2022 IL App (4th) 210084-U 

NO. 4-21-0084 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee, 

v. 

JOHN O. PENN, 

Defendant-Appellant. 

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Appeal from

Circuit Court of 

Adams County 

No. 19CF1020 

Honorable 

Robert K. Adrian, 

Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.

Justices DeArmond and Steigmann concurred in the judgment.

ORDER

¶ 1 Held: The appellate court reversed and remanded for a new discharge hearing, 

concluding trial counsel provided ineffective assistance of counsel where she

failed to (1) request a sanity evaluation of defendant and (2) raise the affirmative 

defense of insanity before the discharge hearing. 

¶ 2 Defendant, John O. Penn, appeals from the trial court’s judgment finding him not 

not guilty of (1) threatening a public official (720 ILCS 5/12-9 (West 2018)), (2) aggravated 

assault (720 ILCS 5/12-2(b)(4.1)(ii) (West 2018)), and (3) resisting a peace officer (720 ILCS 

5/31-1(a) (West 2018)). On appeal, defendant argues (1) the State failed to prove beyond a 

reasonable doubt that he intended to communicate a threat of unlawful violence to police officers 

and (2) ineffective assistance where his counsel failed to (a) request a sanity evaluation of 

defendant and (b) raise the affirmative defense of insanity before the discharge hearing. We

reverse and remand. 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is 

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

February 22, 2022

Carla Bender

4th District Appellate

Court, IL
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¶ 3 I. BACKGROUND

¶ 4 On January 2, 2020, an Adams County grand jury returned a bill of indictment 

charging defendant with (1) threatening a public official (720 ILCS 5/12-9 (West 2018)),

(2) aggravated assault (720 ILCS 5/12-2(b)(4.1)(ii) (West 2018)), and (3) resisting a peace 

officer (720 ILCS 5/31-1(a) (West 2018)). The charges stemmed from an incident on December 

25, 2019, where defendant interacted with two police officers and “stated to Officer Katie 

Dolbeare and Officer Megan Dolbeare that he would kill them, shoot them, and hit them.” 

¶ 5 During pretrial hearings, defendant made numerous indiscernible comments, and

on at least two occasions, defendant had outbursts which resulted in his removal from the 

hearing. On January 6, 2020, defense counsel filed a suggestion of fitness and motion for 

examination. In the motion, defense counsel stated, “Counsel has met with Defendant in person 

and as a result of these conversations has grave concern as to whether the defendant has [the] 

ability to assist counsel in preparation of her defense.” At a January 15, 2020, hearing on the 

motion for fitness examination, defendant stated, “I—I think I’m fit. It’s just a misunderstanding 

of the—my door.” The trial court granted counsel’s request for a fitness evaluation. 

¶ 6 A. Fitness Evaluation

¶ 7 On January 16, 2020, clinical psychologist Frank Froman, Ed.D., conducted a 

psychological evaluation of defendant and created a psychological report based on his findings. 

According to the report, defendant lived in a hotel before his incarceration, and he told Dr. 

Froman, “I got locked out at two in the morning, had problems, got arrested, and now I’m in 

jail.” Defendant indicated he had “kids,” but he could not remember how many. Defendant also 

informed Dr. Froman that he used to take a variety of psychiatric medication but he had not 

taken any for some time. Defendant indicated he was a former patient at Transitions. Defendant 
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also admitted to five or six psychiatric admissions over his life, but he told Dr. Froman, “I don’t 

know why.” Defendant struggled with sleep, and he told Dr. Froman, “I try to stay awake as 

long as I can.” Defendant also alleged he was an electrical engineer, but he failed to understand 

basic vocabulary related to engineering. 

¶ 8 Dr. Froman noted defendant’s “presentation was problematic. He tended to 

‘over-talk’ the examiner, and also tended to present materials over and over again, never seeming 

to be satisfied by one presentation, repeating again and again the same things.” Dr. Froman 

provided, “It was very difficult to get him to truly focus on the intent of the question, and he 

seemed to have the very strong need to ‘tell long stories.’ ” As to the December 25, 2019, 

incident, defendant told Dr. Froman “a convoluted, and impossible to understand story about 

what happened, about the police coming, and about them arresting him. He was never able to 

identify exactly why they did that.” 

