People v. Wiggins
Annotate this Case
FIRST DIVISION
August 17, 1998
No. 1-97-0961
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LORADELE WIGGINS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County.
No. 96 CR 16543
Honorable
Thomas M. Davy,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
On June 20, 1996, defendant, Loradele Wiggins, was charged by
indictment with unlawful use of a weapon in violation of section
24-1(a)(10) of the Criminal Code of 1961. 720 ILCS 5/24-1(a)(10)
(West 1992) (as amended) (the Criminal Code). On February 11,
1997, following a bench trial, defendant was convicted and
sentenced to one-year s felony probation under section 24-1(b) of
the Criminal Code. 720 ILCS 5/24-1(b) (West 1994). Defendant
appeals.
On appeal, defendant contends: (1) Public Act 88-680 which,
among other things, amended section 24-1(b) of the Criminal Code by
upgrading a conviction for unlawful use of a weapon under section
24-1(a)(10) from a Class A misdemeanor to a Class 4 felony,
violated the Illinois Constitution's single subject rule (Ill.
Const. 1970, art. IV, 8(d)); and (2) she was denied effective
assistance of counsel. We affirm.
Article IV, section 8(d), of the Illinois Constitution
provides in pertinent part: "Bills, except bills for
appropriations and for the codification, revision or rearrangement
of laws, shall be confined to one subject." Ill. Const. 1970, art.
IV, 8(d). Recently, in Johnson v. Edgar, 176 Ill. 2d 499, 514-18,
680 N.E.2d 1372, 1379-81 (1997), the Supreme Court of Illinois
discussed this provision, stating:
The single subject rule is a substantive requirement for
the passage of bills and is therefore subject to judicial
review. ***
The term subject, in this context, is to be liberally
construed and the subject may be as broad as the legislature
chooses. [Citations.] Nonetheless, the matters included in
the enactment must have a natural and logical connection.
[Citations.] The rule prohibits the inclusion of Discordant
provisions that by no fair intendment can be considered as
having any legitimate relation to each other." [Citations.]
Johnson, 176 Ill. 2d at 514-15, 680 N.E.2d at 1379.
First, we examine Public Act 88-680. Public Act 88-680 was
introduced in the Senate as Bill 1153 (SB 1153) and entitled, "An
Act to amend the Criminal Code of 1961 by changing Sections 12-1,
25-1, and 26-1 and by adding Section 24-7." In this form, the
purpose of SB 1153 was limited: To require any person convicted of
assault, criminal damage to property, mob action, disorderly
conduct or certain weapons offenses to serve between 30 and 120
hours of community service as a part of any sentence imposed, other
than incarceration. The Senate passed the bill and referred it to
the House for consideration.
The House replaced every word of SB 1153 as passed by the
Senate except the enabling clause. The bill was retitled "An Act to
Create a Safe Neighborhood Law" (the Safe Neighborhood Law). Under
the new title, SB 1153 became nine articles of 161 pages amending
the WIC Vendor Management Act (410 ILCS 255/1 et seq. (West 1992)),
the Firearm Owners Identification Card Act (430 ILCS 65/1 et seq.
(West 1992)), the Illinois Vehicle Code (625 ILCS 5/1-100 et seq.
(West 1992)), the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et
seq. (West 1992)), the Criminal Code of 1961 (720 ILCS 5/1-1 et
seq. (West 1992)), the Cannabis Control Act (720 ILCS 550/1 et seq.
(West 1992)), the Illinois Controlled Substances Act (720 ILCS
570/100 et seq. (West 1993)), the Rights of Crime Victims and
Witnesses Act 725 ILCS 120/1 et seq. (West 1994)), and the Unified
Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 1992)). In
addition, the Safe Neighborhood Law created the Secure Residential
Youth Care Facility Licensing Act (730 ILCS 175/45-1 et seq. (West
1994), added a Secure Residential Youth Care Facility Fund to the
State Finance Act (30 ILCS 105/5.400 (West 1994)), and added
article 17B, dealing with WIC fraud, to the Criminal Code (720 ILCS
5/17B/1 et seq. (West 1994)).
SB 1153 was passed as amended by both houses. The bill was
signed into law by the Governor and became effective January 1,
1995.
