People v. Brown

(Nos. 106243, cons. ILLINOIS, THE OF

THE PEOPLE OF STATE Appel- BROWN, lee and RAYMOND Cross-Appellant, and Cross-Appellee. Appellant 4, February

Opinion 2010. filed Pelletier, Michael J. State Appellate Defender, Patri- Unsinn, cia Defender, Deputy and Yasaman Hannah Na- vai, Defender, Assistant Appellate of the Office of the and Defender, Chicago, appellant of for Appellate

State cross-appellee. General, and Springfield, of Attorney Madigan,

Lisa Alvarez, Attorneys, Anita State’s Richard A. Devine and (James Brian Alan J. Fitzgerald, Spellberg, E. Chicago of At- Needham, Assistant State’s PMary K. Hodes and counsel), People. for the torneys, judgment KILBRIDE delivered JUSTICE court, opinion. with Freeman and and Justices Fitzgerald

Chief Justice opinion. and judgment in the Burke concurred dissented, joined by opinion, with Justice Garman Thomas and Karmeier. Justices

OPINION se pro post- in a alleged Brown Raymond Petitioner ineffective counsel was that his trial petition conviction The circuit court hearing. a fitness failing request for as petition dismissed County summarily of Cook court merit. The circuit patently without frivolous under section costs of $155 fees and court also assessed (735 (Code) ILCS of Civil Procedure 22—105 of the Code (West 2006)), postconvic- a frivolous filing for 5/22 —105 dismissal affirmed the appellate petition. tion imposition court’s the circuit but vacated of the (unpublished 1—06—3275 court costs. No. of fees and 23). Rule Court Supreme order under filed both appeal leave to for petitions allowed We (210 315(a)), and 2d R. Ill. the State erred circuit court hold the We appeals. consolidated as postconviction dismissing summarily we Accordingly, merit. without and patently frivolous af- petition, postconviction the dismissal reverse of fees the assessment vacating judgment firm the costs, and remand this matter to the circuit court for second stage postconviction proceedings.

I. BACKGROUND Petitioner was charged with two counts of attempted (720 degree first murder of a peace officer ILCS 5/9— 1(a)(1) (West 2002)), and aggravated two counts of as- (720 2(a)(6) (West 2002)). sault ILCS At the bench 5/12 — trial, the testimony showed petitioner lived in an apart- ment 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 her sister’s apartment. After hearing petitioner continue to yell and throw items in their apartment, Flores and her sister called the police.

When police several officers arrived at the apartment building, petitioner was standing outside the front door of his apartment holding butcher knife. One of the of- ficers began to approach petitioner. The officer mistak- enly believed the object hand was a screwdriver and ordered him to “drop screwdriver.” Petitioner responded by stating, “come on and I’ll kill you.” After recognizing object knife, as a the officer repeatedly petitioner told drop the knife. Petitioner refused and repeated his threat to kill the officer.

Petitioner then advanced toward the officer. The of- ficer backed away and ordering continued drop knife. Petitioner kept walking toward the officer and began swinging knife as the officer backed away. The officer drew his handgun pointed it toward petitioner, continuing to order him to drop knife. Petitioner lunged officer, at the for the reaching handgun with his free hand. When ap- continued to proach, another officer shot him. Petitioner did stop and the officer shot him Petitioner again. was shot in the Based on the ground. and lower back and fell to the

leg of at- evidence, guilty found petitioner the trial court a officer. degree peace first murder of tempted sentenc- read a to the court at Petitioner statement previ- he had and depressed He asserted that been ing. harm the kill He did not intend to ously tried to himself. kill him. He had officers, wanted them to only but police killed by man was shot and report seen a news where a machete. them with a threatening officers after police him if he waved the officers would kill thought Petitioner a knife at them. taking “psych further stated he was

Petitioner received a was told he should have medication” and trial, his trial at- to his but prior evaluation psychiatric attention. the matter to the court’s torney bring failed to medications after taking he his began Petitioner stated or felt wanted longer depressed and he no incarceration die, though, He felt like he wanted to kill himself. still hearing. recently previous as his as petitioner’s counsel about questioned trial court Defense medication. taking psychotropic on statements was tak- he not aware that counsel stated was further inquired The court medication. ing psychotropic a bona counsel to have there was reason for whether to stand trial. Counsel fitness petitioner’s doubt fide me,” very coherently “spoke responded com- “had no fine,” problem and counsel he “seemed noted it had with him.” The trial court municating appearance conduct or anything observed fitness. Petitioner’s doubt of his a bona indicating alone, medication, standing psychotropic treatment with trial. to stand of unfitness presumption raise a did not the sentenc- with proceeded the trial court Accordingly, imprison- term of 25-year a hearing imposed ing on direct affirmed was judgment The trial court’s ment. (2005) (unpub- Brown, 1—03—2620 No. appeal. People 23). Rule Supreme order under Court lished postconviction petition alleg- then Petitioner filed among ing, things, other that his trial counsel was inef- failing request hearing. for Petitioner fective fitness attorney taking psycho- alleged was he told his that he Seroquel, tropic including medication, Zoloft, Sinequan, alleged both before and after his arrest. He he taking psychotropic bipolar medication to treat depression. disorder and He also informed counsel that attempted he suicide before he was arrested and on the day alleged attempting of his arrest. He he was “suicide day police” During trial, on the of the offense. “very taking heavy psych medication” that affected ability comprehend alleged his to the events. Petitioner exactly happening [his] he “didn’t know what was everything trial and didn’t understand at his trial.” alleged Petitioner further his trial counsel lied when he petitioner informed the trial court that he was unaware taking psychotropic was medication. alleged attorney only

Petitioner also his visited him hearing. for fewa minutes before each Petitioner believed attorney preoccupied his too was with his father’s death represent petitioner adequately. alleged to Petitioner he stopped taking post- some of his medications to draft his petition. conviction appended petition

Petitioner to his medical records documenting bipolar his disorder his and medications to Additionally, provided it. treat he affidavits from his attesting petitioner’s mother and aunt that mother petitioner taking informed trial counsel was medication bipolar to treat his disorder. Petitioner’s mother also attempted averred she told counsel had suicide on several occasions. Petitioner’s mother and aunt averred trial counsel lied the court when he stated he knowledge petitioner’s had no of mental illness or medications. summarily petition.

The trial court dismissed the petitioner’s The court ruled claim of ineffective as- of for request hearing sistance counsel failure to a fitness the judicata was barred res because court by appellate on appeal. considered that claim direct The trial court patently further found the was frivolous and without merit. Petitioner assessed in fees and $155 filing court section 22—105 of the for costs under Code postconviction petition. frivolous gist On stated the of appeal, petitioner contended claim his trial counsel was ineffec- a constitutional for fitness Petitioner failing request hearing. tive trial fees imposition also court’s of challenged court costs.

The it consider court observed did not appellate ineffective assistance of counsel claim on direct claim was on matters appeal because that based court, therefore, The held outside the record. appellate The judicata. appel- barred res challenge court, nevertheless, not state late held did Ac- of of assistance of counsel. gist a claim ineffective court, was “unable to cording appellate have a bona establish trial court would found had hearing fitness and ordered a fitness it doubt his postconvic- of the evidence offered apprised been held assess- petition.” appellate tion court further 22—105 of court costs under section ment fees and Accordingly, appellate was not authorized. Code post- dismissal of the summary affirmed the trial court’s the of conviction but vacated assessment fees petition order (unpublished and court costs. No. 1—06—3275 23). Supreme Rule under Court for leave to petitions Petitioner and the State filed (210 315(a)). petitions 2d R. We allowed both appeal Ill. them for review. and consolidated

II. ANALYSIS postconviction In his contends his petitioner appeal, his trial the of a claim that gist petition established for raise an issue of failing counsel was ineffective the argues fitness to stand trial. Petitioner appellate applied by requir- court an incorrect standard ing prove him to his ineffective assistance of counsel claim the stage proceedings. at the first allegations

The that in responds peti- State tion are sufficient to raise bona a doubt petitioner’s fitness to stand trial. The State also claims record rebuts that positively suggestion State, therefore, was unfit. The maintains the petition was dismissed properly patently as frivolous and without merit. The State further asserts forfeited his argument the appellate required prove court him to his ineffective assistance of claim counsel because he failed to include that in his argument petition for leave to appeal.

We first address the State’s contention that petitioner argument forfeited his the appellate applied an incorrect burden of in proof affirming summary 315(c) dismissal of the petition. Supreme Court Rule requires for petitions appeal leave contain state- ment of points relied upon seeking review 315(c)(3). appellate judgment. court’s 2d R. Ill. rule also requires argument stating short why review is warranted and why appellate court’s decision should 315(c)(5). be or reversed modified. 2d R. An issue may be deemed if it forfeited is not raised in the petition for appeal. G., 13, leave to In re Rolandis 232 Ill. 2d (2008).

