Alternatively, the State
argues that, even if the court erred, defendant invited the error, and the error was harmless beyond
a reasonable doubt.
¶ 41 Defendant concedes that he failed to preserve the issue because he neither expressly
demanded that the trial court rule on his fitness before proceeding further, nor did he raise the issue
in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for review,
a defendant must object at trial and raise the issue in a posttrial motion). Forfeiture rules “exist to
encourage defendants to raise issues in the trial court, thereby ensuring both that the trial court has
an opportunity to correct any errors prior to appeal and that the defendant does not obtain a reversal
through his or her own inaction.” People v. Denson, 2014 IL 116231, ¶ 13. However, forfeiture
is a limitation on the parties rather than the court, and a reviewing court may consider a forfeited
argument. People v. Sophanavong, 2020 IL 124337, ¶ 21. Indeed, we may overlook forfeiture
and address the merits when necessary to maintain a sound and uniform body of precedent or
achieve a just result. Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App (2d) 160811, ¶ 22.
We choose to overlook defendant’s forfeiture because the issue concerns defendant’s fitness to
collaterally attack his criminal conviction under the Act. See also People v. Johnson, 191 Ill. 2d
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2023 IL App (2d) 220123-U257, 274-75 (2000) (declining to find waiver where the parties and the court proceeded under an
erroneous view of the law concerning which party bore the burden of proving defendant fit for
postconviction proceedings after a bona fide doubt had been raised).
¶ 42 Before turning to the merits, however, it is necessary to clarify the applicable law. The
parties argue that this appeal implicates sections 104-11(a) and (b) of the Code of Criminal
Procedure (Code). 725 ILCS 5/104-11(a), (b) (West 2020). Pursuant to section 104-11(a), the
issue of a defendant’s “fitness for trial, to plead, or to be sentenced may be raised by the defense,
the State or the Court at any appropriate time before a plea is entered or before, during, or after
trial.” Id. § 104-11(a). Under section 104-11(b), the court can appoint an expert to examine the
defendant to assist it in determining whether a bona fide doubt of fitness exists. Id. § 104-11(b).
“[T]he primary distinction between sections 104-11(a) and 104-11(b) is that section 104-11(a)
ensures that a defendant’s due process rights are not violated when the trial court has already found
bona fide doubt to have been raised, while section 104-11(b) aids the trial court in deciding whether
there is a bona fide doubt of fitness.” People v. Hanson, 212 Ill. 2d 212, 218 (2004). Once facts
that raise a bona fide doubt are presented, the trial court must hold a fitness hearing. People v.
Hill, 308 Ill. App. 3d 691, 701 (1999).
¶ 43 Contrary to the parties’ arguments, these portions of the Code are not directly implicated
in the instant matter. Defendant is not raising an issue regarding his fitness to stand trial, to plead,
or to be sentenced. Rather, he raises the issue of his fitness for postconviction proceedings. See
Owens, 139 Ill. 2d at 358 (“[n]othing in [section 104] requires or permits a hearing to determine
whether a petitioner is fit to assist counsel in post-conviction proceedings”). Even though sections
104-11(a) and (b) are not directly applicable, that does not mean the issue of fitness is irrelevant
in postconviction proceedings. A trial court must still consider the issue of a defendant’s
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2023 IL App (2d) 220123-Ucompetency for postconviction proceedings. Owens, 139 Ill. 2d 351. As will be discussed in
greater detail below, the context in which the issue of fitness is raised matters, because a
defendant’s required level of competency during postconviction proceedings is less than that
required at trial. Johnson, 191 Ill. 2d at 269; Owens, 139 Ill. 2d at 363. A defendant is presumed
fit to stand trial, to plead, and to be sentenced. Johnson, 191 Ill. 2d at 269 (citing 725 ILCS 5/104-
10 (West 1998)). “A defendant is unfit to stand trial when, ‘because of his mental or physical
condition, he is unable to understand the nature and purpose of the proceedings against him or to
assist in his defense.’ ” Id. (quoting 725 ILCS 5/104-10 (West 1998)). In postconviction
proceedings, a defendant is likewise presumed fit. Owens, 139 Ill. 2d at 362. A defendant is
considered unfit for postconviction proceedings when, because of a mental condition, he cannot
communicate his allegations of constitutional deprivations to counsel, thus frustrating his
entitlement, under the [Post-Conviction Hearing] Act, to a reasonable level of assistance.”