On appeal, defendant asserts Public Act 88-680 contains "a
litany of unrelated amendments" and "new matters" which render the
entire act unconstitutional. In particular, defendant argues that
under the single subject rule a bill amending the Criminal Code
cannot also amend the Juvenile Court Act of 1987, citing In re
Armour, 59 Ill. 2d 102, 104-05, 319 N.E.2d 496, 498 (1974) (ruling
that the Criminal Code and the Juvenile Court Act are not related
to each other), and In re W.C., 167 Ill. 2d 307, 320, 657 N.E.2d 908, 915-16 (1995) (stating that proceedings under the Juvenile
Court Act of 1987 are not criminal). Defendant further argues that
the amendments to the WIC Vendor Management Act and the creation of
article 17B of the Criminal Code dealing with WIC fraud can "by no
stretch of the imagination be considered related to either the
Criminal Code or the Juvenile Court Act." Defendant finally
contends that none of the provisions of SB 1151 as enacted in
Public Act 88-680, had anything to do with the original content of
SB 1153 as it was first introduced in the Senate and that this
alone constitutes a violation of the single subject rule, citing
Rouse v. Thompson, 228 Ill. 522, 533-34, 81 N.E. 1109, (1907).
The State counters that the provisions of Public Act 88-680
are reasonably related to its purpose - neighborhood safety. More
specifically, the State argues that neighborhood safety necessarily
and naturally encompasses adult crimes and juvenile offenses and
increased penalties and sentencing options because many gang and
gun-related crimes involve both adults and juveniles. The State
further argues that the amendments to the WIC Vendor Management Act
and the creation of article 17B of the Criminal Code concerning WIC
fraud are germane to the issue of safe neighborhoods because such
fraud is "pervasive," has a negative impact on individuals who need
WIC benefits, and the provisions are part of the legislature's
comprehensive attack on crime in neighborhoods.
The amendments to the Criminal Code and the Juvenile Court Act
of 1987 are germane to the issue of safe neighborhoods. Although
the cases cited by defendant suggest that in some instances a bill
amending both the Criminal Code and the Juvenile Court Act
violates the single subject rule, that is not the case here. Here,
the amendments to SB 1153 affecting the Criminal Code and the
Juvenile Court Act of 1987 share the unitary purpose of proscribing
behaviors, some by adults, some by juveniles, that are criminal in
nature and detrimental to the community. Further, the amendments
to the Unified Code of Corrections and the Juvenile Court Act of
1987 are germane because they share the unitary purpose of
prescribing penalties for such behaviors to protect the community
from those offenders. Finally, the amendments to SB 1153 creating
the Secure Residential Youth Care Facility Licensing Act and adding
a Secure Residential Youth Care Facility Fund to the State Finance
Act are germane because they provide the means, procedural and
financial, to implement the prescribed penalties.
The legislature's inclusion of amendments to the WIC Vendor
Management Act and the creation of article 17B of the Criminal Code
dealing with WIC fraud is a "natural and logical connection" to the
issue of safe neighborhoods. The WIC program provides eligible
recipients with vouchers, used like cash, to purchase food and
other necessities for themselves and their children.
Unfortunately, some recipients exchange the vouchers for illegal
controlled substances peddled by drug dealers on neighborhood
street corners. The dealers, who frequently have street gang
affiliations, take the vouchers to vendors who exchange them for
less than their face value in cash. The vendors, in turn, present
the vouchers to the government for their full face value.
Accordingly, the amendments in SB 1153 addressing WIC fraud address
drug- and gang-related activities threatening neighborhood safety
and depriving children of WIC benefits. This purpose was expressed
by the legislature in the preamble of the WIC fraud act:
Because of the pervasive nature of fraud in the Special
Supplemental Food Program for Women, Infants and Children
(known as WIC) and the negative effect of that fraud on
the People of the State of Illinois and those individuals
who need WIC benefits, the General Assembly declares it
to be public policy that Special Supplemental Food
Program for Women, Infants and Children (WIC) Benefits
Fraud be identified and dealt with swiftly and
appropriately considering the onerous nature of the
crime. (Emphasis addded.) Pub. Act 88-680, art. 50,
50-5, eff. January 1, 1995, codified at 720 ILCS 5/17B-1
50-5, (West 1994).