Here, for leave to appeal asserted review for reasons, warranted three including ap- that the pellate court’s decision “clearly demonstrates that it ap- plied an incorrect in assessing standard the appropriate- ness of summary dismissal.” Petitioner further asserted “the appellate applied court erroneously a stricter standard when evaluating [his] whether

184 Hearing of for the Post-Conviction purposes frivolous section, In the argument petitioner Act.” the maintained used a than the appellate court much stricter standard applicable postconviction proceedings. one to first-stage petition therefore, The for leave appeal, specifically erred appellate issue of the court mentions the whether first- reviewing an incorrect standard the by applying has petitioner conclude stage Accordingly, dismissal. we not argument. forfeited his summary postconviction petition

The dismissal of a Coleman, 366, People novo. v. is reviewed de 183 Ill. 2d (1998). postconviction At the stage 388-89 first the trial examines the proceedings, v. parties. People independently, without from input (1996). 410, A need Gaultney, 174 Ill. petitioner 2d 418 limited of detail and is present only a amount legal or legal argument to include citation required Edwards, v. 239, 244-45 People 197 Ill. 2d authority. (2001). excused, however, from se is not pro A alleged on the any factual detail whatsoever providing Delton, v. 2d Ill. deprivation. People 227 constitutional (2008). 247, The taken as allegations petition, 254 construed, only present gist need liberally true and Harris, 115, v. Ill. 2d People claim. 224 of a constitutional (2007). threshold” presents This standard “low Jones, 140, (2004)), (People v. requiring 211 Ill. 2d an to assert plead sufficient facts only (People Hodges, arguably constitutional claim (2009)). 1, 9 2d may petition, the trial court considering proceeding, any file of the criminal

examine the court ap- action proceeding, transcripts (West 2006). 2.1(c) ILCS court. 725 pellate 5/122 — is if it dismiss summarily trial court must merit. 725 ILCS without patently frivolous or 5/122— se 2006). pro 2.1(a)(2) (West that a recently explained We postconviction petition patently is frivolous or without only arguable merit if it “has no basis either in law or in Hodges, petition lacking fact.” arguable 234 Ill. 2d A at 16. an indisput- in

basis law or fact is one “based on an ably legal theory allega- meritless or a fanciful factual Hodges, completely tion.” 234 Ill. 2d at 16. A claim example indisput- contradicted the record is an of an ably legal theory. Hodges, meritless 234 Ill. 2d at 16. allegations Fanciful factual include those that are Hodges, fantastic or delusional. 234 Ill. 2d at 17. Petitioner’s claim of ineffective assistance of counsel is reviewed under the test established in Strickland v. Washington, 668, 466 U.S. 674, 80 L. Ed. 2d 104 S. Ct. (1984). petitioner perfor- The must show counsel’s prejudice mance was deficient and that resulted from the performance. People deficient Houston, 135, 226 Ill. 2d (2007), citing Strickland, 668, 466 U.S. 80 L. Ed. 2d postconviction petition 674, alleging 104 S. Ct. 2052. A may ineffective assistance of counsel not be dismissed at (1) stage the first if: counsel’s performance arguably objective fell below an standard of (2) petitioner arguably reasonableness; and prejudiced Hodges, as a result. 234 Ill. 2d at 17. allegations petition-

We first consider whether the in postconviction petition arguable er’s set forth an basis in alleged fact for his constitutional claim. Petitioner his right constitutional to effectiveassistance of counsel was attorney request violated because failed to a fitness hearing. support petitioner alleged In claim, of his taking psychotropic informed counsel that he was medication before and after his arrest. The medication bipolar depression. was used to treat his disorder petitioner previously Counsel was also informed that at- tempted alleged suicide. Petitioner his offense in this attempted by police.” case was an “suicide Petitioner alleged taking “very heavy” psychotropic further he was his trial and did not understand during medication proceedings. trial records and affidavits

Petitioner attached medical records his factual The medical supporting allegations. pre- disorder and his bipolar documented petitioner’s affidavits, petitioner’s medications. In their scribed informed aunt attested trial counsel was mother and bipolar medication for his disorder taking on several oc- attempted had suicide and that affidavits, therefore, The medical records and casions. petition. allegations corroborate allega- petitioner’s postconviction conclude that We as fantastic or delusional. tions cannot be characterized petitioner’s offense fact, testimony describing the trial on his mental illness allegations to his credibility lends forth sets attempts. of suicide history arguably that is constitu- to assert a claim sufficient facts be petition conclude the cannot we Accordingly, tional. for lack of an without merit patently deemed frivolous or factual basis. arguable is determine whether

Next, we must noted, As theory. legal an meritless indisputably based on failing for was ineffective attorney claims fitness hearing. request an unfit defen- prosecution Due bars process (2004). A 212, 216 Hanson, 212 Ill. 2d People dant. v. mental or if, due to a unfit to stand trial defendant is condition, to understand he or she is unable physical in the or to assist proceedings of the purpose nature and (West 2006). The trial defense. 725 ILCS 5/104 —10 doubt is raised if a bona hearing order a fitness must fide (West 11(a) fitness. 725 ILCS of the defendant’s 5/104 — 2006). considered assess- may of factors be A number raised, includ- fitness is doubt of a bona ing whether fide trial, behavior, demeanor defendant’s irrational ing a competence, the defendant’s on opinion medical any prior any representations by defense counsel on the competence. defendant’s 143 Ill. 2d Eddmonds, People v. (1991). sign, 501, 518 fixed however, No or immutable invariably inquiry indicates the need for further on a defendant’s Rather, fitness. 143 Ill. 2d at 518. Eddmonds, question implicating is often a difficult one a wide range of manifestations and subtle nuances. Eddmonds, 143 Ill. 2d at 518. allegations and the attached af-

fidavits establish that trial counsel knew taking psychotropic bipolar medication to treat disorder attempted prior and had suicide on several occasions. attempted by The offense in this case was an “suicide police.” alleged Petitioner further he did not understand psychotropic the trial due to the medication taking during he was his trial. argues petitioner’s allegations

The State do not raise a bona doubt of his fitness to stand trial. The State fide psychotropic asserts illness, mental use of history attempts, medication, and of suicide each stand- ing alone, do not create a bona doubt of his fitness. fide Citing (2000), 189 Ill. 2d 312 Mitchell, People the State psychotropic observes the use of medication itself does not raise a bona doubt of a defendant’s fitness. fide psycho- this court held administration of Mitchell, tropic equivalent medication is not to a bona doubt of a defendant’s fitness. 189 Ill. 2d at 331. In Mitchell, petitioner alleged case, however, this much more than ingestion psychotropic alleged medication. He ad- history attempts, ditional facts on his of suicide by police” inability “suicide offense, nature of his and his proceedings. to understand the trial Those facts cannot previouslyrejected each be viewed in isolation. This court argument, asserting attempt a similar the State’s to chal- lenge suggestions a defendant’s individual of unfitness “as if each vacuum, occurred in a cannot be counte-

188 Sandham, 379, 387-88 174 Ill. 2d People nanced.” (1996). individual events Instead, impact the the Sandham, 174 considered as a whole. testimony must be to view attempt the State’s Accordingly, Ill. 2d at 388. individually rejected. must be of unfitness allegation each is insufficient argues petition also The State trial informed petitioner not allege it does because ability his medication affected counsel contends counsel The State the proceedings. understand not know that he did not be deficient when could he was Further, plead failed to petitioner information. because representation deficient by alleged prejudiced if found unfit have been not assert that he would he did the issue. counsel had raised argument, State raised a similar Hodges, assert se expressly did not pro a contending theory of second a allegations supported factual that his 21. The State Hodges, 234 Ill. 2d at murder. degree on self- only chose to focus the petitioner contended Hodges, that choice. be bound defense and he should reading of State’s strict rejected the 234 Ill. 2d at 21. We with as inconsistent petition postconviction pro se peti- reviewing for standards liberal construction Hodges, 234 proceedings. stage at the first tions of whether held the issue Ill. 2d at 21. We murder was degree on second allegations included be answered that should question of borderline type construction. under a liberal favor the petitioner’s 21. Ill. 2d at Hodges, summary to survive held that consistently

haveWe only present need dismissal, a postconviction forth to set required and is not of detail limited amount Edwards, Ill. 2d entirety. in its claim a constitutional allege se required is not pro Thus, 244. claim to of a constitutional all elements facts supporting 244- Edwards, Ill. 2d at summary dismissal. survive petitioner specifi- 45. The State’s contentions that did not cally plead representation certain facts on deficient prejudice applicable are inconsistent with the standards first-stage postconviction proceedings. Petitioner was required plead specific by not facts identified long gist State as as his sets forth the of a constitutional claim.

Finally, the State contends the record contradicts suggestion petitioner that was unfit to stand trial. The State notes defense counsel informed the trial court at sentencing hearing petitioner fine” “seemed problem communicating and counsel “had no with him.” petitioner’s appear- The trial court asserted conduct and ance did not indicate a bona doubt of his fitness. The petitioner’s sentencing State contends statement at proceedings. demonstrates he understood the trial appropriately State also observes answered questioned waiving jury right when on trial and his testify. legal theory indisputably

A is meritless if it is completely by contradicted the record. Hodges, 234 Ill. well-pleaded 2d at 16. All facts must be taken as true un- “positively by less rebutted” the trial record. People v. (1998). Coleman, 366, 2d Contrary argument, petitioner’s legal to the State’s theory completely by is not contradicted the record in sentencing this case. Defense counsel’s statements at petitioner’s question by about condition are called into petitioner’s allegations supporting affidavits assert- ing counsel lied to the court when he stated he did not taking psychotropic know medication. by Defense counsel’s statements are also undermined petitioner’s allegations spent only that counsel a few hearing minutes with him before each and was too by adequate distracted his father’s death to devote atten- petitioner’s tion to Further, defense. counsel’s statements petitioner’s allega- rebut sentencing positively at do illness, attempts, his mental his suicide or tions on him from under- medication psychotropic prevented Thus, legal the trial standing proceedings. contradicted defense counsel’s theory completely is not sentencing. statements sentencing statement at that

The trial court’s a bona did not show appearance conduct petitioner’s consideration, but it doubt of his fitness is a relevant fide to stand trial. of fitness petitioner’s is not determinative any petition- not rebut of positively The observation does illness, psychotropic his mental allegations er’s on failure to understand medications, attempts, suicide or observation, The trial court’s trial proceedings. therefore, legal theory petitioner’s does not render meritless. indisputably is sentencing statement petitioner’s

Additionally, more than it was made of limited because significance statement, In his sentencing the trial. one month after die as felt like he wanted to asserted petitioner Thus, any indication hearing. as the recently prior the statement at sentenc- making lucid in does at that time proceedings the trial or understood ing of trial. condition at the time necessarily establish his not any petition- rebut of positively The statement does a bona doubt to indicate allegations tending er’s fide does not contra- the statement particular, his fitness. In medica- his allegation psychotropic petitioner’s dict understanding proceed- the trial him from prevented tion ings. and his to a trial right jury of his

Petitioner’s waivers with exchanges brief testify essentially were right he understood asserted where trial court do not exchanges Those brief trial court’s admonitions. post- in his allegations petitioner’s rebut positively conclusively do not Additionally, they petition. conviction demonstrate an ability understand the or assist in the defense. sum, we conclude legal theory is not

completely most, contradicted the record. At record creates a factual on dispute whether there was bona doubt of petitioner’s fitness. Petitioner’s claim fide of ineffective assistance of counsel for failure to request fitness is hearing arguably supported by allegations in his petition and supporting affidavits.

and supporting affidavits alleged counsel knew petitioner taking medication psychotropic to treat bipolar disorder and that he had attempted suicide on several prior occasions. Petitioner further alleged psycho- tropic medication caused an inability to understand the trial proceedings. Those allegations and the nature of this offense at least arguably raise a bona doubt of petitioner’s ability to understand the nature and purpose of the proceedings and assist in his We, defense. therefore, conclude counsel’s failure to request a fitness hearing arguably fell below an objective standard of reasonable- ness 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 postconviction is subject to sum “ mary dismissal at the first if it stage ‘has no arguable ” (236 basis either in (Gar law or in fact’ Ill. 2d at 196 man, J., dissenting, joined by Thomas Karmeier, JJ.), and quoting Hodges, 234 16), Ill. 2d at but the dissent does not apply that standard to this Instead, case. citing People v. 192 Easley, 307, (2000), Ill. 2d 319 the dissent claims a pro se must allege “facts that existed at the time of his that, trial if known to the trial court at that time, would have caused the trial court to find a bona doubt of his ability to understand the nature and purpose of the proceedings and to assist in his defense.”

