People v. Payne

2018 IL App (3d) 160105

Opinion filed March 9, 2018
_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2018

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-16-0105
v. ) Circuit No. 10-CF-460

)

EDJUAN PAYNE, ) Honorable

) Stephen Kouri,
Defendant-Appellant. ) Judge, Presiding.

_____________________________________________________________________________

JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

Presiding Justice Carter and Justice Wright concurred in the judgment and opinion.

_____________________________________________________________________________

OPINION

¶1 The defendant, Edjuan Payne, appeals from a retrospective fitness finding that he was

restored to fitness, entered pursuant to this court’s remand in People v. Payne, 2015 IL App (3d)

120147-U.

¶2 FACTS

¶3 The facts are more fully set forth in this court’s prior order, Payne, 2015 IL App (3d)

120147-U. The victim in this case, O.D., was found dead in an alley on May 13, 2010. Her infant
 granddaughter was found with her, injured but alive. The defendant was charged with two counts

of murder for the death of O.D. and attempted murder and aggravated battery of a child for the

injuries to the granddaughter. Prior to trial, the defendant was examined by Dr. Ryan Finkenbine

regarding the defendant’s fitness and sanity. On August 27, 2010, the parties stipulated that if Dr.

Finkenbine was called as a witness, he would testify that he diagnosed the defendant with a

psychiatric mood disorder and concluded that the defendant was not fit to stand trial at that time.

The trial court found the defendant unfit to stand trial.

¶4 Dr. Nageswararao Vallabhaneni filed a 90-day fitness evaluation report with the court,

dated February 17, 2011, indicating that the defendant did not have a serious mental illness and

performed well on the fitness test. At the fitness restoration hearing on March 11, 2011, defense

counsel indicated that, based on that report, the defendant had attained fitness for trial. He stated

that the parties stipulated to the report and that Dr. Vallabhaneni would testify consistent with the

report. Defense counsel also stated that the defense would stipulate to the finding of fitness. The

prosecutor agreed with the stipulation and finding. The trial court stated that it would make the

finding based on the stipulation that the defendant was now fit to stand trial. The defendant went

to trial and was convicted of all counts.

¶5 On appeal, the defendant challenged the fitness restoration hearing, arguing that the trial

court failed to make an independent determination of the defendant’s fitness to stand trial. This

court found that it was ambiguous whether the finding of fitness was based upon the trial court’s

analysis and evaluation of the expert’s stipulated testimony, which was proper, or whether the

finding was based on the parties’ stipulation of the ultimate conclusion that the defendant was fit,

which was not proper. Thus, this court remanded for a retrospective fitness hearing, ordering the

trial court to consider Dr. Vallabhaneni’s February 17, 2011, report regarding the defendant’s

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 fitness, as well as the transcripts of the hearings between the original finding of unfitness on

August 27, 2010, and the March 2011 fitness restoration hearing.

¶6 On remand, the trial court and the defense attorney expressed confusion regarding the

stipulation regarding fitness. The trial court stated that it did not rely upon defense counsel’s

stipulation as to the defendant’s fitness and had instead made a finding that the defendant was fit

for trial based upon the content of the reports. At the retrospective fitness hearing, the trial court

clarified that it did not rely upon the stipulation of fitness, reviewed the February 2011 report,

considered the stipulation that the doctor would testify consistently with that report, and found

retroactively that the defendant was fit to stand trial. The trial court noted that there was nothing

at trial that made him question that finding. The trial court did not indicate that it considered the

transcripts of the hearings between August 27, 2010, and March 2011, although he was the trial

court judge for those hearings. The defendant appealed.

¶7 ANALYSIS

¶8 The defendant argues that the trial court did not comply with the mandate on remand

from this court for a retrospective fitness hearing. The defendant points out that the trial court

made no mention of the transcripts of the hearings referenced by the appellate court. The State

argues that the trial court properly followed the mandate. It also argues that the defendant waived

the issue by agreeing to the procedure used by the trial court.

¶9 Where directions from a reviewing court are specific, the court to which the cause is

remanded has a positive duty to enter an order or decree in accordance with the directions

contained in the mandate. People ex rel. Daley v. Schreier, 92 Ill. 2d 271, 276 (1982). Whether

the trial judge complied with this court’s mandate is a question of law subject to de novo review.

Emerald Casino, Inc. v. Illinois Gaming Board, 366 Ill. App. 3d 113, 118 (2006).

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¶ 10 Under principles of due process, a defendant may not be prosecuted if he is unfit to stand

trial. People v. Shum, 207 Ill. 2d 47, 57 (2003). A defendant is presumed to be fit to stand trial or

to plead, but he will be found unfit if his mental or physical condition prevents him from

understanding the nature and purpose of the proceedings against him or from assisting in his own

defense. Id.; 725 ILCS 5/104-11(a) (West 2010). If there is a bona fide doubt concerning the

defendant’s fitness, the trial court must hold a fitness hearing. Shum, 207 Ill. 2d at 57. At the

fitness hearing, the State bears the burden of proving that the defendant is fit by a preponderance

of the evidence. 725 ILCS 5/104-11(c) (West 2010). A defendant who has previously been found

unfit is presumed to remain unfit until there has been a valid hearing finding him fit. People v.

Thompson, 158 Ill. App. 3d 860, 865 (1987). The trial court’s role in assessing the defendant’s

fitness must be an active determination, not reliant solely on an expert’s conclusion that the

defendant is fit. People v. Gipson, 2015 IL App (1st) 112451, ¶¶ 29-30.

