fitness hearing in Illinois

2023Coty remains the law. ¶ 22 In regard to prejudice and the defendant’s second claim—i.e., the claim that trial counsel was ineffective for failing to request a fitness hearing based on the defendant’s use of psychotropic drugs—the defendant’s successive petition relied on precedent that had been overruled, primarily People v. Brandon, 162 Ill. 2d 450 (1994), and was no longer “good law.” Brandon held that a defendant who is taking psychotropic medication is entitled to a fitness hearing, and that the failure of counsel to request such a hearing requires remand.

2003Specifically, the supreme court stated that the holdings in People v. Nitz, 173 Ill. 2d 151 (1996), People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Gevas, 166 Ill. 2d 461 (1995), that the taking of medications was equated with a bona fide doubt of a defendant’s fitness and that a defendant was deprived of due process if he did not receive a fitness hearing when it was shown that he was taking psychotropic medication, were erroneous.

2026We additionally note that to establish that defense counsel’s alleged incompetency prejudiced him within the meaning of Strickland, defendant was required to show that facts existed at the time of his trial and sentencing hearing that would have raised a bona fide doubt of his fitness, “that the trial court would have found a bona fide doubt of his fitness[,] and ordered a fitness hearing if it had been apprised of the evidence now offered.” 7 People v. Easley, 192 Ill. 2d 307, 319 (2000) (citing People v. Johnson, 183 Ill. 2d 176, 193 (1998); People v. Eddmonds, 143 Ill. 2d 501, 512-13 (1991)

2023The second prong requires defendant to demonstrate that counsel’s deficiency was prejudicial by showing that “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Eddmonds, 143 Ill. 2d at 511 (quoting Strickland, 466 U.S. at 694 ). ¶ 68 “To establish that the failure to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant must show that facts existed at the time of trial that would have raised a bona fide doubt of his ability ‘to understand the nature and purpose of the proceedings against him or to assi

2023See People v. Mitchell, 189 Ill. 2d 312, 329 (2000) (“Due process does not require that everyone taking ‘psychotropic or other medication’ under medical direction should be granted a fitness hearing.”); see also 725 ILCS 5/104-21(a) (West 2022) (“A defendant who is receiving psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of those drugs or medications.”). ¶ 49 In short, the trial court properly exercised its discretion in finding defendant fit to stand trial in January 2020 and did not err in October 2022 by proceeding to try a defendant who

2022Further, “there are ‘no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.’ ” Id. (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). -8- ¶ 27 To show prejudice from counsel’s failure to request a fitness hearing, a defendant must show a reasonable probability exists that, if he received a fitness hearing, he would have been found unfit for trial.

2002A fitness hearing provides the vehicle by which the court may ascertain whether the drugs are influencing the defendant’s subjective decision regarding the pursuit of available defenses.” Kinkead, 168 Ill. 2d at 410 .

2002The next time the Illinois Supreme Court was confronted with a defendant on psychotropic drugs who did not get a fitness hearing was in the case of People v. Kinkead, 168 Ill. 2d 394 (1995) (Kinkead I).

2019Id. at 472 . ¶ 12 In People v. Burgess, 176 Ill. 2d 289, 303 (1997), however, the supreme court—while acknowledging its previous stance on retrospective fitness hearings and noting the difficulty of determining the mental functioning of the defendant after the fact—departed from the rule of 1 For the most part, the bona fide doubt as to the defendant’s fitness in these cases arose by virtue of an old version of section 104-21 of the Code of Criminal Procedure (725 ILCS 5/104-21(a) (West 1994)) that was interpreted as providing that, if the defendant was taking psychotropic medication, there wa

2019See, e.g., People v. Gevas, 166 Ill. 2d 461, 467-68 (1995); People v. Birdsall, 172 Ill. 2d 464, 479 (1996). 1 For example, in Gevas, the Illinois Supreme Court reversed the defendant’s convictions for murdering his two infant children, finding that the trial court should have held a fitness hearing.

