Summary:

Paragraph nine reads:  "Petitioner then filed a postconviction petition alleging, among other things, that his trial counsel was ineffective for failing to request a fitness hearing. Petitioner alleged he told his attorney that he was taking psychotropic medication, including Zoloft, Seroquel, and Sinequan, both before and after his arrest. He alleged he was taking the psychotropic medication to treat bipolar disorder and depression. He also informed counsel that he attempted suicide before he was arrested and on the day of his arrest. He alleged he was attempting "suicide by police" on the day of the offense. During his trial, he was taking "very heavy psych medication" that affected his ability to comprehend the events. Petitioner alleged he "didn't know exactly what was happening at [his] trial and didn't understand everything at his trial." Petitioner further alleged his trial counsel lied when he informed the trial court that he was unaware petitioner was taking psychotropic medication."


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PEOPLE v. BROWN

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee and Cross-Appellant,
v.
RAYMOND BROWN, Appellant and Cross-Appellee.

Docket Nos. 106243, 106273 cons

Supreme Court of Illinois.

Opinion filed February 4, 2010.


OPINION

JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

Chief Justice Fitzgerald and Justices Freeman and Burke concurred in the judgment and opinion.

Justice Garman dissented, with opinion, joined by Justices Thomas and Karmeier.

Petitioner Raymond Brown alleged in a pro se postconviction petition that his trial counsel was ineffective for failing to request a fitness hearing. The circuit court of Cook County summarily dismissed the petition as frivolous and patently without merit. The circuit court also assessed fees and court costs of $155 under section 22-105 of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2006)), for filing a frivolous postconviction petition. The appellate court affirmed the dismissal of the petition but vacated the circuit court's imposition of fees and court costs. No. 1-06-3275 (unpublished order under Supreme Court Rule 23).

We allowed petitions for leave to appeal filed by both petitioner and the State (210 Ill. 2d R. 315(a)), and consolidated the appeals. We hold the circuit court erred in summarily dismissing the postconviction petition as frivolous and patently without merit. Accordingly, we reverse the dismissal of the postconviction petition, affirm the judgment vacating the assessment of fees and court costs, and remand this matter to the circuit court for second stage postconviction proceedings.


I. BACKGROUND

Petitioner was charged with two counts of attempted first degree murder of a peace officer (720 ILCS 5/9-1(a)(1) (West 2002)), and two counts of aggravated assault (720 ILCS 5/12-2(a)(6) (West 2002)). At the bench trial, the testimony showed petitioner lived in an apartment with Gloria Flores. Petitioner became intoxicated and argued with Flores because he believed she had cheated on him. Eventually, Flores threatened to call the police. Petitioner told her to "go ahead and call" because he was not afraid of the police. Flores went upstairs to her sister's apartment. After hearing petitioner continue to yell and throw items in their apartment, Flores and her sister called the police.

When several police officers arrived at the apartment building, petitioner was standing outside the front door of his apartment holding a butcher knife. One of the officers began to approach petitioner. The officer mistakenly believed the object in petitioner's hand was a screwdriver and ordered him to "drop the screwdriver." Petitioner responded by stating, "come on and I'll kill you." After recognizing the object as a knife, the officer repeatedly told petitioner to drop the knife. Petitioner refused and repeated his threat to kill the officer.

Petitioner then advanced toward the officer. The officer backed away and continued ordering petitioner to drop the knife. Petitioner kept walking toward the officer and began swinging the knife as the officer backed away. The officer drew his handgun and pointed it toward petitioner, continuing to order him to drop the knife. Petitioner lunged at the officer, reaching for the handgun with his free hand. When petitioner continued to approach, another officer shot him. Petitioner did not stop and the officer shot him again. Petitioner was shot in the leg and lower back and fell to the ground. Based on the evidence, the trial court found petitioner guilty of attempted first degree murder of a peace officer.

Petitioner read a statement to the court at sentencing. He asserted that he had been depressed and previously tried to kill himself. He did not intend to harm the police officers, but only wanted them to kill him. He had seen a news report where a man was shot and killed by police officers after threatening them with a machete. Petitioner thought the officers would kill him if he waved a knife at them.

