NO. 4-96-0340
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
WILLIAM F. STRAUB ) No. 92CF368
Defendant-Appellant. )
) Honorable
) Richard E. Scott,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
Following jury trial in the circuit court of Vermilion
County, defendant William F. Straub was found guilty of second
degree murder. Ill. Rev. Stat. 1991, ch. 38, par. 9-2(a).
Defendant was sentenced to four years' imprisonment, with credit
for eight days previously served. The issue on appeal is whether
defendant was denied due process and the effective assistance of
counsel because he was not provided a hearing to determine his
fitness to stand trial and defense counsel never requested such a
hearing. We affirm.
On September 28, 1992, defendant was charged by informa-
tion with aggravated battery of Danny Meyers. Ill. Rev. Stat.
1991, ch. 38, par. 12-4(b)(1). Defendant posted bond the same day.
On October 9, 1992, a first-amended information was filed alleging
three counts of first degree murder (Ill. Rev. Stat. 1991, ch. 38,
pars. 9-1(a)(1), (a)(2), (a)(3)) in addition to a renewed charge of
aggravated battery. At the October 21, 1992, arraignment, the
defendant's attorney made the trial court aware of the mental
health limitations defendant had as a result of a work-related
injury. At the pretrial conference on September 24, 1993, the
trial court noted the defendant had filed a copy of a letter from
Dr. David G. Jarmon, a clinical psychologist, in an attempt to
raise a bona fide doubt of defendant's fitness to stand trial. The
letter indicated two separate examinations of defendant by Jarmon,
on December 20, 1988, and April 30, 1993, at the request of the
Disability Determination Office in Indianapolis, Indiana. The
report indicated defendant suffered from significant dementia after
being struck in the head by a concrete block in 1979. The trial
court found no bona fide doubt had been raised, but allowed
defendant to request to be examined prior to trial to determine his
fitness to stand trial. An order for examination was entered on
September 24, 1993. On October 20, 1993, defendant was examined by
Dr. M.E. Stebbins. Defendant, in a motion to continue, also
indicated he intended to submit for examination to Dr. Patrick D.
Brophy. Although defense counsel indicated he had seen a copy of
Stebbins' report, it is not in the record on appeal. In objecting
to defendant's motion for continuance, the assistant State's
Attorney indicated that the only information supplied to the trial
court showed defendant fit to stand trial.
On December 11, 1995, at a motions hearing, the defendant
indicated he was scheduled to undergo surgery. He had been getting
epidural shots in the spine for his back pain. He was also taking
Demerol, Vicodin, Motrin, Septra, water pills, and quinine for
cramps in his lower legs. The trial judge inquired as to the
effect of these medications on defendant and whether it made it
difficult for defendant to understand what he was saying.
Defendant stated it did make it difficult to understand. He could
read something four or five times before comprehending the first
sentence. At that hearing, he understood the trial court wanted to
know if he wanted Mike McFatridge to be his attorney. Defendant
indicated he wanted McFatridge to be his attorney even though he
understood McFatridge represented a possible witness for the State
and would have to cross-examine that witness on defendant's behalf.
The trial court also indicated it had received a letter dated
December 7, 1995, from defendant's neurologist in reference to
defendant's back pain. In that letter, she stated her opinion that
defendant was presently unable to assist in the defense of his
trial, but if he was off his pain medication, then defendant's
normal impairments would also render him unable to assist at trial.
The assistant State's Attorney questioned the neurologist's
qualifications to make that determination. Defendant's counsel
stated defendant was "not raising the issue of fitness," but was
seeking a continuance because defendant was in pain and taking pain
medication that would prejudice him. Defendant's attorney
indicated he thought the surgery would alleviate the pain so
defendant could drop the medication.
Brophy interviewed defendant on February 3, 1993,
February 10, 1993, and February 20, 1994. Finally, on February 5,
1996, defendant filed a copy of Brophy's February 5, 1996, report.