2026We additionally note that to establish that defense counsel’s alleged incompetency prejudiced him within the meaning of Strickland, defendant was required to show that facts existed at the time of his trial and sentencing hearing that would have raised a bona fide doubt of his fitness, “that the trial court would have found a bona fide doubt of his fitness[,] and ordered a fitness hearing if it had been apprised of the evidence now offered.” 7 People v. Easley, 192 Ill. 2d 307, 319 (2000) (citing People v. Johnson, 183 Ill. 2d 176, 193 (1998); People v. Eddmonds, 143 Ill. 2d 501, 512-13 (1991)

2023“To establish that the failure to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant must show that facts existed at the time of trial that would have raised a bona fide doubt of his ability to understand the nature and purpose of the proceedings against him or to assist in his defense.” (Internal quotation marks omitted.) People v. Harris, 206 Ill. 2d 293, 304 (2002). - 21 - “Defendant is entitled to relief *** only if he shows that the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing if it had been apprise

2026Citing People v. Sandham, 174 Ill. 2d 379, 382 (1996), he avers that because a bona fide doubt of his fitness to stand trial or plead arose, the trial court had a duty to hold a fitness hearing and form an independent determination of his fitness.

2023The Sandham court concluded that although a bona fide doubt likely existed before the trial judge made his observations, “there [wa]s no question that the trial judge had no discretion and was required to conduct, sua sponte, a fitness hearing at the point he questioned [the] defendant’s capacity to comprehend what was transpiring at the sentencing hearing.” Id. - 16 - ¶ 41 In Nichols, this court rejected the defendant’s argument that “the trial court erred by not ordering a fitness hearing on its own motion in response to allegedly incoherent and delusional statements [the] defendant made and

2025The defendant is entitled to relief “only if he shows that the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing if it had been apprised of the evidence now offered.” (Internal quotation marks omitted.) Id. ¶ 34 As an initial matter, we note that the defendant did not include this fitness issue in his postconviction petition, and cannot raise it for the first time on appeal.

2025He further argues that his plea was invalid because his health conditions prevented him from comprehending the plea proceedings, and the court therefore needed a PSI to determine an appropriate sentence in lieu of the one in the plea agreement. ¶ 33 In discussing a defendant’s assertion of ineffective assistance of counsel for failing to request a fitness hearing, our supreme court has explained that: “To establish that the failure to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant must show that facts existed at the time of trial that would have

2022“Because it is a violation of due process to convict a defendant who is mentally unfit to stand trial, a judge has a duty to order a fitness hearing sua sponte once facts are brought to the judge’s attention that raise a bona fide doubt of the accused’s fitness to stand trial or be sentenced.” McCallister, 193 Ill.2d at 110 -11 (citing People v. Murphy, 72 Ill.2d 421, 430 (1978)).

2022However, a defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2000) and is entitled to a fitness hearing “only when a bona fide doubt of his fitness to stand trial or be sentence is raised.” People v. McCallister, 193 Ill.2d 63, 110 (2000), citing People v. Johnson, 183 Ill.2d 176, 193 (1998); People v. Eddmonds, 143 Ill.2d 501, 512 (1991).

2026We additionally note that to establish that defense counsel’s alleged incompetency prejudiced him within the meaning of Strickland, defendant was required to show that facts existed at the time of his trial and sentencing hearing that would have raised a bona fide doubt of his fitness, “that the trial court would have found a bona fide doubt of his fitness[,] and ordered a fitness hearing if it had been apprised of the evidence now offered.” 7 People v. Easley, 192 Ill. 2d 307, 319 (2000) (citing People v. Johnson, 183 Ill. 2d 176, 193 (1998); People v. Eddmonds, 143 Ill. 2d 501, 512-13 (1991)

2022However, a defendant is presumed fit to stand trial (725 ILCS 5/104-10 (West 2000) and is entitled to a fitness hearing “only when a bona fide doubt of his fitness to stand trial or be sentence is raised.” People v. McCallister, 193 Ill.2d 63, 110 (2000), citing People v. Johnson, 183 Ill.2d 176, 193 (1998); People v. Eddmonds, 143 Ill.2d 501, 512 (1991).

2003Specifically, the supreme court stated that the holdings in People v. Nitz , 173 Ill. 2d 151 (1996), People v. Brandon , 162 Ill. 2d 450 (1994), and People v. Gevas , 166 Ill. 2d 461 (1995), that the taking of medications was equated with a bona fide doubt of a defendant's fitness and that a defendant was deprived of due process if he did not receive a fitness hearing when it was shown that he was taking psychotropic medication, were erroneous.

