# People v. Mallek > Appellate Court of Illinois · May 14, 2004 · 284 Ill. Dec. 734 URL: https://www.frixlaw.com/law-library/cases/9722672 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT MALLEK, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** May 14, 2004 - **Citations:** 284 Ill. Dec. 734; 348 Ill. App. 3d 1014; 810 N.E.2d 524; 2004 Ill. App. LEXIS 529 - **Precedential status:** Published - **Opinion:** Dissent by Holdridge - **Judges:** Holdridge, Slater - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9722672 ## Opinion text PRESIDING JUSTICE HOLDRIDGE, dissenting: I respectfully dissent. I disagree with the majority’s analysis of this court’s holding regarding fitness hearings in People v. Cleer, 328 Ill. App. 3d 428 , 766 N.E.2d 311 (2002). The procedures concerning fitness determinations for criminal defendants are governed by section 104 — 11 of the Code of Criminal Procedure of 1963 (725 ILCS 5/101 — 1 et seq. (West 2002)). Section 104 — 11 states: “(a) The issue of the defendant’s fitness for trial *** may be raised by the defense, the State or the Court ***. When a bona fide doubt of the defendant’s fitness is raised, the court shall order a determination of the issue before proceeding further. (b) Upon request of the defendant that a qualified expert be appointed to examine [the defendant] to determine prior to trial if a bona fide doubt as to [the defendant’s] fitness to stand trial may be raised, the court, in its discretion, may order an appropriate examination.” 725 ILCS 5/104 — 11(a), (b) (West 2002). The defendant in this case relies upon the ruling in Cleer, 328 Ill. App. 3d 428 , 766 N.E.2d 311 , for the proposition that the trial court erred by failing to hold a fitness hearing. In Cleer, we held that “[u]pon accepting [a] motion [for a fitness evaluation] and appointing a qualified expert, [a] trial court implicitly conclude[s] that a bona fide doubt as to the defendant’s fitness *** exist[s].” Cleer, 328 Ill. App. 3d at 431 , 766 N.E.2d at 314 . We further held that because a bona fide doubt has been raised when the court grants the motion for an evaluation, the trial court then must conduct a fitness hearing. Cleer, 328 Ill. App. 3d 428 , 766 N.E.2d 311 . Recently, the Illinois Appellate Court, First District, rejected our ruling in Cleer in People v. Hill, 345 Ill. App. 3d 620 , 803 N.E.2d 138 (2003). The Hill court stated that the holding of Cleer is contrary to the language of section 104 — 11(b) and Illinois Supreme Court precedent. The court in Hill points out that the plain language of section 104 — 11(b) contemplates the appointment of an expert to determine whether a bona fide doubt of the defendant’s fitness “may be raised.” The Hill court submits that the language of section 104 — 11(b) lends no support to the holding of Cleer. I agree that a literal reading of section 104 — 11(b) conflicts with our ruling in Cleer. Therefore, it is necessary to further clarify the holding of Cleer. Read literally, the language of section 104 — 11(b) leads to an absurd result because it does not comport with trial court practice. The term “bona fide” is a Latin phrase meaning “good faith.” Black’s Law Dictionary 168 (7th ed. 1999). A trial court would not exercise its discretion to grant a defendant’s request for a fitness evaluation without the defendant first stating a good-faith basis for the request. Moreover, a trial court would not grant a defendant’s request for an evaluation without defense counsel stating some factual basis for the request. However, under a literal reading of section 104 — 11(b), a defendant’s request for a fitness evaluation could be granted regardless of whether the defendant stated a good-faith factual basis for the request. The appointed expert then would be placed in the absurd position of determining whether there had been a good-faith basis for the request in the first place. Established rules of statutory construction, however, prevent a literal reading of a statute if such a reading would lead to an absurd result. People v. Hanna, 207 Ill. 2d 486 , 800 N.E.2d 1201 (2003). I would decline to read section 104 — 11(b) literally because to do so would lead to an absurd result. Instead, I would interpret section 104 — 11(b) to mean that once the defendant has raised a good-faith doubt concerning his fitness to stand trial, the trial court may exercise its discretion and appoint an expert to examine the defendant and to render an opinion concerning the defendant’s fitness. The expert’s evaluation then is evidence to be considered by the court at the subsequent fitness hearing required by section 104 — 11(a). The Hill court also rejected Cleer by asserting that its holding contradicted Illinois Supreme Court precedent from People v. Harris, 206 Ill. 2d 293 , 794 N.E.2d 181 (2002), People v. Burt, 205 Ill. 2d 28 , 792 N.E.2d 1250 (2001), People v. Easley, 192 Ill. 2d 307 , 736 N.E.2d 975 (2000), and People v. Eddmonds, 143 Ill. 2d 501 , 578 N.E.2d 952 (1991). In these cases, our supreme court stated that when determining whether a bona fide doubt of the defendant’s fitness exists, trial courts are to consider the following factors: (1) the defendant’s irrational behavior; (2) the defendant’s demeanor during the proceedings; and (3) any previous medical opinion on the defendant’s fitness. The Hill court asserted that if the granting of the defendant’s motion for a fitness evaluation was sufficient to create a bona fide doubt of the defendant’s fitness, these factors would become irrelevant. I disagree. The factors cited by the Hill court contain the kind of factual information required for a trial court to find that a good-faith basis exists to grant the defendant’s request for an evaluation. Thus, our holding in Cleer does not contradict Illinois Supreme Court precedent as asserted by the Hill court. In the present case, the trial court granted the defendant’s motion for a fitness evaluation. Under Cleer, once the court granted the motion, the trial court implicitly found a bona fide doubt of the defendant’s fitness to exist. Having determined that a bona fide doubt existed, it was mandatory for the trial court to hold a fitness hearing under the second sentence of section 104 — 11(a). Merely accepting the parties’ stipulation to the psychiatrist’s finding of fitness did not constitute a fitness determination by the trial court. The trial court must hold a hearing under section 104 — 11(a) in which it makes an affirmative riding, concerning the defendant’s fitness. People v. Contorno, 322 Ill. App. 3d 177 , 750 N.E.2d 290 (2001). Because the trial court did not exercise its discretion to determine the defendant’s fitness, the defendant’s due process rights were violated. Under Cleer, I would remand the cause for a proper fitness hearing and, if necessary, a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9722672. Public record. Not legal advice.