192 added.) (Garman, J., dis- 236 Ill. 2d at 201-02 (Emphasis JJ.). Karmeier, Signifi- senting, by Thomas joined in Thus, the petitioner cantly, Easley case. capital is burden of carry second-stage to the Easley required showing of a constitutional establishing a substantial Hodges, 316; Easley, 192 Ill. 2d at see also deprivation. (second-stage postconviction proceed- 11 n.3 234 Ill. 2d at and ac- into whether inquiry involve ings showing “make a substantial documentation companying violation”). dissent, therefore, of a constitutional than an basis allege arguable to more requires petitioner in and fact. law of an incorrect standard application

The dissent’s reli- from its dismissal stem first-stage appears this The dissent acknowl- cases. capital on numerous ance important in one distinguished “can be edges those cases cases where capital are all they because respect” in preparing of counsel likely had assistance (Garman, J., dissenting, 236 Ill. 2d petition. Karmeier, JJ.), 725 ILCS citing by Thomas joined 2006). 2.1(a) (West distin- being In addition to 5/122 — dissent, acknowledged by on the basis guishable are, inapposite more importantly, cases cited capital entirely different of an application involve they because Postconviction for dismissal. standard dismissal summary to the subject cases are capital ILCS cases. 725 non-capital applicable procedure 2006). 2.1(a) (West Rather, appointment after 5/122 — automatically addressed, cases are capital is counsel 2.1(a), 725 ILCS proceedings. for further docketed 5/122 — 227, Williams, (West 2d (b) People 2006); (2004). petition, to dismiss files a motion If the State al- petition’s must consider whether trial court a constitu- showing of a substantial establish legations Williams, Thus, capital Ill. 2d at 233. tional violation. first- minimal of the application do not involve cases stage requiring only arguable standard an basis in law and fact. analysis

The dissent’s is also inconsistent with the reviewing first-stage standards for dismissals in another important way. summary stage, At the dismissal petitioner’s allegations must be taken as true and liber- ally People Brooks, 146, construed. See v. 233 Ill. 2d (2009). attempts dissent, nevertheless, 153-54 The to petitioner’s allegations by asserting narrow on his fitness they petition are directed at other claims in his or are conclusory they specific because “lack factual content.” (Garman, dissenting, joined by 236 Ill. J., 2d at 205-06 JJ.). require Karmeier, Thomas and The dissent would support allegations specific to with examples inability comprehend proceedings. of his to (Garman, dissenting, joined by 236 Ill. 2d J., at 205 JJ.). Karmeier, Thomas and dissent, therefore, fails accept liberally allegations as true and construe pro required stage post- se as at the first proceedings. conviction compares

We further note that the dissent this case People Swamynathan, App. (2008), v. 3d 434 recently appellate and this court affirmed the court’s judgment appeal in that case. In the court, to this sufficiency however, no issue was raised on the of the petition’s allegations summary to survive dismissal. Swamynathan only Rather, our decision in considered legal 90-day summary issue of when the dismissal period begins pleading to run in cases where a is rechar- postconviction petition. People acterized as a See (2010). Swamynathan, 103, Ill. 2d This court did appellate review court’s determination that the allegations patently of the were frivolous upon without merit because we were not called portion appellate consider that court’s decision. Swamynathan, See 236 Ill. 2d 103. the

Overall, using this case the dissent fails to review As in summary to dismissals. applicable standards more Hodges, analysis appropriate is the dissent’s Hodges, See proceedings. second-stage postconviction case, of on the facts this specific 234 Ill. 2d at 22. Based has an petition petitioner’s postconviction we conclude Accordingly, the trial in fact and law. arguable basis as petition the summarily dismissing erred in court stage merit at the first patently and without frivolous in affirm- the court erred appellate the and proceedings, the dismissal. ing to advance only petitioner entitles

Our decision may ap- where he be second stage the See petition. an amended counsel and submit pointed 2006). (West do not 4, 122— 5 We 725 ILCS 5/122 — will be able on whether opinion an express to an proceed standard and second-stage meet the Ed- See petition. on his amended evidentiary hearing (decision wards, on whether 2d at 246-47 of a showing a substantial has established summary inappropriate violation is constitutional proceedings). stage postconviction dismissal argues appellate State in its Finally, appeal, and court of fees vacating erred in assessment dismissed properly concluding petition costs after to the According merit. and without patently as frivolous under fees and costs State, assessing for the standard as the standard is the same 22—105 of the Code section Ac- postconviction petition. of a summary dismissal for of fees assessment requires 22—105 cordingly, section here, petition when, postconviction as court costs frivolous. dismissed as properly is need not address this court responds Petitioner improperly State’s claim because Thus, merit. without patently as frivolous dismissed subject he was not to assessment of fees and court costs in Alternatively, petitioner case. contends section not require 22—105 does assessment of fees and court every costs time a court dismisses a at the first stage of postconviction proceedings. provides filing

Section 22—105 for assessment of fees and actual court costs when a files a prisoner pleading, including a and the court postconviction petition, specifi- (West 105(a) cally finds it is frivolous. 735 ILCS 5/22 — 2006). have determined postconviction We peti- tion here was improperly dismissed as frivolous and patently Thus, without merit. there is no longer any basis for assessing 105, fees and court costs under section 22— and the assessment must be vacated.

Having assessment, vacated the we need not consider the State’s argument on whether section 22—105 assessment of requires 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 Generally, vacated. reviewing courts will not render advisory opinions or consider an issue when it will not H.H., affect the result. In re 233 Alfred 345, Ill. (2009), 2d 351 citing P., In re Mary Ann 393, 2d (2002); 401 399, Barth v. 139 Reagan, Ill. 2d 419 (1990). Accordingly, we decline to consider the construc tion of section 22—105 because that issue will affect the result in this case.

III. CONCLUSION reasons, For the foregoing we reverse the of part the appellate court’s judgment affirming the circuit court’s summary dismissal of petitioner’s postconviction peti- tion. affirm part We the of the appellate court’s judg- ment vacating assessment of fees and court costs under section 22—105 of the Code. The cause is re- second-stage postconvic-

manded to the circuit court for proceedings. tion part; in and reversed in part

Affirmed cause remanded. dissenting: JUSTICE GARMAN under the rule an- majority concludes People Hodges, in 234 Ill. 2d by nounced this court next (2009), stage is entitled to to the proceed theory is “not legal review because his postconviction Ill. 2d at by the record.” 236 completely contradicted addition, allegations finds that majority 191. In the nature of this of- in his “and postconviction petition bona doubt of fense at least raise arguably purpose the nature and ability to understand in his defense” 236 Ill. 2d and assist offense,” majority 191. the “nature of this By to commit “suicide alleged attempt to petitioner’s refers Ill. 2d at 187. police.” rule has majority misapplied In my opinion, record, established Hodges, ignored misread I, therefore, dissent. precedent. Hodges Adopted

The Rule that a the standard Hodges, this court clarified summary must meet to avoid postconviction or “patently it is “frivolous” dismissal on the basis (West 2006)). (725 2.1(a)(2) without merit” ILCS 5/122 — Hear- are not defined in the Post-Conviction These terms refer to a Hodges that these terms Act. held in ing We or in either in law arguable that “has no basis Hodges, 234 Ill. 2d at 12. fact.” Supreme State’s Hodges, the United adopted In we arguable no defines a claim with language that Court’s “ merit- indisputably on an in law as a claim ‘based basis ” 13, quoting theory.’ Hodges, 234 Ill. 2d at legal less 2d Williams, 490 U.S. 319, 327-28, 104 L. Ed. v. Neitzke 197 (1989). 338, 1827, As an of 348, example 109 S. Ct. legal theory, an meritless we mentioned indisputably “one is completely by which contradicted the record.” 16, Robinson, Ill. Hodges, citing 2d at People (2005). Ill. 2d 43 legal that majority theory concludes asserted

in the in this was contra- “completely case record,” dicted by quoting these words numerous times as if this were in Hodges. the standard announced It was as Hodges, not. we cited Robinson one merely a example of situation in which a postconviction petition was properly legal dismissed because the petitioner’s theory indisputably Hodges, meritless. 234 Ill. 2d at 16-17. that Robinson claimed his trial counsel been had for raise failing objec- ineffective a particular hearsay tion. This rejected this claim as meritless because the record revealed likely would have statement been admissible the spontaneous under declaration Robinson, exception to rule. hearsay 217 Ill. 2d 62- 63. Our opinion Robinson did not use the phrase “completely by contradicted record.” However, in Hodges, we characterized Robinson as a case in which the legal theory by advanced the petitioner it indisputably meritless because was “completely by not, however, contradicted the record.” We did state that “complete” contradiction is sine of qua non a legal meritless For we theory. example, a analogized frivolous an postconviction petition appeal is “ frivolous because it is ‘not by existing warranted law’ *** or good-faith argument for existing ‘modification of ” law.’ Hodges, 12, 234 Ill. 2d at 2d R. quoting 155 Ill. 375(b).