Brophy's report makes no mention of any medication being taken by
defendant. Brophy agreed with Jarmon's diagnosis of significant
dementia secondary to the 1979 head trauma. Brophy found
defendant's problem-solving skills were particularly inflexible and
that he was often unable to evaluate novel tasks. Brophy indicated
such persons typically do not function well under stress and are
easily confused. However, in spite of the fact that one of the
reasons for the referral was to assess defendant's capacity to
stand trial, Brophy's report made no conclusion on that subject.
On February 6, 1996, prior to the selection of the jury,
the trial court inquired of defendant's counsel if he wanted to
make a statement for the record concerning medication and
defendant's fitness. Defendant's attorney stated that, if he
believed there was a legitimate issue of fitness, he would be
obligated to raise the issue, but he was not raising the issue at
the present time. Defendant stated his medication had changed
significantly in the previous three years and he was currently
taking 100 milligrams of Demerol every 1« to 2 hours for pain in
his low back and hips. He further indicated he took quinine for
leg cramping, water pills, and medication for "dysentery." He also
received a spinal injection on the previous Friday. He took Motrin
and seizure medication. The trial court then asked for a list of
his medications. Defendant stated he cut down on his medication
that day so he would be able to comprehend everything being said.
He indicated he had a little trouble with his speech, but that he
understood what was being said. The trial court then inquired as
to what defendant understood had transpired in court that morning,
and defendant said there was nothing he wanted the trial judge to
go over. Defendant had conferred with his attorney that morning.
The trial court found no bona fide doubt of fitness to stand trial
based on its observations of defendant, a review of the doctor's
report, and the representation of defendant's attorney.
On February 8, 1996, a handwritten list of defendant's
medications was filed. That list indicated defendant was pre-
scribed (1) one Vicodin Extra Strength four times a day; (2) 1«
Demerol tablets every four to six hours, or as needed; (3) one
Motrin with meals three times a day, alternating every other day
with Ketoprofen; (4) one quinine tablet each evening; (5) one
"Diphen/athrop" four times a day for loose bowel movements; (6) one
Dilantin capsule three times a day for seizures; (7) one capsule of
"Triamt/HCTZ 50/25," generic for Dyzide, each morning for fluid
buildup; (8) one Valium tablet three times a day; and (9) periodic
spinal injections for severe pain. At trial, defendant testified
that, in September 1992, he had been taking Motrin and Vicodin for
pain, water pills, quinine, and Valium. After being found guilty
of second degree murder, defendant was sentenced on April 17, 1996.
At that hearing, defense counsel stated he had a discussion with
defendant concerning the list filed in February 1996. Defendant
had a prescription for Demerol but was not then taking it. Nor was
he taking Diphen. Defendant's counsel further stated to the court
"he also said he may not necessarily be taking Valium." Defendant
had taken Vicodin for his back pain 1« hours prior to the beginning
of the hearing. Defendant, who was present in court when defense
counsel made these statements, made no comment regarding the
statements by defense counsel.
On appeal, defendant's entire argument rests on the
reference in the list filed February 8, 1996, to Valium. The
State's argument appears to accept defendant's characterization of
Valium as a psychotropic medication.
Defendant did not request a fitness hearing or raise this
contention in his posttrial motion. Ordinarily such a failure
would result in waiver of the issue on appeal. People v. Brandon,
162 Ill. 2d 450, 457, 643 N.E.2d 712, 715 (1994). However, a
violation of defendant's right not to be tried while unfit is a
deprivation of his right to due process so fundamental (Brandon,
162 Ill. 2d at 455-56, 643 N.E.2d at 715) that the issue may not be
waived (People v. Kinkead, 168 Ill. 2d 394, 406-07, 660 N.E.2d 852,
857 (1995)).
Defendant also attempts to avoid waiver by raising the
issue as ineffective assistance of counsel for failing to request
a hearing. To demonstrate ineffective assistance of counsel,
defendants must show (1) defense counsel's representation fell
below an objective standard of reasonableness, and (2) had it not
been for the unprofessional errors of defense counsel, the result
of the proceedings would have been different. If it is easier to
dispose of the ineffectiveness claim on the grounds of lack of
sufficient prejudice to defendant, it is not necessary to first
address whether defense counsel's performance was deficient.
