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.

¶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,

. 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,

(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,

(1992). “Manifest error is error which is

‘clearly evident, plain, and indisputable.’ ” People v. Johnson,

(2002)

(quoting People v. Ruiz,

(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,

.

¶ 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,

(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,

(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,

. 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,

. 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,

(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.

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,

. ”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,

(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,

.

Under Strickland, counsel is constitutionally ineffective where representation was objectively

unreasonable, and this deficient performance prejudiced the defendant.

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,

(quoting Strickland v. Washington,

(1984)). A petitioner must satisfy both prongs of the Strickland test. People v. Henry,

. A failure to establish either prong is fatal to petitioner’s claim. People

v. Easley,

(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.

.

¶ 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,

(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.

(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,

(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.

¶ 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,

(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.

. 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.

.

¶ 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

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,

. 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,

(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,

(quoting Metrish v. Lancaster,

(2013)). Diminished capacity is not a recognized defense in Illinois. People v. Hulitt,

(2005). More importantly, a defendant may not raise it under the guise

of a reasonable doubt argument.

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.”

.

¶ 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.

. In Hulitt, the

defendant was convicted of first degree murder of her daughter.

. 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].’ ”

. 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.”

.

¶ 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

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

; see also

Johnson,

(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,

(defendant could not

establish prejudice for ineffective assistance of counsel where the “purported evidence ***

would have been inadmissible hearsay at trial”); People v. Avilas,

,

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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,

(quoting

People v. Hodges,

(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,

.

¶ 39 Here, at the second stage of postconviction proceedings, “a petitioner must meet a higher

standard to survive dismissal.” People v. Johnson,

. 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,

(quoting People v. Edwards,

(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,

; see also

People v. Frazier,

(“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,

), 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

Cite as: People v. Roland,

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.

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