2003Specifically, the supreme court stated that the holdings in People v. Nitz, 173 Ill. 2d 151 (1996), People v. Brandon, 162 Ill. 2d 450 (1994), and People v. Gevas, 166 Ill. 2d 461 (1995), that the taking of medications was equated with a bona fide doubt of a defendant’s fitness and that a defendant was deprived of due process if he did not receive a fitness hearing when it was shown that he was taking psychotropic medication, were erroneous.

2022“Because it is a violation of due process to convict a defendant who is mentally unfit to stand trial, a judge has a duty to order a fitness hearing sua sponte once facts are brought to the judge’s attention that raise a bona fide doubt of the accused’s fitness to stand trial or be sentenced.” McCallister, 193 Ill.2d at 110 -11 (citing People v. Murphy, 72 Ill.2d 421, 430 (1978)).

2015McCallister, 193 Ill. 2d at 110-11 (the court has a duty to order a fitness hearing sua sponte once facts are presented that raise a bona fide doubt of a defendant's fitness because it is a violation of due process to convict an unfit defendant (citing People v. Murphy, 72 Ill. 2d 421, 430 (1978) (fundamental constitutional nature of the fitness requirement creates a duty for the trial court to hold a fitness hearing once a bona fide doubt of a defendant's fitness is raised)).

2025“If the trial court concludes that no bona fide doubt exists, then it need not conduct a fitness hearing.” Id. (citing People v. Hanson, 212 Ill. 2d 212, 217 (2004)). ¶ 29 “Whether a bona fide doubt of the defendant’s fitness exists is a matter within the trial court’s discretion.” People v. Nichols, 2012 IL App (4th) 110519, ¶ 31 .

2024In other words, in such cases, no fitness hearing is necessary.” (Emphasis in original.) People v. Scott, 2020 IL App (2d) 180378, ¶ 19 (citing Hanson, 212 Ill. 2d at 217 ). ¶ 25 Notwithstanding that a fitness hearing was not required in the instant case, the record does not support defendant’s argument that the circuit court failed to inquire into his fitness at the second fitness hearing.

2020See Hanson, 212 Ill. 2d at 217 . ¶ 22 Defendant relies on two cases, People v. Contorno, 322 Ill. App. 3d 177 (2001), and Cook, 2014 IL App (2d) 130545 , to support his claim that the court needed to address his fitness in a full fitness hearing.

2018But because constitutional due process concerns are present, “the record must show an affirmative exercise of judicial discretion regarding the fitness determination.” Cook, 2014 IL App (2d) 130545, ¶ 13 . ¶ 86 During a fitness hearing, “the trial court may consider an expert’s stipulated testimony to assess a defendant’s fitness but may not rely solely on the parties’ stipulation to an expert’s conclusion that the defendant is fit.” (Emphasis in original.) Gipson, 2015 IL App (1st) 122451, ¶ 30 ; see also Contorno, 322 Ill.

2025The first stage, commonly referred to as a fitness hearing, “focus[es] *** on the parent’s conduct relative to the ground or grounds of unfitness alleged by the State.” In re D.T., 212 Ill. 2d 347, 364 (2004).

2025The first stage, commonly referred to as a fitness hearing, “focus[es] *** on the parent’s conduct relative to the ground or grounds of unfitness alleged by the State.” In re D.T., 212 Ill. 2d 347, 364 (2004).

2019See, e.g., People v. Gevas, 166 Ill. 2d 461, 467-68 (1995); People v. Birdsall, 172 Ill. 2d 464, 479 (1996). 1 For example, in Gevas, the Illinois Supreme Court reversed the defendant’s convictions for murdering his two infant children, finding that the trial court should have held a fitness hearing.

2018See, e.g. , People v. Gevas , 166 Ill. 2d 461 , 467-68, 211 Ill.Dec. 511 , 655 N.E.2d 894 (1995) ; People v. Birdsall , 172 Ill. 2d 464 , 479, 219 Ill.Dec. 22 , 670 N.E.2d 700 (1996). 1 For example, in Gevas , the Illinois Supreme Court reversed the defendant's convictions for murdering his two infant children, finding that the trial court should have held a fitness hearing.

