well this morning it's agenda number three case number one zero six two four three and one zero six two seven three consolidated people of the state of illinois versus raymond brown against the royal reason decisions of this court and against the plain language of the statute itself the post conviction hearing act additionally it will state leafs of the conclusion but every time a pro se petitioner is unsuccessful in his in his claims in his petition then fine should be assessed again this is against the plain language of the statute itself but your honors it also dissuades clients li mr brown in this case from bringing forward those claims which could not otherwise be brought on direct appeal this is particularly so in mr brown's case where in filing this  standard at the first stage and as well with respect to the in effect of assistance claims as this court noted both a majority empty concurrence and add words at the first stage we don't require pro se litigants to plead a full of complete factual claim and that's not without good reason the reason being that a pro se petitioner is not required to cite to legal authority and towards that end pro se petitioner may not be aware that certain facts which he thinks are tangential and are not related are in fact at the heart of his claim brown indicates that he told his trial counsel that both prior to the time of trial and at the time of his arrest he was taking various psychotropic medications used in the treatment of bipolar disorder he also indicates a second fact which is quite significant because it goes to the heart of pleading prejudice he claims that he was the sole with sergeant as a result of these medications but he in fact did not understand  understand his proceedings out well and was slow to react in addition to bat your honour's mr brown provides ample medical documentation one in the form of a several  documents indicating that in the years prior in the year prior to his actions and there is arrest in this case he was treated by various psychiatry has in fact  and suffered situations such as spared impaired judgment hallucinations acute psychosis and confusion and but he was hospitalized for these symptoms and further that he was to eat treated with psychotropic medications for these conditions in addition to that he provides medical prescription for arms from two thousand and three which demonstrate that at the time of trial proceedings informed mr brown's counsel well in advance of sentencing that mr brown indeed attempted suicide on the numerous occasions that he was taking psychotropic medication for bipolar disorder vast disputing trial counsel's representations to the sentencing court that he had no knowledge of mr brown's condition then your honor as we have the crime itself and attempted suicide by cop mission when all of these factors are taken into consideration present a properly thread a first stage first conviction petition the state interestingly does not dispute any of the foregoing the state's complaint comes in to state claims that mr brown's claims are rebutted by the record relying largely if not wholely on a sentencing statement made by mr brown because of course there is no trial testimony  and the colloquy is at trial are in fact quite limited however the state's very notion that we can dispense with mr brown's per se pros conviction petitions quick the claims of the petition by looking which relate to trial behavior but looking solely at sentencing behavior is at odds with the notion that this court has recognized in which the united states supreme court has recognized that the trial court must be vigilant to a client's bona fide out of fitness because it is unconstitutional to try a man who is unfit but also the state's argument ignores that the sentencing conduct in this case the sentencing hearing in fact happened a month after trial over a month after trial and if we look at the prescription forms which are appended to the prostate petition it indicates that mr bro s medication less than medication dosage very significant weight from the trial proceedings to the time of sentencing this it would be particularly in out to find that mr  trial thank you your honor of actually getting to that point out of this mr brown's position is that the state's position the characterization of that statement is in fact inaccurate far from showing that he was coherent it shows that mr brown had a basic misunderstanding of core rights he goes on and on in the statement about why his trial counsel never brought up the fact that he wanted to commit suicide but this was only an attempt on his part to commit suicide he also goes on to say there were statements that he made to hospital personnel or police personnel that didn't come up and and he seems confused by the fact that in fact he waived his right to testify so this is in this regard to cases quite similar to people be sure off but then we go on to other things and he's confuse about the sentencing range he says of the sentencing range was one to twenty one in fact it was twenty to eighty he talks about grand jury statements he's all over the place he's talking about plea offers at one point the trial court interrupts it says enough and i point to one last statement which he makes and in the in the statement he says on the last court date which would be the trial date the he says i quote i felt like i wanted to die these are not statements of a person who we can say positively is cohere and i think the other point that needs to be made here is that the state's view of mental illness is quite limited in other words as long as he can