People v. Brown

Docket Nos. 106243, 106273 cons.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Cross-

Appellant, v. RAYMOND BROWN, Appellant and Cross-Appellee.

Opinion filed February 4, 2010.

JUSTICE KILBRIDE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman and Burke

concurred in the judgment and opinion.

Justice Garman dissented, with opinion, joined by Justices

Thomas and Karmeier.

OPINION

Petitioner Raymond Brown alleged in a pro se postconviction

petition that his trial counsel was ineffective for failing to request a

fitness hearing. The circuit court of Cook County summarily

dismissed the petition as frivolous and patently without merit. The

circuit court also assessed fees and court costs of $155 under section

22–105 of the Code of Civil Procedure (Code) (735 ILCS 5/22–105

(West 2006)), for filing a frivolous postconviction petition. The

appellate court affirmed the dismissal of the petition but vacated the

circuit court’s imposition of fees and court costs. No. 1–06–3275

(unpublished order under Supreme Court Rule 23).

We allowed petitions for leave to appeal filed by both petitioner

and the State (210 Ill. 2d R. 315(a)), and consolidated the appeals. We

hold the circuit court erred in summarily dismissing the

postconviction petition as frivolous and patently without merit.

Accordingly, we reverse the dismissal of the postconviction petition,

affirm the judgment vacating the assessment of fees and court costs,

and remand this matter to the circuit court for second stage

postconviction proceedings.

I. BACKGROUND

Petitioner was charged with two counts of attempted first degree

murder of a peace officer (720 ILCS 5/9–1(a)(1) (West 2002)), and

two counts of aggravated assault (720 ILCS 5/12–2(a)(6) (West

2002)). At the bench trial, the testimony showed petitioner lived in an

apartment with Gloria Flores. Petitioner became intoxicated and

argued with Flores because he believed she had cheated on him.

Eventually, Flores threatened to call the police. Petitioner told her to

“go ahead and call” because he was not afraid of the police. Flores

went upstairs to her sister’s apartment. After hearing petitioner

continue to yell and throw items in their apartment, Flores and her

sister called the police.

When several police officers arrived at the apartment building,

petitioner was standing outside the front door of his apartment

holding a butcher knife. One of the officers began to approach

petitioner. The officer mistakenly believed the object in petitioner’s

hand was a screwdriver and ordered him to “drop the screwdriver.”

Petitioner responded by stating, “come on and I’ll kill you.” After

recognizing the object as a knife, the officer repeatedly told petitioner

to drop the knife. Petitioner refused and repeated his threat to kill the

officer.

Petitioner then advanced toward the officer. The officer backed

away and continued ordering petitioner to drop the knife. Petitioner

kept walking toward the officer and began swinging the knife as the

officer backed away. The officer drew his handgun and pointed it

toward petitioner, continuing to order him to drop the knife.

Petitioner lunged at the officer, reaching for the handgun with his free

hand. When petitioner continued to approach, another officer shot

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him. Petitioner did not stop and the officer shot him again. Petitioner

was shot in the leg and lower back and fell to the ground. Based on

the evidence, the trial court found petitioner guilty of attempted first

degree murder of a peace officer.

Petitioner read a statement to the court at sentencing. He asserted

that he had been depressed and previously tried to kill himself. He did

not intend to harm the police officers, but only wanted them to kill

him. He had seen a news report where a man was shot and killed by

police officers after threatening them with a machete. Petitioner

thought the officers would kill him if he waved a knife at them.

Petitioner further stated he was taking “psych medication” and

was told he should have received a psychiatric evaluation prior to his

trial, but his trial attorney failed to bring the matter to the court’s

attention. Petitioner stated he began taking his medications after

incarceration and he no longer felt depressed or wanted to kill

himself. He still felt like he wanted to die, though, as recently as his

previous court hearing.

The trial court questioned counsel about petitioner’s statements

on taking psychotropic medication. Defense counsel stated he was not

aware that petitioner was taking psychotropic medication. The court

further inquired whether there was any reason for counsel to have a

bona fide doubt of petitioner’s fitness to stand trial. Counsel

responded that petitioner “spoke very coherently to me,” he “seemed

fine,” and counsel “had no problem communicating with him.” The

trial court noted it had not observed anything in petitioner’s conduct

or appearance indicating a bona fide doubt of his fitness. Petitioner’s

treatment with psychotropic medication, standing alone, did not raise

a presumption of unfitness to stand trial. Accordingly, the trial court

proceeded with the sentencing hearing and imposed a 25-year term of

imprisonment. The trial court’s judgment was affirmed on direct

appeal. People v. Brown, No. 1–03–2620 (2005) (unpublished order

under Supreme Court Rule 23).

Petitioner then filed a postconviction petition alleging, among

other things, that his trial counsel was ineffective for failing to request

a fitness hearing. Petitioner alleged he told his attorney that he was

taking psychotropic medication, including Zoloft, Seroquel, and

Sinequan, both before and after his arrest. He alleged he was taking

the psychotropic medication to treat bipolar disorder and depression.

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He also informed counsel that he attempted suicide before he was

arrested and on the day of his arrest. He alleged he was attempting

“suicide by police” on the day of the offense. During his trial, he was

taking “very heavy psych medication” that affected his ability to

comprehend the events. Petitioner alleged he “didn’t know exactly

what was happening at [his] trial and didn’t understand everything at

his trial.” Petitioner further alleged his trial counsel lied when he

informed the trial court that he was unaware petitioner was taking

psychotropic medication.

Petitioner also alleged his attorney only visited him for a few

minutes before each hearing. Petitioner believed his attorney was too

preoccupied with his father’s death to represent petitioner adequately.

Petitioner alleged he stopped taking some of his medications to draft

his postconviction petition.

Petitioner appended to his petition medical records documenting

his bipolar disorder and his medications to treat it. Additionally, he

provided affidavits from his mother and aunt attesting that

petitioner’s mother informed trial counsel petitioner was taking

medication to treat his bipolar disorder. Petitioner’s mother also

averred she told counsel petitioner had attempted suicide on several

occasions. Petitioner’s mother and aunt averred trial counsel lied to

the court when he stated he had no knowledge of petitioner’s mental

illness or medications.

The trial court summarily dismissed the petition. The court ruled

petitioner’s claim of ineffective assistance of counsel for failure to

request a fitness hearing was barred by res judicata because the

appellate court considered that claim on direct appeal. The trial court

further found the petition was frivolous and patently without merit.

Petitioner was assessed $155 in fees and court costs under section

22–105 of the Code for filing a frivolous postconviction petition.

On appeal, petitioner contended he stated the gist of a

constitutional claim that his trial counsel was ineffective for failing

to request a fitness hearing. Petitioner also challenged the trial court’s

imposition of fees and court costs.

The appellate court observed it did not consider petitioner’s

ineffective assistance of counsel claim on direct appeal because that

claim was based on matters outside the record. The appellate court,

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therefore, held that challenge was not barred by res judicata. The

appellate court, nevertheless, held the petition did not state the gist of

a claim of ineffective assistance of counsel. According to the

appellate court, petitioner was “unable to establish the trial court

would have found a bona fide doubt of his fitness and ordered a

fitness hearing had it been apprised of the evidence offered in his

postconviction petition.” The appellate court further held assessment

of fees and court costs under section 22–105 of the Code was not

authorized. Accordingly, the appellate court affirmed the trial court’s

summary dismissal of the postconviction petition but vacated the

assessment of fees and court costs. No. 1–06–3275 (unpublished

order under Supreme Court Rule 23).

Petitioner and the State filed petitions for leave to appeal (210 Ill.

2d R. 315(a)). We allowed both petitions and consolidated them for

review.

II. ANALYSIS

In his appeal, petitioner contends his postconviction petition

established the gist of a claim that his trial counsel was ineffective for

failing to raise an issue of petitioner’s fitness to stand trial. Petitioner

argues the appellate court applied an incorrect standard by requiring

him to prove his ineffective assistance of counsel claim at the first

stage of the proceedings.

The State responds that the allegations in the petition are not

sufficient to raise a bona fide doubt of petitioner’s fitness to stand

trial. The State also claims the record positively rebuts any suggestion

that petitioner was unfit. The State, therefore, maintains the petition

was properly dismissed as frivolous and patently without merit. The

State further asserts petitioner forfeited his argument that the

appellate court required him to prove his ineffective assistance of

counsel claim because he failed to include that argument in his

petition for leave to appeal.

We first address the State’s contention that petitioner forfeited his

argument that the appellate court applied an incorrect burden of proof

in affirming the summary dismissal of the petition. Supreme Court

Rule 315(c) requires petitions for leave to appeal to contain a

statement of the points relied upon in seeking review of the appellate

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court’s judgment. 210 Ill. 2d R. 315(c)(3). The rule also requires a

short argument stating why review is warranted and why the appellate

court’s decision should be reversed or modified. 210 Ill. 2d R.

315(c)(5). An issue may be deemed forfeited if it is not raised in the

petition for leave to appeal. In re Rolandis G., 232 Ill. 2d 13, 36

(2008).

Here, the petition for leave to appeal asserted review was

warranted for three reasons, including that the appellate court’s

decision “clearly demonstrates that it applied an incorrect standard in

assessing the appropriateness of summary dismissal.” Petitioner

further asserted “the appellate court erroneously applied a stricter

standard when evaluating whether [his] petition was frivolous for

purposes of the Post-Conviction Hearing Act.” In the argument

section, petitioner maintained the appellate court used a much stricter

standard than the one applicable to first-stage postconviction

proceedings. The petition for leave to appeal, therefore, specifically

mentions the issue of whether the appellate court erred by applying

an incorrect standard in reviewing the first-stage dismissal.

Accordingly, we conclude petitioner has not forfeited his argument.

The summary dismissal of a postconviction petition is reviewed

de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). At the

first stage of postconviction proceedings, the trial court examines the

petition independently, without input from the parties. People v.

Gaultney, 174 Ill. 2d 410, 418 (1996). A petitioner need present only

a limited amount of detail and is not required to include legal

argument or citation to legal authority. People v. Edwards, 197 Ill. 2d

239, 244-45 (2001). A pro se petitioner is not excused, however, from

providing any factual detail whatsoever on the alleged constitutional

deprivation. People v. Delton, 227 Ill. 2d 247, 254 (2008). The

allegations of the petition, taken as true and liberally construed, need

only present the gist of a constitutional claim. People v. Harris, 224

Ill. 2d 115, 126 (2007). This standard presents a “low threshold”

(People v. Jones, 211 Ill. 2d 140, 144 (2004)), requiring only that the

petitioner plead sufficient facts to assert an arguably constitutional

claim (People v. Hodges, 234 Ill. 2d 1, 9 (2009)).

