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2020 IL App (2d) 180447-U 

No. 2-18-0447 

Order filed November 20, 2020 

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 

SECOND DISTRICT 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court 

OF ILLINOIS, ) of McHenry County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 15-CF-937 

) 

BRANDEN NAPOLITAN, ) Honorable 

) Sharon L. Prather, 

Defendant-Appellant. ) Judge, Presiding. 

JUSTICE JORGENSEN delivered the judgment of the court. 

Justices McLaren and Brennan concurred in the judgment. 

ORDER 

¶ 1 Held: Trial counsel was not ineffective for advancing only an insanity defense and not a 

second-degree murder theory. Affirmed. 

¶ 2 After a stipulated bench trial, defendant, Branden Napolitan, was found guilty, but mentally 

ill, of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2016)) and possession of a stolen motor 

vehicle (625 ILCS 5/4-103(a)(1) (West 2016)). The trial court sentenced defendant to concurrent 

prison terms of 28 years for the first-degree murder conviction and 4 years for the stolen-motorvehicle conviction. On appeal, defendant challenges the effectiveness of his trial counsel, arguing 
 

 

 

 

 

 

 

2020 IL App (2d) 180447-U 

that counsel should not have advanced an insanity defense on defendant’s behalf. For the 

following reasons, we affirm. 

¶ 3 I. BACKGROUND 

¶ 4 Defendant suffers from schizophrenia. Prior to the events at issue, he underwent four 

psychiatric hospital admissions, including for auditory hallucinations (wherein he heard the voices 

of men, women, and God), and paranoia (wherein he believed people were trying to harm him). 

Defendant did not routinely take his prescription medications, because he did not like the way that 

they made him feel. Defendant admitted to using cocaine. 

¶ 5 On October 23, 2015, defendant did not feel well; his mind was racing, and he felt 

overwhelmed with thoughts. He called 911 and told the operator that he needed assistance getting 

to a hospital. Paramedics transported defendant to the hospital, and they noted that he had body 

odor, appeared unkempt, and made comments suggesting that his girlfriend was going to hurt him. 

After arriving at the hospital, he panicked and ran away; staff apprehended him and brought him 

back for an evaluation. The hospital’s crisis team and emergency-room physician determined that 

defendant was stable, and he was sent home. 

¶ 6 Back at his apartment, defendant’s roommate, Daryl Fox, cooked dinner, while defendant 

smoked cigarettes. Defendant still felt “jittery,” but was beginning to feel better. However, at 

some point during the evening, defendant and Fox argued. Defendant reported that it might have 

been an argument about doing dishes, or about Fox wanting defendant to eat dinner, when 

defendant did not want to eat. Defendant reported that he grabbed a knife and thought, “if I do 

stab him, then everything’s going to be ok for me. Like, I’m not going to die,” but that “of course” 

he did not have the nerve to do it right away and that he did not do it until, suddenly, “it just 

happened.” Defendant also reported, however, that, during the argument with Fox, he started 

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hearing voices, telling him that Fox wished to fatally harm him and that he needed to harm Fox 

before Fox could hurt him. Defendant grabbed a knife and, as Fox stood smoking a cigarette at a 

porch door with his back turned, stabbed Fox from behind. Fox turned around and asked defendant 

why he stabbed him, and defendant responded that he did not know. In one statement, defendant 

said that, at first, he did not even know that he had stabbed Fox, but that he thought Fox was going 

to kill him. Defendant stated that his mind went “blank” after stabbing Fox. However, he took 

Fox’s wallet, money, the knife he had used to stab Fox, his cell phone, Fox’s cell phone, a 

telephone charger, a change of clothes, and Fox’s car keys and then he left home in Fox’s car. We 

note that defendant also strangled Fox, but it appears that he did not report his thoughts or feelings 

while doing so. 

¶ 7 The next day, defendant called his girlfriend, Danielle Arizaga-Linaras, and told her that 

he got into a fight with Fox and punched Fox in the nose, but that Fox was okay. Arizaga-Linaras 

asked defendant why he was driving Fox’s car, and defendant became angry and said that he was 

running from the police after he crashed Fox’s car in Richmond, Illinois. As Arizaga-Linaras 

asked him questions, defendant gave only vague and evasive responses and grew increasingly 

paranoid. Eventually, defendant said that he was going to his sister’s house in Delavan, Wisconsin. 

