2021 IL App (1st) 191329-U No. 1-19-1329 Order filed September 24, 2021 Fifth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 09 CR 8815 ) D’ANDRE HOWARD, ) Honorable ) Joseph M. Cataldo, Defendant-Appellant. ) Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.
ORDER
¶1 Held: The circuit court properly entered a summary dismissal of defendant’s pro se postconviction petition where the petition failed to state a claim that he was arguably denied effective assistance of trial counsel.
¶2 Defendant D’Andre Howard appeals from the summary dismissal of his pro se petition for
relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). On appeal,
defendant contends he raised an arguably meritorious claim that trial counsel was ineffective for No. 1-19-1329
failing to request a fitness hearing and secure the presence of a “key witness” at trial. For the
following reasons, we affirm.
¶3 The facts of this case are detailed in this court’s order on direct appeal. See People v.
Howard, 2018 IL App (1st) 142401-U. Accordingly, we recount only the facts necessary to resolve
the present appeal.
¶4 During pretrial proceedings on April 3, 2012 and June 14, 2012, defendant refused to enter
the courtroom and counsel asked the court to waive his appearance. Counsel did not state why
defendant refused to enter the courtroom on either date.
¶5 On January 17, 2013, with defendant present, counsel informed the court that defendant
had “cut himself” in jail and was not taking his prescribed medications, Trazodone and Risperdal.
Counsel acknowledged that she spoke with defendant, did not have difficulty communicating with
him, and he appeared to understand what she said. The court asked defendant whether he
understood that he was present for arguments on three motions, and if he was ready and wanted
the court to hear the arguments. Defendant responded affirmatively to each question.
¶6 On April 3, 2014, counsel asked the court to order that defendant remain at Cook County
jail because he had been unavailable to speak with counsel for “many months” due to routine
transfers to Livingston County. Counsel indicated that she had hoped to discuss certain issues with
defendant, but “based on [his] emotional state,” she did not believe she could visit with him that
day. She wanted defendant to remain at Cook County jail so they could prepare for trial.
¶7 On May 1, 2014, the State filed a motion in limine to preclude the defense from presenting
an insanity defense or offering expert testimony to negate the required mental state at the time of
the incident. The court heard argument on May 6, 2014, and ruled on May 19, 2014.
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¶8 The court barred defendant from presenting past evidence of his mental health issues, but
allowed him to present recent evidence. The court stated it reviewed its notes and transcripts, and
acknowledged that defendant was receiving three psychotropic medications, “Trazodone, ***
Respidol [sic], *** and Lithium.” The court noted that “[a]ccording to statute,” medications alone
do not create a bona fide doubt as to a defendant’s fitness to stand trial, and after having had
“ample” opportunity to observe defendant during numerous proceedings, the court did not have a
bona fide doubt regarding his fitness. Specifically, the court noted that it observed defendant
speaking with counsel before counsel made certain representations during arguments and that it
believed from its observations and interactions with defendant that defendant understood the
nature of the proceedings and could “clearly assist counsel in his defense.” The court asked counsel
if she wished to address this point, and counsel responded that “[w]e are not raising an issue of
fitness to stand trial at this time.”
¶9 On May 20, 2014, counsel filed a motion to reschedule defendant’s trial, which had been
set to begin May 27, 2014. During arguments on May 21, 2014, counsel argued that Dr. Mirella
Susnjar, the first doctor to evaluate defendant at the psychiatric unit of Cermak Hospital at the jail,
would be unavailable.1 Counsel stated:
“When I first spoke with her, she had told me she was unavailable on May the 27th,
I did not understand she would not be available the week after that as well. In fact, she’s
going to be out of the country for a couple of weeks.”
1 The record does not contain the motion and attached subpoena. During the May 21, 2014 hearing, the State noted the subpoena to Dr. Susnjar was dated May 7, 2014. The order on direct appeal and the circuit court order dismissing the postconviction petition both stated Dr. Susnjar had been served with a subpoena on May 16, 2014.
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¶ 10 Counsel argued that Dr. Susnjar’s impressions of defendant would be relevant to his
insanity defense. The court denied the motion, noting the matter had been pending for over five
years and defense counsel asserted that several other psychiatrists had examined defendant, so it
was likely another psychiatrist would be available at trial.
¶ 11 A jury trial commenced May 27, 2014. The evidence showed that on April 17, 2009,
defendant stabbed four members of his former fiancée’s family; three died from their injuries.