Johnson, 191 Ill. 2d at 269.
¶ 44 When a bona fide doubt of a defendant’s fitness to proceed with postconviction
proceedings is raised, the court may order a psychological evaluation of the defendant and consider
the matter at an evidentiary hearing. Owens, 139 Ill. 2d at 365. After making such a finding, the
court must determine whether the defendant is competent to consult with appointed counsel. Id.Whether a bona fide doubt as to a defendant’s fitness to proceed with postconviction proceedings
exists is within the discretion of the trial court, because it is in the best position to observe a
defendant’s conduct. Johnson, 191 Ill. 2d at 269.
¶ 45 Having clarified the appropriate framework in which to analyze defendant’s primary claim
of error, we address the threshold dispute between the parties, namely, whether the trial court found
that there was a bona fide doubt of defendant’s fitness for postconviction proceedings. In this case,
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2023 IL App (2d) 220123-Uthe record is abundantly clear that it did. As noted, while defendant was represented by appointed
postconviction counsel, he sent a series of letters to the court that, if sincere, arguably called into
question his ability to communicate his allegations of constitutional depravation to his appointed
counsel. On May 4, 2020, the court received a letter from defendant stating that he had “late-
breaking information that will have a drastic impact on [his] constitutional claims, as well as the
outcome of this procedure.” On June 24, 2020, the court received a letter from defendant stating
that his real name was actually James Samuel Webb and that he was abducted in Australia in 1969
by Margo and Claudia Petterson. He continued that this information was “materially relevant”
because Margo Petterson testified at his trial using the assumed identity of Betty Zoph, defendant’s
adoptive mother. Defendant further stated that there was a warrant issued in Australia for Margo
Petterson’s arrest related to charges for kidnapping and murder. Defendant also voiced his
frustration with his appointed counsel for failing to investigate the abduction.
¶ 46 The court received a third letter from defendant on July 6, 2020. There, defendant
reiterated that his true name was James Samuel Webb and that he was “abducted out of Australia
in 1969 by a ‘Margot Petterson’ and *** was trafficked into the United States by Margo and
Claudia Petterson,” as well as that Margo Petterson was “using the assumed identity of Betty
Zoph.” Defendant lamented that whenever he attempted to address the foregoing information, his
counsel would end the visit with him. Defendant also noted that he spoke with his postconviction
counsel via telephone on June 29, 2020, and she told him that she would file a motion seeking a
fitness examination. Defendant expressed his view that a fitness examination was irrelevant to his
constitutional claims and was a “stalling tactic” to protect the State’s case.
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2023 IL App (2d) 220123-U¶ 47 Before the court on July 22, 2020, postconviction counsel requested that the court both find
a bona fide doubt as to defendant’s fitness and order a fitness examination.2 Counsel explained
that the basis for her requests were the conversations she had with defendant and documents he
had provided to her, as well as the letters that defendant sent to the court. The trial judge then
issued his ruling, stating that, “[b]ased on [postconviction counsel’s] observations and your
communication, I will find a bona fide doubt,” and ordered a fitness examination. The court
thereafter issued a written order detailing its reasons for finding a bona fide doubt and ordering a
fitness examination. Pertinently, the order stated:
“The Petitioner has filed with the court and communicated to counsel that he is not,
in fact, James Zoph. That he was abducted from Australia as a child and brought to the
United States. That his abductor is currently posing as Betty Zoph. He makes demands
that this matter be investigated as a precursor to any further dealings on his post-conviction
petition. In prior post-conviction filings by the Petitioner, he indicates that he has been
diagnosed with manic-depressive disorder, has been psychiatrically hospitalized, has
auditory hallucinations and suffers from PTSD.
