people versus rhyme and arguing for the apollo and richard ryan and is richard whitney arguing for the only people of the state of illinois jennifer campbell each side will have ten minutes for their argument it will also have a minutes you'll see the reviewed by this court did novo and he contends before this court that two of those claims were improperly dismissed because they satisfied the low threshold that our legislature purpose established for post conviction petitions in the post conviction hearing act at the st stage in other words taking the factual claims as true unless positively refuted by the record and liberally construed they stated the gist of a constitutional claims claim in other words they were not frivolous or paid only without merit those two claims are st the trial counsel was ineffective in failing to present an involuntary intoxication or drug condition defense based on unexpected and unwarranted side effects of the cymbalta he was taking on doctor's orders and secondly that counsel was ineffective in failing to request a fitness examination prior to trial since his use of cymbalta mr raymond c s and cymbalta impaired his ability to understand the nature and purpose of the trial proceedings as a necessary predicate to both claims mr raman also alleged that counsel was ineffective in failing to investigate the effects of some balta even though he had informed his attorney about is because we are here on a st stage dismissal i must emphasize that we are not here to decide the merits of the claims we are not here to decide whether the evidence shows that there is some ball to made him do it or rob him of the capacity to conform his conduct to the requirements of law or whether his attorney was in effect or for failing to present that defense he has not yet had the opportunity to present that evidence the question before this court on this appeal is whether he should have that opportunity in other words the question is not whether he has hit a homerun the question is whether he should be allowed to come to the plate to take is that going to let me stop you and ask if this is in regard to the tr a constitutional claim and i think in this case mr raymond clearly did ineffective assistance of counsel is is clearly a constitutional claim and if this particular claim if he is able to prove this this claim it would be a complete defense if if if a defendant is able to establish all the elements of involuntary drug condition then he basically he's acquitted he is found not legally responsible because of that  so i think on that score he stated that then the other the other question that the court house to ask itself is well is it pate without merit in other words is there enough in the record to completely contradict the greater detail it for one thing it misconstrued the claim because at one point the trial court roache that that's the claim was that his attorney failed to introduce  medical records but but he never made that claim the claim was that he his attorney failed to investigate not that he failed to introduce the records the records themselves wouldn't approve and very much secondly the court misconstrued the law in trying to in coming to the conclusion that it was paid only without merit because it basically said well if if anything is published in the physician's desk reference or the package insert  drug that's sufficient warning and therefore he wouldn't have that defense available to him but the court was in error on on a couple of counts st of all factually because there is nothing in the record to say that it was in the package insert or the physician's desk reference as of february th two thousand and thirteen when the offenses were committed and what the court relied on a roni asli it was an e mail exhibit that mr raymond had attached to his petition that says you know that there are there are these side effects of using some balta but this was undated it the e mail that he pasted into this document didn't say that it came from the physician's desk reference and you know basically he was a pro se petitioner of course not experienced law he thought it was supporting his claim but it really didn't it didn't really do much to support d his claim so those are all it does the record completely contradicted it went on and tried to do a full blown legal analysis and in the end in the course of doing so it was wrong because it misinterpreted the horrific case that it cited for the proposition that if there are anything if there's anything available to the public that warns of an adverse side effects then the defense is unavailable in the court and hari never said that so that's for all these reasons and of course explain in greater detail in the briefs they the courts basis for denying the claim was erroneous interestingly interestingly the state does not defend the court's rationale primarily in its brief but instead tries to supply want to bits own claiming that we should reimagine a trial in which we don't even know what the evidence would be that mr raymond would present in support of his cl m and we can and is as shown in the reply brief that that's also erroneous because there is nothing in the law that says you're supposed to reimagine a trial in which at the st stage not all the evidence has been presented and our supreme court has been very clear about this in the i just case you had words case the brown case that that at the st stage you're not required to present all of your evidence so there's no authority for this proposition you're supposed to reimagine a trial in which we know what the state's evidence says but we don't really know what the defense the defendant savants would be that's that's would be kind of a pointless exercise and doesn't get us to where we need to be for analyzing that's the st stage so it was and essentially what the state does in its argument is is look at certain facts that are in the record the fact that he performed well in his job the fact that you know there's some argument to be made that he planned certain elements of the a founds or certain aspects of the offense these would be ability to look at the evidence that is in the record up to that point and as you just pointed out in the state's brief they may make quite a case with regard to the fact  out so he was reasoning during this whole time that he was supposedly intoxicated by this you know ever suspect of some pot if that and you know the court is not allowed to consider that in deciding whether or not the ultimate claim that he is making is meritless or are frivolous yes your honor i see that my time has expired if i may answer you mean thank you yes the court of course is allowed and should review the record to see if if there are things in the record the completely contradict the claim but an example of that would be if for example the records show that mr raymond sauterne he did attempt to present an involuntary intoxication or drug condition defense that would be completely contradicting