## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Beeler, 2012 IL App (4th) 110217

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MARCUS BEEL ER, Defe ndant-Appe llant.

District & N o. Four th District Docke t No. 4-11-0217

Argued Filed May 8, 2012
J une 12, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Following a stipulated ben ch t ri al in which defe ndant was found not guilty of first degree murder by rea son of insanity
, the trial court enter ed

an order fi nding defe ndant in need of mental-he alth service s on an inpatient basis in a secur e setting and that order was aff irmed on appea l, wh ere the require d admission hearing was held, the requisite find i n gs

wer e made, the use of stipulations did not “wa ive” the hearing and there was nothingunrea sonable or ir rational a bout defe nse counse l’s strategy with reg ard to the use of sti p u l at i ons rathe r than live testimony
, which could have been mor e har mful to defenda

nt.

Dec ision Under Review Appea l from the Circuit Court of Sang amon County
, No. 09-CF- 978; the Hon. J ohn W. Belz, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l V e r o n iq u e Ba ker, of Guar dianship & Advoca cy Commi s s io n , o f Ch ic a g o , and Ba rbar a A. Goebe n (argued), of Guar dianship & Advoca cy Commi ssion, of Alton, for appe llant.

J ohn Milhiser, State’s Attorney
, of Spring field (Patric k Delfino, Rober t J

. Bide rman, and David E. Mannche n (ar gued), all of S tate’s Attorn ey s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel PRES IDI NG J USTI CE TURNER deliv er ed t he judgme nt of the court, with opinion.
J ustices McCullough a

nd Cook concurr ed in the judgment and opinion.

OP INION

¶ 1 I n No v em b er 2010, the trial court found defe ndant, Marc us E. Be eler
, not guilty b y

rea son of insanity (NGRI ) of first degree murder following a stipulated bench trial. In Marc h 2011, the court found defe ndant was in need of mental-he alth service s on an inpatient basis in a sec ure se tting. ¶ 2 On appea l, defe ndant argues (1) his due-pr ocess rights wer e violated at the commitment hearing a nd (2) he was de nied the ef fec tive assistance of counse l. We affirm.

¶ 3 I . BA CKGROUND ¶ 4 In November 2009, the State charg ed defe ndant by information with one count of attempt (first d egr ee murder) (count I ) (720 I L CS 5/8-4(a)
, 9-1(a)(1) (West 2008)), one count of
ag g ravated battery (count I I ) (720 I L CS 5/12-4(a) (West 2008)), and t h re e counts of first degree murder (counts I I I
, IV, and V) (720 I L CS 5/9-1(a) (1) (West 2008)). In Marc h 2010, the trial cour

t found defe ndant fit to stand trial. ¶ 5 In November 2010, the cause came befor e the trial court in a stipulated bench trial. Both parties stipulated to the psychiatric repor ts of Dr. Terr

y Killian. Upon questioning from the court, defe ndant stated he was 43 year s old, had attended 31⁄2 year s of colleg e, and could rea d, write, and understand Eng lish. Def endant also stated he was taking medications but they did not affe ct his ability

to understand the pr ocee dings. A fter the State indicated it would only
proce ed on count V, defe ndant indicated he understood the charg e and the possible penalties. He also indicate d h e understood the rights he would be waiving by utiliz ing the stipulated bench tr ial. ¶ 6 The State indicated its evidenc e would show Albert Gre en was found lying outside in a
yard on November 13, 2009, “with his head i n a larg e amount or pool of blood.” An

-2-eyewitness would testify defe ndant beat Gre en with a table leg

. Gre en died the next day due

t o massive head trauma. Def ense counsel stipulated the psychiatric evidenc e woul d s h o w defe ndant was not guilty

by rea son of insanity

. ¶ 7 The trial court enter ed an NGRI findi n g as t o t h e o ffe nse of first degree murder. T he
court noted Dr. Killian’s opinion that, at the time of Gre en’s death, defe ndant was suffe ring from a sever e psychotic episode with marke d para noia and manic features that rende red him incapa ble of ap p re ciating t he criminality of hi s conduct. The court remanded defe ndant t o the Depa rtment of Human Service s (DHS) for an evaluation to deter mine whether defe ndant was in nee d of mental-he alth service s. ¶ 8 In Marc h 2011, the trial court held a hearing pursuant to section 5-2-4( a) of the Unified Code of Correc tions (Unified Code) (730 I L CS 5/5-2-4(a ) (West 2008)). There in, the State and defe nse counsel stipulated to a DHS repor t that found defe ndant was in need of inpatient mental-he alth service s. The court agree d with the stipulation, finding defe ndant was in need of mental-he alth service s on an inpatient bas is in a secur e setting. The court rema nded defe ndant to DHS. This appea l followed.

