No. 3--03--1005

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

The defendant appeals, contending that (1) the trial courterred in failing to conduct a fitness hearing, (2) the defendantis entitled to additional presentence custody credit and (3)section 5--4--3 of the Code is unconstitutional. We grant thedefendant additional presentence custody credit, but otherwiseaffirm.

On July 10, 2003, the defendant was charged with six countsof aggravated battery (720 ILCS 5/12--4 (West 2002)) and twocounts of attempted aggravated battery (720 ILCS 5/8--4, 12--4(West 2002)). Those charges arose out of incidents occurring onFebruary 25, 2003, and May 9, 2003, while the defendant was incustody at the Department of Corrections' Illinois Youth Center-Kewanee.

Defendant entered a negotiated plea of guilty to two countsof aggravated battery on August 22, 2003. In response toquestioning by the court, the defendant indicated that he was 19years old, was able to read and write, and was not addicted todrugs or alcohol. However, the defendant also stated he wastaking "a lot" of psychotropic medication for bipolar disorder,mood swings, and an anxiety disorder. A "Health Statute SummaryReport" filed on the date of the plea indicated that thedefendant was bipolar, for which he was taking several types ofmedication. The defendant indicated that these medications madehim feel "a little" better.

At one point during the hearing, the trial court asked thedefendant if he knew what charges he was pleading guilty to andwhether he had received enough time to speak with his attorneyabout his plea. The defendant gave equivocal answers to bothquestions. The trial court continued to question the defendantas to these points, ultimately receiving affirmative answers toboth questions. Thereafter, the court admonished the defendantin accordance with Supreme Court Rule 402. 177 Ill. 2d R. 402.

After a factual basis was presented, the trial court foundthe plea was knowing and voluntary. The court determined thatdefendant understood his rights, the nature of the charges andthe consequences of his guilty plea. The trial court thensentenced defendant to two concurrent four-year terms ofimprisonment, with 29 days of credit for time spent inpresentence custody. In addition, the defendant was ordered tosubmit to deoxyribonucleic acid (DNA) testing.

On September 17, 2003, the trial court received a letterfrom the defendant indicating that he wanted to withdraw his pleabecause he was suffering from mental illness on the date of theplea. The defendant subsequently filed a pro se motion towithdraw his guilty plea containing similar contentions. Soonthereafter, defense counsel filed an amended motion to withdrawthe defendant's guilty plea.

A hearing on the motion was held on December 15, 2003. Atthe hearing, defense counsel argued that the defendant's plea wasnot voluntary, largely because of the effects of the psychotropicmedication he was taking at the time. The defendant testifiedsimilarly, indicating that he did not understand the pleaproceedings because of his medication and his lack of education.

At the conclusion of the hearing, the trial court denied thedefendant's motion. The court found that it had determined thatdefendant was fit at the time he entered his plea and wassentenced. Furthermore, the trial court indicated that nothingin the current proceedings had changed its opinion on that issue.

A. Fitness Hearing

On appeal, the defendant first argues that, despite the factthat no relevant motion was made below, the trial court shouldhave sua sponte ordered a fitness hearing to determine if he wasfit to plead guilty. The defendant argues that his demeanor atthe plea hearing and his use of psychotropic medication mandatedthat result.

Generally, a defendant must object to an error at trial andinclude the issue in a posttrial motion to preserve it for reviewon appeal. People v. Basler, 193 Ill. 2d 545, 740 N.E.2d 1(2000). Because no objection was made at the plea hearing inthis case, this issue has been waived. However, plain errorsaffecting substantial rights may be reviewed by an appellatecourt despite the defendant's failure to raise the errors in thetrial court. 134 Ill. 2d R. 615(a). The plain error doctrineallows a reviewing court to consider defects affectingsubstantial rights if the evidence is closely balanced or ifrequired by fundamental fairness. People v. Donoho, 204 Ill. 2d159, 788 N.E.2d 707 (2003). Because of its implications for thefundamental fairness of the plea hearing, we choose to considerthe defendant's fitness argument in this case.

Due process bars the prosecution of a defendant who is notfit to stand trial. People v. Sandham, 174 Ill. 2d 379, 673N.E.2d 1032 (1996). The trial court has a duty to hold a fitnesshearing when a bona fide doubt has been raised with regard to adefendant's fitness. People v. Griffin, 178 Ill. 2d 65, 687N.E.2d 820 (1997). The question of whether a bona fide doubtexists is generally a matter within the discretion of the trialcourt. Sandham, 174 Ill. 2d 379, 673 N.E.2d 1032.

"A defendant is presumed to be fit to stand trial or toplead, and be sentenced. A defendant is unfit if, because of hismental or physical condition, he is unable to understand thenature and purpose of the proceedings against him or to assist inhis defense." 725 ILCS 5/104--10 (2002). However, a "defendantwho is receiving psychotropic drugs shall not be presumed to beunfit to stand trial solely by virtue of the receipt of thosedrugs or medications." 725 ILCS 5/104--21(a) (2002).

