2023 IL App (2d) 210765-U 

No. 2-21-0765 

Order filed January 3, 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)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of De Kalb County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 19-CF-428 

) 

DARRYL JACKSON, ) Honorable 

) Philip G. Montgomery, 

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE JORGENSEN delivered the judgment of the court.

Justices Hutchinson and Hudson concurred in the judgment.

ORDER

¶ 1 Held: Reversed and remanded where defendant, after being found unfit, was tried without 

the court finding him restored to fitness. 

¶ 2 Defendant, Darryl Jackson, was convicted of attempted armed robbery (720 ILCS 5/8-4(a), 

18-2(a)(1) (West 2018)) and aggravated assault (720 ILCS 5/12-2(c)(1) (West 2018)). The trial 

court sentenced defendant to nine years’ imprisonment. Defendant appeals, arguing that he was 

not properly found fit to stand trial and that, at sentencing, the court improperly considered in

aggravation a factor inherent in the offense. For the following reasons, we reverse and remand. 

¶ 3 I. BACKGROUND
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¶ 4 A. Indictment and Fitness

¶ 5 On August 26, 2019, defendant was charged by a two-count indictment for events that took 

place on August 7, 2019, at a Fifth Third Bank in Sycamore. In count I, defendant was charged

with attempted armed robbery in that, while armed with a knife, he knowingly demanded money 

from Jacob Klein, a bank employee. Further, in count II, defendant was charged with aggravated 

assault in that, when angered by Klein, defendant pulled out the knife and yelled, “Don’t fuck with 

me,” while demanding his money.

¶ 6 At his bond hearing on August 8, 2019, defendant rejected the appointment of counsel, 

explained that he had an agreement with the United States of America not to be prosecuted, and 

asserted that his arrest violated the Magna Carta. The court, Judge Philip G. Montgomery 

presiding, did not order a fitness evaluation; rather, it set a bond amount.

¶ 7 On September 6, 2019, the court held a preliminary hearing. In part, the court explained 

the charges to defendant and that, due to his prior criminal history, if convicted of count I, he was

eligible for Class X sentencing. The State raised doubt as to defendant’s fitness, noting that 

defendant’s family and jail personnel had also raised questions on that issue, but the court 

disagreed and found that defendant had clearly and appropriately responded to all questions 

concerning his decision to proceed pro se. The court’s written order continued the case and 

reflected that the court found defendant “lucid and coherent and [it] ha[d] no question as to 

defendant’s competency.”

¶ 8 On October 31, 2019, however, the State again informed the court, this time with Judge 

Robbin Stuckert presiding, that it had a bona fide doubt regarding defendant’s fitness to stand trial. 

The State noted that it had received numerous calls from the jail that implicated defendant’s fitness 

for trial. Accordingly, pursuant to section 104-13 of the Code of Criminal Procedure of 1963 
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(Code) (725 ILCS 5/104-13 (West 2018)), Judge Stuckert ordered a fitness evaluation. On January 

15, 2020, a fitness report was filed, reflecting that the court-appointed evaluator, Dr. Jayne Braden,

had found defendant unfit. Judge Stuckert then explained to defendant that there would be a fitness 

hearing held (pursuant to section 104-16 of the Code (id. § 104-16)), and defendant elected for that 

hearing to be held before a jury. 

¶ 9 On February 24, 2020, Judge Montgomery presided over the fitness hearing. Defendant 

continued to proceed pro se. After jury selection, Dr. Braden, a clinical psychologist, testified as 

an expert in trial competence. Braden testified that she received a court order to evaluate 

defendant’s fitness to stand trial, and she met with defendant on January 13, 2020. During the 

evaluation, defendant’s eye contact with Braden was fair to poor, and he did not want to provide 

information because he asserted that he was a sovereign citizen and society’s rules did not apply 

to him. Braden discussed the charges with defendant to assess whether he understood them, as 

well as their potential consequences. Braden explained that her evaluations, generally, do not 

necessarily focus on what a defendant already knows, but, instead, on whether he or she can learn 

what is not known. Defendant told Braden that he disagreed with the charges because there were

no statutes for them. For example, defendant asserted that he could not be charged with attempted 

armed robbery because he did not take any property; similarly, he believed that he could not be 

charged with aggravated assault because there was no bodily harm. Braden’s attempts to educate 

defendant were unsuccessful, and he continued in his belief that the charges did not apply to him. 

