People v. Gipson

• Court: United States Appellate Court of Illinois
• Citation: 34 N.E.3d 560
• Docket Number: No. 1–12–2451.,1–12–2451.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Romarr GIPSON, Defendant–Appellant.
• Decision Date: 27 May 2015

34 N.E.3d 560

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Romarr GIPSON, Defendant–Appellant.

No. 1–12–2451.

Appellate Court of Illinois, First District, Third Division.

May 27, 2015.
Rehearing Denied June 22, 2015.

34 N.E.3d 562

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Jocelyn M. Schieve, Assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, Alan D. Goldberg, and David T. Harris, all of State Appellate Defender's Office, of Chicago, for appellant.

OPINION

Justice LAVIN delivered the judgment of the court, with opinion.

¶ 1 Defendant Romarr Gipson was tried and sentenced as an adult for offenses he committed as a juvenile. After defendant was automatically transferred from juvenile court to adult court, the court found him unfit to stand trial but later determined he had been restored to fitness. The trial court found defendant guilty of the attempted first-degree murder of Clifton Smith and Anthony Milton, aggravated battery with a firearm and aggravated discharge of a firearm. The court also found that he personally discharged a firearm. Acknowledging its limited sentencing discretion, the trial court imposed the minimum sentence for two counts of attempted murder, a cumulative sentence of 52 years in prison. On appeal, defendant challenges the fitness restoration proceedings, the imposition of two firearm enhancements and the constitutionality of the statutory transfer and sentencing scheme. We reverse and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 A. Pretrial

¶ 4 Defendant, then 15 years old, and his older half-brother, codefendant Roman Formin, were charged with 14 counts arising from a shooting on June 14, 2006. Defendant, who had just turned 15 years old when the offense occurred, was transferred to adult court due to the exclusive jurisdiction provision of the Juvenile Court Act of 1987, otherwise known as the Illinois automatic transfer statute. 705 ILCS 405/5–130 (West 2006) ; see People v. Patterson, 2014 IL 115102, ¶ 2, 388 Ill.Dec. 834, 25 N.E.3d 526. This was not, however, defendant's first encounter with the legal system.

¶ 5 The record indicates that during defendant's early childhood, he lived with both parents and his siblings in a relatively

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stable home, although at one point, defendant reported using marijuana by age seven. At the same age, in 1998, defendant was arrested for the murder of Ryan Harris. Defendant, who had just completed kindergarten, was the youngest person in our nation to be charged with murder. An eight-year-old boy was also charged. In re Harris, 335 Ill.App.3d 517, 519, 269 Ill.Dec. 752, 781 N.E.2d 549 (2002). At this time, defendant was detained at Hartgrove Hospital in lieu of jail but apparently not for the purpose of psychiatric treatment. After semen was discovered on the victim's underwear, the State determined that a different individual was responsible, not the two boys. It appears that Floyd Durr ultimately pled guilty without qualification to the sexual assault of Harris and entered a guilty plea to murder pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).¹ Following this incident, the relationship between defendant's parents deteriorated and defendant suffered from post-traumatic stress disorder (PTSD). This would be one among many psychological and mental afflictions suffered by defendant.²

¶ 6 Several different judges presided over defendant's present case. During those proceedings, it became known that about six months before this offense occurred, Judge Stuart F. Lubin found defendant unfit to stand trial in an unrelated juvenile case, which apparently involved an animal cruelty charge based on defendant killing a dog by slamming it into concrete (No. 05 JD 5967). In addition, defendant was hospitalized for psychiatric reasons on several occasions during these proceedings. At times when defendant was released on bail and was not hospitalized, he attended therapeutic day school. Defendant also had encounters with the police before trial, although they did not all lead to convictions. On one occasion, defendant threw a bag containing suspected cannabis on the ground and fled from the police. On other occasions, he shoplifted and threatened an individual with a BB gun. He was also reported to have attacked his mother. While the record contains extensive information regarding defendant's mental health, we recite only those facts necessary to understand the issues on appeal.