People v. Albanese, 104 Ill. 2d 504, 525-27, 473 N.E.2d 1246, 1255-
56 (1984).
A defendant is presumed to be fit to stand trial, plead,
and be sentenced, but he may be found unfit to stand trial "if,
because of a mental or physical condition, he is unable to
understand the nature and purpose of the proceedings against him or
to assist in his defense." Brandon, 162 Ill. 2d at 456, 643 N.E.2d
at 715. A defendant is fit to stand trial if he understands the
nature and purpose of the proceedings against him and is able to
assist in his defense. 725 ILCS 5/104-10 (West 1994); People v.
Sandham, 174 Ill. 2d 379, 382, 673 N.E.2d 1032, 1033 (1996). The
circuit court has a duty to order a fitness hearing, sua sponte, if
there is a bona fide doubt of the defendant's fitness to stand
trial. 725 ILCS 5/104-11(a) (West 1994). Whether a bona fide
doubt exists generally rests within the trial court's discretion.
Sandham, 174 Ill. 2d at 382, 673 N.E.2d at 1033.
At the time of the commission of the offense in this
case, section 104-21(a) of the Code provided in relevant part: "A
defendant who is receiving psychotropic drugs or other medications
under medical direction is entitled to a hearing on the issue of
his fitness while under medication." 725 ILCS 5/104-21(a) (West
1992). This statute has been interpreted as requiring a fitness
hearing if the defendant was taking psychotropic medication in
proximity to the trial or sentencing proceedings. People v. Nitz,
173 Ill. 2d 151, 160, 670 N.E.2d 672, 676 (1996); Brandon, 162 Ill.
2d at 460-61, 643 N.E.2d at 717. The Supreme Court of Illinois has
construed the statute as legislative recognition that the adminis-
tration of psychotropic drugs to defendant equates with a bona fide
doubt of fitness. Nitz, 173 Ill. 2d at 159, 670 N.E.2d at 675.
After an amendment to this section (Pub. Act 89-428,
605, eff. December 13, 1995 (1995 Ill. Laws 4453, 4578-79)) was
declared unconstitutional (Johnson v. Edgar, 176 Ill. 2d 499, 517-
18, 680 N.E.2d 1372, 1380-81 (1997)), section 104-21(a) of the Code
was again amended. Public Act 89-689, 90, eff. December 31, 1996
(1996 Ill. Laws 3775, 3792). Section 104-21(a) of the Code now
provides: "A defendant who is receiving psychotropic drugs shall
not be presumed to be unfit to stand trial solely by virtue of the
receipt of those drugs or medications." 725 ILCS 5/104-21(a) (West
1996).
The State argues that this amendment relates to a
procedure and, therefore, may be given retrospective application.
However, in People v. Birdsall, 172 Ill. 2d 464, 475 n.1, 670
N.E.2d 700, 706 n.1 (1996), the Supreme Court of Illinois stated
that the December 13, 1995, amendment to section 104-21(a) was not
applicable to a direct appeal in which that court's opinion was
filed June 20, 1996. In Nitz, the court stated:
"Incidentally, since our decisions in
Brandon, Gevas and Kinkead, the legislature
has amended section 104-21(a) to provide that
no fitness hearing is required unless the
court finds that there is a bona fide doubt of
the defendant's fitness. Pub. Act 89-428,
605, eff. December 13, 1995, amending 725 ILCS
5/104-21(a). The State does not suggest that
the statute, as amended, has application in
these proceedings.
Nevertheless, we find it appropriate to
note the rule that amendatory acts which are
procedural in nature have retrospective opera-
tion for matters which are pending on the
effective date of the amendment or are subse-
quently filed. 82 C.J.S. Statutes 432
(1953); see also Hogan v. Bleeker, 29 Ill. 2d
181, 184, [193 N.E.2d 844, 847] (1963). As
this is a collateral matter, the amendment,
though procedural in nature, does not apply.
