2014 IL App (2d) 130632 No. 2-13-0632 Opinion filed December 22, 2014

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff

- Appellee, ) ) v. ) No s. 13- CF -435 ) 13- TR -765-68 ) THOMAS McCOY , ) Honorable ) Patrick L. Heaslip , Defendant -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE HUDSON delivered the judgment of the court, with opinion. Justices McLaren and Birkett concurred in the judgment and opinion. OPINION ¶ 1 Defendant, Thomas McCoy , appeals the trial court’s order finding him unfit to stand trial. He contends that the trial court erred by disregarding his demand for a jury determination of fitness unde r section 104

- 12 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104 -12 (West 2012)). Because a defendant has a statutory right to demand a jury determination of fitness, we reverse and remand. ¶ 2 I. BACKGROUND ¶ 3 On March 16, 2013, d efendant was charged with various offenses. On April 4, 2013, defendant’s counsel filed a motion to determine defendant’s fitness to stand trial. The trial court2014 IL App (2d) 130632

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- ordered a fitness evaluation and, on May 19, 2013, an evaluation was filed concluding that defendant was unfit to stand trial but, with appropriate mental

- health intervention, was likely to obtain fitness within one year. ¶ 4 On June 14, 2013, a hearing was held. The court confirmed with both parties that the report had been received , and defendant stated , “I demand a jury.” The court did not respond and asked if there was an agreement on the fitness issue. The State said that there would be a stipulation, and defendant said , “[o]bjection to the stipulation.” The court responded , “Mr. McCoy, I want you t o stop talking. Stop it right now. Do not interrupt the proceedings.” Defendant again objected , and the court said that if defendant did not stop he would be removed from the courtroom. Defendant again said, “I object. I do not consent.” The State and defense counsel stipulated that defendant was unfit to stand trial, and the court found him unfit. Defendant yet again objected and demanded a jury hearing. The court never addressed defendant’s requests for a jury. That same day, the court entered a written order finding defendant unfit. ¶ 5 On June 18, 2013, defendant filed a pro se notice of appeal, seeking review of the order finding him unfit. On June 20, 2013, the court entered another order finding defendant unfit to stand trial. On November 25, 2013, defendant was found to be restored to fitness and, on January 7, 2014, the court accepted guilty pleas from defendant. During the guilty

- plea hearing, defendant stated that he was a reverend with a doctorate degree in divinity. T he court and defense counsel noted that defendant was previously found unfit and returned to court acting the same way. ¶ 6 On July 17, 2014, the State Appellate Defender sought leave to file a late notice of appeal from the convictions. We granted that motion. Subsequently, we remanded the cause for compliance with Illinois Supreme Court Rule 605(c) (eff. Oct. 1, 2001). People v. McCoy , No.2014 IL App (2d) 130632

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- 2-14-0707 (Dec. 2, 2014) (minute order). We did not address his argument that the trial court lacked jurisdiction to accept his guilty pl eas (s ee People v. Mutesha , 2012 IL App (2d) 110059 )

. In the present appeal, w e granted defendant’s motion to supplement the record with the related appeal. ¶ 7 II. ANALYSIS ¶ 8 Defendant contends that, under section 104 -12 of the Code and People v. Haynes , 174 Ill. 2d 204 (1996), the trial court erred when it disregarded his request for a jury determination of his fitness to stand trial. In its brief, t he State d id not dispute the applicability of Haynes , but ask ed us to hold the matter in abeyance until the supreme court reviewed our decision in People v. Holt , 2013 IL App (2d) 120476. The supreme court did so on November 20, 2014 , the same day that we held oral argument in this case

. People v. Holt , 2014 IL 116989. ¶ 9 A. Mootness ¶ 10 At the outset, we address whether the matter is moot. Defendant concedes that he has been found to be restored to fitness but argues that several exceptions to the mootness doctrine apply. ¶ 11 “An appeal is considered moot where it presents no actual controversy or where the issues involved in the trial court no longer exist because intervening events have rendered it impossible for the reviewing court to grant effectual relief to the complaining party.” In re J.T. , 221 Ill. 2d 338, 349

- 50 (2006). Generally, courts of review do not decide moot questions, render advisory opinions, or consider issues where the result will not be affected regardless of how those issues are decided. In re Barbara H. , 183 Ill. 2d 482, 491 (1998). ¶ 12 Reviewing courts, however, recognize exceptions to the mootness doctrine: (1) the public- interest exception, applicable where the case presents a question of public importance that2014 IL App (2d) 130632

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- will likely recur and whose answer will guide public officers in the performance of their duties, (2) the capable -of- repetiti on exception, applicable to cases involving events of short duration that are capable of repetition, yet evading review, and (3) the collateral