The remainder of the amendments to SB 1153 naturally and
logically promote neighborhood safety. The changes to the Firearm
Owners Identification Card Act (Pub. Act 88-680, art. 50, 50-3,
eff. January 1, 1995 (codified at 430 ILCS 65/2, 4, 6, 14 (West
1994))) prohibiting possession of firearms by illegal aliens and
upgrading certain violations of the Act from a Class A misdemeanor
to a Class 3 or 4 felony, combined with the creation of the new
criminal offense of gunrunning (Pub. Act 88-680, art. 30, 30-905,
eff. January 1, 1995 (codified at 720 ILCS 5/24-3A (West 1994)) and
changes to sections 24-1, 24-3 and 24-3.1 of the Criminal Code
regarding the unlawful use of a weapon, the unlawful sale of
firearms and the unlawful possession of firearms and firearms
ammunition (Pub. Act 88-680, art. 50, 50-5, eff. January 1, 1995
(codified at 720 ILCS 24-1, 24-3 and 24-3.1 (West 1994))), are
intended to discourage the importation of illegal firearms for
distribution to gang members.
The changes to the Illinois Vehicle Code (Pub. Act 88-680,
art. 20, 20-900, eff. January 1, 1995 (codified at 625 ILCS 5/6-
303, 11-501 (West 1994))) expanding its scope and increasing its
penalties for individuals driving under the influence of alcohol or
other drugs are intended to protect neighborhood residents from
drivers who repeatedly drive while drunk and endanger motorists and
pedestrians.
The changes to the Cannabis Control Act (Pub. Act 88-680, art.
25, 25-10, eff. January 1, 1995 (codified at 720 ILCS 550/10 (West
1994))) and the Illinois Controlled Substances Act (Pub. Act 88-
680, art. 25, 25-15, eff. January 1, 1995 (codified at 720 ILCS
570/410 (West 1994))), requiring 24 months mandatory probation and
imposing certain probation conditions, increase neighborhood safety
by placing at-risk individuals under judicial supervision.
Finally, the changes to the Rights of Crime Victims and
Witnesses Act (Pub. Act 88-680, art. 35, 35-15, eff. January 1,
1995 (codified at 725 ILCS 120/4.5, 6 (West 1994))), expanding when
crime victims and witnesses are entitled to notification of an
offender's release, encourage fuller participation of neighborhood
residents in maintaining safety and being aware of activities in
their neighborhood.
Accordingly, defendant's contention that various provisions of
Public Act 88-680 are not germane to a single expressed purpose is
without merit.
Next, defendant contends that none of various provisions were
related to the original narrow content of SB 1153 and that this
alone constitutes a violation of the single subject rule. This
issue has been waived. Defendant's assertion of
unconstitutionality does not constitute legal analysis. A
reviewing court is entitled to have cohesive arguments presented,
and arguments not adequately presented on appeal are treated as
waived. Spinelli v. Immanuel Lutheran Evangelical Congregation,
Inc., 118 Ill. 2d 389, 401, 515 N.E.2d 1272 (1987).
Waiver aside, defendant relies upon Rouse v. Thompson, 228 Ill. 522, 533-34, 81 N.E. 1109 (1907), to no avail. In Rouse, the
court found a public act unconstitutional as a violation of the
single subject rule because the title of the act was not broad
enough to encompass the scope of its contents, not because the
title and contents of the bill as passed differed from the title
and contents of the bill as originally introduced. Rouse, 228 Ill.
at 533-34. Accordingly, this contention is without merit.
Next, defendant claims she was denied effective assistance of
counsel because she was taking psychotropic medication during trial
and her defense counsel failed to request a fitness hearing as
mandated by section 104-21(a) of the Code of Criminal Procedure.
To establish a claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test of Strickland v.
Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984), and People v. Albanese, 104 Ill. 2d 504, 525,
473 N.E.2d 1246 (1984). The defendant must prove that (1)
counsel's representation fell below an objective standard of
reasonableness, and (2) counsel's substandard representation so
prejudiced defendant as to deny her a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To prove
actual prejudice, a defendant must show "a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d
at 525.
The due process clause of the fourteenth amendment prohibits
the prosection of a person who is unfit to stand trial. People v.
Brandon, 162 Ill. 2d 450, 455, 643 N.E.2d 712 (1994). Fitness
"refers to a defendant's ability to understand the nature and
purpose of the proceedings and to assist in the defense." People
v. Kinkead, 168 Ill. 2d 394, 407 (1995) (Kinkead I). To ensure a
defendant's right, the legislature has enacted statutory
safeguards. Until December 31 1996,[fn1] section 104-21(a) of the
Code of Criminal Procedure provided that "[a] defendant who is
receiving psychotropic drugs or other medications under medical
direction is entitled to a hearing on the issue of his fitness
while under medication." 725 ILCS 5/104-21(a) (West 1994). Under
this version of section 104-21(a), a defendant using psychotropic
drugs was presumed unfit to stand trial and the burden devolved to
the State to prove otherwise. Accordingly, in People v. Brandon,
162 Ill. 2d 450, 458, 643 N.E.2d 712, 716 (1994), the Illinois
Supreme Court held that where there was evidence the defendant was
using psychotropic drugs at the time of trial, defense counsel's
failure to request a fitness hearing denied the defendant effective
assistance of counsel. The court reasoned the first prong of
Strickland was satisfied because the only explanation for counsel's
failure to request the required fitness hearing was counsel's
failure to comprehend the significance of the defendant's treatment
or the defendant's rights under the law. 162 Ill. 2d at 458.
