People v. Adkinson

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190300-U

Order filed June 23, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0300 v. ) Circuit No. 10-CF-437 ) JEFFREY A. ADKINSON, ) Honorable ) Michael D. Risinger, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAUGHERITY delivered the judgment of the court. Justices Holdridge and Lytton concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) Defendant made a substantial showing that trial counsel provided ineffective assistance when he withdrew his motion for a fitness evaluation. (2) Postconviction counsel failed to comply with Rule 651(c).

¶2 Defendant, Jeffrey A. Adkinson, appeals from the Tazewell County circuit court’s

second-stage dismissal of his postconviction petition. First, defendant argues that the court erred

in dismissing his petition because he made a substantial showing of ineffective assistance of trial

counsel. Second, defendant contends that postconviction counsel did not comply with Illinois

Supreme Court Rule 651(c) (eff. July 1, 2017). We reverse and remand with directions. ¶3 I. BACKGROUND ¶4 The State charged defendant by indictment with two counts of aggravated criminal sexual

abuse (720 ILCS 5/12-16(d) (West 2010)) and one count of predatory criminal sexual assault of

a child (id. § 12-14.1(a)(1)). ¶5 On September 9, 2010, counsel filed a motion raising a bona fide doubt of defendant’s

fitness and requesting a fitness evaluation. The motion indicated counsel’s observations of

defendant during an interview in the jail. Counsel indicated that defendant was

noncommunicative, did not properly care for himself, heard voices that taunted him and told him

to do things, spoke in a low voice so rapidly that he could not be understood, refused to be

brought from the jail to court, was either unwilling or unable to eat, and had been delusional for a

consistent period of time. ¶6 On December 14, 2010, counsel reported that defendant was entering a guilty plea and

counsel was withdrawing his motion raising a bona fide doubt of defendant’s fitness. Counsel

noted on that date and one previous meeting, defendant was “lucid, coherent, understanding,

comprehending, [and] able to communicate.” Subsequently, defendant entered a negotiated

guilty plea to all three charges in exchange for concurrent 3-year sentences on the two

aggravated criminal sexual abuse charges and a consecutive 12-year sentence on the predatory

criminal sexual assault of a child charge. Prior to accepting defendant’s plea, the court inquired

whether defendant was taking any drugs or medication. Defendant indicated that he was taking

two drugs “for psychotic.” Defendant affirmed that he was taking those medications as directed,

he was thinking clearly, and he understood the proceedings and his conversations with counsel. *3 ¶7 Following the State’s factual basis, the court asked defendant if the recitation was

accurate. Defendant responded, “I guess, yeah. I say yes, because I don’t remember half of it,

Your Honor, so I can’t really—I would go with the flow, but yes.” The court accepted

defendant’s negotiated plea. Defendant did not file a postplea motion or notice of appeal. ¶8 On March 25, 2013, defendant filed a postconviction petition as a self-represented

litigant. In his petition, defendant argued that he received ineffective assistance of counsel

because, in part, trial counsel proceeded with the case despite defendant’s known medical issues.

The court appointed postconviction counsel, who filed an amended petition but failed to

supplement the petition with defendant’s medical records. The court dismissed defendant’s

petition. ¶9 On appeal, we found that postconviction counsel was ineffective for failing to include in

the amended petition trial counsel’s initial fitness concerns and defendant’s medical and mental

health records from the county jail. People v. Adkinson, 2016 IL App (3d) 140241-U, ¶ 13. We

remanded with directions to appoint new counsel for second-stage proceedings. ¶ 10 On remand, newly appointed postconviction counsel requested a fitness evaluation, and

defendant was found unfit on May 8, 2018. On September 6, 2018, postconviction counsel filed

an amended petition for second-stage postconviction proceedings. Postconviction counsel’s

amended petition alleged that trial counsel was ineffective for allowing defendant to plead guilty

“when he did not have the mental faculties to plead guilty, especially because of the medications

the Defendant was receiving.” Counsel did not file a Rule 651(c) certificate. ¶ 11 Postconviction counsel attached defendant’s medical records from the county jail and

information regarding defendant’s prescriptions. The records show defendant’s prescriptions and

how often the jail administered those prescriptions from September to December 2010.

Specifically, defendant was taking Haldol, and its side effects include loss of balance and

control, dizziness, lightheadedness or fainting, hallucinations, and confusion. On October 11,

2018, the court found defendant fit and continued the postconviction proceedings. ¶ 12 Defendant’s medical records documented that a few months prior to defendant’s plea in

2010, defendant heard voices and had suicidal thoughts. Defendant was prescribed five

milligrams of Haldol. Following the prescription, reports indicated that defendant felt better,

heard less voices, and seemed to be “grounded in reality.” Later, defendant exhibited acute

symptoms of anxiety and depression. Following these symptoms, and prior to defendant’s plea,

defendant’s Haldol prescription was raised from 5 milligrams to 10 milligrams. ¶ 13 The court dismissed defendant’s petition. Defendant appealed. ¶ 14 II. ANALYSIS ¶ 15 A. Postconviction Claim ¶ 16 Defendant argues that the court erred when it dismissed his second-stage postconviction

petition because he made a substantial showing of ineffective assistance of trial counsel.

