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In DeHaven, the Fourth District vacated the trial court's order restoring the defendant to fitness and remanded for a retrospective fitness hearing where the record did not affirmatively establish that the trial court exercised judicial discretion in making an independent finding defendant had been restored to fitness.
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4-22-0840
07-27-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW JOEL DeHAVEN, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Hancock County No. 20CF18 Honorable Rodney G. Clark, Judge Presiding.
PRESIDING JUSTICE DeARMOND delivered the judgment of the court. Justice Lannerd concurred in the judgment Justice Steigmann specially concurred.
ORDER
DeARMOND PRESIDING JUSTICE.
¶ 1 Held: The appellate court reversed and remanded for a retrospective fitness restoration hearing, holding the record did not show the trial court exercised discretion in making an independent finding defendant had been restored to fitness.
¶ 2 In a May 2022 trial, a jury found defendant, Andrew Joel DeHaven, guilty of first degree murder. Defendant appeared for sentencing in August 2022, where the trial court sentenced him to 50 years in the Illinois Department of Corrections (DOC) followed by 3 years' mandatory supervised release (MSR). Forgoing any posttrial motions, defendant filed a timely notice of appeal. He raises multiple issues, including his contention the court errantly relied upon a progress report and failed to make an independent determination when restoring defendant to fitness. Because we agree the court erred on this issue, we need not address defendant's remaining arguments now, but we reverse the July 2021 fitness determination and remand for a retrospective fitness hearing.
¶ 4 Patricide looms over this case. There is no doubt defendant bludgeoned his father with a sledgehammer. From the moment he asked a neighbor to call the sheriff, to talking with police, through various psychological examinations, during trial testimony, and at sentencing, defendant acknowledged killing his father, Michael DeHaven. Naturally, his appeal does not allege he did not do it, but this appeal centers upon defendant's mental fitness to stand trial and the trial court's determinations thereof.
¶ 5 On February 11, 2020, two days after defendant killed his father, the State charged defendant with three counts of first degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2020)). In the early stages of the prosecution, defense counsel filed a notice of intent to raise the affirmative defense of insanity. Counsel attached to the notice motions for a psychiatric and fitness examinations. The trial court took up defendant's motions in a July 15, 2020, hearing, granting the latter motion and continuing the former. The court, however, made clear it was not finding a bona fide doubt as to defendant's fitness.
¶ 6 Dr. Frank Froman, Ed.D., evaluated defendant in August 2020 to determine defendant's fitness for trial. Dr. Froman administered the Millon Multiaxial Clinical Inventory-IV and determined it indicated defendant experienced a "moderately severe mental disorder" consistent with "histrionic, narcissistic, turbulent, and paranoid style personality disorders." Dr. Froman outlined defendant's "difficulties" and "significant psychological issues" and believed he could benefit from further assessment by a forensic psychiatrist. He nevertheless opined defendant was fit to stand trial. Dr. Froman specifically noted defendant understood the charges against him and could fully cooperate with his attorney.
¶ 7 In an October 2020 hearing, defense counsel moved for another examination by a different provider to further assess defendant for fitness and sanity. The parties first confirmed the trial court had had not yet made a finding of bona fide doubt as to defendant's fitness. The court then granted the motion over the State's opposition, allowing the additional examination.
¶ 8 Dr. Terry Killian, M.D., conducted a forensic psychiatric evaluation on defendant in November 2020. Though he did "not have enough information to make a clear diagnosis," Dr. Killian diagnosed defendant with psychotic disorder, not otherwise specified. He found defendant unfit to stand trial. He explained defendant "demonstrated an adequate understanding of the nature and purpose of the proceedings against him," but "he does not appear capable of rationally assisting Mr. Dittmer in his own defense because [defendant's] delusional thinking (and his adamant denial that he is mentally ill) would substantially interfere with his ability to realistically assess all of his legal options in this case." Dr. Killian further opined, "within a reasonable degree of psychiatric certainty, that at the time of the killing of his father, Michael DeHaven, [defendant] was suffering from the effects of his psychotic disorder to the extent that he would have been unable to appreciate the criminality of his alleged conduct at that time."
¶ 9 Citing these dueling fitness reports from Dr. Froman and Dr. Killian, defense counsel asked the trial court to find there was a bona fide doubt as to defendant's fitness during a December 10, 2020, hearing. The parties presented to the court the reports from Dr. Froman and Dr. Killian, along with two e-mails from Dr. Froman. In those e-mails, Dr. Froman acknowledged Dr. Killian had more information on which to base his determination. Dr. Froman, however, observed he and Dr. Killian agreed that defendant had "significant psychological issues that need to be addressed pre-trial, and that a visit to McFarland for assessment and stabilization could be highly useful." Ultimately, the State took no position on the bona-fide-doubt issue. Noting it reviewed the two fitness reports and Dr. Froman's e-mails, the court found a bona fide doubt as to defendant's mental fitness for trial and set the matter for the next hearing.