In considering the petition, the trial court may examine the court

file of the criminal proceeding, any transcripts of the proceeding, and

any action by the appellate court. 725 ILCS 5/122–2.1(c) (West

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2006). The trial court must summarily dismiss the petition if it is

frivolous or patently without merit. 725 ILCS 5/122–2.1(a)(2) (West

2006). We recently explained that a pro se postconviction petition is

frivolous or patently without merit only if it “has no arguable basis

either in law or in fact.” Hodges, 234 Ill. 2d at 16. A petition lacking

an arguable basis in law or fact is one “based on an indisputably

meritless legal theory or a fanciful factual allegation.” Hodges, 234

Ill. 2d at 16. A claim completely contradicted by the record is an

example of an indisputably meritless legal theory. Hodges, 234 Ill. 2d

at 16. Fanciful factual allegations include those that are fantastic or

delusional. Hodges, 234 Ill. 2d at 17.

Petitioner’s claim of ineffective assistance of counsel is reviewed

under the test established in Strickland v. Washington, 466 U.S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The petitioner must show

counsel’s performance was deficient and that prejudice resulted from

the deficient performance. People v. Houston, 226 Ill. 2d 135, 143

(2007), citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct.

2052. A postconviction petition alleging ineffective assistance of

counsel may not be dismissed at the first stage of the proceedings if:

(1) counsel’s performance arguably fell below an objective standard

of reasonableness; and (2) the petitioner was arguably prejudiced as

a result. Hodges, 234 Ill. 2d at 17.

We first consider whether the allegations in petitioner’s

postconviction petition set forth an arguable basis in fact for his

constitutional claim. Petitioner alleged his constitutional right to

effective assistance of counsel was violated because his attorney

failed to request a fitness hearing. In support of his claim, petitioner

alleged he informed counsel that he was taking psychotropic

medication before and after his arrest. The medication was used to

treat his bipolar disorder and depression. Counsel was also informed

that petitioner previously attempted suicide. Petitioner alleged his

offense in this case was an attempted “suicide by police.” Petitioner

further alleged he was taking “very heavy” psychotropic medication

during his trial and did not understand the trial proceedings.

Petitioner attached medical records and affidavits supporting his

factual allegations. The medical records documented petitioner’s

bipolar disorder and his prescribed medications. In their affidavits,

petitioner’s mother and aunt attested trial counsel was informed

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petitioner was taking medication for his bipolar disorder and that

petitioner had attempted suicide on several occasions. The medical

records and affidavits, therefore, corroborate the allegations in the

petition.

We conclude that petitioner’s postconviction allegations cannot

be characterized as fantastic or delusional. In fact, the trial testimony

describing petitioner’s offense lends credibility to his allegations on

his mental illness and history of suicide attempts. The petition sets

forth sufficient facts to assert a claim that is arguably constitutional.

Accordingly, we conclude the petition cannot be deemed frivolous or

patently without merit for lack of an arguable factual basis.

Next, we must determine whether the petition is based on an

indisputably meritless legal theory. As noted, petitioner claims his

attorney was ineffective for failing to request a fitness hearing.

Due process bars the prosecution of an unfit defendant. People v.

Hanson, 212 Ill. 2d 212, 216 (2004). A defendant is unfit to stand

trial if, due to a mental or physical condition, he or she is unable to

understand the nature and purpose of the proceedings or to assist in

the defense. 725 ILCS 5/104–10 (West 2006). The trial court must

order a fitness hearing if a bona fide doubt is raised of the defendant’s

fitness. 725 ILCS 5/104–11(a) (West 2006). A number of factors may

be considered in assessing whether a bona fide doubt of fitness is

raised, including a defendant’s irrational behavior, demeanor at trial,

any prior medical opinion on the defendant’s competence, and any

representations by defense counsel on the defendant’s competence.

People v. Eddmonds, 143 Ill. 2d 501, 518 (1991). No fixed or

immutable sign, however, invariably indicates the need for further

inquiry on a defendant’s fitness. Eddmonds, 143 Ill. 2d at 518. Rather,

the question is often a difficult one implicating a wide range of

manifestations and subtle nuances. Eddmonds, 143 Ill. 2d at 518.

The allegations of the petition and the attached affidavits establish

that trial counsel knew petitioner was taking psychotropic medication

to treat bipolar disorder and had attempted suicide on several prior

occasions. The offense in this case was an attempted “suicide by

police.” Petitioner further alleged he did not understand the trial

proceedings due to the psychotropic medication he was taking during

his trial.

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The State argues petitioner’s allegations do not raise a bona fide

doubt of his fitness to stand trial. The State asserts petitioner’s mental

illness, use of psychotropic medication, and history of suicide

attempts, each standing alone, do not create a bona fide doubt of his

fitness. Citing People v. Mitchell, 189 Ill. 2d 312 (2000), the State

observes the use of psychotropic medication by itself does not raise

a bona fide doubt of a defendant’s fitness.

In Mitchell, this court held administration of psychotropic

medication is not equivalent to a bona fide doubt of a defendant’s

fitness. Mitchell, 189 Ill. 2d at 331. In this case, however, petitioner

alleged much more than ingestion of psychotropic medication. He

alleged additional facts on his history of suicide attempts, the “suicide

by police” nature of his offense, and his inability to understand the

trial proceedings. Those facts cannot each be viewed in isolation. This

court previously rejected a similar argument, asserting the State’s

attempt to challenge a defendant’s individual suggestions of unfitness

“as if each occurred in a vacuum, cannot be countenanced.” People

v. Sandham, 174 Ill. 2d 379, 387-88 (1996). Instead, the impact of the

individual events and testimony must be considered as a whole.

Sandham, 174 Ill. 2d at 388. Accordingly, the State’s attempt to view

each allegation of unfitness individually must be rejected.

The State also argues the petition is insufficient because it does

not allege petitioner informed trial counsel that his medication

affected his ability to understand the proceedings. The State contends

counsel could not be deficient when he did not know that

information. Further, petitioner failed to plead he was prejudiced by

the alleged deficient representation because he did not assert that he

would have been found unfit if counsel had raised the issue.

In Hodges, the State raised a similar argument, contending a pro

se petitioner did not expressly assert that his factual allegations

supported a theory of second degree murder. Hodges, 234 Ill. 2d at

21. The State contended the petitioner chose to focus only on self-

defense and he should be bound by that choice. Hodges, 234 Ill. 2d

at 21. We rejected the State’s strict reading of the postconviction

petition as inconsistent with the liberal construction standards for

reviewing pro se petitions at the first stage of the proceedings.

Hodges, 234 Ill. 2d at 21. We held the issue of whether the petition

included allegations on second degree murder was the type of

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borderline question that should be answered in the petitioner’s favor

under a liberal construction. Hodges, 234 Ill. 2d at 21.

We have consistently held that to survive summary dismissal, a

postconviction petition need present only a limited amount of detail

and is not required to set forth a constitutional claim in its entirety.

Edwards, 197 Ill. 2d at 244. Thus, a pro se petitioner is not required

to allege facts supporting all elements of a constitutional claim to

survive summary dismissal. Edwards, 197 Ill. 2d at 244-45. The

State’s contentions that petitioner did not specifically plead certain

facts on deficient representation and prejudice are inconsistent with

the standards applicable to first-stage postconviction proceedings.

Petitioner was not required to plead the specific facts identified by the

State as long as his petition sets forth the gist of a constitutional

claim.

Finally, the State contends the record contradicts any suggestion

that petitioner was unfit to stand trial. The State notes defense counsel

informed the trial court at the sentencing hearing that petitioner

“seemed fine” and counsel “had no problem communicating with

him.” The trial court asserted petitioner’s conduct and appearance did

not indicate a bona fide doubt of his fitness. The State contends

petitioner’s statement at sentencing demonstrates he understood the

trial proceedings. The State also observes petitioner answered

appropriately when questioned on waiving a jury trial and his right to

testify.

A legal theory is indisputably meritless if it is completely

contradicted by the record. Hodges, 234 Ill. 2d at 16. All well-pleaded

facts must be taken as true unless “positively rebutted” by the trial

record. People v. Coleman, 183 Ill. 2d 366, 385 (1998).

Contrary to the State’s argument, petitioner’s legal theory is not

completely contradicted by the record in this case. Defense counsel’s

statements at sentencing about petitioner’s condition are called into

question by petitioner’s allegations and supporting affidavits asserting

counsel lied to the court when he stated he did not know petitioner

was taking psychotropic medication. Defense counsel’s statements

are also undermined by petitioner’s allegations that counsel spent

only a few minutes with him before each hearing and was too

distracted by his father’s death to devote adequate attention to

petitioner’s defense. Further, counsel’s statements at sentencing do

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not positively rebut petitioner’s allegations on his mental illness, his

suicide attempts, or that his psychotropic medication prevented him

from understanding the trial proceedings. Thus, petitioner’s legal

theory is not completely contradicted by defense counsel’s statements

at sentencing.

The trial court’s statement at sentencing that petitioner’s conduct

and appearance did not show a bona fide doubt of his fitness is a

relevant consideration, but it is not determinative of petitioner’s

fitness to stand trial. The observation does not positively rebut any of

petitioner’s allegations on his mental illness, psychotropic

medications, suicide attempts, or failure to understand the trial

proceedings. The trial court’s observation, therefore, does not render

petitioner’s legal theory indisputably meritless.

Additionally, petitioner’s statement at sentencing is of limited

significance because it was made more than one month after the trial.

In his sentencing statement, petitioner asserted he felt like he wanted

to die as recently as the prior hearing. Thus, any indication that

petitioner was lucid in making the statement at sentencing or

understood the trial proceedings at that time does not necessarily

establish his condition at the time of trial. The statement does not

positively rebut any of petitioner’s allegations tending to indicate a

bona fide doubt of his fitness. In particular, the statement does not

contradict petitioner’s allegation that his psychotropic medication

prevented him from understanding the trial proceedings.

Petitioner’s waivers of his right to a jury trial and his right to

testify were essentially brief exchanges with the trial court where

petitioner asserted he understood the trial court’s admonitions. Those

brief exchanges do not positively rebut any of petitioner’s allegations

in his postconviction petition. Additionally, they do not conclusively

demonstrate an ability to understand the proceedings or assist in the

defense.

In sum, we conclude petitioner’s legal theory is not completely

contradicted by the record. At most, the record creates a factual

dispute on whether there was a bona fide doubt of petitioner’s fitness.

Petitioner’s claim of ineffective assistance of counsel for failure to

request a fitness hearing is arguably supported by the allegations in

his petition and supporting affidavits. The petition and supporting

affidavits alleged counsel knew petitioner was taking psychotropic

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medication to treat bipolar disorder and that he had attempted suicide

on several prior occasions. Petitioner further alleged his psychotropic

medication caused an inability to understand the trial proceedings.

Those allegations and the nature of this offense at least arguably raise

a bona fide doubt of petitioner’s ability to understand the nature and

purpose of the proceedings and assist in his defense. We, therefore,

conclude counsel’s failure to request a fitness hearing arguably fell

below an objective standard of reasonableness and prejudiced

petitioner.