Further, the court reasoned the second prong of Strickland was
satisfied because prejudice was manifest where the defendant would
have been entitled to a fitness hearing if defense counsel had
informed the trial court of the defendant's use of psychotropic
drugs. 162 Ill. 2d at 459.
The Illinois legislature amended section 104-21(a) effective
December 31, 1996, to provide "[a] defendant who is receiving
psychotropic drugs shall not be presumed to be unfit to stand trial
solely by virtue of the receipt of those drugs or medications."
725 ILCS 5/104-21 (West 1996). This is the current statutory law
on the matter. Under this version of the statute, even where there
is evidence the defendant was using psychotropic drugs at the time
of trial, defense counsel's failure to request a fitness hearing is
not a per se denial of effective assistance of counsel because a
defendant using psychotropic drugs is no longer presumed unfit nor
automatically entitled to a fitness hearing. Rather, there must be
a bona fide doubt of the defendant's fitness to stand trial (725
ILCS 5/104-11(a) (West 1996)), arising not solely by virtue of the
receipt of psychotropic drugs or medications, but from the
defendant's irrational behavior, demeanor at trial or prior medical
opinions (People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 951
(1991); People v. Walker, 262 Ill. App. 3d 796, 803, 635 N.E.2d 684
(1994)).
Recently, in People v. Kinkead, 168 Ill. 2d 394, 412-13
(1998), the Illinois Supreme Court held that the current version of
section 104-21(a) may not be given retroactive effect. The
question, then, is which version of the statute is applicable? If
the pre-December 31, 1996, version of section 104-21(a) applies,
defense counsel's failure to request a fitness hearing constituted
ineffective assistance of counsel. However, if the current version
of section 104-21(a) applies, defense counsel's failure to request
a fitness hearing did not constitute ineffective assistance of
counsel.
As a general matter, fitness determinations are made as of the
commencement of trial. Pate v. Robinson 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). Defendant's bench trial was commenced
and completed on January 13, 1997. Accordingly, the current
version of section 104-21(a) applies and defense counsel's failure
to request a fitness hearing was not per se ineffective assistance
of counsel. Moreover, the defendant has failed to demonstrate that
a pretrial fitness hearing would have resulted in a finding that
her use of psychotropic drugs rendered her unable to understand the
nature and purpose of the proceedings against her or assist in her
defense. Indeed, the record on appeal reveals no indication that
the trial court, which was in a better position to observe and
evaluate the defendant's conduct, perceived anything odd or
irrational about the defendant's behavior raising a bona fide doubt
of defendant's fitness.
Because there was no automatic entitlement to a fitness
hearing and because there is no indication that defendant's use of
psychotropic drugs so affected her ability to meaningfully
participate in her defense and cooperate with counsel as to raise
a bona fide doubt of her fitness to stand trial, defense counsel's
failure to request a fitness hearing will not support a claim of
ineffective assistance of counsel. An attorney is not required to
do that which is futile and which would not have affected the
outcome of defendant's case.
For the foregoing reasons, we affirm the defendant's
conviction and sentence.
Affirmed.
BUCKLEY, P.J., and O. FROSSARD, J., concur.
[fn1] The legislature amended this section effective
December 13, 1995, to provide "[a] defendant who is receiving
psychotropic drugs under medical direction is entitled to a hearing
on the issue of his or her fitness while under medication; however,
no hearing is required unless the court finds there is a bona fide
doubt of the defendant's fitness." 725 ILCS 5/104-21(a) (West
Supp. 1995). The Illinois Supreme Court declared this version of
the statute unconstitutional in Johnson v. Edgar, 176 Ill. 2d 499,
516, 680 1372, 1380 (1997), on grounds the public act of which it
was a part violated the single subject rule of the Illinois
Constitution.
August 17, 1998
No. 1-97-0961
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
LORADELE WIGGINS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County.
