People v. Patterson

2020 IL App (1st) 162845No. 1-16-2845
SIXTH DIVISION
March 27, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
) Circuit Court of Cook County.
Respondent-Appellee, )
)
v. ) 08 CR 12235
)
ANDRE PATTERSON, )
) Honorable Michele M. Pitman,
) Judge Presiding.
Petitioner-Appellant. )
JUSTICE CONNORS delivered the judgment of the court.
Presiding Justice Mikva and Justice Harris concurred in the judgment and opinion.
ORDER
¶1 Held: Defendant knowingly and intelligently waived the right to
postconviction counsel, and the trial court did not abuse its discretion by
denying defendant’s request for a fitness evaluation.
¶2 Defendant, Andre Patterson 1, appeals from the dismissal of a pro se petition filed
pursuant to Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1, et seq. (West 2014)).
1
Defendant states that defendant’s name is now Janiah Monroe, and that defendant identifies as female.
Both parties refer to petitioner as “Andre Patterson” in their briefs “for the sake of consistency with the record.” We
note that there is no documentation in the record indicating that defendant’s name was legally changed.
No. 1-16-2845
Defendant’s petition was dismissed as untimely and without merit. On appeal, defendant
contends that defendant did not knowingly and intelligently waive the right to postconviction
counsel, and that the trial court abused its discretion by refusing defendant’s request for a fitness
evaluation. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Following a December 2005 shooting in a parking lot in Calumet City, defendant, who
was 16 years old at the time, was arrested and charged with attempted murder. Defendant pled
guilty to attempted murder and received a 12-year sentence.
¶5 On February 20, 2014, defendant filed a pro se postconviction petition raising
constitutional challenges to the automatic transfer provision of the Juvenile Court Act (705 ILCS
405/5-130(1)(a) (West 2014)), and to the truth-in-sentencing statute (730 ILCS 5/3-6-3(a)(ii)(2)
(West 2014)).
¶6 A year later, in February 2015, defendant filed a second pro se postconviction petition,
alleging various constitutional deprivations related to defendant’s mental health. In April 2015,
the circuit court learned of the February 2014 petition, advanced it to second-stage proceedings,
and appointed counsel.
¶7 An assistant public defender appeared for defendant at a May 2015 status hearing. The
public defender described the pro se claims as allegations pursuant to Miller v. Alabama, 567
U.S. 460 (2012).
¶8 In July 2015, the public defender notified the court that she had researched the Miller
issue and spoken to defendant. She learned that defendant had filed a second pro se petition in
February 2015. The case was continued.
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¶9 On September 14, 2015, defendant filed two pro se documents. The first was a motion to
dismiss counsel and proceed pro se. In that motion, defendant stated, “only [I] can properly
amend [my] petition to adequately represent [my] contentions,” and asked for “a copy of the trial
transcripts and common law records.” Defendant also asked for “a stamped filed copy of this
motion.” The second was an amended postconviction petition, which claimed that defendant was
denied substantive due process because defendant was “mentally unfit” to plead guilty and
consult with defense counsel, defendant was denied effective assistance of counsel because
counsel failed to have “a second psych eval for sanity done where the first exam was an
insufficient simple mental status exam,” defense counsel was ineffective for failing to tell
defendant about a possible insanity defense at trial, defendant was not criminally responsible for
the crime, defense counsel failed to “adequately investigate the expert,” and that at the time of
the guilty plea defendant was “hearing voices and seeing demons.”
¶ 10 Defendant attached several mental health evaluation documents to the amended pro se
petition. The first exhibit was a document completed after an initial evaluation in January 2008,
which recommended a mood stabilizer for defendant. The document noted that defendant had
“anger problems” and was suicidal. On January 25, 2008, defendant was recommended for
individual therapy and group therapy, in addition to medication for “PTSD chronic” and to
“decrease anger and anxiety.” In February 2008, defendant’s mental health treatment plan
indicated that defendant needed additional medication to “stabilize mood” and “reduce voices.”
