Opinion
2-20-0628
02-28-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD E. DIBBERN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McHenry County. No. 14-CF-517 Honorable Michael E. Coppedge, Judge, Presiding.
PRESIDING JUSTICE BRIDGES delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.
ORDER
BRIDGES PRESIDING JUSTICE
¶ 1 Held: Having found no issue of potential merit to support an appeal, we grant the appellate defender's motion to withdraw as counsel on appeal and affirm the summary dismissal of defendant's postconviction petition.
¶ 2 Defendant, Howard E. Dibbern, appeals the summary dismissal, in the circuit court of McHenry County, of his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122- 1 et seq. (West 2020)). The trial court appointed the Office of the State Appellate Defender, who now moves to withdraw, claiming that this appeal presents no issue of arguable merit. We grant counsel's motion and affirm the dismissal of the petition. 1
¶ 3 I. BACKGROUND
¶ 4 On June 6, 2014, defendant, Howard E. Dibbern, was charged by complaint with two counts of first-degree murder (720 ILCS 5/9-1 (a)(1), (a)(2) (West 2014)) and unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2014)). On July 2, 2014, a grand jury returned a four-count indictment. The first three counts matched those in the complaint; the fourth count charged defendant with concealment of a homicidal death (720 ILCS 5/9-3.4(a) (West 2014)). All four counts arose from events surrounding the June 2, 2014, death of Karen Scavelli.
¶ 5 Defendant had a partially stipulated bench trial, which was structured to preserve his right to present an insanity defense. According to the stipulated evidence, Scavelli was first reported missing by her daughter, Nicole E. Allard, who, with her infant son, lived with Scavelli. About 2:30 p.m. on June 2, 2014, Allard interacted with defendant, who was visiting Scavelli. Allard thought that defendant was acting "weird." For instance, he said that her son liked him because he was" 'the chosen one.'" When Allard returned home that evening, clothing was scattered around and her dog and Scavelli's car were missing. At about 10:30 p.m., Allard called the police. On searching the house, the police found Scavelli's body, with her head wrapped in a plastic bag, under a sleeping bag in the master bedroom.
¶ 6 At 11 p.m. on June 2, 2014, Bill Mackey, who owned Mackey's Hideout, saw defendant in the bar. Defendant followed Mackey around while talking to him. Defendant became interested in a bartender, Leigh Lobermeier, and told Mackey that he (defendant) would take her home that night. Defendant offered Lobermeier a purse that contained a pair of latex gloves and tanning goggles; Lobermeier did not want it, and Mackey threw it in the dumpster. A customer at the bar, Corey Pitchford, had talked to defendant, who claimed to have recently flown in on a private jet. According to Pitchford, defendant tried to give away two purses and had a dog in his car. At a 2 nearby bar, Sideouts, defendant gave a bartender, Tara Persico, a bracelet and tried to get her phone number.
¶ 7 On June 3, 2014, at about 8:30 a.m., Mundelein police responded to a report that a man had stolen an employee's purse at Gale Street Restaurant. The manager said that the perpetrator was still in view and driving a red Pontiac Grand Am. The responding officer pursued the Grand Am until it crashed into a nearby house. The driver, later identified as defendant, refused to exit the car and began striking the side of his head with a "small hammer." The officer grabbed the hammer from defendant and moved away from the car. Another officer arrived and saw defendant cutting or stabbing himself repeatedly. When that officer tased defendant, defendant fell halfway out of the car, still holding a bloody knife. The car was later identified as Scavelli's. After the police arrested defendant, paramedics took him to Advocate Condell Medical Center.
¶ 8 The next day, June 4, 2014, Advocate Condell evaluated defendant for what it described as a "suicide attempt." His treating physician reported that defendant said that, after a car chase with the police, he had hit himself with a hammer and had cut himself because he did not want to go back to prison. Defendant also said that, three weeks earlier, he had attempted suicide by cutting an artery in his leg. Defendant had a "long scar on the inner part of his left thigh."
¶ 9 According to a medical examiner's report, the primary cause of Scavelli's death was a broken neck caused by blunt force trauma; "essentially [her] skull *** was detached from the first vertebrae [sic]." Stab wounds to Scavelli's neck were a contributing cause of her death.