Defendant ended the interview early and declined to return the next day to complete it. In Braden’s 

opinion, defendant was not fit to stand trial, due to his inability to understand the charges and his 

inability or unwillingness to continue the evaluation for her to determine his understanding of the 

court process and participants, i.e., the remaining components of fitness. Braden explained that 
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her time with defendant was short, but some sort of psychosis would be consistent with his 

competency deficits. Finally, Braden opined that, with treatment, it was “highly likely” that 

defendant would be returned to fitness within one year. 

¶ 10 At the end of the trial, outside the presence of the jury, the State conceded that it was not 

able to sustain its burden of establishing fitness. The court made a finding that the State had not 

by a preponderance of the evidence demonstrated that defendant was fit to stand trial, but that Dr. 

Braden thought he could be restored to fitness within one year. The court remanded defendant to 

the Illinois Department of Health and Human Services (IDHS) and set a 90-day status.

¶ 11 On August 12, 2020, the State informed the court that, per a June 10, 2020, report, 

defendant remained unfit. Less than one month later, however, on September 10, 2020, with only 

the State present, a female “unidentified speaker” appeared, claimed to be present for defendant, 

and explained that she had spoken to a forensic coordinator and defendant had been restored to 

fitness. The State represented that it had not received a report finding defendant fit for trial. 

¶ 12 The record thereafter reflects that, on September 18, 2020, a two-page IDHS report finding 

defendant fit to stand trial was filed.1

 A letter to Judge Stuckert, signed by a social worker/forensic 

coordinator, attached the report and explained that the report found defendant fit for trial and 

requested that defendant immediately be transported to the county jail. As such, also on September 

18, 2020, Judge Stuckert issued an order, noting that the court had “received a report from the 

supervisor of the defendant’s treatment” “that the defendant is FIT TO STAND TRIAL” and, 

1 The report was signed by an advanced practice nurse/psychiatric mental health nurse 

practitioner and co-signed by a physician interim medical director. 
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pursuant to section 104-20(e) of the Code (725 ILCS 5/104-20 (West 2018)), ordered his 

immediate transport to the county jail. 

¶ 13 On October 27, 2020, now before Judge Montgomery, the State informed the court that

defendant had “been found fit,” was awaiting transfer into jail custody, and that the State 

understood that defendant intended to request the appointment of counsel. The court continued 

the matter, with a written order reflecting that the case was continued for a “status review of 

fitness” and with a handwritten notation reflecting that defendant was “found fit” and should be 

transferred to the jail.

¶ 14 Similarly, on November 10, 2020, the State noted that, despite the court’s transport orders, 

defendant remained at the mental health facility. The State requested another date. The November 

10, 2020, written court order reflected that the case was continued “for possible appointment of 

PD.”

¶ 15 On November 24, 2020, the State and defendant (unrepresented by counsel) appeared via 

Zoom before Judge Montgomery. The court told defendant that it was nice to see him again and 

asked defendant how he was doing; defendant answered, “I’m pretty swell.” The court confirmed 

that defendant had recently returned from IDHS and asked defendant, “are you on medication?” 

Defendant answered, “yes, sir.” The court asked defendant, “are you taking your medication?” 

Again, defendant answered, “yes, sir.” The court responded, 

“Well, that’s good to hear. You look good to me, you sound good to me, it’s nice 

to see you again.

Now, [defendant], I want to remind you that you have the right to a lawyer. You 

understand that, right?”
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¶ 16 The court then immediately proceeded to explain defendant’s right to counsel. Defendant 

requested counsel, and the court said that it would appoint the Public Defender. Next, the court 

asked defendant whether he recalled its previous explanation that defendant faced “pretty serious 

charges.” Defendant responded that he remembered, but the court said that it wished to start from 

the beginning. As such, the court reviewed with defendant the charges and possible sentencing 

ranges, as well as how defendant’s criminal history could potentially impact sentencing. The court 

also explained to defendant other rights and possible penalties. The court set another date, so that 

defendant could have a public defender assigned to his case. At the close of the hearing, the court 

stated to defendant, “keep taking your medication. You look and sound terrific to me.” Two 

written orders appear in the record on November 24, 2020. The first reflects appointment of the 

public defender. The second sets a date for arraignment and status, with a handwritten notation 

reflecting, “Defendant in custody DCJ, PD Appointed, R+P+I explained.” 

¶ 17 On December 8, 2020, defendant and his appointed counsel appeared in court via Zoom. 

The court commented that defendant was “looking good” and confirmed with defendant that he 

was “doing okay.” A short date was set to allow defendant and counsel more time to discuss the 

case.