Defendant’s sister does not, however, live in Delavan. 

¶ 8 Ultimately, as attempts by various persons to reach both defendant and Fox were unfruitful, 

officer William Lintner of the Woodstock police department was asked to perform a wellness 

check at Fox’s residence. The blinds on the back patio door were closed, precluding a view inside, 

but the front door turned out to be unlocked. Upon entering and searching the house, he found 

Fox’s body lying face down on the floor, with the top half of his body in a closet. Later, the 

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coroner determined that Fox died from strangulation, but that the stab wound to his back that 

punctured one of his lungs was a significant contributing factor. 

¶ 9 Meanwhile, police in Madison, Wisconsin, began receiving reports about a disoriented man 

spending time in and around a Metro Mart. When they arrived to check on his welfare, defendant 

told police that he was waiting for his mother to give him a ride and that he needed no assistance. 

He appeared disheveled, confused, and was wandering around outside in the cold. Later that 

evening, police learned that defendant was wanted for homicide. When they returned to the Metro 

Mart, defendant ran, and, after a police pursuit, defendant was arrested. Officers located Fox’s 

vehicle; the front bumper was ripped off and located in the vehicle’s back seat. When interviewed, 

defendant talked about “Adam and Eve,” reported that he felt possessed, and stated that he had 

argued with Fox before punching him, stabbing him in the back, and then choking him. Defendant 

stated that he believed that he belonged in an insane asylum. He admitted that, before the incident 

with Fox, he had not taken his prescription medication and had ingested cocaine. He also told the 

police that they could have sex with his girlfriend and that he wanted to smoke marijuana with 

them. 

¶ 10 Defendant was transported to Illinois and charged with first-degree murder. Assistant 

public defender Angelo Mourelatos was appointed to represent defendant, and Mourelatos moved 

that defendant receive a psychiatric evaluation concerning his mental state at the time of the 

offense. 

¶ 11 Dr. Robert Meyer evaluated defendant on February 1, 3, 5, and 10, 2016, for approximately 

one hour each meeting. Meyer reviewed the police reports, medical records, etcetera, and he issued 

a report on February 19, 2016. Meyer noted that, when police interviewed defendant in 

Woodstock, “Throughout the interview, it was apparent that [defendant] was responding to internal 

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stimuli in that, on multiple occasions, he appeared distracted as if he was listening to something 

or someone who was not present in the interview room. He also exhibited sudden mood swings, 

from being relatively calm to emotionally distressed, and crying spells. At times, he was 

disconnected from the content of the conversation, unable to follow the topic at hand and missing 

jokes from the detectives.” Meyer determined that defendant was exhibiting signs of psychosis 

during the police interview. Defendant explained to Meyer that he had been feeling “bad” during 

the two weeks leading up to Fox’s death. Despite taking his medication, defendant heard “very 

demanding” voices in his head and felt “very paranoid,” believing that people were trying to harm 

him. On the day of the incident, defendant was still hearing voices and feeling paranoid when he 

got into a fight with Fox. The voices in his head told him that Fox was wanted to kill him, which 

made defendant feel angry and threatened. During this time, the voices also continuously told 

defendant to stab Fox, and he recalled “a specific voice saying a mutual friend of ours, Adam, 

would do it to save his life, so you should do it too.” Defendant stabbed Fox. When he did it, the 

voices told him it would be a “very bad thing” if he did not do it, but he realized that he did 

something wrong as he drove away. 

¶ 12 In his report, Meyer recited the statutory definition of legal insanity (720 ILCS 5/6-2 (West 

2016)). He summarized, 

“*** [T]he examiner believes [defendant] understood his alleged offense was 

illegal and not condoned by society, but his subjective understanding of right and wrong 

was informed by the symptoms of his mental disease—persecutory delusions and auditory 

hallucinations, which ultimately led him to believe his actions were legally or morally 

justified. [Defendant] described his motivations as a means of self-defense. [Defendant] 

carried out the alleged offense with the belief his actions were justified in order to defend 

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and protect himself from imminent death or great bodily harm. According to the provisions 

of 720 ILCS 5/6-2 regarding issues of insanity and criminal responsibility, [defendant] is 

consistent with an individual who lacked the substantial capacity to appreciate the 

criminality of his alleged conduct as a result of his mental disease or defect, in that, the 

delusional symptoms of his psychotic disorder impaired his contact with reality and led 

him to believe he would be killed if he did not use the necessary force to prevent imminent 

death or significant bodily harm.” (Emphases added.) 

