dissenting:
Relying on People v. Brandon (1994), 162 Ill. 2d 450, and section 104 — 21(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104 — 21(a) (West 1992)), the majority finds reversible error in the trial judge’s failure to conduct a fitness hearing in this case. Defense counsel requested the hearing after the defendant pleaded guilty to the murder of his two children and was sentenced to death for those offenses. In support of its holding, the majority notes that after sentencing, counsel informed the judge that, according to a psychiatrist’s report, the defendant had been receiving several different psychotropic drugs prior to his guilty plea. The majority believes that a hearing was therefore necessary under section 104 — 21(a), which provides, "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).) I do not agree with the majority that a fitness hearing was required in these circumstances, and therefore I dissent.
Today’s result rewards defense counsel’s admitted strategy of waiting until the unfavorable outcome of the sentencing hearing was known before requesting a fitness hearing. Defense counsel’s request for the hearing came some time after the defendant pleaded guilty to the murder of his two children and was sentenced to death for those offenses. In moving to withdraw the defendant’s guilty plea on the ground that the defendant was unfit, defense counsel candidly told the trial judge:
"If I may proceed first as to my motion to withdraw the defendant’s guilty plea. The motion is self-explanatory. There was some doubt about Mr. Gevas’s ability to cooperate with counsel. As I stated in my motion, I felt that the appropriate thing to do is to try to resolve the case because Mr. Gevas so desperately insisted on his case being resolved.
As I put in my motion, pages 9 and 10,1 was aware of some egregious murder cases you had heard and not imposed the death penalty. I decided not to proceed with the fitness hearing because of my strong belief that the death sentence would not be imposed because of my own — I don’t know what to call it, misconception of that.
THE COURT: I believe you call it trial strategy, not misconception, trial strategy.”
As the trial judge understood, defense counsel’s failure to request a hearing was a matter of trial strategy. While section 104 — 21(a) declares that a defendant receiving psychotropic drugs is entitled to a fitness hearing, the statute does not establish a defendant’s incompetency, say that a hearing must be held if the defendant refuses one, or excuse counsel’s failure to request a hearing in a timely manner. To be sure, an unfit defendant may not knowingly or intelligently choose to forgo a fitness hearing. (Pate v. Robinson (1966), 383 U.S. 375, 384, 15 L. Ed. 2d 815, 821, 86 S. Ct. 836, 841.) The trial judge in this case, however, was warranted in concluding that the defendant was fit and was justified in refusing counsel’s untimely request for a hearing. The trial judge had observed the defendant in the courtroom and had spoken with him during the plea proceedings. In addition, the trial judge had the benefit of an earlier psychiatric report, which failed to raise any doubt of the defendant’s competency. The defendant was examined by a separate psychiatrist pursuant to court order on January 29, 1993, shortly before he entered his guilty plea, and was found to be fit and sane at that time. The defendant wanted the case resolved, and counsel initially concurred in that decision. Counsel changed his mind, however, once the defendant was sentenced to death.
As the majority opinion acknowledges, the record does not even disclose whether the defendant was still taking any psychotropic drugs at the time of the plea hearings. Despite the report of January 29, 1993, which found the defendant both fit and sane, the majority concludes that the last date on which the defendant was reportedly receiving the drugs, January 13, 1993, was close enough in time to the plea hearings in February and March 1993 to have entitled the defendant to a fitness hearing when counsel later requested one. (166 111. 2d at 469.) If, as the majority insists, section 104 — 21(a) is to be applied to this case, then the proper course would be to remand for an evidentiary hearing to determine whether the defendant was still receiving drugs at the time of the plea hearing. To hold otherwise, as the majority does, seemingly establishes a presumption that prior treatment will automatically qualify a defendant for a hearing under section 104 — 21(a).
For the reasons stated, I do not agree with the majority’s conclusion that the trial court erred in refusing the defendant’s request for a fitness hearing. I would consider the remaining issues raised by the defendant in the present appeal.
CHIEF JUSTICE BILANDIC and JUSTICE HEIPLE join in this dissent.