Additionally, in People v. Mitchell, 189 Ill. 2d 312, 727N.E.2d 254 (2000), the court held that taking of psychotropicmedication alone does not create a bona fide doubt as to adefendant's fitness to stand trial. Therefore, a trial court isnot required to conduct a fitness hearing based solely on thefact that the defendant was taking psychotropic medication at thetime of trial. Mitchell, 189 Ill. 2d 312, 727 N.E.2d 254. Rather, a court must view the totality of the circumstances indetermining whether a bona fide doubt as to a defendant's fitnessexists. People v. Easley, 192 Ill. 2d 307, 736 N.E.2d 975(2000). Relevant factors for the court to consider include adefendant's irrational behavior, his demeanor at trial and anyprior medical opinion as to the defendant's fitness. Easley, 192Ill. 2d 307, 736 N.E.2d 975.

In this case, a bona fide doubt was not raised as todefendant's fitness. Despite the defendant's initially equivocalanswers to the court's questioning, the court persisted andreceived proper responses to all of its questions. The defendantfully participated in the hearings, and his responses showed heunderstood the court's questioning. Moreover, the trial courtwas aware of the medication the defendant was taking andspecifically questioned him regarding that medication. Ultimately, the trial court stated:

"I *** find for the record that Mr. Chamberlainhas answered questions appropriately today, and despitethe fact that he's on psychotropic medication, theCourt does not find that the medicine affects hisability to act and think clearly in court, and I haveno question as to his fitness to stand trial or toenter a plea."

We find that the trial court appropriately considered thedefendant's demeanor in court and his use of psychotropicmedication, determining that there was no bona fide doubt as tohis fitness. Following our supreme court's decisions in Mitchelland Easley, we conclude that the trial court was not required toconduct a fitness hearing based on these circumstances.

B. Credit

Next, the defendant argues that he is entitled to additionalpresentence custody credit. He contends that he is entitled to15 days of credit for the time between when he was charged andwhen he was transferred from the youth center to the Henry Countyjail. The State contends that (1) the defendant has waived thisissue, and (2) because he was then serving a sentence on anunrelated offense, he is not entitled to credit for any time hespent at the youth center.

The State argues that this issue is waived because thedefendant entered a voluntary plea of guilty. However, thiscourt has repeatedly held that errors regarding sentencing creditwill not be deemed waived on appeal. See People v. Davis, 291Ill. App. 3d 552, 683 N.E.2d 1260 (1997). Therefore, we willaddress this issue.

Section 5--8--7(b) of the Unified Code of Correctionsprovides that an offender "shall be given credit *** for timespent in custody as a result of the offense for which thesentence was imposed." 730 ILCS 5/5--8--7(b) (1998). In Peoplev. Robinson, 172 Ill. 2d 452, 667 N.E.2d 1305 (1996), our supremecourt determined that this provision entitles a defendant tosentencing credit for both offenses when he is simultaneously inpresentence custody on two unrelated charges. The courtexplained that a defendant is considered in simultaneous custodywhen he is incarcerated on one charge and his bond in the otheris withdrawn or revoked. Robinson, 172 Ill. 2d at 458-59, 667N.E.2d at 1308 (citing People v. Arnhold, 115 Ill. 2d 379, 504N.E.2d 100 (1987)).

More recently, the court in People v. Spencer, 347 Ill. App.3d 483, 807 N.E.2d 1228 (2004), extended the rule of Robinson. In Spencer, the defendant was in custody serving a sentence on anunrelated crime at the same time as he was in presentence custodyon another charge. The reviewing court found that just as thedefendant in Robinson was simultaneously in presentence custodyon two unrelated charges, so too was the defendant in that casesimultaneously serving a sentence and in presentence custody. Spencer, 347 Ill. App. 3d 483, 807 N.E.2d 1228. As the courtnoted, "were the defendant in this case not serving his sentencefor possession ***, he still would have remained in custody as aresult of his failure to post a bond in the [other] case." Spencer, 347 Ill. App. 3d at 490, 807 N.E.2d at 1234. The courtthen awarded the defendant the requested credit. Spencer, 347Ill. App. 3d 483, 807 N.E.2d 1228.

We agree with the reasoning in Spencer. Once the defendantin this case was charged with the present offenses, he wassimultaneously serving his prior sentence and he was also inpresentence custody. Thus, he is entitled to credit for theentire period from the time he was charged until he wassentenced. Accordingly, we modify the mittimus to reflect anadditional 15 days of presentence credit.

C. Genetic Marker Testing

Finally, the defendant contends that section 5--4--3 of theCode violates his federal and state constitutional rights to befree from unreasonable searches and seizures. U.S. Const.,amend. IV; Ill. Const. 1970, art. I,