concluding evidence the defendant was diagnosed with schizophrenia 12 years earlier was not “particularly relevant” to the question of the defendant’s fitness at the time of trial
How later courts described this case
- concluding evidence the defendant was diagnosed with schizophrenia 12 years earlier was not “particularly relevant” to the question of the defendant’s fitness at the time of trial
- rejecting defendant’s post-conviction claim based upon records of psychiatric illness predating his crime where, at the time of trial, the evaluating psychiatrist found defendant fit for trial and also capable of choosing not to cooperate with his attorney
- “unless the underlying issues are meritorious, defendant has suffered no prejudice from counsel’s failure to raise them on appeal”
- counsel was not ineffective where the defendant failed to make substantial showing that, had counsel introduced his mental health records, there was a reasonable probability that outcome would have been different
Written by the judges who cited it.
The opinion
JUSTICE RATHJE, specially concurring:
I agree with the majority that we should affirm the dismissal of defendant’s post-conviction petition. Nevertheless, one problem in the majority’s analysis prevents me from joining its opinion.
The majority improperly addresses the merits of defendant’s Brady claim. This issue is waived because it could have been raised on direct appeal. The majority correctly acknowledges that issues that could have been presented on direct appeal, but were not, are deemed waived for purposes of post-conviction review. See Towns, 182 Ill. 2d at 503. That rule is clearly applicable here. The evidence that defendant claims the State should have turned over prior to his fitness hearing was later introduced by the State at trial. At that point, defendant knew of the evidence, and it was a matter of record. Accordingly, there is no reason that defendant could not have presented this argument on direct appeal.
The majority’s reason for relaxing the waiver rule is that defendant attached to the post-conviction petition an affidavit from his attorney stating that the attorney did not have the evidence prior to the fitness hearing. According to the majority, this affidavit “constitutes new information which was not in the original trial record, and, therefore could not have been addressed by a reviewing court on direct appeal.” 192 Ill. 2d at 467. The majority’s rationale is incorrect.
The proper inquiry is not whether a particular piece of evidence could have been considered on direct appeal, but whether the claim could have been considered on direct appeal. In People v. Whitehead, 169 Ill. 2d 355, 372 (1996), this court explained this exception to the waiver rule as follows:
“[I]t is not so much that such a claim ‘could not have been presented’ or ‘raised’ by a party on direct appeal, but rather that such a claim could not have been considered by the reviewing court because the claim’s evidentiary basis was de hors the record.” (Emphasis in original.)
Here, the claim of a Brady violation is not outside the record. The evidentiary basis for this claim is the evidence that defendant claims was not turned over prior to the fitness hearing. This evidence was introduced at trial and is part of the original trial record. Accordingly, defendant could have made this argument both at trial and on direct appeal. 1
The defense attorney’s affidavit adds nothing to the Brady claim. The affidavit merely states that the defense did not have this information prior to the fitness hearing. In other words, the affidavit is itself the argument that defendant should have made both at trial and on direct appeal. When the State introduced the evidence at trial, defendant should have raised the Brady claim. Had that argument proved unsuccessful at trial, defendant should have raised it as an issue on direct appeal.
If the majority is correct that the type of redundant affidavit filed by the defense in this case is sufficient to renew a waived claim, then we have effectively removed any distinction between direct and post-conviction appeals. A post-conviction appeal now is apparently nothing more than a second direct appeal in which defendants can raise all of the arguments that they should have raised, but did not raise, in the first appeal. Even if the claim’s evidentiary basis has a clear foundation in the original record, this court will consider the claim if defendant’s attorney files an affidavit that does nothing more than state the very argument defendant wishes this court to address. I am not prepared to make such a mockery out of the post-conviction appellate process.
I agree with the majority that defendant is not entitled to an evidentiary hearing on his claim of a Brady violation. However, rather than addressing the merits of this argument, I would hold that defendant waived the claim by failing to raise it on direct appeal.
Notably, defendant does not raise this issue as an ineffective assistance of counsel claim.