2026“Fitness” relates only to a person’s ability to function in the legal proceedings, and “a defendant may be fit to stand trial even though his mind is otherwise unsound.” People v. Haynes, 174 Ill. 2d 204, 226 (1996). ¶ 59 Once a defendant is adjudicated unfit to stand trial, as in this case, the defendant is presumed unfit until adjudicated to be fit at a subsequent fitness hearing.

1998If a bona fide doubt of defendant’s fitness is raised, however, the circuit court must hold a fitness hearing before proceeding further. 725 ILCS 5/104 — 11(a) (West 1994); Haynes, 174 Ill. 2d at 226 .

2002People v. Cortes, 181 Ill.2d 249 , 275 n. 2, 229 Ill.Dec. 918 , 692 N.E.2d 1129 (1998); People v. Johns, 285 Ill.App.3d 849, 855-56 , 221 Ill.Dec. 89 , 674 N.E.2d 882 (1996); People v. McKay, 282 Ill.App.3d 108 , 115, 218 Ill.Dec. 96 , 668 N.E.2d 580 (1996) (Where a defendant's right, if any, to a fitness hearing would have accrued prior to the effective date of the amendments to section 104-21(a), section 4 of the Statute on Statutes (5 ILCS 70/4 (West 1994)) mandates that the original version must be applied on appeal).

2002People v. Cortes, 181 Ill.2d 249 , 275 n. 2, 229 Ill.Dec. 918 , 692 N.E.2d 1129 (1998); People v. Johns, 285 Ill.App.3d 849, 855-56 , 221 Ill.Dec. 89 , 674 N.E.2d 882 (1996); People v. McKay, 282 Ill.App.3d 108 , 115, 218 Ill.Dec. 96 , 668 N.E.2d 580 (1996) (Where a defendant's right, if any, to a fitness hearing would have accrued prior to the effective date of the amendments to section 104-21(a), section 4 of the Statute on Statutes (5 ILCS 70/4 (West 1994)) mandates that the original version must be applied on appeal).

2022Further, “there are ‘no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated.’ ” Id. (quoting Drope v. Missouri, 420 U.S. 162, 180 (1975)). -8- ¶ 27 To show prejudice from counsel’s failure to request a fitness hearing, a defendant must show a reasonable probability exists that, if he received a fitness hearing, he would have been found unfit for trial.

2012The appellate court erroneously relied on Cleer to conclude in this case that ‘upon accepting a motion for a fitness hearing and appointing a qualified expert, the trial court implicitly concludes that a bona fide doubt as to defendant’s fitness exists.’ To the extent that Cleer may be read as holding that the grant of a motion for fitness examination, by itself, required the trial court to hold a fitness hearing, it is overruled.” Hanson, 212 Ill. 2d at 222 (quoting Eddmonds, 143 Ill. 2d at 518 , quoting Drope, 420 U.S. at 180 )). ¶ 135 Our supreme court also found unpersuasive the defendant’

2024Garcia further contends that this court can liberally construe his postconviction petition as asserting a claim of ineffective assistance of appellate counsel, citing People v. Brown, 236 Ill. 2d 175, 184, 188 . ¶ 37 Garcia’s pro se postconviction petition alleged trial counsel’s ineffective assistance for failing to investigate Garcia’s mental health history and request a fitness hearing.

2023“The trial court must order a fitness hearing if a bona fide doubt is raised of the defendant’s fitness.” Id.

