No. 2--07--0239 Filed: 9-15-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court IL LI NOI S, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 02--CF--3410 ) RAMESH K. SWAMYNATHAN, ) Honorab le ) Fred L. For

eman, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered the opinion o f the cou rt: Defend ant, Ramesh K. Swamy

nathan, a ppeals f rom the tr ial cour t's orde r dismissin

g his pro
se petition for relief pursuant to the Post-Conviction Hearing Act (the Act) (725 IL CS 5/122--1 et seq. (West 2006)) as frivolous and patent ly without me rit. Def endant' s petition a

ttacked his convictionof first-degree murder ( 720 I LCS 5/9--1( a) (West 2002)), which was entered afte r he pleaded guilty but mentally

ill. In his petition, defendant alleged tha t he was not me

ntally fit at the time he entered his guilty plea and that, therefore, his plea wa s i nv ol un ta ry. On appeal, defendant contends that the trial court erred in dismissing his petition, becaus e it alleg ed the gist of a constituti onal cla

im. We aff

irm. OnOctober 9, 2002, defendant was char g ed by indictment with the September 6, 2002, murder of the victim, Ramarao Chittiprolu. The indictment alle ged tha t defend ant killed the victim by stabbing him with a knife and vegetable peeler.No. 2--07--0239

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After defenda nt was tak

en into cus tody, the trial court found a bona fide doubt as to defend ant's mental fitness and ordered that he undergo a fitness evaluation. On October 15, 2002,
a report o f the fitness evaluation was filed in the trial court and reflected that defenda nt suffered from
a "Schizoaffective Disorder or Schizophrenic Disorder that *** include[d] delusion[al] thinking." Also on October 17, 2002, the trial court found defendant unfit to enter a plea or stand t

r ial and remanded him to the Illinois Department of Mental Hea lth and Developmental Disabilities (DMH) for trea tment. Ina written report filed in the trial court on April 15, 2003, the DMH reported that defendant had been restore d to fitnes s. The re port indic ated tha

t, at the ti me of his initial admission, defendant
was ac ut el y ps ych ot ic an d w as pr eo cc up ie d w it h a ud it or y h allucina tions. Def

endant w as also "hy per-vig ilant" and anxious and was unable to calm down. D efenda nt exhibited symptoms of depression, including difficulty slee ping, poor ap petite, feelings of hopelessness, and suicidal ideation s. The report indicated that, upon treatment with Prozac and risperidone, de f endant 's psychiatric

symptoms and depressive sy mptoms had

subsided, and his sleep and appetite improved. The report concluded that defendant was fit to stand trial provided tha t he continued taking his medicati ons. The report stated that defendant had an under standing of the charges a

gainst him and the function of the legal

system, including

the role s of the ju

dge, ju ry , prosec uting at torney, defens e at to rn ey, and witnesses. Further, defendant could com

mu nicate logically

and assist in his own defense. The report stated that defendant's medic ations would not aff ect defenda

nt's abi lity

to particip ate at trial. The report suggested tha t, because defendant

was a native of India a

nd his first langua ge was Tamil, he would benefit from the presence of a Tamil interpreter in any futureNo. 2--07--0239

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evaluat ions. The report stated

that, while defendant understood and could speak some English, he was "more expressive and fluent in Tamil." OnJuly 2 , 2003, the

parties s tipulated

to th e DMH's finding of fitness and the trial cour t entered anorder finding defendant fit to stand trial. The trial court also entered an order r equiring the presenc e of a Ta

mil interpreter to

assist def

endant in all cour t procee din gs. Due to some difficulties in locating an interpreter, though, def endant was without an

interpreter during some of the initia l procee dings, in

cluding a portion of the he aring on defend ant's mo tion to suppress. OnApril 29, 2004, defendant, assisted by counsel and a Tamil interpreter, appear ed before the trial court to enter a plea of guilty but mentally ill to the charg e of first-degree murder
. The trial court summarized the factual basis for the plea and admonished defe ndant of the charges ag ains t him, t he co nsequences of pleading guilty , and the potential sentences. Defendant stated that he understood

