People v. Allen

2013 IL App (1st) 110747

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee,

v.RODERICK ALLEN, Petitioner-Appellant.

No. 1-11-0747

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

Dated: March 4, 2013

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).

Appeal from the Circuit Court

of Cook County

No. 04 CR 19905

Honorable

Arthur F. Hill, Jr.,

Judge Presiding.

JUSTICE DELORT delivered the judgment of the court.

Justices Cunningham and Rochford concurred in the judgment.

ORDER

¶ 1 Held: On appeal from the summary dismissal of a postconviction petition, petitioner failed to show that he filed the memorandum of law which petitioner claimed the circuit court failed to consider. Petitioner failed to show that he obtained a ruling on his motion for corrections to the trial record. Petitioner forfeited his claims that: (1) he was improperly denied a speedy trial; (2) he was improperly denied an expert witness and an investigator; (3) the trial court improperly admitted anautopsy photograph and allowed it to be seen during jury deliberations; and (4) he was entitled to standby counsel. Petitioner failed to present the gist of a constitutional claim of perjury, ineffective assistance of appellate counsel, or of cumulative error.

¶ 2 Petitioner, Roderick Allen, appeals an order of the circuit court of Cook County summarily dismissing his pro se petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). He contends that the circuit court erred in dismissing his petition because his claims were not barred by the rule of forfeiture and were not otherwise frivolous or patently without merit. For the reasons that follow, we affirm.

¶ 3 BACKGROUND

¶ 4 The record of defendant's trial is set forth fully in this court's opinion on direct appeal. People v. Allen, 401 Ill. App. 3d 840 (2010). Because much of this evidence is relevant to the arguments raised in these postconviction proceedings, we find it helpful to reproduce our prior recitation of facts and recount the procedural history of the case here:

"Defendant was convicted of the first-degree murder of the victim, his sister, Debbie Whitebear. The record indicates that on August 7, 2004, defendant entered his mother's home at 9043 South Cornell Avenue in Chicago and stabbed his sister several times in the chest, causing her death. Defendant's theory of the case, which he maintained throughout pretrial, trial and posttrial proceedings, was that he stabbed the victim to protect their elderly mother from the victim's abuse and that his siblings were keeping the existence of a real estate trust, of which defendant was the beneficiary, secret from him. Defendant's theory also included his belief that his father, Claude W. Allen, Jr., who wasdeceased, was responsible for the disappearance of numerous missing persons, which he urged police officers and the State's Attorney's office to investigate. Defendant additionally maintained that Claude W. Allen, Jr., was not his real father and his real father was an individual named Carl Lewis, from whom he stood to inherit the proceeds of a real estate trust.

The pretrial proceedings in this case were quite lengthy due in part to defendant being found not mentally fit to stand trial as well as defendant proceeding pro se. Judge Thomas R. Sumner presided over defendant's pretrial proceedings. On September 2, 2004, Assistant Public Defender John Coniff was appointed to represent defendant. Defendant objected to the public defender's representation. The half sheet indicates that a behavioral clinical examination was ordered by the court.

Dr. Deborah Ferguson, a licensed clinical psychologist, interviewed defendant and submitted her report, which was dated December 27, 2004. Her report indicated that she found defendant fit to stand trial, but was unable to render an opinion regarding defendant's sanity at the time of the offense. The report also noted that although defendant denied having any delusions or paranoia, he blamed his life circumstances on the fact that his 'step-father' was never prosecuted for being a serial killer and his belief that his siblings had conspired to prevent him from receiving an inheritance from a real estate trust. The report noted that it was unclear whether these beliefs were delusional in nature or had some basis in fact.

The court ordered another behavioral clinical examination, which was conducted by Dr. Jonathon Kelly, a psychiatrist, on January 3, 2005. Dr. Kelly's report indicated that defendant was fit to stand trial, but did not reach an opinion regarding defendant's sanity at the time of the offense.