¶ 9 I I . ANALYSI S ¶ 10 A. Jurisdiction ¶ 11 Initially
, defe ndant cont e n d s th is c o u rt has jurisdiction to consider his appea l even though he wa s found not guilty

by rea son of insanity . We agree

. ¶ 12 Our supreme court has held an NGRI fin d i n g i s eq u ivalent to an acquittal. People v

. Harrison
, 226 I ll. 2d 427, 439, 877 N.E.2d 432, 438 (20 0 7 ). As such, it is not subject to appellate revie w. Harrison
, 226 I ll. 2d at 441, 877 N.E.2d at 440. Howeve r, an NGRI defe ndant may still challeng e the fi n d i ng that he is in need of inpatient mental-he alth service s. Harrison
, 226 I ll. 2d at 439, 877 N.E.2d at 438. Here , defe ndant is not appea ling the NGRI finding

. Instead, he is cha lleng ing the Marc h 2011 commitment order. Thus, we have jur isdiction to hear the a ppeal.

¶ 13 B. Commitment Hear ing f or an N GRIDef

endant ¶ 14 Def

endant argues the trial court failed to conduct a h ea ri n g i n t h i s ca se or err ed in waivingthe hea

ring . We find defe ndant’s cla im without m erit. ¶ 15 I f a trial court fi n d s a d ef en d an t n o t guilty by rea son of insanity
, DHS is require d to evaluate the defe ndant to deter mine if he is in need of mental-he alth service s. 730 I L CS 5/5- 2-4(a ) (West 2008). The court i s t h en require d to hold a hearing “pursua nt to the Mental Hea lth and Deve lopmental Disabilities Code [(Mental Hea lth Code)] to deter mine whether the defendant is subject to involuntary admission.” 725 I L CS 5/115-3(b) (West 2008); see also 730 I L CS 5/5-2-4(a) (West 2008) (stati ng the court is to deter mine whether the defe ndant is in need of mental-he alth service s on an inpatient or outpatient basis or none at all). The c ourt is require d to enter its finding s. 730 I L CS 5/ 5-2-4( a) ( West 2008). ¶ 16 Def

endant’ s claim that no admission hearing was held in this case or that the trial court waived the hearing is without merit. On Marc h 9, 2011, the court held “a further hearing afte r

-3-a finding of not guilty by rea son of insanity .” An assistant State’s Attorney appea red as did defe ndant and his c ounsel. No one “wa ived” the hearing. The court did not preve nt a nyone from proce eding in a manner of his or her choosing

. Instead, a hearing took pla ce in which

a stipulation was enter ed as to the evidenc e the court was to consider in making its decision. Ba sed on the Februa

ry 15, 2011, repor

t and the stipulation of the parties, the court enter ed its written order and found defe ndant to be a person in need of mental-he alth service s on an inpatient basis i n a secur e setting. Acc ording ly
, we find the court held the hearing and
enter ed the r equisite finding s.

¶ 17 C. St ipulation ¶ 18 Def

endant also arg

ues the State’s case cannot be based s o l el y o n a s tipulation. W e disagree

. ¶ 19 “A stipulation is an agree ment betwee n litigants or their attorney s with respe ct to an issue befor e the court.” People v. Carodine
, 374 I ll. App. 3d 16, 27, 869 N.E.2d 869, 880 (2007). Courts look favor ably upon stipulat i o n s “because ‘ “they tend to promote dispositi on of

case s, simpli fication of issues[,] and the saving of expense to litigants.” ’ [C itation.] ” People v. W oods , 214 I ll. 2d 455, 468, 828 N.E.2d 247, 256 (2005). ¶ 20 De fe n d an t ar gues neither the Mental Hea lth Code nor the Unified C o d e co n t ai n s provisions for the stipulation of all the evidenc e. We note section 3-807 of the Mental Hea lth Code (405 I L CS 5/ 3-807 (West 2008)) pr ovides as follows:
“No responde nt may be found subject to involuntary admissi o n u n l ess at least one psychiatrist, clinical social worke r, or clinical p sycholog ist who has examined him testifies in person at the hearing. The responde nt may waive the require ment of the testimony subject to the appr oval of the c ourt.” The languag e of the statute ca n be read a s permitting the use of a stipulation to present the expert’s opinion in lieu of live testimony

. T h e u s e o f s tipulations does not “wa ive” the hearing, and it does nothing to encour ag e p ar t i es to waive their right to a hearing, as defe ndant argues. See People v. Johnson
, 2012 I L App (5th) 070573, ¶ 24, 2012 WL 340287 (stating a stipulation to the doctor’s rep o rt in lieu of live testimony did not constitute “a waiver of the e ntire hea

ring ”).