the trial court' s admonish

ments. I n respons e to questioning by the trial court, defendant provi ded hi s name and age and stated that he was a citizen of I ndia. Defendant

stated that he was notunder the influence of illegal drug s or alco hol and indi cated that he had taken his prescribed medicati ons. Defendant stated that his pres cr iption medi cation di d not aff ect his a bility to understand

the proceedings and that he was not having

any difficul ty concentrating. The trial court noted the pres ence of

the inter preter and enc ourag ed defe

ndant to let the int

erpret er know i f

he did notunderstand any

thing being said. Defendant confirmed that he wished to plead

guilty but menta

lly ill to the charge of first-deg ree murder. Defendant confirmed that he had spoken to his lawyers about his case and that he was satisfied with their represe ntation. Defendant stated that he had not been threatened and had not received a ny promises in return for

his guilty plea. Following the trial court's colloquy with defendant, the trial court stated:No. 2--07--0239

-4- "The Court finds a know ing, voluntary and intellige nt waiver of trial by

ju dg e o r j ur y. The defendant per sists in h is pl ea. An a dequa te fact ual ba sis i s pres ented throu gh [defendant's] confession ***.

*** The Court also finds the defenda nt--I have no b ona fide

doubt as to

the fitne ss of the defendant today. He see

ms lucid. He understands what we are talking about. He converses with us in English. He clearly understands what the interpreter is telling him. *** * * * I, theref ore, con ditionally accept the plea and ente r a findin g of g uilty on this charge. I will order a Pre-Sentenc e Investigation and se t the case for sentencing ***." OnMay 27, 2004, after conducting a sentencing hearing, the trial court sentenced de fendant to 20 ye ars' im prisonme nt. OnApril 13, 2006, defendant filed a pro semotion to withdraw his guilty plea and to vacat e his sentence. Defend

ant alleged that, prior to en tering his plea, he was a

dmitted to a

psychiatric hospital as "apretrial detainee." Defendant alleged that, "due to [his] mental state of mind, [his] plea
was notknowi ng, nor intelligent." Defendant further alleged that he "was not mentally competent to enter a plea" or to understand the const itutional r ights he was waiv ing as a result of his pl ea. In support of his motion, defendant supplied his own affidavit, in which he averred that

he was "not of sound mind" when he entered his guilty plea. Defendant averred that his "mental state of mind was suchas to that of a complete mental breakdown" and that he was still suffering from severe mental illness at the time he pleaded guilty
. Defendant averred that he did not understand the constitutionalNo. 2--07--0239

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rightshe was giving

up by pleading

guilty and that he

was "totally ig

norant of the law

and the legal proceedings in the United States when [he] pled." OnJuly 13, 2006, during a status hearing on defendant' s motion, the trial court noted that the motion to withdra

w the gu ilty plea wa s untimely

and dete rmined tha

t the mo tion shou ld be recharacterized

as a postc onviction

petition in

accordancewith the procedure established in People
v. Shellstrom , 216 Ill. 2d 45 (2005). The tria l court c ontinued t

he case so that defendant, who was notpresent in court, could be admonished accordingly
. On July

27, 2006, d

efenda nt was pre sent in op e ncourt an

d the tria l court inf

ormed him t

hat it was

going to recha racter ize his motion as a postconviction petition. Defendant indicated that he would accept the r echaracterization; however,
no Tamil interpreter was present during the he aring. Defendant told the trial court he under st ood English "a little bit." OnNovember 2, 2006, the trial court returned defendant to court for additional admonishments. On this date, a Tamil interpreter was available to assist defendant. The trial court explained to defendant that it had recal le d the case so that he could be admonished through an interpreter