¶ 9 During his mental status examination, defendant knew basic information like the 

date and current president. However, defendant was “unaware of any recent news.” Defendant 

also did not know the identity of his public defender, and when Dr. Froman tried to go through 

defendant’s understanding of his rights, Dr. Froman stopped at “ ‘you have a right to remain 

silent,’ since [defendant] had difficulty fully comprehending it.” 

¶ 10 Dr. Froman stated defendant appeared “hypomanic, easily confused, easily 

overwhelmed, and has great difficulty focusing on relatively clear questions.” Dr. Froman also

determined defendant showed “evidence of a true bipolar disorder.” Dr. Froman provided 

defendant “is now in a state of significant confusion. In this state, he should not be viewed as 

‘competent to stand trial.’ ” Specifically, Dr. Froman stated, “Currently, I do not see him as trial 

ready, not able to cooperate effectively with his attorney, therefore, do not find him fit. He 
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should be able to be stabilized within 30 days of treatment from Transitions if they will see him 

again.” 

¶ 11 B. Fitness Hearing 

¶ 12 On February 13, 2020, the trial court held a fitness hearing. At the hearing, the 

State argued Dr. Froman’s report was clear that defendant was not competent to stand trial at the 

present time. The State recommended the court order defendant to the Illinois Department of 

Human Services (IDHS) for “treatment to try to make him fit.” Defense counsel stated, “Your 

Honor, I’m in agreement. I believe he is not currently fit. It appears Dr. Froman believes he can 

be made fit, but at this point in time, he is not.” Accordingly, the court found defendant unfit to 

stand trial at the present time and referred defendant to IDHS for treatment “until he is found to 

be fit.” Subsequently, IDHS admitted defendant to Alton Mental Health Center. 

¶ 13 C. Fitness Progress Reports 

¶ 14 IDHS generated and filed 90-day fitness to stand trial progress reports which 

detailed defendant’s mental state. In a July 27, 2020, fitness report, the treating psychiatrist 

described defendant’s primary diagnosis as “Schizoaffective Disorder, Bipolar Type.” As to 

defendant’s current mental status, the report stated, “[Defendant] perseverates on the wrongs he 

perceives being done to him in the recent charges and in past legal issues and verbalizes multiple 

persecutory delusions regarding various police departments and courts. He exhibits manic 

symptoms such as dancing around his room all night and preaching from his bible loudly at all 

hours.” The report further provided defendant’s “insight and judgment remain poor.” The report 

indicated defendant’s “symptoms would prevent him from working with his attorney in a 

courtroom setting in [a] calm, cooperative[,] and appropriate manner.” The treating psychiatrist 
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concluded defendant was unfit to stand trial but that he was likely to attain fitness within the 

statutory time period of one year. 

¶ 15 In an October 27, 2020, fitness report, the treating psychiatrist indicated defendant 

took psychotropic medication and participated in treatment. The report provided that when 

discussing the topic of legal charges or court proceedings, defendant exhibited “sporadic and 

unpredictable outbursts of agitation, paranoia, and verbal aggression.” Defendant “often reverts 

back to stating that he does not have charges and that the court and the treatment team are trying 

to conspire against him and hold him illegally.” The treating psychiatrist concluded defendant 

was unfit to stand trial and he was unlikely to attain fitness within the statutory period of a year 

from the finding of unfitness. 

¶ 16 On December 2, 2020, in response to the finding that defendant was unlikely to 

attain fitness within the statutory period, defense counsel requested the trial court set the matter 

for a discharge hearing. The court found defendant remained unfit and there was a substantial 

probability he would not attain fitness within one year of the finding of unfitness. Subsequently, 

the court scheduled a discharge hearing. 

¶ 17 D. Discharge Hearing 

¶ 18 On February 5, 2021, the trial court held a discharge hearing. At the hearing,

Quincy, Illinois, police officers Megan Dolbeare and Katie Dolbeare testified on behalf of the 

State. Both officers testified that on December 25, 2019, around 4:30 a.m., they responded to the 

Welcome Inn in Quincy for “a disturbance for a male that was yelling, cursing, and knocking on 

doors.” Both officers identified defendant as the male at the Welcome Inn and testified they 

knew defendant from previous contacts. Upon arrival at the Welcome Inn, the officers 

determined defendant was angry and upset because he had been locked out of his room. The 
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officers attempted to de-escalate the situation by contacting the property manager and 

maintenance. However, Officer Megan Dolbeare testified, “Nobody was coming.” The officers 

then tried to contact defendant’s emergency contact, but the contact was out of state. 