Defendant contends that trial counsel was ineffective for failing to persist in his request for a

fitness evaluation and allowing defendant to plead guilty. ¶ 17 The Post-Conviction Hearing Act permits a criminal defendant to challenge the

proceedings which resulted in his conviction by asserting that “there was a substantial denial of

his or her rights under the Constitution of the United States or of the State of Illinois or both.”

725 ILCS 5/122-1(a)(1) (West 2018). At the second stage of postconviction proceedings, the

circuit court must assume the truth of the allegations contained in the petition and the attached

documentation unless positively rebutted by the record. People v. Pendleton, 223 Ill. 2d 458, 473

(2006). If defendant fails to make a substantial showing that he suffered a constitutional

violation, the petition is dismissed. People v. Edwards, 197 Ill. 2d 239, 246 (2001). Where a

substantial showing of a constitutional violation has been established, however, the petition

advances to a third-stage evidentiary hearing. Id. The substantial showing test is “a measure of

the legal sufficiency of the petition’s well-pled allegations of a constitutional violation, which if

proven at an evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original.)

People v. Domagala, 2013 IL 113688, ¶ 35. ¶ 18 To merit an evidentiary hearing on an ineffective assistance claim, the defendant must

make a substantial showing that counsel’s performance was deficient, and that the deficiency

prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688 (1984). Generally,

matters of trial strategy are not subject to claims of ineffective assistance of counsel. People v.

Manning, 241 Ill. 2d 319, 327 (2011). Under the deficient performance prong, defendant must

show that counsel’s performance was objectively unreasonable under prevailing professional

norms. Domagala, 2013 IL 113688, ¶ 36. Under the prejudice prong, the question is not whether

a different verdict would have been reached, but whether counsel’s performance undermined

confidence in the outcome. People v. Evans, 209 Ill. 2d 194, 220 (2004). In People v. Harris,

206 Ill. 2d 293 (2002), our supreme court explained the prejudice requirement where defendant

alleges that counsel failed to request a fitness hearing.

“To establish that the failure to request a fitness hearing prejudiced a

defendant within the meaning of Strickland, a defendant must show that facts

existed at the time of trial that would have raised a bona fide doubt of his ability

‘to understand the nature and purpose of the proceedings against him or to assist

in his defense.’ [Citations.] ‘Defendant is entitled to relief *** only if he shows

that the trial court would have found a bona fide doubt of his fitness and ordered a

fitness hearing if it had been apprised of the evidence now offered.’ ” Id. at 304

(quoting People v. Easley, 192 Ill. 2d 307, 319 (2000)). ¶ 19 There are no fixed signs demonstrating a need for a fitness inquiry, and each case is fact

specific. People v. Tuduj, 2014 IL App (1st) 092536, ¶ 87. The issue is whether a defendant

could understand the proceedings and cooperate with counsel in his defense. Easley, 192 Ill. 2d

at 323. Factors to determine whether a bona fide doubt exists include defendant’s irrational

behavior, defendant’s demeanor at trial, and prior medical opinions on defendant’s competence

to stand trial. Tuduj, 2014 IL App (1st) 092536, ¶ 88. ¶ 20 In the present case, defendant’s petition made a substantial showing that trial counsel

provided deficient performance. As described in defendant’s petition and supporting medical

records, three months before the entry of defendant’s guilty plea, trial counsel observed

defendant’s mental health issues and raised a bona fide doubt as to defendant’s fitness and

requested a fitness evaluation. Despite defendant’s apparent mental health concerns, trial counsel

withdrew his request for a fitness evaluation and proceeded to a guilty plea hearing. After

reviewing the record, we see no strategic reason to withdraw trial counsel’s request for a fitness

evaluation. See Harris, 206 Ill. 2d at 303; see also Strickland, 466 U.S. at 689. Therefore,

defendant’s petition made a substantial showing that trial counsel’s performance was deficient

for not continuing to pursue the fitness concerns. ¶ 21 Defendant’s petition also made a substantial showing that trial counsel’s withdrawal of

his request for a fitness evaluation prejudiced defendant. The allegations in the petition and

medical records substantially established a bona fide doubt as to defendant’s ability to

understand the nature and purpose of the proceedings and assist in his defense. According to the

petition and medical records, defendant’s mental health issues included hearing voices, suicidal

thoughts, and incoherent mumbling. Additionally, defendant was taking psychotropic medication

that was known to cause loss of balance and control, dizziness, lightheadedness or fainting,

hallucinations, and confusion. Given these allegations, we find that counsel’s failure to persist in

his request for a fitness evaluation arguably prejudiced defendant. ¶ 22 Accordingly, the petition made a substantial showing of ineffective assistance of counsel.

We reverse the court’s dismissal of defendant’s petition and remand the cause for a third-stage

evidentiary hearing. See Evans, 209 Ill. 2d at 220. ¶ 23 B. Illinois Supreme Court Rule 651(c) ¶ 24 Defendant also argues that postconviction counsel did not comply with Rule 651(c). The

State concedes this issue. However, our ruling on the first issue renders analysis of the Rule

651(c) issue unnecessary. Nevertheless, we caution counsel on remand to comply with the

mandates of Rule 651(c) and file the required certificate. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). ¶ 25 III. CONCLUSION ¶ 26 The judgment of the circuit court of Tazewell County is reversed and remanded with

directions. ¶ 27 Reversed and remanded with directions.