Thus, claim question a law that raising already is well settled decision of this court or the United States Supreme is example Court another an indisputably legal theory. postconviction peti- meritless For example, 198 have entitled to the claiming

tion that the New 466, 147 L. Apprendi Jersey, v. 530 U.S. Ed. rule of (2000), retroactively 435, 120 S. applied 2d Ct. if appeal case is meritless his direct indisputably Apprendi of the issuance the decision. prior exhausted (2003). Paz, v. De La Ill. People 2d 426 Under See Hodges, summary petition of such a the rule of dismissal proper. would be Hodges position in took the that partial dissent is, of theory, imperfect

the that his claim petitioner’s legal self-defense, without merit patently was frivolous and completely the facts of record undisputed because Thus, partial employed the dissent contradicted it. intended in the manner this “complete contradiction” for finding legal theory one basis possible court —as indisputably in a to be postconviction petition asserted present in the case elevates this The majority meritless. require- of the status an absolute possible one basis to ment. sum, focus of question on majority’s in Hodges. holding contradiction obscures our

complete focus, majority does not misplaced As a result this actually adopted that we address the standard fully completely is or frivolous Hodges —whether basis in arguable it lacks either an merit because without or in fact. law claim has majority with agree

I It is 236 Ill. 2d at 191. well in law. arguable an basis once a bona if, is violated process that due established is raised, hearing a has been doubt fitness unable to the defendant is determine whether held to or proceeding purpose the nature understand Eddmonds, 143 Ill. 2d People in his to assist defense. (1991). 501, 512 recognized

However, if a asserts even case, in his applicable theory arguably is legal stage may if be at the first also dismissed arguable Hodges, basis in claims therein have no fact. Supreme Hodges, adopted 234 Ill. 2d 17. In we the at “ of such claims as those ‘whosefactual Court’s definition ” clearly Hodges, 234 Ill. 2d contentions are baseless.’ at quoting 13, Neitzke, 327-28, 490 104 L. Ed. 2d at U.S. at 348, 109 S. at factual include Ct. 1833. Baseless claims “ ” (Hodges, those that are ‘fantastic or delusional’ quoting 13, Neitzke, 327-28, Ill. 2d at 490 U.S. at 104 L. 1833), 2d 348, Ed. 109 S. but all Ct. at not baseless necessarily factual claims are A claim delusional. factual may be where claim baseless the record belies the made petition. People Torres, 382, in 228 Ill. 2d (2008) (“this consistently upheld court has the dismissal postconviction petition allegations of a when the are by original proceed- contradicted record from trial 2.1(c)(West2006) (“In ings”). See also 725 ILCS 5/122— considering petition pursuant Section, a to this the court may proceeding examine the court in file of which ap- the pellate convicted, action an taken proceeding any transcripts

court in such and of proceeding”). such holding Hodges our addition, in did not lower the

previously existing first-stage standard for dismissal or expressly impliedly body large prece- or overrule the of dealing dent with claims trial that counsel was ineffec- failing request hearing. tive for a fitness precedents my Based on these review of the record, entire I conclude that of claim inef- patently fective of assistance counsel is without merit. allegations petition, The true, factual in taken as are clearly they do baseless because not raise bona a light of doubt his fitness to when in stand trial viewed of the record as a whole.

Ineffective of Assistance Counsel majority correctly rejects The the State’s contention proper that dismissal was because did not plead support facts of the deficient specifically Strickland representation prejudice prongs pro se Ill. 2d As a he is petitioner, test. 236 at 188. thus, authority and, to cite to cannot be required legal relating his factual as expected categorize assertions Hodges, of a particular prong particular to a test. dismissal, However, is summary 2d at 21. to survive he to set of a required gist forth constitutional claim. means that must set forth some factual basis for This would, true, claim —some if find- support facts deficient as well as ing performance that counsel’s true, would, facts that if support finding some prejudice. those al- majority separately does not consider perfor- in the relate to counsel’s

legations to prejudice. mance and those that relate allegations Review reveals several For example, to counsel’s in relating performance general. spent little time alleges very that counsel with petitioner him, acquit- made false about his likelihood assurances witnesses, tal, potential to contact defense and failed al- Only to witnesses. two properly failed cross-examine performance arguably are regarding counsel’s legations to the of whether his was question performance relevant First, hearing. for to fitness failing request deficient he alleges taking that counsel knew that was petitioner after his medications both and three before psychotropic petitioner prior and that had suicide attempted arrest Second, petitioner and on of his arrest. day his arrest lied when he told the court at that counsel alleges also petitioner sentencing hearing that was unaware Assuming, arguendo, medication. taking psychotropic true, to establish sufficient, are if allegations these deficient, must performance counsel’s question arguable facts to create an allege sufficient still is argu- 2d at A question Hodges, 17. of prejudice. question.” or “open argument, dispute, if is able it Third Dictionary Webster’s New International (1993). prejudice

To meet the of the test in prong Strickland postconviction claim of of counsel ineffective assistance for failure to obtain a fitness hearing, petitioner:

“must demonstrate that facts existed at time of his ability trial which raised a bona doubt of his understand the purpose nature and to assist in his defense. The post- is entitled to only conviction relief on his ineffective-assistance claim if he shows that the trial court would have found a bona fide doubt of his hearing fitness and ordered a fitness if it had been informed of the petition.” post-conviction evidenceraised in his

Eddmonds, 143 Ill. 2d at 512-13. Further, the petitioner bears “the burden of proving that, at the time trial, there in were facts existence real, which raised a substantial legitimate doubt as to his capacity mental to meaningfully participate defense and cooperate with counsel. The test is an objec- added.) tive one.” (Emphasis Eddmonds, 143 Ill. 2d at 518. Factors that are relevant to inquiry this include: the petitioner’s irrational behavior trial, and his demeanor at 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, (236 which is cited the majority Ill. 2d 186-87) for this formulation of several relevant fac- tors, reached this court in a different procedural posture from the present case. Eddmonds capital was a case in which the trial granted postconviction relief and brought State to this appeal court. The quoted language refers to the petitioner’s burden of at the proof hearing stage of postconviction proceedings.

Nevertheless, this language from Eddmonds reveals what a petitioner must allege in his postconviction peti- tion regarding the prejudice prong of the Strickland test to create an arguable question of fact. He allege must facts that existed at the time that, of his trial if known to the trial time, would have caused

the trial court at that understand ability of his to court to find a bona doubt and to assist purpose proceedings the nature and of (2000) 307, 319 192 Ill. 2d People Easley, in his defense. (“critical of stage postconviction at first inquiry” petition in the allegations is whether fitness at the time doubt of raise a bona fide trial). is requirement, If he meets this dismissal petition is entitled to have his docketed and he improper (725 2.1(b) (West for further consideration ILCS 5/122 — 2006)) and, appointed to have counsel indigent, if he is (West 2006)).1 (725 him assist ILCS 5/122 —4 petition al- addition, considering In in whether of a constitutional gist sufficient to state leges facts the court file of claim, may “the court examine convicted, ac- in which proceeding proceeding court in such appellate tion taken an case, Easley, capital objects a majority to the citation 1 The applicable circuit court’s consider rule for the as a source of unfitness to stand trial. postconviction of a claim ation however, Eddmonds, another majority, cites 2d at 191-92. The case, applicable same issue. 236 Ill. 2d capital for the rules to the at 186-87. require dissent would majority goes on to assert that this arguable basis “allege than an postconviction petitioner to more majority is overlooks Ill. 2d at 192. What the in law and fact.” 236 in a arguable basis in fact is not determined of an

the existence legal light be examined The factual basis must vacuum. argues case, petitioner that he was being asserted. this claim argument only if has merit determination. His entitled to a fitness alleges have dispute he now would open the facts it is to the trial hearing they had been known him to a fitness entitled Alberts, See, Ill. e.g., People v. trial. court at the time of his (2008) (in case, postconviction noncapital 374, when App. 3d sum- to stand trial is claiming petitioner was unfit dismissed, appeal the facts inquiry” on is whether marily “critical raised have postconviction would presented in defendant’s trial had the trial his fitness to stand doubt of a bona fide existence). of their been aware of such 725 ILCS any transcripts proceeding.” 5/122— (West 2.1(c) 2006). The in the allegations postcon- made viction must also be considered in light See, e.g., facts known to the trial court at the time. People (2000) Moore, 189 Ill. 2d 521 dismissal (affirming of postconviction petition where the claim raised in the record). by was bebed the trial ques- critical tion, then, is whether allegations postconviction true, petition, record, taken as but viewed in light of the sufficiently allege prejudice preclude summary dis- missal.

The Postconviction Petition and the Record The postconviction which petition, contains numbered claims in 26 handwritten pages, was ac- companied by 18 affidavits and copies portions of of petitioner’s medical records. The bulk of the petition involves allegations that various witnesses lied at his trial, that he lacked murder, the intent to commit or that the State his pursued prosecution to prevent him from filing a lawsuit against the officer who shot him. Only three paragraphs arguably relate to the question his fitness to stand trial.

First, petitioner states that he given was not psychiatric evaluation and that an evaluation would have shown his “state of mind at the time of arrest [his] at the time of trial.”

Second, he states several times that he “wanted to die on the day of his arrest and wanted the pobce to kill him and when he was not by the pobce kill[ed] he still wanted to die.” He describes off’ “fighting paramed- ics and refusing treatment. He also states that he had “tried to kill himself before” and “was on psych medica- tion” before his arrest.