¶ 18 In April and May 2021, defense counsel filed and argued a motion to dismiss the charges, 

alleging that the court’s handling of defendant’s fitness to stand trial—when the State initially 

raised the concern in September 2019, but the court simply continued the case—had violated 

defendant’s due process rights. The court essentially determined that there ultimately had been no 

prejudice and denied the motion. Also in May 2021, the court confirmed with defendant that he 

continued to take his medication and that everything was fine.
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¶ 19 On June 30, 2021, in pretrial discussions, defense counsel noted for the court her concern 

that defendant had some mental health issues, 

“When I speak to him, there are times where he’s very lucid, no issues, but there 

are other times where [defendant], I think, based on his medication, is rocking back and 

forth, has some facial tics as a result of that medication, so I’m sure he’s not getting 

necessarily—he may be receiving the generic version of the medication as opposed to the 

medication that would not prompt those types of side effects.

So that’s my concern as well, that [defendant], too, may be displaying these side 

effects, but there’s nothing I can do about that at this time because of the type of medication 

that he’s receiving.

So I’m concerned and I certainly don’t want him to not take his medication, because 

I think it is helpful to him in many ways.”

Later, on July 2, 2021, counsel explained that her concerns had been somewhat alleviated, in that 

the side-effect issues “come and go,” but defendant would be seated in the courtroom in a position 

which would make less visible to the jury the side effects of his medication.

¶ 20 On July 20, 2021, defendant rejected the State’s offer of a six-year sentence (the minimum)

in exchange for a guilty plea. Trial commenced on July 26, 2021. Defendant did not testify, and 

the defense presented no evidence. On July 27, 2021, the jury convicted defendant of both charges. 

¶ 21 On September 28, 2021, the court denied defendant’s motion for a new trial, which had 

alleged, in part, due process violations based on the court’s failure to order fitness evaluations at 

the bond and preliminary hearings, and which also noted that, on October 27, 2020, the court had 

entered a finding of fitness based on a IDHS report and defendant had not been present for that 

hearing. In denying the motion, the court noted that any mistakes in not ordering a fitness 
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evaluation early in the case were, essentially, remedied and did not violate defendant’s due process

rights. On December 8, 2021, the court also denied defendant’s motion to reconsider the denial of 

the motion for a new trial. While it acknowledged an initial delay in ordering a fitness evaluation, 

the court disagreed that the delay ultimately impacted defendant’s due process rights.

¶ 22 B. Sentencing

¶ 23 On December 15, 2021, the court held a sentencing hearing. The court merged the 

aggravated-assault conviction into the attempted-armed-robbery conviction. The parties agreed 

that defendant should be sentenced as a Class X offender and that the court should consider a 

defense exhibit comprised of defendant’s prison records and reflecting defendant’s history with 

mental illness, including depression, paranoid schizophrenia, and visual and auditory 

hallucinations. The State argued that the court should consider three factors in aggravation: 

defendant’s conduct threatened serious harm; his significant criminal history, which it summarized 

for the court; and the need to deter others. In part, defense counsel noted defendant’s significant 

mental health issues, as well as the fact that, with respect to threat of harm, the knife was always 

held downward and was never wielded in anyone’s direction during the events at issue. 

¶ 24 In mitigation, the court considered and weighed defendant’s history of mental illness. In 

aggravation, the court agreed with the State that three factors applied, including that defendant’s 

conduct threatened serious harm, as defendant had displayed a knife that was “larger in character” 

during the offense; defendant’s criminal history; and the need to deter others. The court noted 

defendant possessed an “extensive criminal history, including 11 prior felonies which included 10 

prior [prison] sentences, the most significant of which include a 2007 robbery for which he 

received 10 years in [prison], and in 1993 he received 19 years in [prison] for attempted murder.” 

Ultimately, although the State requested a 14-year term of imprisonment, the court sentenced 
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defendant to 9 years’ imprisonment. The court noted, “[w]hen I look at the defendant’s criminal 

history alone, a lengthy sentence would be appropriate *** but I can’t and won’t ignore the 

defendant’s psychiatric issues which I think are significant and do outweigh the factors in 

aggravation.” Defendant timely appeals. 

¶ 25 II. ANALYSIS

¶ 26 Defendant raises two issues on appeal. First, he argues that the trial court erred in either 

(1) finding him fit or (2) not deciding his fitness to stand trial after he received treatment. 

Defendant asserts that the court made no independent inquiry into his fitness and, instead, simply 

adopted the conclusion of a report finding him to be fit, “apparently without reading the report.” 

Second, defendant argues that, at sentencing, the court erred in considering threat of harm as an 

aggravating factor, because his conduct did not present a degree of harm exceeding that inherent 

in the offense of attempted armed robbery. For the following reasons, we agree with defendant on 

the first issue, and we reverse and remand for a retrospective fitness hearing. 