Counsel attempted to speak to Mr. Zoph, who insists he is actually James Webb,
but he refused to speak to any issues other than his abduction and asking counsel to
investigate markings on [sic] scars on Betty Zoph’s body to establish that she abducted
him. He would not discuss his post-conviction petition.
2
The written motion does not appear in the record on appeal. As reflected in the report of
proceedings, postconviction counsel described the motion as “asking the Court to find a bona fide
doubt and order a fitness evaluation.”
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2023 IL App (2d) 220123-UBased on this, the court finds there is a bona fide doubt as to the defendant’s fitness
to proceed with his post-conviction petition.”
The order further provided that, pursuant to section 104-13 of the Code, a doctor designated by the
Lake County circuit court would conduct a fitness examination “for the purpose of determining
the defendant’s fitness to proceed with his post-conviction petition.”
¶ 48 The State describes the trial court’s statements and written order as “inartful,” and argues
that the court merely ordered a fitness examination to assist it in evaluating whether there was a
bona fide doubt as to defendant’s fitness in the first place—and not that it actually found a bona
fide doubt. The State asserts that defendant confuses the trial court’s granting of a fitness
examination “as an implicit signal that the trial court itself found a bona fide doubt regarding
defendant’s fitness.” This argument is untenable. In essence, the State requests that we construe
the trial court’s oral pronouncement that it “find[s] a bona fide doubt” and it’s written finding that
“there is a bona fide doubt as to the defendant’s fitness to proceed with his post-conviction
petition” to mean that it did not find a bona fide doubt. Both the court’s oral pronouncement of its
ruling and the court’s written order memorializing its ruling were clear and unambiguous that it
did find a bona fide doubt, and it provided a detailed explanation in support of its ruling. The court
also noted defendant’s refusal to discuss his postconviction petition with his counsel until the
alleged abduction was investigated, which arguably impeded counsel’s ability to consult with
defendant to ascertain his claims of constitutional deprivations.
¶ 49 Almost as if to remove any doubt as to its intent, the trial court further detailed in its written
order that it was ordering a fitness examination “for the purpose of determining the defendant’s
fitness to proceed with his post-conviction petition.” If, as the State argues, the court meant only
to appoint an expert to help it determine whether a bona fide doubt existed, it would not have made
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2023 IL App (2d) 220123-Uoral and written findings of bona fide doubt and then specified in its written order that the purpose
of the examination was to determine defendant’s fitness to proceed in the postconviction process.
If the court had appointed a qualified expert to examine defendant only to assist it in determining
whether there was a bona fide doubt, it would have so stated. The State’s argument that the court
ordered the examination “to assist in determining whether a bona fide doubt as to fitness actually
existed,” is directly rebutted by the record.
¶ 50 Neither case relied on by the State alters our determination on this issue. At the outset, we
observe that the cases relied on by the State arise in a slightly different context, as they concern
the issue of a defendant’s fitness to stand trial as opposed to fitness to participate in postconviction
proceedings. See 725 ILCS 5/104-11(a), (b) (West 2020). Because the standards of fitness are
context dependent, the cases are distinguishable from the instant matter on that ground alone.
Further, as persuasive authority, the cases are inapposite.
¶ 51 The first case is Hanson, 212 Ill. 2d 212, which the State asserts is dispositive of
defendant’s argument. In Hanson, defense counsel requested that the defendant be examined by
an expert to determine his fitness for trial and his mental condition at the time of the offense. Id.
at 215. The motion also noted counsel’s belief that a bona fide doubt existed as to the defendant’s
trial fitness. Id. The trial court granted the motion. Id. After an examination, the expert deemed
the defendant fit, and counsel withdrew the motion. The appellate court found plain error and
concluded that the grant of a fitness hearing implicitly demonstrated the trial judge’s bona fide
doubt regarding defendant’s fitness. Id. On review, the Illinois Supreme Court was thus tasked
with deciding whether the grant of a defendant’s request for a fitness examination implicitly
signaled that the trial court found a bona fide doubt so as to trigger the right to a fitness hearing.