Third, petitioner in the final alleges of his paragraph petition: very heavy Psych

“Now Brown was on Medication at the time of Brown trial and Brown didn’t exactly know what didn’t understand at Brown trial and happening taking some stop at his trial. Now Brown had to

everything Medication to write Psych his Medication his Trazodone clearly so Brown in this Document explain these event writing to the best of understand what Brown was can has believe’s in his heart and ability and Brown know and anyone but to hurt or kill proven that he didn’t want is not by and know that Brown himself Suicide Police proven has that Guilty degree Murder. And Brown of first changed the in this Document would have the evidence you more you if need to find out outcome of the trial. Now and Gloria Flores Virginia Mother Guerrero can ask Brown they things these Brown Romas know that and Patricia say in every thing has this Say’s are true. Now Brown truth.” feel’s and knows is the Document is what Brown by petitioner, only made Six of the affidavits were Petitioner to stand trial. one of relates to his fitness which 50, Zoloft taking arrest I was my avers that “before very heavy 400, 100 and because Seroquil Sinequan me unable to I made taking medication psych to and answer and unable think everything understand me feel like I I have and made way should everything just at trial. It anything my question not talk or could mind.” my to react made me slow arrest, to his prior affidavit states His mother’s taking and was diagnosed bipolar as he had made several states that medication. She also aunt’s his arrest. Petitioner’s to attempts prior suicide (Other in these allegations these claims. repeats affidavit any pos- not to performance, counsel’s affidavits relate to records document Medical petitioner.) prejudice sible medication. and treatment with the diagnosis ac- theme of the overarching The not have should affidavits is that companying he did murder because attempted guilty been found Rather, he intended officer. to kill the not intend argues him. He killing into police provoke kill, intent to shows lack of the knife way holding he was against prosecution lied, witnesses him and the entire plot keep filing was a him from a lawsuit. The first quoted regarding two statements above his “state of wanting part argument mind” and his to die are of this regarding his lack of intent to commit murder and are not directed at or relevant to his fitness for trial. only allegations

The that touch on his fitness to stand trial are the statement in the that he did not happening know what was at trial and the statement in every- his affidavit that he was “unable to understand thing everything and unable to think and answer way I should have and made me I feel like could not talk question anything my just or It trial. made me slow to my react in mind.” These few words constitute the entirety of his claim that a bona doubt of his fitness to stand trial existed at the relevant time. conclusory

This statement is and belied the trial majority, only record. para- however, devotes one graph allegations to its discussion of the factual in the petition. 236 Ill. 2d at 191. Without reference to the majority record, “argu- finds that claim is ably supported by allegations sup- in his porting affidavits.” 236 Ill. 2d at 191.

ConclusoryAllegations nonspecific merely “Nonfactual and assertions which require amount to conclusions are insufficient to a hear- ing Hearing under the Post-Conviction Act.” People v. (2001); 28, 205 Ill. Burt, 35-36 183 Ill. Coleman, v. People (1998). 366, 2d 381 See also 228 Ill. 2d at 394 Torres, (reviewing summary postconviction petition dismissal of noting stage, nonspecific that at this nonfactual and require proceed- assertions are insufficient to further ings). required provide only

A pro se is to a postconviction petition. limited amount of detail in his Torres, However, 2d at 394. conclu- 206 exactly that he “didn’t know what

sory allegations trial, think,” “unable to at his that he was happening” are question anything” and that he “could not talk or but lack factual content. He does descriptive, specific something that he failed to single example provide have He “offers questioned. understand or that he would ir- demeanor or that he acted regarding no evidence his Johnson, 176, v. Ill. 2d (People at trial” 183 rationally identi- (1998)), thus one of the three factors negating no Eddmonds. absolutely specific in There are fied his claim that he was actu- supporting factual allegations Thus, trial. he has failed during confused his bench ally his fitness to stand regarding of fact identify question to dispute, question. to or open argument, trial that is briefly when raised noteworthy It is sentencing at his hear- hearing of a fitness question him that “some had told people” it was because ing, medication, not have might he taking because he was time that did not at that suggest had to to trial. He go trial, that he would only affected him at the medication trial. until he if he could have avoided Not “find out” begin to as- did postconviction petition prepared Indeed, adversely. him the medications affected sert that improved he credited his sentencing, in his statement says that he now and outlook to the medications mood that he think,” and he stated made him “unable to remain on an even them taking needed to continue keel. court af- Hodges, appellate

After our decision peti- of a postconviction dismissal summary firmed the (2009), Miller, 629, Ill. 3d People App. tion in assistance of ineffective allegations on the basis give “conclusory fail[ed] and as such counsel were The petitioner’s claim.” of a constitutional gist rise to a prejudice prong meet the were insufficient allegations because of review stage at this first of Strickland even they subjective self-serving. App. were Miller, 393 Ill. appellate Hodges, 3d at 634. The court also noted that redefining patently while the term “frivolous and without sup- merit,” “did not overrule of the cases” cited in port opinion. App. Miller, 3d at 630 n.l. People Swamynathan, App. See also v. Ill. 434, 3d (2008) (affirming summary postconvic- dismissal of “nothing conclusory tion where he offered but unsupported ‘mentally assertions that he was not competent plea’; to enter a he had not been ‘of sound suffering complete mind’; and he had been from ‘a ”). mental breakdown’ present Swamynathan, case, as in Miller and postconviction petitioner only conclusory has made prejudiced by allegedly

assertions that he was counsel’s performance. arguable question prejudice deficient An is not raised the bare assertion that he did not any specific understand the and absent claim anything differently that he would have done at trial. majority requirement states that a of nonconclu- sory requirement factual content is inconsistent with the allegations postconviction petition that the in a be liber- ally construed. 236 Ill. 2d at 193. It is not. Liberal require construction does that the court frame al- legations might strengthen have been made to requires claim accept Rather, asserted. it that we “ allegations long they factual true, as so as ‘can be cor- ” objective Hodges, roborated and are in nature’ 234 Ill. quoting People 10, 2d at Delton, 247, 227 Ill. 2d 254-55 (2008). allegations Petitioner’s that he wanted to die and taking psychotropic that he was medications, taken as arguable question true, are not sufficient to raise an regarding Similarly, his fitness to stand trial. his conclu- sory allegations that he was “unable to understand everything” [his] and that he “was slow to react in liberally entirely mind,” no matter construed, how are Thus, petitioner lack content. subjective any specific the regarding of fact arguable question has not raised an Strickland test. prong prejudice The Trial Record claim the being conclusory, In addition to See, the record. by to stand trial is belied of unfitness Torres, e.g., (noting postconviction 228 Ill. 2d at 396 that he had not under- abandoned his claim that petitioner because the claim consequence guilty plea the of his stood guilty-plea proceeding the record of the by was “belied merit”). without patently and is therefore frivolous and pre- defense counsel began, Before the bench trial The trial court asked signed jury a waiver. sented answered, He signed if he had the document. petitioner that he if he understood “Yes, sir.” The trial court asked a trial. He right jury responded, his to giving up was a jury that if he had explained The trial court “Yes.” counsel and trial, selected defense jurors would be be jury the function of the would prosecutor a reason- beyond he proven guilty to decide whether was not that he could explained The court further able doubt. concluded, all 12 members guilty jury found unless be evidence, guilty he proven was considering after in noted that doubt. The court also a reasonable beyond standard would trial, reasonable doubt the same a bench if understood he petitioner The court then asked apply. He a trial. jury trial and distinction between bench petitioner the court asked “Yes, Finally, sir.” responded, his give up and desire” to his “decision if it was still answered, “Yes.” trial. He jury to a right was by police” to commit “suicide Petitioner’s intent one of the State’s on cross-examination brought out Romero, testified that when who witnesses, Elei holding, he object was drop told police screwdriver, he “said awas then believed they which ” Defense me.’ me. Shoot Shoot Come. only, ‘Come. away petitioner counsel asked this witness how far was from the officer he said “Shoot me.” The witness when stated that defendant was within about 15 feet of the of- ficer. on for a of not argument the motion verdict case,

guilty at the close of the State’s counsel noted that “standing his client was front of several armed offic- drawn,” guns knife, ers with their holding saying “shoot me.” He argued only that not officers,” “in a to kill position suggesting kill, lacked the intent “guaranteed but that his actions that he going get shot and he knew it.”

After denial of the defense motion for a verdict of not defense guilty, counsel informed the court that petitioner did not to testify. intend The trial court explained significance of the denial of the defense motion. The trial informed petitioner, “You have the right testify. right You have the to call witnesses. Do have you wit- nesses? Are there witnesses you are available that wanted called this case?” Petitioner responded: honor,

“Your I My don’t have witnesses. witness was Flores, Gloria but the State somehow obtained her on their side I now. have letters and stuff that she wrote me. At the

beginning my she was on side.” The following then exchange occurred: you

“COURT: You right testify, understand have a too, you stand, right have a to take the witness to be your story sworn to tell side off the under oath— Yes, BROWN: sir. To by your lawyer

COURT: be examined as well as Attorneys you the State’s and to tell whatever can recall about evening. you what occurred that Do understand that? Yes, sir.

BROWN: your COURT: And from lawyer indicated, what has you’ve you told him testify? don’t wish to Yes,

BROWN: sir. anybody COURT: Has promised you anything to cause you to make that decision? No, No, sir.

BROWN: sir. anybody you you to make COURT: Has threatened testify? want to No, BROWN: sir.” closing argument, argued

In his final defense counsel anybody petitioner killed, that if “wanted it was himself’ provoke the officers to him and that his intent to shoot doubt of his intent to kill. created a reasonable guilty, concluding petitioner The trial court found brandishing advancing a that his toward the officerwhile police along kill knife, with his announced intention to a provided guilty officer, basis to find him sufficient beyond on evidence and a reasonable doubt. Based arguments counsel, of defense the trial court was theory aware that the defense of the case was acting of his own wish to die and that out police Thus, he lacked to kill the officer. the court intent potentially suicidal. was aware that the Clearly, commit the court found that a desire to “suicide by police” police mutu- and intent to kill a officer are not ally then exclusive states of mind. The court ordered presentence report. presentence investiga- cooperated

Petitioner with the history. gave social In addition to tion. He a detailed reported Flores, Gloria three children he has with having other women. He four other children with two high dropped as a freshman that he out of school stated pregnant. goal girlfriend He stated a his was because obtaining Petitioner described work- his GED certificate. previous ing security prior officer to his arrest and as a reported taking pain job operator. medica- He as a forklift having reported gunshot wounds. He also tion for his depression diagnosed bipolar in disorder and with been daily prescribed psycho- taking three doses of 2000 and drinking tropic habits, medications. He described tequila including having beer and a bottle consumed drug day arrest, former addiction. of his and his on the He denied former affiliation and gang reported spending his free time chess and playing reading specifically Bible. He declined to comment on his version of the offense of which he convicted. was in this

Nothing report suggests was confused or otherwise fully participate unable to in the interview process. The interviewer did not report observ- ing any attention, communication, deficit or under- standing. 31,

On January 2004, a hearing was held on the defense motion for a new trial. Again, defense counsel argued that the evidence did not intent prove to kill. The motion was denied and the proceeded matter to sentenc- ing. The court ascertained that both attorneys had read the presentence report asked defense counsel if there were any modifications or corrections to be made to the report. Defense counsel said there were not.

