People v. Cotton
| Citation | 2018 IL App (5th) 150167 -U |
| Decision Date | 05 September 2018 |
| Docket Number | NO. 5-15-0167,NO. 5-16-0251 cons.,5-15-0167,5-16-0251 cons. |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONARD COTTON JR., Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
Decision filed 09/05/18. 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.
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County.
¶ 1 Held: Cause remanded for further proceedings where the record rebutted the presumption that the defendant's appointed postconviction counsel rendered a reasonable level of assistance.
¶ 2 On appeal from the second-stage dismissal of his amended petition for postconviction relief, the defendant maintains that appointed postconviction counsel failed to provide a reasonable level of assistance. The defendant argues that the cause should therefore be remanded for further proceedings. For the reasons that follow, we agree.
¶ 4 The protracted history of this case warrants the recitation of numerous facts. See People v. Johnson, 2016 IL App (5th) 130554, ¶ 3. On April 24, 2007, the State filed an information charging the defendant, Leonard Cotton Jr., and codefendant, Josha Custer, with one count of first-degree felony murder (720 ILCS 5/9-1(a)(3) (West 2006)). A St. Clair County grand jury later returned a superseding indictment charging them with the same offense. Both charging instruments alleged that on April 12, 2007, Custer shot and killed Kirk Anthony during the commission of an armed robbery (id. § 18-2(a)). Custer was 19 years old at the time, and the defendant was 15 (705 ILCS 405/5-130(1)(a)(i) (West 2006)).
¶ 5 The record indicates that when interviewed about the crime on April 16 and 23, 2007, the defendant waived his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) and gave video-recorded statements to Detective Ricky Perry of the East St. Louis police department. Perry also elicited statements from Custer and the defendant's father, Leonard Cotton Sr. (Cotton).
¶ 6 In September 2007, on the defendant's motion, clinical psychologist Dr. Daniel Cuneo was appointed to evaluate the defendant with respect to his fitness to stand trial and his ability to understand and waive his Miranda rights. In October 2007, Cuneo filed a report with the court opining that the defendant was moderately mentally retarded and that his cognitive abilities were "at best only at the seven to eight-year-old level." Cuneo opined that given the defendant's limited intellectual capacity, the defendant was unfit to stand trial due to his inability to understand the nature and purpose of the proceedingsagainst him or to assist in his defense. See 725 ILCS 5/104-10 (West 2006). Cuneo further opined that the defendant would not have been able to read or understand the Miranda-rights form that he had initialed when interviewed by the police. Cuneo also indicated that the defendant's intellectual limitations would have made him "much more suggestible and much more easily led." Stating that he had reviewed the DVD recordings of the defendant's interviews with the police, Cuneo noted that the defendant had not been asked to explain his Miranda rights and that his suggestibility "could be seen repeatedly in his responses." Cuneo also diagnosed the defendant as suffering from adjustment disorder with depressed mood. Cuneo was unable to offer an opinion as to whether there was a substantial probability that the defendant could attain fitness within a year if provided with inpatient rehabilitative treatment. See id. § 104-15(b).
¶ 7 In November 2007, the cause proceeded to a fitness hearing, where the defendant appeared with appointed trial counsel, Ms. Karen Craig, and waived his right to have a jury determine his fitness to stand trial. See id. §§ 104-12, 104-16. The parties stipulated that if Cuneo were called to testify, his testimony would be consistent with his report. By agreement, the parties further stipulated to Cuneo's opinion that the defendant was presently unfit to stand trial. The State indicated that it did not necessarily agree with Cuneo's reported findings, however, and was not stipulating to his conclusions with respect to anything other than the defendant's fitness. Based on the parties' agreed stipulations, the trial court determined that the defendant was unfit and remanded him to the custody of the Department of Human Services (DHS). See id. § 104-16(d) (West2006). The court ordered DHS to file an assessment report within 30 days and periodic progress reports thereafter. See id. §§ 104-17(e), 104-18.
¶ 8 In December 2007, DHS submitted an assessment report noting that the defendant had cognitive impairments and needed to attain a stable mood. The report further noted that the defendant had experienced a moderate-to-severe episode of major depressive disorder with psychosis. The report stated that DHS had the capacity to provide appropriate treatment for the defendant and believed that he could be restored to fitness within a year.
¶ 9 In March 2008, DHS submitted a progress report concluding that the defendant was still unfit to stand trial due to his inability to adequately understand the proceedings against him or to assist in his defense. The report also stated that although the defendant's mental condition was "improving in response to psychotropic medication, he [was] not sufficiently stable to handle the stress of legal proceedings."
¶ 10 In July 2008, DHS submitted a second progress report concluding that the defendant was still unfit. The report indicated that when recently examined, however, the defendant "appeared to render less than his best effort," and the "possibility of malingering [could] not be ruled out." The report noted that the defendant showed significant improvement in his mood and functioning and was taking daily doses of psychotropic medication. The report was authored by Debra Ferguson, Ph.D.
¶ 11 In November 2008, Ferguson submitted a report stating that the defendant had been compliant with his medications, had a stable mood, and had no impairment in functioning. The report noted that although the defendant's level of intellectualfunctioning was estimated to be in the borderline range, he was able to provide logical, organized, and coherent responses to questions. The report concluded that although the defendant's recent examination warranted a finding that he was still unfit to stand trial, the possibility of malingering was strongly suggested.
¶ 12 In a subsequently filed report dated November 12, 2008, Ferguson advised that during multiple didactic group sessions in October 2008, the defendant had correctly answered "100% of the questions" pertaining to matters such as "plea bargains, cross-examination, contempt of court, the role of a defense attorney[,] and the rights of a defendant." Referencing the defendant's "inconsistent" performance during his most recent examination, Ferguson's report concluded that the defendant had malingered during the formal examination and was fit to stand trial.
¶ 13 On January 14, 2009, the trial court appointed Cuneo to reevaluate the defendant with respect to his fitness to stand trial. On January 26, 2009, the State's murder charge against Custer was dismissed.
¶ 14 In April 2009, the defendant was remanded back to the custody of the St. Clair County jail, where he remained until his subsequent transfer to the Illinois Department of Juvenile Justice. See 730 ILCS 5/5-8-6(c) (West 2006). On May 6, 2009, Cuneo reexamined the defendant and prepared a report concluding that the defendant was malingering. Cuneo stated that although the defendant "may very well be intellectually limited, he [was] 'faking bad' as to the level of this impairment" and was trying to appear "more intellectually challenged than he is." Cuneo also noted, among other things, thatthe defendant had been receiving psychotropic medication and that his prior bouts of depression had been "situational." Cuneo opined that the defendant was fit to stand trial.
¶ 15 On May 27, 2009, the parties appeared before the Honorable Milton Wharton and stipulated that Ferguson and Cuneo were qualified experts in the field of clinical psychology. The parties further stipulated that if Ferguson and Cuneo were called to testify, their testimony would be consistent with their respective reports finding the defendant fit. The parties asked the trial court to make a determination as to the defendant's fitness based on contents of the reports. Trial counsel then advised the court that after she and the defendant had discussed his right to a hearing and his right to cross-examine Ferguson and Cuneo, the defendant had indicated that he was willing to stipulate to their testimony and waive his right to a hearing. The following colloquy then occurred:
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