In finding the petition subject to summary dismissal, the dissent

fails to apply the standards applicable to first-stage postconviction

proceedings. The dissent initially acknowledges a postconviction

petition is subject to summary dismissal at the first stage if it “ ‘has

no arguable basis either in law or in fact’ ” (slip op. at 16 (Garman,

J., dissenting, joined by Thomas and Karmeier, JJ.), quoting Hodges,

234 Ill. 2d at 16), but the dissent does not apply that standard to this

case. Instead, citing People v. Easley, 192 Ill. 2d 307, 319 (2000), the

dissent claims a pro se petitioner must allege “facts that existed at the

time of his trial that, if known to the trial court at that time, would

have caused the trial court to find a bona fide doubt of his ability to

understand the nature and purpose of the proceedings and to assist in

his defense.” (Emphasis added.) Slip op. at 20 (Garman, J.,

dissenting, joined by Thomas and Karmeier, JJ.). Significantly,

Easley is a capital case. Thus, the petitioner in Easley was required to

carry the second-stage burden of establishing a substantial showing

of a constitutional deprivation. Easley, 192 Ill. 2d at 316; see also

Hodges, 234 Ill. 2d at 11 n.3 (second-stage postconviction

proceedings involve inquiry into whether petition and accompanying

documentation “make a substantial showing of a constitutional

violation”). The dissent, therefore, requires petitioner to allege more

than an arguable basis in law and fact.

The dissent’s application of an incorrect standard to this first-

stage dismissal appears to stem from its reliance on numerous capital

cases. The dissent acknowledges those cases “can be distinguished in

one important respect” because they are all capital cases where the

petitioner likely had assistance of counsel in preparing the petition.

Slip op. at 42 (Garman, J., dissenting, joined by Thomas and

Karmeier, JJ.), citing 725 ILCS 5/122–2.1(a) (West 2006). In addition

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to being distinguishable on the basis acknowledged by the dissent, the

capital cases cited are, more importantly, inapposite because they

involve application of an entirely different standard for dismissal.

Postconviction proceedings in capital cases are not subject to the

summary dismissal procedure applicable to non-capital cases. 725

ILCS 5/122–2.1(a) (West 2006). Rather, after appointment of counsel

is addressed, capital cases are automatically docketed for further

proceedings. 725 ILCS 5/122–2.1(a), (b) (West 2006); People v.

Williams, 209 Ill. 2d 227, 233 (2004). If the State files a motion to

dismiss the petition, the trial court must consider whether the

petition’s allegations establish a substantial showing of a

constitutional violation. Williams, 209 Ill. 2d at 233. Thus, capital

cases do not involve application of the minimal first-stage standard

requiring only an arguable basis in law and fact.

The dissent’s analysis is also inconsistent with the standards for

reviewing first-stage dismissals in another important way. At the

summary dismissal stage, a petitioner’s allegations must be taken as

true and liberally construed. See People v. Brooks, 233 Ill. 2d 146,

153-54 (2009). The dissent, nevertheless, attempts to narrow

petitioner’s allegations on his fitness by asserting they are directed at

other claims in his petition or are conclusory because they “lack

specific factual content.” Slip op. at 23 (Garman, J., dissenting, joined

by Thomas and Karmeier, JJ.). The dissent would require petitioner

to support his allegations with specific examples of his inability to

comprehend the proceedings. Slip op. at 23 (Garman, J., dissenting,

joined by Thomas and Karmeier, JJ.). The dissent, therefore, fails to

accept as true and construe liberally the allegations of the pro se

petition as required at the first stage of postconviction proceedings.

We further note that the dissent compares this case to People v.

Swamynathan, 385 Ill. App. 3d 434 (2008), and this court recently

affirmed the appellate court’s judgment in that case. In the appeal to

this court, however, no issue was raised on the sufficiency of the

petition’s allegations to survive summary dismissal. Rather, our

decision in Swamynathan only considered the legal issue of when the

90-day summary dismissal period begins to run in cases where a

pleading is recharacterized as a postconviction petition. See People

v. Swamynathan, No. 107441, slip op. at 7 (January 22, 2010). This

court did not review the appellate court’s determination that the

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allegations of the petition were frivolous and patently without merit

because we were not called upon to consider that portion of the

appellate court’s decision. See Swamynathan, No. 107441 (January

22, 2010).

Overall, the dissent fails to review this case using the standards

applicable to summary dismissals. As in Hodges, the dissent’s

analysis is more appropriate to second-stage postconviction

proceedings. See Hodges, 234 Ill. 2d at 22. Based on the specific facts

of this case, we conclude petitioner’s postconviction petition has an

arguable basis in fact and in law. Accordingly, the trial court erred in

summarily dismissing the petition as frivolous and patently without

merit at the first stage of the proceedings, and the appellate court

erred in affirming the dismissal.

Our decision only entitles petitioner to advance to the second

stage of the proceedings where he may be appointed counsel and

submit an amended petition. See 725 ILCS 5/122–4, 122–5 (West

2006). We do not express an opinion on whether petitioner will be

able to meet the second-stage standard and proceed to an evidentiary

hearing on his amended petition. See Edwards, 197 Ill. 2d at 246-47

(decision on whether petitioner has established a substantial showing

of a constitutional violation is inappropriate at the summary dismissal

stage of postconviction proceedings).

Finally, in its appeal, the State argues the appellate court erred in

vacating the assessment of fees and court costs after concluding the

petition was properly dismissed as frivolous and patently without

merit. According to the State, the standard for assessing fees and

costs under section 22–105 of the Code is the same as the standard for

summary dismissal of a postconviction petition. Accordingly, section

22–105 requires assessment of fees and court costs when, as here, a

postconviction petition is properly dismissed as frivolous.

Petitioner responds that this court need not address the State’s

claim because his petition was improperly dismissed as frivolous and

patently without merit. Thus, he was not subject to assessment of fees

and court costs in any case. Alternatively, petitioner contends section

22–105 does not require assessment of fees and court costs every time

a court dismisses a petition at the first stage of postconviction

proceedings.

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Section 22–105 provides for assessment of filing fees and actual

court costs when a prisoner files a pleading, including a

postconviction petition, and the court specifically finds it is frivolous.

735 ILCS 5/22–105(a) (West 2006). We have determined that the

postconviction petition here was improperly dismissed as frivolous

and patently without merit. Thus, there is no longer any basis for

assessing fees and court costs under section 22–105, and the

assessment must be vacated.

Having vacated the assessment, we need not consider the State’s

argument on whether section 22–105 requires assessment of fees and

court costs whenever a postconviction petition is summarily

dismissed. The construction of section 22–105 is no longer at issue

in this case because the fees and costs imposed under that section

have been vacated. Generally, reviewing courts will not render

advisory opinions or consider an issue when it will not affect the

result. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009), citing In re

Mary Ann P., 202 Ill. 2d 393, 401 (2002); Barth v. Reagan, 139 Ill.

2d 399, 419 (1990). Accordingly, we decline to consider the

construction of section 22–105 because that issue will not affect the

result in this case.

III. CONCLUSION

For the foregoing reasons, we reverse the part of the appellate

court’s judgment affirming the circuit court’s summary dismissal of

petitioner’s postconviction petition. We affirm the part of the

appellate court’s judgment vacating the assessment of fees and court

costs under section 22–105 of the Code. The cause is remanded to the

circuit court for second-stage postconviction proceedings.

Affirmed in part and reversed in part;

cause remanded.

JUSTICE GARMAN, dissenting:

The majority concludes that under the rule announced by this

court in People v. Hodges, 234 Ill. 2d 1 (2009), petitioner is entitled

-15-

to proceed to the next stage of postconviction review because his

legal theory is “not completely contradicted by the record.” Slip op.

at 11. In addition, the majority finds that the allegations in his

postconviction petition “and the nature of this offense at least

arguably raise a bona fide doubt of petitioner’s ability to understand

the nature and purpose of the proceedings and assist in his defense”

Slip op. at 12. By the “nature of this offense,” the majority refers to

petitioner’s alleged attempt to commit “suicide by police.” Slip op. at

9.

In my opinion, the majority has misapplied the rule of Hodges,

misread the record, and ignored established precedent. I, therefore,

dissent.

The Rule Adopted in Hodges

In Hodges, this court clarified the standard that a postconviction

petition must meet to avoid summary dismissal on the basis that it is

“frivolous” or “patently without merit” (725 ILCS 5/122–2.1(a)(2)

(West 2006)). These terms are not defined in the Post-Conviction

Hearing Act. We held in Hodges that these terms refer to a petition

that “has no arguable basis either in law or in fact.” Hodges, 234 Ill.

2d at 12.

In Hodges, we adopted the United State’s Supreme Court’s

language that defines a claim with no arguable basis in law as a claim

“ ‘based on an indisputably meritless legal theory.’ ” Hodges, 234 Ill.

2d at 13, quoting Neitzke v. Williams, 490 U.S. 319, 327-28, 104 L.

Ed. 2d 338, 348, 109 S. Ct. 1827, 1833 (1989). As an example of an

indisputably meritless legal theory, we mentioned “one which is

completely contradicted by the record.” Hodges, 234 Ill. 2d at 16,

citing People v. Robinson, 217 Ill. 2d 43 (2005).

The majority concludes that the legal theory asserted in petition

in this case was not “completely contradicted by the record,” quoting

these words numerous times as if this were the standard announced

in Hodges. It was not. In Hodges, we cited Robinson merely as one

example of a situation in which a postconviction petition was properly

dismissed because the petitioner’s legal theory was indisputably

meritless. Hodges, 234 Ill. 2d at 16-17. Robinson claimed that his

trial counsel had been ineffective for failing to raise a particular

-16-

hearsay objection. This court rejected this claim as meritless because

the record revealed that the statement would likely have been

admissible under the spontaneous declaration exception to the hearsay

rule. Robinson, 217 Ill. 2d at 62-63. Our opinion in Robinson did not

use the phrase “completely contradicted by the record.”

However, in Hodges, we characterized Robinson as a case in

which the legal theory advanced by the petitioner was indisputably

meritless because it was “completely contradicted by the record.” We

did not, however, state that “complete” contradiction is the sine qua

non of a meritless legal theory. For example, we analogized a

frivolous postconviction petition to an appeal that is frivolous

because it is “ ‘not warranted by existing law’ or good-faith argument

for ‘modification *** of existing law.’ ” Hodges, 234 Ill. 2d at 12,

quoting 155 Ill. 2d R. 375(b).

Thus, a claim raising a question of law that is already well settled

by decision of this court or the United States Supreme Court is

another example of an indisputably meritless legal theory. For

example, a postconviction petition claiming that the petitioner was

entitled to have the rule of Apprendi v. New Jersey, 530 U.S. 466, 147

L. Ed. 2d 435, 120 S. Ct. 2348 (2000), applied retroactively to his

case is indisputably meritless if his direct appeal was exhausted prior

to the issuance of the Apprendi decision. See People v. De La Paz,

204 Ill. 2d 426 (2003). Under the rule of Hodges, summary dismissal

of such a petition would be proper.

The partial dissent in Hodges took the position that the

petitioner’s legal theory, that is, his claim of imperfect self-defense,

was frivolous and patently without merit because the undisputed facts

of record completely contradicted it. Thus, the partial dissent

employed “complete contradiction” in the manner intended by this

court–as one possible basis for finding the legal theory asserted in a

postconviction petition to be indisputably meritless. The majority in

the present case elevates this one possible basis to the status of an

absolute requirement.