Id. at 216. The court answered this question in the negative and held that the “mere act of granting
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2023 IL App (2d) 220123-Ua defendant’s motion for a fitness examination cannot, by itself, be construed as a definitive
showing that the trial court found a bona fide doubt of the defendant’s fitness.” Id. at 222. Hanson
is readily distinguishable. Here, defendant makes no claim that the court implicitly found a bona
fide doubt as to his fitness. This is so because the court expressly made a finding of bona fide
doubt. Accordingly, there is no need to infer whether the court believed there was a bona fide
doubt concerning defendant’s fitness. This scenario stands in stark contrast to that in Hanson,
where the trial court granted counsel’s motion for a fitness examination without making an express
finding concerning whether a bona fide doubt existed. Id. at 215. The State’s reliance on Hanson
is therefore misplaced.
¶ 52 The State also relies on People v. Edwards, 2021 IL App (3d) 130190-C. There, the trial
court signed an order prepared by defense counsel stating that it found a bona fide doubt as to the
defendant’s fitness for trial and ordering a fitness examination. Id. ¶¶ 10-11. A doctor examined
the defendant and concluded he was fit (id. ¶ 12), and the defendant was ultimately convicted (id.
¶ 45). On appeal, the defendant argued that the court erred in failing to hold a fitness hearing
before proceeding to trial, which he asserted was required following the court’s finding of a bona
fide doubt. Id. ¶ 63. The appellate court found no error, reasoning that the trial judge merely
ordered a fitness evaluation to determine whether a bona fide doubt existed in the first place, the
judge’s signature on the order notwithstanding. ¶ 72. In addressing the “bona fide doubt” language
in the order, the court stated that the written order was “inartful” and observed that it was prepared
by defense counsel, and that the trial court’s “oral comments and actions” demonstrated that it had
merely ordered a fitness evaluation to assist it in determining whether a bona fide doubt actually
existed. Id. ¶ 72. The record also lacked any indication that “the trial court or the State implicitly
agreed with defense counsel, or raised on their own a bona fide doubt of defendant’s fitness.” Id.- 24 -
2023 IL App (2d) 220123-U¶ 71. Edwards is distinguishable. In Edwards, the appellate court was plainly concerned that the
written order containing the language “bona fide doubt” did not reflect the trial court’s true ruling,
in part, because the order was drafted by the defendant. That concern is not implicated here
because the court prepared the order itself. Further, unlike Edwards, the court here made an oral
pronouncement that it found a bona fide doubt as to defendant’s fitness to proceed, and that finding
is in harmony with the court’s written order.
¶ 53 Having determined that the trial court found a bona fide doubt as to defendant’s fitness for
postconviction proceedings, the question becomes whether the court erred in allowing the
proceedings to continue without determining defendant’s postconviction fitness. On this question,
the Illinois Supreme Court’s decision in Owens, 139 Ill. 2d 351, which established postconviction
petitioners’ right to fitness hearings, is instructive.
¶ 54 In Owens, the defendant appealed from the denial of his postconviction petition and argued
that the trial court erred by failing to hold a fitness hearing to determine whether he could
meaningfully communicate with and assist his appointed postconviction counsel. Id. at 357.
Counsel had sought the appointment of an expert under section 104-13 of the Code, arguing that
there was a bona fide doubt as to the defendant’s fitness because, when counsel attempted to
interview him, the defendant repeatedly interjected irrelevant, frivolous, and unintelligible matters
into their conversation. Id. at 356-57, 361. The trial court denied the motion on the basis that the
Act did not require a fitness hearing. Id. at 361. Thereafter, the court denied the postconviction
petition following an evidentiary hearing. Id. at 357.