No. 96 CR 16543
Honorable
Thomas M. Davy,
Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
On June 20, 1996, defendant, Loradele Wiggins, was charged by
indictment with unlawful use of a weapon in violation of section
24-1(a)(10) of the Criminal Code of 1961. 720 ILCS 5/24-1(a)(10)
(West 1992) (as amended) (the Criminal Code). On February 11,
1997, following a bench trial, defendant was convicted and
sentenced to one-year s felony probation under section 24-1(b) of
the Criminal Code. 720 ILCS 5/24-1(b) (West 1994). Defendant
appeals.
On appeal, defendant contends: (1) Public Act 88-680 which,
among other things, amended section 24-1(b) of the Criminal Code by
upgrading a conviction for unlawful use of a weapon under section
24-1(a)(10) from a Class A misdemeanor to a Class 4 felony,
violated the Illinois Constitution's single subject rule (Ill.
Const. 1970, art. IV, 8(d)); and (2) she was denied effective
assistance of counsel. We affirm.
Article IV, section 8(d), of the Illinois Constitution
provides in pertinent part: "Bills, except bills for
appropriations and for the codification, revision or rearrangement
of laws, shall be confined to one subject." Ill. Const. 1970, art.
IV, 8(d). Recently, in Johnson v. Edgar, 176 Ill. 2d 499, 514-18,
680 N.E.2d 1372, 1379-81 (1997), the Supreme Court of Illinois
discussed this provision, stating:
The single subject rule is a substantive requirement for
the passage of bills and is therefore subject to judicial
review. ***
The term subject, in this context, is to be liberally
construed and the subject may be as broad as the legislature
chooses. [Citations.] Nonetheless, the matters included in
the enactment must have a natural and logical connection.
[Citations.] The rule prohibits the inclusion of Discordant
provisions that by no fair intendment can be considered as
having any legitimate relation to each other." [Citations.]
Johnson, 176 Ill. 2d at 514-15, 680 N.E.2d at 1379.
First, we examine Public Act 88-680. Public Act 88-680 was
introduced in the Senate as Bill 1153 (SB 1153) and entitled, "An
Act to amend the Criminal Code of 1961 by changing Sections 12-1,
25-1, and 26-1 and by adding Section 24-7." In this form, the
purpose of SB 1153 was limited: To require any person convicted of
assault, criminal damage to property, mob action, disorderly
conduct or certain weapons offenses to serve between 30 and 120
hours of community service as a part of any sentence imposed, other
than incarceration. The Senate passed the bill and referred it to
the House for consideration.
The House replaced every word of SB 1153 as passed by the
Senate except the enabling clause. The bill was retitled "An Act to
Create a Safe Neighborhood Law" (the Safe Neighborhood Law). Under
the new title, SB 1153 became nine articles of 161 pages amending
the WIC Vendor Management Act (410 ILCS 255/1 et seq. (West 1992)),
the Firearm Owners Identification Card Act (430 ILCS 65/1 et seq.
(West 1992)), the Illinois Vehicle Code (625 ILCS 5/1-100 et seq.
(West 1992)), the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et
seq. (West 1992)), the Criminal Code of 1961 (720 ILCS 5/1-1 et
seq. (West 1992)), the Cannabis Control Act (720 ILCS 550/1 et seq.
(West 1992)), the Illinois Controlled Substances Act (720 ILCS
570/100 et seq. (West 1993)), the Rights of Crime Victims and
Witnesses Act 725 ILCS 120/1 et seq. (West 1994)), and the Unified
Code of Corrections (730 ILCS 5/1-1-1 et seq. (West 1992)). In
addition, the Safe Neighborhood Law created the Secure Residential
Youth Care Facility Licensing Act (730 ILCS 175/45-1 et seq. (West
1994), added a Secure Residential Youth Care Facility Fund to the
State Finance Act (30 ILCS 105/5.400 (West 1994)), and added
article 17B, dealing with WIC fraud, to the Criminal Code (720 ILCS
5/17B/1 et seq. (West 1994)).
SB 1153 was passed as amended by both houses. The bill was
signed into law by the Governor and became effective January 1,
1995.