Defendant raised the affirmative defense of insanity, and presented several witnesses, including
clinical psychologist Dr. Daniel Morjal and psychiatrist Dr. Matthew Mills. Dr. Morjal diagnosed
defendant with schizoaffective disorder and cannabis dependency with “rule out” diagnoses of
depressive disorder, psychotic disorder, and alcohol abuse, meaning “some information”
supported those diagnoses, but “not enough to definitively say that all the criteria is met.” Dr. Mills
diagnosed cannabis dependency and “cluster B traits” which includes borderline, antisocial,
histrionic, and narcissistic personality disorders, with rule out diagnoses of adjustment disorder
and alcohol abuse. Defendant testified to his version of the events and his mental state around the
time of the incident. The jury found defendant guilty of three counts of first degree murder and
one count of attempt first degree murder. After a hearing, the trial court imposed three concurrent
natural life terms for murder and a consecutive 60-year term of imprisonment for attempt murder.
¶ 12 On direct appeal, defendant argued (1) he was deprived of his right to present his insanity
defense because the trial court barred relevant evidence by denying a motion to continue trial to
accommodate Dr. Susnjar’s schedule; (2) he was denied a fair trial because the trial court
prohibited counsel from asking prospective jurors about their opinion of the insanity defense; and
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(3) the State committed misconduct during closing argument. We affirmed. Howard, 2018 IL App
(1st) 142401-U.
¶ 13 On February 22, 2019, defendant filed a pro se postconviction petition raising several
claims of ineffective assistance, including, relevant here, that trial counsel failed to investigate
defendant’s fitness and competency for trial. Defendant noted his psychiatric diagnoses, his
psychotropic medications, and his refusal to enter the courtroom due to not taking his medications,
along with the fact that defense counsel was unable to consult with him one day due to his
“emotional state.” Defendant further alleged that counsel was deficient for not securing Dr. Susnjar
as a witness, and that had Dr. Susnjar testified, the outcome of the trial could have been different.
Defendant attached his affidavit averring that his petition was true and correct.
¶ 14 On May 17, 2019, the circuit court dismissed defendant’s petition in a written order, finding
the issues frivolous and patently without merit where defendant failed to attach supporting
evidence and could have raised the issues on direct appeal. Additionally, defendant’s claim that
counsel was ineffective for failing to challenge his fitness was contradicted by the trial record
where the trial court indicated it lacked a bona fide doubt as to his fitness. Further, defendant’s
assertion that counsel was ineffective for failing to secure Dr. Susnjar’s testimony was also
contradicted because counsel had subpoenaed Dr. Susnjar and sought a continuance. The circuit
court noted that this court held on direct appeal that the trial court’s decision to deny the
continuance was not an abuse of discretion. Moreover, the allegations failed to establish that
counsel’s representation fell below an objective standard of reasonableness or that a reasonable
probability existed that, but for counsel’s errors, the result of the trial would have been different.
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¶ 15 On appeal, defendant argues the circuit court erred in summarily dismissing his
postconviction petition where he raised an arguable claim that trial counsel was ineffective for
failing to request a fitness hearing and to secure Dr. Susnjar’s presence at trial.
¶ 16 The Act provides a three-stage mechanism by which defendants may collaterally challenge
their convictions for violations of federal or state constitutional rights. 725 ILCS 5/122-1 et seq.
(West 2018); People v. LaPointe, 227 Ill. 2d 39, 43 (2007). At the first stage of proceedings, the
circuit court must independently review the petition, taking the allegations as true, and determine
whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West
2018); People v. Edwards, 197 Ill. 2d 239, 244 (2001). A petition is frivolous or patently without
merit if it has no arguable basis in law or fact and is instead based on a meritless legal theory or
fanciful factual allegations. People v. Hodges, 234 Ill. 2d 1, 11-13, 16 (2009). A meritless legal
theory is one that is completely contradicted by the record. People v. White, 2014 IL App (1st)
130007, ¶ 18. Fanciful factual allegations “include those which are fantastic or delusional.”
Hodges, 234 Ill. 2d at 17.
¶ 17 The petition need only present a limited amount of detail and need not set forth the claim
in its entirety. People v. Edwards, 197 Ill. 2d 239, 244 (2001). Although a pro se petitioner need
only set forth the gist of a constitutional claim, this low threshold does not excuse the petitioner
from providing any factual detail at all regarding the alleged constitutional violation. Hodges, 234
Ill. 2d at 10. “ ‘[W]hile a pro se petition is not expected to set forth a complete and detailed factual
recitation, it must set forth some facts which can be corroborated and are objective in nature or
contain some explanation as to why those facts are absent. ” Id. at 9 (quoting People v. Delton,
227 Ill. 2d 247, 254-55 (2008)). In determining whether a petition presents a valid claim for relief,
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“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,” as
well as any affidavits, records, or other evidence supporting the allegations. 725 ILCS 5/122-2.1(c)
(West 2018); 725 ILCS 5/122-2 (West 2018). Unsupported allegations in a postconviction petition
are frivolous and patently without merit. People v. Collins, 202 Ill. 2d 59, 68-69 (2002). Our review
of the summary dismissal of defendant’s petition is de novo. Hodges, 234 Ill. 2d at 9.
