May 22, 2001

Nos. 2--00--0043 & 2--00--0351 cons.

JUSTICE GROMETER delivered the opinion of the court:

Defendant, Michael P. Contorno, was convicted of one count ofunlawful delivery of a controlled substance (720 ILCS 570/401(d)(West 1998)) following a jury trial in the circuit court of Du PageCounty (No. 99--CF--1250). Subsequently, the State filed apetition to revoke defendant's probation arising from a separatematter based upon this conviction (No. 97--CF--1953). The trialcourt granted this petition. Defendant now appeals both actions. Regarding his controlled-substance conviction, defendant contendsthat the trial court did not conduct a proper fitness hearing (see725 ILCS 5/104--16 (West 1998)) and that several evidentiaryerrors, discussed in an unpublished portion of this opinion,deprived him of a fair trial. He further asserts that therevocation of his probation cannot stand, as it is based solelyupon his controlled-substance conviction. For the followingreasons, we reverse and remand.

Prior to defendant's trial for unlawful delivery of acontrolled substance (720 ILCS 570/401(d) (West 1998)), defensecounsel, John Elias, represented to the court that defendant'sprobation officer believed defendant might not be fit to standtrial. Defense counsel moved for a fitness examination, and thecourt found that a bona fide doubt existed regarding defendant'sfitness. The trial court appointed Dr. Syed Ali, a psychiatrist,to conduct an examination of defendant. Dr. Ali prepared a three-page report, which stated defendant could assist in his defense,understood the nature of a trial and the roles of the participantsin a trial, could manage his behavior during a trial, and had thecapacity to testify relevantly.

At a subsequent hearing, the following colloquy ensued:

"MR. KENT: Good afternoon Judge. Scott Kent on behalf ofthe People.  I received a report from Mr. Elias from Dr. Ali.

MR. ELIAS: As to the fitness issue, Dr. Ali's report ishe finds him fit to stand trial. We would stipulate to thereport.

MR. KENT: As would the People, Judge.

THE COURT: All right. We'll show pursuant to stipulationthen he finds the defendant fit to stand trial."

There was no further discussion on this issue. The court alsoentered a written order stating that "pursuant to the People andDefense stipulation to the finding of Dr. Ali, Defendant is fit tostand trial."

Defendant now complains that the trial court merely acceptedthe stipulation of the parties to the findings of Dr. Ali ratherthan conducting a meaningful fitness hearing. Normally, a trialcourt's decision that a defendant is fit to stand trial will not bereversed absent an abuse of discretion. People v. Newell, 196 Ill.App. 3d 373, 377 (1990). However, because this issue is one ofconstitutional dimension, the record must show an affirmativeexercise of judicial discretion regarding the determination offitness. People v. Baldwin, 185 Ill. App. 3d 1079, 1088 (1989);People v. Turner, 111 Ill. App. 3d 358, 365 (1982); People v.Greene, 102 Ill. App. 3d 639, 642 (1981). When a bona fide doubtas to a defendant's fitness exists, the trial court has a duty tohold a fitness hearing. People v. Griffin, 178 Ill. 2d 65, 79(1997). Once a bona fide doubt has been raised, a court isempowered to conduct its own inquiry into the defendant's fitness. 725 ILCS 5/104--11(c) (West 1998). A trial court's determinationof fitness may not be based solely upon a stipulation to theexistence of psychiatric conclusions or findings. People v.Thompson, 158 Ill. App. 3d 860, 865 (1987); People v. Lewis, 103Ill. 2d 111, 115-16 (1984). However, where the parties stipulateto what an expert would testify, rather than to the expert'sconclusion, a trial court may consider this stipulated testimony inexercising its discretion. Lewis, 103 Ill. 2d at 116. Theultimate decision as to a defendant's fitness must be made by thetrial court, not the experts. People v. Bilyew, 73 Ill. 2d 294,302 (1978). A trial court must analyze and evaluate the basis foran expert's opinion instead of merely relying upon the expert'sultimate opinion. In re T.D.W., 109 Ill. App. 3d 852, 855 (1982). In the present case, the parties stated that they stipulatedto Dr. Ali's report. This stipulation is ambiguous in that it isunclear as to whether they were stipulating that Dr. Ali, ifcalled, would testify in conformance with his report or stipulatingto the report's ultimate conclusion. The trial court then statedthat "pursuant to stipulation then he finds the defendant fit tostand trial." "He" presumably refers to Dr. Ali. Again, thisstatement is ambiguous. It could be either an acknowledgment thatDr. Ali would testify that defendant was fit or an abdication bythe trial court of its role in the fitness hearing in deference toDr. Ali's opinion. Finally, the trial court's written order statesonly that, pursuant to the stipulation to the finding of Dr. Ali,defendant is fit. Thus, while this experienced trial judge mayhave made an independent determination of fitness, from the recordbefore us it appears only that the trial court merely accepted Dr.Ali's conclusion. No indication appears in the record that thecourt conducted any analysis of the doctor's opinion or exercisedits discretion in finding defendant fit. Accordingly, we mustconclude that defendant's fitness hearing was deficient. SeeThompson, 158 Ill. App. 3d at 864-65.

Further, we cannot consider this error harmless. As notedabove, fitness to stand trial is an issue of constitutionaldimension. Turner, 111 Ill. App. 3d at 365. Such an error may bedeemed harmless only if, after reviewing the entire record, it isdetermined that the error was harmless beyond a reasonable doubt. People v. Arman, 131 Ill. 2d 115, 127 (1989). In the present case,we are unable to come to such a conclusion. The extent of theevidence available to the trial court during the fitness hearingwas one three-page report of an examining psychologist. Defendantpoints to several reports, included in his presentenceinvestigation, which undermine the report relied on by the trialcourt. Accordingly, we cannot say that any error related todefendant's fitness hearing was harmless beyond a reasonable doubt.

Before leaving the fitness issue, we note that the Stateargues that defendant has waived it by failing to include it in hisposttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186(1988). While such issues are generally deemed waived, an issuemay be reviewed as plain error where it concerns a substantialright. People v. Basler, 193 Ill. 2d 545, 549 (2000). Thedetermination of a defendant's fitness to stand trial concerns asubstantial right, and plain-error review is appropriate. Peoplev. Lucas, 140 Ill. App. 3d 1, 6 (1986).

[Nonpublishable material under Supreme CourtRule 23 omitted here]

In light of the foregoing, we reverse the judgment of thecircuit court of Du Page County in appeal No. 2--00--0043 andremand the cause for a new fitness hearing and, if appropriate, anew trial. In light of this disposition, the revocation ofdefendant's probation in appeal No. 2--00--0351 cannot stand. SeePeople v. Lopez, 72 Ill. App. 3d 713, 717 (1979). That judgment ofthe circuit court of Du Page County also must be reversed and thecause remanded.

No. 2--00--0043, Reversed and remanded with directions.

No. 2--00--0351, Reversed and remanded.

McLAREN and RAPP, JJ., concur.