¶ 27 A. Restoration to Fitness

¶ 28 As to the first issue, defendant notes that the trial court either summarily adopted, or never 

adopted, the conclusion in the mental health report that he was fit for trial. Instead, the court,

based solely on the State’s representation that the report concluded defendant’s fitness was 

restored, proceeded with the case. Defendant argues that his due process rights were impacted, as 

the record does not reflect that the court affirmatively exercised any judicial discretion with respect 

to his fitness. Specifically, defendant notes that, after treatment, a hearing must be held to 

determine if a defendant has been restored to fitness and the court must make an independent, 

active inquiry into fitness and may not simply find fitness based solely on stipulations to an 

expert’s conclusion. Here, he argues, there was no stipulation that defendant’s fitness had been 
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restored, the State unilaterally informed the court that defendant had been found fit, and the court 

in an October 27, 2020, written order noted that defendant “was found fit;” yet the court never 

made any independent findings that defendant’s fitness was restored, nor does it appear that it ever 

reviewed the fitness report. Defendant requests that we vacate his conviction and remand for a 

new trial or a new determination of his fitness to stand trial. Defendant acknowledges that this 

issue was not raised below, but requests that we review it for plain error. 

¶ 29 The due process clause of the fourteenth amendment bars prosecution of a defendant who 

is unfit to stand trial. See People v. Holt, 2014 IL 116989, ¶ 51. A defendant is unfit for trial if a 

physical or mental condition prevents him or her from understanding the nature and purpose of the 

proceedings and assisting with the defense. 725 ILCS 5/104-10 (West 2018). While a trial court’s 

fitness decision is typically reviewed for an abuse of discretion, the issue is one of constitutional 

dimension and the record must reflect an affirmative exercise of judicial discretion regarding a 

fitness determination. People v. Gipson, 2015 IL App (1st) 122451, ¶ 28. Although defendant 

did not raise before the trial court the exact argument he raises here, a fitness determination 

concerns a substantial right, rendering second-prong, plain-error review appropriate. Id. ¶ 29; see 

also People v. Herron, 215 Ill. 2d 167, 179 (2005). When an error concerns a substantial right, 

prejudice is presumed. Id. at 187.

¶ 30 Section 104-20 of the Code requires the trial court, after finding a defendant to be unfit, to 

periodically review the issue of defendant’s fitness at a hearing, in which the court, sitting without 

a jury, must determine whether the defendant is fit to stand trial. See 725 ILCS 5/104-20(a) (West 

2018)). “[W]here a defendant was previously adjudicated to be unfit to stand trial, a presumption 

exists that the condition of unfitness remains until the defendant has been adjudicated to be fit at a 

valid subsequent hearing.” Id. The court must be active, not passive, when evaluating a 
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defendant’s fitness, may not solely rely on parties’ stipulations to expert conclusions that the 

defendant is fit, and may not simply “rubber stamp” an expert’s ultimate conclusion regarding 

fitness. Id.; see also People v. Contorno, 322 Ill. App. 3d 177, 179 (2001) (“The ultimate 

conclusion as to a defendant’s fitness must be made by the trial court, not the experts.”). Due 

process may be satisfied where the trial court relies not only on stipulations, but also its own review 

of the psychological report and observations of the defendant. See People v. Cook, 2014 IL App 

(2d) 130545, ¶ 15. However, it remains that,

“[I]n general, there should be a high level of judicial scrutiny in a restoration 

hearing. The constitutional ramifications and liberty interests at stake justify careful 

consideration of the expert’s opinion. Extra precautions may be needed to ensure the bases 

and grounds set forth in the expert’s report are justified and satisfactory to the court’s 

determination. A potential error in the Department’s restoration finding may subject an 

otherwise unfit person to a trial and sentencing. Because the due process clause forbids 

conviction of a defendant who is unfit to stand trial, the court should take great care to 

ensure to its satisfaction the defendant’s fitness has been restored. That is, the court should 

take steps to ensure the defendant is indeed able to understand the nature of the proceedings 

and to assist in his own defense.” (Internal citations omitted.) People v. Gillon, 2016 IL 

App (4th) 140801, ¶ 27. 

