2022 IL App (1st) 173013 No. 1-17-3013 March 07, 2022
FIRST DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) Of Cook County. Plaintiff-Appellee, ) ) No. 02 CR 2663001 v. ) ) The Honorable FRANK ROLAND, ) Maura Slattery-Boyle, ) Judge Presiding. Defendant-Appellant. )
JUSTICE WALKER delivered the judgment of the court, with opinion. Presiding Justice Hyman concurred in the judgment and opinion. Justice Coghlan dissented, with opinion.
OPINION
¶1 Petitioner Frank Roland appeals from the circuit court’s denial of his postconviction
petition at the second stage of proceedings pursuant to the Post-Conviction Hearing Act (Act)
(725 ILCS 5/122-1 et seq. (West 2016)). The petition alleged trial counsel was ineffective for
failing to investigate his mental health history in support of his defense. The petition also
claimed that newly discovered evidence previously unavailable to the defense could have No. 1-17-3013
corroborated Roland’s trial testimony that he was trying to commit suicide when he fired a gun
in the direction of police officers. The circuit court summarily dismissed the petition.
¶2 Roland appealed the circuit court’s first stage dismissal. This court reversed and remanded
for second stage proceedings. The circuit court again dismissed the ineffective assistance of
counsel claim, finding that trial counsel’s failure to pursue every form of documentation
regarding Roland’s mental health does not establish an ineffectiveness claim. Roland claims
his postconviction petition makes a substantial showing that trial counsel was ineffective. We
reverse the circuit court’s second stage dismissal and remand for a third stage evidentiary
hearing.
¶3 I. BACKGROUND
¶4 On September 18, 2002, Roland was arrested pursuant a shooting incident involving police
officers. At trial, Roland testified that while he was in custody, he attempted to obtain help
with his mental health for two or three days. He subsequently had an incident where he hung
himself with his bedsheets and a hanging light fixture. Roland attempted to take his life before
the hanging incident by cutting his own throat. On November 06, 2002, the circuit court
ordered Forensic Clinical Services (FCS) to examine Roland regarding his fitness to stand trial
and sanity at the time of the offense. FCS could not comply with the order because medical
records were needed from Cermak Health Services, Tinley Park Mental Health Center
(Tinley), and Mt. Sinai Hospital.
¶5 On February 04, 2003, Dr. Roni Seltzberg wrote a letter indicating she evaluated Roland
on January 07, 2003, and determined Roland was fit to stand trial with medication. On the
issue of Roland’s sanity at the time of the commission of the offense, Dr. Seltzberg deferred
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the matter due to unobtainable psychiatric/medical records. FCS reported that the evaluation
could not be completed until Cermak Health Services provided medical records.
¶6 On May 19, 2003, Dr. Seltzberg reported she performed a sanity evaluation on Roland and
determined he was legally sane at the time of the offense. Dr. Seltzberg noted Roland was
experiencing symptoms of a depressive mood disorder that may have been exacerbated by
alcohol consumption and ingestion of other illicit substances. Id.
¶7 On January 27, 2005, a bench trial was held, and Roland testified that on the day of the
incident he was “drinking, smoking weed, [and] getting high.” Roland felt “bad” about his
mother passing away and “guilty” about the death of the mother of his children. He purchased
a .25-caliber handgun to commit suicide but was unable to shoot himself. When a police car
drove by, Roland decided to point the gun at the officers to get them to shoot at him. At
approximately 11:00 p.m., Roland was speaking with Theresa on Hoyne Street, as an unmarked
police vehicle approached Roland. An officer exited the vehicle and ordered Roland to freeze,
but instead, Roland ran in the opposite direction and fired a shot in the air. Roland did not
intend to hit any officer because that “would have defeated [his] whole plan.” Roland fled to
Theresa’s home where he was subsequently arrested.
¶8 Officer Ronald Rewers testified that on September 18, 2002, he was on patrol with Officers
Figueroa and Delto. Officer Rewers received a call about an African American man wearing a
red bandana, a white T-shirt, and blue jeans threatening a small child with a gun. The officers
spotted Roland who matched the description, near 2704 North Hoyne Avenue at 11 p.m.