In his report’s conclusion, Meyer determined both that defendant was “able to appreciate the 

objective moral or legal standard of the wrongfulness of his alleged conduct while believing his 

alleged conduct to also be justified based upon his subjective moral judgment” and that defendant 

was not guilty by reason of insanity, because his “mental status at the time of the alleged offense 

is consistent with his (delusional) belief that his actions were legally and morally justified as an 

act of self-defense or self-preservation.” 

¶ 13 On November 5 and 6, 2016, for approximately one hour each meeting, the State’s expert 

witness, Dr. Terrance Lichtenwald, examined defendant. Lichtenwald also reviewed police 

reports, medical records, etcetera, and he concluded that defendant attempted to elude police and 

cover up the murder, noting, in part, that he engaged in “goal-directed evasive verbal responses” 

when various people asked him questions prior to his arrest, fled to Madison, and did not turn 

himself into police when approached there. Lichtenwald agreed with Meyer that defendant 

suffered from schizophrenia at the time of the offense, and he determined that defendant had the 

capacity to appreciate the criminality of this conduct at the time of the offense. Lichtenwald 

concluded that, because defendant took substantial steps to avoid detection of the crime, he met 

the criteria for being guilty, but mentally ill. 

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¶ 14 The stipulated bench trial commenced on January 25, 2018. Both doctors testified 

consistent with their reports. In pertinent part, Meyer testified that defendant was a paranoid 

schizophrenic and had acted under a mistaken belief that he was protecting himself based on his 

paranoid delusions. He noted that, when he interviewed defendant, defendant was medicated and 

his personality was very “flat” and disconnected, which was very different from how defendant 

presented in his post-arrest interview with police. Meyer believed that before, during, and after 

the offense, defendant was psychotic, very confused, and suffered from auditory hallucinations. 

Thus, although defendant believed that killing was wrong, he mistakenly believed that he was 

protecting himself. Specifically, although there was no actual threat, in defendant’s paranoid mind, 

there was a threatening situation that required him to act to protect himself. Further, Meyer 

testified that defendant’s cocaine and alcohol consumption likely exacerbated the schizophrenic 

symptoms. Meyer testified that defendant was not guilty by reason of insanity, because, at the 

time of the offense, his delusional beliefs caused him to feel improperly justified in taking Fox’s 

life. Meyer disagreed with Lichtenwald’s report which, he opined, focused too heavily on 

defendant’s actions after the murder, rather than the totality of the circumstances. For example, 

although defendant took with him the knife used in the offense, he seemed unaware of its existence 

and simply left it in the car and did not try to dispose of it. Moreover, Meyer disagreed with 

Lichtenwald that cocaine withdrawal would have led to murder; Meyer opined that defendant’s 

actions were driven by delusions and paranoia, and cocaine might have acted only as a further 

destabilizing agent. Meyer testified that he believed that defendant “appreciated the criminality of 

his conduct,” but that the nature of his mental illness and delusions caused him to act in periods of 

delusion and confusion. 

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¶ 15 Lichtenwald, in contrast, testified that, while he agreed that defendant suffered from 

schizophrenia and appreciated the criminality of his conduct, defendant was not legally insane at 

the time of the offense. Lichtenwald testified that, with respect to sanity and whether a defendant 

understood the criminality of his or her actions at the time of the offense, he looks for “an 

individual that is acting on a delusional belief system, regardless of what the consequence is going 

to be for that behavior. I want to see if there is any way that they have mitigated possible 

consequences for their behavior. The old, kind of, ‘would they do that behavior with a policeman 

at your elbow’ test.” In other words, would he or she have acted the same way if law enforcement 

were present. Lichtenwald testified to what he assessed as significant steps and goal-oriented 

behavior that defendant took after the crime to elude and deceive law enforcement or others. He 

explained that defendant told him varying versions of his altercation with Fox, in one version 

stating that he had to build up courage to attack Fox and, in another, stating that he heard voices 

telling him to kill Fox. Lichtenwald testified that persons with schizophrenia can act with 

aggression, but they are more likely, generally, to be a victim than a perpetrator. He concluded 

that defendant was guilty, but mentally ill, as he could appreciate the criminality of his conduct. 