¶ 21 D. Due- Process Admonitions ¶ 22 Def

endant arg

ues the stipulation enter ed into in this case was tantamount to a guilty plea and the trial court err ed in failing to admonish him ab o u t t he right to confr ont witnesses
ag ainst him. W e disagree

. ¶ 23 In support of hi s contention, defendant relies on I l l inois Supreme Court Rule 402 (ef f. J uly 1, 1997) as well as sever al criminal decisions by the supreme court. Supreme Court Rule 402 require s admonishments by the trial court in “hea ring s on pleas of guilty
, or in any case in which the def

ense of fer s to stipul ate that the e videnceis sufficient to convict.” ¶ 24 In considering a stipulation, the supreme court has noted “def ense counsel may waive a defe ndant’s right of confr ontation as long as the defe ndant does not object and the decision

-4-to stipulate is a matter of trial tactics and strategy .” People v. Campbell
, 208 I ll. 2d 203, 217,

802 N.E.2d 1205, 1213 (2 0 0 3 ). The court “car ved a limit ed ex ception to this g ener al rule, howeve r, wher e a stipulation is t h e p ra ct i cal equivalent of a plea of guilty
, holding that ‘def ense counsel cannot stipulate to fac ts which establish the guilt of the acc used beca use the constitutional right implicated in that situation is the right of a defe ndant in a criminal case to plead not guilty .’ ” People v. Clendenin
, 238 I ll. 2d 302, 319, 939 N.E.2d 310, 320 (2010) (quoting Campbell
, 208 I ll. 2d at 219, 802 N.E.2d at 1214). The court went on to state “that depar ture from the g ener al rule that defen s e co u nsel may waive a defe ndant’s right of confr ontation is war

rante d only in those instances wher e: (1) the State’s en t i re case is
prese nted by stipulation and defe ndant fails to p re s er v e a defe nse; or (2) the stipulation

conce des the sufficie ncy of the evidenc e to support a conviction.” (Emphasis i n o ri g inal.) Clendenin
, 23 8 I l l

. 2d at 319, 939 N.E.2d at 320 (citing Campbell
, 208 I ll. 2d at 218, 802 N.E.2d at 1213). Acc ording ly
, a defe ndant “must be p er s o n ally admonished about a stipulation and must persona lly agree to it.” Clendenin
, 238 I ll. 2d at 319-20, 939 N.E.2d at 320-21. ¶ 25 In contra st to the cited case s, this case does not involve a guilty plea to criminal charg es. See Johnson
, 2012 I L App (5th) 070573, ¶ 15, 2012 WL 340287. Instead, it involves a civilcommitment proce eding to deter mine whether defe ndant was in n ee d o f mental-he alth service s on an inpatient or outpatient ba sis. Thus, Rul e 402 does not a pply

. ¶ 26 We find support that Rule 402 does not apply in these situations by looking at our prior decision in People v. Bramlett
, 329 I ll. App. 3d 286, 767 N.E.2d 961 (2002). In that case , the defe ndant argued the trial court erre d in allowing him to stipul ate to evidence establishing him as a sexually dang erous person without admonishing him pursuant to Rule 402 to deter mine the voluntariness of his stipulation. Bramlett
, 329 I ll. App. 3d at 289, 767 N.E.2d
at 964. This court noted a proce eding under the Sex ually Dang erous Persons Act (725 I L CS 205/0.01 to 12 (West 1998)) is civil in nature , as it seeks the commitment of sexually d an gerous persons for treatment rathe r than for punishment. Bramlett
, 329 I ll. App. 3 d at 290, 767 N.E.2d at 964-65. There fore
, Rule 402 did not apply

. Bramlett
, 329 I ll. App. 3d at 290, 767 N.E.2d at 965. Moreove r, we found “ther e is no constitutional require ment that the trial court g ive admonishments to defe ndant to deter mine the voluntariness of a stipulation.” Bramlett , 329 I ll. App. 3d at 292, 767 N.E.2d at 966. ¶ 27 I n P eo

p l e v. P em b r o ck
, 23 I ll. App. 3d 991, 996, 320 N.E.2d 470, 474 (1974), the defe ndant in a sexually -dang erous- persons proce eding argued he was denied his right to confr ont witnesses ag ainst him when his attorney stipulated to the admission of psychiatric
repor ts