put a sentence together he's fit but that view has been rejected by the united states clear claim regarding competency and that's particularly true here but again i said the streets arguments wholly ignore the affidavits in this case these affidavits are critical because what they do is they create a factual dispute here between the trial judge between trial counsel who indicated to the court i had no knowledge of this and these afi onto and i'll say yes in fact he did know he did know well in advance and it is for this reason that we just can't dismiss a conviction petition like this at this stage but i alluded to the second argument that the state makes and that's regarding pleadings themselves the state's position has taken the position that because brown's pro se petition doesn't specifically say that i am for my counsel that i was hallucinating that therefore he can't satisfy an ineffective assistance cr duty to investigate his competency and that simply not in the case not the case i refer to this court back to all the information that the trial counsel allegedly had regarding prescription medication regarding a history of mental illness regarding attempted suicide attempts regarding the crime itself and this bill and that the self required to duty on behalf of clark counsel to investigate did no investigation of this competency and that's quite important as i said in conclusion with regards to this claim i think it's abundantly clear that mr brown's pro se petition under any standard this court applies hasn't met the threshold pleadings standard required of a pro se petitioner therefore we asked the court reverse completely superfluous and i think this also brings up another point but destructive or in this case is quite significant because it connotes a separation that there are petitions which  petitions which are patently without merit and this court's decisions and people bebo clare and the people be blair only further that notion in those cases this court define the terms but phrases frivolous separately from patently without merit frivolous was defined as without legal significance or lacking an arguable basis in similar to twenty to one or five p which is arguable basis in law on fact and out paddling without merit post conviction position was defined as one with playing which was plainly obviously and clearly without legal significance the filing of impact press in form of pop press petition under the federal statute so there's a difference between a claim which fails to say the claim and one which is frivolous brown who's only bringing a claim regarding his competency what they intended to do if we look at the legislative history is find those individuals who are bringing petitions regarding skippy peanut butter plainly are clearly obviously without and without legal second without legal significance those claims not someone like mr brown who's bringing a potentially meritorious post conviction p the finds order thank you very much if there are no further question the first was to recover a fraction of the money that it takes to address and resolve frivolous pleadings filed by prisoners and the second was to potentially curb the number of these frivolous pleadings there are filed  and that impede that clog the system and adversely affect the court system defendants post conviction petition was exactly the type of pleading the legislature had in mind when in the act of this provision of the code in fact the that the legislature intended that this provision apply to post conviction petitions is evident because it specifically lists post conviction petitions as one of the pleadings to which the assessment of costs would apply the trial court found the petition to be frivolous and patently without merit the appellate court also found that the petition was frivolous and palli without merit but then the appellate court mistakenly determined that there dick difference in the definition of frivolous under the post conviction haring act which defendant brought and frivolous under the course of a procedure this was an error the definition of frivolous between these two statutes which would necessarily be in a firm on the second issue basically if we find that it's not for of was there is no reason to assess cos that's correct are you asking us even in that instance to address what i think you're going to is that there was a finding that the petition was frivolous and pettway without merit and yet of finding fees and costs that that would not apply very that's correct if we hold differently on the  i think that that should be i think that there should be direction and it should be clear that the statutes to to on all five of the course of a procedure it specifically states when there is a finding of frivolousness then the petition the prisoner is responsible for the costs it's not fine it's the costs and it's only really a fraction of the cost in this case where he was sent he was the filing and mailing costs statute to be read because it specifically states that that person is responsible for the costs when there is a finding of frivolousness as there was in this case and as there usually isn't or must be in the first stage post conviction partition there is a finding that a petition is frivolous well apparently without merit and it is our position that the definition of federal of panteley without merit falls well within the  section the course of a procedure where it states this effect lee what what how the pleading should be how it can be determined whether it's frivolous or patently without merit now in this case the trial court found it was both