After hearing from both attorneys on sentencing, asked if he wanted to take the op- portunity to speak on his own behalf. He read a state- ment that he had written: judge “To the may concern, or to whoever it on October ’02, got

8th I mad at Gloria and I left the house. She fol- me, lowed yelling at me and me at her. got

I mad because I felt that she cheating was on me. problem We had this time. for some very At the I time felt depressed. I did not why, know but I felt like this lot. I going through depression. I even tried myself to kill more than one time. left,

So when I by my I went mother’s house and sat in my van and drank about three-and-a-half packs. six And I feeling depressed. I home,

When came back I keys threw the on the floor at the front door picked and left. Gloria them I up and back, went knocked on the window and opened Gloria Me, Gloria, door. We were talking. and Maria.

I opened tequila bottle of drank it. At some time I took a I nap. got up and me and Gloria arguing started again. ran glass tequila. Gloria got

I mad and threw a the go police I her to ahead and call upstairs, and told myself police. I kill and the going was to because I Now, grabbed some knives. I went to the kitchen and out into the— a fork too. And I went grabbed think I even doorway. came out her door in the Gloria’s sister stood myself and the going I to kill upstairs, and I told her was police. And I waited for the police. I remem-

Now, upstairs, Gloria ran at the moment that three weeks I the news about two to bered that had seen on by police and killed because that a man was shot ago crazy like knife, waiving He was it a machete. big had a killed him. police man and the knife, the police thought grabbing I me So kill me. will knife, I believe okay. Grabbing a small around At that — kill me. police it would

waiving around time, but I Now, police I could have stabbed they my I knew that leg, shot me in so police did not. The kill me. going were not to at the my that was on the corner I to walk to van tried my right hand on the fence with walking I on time. was police shot me the knife. fence and I did not have my side, I grabbed I fell on the floor and my back. When came, pushed I paramedics wanted to die. So when still I still wanted hospital, I in the away and when was them going I was not leave me alone. I told the doctor to to die. anything. sign to kill plan I not to anyone, kill and did

I did not want to plan police. not to kill the anyone. And I did I have anyone, kill would planned have If I would But I did not I the time. my rifle that had at grabbed day. just got I anything that plan to do I did not because I wanted to die. mad and her to call hurt Gloria for

Now, anything to I did not do I knew upstairs, she ran glass. and threw a When police go I told her police. So going to call that she was furniture. and I threw some ahead say I night or should die that upset. I I wanted to I consequences. thinking I morning. just to die. wanted

Now, County jail, since I ago, came to Cook ten months choices, join I had two gang open one or to a bible. I opened the bible. And I am—I made a friend Martin. He’s Christian, a born again helped get and he me a lot to through jail. this time in Christian,

Now I am a born I I again and know have a kids, them, my my reason to live. That is for all of and stepdaughter. many things them, they

There are so I need to teach so do not do the same mistakes I have. And this is the first I jail longer time have been in experi- than a week and the ence was good for me.

I am drinking myself. not Imore. do not want to kill I want to live.

I take the medicine I stopped need which I in taking world. medicine,

I I know that need this so I do not feel depressed. I my problems have to deal with stop trying and myself. kill

Now, I still problems have all the in the world. And I—and a thousand more. I them, But have to deal with I know that I try myself will not to kill crazy or act with anyone or police in here or outside because I taking am my medication. I know that I have my to deal with problems. down, And when I my feel bad or I open bible to me help my problems with my in life.

I am person not the same that I was before. Now since I trial, went to some people have told me because I take medication, psych medication I supposed that was to have psych evaluation and that I gone could not have to trial. I do not know if this is true. I will find out. But I know that I am happy not with the happened decision that on the last court date.

I my lawyer think should brought up have all these things about me. Now I made a statement at police the hospital —at

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 put wouldn’t it police down. The me shot my leg my and in back. got

And I up they again. shot me I did not have the knife. lawyer my bring up things did not all these of what

Now lawyer my promise the statement. All did was happened to go that I will home. my looking me that I’m at one

Now mother tells taking I Instead of the three something for did do. to, years attorney that state’s offered me that I wanted but my lawyer going told me that I was home. There should he things. I these something could do about anyone. just I I can—I do not want to hurt wanted— way because I wanted to die things wrong went about day. date, my I felt like I wanted to die. I Even on last court sorry my I for problem. know I have to deal with this am ten I do not know how mistake. I have been here months. I I I need longer get much or if or when out. know to do things. three

One, every I it my I need medication. And have to take better, get I better and day get get so I do not—so could day. through the

Two, get inpatient outpatient in some kind of or any program and never drink kind of alcohol. Three, good church. find more, my mother, you you can ask If need to find out doctor, Gloria, that paramedics, woman say my statements, they things that these I are know took true. I feel and everything say I in this letter is what

Now you police or Gloria is the truth. And I feel if ask know time, they say any will police if I could have stabbed the injure police because I did yes. But I did not stab or anyone. want to hurt kill me. And if just police I wanted to—wanted just if is more than an as- you police or Gloria this ask gun, I will pushed I the officer’s police sault on because say, they yes. will scared them and guess guess just —I — I Now, I for because wanted them to got I what asked kill me. kill me and shoot me and honor, taking psych medica- Your these are —I’ve been taking proof and I was I in here. These are tion since came from the world I came. This is psych medication before [referring documents].” At this point, the trial court interrupted petitioner to if ask he had anything say mitigation before sentencing. Defense counsel informed the court petitioner was mistaken about the existence of a of- plea fer. The court then remarked that it was “more interested in something else that crops up now for the first time”— the fact that petitioner taking had been 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 any have bona doubt as to the fide defendant’s fitness to stand trial?” Counsel responded that the petitioner “spoke me, very coherently to 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 ap- pearance of Mr. Brown over the months would indicate to me that I would have bona doubt as to his fitness. So the fact that he receiving psychotropic drugs, I believe is of no consequence standing itself, alone and of and the court treat will it as such.” Viewing whole, the record as a there was no indica- during tion trial the petitioner lacked understand- ing of the proceedings or was unable to communicate with counsel or Yet, assist in his defense. the majority dismisses waiver of 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 or proceedings assist in the defense.” 236 Ill. 2d at 190-91.

This court has never required that the record “posi- tively rebut” a postconviction claim that a bona fide doubt existed of fitness or that the record “conclusively that The is requirement

demonstrate” fitness. which, if to the trial court facts known petitioner allege that trial, with all other facts along at the time of known to the trial court demonstrates were record doubt. Peti- time, have created a bona that would arguable ques- create an has no facts that alleged tioner He has made a bare assertion point. of fact on this tion proceedings. not understand the that he did mention the presentence does not majority fully capable individual who is which describes an report, understanding his situation. communicating and education, his about his Indeed, he chose to reveal facts alcohol drug and his history, past his work family, is The record to discuss the crime itself. use, but declined of the of the contents that the court was aware clear illness, at history of mental including petitioner’s report, hearing, before sentencing of the the onset hearing. fitness of a question raised at his statement lengthy quoted petitioner’s I have clearly it entirety in its because sentencing hearing that individual, to the court arguing competent reveals a a convic- necessary state sustain he lacked the mental previous He focused on his murder. attempted tion of court, life. The to end his own and desire depression this rejected considered however, already had statements defense, repeated that finding responded kill officers who police intended to that he of his evidence call were sufficient the domestic violence willing- by his own negated mind and were not state of attempt. in the ness to die told what he had been regarding

His statement believed, incorrectly, suggests others have enabled might medication taking fact of his mere confused to have been He did not claim him to avoid trial. his during or pretrial during any understood that he had not say He did not trial. bench whether his to choose right trial or right jury to a testify. difficulty He did not claim that he had under- counsel told him or with standing communicating what fact, In counsel. stated that the medication repeatedly his he needed to improved had mental state and that continue it. taking

The majority finds his detailed statement to be of significance “limited because it made more than *** any one month after the trial. Thus indication that making was lucid in sentencing the statement at or understood the proceedings trial at that time does not necessarily his establish condition at the time of trial. The positively petitioner’s statement does not rebut of al- legations tending to indicate a bona doubt of fit- his fide ness. In particular, the statement does not contradict petitioner’s allegation that his psychotropic medication prevented him from understanding proceedings.” the trial 236 Ill. 2d at 190.

I The fact disagree. that he wrote and delivered this statement stands in stark contrast to his allegation new confusion, lack of understanding, inability to talk or question. The record reveals a defendant who was fully capable of understanding and as- in sisting defense, his own and whose own attorney observed no signs court, unfitness. The trial on the record, stated that his conduct and did not appearance raise a bona doubt of his fitness. fide

A review of the record reveals that none of the Eddmonds factors present were at the time of trial. His demeanor at trial was unremarkable. He did not engage in irrational behavior. There are no prior opinions medical regarding his competence. counsel, record, Defense on the stated communicative. client was cooperative The petition and accompanying allege documents do not any new facts regarding these factors.

In circumstances, similar our appellate court has af- firmed the summary dismissal of claims of postconviction ineffective assistance of counsel on the basis that claims were belied by record. Swamynathan, claims were not above,

only conclusory, they “plainly as noted were that no bona record, refuted reflect[ed] which existed the time regarding doubt defendant’s fitness guilty plea.” Swamynathan, he entered his 385 Ill. 2d at 441. Williams, People App. 3d 1017

Similarly, (2006), that he had been unfit claimed he suffered from several forms of plead guilty because in IQ. an low He stated extremely mental illness and had taking psy- he had been accompanying his affidavit that his incarceration and that chotropic during medications thinking pleaded guilty at the time he Williams, argued Ill. 3d at 1020. He rationally. App. 364 of his was error because summary petition dismissal it raised a bona fide plead guilty. doubt of his fitness to Williams, al- Taking 3d at 1023. the factual App. 364 Ill. the claim true, rejected as the court legations appellate clearly guilty plea proceeding the record of the because purpose the nature and showed that he understood Williams, at 1025. App. 364 Ill. 3d proceedings. in case, allegations the factual taking In the present true, record nevertheless belies his as petition claim of a bona fide ability doubt of his to understand and assist in proceedings nature and of the purpose 236 Ill. 2d at 191. his defense. Established Precedent

Application of Johnson, case, the trial court dismissed capital In a evidentiary an hear- petition without postconviction Johnson, 2d at 184. The affirmed. 183 Ill. ing. This court prepared by accompanied report his conviction. evaluated Johnson after psychologist who intellectually Johnson “was The doctor wrote that trial admonitions of the understanding incapable sentencing.” John- jury his waiver of for regarding court assessment, Johnson son, 183 Ill. 2d at 192. Based on this

219 limitations him un rendered argued that his intellectual “ and object able to ‘understand the nature counsel, him, with and to against to consult ” defense,’ him rendering assist in his thus preparing 192-93, Johnson, quoting unfit Ill. 2d at for trial. Missouri, 162, 171, 103, 2d 420 U.S. 43 L. Ed. Drope (1975). 113, 896, After noting S. Ct.

