## 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 . Holt, 2013 IL App (2d) 120476

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MARY M. HOL T, Def

endant- Appellant.

District & N o. Second District Docke t No. 2-12-0476

Filed October 29, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y 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

. ) Def endant’ s appea l from a hearing finding that she was unfit to stand trial

on char g es of resisting a peac e office r was rende red moot by the finding during the pendenc y of the appea l that defe ndant was fit to stand trial, but the merits o f t h e appeal alleg ing that her counsel at the hearing was ineffe ctive in failing to advocat e h er p o sition that she was fit would be considere d under the exception applicable when the stigma of the finding of unfitness could return to haunt defe ndant in later proce eding s or other parts of her life, and in defe ndant’s case , her counsel was not ineffe ctive in exercising his profe ssional judgme nt by reje cting her desire to be found fit and arguing for a fi n d i n g of unfitness in order to protec t her rig ht to due proc ess.

Dec ision Under Review Appea l from the Circuit Court of Kenda ll County
, Nos. 10-CM-1186, 11- CM-562; the Hon. J ohn A. B arsa nti, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and R

. C hristopher Whit e, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Eric C. Weis, State’s Attorney
, of Yorkville (L awr ence M. Ba uer and J ay Paul Hoffma

nn, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Hutchinson and Spence concur red in the judgme nt and opinion.

OP INION

¶ 1 This appea l arises from an order of the circ uit court of Kenda ll County finding defe ndant, Mary M. Holt, unfit to stand trial on char g es of resisting a peace office r (720 I L CS 5/31-1 (West 2010)), disorderly conduct (720 I L CS 5 /2 6

- 1 ( a) ( 1 ) ( We s t 2 0 10)), and criminal trespass to a residence (720 I L CS 5/ 19-4(a )(1) (West 2010)). The trial court entered the order afte r g ranting a motion by defe ndant’s attorney for a direc t ed v er d ict in a fitness hearing held befor e a jury

. Def

endant contends that her position during the proceeding s below was that she was fit. She argues on appea l that, beca use her attorney failed to advocate that position, she wa s deprived of

the ef fec tive assistance of counse l. We affirm. ¶ 2 Def

endant was initially char g ed wi t h resisting a peac e office r and disorderly conduct. Those charg es aro s e from an incident that occur red in November 2010. In Fe bruar y of t he following y ear , defe ndant enter ed a neg otiated guilty plea to the char g e of resisting a peac e office r, and the other char g e was nol-prossed. Def endant was sentenc ed to a 12-month term of probation. Def

endant succe ssfully moved to withdraw her plea, asser ting that her privately
ret ained attorney had misinformed her that her plea would not result in a conviction. Def endant’ s attorney was g iven leave t o wi thdraw and the office of the Kenda ll County public defe nder was appointed to repr esent defe ndant in the proce eding s that ensued. In J une 2011, defe ndant was char g ed with crimi n al trespass to a residenc e. Shortly there afte r, howeve r, the State advised the trial court that there was a bona fide doubt as to defe ndant’s fitness to stand t ri al

. De fenda nt was order ed to submit to a fitness evaluation. Def endant

unsucce ssfully moved, pro se , to vacate that order

. In her motion, defe ndant argued that there

was no “nec essity or basis” for the order

. She asser ted that she was “a College Degree d Gra d and CURRENT Certified Educ ator in I llinois ; able to manag e cour t proce eding s.” ¶ 3 Def

endant’ s fitness hearing took place on April 16, 2012. During its opening argument, the State advised the jury that it was the S t at e’ s b u rd en to prove that defe ndant was fit to stand trial. The State conce ded that it would be unable to m ee t that burden. The State
prese nted the testimony of Timothy Br own, the clinical psycholog ist wh o supervised

-2-defe ndant’s fitness evaluation. B rown testified that his opinion was that defe ndant was not

fit to stand trial. As noted, defe ndant’ s at t o rn ey moved for a direc ted verdic t and the trial
court g rante d the motion. The court also conclude d that, with trea tment, defe ndant was likely
to attain fitness within one year