¶ 10 A State expert and a defense expert offered conflicting opinions on defendant's ability to understand the criminality of his actions, with the State's witness arguing that defendant was malingering. 3
¶ 11 The trial court found defendant guilty but mentally ill on all counts and imposed a sentence of (1) 40 years for murder; (2) 8 years for unlawful possession of a stolen vehicle, to be served consecutively to the murder sentence; and (3) 5 years for concealment of a homicidal death, to be served concurrently with the possession-of-a-stolen-vehicle sentence.
¶ 12 Defendant appealed, contending that the State's evidence that he concealed a homicidal death was insufficient to sustain his conviction on that charge. We affirmed. People v. Dibbern, 2019 IL App (2d) 161045-U, ¶¶ 21-23.
¶ 13 On August 25, 2020, defendant filed a postconviction petition, which we organize into the following claims:
(1) The State committed prosecutorial misconduct by presenting inflammatory material to the grand jury, including evidence relating to his history of mental illness;
(2) The State committed prosecutorial misconduct by intentionally misrepresenting its reason for a continuance of the preliminary hearing, namely to secure, in the interim, an indictment from the grand jury; the State thus violated defendant's right to a preliminary hearing, at which he could have presented exculpatory evidence;
(3) The State engaged in "discrimination in the indictment process," amounting to structural error;
(4) Trial counsel was ineffective for not moving to dismiss the indictment based on the State's misconduct;
(5) Trial counsel provided ineffective assistance for not cooperating with defendant's desire for a negotiated guilty plea and instead pursuing an insanity defense;
(6) Trial counsel was ineffective when he agreed that defendant would have a stipulated bench trial;4
(7) Trial counsel was ineffective in presenting the insanity defense in that he relied entirely on one expert witness, did not call any of the mental-health professionals treating defendant, and failed to adequately challenge the State's expert on numerous points.
(8) Trial counsel was ineffective for failing to file a sentencing memorandum that:
(a) challenged inflammatory statements from the victim's family;
(b) showed how defendant's life had been shaped by discrimination against people with mental illness; and
(c) argued the mitigating effect of his mental illness;
(9) Appellate counsel was ineffective for failing to argue any of the foregoing claims of ineffective assistance of trial counsel.
Defendant did not attach any affidavits or other documents to support his claims but incorporated by reference "all the record and exhibits."
¶ 14 On September 1, 2020, defendant filed an addendum to his petition. He added the following two claims:
(10) Trial counsel should have raised the defenses of self-defense and involuntary intoxication. In support, defendant alleged that Scavelli had demanded money for spending the night with him and told him that she had probably given him HIV. After he slapped her, she hit him repeatedly with a hammer and stabbed him in the thigh with a knife, attempting to castrate him. Further, defendant was in a manic episode at the time due to the Prozac he was prescribed.
(11) The medications defendant was taking while in jail prevented him from participating in his defense.5
¶ 15 On October 7, 2020, the trial court entered an order summarily dismissing defendant's petition at the first stage of proceedings under the Act. The trial court addressed all claims in the initial petition but did not address the addendum. Defendant timely appealed. The trial court appointed the appellate defender for defendant.
¶ 16 II. ANALYSIS
¶ 17 A. Introduction and General Standards
¶ 18 Pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill.App.3d 63 (1993), the appellate defender moves to withdraw as counsel. In his motion, counsel states that he read the record and found no issue of arguable merit. Counsel further states that he advised defendant of his opinion. Counsel supports his motion with a memorandum of law providing a statement of facts, a list of potential issues, and arguments why those issues lack arguable merit. We advised defendant that he had 30 days to respond to the motion, and defendant has responded.
¶ 19 Counsel discusses whether defendant's petition made arguable claims of (1) prosecutorial misconduct; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. Counsel also examines whether any procedural bases mandate remanding the petition for second-stage proceedings. We agree with counsel that none of these potential issues has potential merit.
¶ 20 Under People v. Hodges, 234 Ill.2d 1, 10 (2009):
"A postconviction proceeding not involving the death penalty contains three distinct stages. At the first stage, the circuit court must, within 90 days of the petition's filing, independently review the petition, taking the allegations as true, and determine whether the petition is frivolous or is patently without merit. If the court determines that6
the petition is either frivolous or patently without merit, the court must dismiss the petition in a written order." (Internal quotation marks and citations omitted.)