On January 27, 2005, defendant filed a pro se motion for withdrawal of the public defender. Defendant's attached affidavit indicated that he was displeased with the court proceedings that had occurred, his counsel was in collusion with the prosecutor and the prosecutor had tried to intimidate him and retaliate against him. He made further reference to a prior court proceeding in which he accused assistant State's Attorneys and a trial judge of ignoring 'the documented exploits of a serial child killer, one Claude W. Allen, Jr. *** and proceeded to maliciously prosecute the then and now defendant, Roderick T. Allen, in order to facilitate Claude Allen's efforts to cheat Roderick Allen of an inheritance.'

Also on that date, the court ordered another behavioral clinical examination regarding defendant's sanity in part because of defendant's request to represent himself. Pursuant to the court's order, Dr. Nishad Nadkarni, a psychiatrist, interviewed defendant on February 23, 2005, and found defendant fit to stand trial.

In March 2005, defendant filed several pro se motions including a motion concerning the criminal background of Claude W. Allen, Jr., as well as a motion seeking all financial records of his mother and siblings with respect to a real estate trust.

Defendant also sought documents relating to an altercation he had with his brother, Quintin Allen.

Dr. Peter Lourgos, a psychiatrist, interviewed defendant on April 19, 2005, and found defendant unfit to stand trial. Specifically Dr. Lourgos stated '[a]lthough Mr. Allen is able to state his charge, describe the roles of various courtroom personnel, and describe basic courtroom procedures, he appears to be harboring numerous persecutory delusions regarding his attorney, the [S]tate's [A]ttorney, and the judge.' Dr. Lourgos further stated that defendant's 'written motion and requests to the court are replete with delusional material *** [which is] substantially impairing his ability to effectively assist counsel in his defense.'

The court held a hearing on May 10, 2005, in which it ordered Drs. Ferguson, Kelly and Nadkarni to review defendant's pro se motions and update their opinions regarding his fitness.

The court held a fitness hearing on June 1, 2005. Defendant was represented by the public defender at the hearing. Drs. Ferguson, Kelly and Lourgos testified that defendant was not fit to stand trial. They all agreed that defendant understood the charges against him and the courtroom proceedings, but questioned whether he would be able to assist in his defense. They all diagnosed defendant with psychotic delusional disorder. Defendant's delusions included his belief that his sister, his counsel, the judge and the prosecutor were working together to 'railroad' him, and his numerous pro se filings were 'out of touch with reality.' However, Dr. Nadkarni stated that he found defendant fit tostand trial. Dr. Nadkarni based his opinion on the fact that defendant provided rational and logical reasons for his pro se motions and defendant had written some of the information in his motions based on his anger with how his case was proceeding in court. The jury found defendant unfit to stand trial, but determined that he could be restored to fitness within a year of treatment. Defendant was remanded to the Department of Mental Health and remained at the Chester Mental Health Center for six months where he was treated without medication.

On February 1, 2006, Dr. Kelly found defendant fit to stand trial. Specifically, Dr. Kelly found that defendant 'has an understanding of the charges against him, consequences of a plea, judgment or sentence, the functions of the participants in the trial process and the nature and purposes of proceedings *** and found defendant able to assist in his defense.' Defendant, through counsel, stipulated to the report. The court made a finding that defendant had been restored to fitness and therefore was fit for trial.

In June 2006, defendant again filed numerous pro se motions, including a motion to proceed pro se. The trial court advised defendant that he would be held to the same standards as an attorney, to which defendant replied he understood. The court then noted, 'I believe that because of the motions that you've filed and things that you've done so far, notwithstanding the fact that you were referred to the Department of Mental Health, it appears to me that you may be capable of doing this on your own.' The court then discharged defendant's attorney.

Defendant's additional pro se motions included a motion to dismiss based on a speedy trial violation, a motion alleging a Brady violation with respect to the fitness hearing jury, and several motions for substitution of judge. Throughout the pretrial proceedings defendant filed approximately 13 motions for substitution of judge, which were all denied.

At a hearing on May 8, 2007, the court told defendant:

'Mr. Allen, I'm going to tell you this. I've been trying to make sense of where you're going with much of this. A lot of this we've covered and I'm not sure you are understanding what's going on here in terms of - I'm trying not to prevent you from asserting your defense but I really have some concerns and I'm just going to say

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