¶ 16 On March 9, 2018, counsel provided closing arguments to the court. In doing so, the State 

noted that even Meyer had testified that defendant was able to appreciate the criminality of his 

conduct, which meant that, in fact, Meyer found defendant legally sane at the time he committed 

the offense. In addition, the State noted that Meyer rendered his opinion despite some missing 

data (the results from one test he administered to defendant) and, further, that he basically ignored 

the steps that defendant took after the crime to hide his conduct or evade apprehension and, thus, 

that his opinion should not be given great weight. The State pointed out that Meyer “opines that 

the defendant did appreciate the criminality of his conduct, but then says that the defendant’s 

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mental status at the time of the offense satisfies the legal criteria for not guilty by reason of insanity. 

That doesn’t make sense. It appears that Dr. Meyer’s attempting to craft his own little exception 

to the insanity statute and, frankly, with all due respect, that’s not his job ***.” 

¶ 17 Defense counsel noted defendant’s history of hospitalizations and schizophrenic 

symptoms, including a trip to the hospital with auditory hallucinations the same day as the incident, 

and argued that Meyer’s findings were supported and credible. In addition, he noted that, although 

Meyer testified that defendant appreciated the criminality of his conduct, he also “found, to a 

reasonable degree of psychological certainty, that [defendant’s] mental status at the time of the 

offense is consistent with his delusional beliefs that his actions and—were morally justified as an 

act of self-defense or self-preservation and, therefore, Dr. Meyer’s expert opinion satisfies the legal 

criteria for not guilty by reason of insanity.” Further, counsel noted that, according to Meyer: 

“in his mind [defendant] believed that there was an actual threat based on his mental 

illness, even though no threat existed, but based on his mental illness, acted based on voices 

telling him that the victim in this case, a Mr. Fox in this case who he knew, who was a 

friend of his, there is no other logical explanation for him to do this act other than voices 

were telling him to do this. And this pattern of voices telling him to do things and 

homicidal/suicidal ideations and that God was speaking to him, this individual Adam was 

speaking to him, come and do this, stem back from all the way from 2007.” (Emphasis 

added.) 

Counsel further noted that defendant would remain responsible for the tragedy, even if the court 

found him not guilty by reason of insanity. Specifically: 

“In addition, Your Honor, if the Court finds that [defendant] is not guilty by reason 

of insanity, — as the Court is well aware, this does not mean that [defendant] is going to 

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be released—[defendant] is going to be in custody in the Illinois Department of Human 

Services and the Court is well aware, pursuant to People v. Thiem, [82 Ill. App. 3d 956 

(1980)] that it’s a maximum sentence. He is going to be getting the help that he needs. He 

going to be held accountable for his offense and he’s going to be in an institution that is 

going to help him.” 

¶ 18 In rebuttal, the State commented that, if the court considered Meyer’s report, “[h]e says the 

defendant is so overcome with delusions that he thought that he had to kill or be killed. That’s 

mistaken self-defense. That’s second[-]degree murder, Judge. That’s not, not guilty by reason of 

insanity ***.” (Emphasis added.) The State, later in the argument, however, noted that “the cause 

of death was strangulation and the victim was stabbed in the back and there is no evidence 

whatsoever which would lead you to believe that the victim was the aggressor in any way.” 

(Emphasis added.) 

¶ 19 On March 28, 2018, the court found defendant guilty, but mentally ill, of first-degree 

murder and possession of a stolen motor vehicle. It credited Lichtenwald’s report over Meyer’s 

report, but noted that both doctors found that defendant understood that his actions were wrong 

and, further, that defendant had demonstrated that understanding based upon his behavior after the 

crime, i.e., leaving the scene, stealing Fox’s car, phone, and wallet, lying to family and friends, 

and fleeing to Wisconsin. The court noted, however, that “it’s more probably true than not that 

the defendant was, in fact, mentally ill at the time he committed the offenses.” The court denied 

defendant’s motion for a new trial. 

