People v. Brown

Docket Nos. 106243, 106273 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Cross-
Appellant, v. RAYMOND BROWN, Appellant and Cross-Appellee.
Opinion filed February 4, 2010.
JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman and Burke
concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justices
Thomas and Karmeier.
OPINION
Petitioner Raymond Brown alleged in a pro se postconviction
petition that his trial counsel was ineffective for failing to request a
fitness hearing. The circuit court of Cook County summarily
dismissed the petition as frivolous and patently without merit. The
circuit court also assessed fees and court costs of $155 under section
22–105 of the Code of Civil Procedure (Code) (735 ILCS 5/22–105
(West 2006)), for filing a frivolous postconviction petition. The
appellate court affirmed the dismissal of the petition but vacated the
circuit court’s imposition of fees and court costs. No. 1–06–3275
(unpublished order under Supreme Court Rule 23).
We allowed petitions for leave to appeal filed by both petitioner
and the State (210 Ill. 2d R. 315(a)), and consolidated the appeals. We
hold the circuit court erred in summarily dismissing the
postconviction petition as frivolous and patently without merit.
Accordingly, we reverse the dismissal of the postconviction petition,
affirm the judgment vacating the assessment of fees and court costs,
and remand this matter to the circuit court for second stage
postconviction proceedings.
I. BACKGROUND
Petitioner was charged with two counts of attempted first degree
murder of a peace officer (720 ILCS 5/9–1(a)(1) (West 2002)), and
two counts of aggravated assault (720 ILCS 5/12–2(a)(6) (West
2002)). At the bench trial, the testimony showed petitioner lived in an
apartment with Gloria Flores. Petitioner became intoxicated and
argued with Flores because he believed she had cheated on him.
Eventually, Flores threatened to call the police. Petitioner told her to
“go ahead and call” because he was not afraid of the police. Flores
went upstairs to her sister’s apartment. After hearing petitioner
continue to yell and throw items in their apartment, Flores and her
sister called the police.
When several police officers arrived at the apartment building,
petitioner was standing outside the front door of his apartment
holding a butcher knife. One of the officers began to approach
petitioner. The officer mistakenly believed the object in petitioner’s
hand was a screwdriver and ordered him to “drop the screwdriver.”
Petitioner responded by stating, “come on and I’ll kill you.” After
recognizing the object as a knife, the officer repeatedly told petitioner
to drop the knife. Petitioner refused and repeated his threat to kill the
officer.
Petitioner then advanced toward the officer. The officer backed
away and continued ordering petitioner to drop the knife. Petitioner
kept walking toward the officer and began swinging the knife as the
officer backed away. The officer drew his handgun and pointed it
toward petitioner, continuing to order him to drop the knife.
Petitioner lunged at the officer, reaching for the handgun with his free
hand. When petitioner continued to approach, another officer shot
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him. Petitioner did not stop and the officer shot him again. Petitioner
was shot in the leg and lower back and fell to the ground. Based on
the evidence, the trial court found petitioner guilty of attempted first
degree murder of a peace officer.
Petitioner read a statement to the court at sentencing. He asserted
that he had been depressed and previously tried to kill himself. He did
not intend to harm the police officers, but only wanted them to kill
him. He had seen a news report where a man was shot and killed by
police officers after threatening them with a machete. Petitioner
thought the officers would kill him if he waved a knife at them.
Petitioner further stated he was taking “psych medication” and
was told he should have received a psychiatric evaluation prior to his
trial, but his trial attorney failed to bring the matter to the court’s
attention. Petitioner stated he began taking his medications after
incarceration and he no longer felt depressed or wanted to kill
himself. He still felt like he wanted to die, though, as recently as his
previous court hearing.
The trial court questioned counsel about petitioner’s statements
on taking psychotropic medication. Defense counsel stated he was not
aware that petitioner was taking psychotropic medication. The court
further inquired whether there was any reason for counsel to have a
bona fide doubt of petitioner’s fitness to stand trial. Counsel
responded that petitioner “spoke very coherently to me,” he “seemed
fine,” and counsel “had no problem communicating with him.” The
trial court noted it had not observed anything in petitioner’s conduct
or appearance indicating a bona fide doubt of his fitness. Petitioner’s
treatment with psychotropic medication, standing alone, did not raise
a presumption of unfitness to stand trial. Accordingly, the trial court
proceeded with the sentencing hearing and imposed a 25-year term of
imprisonment. The trial court’s judgment was affirmed on direct
appeal. People v. Brown, No. 1–03–2620 (2005) (unpublished order
under Supreme Court Rule 23).
Petitioner then filed a postconviction petition alleging, among
other things, that his trial counsel was ineffective for failing to request
a fitness hearing. Petitioner alleged he told his attorney that he was
taking psychotropic medication, including Zoloft, Seroquel, and
Sinequan, both before and after his arrest. He alleged he was taking
the psychotropic medication to treat bipolar disorder and depression.
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He also informed counsel that he attempted suicide before he was
arrested and on the day of his arrest. He alleged he was attempting
“suicide by police” on the day of the offense. During his trial, he was
taking “very heavy psych medication” that affected his ability to
comprehend the events. Petitioner alleged he “didn’t know exactly
what was happening at [his] trial and didn’t understand everything at
his trial.” Petitioner further alleged his trial counsel lied when he
informed the trial court that he was unaware petitioner was taking
psychotropic medication.
Petitioner also alleged his attorney only visited him for a few
minutes before each hearing. Petitioner believed his attorney was too
preoccupied with his father’s death to represent petitioner adequately.
Petitioner alleged he stopped taking some of his medications to draft
his postconviction petition.
Petitioner appended to his petition medical records documenting
his bipolar disorder and his medications to treat it. Additionally, he
provided affidavits from his mother and aunt attesting that
petitioner’s mother informed trial counsel petitioner was taking
medication to treat his bipolar disorder. Petitioner’s mother also
averred she told counsel petitioner had attempted suicide on several
occasions. Petitioner’s mother and aunt averred trial counsel lied to
the court when he stated he had no knowledge of petitioner’s mental
illness or medications.
The trial court summarily dismissed the petition. The court ruled
petitioner’s claim of ineffective assistance of counsel for failure to
request a fitness hearing was barred by res judicata because the
appellate court considered that claim on direct appeal. The trial court
further found the petition was frivolous and patently without merit.
Petitioner was assessed $155 in fees and court costs under section
22–105 of the Code for filing a frivolous postconviction petition.
On appeal, petitioner contended he stated the gist of a
constitutional claim that his trial counsel was ineffective for failing
to request a fitness hearing. Petitioner also challenged the trial court’s
imposition of fees and court costs.
The appellate court observed it did not consider petitioner’s
ineffective assistance of counsel claim on direct appeal because that
claim was based on matters outside the record. The appellate court,
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therefore, held that challenge was not barred by res judicata. The
appellate court, nevertheless, held the petition did not state the gist of
a claim of ineffective assistance of counsel. According to the
appellate court, petitioner was “unable to establish the trial court
would have found a bona fide doubt of his fitness and ordered a
fitness hearing had it been apprised of the evidence offered in his
postconviction petition.” The appellate court further held assessment
of fees and court costs under section 22–105 of the Code was not
authorized. Accordingly, the appellate court affirmed the trial court’s
summary dismissal of the postconviction petition but vacated the
assessment of fees and court costs. No. 1–06–3275 (unpublished
order under Supreme Court Rule 23).
Petitioner and the State filed petitions for leave to appeal (210 Ill.
2d R. 315(a)). We allowed both petitions and consolidated them for
review.
II. ANALYSIS
In his appeal, petitioner contends his postconviction petition
established the gist of a claim that his trial counsel was ineffective for
failing to raise an issue of petitioner’s fitness to stand trial. Petitioner
argues the appellate court applied an incorrect standard by requiring
him to prove his ineffective assistance of counsel claim at the first
stage of the proceedings.
The State responds that the allegations in the petition are not
sufficient to raise a bona fide doubt of petitioner’s fitness to stand
trial. The State also claims the record positively rebuts any suggestion
that petitioner was unfit. The State, therefore, maintains the petition
was properly dismissed as frivolous and patently without merit. The
State further asserts petitioner forfeited his argument that the
appellate court required him to prove his ineffective assistance of
counsel claim because he failed to include that argument in his
petition for leave to appeal.
We first address the State’s contention that petitioner forfeited his
argument that the appellate court applied an incorrect burden of proof
in affirming the summary dismissal of the petition. Supreme Court
Rule 315(c) requires petitions for leave to appeal to contain a
statement of the points relied upon in seeking review of the appellate
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court’s judgment. 210 Ill. 2d R. 315(c)(3). The rule also requires a
short argument stating why review is warranted and why the appellate
court’s decision should be reversed or modified. 210 Ill. 2d R.
315(c)(5). An issue may be deemed forfeited if it is not raised in the
petition for leave to appeal. In re Rolandis G., 232 Ill. 2d 13, 36
(2008).
Here, the petition for leave to appeal asserted review was
warranted for three reasons, including that the appellate court’s
decision “clearly demonstrates that it applied an incorrect standard in
assessing the appropriateness of summary dismissal.” Petitioner
further asserted “the appellate court erroneously applied a stricter
standard when evaluating whether [his] petition was frivolous for
purposes of the Post-Conviction Hearing Act.” In the argument
section, petitioner maintained the appellate court used a much stricter
standard than the one applicable to first-stage postconviction
proceedings. The petition for leave to appeal, therefore, specifically
mentions the issue of whether the appellate court erred by applying
an incorrect standard in reviewing the first-stage dismissal.
Accordingly, we conclude petitioner has not forfeited his argument.
The summary dismissal of a postconviction petition is reviewed
de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). At the
first stage of postconviction proceedings, the trial court examines the
petition independently, without input from the parties. People v.
Gaultney, 174 Ill. 2d 410, 418 (1996). A petitioner need present only
a limited amount of detail and is not required to include legal
argument or citation to legal authority. People v. Edwards, 197 Ill. 2d
239, 244-45 (2001). A pro se petitioner is not excused, however, from
providing any factual detail whatsoever on the alleged constitutional
deprivation. People v. Delton, 227 Ill. 2d 247, 254 (2008). The
allegations of the petition, taken as true and liberally construed, need
only present the gist of a constitutional claim. People v. Harris, 224
Ill. 2d 115, 126 (2007). This standard presents a “low threshold”
(People v. Jones, 211 Ill. 2d 140, 144 (2004)), requiring only that the
petitioner plead sufficient facts to assert an arguably constitutional
claim (People v. Hodges, 234 Ill. 2d 1, 9 (2009)).
In considering the petition, the trial court may examine the court
file of the criminal proceeding, any transcripts of the proceeding, and
any action by the appellate court. 725 ILCS 5/122–2.1(c) (West
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2006). The trial court must summarily dismiss the petition if it is
frivolous or patently without merit. 725 ILCS 5/122–2.1(a)(2) (West
2006). We recently explained that a pro se postconviction petition is
frivolous or patently without merit only if it “has no arguable basis
either in law or in fact.” Hodges, 234 Ill. 2d at 16. A petition lacking
an arguable basis in law or fact is one “based on an indisputably
meritless legal theory or a fanciful factual allegation.” Hodges, 234
Ill. 2d at 16. A claim completely contradicted by the record is an
example of an indisputably meritless legal theory. Hodges, 234 Ill. 2d
at 16. Fanciful factual allegations include those that are fantastic or
delusional. Hodges, 234 Ill. 2d at 17.