. T h e First District found due proce ss was not violated with the stipulation to the admission of the repor

ts into evidenc e. Pembrock
, 23 I ll. App. 3d at 997, 320 N.E.2d at 475. The appellate court also found Rule 402 admonitions wer e not require d and stated as follows: “[W ]e do not believe that other el em en t s o f the criminal proce ss, such as admonitions
reg arding a right t o a jury trial, a right t o appea l and the conseque nces of a guilty plea,

are also constitutionally require d as has been contende d b y defe ndant. We have noted above that the require ments of due pr ocess are not static but may vary dependingupon the nature of the interests involved. Whil e both the civ i l p ro ce edings in question and criminal prosec utions may result in a loss of liberty
, substantial differ ence s exis t betwee n

-5-them. For emost among these are that in a commitment under the Act there is no infere nce of moral blamewor

thiness since a finding of sexual dang erousne ss indicates that a defe n d an t ’s i nability to confor m to the dictates of the law is the product of a mental illness and, secondly
, commitment u n d er the Act, unlike criminal incar cer ation, is not intended as punishment. Thus our s up reme court has specific ally reje cted defe ndant’s
arguments reg arding jury trial admonitions [citation] and right to appea l [citation]

. Moreove r, since commitment under the Act does n o t co nstitut e a criminal conviction, Supreme Court Rule 402 [citation] does not apply .” P em b r o ck
, 2 3 I ll. App. 3d at 995, 320 N.E.2d at 473-74.
A simil ar result is appropriate in this ca s e. L i k e the Sex ually Dang erous Persons Act, the commitment of a defe ndant found NGRI is a civil proce eding

. A defe ndant in an NGRI
proce edinghas bee n found not guilty of committing the of

fensefor a

particula r re ason. As

an NGRI finding is an acquittal, punishment for a criminal conviction would be inappropriate. Thus, comm itment is not intended as punishment for a crime but rathe r as commitment for mental-he alth rea sons. Acc ording ly
, Rule 402 does not apply and a defe ndant need not be admonished befor e a stipulation as to the evidenc e can be used in an NGRIproce eding

. ¶ 28 M o re o v er, we note defe ndant did not stipulate he was subject to hospita l i z at i o n fo r mental-he alth treatment under the Unified Code. The only stipulation was to the DHS repor t and its conclusion that defe ndant was in need of inpatient m en t al -h ealth service s. No stipulation was entered as to the l eg al conclusion that the re quirements of section 5-2-4 of the Unified Code had been s at i s fi ed or that defe ndant was in need of inpatient treatment. Instead, it was f

or the trial c ourt to decide based on the stipulated evidenc e. ¶ 29 Def

endant also argues that, if the stipulation was allowed in the commitment hearing, it was inadequate beca

use i t was not reduc ed to wri ting. However
, the parties indicated they

wer e stipulating to the contents of the DHS repor t da ted Fe bruar

y 15, 2011, wher ein it wa s found defe ndant was in need of inpat i en t mental-he alth service s. This was sufficie nt to inform the trial court of the terms of the stipulation such that it could make an informed decision as to whe ther de fenda nt was in nee d of inpatient ser vices.

¶ 30 E. Assistance of Counsel ¶ 31 Def

endant argues defe nse counsel failed to eng ag e in any adver sarial testing of whether he met the criteria for inpatient treatment and thus defe ndant rec eived ineffe ctive assistance of counse l. We disagr ee. ¶ 32 Acc ording to se ction 5-2-4( c) of the Unified Code ( 730 I L CS 5/ 5-2-4( c) (West 2008) ), “[e]very defe ndant acquitted of a felony by rea son of insanity and subsequently found to be in need of mental health service s shall be repr esente d by counsel in all proce eding s under this Section and under the Mental Hea lth and Deve lopmental Disabilities Code.” The section “re quires that ever

y insanity acquittee who is involuntarily committed to a mental health fac ility be vigor ously repr esente d by counsel.” People v. Shelton
, 281 I ll. App. 3d 1027, 1037, 667 N.E.2d 56 2
, 5 6 9 (1 996) (whe re an NGRI defe ndant raised an alleg ation of the ineffe ctive assistanc e of c ounsel).

