2020 IL App (1st) 181260-U

No. 1-18-1260 

Order filed October 28, 2020 

Third Division 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

 v. 

BELTON SMITH, 

 Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County 

No. 07CR14512 

Honorable 

Alfredo Maldonado, 

Judge Presiding. 

JUSTICE BURKE delivered the judgment of the court.

 Presiding Justice Howse and Justice Ellis concurred in the judgment. 

ORDER

¶ 1 Held: We affirm the circuit court’s dismissal of defendant’s pro se postconviction petition 

where defendant failed to show that his trial counsel’s performance was arguably 

deficient or that he was arguably prejudiced by trial counsel’s performance. 

¶ 2 Defendant Belton Smith appeals from an order of the circuit court of Cook County 

summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act (Act) 

(725 ILSC 5/122-1 et seq. (West 2016)). On appeal, defendant contends that the court erred in 

summarily dismissing his petition where the allegations in his petition and the affidavits attached 
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thereto presented a cognizable claim that his trial counsel arguably provided ineffective assistance

in failing to impeach the State’s expert witness with evidence that the expert’s psychiatric 

evaluation interview with defendant was significantly shorter than his testimony suggested. 

Defendant asserts that there was no strategic reason for his trial counsel to not impeach the State’s 

expert witnesses with this evidence and that the impeachment of the expert witness would have 

undermined his conclusions regarding defendant’s sanity at the time of the offense. Defendant 

asserts that where his sanity was the subject of a “battle of the experts,” trial counsel’s failure to 

impeach the State’s expert witness represented arguably deficient performance and arguably 

prejudiced him. For the reasons that follow, we affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 A. Trial

¶ 5 A full recitation of the facts from defendant’s trial can be found in this court’s order on 

defendant’s direct appeal. People v. Smith, 2016 IL App (1st) 141442-U (unpublished order under 

Illinois Supreme Court Rule 23). As relevant here, defendant was convicted after a bench trial of 

aggravated criminal sexual assault and home invasion and sentenced to consecutive prison terms 

of 21 and 6 years. The evidence adduced at defendant’s trial showed that in 2007, defendant’s wife 

and two of his children were killed in a motor vehicle accident. Defendant survived without 

suffering significant injuries, but was prescribed Dilaudid, a powerful painkiller. About a month 

after the motor vehicle accident, defendant called a friend of the family, M.G., and asked if he 

could come over to M.G.’s home to show him something. When defendant entered M.G.’s home, 

defendant grabbed M.G. and attacked him. Defendant forced M.G. to the ground and ordered him 

to perform oral sex, threatening to kill him. M.G. performed oral sex on defendant and noticed that 

defendant was holding a camera. Afterwards, defendant demanded money from M.G. M.G. only 
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had a $2 bill, so defendant told M.G. to put on his wife’s nightshirt so they could go to an ATM. 

Defendant led M.G. from his home, keeping a grip on him. Defendant and M.G. were approached 

by a neighbor, Joann Konstantopoulos. Konstantopoulos noted that defendant was leading M.G. 

by the arm and that M.G. was wearing a woman’s nightshirt and was pale and disheveled with 

blood on his face. Defendant told Konstantopoulos that he was taking M.G. to the doctor. 

Defendant loosened his grip on M.G. and M.G. fled screaming “call the police.” Konstantopoulos 

called M.G.’s wife and M.G. ran to a gas station where he called police. M.G. identified defendant 

as the assailant to responding officers and defendant was arrested. Police officers searched 

defendant’s home where they discovered a camera under sheets in the laundry room and a $2 bill. 

¶ 6 Prior to trial, the court ordered a behavioral clinical examination (BCX) of defendant’s 

sanity. In September 2010, psychiatrist Dr. Monica Argumendo submitted a BCX report to the 

court stating that she examined defendant in August 2010 and found him legally sane at the time 

of the offense with “no indication that he suffered from a mental disease or defect which would 

have caused him to lack substantial capacity to appreciate the criminality of his conduct at that 

time.” In March 2011, the court ordered a new BCX of defendant’s sanity at defense counsel’s 

request. In May 2011, psychiatrist Dr. Nishad Nadkarni submitted a BCX report to the court in 

which he stated that he examined defendant in April 2011 and found that he was legally sane at 

the time of the offense and “was not suffering from any mental disease or defect that would have 

substantially impaired his capacity to appreciate the criminality of the alleged act.” 

