                             2015 IL App (2d) 130994
                                   No. 2-13-0994
                          Opinion filed December 23, 2015
 ____________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Ogle County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 03-CF-45
                                       )
JOSE R. RODRIGUEZ,                     ) Honorable
                                       ) Robert T. Hanson,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the judgment of the court, with opinion.
       Justices Jorgensen and Hudson concurred in the judgment and opinion.

                                          OPINION

¶1     Defendant, Jose R. Rodriguez, appeals a judgment granting the State’s motion to dismiss

his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2012)). We vacate and remand.

¶2     In 2003, defendant was charged with first-degree murder (720 ILCS 5/9-1(a)(2) (West

2002)). He moved to suppress statements that he made to the police, alleging that he had not

knowingly and voluntarily waived his rights. At the hearing on his motion, defendant called Dr.

Michael Chiappetta, a clinical psychologist, who testified about his examination of defendant

and its results. The trial court denied defendant’s motion to suppress. Defendant filed other
2015 IL App (2d) 130994


pretrial motions, but his attorney did not move for a hearing on defendant’s fitness to stand trial

(see 725 ILCS 5/104-11 (West 2002)).

¶3     On May 2, 2005, after a stipulated bench trial, the court found defendant guilty and

sentenced him to 40 years’ imprisonment. On appeal, defendant argued that the court had erred

in denying his motion to suppress DNA evidence and in refusing to order the State to check

fingerprints in the victim’s home against its fingerprint-identification system. We affirmed.

People v. Rodriguez, No. 2-05-0862 (2007) (unpublished order under Supreme Court Rule 23).

¶4     On April 11, 2008, defendant filed a pro se petition under the Act, alleging in part that his

trial counsel had been ineffective for failing to investigate his fitness for trial or move for a

fitness hearing. The trial court advanced the petition to the second stage and appointed Donald

Delbert to represent defendant. On February 20, 2013, Delbert filed an amended petition. The

amended petition’s introduction requested that the trial court reverse defendant’s conviction,

“due to a violation of his constitutional rights in that a bona fide doubt existed as to whether the

Defendant was unfit [sic] to stand trial.”

¶5     The amended petition alleged as follows. After defendant was charged with first-degree

murder, he moved to suppress his statements to the police, on the ground that he had been unable

to waive his Miranda rights knowingly and voluntarily. See Miranda v. Arizona, 384 U.S. 436

(1966). Chiappetta examined defendant. Chiappetta testified as follows. During their clinical

interviews, he and defendant spoke to each other in English. Defendant understood Chiappetta’s

questions and responded appropriately. Chiappetta asked defendant whether he was on any

medication; about his educational, personal, health, employment, and criminal history; about his

use of drugs or alcohol; and about the events leading up to the questioning that allegedly violated




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Miranda.     Chiappetta also administered certain tests to defendant and screened him for

“psychosis or major mood disorders.”

¶6      Chiappetta testified that, during the interviews, defendant was oriented to time, place, and

person but “spoke sparingly” and “required much probing”; that “[h]is affect was blunt, but he

was cooperative”; and that “[m]any times during the interview he appeared perplexed or

preoccupied.” Defendant acknowledged “something like hearing voices[;] however[,] they were

a passing situation and did not arise to the criteria [sic] to be considered hallucinations.”

Defendant added that the situation improved when he used psychotropic medicine or cocaine and

marijuana. He told Chiappetta that he had quit school “because *** he didn’t understand and

that he had often engaged in cheating *** so he could appear to pass.”

¶7      Chiappetta testified that he gave defendant the Wide Range Achievement Test. The

result was that, “[a]s to the reading level, that is word recognition, he was fifth grade equivalent,

spelling, sixth grade equivalent.” Chiappetta administered the Wechsler Adult Intelligence Scale

to determine defendant’s verbal intelligence.         Defendant’s scores were in the borderline-

deficient range; 96% of the population would score higher. On “performance tests,” measuring

nonverbal skills, 90% of the population would score higher. Defendant’s “full scale I.Q.,” the

composite of his verbal and performance scores, placed him below 95% of the population.

¶8      The amended petition noted that the trial-court record was silent on whether Chiappetta

had been aware that, at the time of the interviews, defendant was taking doxepin, a prescription

psychotropic drug.    However, jail records (copies of which were attached to the amended

petition) showed that defendant had been taking the drug between January 17, 2004, and May 11,

2005, and that he had taken doxepin regularly for all of April 2005 and on May 1, 2005, just

before the trial.