¶ 10 A week later, during the fitness hearing, the parties stipulated to the admission of the fitness reports and e-mails. The State acknowledged it had not proved defendant fit by a preponderance of the evidence and asked the trial court to find defendant unfit. The court agreed the State did not meet its burden. It noted again it was "well aware of the reports that have been admitted into evidence, [and it had] reviewed them accordingly." The court found defendant unfit to stand trial but anticipated he could attain fitness within one year, if provided treatment. The court remanded defendant to the Illinois Department of Human Services (Department).
¶ 11 Due to COVID-19 pandemic restrictions, defendant did not gain admission to the Department until May 2021. One week into defendant's stay at McFarland Mental Health Center, the Department agreed with the trial court's prior fitness finding-defendant "remains Unfit to Stand Trial at this time." Less than two months later, the Department informed the court that defendant had attained fitness for trial. It attached to the letter a progress report and a psychological evaluation. Dr. Linda Lanier, Ph.D., who conducted a psychological evaluation on defendant for the Department, determined test "results do indicate the presence of a severe personality disorder with some paranoid elements." Dr. Lanier noted defendant showed no current psychotic disorder but may have done so in the past. Following a fitness examination, Dr. Lanier concluded defendant was "able to voice comprehension of his legal situation and legal terms and procedures, and he [was] capable of behaving in a self-serving manner." She further noted defendant "voice[d] insight about the benefits of cooperating with his attorney and state[d] his intention to do so."
¶ 12 On July 20, 2021, the parties reconvened before the trial court for another fitness hearing. The State's evidence included a 14-page exhibit containing the July 13, 2021, letter from the Department, the 90-day progress report, and the psychological evaluation. Without objection from the defense, the State presented the exhibit to the court. The record indicates there was then a "brief pause" in the proceedings, though the court did not go off the record. The State next informed the court it had no further evidence to present, the defense stated it had no evidence to submit, and the parties moved on to argument, which included the following:
"MS. MAST [(STATE'S ATTORNEY)]: Your Honor, the State would, after review-or the Court having an opportunity to review People's Exhibit No. 1, ask that the Court make a finding that the Defendant has been restored to fitness and that the State has met its burden by a preponderance of the evidence at this time.
THE COURT: Mr. Dittmer.
MR. DITTMER: I'd concur with the State, Your Honor.
THE COURT: All right. Then the Court in relation to the progress report and the findings by the Illinois Department of Human Services is going to make a finding that the State's met its burden by a preponderance of the evidence that in fact the Defendant has now obtained fitness.
The criminal case is able to proceed. The Defendant is being released from the jurisdiction of the Department of Human Services and treatment."
The court issued an order, which read, in part: "the Court having considered People's Exhibit #1, 90-day fitness to stand trial progress report and psychological evaluation submitted by the treatment supervisor, and any other evidence submitted by the parties[,] *** the Court finds by a preponderance of the evidence that the defendant has attained fitness." The case proceeded.
¶ 13 The matter culminated a four-day jury trial in May 2022. The State called several witnesses and presented more than 180 exhibits. Having previously withdrawn the insanity defense on defendant's direction, the defense invoked the affirmative defense that he struck his father with a hammer in self-defense. After one hour of deliberation, the jury found defendant guilty of first degree murder. In August 2022, the trial court sentenced defendant to 50 years in DOC followed by 3 years' MSR.
¶ 14 This appealed followed.
¶ 15 II. ANALYSIS
¶ 16 Defendant challenges his conviction, particularly, the trial court's July 2021 fitness order, arguing, "[t]he trial court failed to make an independent determination of [defendant's] fitness where, during the fitness hearing, the court only passively relied on the fitness report to make its determination." We agree, vacate the fitness finding, and remand for a retrospective fitness hearing.
