# People v. Alberts > Appellate Court of Illinois · June 26, 2008 · 383 Ill. App. 3d 374 URL: https://www.frixlaw.com/law-library/cases/9528901 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PERRY ALBERTS, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** June 26, 2008 - **Citations:** 383 Ill. App. 3d 374; 322 Ill. Dec. 289; 890 N.E.2d 1208; 2008 Ill. App. LEXIS 646 - **Precedential status:** Published - **Opinion:** Dissent by Myerscough - **Judges:** Appleton, Myerscough - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9528901 ## How later opinions describe it (automated extraction) - finding that Hari announced a new rule that applied retroactively ## Opinion text JUSTICE MYERSCOUGH, dissenting: I respectfully dissent. I would affirm in full. Defendant has not established ineffective assistance of counsel. Under Strickland, defendant must show facts existed at the time of trial that would have raised a bona fide doubt about his ability to understand the nature and purpose of the proceedings and assist in his defense such that the trial court would have ordered a fitness hearing. The record refutes the existence of a bona fide doubt. In fact, the trial court addressed the issue of fitness at length on the record. Defendant clearly understood the proceedings and assisted counsel with the defense. Defense counsel had defendant examined by Dr. Cuneo and afterward did not want a report. Dr. Cuneo destroyed the notes from the examination. The majority implies able defense counsel wanted exculpatory evidence destroyed. “However, counsel did not want Dr. Cuneo to submit a report, and he destroyed his notes from the evaluation. This raises concern about trial counsel’s representation. What was it that counsel knew about defendant’s mental statement that he did not want revealed?” 383 Ill. App. 3d at 378. However, nothing in the record substantiates that anyone instructed Dr. Cuneo to destroy his notes or that counsel wanted evidence about defendant’s mental state hidden. Dr. Cuneo’s report states: “I had also previously evaluated [defendant] in June 2001 at the request of his then attorney, Mr. John Gray Noll. Mr. Noll did not wish me to write a report[,] and my notes from this evaluation were destroyed.” Further, the majority ignores what is missing in the report and the postconviction petition. Nowhere does defendant or Dr. Cuneo state that at the time of the evaluation or at the time of trial Dr. Cuneo found defendant unfit. Defense counsel no doubt did not want a report because Dr. Cuneo found defendant fit at that time. Defendant cannot now come in with a new attorney and a different opinion from the doctor without first establishing Dr. Cuneo found him unfit at the time of trial. The petition and report only state that Dr. Cuneo is now of the opinion that defendant was unfit at the time of trial. Moreover, defendant’s claim of actual innocence based upon involuntary intoxication is also specious. Dr. Cuneo’s report simply does not support the defense of involuntary intoxication because Dr. Cuneo has no such opinion. “I am unable to form an opinion at the current time as to whether [defendant] would qualify for an intoxication defense. According to his statements and past reports[,] he was hallucinating at the time and his judgment [was] impaired. He was taking prescribed, excessive doses of Effexor[,] which would have impaired his reasoning, increased his impulsivity, and greatly increased his potential for bizarre behavior and acting out. His hallucinations began at the time when he first began taking the Effexor in large doses. I would, though, like to see the police reports and transcripts from the trial prior to my fully forming an opinion on intoxication.” Defendant has forfeited this claim by failing to attach support therefor. Summary dismissal is warranted where (1) defendant failed to support his ineffective-assistance-of-counsel claim with documentation or explain the absence of such documentation, and (2) defendant’s claims are refuted by the record. See People v. Collins, 202 Ill. 2d 59, 66 , 782 N.E.2d 195, 198 (2002) (finding that a postconviction petition may be summarily dismissed when the petitioner fails to attach necessary affidavits, records, or other evidence or explain their absence); People v. Palmer, 352 Ill. App. 3d 877, 883 , 817 N.E.2d 129, 135 (2004) (finding the first-stage dismissal of a postconviction petition when the record contradicts its allegations). That Dr. Cuneo may someday form an opinion on involuntary intoxication if he sees police reports and transcripts from the trial is not enough to state the gist of a constitutional violation. The time has come in the defendant’s appeals to have some finality. The amended petition was properly dismissed at stage two on the State’s motion. For these reasons, I would affirm the trial court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9528901. Public record. Not legal advice.