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¶9     The amended petition attached defendant’s affidavit, in which he stated that he never

spoke to his trial attorney about “the issue of *** hearing voices” and that he had been truthful in

providing information to Chiappetta, including the fact that he had been “hearing voices.”

¶ 10   After summarizing the proceedings in the criminal case, the amended petition stated the

“Issue Presented” as “Whether the Defendant received ineffective assistance of appellate

counsel, due to appellate counsel’s failure to raise the issue of whether the Defendant received

ineffective assistance of trial counsel due to trial counsel’s failure to have the Defendant

examined with regard to the issue of his fitness to stand trial.” The amended petition noted that,

under section 104-11(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/104-

11(a) (West 2002)), as in effect during the criminal case, the issue of a defendant’s fitness to

stand trial may be raised by either party or the trial court at any appropriate time and, when a

bona fide doubt of fitness is raised, the court shall decide the issue before proceeding further.

Under section 104-11(c) of the Code (725 ILCS 5/104-11(c) (West 2002)), when a bona fide

doubt of fitness has been raised, the State must prove that the defendant is fit, but the court may

call its own witnesses and conduct its own inquiry.

¶ 11   The amended petition then noted that due process bars the prosecution of an unfit

defendant, and it cited the statutory definition of fitness (see 725 ILCS 5/104-10 (West 2002))

and case authority on the trial court’s discretion to decide whether a bona fide doubt of fitness

has been raised. The amended petition then argued that, in the criminal case, “a bona fide doubt

existed” of defendant’s fitness to stand trial, as Chiappetta had testified that, during the clinical

interviews, defendant had said that he had been “hearing voices”; that defendant’s affect was

blunt and cooperative and he had appeared perplexed; and that defendant’s I.Q. was in the

borderline-deficient range. Thus, the amended petition argued, defendant had been describing



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2015 IL App (2d) 130994


symptoms, including hallucinations, indicative of recognized psychotic disorders. The amended

petition contended further that, “[a]lthough Dr. Chiappetta’s testimony alone created a bona fide

doubt as to fitness, the record is silent as to the fact that the Defendant was taking psychotropic

medication for many months while in the Ogle County Jail.”

¶ 12   The amended petition asserted that, under the two-part test of Strickland v. Washington,

466 U.S. 668 (1984), defendant’s trial counsel had performed unreasonably and defendant had

suffered prejudice as a result. This was because counsel had heard Chiappetta’s testimony,

which raised a bona fide doubt, yet he had failed to move for a fitness hearing—and it was

reasonably probable that, after a hearing, defendant would have been found unfit. Also, the

symptoms that defendant had exhibited to Chiappetta “may have been caused or exacerbated by”

the doxepin. (Defendant’s sole authority for this last point was an excerpt from Wikipedia.)

¶ 13   In its “Conclusion,” the amended petition stated that (1) defendant was denied due

process when a bona fide doubt of his fitness was raised but no hearing was held; (2) the record

was silent on defendant’s use of doxepin, which might have caused or exacerbated his

“symptoms” of unfitness; (3) defendant’s trial counsel was ineffective for failing to request a

fitness hearing; and (4) his appellate counsel was ineffective for failing to raise trial counsel’s

ineffectiveness.

¶ 14   Delbert never filed a certificate under Illinois Supreme Court Rule 651(c) (eff. Feb. 6,

2013), which, as pertinent here, reads;

               “The record filed in [the trial] court shall contain a showing, which may be made

       by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner

       by phone, mail, electronic means or in person to ascertain his or her contentions of

       deprivation of constitutional rights, has examined the record of the proceedings at the



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        trial, and has made any amendments to the petitions filed pro se that are necessary for an

        adequate presentation of petitioner’s contentions.”

¶ 15    The State moved to dismiss the amended petition, contending that it had not made a

substantial showing of ineffective assistance of counsel. First, the State argued, there was no

showing that defendant’s trial attorney had performed unreasonably in declining to raise the

fitness issue; the presumption of fitness had not been overcome by Chiappetta’s testimony and

reports. Chiappetta had examined defendant only to ascertain whether he had knowingly and

voluntarily waived his Miranda rights, a question separate from whether he was fit to stand trial

months afterward. Chiappetta had provided only scant evidence from which unfitness for trial

could be inferred, and he had also provided evidence to the contrary, such as his testimony that,

during their interviews, defendant had understood his questions and responded appropriately,

with no signs of delusional thinking. Second, the State argued, the amended petition had not

made a substantial showing of prejudice, as there was no reason to infer from the evidence cited

in support of the petition that, had a fitness hearing been held, defendant would have been found

unfit. Indeed, argued the State, Chiappetta’s testimony had not even raised a bona fide doubt.

