People v. Young

                                        THIRD DIVISION
                                        March 31, 1997




1-96-0680
1-96-0681 (consolidated)

THE PEOPLE OF THE STATE            )    Appeal from
OF ILLINOIS,                       )    the Circuit Court
                                   )    Cook County.
     Plaintiff-Appellee,           )
                                   )    
          v.                       )    
                                   )
EDDIE YOUNG,                       )    The Honorable
                                   )    Daniel J. Kelly,
     Defendant-Appellant.          )    Judge Presiding.


     Justice Leavitt delivered the opinion of the Court:    
     This appeal presents an issue concerning the interpretation
of section 104-25(g)(2) of the Code of Criminal Procedure of 1963
(the Code). (725 ILCS 5/104-25(g)(2) (West 1994).  Section 104-
25(g)(2) authorizes a trial judge, after finding a defendant is
unfit to stand trial and "subject to involuntary admission under
the Mental Health and Developmental Disabilities Code or
constitutes a serious threat to public safety," to order the
defendant involuntarily committed for treatment for a period
"equal to the maximum sentence to which the defendant would have
been subject had he *** been convicted in a criminal proceeding." 
The defendant has been committed to the Department of
Rehabilitation Services (DORS) pursuant to section 104-25(g)(2)
upon a finding that he poses a serious threat to public safety.
     This case has been before us previously, and we take
judicial notice of the order entered in People v. Young, No. 1-
95-0501 (1996) (unpublished order under Supreme Court Rule 23
(Young I).  On May 29, 1992, the defendant, Eddie Young, was
charged with the aggravated criminal sexual assault of a five
year old girl.  The defendant is a deaf-mute and does not know
sign language or any other language which he can use to
communicate effectively with counsel.  In August 1992, after
psychiatric and other evaluation, the trial judge found him unfit
to stand trial pursuant to section 104-16(d) of the Code, not
because he was mentally unfit, but due to his physical inability
to communicate.  The judge ordered him held in custody and that
he receive tutoring in sign language.  The judge also found,
under section 104-16(d), that the defendant would likely be fit
within one year.
     After a later finding by the judge that the defendant was
unlikely to become fit within one year, his lawyers moved for a
discharge hearing pursuant to section 104-25 of the Code, which
was conducted on December 15, 1994.  After hearing testimony from
the alleged victim of the sexual assault, as well as medical
stipulations about the victim, the trial judge found under
section 104-25(b) that the evidence established the defendant's
guilt beyond a reasonable doubt.  Because the defendant was
accused of a Class X felony, the judge committed the defendant to
the Department of Rehabilitation Services (DORS) and extended the
term of the defendant's treatment an additional two years, as
permitted by section 104-25(d)(1).
     In Young I, we upheld the trial judge's factual
determination that the evidence showed that the defendant was
guilty beyond a reasonable doubt for purposes of the Code. 
Briefly, the evidence showed that the defendant was the victim's
aunt's boyfriend.  The victim, who was five years old at the time
of the alleged offense, testified that the defendant pulled her
into his bedroom at her aunt's house, pushed her onto a bed and
ripped off her shirt while brandishing a knife.  He tied her arms
and legs to the bed and placed a pornographic film into a video
cassette recorder.  He then proceeded to penetrate her with his
hand and penis for an hour.  Medical testimony established that
the victim had suffered vaginal trauma consistent with sexual
intercourse. 
     Since the original discharge hearing, the defendant has been
in custody and receiving treatment pursuant to section 104-
25(d)(1).  The statutory two year treatment period ordered by the
judge under section 104-25(d)(1) has now expired, and pursuant to
section 104-25(g), the defendant's case came before the trial
judge again.  At the time, the defendant had still not learned
sign language sufficiently to enable him to communicate with
counsel and understand the proceedings against him.
     After hearing argument and considering the record in the
case, including the evidence from the discharge hearing, the
trial judge reiterated that the defendant was physically, but not
mentally, unfit to stand trial.  The judge also found the
defendant capable of eventually learning sign language through
proper tutoring.  He then concluded, based on the evidence of the
sexual assault, that the defendant "constitutes a serious threat
to public safety" and remanded him to DORS for continued
treatment until such time as he could understand sign language
and be tried.  Subsequently, the trial judge, having found
pursuant to the authority granted him under section 104-17(c)
that DORS was unable to provide the appropriate secure facility