On February 16, 2008, defendant was admitted to the mental health department for “smearing
feces” in defendant’s cell and stating that demons told defendant to smear feces in the cell and to
self-harm. In a February diagnostic and treatment note, defendant was described as “alert,
oriented, cooperative, anxious mood, sporadic eye contact, [and] easily engaged in
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conversation.” Defendant was put on crisis watch after tying a sheet to the cell vent “to use as a
rope to hang himself.”
¶ 11 In an April 2009 evaluation, defendant is described as alert, oriented, “good eye contact,
appropriately dressed and groomed.” In May 2009, a crisis intervention report stated that
defendant had thoughts about “killing himself” and that defendant “says he will do it when he
gets a chance.” In an August 2009 mental health diagnostic and treatment note from IDOC,
defendant was described as having bipolar disorder. IDOC put defendant on crisis watch on
August 31, 2009. Defendant was again on crisis watch from February 24, 2010, to March 3,
2010, and from April 16, 2010, to April 20, 2010. On June 21, 2010, defendant was put in
restraints because of a self-inflicted wound to the right testicle. Defendant stated that, “he will
continue until castrated.” Defendant was put on crisis watch until June 23, 2010.
¶ 12 In December 2015, a hearing was held on defendant’s motions. The court informed
defendant that additional petitions could not be filed while defendant was represented by
counsel. The following colloquy then took place:
“THE COURT: You need to let me know what you wish me to do ***. I have
appointed a very skilled attorney from [the public defender’s] office who deals
only with post-conviction petitions. She will represent you in this matter. It is up
to you, however.
You are filing the motion asking that I dismiss her from representing you
and further and you wish to represent yourself pro se on this. Is that what you
wish to do, [defendant]?
[DEFENDANT]: Yes, sir.
THE COURT: Do you wish to represent yourself pro se?
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[DEFENDANT]: Yes, ma’am.
***
THE COURT: [Defendant], you filed a petition in 2014, 2015, but I have not
granted you leave to file any further petitions. And I know you’re not – I don’t
know if you are aware of the law, [], but [appointed counsel] is. But you can’t just
file amended petitions when you see fit. I have to give you leave to do that. You
already have a petition on file and the State is going to respond to it.
So first and foremost you are asking that I vacate the appointment of the
public defender’s office, and you wish to represent yourself pro se in this matter.
And you thought carefully about that? That’s what you wish to do?
[DEFENDANT]: Yes, your Honor.
THE COURT: [Counsel], your appointment is vacated. You do not need to
represent the defendant any further in these post-conviction proceedings.
And again, I will ask you again, [defendant]: You have the benefit of
counsel who knows how to handle these matters. You do not wish to have the
benefit of counsel?
[DEFENDANT]: No, your Honor.
¶ 13 The trial court granted defendant’s motion to proceed pro se and vacated its earlier
appointment of the public defender.
¶ 14 Defendant then indicated that defendant wished to go forward with the amended petition
that was filed with the motion to dismiss counsel. Defendant stated that counsel had said that the
2014 petition, raising constitutional challenges based on age, was meritless, but that counsel had
stated she would be filing a Rule 651(c) certificate indicating that there was no need to amend
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No. 1-16-2845
the petition. Defendant decided it would be better to go pro se than proceed on a petition that
would lose. The trial court allowed defendant to withdraw the prior petitions, and granted
defendant leave to file the amended petition.
¶ 15 In April 2016, the State filed a motion to dismiss the amended petition as both untimely
and without merit. The State argued in part that defendant pled guilty on July 14, 2009, and did
not subsequently file a motion to vacate the plea or a direct appeal. The State asserted that if a
defendant does not file a direct appeal, the statute of limitations in which to file a postconviction
motion is three years, and that defendant did not file any postconviction filings until 2015.
Accordingly, the State asked the court to dismiss defendant’s postconviction petition. Defendant
filed a responsive pleading and a hearing was held on the State’s motion to dismiss.