- consequences exception, applicable where the order could return to plague the defendant in some future proceedin gs or could affect other aspects of the defendant’s life. See In re Alfred H.H. , 233 Ill. 2d 345, 355 -62 (2009). Defendant argues that all three of these exceptions apply to him. We find that the capable -of- repetition and the public- interest exception s apply. ¶ 13 The exception for issues capable of repetition, yet evading review, has two requirements. “First, the challenged action must be of a duration too short to be fully litigated prior to its cessation.” Id . at 358. “Second, there must be a reasonable expectation that ‘the same complaining party would be subjected to the same action again.’ ” Id . (quoting Barbara H. , 183 Ill. 2d at 491). The present action and a potential future action must have a substantial enough relation that the resolution of th e issue in the present case would have a bearing on a similar issue presented in a future case involving the defendant. See In re Val Q. , 396 Ill. App. 3d 155, 160 (2009) (citing Alfred H.H ., 233 Ill. 2d at 360), overruled on other grounds , In re Rita P. , 2014 IL 115798, ¶¶ 33- 34. In cases where the defendant challenges the specific facts that were established during the hearing, the exception generally does not apply, because those facts would necessarily be different in any future hearing and would have no bearing on similar issues presented in subsequent cases. See id . at 160

- 61; see also Alfred H.H. , 233 Ill. 2d at 360. However, when the defendant raises a purely legal question, such as an issue of statutory interpretation, the exception can apply be cause the court will likely again commit the same alleged
errors. See In re Jonathan P ., 399 Ill. App. 3d 396, 401 (2010).2014 IL App (2d) 130632

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- ¶ 14 Here, the challenged action was obviously too short to be fully litigated during the pendency of the order. See Alfred H.H. , 233 Ill. 2d at 358. Defendant also argues a purely legal issue. Relying on Haynes and section 104 -12 of the Code, he contends that he has a statutory right to demand a jury determination of fitness. He also notes that he has a potentially meritorious argument that the trial court lacked jurisdiction to accept his guilty pleas. In its brief, the State does not present any argument against application of this exception other than a note that, when the briefs were written, the record did not include information about defendant’s guilty pleas and the related appeal. The record has since been supple mented with that information. ¶ 15 Because defendant has exhibited mental

- health issues, including irrational behavior at his guilty

- plea hearing, there is a reasonable expectation that questions regarding his fitness will recur. Further, because his argument addresses the court’s ability to deny a personal request for a jury to determine fitness, absent a determination of the matter the court would likely continue to ignore any personal jury demands. Accordingly, this issue falls under the exception to the mootness doctrine for issues that are capable of r epetition yet evading review. ¶ 16 T he public- interest exception also applies

. “ Review of an otherwise moot issue under the public interest exception requires a clear showing of each of the following criteria: ‘ (1) the question presented is of a public nature; (2) an authoritative determination of the question is desirable for the future guidance of public officers; and (3) the question is likely to recur. ’ ” Rita
P ., 2014 IL 115798, ¶ 36 (quoting In re Shelby R ., 2013 IL 114994, ¶ 16). ¶ 17 With regard to the firs t criterion, c ase - specific inquiries, such as the sufficiency of the evidence, do not present the kinds of broad public issues required for review under the public- interest exception. Id . H owever, where the issue is one of general applicability, such as the proper construction of a statute, the exception is implicated. See id

. ; In re Mary Ann P ., 2022014 IL App (2d) 130632

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- Ill. 2d 393, 402 (2002) (finding that the procedures that must be followed and the proofs that must be made in mental

- health cases are matters of a public nature and of substantial public concern ). ¶ 18 “With respect to the second criterion, the need for an authoritative determination of the question, we consider the state of the law as it relates to the moot question.” Rita P ., 2014 IL 115798, ¶ 37. Here, alth ough the supreme court has interpreted the statute at issue in another context, there are no authoritative opinions on the precise issue raised by defendant. Accordingly, the issue raised in this case is one of first impression, making an authoritative de termination desirable. See Shelby R. , 2013 IL 114994, ¶¶ 20- 22 (holding that appellate court could properly consider issue of first impression under the public- interest exception). ¶ 19 With respect to the third criterion, defendant’s own history demonstrates how this question might recur. Defendant was found unfit, he later exhibited behavior at his guilty

- plea hearing similar to behaviors exhibited when he was unfit, and he argues that there is a substantial likelihood that his guilty pleas will be vacated. See In re Lance H ., 2014 IL 114899 , ¶ 14 (applying personal history to find that an issue might recur). Further, other individuals before the trial court might similarly personally state a desire for a jury determination and have that request ignored. A ccordingly, the public

- interest exception is also applicable and we discuss the merits of the appeal. ¶ 20 B. Defendant’s Ability to Personally Demand a Jury ¶ 21 Defendant contends that, under Haynes , the trial court erred when it disregarded his request for a jury determination of fitness. In its brief, as noted, the State d id not dispute that Haynes is applicable. Instead, the State ask ed that we hold the matter in abeyance pending the supreme

cou rt’s decision in Holt

. At oral argument , the State argued that we should disregard or decline to follow Haynes