the record what we have here or there are certain facts that would argue against that defense prevailing in court but it's not an absolute thing the fact that mr raymond at certain points expressed remorse and understood that he was violating the law doesn't definitively prove that he was able to conform his conduct to the requirements of the law which is which is one aspect of  he's going to react to it after they finished their hearings but prior to it seemed like there was plenty of things for the court to look at and say ok you know the underlying argument that he couldn't comport himself to the to the law act and accords with the law is i don't think it's unreasonable to assume that the trial court found that to be in fact that he had never had any problems up to that point while on that drug for a considerable amount of time is that if that were the case you know that we can assume that that's what the court was looking at when it made its  yes he was taking the drug for a long time but that in and of itself does not definitively prove that he was self aware about how the drug was affecting him or the drug may itself may have you know massed it so that he didn't understand that it was affecting him the fact that he was taking it for a long time maybe the effects build up over time and as a matter of fact we see there was a gradual escalation that the state even talked about in its  there were a few things that happened in the months just prior to this incident showing kind of a steady escalation so am i here to say that i would bet that he will prevail in this argument no of course not when we get all the evidence out when we allow ourselves to go to the nd and rd stage he is going to have a tough uphill fight but the st stage at the st stage i don't think we can categorically say based on the evidence in the record that it's impossible for him to to have a viable defense based on that we're not at that point yet he deserves the opportunity to come up to the plate and present as more to present his evidence with the assistance of counsel and then we can make that determination what is in the record against the new facts that he would present with the assistance of counsel counsel for happily and of course the court will grant you the same leeway as far as time if you please the court counsel jennifer hamdan on behalf of the people the defendant is a raise in these claims in the context of a record that's otherwise silent as to his mental state and mental capacity nation when nd stage proceedings requiring appointment of counsel and a response from the state just by showing that he was on a drug prescribed to him for his diabetic neuropathy pain at the relevant times and alleging without other supporting evidence that he was in voluntarily intoxicated or on that in the years worth of medical records and positions notes contained in the record in the p s i never reported any side effects from this medication except once complaining that he still had the pain for which it was prescribed the physician's exam at the jail and in the p s i i records show that his mental status unstable with no history of mental health problems now when a defendant claims that effective assistance based on a failure to investigate or raise that affirmative defense here based on cymbalta the prejudice analysis for both of those theories is d the same it's the defendant's burden even at this  stage to show that it's at least arguable that there's a reasonable probability that the jury would have acquitted him due to his involuntary intoxication on some baltar and the state are not article a reasonable probability that such a trial would have resulted in acquittal because even if the court would have given that instruction the jury would have found beyond a reasonable doubt that he was not involuntarily intoxicated and that the state's argument is based on the overwhelming stages of review and as a arguing the merits of his claim but the merits of a claim are relevant at the st stage of proceedings because indisputable merit less claims are properly dismissed at the st stage  the concept is an expert when are find we can't have for stage review without considering on some level the merits of a claim and its for instance fantastic were delusional claims are also claims that have no merit at some stage the point of the weakness stage by asking whether there's an arguable basis to find a reasonable probability that but for this error in performance alleged error the result would have been different and that's not an analysis that can occur in a vacuum it's an analysis that depends conviction claim by based on effective assistance of counsel based on counsel strategic decision by examining and this is in response to the court's question about what kind of court examined by examining it in the entire trial record and considering then based on their record what would have happened if trial counsel had behaved as defended in the st stage petition is claiming that counsel should have behaved and in each of those cases cited by the state the  reimagine the trial as one in which counsel had acted differently and the court did that by considering the probable of fact that that different strata on it on the trial in light of all the evidence that was presented at the trial and all the other evidence in the record and in each of the state's cases the appellate court concluded that based on that record that it was not arguable that the outcome of the trial would have been different if reasonable probable reasonably probably different if  concluded that the testimony of the additional defense witness raised in the books convicted because it arguably could have made a difference in the trial's outcome and reversed summary dismissal on that basis so in this case like the records in the state cited cases and in tape for that matter the record in this case shows what would have happened if the defense counsel had attempted this proposed trial strategy and if the jury had heard evidence that the defendant was on  an uncontrolled diabetics taking pain medicine or his nerve pain with a longstanding prescription he'd had he been taking that hard for more than two years off and on at the time of the alleged crimes or the crimes of which he was convicted there's no reason what probability the jury would have acquitted him given the overwhelming evidence not just that guilt but also his mental capacity now the defendant is arguing that the proper analysis is simply whether the record rebuts defendant's failure to show even arguable prejudiced even if the factual allegations were true so that both tate and the state's cases were about extra evidence that the defendants were arguing should have been admitted have given the testimony that the defendant wasn't was claiming that they would have they affirmed summary dismissal because they found quite simply that it wouldn't have made a difference so that's the analysis that's been followed in  on it for depression