¶ 19 Both officers testified that, while they tried to reach defendant’s emergency 

contact, defendant approached the officers. Officer Megan Dolbeare testified that, when 

defendant approached them, he “made several threats, and then he spit at us.” When defendant 

spit at the officers he was about four feet away from them. No saliva hit the officers. Officer 

Megan Dolbeare also testified defendant made several threats toward them, including “[h]e was 

going to shoot and kill us.” Defendant also asked the officers to shoot him and he continued to 

tell the officers he was going to kill them. At one point, defendant demanded the officers draw 

their guns on him. Defendant also stated, “You’re ‘finna [sic] get shot, b***.” Officer Katie 

Dolbeare testified defendant said, “I’d like to kill a police officer.” Defendant further accused 

the officers of spitting on him where he stated, “I’ll tell you what, spit again, b***. Spit again, 

mother***. Spit again, spit again.” The officers denied spitting on defendant. 

¶ 20 Officer Katie Dolbeare testified she and Officer Megan Dolbeare spent about 40 

minutes trying to calm defendant down and de-escalate the situation. During that time, the 

officers did not search defendant and were unaware if he had a gun. However, after defendant 

spit in the direction of the officers, they attempted to place defendant under arrest. When the 

officers told defendant he was under arrest and to place his hands behind his back, defendant 

“stiffened his arms and balled up his fists and kept them at his sides and waist.” The officers 

called for backup. Once a male officer arrived, defendant cooperated, and the officers placed 

him under arrest. Both Officer Katie Dolbeare and Officer Megan Dolbeare testified that, during 
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the encounter with defendant, they feared for their safety due to defendant’s “anger” and 

“emotional state.” 

¶ 21 During cross-examination, defense counsel asked Officer Megan Dolbeare, based 

on her police experience, whether defendant appeared to be “under the influence of something?” 

Officer Megan Dolbeare responded, “It appeared that he may have a mental condition. I’m not 

sure about under the influence.” Defense counsel also asked Officer Katie Dolbeare whether she 

had experience with people who appeared to be “high on something or maybe having some kind 

of mental problems?” Officer Katie Dolbeare responded in the affirmative. Defense counsel 

then asked if defendant appeared to be one of those. Officer Katie Dolbeare responded, “I’ve 

had several encounters with [defendant], and it seems to be some sort of mental disorder.” The 

State presented no further evidence. 

¶ 22 Defense counsel then provided, “I don’t believe [defendant] wishes to testify, so I 

would have no evidence.” The trial court then clarified with defense counsel that she had an 

opportunity to talk with defendant about testifying, and defense counsel responded, “I did speak 

with him. I—he did not directly answer the question.” Defendant interjected, “I know the 

answer to the question.” The court disregarded defendant’s interjection and stated, “Then that is 

all the evidence for today.” 

¶ 23 The case proceeded to closing arguments. The State asked the trial court to find 

defendant not not guilty where the evidence showed he was not not guilty pursuant to the 

relevant statutes. Defense counsel argued, 

“As this Court knows, [defendant] was found unfit, has 

been found not able to be made fit. According to officers, he 

seemed to be suffering under some sort of mental illness at the 
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time of the arrest. All of the evidence would indicate that he didn’t 

have the ability to form the state of mind to commit the offenses, 

and so I would ask the Court to acquit him or find him not guilty 

by reason of insanity.” 

The State responded that defense counsel’s argument should be stricken and not heard by the 

trial court where defense counsel never pled insanity. Specifically, the State asserted that 

defense counsel needed to plead the affirmative defense of insanity before the hearing. The State 

provided, “There’s been no argument or factual basis for that, no evidence of that presented to 

this Court at the hearing.” Defense counsel responded, “I did not have that evidence beforehand, 

but also this is not a trial.” 

¶ 24 The trial court considered the evidence and arguments and provided that, at the 

discharge hearing, it could acquit defendant or find him not not guilty. Ultimately, the court 

found defendant not not guilty of all three counts charged. Specifically, the court stated, 

“The Court does not have sufficient evidence that would allow it to 

acquit the Defendant even if the Court so chose to consider if he 

was insane or unable to commit these crimes because of reason of 

insanity. In order to do that, the Court would have to have an 

expert opinion as to what the Defendant’s state of mind was at the 

time that these offenses were committed. That evidence is not 

before the Court. So the Court would find, as I stated earlier, that 

the Defendant is not not guilty. And so he will remain in the 

custody of IDHS, and that can be for up to [15 months].” 
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The court ordered defendant to undergo an extended term of treatment with IDHS up to May 12, 

2022—15 months from defendant’s February 13, 2020, unfitness finding. 