¶ 55 Our supreme court vacated the judgment dismissing the petition and remanded the matter
for the trial court to determine whether the facts brought to its attention, either by counsel or the
court’s own observations of the defendant, raised a bona fide doubt as to the defendant’s mental
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2023 IL App (2d) 220123-Uability to communicate with his postconviction counsel. Id. at 362. The court stated that, although
neither the Act nor section 104-13 of the Code conferred a right to a fitness hearing in
postconviction proceedings, trial courts are nevertheless obligated to consider whether a
postconviction petitioner is mentally competent to consult with counsel. Id. at 367. In reaching
this holding, the court explained that section 122-4 of the Act, which governs the appointment of
postconviction counsel, and Illinois Supreme Court Rule 651 (eff. July 1, 2017) work in
conjunction “to ensure that post-conviction petitioners in this State receive a reasonable level of
assistance by counsel in post-conviction proceedings.” Id. at 359. Neither section 122-4 of the
Act nor Rule 651 are “satisfied where appointed counsel is unable to consult with or communicate
with a postconviction petitioner because the petitioner suffers from a mental defect.” Id. at 361-
62. Indeed, if the petitioner is incapable of rationally communicating with his or her appointed
counsel, “the appointment of an attorney is but an empty formality.” Id. at 360.
¶ 56 The Owens court further stated that, where a trial court finds a bona fide doubt as to a
defendant’s mental ability to communicate with counsel during postconviction proceedings, “the
court may order that a psychological evaluation be conducted and consider the matter in an
evidentiary hearing.” Id. at 365. The trial court must then “determine whether a petitioner is
competent to consult with his appointed counsel.” Id. In other words, even though a fitness
hearing is not expressly authorized in postconviction proceedings, section 122-4 of the Act and
Rule 651, in tandem, require one when the court finds “a bona fide doubt as to the petitioner’s
mental ability to communicate with his post-conviction counsel.” Id. at 362.
¶ 57 On the issue of a defendant’s ultimate fitness, Owens emphasized that the context in which
the issue arises is important, because “a greater degree of incompetence must be shown to
demonstrate that a petitioner is not competent to participate in post-conviction proceedings than is
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2023 IL App (2d) 220123-Urequired to show that a defendant is not competent to stand trial.” Id. at 363. This is so because
of the “disparate nature of the two proceedings.” Id. During a defendant’s criminal trial, he “is
confronted with the prosecutorial forces of organized society.” Id. Conversely, postconviction
proceedings occur after guilt has been determined, are civil in nature, and reflect a collateral attack
on the conviction. Id. Indeed, “[a] post-conviction petitioner does not make his claim of
incompetency against a clean slate.” Id. at 362. The court went on to explain that a defendant is
unfit for trial if he is “unable to understand the nature and purpose of the proceedings against him
or to assist in his defense.” Id. at 357. A postconviction petitioner is unfit, however, “only if he
demonstrates that he, because of a mental condition, is unable to communicate with his post-
conviction counsel in the manner contemplated by section 122-4 of the Code *** and *** Rule
651.” Id. at 363. Further, Owens stressed that the right to counsel at trial is guaranteed by the
sixth amendment to the constitution, whereas the right to counsel in postconviction proceedings is
a matter of legislative grace. Id. at 364. “Counsel are appointed to represent post-conviction
petitioners, not to protect them from the prosecutorial forces of the State, but to shape their
complaints into the proper legal form and to present those complaints to the court.” Id. at 364-65.
Appointed counsel in postconviction proceedings therefore are required to provide only a
reasonable level of assistance. Id. at 364.
¶ 58 In Johnson, 191 Ill. 2d 257, our supreme court revisited the issue of a defendant’s fitness
to proceed with postconviction proceedings and held that, in the postconviction context, just as at
trial, a defendant has the initial burden of raising a bona fide doubt concerning his fitness. Once a
bona fide doubt is created, however, the burden shifts to the State to prove the defendant is fit. Id.
at 269; People v. Pitsonbarger, 205 Ill. 2d 444, 474 (2002).
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2023 IL App (2d) 220123-U¶ 59 In the instant matter, defendant was presumed fit at the outset of the postconviction
proceedings. See Owens, 139 Ill. 2d at 362; See also People v. De La Paz, 204 Ill. 2d 426, 440
(2003). Again, “a defendant is considered unfit to proceed with the post-conviction process when,
because of a mental condition, he cannot communicate his allegations of constitutional
deprivations to counsel, thus frustrating his entitlement, under the Act, to a reasonable level of
assistance.” Johnson, 191 Ill. 2d at 269. If a defendant is competent to communicate his
allegations of constitutional deprivations to his appointed counsel, the defendant is competent to
participate in the postconviction process. Id. at 270.