On appeal, defendant asserts Public Act 88-680 contains "a
litany of unrelated amendments" and "new matters" which render the
entire act unconstitutional. In particular, defendant argues that
under the single subject rule a bill amending the Criminal Code
cannot also amend the Juvenile Court Act of 1987, citing In re
Armour, 59 Ill. 2d 102, 104-05, 319 N.E.2d 496, 498 (1974) (ruling
that the Criminal Code and the Juvenile Court Act are not related
to each other), and In re W.C., 167 Ill. 2d 307, 320, 657 N.E.2d 908, 915-16 (1995) (stating that proceedings under the Juvenile
Court Act of 1987 are not criminal). Defendant further argues that
the amendments to the WIC Vendor Management Act and the creation of
article 17B of the Criminal Code dealing with WIC fraud can "by no
stretch of the imagination be considered related to either the
Criminal Code or the Juvenile Court Act." Defendant finally
contends that none of the provisions of SB 1151 as enacted in
Public Act 88-680, had anything to do with the original content of
SB 1153 as it was first introduced in the Senate and that this
alone constitutes a violation of the single subject rule, citing
Rouse v. Thompson, 228 Ill. 522, 533-34, 81 N.E. 1109, (1907).
The State counters that the provisions of Public Act 88-680
are reasonably related to its purpose - neighborhood safety. More
specifically, the State argues that neighborhood safety necessarily
and naturally encompasses adult crimes and juvenile offenses and
increased penalties and sentencing options because many gang and
gun-related crimes involve both adults and juveniles. The State
further argues that the amendments to the WIC Vendor Management Act
and the creation of article 17B of the Criminal Code concerning WIC
fraud are germane to the issue of safe neighborhoods because such
fraud is "pervasive," has a negative impact on individuals who need
WIC benefits, and the provisions are part of the legislature's
comprehensive attack on crime in neighborhoods.
The amendments to the Criminal Code and the Juvenile Court Act
of 1987 are germane to the issue of safe neighborhoods. Although
the cases cited by defendant suggest that in some instances a bill
amending both the Criminal Code and the Juvenile Court Act
violates the single subject rule, that is not the case here. Here,
the amendments to SB 1153 affecting the Criminal Code and the
Juvenile Court Act of 1987 share the unitary purpose of proscribing
behaviors, some by adults, some by juveniles, that are criminal in
nature and detrimental to the community. Further, the amendments
to the Unified Code of Corrections and the Juvenile Court Act of
1987 are germane because they share the unitary purpose of
prescribing penalties for such behaviors to protect the community
from those offenders. Finally, the amendments to SB 1153 creating
the Secure Residential Youth Care Facility Licensing Act and adding
a Secure Residential Youth Care Facility Fund to the State Finance
Act are germane because they provide the means, procedural and
financial, to implement the prescribed penalties.
The legislature's inclusion of amendments to the WIC Vendor
Management Act and the creation of article 17B of the Criminal Code
dealing with WIC fraud is a "natural and logical connection" to the
issue of safe neighborhoods. The WIC program provides eligible
recipients with vouchers, used like cash, to purchase food and
other necessities for themselves and their children.
Unfortunately, some recipients exchange the vouchers for illegal
controlled substances peddled by drug dealers on neighborhood
street corners. The dealers, who frequently have street gang
affiliations, take the vouchers to vendors who exchange them for
less than their face value in cash. The vendors, in turn, present
the vouchers to the government for their full face value.
Accordingly, the amendments in SB 1153 addressing WIC fraud address
drug- and gang-related activities threatening neighborhood safety
and depriving children of WIC benefits. This purpose was expressed
by the legislature in the preamble of the WIC fraud act:
Because of the pervasive nature of fraud in the Special
Supplemental Food Program for Women, Infants and Children
(known as WIC) and the negative effect of that fraud on
the People of the State of Illinois and those individuals
who need WIC benefits, the General Assembly declares it
to be public policy that Special Supplemental Food
Program for Women, Infants and Children (WIC) Benefits
Fraud be identified and dealt with swiftly and
appropriately considering the onerous nature of the
crime. (Emphasis addded.) Pub. Act 88-680, art. 50,
50-5, eff. January 1, 1995, codified at 720 ILCS 5/17B-1
50-5, (West 1994).
The remainder of the amendments to SB 1153 naturally and
logically promote neighborhood safety. The changes to the Firearm
Owners Identification Card Act (Pub. Act 88-680, art. 50, 50-3,
eff. January 1, 1995 (codified at 430 ILCS 65/2, 4, 6, 14 (West
1994))) prohibiting possession of firearms by illegal aliens and
upgrading certain violations of the Act from a Class A misdemeanor
to a Class 3 or 4 felony, combined with the creation of the new
criminal offense of gunrunning (Pub. Act 88-680, art. 30, 30-905,
eff. January 1, 1995 (codified at 720 ILCS 5/24-3A (West 1994)) and
changes to sections 24-1, 24-3 and 24-3.1 of the Criminal Code
regarding the unlawful use of a weapon, the unlawful sale of
firearms and the unlawful possession of firearms and firearms
ammunition (Pub. Act 88-680, art. 50, 50-5, eff. January 1, 1995
(codified at 720 ILCS 24-1, 24-3 and 24-3.1 (West 1994))), are
intended to discourage the importation of illegal firearms for
distribution to gang members.