To avoid a first-stage dismissal, a petition needs to state only the gist of a constitutional claim. Hodges, 234 Ill.2d at 9, 11. Dismissal is warranted "only if the petition has no arguable basis either in law or in fact." Hodges, 234 Ill.2d at 11-12. "An example of an indisputably meritless legal theory is one which is completely contradicted by the record." Hodges, 234 Ill.2d at 16. Also, "[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2020). The "low threshold" for surviving the first stage of proceedings "does not excuse the pro se petitioner from providing factual support for his claims; he must supply sufficient factual basis to show the allegations in the petition are 'capable of objective or independent corroboration.'" People v. Allen, 2015 IL 113135, ¶ 24 (quoting People v. Collins, 202 Ill.2d 59, 67 (2002)). "[T]he affidavits and exhibits which accompany a petition must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition's allegations." People v. Delton, 227 Ill.2d 247, 254 (2008). A defendant's failure to supply evidentiary support, or explain its absence, is fatal to his petition. Delton, 227 Ill.2d at 255.
¶ 21 B. Prosecutorial Misconduct
¶ 22 We agree with counsel that it would be frivolous to argue that the petition stated the gist of a claim that the State committed prosecutorial misconduct by (1) intentionally misrepresenting its reason for a continuance of the preliminary hearing, namely to secure an indictment and prevent defendant from confronting witnesses at a preliminary hearing, and (2) eliciting inflammatory statements about defendant before the grand jury. 7
¶ 23 First, as counsel notes, Illinois Supreme Court Rule of Professional Conduct 3.3(a)(1) (eff. Jan. 1, 2010) provides that an attorney may not knowingly make a false statement of fact or law to a tribunal. We agree with counsel that the record does not suggest that the State violated this rule. On June 10, 2014, the case was before the court "to set a preliminary hearing date." The State asked to "continue [the] case until July 3rd." The trial court granted the request and set a preliminary hearing for July 3, 2014. Even if, as defendant asserts, the State sought a continuance knowing that it planned to seek an indictment in the interim, the State made no misstatement in asking for a continuance. Indeed, the State gave no reason for its request. Furthermore, contrary to what defendant suggested in his petition, he had no right to a preliminary hearing; the State had the option of seeking a grand jury indictment instead of proceeding with a preliminary hearing. See People v. Kline, 92 Ill.2d 490, 501 (1982). Defendant, responding, argues that a request to continue a preliminary hearing to a specific date is a statement of intent to hold the hearing on that date. We disagree. As established by courtroom practice, here the continuance merely reset the date on which the preliminary hearing may occur. Thus, neither counsel nor the court could have reasonably been misled.
¶ 24 Second, we agree with counsel that the record does not support an arguable claim of misconduct by the State in its statements to the grand jury." 'Challenges to grand jury proceedings are limited' ";"' [i]n general, a defendant may not challenge the validity of an indictment returned by a legally constituted grand jury.'" People v. Wright, 2017 IL 119561, ¶ 61 (quoting People v. DiVincenzo, 183 Ill.2d 239, 255 (1998)). The right to due process in a grand jury proceeding is violated if the State "deliberately or intentionally misleads the grand jury, uses known perjured or false testimony, or presents other deceptive or inaccurate evidence." Wright, 2017 IL 119561, ¶ 62. Dismissal of the indictment is warranted only if the defendant can show that "the State prevented 8 the grand jury from returning a meaningful indictment by misleading or coercing it." Wright, 2017 IL 119561, ¶ 62. The defendant must also show an "unequivocally clear" denial of due process and "actual and substantial" prejudice. People v. Oliver, 368 Ill.App.3d 690, 694-95 (2006). Here, defendant's claim of misconduct is unsupported, as he provided no record of the grand jury proceedings. Moreover, defendant did not allege that the evidence the State presented to the grand jury-most of which related to his mental illness-was false, deceptive, or inaccurate. He merely contended that it was inflammatory, which is not a basis for a meritorious claim.
¶ 25 In his response, defendant cites federal precedent. However, the decisions of lower federal courts are not binding on this court. E.g., Borowiec v. Gateway 2000, Inc., 209 Ill.2d 376, 420, n.5, (2004). Defendant does cite United States Supreme Court precedent, but it does not concern what evidence a grand jury may properly hear. See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250 (1988).