¶ 7 In June 2011, private counsel appeared for defendant and the public defender withdrew. 

Defendant’s new counsel informed the court that he and defendant were working with psychologist 

Dr. Michael Stone. Dr. Stone submitted a report detailing his examinations and testing of 

defendant. In the report, Dr. Stone opined that defendant was under extreme emotional and 
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physical duress at the time of the incident and that he suffered from agitated depression and 

borderline personality disorder. Dr. Stone opined that the effects of strong opiate narcotics, such 

as Diluadid, would exacerbate defendant’s condition. The report did not state, however, that at the 

time of the offense defendant was legally insane such that he could not appreciate the criminality 

of his actions. Dr. Stone later submitted an addendum to his psychological evaluation in which he 

opined that defendant had not fully processed or recovered from the loss of his family in the motor 

vehicle accident. Dr. Stone believed that defendant was in chronic pain and abusing his 

medications. Dr. Stone opined that defendant “combined Dilaudid with a cognac to the degree that 

he ended up in a state of extreme confusion and disorientation.” Dr. Stone concluded that the 

“combined effect of all these vulnerabilities rendered him incapable of responsibility for his 

actions at the time of the alleged instant of offense.” 

¶ 8 The State filed a motion in limine seeking to bar defendant from raising the defense of 

voluntary or involuntary intoxication or drugged condition and preventing Dr. Stone from 

testifying that defendant’s actions were result of intoxication. The court granted the motion in 

limine in part, finding that Dr. Stone could testify to defendant’s mental state due to trauma, but 

not due to prescription drugs because, as a psychologist, he was not qualified to opine on the effect 

of drugs on one’s mental state. 

¶ 9 At trial, Dr. Stone testified that defendant was legally insane at the time of the offense 

because of a psychotic episode. Dr. Stone testified that defendant’s sexual assault of M.G. was 

“bizarre” because it was not typical behavior for defendant. Dr. Stone testified that he based his 

conclusions on a three-hour interview of defendant, interviewing defendant’s mother, and 

reviewing defendant’s records. Dr. Stone testified that his opinion “here on this stand” at trial was 

that defendant’s borderline personality disorder and agitated depression resulted in a psychotic 
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episode that rendered him unable to “conform his behavior due to the mental defect *** to the 

norms and requirements of the law.” Dr. Stone acknowledged, however, that his report did not 

state that defendant suffered a mental disease or defect rendering him legally insane. 

¶ 10 Dr. Nadkarni testified in rebuttal that he interviewed defendant for about an hour in 2011 

after reviewing defendant’s records including Dr. Argumendo’s 2010 BCX report. Dr. Nadkarni 

testified that defendant denied any symptoms of any major mental illness and had no history of 

psychiatric treatment. Defendant told Dr. Nadkarni about the fatal motor vehicle accident, but did 

not mention any other source of trauma. In interviewing defendant, Dr. Nadkarni did not see any 

signs of psychiatric or cognitive impairment. In discussing the incident with M.G., defendant said 

that he was sad and angry due to the deaths in his family and that an argument arose with M.G., 

but he denied any sexual assault. Dr. Nadkarni noted that defendant had changed his account of 

the incident over time and confronted defendant with this fact testifying that this indicated that 

defendant was able to appreciate the criminality of his conduct. Dr. Nadkarni opined that defendant 

was not suffering from any major mental illness and thus never had a psychotic episode on the day 

in question. Dr. Nadkarni testified that defendant’s behavior during the incident, including calling

M.G. to ensure that he was home alone, bringing a camera to M.G.’s home, demanding money 

from M.G., and attempting to bring M.G. to an ATM, indicated organized rather than disorganized 

thinking. He characterized defendant’s behavior as sadistic rather than bizarre. When asked about 

Dr. Stone’s finding of stress and trauma, Dr. Nadkarni stated that such a conclusion was 

unwarranted. 

