People v. Penn

NOTICE FILED
This Order was filed under
2022 IL App (4th) 210084-U February 22, 2022
Supreme Court Rule 23 and is Carla Bender
NO. 4-21-0084 4th District Appellate
not precedent except in the
limited circumstances allowed Court, IL
IN THE APPELLATE COURT
under Rule 23(e)(1).
OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
JOHN O. PENN, ) No. 19CF1020
Defendant-Appellant. )
) 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.
¶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.

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