¶ 31 Here, the State disagrees that there was any error. Specifically, the State observes that, on 

October 27, 2020, it explained to the court that a psychiatric evaluation had been completed that

found defendant fit for trial. As such, it agrees that the court’s order on that date did not indicate 

that the court found defendant fit but, rather, simply served to document that a fitness finding was 

made by a mental-health evaluator. The State then asserts that the court set the matter for 
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November 24, 2020, “for further status on defendant’s fitness” and that, on that date, after “having 

received the fitness report at the previous hearing,” the court “made independent, in-court 

observations of defendant,” conducted its own assessment of him, and was satisfied that defendant 

was fit for trial as “reflected by its verifying that he was taking his prescription medication and 

that he looked and sounded ‘terrific.’ ” The State notes that the court emphasized to defendant the 

importance of continuing to take his medication and, after confirming with defendant that he 

understood his rights, the nature of the proceedings, the possible penalties, and that a public 

defender would be appointed to represent him, concluded the hearing by advising him to keep 

taking his medication and noting that he looked and sounded “terrific.” As such, the State argues, 

the court assessed defendant’s fitness based on its own questions and observations of him and 

concluded that defendant looked and sounded well before setting the matter for further pretrial 

proceedings. According to the State, there is no requirement that the court independently question 

a defendant or make express findings of fact regarding fitness. Further, the State argues that the 

court here was active in making the fitness determination and had ample opportunity to observe 

defendant. The State contends that the court’s receipt and review of the fitness report prior to the 

hearing is evidenced by its verification that defendant was taking prescription medication. The 

State concludes that, because the record demonstrates that defendant was able to consult and 

cooperate with his appointed counsel and makes no claim that he was unfit at the time of trial, the 

“fitness restoration hearing” did not offend minimal due process guarantees. We disagree.

¶ 32 Here, the court never expressly made a fitness finding. There is simply nothing in the 

record reflecting that the court reviewed the IDHS report, conducted any analysis of the report or 

the treating medical team’s conclusion of fitness, or otherwise exercised its discretion to find
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defendant fit.

2

 Nor was the court in receipt of any stipulation by the parties that an expert would 

testify consistent with the report that defendant had been restored to fitness. We question whether, 

because this case vacillated between different judges, the orders and representations to the court

that defendant had been “found fit” suggested completion of a hearing and exercise of court 

discretion that never actually happened. Be that as it may, it appears that a restoration hearing fell 

through the cracks. As a result, the record contains no court order reflecting that the court found 

defendant restored to fitness, nor that a restoration hearing was ever held. 

¶ 33 The State’s attempt to manifest into reality fitness findings and a restoration hearing that 

did not occur must fail. Indeed, the State’s arguments rely on faulty premises. For example, the 

State incorrectly reports that the court scheduled the November 24, 2020, hearing as a fitness 

hearing. This is incorrect. Rather, on October 27, 2020, the court set a November 10, 2020, date 

for a “status on fitness,” but then nothing happened on that day because defendant was not present. 

As such, the court set a November 24, 2020, date, but only for “possible appointment of PD.” 

Consistent with that designation, the eight-page transcript from the November 24, 2020, hearing 

consists almost entirely of the court explaining to defendant his rights, including to the 

appointment of counsel, and, in fact, its act of appointing counsel. The written order from that day 

2

We note that the report was signed by a psychiatric nurse, co-signed by a physician 

medical director, and submitted by a social worker, but it is not clear who performed defendant’s 

assessment. At least one court has suggested that, where the report does not make clear that the 

fitness decision was made by a licensed psychiatrist or psychologist, the court might perhaps be 

required to perform an even more thorough analysis of the fitness decision than otherwise 

necessary. See Gillon, 2016 IL App (4th) 140801, ¶ 29.
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does not reflect that the court found defendant restored to fitness; rather, it shows only that the 

public defender had been appointed and defendant had been apprised of various rights. At the 

hearing, no stipulations were made regarding the fitness report or the contents therein; indeed, the 

fitness report was not ever mentioned. The State goes to great lengths to stretch the court’s opening 

and closing pleasantries with defendant as a fitness assessment, but we must reject those efforts. 

While a court’s observations of a defendant can support a fitness finding, and while there may be 

no explicit requirement that the court question a defendant about his or her fitness or specify all of 

its reasons for finding fitness, the record typically reflects that the court’s observations and ultimate 

finding were accompanied by a review of the psychological report and/or certain stipulations by 

the parties. See, e.g., Cook, 2014 IL App (2d) 130545, ¶ 15 (court must state on the record the 

factual basis for its finding); cf. People v. Goodman, 347 Ill. App. 3d 278, 297 (2004) (no statute 

or supreme court rule requires the court to make express findings of fact regarding fitness). The 

fact remains that, here, the record does not reflect that the court ever actually made an affirmative 

finding that defendant had been restored to fitness, there was nothing indicating that it had 

reviewed the report, there were no stipulations made by the parties or evidence offered, and the

State cites no authority that the court’s observations alone reflect it exercised discretion in finding 

defendant fit. 

