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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL P. CONTORNO, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL P. CONTORNO, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nDefendant, Michael E Contorno, was convicted of one count of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 1998)) following a jury trial in the circuit court of Du Page County (No. 99 \u2014 CF\u20141250). Subsequently, the State filed a petition to revoke defendant\u2019s probation arising from a separate matter based upon this conviction (No. 97 \u2014 CF\u20141\u00a3)53). The trial court granted this petition. Defendant now appeals both actions. Regarding his controlled-substance conviction, defendant contends that the trial court did not conduct a proper fitness hearing (see 725 ILCS 5/104 \u2014 16 (West 1998)) and that several evidentiary errors, discussed in an unpublished portion of this opinion, deprived him of a fair trial. He further asserts that the revocation of his probation cannot stand, as it is based solely upon his controlled-substance conviction. For the following reasons, we reverse and remand.\nPrior to defendant\u2019s trial for unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 1998)), defense counsel, John Elias, represented to the court that defendant\u2019s probation officer believed defendant might not be fit to stand trial. Defense counsel moved for a fitness examination, and the court found that a bona fide doubt existed regarding defendant\u2019s fitness. The trial court appointed Dr. Syed Ali, a psychiatrist, to conduct an examination of defendant. Dr. Ali prepared a three-page report, which stated defendant could assist in his defense, understood the nature of a trial and the roles of the participants in a trial, could manage his behavior during a trial, and had the capacity to testify relevantly.\nAt a subsequent hearing, the following colloquy ensued:\n\u201cMR. KENT: Good afternoon Judge. Scott Kent on behalf of the People.\nI received a report from Mr. Elias from Dr. Ali.\nMR. ELIAS: As to the fitness issue, Dr. Ali\u2019s report is he finds him fit to stand trial. We would stipulate to the report.\nMR. KENT: As would the People, Judge.\nTHE COURT: All right. We\u2019ll show pursuant to stipulation then he finds the defendant fit to stand trial.\u201d\nThere was no further discussion on this issue. The court also entered a written order stating that \u201cpursuant to the People and Defense stipulation to the finding of Dr. Ali, Defendant is fit to stand trial.\u201d\n\u20221, Defendant now complains that the trial court merely accepted the stipulation of the parties to the findings of Dr. Ali rather than conducting a meaningful fitness hearing. Normally, a trial court\u2019s decision that a defendant is fit to stand trial will not be reversed absent an abuse of discretion. People v. Newell, 196 Ill. App. 3d 373, 377 (1990). However, because this issue is one of constitutional dimension, the record must show an affirmative exercise of judicial discretion regarding the determination of fitness. People v. Baldwin, 185 Ill. App. 3d 1079, 1088 (1989); People v. Turner, 111 Ill. App. 3d 358, 365 (1982); People v. Greene, 102 Ill. App. 3d 639, 642 (1981). When a bona fide doubt as to a defendant\u2019s fitness exists, the trial court has a duty to hold a fitness hearing. People v. Griffin, 178 Ill. 2d 65, 79 (1997). Once a bona fide doubt has been raised, a court is empowered to conduct its own inquiry into the defendant\u2019s fitness. 725 ILCS 5/104\u2014 11(c) (West 1998). A trial corut\u2019s determination of fitness may not be based solely upon a stipulation to the existence of psychiatric conclusions or findings. People v. Thompson, 158 Ill. App. 3d 860, 865 (1987); People v. Lewis, 103 Ill. 2d 111, 115-16 (1984). However, where the parties stipulate to what an expert would testify, rather than to the expert\u2019s conclusion, a trial court may consider this stipulated testimony in exercising its discretion. Lewis, 103 Ill. 2d at 116. The ultimate decision as to a defendant\u2019s fitness must be made by the trial court, not the experts. People v. Bilyew, 73 Ill. 2d 294, 302 (1978). A trial corut must analyze and evaluate the basis for an expert\u2019s opinion instead of merely relying upon the expert\u2019s ultimate opinion. In re T.D.W., 109 Ill. App. 3d 852, 855 (1982).\nIn the present case, the parties stated that they stipulated to Dr. Ali\u2019s report. This stipulation is ambiguous in that it is unclear as to whether they were stipulating that Dr. Ali, if called, would testify in conformance with his report or stipulating to the report\u2019s ultimate conclusion. The trial court then stated that \u201cpursuant to stipulation then he finds the defendant fit to stand trial.\u201d \u201cHe\u201d presumably refers to Dr. Ali. Again, this statement is ambiguous. It could be either an acknowledgment that Dr. Ali would testify that defendant was fit or an abdication by the trial court of its role in the fitness hearing in deference to Dr. Ali\u2019s opinion. Finally, the trial court\u2019s written order states only that, pursuant to the stipulation to the finding of Dr. Ali, defendant is fit. Thus, while this experienced trial judge may have made an independent determination of fitness, from the record before us it appears only that the trial court merely accepted Dr. Ali\u2019s conclusion. No indication appears in the record that the court conducted any analysis of the doctor\u2019s opinion or exercised its discretion in finding defendant fit. Accordingly, we must conclude that defendant\u2019s fitness hearing was deficient. See Thompson, 158 Ill. App. 3d at 864-65.\nFurther, we cannot consider this error harmless. As noted above, fitness to stand trial is an issue of constitutional dimension. Turner, 111 Ill. App. 3d at 365. Such an error may be deemed harmless only if, after reviewing the entire record, it is determined that the error was harmless beyond a reasonable doubt. People v. Arman, 131 Ill. 2d 115, 127 (1989). In the present case, we are unable to come to such a conclusion. The extent of the evidence available to the trial court during the fitness hearing was one three-page report of an examining psychologist. Defendant points to several reports, included in his presentence investigation, which undermine the report relied on by the trial court. Accordingly, we cannot say that any error related to defendant\u2019s fitness hearing was harmless beyond a reasonable doubt.\nBefore leaving the fitness issue, we note that the State argues that defendant has waived it by failing to include it in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). While such issues are generally deemed waived, an issue may be reviewed as plain error where it concerns a substantial right. People v. Basler, 193 Ill. 2d 545, 549 (2000). The determination of a defendant\u2019s fitness to stand trial concerns a substantial right, and plain-error review is appropriate. People v. Lucas, 140 Ill. App. 3d 1, 6 (1986).\nIn light of the foregoing, we reverse the judgment of the circuit court of Du Page County in appeal No. 2 \u2014 00\u20140043 and remand the cause for a new fitness hearing and, if appropriate, a new trial. In light of this disposition, the revocation of defendant\u2019s probation in appeal No. 2 \u2014 00\u20140351 cannot stand. See People v. Lopez, 72 Ill. App. 3d 713, 717 (1979). That judgment of the circuit court of Du Page County also must be reversed and the cause remanded.\nNo. 2 \u2014 00\u20140043, Reversed and remanded with directions.\nNo. 2 \u2014 00\u20140351, Reversed and remanded.\nMcLAREN and RAPR JJ., concur.",
        "type": "majority",
        "author": "JUSTICE GROMETER"
      }
    ],
    "attorneys": [
      "G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.",
      "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Deidre A. Donnellan, of Plainfield, for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL P. CONTORNO, Defendant-Appellant. \u2014 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL P. CONTORNO, Defendant-Appellant.\nSecond District\nNos. 2 \u2014 00\u20140043, 2 \u2014 00\u20140351 cons.\nOpinion filed May 22, 2001.\nG. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (John X. Breslin, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Deidre A. Donnellan, of Plainfield, for the People."
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  "file_name": "0177-01",
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