to make sure he understood the proceedings. The trial court once again advised defendant that his motion to withdraw hi s gu ilty plea would be rec haracterized as a postconviction petition. Ad di ti on al ly, for the first time, the trial court admonished defendant that, be cause of the recharacterization, he would be subject to t he Act's restrictions on successive postconviction p etitions. Th e t ri al co ur t a ls o a dm on is he d d ef en da nt th at he wo ul d b e g iv en an op po rt un it y t o
w ithdrawthe petiti on or to ma ke any amendme

nts that he

desired . Defen

dant indic ated his understa nding a nd assent to the tria

l court' s admonish

ments.No. 2--07--0239

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OnJanuary 26, 2007, the trial court e ntered a written order di smis sing d efenda nt's postconviction petition a s f rivolous a

nd patently without merit. Base d upon its review of the transcript of the guilty plea

proceedings, the trial court concluded that t he reco rd bel ied de fendan t's claim that he did not knowingly a nd intelligently plead g

uilty. The trial cou

rt note d that the trial judge who had accepted defendant' s plea had been well informed of defend ant's mental history and had specifically inquire d and confirmed defendant's fitness to enter a plea. A ccordingly , the trial court concl uded t hat de fendan t's po stcon victi on pet itio n fail ed to s tate t he gi s t of a constitutional claim. De fendant

subseque ntly filed a ti mely notice of appeal. Prior to considering the merits of the appeal, we first a ddress defendant's motion for summar y remand that we ordered

taken with the case. In his motion, defenda nt argues that the trial court failed to enter its dismis sal o rder within 90 days of the docketing of his petition as required by section122--2.1(a)(2) of

the Act (725 IL CS 5/122--2.1(a)(2) (West 2006)). Defendant notes that the trial court's dismissal order was entered more tha n 90 days afte

r July 27, 2006, the date the trial court first advised defendant that it was rechar act erizing his motion to

withdraw

his guilty

plea as a postconviction petit ion. Defend ant req uests that w e summ arily reve rse th e tria l cour t's dismis sal order and remand the case for the appointment of couns el an d for sec ond-stag e proce edings i n accordancewith the Act. See People v. Porter , 122 Ill. 2d 64, 86 (1988) (hol ding th at the time restriction

of sectio n 122--2. l(a) is ma

ndatory and that t

rial cou rt's fa ilure to a ct within s tatu

to ry period requires trial court to docket the petition for further pr oceedings under the Act). In Shellstrom , our

supreme court he ld that, where a trial court is presented a pro sepleading alleging a deprivation of

rights c ognizabl e in

a postcon viction pr oceedin g, the tr ial cour t may choose to treat t he pl ea di ng as a p os tc on vi ct io n p et it io n, ev en wh er e t he pl ea di ng is la be le d d if fe re nt ly.No. 2--07--0239

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Shell strom , 216 Ill. 2d at 53. Where a trial court choose s to recharacterize a pleading as a postconvi c tion pet ition, it must (1) notify the pro selitigant that it intends to recharacterize the plead ing; (2) warn

the litigant that the recharacterization means that any subsequent postconviction petition will be subject

to the restrictions on successive postconviction petitions; and (3) provide the litigant an oppor tunity to withdra

w the plea

ding or t o amend it

so that it c onta i ns all the c laims appropr iate to a postconviction petition that the litigant believes he or she has. Shellstrom , 216 I ll. 2d at 57. Until the t ria l court pr ovides all of the required admonishments, the pleading is not considered

to have become a postconviction petition for purposes of the Act. Shellstrom , 216 I ll. 2d at 57. Inthe pres ent case , althoug h the tr ial cour t first ad

vised def endant on July 2 7, 2006, of

its intentto recha

racter ize his pro semotion to withdra w his gui lty

plea as a postconvi ction pet

ition, it fa iled to pr ov id e d ef

en da nt al l o f t he ad mo ni sh me nt s r eq ui re d b y Shellstrom on t his date. A s detailed above, on July 27, 2006, the trial court advised de fendant only of its intent to recharac