2023The motion stated ‘[t]he failure of defense counsel to investigate apparent problems with defendant’s mental health may be deficient performance as defined by the first prong of [Strickland v. Washington, 466 U.S. 668 (1984)].’ The motion further alleged, ‘Defense counsel was objectively unreasonable and provided deficient performance by not investigating the defendant[’]s ‘mental history’ (or) by failing to seek a fitness hearing based on the evidence which suggest that the defendant’s adolescent maturity was “severely under-developed” based on the prior diagnosis.’ ” Berry, 2019 IL App (4th)

2023The second prong requires defendant to demonstrate that counsel’s deficiency was prejudicial by showing that “ ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Eddmonds, 143 Ill. 2d at 511 (quoting Strickland, 466 U.S. at 694 ). ¶ 68 “To establish that the failure to request a fitness hearing prejudiced a defendant within the meaning of Strickland, a defendant must show that facts existed at the time of trial that would have raised a bona fide doubt of his ability ‘to understand the nature and purpose of the proceedings against him or to assi

2019Id. at 472 . ¶ 12 In People v. Burgess, 176 Ill. 2d 289, 303 (1997), however, the supreme court—while acknowledging its previous stance on retrospective fitness hearings and noting the difficulty of determining the mental functioning of the defendant after the fact—departed from the rule of 1 For the most part, the bona fide doubt as to the defendant’s fitness in these cases arose by virtue of an old version of section 104-21 of the Code of Criminal Procedure (725 ILCS 5/104-21(a) (West 1994)) that was interpreted as providing that, if the defendant was taking psychotropic medication, there wa

1999Burgess , 176 Ill. 2d at 303 (considering expert testimony presented at supplemental hearing that indicated the medications used by the defendant did not affect his fitness to stand trial); see also People v. Cortes , 181 Ill. 2d 249, 277 (1998) (applying Burgess to the trial court's fitness hearing conducted one year after the defendant's conviction but based on contemporaneous fitness reports).

2000We recognize that a trial judge cannot rely on trial demeanor to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant’s fitness (Pate, 383 U.S. at 385-86 , 15 L.

2000We recognize that a trial judge cannot rely on trial demeanor to dispense with a fitness hearing in the face of evidence of a bona fide doubt of defendant’s fitness (Pate, 383 U.S. at 385-86 , 15 L.

2022This principle is reflected in section 2-18(6) of the Juvenile Court Act, which specifically permits the court to take judicial notice of evidence and sworn testimony in prior juvenile proceedings involving the same minor, provided that “the taking of judicial notice would not result in admitting hearsay evidence at a hearing where it would otherwise be prohibited.” (Emphasis added.) 705 ILCS 405/2-18(6) (West 2020). ¶ 82 For example, when a court is conducting the fitness portion of a termination proceeding, the court may not take judicial notice of a report presented in a permanency hearing

2011App. 3d 617 , 628-29, 699 N.E.2d 167, 175-76 (1998), this court rejected the State’s argument that at a fitness hearing under the Adoption Act, a trial court can take judicial notice of the entire record preceding the parental-termination hearing without first finding that the contents of the court file were admissible under the civil rules of evidence.

2015As it is a violation of due process to convict a defendant who is mentally unfit to stand trial (People v. Burson, 11 Ill. 2d 360, 368 (1957)), a judge has a duty to order a fitness hearing once facts are brought to the judge’s attention that raise a bona fide doubt of the defendant’s fitness to stand trial or be sentenced.

2014As it is a violation of -9- No. 1-13-0076 due process to convict a defendant who is mentally unfit to stand trial (People v. Burson, 11 Ill. 2d 360, 368 (1957)), a judge has a duty to order a fitness hearing once facts are brought to the judge's attention that raise a bona fide doubt of the defendant's fitness to stand trial or be sentenced.

2011People v. Griffin, 178 Ill. 2d 65 (1997) (once a bona fide doubt as to defendant’s fitness has been raised, the trial court has a duty to hold a fitness hearing).

2011People v. Griffin, 178 Ill. 2d 65 (1997) (once a bona fide doubt as to defendant’s fitness has been raised, the trial court has a duty to hold a fitness hearing).

2000Citing to Britz, the court concluded that Dilantin was not a psychotropic drug or its equivalent; therefore, Kidd “was not entitled to a fitness hearing under section 104 — 21(a) [and] defense counsel could not have been ineffective for failing to seek one pursuant to that provision.” Kidd, 175 Ill. 2d at 19 .

2000Citing to Britz , the court concluded that Dilantin was not a psychotropic drug or its equivalent; therefore, Kidd “was not entitled to a fitness hearing under section 104–21(a) [and] defense counsel could not have been ineffective for failing to seek one pursuant to that provision.” Kidd , 175 Ill. 2d at 19 .