for the defendant, ordered the defendant placed in a secure
facility operated by the Illinois Department of Mental Health,
where DORS would continue to treat and rehabilitate him.  The
defendant is currently in custody at the Elgin Mental Health
Center.
     Section 104-25(g)(2) states, in pertinent part:
          "If the defendant continues to be unfit to stand
     trial, the court shall determine whether he *** is
     subject to involuntary admission under the Mental
     Health and Developmental Disabilities Code or
     constitutes a serious threat to public safety.  If so
     found, the defendant shall be remanded to the
     Department of Mental Health and Developmental
     Disabilities or to the Department of Rehabilitation
     Services for further treatment and shall be treated in
     the same manner as a civilly committed patient for all
     purposes *** for the period of commitment equal to the
     maximum sentence to which the defendant would have been
     subject had he or she been convicted in a criminal
     proceeding."
The defendant contends that the trial judge erred in finding the
defendant subject to commitment under section 104-25(g)(2)
because the judge did not find that the threat he posed to public
safety results from the condition that renders him unfit.
     The defendant premises his argument on People v. Lang, 113 Ill. 2d 407 N.E.2d 1105 (1986), in which our supreme court
addressed the standards for involuntary commitment under section
1-119 of the former Mental Health Code.  See Ill. Rev, Stat.
1985, ch. 91 1/2, par. 1-119 (now the Mental Health and
Developmental Disabilities Code (MHDD Code) 405 ILCS 5/1-119). 
That section provides that a person is subject to commitment if
he "is mentally ill and *** because of his illness is reasonably
expected to inflict serious physical harm upon himself or another
in the near future."  However, contrary to the defendant's
assertion, an unfit person is not mentally ill under section 1-
119 if, as here, "his unfitness is due to a solely physical
condition."  Lang, 113 Ill. 2d  at 450, quoting People v. Lang, 76 Ill. 2d 311, 327, 391 N.E.2d 350 (1979).  Here, the trial judge
found, and the record supports that the defendant's unfitness is
due to a solely physical condition.
     Although the opinion in People v. Lang does state that
"[l]ack of fitness to stand trial is included within the broad
definition of a 'mentally ill person'" (Lang, 113 Ill. 2d at
450), the court made that statement solely in reference to the
standards under section 1-119.  The defendant in Lang, though
deaf-mute like the defendant here, had been independently
determined by a trial court to be mentally unfit.  Certainly,
based upon the psychiatric testimony that the defendant is in
contact with reality and exhibits no evidence of psychosis,
effective disorder or intellectual deficit, he does not fall
within the definition of mental illness as set forth in Lang. 
That definition is "an individual with an organic, mental or
emotional disorder which substantially impairs the person's
thought, perception of reality, emotional process, judgment,
behavior, or ability to cope with the ordinary demands of life." 
Lang, 113 Ill. 2d  at 453.  Rather, in this case, the trial judge
has specifically found that the defendant is not mentally ill. 
The defendant does not challenge this finding.  Therefore, the
standards for commitment in section 1-119, as reflected in Lang, 
are inapposite to the defendant's case.
     The standard applicable in this case is established by the
plain language of section 104-25(g)(2), which is cast in the
disjunctive: if the defendant is unfit, the trial judge shall
determine if he is subject to admission under the MHDD Code "or
constitutes a serious threat to public safety."  The defendant is
clearly not subject to commitment under the MHDD Code.  Because
the commitment provisions of the MHDD Code apply only to mentally
ill people and because a mentally ill person is already subject
to commitment under section 1-119 of the MHDD Code if his
condition renders him dangerous, we conclude that the portion of
the sentence after the word "or" must refer to circumstances in
which a person is unfit, but for reasons of physical and not
mental disability, a distinct condition provided for in section
104-10 and elsewhere in the Code.
     In these cases, section 104-25(g)(2) directs the court to
determine simply if the unfit defendant constitutes a serious
threat to public safety.  The statute does not limit the trial
judge's consideration to whether the danger results from the
condition which renders the defendant unfit.  Here, the defendant
is unfit because he is physically unable to communicate with
counsel.  He is, based upon the evidence that he allegedly
brandished a knife while sexually assaulting a five year old, a
serious threat to public safety.  This is all section 104-
25(g)(2) requires for him to be involuntarily committed up to the
maximum sentence pending further fitness hearings. 
     For the foregoing reasons, the orders of the circuit court
are affirmed.  
     Affirmed.
     Cousins, P.J., and Cahill, J., concur.