Petitioner’s claim of ineffective assistance of counsel is reviewed
under the test established in Strickland v. Washington, 466 U.S. 668,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The petitioner must show
counsel’s performance was deficient and that prejudice resulted from
the deficient performance. People v. Houston, 226 Ill. 2d 135, 143
(2007), citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.
2052. A postconviction petition alleging ineffective assistance of
counsel may not be dismissed at the first stage of the proceedings if:
(1) counsel’s performance arguably fell below an objective standard
of reasonableness; and (2) the petitioner was arguably prejudiced as
a result. Hodges, 234 Ill. 2d at 17.
We first consider whether the allegations in petitioner’s
postconviction petition set forth an arguable basis in fact for his
constitutional claim. Petitioner alleged his constitutional right to
effective assistance of counsel was violated because his attorney
failed to request a fitness hearing. In support of his claim, petitioner
alleged he informed counsel that he was taking psychotropic
medication before and after his arrest. The medication was used to
treat his bipolar disorder and depression. Counsel was also informed
that petitioner previously attempted suicide. Petitioner alleged his
offense in this case was an attempted “suicide by police.” Petitioner
further alleged he was taking “very heavy” psychotropic medication
during his trial and did not understand the trial proceedings.
Petitioner attached medical records and affidavits supporting his
factual allegations. The medical records documented petitioner’s
bipolar disorder and his prescribed medications. In their affidavits,
petitioner’s mother and aunt attested trial counsel was informed
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petitioner was taking medication for his bipolar disorder and that
petitioner had attempted suicide on several occasions. The medical
records and affidavits, therefore, corroborate the allegations in the
petition.
We conclude that petitioner’s postconviction allegations cannot
be characterized as fantastic or delusional. In fact, the trial testimony
describing petitioner’s offense lends credibility to his allegations on
his mental illness and history of suicide attempts. The petition sets
forth sufficient facts to assert a claim that is arguably constitutional.
Accordingly, we conclude the petition cannot be deemed frivolous or
patently without merit for lack of an arguable factual basis.
Next, we must determine whether the petition is based on an
indisputably meritless legal theory. As noted, petitioner claims his
attorney was ineffective for failing to request a fitness hearing.
Due process bars the prosecution of an unfit defendant. People v.
Hanson, 212 Ill. 2d 212, 216 (2004). A defendant is unfit to stand
trial if, due to a mental or physical condition, he or she is unable to
understand the nature and purpose of the proceedings or to assist in
the defense. 725 ILCS 5/104–10 (West 2006). The trial court must
order a fitness hearing if a bona fide doubt is raised of the defendant’s
fitness. 725 ILCS 5/104–11(a) (West 2006). A number of factors may
be considered in assessing whether a bona fide doubt of fitness is
raised, including a defendant’s irrational behavior, demeanor at trial,
any prior medical opinion on the defendant’s competence, and any
representations by defense counsel on the defendant’s competence.
People v. Eddmonds, 143 Ill. 2d 501, 518 (1991). No fixed or
immutable sign, however, invariably indicates the need for further
inquiry on a defendant’s fitness. Eddmonds, 143 Ill. 2d at 518. Rather,
the question is often a difficult one implicating a wide range of
manifestations and subtle nuances. Eddmonds, 143 Ill. 2d at 518.
The allegations of the petition and the attached affidavits establish
that trial counsel knew petitioner was taking psychotropic medication
to treat bipolar disorder and had attempted suicide on several prior
occasions. The offense in this case was an attempted “suicide by
police.” Petitioner further alleged he did not understand the trial
proceedings due to the psychotropic medication he was taking during
his trial.
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The State argues petitioner’s allegations do not raise a bona fide
doubt of his fitness to stand trial. The State asserts petitioner’s mental
illness, use of psychotropic medication, and history of suicide
attempts, each standing alone, do not create a bona fide doubt of his
fitness. Citing People v. Mitchell, 189 Ill. 2d 312 (2000), the State
observes the use of psychotropic medication by itself does not raise
a bona fide doubt of a defendant’s fitness.
In Mitchell, this court held administration of psychotropic
medication is not equivalent to a bona fide doubt of a defendant’s
fitness. Mitchell, 189 Ill. 2d at 331. In this case, however, petitioner
alleged much more than ingestion of psychotropic medication. He
alleged additional facts on his history of suicide attempts, the “suicide
by police” nature of his offense, and his inability to understand the
trial proceedings. Those facts cannot each be viewed in isolation. This
court previously rejected a similar argument, asserting the State’s
attempt to challenge a defendant’s individual suggestions of unfitness
“as if each occurred in a vacuum, cannot be countenanced.” People
v. Sandham, 174 Ill. 2d 379, 387-88 (1996). Instead, the impact of the
individual events and testimony must be considered as a whole.
Sandham, 174 Ill. 2d at 388. Accordingly, the State’s attempt to view
each allegation of unfitness individually must be rejected.
The State also argues the petition is insufficient because it does
not allege petitioner informed trial counsel that his medication
affected his ability to understand the proceedings. The State contends
counsel could not be deficient when he did not know that
information. Further, petitioner failed to plead he was prejudiced by
the alleged deficient representation because he did not assert that he
would have been found unfit if counsel had raised the issue.
In Hodges, the State raised a similar argument, contending a pro
se petitioner did not expressly assert that his factual allegations
supported a theory of second degree murder. Hodges, 234 Ill. 2d at
21. The State contended the petitioner chose to focus only on self-
defense and he should be bound by that choice. Hodges, 234 Ill. 2d
at 21. We rejected the State’s strict reading of the postconviction
petition as inconsistent with the liberal construction standards for
reviewing pro se petitions at the first stage of the proceedings.
Hodges, 234 Ill. 2d at 21. We held the issue of whether the petition
included allegations on second degree murder was the type of
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borderline question that should be answered in the petitioner’s favor
under a liberal construction. Hodges, 234 Ill. 2d at 21.
We have consistently held that to survive summary dismissal, a
postconviction petition need present only a limited amount of detail
and is not required to set forth a constitutional claim in its entirety.
Edwards, 197 Ill. 2d at 244. Thus, a pro se petitioner is not required
to allege facts supporting all elements of a constitutional claim to
survive summary dismissal. Edwards, 197 Ill. 2d at 244-45. The
State’s contentions that petitioner did not specifically plead certain
facts on deficient representation and prejudice are inconsistent with
the standards applicable to first-stage postconviction proceedings.
Petitioner was not required to plead the specific facts identified by the
State as long as his petition sets forth the gist of a constitutional
claim.
Finally, the State contends the record contradicts any suggestion
that petitioner was unfit to stand trial. The State notes defense counsel
informed the trial court at the sentencing hearing that petitioner
“seemed fine” and counsel “had no problem communicating with
him.” The trial court asserted petitioner’s conduct and appearance did
not indicate a bona fide doubt of his fitness. The State contends
petitioner’s statement at sentencing demonstrates he understood the
trial proceedings. The State also observes petitioner answered
appropriately when questioned on waiving a jury trial and his right to
testify.
A legal theory is indisputably meritless if it is completely
contradicted by the record. Hodges, 234 Ill. 2d at 16. All well-pleaded
facts must be taken as true unless “positively rebutted” by the trial
record. People v. Coleman, 183 Ill. 2d 366, 385 (1998).
Contrary to the State’s argument, petitioner’s legal theory is not
completely contradicted by the record in this case. Defense counsel’s
statements at sentencing about petitioner’s condition are called into
question by petitioner’s allegations and supporting affidavits asserting
counsel lied to the court when he stated he did not know petitioner
was taking psychotropic medication. Defense counsel’s statements
are also undermined by petitioner’s allegations that counsel spent
only a few minutes with him before each hearing and was too
distracted by his father’s death to devote adequate attention to
petitioner’s defense. Further, counsel’s statements at sentencing do
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not positively rebut petitioner’s allegations on his mental illness, his
suicide attempts, or that his psychotropic medication prevented him
from understanding the trial proceedings. Thus, petitioner’s legal
theory is not completely contradicted by defense counsel’s statements
at sentencing.
The trial court’s statement at sentencing that petitioner’s conduct
and appearance did not show a bona fide doubt of his fitness is a
relevant consideration, but it is not determinative of petitioner’s
fitness to stand trial. The observation does not positively rebut any of
petitioner’s allegations on his mental illness, psychotropic
medications, suicide attempts, or failure to understand the trial
proceedings. The trial court’s observation, therefore, does not render
petitioner’s legal theory indisputably meritless.
Additionally, petitioner’s statement at sentencing is of limited
significance because it was made more than one month after the trial.
In his sentencing statement, petitioner asserted he felt like he wanted
to die as recently as the prior hearing. Thus, any indication that
petitioner was lucid in making the statement at sentencing or
understood the trial proceedings at that time does not necessarily
establish his condition at the time of trial. The statement does not
positively rebut any of petitioner’s allegations tending to indicate a
bona fide doubt of his fitness. In particular, the statement does not
contradict petitioner’s allegation that his psychotropic medication
prevented him from understanding the trial proceedings.
Petitioner’s waivers of his right to a jury trial and his right to
testify were essentially brief exchanges with the trial court where
petitioner asserted he understood the trial court’s admonitions. Those
brief exchanges do not positively rebut any of petitioner’s allegations
in his postconviction petition. Additionally, they do not conclusively
demonstrate an ability to understand the proceedings or assist in the
defense.
In sum, we conclude petitioner’s legal theory is not completely
contradicted by the record. At most, the record creates a factual
dispute on whether there was a bona fide doubt of petitioner’s fitness.
Petitioner’s claim of ineffective assistance of counsel for failure to
request a fitness hearing is arguably supported by the allegations in
his petition and supporting affidavits. The petition and supporting
affidavits alleged counsel knew petitioner was taking psychotropic
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medication to treat bipolar disorder and that he had attempted suicide
on several prior occasions. Petitioner further alleged his psychotropic
medication caused an inability to understand the trial proceedings.
Those allegations and the nature of this offense at least arguably raise
a bona fide doubt of petitioner’s ability to understand the nature and
purpose of the proceedings and assist in his defense. We, therefore,
conclude counsel’s failure to request a fitness hearing arguably fell
below an objective standard of reasonableness and prejudiced
petitioner.