¶ 16 At the hearing, the State reiterated its arguments that defendant’s postconviction petition
was untimely and that it was without merit, as there was no indication that defendant was not fit
to stand trial at the time defendant pled guilty. Defendant argued that the postconviction petition
was timely because an issue relating to fitness can be raised at any time. Defendant claimed that
poor insight, judgment, and impulse control led to defendant pleading guilty. Defendant relied on
the exhibits attached to the petition to show that defendant was not fit. Defendant also claimed
that the documents attached to the petition were only some of the documents that showcased
defendant’s mental state, and that if defendant had more time, more could be produced as
evidence of defendant’s mental state at the time of the guilty plea. The State responded that the
statute defendant cited to regarding fitness to stand trial, plead, or be sentenced was not
controlling, and that the only statute that could circumvent the statute of limitations for filing was
an actual innocence claim.
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¶ 17 The court then stated that it had heard the arguments and read the pleadings. It noted that
defendant pled guilty on July 14, 2009, to the offense of attempt first degree murder, and had
received a sentence of 12 years. The court continued:
“Subsequent to that, he did not take any appeal with regards to that
sentence and conviction. He did not file any post –
[DEFENDANT]: Can I add one thing, your Honor, please?
THE COURT: I heard the arguments, [defendant]. I’m making my ruling. What is
it that you need to add?
[DEFENDANT]: I would also ask for a fitness evaluation to ensure that I’m fit to
represent myself.
THE COURT: That’s denied. You’re not entitled to that, [defendant]. You’re
choosing to represent yourself. I’m not sending you for a fitness evaluation.
You have filed pleadings. You have filed things, [defendant]. We’re going
to proceed with what you’ve filed.”
¶ 18 The trial court then found defendant’s petition untimely and should have been filed by
July 14, 2012. The trial court then stated it would look to the merits of the petition even though it
was untimely. It noted that there was nothing improper regarding the admonishments by the
court pursuant to defendant’s guilty plea. The court also found that defendant failed to show that
counsel’s performance fell below an objective standard of reasonableness, and that but for
counsel’s alleged errors, the result would have been different. The court stated that there was no
basis to find that defendant would have been able to present an insanity defense. The court found
that defendant was not entitled to an evidentiary hearing and granted the State’s motion to
dismiss. Defendant now appeals.
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¶ 19 ANALYSIS
¶ 20 On appeal, defendant first contends that the circuit court erred by permitting defendant to
proceed pro se without ensuring that defendant’s waiver to the statutory right to counsel was
both knowing and intelligent. The State responds that the trial court properly granted defendant’s
motion to dismiss counsel and proceed pro se.
¶ 21 The Act provides a method for an individual, subject to a criminal sentence, to challenge
a conviction by alleging it was the result of a substantial denial of federal or state constitutional
rights or both. People v. Cotto, 2016 IL 119006, ¶ 26. The Act sets out a three-stage process for
adjudicating petitions. Id. At the first stage, the circuit court determines whether the petition is
“frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is
not dismissed at first-stage proceedings, it advances to the second stage. People v. Hommerson,
2014 IL 115638, ¶ 7.
¶ 22 At the second stage, the court may appoint counsel to represent an indigent defendant,
and counsel may amend the petition if necessary. 725 ILCS 5/122-4 (West 2014). The State may
then file a motion to dismiss the petition. Id. If the State does not file a motion to dismiss, or if
the court denies the State’s motion, the petition proceeds to the third stage and the court will
conduct an evidentiary hearing on the merits of the petition. Hommerson, 2014 IL 115638, ¶ 8.
¶ 23 The Act affords indigent defendants the right to counsel beyond the first stage of
proceedings. 725 ILCS 5/122-4 (West 2014). “[T]he intent of the Act is that, in the second and
third stage of postconviction proceedings, defendants are afforded the advantages of
representation. People v. Lesley, 2018 IL 122100, ¶ 33.
¶ 24 We note that there is no constitutional right to assistance of counsel during
postconviction proceedings, and that “[t]he right to assistance of counsel in postconviction
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proceedings is a matter of legislative grace, and a defendant is guaranteed only the level of
assistance provided by the Post-Conviction Hearing Act.” People v. Hardin, 217 Ill. 2d 289, 299
(2005). Our supreme court has determined that the Act provides a postconviction defendant with
“reasonable” assistance. Id.¶ 25 However, a defendant has a right to proceed pro se in postconviction proceedings. 725
ILCS 5/122-4 (West 2014). A defendant must “knowingly and intelligently relinquish his right to
counsel,” and his waiver “must be clear and unequivocal, not ambiguous.” People v. Baez, 241
Ill. 2d 44, 115-16 (2011). “The requirement of a knowing and intelligent choice calls for nothing
less than a full awareness of both the nature of the right being abandoned and the consequences
of the decision to abandon it.” Lesley, 2018 IL 122100, ¶ 51. The determination of whether there
has been an intelligent waiver of the right to counsel depends upon the particular facts and
circumstances of each case, including the background, experience, and conduct of the accused.