¶ 20 On June 8, 2018, the court sentenced defendant to 28 years’ imprisonment for first-degree 

murder and 4 years’ imprisonment for possessing a stolen motor vehicle. The sentencing order 

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reflects that the court ordered mental-health treatment and recommended that defendant be placed 

in a mental-health facility. Defendant appeals. 

¶ 21 II. ANALYSIS 

¶ 22 On appeal, defendant contends that his trial counsel was ineffective for pursuing an “allor-nothing” trial strategy centering on the insanity defense and that counsel misapprehended the 

law. Defendant notes that Meyer’s report clearly indicated that defendant understood the 

criminality of his conduct, but that his mental illness caused him to unreasonably believe that he 

was acting in self-defense. Defendant argues that trial counsel, therefore, misapprehended the law, 

where the report supported a second-degree murder defense, not the legal definition of insanity. 

As such, defendant asserts that he was denied the right to effective assistance of counsel, where 

counsel advanced a defense that was clearly unsupported by the facts and the law. Further, 

defendant notes that counsel failed to request a verdict on the lesser offense of second-degree 

murder, nothing reflects that the trial court sua sponte considered second-degree murder, and he 

was, therefore, prejudiced because second-degree murder would have allowed for a lesser sentence 

than what he received for first-degree murder. Defendant asks that we reverse his conviction and 

remand for a new trial. 

¶ 23 To establish a claim of ineffective assistance of counsel, a criminal defendant must 

establish deficient performance and prejudice, namely: that counsel’s deficient performance 

rendered the result of the trial unreliable or the proceeding fundamentally unfair and that there is 

a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. People v. Bull, 185 

Ill. 2d 179, 203 (1998). Failure to satisfy either prong defeats the claim. People v. Patterson, 192 

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Ill. 2d 93, 107 (2000). Where ineffective-assistance claims were not litigated below, we review 

them de novo. People v. Lofton, 2015 IL App (2d) 130135, ¶ 24. 

¶ 24 To establish deficient performance, a defendant must prove that his counsel’s performance 

was so inadequate that counsel failed to function as the counsel guaranteed by the sixth 

amendment. People v. Nunez, 325 Ill. App. 3d 35, 42 (2001). In other words, a defendant must 

show that no reasonably-effective attorney, when confronted with the circumstances of the 

defendant’s trial, would have engaged in similar conduct. People v. Fletcher, 335 Ill. App. 3d 447, 

453 (2002). As he notes in his brief, to establish that his counsel performed deficiently, defendant 

must overcome the strong presumption that counsel’s actions stemmed from sound trial strategy. 

People v. Ramsey, 239 Ill. 2d 342, 433 (2010). Counsel’s strategic choices are virtually 

unassailable. Id. 

¶ 25 Defendant agrees that counsel’s all-or-nothing insanity defense would ordinarily be valid 

trial strategy, unless that strategy was advanced based on a misapprehension of law. Such is the 

case here, defendant argues, because the insanity statute provides that “[a] person is not criminally 

responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, 

he lacks substantial capacity to appreciate the criminality of his conduct.” 720 ILCS 5/6-2(a) 

(West 2016). Therefore, defendant argues, when counsel received Meyer’s report, which found 

that defendant was able to appreciate the “wrongfulness” of his conduct, as well as Lichtenwald’s 

report, which agreed with that determination, he should have realized that the insanity defense was 

untenable and that second-degree murder would be the applicable defense. Second-degree murder 

is applicable, in sum, when a person commits first-degree murder but, at the time of the killing, 

unreasonably believes the circumstances to be such that would justify or exonerate the killing in 

self-defense. See 720 ILCS 5/9-2(a)(2) (West 2016). Defendant reiterates that, given Meyer’s 

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finding that defendant acted with an unreasonable belief in self-defense caused by psychosis, 

which clearly did not fit the legal definition of insanity, but would have fit a second-degree murder 

theory, counsel’s misapprehension of law and all-or-nothing approach constituted deficient 

performance, not sound legal strategy. For the following reasons, we disagree. 

¶ 26 Again, defense counsel’s choice of trial strategy, including to argue a particular defense 

theory, is virtually unassailable. See, e.g., People v. Neasom, 2017 IL App (1st) 143875, ¶ 43; 

People v. Milton, 354 Ill. App. 3d 283, 290 (2004). It is true that, although courts have routinely 

recognized that pursuit of an “all-or-nothing” defense is a valid trial strategy (see People v. 