Officer Rewers exited the vehicle, identified himself, and asked Roland to place his hands up.
Roland looked at the officers and began running west. As Roland was running, he removed a
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small handgun from his waist, and Officer Rewers instructed Roland to drop the weapon.
While running, Roland “pointed the gun back towards [Rewers] and fired one shot.” Rewers
saw the muzzle flash, dropped to the ground, and returned fire. Roland was later arrested at
2634 North Hoyne Avenue. A .25-caliber handgun was found.
¶9 Following a bench trial, the circuit court found Roland guilty of attempted murder and
sentenced him to a prison term of 30 years. On appeal, Roland argued that the trial judge erred
in the finding of guilt by basing the decision on personal knowledge of handguns and
misstatement of his testimony. This court affirmed Roland’s conviction in People v. Roland,
No. 1-05-1842 (2007) (unpublished order under Illinois Supreme Court Rule 23).
¶ 10 On January 23, 2008, Roland filed a pro se postconviction petition, alleging his trial
counsel was ineffective and that his fourth and sixth amendment rights were violated.
Specifically, Roland claimed that counsel failed to investigate “claims of being hospitalized
for psychiatric treatment to be able to present a proper defense at trial.” In his petition, Roland
stated that he was admitted to Tinley and was on four different kinds of medication from
September 2002 to June 2005. The State moved to dismiss the postconviction petition and the
trial court summarily dismissed the petition in a written order. The court found that Roland’s
claims were barred by the doctrine of waiver and his claims were frivolous and patently without
merit.
¶ 11 Roland appealed the circuit court’s dismissal. This court reversed that judgment and
remanded for second stage proceedings in People v. Roland, No. 1-08-1580 (2010)
(unpublished order under Illinois Supreme Court Rule 23). On remand, Roland’s counsel
submitted a supplemental postconviction petition alleging that trial counsel was ineffective for
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failing to investigate Roland’s mental health issues. The State filed a motion to dismiss
Roland’s postconviction petition, arguing that Roland’s claims were barred by waiver, he
failed to meet the guidelines for newly discovered evidence, and Roland did not meet the
burden of demonstrating that his trial counsel’s actions were objectively unreasonable or
prejudiced him in any way. In making its ruling, the trial court stated Roland “failed to establish
that trial counsel’s performance was deficient or that he was prejudiced.” On May 25, 2017,
the postconviction petition was dismissed, and Roland timely filed this appeal.
¶ 12 II. ANALYSIS
¶ 13 On appeal, Roland argues that his postconviction petition makes a substantial showing that
trial counsel was ineffective for failing to investigate his mental health history in support of
his defense. Roland asks that this court remand for a third stage evidentiary hearing.
¶ 14 The Act allows a person serving a criminal sentence to challenge his conviction for
violations of the United States or Illinois Constitution. People v. Tate, 2012 IL 112214, ¶ 8. If
a defendant does not file a direct appeal, the postconviction petition must be filed no later than
three years from the date of conviction, unless he alleges facts showing that the delay was not
due to his culpable negligence. 725 ILCS 5/122-1(c) (West 2016). In cases not involving the
death penalty, the Act provides a three stage process for adjudicating postconviction petitions.
People v. Edwards, 197 Ill. 2d 239, 244 (2001). “A trial court’s determination on a post-
conviction proceeding will not be reversed unless contrary to the manifest weight of the
evidence.” People v. Flores, 153 Ill. 2d 264, 273 (1992). “Manifest error is error which is
‘clearly evident, plain, and indisputable.’ ” People v. Johnson, 206 Ill. 2d 348, 360 (2002)
(quoting People v. Ruiz, 177 Ill. 2d 368, 384-85 (1997)).
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¶ 15 At the first stage, the circuit court has 90 days to review the petition and determine whether
“the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a) (West 2016). If
the circuit court does not summarily dismiss it within that period, then the petition advances to
the second stage. People v. Domagala, 2013 IL 113688, ¶ 33.