¶ 34 Further, while the State asserts that the record reflects that the court reviewed the report 

because it knew defendant was taking medication, this is also incorrect. It is not clear that the 

court already knew that defendant was taking medication; rather, the court asked defendant if he 

was on medication. When defendant responded that he was, the court asked him whether he was 

taking it, expressed that defendant should continue to do so, and expressed its opinion that 

defendant looked and sounded “terrific” (we note that the court’s observations of defendant’s 
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appearance and manner were attained remotely via Zoom). Therefore, it is not clear that the court 

had previously considered the report and bases for IDHS’s findings or did anything more than ask 

a few preliminary questions before proceeding with the hearing’s purpose of appointing counsel 

and explaining to defendant the charges and his rights. See e.g., People v. Scott, 2020 IL App (2d) 

180378, ¶ 20 (holding, in that case, that no bona fide doubt of fitness required a fitness hearing, 

but also rejecting the implication that comments by a court at a status hearing that defendant had 

been found fit somehow constituted a fitness hearing; “that reading overinterprets the comments”; 

rather, the court found that counsel and the court had simply remarked that the psychologist had 

found the defendant fit, and “there was no suggestion that the trial court was itself making an 

affirmative finding of fitness[.]”). Moreover, as noted, until the contrary is shown, the presumption 

at a restoration hearing is that the defendant is unfit, and, so, the question here is whether the trial 

court could rule out the possibility that defendant was still unfit. See Gipson, 2015 IL App (1st) 

122451, ¶ 36. On this record, we cannot conclude that defendant’s succinct answers to the court’s 

questions at the November 24, 2020, hearing, could adequately rule out the possibility that he 

remained unfit. Indeed, in September 2019, the same trial judge found defendant’s answers to 

similar questions were appropriate, lucid, and did not implicate his competency; yet, at that same 

hearing, the State, jail personnel, and defendant’s family had expressed a bona fide doubt as to 

fitness. In fact, shortly thereafter, a different judge ordered a fitness evaluation and defendant was 

found unfit. Thus, on this record, that defendant could again appropriately respond when the judge 

explained to him his rights does not eliminate the possibility that defendant remained unfit.3

3

We again note that, shortly before trial, defendant’s counsel expressed concern about 

defendant’s lucidity and physical symptoms.
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¶ 35 In sum, there was error in that defendant was tried without any court finding of restored 

fitness. Historically, denial of a proper fitness hearing resulted in a reversal and remand for a new 

trial; however, the norm has shifted to retrospective fitness hearings, rather than automatic 

reversal. See, e.g., People v. Payne, 2018 IL App (3d) 160105, ¶¶ 11-14. Here, defendant’s trial 

and sentence occurred roughly 12 to 18 months ago (i.e., trial commenced July 2021; sentencing 

in December 2021), and it is possible that there remains sufficient evidence from, and knowledge 

contemporaneous to, defendant’s trial for the court to conduct a retrospective fitness hearing. At 

that hearing, the parties may present testimony from the experts who evaluated defendant and 

found him fit and/or may consider any stipulations that are appropriate. If the court determines 

that the evidence is inconclusive or suggests that defendant was unfit, defendant is entitled to a 

new trial. See Gipson, 2015 IL App (1st) 122451, ¶ 38. However, if the court determines at the 

retrospective fitness hearing that defendant’s fitness at his prior trial can be “accurately assessed 

and confirmed, his conviction may be affirmed.” Id.; see also Cook, 2014 IL App (2d) 130545, ¶ 

22. 

¶ 36 B. Sentencing

¶ 37 Defendant also argues that the court erred in considering in aggravation a factor inherent 

in the offense of attempted armed robbery. Specifically, he contends that the court explicitly 

considered aggravating that his actions caused a threat of harm, in that, during the crime, he 

displayed a large knife, but defendant argues that this was error, because a threat of force is already 

inherent in the offense of attempted armed robbery. Accordingly, defendant argues that the court’s 

consideration of this factor constitutes a double enhancement, warranting a new sentencing 

hearing. In addition, he notes that the court clearly relied on the factor in aggravation but did not 

elaborate or discuss the gravity of the conduct that would warrant its consideration in aggravation 
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and, indeed, where the weapon was simply displayed, but not otherwise brandished, the evidence 

did not reflect conduct sufficiently grave to distinguish it from a typical attempted armed robbery. 

Defendant acknowledges that, when it can be determined on the record that the weight placed on 

the improper factor was insignificant, remand is not required. However, he disagrees that such is 

the case here, where the court’s comments do not reflect how much weight it placed on the 

improper factor. Defendant requests that this issue be reviewed for plain error, as it was not raised 

below, and asserts we may reverse under either prong of the plain-error analysis.