now of course that part of the factual allegation was explicitly rebutted by the record but he was on the record doesn't live up that allegation the other allegation that it that it the defendant just showed that he was on saval to he still has the burden of showing at this st stage that arguable that there's a reasonable probability that if presented with the evidence that he was on that road and the affirmative defense the jury would  him and the jury would not have found it that this nerve pain medication prescribed to a man who planned his crimes and executed them in a manner to avoid detection and repeatedly acknowledged even before he returned his daughter to her home that he had wronged is victim and he never complained to a doctor of any mental side effects and he reported his mental health is stable while on that route a jury would not even arguably have found that this drug cost side effects  resting officers that he was that he knew he was going to prison yes you're absolutely and at the moment that unless period dress that was written when it's your term right yes i mean i  that he did say that and he also acknowledged to his girlfriend on the phone you know there are more than thirty phone calls to his girlfriend that are were admitted the recordings of them from jail were admitted into the record and they're  they're just disgusted and states brief and there's evidence that he both of his substantial capacity related to the involuntary intoxication issue and there's also evidence of his fitness related to the related to the fitness issue i also want to point out that in the reply brief at page the defendant asserts that the defendant now contests some facts regarding the events of the date of the crime and he's citing to the section of the pro se the titian alleging a claim that that that the defendant on appeal isn't renewing this was the claim of ineffective assistance based on the theory that counsel should not have told him not to are on one hand that he was unfit to be tried on the other hand that to testify at that trial i don't get that the same is true for his use of that titian here in the involuntary intoxication cut a context because the defendant count on the one hand claim that counsel should have argued that he was so affected by cymbalta that he couldn't control ringback himself or didn't know what he was doing was wrong and at the same time argue that that he should have been allowed to testify that he definitely didn't for example smashed her head in into the wall or pusher down the basement steps and that's not just because an affirmative defense admits charge backs and the defendant now seeks to deny them but also because a jury would not even arguably find that a defendant who claimed the capacity to control himself in those ways and remember those points simultaneously lacks capacity as defined by the involuntary intoxication instructions and if i know my time is expired mate may make one final point you may thank you very much  pages seventeen and eighteen the defendant say i suggest that perhaps that that portion of the petition reflects his thinking at the time that he filed the petition not at the time of arguments raised on appeal the nd point is that the petition was claiming that he could have given that testimony at the time it wasn't claiming that he knew he remembered evidence he was claiming he was ready to go at the time at trial  and as the defendant argues the facts in the that are alleged in the petition are to be taken as true at this stage so neither party should be able to pick and choose which fact actual allegations to believe or to to be in trouble for what he did he knew we was in trouble with the law however section six hundred and thirty six dash three of the code regarding the involuntary intoxication were brought condition defense says that a person who is in that condition is criminally responsible unless it's involuntarily produced and deprives them of substantial capacity either to appreciate the criminal criminal or to conform his conduct to the requirements of law so the fact that mr raman at certain points indicated that he knew he was breaking the law might go to that  element that he was able to appreciate and we can have a debate on whether appreciate and knowledge is the same thing i don't think it is exactly the same thing but if you look at the nd element conformist conduct that's completely conduct driven and the fact that someone might be mentally aware and some at some level that gee this is this is a legal does it is not the same thing as ability to conform conduct to the law and that's that is a nd and distinct element which by the way is not available in the insanity defense and i know that the status cited a few cases where the insanity defense has been raised but this is different involuntary drug condition is different it has the nd element one is a mental element once a conduct element and if the drug robs you of your ability to conform your conduct to the law then you still have that defen again i'm not suggesting here that he's going to have a great case when he's able to bring all his evidence here but it is not been foreclosed by the record and that's really the point here at st stage review it hasn't been foreclosed he deserves his chance to come up to the plate with respect to some of the cases that the state cites on page forty of it's brief where it says there are a number of cases in which courts have reviewed the st stage and  based on things in the record does dismissed because they are paid only without merit we're not disputing out of course that there are circumstances in which that occurs but this is not a case like i think it was the richardson case where the claim was well my attorney should have filed a motion to suppress and the court looks at all the evidence and says you know what even if that surprise if even if your statement was completely suppressed there was so much evidence state find you guilty anyway how  going around i control on what i was doing i ha ha is that different than the court here looking at the record saying even having raised there's enough evidence to suggest it's not going to  because there isn't enough evidence of that in this case you know even looking at all the things that the state calls to the court's attention that you know he performed well as job that that he made certain statements indicating some awareness that what he was doing was illegal that is still not enough to disprove the contention absolutely that he that he was not in his right mind when he did that he could not conform nothing in the record to support it and there is things in the record that the court can use to find its list respectfully no your honor because at the st stage the supreme court's been very clear about this  pro se petitioner is not required to present all his evidence he just has to have enough evidence i'm sorry i agree with you when i understand sprint court's decision that he's not required resent