Id. In determining whether the waiver was knowingly and understandably made, the entire
record must be considered. Id. Although a court may consider a defendant’s decision to represent
himself unwise, if his decision is freely, knowingly, and intelligently made, it must be accepted.
Baez, 241 Ill. 2d at 117. We review a trial court’s determination for an abuse of discretion. Id. at
116.
¶ 26 In this case, defendant specifically filed a motion seeking to dismiss counsel and proceed
pro se. In that motion, defendant also requested access to a certain law library that would allow
defendant access to more law books. During a hearing on the motion, the trial court stated that it
appointed “a very skilled attorney from [the public defender’s] office who deals only with post-
conviction petitions.” The trial court stated that the attorney would represent defendant, but that
it was up to defendant. The trial court then asked defendant if defendant wished to self-represent
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and proceed pro se, to which defendant responded, “Yes.” The trial court then asked defendant a
second time if defendant wished to proceed pro se, to which defendant responded, “Yes.” The
trial court also stated that it did know whether defendant was aware of the law, “but [appointed
counsel] is.” The trial court continued, “So first and foremost you are asking that I vacate the
appointment of the public defender’s office, and you wish to represent yourself pro se in this
matter. And you have thought carefully about that? That’s what you wish to do?” Defendant
again responded, “Yes, your Honor.” The trial court vacated the appointment of counsel, stating,
“And again, I will ask you again, ***. You do not wish to have the benefit of counsel?”
Defendant replied, “No, your Honor.”
¶ 27 This was certainly a clear, unequivocal waiver of counsel by defendant. The trial court
asked defendant several times whether defendant wished to proceed pro se, and warned that
defendant would be foregoing the benefit of “skilled” counsel who was specifically qualified to
deal with postconviction petitions. Additionally, the record indicates that defendant was
represented by counsel during defendant’s guilty plea and had been involved in other cases while
in prison. “A defendant who has been represented by an attorney for a period of time is more
likely to understand the workings of the system than a defendant who first appears in court.”
People v. Young, 341 Ill. App. 3d 379, 387 (2003).
¶ 28 Defendant nevertheless contends that his waiver was not knowing and intelligent because
defendant had not been apprised by the court of the specific requirements of Illinois Supreme
Court 651(c) (eff. Jul. 1, 2017), which states that in a postconviction proceeding, the appellant or
appellant’s counsel shall, upon written request, be provided the postconviction report of
proceedings and any relevant report of proceedings not previously provided to the appellant or
appellant’s counsel. It also states that the record filed in the court shall contain a showing that the
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attorney had consulted with the petitioner “to ascertain his or her contentions of deprivation of
constitutional rights, has examined the record of the proceedings at the trial, and has made any
amendments to the petitions filed pro se that are necessary for an adequate presentation of
petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. Jul. 1, 2017). Defendant contends that without
knowing the requirements of postconviction counsel, defendant could not have knowingly and
intelligently waived the right to counsel. However, defendant has not cited to a single case, nor
can we find one, that supports the contention that a trial court must apprise defendant of
postconviction counsel’s duties.
¶ 29 In fact, our supreme court addressed a similar issue in Lesley, where a defendant argued
that he should have been apprised by the court of “the advantages of representation of counsel
and the dangers and pitfalls of representing himself,” in order to make a knowing and intelligent
waiver of counsel. Lesley, 2018 IL 122100, ¶ 56. There, the trial court noted that the defendant
had “not cited any law in support of the contention that such admonishments are required before
a defendant waives counsel *** in postconviction proceedings.” Id. Accordingly, we find that the
record supports a finding that defendant knowingly and intelligently waived the right to counsel,
and the trial court did not abuse its discretion in allowing defendant to proceed pro se.