¶ 38 The State responds that there was no error and no second-prong plain error.4 It asserts that 

the court did not consider defendant being armed and the threat of harm as an aggravating factor, 

so much as it properly considered the nature and circumstances of the offense. Specifically, the 

State notes that, when determining the length of a sentence within the sentencing range, “the trial 

court may consider as an aggravating factor the degree of harm, as well as the manner, seriousness, 

nature, and circumstances of the offense, even where that harm is arguably implicit in the offense 

of which the defendant is convicted.” People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). As 

such, the State contends that the court properly considered the circumstance that defendant was 

armed with a large knife “in the context of being a previously convicted violent offender with 

convictions for robbery and attempted murder. The record shows that defendant’s aggressive 

temperament while armed with a large kitchen knife, as opposed to a smaller blade, made the 

situation not simply dangerous, but potentially deadly. This was not a situation where a person 

without a criminal history became upset in a bank.” The State further notes that, while displaying 

4

The State mistakenly responds that defendant requests review under only the second plainerror prong; defendant’s opening brief does, in fact, request review under both prongs.
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the large knife, defendant threatened the banker that he should not “fuck” with defendant, 

circumstances not inherent in the offense and constituting factors the court properly found 

aggravating. Finally, the State notes that defendant received an “extremely light sentence” for 

someone with his extensive criminal history, as the court properly considered in mitigation his 

mental health issues, and, thus, the record demonstrates that the weight placed upon the threat of 

serious harm was so insignificant that it did not lead to a greater sentence. The State concludes 

that, when determining whether the court based its sentence on proper aggravating and mitigating 

factors, we should consider the record as a whole, rather than focusing on a few words or 

statements, and it concludes that no plain error overcoming forfeiture occurred here. 

¶ 39 Preliminarily, we note that defendant is correct that, although he is raising this issue for the 

first time on appeal, we may review it for plain error. Sentencing errors are reviewable for plain 

error where: (1) the evidence was closely balanced (first prong); or (2) the error was so serious

that it deprived the defendant of a fair sentencing hearing (second prong). See, e.g., People v. 

Piatkowski, 225 Ill. 2d 551, 565 (2007); People v. Ahlers, 402 Ill. App. 3d 726, 734 (2010); see 

Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The second prong “is potentially present here, because 

when a trial court considers erroneous aggravating factors in determining the appropriate sentence 

of imprisonment, the defendant’s ‘fundamental right to liberty’ is unjustly affected, which is seen 

as serious error.” (Citation omitted.) People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 7. Under 

either prong, the burden of persuasion rests on the defendant. People v. Walker, 232 Ill. 2d 113, 

124 (2009). If the defendant fails to meet his or her burden, we must honor the forfeiture or 

procedural default. Id. The first step in any plain-error analysis is to determine whether error 

occurred. Id. at 124-25. 
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¶ 40 Generally, the imposition of a sentence rests within a trial court’s discretion, there exists a 

strong presumption that the court based its sentencing determination on proper legal reasoning, 

and we review that decision with great deference. See, e.g., Abdelhadi, 2012 IL App (2d) 111053, 

¶ 8. The presumption is overcome only by an affirmative showing that the sentence imposed varies 

greatly from the purpose and spirit of the law or manifestly violates constitutional guidelines. Id. 

However, we review de novo the question of whether a court relied on an improper sentencing 

factor. Id. In fashioning a sentence, a trial court may not consider an improper aggravating factor

(see, e.g., People v. Higgins, 2016 IL App (3d) 140112, ¶ 29), such as a factor implicit in the 

offense, as dual use of a single factor constitutes double enhancement (see, e.g., Abdelhadi, 2012 

IL App (2d) 111053, ¶ 9). Nevertheless, even despite a court’s consideration of an improper factor, 

we may affirm a sentence if the record reflects that the weight the court placed on that factor was 

so insignificant that it did not result in a greater sentence. People v. Heider, 231 Ill. 2d 1, 21 (2008). 

¶ 41 Here, we agree with defendant that the court considered an improper aggravating factor, 

namely, that his possession of a large knife during the offense threatened serious harm. 