Petitioner further stated he was taking "psych medication" and was told he should have received a psychiatric evaluation prior to his trial, but his trial attorney failed to bring the matter to the court's attention. Petitioner stated he began taking his medications after incarceration and he no longer felt depressed or wanted to kill himself. He still felt like he wanted to die, though, as recently as his previous court hearing.

The trial court questioned counsel about petitioner's statements on taking psychotropic medication. Defensecounsel stated he was not aware that petitioner was taking psychotropic medication. The court further inquired whether there was any reason for counsel to have a bona fide doubt of petitioner's fitness to stand trial. Counsel responded that petitioner "spoke very coherently to me," he "seemed fine," and counsel "had no problem communicating with him." The trial court noted it had not observed anything in petitioner's conduct or appearance indicating a bona fide doubt of his fitness. Petitioner's treatment with psychotropic medication, standing alone, did not raise a presumption of unfitness to stand trial. Accordingly, the trial court proceeded with the sentencing hearing and imposed a 25-year term of imprisonment. The trial court's judgment was affirmed on direct appeal. People v. Brown, No. 1-03-2620 (2005) (unpublished order under Supreme Court Rule 23).

Petitioner then filed a postconviction petition alleging, among other things, that his trial counsel was ineffective for failing to request a fitness hearing. Petitioner alleged he told his attorney that he was taking psychotropic medication, including Zoloft, Seroquel, and Sinequan, both before and after his arrest. He alleged he was taking the psychotropic medication to treat bipolar disorder and depression. He also informed counsel that he attempted suicide before he was arrested and on the day of his arrest. He alleged he was attempting "suicide by police" on the day of the offense. During his trial, he was taking "very heavy psych medication" that affected his ability to comprehend the events. Petitioner alleged he "didn't know exactly what was happening at [his] trial and didn't understand everything at his trial." Petitioner further alleged his trial counsel lied when he informed the trial court that he was unaware petitioner was taking psychotropic medication.

Petitioner also alleged his attorney only visited him for a few minutes before each hearing. Petitioner believed his attorney was too preoccupied with his father's death to represent petitioner adequately. Petitioner alleged he stopped taking some of his medications to draft his postconviction petition.

Petitioner appended to his petition medical records documenting his bipolar disorder and his medications to treat it. Additionally, he provided affidavits from his mother and aunt attesting that petitioner's mother informed trial counsel petitioner was taking medication to treat his bipolar disorder. Petitioner's mother also averred she told counsel petitioner had attempted suicide on several occasions. Petitioner's mother and aunt averred trial counsel lied to the court when he stated he had no knowledge of petitioner's mental illness or medications.

The trial court summarily dismissed the petition. The court ruled petitioner's claim of ineffective assistance of counsel for failure to request a fitness hearing was barred by res judicata because the appellate court considered that claim on direct appeal. The trial court further found the petition was frivolous and patently without merit. Petitioner was assessed $155 in fees and court costs under section 22-105 of the Code for filing a frivolous postconviction petition.

On appeal, petitioner contended he stated the gist of a constitutional claim that his trial counsel was ineffective for failing to request a fitness hearing. Petitioner also challenged the trial court's imposition of fees and court costs.

The appellate court observed it did not consider petitioner's ineffective assistance of counsel claim on direct appeal because that claim was based on matters outside the record. The appellate court, therefore, held that challenge was not barred by res judicata. The appellate court, nevertheless, held the petition did not state the gist of a claim of ineffective assistance of counsel. According to the appellate court, petitioner was "unable to establish the trial court would have found a bona fide doubt of his fitness and ordered a fitness hearing had it been apprised of the evidence offered in his postconviction petition." The appellate court further held assessment of fees and court costs under section 22-105 of the Code was not authorized. Accordingly, the appellate court affirmed the trial court's summary dismissal of the postconviction petition but vacated the assessment of fees and court costs. No. 1-06-3275 (unpublished order under Supreme Court Rule 23).

Petitioner and the State filed petitions for leave to appeal (210 Ill. 2d R. 315(a)). We allowed both petitions and consolidated them for review.


II. ANALYSIS

In his appeal, petitioner contends his postconviction petition established the gist of a claim that his trial counsel was ineffective for failing to raise an issue of petitioner's fitness to stand trial. Petitioner argues the appellate court applied an incorrect standard by requiring him to prove his ineffective assistance of counsel claim at the first stage of the proceedings.