¶ 16    On September 4, 2013, the trial court granted the State’s motion and dismissed the

amended petition. The court’s written order stated that the amended petition failed to make a

substantial showing to support its contention that defendant’s trial attorney had been ineffective

for failing to request a fitness hearing.

¶ 17    Immediately after the trial judge ruled from the bench that the amended petition was

dismissed, Delbert requested leave to file a motion to appoint an expert witness at the county’s

expense. The motion cited the principle that prosecuting a defendant who is not fit to stand trial

violates due process. It stated further, “to properly prepare his Post-Conviction Petition, the



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Petitioner needs an expert to review his medical records and render an opinion with regard to the

evaluation performed by Dr. Chiappetta.” The expert would perform a retrospective fitness

examination and render an opinion on whether defendant had been fit for trial in 2005.

¶ 18   Delbert told the judge, “I just want to file, I’m not asking to argue it or anything.” The

judge responded, “You can file whatever you want.” Delbert filed the motion, on which no more

proceedings were held. On September 24, 2013, defendant filed a notice of appeal.

¶ 19   On appeal, defendant contends that the cause must be remanded for further second-stage

proceedings, because the record does not establish that Delbert provided the level of assistance

that Rule 651(c) requires. Defendant observes that, because Delbert never filed a Rule 651(c)

certificate, we cannot presume that he undertook his obligations under the rule. See People v.

Mendoza, 402 Ill. App. 3d 808, 814 (2010). Thus, the record must clearly and affirmatively

show that Delbert complied with the rule and provided reasonable assistance. See People v.

Lander, 215 Ill. 2d 577, 584 (2005); People v. Richardson, 382 Ill. App. 3d 248, 256 (2008).

¶ 20   Defendant then argues that the record establishes otherwise—that Delbert failed to amend

the pro se postconviction petition so that it sufficiently supported both of the claims that,

according to defendant, the amended petition raised: (1) a claim under Pate v. Robinson, 383

U.S. 375 (1966), that he was denied the effective assistance of counsel, and thus procedural due

process, because his trial attorney failed to move for a hearing on his fitness to stand trial; and

(2) that he was denied substantive due process, because the trial court convicted him while he

was actually unfit to stand trial. Defendant notes that these two types of claims are recognized as

substantively distinct: the failure to hold a fitness hearing when there is a bona fide doubt

violates procedural due process (id. at 384-85), while the conviction of an unfit defendant

violates substantive due process (Indiana v. Edwards, 554 U.S. 164, 169-70 (2008)).



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¶ 21    Defendant claims error on only the substantive-due-process claim. He concedes that,

despite the lack of a Rule 651(c) certificate, the record shows that Delbert’s amended petition

“properly alleged and supported a Pate claim (and a corresponding claim that trial and appellate

counsel were ineffective for failing to raise it).” “But,” he continues, “the [amended] petition did

not provide the necessary support for its substantive due process claim.”             According to

defendant, to show that he had actually been unfit during trial, Delbert needed to present

evidence that defendant was actually unfit. However, defendant maintains, Delbert unreasonably

declined to do so. He could have obtained a retrospective fitness examination as a means of

determining defendant’s fitness to stand trial in 2005, but he waited until after the judgment

dismissing the amended petition before he even moved to appoint an expert witness who could

perform a retrospective fitness examination.

¶ 22    The State responds that defendant’s argument on appeal fails because (1) it concedes that

Delbert performed reasonably under Rule 651(c) vis-à-vis the procedural-due-process claim that

the pro se and amended petitions actually raised and (2) it unsoundly relies solely on contending

that Delbert did not fulfill his obligations vis-à-vis the substantive-due-process claim that the

amended petition purportedly raised. According to the State, the amended petition did not

actually raise a claim of substantive due process—i.e., that, whatever the effectiveness of his trial

attorney, defendant was ultimately tried while unfit. The State reasons that Delbert could not

have “neglected” a nonexistent claim. Thus, it concludes, because defendant now waives any

contention that Delbert did not satisfy Rule 651(c) as to the sole claim that the amended petition

raised, there is no basis to hold that Delbert fell short of his obligations.