¶ 11 In finding the defendant guilty, the court discussed Dr. Stone’s testimony and Dr. 

Nadkarni’s rebuttal. The court noted that the experts in this case were giving opinions on an 

incident that occurred several years “before they first ever saw the defendant.” The court noted 
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that it had “great difficulty with Dr. Stone.” The court found that as Dr. Stone testified “it was 

thoroughly clear he had not tendered an opinion which would have been valuable to this court 

prior to taking the stand. And once he got on the stand he then made the calculated opinion as to 

the defendant’s insanity at the time these events are alleged to have occurred.” The court observed

that Dr. Stone spent “a considerable amount of time more than Dr. Nadkarni” with defendant, but 

nonetheless found that defendant was not insane at the time of the incident. The court therefore 

found defendant guilty on all counts. 

¶ 12 B. Direct Appeal

¶ 13 On direct appeal to this court, defendant’s sole contention was that his trial counsel 

deprived him of the right of meaningful assistance of counsel under United States v. Cronic, 466 

U.S. 648 (1984) by presenting the legally invalid defense of insanity. Smith, 2016 IL App (1st) 

141442-U, ¶¶ 2, 32. This court found that defendant failed to raise a cognizable claim under 

Cronic, but did not address the merits of defendant’s claim regarding trial counsel’s performance. 

Id. ¶¶ 35, 36. 

¶ 14 C. Postconviction Petition 

¶ 15 On January 17, 2018, defendant filed a pro se petition under the Act alleging, inter alia, 

that the State’s expert witness, Dr. Nadkarni, testified falsely at his trial. Specifically, defendant 

asserted that he never told Dr. Nadkarni about the accident that resulted in the death of his wife 

and children. He also asserted that Dr. Nadkarni spoke to him for only 17 minutes and asked him 

only about his health and current mindset. Defendant contended that he informed his trial counsel 

about Dr. Nadkarni’s false testimony and urged him to obtain the sign in sheet from the Cook 

County Jail, but counsel failed to do so or “even attempt to make examination adversarial.” 

Defendant attached an affidavit to his petition from Kimberly Mascarenas, defendant’s girlfriend. 
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In the affidavit, Mascarenas averred that she asked defendant’s trial counsel to obtain the “log 

book” from the Cook County Jail for the date and time that defendant was evaluated by Dr. 

Nadkarni. Defendant’s trial counsel responded that he would not be able to help defendant 

anymore because defendant owed him $2,000. 

¶ 16 In dismissing defendant’s petition, the circuit court found that defendant failed to allege 

that the State knowingly presented false testimony regarding the amount of time that Dr. Nadkarni 

spent with defendant. As such, the court found that defendant failed to state a cognizable claim 

under the act. The court further found that the petition lacked information to show that defendant’s 

allegations could be corroborated. The court noted that defendant mentioned a sign in sheet and 

Mascarenas’s affidavit mentioned a jail “log book,” but defendant failed to attach any such records 

to his petition. The court also determined that Dr. Nadkarni’s testimony “did not seem significant 

to the verdict.” The court noted that the trial court discounted both testimony of both experts 

because they both evaluated defendant years after the offense. The court also noted that the trial 

court’s comments about Dr. Stone’s testimony suggested that Dr. Nadkarni’s rebuttal testimony 

was not critical to the outcome of the case where it was defendant’s burden to prove by clear and 

convincing evidence that he was not guilty by reason of insanity. The court further noted that Dr. 

Nadkarni’s opinion that defendant’s actions during the offense indicated organized thinking did 

not depend on an in-person examination of defendant. The court therefore found that defendant 

had failed to show that his trial counsel arguably provided unreasonable assistance and for the

same reasons found that defendant failed to show that he was arguably prejudiced by his counsel’s 

failure to impeach Dr. Nadkarni regarding the length of the evaluation. Defendant now appeals. 

¶ 17 II. ANALYSIS
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¶ 18 On appeal, defendant contends that the court erred in summarily dismissing his petition 

where his claim of trial counsel’s ineffective assistance, supported by an affidavit from 

Mascarenas, was sufficient to show an arguable violation of the test set forth in Strickland v. 