The changes to the Illinois Vehicle Code (Pub. Act 88-680,
art. 20, 20-900, eff. January 1, 1995 (codified at 625 ILCS 5/6-
303, 11-501 (West 1994))) expanding its scope and increasing its
penalties for individuals driving under the influence of alcohol or
other drugs are intended to protect neighborhood residents from
drivers who repeatedly drive while drunk and endanger motorists and
pedestrians.
The changes to the Cannabis Control Act (Pub. Act 88-680, art.
25, 25-10, eff. January 1, 1995 (codified at 720 ILCS 550/10 (West
1994))) and the Illinois Controlled Substances Act (Pub. Act 88-
680, art. 25, 25-15, eff. January 1, 1995 (codified at 720 ILCS
570/410 (West 1994))), requiring 24 months mandatory probation and
imposing certain probation conditions, increase neighborhood safety
by placing at-risk individuals under judicial supervision.
Finally, the changes to the Rights of Crime Victims and
Witnesses Act (Pub. Act 88-680, art. 35, 35-15, eff. January 1,
1995 (codified at 725 ILCS 120/4.5, 6 (West 1994))), expanding when
crime victims and witnesses are entitled to notification of an
offender's release, encourage fuller participation of neighborhood
residents in maintaining safety and being aware of activities in
their neighborhood.
Accordingly, defendant's contention that various provisions of
Public Act 88-680 are not germane to a single expressed purpose is
without merit.
Next, defendant contends that none of various provisions were
related to the original narrow content of SB 1153 and that this
alone constitutes a violation of the single subject rule. This
issue has been waived. Defendant's assertion of
unconstitutionality does not constitute legal analysis. A
reviewing court is entitled to have cohesive arguments presented,
and arguments not adequately presented on appeal are treated as
waived. Spinelli v. Immanuel Lutheran Evangelical Congregation,
Inc., 118 Ill. 2d 389, 401, 515 N.E.2d 1272 (1987).
Waiver aside, defendant relies upon Rouse v. Thompson, 228 Ill. 522, 533-34, 81 N.E. 1109 (1907), to no avail. In Rouse, the
court found a public act unconstitutional as a violation of the
single subject rule because the title of the act was not broad
enough to encompass the scope of its contents, not because the
title and contents of the bill as passed differed from the title
and contents of the bill as originally introduced. Rouse, 228 Ill.
at 533-34. Accordingly, this contention is without merit.
Next, defendant claims she was denied effective assistance of
counsel because she was taking psychotropic medication during trial
and her defense counsel failed to request a fitness hearing as
mandated by section 104-21(a) of the Code of Criminal Procedure.
To establish a claim of ineffective assistance of counsel, a
defendant must satisfy the two-prong test of Strickland v.
Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2063-64 (1984), and People v. Albanese, 104 Ill. 2d 504, 525,
473 N.E.2d 1246 (1984). The defendant must prove that (1)
counsel's representation fell below an objective standard of
reasonableness, and (2) counsel's substandard representation so
prejudiced defendant as to deny her a fair trial. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. To prove
actual prejudice, a defendant must show "a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland, 466 U.S. at
694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Albanese, 104 Ill. 2d
at 525.
The due process clause of the fourteenth amendment prohibits
the prosection of a person who is unfit to stand trial. People v.
Brandon, 162 Ill. 2d 450, 455, 643 N.E.2d 712 (1994). Fitness
"refers to a defendant's ability to understand the nature and
purpose of the proceedings and to assist in the defense." People
v. Kinkead, 168 Ill. 2d 394, 407 (1995) (Kinkead I). To ensure a
defendant's right, the legislature has enacted statutory
safeguards. Until December 31 1996,[fn1] section 104-21(a) of the
Code of Criminal Procedure provided that "[a] defendant who is
receiving psychotropic drugs or other medications under medical
direction is entitled to a hearing on the issue of his fitness
while under medication." 725 ILCS 5/104-21(a) (West 1994). Under
this version of section 104-21(a), a defendant using psychotropic
drugs was presumed unfit to stand trial and the burden devolved to
the State to prove otherwise. Accordingly, in People v. Brandon,
162 Ill. 2d 450, 458, 643 N.E.2d 712, 716 (1994), the Illinois
Supreme Court held that where there was evidence the defendant was
using psychotropic drugs at the time of trial, defense counsel's
failure to request a fitness hearing denied the defendant effective
assistance of counsel. The court reasoned the first prong of
Strickland was satisfied because the only explanation for counsel's
failure to request the required fitness hearing was counsel's
failure to comprehend the significance of the defendant's treatment
or the defendant's rights under the law. 162 Ill. 2d at 458.