¶ 26 C. Ineffective Assistance of Trial Counsel
¶ 27 We also agree with counsel that there is no credible basis for arguing that defendant stated the gist of an ineffective-assistance-of-trial-counsel claim. A court may not summarily dismiss an ineffective-assistance claim if it is arguable that counsel's (1) performance fell below an objective standard of reasonableness and (2) deficient performance prejudiced the defendant. People v. Tate, 2012 IL 112214, ¶ 19. Counsel identifies defendant's claims as follows:
(1) "Failure to file [a] motion to dismiss the indictment because of prosecutorial misconduct";
(2) "Abandoning plea negotiation efforts and failing to advise [defendant] about the insanity defense";9
(3) "Failure to advise [defendant] of the purpose of the insanity defense or the partially stipulated bench trial, and failure to advise [defendant] of his sentencing liability";
(4) "Failure to call additional expert witnesses at trial";
(5) "Failure to adequately investigate and cross-examine [the State's expert]";
(6) "Failure to file a sentencing memorandum and correct the record about remarks the court heard during the victim impact statements."
Counsel is correct that these claims are either "unsupported, rebutted by the record, or lack arguable merit."
¶ 28 First, we agree that it would be frivolous to argue that trial counsel was ineffective for not moving to dismiss the indictment. We explained above that defendant's petition failed to present any arguable attack on the indictment.
¶ 29 Second, while we agree that trial counsel ultimately abandoned any effort to pursue a plea agreement, this conduct was not arguably ineffective assistance. The record shows that trial counsel participated in three conferences pursuant to Illinois Supreme Court Rule 402(d) (eff. July 1, 2012), which governs plea discussion in which the trial court participates. Moreover, the record does not reflect any plea offer from the State, let alone an offer with the conditions that defendant alleges he would have accepted. Defendant's petition suggested that he had a right to receive a plea offer from the State and that the only reason he would not have was trial counsel's unreceptiveness. Defendant is mistaken. Although the State frequently offers defendants plea agreements, defendants have no entitlement to such offers.
¶ 30 In his response, defendant argues that the record shows only discussions of possible Rule 402(d) conferences and not that such conferences occurred. This is incorrect. As counsel notes, the record shows that Rule 402(d) conferences occurred on October 30, 2014, January 5, 2015, and 10 August 25, 2016. On each of these dates, the court passed and then recalled the case after trial counsel asked that a Rule 402(d) conference be held.
¶ 31 Defendant further argues that he had, as the Supreme Court put it in Florida v. Nixon, 543 U.S. 175, 187 (2004)" 'the ultimate authority' to determine 'whether to plead guilty.'" Nixon, 543 U.S. at 187 (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). This, he suggests, means that counsel could not discontinue plea negotiations. But the rule in Nixon does not require that counsel never cease to engage in plea negotiations, but only that counsel cannot prevent a defendant from accepting a plea agreement or entering a nonnegotiated guilty plea. Defendant alleged in his petition that he "would have accepted a plea agreement at the low end of the sentencing range for first degree murder, or, the mid-range for second degree murder with the other charges dismissed, or, concurrantly [sic] served." Thus, he clearly was not seeking to enter a nonnegotiated guilty plea.
¶ 32 Defendant also argues that the record is consistent with the possibility that counsel failed to relay plea offers from the State to him. However, nothing in the record affirmatively suggests such misconduct. Thus, it was defendant's burden to support his claim with extrinsic evidence, which he had failed to do. See 725 ILCS 5/122-2 (2018) ("The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached."
¶ 33 Third, we agree that there is no potential merit in arguing that trial counsel was ineffective for failing to (1) advise defendant that counsel's preparation of an insanity defense was unrelated to plea negotiations, (2) inform defendant of the potential sentences, and (3) explain the partially stipulated bench trial. 11
¶ 34 Defendant insinuates that trial counsel's preparation of an insanity defense interfered with his ability to reach a plea agreement with the State. That claim lacks logic. Preparation of a defense can-and typically should-proceed in parallel with plea negotiations. Indeed, from a purely contractual perspective, the State's incentives to offer a favorable plea agreement increase when a defendant develops a plausible defense.