¶ 25 This appeal followed. 

¶ 26 II. ANALYSIS

¶ 27 On appeal, defendant argues (1) the State failed to prove beyond a reasonable 

doubt that he intended to communicate a threat of unlawful violence to police officers and 

(2) ineffective assistance where his counsel failed to (a) request a sanity evaluation of defendant 

and (b) raise the affirmative defense of insanity before the discharge hearing. We review each 

issue in turn. 

¶ 28 A. Sufficiency of the Evidence 

¶ 29 Defendant argues the State failed to prove beyond a reasonable doubt that he 

intended or knew his words would be viewed as a threat due to his mental illness and erratic 

behavior. The State disagrees and argues it presented sufficient evidence to prove beyond a 

reasonable doubt that defendant threatened a public official. We agree with the State. 

¶ 30 “A discharge hearing is not a criminal proceeding.” People v. Mayo, 2017 IL 

App (2d) 150390, ¶ 3, 79 N.E.3d 359. Rather, it is an “innocence only” proceeding that takes 

place only after a defendant has been found unfit to stand trial, and it determines only whether to 

enter a judgment of acquittal, not to make a determination of guilt. Id.; People v. Waid, 221 Ill.

2d 464, 469-70, 851 N.E.2d 1210, 1213-14 (2006). “The question of guilt is deferred until the 

defendant is fit to stand trial.” Mayo, 2017 IL App (2d) 150390, ¶ 3. 

¶ 31 “At a discharge hearing, the trial court may make one of three findings.” People 

v. Manns, 373 Ill. App. 3d 232, 238, 869 N.E.2d 437, 441 (2007). First, “the court may acquit

the defendant.” Id. Second, “the court may acquit the defendant based on a finding the 
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defendant is not guilty by reason of insanity.” Id. Finally, if the evidence presented at a 

discharge hearing is sufficient to establish that the defendant committed the offense, no 

conviction results; instead, the defendant is found not not guilty. Mayo, 2017 IL App (2d) 

150390, ¶ 3. The defendant is then subject to further treatment. Id.

¶ 32 Although a finding of not not guilty does not result in a conviction, the standard 

of proof is the same. Id. ¶ 29. Thus, the applicable standard of review is whether, after viewing 

the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the elements of the offense beyond a reasonable doubt. Id. 

¶ 33 To prove beyond a reasonable doubt that defendant threatened a public official, 

the State had to prove defendant “knowingly and willfully conveyed directly to Officer Katie 

Dolbeare and Officer Megan Dolbeare, public officials, a communication containing a threat that 

would place Officer Katie Dolbeare and Officer Megan Dolbeare or a member of their 

immediate family in reasonable apprehension of immediate or future bodily harm.” See 720 

ILCS 5/12-9 (West 2018). 

¶ 34 “If the State charges an individual with threatening a public official under section 

12-9 of the Criminal Code [of 2012] (720 ILCS 5/12-9(a) (West 2014)), the threat of violence 

must be a ‘true threat,’ or else the prosecution will violate the first amendment.” People v. 

Smith, 2019 IL App (4th) 160641, ¶ 48, 141 N.E.3d 688. “ ‘ “[T]rue threats” encompass those 

statements where the speaker means to communicate a serious expression of an intent to commit 

an act of unlawful violence to a particular individual or group of individuals.’ ” People v. 

Ashley, 2020 IL 123989, ¶ 51, 162 N.E.3d 200 (quoting Virginia v. Black, 538 U.S. 343, 359 

(2003)). Our supreme court explained that “the phrase ‘means to communicate’ ” requires that a 

defendant be “consciously aware of the threatening nature of his or her speech, and the 
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awareness requirement can be satisfied by a statutory restriction that requires either an 

intentional or a knowing mental state.” Ashley, 2020 IL 123989, ¶ 56. In other words, “the 

accused must be subjectively aware of the threatening nature of the speech.” Id. 