¶ 60 As discussed above, the trial court expressly found a bona fide doubt as to defendant’s
fitness because defendant insisted that he was not James Zoph, but rather, an individual named
James Samuel Webb, who was abducted as a child in Australia and trafficked to the United States
by Margo Petterson, who later assumed the identity of Betty Zoph. The court emphasized in its
written order that defendant “refused to speak to [his appointed postconviction counsel regarding]
any issues other than his abduction and asking counsel to investigate markings on [sic] scars on
Betty Zoph’s body to establish that she abducted him. He would not discuss his post-conviction
petition.” Once the court found a bona fide doubt as to defendant’s fitness to proceed with
postconviction proceedings, the presumption of fitness was rebutted, and the burden shifted to the
State to prove him fit. See Johnson, 191 Ill. 2d at 271. Although the trial court ordered a fitness
examination as contemplated in Owens, it thereafter failed to hold a fitness hearing, make a judicial
determination as to defendant’s ultimate fitness for postconviction proceedings, or even read the
fitness examination report. Concerning the State, it made no attempt to satisfy its burden of proof
that defendant was fit following the finding of bona fide doubt, as contemplated in Johnson. Thus,
the proceedings that occurred after the court expressly found a bona fide doubt did not comport
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2023 IL App (2d) 220123-Uwith Owens and Johnson. Because the court found a bona fide doubt, it was obligated to determine
whether defendant was competent to consult with his appointed counsel and communicate his
allegations of constitutional deprivation. Owens, 139 Ill. 2d at 365. The court failed to do so and,
as a result, the record reflects the court’s still-unresolved bona fide doubt regarding defendant’s
fitness.
¶ 61 Although it is not entirely clear from the record, it appears that the trial court either
accepted what was, in essence, a stipulation that defendant was fit, or it allowed postconviction
counsel to waive the issue. On that basis, the State argues that, even if the trial court erred in
failing to rule on defendant’s ultimate fitness, postconviction counsel invited the error. Under the
invited error doctrine, a party may not request to proceed in one manner and then argue on appeal
that the requested action was error. In re Detention of Swope, 213 Ill. 2d 210, 217 (2004). “The
rationale for the rule is that it would be manifestly unfair to grant a party relief based on error
introduced into the proceedings by that party.” Gaffney v. Board of Trustees of Orland Fire
Protection District, 2012 IL 110012, ¶ 57.
¶ 62 In this case, at the status hearing following defendant’s fitness examination, postconviction
counsel informed the court that Dr. Latham was of the opinion that defendant was fit. The court
then inquired as to how postconviction counsel wished to proceed, and she responded by
requesting a continuance to work on an amended postconviction petition and “move forward.”
The State emphasizes that postconviction counsel thereafter filed an amended petition and a
certificate pursuant to Rule 651(c), and it argues that these acts “signaled to the court that
[postconviction counsel] wanted to continue with the postconviction proceedings *** rather than
wait for the court to conduct a fitness hearing.”
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2023 IL App (2d) 220123-U¶ 63 The State’s argument is not well taken because, in the face of the trial court’s unresolved
bona fide doubt of defendant’s fitness, neither a de facto stipulation that defendant was fit, nor a
purported waiver, was sufficient to establish defendant’s fitness in the absence of an independent
determination by the trial court. In reaching this determination, we are guided by cases involving
the similar issue of fitness to stand trial.
¶ 64 In People v. Contorno, 322 Ill. App. 3d 177 (2001), the trial court found a bona fide doubt
as to the defendant’s fitness to stand trial and appointed an expert to evaluate him. Id. at 178. At
a hearing following the examination, the parties stipulated that the expert concluded the defendant
was fit. Id. The court then stated that it would “show pursuant to stipulation then [that the expert]
finds the defendant fit to stand trial.” Id. The matter of defendant’s fitness was not addressed
again, and the matter was not raised in a posttrial motion. On appeal, we concluded that the fitness
hearing was deficient because the court merely accepted the expert’s ultimate conclusion, and the
record lacked any indication that the trial court conducted its own analysis of the expert’s opinion
or exercised any discretion in resolving the issue. Id. at 179. We made clear that the court “must
analyze and evaluate the basis for an expert’s opinion instead of merely relying upon the expert’s
ultimate opinion.” Id. In other words, the ultimate issue of a defendant’s fitness is for the trial
court to decide, and not an appointed expert.