teri ze his motion. On this date, the trial court did not admonish defendant that such a procedure woul d subj ect hi m to t he Act 's restrictions on successive postconviction petitions; the trial court al so did notprovide defe ndant an opportunity to withdraw the plea ding or to amend it. Without such admonishments, defendant's pleading could not be c onsidered to have be come a postconviction petition under the Act. See Shellstrom , 216 Ill. 2d at 57. It was not until the November 2, 2006, he aring t

hat the tr ial cour t fully admonished defendant inaccordance w ith Shellst romand ga

ve him the

opportuni

ty to withdraw

his pro sepleading or amend it. Therefore, under Sh ellstrom , N ovemb er 2, 2 006, i s the e arlie st dat e that defend ant's pleadingcould be considered to have been dockete d before the trialcourt under the provisions of theNo. 2--07--0239

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Act. See Shellstrom , 216 Ill. 2d at 57. As the trial court's January 26, 2007, dismissal orde r was entered within 90 da

ys o f Novemb er 2, 200 6, we con clude tha t the tria l court c ompleted

its firststage review with the time required by section 122--2.1(a)(2) of the Act. Ther efore, defendant is not entitled to a remand on this basis and we deny his motion for summary remand. Turning to the mer

its of the a ppeal, defendant contends that the trial court erred in dismissing his p ostconvic tio n petition as frivolous and patently without merit. Def endant argues that the petition stated the

gist of a

constituti onal c laim a

nd that he should have been afforded the opportuni ty to further develop his claim with the assistance of counsel. As detailed a bove, defend ant's petition alleged that his guilty plea was not

knowing and intelligent because he wa s not competent

to unders tand his r

ights or to ente

r a plea . In h

is appella te brief, d efenda nt notes th at his mental health ha

d alway s b een a ce

ntral i ssue in the case and argues that his alleg ation of mental incompetence "was, at the very least, not clearly

rebutted by the record. " Defe ndant add itionally asserts, for the first time on appeal, that his plea was involuntary (1) due to the una vailability of a Tamil inte

rprete r at cer tain hea rings, and (2) as a result o f the tria l court' s failure

to admonish him at the time of his plea that he would be required t o serve a term of ma

ndatory supervis ed rele ase (MSR). The Act provides a re medy to criminal defendants who have suffered substantial violations of their constitutional rights. People v. Barcik , 365 I ll. App. 3d 183, 190 ( 2006). Whe

n the dea th penalty is not involved, there are three stages to proce edings under the Act. Barcik , 365 Ill. App. 3d at 190. I n the insta

nt case, defenda

nt's pet ition was d

ismi ssed at the first sta

ge. Dur ing the f irst stage, the trial

court de termines whether the defe ndant' s alle gations sufficiently demonstrate a constituti onal vio lation that would necessitate relief. People v. Coleman , 183 Ill. 2d 366, 380No. 2--07--0239

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(1998). The trial court may summarily dismiss the petition if it finds that the petition is "frivolous
or is patentl y without mer

it." 725 I LCS 5/1 22--2.1( a)(2) (

West 2006). A petition is "frivolous or patently without merit" if it does not state the gist of a constitutional claim. People v. Edwards , 197 Ill. 2d 239, 244 (2 001). We re view de novo the first-stage dismissal of a postconviction petition. Barcik , 365 Ill. App. 3d at 190. We first consider defendant's alleg ations that he was mentally unf

it to enter a plea of

gu il ty. During postconviction proceed ings cha llengin g a find ing of f itness, a defenda nt must show

in his or her petition

sufficient facts to raise a bona fide doubt of hi s or her f itness tostand trial. People
v. Shum , 207 I ll. 2d 47 , 57 (2003). A defendant is considered unfit to participate in the trial procee dings if, beca

use of the

defenda nt's men tal or phy

sical condition, he

or she is u

nable to understand

the nature and purpose of theprocee dings an d to assist i

nhis or her

defense . 725 ILCS 5/104--10 (West 2006 ); People v. Moore , 189 Ill. 2d 521, 535 (2000) . The mere fact that a defendant has limited mental capacity doe s not by itself render him or he r unfit to stand trial. Moore , 189 I ll. 2d at 536. Ou