In finding the petition subject to summary dismissal, the dissent
fails to apply the standards applicable to first-stage postconviction
proceedings. The dissent initially acknowledges a postconviction
petition is subject to summary dismissal at the first stage if it “ ‘has
no arguable basis either in law or in fact’ ” (slip op. at 16 (Garman,
J., dissenting, joined by Thomas and Karmeier, JJ.), quoting Hodges,
234 Ill. 2d at 16), but the dissent does not apply that standard to this
case. Instead, citing People v. Easley, 192 Ill. 2d 307, 319 (2000), the
dissent claims a pro se petitioner must allege “facts that existed at the
time of his trial that, if known to the trial court at that time, would
have caused the trial court to find a bona fide doubt of his ability to
understand the nature and purpose of the proceedings and to assist in
his defense.” (Emphasis added.) Slip op. at 20 (Garman, J.,
dissenting, joined by Thomas and Karmeier, JJ.). Significantly,
Easley is a capital case. Thus, the petitioner in Easley was required to
carry the second-stage burden of establishing a substantial showing
of a constitutional deprivation. Easley, 192 Ill. 2d at 316; see also
Hodges, 234 Ill. 2d at 11 n.3 (second-stage postconviction
proceedings involve inquiry into whether petition and accompanying
documentation “make a substantial showing of a constitutional
violation”). The dissent, therefore, requires petitioner to allege more
than an arguable basis in law and fact.
The dissent’s application of an incorrect standard to this first-
stage dismissal appears to stem from its reliance on numerous capital
cases. The dissent acknowledges those cases “can be distinguished in
one important respect” because they are all capital cases where the
petitioner likely had assistance of counsel in preparing the petition.
Slip op. at 42 (Garman, J., dissenting, joined by Thomas and
Karmeier, JJ.), citing 725 ILCS 5/122–2.1(a) (West 2006). In addition
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to being distinguishable on the basis acknowledged by the dissent, the
capital cases cited are, more importantly, inapposite because they
involve application of an entirely different standard for dismissal.
Postconviction proceedings in capital cases are not subject to the
summary dismissal procedure applicable to non-capital cases. 725
ILCS 5/122–2.1(a) (West 2006). Rather, after appointment of counsel
is addressed, capital cases are automatically docketed for further
proceedings. 725 ILCS 5/122–2.1(a), (b) (West 2006); People v.
Williams, 209 Ill. 2d 227, 233 (2004). If the State files a motion to
dismiss the petition, the trial court must consider whether the
petition’s allegations establish a substantial showing of a
constitutional violation. Williams, 209 Ill. 2d at 233. Thus, capital
cases do not involve application of the minimal first-stage standard
requiring only an arguable basis in law and fact.
The dissent’s analysis is also inconsistent with the standards for
reviewing first-stage dismissals in another important way. At the
summary dismissal stage, a petitioner’s allegations must be taken as
true and liberally construed. See People v. Brooks, 233 Ill. 2d 146,
153-54 (2009). The dissent, nevertheless, attempts to narrow
petitioner’s allegations on his fitness by asserting they are directed at
other claims in his petition or are conclusory because they “lack
specific factual content.” Slip op. at 23 (Garman, J., dissenting, joined
by Thomas and Karmeier, JJ.). The dissent would require petitioner
to support his allegations with specific examples of his inability to
comprehend the proceedings. Slip op. at 23 (Garman, J., dissenting,
joined by Thomas and Karmeier, JJ.). The dissent, therefore, fails to
accept as true and construe liberally the allegations of the pro se
petition as required at the first stage of postconviction proceedings.
We further note that the dissent compares this case to People v.
Swamynathan, 385 Ill. App. 3d 434 (2008), and this court recently
affirmed the appellate court’s judgment in that case. In the appeal to
this court, however, no issue was raised on the sufficiency of the
petition’s allegations to survive summary dismissal. Rather, our
decision in Swamynathan only considered the legal issue of when the
90-day summary dismissal period begins to run in cases where a
pleading is recharacterized as a postconviction petition. See People
v. Swamynathan, No. 107441, slip op. at 7 (January 22, 2010). This
court did not review the appellate court’s determination that the
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allegations of the petition were frivolous and patently without merit
because we were not called upon to consider that portion of the
appellate court’s decision. See Swamynathan, No. 107441 (January
22, 2010).
Overall, the dissent fails to review this case using the standards
applicable to summary dismissals. As in Hodges, the dissent’s
analysis is more appropriate to second-stage postconviction
proceedings. See Hodges, 234 Ill. 2d at 22. Based on the specific facts
of this case, we conclude petitioner’s postconviction petition has an
arguable basis in fact and in law. Accordingly, the trial court erred in
summarily dismissing the petition as frivolous and patently without
merit at the first stage of the proceedings, and the appellate court
erred in affirming the dismissal.
Our decision only entitles petitioner to advance to the second
stage of the proceedings where he may be appointed counsel and
submit an amended petition. See 725 ILCS 5/122–4, 122–5 (West
2006). We do not express an opinion on whether petitioner will be
able to meet the second-stage standard and proceed to an evidentiary
hearing on his amended petition. See Edwards, 197 Ill. 2d at 246-47
(decision on whether petitioner has established a substantial showing
of a constitutional violation is inappropriate at the summary dismissal
stage of postconviction proceedings).
Finally, in its appeal, the State argues the appellate court erred in
vacating the assessment of fees and court costs after concluding the
petition was properly dismissed as frivolous and patently without
merit. According to the State, the standard for assessing fees and
costs under section 22–105 of the Code is the same as the standard for
summary dismissal of a postconviction petition. Accordingly, section
22–105 requires assessment of fees and court costs when, as here, a
postconviction petition is properly dismissed as frivolous.
Petitioner responds that this court need not address the State’s
claim because his petition was improperly dismissed as frivolous and
patently without merit. Thus, he was not subject to assessment of fees
and court costs in any case. Alternatively, petitioner contends section
22–105 does not require assessment of fees and court costs every time
a court dismisses a petition at the first stage of postconviction
proceedings.
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Section 22–105 provides for assessment of filing fees and actual
court costs when a prisoner files a pleading, including a
postconviction petition, and the court specifically finds it is frivolous.
735 ILCS 5/22–105(a) (West 2006). We have determined that the
postconviction petition here was improperly dismissed as frivolous
and patently without merit. Thus, there is no longer any basis for
assessing fees and court costs under section 22–105, and the
assessment must be vacated.
Having vacated the assessment, we need not consider the State’s
argument on whether section 22–105 requires assessment of fees and
court costs whenever a postconviction petition is summarily
dismissed. The construction of section 22–105 is no longer at issue
in this case because the fees and costs imposed under that section
have been vacated. Generally, reviewing courts will not render
advisory opinions or consider an issue when it will not affect the
result. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009), citing In re
Mary Ann P., 202 Ill. 2d 393, 401 (2002); Barth v. Reagan, 139 Ill.
2d 399, 419 (1990). Accordingly, we decline to consider the
construction of section 22–105 because that issue will not affect the
result in this case.
III. CONCLUSION
For the foregoing reasons, we reverse the part of the appellate
court’s judgment affirming the circuit court’s summary dismissal of
petitioner’s postconviction petition. We affirm the part of the
appellate court’s judgment vacating the assessment of fees and court
costs under section 22–105 of the Code. The cause is remanded to the
circuit court for second-stage postconviction proceedings.
Affirmed in part and reversed in part;
cause remanded.
JUSTICE GARMAN, dissenting:
The majority concludes that under the rule announced by this
court in People v. Hodges, 234 Ill. 2d 1 (2009), petitioner is entitled
-15-
to proceed to the next stage of postconviction review because his
legal theory is “not completely contradicted by the record.” Slip op.
at 11. In addition, the majority finds that the allegations in his
postconviction petition “and the nature of this offense at least
arguably raise a bona fide doubt of petitioner’s ability to understand
the nature and purpose of the proceedings and assist in his defense”
Slip op. at 12. By the “nature of this offense,” the majority refers to
petitioner’s alleged attempt to commit “suicide by police.” Slip op. at
9.
In my opinion, the majority has misapplied the rule of Hodges,
misread the record, and ignored established precedent. I, therefore,
dissent.
The Rule Adopted in Hodges
In Hodges, this court clarified the standard that a postconviction
petition must meet to avoid summary dismissal on the basis that it is
“frivolous” or “patently without merit” (725 ILCS 5/122–2.1(a)(2)
(West 2006)). These terms are not defined in the Post-Conviction
Hearing Act. We held in Hodges that these terms refer to a petition
that “has no arguable basis either in law or in fact.” Hodges, 234 Ill.
2d at 12.
In Hodges, we adopted the United State’s Supreme Court’s
language that defines a claim with no arguable basis in law as a claim
“ ‘based on an indisputably meritless legal theory.’ ” Hodges, 234 Ill.
2d at 13, quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 104 L.
Ed. 2d 338, 348, 109 S. Ct. 1827, 1833 (1989). As an example of an
indisputably meritless legal theory, we mentioned “one which is
completely contradicted by the record.” Hodges, 234 Ill. 2d at 16,
citing People v. Robinson, 217 Ill. 2d 43 (2005).
The majority concludes that the legal theory asserted in petition
in this case was not “completely contradicted by the record,” quoting
these words numerous times as if this were the standard announced
in Hodges. It was not. In Hodges, we cited Robinson merely as one
example of a situation in which a postconviction petition was properly
dismissed because the petitioner’s legal theory was indisputably
meritless. Hodges, 234 Ill. 2d at 16-17. Robinson claimed that his
trial counsel had been ineffective for failing to raise a particular
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hearsay objection. This court rejected this claim as meritless because
the record revealed that the statement would likely have been
admissible under the spontaneous declaration exception to the hearsay
rule. Robinson, 217 Ill. 2d at 62-63. Our opinion in Robinson did not
use the phrase “completely contradicted by the record.”
However, in Hodges, we characterized Robinson as a case in
which the legal theory advanced by the petitioner was indisputably
meritless because it was “completely contradicted by the record.” We
did not, however, state that “complete” contradiction is the sine qua
non of a meritless legal theory. For example, we analogized a
frivolous postconviction petition to an appeal that is frivolous
because it is “ ‘not warranted by existing law’ or good-faith argument
for ‘modification *** of existing law.’ ” Hodges, 234 Ill. 2d at 12,
quoting 155 Ill. 2d R. 375(b).
Thus, a claim raising a question of law that is already well settled
by decision of this court or the United States Supreme Court is
another example of an indisputably meritless legal theory. For
example, a postconviction petition claiming that the petitioner was
entitled to have the rule of Apprendi v. New Jersey, 530 U.S. 466, 147
L. Ed. 2d 435, 120 S. Ct. 2348 (2000), applied retroactively to his
case is indisputably meritless if his direct appeal was exhausted prior
to the issuance of the Apprendi decision. See People v. De La Paz,
204 Ill. 2d 426 (2003). Under the rule of Hodges, summary dismissal
of such a petition would be proper.
The partial dissent in Hodges took the position that the
petitioner’s legal theory, that is, his claim of imperfect self-defense,
was frivolous and patently without merit because the undisputed facts
of record completely contradicted it. Thus, the partial dissent
employed “complete contradiction” in the manner intended by this
court–as one possible basis for finding the legal theory asserted in a
postconviction petition to be indisputably meritless. The majority in
the present case elevates this one possible basis to the status of an
absolute requirement.