in the appellate court found it was both so then argument that there's a distinction it doesn't really apply and it is our position that there is no real meaningful distinction between a petition that is frivolous and a petition that stanley without merit because this court has found a petition that is frivolous to have little weight or importance having no basis in law or fact and that falls well within the state code of civil procedure and a pat and us petition is the only without merit is clearly obviously plainly without any legal significance without standing or importance and that also all the rules of statutory construction that apply in that would be to give effect to the meaning of the legislature to you attribute the words or plain an ordinary meaning to construe the same word in different parts of the statute similarly and to construe separate statutes to give them help that deal with the same subject to give them how money is affect all support a conclusion that a post conviction petition that is dismissed at the first stage of post conviction petition proceedings is subject to these assessment of co second stage dismissal but at the outset of the appellate court's decision it plainly stated that it was considering whether defendant had been met his burden of a stablish ing a just of a meritorious claim of a constitutional violation  it's our position that the appellate court did apply the correct standard but even if it didn't the standard review here is do no evil and this court will apply the correct standard to defendants petition but defendant cannot meet that low burden because he must do more than put pen to paper and write my counsel was ineffective i was taking medication he has to make some elevations that are not rebutted by the record that suggests  medicine for him correct and that was not enough to know because the ingestion of psychiatric medicine is not enough to raise a bonafide out of his u raise he has to do more than say i was taking psych psychiatric medicine to raise a doubt because it's not some doubt whether there's some doubt did he say in the grocery ratings that he had prior prior if defendant raises a history of mental health issues at trial and that he's taken so far to psychotropic medicine the trial court would enquire whether defendant was experiencing anything that would make him unfit for trial because was found guilty and he raised it after trial and before sentencing he raised he said you know i was and the thing about defendant's claim about his psychotropic medicine it's unclear what he's whether whether he's stating now i was unfit because i have these medical conditions or i was unfit because i was taking this medication in this petition he said i was unfit because i was taking this medication i was i didn't understand what was going on right after a trial before sentencing you said judge i'm going happy with my what happened at the last court date and i'm happy i was found guilty i'm not happy that my attorney didn't bring out more to show i wasn't really trying to kill the police officer i'm not happy that my attorney didn't bring out that you know i was really trying to kill myself and then he said you know i'm taking psyche psychiatric medicine and i heard that i should have a psych evaluation for that and i might not even have had to go to trial his claim regarding the psychiatric medicine had nothing to do with not understand the proceedings and nothing to do with his unhappiness with his counsel his unhappiness with his counsel related to what he deemed as counsel's inadequacy was at trial and not listening to that testimony so the trial court did not ignore a claim that there with the psychiatric medicine somehow impeded defendants ability to understand and when we're looking at defendants claim that he was denied ineffective assistance of counsel because his counsel didn't raise this doubt of his fitness there's too presumptions that apply and there's a strong presumption that counsel rendered reasonable assistance and there's a second presumption that defendant is fit and fitness we don't mean that defendant doesn't have a history of mental health issues where the defendant is taking medication by fitness we're speaking of does he understand what's going on in these proceedings can you assist in his defense as i said he first complained after trial by his attorney but he didn't but isn't that the reason you have the examination to determine whether he can determine whether there's going to be scientific listed some statements from his attorney saying i don't notice anything in the trial court also said i haven't noticed anything that says he is he didn't say he was couldn't understand i understand there of course if in fact here is mentally deficient well he did say a lot from which we can look at and determine that he he knew what was occurring at trial because it begs the question how could he be recalling what his attorney did at trial and thinking that his  defendant's statement at set at trial was you know far from rambling he went on and this is another reason why his claim that he that he was there was a bonafide out of his fitness because of the medication he was taking sentencing he repeatedly stated how his medicine had helped him how he knew he had to take it for the rest of his life he was a changed person since he had been in prison it has been a good experience for him he went on and on about how in order to fit his hearing and it had been apprised of the evidence offered in this post conviction is that different than the just standard is that is the  indicated that the fact this