. The court rema nded defe ndant to the Depa rtment of Human Service s for inpatient menta l-hea lth treatment. This appe al followed. ¶ 4 We note that defe ndant has advised us that, during the pendenc y of this a ppeal, she has been found fit to stand trial. As a result, the iss u e of whether she rec eived the eff ective assistance of counsel during the proce eding s below is moot. Howeve r, we may consider an otherwise moot case wher e a finding that a d ef endant was unfit to stand trial beca use of a mental conditi o n , and an order that the defe ndant underg o treatment in a mental-he alth fac ility
, “ ‘could return to plague the [defendant] in some future proce eding s or could aff ect other aspec ts of the [defendant’ s] life.’ ” In re Charles H.
, 409 I l l. App. 3d 1047, 1053 (2011), appeal allowed
, No. 112603 (I ll. Sept. 28, 2011), and No. 112562 (I l l

. No v

. 3 0
, 2011) (quoting In re Val Q.
, 396 I ll. App. 3d 155, 159 (2009))

. That is the case here

. Be yond the stigma attache d to the finding and treatment order
, defe ndant could suffe r adver se leg al
conseque nces including, for instance, limit ations on her rig ht to own firea rms (see 430 I L CS 65/8(e) ( West 2012)). Acc ording ly , we will dec ide def endant’ s appea l on the merits. ¶ 5 T h e du e p ro ce s s clause forbids conviction of a defe ndant who is unfit to stand t ri al

. People v. McCallister
, 193 I ll. 2d 63, 110 (2000). Section 104-11(a ) of the Code of Criminal Procedur e of 1963 ( Code) (725 I L CS 5/ 104-11(a ) (West 2012)) pr ovides: “The issue of the defe ndant’s fitness for trial, to plead, or to be sentenc ed may be raised by the defe nse, the State or the Court at any appropr iate time befor e a plea is enter ed or befor e, during
, or afte r trial. When a bona fide doubt of the defe ndant’s fitness is raised, the cour t shall order a

deter mination of the issue befor e proc eedingfurther .” ¶ 6 W h en t h e issue of fitness is raised befor e trial, either the State or the defe ndant m ay demand that the issue be decide d by a jury
, or th e t ri al co u rt may order a jury on its own motion. 725 I L CS 5/104-12 (West 2012). Pursuant to section 104-11(c ) of the Code (7 2 5 I L C S 5 / 1 0 4 -11(c) (West 2012)), “[w]hen a bona fide doubt of the defe ndant’s fitness has been ra i sed, the burden of proving that the defe ndant is fit by a preponde ranc e of the evidenc e and the burden of g oing forwa rd with the evidenc e are on the State.” Section 104- 10 of the Code (725 I L CS 5/104-10 (We s t 2012)) provides that “[a] defe ndant is unfit if, beca use of his m en t al or phy sical condition, he is unable to understand the nature and
purpose of the proce eding s ag ainst him or to assist in his defe nse.” I f the court or the jury finds that the defe ndant is unfit, it s h al l also deter mine “whe ther there is substantial probability that the defe ndant, if provided with a course o f t re at m ent, will attain fitness within one year ,” in which case the court shall order the defe ndant to underg o treatment for the purpose of rende ri n g h im or her fit. 725 I L CS 5/104-16(d) (West 2012). Section 104- 17(b) of the Code (725 I L CS 5/104-17(b) (West 2012)) provides that, if the defe ndant is unfit due to a mental condition, “the c ourt may order him placed f

or treatment in the custody of the Depa rtment of Human Service s, or the court may order him place d in the custody of any

o ther appropr iate public or private mental health fac ility or treatment program which has
agree d to provide trea

tment to the defe ndant.”