r supreme court has held that fitnes s refers only to a person's ability

to functionwithin the context of

a trial, s uch that a defenda nt ma y befit to stand trial although the defendant's mind is otherwise unsound. Moore , 189 Ill. 2d at 536. Factors releva nt to the tr

ial cour t's fitne ss dete rm ination include: (1) the defendant's knowledg e and understanding of the charge, the procee dings, the conse quence s of a ple a, judg ment, or sentence, and the functions of the part icipants inthe trial process; (2) the defe ndant' s ability

to observ e, reco llect, and rela te occur rences , especi ally those concer ning t he incidents allege d, and to com muni cate wi th cou nsel; and (3 ) the d efenda nt's social beh avio r and abilities, orientation as to time and place, recognition of pe rsons, places, andNo. 2--07--0239

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things, and perf

ormance of motor processe s. 725 I LCS 5 /1 04--16(

b) (West 20 06); People v. Mitchell , 189 Ill. 2d 312, 335 (2000). Inhis petition and accompanying affidavit, defendant offers nothing but conc lusory and unsupported

assertions that he was not "mentally competent to enter a plea"; he ha d not been "of sound mind"; and he had been

suffering from "a complete mental breakdown." The se concl usions, standing alone, are not sufficient to raise a bo na fide dou bt of fitness, as defendant alleges no supporting facts . S ee People v. Vunetich , 185 I ll. App. 3d 415, 419 ( 1989). Moreover , these al le gations are plainly r

efuted by the r

ecord, which reflects that no bona fide doubt regarding defend ant's fitne ss ex isted at the time he ent ered hi s guil ty plea. A s deta iled a bove, altho ugh defendant was initially found

to be unfit to stand trial following his arrest, he received treatment by the DMH and was later found to have been re stored to

fitness by

stipulation of the pa

rties. At the hearing in which defendant

ple aded g

uilty , the tria

l court sp ecifica

lly i nquired a s to his fitness. During th is in qu ir y, defendant stated that he was taking his prescribed medications, he was having no diffic ulty concen trating , he had the opportu nity to consult

with his attorney, and he

understood the proceedings. As a result of its co lloqu y with defe ndant, an d by its own obse

rvation o f his behavior, the trial court that accepted the plea specifica lly found no bona fide doubt as to defend ant's fitness. Defend ant of

fers no evide nce in his p etit ion t hat wo uld re fute t he tri al cou rt's conclusion that he was fit to enter a plea. Accordingly , defendant's conclusory

allega tions of un fitness f

ail to stat e the gist of a constitutional claim under the Act. See People v. Rogers , 197 Ill. 2d 216, 222 (2001) (holding that dismissal of postconviction petition is appropriate where the record fr om original trial proceedings contradicts the defe ndant's allegations and shows the petition is without merit).No. 2--07--0239

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As noted above, defendant raises two additiona l issues for the f

irst time on

appeal. Sp ec if ic al ly, defenda

nt argu es that his plea wa s involunta

ry (1) due t o the unav

ailability of a Tami l interpre ter at ce rtain he arings , and (2)as a res ult of the tri al court's fail

ure to ad monish him, at the time of his plea, that he would be required to serve a ter m of MSR. Because these matters were not raised in def endant' s petition, they

have be en waive d, and we decline to conside

r them on a

ppeal. See 725 IL CS 5/122--3 (West 2006) ("Any c laim of substantial denial of con stitutional rights not raised in the original or a

n amende d petition i s waived "). The sole basis of defendant's claim that hi s ple a was involuntary was his allegations that he was mentally unfit. As we have discussed, defendant's allegations fa iled to state the gist of a

constitutional claim, and the trial cou rt prope rly dismissed h

is petition as frivo lous and pa

tently without me

rit. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f La ke Co un ty. Affirmed. McLAREN and JORGENSEN, JJ., concur.