¶ 16 At the second stage, the trial court may appoint counsel who may amend the petition to
ensure the defendant’s contentions are adequately presented. People v. Pendleton, 223 Ill. 2d
458, 472 (2006). Also, at the second stage, the State is allowed to file an answer or move to
dismiss the petition. 725 ILCS 5/122-5 (West 2018). A petition may be dismissed at the second
stage “only when the allegations in the petition, liberally construed in light of the trial record,
fail to make a substantial showing of a constitutional violation.” People v. Hall, 217 Ill. 2d
324, 334 (2005).
¶ 17 The question before the court is “whether the [postconviction] petition and any
accompanying documentation make a substantial showing of a constitutional
violation.” Edwards, 197 Ill. 2d at 246. In making this determination, a court must take “all
well-pleaded facts that are not positively rebutted by the original trial record” as true and may
not engage in any fact-finding or credibility determinations. (Internal quotation marks
omitted.) Domagala, 2013 IL 113688, ¶ 35. In determining whether a defendant has made a
substantial showing of a constitutional violation, “all well-pleaded facts in the petition and
affidavits are to be taken as true, but nonfactual and nonspecific assertions which merely
amount to conclusions are not sufficient.” People v. Rissley, 206 Ill. 2d 403, 412 (2003). A
claim makes a “substantial showing” of a constitutional violation if its allegations would entitle
the petitioner to relief if proven at an evidentiary hearing. Id. If a petition makes a substantial
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showing of a constitutional violation, the petition advances to a third stage evidentiary hearing
where the circuit court, as the fact finder, will “determine witness credibility, decide the weight
to be given testimony and evidence, and resolve any evidentiary conflicts.” Domagala, 2013
IL 113688, ¶ 34. ”Where the State seeks dismissal of a post-conviction petition instead of
filing an answer, its motion to dismiss assumes the truth of the allegations to which it is directed
and questions only their legal sufficiency.” People v. Miller, 203 Ill. 2d 433, 437 (2002).
¶ 18 A claim that a defendant was denied effective assistance of counsel is governed by the
familiar two-pronged test established in Strickland. People v. Brown, 2017 IL 121681, ¶ 25.
Under Strickland, counsel is constitutionally ineffective where representation was objectively
unreasonable, and this deficient performance prejudiced the defendant. Id. To establish
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
People v. Hale, 2013 IL 113140, ¶ 18 (quoting Strickland v. Washington, 466 U.S. 668, 694
(1984)). A petitioner must satisfy both prongs of the Strickland test. People v. Henry, 2016 IL
App (1st) 150640, ¶ 53. A failure to establish either prong is fatal to petitioner’s claim. People
v. Easley, 192 Ill. 2d 307, 318 (2000).
¶ 19 The circuit court dismissed Roland’s postconviction petition at the second stage, finding
Roland failed to make a substantial showing that his constitutional rights were violated in either
the trial or appellate proceedings. We review a second stage dismissal de novo. Id. at 316.
¶ 20 Roland argues that by failing to present any evidence corroborating his suicide attempts
before and after the incident, his trial counsel provided ineffective assistance. He also argues
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that the introduction of his medical history would have strengthened his assertion that he lacked
the intent to kill Officer Rewers.
¶ 21 The State contends that Roland’s argument rests on a diminished capacity defense, which
has not been recognized in Illinois for at least seven years prior to the shooting. People v.
Hulitt, 361 Ill. App. 3d 634, 641 (2005). The dissent also believes that Roland is effectively
arguing diminished capacity. Diminished capacity is considered a partial defense because it is
not presented as an excuse or justification for a crime but rather as an attempt to prove that the
defendant, because he was incapable of forming the requisite intent of the crime charged, is
innocent of that crime but likely guilty of a lesser included offense. Id. (citing 21 Am. Jur. 2d
Criminal Law § 38 (1998)). To show diminished capacity, there must be evidence that at the
time of the murder, the defendant did not appreciate the nature of his conduct or was incapable
of conforming her conduct as a result of mental disease or defect. Id. Here, Roland is not
making a diminished capacity defense as he does not assert that he was unable to form the
requisite intent for attempted murder. Instead, Roland argues the intent to kill never existed
and contends his mental health history bolsters that claim.