¶ 23    When the record in an appeal from the second-stage dismissal of a petition does not

contain the defendant’s attorney’s certificate of compliance with Rule 651(c), the record must



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clearly and affirmatively show that the attorney substantially complied with the rule.

Richardson, 382 Ill. App. 3d at 256. Defendant contends that the record does not show that

Delbert substantially complied with the rule. We agree.

¶ 24   The Act provides both that counsel may be appointed for the defendant at the second

stage if the defendant is indigent and that a petition may be amended or withdrawn. 725 ILCS

5/122-4, 122-5 (West 2012). Our supreme court has explained:

       “To the end that the complaints of a prisoner with respect to the validity of his conviction

       might be adequately presented, the statute contemplated that the attorney appointed to

       represent an indigent petitioner would consult with him either by mail or in person,

       ascertain his alleged grievances, examine the record of the proceedings at the trial and

       then amend the petition that had been filed pro se, so that it would adequately present the

       prisoner’s constitutional contentions.” People v. Slaughter, 39 Ill. 2d 278, 285 (1968).

¶ 25   The court addressed these same considerations in the requirements of Rule 651(c):

       “Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial

       court determines that the petitioner is indigent, it shall order that a transcript of the record

       of the post-conviction proceedings, including a transcript of the evidence, if any, be

       prepared and filed with the clerk of the court to which the appeal is taken and shall

       appoint counsel on appeal, both without cost to the petitioner. The record filed in that

       court shall contain a showing, which may be made by the certificate of petitioner’s

       attorney, that the attorney has consulted with petitioner either by phone, mail, electronic

       means or in person to ascertain his or her contentions of deprivation of constitutional

       rights, has examined the record of the proceedings at the trial, and has made any




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       amendments to the petitions filed pro se that are necessary for an adequate presentation

       of petitioner’s contentions.” Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).

¶ 26   The ultimate aim of both the Act and Rule 651(c) is the adequate presentation of the

petitioner’s claims. See Slaughter, 39 Ill. 2d at 285 (“To the end that the complaints of a

prisoner *** might be adequately presented”; “so that it would adequately present the prisoner’s

constitutional contentions.” (Emphases added.)); Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013) (“an

adequate presentation of petitioner’s contentions” (emphasis added)). According to our supreme

court, the Act “can not perform its function unless the attorney appointed to represent an indigent

petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal

form and presents them to the court.” Slaughter, 39 Ill. 2d at 285. To achieve that aim, counsel

must consult with the petitioner, examine the trial record, and make to the pro se petition any

amendments that are necessary for an adequate presentation of the petitioner’s contentions.

¶ 27   Postconviction counsel is not required to amend a petitioner’s pro se petition; rather, he is

required only to investigate and present the petitioner’s claims. People v. Kirk, 2012 IL App

(1st) 101606, ¶ 21. Counsel is not required to raise additional issues, but he may do so if he

chooses. Id.

¶ 28   Here, the record shows that, not only was Delbert aware of the issue regarding

defendant’s fitness to stand trial, he consistently brought this issue to the court’s attention in an

unsuccessful attempt to get an expert to perform a retrospective fitness evaluation to determine if

defendant was fit to stand trial in 2005. Delbert’s knowledge of this constitutional issue is

demonstrated by the following colloquies in the trial court:

               “MR. DELBERT: Well judge, this morning I had a motion to present to the

       court. I’ve done a lot of research. I’ve gotten all of the subpoenaed materials back, and I



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       was going to ask the Court today—not to get into it—but I have prepared a rather lengthy

       motion about appointing an expert witness to do a psychological evaluation; however, I

       haven’t really had a face-to-face conversation with Mr. Rodriguez since January, I think,

       so I had already served a copy of that motion on Mr. Rock [assistant State’s Attorney].

                I’ve since gotten it back, and I’m going to leave it in my briefcase until I can go

       over it with him. I don’t want to file anything until I talk to him.”

At the next court date:

                MR. DELBERT: Judge, I did indicate before that I would be asking the court,

       first of all, I’m not ready to file that motion, but I am going to be asking the court in the

       near future to appoint an expert witness with regard to Mr. Rodriguez’s fitness to stand

       trial and any issues related to that fitness back in 2004 [sic] when this case was tried. I

       have not had a chance to see Mr. Rodriguez because he hasn’t been brought to court on

       his last two court dates. I did not have an opportunity to speak with him at length about

       this motion, if he wants me to proceed on this. He, he originally filed a post-conviction

       petition containing, I believe, nine different issues and we’re working on, on those,

       Judge.