Barnard, 104 Ill. 2d 218, 231-32 (1984)), such an approach is unreasonable if it is advanced due 

to counsel’s misapprehension of law (People v. Walton, 378 Ill. App. 3d 580, 589 (2007)). We do 

not agree, however, that the record reflects that counsel here misapprehended the law. 

¶ 27 From the outset, defense counsel sought to ascertain his client’s state of mind at the time 

of the offense. The report issued by Meyer appeared contradictory in terms of its findings of legal 

insanity. In the report, he found both that defendant appreciated the criminality of his conduct and 

that defendant was legally insane when he committed the offense. Meyer explained that, when the 

crime was considered in the context of defendant’s entire psychological history, it is clear that the 

crime was committed while defendant was experiencing intermittent periods of psychosis and 

hallucinations. Meyer explained that he believed Lichtenwald’s findings were flawed, because 

they placed too great an emphasis on events after the crime, as opposed to the entire psychological 

profile. The facts of the case demonstrated that defendant had a history of psychiatric 

hospitalizations, including on the day of the murder, when he called 911 to report hallucinations 

and racing thoughts, that he did not feel well, and, at that time, he presented with body odor and 

was unkempt. After the murder, when eventually apprehended in Madison, he appeared 

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disoriented and confused and was lingering in the cold outside of a store. Given this context, and 

the totality of information and findings in Meyer’s report, counsel could have reasonably 

determined that pursuing a defense that defendant’s schizophrenia precluded him from 

substantially appreciating the conduct of his crime was reasonable. 

¶ 28 Further, the facts here did not demonstrate that Fox was actually an aggressor or in any 

way provoked defendant’s behavior. As such, we disagree with defendant’s suggestion that 

counsel was ineffective for not pursuing a second-degree murder theory on the basis that defendant 

used unreasonable force in his own self-defense. Again, there was nothing to demonstrate that 

Fox was using, or imminently about to use, unlawful force. See 720 ILCS 5/7-1(a) (West 2016) 

(a person is justified in the use of force against another when and to the extent that he or she 

reasonably believes that such conduct is necessary to defend himself or herself against another’s 

imminent use of unlawful force). To argue self-defense, generally, the defendant bears the burden 

of establishing some evidence of six factors, including that: (1) force was threatened against the 

defendant; (2) the defendant was not the aggressor; (3) the danger of harm was imminent; (4) the 

threatened force was unlawful; (5) the defendant actually and subjectively believed a danger 

existed that required the use of the force applied; and (6) the defendant’s beliefs were objectively 

reasonable. People v. Washington, 2012 IL 110283, ¶ 35. As to the sixth factor, if the belief as to 

the use of force was reasonable, self-defense is applicable and the defendant may be acquitted; 

however, if the belief as to the use of force was unreasonable, a second-degree murder conviction 

may be appropriate. See People v. Hooker, 249 Ill. App. 3d 394, 403 (1993). Either way, however, 

there needs to be evidence that defendant actually believed that he was physically threatened. 

“The second[-]degree murder statute provides a mitigating factor only where the defendant 

actually believes, though unreasonably, that he [or she] is physically threatened. It does not cover 

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circumstances where a mental disorder causes the defendant to overreact to a non-physical 

threat.” (Emphasis added.) People v. Yates, 195 Ill. App. 3d 66, 70 (1990). 

¶ 29 Here, defense counsel (and the State) noted for the court that there was no evidence of an 

actual threat against defendant. Defendant nevertheless argues that Yates is distinguishable 

because, there, the defendant suffered from posttraumatic stress disorder and no expert established 

that the defendant perceived the victim’s blackmail attempt as a physical threat, whereas, here, 

both experts agreed that defendant’s schizophrenia could have caused him to genuinely and 

subjectively believe that Fox imminently intended to kill him. Defendant also cites in support 