“critical is the facts in inquiry presented whether post-conviction raised a defendant’s bona (Johnson, doubt of fitness to 183 Ill. 2d his stand trial” 193), court to meet this concluded that Johnson failed that, trial, his at the there “showing burden of time of were facts in existence which raised a substantial legitimate as to capacity cooperate doubt his mental with meaningfully participate counsel de Johnson, fense.” 183 Ill. 2d at 193-94. this Specifically, that he stated had offered “no evidence regarding or his demeanor that he irrationally acted at trial. ad dition, there was no prior opinion medical on defendant’s Johnson, competence to stand trial.” 2d at 194. Thus, none of the factors identified in as Eddmonds a bona present. Further, indicators of doubt were the fide only new evidence offered the psychologist’s opinion was that Johnson was incapable understanding the court’s because inability comprehend admonitions of his to complex sentences. This court concluded that the “facts offered by defendant fall of raising short a bona fide doubt of Johnson, his fitness.” 183 Ill. 2d at 194. case,

In present only objective the the indicator of possible as doubt fitness is that the fact he was taking psychotropic medication at the time of trial. fact, alone, This standing is insufficient a create bona (2000). People Mitchell, 312, doubt. Ill. 2d 330 Johnson, Like the defendant petitioner now claims to have been unable to understand the at trial but, Johnson, like he no regarding “offers evidence his that at trial” irrationally

demeanor at trial or he acted (Johnson, 194) 2d at and no medical prior opinion 183 Ill. on his to stand trial. competence Mitchell,

In of a again post- we affirmed the dismissal evidentiary in a hearing conviction without an petition sentencing, the his trial and capital case. At time of his taking Mitchell had been two medications to control the court had His that trial epilepsy. petition alleged a condition, had existed since been aware of his which old, he was years head when he was six and that injury control seizures. taking medications his psychotropic Mitchell, accompanied 2d at The was 323. consultant, listed an a who by pharmacology affidavit ‘sedation, as hal- drugs the side effects of the “probable dizziness, incoordination, lucinations, depression, deterioration, psycho- and changes emotional behavioral ” also stated that sis and The affidavit aggression.’ “ can drugs both of these ‘combination of effects of (alter clearly) to think ability cloud sensorium make ability to [sic] and thus effect individual’s ” The concluded that certain decisions.’ consultant “ Mitchell to effect have caused Mr. may ‘overall sedative during proceed- or too detached appear too relaxed ” Mitchell, Ill. 323. ings.’ 2d at addition, Mitchell’s included an affidavit in prison who tested him psychologist, from clinical IQ 73, his was his perfor- and determined that “verbal The 75, IQ 73.” mance and his full scale IQ were at a found his “math skills psychologist also that skills reading spelling fourth-grade level that level,” third-grade characterizing were below the learning language-based having defendant “as severe defendant’s stated disability.” psychologist that, although limited and abilities were “cognitive was borderline IQ scores showed defendant’s retarded, read and his slowed mentally inability more functioning left him information-processing speed mildly mild/moderately impaired like someone in the Mitchell, 189 Ill. 2d at 353-54. range.” any This court found that the record belied claim proceedings that he had not understood the nature of the Mitchell, in his defense. or was unable to assist Specifically, 2d at 334. we noted: exchanges judge display “Defendant’s with the trial do not any the nature proceedings, confusion about by testifying defendant assisted in his defense in his own behalf. Defendant to his whereabouts at the testified times, crime, relevant denied involvement in the that his was coerced. police asserted Defendant’s confession to

testimony pages report covered over 50 of the any signs of about the nature or defendant and does not disclose of confusion

purpose Similarly, of the proceedings. gave testimony support extensive in of his mo- suppress evidence, tions to statements and and there is no indication that defendant did not understand the nature or Mitchell, purpose proceedings.” of those 189 Ill. 2d at 334- 35.

We also noted that while a trial judge rely “cannot on trial demeanor dispense with a fitness in hearing face of evidence of a bona doubt of defendant’s fit- fide ness,” there was no evidence in suggesting the record bona doubt of Mitchell, fitness at the time of trial. 189 Ill. 2d at 335. in

Similarly, case, the present petitioner’s exchanges with the trial court do not confusion display any about the nature of the proceedings. Although petitioner elected trial, not to at his testify bench presented lengthy statement, which himself, he had written at his sentenc- ing hearing. fact that the sentencing hearing was held several months after the trial weighs bench little light fact that not only continued to take the psychotropic medication at the time of his sentencing, he credited the medication with an improve- ment in Mitchell, his mood and outlook. inAs the record in this case belies petitioner’s claim. Mitchell, addition,

In in presence even the of af- fidavits from a and a clinical pharmacologist psychologist record, did not negate the trial which demonstrated that the defendant understood “fully nature proceeding him, and was against cooperate able to his Mitchell, defense.” 2d at 337. Petitioner in the present case offers affidavits from his mother only and aunt, arrest, who state that to his prior petitioner was diagnosed as and that he has made several suicide bipolar attempts, documenting and medical records this diagno- sis. Easley, postconviction petitioner claimed that arrange

he had asked counsel to for a examina- physical tion and a something brain scan because he believed that wrong with his brain and he “a lot of experienced got angry upset, headaches.” He stated that when he or blank; he would mind my goes my “blank nerves out — Also, and I can’t think when he read or jump clearly.” spoke, “he that he was or forgot everything reading thinking.” Easley, 192 Ill. 2d at 320. did arrange Counsel evaluation, for a but to psychological Easley refused cooperate psychologist because believed had Easley, been sent the State. 192 Ill. 2d at 319-20. This concluded this “evidence does not help “speaks only person’s defendant” because fitness to a within the context of a trial. It ability function does not refer or in other areas. A sanity competence mind can fit for trial his or her although defendant be Easley, 192 Ill. 2d at may be otherwise unsound.” 320. “several irrational statements” dur- Easley also made trial, pretrial hearing. an outburst at a ing including Easley, colloquy 192 Ill. 2d at 320. Based on a between court concluded that he Easley judge, and the trial this understood the nature of the His hostile proceeding. unfitness, but was based on sign conduct was not a “his the criminal demeaned justice system belief that 321-22. Easley, him.” 192 Ill. 2d at regarding postconviction psychological Affidavits Easley long-standing examinations indicated that “had problems mental time of trial that affected his ability to understand written and oral instructions. When [he] thought stress, under extreme suffered from personality paranoia, episodic disorder, breaks with reality.” Easley, 192 Ill. 2d at 322. This court noted that the “fact that a defendant suffers from mental distur- requires psychiatric bances or treatment does not neces- sarily ability [his] raise a bona doubt as to understand the and to assist counsel in the Easley, taking defense.” Then, Ill. 2d at 322. his al- legations postcon- true, as this court concluded that his viction did not raise a bona doubt of his fit- fide ness to stand trial and his claim of ineffective assistance Easley, counsel, of therefore, failed. 2d Ill. at 323. Compared Easley, quantum alleged to of evidence by petitioner support in of his claim is minuscule. He of- only self-serving fers his statement that he did not going understand what was trial, on at his which is belied by record, and the statements of his mother and aunt history prior that he had a of mental illness trial, to his that he being times, suicidal at and that he was psychotropic drugs. objective treated with He offers no by evidence, either in the record or means affidavit, of the existence of that, facts if known at trial, the time of would have raised a bona doubt of his fitness. by psycholo- Burt, was evaluated gist prior to trial. The doctor found him fit and defense stipulated report. counsel to the contents of the As a hearing result, no taking fitness was held. Petitioner was psychotropic medications at that time and counsel and the court were aware of this Burt, fact. 205 Ill. 2d at 33. Against subsequently changed counsel, advice of Burt plea guilty guilty. his from not to He was convicted and sentenced to post- Burt, death. 205 Ill. 2d at 33-34.In his ineffec- he asserted that counsel was petition,

conviction hearing. a fitness We affirmed failing request for tive a hear- dismissal of the without the trial court’s ing. guilty to plead that his decision petition alleged

His become that his ‘will had irrational and “illustrated disap- self-preservation and ‘his desire for flattened’ ” Burt, found this allegation 205 Ill. 2d at 40. We peared.’ record, that he will- which revealed contradicted responded that he the advice of counsel and fully rejected he that by stating admonishments to the trial court’s Burt, addition, 2d 40. In plead guilty. wished to a guilty plea, consequences he understood clearly consequences informed him of these the trial court because “ ” fully.’ he ‘understood and he stated that concentrating difficulty he had alleged Burt also to a defense pointed during participate he could not a continuance because request for dif- medication and as a result of his in selection jury request. judge granted The trial ficulty sleeping. guilty plea, his Later, attempted he to withdraw when in court alert “appeared be the court observed Burt, 205 Ill. 2d at 42. defense.” his participated his trial from one of offered an affidavit Burt Finally, his swings,” mood “frequent describing attorneys, threat behavior,” and his or “belligerent explosive He this argued in the courtroom. violent become Based on of his fitness. evidence of a bona doubt things these record, concluded of the we our review or his proceedings of the understanding his did not affect Burt, 205 Ill. 2d defense. in his own participate to ability of prong Thus, prejudice to establish he failed at 43. Burt, of counsel. assistance claim of ineffective a 44. 2d at use of only offers his case, defendant