                THE COURT: Okay. Now, have you secured a potential expert witness or are

       you still trying to find one?

                MR. DELBERT: No, Judge. In fact, I spent quite a bit of time just researching

       the issue and how you do a retroactive evaluation, and whether it was lawful or not, and it

       is, but, you know, I just need a little more time to refine my motion here, Judge.”

Later that year:




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2015 IL App (2d) 130994


                “MR. DELBERT: I’ve been to Stateville and visited with my client.            I’ve

      explained to him what I’m doing, the issue that I’ve really focused on in his―in his Post-

      conviction Petition, and he’s on board with me 100 percent. I believe that would be safe

      to say.

                ***

                MR. DELBERT: I have another issue that I want―I don’t have a written motion

      prepared yet, but I need to get a written motion for this Court, if I could speak and tell

      you what―what I'm thinking about, what the issue is in an informal way, I would

      appreciate that today.

                I have an issue, Judge, that I found in the case that involves whether or not Mr.

      Gonzalez Rodriguez excuse me—whether Mr. Rodriguez was mentally fit at the time of

      his trial. I have discovered new evidence that’s never been before the Court before, and I

      was wondering if the Court would consider an expert witness to give an opinion as to

      whether there was—I think what I’m going to have to prove to this Court is that there’s a

      bona fide doubt as to Mr. Rodriguez’ mental state back at the time of his trial.

                THE COURT: Okay.

                MR. DELBERT: I was wanting to get a psychologist to review everything to give

      an opinion only as to whether, in his mind, this will be a person that’s familiar with doing

      these evaluations, whether it would even rise to the level of a bona fide doubt in his mind,

      or whether he thought it was a bona fide doubt at the time.

                THE COURT: All right. Well, I think—I’m not going to make any kind of a

      determination on that issue now. It’s not in writing. I understand you can make an oral




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       motion, but I think the first thing we need to do is get the Amended Motion on file, and

       then we’ll proceed from there.”

¶ 29   Delbert continued addressing this issue even after he filed the amended petition, seeking

leave to file his motion and even raising the issue in his argument at the hearing on the State’s

motion to dismiss. Finally, in the motion that he “filed” after the court granted the State’s

motion to dismiss, he stated that “[i]t is a violation of due process to prosecute a defendant who

is unfit to stand trial” and that, “in order to properly prepare his Post-Conviction Petition, the

Petitioner needs an expert to review his medical records and render an opinion with regard to the

evaluation performed by Dr. Chiapetta.” (Emphasis added.)

¶ 30   Clearly, defendant’s fitness to stand trial was a constitutional issue that was strongly

considered, should have been fully explored, and possibly should have been raised in the

amended petition. Yet, for whatever reason, it was never fully explored, let alone raised. We

agree that defendant’s fitness at the time of trial needed to be reviewed in order for Delbert to

properly prepare the amended petition. The failure to do so, so clearly evident in the record,

leads us to conclude that Delbert did not make “amendments to the petitions filed pro se that are

necessary for an adequate presentation of [defendant’s] contentions.” Ill. S. Ct. R. 651(c) (eff.

Feb. 6, 2013).

¶ 31   The State argues that, whatever Delbert’s deficiencies in pursuing an expert witness,

defendant cannot prevail on appeal by arguing that Delbert did not sufficiently support the

amended petition’s claim that defendant had been denied substantive due process. The State

argues that defendant’s argument rests on a false premise—that the amended petition actually

raised a claim that he was denied substantive due process because he was tried while unfit.




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However, the State’s argument only confirms that, in violation of Rule 651(c), Delbert failed to

fully explore and raise in the amended petition a known constitutional issue.

¶ 32   The record here clearly and affirmatively shows that Delbert failed to substantially

comply with Rule 651(c) and failed to provide the reasonable level of assistance required in a

second-stage postconviction proceeding. See People v. Kegel, 392 Ill. App. 3d 538, 540-41

(2009). Thus, we must vacate the trial court’s dismissal of defendant’s amended petition and

remand the cause for the filing of a new amended petition and further proceedings thereon.

¶ 33   For the foregoing reasons, the judgment of the circuit court of Ogle County is vacated,

and the cause is remanded for further proceedings in accordance with this opinion.

¶ 34   Vacated and remanded for further proceedings.




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