¶ 22 The State claims that Roland has failed to make a substantial showing that the medical
records at issue ever actually existed. We find that the evidence Roland sought to introduce
can be corroborated with the evidence attached to his petition. The form that Tinley provided
Roland when he requested his medical records had a list of explanations to check off for why
Tinley could not provide the medical records. One of the explanations was: “We have[s]
searched our records and are unable to locate a person with a name as it appears above.” Instead
of selecting this explanation, Tinley indicated they did not provide Roland’s records because
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a witness signature was required. Tinley provided a form on which they could have indicated
the medical records did not exist, but they did not do so. Therefore, we find the State’s
argument regarding the nonexistence of records unpersuasive.
¶ 23 The State also argues that even if the mental health records exist, Roland fails to
demonstrate that it was necessary for trial counsel to obtain them to advance a “legitimate”
defense. The State’s argument is defeated by the finding of another panel of this court during
a prior appeal of this matter. The panel found,
“because defendant’s medical records, documenting his previous suicide attempt and
suicidal thoughts, could only have served to corroborate his testimony at trial and support
the defense’s theory, it is at least arguable that counsel’s failure to investigate defendant’s
mental health history and to present evidence of his hospitalization and previous suicide
attempt fell below an objective standard of reasonableness and prejudiced defendant.”
Roland, No. 1-08-1580.
¶ 24 Roland cites People v. Baldwin, 185 Ill. App. 3d 1079 (1989) to support the claim that trial
counsel’s failure to investigate his mental health history and present the available supporting
evidence was objectively unreasonable. In Baldwin, the defendant appealed his conviction of
armed robbery, arguing in part that he did not receive effective assistance of counsel where
defense counsel proceeded to trial before investigating defendant’s mental condition and where
counsel failed to obtain relevant psychiatric records until after trial. On appeal, this court found
that failure to investigate defendant’s records was sufficient to meet the standard for ineffective
assistance of counsel. Id at 1090. The court held that the inadequate investigation of the
defendant’s records and the issue of sanity, which was prejudicial to the fitness question and
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the determination of a proper defense at trial, were sufficient to meet the standard for
ineffective assistance of counsel. Id.
¶ 25 Here, the State contends the evidence at issue was not readily available like in Baldwin,
and defense counsel in Baldwin was able to obtain evidence that contradicted the court’s
finding of fitness, unlike trial counsel in the present case. We disagree because it is clear from
the record here that the evidence Roland sought to introduce was obtainable. In addition to the
medical documents attached to the petition that Roland obtained while in custody, the letter
from Tinley indicated that medical records were available but could not be released without a
witness signature.
¶ 26 We find the supreme court’s analysis in People v. Brown, 236 Ill. 2d 175 (2010), is
instructive. In Brown, the defendant, armed with a butcher knife, lunged at a police officer and
was shot. Defendant was convicted of attempted first degree murder of a police officer, and
more than a month later, at sentencing, he reported a history of mental issues. Defendant
claimed he had been depressed, previously tried to kill himself, and lunged at the officers
because he wanted them to kill him. He also stated that he had been taking “psych medication”
and was told that he should have a psychiatric evaluation, but counsel failed to advise the court.
Id. at 180. Our supreme court held that the allegations arguably raised a bona fide doubt of the
defendant’s ability to understand the nature and purpose of the proceedings and assist in his
defense; thus, counsel’s failure to request a fitness hearing arguably fell below an objective
standard of reasonableness and arguably prejudiced the defendant. Id. at 191.