was already been looked at by the or in the claim can never prevail and that's why there isn't the gist of your words going well when you read their code to me and i don't have it in front of me it does sound that like maybe there is some a misstatement about what burned in there holding the fan in two but when you read that opinion or the decision in it in context and you see the whole analysis i do believe that the public court was stating that defendant had failed to raise the gist of a meritorious claim because we're doing more than looking at the petition or looking at the record claims that are positive so i guess in the light most favorable to you those words  the trial judge who just denied the petition was the trial judge in this case to he heard the the case and heard the facts of this case well for the reasons i stated in our brief and stated here today the people respect respectfully request that this court affirm the appellate court's dismissal of the post conviction petition and vacate the appellate court's order that vacated the assessment of filing and mailing costs thank you fitness and went on says the judge did not observe anything about defendants conduct or appearance that would raise above i doubt that that was at the time of the sentencing hearing so i take of the trial judge did nor a trial at sentencing briefly when mr brown complained the court asked and the only thing that was mentioned at the sentencing hearing was the use of psychotropic medications the allegations contained in the postcondition lotion none of this information regarding the hospitalizations regarding the two affidavits which we have now which refute the allegations made by trial counsel to the trial court it was a inquiry did you know about these did you know about yourself your client's condition know that was it and the trial court said right based on my observations there's nothing else to be discussed and they moved on the  g and in that regard i can pay me robinson is very important that united states supreme court decision says that we cannot just use those limited colloquy is that it occur at the trial and sentencing to dispense with a client's a mentally ill clients come to a claim regarding competency when there's other allegations on the record there are numerous allegations from this record regarding to hospitalizations and not many years before this but less than a year before this incident occurred but it's all have bearing on mr brown's competency it is not a claim that mr brown is making specific to psychotropic medications way there are a number of allegations including the to ask i feel it's who dispute the allegations made by trial counsel that i had no knowledge of this and in fact if we go look at brown's   stearns which is the second circuit decision the same type of allegations were made by trial councils there and were proved to be false after further inquiry into those cases those are all very important  competency neither the trial level nor on direct appeal this issue is for the first time before this court and the only way it could be before the court based on all of the affidavit the medical documentation circumstance on i don't presume to say in every circumstance but in this circumstance where the trial counsel is aware according to the per se petition of the history of bipolar disorder depression cyclotron pick medications he is aware that this crime has attempted suicide before and in fact the nature of the crime itself is a suicide by cop mission he is aware of all of these facts and when we look at that collective body yes there is a duty upon trial counsel to investigate his client's competency and also this court asks a lot about the appellate court's holding in this case  which in which we find quote we find the finder is unable to establish the trial court would have found a bona fide doubt of fitness and order to fit his hearing had it been a private piece of the evidence offered in his post conviction petition  applied a much stricter standard well down the road at the second stage at the third stage he'll have to formulate a develop a factual more factually completely clear complete claim and then have the benefit of an evidentiary hearing where we'll have people come out and testify about his fitness his doctors and such at that point he will have to establish further about the bona fide doubt of his fitness and not at the stage where very briefly i'll just like to answer the the claims regarding the second the fitness of prednisone as finds the state's position ignores the fact that there are position petitions which are frivolous and those which are patently without merit that's what we're saying but there is a distinction rob the state and the defense and mr brown agree very nearly that subsection b one of the fines provision distinction in this case one one where the result with these two very similar lines correct i think that if we look at a petition for example but make some and make it allegation this is not one of those can they make and make it allegation regarding fitness or any other claim regarding let's say an alibi witness my trial counsel failed to investigate alibi witnesses but then doesn't include any affidavits to support that cla on its face the claim you know failure to investigate a fitness competency or failure to investigate someone's alibi witnesses who could have supported the defense is not frivolous on its face without merit because it's unsupported another example of that would be a claim which is brought on the under the wrong vehicle so a claim which is not frivolous if it had been brought