In sum, the majority’s focus on the question of complete
contradiction obscures our holding in Hodges. As a result of this
misplaced focus, the majority does not fully address the standard that
we actually adopted in Hodges–whether the petition is frivolous or
-17-
completely without merit because it lacks either an arguable basis in
law or in fact.
I agree with the majority that petitioner’s claim has an arguable
basis in law. Slip op. at 11. It is well established that due process is
violated if, once a bona fide doubt of fitness has been raised, a
hearing is not held to determine whether the defendant is unable to
understand the nature and purpose of the proceeding or to assist in his
defense. People v. Eddmonds, 143 Ill. 2d 501, 512 (1991).
However, even if a petitioner asserts a recognized legal theory
that is arguably applicable in his case, a petition may also be
dismissed at the first stage if the claims therein have no arguable basis
in fact. Hodges, 234 Ill. 2d at 17. In Hodges, we adopted the Supreme
Court’s definition of such claims as those “ ‘whose factual
contentions are clearly baseless.’ ” Hodges, 234 Ill. 2d at 13, quoting
Neitzke, 490 U.S. at 327-28, 104 L. Ed. 2d at 348, 109 S. Ct. at 1833.
Baseless factual claims include those that are “ ‘fantastic or
delusional’ ” (Hodges, 234 Ill. 2d at 13, quoting Neitzke, 490 U.S. at
327-28, 104 L. Ed. 2d at 348, 109 S. Ct. at 1833), but not all baseless
factual claims are necessarily delusional. A factual claim may be
baseless where the record belies the claim made in the petition.
People v. Torres, 228 Ill. 2d 382, 394 (2008) (“this court has
consistently upheld the dismissal of a postconviction petition when
the allegations are contradicted by the record from the original trial
proceedings”). See also 725 ILCS 5/122–2.1(c) (West 2006) (“In
considering a petition pursuant to this Section, the court may examine
the court file of the proceeding in which the petitioner was convicted,
any action taken by an appellate court in such proceeding and any
transcripts of such proceeding”).
In addition, our holding in Hodges did not lower the previously
existing standard for first-stage dismissal or expressly or impliedly
overrule the large body of precedent dealing with claims that trial
counsel was ineffective for failing to request a fitness hearing.
Based on these precedents and my review of the entire record, I
conclude that petitioner’s claim of ineffective assistance of counsel
is patently without merit. The factual allegations in the petition, taken
as true, are clearly baseless because they do not raise a bona fide
doubt of his fitness to stand trial when viewed in light of the record
as a whole.
-18-
Ineffective Assistance of Counsel
The majority correctly rejects the State’s contention that dismissal
was proper because petitioner did not specifically plead facts in
support of the deficient representation and prejudice prongs of the
Strickland test. Slip op. at 9. As a pro se petitioner, he is not required
to cite to legal authority and, thus, cannot be expected to categorize
his factual assertions as relating to a particular prong of a particular
test. Hodges, 234 Ill. 2d at 21. However, to survive summary
dismissal, he is required set forth the gist of a constitutional claim.
This means that he must set forth some factual basis for his
claim–some facts that would, if true, support a finding that counsel’s
performance was deficient as well as some facts that would, if true,
support a finding of prejudice.
The majority does not separately consider those allegations in the
petition that relate to counsel’s performance and those that relate to
prejudice.
Review of the petition reveals several allegations relating to
counsel’s performance in general. For example, petitioner alleges that
counsel spent very little time with him, made false assurances about
his likelihood of acquittal, failed to contact potential defense
witnesses, and failed to properly cross-examine witnesses. Only two
allegations regarding counsel’s performance are arguably relevant to
the question of whether his performance was deficient for failing to
request a fitness hearing. First, petitioner alleges that counsel knew
that he was taking three psychotropic medications both before and
after his arrest and that petitioner had attempted suicide prior to his
arrest and on the day of his arrest. Second, petitioner also alleges that
counsel lied when he told the court at the sentencing hearing that he
was unaware petitioner was taking psychotropic medication.
Assuming, argued, that these allegations are sufficient, if true, to
establish that counsel’s performance was deficient, petitioner must
still allege sufficient facts to create an arguable question of prejudice.
Hodges, 234 Ill. 2d at 17. A question is arguable if it is “open to
argument, dispute, or question.” Webster’s Third New International
Dictionary 116 (1993).
To meet the prejudice prong of the Strickland test in a
postconviction claim of ineffective assistance of counsel for failure
to obtain a fitness hearing, the petitioner:
-19-
“must demonstrate that facts existed at the time of his trial
which raised a bona fide doubt of his ability to understand the
nature and purpose of the proceedings and to assist in his
defense. The petitioner is entitled to post-conviction relief on
his ineffective-assistance claim only if he shows that the trial
court would have found a bona fide doubt of his fitness and
ordered a fitness hearing if it had been informed of the
evidence raised in his post-conviction petition.” Eddmonds,
143 Ill. 2d at 512-13.
Further, the petitioner bears “the burden of proving that, at the
time of trial, there were facts in existence which raised a real,
substantial and legitimate doubt as to his mental capacity to
meaningfully participate in his defense and cooperate with counsel.
The test is an objective one.” (Emphasis added.) Eddmonds, 143 Ill.
2d at 518. Factors that are relevant to this inquiry include: the
petitioner’s irrational behavior and his demeanor at trial, any prior
medical opinion on his competence to stand trial; and any
representations by defense counsel on the defendant’s competence.
Eddmonds, 143 Ill. 2d at 518.
Eddmonds, which is cited by the majority (slip op. at 8) for this
formulation of several relevant factors, reached this court in a
different procedural posture from the present case. Eddmonds was a
capital case in which the trial court granted postconviction relief and
the State brought the appeal to this court. The quoted language refers
to the petitioner’s burden of proof at the hearing stage of
postconviction proceedings.
Nevertheless, this language from Eddmonds reveals what a
petitioner must allege in his postconviction petition regarding the
prejudice prong of the Strickland test to create an arguable question
of fact. He must allege facts that existed at the time of his trial that,
if known to the trial court at that time, would have caused the trial
court to find a bona fide doubt of his ability to understand the nature
and purpose of the proceedings and to assist in his defense. People v.
Easley, 192 Ill. 2d 307, 319 (2000) (“critical inquiry” at first stage of
postconviction proceedings is whether the allegations in the petition
raise a bona fide doubt of petitioner’s fitness at the time of trial). If he
meets this requirement, dismissal is improper and he is entitled to
have his petition docketed for further consideration (725 ILCS
-20-
5/122–2.1(b) (West 2006)) and, if he is indigent, to have counsel
appointed to assist him (725 ILCS 5/122–4 (West 2006)).1
In addition, in considering whether the petition alleges facts
sufficient to state the gist of a constitutional claim, “the court may
examine the court file of the proceeding in which the petitioner was
convicted, any action taken by an appellate court in such proceeding
and any transcripts of such proceeding.” 725 ILCS 5/122–2.1(c)
(West 2006). The allegations made in the postconviction petition
must also be considered in light of the facts known to the trial court
at the time. See, e.g., People v. Moore, 189 Ill. 2d 521 (2000)
(affirming dismissal of postconviction petition where the claim raised
in the petition was belied by the trial record). The critical question,
then, is whether allegations in postconviction petition, taken as true,
but viewed in light of the record, sufficiently allege prejudice to
preclude summary dismissal.
1
The majority objects to the citation to Easley, a capital case, as a
source of the applicable rule for the circuit court’s consideration of a
postconviction claim of unfitness to stand trial. Slip op. at 12. The majority,
however, cites Eddmonds, another capital case, for the rules applicable to
the same issue. Slip op. at 8.
The majority goes on to assert that this dissent would require a
postconviction petitioner to “allege more than an arguable basis in law and
fact.” What the majority overlooks is the existence of an arguable basis in
fact is not determined in a vacuum. The factual basis must be examined in
light of the legal claim being asserted. In this case, petitioner argues that he
was entitled to a fitness determination. His argument has merit only if it is
open to dispute that the facts he now alleges would have entitled him to a
fitness hearing had they been known to the trial court at the time of his trial.
See, e.g., People v. Alberts, 383 Ill. App. 3d 374, 378 (2008) (in a
noncapital case, when postconviction claiming that petitioner was unfit to
stand trial is summarily dismissed, “critical inquiry” on appeal is whether
the facts presented in defendant’s postconviction petition would have raised
a bona fide doubt of his fitness to stand trial had the trial court been aware
of their existence).
-21-
The Postconviction Petition and the Record
The postconviction petition, which contains 22 numbered claims
in 26 handwritten pages, was accompanied by 18 affidavits and
copies of portions of petitioner’s medical records. The bulk of the
petition involves allegations that various witnesses lied at his trial,
that he lacked the intent to commit murder, or that the State pursued
his prosecution to prevent him from filing a lawsuit against the officer
who shot him. Only three paragraphs arguably relate to the question
of his fitness to stand trial.
First, petitioner states that he was not given a psychiatric
evaluation and that an evaluation would have shown his “state of
mind at the time of [his] arrest and at the time of trial.”
Second, he states several times that he “wanted to die on the day
of his arrest and wanted the police to kill him and when he was not
kill[ed] by the police he still wanted to die.” He describes “fighting
off” the paramedics and refusing treatment. He also states that he had
“tried to kill himself before” and “was on psych medication” before
his arrest.
Third, petitioner alleges in the final paragraph of his petition:
“Now Brown was on very heavy Psych Medication at the time
of Brown trial and Brown didn’t know exactly what was
happening at Brown trial and didn’t understand everything at
his trial. Now Brown had to stop taking some of his Psych
Medication his Trazodone Medication to write and explain
these event in this Document clearly so Brown can understand
what Brown was writing to the best of his ability and Brown
know and believe’s in his heart and has proven that he didn’t
want to hurt or kill anyone but himself by Suicide by Police
and know that Brown is not Guilty of first degree Murder.
And Brown has proven that the evidence in this Document
would have changed the outcome of the trial. Now if you need
to find out more you can ask Brown Mother Virginia
Guerrero and Gloria Flores and Patricia Romas they know
that these things Brown Say’s are true. Now every thing
Brown has say in this Document is what Brown feel’s and
knows is the truth.”
-22-
Six of the affidavits were made by the petitioner, only one of
which relates to his fitness to stand trial. Petitioner avers that “before
my arrest I was taking Zoloft 50, Seroquil 400, Sinequan 100 and
because of the very heavy psych medication I was taking made me
unable to understand everything and unable to think and answer
everything the way I should have and made me feel like I could not
talk or question anything at my trial. It just made me slow to react in
my mind.”
His mother’s affidavit states that prior to his arrest, petitioner was
diagnosed as bi-polar and was taking medication. She also states that
he had made several suicide attempts prior to his arrest. Petitioner’s
aunt’s affidavit repeats these claims. (Other allegations in these
affidavits relate to counsel’s performance, not to any possible
prejudice to petitioner.) Medical records document the diagnosis and
treatment with medication.