¶ 27 Here, Roland’s arguments, taken as true, satisfy the first prong of Strickland. Trial
counsel’s alleged failure to present evidence of Roland’s mental health history that would only
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serve to bolster his defense is objectively unreasonable. See id. The issue remains whether
Roland’s allegations demonstrated prejudice. To establish prejudice, a petitioner must show a
reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. Roland’s proposed testimony shows
a reasonable probability that the outcome of his proceeding would have been different. The
State was required to show a specific intent to kill proven beyond a reasonable doubt. People
v. Homes, 274 Ill. App. 3d 612, 622 (1995). Roland’s medical records would create a
credibility contest with Officer Rewers and directly contradict testimony.
¶ 28 Having satisfied both prongs of Strickland, Roland has made a substantial showing of a
constitutional violation. Therefore, the circuit court erred in dismissing his petition, and we
remand for a third stage evidentiary hearing.
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the circuit court dismissing Roland’s
postconviction petition is reversed, and we remand for a third stage evidentiary hearing on
petitioner’s claim that he received ineffective assistance of counsel.
¶ 31 Reversed and remanded.
¶ 32 JUSTICE COGHLAN, dissenting:
¶ 33 The majority concludes that “Roland’s proposed testimony [regarding his mental health
history] shows a reasonable probability that the outcome of his proceeding would have been
different.” Supra ¶ 27. Roland argues that the trial court “received no evidence corroborating
[his] testimony that he attempted suicide both before and after this incident, which in turn would
have supported his testimony that he did not intend to kill the police officer.” The majority 11 No. 1-17-3013
agrees, finding that “[t]he State was required to show a specific intent to kill proven beyond a
reasonable doubt” and “Roland’s medical records would create a credibility contest with Officer
Rewers and directly contradict testimony.” Supra ¶ 27. I disagree, on grounds that evidence of
Roland’s mental condition is inadmissible to show that he did not intend to kill the police officer.
¶ 34 Diminished capacity is an affirmative defense that permits “ ‘a legally sane defendant to
present evidence of mental illness to negate the specific intent required to commit a particular
crime.’ ” People v. Johnson, 2018 IL App (1st) 140725, ¶ 63 (quoting Metrish v. Lancaster, 569
U.S. 351 (2013)). Diminished capacity is not a recognized defense in Illinois. People v. Hulitt,
361 Ill. App. 3d 634, 641 (2005). More importantly, a defendant may not raise it under the guise
of a reasonable doubt argument. Id. As we discussed in Hulitt,
“[t]he doctrine of diminished capacity, also known as the doctrine of diminished or
partial responsibility, allows a defendant to offer evidence of her mental condition in
relation to her capacity to form the mens rea or intent required for commission of the
charged offense. [Citation.] Similar to the insanity defense in that it calls into question the
mental abnormality of a defendant, it differs in that it may be raised by a defendant who
is legally sane.” Id. at 640-41.
¶ 35 This case is analogous to Hulitt, where we found that the defendant’s proposed mental
health evidence amounted to raising a diminished capacity defense. Id. at 641. In Hulitt, the
defendant was convicted of first degree murder of her daughter. Id. at 635. On appeal, she argued
that the trial court erred in barring the testimony of a psychologist, who would have opined that
while the defendant was not legally insane, she suffered from postpartum depression at the time
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of the offense and was “ ‘unable to appreciate the danger of her actions toward [her daughter].’ ”
Id. at 636. This court found that the trial court
“was entirely correct when it stated that [the psychologist’s] opinion appeared to raise the
specter of a defense which does not exist under Illinois law. Defendant could not raise it
as an affirmative defense and, therefore, should not be permitted to raise it in the guise of
a reasonable doubt argument.” Id. at 641.
¶ 36 Despite Roland’s claims to the contrary, allowing evidence regarding his mental history
would constitute raising a diminished capacity defense, which is unavailable in Illinois. See id.
Roland argues that evidence of his mental health history would have supported his defense and
“counter[ed] the State’s evidence of intent” where “[t]he only significant question of fact before
the trial court was [his] mental state at the time he fired the gun.” Essentially, Roland attempts to
raise a diminished capacity defense “in the guise of a reasonable doubt argument,” by arguing
that, because he was suicidal, he did not intend to kill Officer Rewers. See id. at 641; see also
Johnson, 2018 IL App (1st) 140725, ¶ 62 (holding that expert testimony that defendant was in a
post-seizure state at the time of the offense was “properly excluded because it amounted to a
diminished capacity defense”).