¶ 17 A. Fitness
¶ 18" 'The due process clause of the fourteenth amendment bars prosecution of a defendant unfit to stand trial.'" People v. Gillon, 2016 IL App (4th) 140801, ¶ 20, 68 N.E.3d 942 (quoting People v. Holt, 2014 IL 116989, ¶ 51, 21 N.E.3d 695). The law, therefore, presumes a defendant is "fit to stand trial or to plead, and be sentenced." 725 ILCS 5/104-10 (West 2020); People v. Shaw, 2015 IL App (4th) 140106, ¶ 24, 44 N.E.3d 665. "Unfitness" is defined by statute: "A defendant is unfit if, because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10. The First District aptly distilled this definition when it explained "fitness involves a defendant's ability to function at trial, not his sanity or competence in other contexts." (Emphasis added.) People v. Gipson, 2015 IL App (1st) 122451, ¶ 29, 34 N.E.3d 560.
¶ 19 A defendant's potential unfitness can be raised by either party or the trial court "before, during, or after trial." 725 ILCS 5/104-11(a) (West 2020). If the court finds there is a bona fide doubt the defendant may be unfit, then it must resolve the doubt, and the State bears "the burden of proving that the defendant is fit by a preponderance of the evidence." 725 ILCS 5/104-11 (a), (c) (West 2020). At a fitness hearing, the trial court must decide whether the defendant is unfit to stand trial or plead based on the evidence before it. 725 ILCS 5/104-16(d) (West 2020). Such evidence may come in the form of stipulations from the parties. Indeed, the parties may stipulate to the content of the examining expert's expected testimony (i.e., he or she will testify in conformity with the submitted report), but parties cannot stipulate to the examining expert's conclusions (i.e., the defendant is fit or unfit). People v. Cook, 2014 IL App (2d) 130545, ¶ 14, 25 N.E.3d 717.
¶ 20 The law draws fine lines between allowable stipulations because it must be clear "[t]he ultimate decision as to a defendant's fitness must be made by the trial court, not the experts." People v. Contorno, 322 Ill.App.3d 177, 179, 750 N.E.2d 290, 292 (2001) (citing People v. Bilyew, 73 Ill.2d 294, 302, 383 N.E.2d 212 (1978)). To ensure courts make these final decisions by exercising independent discretion, we have said "the trial court 'should be active, not passive.'" Shaw, 2015 IL App (4th) 140106, ¶ 25 (quoting Gipson, 2015 IL App (1st) 122451, ¶ 29). The mandate for active, independent trial courts echoes in the fitness statute, which allows the trial court to "call its own witnesses and conduct its own inquiry." 725 ILCS 5/104-11(c) (West 2020). So while stipulations are allowed, "[a] trial court's determination of fitness may not be based solely upon a stipulation to the existence of psychiatric conclusions or findings." (Emphasis added and internal quotation marks omitted.) Cook, 2014 IL App (2d) 130545, ¶ 14.
¶ 21 Since due process requires more than a stipulation as to fitness, every fitness determination carries constitutional consequences. As a practical matter, the defendant's due process rights are violated when the trial court" 'relies exclusively on the parties' stipulation'" and" 'fails to conduct an independent [fitness] inquiry.'" (Emphasis added.) Gillon, 2016 IL App (4th) 140801, ¶ 24 (quoting Cook, 2014 IL App (2d) 130545, ¶ 15). By contrast, a court generally satisfies due process when its fitness finding" 'is based not only on a stipulation but also on its observations of the defendant and a review of a psychological report.'" Gillon, 2016 IL App (4th) 140801, ¶ 24 (quoting Cook, 2014 IL App (2d) 130545, ¶ 15). If the trial court employs best practices, the record will affirmatively show independent judicial discretion evidenced by analyzing the expert's report, recounting its own interactions with the defendant, comparing the expert's report to its own observations, questioning the defendant or defense counsel, or even calling its own witnesses. See People v. Thompson, 158 Ill.App.3d 860, 865, 511 N.E.2d 993, 996 (1987); Contorno, 322 Ill.App.3d at 179; Cook, 2014 IL App (2d) 130545, ¶¶ 14, 19-20; Shaw, 2015 IL App (4th) 140106, ¶ 26; 725 ILCS 5/104-11(c) (West 2020).
¶ 22 B. Restoring the Defendant to Fitness
¶ 23 Once a defendant is found unfit to stand trial, there arises a presumption he remains unfit until the State proves him fit at a valid subsequent hearing. Gillon, 2016 IL App (4th) 140801, ¶ 20. "[T]he procedural requirements of a hearing 'restoring' a defendant to fitness are no less stringent than those required in an initial [fitness] hearing" (People v. Greene, 102 Ill.App.3d 639, 642, 430 N.E.2d 219, 222 (1981)), meaning the State again bears the burden of proving defendant fit, and the trial court still may not singularly rely upon the parties' stipulation that the defendant has been restored to fitness (Thompson, 158 Ill.App.3d at 865). Restoring a defendant to fitness restarts the prosecution and subjects the defendant to the jeopardy of trial and sentencing. See 725 ILCS 104-20(b) (West 2020) (stating "the court shall set the matter for trial" after finding defendant restored to fitness). Because the defendant has already been deemed unfit, there is an inherent risk of errantly "restoring" him to fitness and thus trying and sentencing an unfit person, which due process forbids. See Gillon, 2016 IL App (4th) 140801, ¶ 27; see also People v. Westfall, 2018 IL App (4th) 150997, ¶ 52, 115 N.E.3d 1148. Consequently, the trial court should exercise "a high level of judicial scrutiny in a restoration hearing." Gillon, 2016 IL App (4th) 140801, ¶ 27.