In sum, the majority’s focus on the question of complete

contradiction obscures our holding in Hodges. As a result of this

misplaced focus, the majority does not fully address the standard that

we actually adopted in Hodges–whether the petition is frivolous or

-17-

completely without merit because it lacks either an arguable basis in

law or in fact.

I agree with the majority that petitioner’s claim has an arguable

basis in law. Slip op. at 11. It is well established that due process is

violated if, once a bona fide doubt of fitness has been raised, a

hearing is not held to determine whether the defendant is unable to

understand the nature and purpose of the proceeding or to assist in his

defense. People v. Eddmonds, 143 Ill. 2d 501, 512 (1991).

However, even if a petitioner asserts a recognized legal theory

that is arguably applicable in his case, a petition may also be

dismissed at the first stage if the claims therein have no arguable basis

in fact. Hodges, 234 Ill. 2d at 17. In Hodges, we adopted the Supreme

Court’s definition of such claims as those “ ‘whose factual

contentions are clearly baseless.’ ” Hodges, 234 Ill. 2d at 13, quoting

Neitzke, 490 U.S. at 327-28, 104 L. Ed. 2d at 348, 109 S. Ct. at 1833.

Baseless factual claims include those that are “ ‘fantastic or

delusional’ ” (Hodges, 234 Ill. 2d at 13, quoting Neitzke, 490 U.S. at

327-28, 104 L. Ed. 2d at 348, 109 S. Ct. at 1833), but not all baseless

factual claims are necessarily delusional. A factual claim may be

baseless where the record belies the claim made in the petition.

People v. Torres, 228 Ill. 2d 382, 394 (2008) (“this court has

consistently upheld the dismissal of a postconviction petition when

the allegations are contradicted by the record from the original trial

proceedings”). See also 725 ILCS 5/122–2.1(c) (West 2006) (“In

considering a petition pursuant to this Section, the court may examine

the court file of the proceeding in which the petitioner was convicted,

any action taken by an appellate court in such proceeding and any

transcripts of such proceeding”).

In addition, our holding in Hodges did not lower the previously

existing standard for first-stage dismissal or expressly or impliedly

overrule the large body of precedent dealing with claims that trial

counsel was ineffective for failing to request a fitness hearing.

Based on these precedents and my review of the entire record, I

conclude that petitioner’s claim of ineffective assistance of counsel

is patently without merit. The factual allegations in the petition, taken

as true, are clearly baseless because they do not raise a bona fide

doubt of his fitness to stand trial when viewed in light of the record

as a whole.

-18-

Ineffective Assistance of Counsel

The majority correctly rejects the State’s contention that dismissal

was proper because petitioner did not specifically plead facts in

support of the deficient representation and prejudice prongs of the

Strickland test. Slip op. at 9. As a pro se petitioner, he is not required

to cite to legal authority and, thus, cannot be expected to categorize

his factual assertions as relating to a particular prong of a particular

test. Hodges, 234 Ill. 2d at 21. However, to survive summary

dismissal, he is required set forth the gist of a constitutional claim.

This means that he must set forth some factual basis for his

claim–some facts that would, if true, support a finding that counsel’s

performance was deficient as well as some facts that would, if true,

support a finding of prejudice.

The majority does not separately consider those allegations in the

petition that relate to counsel’s performance and those that relate to

prejudice.

Review of the petition reveals several allegations relating to

counsel’s performance in general. For example, petitioner alleges that

counsel spent very little time with him, made false assurances about

his likelihood of acquittal, failed to contact potential defense

witnesses, and failed to properly cross-examine witnesses. Only two

allegations regarding counsel’s performance are arguably relevant to

the question of whether his performance was deficient for failing to

request a fitness hearing. First, petitioner alleges that counsel knew

that he was taking three psychotropic medications both before and

after his arrest and that petitioner had attempted suicide prior to his

arrest and on the day of his arrest. Second, petitioner also alleges that

counsel lied when he told the court at the sentencing hearing that he

was unaware petitioner was taking psychotropic medication.

Assuming, argued, that these allegations are sufficient, if true, to

establish that counsel’s performance was deficient, petitioner must

still allege sufficient facts to create an arguable question of prejudice.

Hodges, 234 Ill. 2d at 17. A question is arguable if it is “open to

argument, dispute, or question.” Webster’s Third New International

Dictionary 116 (1993).

To meet the prejudice prong of the Strickland test in a

postconviction claim of ineffective assistance of counsel for failure

to obtain a fitness hearing, the petitioner:

-19-

“must demonstrate that facts existed at the time of his trial

which raised a bona fide doubt of his ability to understand the

nature and purpose of the proceedings and to assist in his

defense. The petitioner is entitled to post-conviction relief on

his ineffective-assistance claim only if he shows that the trial

court would have found a bona fide doubt of his fitness and

ordered a fitness hearing if it had been informed of the

evidence raised in his post-conviction petition.” Eddmonds,

143 Ill. 2d at 512-13.

Further, the petitioner bears “the burden of proving that, at the

time of trial, there were facts in existence which raised a real,

substantial and legitimate doubt as to his mental capacity to

meaningfully participate in his defense and cooperate with counsel.

The test is an objective one.” (Emphasis added.) Eddmonds, 143 Ill.

2d at 518. Factors that are relevant to this inquiry include: the

petitioner’s irrational behavior and his demeanor at trial, any prior

medical opinion on his competence to stand trial; and any

representations by defense counsel on the defendant’s competence.

Eddmonds, 143 Ill. 2d at 518.

Eddmonds, which is cited by the majority (slip op. at 8) for this

formulation of several relevant factors, reached this court in a

different procedural posture from the present case. Eddmonds was a

capital case in which the trial court granted postconviction relief and

the State brought the appeal to this court. The quoted language refers

to the petitioner’s burden of proof at the hearing stage of

postconviction proceedings.

Nevertheless, this language from Eddmonds reveals what a

petitioner must allege in his postconviction petition regarding the

prejudice prong of the Strickland test to create an arguable question

of fact. He must allege facts that existed at the time of his trial that,

if known to the trial court at that time, would have caused the trial

court to find a bona fide doubt of his ability to understand the nature

and purpose of the proceedings and to assist in his defense. People v.

Easley, 192 Ill. 2d 307, 319 (2000) (“critical inquiry” at first stage of

postconviction proceedings is whether the allegations in the petition

raise a bona fide doubt of petitioner’s fitness at the time of trial). If he

meets this requirement, dismissal is improper and he is entitled to

have his petition docketed for further consideration (725 ILCS

-20-

5/122–2.1(b) (West 2006)) and, if he is indigent, to have counsel

appointed to assist him (725 ILCS 5/122–4 (West 2006)).1

In addition, in considering whether the petition alleges facts

sufficient to state the gist of a constitutional claim, “the court may

examine the court file of the proceeding in which the petitioner was

convicted, any action taken by an appellate court in such proceeding

and any transcripts of such proceeding.” 725 ILCS 5/122–2.1(c)

(West 2006). The allegations made in the postconviction petition

must also be considered in light of the facts known to the trial court

at the time. See, e.g., People v. Moore, 189 Ill. 2d 521 (2000)

(affirming dismissal of postconviction petition where the claim raised

in the petition was belied by the trial record). The critical question,

then, is whether allegations in postconviction petition, taken as true,

but viewed in light of the record, sufficiently allege prejudice to

preclude summary dismissal.

1

The majority objects to the citation to Easley, a capital case, as a

source of the applicable rule for the circuit court’s consideration of a

postconviction claim of unfitness to stand trial. Slip op. at 12. The majority,

however, cites Eddmonds, another capital case, for the rules applicable to

the same issue. Slip op. at 8.

The majority goes on to assert that this dissent would require a

postconviction petitioner to “allege more than an arguable basis in law and

fact.” What the majority overlooks is the existence of an arguable basis in

fact is not determined in a vacuum. The factual basis must be examined in

light of the legal claim being asserted. In this case, petitioner argues that he

was entitled to a fitness determination. His argument has merit only if it is

open to dispute that the facts he now alleges would have entitled him to a

fitness hearing had they been known to the trial court at the time of his trial.

See, e.g., People v. Alberts, 383 Ill. App. 3d 374, 378 (2008) (in a

noncapital case, when postconviction claiming that petitioner was unfit to

stand trial is summarily dismissed, “critical inquiry” on appeal is whether

the facts presented in defendant’s postconviction petition would have raised

a bona fide doubt of his fitness to stand trial had the trial court been aware

of their existence).

-21-

The Postconviction Petition and the Record

The postconviction petition, which contains 22 numbered claims

in 26 handwritten pages, was accompanied by 18 affidavits and

copies of portions of petitioner’s medical records. The bulk of the

petition involves allegations that various witnesses lied at his trial,

that he lacked the intent to commit murder, or that the State pursued

his prosecution to prevent him from filing a lawsuit against the officer

who shot him. Only three paragraphs arguably relate to the question

of his fitness to stand trial.

First, petitioner states that he was not given a psychiatric

evaluation and that an evaluation would have shown his “state of

mind at the time of [his] arrest and at the time of trial.”

Second, he states several times that he “wanted to die on the day

of his arrest and wanted the police to kill him and when he was not

kill[ed] by the police he still wanted to die.” He describes “fighting

off” the paramedics and refusing treatment. He also states that he had

“tried to kill himself before” and “was on psych medication” before

his arrest.

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

“Now Brown was on very heavy Psych Medication at the time

of Brown trial and Brown didn’t know exactly what was

happening at Brown trial and didn’t understand everything at

his trial. Now Brown had to stop taking some of his Psych

Medication his Trazodone Medication to write and explain

these event in this Document clearly so Brown can understand

what Brown was writing to the best of his ability and Brown

know and believe’s in his heart and has proven that he didn’t

want to hurt or kill anyone but himself by Suicide by Police

and know that Brown is not Guilty of first degree Murder.

And Brown has proven that the evidence in this Document

would have changed the outcome of the trial. Now if you need

to find out more you can ask Brown Mother Virginia

Guerrero and Gloria Flores and Patricia Romas they know

that these things Brown Say’s are true. Now every thing

Brown has say in this Document is what Brown feel’s and

knows is the truth.”

-22-

Six of the affidavits were made by the petitioner, only one of

which relates to his fitness to stand trial. Petitioner avers that “before

my arrest I was taking Zoloft 50, Seroquil 400, Sinequan 100 and

because of the very heavy psych medication I was taking made me

unable to understand everything and unable to think and answer

everything the way I should have and made me feel like I could not

talk or question anything at my trial. It just made me slow to react in

my mind.”

His mother’s affidavit states that prior to his arrest, petitioner was

diagnosed as bi-polar and was taking medication. She also states that

he had made several suicide attempts prior to his arrest. Petitioner’s

aunt’s affidavit repeats these claims. (Other allegations in these

affidavits relate to counsel’s performance, not to any possible

prejudice to petitioner.) Medical records document the diagnosis and

treatment with medication.