¶ 37 Because diminished capacity is not a recognized defense in Illinois, evidence of Roland’s
mental health history is inadmissible to show he did not intend to kill Officer Rewers. It follows
that Roland cannot establish prejudice by alleging counsel was ineffective for failing to present
this evidence. See, e.g., People v. Turner, 2012 IL App (2d) 100819, ¶ 61 (defendant could not
establish prejudice for ineffective assistance of counsel where the “purported evidence ***
would have been inadmissible hearsay at trial”); People v. Avilas, 2021 IL App (2d) 180542-U,
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¶¶ 38, 42-43 (counsel not ineffective for failing to introduce inadmissible evidence that could not
“clear the hurdle of relevance”).
¶ 38 The majority relies on this court’s unpublished order reversing the summary dismissal of
Roland’s petition at the first stage of postconviction proceedings, where we found that it was “at
least arguable” that counsel’s performance fell below an objective standard of reasonableness
and prejudiced Roland. (Emphasis added.) People v. Roland, No. 1-08-1580 (2010) (unpublished
order under Illinois Supreme Court Rule 23). At the first stage of postconviction 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,’ ” and because most
petitions at this stage are drafted by defendants with little legal knowledge, the threshold for
survival is low. (Internal quotation marks omitted.) People v. Tate, 2012 IL 112214, ¶ 9 (quoting
People v. Hodges, 234 Ill. 2d 1, 10 (2009)). At the first stage, “a petition alleging ineffective
assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell
below an objective standard of reasonableness and (ii) it is arguable that the defendant was
prejudiced.” (Emphases added.) Hodges, 234 Ill. 2d at 17.
¶ 39 Here, at the second stage of postconviction proceedings, “a petitioner must meet a higher
standard to survive dismissal.” People v. Johnson, 2018 IL App (5th) 140486, ¶ 51. At the
second stage, Roland bears the burden of showing that his “petition and any accompanying
documentation make a ‘substantial showing of a constitutional violation.’ ” People v. Domagala,
2013 IL 113688, ¶¶ 33, 35 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)). The
“substantial showing” that must be made “is a measure of legal sufficiency of the petition’s well-
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pled allegations of a constitutional violation, which if proven at an evidentiary hearing, would
entitle petitioner to relief.” (Emphasis omitted.) Id. ¶ 35.
¶ 40 The majority relies on this court’s finding that Roland made an “arguable” showing of
ineffective assistance of counsel at the first stage of postconviction proceedings without
explaining how this amounts to a “substantial showing of a constitutional violation.” Even if the
medical records Roland references in his petition exist, they would not be admissible at trial
because they would serve to present a diminished capacity defense. Because Roland’s claims
rely on a defense that “does not exist under Illinois law,” he has not met his burden of making a
substantial showing of a constitutional violation. See Hulitt, 361 Ill. App. 3d at 641; see also
People v. Frazier, 2019 IL App (1st) 172250, ¶ 35 (“It is well-established *** that the
affirmative defense of diminished capacity is not recognized in Illinois.”).
¶ 41 Because a legally sane defendant may not present “evidence of mental illness to negate
the specific intent required to commit a particular crime” (internal quotation marks omitted)
(Johnson, 2018 IL App (1st) 140725, ¶ 63), Roland’s proposed evidence is inadmissible to show
he did not intend to kill Officer Rewers and would not have changed the outcome of this
proceeding.
¶ 42 Based on Roland’s failure to make a “substantial showing of a constitutional violation,” I
respectfully dissent from the majority opinion, and I would affirm the circuit court’s dismissal of
his petition.
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No. 1-17-3013
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 02-CR- 2663001; the Hon. Maura Slattery-Boyle, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Gilbert C. Lenz, of State for Appellate Defender’s Office, of Springfield, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg, Janet C. Mahoney, and David B. Greenspan, Assistant Appellee: State’s Attorneys, of counsel), for the People.