¶ 35 When viewing the evidence in the light most favorable to the State, we find the 

evidence was sufficient to prove defendant knowingly communicated a true threat to Officer 

Katie Dolbeare and Officer Megan Dolbeare. While the officers attempted to help defendant and 

de-escalate the situation, defendant tried to spit on the officers and made numerous threats 

towards the officers. Defendant argues his behavior during the incident did not suggest he 

intended to threaten the police officers or that he knew his words were threatening. Rather, 

defendant argues his words were attributable to his mental illness. Defendant provided this was 

apparent where he operated under the delusion the officers spit on him. We disagree. 

¶ 36 Defendant’s statements show he was subjectively aware of the threatening nature 

of his speech where he tailored his statements toward a particular group of individuals—police 

officers. This is evident where defendant (1) told the officers he was going to shoot and kill 

them, (2) asked the officers to shoot him while continuing to state he was going to kill them, 

(3) stated, “You’re finna [sic] get shot, b***,” and (4) stated, “I’d like to kill a police officer.” 

Moreover, defendant tried to induce a reaction from the officers when he demanded the officers 

draw their guns on him. Defendant’s effort to induce a response from the officers demonstrates 

his subjective awareness of the threatening nature of his speech. 

¶ 37 Defendant also challenges the officers’ apprehension of immediate harm where he

argues the officers’ knowledge of his mental illness undermined the reasonableness of their fear

of harm. There is no indication in the record that the officers knew of the precise nature or

extent of defendant’s mental illness. Although both officers testified that they believed 
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defendant suffered from a mental disorder or condition, they did not testify they knew the nature 

or extent of that illness. Even if the officers were fully aware of defendant’s mental illness, that 

did not preclude the trial court from finding that defendant’s statements were threatening. 

Moreover, the officers’ knowledge that defendant suffered from a mental disorder or condition 

did not make the officer’s apprehension of immediate harm any less reasonable.

¶ 38 Under the circumstances, we conclude the State presented sufficient evidence to 

prove defendant knowingly communicated a true threat to Officer Katie Dolbeare and Officer 

Megan Dolbeare. See id. Accordingly, the trial court properly found defendant not not guilty of 

threatening a public official. 

¶ 39 B. Ineffective Assistance of Counsel 

¶ 40 Last, defendant argues ineffective assistance of counsel where his counsel failed 

to (a) request a sanity evaluation of defendant and (b) raise the affirmative defense of insanity 

before the discharge hearing. 

¶ 41 We review claims of ineffective assistance of counsel under the standard set forth 

in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective 

assistance of counsel, defendant must show (1) the attorney’s performance fell below an 

objective standard of reasonableness and (2) the deficient performance prejudiced the defendant. 

Id. at 687. Both prongs of the Strickland test must be satisfied; therefore, a finding of ineffective 

assistance of counsel is precluded if a defendant fails to satisfy one of the prongs. People v. 

Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601. 

¶ 42 1. Deficient Performance

¶ 43 To satisfy the deficient-performance prong, a defendant “must show that his 

counsel’s performance was so inadequate that counsel was not functioning as the ‘counsel’ 
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guaranteed by the sixth amendment.” People v. Smith, 195 Ill. 2d 179, 188, 745 N.E.2d 1194, 

1200 (2000). The defendant also “must overcome the strong presumption that the challenged 

action or inaction may have been the product of sound trial strategy.” Id. 

¶ 44 Under Illinois law, “[a]ll defendants are presumed sane.” People v. Welling, 2021 

IL App (2d) 170944, ¶ 48. Insanity is an affirmative defense that must be raised by the 

defendant and he bears the burden of proving the defense by clear and convincing evidence. Id.

(citing 720 ILCS 5/6-4, 6-2(e) (West 2012)). “A person is not criminally responsible for conduct 

if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity 

to appreciate the criminality of his conduct.” Id. (citing 720 ILCS 5/6-2(a) (West 2012)). 

¶ 45 Defendant argues defense counsel’s failure to request a sanity evaluation of 

defendant and subsequent failure to raise the affirmative defense of insanity before the discharge 

hearing constituted deficient performance. Defendant asserts the facts of the case, psychological 

reports, and his behavior during pretrial hearings all suggested defendant did not appreciate the 

criminality of his conduct at the time of the offense. 

¶ 46 Moreover, defendant contends counsel’s failure to (1) request a sanity evaluation 

and (2) raise the affirmative defense of insanity before the discharge hearing cannot be deemed 

reasonable trial strategy where counsel during closing argument argued that defendant “didn’t 

have the ability to form the state of mind to commit the offenses” and asked the trial court to find 

defendant not guilty by reason of insanity. We agree with defendant. 