-6-¶ 33 Clai m s o f i n ef fe ct i v e assistance of counsel are g overne d by the standard set forth in Strickland v. W

ashington
, 466 U.S. 668 (1984). Shelton
, 281 I ll. App. 3d at 1036, 667 N.E.2d at 569. “To prevail on a claim of i neff ective assistance of counsel, a defe ndant m ust show both that counsel’s perf

ormanc e was defic ient and that the defic ient perf ormanc e prejudice d the defe ndant.” People v. Petrenk o , 237 I ll. 2d 490, 496, 931 N.E.2d 1198, 1203 (2010). To establish defic ient perf

ormanc e, the defe ndant must show his attorney ’s p er formanc e fell below an objective standard of rea sonablene ss. People v. Evans
, 209 I ll. 2d 194, 219-20, 808 N.E.2d 939, 953 (2004) (citing Strickland
, 466 U.S. at 687) . Prejudice is esta blished when

a rea sonable probability exis ts that, but for counsel’s unprofe ssional err ors, the result of the
proce eding would have been differ ent. Evans
, 209 I ll. 2d at 219-20, 808 N.E.2d at 953 (citing Strickland
, 466 U.S. at 694). A defe ndant must satisfy both prong s of the Strickland standard, and the failure to satisfy either prong prec ludes a finding of ineffe ctive assistance of counsel. Clendenin , 238 I ll. 2d at 317-18, 939 N.E.2d at 319. ¶ 34 In making his argument that counsel ’ s p e r f o r ma n c e w a s defic ient, defe ndant ag ain claims

no hearing was held beca

use of the stipulation. As stated, we disagree with the argument that

no hearing was held. Moreove r, the u s e o f a stipulation does not establish ineffe ctive assistance of counse l. ¶ 35 “In as s es sing counsel’s perf ormanc e, the revie wing court must indul ge i n a s tro n g presumption that counsel’s conduct fell into a wide rang e of rea sonable repr esentation, and the defe ndant must overc ome the presumption that, under the circ umstances, the challeng ed action might be considere d sound trial strategy .” People v. Clouti er , 191 I ll. 2d 392, 402, 732 N.E.2d 519, 525 (2000). “To overc ome this strong presumption, defe ndant mu s t d e monstrate trial counsel’s d ecision was so unrea sonable and irrational that no rea sonably eff ective defe nse attorney fac ed with simil ar circ umst ances would pursue that strategy .” People v. Mabry , 398 I ll. App. 3d 745, 751, 926 N.E.2d 732, 738 (2010). ¶ 36 We find nothing unrea sonable or irratio n a l w it h c o u nsel’s strategy here

. It was re asonable
to use the stipulation rathe r than prese nt live testimony from the psycholog ist, whic h could
prove to be more harmful to defe ndant than the sterile evaluation and rec ommendation. See People v. Phillips
, 217 I ll. 2d 270, 284, 840 N.E.2d 1194, 1203 (2005) (“A s a matter of trial strategy , defe nse counsel might choose to stipulate to evidenc e in an eff ort to minimi ze the adver se impact it will have at trial.”). Def endant has failed to establish counsel’s perf ormanc e fe ll below an objec tive standard of rea sonablene ss. ¶ 37 Moreove r, even if co u n s el ’s perf ormanc e could be considere d substandard, de fenda nt cannot show he was prejudice d such that th e re s u l t of the proce eding would have been differ ent. The Fe bruar

y 15, 2011, repor

t indicated defe ndant was 43 y ea rs old and had 43 prior admissions to various hospitals since 1987. The repor t established defe ndant had been diagnosed with schizoaffe ctive disorder, bipolar ty pe; a history of poly substance abuse (alc ohol, coca ine, and canna bis); and antisocial p er s o nality disorder. The repor t indicated defe ndant was at risk beca use of his psychotic sy

mptoms, hi s history of hallucinations and delusions, his poor insight into his illness and need for treatment compliance
, his history of
ag g ression, his felony history
, and his history of substance abuse. The repor t a lso indicated defe ndant was “unlikely to comply with treatment outside of this st ru ctu re d treatment setting.” The repor

t opined defe ndant was in need of mental-he alth service s on an inpatient

-7-basis and should be plac ed in the custody of DHS in a sec ure se tting. ¶ 38 Ba sed on the DHS repor t, the trial court would not have enter ed a differ ent judgme nt had the rep o rt been prese nted through the testimony of Dr. David Gilliland, the clinical
psycholog ist who authored the repor t. T he evidenc e clea

rly showed de fenda

nt was in nee d of mental-he alth serv i ce s on an inpatient basis. As the result of the proce eding would not have chang ed had defe nse counsel called Dr. Gilliland to testify
, defe ndant cannot establish counsel wa s ineffe ctive.

¶ 39 I I I . CONCLUSI ON ¶ 40 For

the re asons stated, we aff irm the trial cour

t’s judgme nt.

¶ 41 Affir

med.

-8-