The overarching theme of the petition and accompanying

affidavits is that petitioner should not have been found guilty of

attempted murder because he did not intend to kill the officer. Rather,

he intended to provoke the police into killing him. He argues that the

way he was holding the knife shows lack of intent to kill, witnesses

against him lied, and the entire prosecution was a plot to keep him

from filing a lawsuit. The first two statements quoted above regarding

his “state of mind” and his wanting to die are part of this argument

regarding his lack of intent to commit murder and are not directed at

or relevant to his fitness for trial.

The only allegations that touch on his fitness to stand trial are the

statement in the petition that he did not know what was happening at

trial and the statement in his affidavit that he was “unable to

understand everything and unable to think and answer everything the

way I should have and made me feel like I could not talk or question

anything at my trial. It just made me slow to react in my mind.” These

few words constitute the entirety of his claim that a bona fide doubt

of his fitness to stand trial existed at the relevant time.

This statement is conclusory and belied by the trial record. The

majority, however, devotes only one paragraph to its discussion of the

factual allegations in the petition. Slip op. at 11-12. Without any

reference to the record, the majority finds that petitioner’s claim is

-23-

“arguably supported by the allegations in his petition and supporting

affidavits.” Slip op. at 11.

Conclusory Allegations

“Nonfactual and nonspecific assertions which merely amount to

conclusions are insufficient to require a hearing under the Post-

Conviction Hearing Act.” People v. Burt, 205 Ill. 28, 35-36 (2001);

People v. Coleman, 183 Ill. 2d 366, 381 (1998). See also Torres, 228

Ill. 2d at 394 (reviewing summary dismissal of postconviction

petition and noting that at this stage, nonfactual and nonspecific

assertions are insufficient to require further proceedings).

A pro se petitioner is required to provide only a limited amount

of detail in his postconviction petition. Torres, 228 Ill. 2d at 394.

However, petitioner’s conclusory allegations that he “didn’t know

exactly what was happening” at his trial, that he was “unable to

think,” and that he “could not talk or question anything” are

descriptive, but lack specific factual content. He does not provide a

single example of something that he failed to understand or that he

would have questioned. He “offers no evidence regarding his

demeanor or that he acted irrationally at trial” (People v. Johnson,

183 Ill. 2d 176, 194 (1998)), thus negating one of the three factors

identified in Eddmonds. There are absolutely no specific factual

allegations supporting his claim that he was actually confused during

his bench trial. Thus, he has failed to identify a question of fact

regarding his fitness to stand trial that is open to argument, dispute,

or question.

It is noteworthy that when petitioner briefly raised the question of

a fitness hearing at his sentencing hearing, it was because “some

people” had told him that because he was taking medication, he might

not have had to go to trial. He did not suggest at that time that the

medication affected him at trial, only that he would “find out” if he

could have avoided trial. Not until he prepared his postconviction

petition did he begin to assert that the medications affected him

adversely. Indeed, in his statement at sentencing, he credited his

improved his mood and outlook to the medications that he now says

made him “unable to think,” and he stated that he needed to continue

taking them to remain on an even keel.

-24-

After our decision in Hodges, the appellate court affirmed the

summary dismissal of a postconviction petition in People v. Miller,

393 Ill. App. 3d 629, 640 (2009), on the basis that the allegations of

ineffective assistance of counsel were “conclusory and as such

fail[ed] to give rise to a gist of a constitutional claim.” The

petitioner’s allegations were insufficient to meet the prejudice prong

of Strickland even at this first stage of review because they were

subjective and self-serving. Miller, 393 Ill. App. 3d at 634. The

appellate court also noted that Hodges, while redefining the term

“frivolous and patently without merit,” “did not overrule any of the

cases” cited in support of the opinion. Miller, 393 Ill. App. 3d at 630

n.1. See also People v. Swamynathan, 385 Ill. App. 3d 434, 441

(2008) (affirming summary dismissal of postconviction petition

where he offered “nothing but conclusory and unsupported assertions

that he was not ‘mentally competent to enter a plea’; he had not been

‘of sound mind’; and he had been suffering from ‘a complete mental

breakdown’ ”).

In the present case, as in Miller and Swamynathan, the

postconviction petitioner has made only conclusory assertions that he

was prejudiced by counsel’s allegedly deficient performance. An

arguable question of prejudice is not raised by the bare assertion that

he did not understand the proceedings and absent any specific claim

that he would have done anything differently at trial.

The majority states that a requirement of nonconclusory factual

content is inconsistent with the requirement that the allegations in a

postconviction petition be liberally construed. Slip op. at 13. It is not.

Liberal construction does not require that the court frame allegations

that might have been made to strengthen the claim asserted. Rather,

it requires that we accept the factual allegations as true, so long as

they “ ‘can be corroborated and are objective in nature’ ” Hodges, 234

Ill. 2d at 10, quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008).

Petitioner’s allegations that he wanted to die and that he was taking

psychotropic medications, taken as true, are not sufficient to raise an

arguable question regarding his fitness to stand trial. Similarly, his

conclusory allegations that he was “unable to understand everything”

and that he “was slow to react in [his] mind,” no matter how liberally

construed, are entirely subjective and lack any specific content. Thus,

-25-

petitioner has not raised an arguable question of fact regarding the

prejudice prong of the Strickland test.

The Trial Record

In addition to being conclusory, the petitioner’s claim of unfitness

to stand trial is belied by the record. See, e.g., Torres, 228 Ill. 2d at

396 (noting that postconviction petitioner abandoned his claim that

he had not understood the consequence of his guilty plea because the

claim was “belied by the record of the guilty-plea proceeding and is

therefore frivolous and patently without merit”).

Before the bench trial began, defense counsel presented a signed

jury waiver. The trial court asked petitioner if he had signed the

document. He answered, “Yes, sir.” The trial court asked if he

understood that he was giving up his right to a jury trial. He

responded, “Yes.” The trial court explained that if he had a jury trial,

the jurors would be selected by defense counsel and the prosecutor

and that the function of the jury would be to decide whether he was

proven guilty beyond a reasonable doubt. The court further explained

that he could not be found guilty unless all 12 jury members

concluded, after considering the evidence, that he was proven guilty

beyond a reasonable doubt. The court also noted that in a bench trial,

the same reasonable doubt standard would apply. The court then

asked petitioner if he understood the distinction between a bench trial

and a jury trial. He responded, “Yes, sir.” Finally, the court asked

petitioner if it was still his “decision and desire” to give up his right

to a jury trial. He answered, “Yes.”

Petitioner’s intent to commit “suicide by police” was brought out

on cross-examination of one of the State’s witnesses, Elei Romero,

who testified that when the police told petitioner to drop the object he

was holding, which they then believed was a screwdriver, he “said

only, ‘Come. Shoot me. Come. Shoot me.’ ” Defense counsel asked

this witness how far away petitioner was from the officer when he

said “Shoot me.” The witness stated that defendant was within about

15 feet of the officer.

In his argument on the motion for a verdict of not guilty at the

close of the State’s case, counsel noted that his client was “standing

in front of several armed officers with their guns drawn,” holding a

-26-

knife, saying “shoot me.” He argued that not only was petitioner not

“in a position to kill any of the officers,” suggesting he lacked the

intent to kill, but that his actions “guaranteed that he was going to get

shot and he knew it.”

After denial of the defense motion for a verdict of not guilty,

defense counsel informed the court that petitioner did not intend to

testify. The trial court explained the significance of the denial of the

defense motion. The trial court informed petitioner, “You have the

right to testify. You have the right to call witnesses. Do you have

witnesses? Are there witnesses that are available that you wanted

called in this case?” Petitioner responded:

“Your honor, I don’t have any witnesses. My witness was

Gloria Flores, but the State somehow obtained her on their

side now. I have letters and stuff that she wrote me. At the

beginning she was on my side.”

The following exchange then occurred:

“COURT: You understand you have a right to testify, too,

and you have a right to take the witness stand, to be sworn to

tell your side off the story under oath–

BROWN: Yes, sir.

COURT: To be examined by your lawyer as well as by the

State’s Attorneys and to tell whatever you can recall about

what occurred that evening. Do you understand that?

BROWN: Yes, sir.

COURT: And from what your lawyer has indicated,

you’ve told him you don’t wish to testify?

BROWN: Yes, sir.

COURT: Has anybody promised you anything to cause

you to make that decision?

BROWN: No, sir. No, sir.

COURT: Has anybody threatened you to make you not

want to testify?

BROWN: No, sir.”

In his final closing argument, defense counsel argued that if

petitioner “wanted anybody killed, it was himself” and that his intent

-27-

to provoke the officers to shoot him created a reasonable doubt of his

intent to kill.

The trial court found petitioner guilty, concluding that his

advancing towards the officer while brandishing a knife, along with

his announced intention to kill a police officer, provided a sufficient

basis to find him guilty beyond a reasonable doubt. Based on the

evidence and the arguments of defense counsel, the trial court was

aware that the defense theory of the case was that petitioner was

acting out of his own wish to die and that he lacked intent to kill the

police officer. Thus, the court was aware that the petitioner was

potentially suicidal. Clearly, the court found that a desire to commit

“suicide by police” and intent to kill a police officer are not mutually

exclusive states of mind. The court then ordered a presentence report.

Petitioner cooperated with the presentence investigation. He gave

a detailed social history. In addition to the three children he has with

Gloria Flores, he reported having four other children with two other

women. He stated that he dropped out of high school as a freshman

because his girlfriend was pregnant. He stated a goal of obtaining his

GED certificate. Petitioner described working as a security officer

prior to his arrest and a previous job as a forklift operator. He

reported taking pain medication for his gunshot wounds. He also

reported having been diagnosed with bipolar disorder and depression

in 2000 and taking daily doses of three prescribed psychotropic

medications. He described his drinking habits, including having

consumed beer and a bottle of tequila on the day of his arrest, and his

former drug addiction. He denied any former gang affiliation and

reported spending his free time playing chess and reading the Bible.

He specifically declined to comment on his version of the offense of

which he was convicted.

Nothing in this report suggests that petitioner was confused or

otherwise unable to fully participate in the interview process. The

interviewer did not report observing any deficit in attention,

communication, or understanding.

On January 31, 2004, a hearing was held on the defense motion

for a new trial. Again, defense counsel argued that the evidence did

not prove intent to kill. The motion was denied and the matter

proceeded to sentencing. The court ascertained that both attorneys

had read the presentence report and asked defense counsel if there

-28-

were any modifications or corrections to be made to the report.

Defense counsel said there were not.

After hearing from both attorneys on sentencing, the court asked

petitioner if he wanted to take the opportunity to speak on his own

behalf. He read a statement that he had written:

“To the judge or to whoever it may concern, on October

8th ’02, I got mad at Gloria and I left the house. She followed

me, yelling at me and me at her.

I got mad because I felt that she was cheating on me. We

had this problem for some time. At the time I felt very

depressed. I did not know why, but I felt like this a lot. I was

going through depression. I even tried to kill myself more

than one time.

So when I left, I went by my mother’s house and sat in my

van and drank about three-and-a-half six packs. And I was

feeling depressed.

When I came back home, I threw the keys on the floor at

the front door and left. Gloria picked them up and I went

back, knocked on the window and Gloria opened the door.

We were talking. Me, Gloria, and Maria.