¶ 47 Prior to the discharge hearing, defense counsel never requested a sanity evaluation 

of defendant. At the discharge hearing, while defense counsel cross-examined Officer Katie 

Dolbeare and Officer Megan Dolbeare about whether defendant suffered from a mental condition

at the time of the offense, defense counsel presented no evidence and called no witness. It was 
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not until closing argument that defense counsel asserted defendant “didn’t have the ability to 

form the state of mind to commit the offenses” and asked the trial court to acquit defendant by 

reason of insanity. Defense counsel explained she did not raise the affirmative defense of 

insanity earlier because she did not have the evidence beforehand. 

¶ 48 We find the record shows ample evidence to support a request for a sanity 

evaluation and an investigation into the viability of an insanity defense. “The finding [the] 

defendant was unfit to stand trial and remained unfit was not proof of insanity at the time of the 

offense (People v. Britton, 119 Ill. App. 2d 110, 113, 255 N.E.2d 211, 212-13 (1970)).” Manns, 

373 Ill. App. 3d at 240. However, defendant’s history of psychiatric admissions, the 

circumstances of the offense testified to by the officers, defendant’s behavior during pretrial 

hearings, and defendant’s fitness evaluation demonstrate evidence existed to request a sanity 

evaluation of defendant and lend support to the defense that defendant was unable to appreciate 

the criminality of his conduct at the time of the offense. See id. 

¶ 49 Yet, at the discharge hearing, defense counsel presented no evidence of 

defendant’s state of mind at the time of the offense and only extracted minimal evidence on 

cross-examination as to whether the officers believed defendant suffered from a mental illness at 

the time of the offense. Defense counsel could have called Dr. Froman to testify to (1) his 

observations of defendant during his psychological evaluation of defendant to determine fitness 

and (2) the report he generated of his findings. In his report, Dr. Froman noted defendant’s 

mental illness history and provided defendant’s description of the December 25, 2019, incident. 

As to the December 25, 2019, incident, defendant told Dr. Froman “a convoluted, and impossible 

to understand story about what happened, about the police coming, and about them arresting 

him. He was never able to identify exactly why they did that.” 
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¶ 50 Defense counsel also could have asked Officer Katie Dolbeare and Officer Megan 

Dolbeare more questions on cross-examination about their prior contacts with defendant and

their observations of defendant’s behavior during the offense that led them to believe he was 

mentally ill. Further, if defense counsel had requested and obtained a sanity evaluation of 

defendant, she could have presented the findings of the evaluation as evidence at the discharge 

hearing. Moreover, if defense counsel retained an expert to evaluate defendant’s sanity at the 

time of the offense, she could have called the expert to testify to his or her findings. 

¶ 51 Based on the record, we find defense counsel’s performance fell below an 

objective standard of reasonableness when she failed to (1) request a sanity evaluation and 

(2) raise the affirmative defense of insanity before the discharge hearing. We next determine 

whether defense counsel’s deficient performance resulted in prejudice. 

¶ 52 2. Prejudice 

¶ 53 In order to establish prejudice, “a defendant must prove that there is a reasonable 

probability that, but for counsel’s deficient performance, the outcome of the proceeding would 

have been different.” Smith, 195 Ill. 2d at 188 (citing Strickland, 466 U.S. at 694). “A 

reasonable probability is defined as a probability that is sufficient to undermine confidence in the 

outcome. Thus, the defendant must show that counsel’s deficient performance rendered the 

result of the trial unreliable or the proceeding fundamentally unfair.” Id. 

¶ 54 “Under certain circumstances, prejudice may be presumed. Where defense 

counsel fails to subject the prosecution’s case to meaningful adversarial testing, the adversary 

process is presumptively unreliable.” Manns, 373 Ill. App. 3d at 239 (citing United States v. 

Cronic, 466 U.S. 648, 658-59 (1984)). 
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¶ 55 Defendant argues defense counsel’s failure to (1) request a sanity evaluation of 

defendant and (2) raise the affirmative defense of insanity before the discharge hearing

prejudiced him. Specifically, defendant argues prejudiced is presumed in this case because 

counsel’s failure to raise the affirmative defense of insanity amounted to a failure to subject the 

State’s case to meaningful adversarial testing. In support of his argument, defendant cites People 

v. Young, 220 Ill. App. 3d 98, 581 N.E.2d 371 (1991), and Manns, 373 Ill. App. 3d 232. 