The State responds that the allegations in the petition are not sufficient to raise a bona fide doubt of petitioner's fitness to stand trial. The State also claims the record positively rebuts any suggestion that petitioner was unfit. The State, therefore, maintains the petition was properly dismissed as frivolous and patently without merit. The State further asserts petitioner forfeited his argument that the appellate court required him to prove his ineffective assistance of counsel claim because he failed to include that argument in his petition for leave to appeal.

We first address the State's contention that petitioner forfeited his argument that the appellate court applied an incorrect burden of proof in affirming the summary dismissal of the petition. Supreme Court Rule 315(c) requires petitions for leave to appeal to contain a statement of the points relied upon in seeking review of the appellate court's judgment. 210 Ill. 2d R. 315(c)(3). The rule also requires a short argument stating why review is warranted and why the appellate court's decision should be reversed or modified. 210 Ill. 2d R. 315(c)(5). An issue may be deemed forfeited if it is not raised in the petition for leave to appeal. In re Rolandis G., 232 Ill. 2d 13, 36 (2008).

Here, the petition for leave to appeal asserted review was warranted for three reasons, including that the appellate court's decision "clearly demonstrates that it applied an incorrect standard in assessing the appropriateness of summary dismissal." Petitioner further asserted "the appellate court erroneously applied a stricter standard when evaluating whether [his] petition was frivolous for purposes of the Post-Conviction Hearing Act." In the argument section, petitioner maintained the appellate court used a much stricter standard than the one applicable to first-stage postconviction proceedings. The petition for leave to appeal, therefore, specifically mentions the issue of whether the appellate court erred by applying an incorrect standard in reviewing the first-stage dismissal. Accordingly, we conclude petitioner has not forfeited his argument.

The summary dismissal of a postconviction petition is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 388-89 (1998). At the first stage of postconviction proceedings, the trial court examines the petition independently, without input from the parties. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A petitioner need present only a limited amount of detail and is not required to include legal argument or citation to legal authority. People v. Edwards, 197 Ill. 2d 239, 244-45 (2001). A pro se petitioner is not excused, however, from providing any factual detail whatsoever on the alleged constitutional deprivation. People v. Delton, 227 Ill. 2d 247, 254 (2008). The allegations of the petition, taken as true and liberally construed, need only present the gist of a constitutional claim. People v. Harris, 224 Ill. 2d 115, 126 (2007). This standard presents a "low threshold" (People v. Jones, 211 Ill. 2d 140, 144 (2004)), requiring only that the petitioner plead sufficient facts to assert an arguably constitutional claim (People v. Hodges, 234 Ill. 2d 1, 9 (2009)).

In considering the petition, the trial court may examine the court file of the criminal proceeding, any transcripts of the proceeding, and any action by the appellate court. 725 ILCS 5/122-2.1(c) (West 2006). The trial court must summarily dismiss the petition if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2006). We recently explained that a pro se postconviction petition is frivolous or patently without merit only if it "has no arguable basis either in law or in fact." Hodges, 234 Ill. 2d at 16. A petition lacking an arguable basis in law or fact is one "based on an indisputably meritless legal theory or a fanciful factual allegation." Hodges, 234 Ill. 2d at 16. A claim completely contradicted by the record is an example of an indisputably meritless legal theory. Hodges, 234 Ill. 2d at 16. Fanciful factual allegations include those that are fantastic or delusional. Hodges, 234 Ill. 2d at 17.

Petitioner's claim of ineffective assistance of counsel is reviewed under the test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The petitioner must show counsel's performance was deficient and that prejudice resulted from the deficient performance. People v. Houston, 226 Ill. 2d 135, 143 (2007), citing Strickland, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. A postconviction petition alleging ineffective assistance of counsel may not be dismissed at the first stage of the proceedings if: (1) counsel's performance arguably fell below an objective standard of reasonableness; and (2) the petitioner was arguably prejudiced as a result. Hodges, 234 Ill. 2d at 17.