¶ 35 Defendant also cannot show that trial counsel was ineffective for failing to advise defendant of the potential sentences he faced after a stipulated bench trial. We recognize that a defense attorney can be ineffective for unreasonably inducing a defendant to reject a favorable plea agreement and proceeding to trial. See, e.g., People v. McGee, 2021 IL App (2d) 190040, ¶ 35. But defendant asserts that the State had not offered him a plea agreement. Thus, it is not clear how knowledge of the sentencing ranges could have affected his choices. In other words, he has failed to allege how any misunderstanding of the potential sentences could have caused him prejudice.
¶ 36 Though defendant claimed that trial counsel failed to explain the partially stipulated bench trial, the record establishes that defendant labored under no misunderstanding of the procedure. On August 2, 2016, about six weeks before trial, the court reviewed defendant's jury waiver with him. The court asked if he and trial counsel had discussed using stipulations at trial. Defendant replied, "Not really. I we [sic] talked about earlier [sic]." Trial counsel and defendant then had this exchange:
"[DEFENSE COUNSEL]: Not what they would testify to but we are going to like agree after you had an opportunity to read it-
THE DEFENDANT: Okay.
[DEFENSE COUNSEL]: -that certain people would testify that way.12
THE DEFENDANT: Right."
The court asked if defendant understood what a stipulation is, and defendant replied that he did. The court then remarked that trial counsel anticipated using stipulations. The court explained: "If you enter into a stipulation as to what a witness would testify to, that witness is not brought into court; but the stipulation is tendered to the Court." Defendant said that he understood this process. On August 25, 2016, about three weeks before trial, counsel represented that he had received a "binder" from the State containing the evidence to which defendant and the State were stipulating and that he had made that evidence available to defendant. The State represented that defendant had signed each stipulation and done so without coercion. Defendant assented to the State's representation. He further acknowledged that he had read and understood all the stipulations. The court asked him if he understood that (1) by signing the stipulations, he was agreeing that the State's exhibits would be admissible into evidence; (2) he was waiving his right to confront the State's witnesses whose testimony was summarized in the stipulations; and (3) those witnesses would not testify at his trial. Defendant said that he understood. He also acknowledged that he was not "agreeing as to any conclusion that the Court would draw by these stipulations."
¶ 37 Although defendant claimed that he and trial counsel had" [n]ot really" discussed the use of stipulations, trial counsel gave a brief, on-the-record explanation of a stipulation, which defendant claimed he understood. Moreover, the trial court followed up with its own explanation of stipulations, and defendant indicated his understanding there, too. Defendant argues that records show he functioned at a fifth-grade level and thus could not have understood. However, the record shows that the court gave an appropriately simple explanation of the procedure.
¶ 38 Fourth, we agree with counsel that he cannot credibly argue that defendant showed that trial counsel was arguably ineffective for failing to investigate or call additional expert witnesses 13 at trial. Defendant alleged that trial counsel could have called "a group of experts from [his] prior mental health encounters." Defendant, however, failed to identify these individuals specifically or suggest how their testimony would have differed from anything that could be found in the mental health records to which the parties stipulated. See Delton, 227 Ill.2d at 254-55. In response, defendant argues that additional live testimony would have given more weight to the defense side of the case. In other words, defendant presumes that the trial court had an improper bias in favor of live testimony. We reject this suggestion. "We ordinarily presume that the trial judge knows and follows the law unless the record indicates otherwise." People v. Gaultney, 174 Ill.2d 410, 420 (1996).
¶ 39 Fifth, counsel is correct that defendant did not arguably state the gist of a constitutional claim-specifically, that trial counsel was ineffective for failing to adequately investigate and cross-examine the State's expert. As with defendant's claim that trial counsel should have called additional experts, defendant failed here to demonstrate any prejudice. Defendant contended that trial counsel acted unreasonably when he failed to cross-examine the State's expert about potential sources of bias. However, defendant failed to allege facts suggesting that the State's expert had any specific source of bias other than that the State had selected him and paid him $4000- information that trial counsel's questioning did elicit.