Specifically, defendant was convicted of attempted armed robbery, i.e., having taken a substantial 

step towards committing armed robbery. See 720 ILCS 5/8-4 (West 2020). A person commits the 

offense of armed robbery when he or she, while carrying on or about his or her person or otherwise 

armed with a dangerous weapon (other than a firearm), knowingly takes property from the person 

or presence of another by the use of force, or by threatening the imminent use of force. See 720 

ILCS 5/18-1(a), 18-2(a)(1) (West 2020). Thus, as defendant points out, a threat of serious harm 

by a weapon is inherent in any attempted armed robbery, as it must be committed while armed 

with a dangerous weapon and by using force or threatening force. See, e.g., People v. Flanery, 

229 Ill. App. 3d 497, 502 (1992) (remanded for a new sentencing hearing after the trial court found 
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in aggravation that the defendant’s offense threatened serious harm, where he committed an armed 

robbery with a gun because “the evidence presented showed nothing more than the defendant 

committed a robbery using a dangerous weapon; an element present in every armed robbery”). As

defendant notes, other than mentioning that the knife was large in character and defendant’s mere 

possession of it, the court here did not elaborate on how the factor was aggravating to a degree 

beyond that inherent in the offense. See Abdelhadi, 2012 IL App (2d) 111053, ¶ 14. And we must 

reject the State’s argument that the court did not consider the threat of harm as an aggravating 

factor but, instead, properly considered it merely as a circumstance of the offense. In this case, 

the court expressly accepted and mirrored the aggravating factors urged by the State, and it stated 

that it was considering the threat of serious harm as an aggravating factor. Id. ¶¶ 12, 14, 16

(noting, “the mirroring between the factors the State argued in aggravation and the factors used by 

the trial court in sentencing shows that there was, in fact, reliance by the trial court on the implicit 

factor” and distinguishing the court’s reliance on the improper factor, with no discussion of the 

degree or gravity of the defendant’s conduct, from cases where courts engage in such a discussion 

to properly consider the nature and circumstances of the offense); see also Dowding, 388 Ill. App. 

3d at 944 (where the court “expressly stated” that a factor inherent in the offense was an 

aggravating factor upon which the sentence was based, it did not merely consider it as a 

circumstance of the offense). 

¶ 42 Thus, we conclude that the trial court here improperly considered the threat of serious harm 

as an aggravating factor, as it was inherent in the offense. However, we also conclude that a new 

sentencing hearing is not necessary, because the weight, if any, the court placed on that improper 

factor was insignificant. When determining whether a court has afforded significant weight to an 

improper factor such that a remand for resentencing is required, we consider whether: (1) the court 
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made “dismissive or emphatic comments in reciting its consideration of the improper factor;” and 

(2) the sentence was “substantially less than the maximum sentence permissible by statute.” 

Abdelhadi, 2012 IL App (2d) 111053, ¶ 18. Here, when reciting its consideration of the threat of 

serious harm, the court made only short comments, which were neither dismissive nor emphatic; 

indeed, it simply stated that it considered it in aggravation. If this were the only aggravating factor 

the court mentioned, we might not be able to discern how much weight it placed on the improper 

factor. But we are to consider the record as a whole (see, e.g., Dowding, 388 Ill. App. 3d at 942) 

and remain mindful that the court did emphasize another aggravating factor. Specifically, the court 

stated it was considering in aggravation defendant’s significant criminal history, it detailed that 

history, and emphasized that that factor alone justified a lengthy sentence. Nevertheless, and as 

relevant to the second consideration mentioned above, it found even that aggravating factor was 

outweighed by the mitigating evidence, namely, defendant’s mental-health history. Defendant 

concedes that the court emphasized his criminal history but suggests that it remains unclear the 

weight the court placed on the improper inherent factor, since it found the criminal history 

outweighed by the mitigating evidence. We disagree. Viewed in full context, where the court 

emphasized defendant’s criminal history as “alone” warranting a lengthy sentence, but then 

decided not to impose one, we cannot find that its reliance on the improper factor was anything 

but minimal. Indeed, the court imposed a 9-year sentence, which was only 3 years above the 

minimum and was substantially less than the 30-year maximum sentence for which defendant was 

eligible, given that he was being sentenced as a Class X offender. As such, on this record, we 

conclude that the weight, if any, that the court placed on the improper factor was insignificant. 

Accordingly, there is no plain error and we honor the procedural default. If, at his retrospective 

fitness hearing, defendant is found to have been fit for trial, his sentence stands.
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¶ 43 We note, however, that consistent with this decision, if defendant at his retrospective 

fitness hearing is ultimately found to have been unfit for trial, is later found fit and is re-tried, 

convicted, and subject to a new sentencing hearing, the sentencing court should be mindful not to 

consider in aggravation factors inherent in the offense. 

¶ 44 III. CONCLUSION

¶ 45 For the reasons stated, the judgment of the circuit court of De Kalb County is reversed and 

the case is remanded for further proceedings consistent with this decision. 

¶ 46 Reversed and remanded.