We first consider whether the allegations in petitioner's postconviction petition set forth an arguable basis in fact for his constitutional claim. Petitioner alleged his constitutional right to effective assistance of counsel was violated because his attorney failed to request a fitness hearing. In support of his claim, petitioner alleged he informed counsel that he was taking psychotropic medication before and after his arrest. The medication was used to treat his bipolar disorder and depression. Counsel was also informed that petitioner previously attempted suicide. Petitioner alleged his offense in this case was an attempted "suicide by police." Petitioner further alleged he was taking "very heavy" psychotropic medication during his trial and did not understand the trial proceedings.

Petitioner attached medical records and affidavits supporting his factual allegations. The medical records documented petitioner's bipolar disorder and his prescribed medications. In their affidavits, petitioner's mother and aunt attested trial counsel was informed petitioner was taking medication for his bipolar disorder and that petitioner had attempted suicide on several occasions. The medical records and affidavits, therefore, corroborate the allegations in the petition.

We conclude that petitioner's postconviction allegations cannot be characterized as fantastic or delusional. In fact, the trial testimony describing petitioner's offense lends credibility to his allegations on his mental illness and history of suicide attempts. The petition sets forth sufficient facts to assert a claim that is arguably constitutional. Accordingly, we conclude the petition cannot be deemed frivolous or patently without merit for lack of an arguable factual basis.

Next, we must determine whether the petition is based on an indisputably meritless legal theory. As noted, petitioner claims his attorney was ineffective for failing to request a fitness hearing.

Due process bars the prosecution of an unfit defendant. People v. Hanson, 212 Ill. 2d 212, 216 (2004). A defendant is unfit to stand trial if, due to a mental or physical condition, he or she is unable to understand the nature and purpose of the proceedings or to assist in the defense. 725 ILCS 5/104-10 (West 2006). The trial court must order a fitness hearing if a bona fide doubt is raised of the defendant's fitness. 725 ILCS 5/104-11(a) (West 2006). A number of factors may be considered in assessing whether a bona fide doubt of fitness is raised, including a defendant's irrational behavior, demeanor at trial, any prior medical opinion on the defendant's competence, and any representations by defense counsel on the defendant's competence. People v. Eddmonds, 143 Ill. 2d 501, 518 (1991). No fixed or immutable sign, however, invariably indicates the need for further inquiry on a defendant's fitness. Eddmonds, 143 Ill. 2d at 518. Rather, the question is often a difficult one implicating a wide range of manifestations and subtle nuances. Eddmonds, 143 Ill. 2d at 518.

The allegations of the petition and the attached affidavits establish that trial counsel knew petitioner was taking psychotropic medication to treat bipolar disorder and had attempted suicide on several prior occasions. The offense in this case was an attempted "suicide by police." Petitioner further alleged he did not understand the trial proceedings due to the psychotropic medication he was taking during his trial.

The State argues petitioner's allegations do not raise a bona fide doubt of his fitness to stand trial. The State asserts petitioner's mental illness, use of psychotropic medication, and history of suicide attempts, each standing alone, do not create a bona fide doubt of his fitness. Citing People v. Mitchell, 189 Ill. 2d 312 (2000), the State observes the use of psychotropic medication by itself does not raise a bona fide doubt of a defendant's fitness.

In Mitchell, this court held administration of psychotropic medication is not equivalent to a bona fide doubt of a defendant's fitness. Mitchell, 189 Ill. 2d at 331. In this case, however, petitioner alleged much more than ingestion of psychotropic medication. He alleged additional facts on his history of suicide attempts, the "suicide by police" nature of his offense, and his inability to understand the trial proceedings. Those facts cannot each be viewed in isolation. This court previously rejected a similar argument, asserting the State's attempt to challenge a defendant's individual suggestions of unfitness "as if each occurred in a vacuum, cannot be countenanced." People v. Sandham, 174 Ill. 2d 379, 387-88 (1996). Instead, the impact of the individual events and testimony must be considered as a whole. Sandham, 174 Ill. 2d at 388. Accordingly, the State's attempt to view each allegation of unfitness individually must be rejected.

The State also argues the petition is insufficient because it does not allege petitioner informed trial counsel that his medication affected his ability to understand the proceedings. The State contends counsel could not be deficient when he did not know that information. Further, petitioner failed to plead he was prejudiced by the alleged deficient representation because he did not assert that he would have been found unfit if counsel had raised the issue.