In present asser- and a bare during trial medication psychotropic did not factual that he tion, specific allegations, without Burt, allegations If the proceedings. understand the that he required verifiable fact including objectively medication, effects of his a continuance as a result of the hearing, to survive dismissal without were insufficient in the case are insufficient. surely allegations present (2002), the Harris, post- In v. 206 Ill. 2d 293 People that, time included at the allegations conviction trial, depression, dependent of Harris suffered from Harris, disorder, personality organic brain disorder. 2d at 302. accompanied Ill. His of a assessment report postconviction psychological Harris, 303. confirming diagnoses. these 206 Ill. 2d at true, allegations they these as we stated that did Taking necessarily establish that he was unfit: case, clearly “In that defen- this record illustrates purpose proceed- dant understood the nature and of the occasions, ings. provided On several the court defendant explanation with a detailed ofthe and informed rights during proceedings.Following defendant of his those admonishments, these defendant stated that he under- Furthermore, stood. the record shows that defendant participated defense; in his own communicated and counsel; expressed conferred with his trial his to the court understanding proceedings, including his decisions litigate agree plea, right rather than to a his waive testify, jury his right sentencing waive to a at the hear- ing; during and articulated a clear statement in allocution Harris, mitigation.” 206 Ill. 2d at 305. case,

In the present despite ingestion psycho- his medication tropic subsequent allegation and his that he did not understand also proceedings, to the court “expressed understanding proceed- his his decisions to to a ings,” including right jury waive right testify. and his He also “articulated a clear state- ment” at his sentencing hearing. Johnson, (2002), Ill. 2d 348 af- People we

firmed the postconviction petition dismissal of without

evidentiary hearing petitioner where the claimed both the trial court had actual doubts as to his fitness and failed to hold a fitness and that hearing certain facts existed that would have raised a bona doubt of his fide fitness had the trial court been aware of them at the accepted time it his Facts guilty plea. known the trial court included an apparent attempt suicide at the time of his arrest that made the trial court “attuned to pos- stable.” John- sibility that his mental state was than less son, 206 Ill. 2d at 365. facts in the alleged New included his mother’s testimony sentencing hear- ing regarding history mental illness and the report psychologist, clinical who testified at the hearing on motion to withdraw his guilty plea. Petitioner the evidence argued developed after pleaded guilty, when considered in combination with time, information to the trial at the known to raise a bona sufficient doubt of his fitness to stand fide knowing intelligent guilty trial or to enter a plea. Johnson, 206 Ill. 2d at 361. concluded that “no bona petition-

We doubt as to er’s fitness would have existed at the time he pleaded if guilty, even the trial court had been aware of the facts Johnson, now available.” 206 Ill. 2d at gave great 373. We weight specifically inquired the fact that trial court of defense counsel whether he had concerns about his chent’s and he that he did replied fitness not. ad- dition, the trial court made a record of its own observa- setting tions of the defendant the courtroom and its that he understood opinion well what Johnson, were about. 206 Ill. 2d at 373. case,

In the when the trial court became present taking aware that medica- psychotropic tion, counsel inquiry responded it conducted a similar that he had no concerns about his client’s fitness. court made a record of its own Similarly, the trial setting, observations of in the courtroom find- ing no indication of unfitness. See also People v. Moore, (2000) (affirming post- 521, 189 Ill. 2d dismissal of evidentiary hearing conviction without where competent defendant “exhibited rational and behavior at *** engaged colloquies judge trial in with trial in responsive appropriately acknowledged which he was and (2003) rights”); certain 207 Ill. 2d 47 Shum, v. People (affirming postconviction petition dismissal of without evidentiary hearing; petition accompanied by neuropsy- report petitioner experienced auditory chiatrist’s that memory problems verbal injury, retrieval as a result of a brain report petitioner family

social worker’s had a history including schizophrenia, of mental illness and report psychiatrist petitioner of insisted on control- ling cooperate his own case and refused to with counsel; facts, these if known at the time of trial would not have light raised a bona doubt of fitness in of fact that fide petitioner rights, motions, filed pro se waived certain spoke clearly sentencing). in allocution at present knowingly sum, in the case voluntarily rights, speaking clearly waived certain to the during spoke clearly admonishments, and at his sentencing hearing. points objectively He to no verifiable fact in trial, existence at the time of his other than the taking psychotropic mere fact of his medication, that might suggest petitioners he was unfit. Like in each allega- of cases, these cited he has not made sufficient supported by proof, tions, affidavit or other form of demonstrate that a bona doubt of his fitness would have existed at the time of if trial the court had been aware the facts. distinguished important

These cases can be in one respect present from the is, case. That each of these cases capital petitioner likely is a case which the had the as- prepare postconviction petition. sistance of counsel to 2.1(a) (West 2006). in the Petitioner 725 ILCS 5/122 — pro se As postconviction petition. case filed a present his claim. Hodges such, applies the standard do summarize this Nevertheless, these cases capital to assess the record approach using court’s previous of counsel of ineffective assistance claims postconviction If the records in hearing. a fitness for failure to obtain unfitness for claims of postconviction these cases belied belies trial, present surely petition- in the case the record er’s claim. standard, is not Hodges

Under author- or citation to legal argument to include required (2001). Edwards, 239, 244-45 Ill. 2d ity. People an facts to assert However, must still sufficient plead 2d at 9. Hodges, constitutional claim. arguably facts to create plead means that he must sufficient This of fact whether a bona doubt of question an arguable fide time of his trial trial existed at the his fitness to stand alleged. now been aware of the facts had the trial court the first- had few occasions to address This court has se in a pro postconviction dismissal of a stage Hanson, 212 Ill. 2d People However, in case. noncapital the defendant’s (2004), we reviewed appeal, a direct denied because rights his due were process that argument The defendant hearing. a fitness given he was not battery and aggravated in a bench trial of convicted a fit- requested officer. Defense counsel a resisting peace motion that a bona evaluation, the alleging ness fide trial. Han- to stand of his client’s fitness doubt existed psychiatric court ordered a son, 2d at 214-15. The fit and the defendant found psychiatrist evaluation. The Hanson, 212 Ill. 2d at 215. the motion. counsel withdrew grant- the trial court’s was whether appeal One issue on court’s belief the “implicitly signaled” of the motion ing fit- as to defendant’s there was a bona doubt that fide the conten- Hanson, 212 Ill. 2d at rejected 216. We ness. granting tion that mere of a motion for a fitness hear- ing necessarily Hanson, a establishes bona doubt. fide 212 Ill. 2d at 218. then turned

We defendant’s claim that the supported finding record of bona doubt of his fit- fide applied ness to stand trial. factors to We Eddmonds conclude that no such doubt existed: reviewing transcript

“After the pretrial proceedings, say that, factor, we cannot under the first defendant’s supports finding conduct of bona doubt. Defendant’s fide during demeanor and behavior these proceedings were interested, rational, appropriate. a cold record While may imperfect be an evaluating means of defendant’s demeanor, behavior and we note that trial court had opportunity to observe defendant’s conduct and demeanor firsthand during proceedings, yet expressed absolutely no concerns ability about defendant’s understand the nature of the proceedings or to with work Hanson, counsel.” 212 Ill. 2d at 223-24.

As to the factor, second Eddmonds we stated:

“[T]he motion for psychological by examination filed defense counsel ‘[c]ounsel asserted that feels that there ex- ists 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 Eddmonds, stated in however, ‘an assertion counsel that a defendant not, itself, is unfit does raise a bona doubt of competency.’ give [Citation.] We do not great weight to this factor in this case because the motion failed to provide any facts to substantiate ‘feeling’ counsel’s Hanson, doubt existed.” 212 Ill. 2d at 224.

And, as to the factor, third Eddmonds we stated: Eddmonds, “In recognized we the existence of a mental disturbance psychiatric or the need for care does not necessitate a finding of bona doubt since ‘[a] fide may competent defendant be participate to at trial even though his mind is Here, otherwise unsound.’ [Citation.] the record shows that defendant diagnosed had been at various lengthy times with a problems, including list of organic personality syndrome, and brain disorder or alcohol disorder, dementia, disorder,

dependence, seizure amnestic Nonetheless, any these bipolar disorder. connection may problems have had to defendant’s fitness at the time Hanson, 212 unexplained.” the motion was filed remains Ill. 2d at 224-25. case offers even petitioner present in the less given for his claim that he should have been

support fitness than did the defendant in Hanson. hearing Hanson, to defense give “great weight” we did client’s fit- counsel’s that doubt existed about his opinion Yet, the no at all to defense majority gives weight ness. coher- petitioner “spoke very counsel’s assertion that fine,” me, problem seemed and that he “had no ently him.” communicating with record, and the I my

Based on review of baseless because he factually find claim to be that, true, if verifiable evidence objectively offers no new of the clear record of his fitness at the time negate would trial. in this

Further, alleged if the of evidence quantum doubt of fitness is sufficient to create a bona case, in this then all a despite postconviction the record summary survive dismissal is to must do to that he was confused nonspecific allegation make a I do happening. and did not understand what was trial Hodges it this court’s intent not believe that postconviction petition dismissal of a preclude summary raised therein is belied even when the claim record.

Conclusion postconviction is clear that when a Our case law of ineffective assistance makes a claim hearing, fitness he must request for failure to counsel mere fact that he was more than the allege something time trial medication at the taking psychotropic majority claim. The dismissal of his summary survive in his bare assertion that did something finds more in the suicidal not understand proceedings “nature of offense.”

Our case law is also clear that a defendant’s desire commit is indication of unfit- necessarily suicide not an Johnson, ness to 206 Ill. 2d 365. stand trial. See at illness of some of or Neither is the existence form mental Johnson, 194; intellectual deficit. See 183 Ill. 2d at Mitchell, 334-35; 322; Ill. 2d at 192 Ill. 2d Easley, Harris, Ill. 2d at 305.

In overlooking body this precedent, majority all factors, but which abandons Eddmonds none of are demonstrated in record or facts in the alleged petition, requirement as well as the the postconvic- “real, tion petition raise a substantial and legitimate doubt” of fitness at time of Eddmonds, trial.

2d at 518. result,

As I agree a with the appellate court, which affirmed the summary petition, dismissal of the saying:

“We find defendant is unable to establish the trial court would have found a bona of his doubt fitness and fide hearing ordered fitness apprised had it been offered postconviction petition. evidence in his The record shows that defendant participated did not exhibit irrational or odd behavior in court. At sentencing, defendant read a long, detailed statement in mitigation. In the absence of other raising evidence bona fitness, doubt defendant’s hold we defendant has gist stated the of a constitutional claim of ineffective assistance of counsel.”

JUSTICES THOMAS and join KARMEIER in this dissent.

Case Details

Case Name: People v. Brown

Court Name: Illinois Supreme Court

Date Published: Feb 4, 2010

Citation: 923 N.E.2d 748

Docket Number: 106243, 106273 cons.

Court Abbreviation: Ill.