-3-¶ 7 Her e, a bonafide doubt of defe ndant’s fitness was raised by the State. In a pro se motion,

defe ndant essentially disputed that her fitness was in doubt. At the fitness hearing, the State did n o t p re s ent evidenc e to show that defe ndant was fit; to the contra ry , the State acknow ledg ed that it would not be able to meet its burden of establishing fitness. Def endant
argues that she was deprive d of her rig ht to the eff ective assistance of counsel inasmuch as “def ense counsel failed to even nominally asser t [defendant’ s] position of fitness, and in fac t asked f or a dire cted ve rdict in favor of the State [ sic ].” ¶ 8 Ordinar ily
, claims of ineffe ctive assistance of counsel are evalua ted under the two-prong test set forth in Strickland v. W ashington
, 466 U.S. 668 (1984), which requires a showing that counsel’s perf

ormanc e “fe ll below an objective standard of rea sonablene ss” and that the defic ient perf

ormanc e was prejudicia l in that “ther e is a rea sonable probability that, but f or counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Id.
at 688, 694. Howeve r, a def endant ne ed not make the showing of prejudice (as that term is used in Strickland

) “if counsel entirely fails to subject the prosec ution’s case to meaning ful ad v ersarial testing.” United States v. Cronic
, 466 U.S. 648, 659 (1984). In that situ at i o n , “ther e has been a denial of Six th Amendment rig hts that makes the adver sary proce ss itself presumptively unreliable .” Id. Def endant contends that that is what occur red here

. As noted, howeve r, it was the State’s burden to prove that defe ndant was fit. Def ense counsel subjected the State’s case to meaning ful adver sarial testing by succe ssfully arg uing that the State had failed to meet its burden of proof and there by obtaining a direc ted verdic t. Gra nted, the State made defe nse counsel’s job easy by conce ding that it would be unable to sustain its burden. That, howe ver, is no rea son to c onclude that defe nse counse l’s perf ormanc e wa s deficie nt. ¶ 9 T h e t h ru s t o f defe ndant’s argument is not so much that counsel was an inef fec tive adver sary to the State but, rathe r, t h at co u n s el’s position on fitness was antithetical to defe ndant’s persona l pref ere nce for a finding that she was fit to stand trial. Under lying that
argument is the assumption, for which no authority is cited, that a criminal defe ndant whose fitness is subject to a bona fide doubt is entitled to decide whether to seek a finding of fitness

or unfitness and that his or her attorney i s bound by that decision. This assumption is incorre ct. ¶ 10 There is authorit y that an attorney is not oblige d to assist a defe ndant in an attempt to feign a mental condition to obtain a finding that the defe ndant is not fit to sta nd trial. It ha s been obse rved:
“Where a defe n s e at t o rney knows that his client is capa ble of communicating intelligently
, and the client, i n an appa rent attempt to dece ive t he trier of fact, presents confuse d or self-c ontradictory testimony
, it is the ethical responsibil i t y of defe nse counsel to disclose to the trial court the fac ts as he knows them. [C itation.] Our supreme court has held [citation] that defe nse co u n sel’s duty with respe ct to the issue of a defe ndant’s fitness consists not in exerting a maxi mum eff ort to obtain a finding that the defe ndant is unfit, but, rathe r, in taking all nece ssary steps to insure a fair deter mination of the issue.” People v. Lewis
, 75 I ll. App. 3d 560, 565-6 6 (1 9 79) (citing People v. Brown , 31 I ll. 2d 415 (1964)).
How ever , our rese arc h has not uncover ed any published opinion in I llinois addre ssing the

-4-prec ise question raised here
, to wit, whether an attorney must defe r to a defe ndant who takes

the pos ition that he or she is fit for trial. Ac cording ly , it is appropr iate to look to decisions from other states for guidance

. See Rhone v. First A me r i ca n Titl e Insurance Co.
, 401 I ll. App. 3d 802, 812 (2010) (“A lthough the decisions of fore ign courts are not binding, ‘the use of fore ign decisions as persua sive authority is a ppropriate wher e I llinois authority on point is lackingor abse nt.’ ” (quoting Carroll v. Curry , 392 I ll. App. 3d 511, 517 (2009)))