In Hodges, the State raised a similar argument, contending a pro se petitioner did not expressly assert that his factual allegations supported a theory of second degree murder. Hodges, 234 Ill. 2d at 21. The State contended the petitioner chose to focus only on self-defense and he should be bound by that choice. Hodges, 234 Ill. 2d at 21. We rejected the State's strict reading of the postconviction petition as inconsistent with the liberal construction standards for reviewing pro se petitions at the first stage of the proceedings. Hodges, 234 Ill. 2d at 21. We held the issue of whether the petition included allegations on second degree murder was the type of borderline question that should be answered in the petitioner's favor under a liberal construction. Hodges, 234 Ill. 2d at 21.

We have consistently held that to survive summary dismissal, a postconviction petition need present only a limited amount of detail and is not required to set forth a constitutional claim in its entirety. Edwards, 197 Ill. 2d at 244. Thus, a pro se petitioner is not required to allege facts supporting all elements of a constitutional claim to survive summary dismissal. Edwards, 197 Ill. 2d at 244-45. The State's contentions that petitioner did not specifically plead certain facts on deficient representation and prejudice are inconsistent with the standards applicable to first-stage postconviction proceedings. Petitioner was not required to plead the specific facts identified by the State as long as his petition sets forth the gist of a constitutional claim.

Finally, the State contends the record contradicts any suggestion that petitioner was unfit to stand trial. The State notes defense counsel informed the trial court at the sentencing hearing that petitioner "seemed fine" and counsel "had no problem communicating with him." The trial court asserted petitioner's conduct and appearance did not indicate a bona fide doubt of his fitness. The State contends petitioner's statement at sentencing demonstrates he understood the trial proceedings. The State also observes petitioner answered appropriately when questioned on waiving a jury trial and his right to testify.

A legal theory is indisputably meritless if it is completely contradicted by the record. Hodges, 234 Ill. 2d at 16. All well-pleaded facts must be taken as true unless "positively rebutted" by the trial record. People v. Coleman, 183 Ill. 2d 366, 385 (1998).

Contrary to the State's argument, petitioner's legal theory is not completely contradicted by the record in this case. Defense counsel's statements at sentencing about petitioner's condition are called into question by petitioner's allegations and supporting affidavits asserting counsel lied to the court when he stated he did not know petitioner was taking psychotropic medication. Defense counsel's statements are also undermined by petitioner's allegations that counsel spent only a few minutes with him before each hearing and was too distracted by his father's death to devote adequate attention to petitioner's defense. Further, counsel's statements at sentencing do not positively rebut petitioner's allegations on his mental illness, his suicide attempts, or that his psychotropic medication prevented him from understanding the trial proceedings. Thus, petitioner's legal theory is not completely contradicted by defense counsel's statements at sentencing.

The trial court's statement at sentencing that petitioner's conduct and appearance did not show a bona fide doubt of his fitness is a relevant consideration, but it is not determinative of petitioner's fitness to stand trial. The observation does not positively rebut any of petitioner's allegations on his mental illness, psychotropic medications, suicide attempts, or failure to understand the trial proceedings. The trial court's observation, therefore, does not render petitioner's legal theory indisputably meritless.

Additionally, petitioner's statement at sentencing is of limited significance because it was made more than one month after the trial. In his sentencing statement, petitioner asserted he felt like he wanted to die as recently as the prior hearing. Thus, any indication that petitioner was lucid in making the statement at sentencing or understood the trial proceedings at that time does not necessarily establish his condition at the time of trial. The statement does not positively rebut any of petitioner's allegations tending to indicate a bona fide doubt of his fitness. In particular, the statement does not contradict petitioner's allegation that his psychotropic medication prevented him from understanding the trial proceedings.

Petitioner's waivers of his right to a jury trial and his right to testify were essentially brief exchanges with the trial court where petitioner asserted he understood the trial court's admonitions. Those brief exchanges do not positively rebut any of petitioner's allegations in his postconviction petition. Additionally, they do not conclusively demonstrate an ability to understand the proceedings or assist in the defense.