¶ 7 In 2007, the Illinois Department of Human Services (IDHS) determined that defendant was unfit to stand trial based on the same opinion of psychiatrist Joseph McNally. Dr. McNally, who worked at Streamwood Behavioral Health Systems (Streamwood), found that defendant's eye contact was intermittent, his affect was blunted, his knowledge was below average, and he was guarded, but he cooperated and was alert. In addition, defendant had a deficit in concentration, and his IQ was 58, placing him in the mild mental retardation range. Dr. McNally's report also noted, however, that Dr. DiDomenico found defendant's ability to question him strongly indicated that defendant's capabilities were better than his score suggested. Dr. DiDomenico suspected that defendant was malingering. In addition, defendant, who could be disruptive and threaten peers, had recently been restrained and given antipsychotic medication targeting aggression after an episode of agitation.

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¶ 8 Defendant was diagnosed with mood disorder, attention deficit hyperactivity disorder, conduct disorder, a history of auditory processing disorder and mild mental retardation or borderline intellectual functioning. In addition, Dr. McNally could not rule out PTSD and defendant was being given psychotropic medication to help with anxiety, poor focus, aggressive tendencies and mood lability. Regarding fitness, defendant struggled with concepts of oath and perjury, and had a limited understanding of plea bargaining but Dr. McNally also sensed that defendant did not put forth his best effort to learn the fitness material. In August 2007, the trial court agreed that defendant was unfit to stand trial.

¶ 9 By November 2007, Streamwood found defendant was fit to stand trial but in the spring of 2008, IDHS disagreed, as did Ada S. McKinley Community Services, Inc. Dr. Carl Wahlstrom, the forensic psychiatrist hired by defendant, also found defendant was unfit. We further note that at a hearing on September 5, 2008, defense counsel expressed concern regarding defendant's inability to cooperate with him and stated that defendant was not receiving his medication in jail. In November 2008, social worker Marcy Lerner met with defendant and his mother, apparently at Dr. Sharon Coleman's request, and found that defendant was non-compliant with psychotropic medications. Although defendant's mother was not sure whether he was taking his medication, the assistant State's Attorney (ASA) reported that defendant was refusing medication. Lerner also stated that when defendant was anxious, he self-mutilated by picking his skin and, consequently, his finger was permanently deformed. Lerner found defendant was traumatized by the 1998 arrest.

¶ 10 At about the same time that Lerner completed her report, Dr. Coleman found defendant was fit to stand trial because he understood the nature and purpose of the proceedings against him and was able to assist in his defense, if he chose to do so. She stated that she had not addressed defendant's fitness to stand trial with medication because he had not been prescribed psychotropic medication. This determination was seemingly based on the October 2008 medication profile from Cermak Health Services, which noted that defendant had no active prescriptions. In addition, Coleman reported that defendant said he was last compliant with a medication regimen in September 2008. Regarding the proceedings against him, defendant said, “they can't do nothing to me because they know that I have been traumatized when had [sic ] I was young.” Following an examination on November 25, 2008, psychiatrist Dr. Nishad Nadkarni similarly found that defendant was fit to stand trial, noting that he was not presently prescribed psychotropic medications and there was no indication that they were needed.

¶ 11 At a hearing before Judge Jorge Luis Alonso on April 7, 2009, defense counsel said that defendant was not getting any medications in jail and asked the court to have the jail transfer defendant to the psychiatric unit for an evaluation. Defense counsel was not sure that the jail was aware of defendant's mental illness history. The court ordered the transfer but acknowledged the possibility that the sheriff would ignore the order. In May 2009, Judge Alonso ordered that defendant's fitness be reevaluated.

¶ 12 After reexamining defendant on August 17, 2009, Dr. Wahlstrom modified his prior opinion, finding that defendant understood the charges as well as the role of courtroom personnel and proceedings. Dr. Wahlstrom also found, however, that “[i]t may be helpful, secondary to cognitive

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limitations (borderline intellectual functioning versus...