The overarching theme of the petition and accompanying
affidavits is that petitioner should not have been found guilty of
attempted murder because he did not intend to kill the officer. Rather,
he intended to provoke the police into killing him. He argues that the
way he was holding the knife shows lack of intent to kill, witnesses
against him lied, and the entire prosecution was a plot to keep him
from filing a lawsuit. The first two statements quoted above regarding
his “state of mind” and his wanting to die are part of this argument
regarding his lack of intent to commit murder and are not directed at
or relevant to his fitness for trial.
The only allegations that touch on his fitness to stand trial are the
statement in the petition that he did not know what was happening at
trial and the statement in his affidavit that he was “unable to
understand everything and unable to think and answer everything the
way I should have and made me feel like I could not talk or question
anything at my trial. It just made me slow to react in my mind.” These
few words constitute the entirety of his claim that a bona fide doubt
of his fitness to stand trial existed at the relevant time.
This statement is conclusory and belied by the trial record. The
majority, however, devotes only one paragraph to its discussion of the
factual allegations in the petition. Slip op. at 11-12. Without any
reference to the record, the majority finds that petitioner’s claim is
-23-
“arguably supported by the allegations in his petition and supporting
affidavits.” Slip op. at 11.
Conclusory Allegations
“Nonfactual and nonspecific assertions which merely amount to
conclusions are insufficient to require a hearing under the Post-
Conviction Hearing Act.” People v. Burt, 205 Ill. 28, 35-36 (2001);
People v. Coleman, 183 Ill. 2d 366, 381 (1998). See also Torres, 228
Ill. 2d at 394 (reviewing summary dismissal of postconviction
petition and noting that at this stage, nonfactual and nonspecific
assertions are insufficient to require further proceedings).
A pro se petitioner is required to provide only a limited amount
of detail in his postconviction petition. Torres, 228 Ill. 2d at 394.
However, petitioner’s conclusory allegations that he “didn’t know
exactly what was happening” at his trial, that he was “unable to
think,” and that he “could not talk or question anything” are
descriptive, but lack specific factual content. He does not provide a
single example of something that he failed to understand or that he
would have questioned. He “offers no evidence regarding his
demeanor or that he acted irrationally at trial” (People v. Johnson,
183 Ill. 2d 176, 194 (1998)), thus negating one of the three factors
identified in Eddmonds. There are absolutely no specific factual
allegations supporting his claim that he was actually confused during
his bench trial. Thus, he has failed to identify a question of fact
regarding his fitness to stand trial that is open to argument, dispute,
or question.
It is noteworthy that when petitioner briefly raised the question of
a fitness hearing at his sentencing hearing, it was because “some
people” had told him that because he was taking medication, he might
not have had to go to trial. He did not suggest at that time that the
medication affected him at trial, only that he would “find out” if he
could have avoided trial. Not until he prepared his postconviction
petition did he begin to assert that the medications affected him
adversely. Indeed, in his statement at sentencing, he credited his
improved his mood and outlook to the medications that he now says
made him “unable to think,” and he stated that he needed to continue
taking them to remain on an even keel.
-24-
After our decision in Hodges, the appellate court affirmed the
summary dismissal of a postconviction petition in People v. Miller,
393 Ill. App. 3d 629, 640 (2009), on the basis that the allegations of
ineffective assistance of counsel were “conclusory and as such
fail[ed] to give rise to a gist of a constitutional claim.” The
petitioner’s allegations were insufficient to meet the prejudice prong
of Strickland even at this first stage of review because they were
subjective and self-serving. Miller, 393 Ill. App. 3d at 634. The
appellate court also noted that Hodges, while redefining the term
“frivolous and patently without merit,” “did not overrule any of the
cases” cited in support of the opinion. Miller, 393 Ill. App. 3d at 630
n.1. See also People v. Swamynathan, 385 Ill. App. 3d 434, 441
(2008) (affirming summary dismissal of postconviction petition
where he offered “nothing but conclusory and unsupported assertions
that he was not ‘mentally competent to enter a plea’; he had not been
‘of sound mind’; and he had been suffering from ‘a complete mental
breakdown’ ”).
In the present case, as in Miller and Swamynathan, the
postconviction petitioner has made only conclusory assertions that he
was prejudiced by counsel’s allegedly deficient performance. An
arguable question of prejudice is not raised by the bare assertion that
he did not understand the proceedings and absent any specific claim
that he would have done anything differently at trial.
The majority states that a requirement of nonconclusory factual
content is inconsistent with the requirement that the allegations in a
postconviction petition be liberally construed. Slip op. at 13. It is not.
Liberal construction does not require that the court frame allegations
that might have been made to strengthen the claim asserted. Rather,
it requires that we accept the factual allegations as true, so long as
they “ ‘can be corroborated and are objective in nature’ ” Hodges, 234
Ill. 2d at 10, quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008).
Petitioner’s allegations that he wanted to die and that he was taking
psychotropic medications, taken as true, are not sufficient to raise an
arguable question regarding his fitness to stand trial. Similarly, his
conclusory allegations that he was “unable to understand everything”
and that he “was slow to react in [his] mind,” no matter how liberally
construed, are entirely subjective and lack any specific content. Thus,
-25-
petitioner has not raised an arguable question of fact regarding the
prejudice prong of the Strickland test.
The Trial Record
In addition to being conclusory, the petitioner’s claim of unfitness
to stand trial is belied by the record. See, e.g., Torres, 228 Ill. 2d at
396 (noting that postconviction petitioner abandoned his claim that
he had not understood the consequence of his guilty plea because the
claim was “belied by the record of the guilty-plea proceeding and is
therefore frivolous and patently without merit”).
Before the bench trial began, defense counsel presented a signed
jury waiver. The trial court asked petitioner if he had signed the
document. He answered, “Yes, sir.” The trial court asked if he
understood that he was giving up his right to a jury trial. He
responded, “Yes.” The trial court explained that if he had a jury trial,
the jurors would be selected by defense counsel and the prosecutor
and that the function of the jury would be to decide whether he was
proven guilty beyond a reasonable doubt. The court further explained
that he could not be found guilty unless all 12 jury members
concluded, after considering the evidence, that he was proven guilty
beyond a reasonable doubt. The court also noted that in a bench trial,
the same reasonable doubt standard would apply. The court then
asked petitioner if he understood the distinction between a bench trial
and a jury trial. He responded, “Yes, sir.” Finally, the court asked
petitioner if it was still his “decision and desire” to give up his right
to a jury trial. He answered, “Yes.”
Petitioner’s intent to commit “suicide by police” was brought out
on cross-examination of one of the State’s witnesses, Elei Romero,
who testified that when the police told petitioner to drop the object he
was holding, which they then believed was a screwdriver, he “said
only, ‘Come. Shoot me. Come. Shoot me.’ ” Defense counsel asked
this witness how far away petitioner was from the officer when he
said “Shoot me.” The witness stated that defendant was within about
15 feet of the officer.
In his argument on the motion for a verdict of not guilty at the
close of the State’s case, counsel noted that his client was “standing
in front of several armed officers with their guns drawn,” holding a
-26-
knife, saying “shoot me.” He argued that not only was petitioner not
“in a position to kill any of the officers,” suggesting he lacked the
intent to kill, but that his actions “guaranteed that he was going to get
shot and he knew it.”
After denial of the defense motion for a verdict of not guilty,
defense counsel informed the court that petitioner did not intend to
testify. The trial court explained the significance of the denial of the
defense motion. The trial court informed petitioner, “You have the
right to testify. You have the right to call witnesses. Do you have
witnesses? Are there witnesses that are available that you wanted
called in this case?” Petitioner responded:
“Your honor, I don’t have any witnesses. My witness was
Gloria Flores, but the State somehow obtained her on their
side now. I have letters and stuff that she wrote me. At the
beginning she was on my side.”
The following exchange then occurred:
“COURT: You understand you have a right to testify, too,
and you have a right to take the witness stand, to be sworn to
tell your side off the story under oath–
BROWN: Yes, sir.
COURT: To be examined by your lawyer as well as by the
State’s Attorneys and to tell whatever you can recall about
what occurred that evening. Do you understand that?
BROWN: Yes, sir.
COURT: And from what your lawyer has indicated,
you’ve told him you don’t wish to testify?
BROWN: Yes, sir.
COURT: Has anybody promised you anything to cause
you to make that decision?
BROWN: No, sir. No, sir.
COURT: Has anybody threatened you to make you not
want to testify?
BROWN: No, sir.”
In his final closing argument, defense counsel argued that if
petitioner “wanted anybody killed, it was himself” and that his intent
-27-
to provoke the officers to shoot him created a reasonable doubt of his
intent to kill.
The trial court found petitioner guilty, concluding that his
advancing towards the officer while brandishing a knife, along with
his announced intention to kill a police officer, provided a sufficient
basis to find him guilty beyond a reasonable doubt. Based on the
evidence and the arguments of defense counsel, the trial court was
aware that the defense theory of the case was that petitioner was
acting out of his own wish to die and that he lacked intent to kill the
police officer. Thus, the court was aware that the petitioner was
potentially suicidal. Clearly, the court found that a desire to commit
“suicide by police” and intent to kill a police officer are not mutually
exclusive states of mind. The court then ordered a presentence report.
Petitioner cooperated with the presentence investigation. He gave
a detailed social history. In addition to the three children he has with
Gloria Flores, he reported having four other children with two other
women. He stated that he dropped out of high school as a freshman
because his girlfriend was pregnant. He stated a goal of obtaining his
GED certificate. Petitioner described working as a security officer
prior to his arrest and a previous job as a forklift operator. He
reported taking pain medication for his gunshot wounds. He also
reported having been diagnosed with bipolar disorder and depression
in 2000 and taking daily doses of three prescribed psychotropic
medications. He described his drinking habits, including having
consumed beer and a bottle of tequila on the day of his arrest, and his
former drug addiction. He denied any former gang affiliation and
reported spending his free time playing chess and reading the Bible.
He specifically declined to comment on his version of the offense of
which he was convicted.
Nothing in this report suggests that petitioner was confused or
otherwise unable to fully participate in the interview process. The
interviewer did not report observing any deficit in attention,
communication, or understanding.
On January 31, 2004, a hearing was held on the defense motion
for a new trial. Again, defense counsel argued that the evidence did
not prove intent to kill. The motion was denied and the matter
proceeded to sentencing. The court ascertained that both attorneys
had read the presentence report and asked defense counsel if there
-28-
were any modifications or corrections to be made to the report.
Defense counsel said there were not.
After hearing from both attorneys on sentencing, the court asked
petitioner if he wanted to take the opportunity to speak on his own
behalf. He read a statement that he had written:
“To the judge or to whoever it may concern, on October
8th ’02, I got mad at Gloria and I left the house. She followed
me, yelling at me and me at her.
I got mad because I felt that she was cheating on me. We
had this problem for some time. At the time I felt very
depressed. I did not know why, but I felt like this a lot. I was
going through depression. I even tried to kill myself more
than one time.
So when I left, I went by my mother’s house and sat in my
van and drank about three-and-a-half six packs. And I was
feeling depressed.
When I came back home, I threw the keys on the floor at
the front door and left. Gloria picked them up and I went
back, knocked on the window and Gloria opened the door.
We were talking. Me, Gloria, and Maria.