¶ 56 In Young, 220 Ill. App. 3d at 109, the appellate court found defense counsel was 

ineffective for failing to raise an insanity affirmative defense at the defendant’s discharge 

hearing. The court noted that defense counsel called no witnesses and engaged in minimal 

cross-examination and argument. Id. at 107. Further, the court found defense counsel put on a 

defense that was unsound as a matter of law. Id. In addition, although the defendant had been 

examined by a number of experts who unanimously found that he suffered from delusional 

thinking and paranoia, counsel did not attempt to incorporate evidence of the defendant’s mental 

health into the record. Id. at 108. The court stated, “It cannot be said that [the] defendant wished 

to concede his guilt or even that he was competent to do so.” Id. at 107-08. Thus, the court 

found “defense counsel failed to subject the prosecution’s case to meaningful adversarial testing

and that the result of the discharge hearing must therefore be presumed unreliable.” Id. at 107.

¶ 57 In Manns, 373 Ill. App. 3d at 241-42, this court found defense counsel’s failure to 

mount a meaningful challenge to the State’s case by presenting the defense of insanity resulted in 

a presumption of prejudice and rendered the result of the discharge hearing unreliable. At the 

discharge hearing, defense counsel did not cross-examine one of the State’s witnesses and only 

subjected the other witness to minimal questioning. Id. at 241. Defense counsel “did not offer 

additional evidence other than [the] defendant’s own testimony.” Id. Defense counsel “offered 
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no argument at all.” Id. Further, defense counsel did not “suggest the court acquit [the] 

defendant by reason of insanity[,]” despite an expert opinion that the defendant had “ ‘no 

appreciation for the seriousness of the alleged act.’ ” Id. Moreover, the offense at issue was 

particularly bizarre, where the defendant robbed a bank, demanding only $100, and then later 

claimed he owned the bank and that the bank had been stolen from him. Id. at 236-37. While

Young and Manns are instructive, we find prejudice should not be presumed in this matter where

counsel’s conduct failed to demonstrate a complete breakdown in adversarial testing as seen in 

Young and Manns. 

¶ 58 Here, defense counsel did cross-examine Officer Katie Dolbeare and Officer 

Megan Dolbeare about whether defendant suffered from a mental condition at the time of the 

offense. Defense counsel also argued in closing that defendant “didn’t have the ability to form 

the state of mind to commit the offenses” and asked the trial court to acquit defendant by reason 

of insanity. Thus, defense counsel’s failure to raise the affirmative defense of insanity did not 

amount to a failure to subject the State’s case to meaningful adversarial testing resulting in 

presumed prejudice. However, we find actual prejudice existed based on defense counsel’s 

representation. 

¶ 59 Actual prejudice existed where defense counsel failed to (1) request a sanity 

evaluation and (2) raise the affirmative defense of insanity before the discharge hearing. An 

insanity defense was reasonable based on the evidence in the record and it was the only viable 

defense available to defendant. Had defense counsel obtained a sanity evaluation, presented the 

sanity evaluation at the discharge hearing, and raised the affirmative defense of insanity, there is 

reasonable probability that defendant would have been acquitted of the charges. Because 

defendant was found not not guilty, he is subject to confinement and treatment, as well as to a 
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criminal trial should he be restored to fitness. See 725 ILCS 5/104-25(d) (West 2018); Waid, 

221 Ill. 2d at 470-71. However, had the trial court been presented with evidence to support an 

insanity defense and entered a finding of not guilty by reason of insanity, defendant would be 

absolved of guilt and not face a criminal trial or punishment. People v. Harrison, 226 Ill. 2d 

427, 435-37, 877 N.E.2d 432, 436-37 (2007). 

¶ 60 Accordingly, we find defense counsel was ineffective where she failed to 

(1) request a sanity evaluation and (2) raise the affirmative defense of insanity before the 

discharge hearing. Therefore, we reverse the trial court’s order finding defendant “not not 

guilty” and remand for a new discharge hearing. 

¶ 61 III. CONCLUSION

¶ 62 For the foregoing reasons, we reverse the trial court’s judgment and remand for a 

new discharge hearing. 

¶ 63 Reversed and remanded.