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People v. Dutton
State: Illinois
Court: 5th District Appellate
Docket No: 5-01-0963 Rel
Case Date: 07/31/2003
                     NOTICE
Decision filed 07/31/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0963

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

v.

CHERYL DUTTON,

          Defendant-Appellant.

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Appeal from the
Circuit Court of
Marion County.

No. 01-CF-45

Honorable
John W. McGuire,
Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court:

The defendant, Cheryl Dutton, was charged with attempted first-degree murder (720ILCS 5/8-4(a) (West 2000)) and aggravated battery (720 ILCS 5/12-4(b)(1) (West 2000))after she stabbed her husband with a knife. Negotiations between the State and the defendantled to an agreement in which the defendant was found not guilty by reason of insanity. Thereafter, a dispositional hearing was held, during which defense counsel stipulated to areport which concluded that the defendant required inpatient treatment. The trial court foundthe defendant subject to involuntary commitment and committed her to the Department ofHuman Services (Department) for a period not to exceed 30 years. The defendant nowappeals from the order of the circuit court of Marion County finding her subject toinvoluntary commitment. On appeal, the defendant contends that her attorney abandonedhis role as her advocate and instead performed as a guardian ad litem. The defendant asksus to reverse the commitment order of the trial court and remand for further proceedings. We affirm.

FACTS

On January 27, 2001, one of the defendant's neighbors called the Marion Countysheriff's department to notify the police that the defendant's husband, Richard, had beenstabbed and was bleeding profusely. When deputies arrived at the neighbor's residence,Richard informed them that the defendant had stabbed him. The deputies then proceeded tothe Dutton residence, where they spoke with the defendant.

The defendant told the police that she and her husband had argued the night beforeand that she had gone home alone. The defendant said she took a butcher knife with her tobed as was her habit. During the night, someone entered her bedroom. The defendantthought it was an attacker, so she stabbed that person several times before realizing it washer husband.

The defendant's husband received medical treatment for his injuries and was laterinterviewed by law enforcement officials. He told officers that when he arrived home, hedid not see the defendant in the bedroom. However, when he turned around, he saw her standing in the doorway with a butcher knife. The defendant told him, "Prepare to meet yourmaker." She then stabbed him several times with the butcher knife.

On February 16, 2001, a bill of indictment was entered. It charged the defendant withattempted first-degree murder and aggravated battery. Defense counsel entered hisappearance and requested that the defendant undergo a psychiatric examination to determinewhether she was fit to stand trial. Dr. S.D. Parwatikar, a psychiatrist at Alton Mental HealthCenter, evaluated the defendant. During the interview, the defendant told Dr. Parwatikar adifferent story than what she had originally told the police.

The defendant told Dr. Parwatikar that she went to sleep, woke up, and found herhusband in critical condition with a knife in his stomach. She said she called 9-1-1 to reportthat she had stabbed her husband, but the dispatcher only laughed at her. Because she feltshe was not being taken seriously, she then called the county police, who also laughed at her. She said that while she was on the phone, her husband went to the neighbor's house. Thedefendant claimed to have no recollection of whether or not she stabbed her husband. Shetold Dr. Parwatikar that since her 19-year-old son had died five years previously, she hasbeen depressed. She explained that on the night of the stabbing, she had a dream that heryoungest son's father was beating her oldest son. She said that in her dream she was usinga knife to prevent him from beating her son but that in reality she must have been swingingthe knife at her husband.

Dr. Parwatikar found that while the defendant was fit to stand trial, she might havea valid insanity defense. Dr. Parwatikar specifically noted as follows:

"If the given circumstances and the sequence of events is accurate, then it is thiswriter's opinion[,] within a reasonable degree of psychiatric certainty[,] that at thetime of the criminal conduct, she lacked the capacity to appreciate the criminality ofit due to the presence of mental disease."

Dr. Parwatikar diagnosed the defendant with posttraumatic stress disorder, dysthymicdisorder, alcohol abuse, and dependent personality disorder.