I opened the bottle of tequila and drank it. At some time

I took a nap. I got up and me and Gloria started arguing again.

I got mad and threw a glass of tequila. Gloria ran upstairs,

and I told her to go ahead and call the police because I was

going to kill myself and the police.

Now, I went to the kitchen and grabbed some knives. I

think I even grabbed a fork too. And I went out into the–stood

in the doorway. Gloria’s sister came out her door upstairs, and

I told her I was going to kill myself and the police. And I

waited for the police.

Now, at the moment that Gloria ran upstairs, I

remembered that I had seen on the news about two to three

weeks ago that a man was shot and killed by police because

he had a big knife, a machete. He was waiving it like a crazy

man and the police killed him.

-29-

So I thought by me grabbing the knife, that the police will

kill me.

At around that–okay. Grabbing a small knife, I believe

waiving it around the police would kill me.

Now, I could have stabbed the police at any time, but I did

not. The police shot me in my leg, so I knew that they were

not going to kill me.

I tried to walk to my van that was on the corner at the

time. I was walking on the fence with my right hand on the

fence and I did not have the knife. The police shot me in my

back. When I fell on the floor and grabbed my side, I still

wanted to die. So when the paramedics came, I pushed them

away and when I was in the hospital, I still wanted to die. I

told the doctor to leave me alone. I was not going to sign

anything.

I did not want to kill anyone, and I did not plan to kill

anyone. And I did not plan to kill the police.

If I would have planned to kill anyone, I would have

grabbed my rifle that I had at the time. But I did not because

I did not plan to do anything that day. I just got mad and I

wanted to die.

Now, I did not do anything to hurt Gloria for her to call

the police and threw a glass. When she ran upstairs, I knew

that she was going to call the police. So I told her to go ahead

and I threw some furniture.

I was upset. I wanted to die that night or should I say that

morning. I was not thinking of the consequences. I just

wanted to die.

Now, since I came to Cook County jail, ten months ago,

I had two choices, one to join a gang or to open a bible. I

opened the bible. And I am–I made a friend Martin. He’s a

born again Christian, and he helped me a lot to get through

this time in jail.

Now I am a born again Christian, and I know I have a

reason to live. That is for my kids, all of them, and my

stepdaughter.

-30-

There are so many things I need to teach them, so they do

not do the same mistakes I have. And this is the first time I

have been in jail longer than a week and the experience was

good for me.

I am not drinking any more. I do not want to kill myself.

I want to live.

I take the medicine I need which I stopped taking in the

world.

I know that I need this medicine, so I do not feel

depressed. I have to deal with my problems and stop trying to

kill myself.

Now, I still have all the problems in the world. And I–and

a thousand more. But I have to deal with them, and I know

that I will not try to kill myself or act crazy with anyone or the

police in here or outside because I am taking my medication.

I know that I have to deal with my problems. And when I feel

bad or down, I open my bible to help me with my problems in

my life.

I am not the same person that I was before. Now since I

went to trial, some people have told me because I take

medication, psych medication that I was supposed to have a

psych evaluation and that I could not have gone to trial. I do

not know if this is true. I will find out. But I know that I am

not happy with the decision that happened on the last court

date.

I think my lawyer should have brought up all these things

about me.

Now I made a statement at the police–at the hospital to a

woman who told–I told her that I had–that I–that I–I told her

that I had a small knife that I pulled out of my pocket, and I

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

back.

And I got up and they shot me again. I did not have the

knife.

Now my lawyer did not bring up all these things of what

happened to the statement. All my lawyer did was promise

that I will go home.

-31-

Now my mother tells me that I’m looking at one to 20 for

something I did not do. Instead of taking the three years that

state’s attorney offered me that I wanted to, but my lawyer

told me that I was going home. There should be something I

could do about these things.

I can–I do not want to hurt anyone. I just wanted–went

about things the wrong way because I wanted to die that day.

Even on my last court date, I felt like I wanted to die. I

know I have to deal with this problem. I am sorry for my

mistake. I have been here ten months. I do not know how

much longer or if or when I get out. I know I need to do three

things.

One, I need my medication. And I have to take it every

day to get better, so I do not–so I could get better and get

through the day.

Two, get in some kind of inpatient or outpatient program

and never drink any kind of alcohol.

Three, find good church.

If you need to find out more, you can ask my mother, and

Gloria, the paramedics, the doctor, the woman that took my

statements, they know that these things I say are true.

Now everything I say in this letter is what I feel and know

is the truth. And I feel if you ask the police or Gloria if I could

have stabbed the police at any time, they will say yes. But I

did not stab or injure the police because I did not want to hurt

anyone.

I just wanted to–wanted the police to kill me. And if you

ask the police or Gloria if this is more than just an assault on

police because I pushed the officer’s gun, I will guess–I

guess–just scared them and they will say, yes.

Now, I got what I asked for because I wanted them to kill

me and shoot me and kill me.

Your honor, these are–I’ve been taking psych medication

since I came in here. These are proof and I was taking psych

medication before I came. This is from the world [referring to

documents].”

-32-

At this point, the trial court interrupted petitioner to ask if he had

anything to say in mitigation before sentencing. Defense counsel

informed the court that petitioner was mistaken about the existence

of a plea offer. The court then remarked that it was “more interested

in something else that now crops up for the first time”–the fact that

petitioner had been taking psychotropic medication.

Defense counsel stated that he had not been aware that his client

was taking medication. The court asked: “You had no reason to have

any bona fide doubt as to the defendant’s fitness to stand trial?”

Counsel responded that the petitioner “spoke very coherently to me,

seemed fine,” and that he “had no problem communicating with

him.” The trial court also questioned the prosecutor, who stated that

he had “no knowledge of it.”

The court then concluded:

“Nothing the court has observed in the conduct and

appearance of Mr. Brown over the months would indicate to

me that I would have any bona fide doubt as to his fitness.

So the fact that he was receiving psychotropic drugs, I

believe is of no consequence standing alone and of itself, and

the court will treat it as such.”

Viewing the record as a whole, there was no indication during

trial that the petitioner lacked understanding of the proceedings or

was unable to communicate with counsel or assist in his defense. Yet,

the majority dismisses petitioner’s waiver of his right to a jury trial

and his right to testify as “essentially brief exchanges with the trial

court” that “do not positively rebut” the allegations in his

postconviction petition and that “do not conclusively demonstrate an

ability to understand the proceedings or assist in the defense.” Slip

op. at 11.

This court has never required that the record “positively rebut” a

postconviction claim that a bona fide doubt existed of fitness or that

the record “conclusively demonstrate” fitness. The requirement is that

the petitioner allege facts which, if known to the trial court at the time

of trial, along with all other facts that the record demonstrates were

known to the trial court at that time, would have created a bona fide

doubt. Petitioner has alleged no facts that create an arguable question

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of fact on this point. He has made a bare assertion that he did not

understand the proceedings.

The majority does not mention the presentence report, which

describes an individual who is fully capable of communicating and of

understanding his situation. Indeed, he chose to reveal facts about his

education, his family, his work history, and his past drug and alcohol

use, but declined to discuss the crime itself. The record is clear that

the court was aware of the contents of the report, including

petitioner’s history of mental illness, at the onset of the sentencing

hearing, before petitioner raised the question of a fitness hearing.

I have quoted petitioner’s lengthy statement at his sentencing

hearing in its entirety because it clearly reveals a competent

individual, arguing to the court that he lacked the mental state

necessary to sustain a conviction of attempted murder. He focused on

his previous depression and desire to end his own life. The court,

however, had already considered and rejected this defense, finding

that petitioner’s repeated statements that he intended to kill police

officers who responded to the domestic violence call were sufficient

evidence of his state of mind and were not negated by his own

willingness to die in the attempt.

His statement regarding what he had been told by others suggests

that he believed, incorrectly, that the mere fact of his taking

medication might have enabled him to avoid trial. He did not claim

to have been confused during any of the pretrial proceedings or

during his bench trial. He did not say that he had not understood his

right to a jury trial or his right to choose whether to testify. He did not

claim that he had difficulty understanding what counsel told him or

communicating with counsel. In fact, he repeatedly stated that the

medication had improved his mental state and that he needed to

continue taking it.

The majority finds his detailed statement to be of

“limited significance because it was made more than one

month after the trial. Thus any indication that petitioner was

lucid in making the statement or understood the trial

proceedings at that time does not necessarily establish his

condition at the time of trial. In particular, the statement does

not contradict petitioner’s allegation that his psychotropic

-34-

medication prevented him from understanding the trial

proceedings.”

I disagree. The fact that he wrote and delivered this statement

stands in stark contrast to his new allegation of confusion, lack of

understanding, and inability to talk or question. The record reveals a

defendant who was fully capable of understanding the proceedings

and assisting in his own defense, and whose own attorney observed

no signs of unfitness. The trial court, on the record, stated that his

conduct and appearance did not raise a bona fide doubt of his fitness.

A review of the record reveals that none of the Eddmonds factors

were present at the time of trial. His demeanor at trial was

unremarkable. He did not engage in irrational behavior. There are no

prior medical opinions regarding his competence. Defense counsel,

on the record, stated that his client was cooperative and

communicative. The petition and accompanying documents do not

allege any new facts regarding these factors.

In similar circumstances, our appellate court has affirmed the

summary dismissal of claims of postconviction claims of ineffective

assistance of counsel on the basis that the claims were belied by the

record.

In Swamynathan, the petitioner’s claims were not only

conclusory, as noted above, they were “plainly refuted by the record,

which reflect[ed] that no bona fide doubt regarding defendant’s

fitness existed at the time he entered his guilty plea.” Swamynathan,

385 Ill. 2d at 441.

Similarly, in People v. Williams, 364 Ill. App. 3d 1017 (2006), the

petitioner claimed that he had been unfit to plead guilty because he

suffered from several forms of mental illness and had an extremely

low IQ. He stated in his accompanying affidavit that he had been

taking psychotropic medications during his incarceration and that at

the time he pleaded guilty he was not thinking rationally. Williams,

364 Ill. App. 3d at 1020. He argued that summary dismissal of his

petition was error because it raised a bona fide doubt of his fitness to

plead guilty. Williams, 364 Ill. App. 3d at 1023. Taking the factual

allegations as true, the appellate court rejected the claim because the

record of the guilty plea proceeding clearly showed that he

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understood the nature and purpose of the proceedings. Williams 364

Ill. App. 3d at 1025.

In the present case, taking the factual allegations in the petition as

true, the record nevertheless belies his claim of a bona fide doubt of

his ability to understand the nature and purpose of the proceedings

and assist in his defense. Slip op. at 12.

Application of Established Precedent

In Johnson, a capital case, the trial court dismissed the

postconviction petition without an evidentiary hearing. This court

affirmed. Johnson, 183 Ill. 2d at 184. The petition was accompanied

by a report prepared by a psychologist who evaluated Johnson after

his conviction. The doctor wrote that Johnson “was intellectually

incapable of understanding the admonitions of the trial court

regarding his waiver of jury for sentencing.” Johnson, 183 Ill. 2d at

192. Based on this assessment, Johnson argued that his intellectual

limitations rendered him unable to “ ‘understand the nature and object

of the proceedings against him, to consult with counsel, and to assist

in preparing his defense,’ ” thus rendering him unfit for trial.