I opened the bottle of tequila and drank it. At some time
I took a nap. I got up and me and Gloria started arguing again.
I got mad and threw a glass of tequila. Gloria ran upstairs,
and I told her to go ahead and call the police because I was
going to kill myself and the police.
Now, I went to the kitchen and grabbed some knives. I
think I even grabbed a fork too. And I went out into the–stood
in the doorway. Gloria’s sister came out her door upstairs, and
I told her I was going to kill myself and the police. And I
waited for the police.
Now, at the moment that Gloria ran upstairs, I
remembered that I had seen on the news about two to three
weeks ago that a man was shot and killed by police because
he had a big knife, a machete. He was waiving it like a crazy
man and the police killed him.
-29-
So I thought by me grabbing the knife, that the police will
kill me.
At around that–okay. Grabbing a small knife, I believe
waiving it around the police would kill me.
Now, I could have stabbed the police at any time, but I did
not. The police shot me in my leg, so I knew that they were
not going to kill me.
I tried to walk to my van that was on the corner at the
time. I was walking on the fence with my right hand on the
fence and I did not have the knife. The police shot me in my
back. When I fell on the floor and grabbed my side, I still
wanted to die. So when the paramedics came, I pushed them
away and when I was in the hospital, I still wanted to die. I
told the doctor to leave me alone. I was not going to sign
anything.
I did not want to kill anyone, and I did not plan to kill
anyone. And I did not plan to kill the police.
If I would have planned to kill anyone, I would have
grabbed my rifle that I had at the time. But I did not because
I did not plan to do anything that day. I just got mad and I
wanted to die.
Now, I did not do anything to hurt Gloria for her to call
the police and threw a glass. When she ran upstairs, I knew
that she was going to call the police. So I told her to go ahead
and I threw some furniture.
I was upset. I wanted to die that night or should I say that
morning. I was not thinking of the consequences. I just
wanted to die.
Now, since I came to Cook County jail, ten months ago,
I had two choices, one to join a gang or to open a bible. I
opened the bible. And I am–I made a friend Martin. He’s a
born again Christian, and he helped me a lot to get through
this time in jail.
Now I am a born again Christian, and I know I have a
reason to live. That is for my kids, all of them, and my
stepdaughter.
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There are so many things I need to teach them, so they do
not do the same mistakes I have. And this is the first time I
have been in jail longer than a week and the experience was
good for me.
I am not drinking any more. I do not want to kill myself.
I want to live.
I take the medicine I need which I stopped taking in the
world.
I know that I need this medicine, so I do not feel
depressed. I have to deal with my problems and stop trying to
kill myself.
Now, I still have all the problems in the world. And I–and
a thousand more. But I have to deal with them, and I know
that I will not try to kill myself or act crazy with anyone or the
police in here or outside because I am taking my medication.
I know that I have to deal with my problems. And when I feel
bad or down, I open my bible to help me with my problems in
my life.
I am not the same person that I was before. Now since I
went to trial, some people have told me because I take
medication, psych medication that I was supposed to have a
psych evaluation and that I could not have gone to trial. I do
not know if this is true. I will find out. But I know that I am
not happy with the decision that happened on the last court
date.
I think my lawyer should have brought up all these things
about me.
Now I made a statement at the police–at the hospital to a
woman who told–I told her that I had–that I–that I–I told her
that I had a small knife that I pulled out of my pocket, and I
wouldn’t put it down. The police shot me in my leg and in my
back.
And I got up and they shot me again. I did not have the
knife.
Now my lawyer did not bring up all these things of what
happened to the statement. All my lawyer did was promise
that I will go home.
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Now my mother tells me that I’m looking at one to 20 for
something I did not do. Instead of taking the three years that
state’s attorney offered me that I wanted to, but my lawyer
told me that I was going home. There should be something I
could do about these things.
I can–I do not want to hurt anyone. I just wanted–went
about things the wrong way because I wanted to die that day.
Even on my last court date, I felt like I wanted to die. I
know I have to deal with this problem. I am sorry for my
mistake. I have been here ten months. I do not know how
much longer or if or when I get out. I know I need to do three
things.
One, I need my medication. And I have to take it every
day to get better, so I do not–so I could get better and get
through the day.
Two, get in some kind of inpatient or outpatient program
and never drink any kind of alcohol.
Three, find good church.
If you need to find out more, you can ask my mother, and
Gloria, the paramedics, the doctor, the woman that took my
statements, they know that these things I say are true.
Now everything I say in this letter is what I feel and know
is the truth. And I feel if you ask the police or Gloria if I could
have stabbed the police at any time, they will say yes. But I
did not stab or injure the police because I did not want to hurt
anyone.
I just wanted to–wanted the police to kill me. And if you
ask the police or Gloria if this is more than just an assault on
police because I pushed the officer’s gun, I will guess–I
guess–just scared them and they will say, yes.
Now, I got what I asked for because I wanted them to kill
me and shoot me and kill me.
Your honor, these are–I’ve been taking psych medication
since I came in here. These are proof and I was taking psych
medication before I came. This is from the world [referring to
documents].”
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At this point, the trial court interrupted petitioner to ask if he had
anything to say in mitigation before sentencing. Defense counsel
informed the court that petitioner was mistaken about the existence
of a plea offer. The court then remarked that it was “more interested
in something else that now crops up for the first time”–the fact that
petitioner had been taking psychotropic medication.
Defense counsel stated that he had not been aware that his client
was taking medication. The court asked: “You had no reason to have
any bona fide doubt as to the defendant’s fitness to stand trial?”
Counsel responded that the petitioner “spoke very coherently to me,
seemed fine,” and that he “had no problem communicating with
him.” The trial court also questioned the prosecutor, who stated that
he had “no knowledge of it.”
The court then concluded:
“Nothing the court has observed in the conduct and
appearance of Mr. Brown over the months would indicate to
me that I would have any bona fide doubt as to his fitness.
So the fact that he was receiving psychotropic drugs, I
believe is of no consequence standing alone and of itself, and
the court will treat it as such.”
Viewing the record as a whole, there was no indication during
trial that the petitioner lacked understanding of the proceedings or
was unable to communicate with counsel or assist in his defense. Yet,
the majority dismisses petitioner’s waiver of his right to a jury trial
and his right to testify as “essentially brief exchanges with the trial
court” that “do not positively rebut” the allegations in his
postconviction petition and that “do not conclusively demonstrate an
ability to understand the proceedings or assist in the defense.” Slip
op. at 11.
This court has never required that the record “positively rebut” a
postconviction claim that a bona fide doubt existed of fitness or that
the record “conclusively demonstrate” fitness. The requirement is that
the petitioner allege facts which, if known to the trial court at the time
of trial, along with all other facts that the record demonstrates were
known to the trial court at that time, would have created a bona fide
doubt. Petitioner has alleged no facts that create an arguable question
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of fact on this point. He has made a bare assertion that he did not
understand the proceedings.
The majority does not mention the presentence report, which
describes an individual who is fully capable of communicating and of
understanding his situation. Indeed, he chose to reveal facts about his
education, his family, his work history, and his past drug and alcohol
use, but declined to discuss the crime itself. The record is clear that
the court was aware of the contents of the report, including
petitioner’s history of mental illness, at the onset of the sentencing
hearing, before petitioner raised the question of a fitness hearing.
I have quoted petitioner’s lengthy statement at his sentencing
hearing in its entirety because it clearly reveals a competent
individual, arguing to the court that he lacked the mental state
necessary to sustain a conviction of attempted murder. He focused on
his previous depression and desire to end his own life. The court,
however, had already considered and rejected this defense, finding
that petitioner’s repeated statements that he intended to kill police
officers who responded to the domestic violence call were sufficient
evidence of his state of mind and were not negated by his own
willingness to die in the attempt.
His statement regarding what he had been told by others suggests
that he believed, incorrectly, that the mere fact of his taking
medication might have enabled him to avoid trial. He did not claim
to have been confused during any of the pretrial proceedings or
during his bench trial. He did not say that he had not understood his
right to a jury trial or his right to choose whether to testify. He did not
claim that he had difficulty understanding what counsel told him or
communicating with counsel. In fact, he repeatedly stated that the
medication had improved his mental state and that he needed to
continue taking it.
The majority finds his detailed statement to be of
“limited significance because it was made more than one
month after the trial. Thus any indication that petitioner was
lucid in making the statement or understood the trial
proceedings at that time does not necessarily establish his
condition at the time of trial. In particular, the statement does
not contradict petitioner’s allegation that his psychotropic
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medication prevented him from understanding the trial
proceedings.”
I disagree. The fact that he wrote and delivered this statement
stands in stark contrast to his new allegation of confusion, lack of
understanding, and inability to talk or question. The record reveals a
defendant who was fully capable of understanding the proceedings
and assisting in his own defense, and whose own attorney observed
no signs of unfitness. The trial court, on the record, stated that his
conduct and appearance did not raise a bona fide doubt of his fitness.
A review of the record reveals that none of the Eddmonds factors
were present at the time of trial. His demeanor at trial was
unremarkable. He did not engage in irrational behavior. There are no
prior medical opinions regarding his competence. Defense counsel,
on the record, stated that his client was cooperative and
communicative. The petition and accompanying documents do not
allege any new facts regarding these factors.
In similar circumstances, our appellate court has affirmed the
summary dismissal of claims of postconviction claims of ineffective
assistance of counsel on the basis that the claims were belied by the
record.
In Swamynathan, the petitioner’s claims were not only
conclusory, as noted above, they were “plainly refuted by the record,
which reflect[ed] that no bona fide doubt regarding defendant’s
fitness existed at the time he entered his guilty plea.” Swamynathan,
385 Ill. 2d at 441.
Similarly, in People v. Williams, 364 Ill. App. 3d 1017 (2006), the
petitioner claimed that he had been unfit to plead guilty because he
suffered from several forms of mental illness and had an extremely
low IQ. He stated in his accompanying affidavit that he had been
taking psychotropic medications during his incarceration and that at
the time he pleaded guilty he was not thinking rationally. Williams,
364 Ill. App. 3d at 1020. He argued that summary dismissal of his
petition was error because it raised a bona fide doubt of his fitness to
plead guilty. Williams, 364 Ill. App. 3d at 1023. Taking the factual
allegations as true, the appellate court rejected the claim because the
record of the guilty plea proceeding clearly showed that he
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understood the nature and purpose of the proceedings. Williams 364
Ill. App. 3d at 1025.
In the present case, taking the factual allegations in the petition as
true, the record nevertheless belies his claim of a bona fide doubt of
his ability to understand the nature and purpose of the proceedings
and assist in his defense. Slip op. at 12.
Application of Established Precedent
In Johnson, a capital case, the trial court dismissed the
postconviction petition without an evidentiary hearing. This court
affirmed. Johnson, 183 Ill. 2d at 184. The petition was accompanied
by a report prepared by a psychologist who evaluated Johnson after
his conviction. The doctor wrote that Johnson “was intellectually
incapable of understanding the admonitions of the trial court
regarding his waiver of jury for sentencing.” Johnson, 183 Ill. 2d at
192. Based on this assessment, Johnson argued that his intellectual
limitations rendered him unable to “ ‘understand the nature and object
of the proceedings against him, to consult with counsel, and to assist
in preparing his defense,’ ” thus rendering him unfit for trial.