¶ 40 Sixth, and last, we agree with counsel that it would be frivolous to argue that trial counsel was ineffective for failing to file a sentencing memorandum to emphasize defendant's history of mental illness and thus counter the hostile remarks in the victim impact statements. A court considering an ineffectiveness claim "must *** determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984)." [C]ounsel is strongly 14 presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690. Here, as counsel notes, Illinois law did not obligate trial counsel to file a sentencing memorandum. In his arguments at sentencing, trial counsel emphasized defendant's "long history of mental illness." Trial counsel's decision not to present this mitigating evidence in the specific form of a sentencing memorandum was within the range of professionally competent assistance. In his response, defendant claims that trial counsel should have presented an extensive discussion of the general negative effects of mental illness and its negative effects on him personally. We disagree. Defendant's struggles with mental illness were sufficiently documented in the record to support a sentencing argument.
¶ 41 D. Ineffective Assistance of Appellate Counsel
¶ 42 We agree with counsel that it would be frivolous to argue that counsel on defendant's direct appeal was ineffective for failing to allege the ineffectiveness of trial counsel. The Strickland standards apply to a claim of ineffective assistance of appellate counsel. See People v. Edwards, 195 Ill.2d 142, 163 (2001) (courts consider claims of ineffective assistance of appellate counsel under the same standards as claims of ineffective assistance of trial counsel). As explained above, defendant's petition stated no arguable claim that trial counsel was ineffective. Thus, there was no basis for a claim that appellate counsel was ineffective.
¶ 43 E. Procedural Grounds for a Remand
¶ 44 Counsel considers whether procedural bases exist that would require a remand for second-stage postconviction proceedings. First, counsel notes that the trial court conducted an independent review of the petition and ruled on it within 90 days of its filing. See 725 ILCS 5/122-2.1 (a) (West 2018). Second, counsel considers whether the trial court did not intend to dismiss the claims in defendant's addendum, which would mean that the entire petition must advance to the second 15 stage. See People v. Rivera, 198 Ill.2d 364, 370-74 (2001) (the Act does not permit partial first-stage dismissals); People v. Lee, 344 Ill.App.3d 851, 855 (2003) (intent to dismiss the entire petition may be discerned even though the court's dismissal order did not address all the claims). We agree with counsel that, though the trial court's dismissal order did not address the additional claims, the court intended to dismiss all of defendant's claims. We further agree with counsel that the additional claims were patently without merit.
¶ 45 Defendant asserted that trial counsel should have investigated a self-defense claim. Such a defense could not have been successful when there was reliable evidence that the injuries that defendant claimed Scavelli inflicted were instead self-inflicted either before or after the day of the killing. The stipulations established that the officers who responded to defendant's accident with Scavelli's car and the physician who treated him after that incident would testify that defendant injured himself in the head with a hammer and cut himself with a knife. The physician also would testify that defendant had said that a cut on his leg resulted from a May 2014 suicide attempt. Thus, it would have been unreasonable for trial counsel to attempt to structure a self-defense claim around those injuries.
¶ 46 Counsel also argues that, because the trial evidence established that defendant was not taking his prescribed Prozac at the time of Scavelli's death, defendant could not have credibly presented a defense of involuntary intoxication from the Prozac. Counsel is correct to the extent that defendant's expert testified that she believed that a blood test indicated that defendant was not taking Prozac at the time of Scavelli's death. But, regardless of the strength of this evidence, defendant's claim was fatally deficient because he provided no evidentiary support. See Delton, 227 Ill.2d at 254-55. 16
¶ 47 We further agree with counsel that the record rebuts defendant's claim that the medications he was taking while in pretrial detention made him incapable of assisting with his defense. As counsel notes, shortly before defendant's trial, the parties and the trial court had a colloquy regarding whether any doubt existed that defendant was fit to stand trial. Trial counsel stated that he had "never had a belief that [defendant] wasn't comprehending what we were discussing." The court commented that its observations were consistent with those of trial counsel. Thus, the record contradicts defendant's assertion that he was incapable of participating in his own defense, and defendant did not provide any new evidence of his incapacity.
¶ 48 III. CONCLUSION
¶ 49 After examining the record, the motion to withdraw, the memorandum of law, and defendant's response, we agree with counsel that this appeal presents no issue of arguable merit. Thus, we grant the motion to withdraw, and we affirm the judgment of the circuit court of McHenry County.
¶ 50 Affirmed. 17