¶ 30 Defendant’s next contention is that the trial court erred when it denied defendant’s
request for a fitness evaluation. Specifically, defendant contends that when defendant asked for a
fitness evaluation to determine if defendant was fit, after arguments had been made and while the
trial court was making its ruling, the trial court should have ordered an evaluation.
¶ 31 A defendant is presumed to be fit to stand trial, to plead, and to be sentenced. 725 ILCS
5/104-10 (West 2014). A defendant is also presumed to be fit at the time of post-conviction
proceedings. People v. Johnson, 191 Ill. 2d 257, 269 (2000). However, when a bona fide doubt
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of a defendant’s fitness to proceed with post-conviction proceedings is raised, the court may
order a psychological evaluation of the defendant and consider the matter at an evidentiary
hearing. Id. Because the trial court is in the best position to observe a defendant’s conduct,
whether a bona fide doubt of fitness to proceed exists is a matter that lies within the discretion of
that court. Id. Moreover, because a presumption of fitness attaches at the outset of postconviction
proceedings, “the court may require a substantial threshold showing of incompetence to establish
a bona fide doubt as to a defendant’s ability to consult with counsel.” Id.¶ 32 “The level of competency required during post-conviction proceedings is less than that
required at trial.” Id. A defendant is considered unfit to stand trial when, “because of his mental
or physical condition, he is unable to understand the nature and purpose of the proceedings
against him or to assist in his defense.” 725 ILCS 5/104-10 (West 2014). “In contrast, a
defendant is considered unfit to proceed with the post-conviction process when, because of a
mental condition, he cannot communicate his allegations of constitutional deprivations to
counsel, thus frustrating his entitlement under the Act, to a reasonable level of assistance.”
Johnson, 191 Ill. 2d at 269. Our supreme court explained:
“The lower level of competency required at post-conviction proceedings,
as opposed to trial, reflects a fundamental difference between the two
proceedings. A post-conviction proceeding is not part of the criminal process.
Rather, it is a collateral attack on the judgment of conviction and is civil in nature.
Further, in proceedings under the Act, counsel is appointed not to shield a
defendant from the ‘prosecutorial forces’ of the State, but to shape a defendant’s
claims into the appropriate legal form for presentation to the court. Accordingly,
if a defendant is competent to communicate allegations of constitutional
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violations to counsel, that defendant is competent to participate in post-conviction
proceedings.” Id. at 269-70.
¶ 33 In the case at bar, defendant raised the issue of fitness for the first time at the hearing on
the State’s motion to dismiss. It was not raised in defendant’s amended postconviction petition.
Prior to defendant being allowed to proceed pro se, defendant’s counsel never raised an issue of
fitness. While defendant attached several documents to the amended postconviction petition,
dating from 2008 to 2010, defendant did not point to anything in those documents that raised a
bona fide doubt as to defendant’s ability to participate in postconviction proceedings, which were
initiated in 2014. Looking at the entire record, defendant was very capable of communicating
purported violations of constitutional rights to counsel and the court. “Because the trial court is
in the best position to observe a defendant’s conduct, whether a bona fide doubt of fitness to
proceed exists is a matter that lies within the discretion of that court.” Id. In this case, the trial
court had ample opportunity to observe and interact with defendant, and we do not find that the
trial court abused its discretion in finding that defendant failed to raise a bona fide doubt of
fitness.
¶ 34 Defendant’s final contention is that “by erroneously permitting [defendant] to proceed
pro se without ensuring that [defendant] knowingly and intelligently waived counsel ***, and by
arbitrarily and unreasonably denying [defendant’s] request for an evaluation of [defendant’s]
fitness to [self-represent] ***, the circuit court deprived [defendant] of a fair and complete
opportunity to establish that [defendant] was not culpably negligent.” Because we find that
defendant knowingly and intelligently waived the right to counsel, and that the trial court did not
unreasonably deny defendant’s request for a fitness evaluation, we need not address this issue.
¶ 35 CONCLUSION
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¶ 36 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 37 Affirmed.
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