After receiving Dr. Parwatikar's report, the parties entered into a plea agreement. Thedefendant agreed to plead not guilty by reason of insanity and to be referred to theDepartment for an evaluation to determine the type of treatment necessary. The defendantwas admonished that the Department could find outpatient treatment sufficient to treat heror that the Department could determine that long-term involuntary commitment to a mentalhealth facility was warranted. While the record reflects that the defendant was somewhatconfused, it also reflects that the trial court went over the consequences of the plea with thedefendant at least three times and that the defendant ultimately stated that it was her desireto plead not guilty by reason of insanity.

The trial court entered a finding of not guilty by reason of insanity and sent thedefendant to the Alton Mental Health Center for an evaluation. Dr. Muddasani Reddy fileda report that concluded: "It is the opinion of the treatment team of Alton Mental HealthCenter that [the defendant] is subject to involuntary admission and in need of inpatientservices. [The defendant] is appropriately placed in a moderately secure forensic facility atthis time." The report lists the defendant's long history of mental illness, includingdepression, anxiety, and difficulty relating to others. It notes the defendant's adolescenttrauma, including physical and emotional abuse, as well as later alcohol and prescriptiondrug abuse. The report lists the defendant's history of violent and dangerous behavior. Thereport also notes, "[The defendant] tends to repeatedly insist on being discharged to thecommunity, in spite of repeated counseling regarding the legal issues involved in her case." After receiving the evaluation, the trial court conducted a hearing to determinewhether the defendant was subject to involuntary admission. The parties stipulated to thereport signed by Dr. Muddasani. Defense counsel stated that while the defendant did notwant to be committed, it was in her "best interests" that she be committed to the Department. The defendant was allowed an opportunity to speak. The defendant told the trial court thatshe did not want to be "locked up" and felt she could progress and get a handle on her mentalillness by staying on her medication and continuing her counseling on an outpatient basis.The defendant explained that she wanted to be able to go to her son's gravesite and deal withher grief, which is what she believes triggered her disease. After the hearing, the trial courtfound that the defendant was subject to involuntary commitment, and the court committedthe defendant to the Department for a period not to exceed 30 years. The defendant filed atimely notice of appeal.

ANALYSIS

The defendant insists that her attorney failed to act as her advocate and instead tookon the role of guardian ad litem when he agreed that it was in her "best interests" to beinvoluntarily committed, despite his knowledge that the defendant requested a less restrictivetreatment plan. In support of her contention, the defendant relies on In re Jones, 318 Ill.App. 3d 1023, 743 N.E.2d 1090 (2001). In that case, we ruled that patients facinginvoluntary commitment or the administration of psychotropic medication have a statutoryright to counsel pursuant to sections 3-805 and 2-107.1 of the Mental Health andDevelopmental Disabilities Code (405 ILCS 5/3-805, 2-107.1 (West 1998)), respectively,and that, thus, it was improper to appoint guardians ad litem to represent them, rather thancounsel to advocate on their behalf.

In In re Jones, we specifically stated: "While a guardian ad litem may properlydetermine that psychotropic medication is in the respondent's best interest, an attorney isnecessary to advocate on the respondent's behalf. The roles necessarily conflict with oneanother." In re Jones, 318 Ill. App. 3d at 1027, 743 N.E.2d at 1093. We also found thateven though the guardians appointed to represent the respondents were licensed to practicelaw, the trial court's appointment of guardians ad litem, rather than advocates, failed tostrictly comply with the requirement that a person subject to involuntary commitment or theinvoluntary administration of psychotropic medication must be represented by an attorney. In re Jones, 318 Ill. App. 3d at 1027, 743 N.E.2d at 1094. We continue to abide by ourholding in In re Jones, but we find the defendant's reliance on In re Jones misplaced. Whereas In re Jones is a mental health case, the instant case is a criminal case.