¶ 65 To be sure, Contorno involved a consideration of fitness to stand trial, which is an issue of
constitutional dimension. See Contorno, 322 Ill. App. 3d at 179. Here, we confront the issue of
fitness for postconviction proceedings under the Act, which provides a statutory remedy to
criminal defendants who claim that substantial violations of their constitutional rights occurred at
trial. See Edwards, 2012 IL 111711, ¶ 21. Nevertheless, the rationale applies with equal force
here. Despite the differing context in which the instant matter arises, we believe that the trial court,
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2023 IL App (2d) 220123-Uas in Contorno, was obligated to exercise its discretion and resolve its bona fide doubt rather than
blindly accept a stipulation that defendant was fit or allow defendant to waive the issue.
¶ 66 The purpose of the Act is to provide a statutory mechanism for incarcerated defendants to
assert that they have been unconstitutionally deprived of their liberty. The reasonable assistance
of counsel “necessarily follows from the nature and purpose of the Act.” People v. Johnson, 2018
IL 122227, ¶ 17. The Act contemplates the filing of only one postconviction petition. Edwards,
2012 IL 111711, ¶ 21. Once a defendant is provided counsel for postconviction proceedings, that
process relies heavily on the defendant being capable of communicating his or her claims to
counsel. If, in this case, defendant was truly not competent to communicate his allegations of
constitutional deprivation to his counsel, then the trial court’s passive acceptance of a fitness
stipulation ran a serious risk of depriving him of both his statutory right to the reasonable assistance
of counsel and his only opportunity to seek collateral relief under the Act. See Johnson, 191 Ill.
2d at 272 (“[I]t would be a ‘strange rule,’ indeed to impose upon a defendant the burden of proving
unfitness to proceed with a post-conviction petition where the very disability the defendant seeks
to prove may very well render the defendant incapable of sustaining the burden of proof”). See
also Owens, 139 Ill. 2d at 359-60 (the Act cannot serve its purpose unless counsel ascertains the
basis of the petitioner’s complaints, shapes them into appropriate legal form, and presents them to
the court. If counsel is unable to ascertain whether the petitioner has viable claims because the
petitioner suffers from a mental defect affecting his ability to communicate rationally, then the
appointment of an attorney is but an empty formality). Put simply, it would be incongruous to
allow a party in whom the court has an unresolved bona fide doubt as to their postconviction fitness
to then waive further inquiry into the matter or stipulate that they are, in fact, fit. The Act provides
a statutory right to a reasonable level of assistance of counsel. To implement that right, the
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2023 IL App (2d) 220123-Udefendant must be fit. Where the court has a bona fide doubt as to a defendant’s fitness, the trial
court must be satisfied that he or she is fit, and it must make an express finding on the record before
proceeding further. Here, because the court found a bona fide doubt as to defendant’s fitness for
postconviction proceedings, it was improper for it to abdicate its obligation to rule on defendant’s
ultimate fitness for postconviction proceedings. Under these circumstances, application of the
invited error doctrine would be inappropriate.
¶ 67 For similar reasons, we decline the State’s invitation to find that the trial court’s failure to
rule on defendant’s fitness for postconviction proceedings may be excused on the basis of harmless
error. The State emphasizes that Dr. Latham’s report, which “recommended the Court find
[defendant] fit to proceed,” was known to the trial court and is included within the record on
appeal. It argues that if the trial court had held a hearing on defendant’s postconviction fitness, it
would have been presented with Dr. Latham’s testimony that defendant was fit. The State’s
argument implies that we may conclude that defendant was fit for postconviction proceedings
following our own independent review of the report, notwithstanding the trial court’s failure to do
so. As noted by defendant, if we were to take the State up on its offer, we would be the first court
to review the report, because the record affirmatively shows that the trial court did not review it.