In sum, we conclude petitioner's legal theory is not completely contradicted by the record. At most, the record creates a factual dispute on whether there was a bona fide doubt of petitioner's fitness. Petitioner's claim of ineffective assistance of counsel for failure to request a fitness hearing is arguably supported by the allegations in his petition and supporting affidavits. The petition and supporting affidavits alleged counsel knew petitioner was taking psychotropic medication to treat bipolar disorder and that he had attempted suicide on several prior occasions. Petitioner further alleged his psychotropic medication caused an inability to understand the trial proceedings. Those allegations and the nature of this offense at least arguably raise a bona fide doubt of petitioner's ability to understand the nature and purpose of the proceedings and assist in his defense. We, therefore, conclude counsel's failure to request a fitness hearing arguably fell below an objective standard of reasonableness and prejudiced petitioner.

In finding the petition subject to summary dismissal, the dissent fails to apply the standards applicable to first-stage postconviction proceedings. The dissent initially acknowledges a postconviction petition is subject to summary dismissal at the first stage if it "`has no arguable basis either in law or in fact'" (slip op. at 16 (Garman, J., dissenting, joined by Thomas and Karmeier, JJ.), quoting Hodges, 234 Ill. 2d at 16), but the dissent does not apply that standard to this case. Instead, citing People v. Easley, 192 Ill. 2d 307, 319 (2000), the dissent claims a pro se petitioner must allege "facts that existed at the time of his trial that, if known to the trial court at that time, would have caused the trial court to find a bona fide doubt of his ability to understand the nature and purpose of the proceedings and to assist in his defense." (Emphasis added.) Slip op. at 20 (Garman, J., dissenting, joined by Thomas and Karmeier, JJ.). Significantly, Easley is a capital case. Thus, the petitioner in Easley was required to carry the second-stage burden of establishing a substantial showing of a constitutional deprivation. Easley, 192 Ill. 2d at 316; see also Hodges, 234 Ill. 2d at 11 n.3 (second-stage postconviction proceedings involve inquiry into whether petition and accompanying documentation "make a substantial showing of a constitutional violation"). The dissent, therefore, requires petitioner to allege more than an arguable basis in law and fact.

The dissent's application of an incorrect standard to this first-stage dismissal appears to stem from its reliance on numerous capital cases. The dissent acknowledges those cases "can be distinguished in one important respect" because they are all capital cases where the petitioner likely had assistance of counsel in preparing the petition. Slip op. at 42 (Garman, J., dissenting, joined by Thomas and Karmeier, JJ.), citing 725 ILCS 5/122-2.1(a) (West 2006). In addition to being distinguishable on the basis acknowledged by the dissent, the capital cases cited are, more importantly, inapposite because they involve application of an entirely different standard for dismissal. Postconviction proceedings in capital cases are not subject to the summary dismissal procedure applicable to non-capital cases. 725 ILCS 5/122-2.1(a) (West 2006). Rather, after appointment of counsel is addressed, capital cases are automatically docketed for further proceedings. 725 ILCS 5/122-2.1(a), (b) (West 2006); People v. Williams, 209 Ill. 2d 227, 233 (2004). If the State files a motion to dismiss the petition, the trial court must consider whether the petition's allegations establish a substantial showing of a constitutional violation. Williams, 209 Ill. 2d at 233. Thus, capital cases do not involve application of the minimal first-stage standard requiring only an arguable basis in law and fact.

The dissent's analysis is also inconsistent with the standards for reviewing first-stage dismissals in another important way. At the summary dismissal stage, a petitioner's allegations must be taken as true and liberally construed. See People v. Brooks, 233 Ill. 2d 146, 153-54 (2009). The dissent, nevertheless, attempts to narrow petitioner's allegations on his fitness by asserting they are directed at other claims in his petition or are conclusory because they "lack specific factual content." Slip op. at 23 (Garman, J., dissenting, joined by Thomas and Karmeier, JJ.). The dissent would require petitioner to support his allegations with specific examples of his inability to comprehend the proceedings. Slip op. at 23 (Garman, J., dissenting, joined by Thomas and Karmeier, JJ.). The dissent, therefore, fails to accept as true and construe liberally the allegations of the pro se petition as required at the first stage of postconviction proceedings.