Further, the court reasoned the second prong of Strickland was
satisfied because prejudice was manifest where the defendant would
have been entitled to a fitness hearing if defense counsel had
informed the trial court of the defendant's use of psychotropic
drugs. 162 Ill. 2d at 459.
The Illinois legislature amended section 104-21(a) effective
December 31, 1996, to provide "[a] defendant who is receiving
psychotropic drugs shall not be presumed to be unfit to stand trial
solely by virtue of the receipt of those drugs or medications."
725 ILCS 5/104-21 (West 1996). This is the current statutory law
on the matter. Under this version of the statute, even where there
is evidence the defendant was using psychotropic drugs at the time
of trial, defense counsel's failure to request a fitness hearing is
not a per se denial of effective assistance of counsel because a
defendant using psychotropic drugs is no longer presumed unfit nor
automatically entitled to a fitness hearing. Rather, there must be
a bona fide doubt of the defendant's fitness to stand trial (725
ILCS 5/104-11(a) (West 1996)), arising not solely by virtue of the
receipt of psychotropic drugs or medications, but from the
defendant's irrational behavior, demeanor at trial or prior medical
opinions (People v. Eddmonds, 143 Ill. 2d 501, 578 N.E.2d 951
(1991); People v. Walker, 262 Ill. App. 3d 796, 803, 635 N.E.2d 684
(1994)).
Recently, in People v. Kinkead, 168 Ill. 2d 394, 412-13
(1998), the Illinois Supreme Court held that the current version of
section 104-21(a) may not be given retroactive effect. The
question, then, is which version of the statute is applicable? If
the pre-December 31, 1996, version of section 104-21(a) applies,
defense counsel's failure to request a fitness hearing constituted
ineffective assistance of counsel. However, if the current version
of section 104-21(a) applies, defense counsel's failure to request
a fitness hearing did not constitute ineffective assistance of
counsel.
As a general matter, fitness determinations are made as of the
commencement of trial. Pate v. Robinson 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966). Defendant's bench trial was commenced
and completed on January 13, 1997. Accordingly, the current
version of section 104-21(a) applies and defense counsel's failure
to request a fitness hearing was not per se ineffective assistance
of counsel. Moreover, the defendant has failed to demonstrate that
a pretrial fitness hearing would have resulted in a finding that
her use of psychotropic drugs rendered her unable to understand the
nature and purpose of the proceedings against her or assist in her
defense. Indeed, the record on appeal reveals no indication that
the trial court, which was in a better position to observe and
evaluate the defendant's conduct, perceived anything odd or
irrational about the defendant's behavior raising a bona fide doubt
of defendant's fitness.
Because there was no automatic entitlement to a fitness
hearing and because there is no indication that defendant's use of
psychotropic drugs so affected her ability to meaningfully
participate in her defense and cooperate with counsel as to raise
a bona fide doubt of her fitness to stand trial, defense counsel's
failure to request a fitness hearing will not support a claim of
ineffective assistance of counsel. An attorney is not required to
do that which is futile and which would not have affected the
outcome of defendant's case.
For the foregoing reasons, we affirm the defendant's
conviction and sentence.
Affirmed.
BUCKLEY, P.J., and O. FROSSARD, J., concur.
[fn1] The legislature amended this section effective
December 13, 1995, to provide "[a] defendant who is receiving
psychotropic drugs under medical direction is entitled to a hearing
on the issue of his or her fitness while under medication; however,
no hearing is required unless the court finds there is a bona fide
doubt of the defendant's fitness." 725 ILCS 5/104-21(a) (West
Supp. 1995). The Illinois Supreme Court declared this version of
the statute unconstitutional in Johnson v. Edgar, 176 Ill. 2d 499,
516, 680 1372, 1380 (1997), on grounds the public act of which it
was a part violated the single subject rule of the Illinois
Constitution.
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