We decline to, in essence, hold a hearing of our own on defendant’s fitness based only on
information that may be gleaned from the record. The trial court is in a superior position to observe
defendant and evaluate his conduct and ability to communicate with his appointed counsel.
Because the trial court found a bona fide doubt of defendant’s fitness, it must resolve it.
¶ 68 As a final matter, the State asserts that if we agree with defendant that remand is required,
we should remand the cause for a retrospective fitness hearing rather than remand for new
postconviction proceedings. Defendant responds that a retrospective hearing would be
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2023 IL App (2d) 220123-Uinappropriate given that approximately three years have passed since the trial court found a bona
fide doubt. Instead, defendant asks that we “remand the cause for a contemporaneous fitness
examination and new proceedings on the post-conviction petition.”
¶ 69 In the context of cases involving fitness to stand trial, our supreme court previously stated
that a retrospective fitness hearing would typically be inadequate when more than one year has
passed since the defendant’s original trial and sentencing. People v. Neal, 179 Ill. 2d 541, 554
(1997). However, subsequent to Neal, the Illinois Supreme Court stated that “it appears that
retrospective fitness hearings are now the norm. What was constitutionally forbidden three years
ago is now compelled.” People v. Mitchell, 189 Ill. 2d 312, 339 (2000). Indeed, the Neal court
acknowledged that, in certain instances, the issue of a defendant’s fitness or lack thereof may be
fairly and accurately determined long after the fact, and the issue may be analyzed on a case-by-
case basis. Neal, 179 Ill. 2d at 554.
¶ 70 Despite the length of time that has elapsed since the trial court found a bona fide doubt, we
agree with the State that the appropriate remedy is to remand for the trial court to conduct a
retrospective hearing on defendant’s postconviction fitness. Two considerations lead us to this
conclusion. First, defendant does not contend on appeal that he was unfit for postconviction
proceedings. Instead, he focuses his appeal on the trial court’s failure to rule one way or the other
on his fitness. Second, at the hearing on August 17, 2020, the parties essentially stipulated to Dr.
Latham’s report, which was the only evidence presented. A retrospective hearing will allow the
court an opportunity to actually review the fitness examination report, relevant reports of
proceedings, hear from witnesses, and determine whether defendant was fit for postconviction
proceedings. See People v. Cook, 2014 IL App (2d) 130545, ¶ 22 (ordering a retrospective fitness
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2023 IL App (2d) 220123-Uhearing where the parties stipulated to the report and stating the trial court was “perfectly capable
of reviewing that evidence and finding whether, in light of that evidence, defendant was fit).”
¶ 71 Based on the above, we remand for the limited purpose of conducting a retrospective fitness
hearing and determining whether defendant was fit for postconviction proceedings on July 22,
2020, which is when the court made an express finding of bona fide doubt. On remand, the court
should be mindful that the level of competency required in postconviction proceedings is less than
that required at trial, as “a defendant is considered unfit to proceed with the post-conviction process
when, because of a mental condition, he cannot communicate his allegations of constitutional
deprivations to counsel, thus frustrating his entitlement, under the Act, to a reasonable level of
assistance.” Johnson, 191 Ill. 2d at 269. Once the trial court conducts a retrospective fitness
hearing and expressly determines whether defendant was fit, it shall certify the record arising from
those proceedings, and we shall resume our consideration of the issues raised in this appeal. If
necessary, we will allow the parties to file supplemental briefs to address any issues that may arise
from the limited remand for a retrospective fitness hearing.
¶ 72 III. CONCLUSION
¶ 73 For the reasons stated, this cause is remanded with directions for the limited purpose of
conducting a retrospective fitness hearing and expressly determining whether defendant was fit for
postconviction proceedings. After holding the hearing, the trial court shall deliver to the clerk of
this court, within 120 days of this decision, a report of its findings concerning defendant’s
postconviction fitness and a report of the proceedings on remand.
¶ 74 Cause remanded with directions.
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