Washington, 466 U.S. 668, (1984) for evaluating his counsel’s performance. Defendant asserts 

that if trial counsel had impeached Dr. Nadkarni with the jail sign-in sheet as defendant requested, 

such impeachment would have contradicted Dr. Nadkarni’s testimony about the length, and 

therefore the substance, of his interview with defendant. Defendant asserts that the validity of his 

insanity defense was based on the conclusions of two experts with diametrically opposed opinions 

and their credibility was critical to the outcome of the case. Defendant maintains that therefore 

trial counsel’s failure to impeach Dr. Nadkarni with the information in the jail sign-in sheet 

arguably prejudiced him and there was no strategic reason for trial counsel to not impeach Dr. 

Nadkarni with this information. 

¶ 19 A. The Post-Conviction Hearing Act

¶ 20 As an initial matter, we note that the Act provides a three-stage mechanism by which a 

criminal defendant may assert that his conviction was the result of a substantial denial of his 

constitutional rights. 725 ILCS 5/122-1 (West 2016); People v. Delton, 227 Ill. 2d 247, 253 (2008). 

At the first stage of proceedings, as here, defendant is required to set forth only the “gist” of a 

constitutional claim, and the circuit court may summarily dismiss the petition if it finds that the 

petition is frivolous or patently without merit, i.e., that it has no arguable basis in law or fact. 

People v. Hodges, 234 Ill. 2d 1, 9, 16 (2009). Normally, claims of ineffective assistance of counsel 

are analyzed under the standard set forth in Strickland. Id. at 17. Under that standard, a defendant 

must show both that counsel’s performance “fell below an objective standard of reasonableness” 

and that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88. At the 
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first stage of postconviction proceedings, however, a defendant need show only that it “arguable” 

that his claim has merit. People v. Tate, 2012 IL 112214, ¶ 20. As such, the supreme court has 

recognized that “[a]t the first stage of postconviction proceedings under the Act, a petition alleging 

ineffective assistance may not be summarily dismissed if (i) it is arguable that counsel’s 

performance fell below an objective standard of reasonableness and (ii) it is arguable that the 

defendant was prejudiced.” (Emphases added.) Hodges, 234 Ill. 2d at 17. Thus, defendant need 

not demonstrate counsel’s deficient performance at this stage, but must merely show that it is 

arguable that counsel’s performance was deficient. Tate, 2012 IL 112214, ¶¶ 19-20. Accordingly, 

we will assess whether defendant’s claim has met this arguable Strickland standard (Hodges, 234 

Ill. 2d at 17) and we review the summary dismissal of a postconviction petition de novo (Tate, 

2012 IL 112214, ¶ 10). 

¶ 21 B. Trial Counsel’s Failure to Impeach

¶ 22 Here, defendant contends that he demonstrated that it is at least arguable that he was 

prejudiced by trial counsel’s unreasonable performance. Defendant asserts that impeaching Dr. 

Nadkarni with the information in the jail sign-in sheet would have undermined Dr. Nadkarni’s 

credibility by showing that he misrepresented the amount of time that he spent evaluating 

defendant. Defendant asserts that impeaching Dr. Nadkarni with the sign-in sheet would have also 

weakened his conclusions about defendant’s sanity because it would have been “impossible” for 

Dr. Nadkarni to evaluate defendant in such a short amount of time. We find defendant has failed 

to show that trial counsel’s performance was arguably deficient or that he was arguably prejudiced 

by trial counsel’s performance.

¶ 23 First, defendant has failed to show that it is arguable that the trial court’s ruling on 

defendant’s insanity defense would have been different if trial counsel had impeached Dr. 
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Nadkarni as defendant suggests. A review of the trial court’s comments on defendant’s insanity 

defense show that the court did not even mention Dr. Nadkarni’s testimony, except to note that Dr. 

Stone spent more time evaluating defendant than Dr. Nadkarni did. Instead, the court focused on 

the deficiencies in Dr. Stone’s testimony and his report. The court noted that Dr. Stone first 

evaluated defendant years after the incident. The court then stated that it had “great difficulty with 

Dr. Stone” because Dr. Stone did not render an opinion on defendant’s sanity in his report, but 

then at trial made a “calculated opinion” as to defendant’s sanity at the time of the incident. 