People v. McDonald, 329 Ill. App. 3d 938, 951 (2002), asserting that, there, the court held that the 

schizophrenic defendant was not entitled to a second-degree murder instruction, where there was 

no expert testimony establishing he actually perceived the victims as an imminent physical threat, 

when he set fire to an apartment and killed four people. Defendant contends that, here, the 

evidence here would have supported the following application of facts to the above five factors 

needed to establish second-degree murder: (1) Fox and defendant had an argument; (2) Fox started 

the argument; (3) defendant believed that Fox imminently intended to kill him based on 

defendant’s illness-induced delusions; (4) Fox’s perceived imminent action (homicide) would 

have been unlawful if true; and (5) defendant subjectively, but unreasonably, believed that his use 

of force was necessary to defend himself. Defendant summarizes that, where the trial court found 

that he was more likely than not mentally ill when he committed the offense, it would have been 

“more than possible” that the court would also have found him guilty of second-degree murder 

and, therefore, it was incumbent upon counsel to at least argue in favor of a second-degree murder 

verdict. We disagree. 

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¶ 30 Again, there was no evidence that Fox was in any way an actual physical aggressor or that 

defendant perceived an actual physical threat from Fox, as opposed to a theoretical threat of harm. 

Our review of defendant’s various statements of the events reflects, overall, his expression of a 

delusional belief that, unless defendant acted first, Fox might harm him. We have not seen any 

evidence or testimony wherein defendant describes any physical action taken by Fox against him; 

rather, in sum, defendant expressed that, when he stabbed Fox, Fox stood at a door, smoking a 

cigarette, with his back turned. Defendant expressed, at one point, that he had to build up nerve 

to stab Fox, which belies an imminent attack by which he had to defend himself, and that he had 

experienced delusions for days that people were trying to harm him. Indeed, defense counsel noted 

that defendant heard voices telling him that he needed to act to protect himself, “even though no 

threat existed,” suggesting that counsel knew it would be challenging to establish, for a claim of 

self-defense or second-degree murder, that there was an actual threat of force and that defendant 

was not the aggressor. 

¶ 31 We disagree with defendant that People v. Lemke, 349 Ill. App. 3d 391 (2004), warrants a 

different conclusion. In Lemke, the defendant shot his stepson, and, at the bench trial, counsel 

pursued an all-or-nothing approach, such that the trial court was able to either find defendant guilty 

of first-degree murder or not guilty because the shooting was an accident, but no involuntary 

manslaughter theory was pursued. On appeal, the court determined that counsel’s strategy could 

only have resulted from a misapprehension of law, because the evidence presented could not have 

supported a theory of innocence based on an accident as, by his own testimony, the defendant took 

a handgun outside as part of an ongoing dispute and had pointed the gun in his stepson’s direction. 

Lemke, 349 Ill. App. 3d at 399-400. Under the circumstances, the court concluded that counsel’s 

all-or-nothing approach was not a viable strategy and prejudiced the defendant, and the court 

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remanded so that the trial court could consider whether the defendant’s conduct was not 

intentional, but was reckless. Id. at 401-02. 

¶ 32 Here, as mentioned above, the evidence presented did not support second-degree murder. 

Rather, the evidence reflected that, after an argument and without any physical provocation, 

defendant preemptively stabbed Fox in the back and strangled him because of a delusional 

perception of risk. Therefore, the evidence reflected only that defendant’s mental disorder caused 

him to overreact to a non-physical threat, which does not constitute second-degree murder. As 

such, counsel could have made a reasonable strategic decision to pursue only insanity to explain 

why defendant’s actions were taken in response to only a delusional threat of harm. We also find 

particularly telling counsel’s comments in closing argument to the court that finding defendant 

legally insane would not allow him to evade responsibility for the crime, but it would allow him 

to receive necessary treatment. To us, this suggests that counsel strategically looked at the record 

as a whole and his client’s psychiatric history and determined that, given his inability to prove any 

actual threat of violence by Fox against defendant, the best result for his client would be to 

convince the court that insanity applied and that defendant should be institutionalized with 

treatment, as opposed to incarcerated. Counsel pursued a valid trial strategy and “[t]he mere fact 

that this strategy proved unsuccessful does not mean counsel performed unreasonably and 

rendered ineffective assistance.” Walton, 378 Ill. App. 3d at 589 (citing People v. Milton, 354 Ill. 

App. 3d 283, 290 (2004) (“Counsel’s choice [of defense theory] does not constitute ineffective 

assistance of counsel simply because it was unsuccessful.”)). 