¶ 18 To state a claim of ineffective assistance of counsel in first stage postconviction
proceedings, a defendant must demonstrate it is arguable that (1) counsel’s performance “fell
below an objective standard of reasonableness” and (2) the defendant was prejudiced by counsel’s
deficient performance. Id. at 17 (citing Strickland v. Washington, 466 U.S. 668, 678-88 (1984)).
More specifically, a defendant must show that it is arguable “counsel’s performance was
objectively unreasonable under prevailing professional norms and that there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v. Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland, 466 U.S. at 694). If
the defendant fails to show he was arguably prejudiced by his counsel’s performance, then we can
dispose of the ineffective assistance claim on that basis alone. People v. Wilson, 2014 IL App (1st)
113570, ¶ 46.
¶ 19 Defendant first claims that his postconviction petition raised an arguable claim that trial
counsel was ineffective for failing to request a fitness hearing.
¶ 20 The prosecution of a defendant who is unfit for trial violates due process. People v. Easley,
192 Ill. 2d 307, 318 (2000). A defendant is presumed fit, and is unfit where he is unable to
understand the nature and purpose of the proceedings against him or to assist in his defense because
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of his mental or physical condition. 725 ILCS 5/104-10 (West 2008). The trial court must order a
fitness hearing if a bona fide doubt is raised regarding a defendant’s fitness. 725 ILCS 5/104-11(a)
(West 2008).
¶ 21 Administration of psychotropic medications does not alone raise a bona fide doubt of a
defendant’s fitness. People v. Brown, 236 Ill. 2d 175, 187 (2010) (citing People v. Mitchell, 189
Ill. 2d 312, 331 (2000)). Additionally, the fact that a defendant suffers from a mental impairment
does not necessarily mean that he is unfit for trial. People v. Easley, 192 Ill. 2d 307, 322-323
(2000). A number of factors may be considered in assessing whether a bona fide doubt of fitness
exists, “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 defendant’s
competence.” Brown, 236 Ill. 2d at 186-187. The issue is whether a defendant could understand
the proceedings against him and cooperate with defense counsel. Easley, 192 Ill. 2d at 323. “At
the first stage [of postconviction proceedings], this means that, in order to establish arguable
prejudice, defendant must point to facts that would have arguably raised a bona fide doubt of his
fitness.” People v. Castellano, 2020 IL App (1st) 170543, ¶ 45.
¶ 22 Initially, we note defendant’s appellate brief references details from his Cermak Hospital
medical records, including Dr. Susnjar’s post-arrest psychiatric evaluation, but he did not attach
any medical records to his postconviction petition. The parties’ briefs indicate these records were
before the trial court; however, the record does not show that the materials were before the circuit
court when it ruled on the petition. Consequently, we cannot consider them for the first time on
appeal. See, e.g., People v. Garcia, 2017 IL App (1st) 133398, ¶ 35 (“[T]his court cannot consider
evidence that is not part of the record.”).
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¶ 23 Turning to the merits, defendant’s petition does not allege that mental illness or
psychotropic medications interfered with his ability to understand the proceedings and assist in his
defense. Nor does it contain any facts from which that conclusion could be gleaned. The petition
merely describes defendant’s mental illnesses and medications, and cites to instances when he
refused to enter the courtroom due to not taking his medications and when counsel was unable to
confer with him due to his “emotional state” one day. The petition also notes one instance where
counsel informed the court that defendant had harmed himself due to not taking his medications.
Taking defendant’s claims as true, these facts do not establish that he could not understand the
proceedings and assist in his defense. See Easley, 192 Ill. 2d at 323. Indeed, prior to trial, the court
noted defendant had been prescribed psychotropic medications, but also that the court believed
from its observations and interactions with defendant that he understood the nature of the
proceedings and could assist counsel in his defense. Counsel then informed the court she was not
raising a bona fide doubt as to his fitness. The allegations in defendant’s petition therefore do not
establish facts which would have arguably raised a bona fide doubt as to his fitness. See Castellano,
2020 IL App (1st) 170543, ¶ 45.
¶ 24 Nor do we find defendant’s reliance upon People v. Brown, 236 Ill. 2d 175 (2010),
persuasive. In Brown, the defendant alleged in his postconviction petition that counsel was
ineffective for failing to request a fitness hearing where he was unable to understand the events at
trial because he had been taking “very heavy” psychotropic medication. Brown, 236 Ill. 2d at 185-
186. Additionally, the defendant attached medical records and affidavits supporting his factual
allegations, including attestations from his mother and aunt regarding his mental state. Id. at 186.
The court found the record did not completely contradict defendant’s legal theory, and taking his
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allegations as true, his petition raised an arguable claim of ineffective assistance of counsel for
failing to request a fitness hearing. Id. at 191.