We further note that the dissent compares this case to People v. Swamynathan, 385 Ill. App. 3d 434 (2008), and this court recently affirmed the appellate court's judgment in that case. In the appeal to this court, however, no issue was raised on the sufficiency of the petition's allegations to survive summary dismissal. Rather, our decision in Swamynathan only considered the legal issue of when the 90-day summary dismissal period begins to run in cases where a pleading is recharacterized as a postconviction petition. See People v. Swamynathan, No. 107441, slip op. at 7 (January 22, 2010). This court did not review the appellate court's determination that the allegations of the petition were frivolous and patently without merit because we were not called upon to consider that portion of the appellate court's decision. See Swamynathan, No. 107441 (January 22, 2010).

Overall, the dissent fails to review this case using the standards applicable to summary dismissals. As in Hodges, the dissent's analysis is more appropriate to second-stage postconviction proceedings. See Hodges, 234 Ill. 2d at 22. Based on the specific facts of this case, we conclude petitioner's postconviction petition has an arguable basis in fact and in law. Accordingly, the trial court erred in summarily dismissing the petition as frivolous and patently without merit at the first stage of the proceedings, and the appellate court erred in affirming the dismissal.

Our decision only entitles petitioner to advance to the second stage of the proceedings where he may be appointed counsel and submit an amended petition. See 725 ILCS 5/122-4, 122-5 (West 2006). We do not express an opinion on whether petitioner will be able to meet the second-stage standard and proceed to an evidentiary hearing on his amended petition. See Edwards, 197 Ill. 2d at 246-47 (decision on whether petitioner has established a substantial showing of a constitutional violation is inappropriate at the summary dismissal stage of postconviction proceedings).

Finally, in its appeal, the State argues the appellate court erred in vacating the assessment of fees and court costs after concluding the petition was properly dismissed as frivolous and patently without merit. According to the State, the standard for assessing fees and costs under section 22-105 of the Code is the same as the standard for summary dismissal of a postconviction petition. Accordingly, section 22-105 requires assessment of fees and court costs when, as here, a postconviction petition is properly dismissed as frivolous.

Petitioner responds that this court need not address the State's claim because his petition was improperly dismissed as frivolous and patently without merit. Thus, he was not subject to assessment of fees and court costs in any case. Alternatively, petitioner contends section 22-105 does not require assessment of fees and court costs every time a court dismisses a petition at the first stage of postconviction proceedings.

Section 22-105 provides for assessment of filing fees and actual court costs when a prisoner files a pleading, including a postconviction petition, and the court specifically finds it is frivolous. 735 ILCS 5/22-105(a) (West 2006). We have determined that the postconviction petition here was improperly dismissed as frivolous and patently without merit. Thus, there is no longer any basis for assessing fees and court costs under section 22-105, and the assessment must be vacated.

Having vacated the assessment, we need not consider the State's argument on whether section 22-105 requires assessment of fees and court costs whenever a postconviction petition is summarily dismissed. The construction of section 22-105 is no longer at issue in this case because the fees and costs imposed under that section have been vacated. Generally, reviewing courts will not render advisory opinions or consider an issue when it will not affect the result. In re Alfred H.H., 233 Ill. 2d 345, 351 (2009), citing In re Mary Ann P., 202 Ill. 2d 393, 401 (2002); Barth v. Reagan, 139 Ill. 2d 399, 419 (1990). Accordingly, we decline to consider the construction of section 22-105 because that issue will not affect the result in this case.


III. CONCLUSION

For the foregoing reasons, we reverse the part of the appellate court's judgment affirming the circuit court's summary dismissal of petitioner's postconviction petition. We affirm the part of the appellate court's judgment vacating the assessment of fees and court costs under section 22-105 of the Code. The cause is remanded to the circuit court for second-stage postconviction proceedings.

Affirmed in part and reversed in part; cause remanded.

JUSTICE GARMAN, dissenting:

The majority concludes that under the rule announced by this court in People v. Hodges, 234 Ill. 2d 1 (2009), petitioner is entitled to proceed to the next stage of postconviction review because his legal theory is "not completely contradicted by the record." Slip op. at 11. In addition, the majority finds that the allegations in his postconviction petition "and the nature of this offense at least arguably raise a bona fide doubt of petitioner's ability to understand the nature and purpose of the proceedings and assist in his defense" Slip op. at 12. By the "nature of this offense," the majority refers to petitioner's alleged attempt to commit "suicide by police." Slip op. at 9.

In my opinion, the majority has misapplied the rule of Hodges, misread the record, and ignored established precedent. I, therefore, dissent.