¶ 11 Historically, when a defendant was denied his right to a fitness hearing, courts

automatically reversed the defendant’s conviction and remanded for a new trial. See, e.g., People

v. Gevas, 166 Ill. 2d 461, 467-68 (1995); People v. Birdsall, 172 Ill. 2d 464, 479 (1996). 1 For

example, in Gevas, the Illinois Supreme Court reversed the defendant’s convictions for

murdering his two infant children, finding that the trial court should have held a fitness hearing.

Gevas, 166 Ill. 2d at 467-68. The Gevas court found that, two years later, it would be impossible

to conduct a meaningful retrospective hearing as to defendant’s fitness at the time of trial and

sentencing. Id. at 471. In reversing and remanding, the Gevas court noted that relatively few

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For the most part, the bona fide doubt as to the defendant’s fitness in these cases arose by virtue
of an old version of section 104-21 of the Code of Criminal Procedure (725 ILCS 5/104-21(a) (West
1994)) that was interpreted as providing that, if the defendant was taking psychotropic medication, there
was a bona fide doubt as to the defendant’s fitness, and a fitness hearing must be held. That statute has
been amended to remove the presumption of unfitness solely by virtue of the psychotropic drugs. 725
ILCS 5/104-21(a) (West 2010). However, the cases are still applicable here in terms of the remedy when
the defendant’s fitness hearing is inadequate.
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 judicial resources had been expended on the case, as defendant pleaded guilty and the sentencing

hearing was very brief. Id. at 472.

¶ 12 In People v. Burgess, 176 Ill. 2d 289, 303 (1997), however, the supreme court—while

acknowledging its previous stance on retrospective fitness hearings and noting the difficulty of

determining the mental functioning of the defendant after the fact—departed from the rule of

automatic reversal in the context of a prior version of the statute, which stated that a defendant

who was receiving psychotropic drugs was entitled to a hearing on the issue of fitness (725 ILCS

5/104-21(a) (West 1994)). The court accepted the trial court’s finding at a special supplemental

hearing that the defendant was not impaired by those drugs at the time of trial.

¶ 13 Following Burgess was the case of People v. Neal, 179 Ill. 2d 541 (1997), a case also

concerned with psychotropic drugs and no fitness hearing under section 104-21(a) of the Code of

Criminal Procedure (725 ILCS 5/104-21(a) (West 1996)). The Neal court determined that the

procedural context of a retrospective fitness hearing did not matter, i.e., whether it was pursuant

to a remand order on direct review or in postconviction proceedings, but that the passage of time

could matter. Neal, 179 Ill. 2d at 553. The Neal court noted that a delay of more than a year

would be problematic but not necessarily dispositive. Id. The court stated that

“retrospective fitness determinations will normally be inadequate to protect a defendant’s

due process rights when more than a year has passed since the original trial and

sentencing. In exceptional cases, however, circumstances may be such that the issue of

defendant’s fitness or lack of fitness at the time of trial may be fairly and accurately

determined long after the fact. In such cases *** a defendant will not automatically be

entitled to have his original conviction and sentence automatically set aside for a new

trial.” Id. at 554.

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 The Neal court found that a case-by-case approach was better and found no problem with the

retrospective fitness hearing conducted 15 years after the defendant’s trial and sentencing. Id.

¶ 14 Rather than automatic reversal, “ ‘retrospective fitness hearings are now the norm.’ ”

Gipson, 2015 IL App (1st) 112451, ¶ 38 (quoting People v. Mitchell, 189 Ill. 2d 312, 339

(2000)). This court has already considered the propriety of a new fitness hearing and, despite the

passage of three years, determined that the defendant’s fitness to stand trial could be “fairly and

accurately determined” upon remand for a retrospective fitness hearing. Payne, 2015 IL App

(3d) 120147-U, ¶ 65. However, it is clear that the trial court had difficulty with the appellate

court’s instructions on remand and seemed to believe that an explanation for the ruling at the

previous fitness hearing was all that was being required, rather than a hearing. We will review

the proceedings on remand, however, to determine if the findings on remand comported with due

process.

¶ 15 Since the defendant was found unfit, the presumption was that he remained unfit until the

contrary was shown. Gipson, 2015 IL App (1st) 112451, ¶ 36. At the retrospective fitness

hearing, the question was whether the trial court could rule out the possibility that the defendant

was still unfit. Id. 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. The record must

show that, although the trial court may consider an expert’s stipulated findings regarding a

defendant’s fitness, the trial court did not rely solely on stipulations, or a stipulation as to

ultimate fitness, and made an independent evaluation and determination of fitness. Id. ¶¶ 29-30.

¶ 16 At the retrospective fitness hearing, the trial court in this case clarified that it did not rely

upon the stipulation of fitness, reviewed the February 2011 report, considered the stipulation that

the doctor would testify consistently with that report, and found retroactively that the defendant

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 was fit to stand trial. It noted that there was nothing at trial that made it question that finding.

The trial judge on remand was the same judge who presided over all of the proceedings

subsequent to the original hearing where the defendant was found unfit. Cf. Gipson, 2015 IL App

(1st) 122451, ¶¶ 15, 35 (fitness restoration hearing was insufficient when expert opinions

conflicted, the hearing was the judge’s only contact with the defendant, and the judge did not

question the defendant or defense counsel). While a better approach would have been to conduct

a full retrospective fitness hearing on the record in accordance with our remand order, the

proceedings on remand were sufficient so as to afford the defendant due process. The trial

court’s conclusion that the defendant had been restored to fitness prior to trial, based upon its

own observations of the defendant, along with the expert’s stipulated findings, was a sufficient

independent evaluation and determination of fitness. See People v. Stahl, 2014 IL 115804, ¶ 26

(“Ultimately, fitness must be judged based on the totality of the circumstances.”).

¶ 17 CONCLUSION

¶ 18 The judgment of the circuit court of Peoria County is affirmed.

¶ 19 Affirmed.

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