¶ 25 Here, defendant did not aver that he did not understand the proceedings, but merely
identified his diagnoses, prescribed medication, and several isolated events from pretrial
proceedings as evidence of his unfitness. As noted, however, neither a diagnosis of a mental
impairment (see Easley, 192 Ill. 2d at 322-323) nor administration of medications (see Brown, 236
Ill. 2d at 187) alone establish a bona fide doubt as to defendant’s fitness. The court specifically
informed defendant that it had observed him prior to trial and believed he understood the nature of
the proceedings and could assist in his defense. At trial, defendant actively participated by
testifying at length. See Castellano, 2020 IL App (1st) 170543, ¶ 59 (distinguishing Brown in part
because the defendant testified in his own defense and was cross-examined extensively, whereas
the defendant in Brown waived his right to testify). Further, defendant did not attach affidavits or
medical records supporting the allegation in his petition or explain why this evidence was not
attached. See Hodges, 234 Ill. 2d at 10 (the purpose of attaching affidavits, records, or other
evidence is to establish that a defendant’s allegations are capable of objective or independent
corroboration). Accordingly, defendant has not stated the gist of a constitutional claim that trial
counsel was ineffective for failing to request a fitness hearing.
¶ 26 Defendant next claims that his postconviction petition raised an arguable claim that trial
counsel was ineffective for failing to secure Dr. Susnjar’s presence at trial. Specifically, defendant
alleges that counsel mistakenly subpoenaed Dr. Susnjar for an incorrect date, not realizing she
would be out of the country, an error which deprived defendant of a “key witness” at trial.
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¶ 27 We note at the outset that counsel filed a motion to continue trial in order to secure Dr.
Susnjar’s testimony, which the trial court denied. On direct appeal, defendant argued the court
abused its discretion in denying the continuance. We found no abuse of discretion because the
court considered counsel’s lack of diligence in securing a witness for the agreed trial date in a case
which had been pending for five years. Howard, 2018 IL App (1st) 142401-U, ¶ 103. Therefore,
although defendant presently argues that counsel was ineffective for failing to secure Dr. Susnjar’s
presence at trial, he has already litigated a challenge to the trial court’s discretionary ruling to deny
a continuance for that purpose. To the extent defendant’s ineffective assistance claim relies on the
same facts predicating the claim raised on direct appeal, it is barred by res judicata. See People v.
Viramontes, 2016 IL App (1st) 160984, ¶ 65 (“[A] petitioner cannot obtain relief simply by
rephrasing previously addressed issues in constitutional terms in his or her petition.” (internal
quotation marks omitted)).
¶ 28 Generally, decisions regarding whether to call certain witnesses on a defendant’s behalf
are matters of trial strategy, reserved to trial counsel’s discretion. People v. Enis, 194 Ill. 2d 361,
378 (2000). However, we do not consider arguments related to trial strategy when reviewing first-
stage postconviction petitions. See People v. Tate, 2012 IL 112214, ¶ 22. Nevertheless, taking a
defendant’s allegations as true, if he raised an arguable claim defense counsel’s performance was
objectively unreasonable under prevailing norms, he would still need to show he was arguably
prejudiced by the deficient performance. Id. ¶ 19. A defendant is arguably prejudiced by his
counsel’s failure to call a witness where the testimony could have led to a different outcome at
trial. See id. ¶ 24.
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¶ 29 Here, even accepting that defendant’s allegation is not barred by res judicata, defendant
was not prejudiced by counsel’s failure to secure Dr. Susnjar as a witness because it is not arguable
her testimony would have led to a different result at trial. As noted, defendant did not attach Dr.
Susnjar’s notes to his petition, and the medical records which defendant cites in his appellate brief
were not before the circuit court. Defendant claims that Dr. Susnjar’s testimony was critical
because she was the first psychiatrist to assess him, and therefore the best “qualified” to provide
an opinion in support of the insanity defense. Defendant provides no support for this supposition,
however, and merely speculates that her testimony would have affected the outcome of the trial.
See People v Pecoraro, 175 Ill. 2d 294, 324 (1997) (“A defendant cannot rely on speculation or
conjecture to justify his claim of incompetent representation.”). At trial, defendant presented a
clinical psychologist and psychiatrist who both evaluated him shortly after the incident. They
presented evidence of their diagnoses and impressions of defendant to the jury. Defendant also
testified extensively regarding his version of events. On direct appeal, this court noted that the
evidence at trial was “overwhelming” regarding defendant’s ability to appreciate the criminality
of his conduct. Howard, 2018 IL App (1st) 142401-U, ¶ 116. We find counsel’s failure to secure
Dr. Susnjar as an expert witness did not prejudice defendant and, accordingly, the circuit court did
not err in dismissing this claim at the first stage of proceedings.
¶ 30 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 31 Affirmed.
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