Johnson, 183 Ill. 2d at 192-93, quoting Drope v. Missouri, 420 U.S.
162, 171, 43 L. Ed. 2d 103, 113, 95 S. Ct. 896, 903 (1975). After
noting that the “critical inquiry is whether the facts presented in
defendant’s post-conviction petition raised a bona fide doubt of his
fitness to stand trial” (Johnson, 183 Ill. 2d at 193), this court
concluded that Johnson failed to meet his burden of “showing that, at
the time of trial, there were facts in existence which raised a
substantial and legitimate doubt as to his mental capacity to cooperate
with counsel and meaningfully participate in his defense.” Johnson,
183 Ill. 2d at 193-94. Specifically, this court stated that he had offered
“no evidence regarding his demeanor or that he acted irrationally at
trial. In addition, there was no prior medical opinion on defendant’s
competence to stand trial.” Johnson, 183 Ill. 2d at 194. Thus, none of
the factors identified in Eddmonds as indicators of a bona fide doubt
were present. Further, the only new evidence offered was the
psychologist’s opinion that Johnson was incapable of understanding
the court’s admonitions because of his inability to comprehend
complex sentences. This court concluded that the “facts offered by
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defendant fall short of raising a bona fide doubt of his fitness.”
Johnson, 183 Ill. 2d at 194.
In the present case, the only objective indicator of possible doubt
as to petitioner’s fitness is the fact that he was taking psychotropic
medication at the time of trial. This fact, standing alone, is
insufficient to create a bona fide doubt. People v. Mitchell, 189 Ill. 2d
312, 330 (2000). Like the defendant in Johnson, petitioner now
claims to have been unable to understand the proceedings at trial but,
like Johnson, he “offers no evidence regarding his demeanor at trial
or that he acted irrationally at trial” (Johnson, 183 Ill. 2d at 194) and
no prior medical opinion on his competence to stand trial.
In Mitchell, we again affirmed the dismissal of a postconviction
petition without an evidentiary hearing in a capital case. At the time
of his trial and sentencing, Mitchell had been taking two medications
to control his epilepsy. His petition alleged that the trial court had
been aware of his condition, which had existed since a head injury
when he was six years old, and that he was taking psychotropic
medications to control his seizures. Mitchell, 189 Ill. 2d at 323. The
petition was accompanied by an affidavit by a pharmacology
consultant, who listed the “probable side effects of the drugs as
‘sedation, hallucinations, dizziness, incoordination, depression,
emotional changes and behavioral deterioration, psychosis and
aggression.’ ” The affidavit also stated that the “ ‘combination of the
effects of both of these drugs can cloud the sensorium (alter the
ability to think clearly) and thus effect [sic] any individual’s ability
to make certain decisions.’ ” The consultant concluded that the
“ ‘overall sedative effect may have caused Mr. Mitchell to appear too
relaxed or too detached during court proceedings.’ ” Mitchell, 189 Ill.
2d at 323.
In addition, Mitchell’s petition included an affidavit from a
clinical psychologist, who tested him in prison and determined that
his “verbal IQ was 73, his performance IQ was 75, and his full scale
IQ was 73.” The psychologist also found that his “math skills were at
a fourth-grade level and that his reading and spelling skills were
below the third-grade level,” characterizing the defendant “as having
a severe language-based learning disability.” The psychologist stated
that the defendant’s “cognitive abilities were limited and that,
although defendant’s IQ scores showed that he was borderline
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mentally retarded, his inability to read and his slowed
information-processing speed left him functioning more like someone
in the mildly to mild/moderately impaired range.” Mitchell, 189 Ill.
2d at 353-54.
This court found that the record belied any claim that he had not
understood the nature of the proceedings or was unable to assist in his
defense. Mitchell, 189 Ill. 2d at 334. Specifically, we noted:
“Defendant’s exchanges with the trial judge do not display
any confusion about the nature of the proceedings, and
defendant assisted in his defense by testifying in his own
behalf. Defendant testified to his whereabouts at the relevant
times, denied any involvement in the crime, and asserted that
his confession to the police was coerced. Defendant’s
testimony covered over 50 pages of the report of proceedings
and does not disclose any signs of confusion about the nature
or purpose of the proceedings. Similarly, defendant gave
extensive testimony in support of his motions to suppress
statements and evidence, and there is no indication that
defendant did not understand the nature or purpose of those
proceedings.” Mitchell, 189 Ill. 2d at 334-35.
We also noted that while a trial judge “cannot rely on trial
demeanor to dispense with a fitness hearing in the face of evidence of
a bona fide doubt of defendant’s fitness,” there was no evidence in
the record suggesting a bona fide doubt of fitness at the time of trial.
Mitchell, 189 Ill. 2d at 335.
Similarly, in the present case, petitioner’s exchanges with the trial
court do not display any confusion about the nature of the
proceedings. Although petitioner elected not to testify at his bench
trial, he presented a lengthy statement, which he had written himself,
at his sentencing hearing. The fact that the sentencing hearing was
held several months after the bench trial weighs little in light of the
fact that petitioner not only continued to take the psychotropic
medication at the time of his sentencing, he credited the medication
with an improvement in his mood and outlook. As in Mitchell, the
record in this case belies petitioner’s claim.
In addition, in Mitchell, even the presence of affidavits from a
pharmacologist and a clinical psychologist did not negate the trial
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record, which demonstrated that the defendant “fully understood the
nature of the proceeding against him, and was able to cooperate in his
defense.” Mitchell, 189 Ill. 2d at 337. Petitioner in the present case
offers only affidavits from his mother and aunt, who state that prior
to his arrest, petitioner was diagnosed as bipolar and that he has made
several suicide attempts, and medical records documenting this
diagnosis.
In Easley, the postconviction petitioner claimed that he had asked
counsel to arrange for a physical examination and a brain scan
because he believed that something was wrong with his brain and he
experienced “a lot of headaches.” He stated that when he got angry or
upset, he would “blank out–my mind goes blank; my nerves jump and
I can’t think clearly.” Also, when he read or spoke, “he forgot
everything that he was reading or thinking.” Easley, 192 Ill. 2d at 320.
Counsel did arrange for a psychological evaluation, but Easley
refused to cooperate because he believed that the psychologist had
been sent by the State. Easley, 192 Ill. 2d at 319-20. This court
concluded that this “evidence does not help defendant” because
fitness “speaks only to a person’s ability to function within the
context of a trial. It does not refer to sanity or competence in other
areas. A defendant can be fit for trial although his or her mind may be
otherwise unsound.” Easley, 192 Ill. 2d at 320.
Easley also made “several irrational statements” during his trial,
including an outburst at a pretrial hearing. Easley, 192 Ill. 2d at 320.
Based on a colloquy between Easley and the trial judge, this court
concluded that he understood the nature of the proceeding. His hostile
conduct was not a sign of unfitness, but was based on “his belief that
the criminal justice system demeaned him.” Easley, 192 Ill. 2d at 321-
22.
Affidavits regarding postconviction psychological examinations
indicated that Easley “had long-standing mental problems at the time
of trial that affected his ability to understand written and oral
instructions. When under extreme stress, [he] suffered from thought
and personality disorder, paranoia, and episodic breaks with reality.”
Easley, 192 Ill. 2d at 322. This court noted that the “fact that a
defendant suffers from mental disturbances or requires psychiatric
treatment does not necessarily raise a bona fide doubt as to [his]
ability to understand the proceedings and to assist counsel in the
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defense.” Easley, 192 Ill. 2d at 322. Then, taking his allegations as
true, this court concluded that his postconviction petition did not raise
a bona fide doubt of his fitness to stand trial and his claim of
ineffective assistance of counsel, therefore, failed. Easley, 192 Ill. 2d
at 323.
Compared to Easley, the quantum of evidence alleged by
petitioner in support of his claim is minuscule. He offers only his self-
serving statement that he did not understand what was going on at his
trial, which is belied by the record, and the statements of his mother
and aunt that he had a history of mental illness prior to his trial, that
he was suicidal at times, and that he was being treated with
psychotropic drugs. He offers no objective evidence, either in the
record or by means of affidavit, of the existence of facts that, if
known at the time of trial, would have raised a bona fide doubt of his
fitness.
In Burt, the petitioner was evaluated by a psychologist prior to
trial. The doctor found him fit and defense counsel stipulated to the
contents of the report. As a result, no fitness hearing was held.
Petitioner was taking psychotropic medications at that time and
counsel and the court were aware of this fact. Burt, 205 Ill. 2d at 33.
Against the advice of counsel, Burt subsequently changed his plea
from not guilty to guilty. He was convicted and sentenced to death.
Burt, 205 Ill. 2d at 33-34. In his postconviction petition, he asserted
that counsel was ineffective for failing to request a fitness hearing.
We affirmed the trial court’s dismissal of the petition without a
hearing.
His petition alleged that his decision to plead guilty was irrational
and “illustrated that his ‘will had become flattened’ and ‘his desire for
self-preservation disappeared.’ ” Burt, 205 Ill. 2d at 40. We found this
allegation contradicted by the record, which revealed that he willfully
rejected the advice of counsel and that he responded to the trial
court’s admonishments by stating that he wished to plead guilty. Burt,
205 Ill. 2d at 40. In addition, he clearly understood the consequences
of a guilty plea, because the trial court informed him of these
consequences and he stated that he “ ‘understood fully.’ ”
Burt also alleged that he had difficulty concentrating during court
proceedings and pointed to a defense request for a continuance
because he could not participate in jury selection as a result of his
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medication and difficulty sleeping. The trial judge granted the
request. Later, when he attempted to withdraw his guilty plea, the
court observed that he “appeared to be alert in court and participated
in his defense.” Burt, 205 Ill. 2d at 42.
Finally, Burt offered an affidavit from one of his trial attorneys,
describing his “frequent mood swings,” his “belligerent or explosive
behavior,” and his threat to become violent in the courtroom. He
argued that this was evidence of a bona fide doubt of his fitness.
Based on our review of the record, we concluded that these things did
not affect his understanding of the proceedings or his ability to
participate in his own defense. Burt, 205 Ill. 2d at 43. Thus, he failed
to establish the prejudice prong of a claim of ineffective assistance of
counsel. Burt, 205 Ill. 2d at 44.
In the present case, defendant offers only his use of psychotropic
medication during trial and a bare assertion, without specific factual
allegations, that he did not understand the proceedings. If the
allegations in Burt, including the objectively verifiable fact that he
required a continuance as a result of the effects of his medication,
were insufficient to survive dismissal without a hearing, surely the
allegations in the present case are insufficient.