Cf. Eddmonds, 143 Ill. 2d at 523, [578 N.E.2d
at 962] (post-conviction petitioner not enti-
tled to fitness hearing under section 104-21
of statute since he was not receiving medica-
tion when that statute became effective).
Further, while the General Assembly can pass
legislation to prospectively change a judicial
construction of a statute if it believes that
the judicial interpretation was at odds with
legislative intent, it cannot effect a change
in that construction by a later declaration of
what it had originally intended." Nitz, 173
Ill. 2d at 162-63, 670 N.E.2d at 677.
Even though the supreme court declined to apply the amendment in a
direct appeal in Birdsall, the State uses the language in Nitz to
argue that, had Nitz not been a collateral postconviction proceed-
ing, the supreme court would have applied the amendment there.
However, the statement in Nitz appears to be only a recognition of
the applicable rules concerning the retroactive operation of
procedural amendments while noting (1) the issue had not been
raised and (2) even if it had been raised, it had no application to
that case.
The critical stage of when a defendant is entitled to a
fitness hearing is at the time of trial and sentencing. People v.
Johns, 285 Ill. App. 3d 849, 852-55, 674 N.E.2d 882, 884-86 (1996).
In People v. McKay, 282 Ill. App. 3d 108, 115, 668 N.E.2d 580, 586
(1996), the defendant's right to a fitness hearing was found to
have accrued at the time of the guilty plea. When a right to a
fitness hearing has already accrued, a subsequent amendment to the
statute would impermissibly retroactively impair a vested right if
applied on appeal. Therefore, we decline to apply the current
version of the statute to the case at bar.
Nevertheless, we find no reversible error in this case.
In People v. Hanna, No. 4-95-0881, slip op. at 9-11 (May 2, 1997)
Ill. App. 3d , , N.E.2d , , this court declined
to remand for the limited purpose of determining whether defendant
was denied due process by the failure to afford him a fitness
hearing. In Hanna, defendant was charged in November 1994, tried
in September 1995, and sentenced in November 1995. Defendant
argued on appeal that medical records showed he had a cardiac
catheterization in February 1994 and again in June 1995, for which
he was prescribed Valium. This court rejected defendant's
contention that this isolated reference in his voluminous hospital
records was sufficient to require remand to determine whether he
was entitled to a fitness hearing.
In this case, the trial court did not commit an abuse of
discretion by not conducting a fitness hearing. Defendant never
informed the trial court he was taking Valium at the time of the
trial, even though he may have had a prescription for it. Even at
sentencing, he did not say he was taking Valium. Two evaluations
of defendant did not find him unfit to stand trial, including that
of defendant's own examining psychologist. Brophy's report was
dated shortly before trial began. The trial court was fully aware
of defendant's physical and mental problems and his medications.
Nevertheless, the trial court took great pains to assure that
defendant's medication was not affecting his ability to understand
the proceedings and cooperate in his defense. Defendant's counsel
understood his obligation to raise fitness as an issue if defendant
had difficulty in these areas, but counsel did not do so. The
trial court could rely on defense counsel's representation that
there had been no problem. In addition, defendant's behavior was
not so aberrant as to raise a doubt of his ability to function
within the context of the trial. See People v. George, 263 Ill.
App. 3d 968, 980, 636 N.E.2d 682, 690-91 (1993). When asked by the
trial court on several occasions to describe the medications he was
taking at or near the time of trial, defendant never mentioned
Valium. Although it may have been prescribed, if defendant was not
taking it, no bona fide doubt of fitness is raised.
We also find no ineffective assistance of counsel. The
issue of defendant's fitness was clearly before the trial court.
Since the trial court had a duty to order a fitness hearing sua
sponte if there was a bona fide doubt of defendant's fitness and
since defendant has demonstrated no entitlement to a fitness
hearing, defendant was not prejudiced by the failure of defense
counsel to request a fitness hearing.
The judgment of the circuit court of Vermilion County is
affirmed.
Affirmed.