Johnson, 183 Ill. 2d at 192-93, quoting Drope v. Missouri, 420 U.S.

162, 171, 43 L. Ed. 2d 103, 113, 95 S. Ct. 896, 903 (1975). After

noting that the “critical inquiry is whether the facts presented in

defendant’s post-conviction petition raised a bona fide doubt of his

fitness to stand trial” (Johnson, 183 Ill. 2d at 193), this court

concluded that Johnson failed to meet his burden of “showing that, at

the time of trial, there were facts in existence which raised a

substantial and legitimate doubt as to his mental capacity to cooperate

with counsel and meaningfully participate in his defense.” Johnson,

183 Ill. 2d at 193-94. Specifically, this court stated that he had offered

“no evidence regarding his demeanor or that he acted irrationally at

trial. In addition, there was no prior medical opinion on defendant’s

competence to stand trial.” Johnson, 183 Ill. 2d at 194. Thus, none of

the factors identified in Eddmonds as indicators of a bona fide doubt

were present. Further, the only new evidence offered was the

psychologist’s opinion that Johnson was incapable of understanding

the court’s admonitions because of his inability to comprehend

complex sentences. This court concluded that the “facts offered by

-36-

defendant fall short of raising a bona fide doubt of his fitness.”

Johnson, 183 Ill. 2d at 194.

In the present case, the only objective indicator of possible doubt

as to petitioner’s fitness is the fact that he was taking psychotropic

medication at the time of trial. This fact, standing alone, is

insufficient to create a bona fide doubt. People v. Mitchell, 189 Ill. 2d

312, 330 (2000). Like the defendant in Johnson, petitioner now

claims to have been unable to understand the proceedings at trial but,

like Johnson, he “offers no evidence regarding his demeanor at trial

or that he acted irrationally at trial” (Johnson, 183 Ill. 2d at 194) and

no prior medical opinion on his competence to stand trial.

In Mitchell, we again affirmed the dismissal of a postconviction

petition without an evidentiary hearing in a capital case. At the time

of his trial and sentencing, Mitchell had been taking two medications

to control his epilepsy. His petition alleged that the trial court had

been aware of his condition, which had existed since a head injury

when he was six years old, and that he was taking psychotropic

medications to control his seizures. Mitchell, 189 Ill. 2d at 323. The

petition was accompanied by an affidavit by a pharmacology

consultant, who listed the “probable side effects of the drugs as

‘sedation, hallucinations, dizziness, incoordination, depression,

emotional changes and behavioral deterioration, psychosis and

aggression.’ ” The affidavit also stated that the “ ‘combination of the

effects of both of these drugs can cloud the sensorium (alter the

ability to think clearly) and thus effect [sic] any individual’s ability

to make certain decisions.’ ” The consultant concluded that the

“ ‘overall sedative effect may have caused Mr. Mitchell to appear too

relaxed or too detached during court proceedings.’ ” Mitchell, 189 Ill.

2d at 323.

In addition, Mitchell’s petition included an affidavit from a

clinical psychologist, who tested him in prison and determined that

his “verbal IQ was 73, his performance IQ was 75, and his full scale

IQ was 73.” The psychologist also found that his “math skills were at

a fourth-grade level and that his reading and spelling skills were

below the third-grade level,” characterizing the defendant “as having

a severe language-based learning disability.” The psychologist stated

that the defendant’s “cognitive abilities were limited and that,

although defendant’s IQ scores showed that he was borderline

-37-

mentally retarded, his inability to read and his slowed

information-processing speed left him functioning more like someone

in the mildly to mild/moderately impaired range.” Mitchell, 189 Ill.

2d at 353-54.

This court found that the record belied any claim that he had not

understood the nature of the proceedings or was unable to assist in his

defense. Mitchell, 189 Ill. 2d at 334. Specifically, we noted:

“Defendant’s exchanges with the trial judge do not display

any confusion about the nature of the proceedings, and

defendant assisted in his defense by testifying in his own

behalf. Defendant testified to his whereabouts at the relevant

times, denied any involvement in the crime, and asserted that

his confession to the police was coerced. Defendant’s

testimony covered over 50 pages of the report of proceedings

and does not disclose any signs of confusion about the nature

or purpose of the proceedings. Similarly, defendant gave

extensive testimony in support of his motions to suppress

statements and evidence, and there is no indication that

defendant did not understand the nature or purpose of those

proceedings.” Mitchell, 189 Ill. 2d at 334-35.

We also noted that while a trial judge “cannot rely on trial

demeanor to dispense with a fitness hearing in the face of evidence of

a bona fide doubt of defendant’s fitness,” there was no evidence in

the record suggesting a bona fide doubt of fitness at the time of trial.

Mitchell, 189 Ill. 2d at 335.

Similarly, in the present case, petitioner’s exchanges with the trial

court do not display any confusion about the nature of the

proceedings. Although petitioner elected not to testify at his bench

trial, he presented a lengthy statement, which he had written himself,

at his sentencing hearing. The fact that the sentencing hearing was

held several months after the bench trial weighs little in light of the

fact that petitioner not only continued to take the psychotropic

medication at the time of his sentencing, he credited the medication

with an improvement in his mood and outlook. As in Mitchell, the

record in this case belies petitioner’s claim.

In addition, in Mitchell, even the presence of affidavits from a

pharmacologist and a clinical psychologist did not negate the trial

-38-

record, which demonstrated that the defendant “fully understood the

nature of the proceeding against him, and was able to cooperate in his

defense.” Mitchell, 189 Ill. 2d at 337. Petitioner in the present case

offers only affidavits from his mother and aunt, who state that prior

to his arrest, petitioner was diagnosed as bipolar and that he has made

several suicide attempts, and medical records documenting this

diagnosis.

In Easley, the postconviction petitioner claimed that he had asked

counsel to arrange for a physical examination and a brain scan

because he believed that something was wrong with his brain and he

experienced “a lot of headaches.” He stated that when he got angry or

upset, he would “blank out–my mind goes blank; my nerves jump and

I can’t think clearly.” Also, when he read or spoke, “he forgot

everything that he was reading or thinking.” Easley, 192 Ill. 2d at 320.

Counsel did arrange for a psychological evaluation, but Easley

refused to cooperate because he believed that the psychologist had

been sent by the State. Easley, 192 Ill. 2d at 319-20. This court

concluded that this “evidence does not help defendant” because

fitness “speaks only to a person’s ability to function within the

context of a trial. It does not refer to sanity or competence in other

areas. A defendant can be fit for trial although his or her mind may be

otherwise unsound.” Easley, 192 Ill. 2d at 320.

Easley also made “several irrational statements” during his trial,

including an outburst at a pretrial hearing. Easley, 192 Ill. 2d at 320.

Based on a colloquy between Easley and the trial judge, this court

concluded that he understood the nature of the proceeding. His hostile

conduct was not a sign of unfitness, but was based on “his belief that

the criminal justice system demeaned him.” Easley, 192 Ill. 2d at 321-

22.

Affidavits regarding postconviction psychological examinations

indicated that Easley “had long-standing mental problems at the time

of trial that affected his ability to understand written and oral

instructions. When under extreme stress, [he] suffered from thought

and personality disorder, paranoia, and episodic breaks with reality.”

Easley, 192 Ill. 2d at 322. This court noted that the “fact that a

defendant suffers from mental disturbances or requires psychiatric

treatment does not necessarily raise a bona fide doubt as to [his]

ability to understand the proceedings and to assist counsel in the

-39-

defense.” Easley, 192 Ill. 2d at 322. Then, taking his allegations as

true, this court concluded that his postconviction petition did not raise

a bona fide doubt of his fitness to stand trial and his claim of

ineffective assistance of counsel, therefore, failed. Easley, 192 Ill. 2d

at 323.

Compared to Easley, the quantum of evidence alleged by

petitioner in support of his claim is minuscule. He offers only his self-

serving statement that he did not understand what was going on at his

trial, which is belied by the record, and the statements of his mother

and aunt that he had a history of mental illness prior to his trial, that

he was suicidal at times, and that he was being treated with

psychotropic drugs. He offers no objective evidence, either in the

record or by means of affidavit, of the existence of facts that, if

known at the time of trial, would have raised a bona fide doubt of his

fitness.

In Burt, the petitioner was evaluated by a psychologist prior to

trial. The doctor found him fit and defense counsel stipulated to the

contents of the report. As a result, no fitness hearing was held.

Petitioner was taking psychotropic medications at that time and

counsel and the court were aware of this fact. Burt, 205 Ill. 2d at 33.

Against the advice of counsel, Burt subsequently changed his plea

from not guilty to guilty. He was convicted and sentenced to death.

Burt, 205 Ill. 2d at 33-34. In his postconviction petition, he asserted

that counsel was ineffective for failing to request a fitness hearing.

We affirmed the trial court’s dismissal of the petition without a

hearing.

His petition alleged that his decision to plead guilty was irrational

and “illustrated that his ‘will had become flattened’ and ‘his desire for

self-preservation disappeared.’ ” Burt, 205 Ill. 2d at 40. We found this

allegation contradicted by the record, which revealed that he willfully

rejected the advice of counsel and that he responded to the trial

court’s admonishments by stating that he wished to plead guilty. Burt,

205 Ill. 2d at 40. In addition, he clearly understood the consequences

of a guilty plea, because the trial court informed him of these

consequences and he stated that he “ ‘understood fully.’ ”

Burt also alleged that he had difficulty concentrating during court

proceedings and pointed to a defense request for a continuance

because he could not participate in jury selection as a result of his

-40-

medication and difficulty sleeping. The trial judge granted the

request. Later, when he attempted to withdraw his guilty plea, the

court observed that he “appeared to be alert in court and participated

in his defense.” Burt, 205 Ill. 2d at 42.

Finally, Burt offered an affidavit from one of his trial attorneys,

describing his “frequent mood swings,” his “belligerent or explosive

behavior,” and his threat to become violent in the courtroom. He

argued that this was evidence of a bona fide doubt of his fitness.

Based on our review of the record, we concluded that these things did

not affect his understanding of the proceedings or his ability to

participate in his own defense. Burt, 205 Ill. 2d at 43. Thus, he failed

to establish the prejudice prong of a claim of ineffective assistance of

counsel. Burt, 205 Ill. 2d at 44.

In the present case, defendant offers only his use of psychotropic

medication during trial and a bare assertion, without specific factual

allegations, that he did not understand the proceedings. If the

allegations in Burt, including the objectively verifiable fact that he

required a continuance as a result of the effects of his medication,

were insufficient to survive dismissal without a hearing, surely the

allegations in the present case are insufficient.