In People v. Harris, 206 Ill. 2d 293 (2002), the postconviction
petition included allegations that, at the time of trial, Harris suffered
from depression, dependent personality disorder, and organic brain
disorder. Harris, 206 Ill. 2d at 302. His petition was accompanied by
a report of a postconviction psychological assessment confirming
these diagnoses. Harris, 206 Ill. 2d at 303. Taking these allegations
as true, we stated that they did not necessarily establish that he was
unfit:
“In this case, the record clearly illustrates that defendant
understood the nature and purpose of the proceedings. On
several occasions, the court provided defendant with a
detailed explanation of the proceedings and informed
defendant of his rights during those proceedings. Following
these admonishments, defendant stated that he understood.
Furthermore, the record shows that defendant participated in
his own defense; communicated and conferred with his trial
counsel; expressed to the court his understanding of the
proceedings, including his decisions to litigate rather than
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agree to a plea, waive his right to testify, and waive his right
to a jury at the sentencing hearing; and articulated a clear
statement in allocution during mitigation.” Harris, 206 Ill. 2d
at 305.
In the present case, despite his ingestion of psychotropic
medication and his subsequent allegation that he did not understand
the proceedings, petitioner also “expressed to the court his
understanding of the proceedings,” including his decisions to waive
his right to a jury and his right to testify. He also “articulated a clear
statement” at his sentencing hearing.
In People v. Johnson, 206 Ill. 2d 348 (2002), we affirmed the
dismissal of postconviction petition without evidentiary hearing
where the petitioner claimed both that the trial court had actual doubts
as to his fitness and failed to hold a fitness hearing and that certain
facts existed that would have raised a bona fide doubt of his fitness
had the trial court been aware of them at the time it accepted his
guilty plea. Facts known to the trial court included an apparent
suicide attempt at the time of his arrest that made the trial court
“attuned to the possibility that his mental state was less than stable.”
Johnson, 206 Ill. 2d at 365. New facts alleged in the petition included
his mother’s testimony at the sentencing hearing regarding his history
of mental illness and the report of the clinical psychologist, who
testified at the hearing on petitioner’s motion to withdraw his guilty
plea. Petitioner argued that the evidence developed after he pleaded
guilty, when considered in combination with the information known
to the trial court at the time, was sufficient to raise a bona fide doubt
of his fitness to stand trial or to enter a knowing and intelligent guilty
plea. Johnson, 206 Ill. 2d at 361.
We concluded that “no bona fide doubt as to petitioner’s fitness
would have existed at the time he pleaded guilty, even if the trial
court had been aware of the facts now available.” Johnson, 206 Ill. 2d
at 373. We gave great weight to the fact that the trial court
specifically inquired of defense counsel whether he had any concerns
about his client’s fitness and he replied that he did not. In addition,
the trial court made a record of its own observations of the defendant
in the courtroom setting and its opinion that he well understood what
the proceedings were about. Johnson, 206 Ill. 2d at 373.
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In the present case, when the trial court became aware that
petitioner was taking psychotropic medication, it conducted a similar
inquiry and counsel responded that he had no concerns about his
client’s fitness. Similarly, the trial court made a record of its own
observations of petitioner in the courtroom setting, finding no
indication of unfitness. See also People v. Moore, 189 Ill. 2d 521, 536
(2000) (affirming dismissal of postconviction petition without
evidentiary hearing where defendant “exhibited rational and
competent behavior at trial *** engaged in colloquies with the trial
judge in which he was responsive and appropriately acknowledged
certain rights”); People v. Shum, 207 Ill. 2d 47 (2003) (affirming
dismissal of postconviction petition without evidentiary hearing;
petition accompanied by neuropsychiatrist’s report that petitioner
experienced auditory verbal memory retrieval problems as a result of
a brain injury, social worker’s report that petitioner had a family
history of mental illness including schizophrenia, and report of
psychiatrist that petitioner insisted on controlling his own case and
refused to cooperate with counsel; these facts, if known at the time of
trial would not have raised a bona fide doubt of fitness in light of fact
that petitioner filed pro se motions, waived certain rights, and spoke
clearly in allocution at sentencing).
In sum, petitioner in the present case knowingly and voluntarily
waived certain rights, speaking clearly to the court during
admonishments, and spoke clearly at his sentencing hearing. He
points to no objectively verifiable fact in existence at the time of his
trial, other than the mere fact of his taking psychotropic medication,
that might suggest he was unfit. Like the petitioners in each of these
cited cases, he has not made sufficient allegations, supported by
affidavit or other form of proof, to demonstrate that a bona fide doubt
of his fitness would have existed at the time of trial if the court had
been aware of the facts.
These cases can be distinguished in one important respect from
the present case. That is, each of these cases is a capital case in which
the petitioner likely had the assistance of counsel to prepare a
postconviction petition. 725 ILCS 5/122–2.1(a) (West 2006).
Petitioner in the present case filed a pro se postconviction petition. As
such, the standard of Hodges applies to his claim. Nevertheless, these
capital cases do summarize this court’s previous approach to using
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the record to assess postconviction claims of ineffective assistance of
counsel for failure to obtain a fitness hearing. If the records in these
cases belied postconviction claims of unfitness for trial, the record in
the present case surely belies petitioner’s claim.
Under the Hodges standard, the petitioner is not required to
include legal argument or citation to authority. People v. Edwards,
197 Ill. 2d 239, 244-45 (2001). However, he must still plead
sufficient facts to assert an arguably constitutional claim. Hodges,
234 Ill. 2d at 9. This means that he must plead sufficient facts to
create an arguable question of fact whether a bona fide doubt of his
fitness to stand trial existed at the time of his trial had the trial court
been aware of the facts now alleged.
This court has had few occasions to address the first-stage
dismissal of a pro se postconviction petition in a noncapital case.
However, in People v. Hanson, 212 Ill. 2d 212 (2004), a direct
appeal, we reviewed the defendant’s argument that his due process
rights were denied because he was not given a fitness hearing. The
defendant was convicted in a bench trial of aggravated battery and
resisting a peace officer. Defense counsel requested a fitness
evaluation, alleging in the motion that a bona fide doubt existed of his
client’s fitness to stand trial. Hanson, 212 Ill. 2d at 214-15. The court
ordered a psychiatric evaluation. The psychiatrist found the defendant
fit and counsel withdrew the motion. Hanson, 212 Ill. 2d at 215. One
issue on appeal was whether the trial court’s granting of the motion
“implicitly signaled” the court’s belief that there was a bona fide
doubt as to defendant’s fitness. Hanson, 212 Ill. 2d at 216. We
rejected the contention that the mere granting of a motion for a fitness
hearing necessarily establishes a bona fide doubt. Hanson, 212 Ill. 2d
at 218.
We then turned to the defendant’s claim that the record supported
a finding of bona fide doubt of his fitness to stand trial. We applied
the Eddmonds factors to conclude that no such doubt existed:
“After reviewing the transcript of the pretrial proceedings, we
cannot say that, under the first factor, defendant’s conduct
supports a finding of bona fide doubt. Defendant’s demeanor
and behavior during these proceedings were interested,
rational, and appropriate. While a cold record may be an
imperfect means of evaluating defendant’s behavior and
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demeanor, we note that the trial court had the opportunity to
observe defendant’s conduct and demeanor firsthand during
the proceedings, yet expressed absolutely no concerns about
defendant’s ability to understand the nature of the proceedings
or to work with counsel.” Hanson, 212 Ill. 2d at 223-24.
As to the second Eddmonds factor, we stated:
“[T]he motion for psychological examination filed by
defense counsel asserted that ‘[c]ounsel feels that there exists
a bona fide doubt as to whether the Defendant is able to
understand the nature and purpose of the proceedings against
him and assisting [sic] in his defense.’ This court stated in
Eddmonds, however, ‘an assertion by counsel that a defendant
is unfit does not, of itself, raise a bona fide doubt of
competency.’ [Citation.] We do not give great weight to this
factor in this case because the motion failed to provide any
facts to substantiate counsel’s ‘feeling’ that doubt existed.”
Hanson, 212 Ill. 2d at 224.
And, as to the third Eddmonds factor, we stated:
“In Eddmonds, we recognized that the existence of a mental
disturbance or the need for psychiatric care does not
necessitate a finding of bona fide doubt since ‘[a] defendant
may be competent to participate at trial even though his mind
is otherwise unsound.’ [Citation.] Here, the record shows that
defendant had been diagnosed at various times with a lengthy
list of problems, including organic personality and brain
disorder or syndrome, alcohol dependence, dementia, seizure
disorder, amnestic disorder, and bipolar disorder.
Nonetheless, any connection these problems may have had to
defendant’s fitness at the time the motion was filed remains
unexplained.” Hanson, 212 Ill. 2d at 224-25.
The petitioner in the present case offers even less support for his
claim that he should have been given a fitness hearing than did the
defendant in Hanson. In Hanson, we did not give “great weight” to
defense counsel’s opinion that doubt existed about his client’s fitness.
Yet, the majority gives no weight at all to defense counsel’s assertion
that petitioner “spoke very coherently to me, seemed fine,” and that
he “had no problem communicating with him.”
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Based on my review of the petition and the record, I find
petitioner’s claim to be factually baseless because he offers no new
objectively verifiable evidence that, if true, would negate the clear
record of his fitness at the time of trial.
Further, if the quantum of evidence alleged in this petition is
sufficient to create a bona fide doubt of fitness despite the record in
this case, then all a postconviction petitioner must do to survive
summary dismissal is to make a nonspecific allegation that he was
confused at trial and did not understand what was happening. I do not
believe that it was this court’s intent in Hodges to preclude summary
dismissal of a postconviction petition even when the claim raised
therein is belied by the record.
Conclusion
Our case law is clear that when a postconviction petitioner makes
a claim of ineffective assistance of counsel for failure to request a
fitness hearing, he must allege something more than the mere fact that
he was taking psychotropic medication at the time of trial to survive
summary dismissal of his claim. The majority finds something more
in his bare assertion that he did not understand the proceedings and
in the suicidal “nature of the offense.”
Our case law is also clear that a defendant’s desire to commit
suicide is not necessarily an indication of unfitness to stand trial. See
Johnson, 206 Ill. 2d at 365. Neither is the existence of some form of
mental illness or intellectual deficit. See Johnson, 183 Ill. 2d at 194;
Mitchell, 189 Ill. 2d at 334-35; Easley, 192 Ill. 2d at 322; Harris, 206
Ill. 2d at 305.
In overlooking this body of precedent, the majority all but
abandons the Eddmonds factors, none of which are demonstrated in
the record or by facts alleged in the petition, as well as the
requirement that the postconviction petition raise a “real, substantial
and legitimate doubt” of fitness at the time of trial. Eddmonds, 143
Ill. 2d at 518.
As a result, I agree with the appellate court, which affirmed the
summary dismissal of the petition, saying:
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“We find defendant is unable to establish the trial court would
have found a bona fide doubt of his fitness and ordered a
fitness hearing had it been apprised of the evidence offered in
his postconviction petition. The record shows that defendant
participated in the proceedings and did not exhibit any
irrational or odd behavior in court. At sentencing, defendant
read a long, detailed statement in mitigation. In the absence of
other evidence raising a bona fide doubt of defendant’s
fitness, we hold defendant has not stated the gist of a
constitutional claim of ineffective assistance of counsel.”
JUSTICES THOMAS and KARMEIER join in this dissent.
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