. ¶ 11 We are persua ded by the rea soning of the California Court of Appea l in People v. Bolden
, 160 Cal. Rp t r. 268 (Cal. Ct. App. 1979). In Bolden
, two psychiatrists testified for the
prosec ution that the defe ndant, who was char g ed with a violent crime, was s u ff er ing delusions and was the ref

ore not c ompetent to stand trial. Def ense c ounsel explained to the trial court that the de fenda nt wanted to testify

at the hea

ringon competenc y

and wa nted to be found competent to sta nd trial. Counsel indica

ted, howeve r, that the defe ndant’s wishes

wer e in conflict with the defe ndant’s best interests. Counsel believed that the defe ndant had

a potentially viable insanity defe nse, but that the defe ndant’s cooper ation was nece ssary to advanc e that defe nse. Counsel further believed that the defe ndant’s mental condit ion interfe red with the defe ndant’s ability to co o p er at e i n the defe nse. As the Bolden court explained, “[c]ounsel’s solution to this dilemma was to place [t he defe ndant] on the witness stand to testify to his competenc e, and then to offe r his own psychiatric witness who testified [t hat t he defe ndant] was not competent to stand trial.” Id. at 269. On appea l from a jury verdic t finding the defe ndant not competent to stand trial, the defe ndant claimed that he did
not rec eive the eff

ective assistance of counsel. The court rejecte d t h e argument, rea soning as follows: “[The defe ndant] contends [t hat] *** he did not rec eive ‘the kind of leg al assistance
t o b e ex p ec ted of a rea sonably competent attorney acting as a conscie ntious, diligent advocate.’ [C itation.] No complai n t i s m ad e about the skill of his attorney or the attorney ’s dedication to his client. [The defe ndant’ s ] contention is the attorney was acting in what he felt was the best interest of his client rathe r than as an advocate of his client’s position. By his attorney ‘siding’ with the People in offe ring evidenc e of incompetenc e, [t he def endant] contends, his desire to be found c ompetent went unr epre sented. Dilige nt a dvocac y

does not r equire an attorney to blindly follow ever y desire of his client. An attorney can ordinarily make binding waiver s of many of his client’s rig hts as to matters of trial tactics [citation]

. When the attorney doubts the prese n t s an i t y of his cl i en t , h e m ay assume his client cannot act in his own best interests and may act even contra ry to the express desires of his client [citation]

. To do o t h er wi se may cause prejudicia l error

[citation] .” (Empha sis in original.) Id. at 270. ¶ 12 Ex pounding on the rea son i n g i n B o ld en , the California Court of Appea l has fur ther observe d:
“De fense counsel’s ultimate responsibility to his client is to ensure that [t he due proce ss cl ause’s prohibition ag ainst convicting a defe ndant who is unfit to stand trial is ] n o t violated. It w ould place defe nse counsel and the integ rity of the criminal justice sy stem in an impossibl e position to sug g est that defe nse counsel must ignor e his or her bona fide doubt as to the defe ndant’s prese nt competenc e, simply beca use t he defe ndant is

-5-persona lly confide nt that he or she is competent.” People v. Harris
, 18 Cal. Rptr. 2d 92, 98 (Cal. Ct. App. 1993). ¶ 13 Moreove r, although an attorney may choose (a s t h e at t o rney in Bolden did) to call a defe ndant to t es t i fy t h at he or she is competent, it is not a sine qua non

. See People v. Blackshe r , 259 P.3d 370, 436 (Cal. 2011) (“ we h ave never sug g ested that the Bolden
proce dure was m andator

y under any

circ umstance” ). In this setting, counsel m ust exercise profe ssional judgme nt in order to ensure that the defe ndant, if unfit, is not tried in violation of his or her rig ht to due proce ss of law. A rig id proce dural rule requiring counsel to call the defe ndant to testify would undermine counsel’s ability to most eff ect i v el y protec t the defe ndant’s constitutional rig hts and could ca use re versible e rror

. ¶ 14 Fo r t h e fore g oing rea sons, the judgme nt of the circ uit court o f Ke n d al l C o u n t y i s aff irmed.

¶ 15 Affir

med.

-6-