¶ 33 Moreover, in a bench trial, the court is presumed to know and correctly apply the law, and 

the presumption is only rebutted where the record affirmatively shows otherwise. People v. 

Mandic, 325 Ill. App. 3d 544, 546 (2001). In addition, the court in a bench trial may sua sponte 

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convict a defendant of second-degree murder. People v. Walton, 378 Ill. App. 3d 580, 588 (2007). 

Thus, despite counsel’s strategy, the trial court could have considered the lesser offense; as such, 

counsel cannot be found ineffective for failing to request that the court do what it was inherently 

empowered to do even in the absence of a request, i.e., consider second-degree murder. See People 

v. Spiller, 2016 IL App (1st) 133389, ¶ 40 (“counsel cannot be found ineffective for failing to 

request that the trial court consider second degree murder, as the trial court was empowered to 

consider this lesser offense regardless of counsel’s arguments.”). Unlike the courts in Walton and 

Spiller, the court here did not expressly consider and reject second-degree murder, but defendant 

points to no requirement that the court must do so or anything else here to rebut the presumption 

that the court considered any defense or mitigation properly before it. See People v. Bardsley, 

2017 IL App (2d) 150209, ¶ 22. Indeed, the State argued to the court that Meyer’s report seemed 

to suggest mistaken self-defense, which would be closer to second-degree murder, and, yet, despite 

having the lesser offense expressly brought to its attention prior to ruling, the court instead found 

defendant guilty of first-degree murder. 

¶ 34 As defendant has not established that trial counsel’s performance was deficient, his 

ineffective-assistance claim fails, and we need not consider the prejudice-prong of his claim. 

People v. Colon, 225 Ill. 2d 125, 135 (2007). We briefly note, however, that we disagree with 

defendant’s prejudice arguments for some of the same reasons described above. Specifically, 

defendant argues that the prejudice to him is plain, because first-degree murder carries with it a 

minimum term of imprisonment of 20 years (730 ILCS 5/5-4.5-20(a) (West 2016)), whereas 20 

years was the maximum term of imprisonment for second-degree murder (730 ILCS 5/5-4.5-30(a) 

(West 2016)). Instead, he received 28 years’ imprisonment, more than the maximum he could 

have received for second-degree murder. He contends that there was a possibility that the trial 

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court would have found him guilty of second-degree murder, had counsel advanced the theory, as 

the court, by finding him guilty but mentally ill, must have found that defendant’s schizophrenia 

impaired his judgment at the time of the offense, did not state that second-degree murder was 

inapplicable, and sentenced him on the lower-end of the sentencing range for first-degree murder. 

¶ 35 Prejudice is established when there is a reasonable probability that, but for counsel’s errors, 

the result of the proceeding would have been different. People v. Cloutier, 178 Ill. 2d 141, 163 

(1997). “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s 

conduct so undermined the proper functioning of the adversarial process that the trial cannot be 

relied on as having produced a just result.’ ” People v. Albanese, 104 Ill. 2d 504, 525 (1984) 

(quoting Strickland, 466 U.S. at 686). Here, defendant cannot show that, but for counsel’s alleged 

deficient performance, the result would have been different, where the evidence did not support a 

second-degree murder conviction and where the trial court was inherently empowered to consider 

sua sponte second-degree murder, that crime was brought to its attention in argument prior to 

ruling, and it, nevertheless, found defendant guilty of first-degree murder. Defendant argues that 

there was a reasonable probability that the court could have found him guilty of second-degree 

murder based on the fact that it found him guilty, but mentally ill, and sentenced him toward the 

lower end of the applicable sentencing range. We disagree. Although the court found that 

defendant was guilty, but mentally ill, and sentenced defendant on the lower end of the firstdegree-murder range, it still did not give him the minimum sentence. The court pointed out that 

defendant took several steps after the murder to avoid apprehension, which caused it to reject the 

assertion that defendant was incapable of comprehending the criminality of his conduct. 

Defendant’s ineffective-assistance claim fails. We affirm. 

¶ 36 III. CONCLUSION 

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¶ 37 For the reasons stated, the judgment of the circuit court of McHenry County is affirmed. 

¶ 38 Affirmed. 

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