Here, the trial court did not appoint a guardian ad litem to represent the defendant. The defendant was represented by an attorney who entered his appearance on behalf of thedefendant. The record shows that on January 31, 2001, attorney Michael McHaney enteredhis appearance after the defendant had been charged with attempted murder and aggravatedbattery. Thereafter, defense counsel requested that the defendant undergo a psychiatricexamination to determine whether she was fit to stand trial. Dr. Parwatikar examined thedefendant for the purpose of determining fitness. Dr. Parwatikar found the defendant fit tostand trial, but he also opined that the defendant might have a valid insanity defense if thedefendant's version of how the stabbing occurred proved accurate.

As pointed out in the facts portion of this opinion, the defendant's version of eventschanged throughout the course of the proceedings; nevertheless, defense counsel was ableto negotiate a plea with the State whereby the defendant would be allowed to plead not guiltyby reason of insanity and would be referred to the Department for an evaluation to determinewhat type of treatment was necessary. The negotiated agreement recognized that thedefendant could be admitted to a long-term psychiatric facility if the psychiatric evaluationfound that involuntary commitment was necessary. The defendant was carefully admonishedby the trial court that long-term involuntary commitment was a distinct possibility.

The sixth amendment to the United States Constitution grants a criminal defendantthe right to "the [a]ssistance of [c]ounsel for his defence." U.S. Const., amend. VI. TheUnited States Supreme Court has defined the right to the assistance of counsel as the rightto "the effective assistance of competent counsel." McMann v. Richardson, 397 U.S. 759,771, 25 L. Ed. 2d 763, 773, 90 S. Ct. 1441, 1449 (1970). Of all the rights an accused has,the right to be represented by counsel is by far the most important because it affects theability to assert any other rights the accused may have. See United States v. Cronic, 466U.S. 648, 654, 80 L. Ed. 2d 657, 104 S. Ct. 2039, 2044 (1984).

The general rule is that to prevail on a claim of ineffective assistance of counsel, adefendant must show that (1) counsel's representation fell below an objective standard ofreasonableness and (2) counsel's substandard representation so prejudiced the defendant thatit denied him or her a fair trial. People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246,1255 (1984) (citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.2052 (1984)). To show actual prejudice, a defendant must establish the following: "Thedefendant must show that there is a reasonable probability that, but for counsel'sunprofessional errors, the result of the proceeding would have been different. A reasonableprobability is a probability sufficient to undermine confidence in the outcome." Strickland,466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.

In the instant case, we find that the defendant received more than just merely effectiveassistance by defense counsel. After a careful consideration of the record before us, weagree with the State that defense counsel deserves praise, rather than criticism, fornegotiating an agreement favorable to the defendant and making sure the agreement wasenforced. As previously discussed, Dr. Parwatikar's opinion that the defendant might havea valid insanity defense was premised on the fact that the defendant's version of events wouldwithstand scrutiny. The fact that the defendant gave a differing version of the eventsindicates that Dr. Parwatikar's opinion on the issue of insanity at the time of the offensemight very well have changed. Had the case gone to trial, the State would certainly havebeen able to obtain a conviction due to all the incriminating evidence against the defendant. Accordingly, the defendant cannot show prejudice, because her defense attorney negotiateda plea whereby the defendant was actually acquitted of the charges against her on thegrounds of insanity.

While the defendant made it clear on the day the trial court committed her to theDepartment that she did not want to be confined to a mental health center, such an outcomewas not available to the defendant. The negotiated plea called for the defendant to becommitted to a mental health center if the psychiatric evaluation recommended that she becommitted. Given the defendant's prior convictions, history of mental illness, and historyof violence, a recommendation that the defendant receive outpatient treatment was highlyimprobable, and the defendant cannot show she was prejudiced by defense counsel'scomment that being involuntarily admitted was in the defendant's "best interests."

The parties agreed to abide by the recommendation in the psychiatric report and calledfor the trial court to act in accordance with the report. Under the circumstances, we find thatthe defendant received the effective assistance of counsel, and we disagree with thedefendant's contention that the trial court's commitment order must be reversed and the causeremanded for further proceedings.

CONCLUSION

For the foregoing reasons, the order of the circuit court of Marion County is herebyaffirmed.

Affirmed.

MAAG and DONOVAN, JJ., concur.

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