In People v. Harris, 206 Ill. 2d 293 (2002), the postconviction

petition included allegations that, at the time of trial, Harris suffered

from depression, dependent personality disorder, and organic brain

disorder. Harris, 206 Ill. 2d at 302. His petition was accompanied by

a report of a postconviction psychological assessment confirming

these diagnoses. Harris, 206 Ill. 2d at 303. Taking these allegations

as true, we stated that they did not necessarily establish that he was

unfit:

“In this case, the record clearly illustrates that defendant

understood the nature and purpose of the proceedings. On

several occasions, the court provided defendant with a

detailed explanation of the proceedings and informed

defendant of his rights during those proceedings. Following

these admonishments, defendant stated that he understood.

Furthermore, the record shows that defendant participated in

his own defense; communicated and conferred with his trial

counsel; expressed to the court his understanding of the

proceedings, including his decisions to litigate rather than

-41-

agree to a plea, waive his right to testify, and waive his right

to a jury at the sentencing hearing; and articulated a clear

statement in allocution during mitigation.” Harris, 206 Ill. 2d

at 305.

In the present case, despite his ingestion of psychotropic

medication and his subsequent allegation that he did not understand

the proceedings, petitioner also “expressed to the court his

understanding of the proceedings,” including his decisions to waive

his right to a jury and his right to testify. He also “articulated a clear

statement” at his sentencing hearing.

In People v. Johnson, 206 Ill. 2d 348 (2002), we affirmed the

dismissal of postconviction petition without evidentiary hearing

where the petitioner claimed both that the trial court had actual doubts

as to his fitness and failed to hold a fitness hearing and that certain

facts existed that would have raised a bona fide doubt of his fitness

had the trial court been aware of them at the time it accepted his

guilty plea. Facts known to the trial court included an apparent

suicide attempt at the time of his arrest that made the trial court

“attuned to the possibility that his mental state was less than stable.”

Johnson, 206 Ill. 2d at 365. New facts alleged in the petition included

his mother’s testimony at the sentencing hearing regarding his history

of mental illness and the report of the clinical psychologist, who

testified at the hearing on petitioner’s motion to withdraw his guilty

plea. Petitioner argued that the evidence developed after he pleaded

guilty, when considered in combination with the information known

to the trial court at the time, was sufficient to raise a bona fide doubt

of his fitness to stand trial or to enter a knowing and intelligent guilty

plea. Johnson, 206 Ill. 2d at 361.

We concluded that “no bona fide doubt as to petitioner’s fitness

would have existed at the time he pleaded guilty, even if the trial

court had been aware of the facts now available.” Johnson, 206 Ill. 2d

at 373. We gave great weight to the fact that the trial court

specifically inquired of defense counsel whether he had any concerns

about his client’s fitness and he replied that he did not. In addition,

the trial court made a record of its own observations of the defendant

in the courtroom setting and its opinion that he well understood what

the proceedings were about. Johnson, 206 Ill. 2d at 373.

-42-

In the present case, when the trial court became aware that

petitioner was taking psychotropic medication, it conducted a similar

inquiry and counsel responded that he had no concerns about his

client’s fitness. Similarly, the trial court made a record of its own

observations of petitioner in the courtroom setting, finding no

indication of unfitness. See also People v. Moore, 189 Ill. 2d 521, 536

(2000) (affirming dismissal of postconviction petition without

evidentiary hearing where defendant “exhibited rational and

competent behavior at trial *** engaged in colloquies with the trial

judge in which he was responsive and appropriately acknowledged

certain rights”); People v. Shum, 207 Ill. 2d 47 (2003) (affirming

dismissal of postconviction petition without evidentiary hearing;

petition accompanied by neuropsychiatrist’s report that petitioner

experienced auditory verbal memory retrieval problems as a result of

a brain injury, social worker’s report that petitioner had a family

history of mental illness including schizophrenia, and report of

psychiatrist that petitioner insisted on controlling his own case and

refused to cooperate with counsel; these facts, if known at the time of

trial would not have raised a bona fide doubt of fitness in light of fact

that petitioner filed pro se motions, waived certain rights, and spoke

clearly in allocution at sentencing).

In sum, petitioner in the present case knowingly and voluntarily

waived certain rights, speaking clearly to the court during

admonishments, and spoke clearly at his sentencing hearing. He

points to no objectively verifiable fact in existence at the time of his

trial, other than the mere fact of his taking psychotropic medication,

that might suggest he was unfit. Like the petitioners in each of these

cited cases, he has not made sufficient allegations, supported by

affidavit or other form of proof, to demonstrate that a bona fide doubt

of his fitness would have existed at the time of trial if the court had

been aware of the facts.

These cases can be distinguished in one important respect from

the present case. That is, each of these cases is a capital case in which

the petitioner likely had the assistance of counsel to prepare a

postconviction petition. 725 ILCS 5/122–2.1(a) (West 2006).

Petitioner in the present case filed a pro se postconviction petition. As

such, the standard of Hodges applies to his claim. Nevertheless, these

capital cases do summarize this court’s previous approach to using

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the record to assess postconviction claims of ineffective assistance of

counsel for failure to obtain a fitness hearing. If the records in these

cases belied postconviction claims of unfitness for trial, the record in

the present case surely belies petitioner’s claim.

Under the Hodges standard, the petitioner is not required to

include legal argument or citation to authority. People v. Edwards,

197 Ill. 2d 239, 244-45 (2001). However, he must still plead

sufficient facts to assert an arguably constitutional claim. Hodges,

234 Ill. 2d at 9. This means that he must plead sufficient facts to

create an arguable question of fact whether a bona fide doubt of his

fitness to stand trial existed at the time of his trial had the trial court

been aware of the facts now alleged.

This court has had few occasions to address the first-stage

dismissal of a pro se postconviction petition in a noncapital case.

However, in People v. Hanson, 212 Ill. 2d 212 (2004), a direct

appeal, we reviewed the defendant’s argument that his due process

rights were denied because he was not given a fitness hearing. The

defendant was convicted in a bench trial of aggravated battery and

resisting a peace officer. Defense counsel requested a fitness

evaluation, alleging in the motion that a bona fide doubt existed of his

client’s fitness to stand trial. Hanson, 212 Ill. 2d at 214-15. The court

ordered a psychiatric evaluation. The psychiatrist found the defendant

fit and counsel withdrew the motion. Hanson, 212 Ill. 2d at 215. One

issue on appeal was whether the trial court’s granting of the motion

“implicitly signaled” the court’s belief that there was a bona fide

doubt as to defendant’s fitness. Hanson, 212 Ill. 2d at 216. We

rejected the contention that the mere granting of a motion for a fitness

hearing necessarily establishes a bona fide doubt. Hanson, 212 Ill. 2d

at 218.

We then turned to the defendant’s claim that the record supported

a finding of bona fide doubt of his fitness to stand trial. We applied

the Eddmonds factors to conclude that no such doubt existed:

“After reviewing the transcript of the pretrial proceedings, we

cannot say that, under the first factor, defendant’s conduct

supports a finding of bona fide doubt. Defendant’s demeanor

and behavior during these proceedings were interested,

rational, and appropriate. While a cold record may be an

imperfect means of evaluating defendant’s behavior and

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demeanor, we note that the trial court had the opportunity to

observe defendant’s conduct and demeanor firsthand during

the proceedings, yet expressed absolutely no concerns about

defendant’s ability to understand the nature of the proceedings

or to work with counsel.” Hanson, 212 Ill. 2d at 223-24.

As to the second Eddmonds factor, we stated:

“[T]he motion for psychological examination filed by

defense counsel asserted that ‘[c]ounsel feels that there exists

a bona fide doubt as to whether the Defendant is able to

understand the nature and purpose of the proceedings against

him and assisting [sic] in his defense.’ This court stated in

Eddmonds, however, ‘an assertion by counsel that a defendant

is unfit does not, of itself, raise a bona fide doubt of

competency.’ [Citation.] We do not give great weight to this

factor in this case because the motion failed to provide any

facts to substantiate counsel’s ‘feeling’ that doubt existed.”

Hanson, 212 Ill. 2d at 224.

And, as to the third Eddmonds factor, we stated:

“In Eddmonds, we recognized that the existence of a mental

disturbance or the need for psychiatric care does not

necessitate a finding of bona fide doubt since ‘[a] defendant

may be competent to participate at trial even though his mind

is otherwise unsound.’ [Citation.] Here, the record shows that

defendant had been diagnosed at various times with a lengthy

list of problems, including organic personality and brain

disorder or syndrome, alcohol dependence, dementia, seizure

disorder, amnestic disorder, and bipolar disorder.

Nonetheless, any connection these problems may have had to

defendant’s fitness at the time the motion was filed remains

unexplained.” Hanson, 212 Ill. 2d at 224-25.

The petitioner in the present case offers even less support for his

claim that he should have been given a fitness hearing than did the

defendant in Hanson. In Hanson, we did not give “great weight” to

defense counsel’s opinion that doubt existed about his client’s fitness.

Yet, the majority gives no weight at all to defense counsel’s assertion

that petitioner “spoke very coherently to me, seemed fine,” and that

he “had no problem communicating with him.”

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Based on my review of the petition and the record, I find

petitioner’s claim to be factually baseless because he offers no new

objectively verifiable evidence that, if true, would negate the clear

record of his fitness at the time of trial.

Further, if the quantum of evidence alleged in this petition is

sufficient to create a bona fide doubt of fitness despite the record in

this case, then all a postconviction petitioner must do to survive

summary dismissal is to make a nonspecific allegation that he was

confused at trial and did not understand what was happening. I do not

believe that it was this court’s intent in Hodges to preclude summary

dismissal of a postconviction petition even when the claim raised

therein is belied by the record.

Conclusion

Our case law is clear that when a postconviction petitioner makes

a claim of ineffective assistance of counsel for failure to request a

fitness hearing, he must allege something more than the mere fact that

he was taking psychotropic medication at the time of trial to survive

summary dismissal of his claim. The majority finds something more

in his bare assertion that he did not understand the proceedings and

in the suicidal “nature of the offense.”

Our case law is also clear that a defendant’s desire to commit

suicide is not necessarily an indication of unfitness to stand trial. See

Johnson, 206 Ill. 2d at 365. Neither is the existence of some form of

mental illness or intellectual deficit. See Johnson, 183 Ill. 2d at 194;

Mitchell, 189 Ill. 2d at 334-35; Easley, 192 Ill. 2d at 322; Harris, 206

Ill. 2d at 305.

In overlooking this body of precedent, the majority all but

abandons the Eddmonds factors, none of which are demonstrated in

the record or by facts alleged in the petition, as well as the

requirement that the postconviction petition raise a “real, substantial

and legitimate doubt” of fitness at the time of trial. Eddmonds, 143

Ill. 2d at 518.

As a result, I agree with the appellate court, which affirmed the

summary dismissal of the petition, saying:

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“We find defendant is unable to establish the trial court would

have found a bona fide doubt of his fitness and ordered a

fitness hearing had it been apprised of the evidence offered in

his postconviction petition. The record shows that defendant

participated in the proceedings and did not exhibit any

irrational or odd behavior in court. At sentencing, defendant

read a long, detailed statement in mitigation. In the absence of

other evidence raising a bona fide doubt of defendant’s

fitness, we hold defendant has not stated the gist of a

constitutional claim of ineffective assistance of counsel.”

JUSTICES THOMAS and KARMEIER join in this dissent.

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