¶ 24 Heightened scrutiny from the trial court may take various forms, depending upon the particular facts before it. For example, if the parties stipulate to the Department's report finding the defendant has been restored to fitness, high judicial scrutiny would give "careful consideration of the expert's opinion." Gillon, 2016 IL App (4th) 140801, ¶ 27. Or when presented with a stipulation, the court may need to take "[e]xtra precautions *** to ensure the bases and grounds set forth in the [Department's] report are justified and satisfactory to the court's determination." Gillon, 2016 IL App (4th) 140801, ¶ 27. Since Gillon, we have not elaborated on what "careful consideration" or "extra precautions" look like in real time restoration hearings, but we believe the best practices for finding a defendant has been restored to fitness are certainly no less than those for the initial fitness finding. See Greene, 102 Ill.App.3d at 643; supra ¶ 22. As before, the trial court needs to be active in determining a defendant's fitness, exercising judicial discretion. See Shaw, 2015 IL App (4th) 140106, ¶ 25 (reaffirming courts need to be active and not passive) It ultimately falls to the trial court "to ensure the defendant is indeed able to understand the nature of the proceedings and to assist in his own defense." Gillon, 2016 IL App (4th) 140801, ¶ 27.
¶ 25 C. Standard of Review
¶ 26 Whether made in the context of an initial fitness hearing or in a restoration hearing, we ordinarily review a trial court's fitness finding for an abuse of discretion. See Shaw, 2015 IL App (4th) 140106, ¶ 25. "A trial court abuses its discretion when its ruling is arbitrary, fanciful, unreasonable, or when no reasonable person would take the view adopted by the trial court." Westfall, 2018 IL App (4th) 150997, ¶ 54. But since fitness issues implicate fourteenth amendment due process, before we can show any deference to the trial court's decision, "the record must affirmatively show that the court's fitness determination was the product of judicial discretion and judgment." Gillon, 2016 IL App (4th) 140801, ¶ 21 (citing Gipson, 2015 IL App (1st) 122451, ¶ 29).
¶ 27 With these principles in tow, we turn to the issue at hand.
¶ 28 D. The July 2021 Restoration Hearing
¶ 29 Defendant argues the trial court erred by exclusively relying upon the Department's determination that he had been restored to fitness rather than exercising judicial discretion and judgment. He acknowledges he forfeited this issue by failing to raise it during trial, sentencing, or in a posttrial motion, yet he maintains we can reach the issue through the plain error doctrine. We agree. Fitness determinations involve a fundamental right and necessarily ask questions with constitutional dimensions, making them reviewable for plain error. People v. Thomas, 246 Ill.App.3d 708, 712, 616 N.E.2d 695, 697 (1993); Shaw, 2015 IL App (4th) 140106, ¶ 23; Gillon, 2016 IL App (4th) 140801, ¶ 19.
¶ 30 Considering the particular facts and the record before us, it appears the trial court based its restoration finding solely on the Department's report (and the parties' agreement) concluding defendant had been restored to fitness. In our view, the brief restoration hearing was perfunctory, at best. Without objection from the defense, the State presented to the court one exhibit, comprising "a letter dated July 13th of 2021 from McFarland Mental Health Centers indicating that the Defendant has obtained fitness, along with a 90-day fitness exam trial progress report and a psychological evaluation." The court admitted the exhibit and the report of proceedings next indicates a "Brief pause" in the hearing-presumably for the court to review the documents. Neither party presented further evidence.
¶ 31 The State then made a short argument, asking, "after review-or the Court having an opportunity to review People's Exhibit No. 1," for the trial court to "make a finding that the Defendant has been restored to fitness and that the State has met its burden by a preponderance of the evidence at this time." Defense counsel offered an even shorter argument, saying, "I'd concur with the State, Your Honor." Though not a stipulation, per se, the parties parroted the Department's conclusion that defendant had been restored to fitness and presented it for the court's consideration. Neither party referenced a particular finding in the reports. The court immediately responded: "All right. Then the Court in relation to the progress report and the findings of the [Department] is going to make a finding that the State's met its burden by a preponderance of the evidence that in fact the Defendant has now obtained fitness." The court's written order was likewise perfunctory.