¶ 24 These comments by the court highlight that it was defendant’s burden to establish his 

insanity defense. People v. Houseworth, 388 Ill. App. 3d 37, 50 (2008) (citing People v. Urdiales, 

225 Ill. 2d 354, 428 (2007)). Although defendant points out that Dr. Nadkarni testified that he was 

“very, very disturbed by Dr. Stone’s report” because he had rarely seen a report draw “psychiatric 

conclusions[] off of something that has absolutely no correlation with the known data” there is no 

indication that the trial court relied on that testimony in rejecting defendant’s insanity defense. 

Instead, the court simply found that Dr. Stone’s testimony, in combination with his report, failed 

to sufficiently establish defendant’s insanity at the time of the offense. As noted, the court’s 

conclusion appeared to be based on Dr. Stone’s failure to draw a conclusion about defendant’s 

sanity in his report, in contrast to his unequivocal testimony at trial that defendant was not sane at 

the time of the offense. Defendant has failed to show how impeaching Dr. Nadkarni with the 

alleged information on the sign-in sheet would have served to cure the deficiencies the court found 

in Dr. Stone’s testimony and report. 

¶ 25 In addition, defendant has failed to show that even if trial counsel had confronted Dr. 

Nadkarni with the sign-in sheet showing he spent only 17 minutes with defendant rather than one 

hour as he testified, that such impeachment would have undermined Dr. Nadkarni’s assessment
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and arguably changed the result of his trial. Dr. Nadkarni testified that he based his evaluation of 

defendant not only on his in-person interview with him, but also on a review of defendant’s 

records, which included Dr. Argumendo’s BCX report where she likewise found defendant sane 

at the time of the incident. Dr. Nadkarni also reviewed police reports from the incident, defendant’s 

medical records following the fatal motor vehicle accident, and his medical records from 2007 to 

2010 at Cermak Health Services. Furthermore, even though the sign-in sheet may have shown that 

Dr. Nadkarni interviewed defendant for only 17 minutes as defendant suggests, it would say 

nothing regarding the content of their interview. Dr. Nadkarni testified that he discussed with 

defendant the fatal motor vehicle accident, the incident with M.G., and defendant’s psychiatric and 

medical history. Dr. Nadkarni noted both in his trial testimony and his report that defendant did 

not have any signs of psychiatric or cognitive impairment and was not suffering from a major 

mental illness. Defendant fails to suggest that Dr. Nadkarni could not have reached these same 

conclusions even if his interview with defendant were shorter than he testified to given that the 

conclusions were also based on defendant’s medical record, police reports, and psychiatric history.

¶ 26 Indeed, there is no suggestion in the record that the trial court’s assessment of Dr. 

Nadkarni’s or Dr. Stone’s opinions would be altered in any way by trial counsel presenting 

evidence that Dr. Nadkarni spent less time with defendant than he stated. The record shows that 

the trial court was already aware that Dr. Stone spent more time interviewing defendant than Dr. 

Nadkarni did. In issuing its judgment, the trial court observed that Dr. Stone spent “a considerable 

amount of time more than Dr. Nadkarni” with defendant. This fact, however, did not seem to affect 

the trial court’s conclusion that defendant had failed to meet his burden on his insanity defense. 

This once again emphasized that it was defendant’s burden to establish his insanity defense and 

the trial court’s rejection of that defense was based on the deficiencies it found with Dr. Stone’s 
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testimony and reports, rather than on Dr. Nadkarni’s rebuttal testimony. The proposed 

impeachment of Dr. Nadkarni may have served to undermine his credibility, but it would not have 

bolstered Dr. Stone’s testimony and thus defendant’s insanity defense and therefore would not 

have arguably changed the result of his trial. Defendant has thus failed to show that is arguable 

that the result of his trial would have been different if trial counsel had impeached Dr. Nadkarni 

with the alleged information concerning the length on the interview. Accordingly, we find that the 

court did not err in summarily dismissing his pro se petition under the Act. 

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we affirm the judgment of the circuit court of Cook County. 

¶ 29 Affirmed.