.2014 IL App (2d) 130632

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- ¶ 22 There is no constitutional right to a jury at a hearing to determine fitness to stand trial. People v. Manning , 76 Ill. 2d 235, 239 (1979). Our legislature, however, has made provisions for a jury to determine the issue of a defendant’s fitness under some circumstances. 725 ILCS 5/104-12 (West 2012). Section 104-12 of the Code provides: “Right to Jury. The issue of the defendant’s fitness m ay be determined in the first instance by the court or by a jury. The defense or the State may demand a jury or the court on its own motion may order a jury. However, when the issue is raised after trial has begun or after conviction but before sentencing, or when the issue is to be redetermined under Section 104-20 or 104-27, the issue shall be determined by the court.” Id

. ¶ 23 “ In construing a statute, a court ’ s duty is to ascertain and give effect to the intent of the legislature. ” Haynes , 174 Ill. 2d at 2 22. “ In determining that intent, a court must look first to the language of the statute and interpret that language in accordance with its plain and ordinary meaning. ” Id

. ¶ 24 In Haynes , the defendant contended that the trial court erred by accepting his w aiver of a jury determination of fitness. He argued that, under section 104

- 12, the term “the defense” meant that only counsel could waive the jury right. In disagreeing, our supreme court, applying the plain language of the statu t e, held that the term “ the defense” did not exclude the defendant. Instead,
“ ‘[t] he defense, ’ as used in this context, is commonly considered to connote the ‘ team ’ or the ‘side’ that is defending. This definition does not exclude the defendant, but clearly encompasses him as a part of ‘ the defense team. ’ ” Id . The court further determined that the legislative history did not support the defendant’s argument , and it ultimately noted that the rational explanation for the wording was “to allow defense counsel to speak on the de fendant’s behalf to inform the court of the defendant’ s wishes on this issue.” (Emphasis in original.) Id . at 224.2014 IL App (2d) 130632

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- ¶ 25 Here, under section 104

- 12 and the reasoning in Haynes , defendant ha d the right to personally demand a jury determination of fitness. Thus, the trial court erred when it disregarded his request

. However , the State contends that Holt called the decision in Haynes into question. We disagree and find that Holt is not incons istent with Haynes

. ¶ 26 In Holt , a fitness hearing was held before a jury. The State conceded that it would not be able to meet its burden to show that the defendant was fit. The defendant’s attorney moved for a directed verdict, and the trial court granted the motion. On appeal, the defendant argued that her counsel was ineffective for failing to follow her personal preference for a finding that she was fit

. We held that diligent advocacy did not require an attorney to blindly follow every desire of his or her client and that an attorney who doubts the sanity of a client may assume that the client cannot act in his or her own best interests. In particular, we noted that “ [a] n attorney can ordinarily make binding waivers of many of his client’s rights as to matter s of trial tactics. ” ( I nternal quotation marks omitted.) Holt , 2013 IL App (2d) 120476, ¶ 11. Our supreme court affirmed and specifically emphasiz ed that it was providing the limited holding that , where “the evidence clearly indicates that defend ant is unfit to stand trial, but a defendant contends that he or she is fit, defense counsel is not obligated to adopt defendant’s position and argue for a finding of fitness.” Holt , 20 14 IL 116989, ¶ 56. ¶ 27 Contrary to the State ’s assertions, the reasoning of Holt does not undermine Haynes . T he cases involved two entirely separate issues, with Haynes interpreting section 104

- 12 and Holt considering whether a defense attorney may advocate for a fitness d etermination against the defendant’s desires. The issues of the meaning of the term “the defense” in section 104

- 12 and whether the defendant may personally demand a jury determination of fitness w ere not at issue in Holt , nor were they decided either by this court or by the supreme court

. Indeed, in Holt a jury2014 IL App (2d) 130632

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- made the fitness determination . Further, there is nothing inconsistent between the two cases. It is reasonable to allow a defendant to personal ly demand a jury determination of fitness, yet also allow the defendant’s attorney to take a position on fitness that is contrary to that of the defendant. ¶ 28 Finally , the State contended for the first time at oral argument that Haynes was wrongly decided and that the right to demand a jury determination of fitness does not equate to the right t o have the court actually order a jury determination. Arguments omitted from the appellee ’ s brief and raised for the first time at oral argument are forfeited. S ee Ill. S. Ct. R. 341(i) (eff. Feb. 6,
2013 ) (applying Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013 ) to appellees ’ briefs). In any event, as to the State’s first argument, “[ t] he appellate court lacks authority to overrule decisions of [ the Illinois Supreme Court ] , which are binding on all lower courts. ” People v. Artis , 2 32 Ill. 2d 156, 164 (2009 ). As to the second argument, given that section 104-12 of the Code provides for the “right” to a jury and allows the defendant to “demand” a jury determination, the State’s interpretation of the statute would essentially render it meaningle ss . W e hold that, under section 104 -12 of the Code, the defendant has the right to personally demand a jury determination of fitness. ¶ 29 II I. CONCLUSION ¶ 30 The trial court erred when it disregarded defendant’s demand for a jury determination of fitness. Accordingly, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded

. ¶ 31 Reversed and remanded

.