¶ 32 Simply put, this record does not affirmatively show an exercise of judicial discretion, let alone a high level of judicial scrutiny, when deeming defendant had been restored to fitness. See Shaw, 2015 IL App (4th) 140106, ¶ 25-26; Gillon, 2016 IL App (4th) 140801, ¶ 27. We do not mean to imply the trial court must conduct some complex analysis in every case, but merely that the court show it has independently made the determination defendant has been restored to fitness. While the parties may not have offered a formal stipulation to the Department's fitness finding, they both agreed with the Department's conclusion and offered it alone for the court's consideration. A trial court cannot restore a defendant to fitness based solely on the parties' agreement or the Department's conclusion. See Thompson, 158 Ill.App.3d at 865 ("Given this presumption of unfitness, a finding of fitness may not be based on a stipulation to psychiatric conclusions."). There must be something more. Yet there were no indications the court gave "careful consideration" to the issue or took "extra precautions" before restoring defendant to fitness. See Gillon, 2016 IL App (4th) 140801, ¶ 27. There was no explanation for the finding, no questions for defendant or counsel. See Thompson, 158 Ill.App.3d at 865. There was no analysis comparing the Department's conclusion to the court's own observations. See Contorno, 322 Ill.App.3d at 179. There was no mention of defendant's ability to understand the nature of the proceedings or assist his attorney. See 725 ILCS 5/104-10 (West 2020); Gillon, 2016 IL App (4th) 140801, ¶ 27. The State's brief invites us to speculate that the trial court made these considerations internally, telling us what the court might have or could have considered based on prior events. We will not speculate, nor should we. The error is clear and obvious from the brief record before us. There was no active discretion from the court here. Its passive assent to the Department's finding and the parties' agreement did not satisfy due process's demands. See Shaw, 2015 IL App (4th) 140106, ¶ 25; Gillon, 2016 IL App (4th) 140801, ¶ 21.
¶ 33 Having thus found plain error here, we consider the appropriate remedy.
¶ 34 E. Retrospective Fitness Hearing
¶ 35 Defendant urges proper relief would be vacating the fitness finding and remanding for a new fitness hearing. We agree. Though once disfavored," 'retrospective fitness hearings are now the norm.'" Gipson, 2015 IL App (1st) 122451, ¶ 38 (quoting People v. Mitchell, 189 Ill.2d 312, 339, 727 N.E.2d 254, 270 (2000)). "A retrospective fitness hearing requires the same active role of the court in assessing the defendant's fitness as an original fitness or restoration hearing." People v. Payne, 2018 IL App (3d) 160105, ¶ 15, 116 N.E.3d 965. The court must make "an independent evaluation and determination of fitness." Payne, 2018 IL App (3d) 160105, ¶ 15.
¶ 36 We acknowledge there can be practical (if not theoretical) pitfalls when holding a retrospective fitness hearing more than a year after the original fitness determination. Cook, 2014 IL App (2d) 130545, ¶ 22 (discussing People v. Neal, 179 Ill.2d 541, 689 N.E.2d 1040 (1997)). Though we are nearly two years removed from the trial court's determination restoring defendant to fitness, a retrospective fitness hearing should be possible and productive because the only evidence presented in the July 2021 hearing was the Department's documents. The court may recall its own observations and interactions with defendant and then compare and contrast those to the Department's findings and conclusions. We are confident the trial court will know full well this case's entire trajectory. Of course, the court may ask for additional evidence or argument from the parties. It may well "call its own witnesses and conduct its own inquiry." 725 ILCS 5/104-11(c) (West 2020).
¶ 37 Because we agree with defendant on the fitness argument, we need not address his remaining arguments here. Depending upon the outcome of the retrospective fitness hearing, defendant will be able to raise those arguments again.
¶ 38 III. CONCLUSION
¶ 39 For the reasons stated, we vacate the trial court's fitness restoration determination and remand for a retrospective fitness hearing.
¶ 40 Vacated and remanded.
¶ 41 JUSTICE STEIGMANN, specially concurring:
¶ 42 Although I agree with my distinguished colleagues in the majority, I nonetheless specially concur because I wish to reiterate the special concurrence I wrote on the same issue in People v. Shaw, 2015 IL App (4th) 140106, ¶¶ 52-74.