People v. Allen ( 2015 )

2015 IL 113135
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 113135)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. ALLEN,
Appellant.
Opinion filed May 21, 2015.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Kilbride, Burke, and Theis concurred in the judgment and
opinion.
Justice Thomas dissented, with opinion, joined by Justice Karmeier.
OPINION
¶1 Defendant James Allen was convicted of murder and armed robbery for the
August 1, 1984, shooting death of Robert Ciralski, Sr. In 2009, defendant filed a
pro se postconviction petition, alleging actual innocence and raising constitutional
issues related to his claim of innocence, chiefly that the State suborned perjury and
coerced confessions. He attached to his petition an unnotarized statement, styled as
an affidavit. The statement indicated its writer was Robert Langford, and the author
took responsibility for Ciralski’s murder, stating that Allen had no involvement at
all.
¶2 The circuit court of Cook County dismissed the petition, finding it frivolous and
patently without merit. The court noted that the statement was unnotarized and
listed additional reasons for dismissal. The appellate court affirmed the dismissal
for lack of notarization. We granted defendant’s petition for leave to appeal. Ill. S.
Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we reverse the judgments
of the appellate court and the circuit court.
¶3 BACKGROUND
¶4 Around 10 p.m. on August 1, 1984, Robert Ciralski, Sr., closed his liquor and
grocery store for the night. As he exited, he stopped to talk to a police officer he
knew in the neighborhood. He then got in his car and drove home, where his wife
and son, Robert, Jr., were waiting. As Ciralski parked the car and started to get out,
he was attacked. His attacker shot him once in the shoulder and once in the
forehead, killing him.
¶5 The disturbance drew Ciralski’s wife and 14-year-old son to the window. His
son yelled at two men he saw standing near Ciralski’s car and, seeing the flash of a
shiny object in one man’s hand, fired one shot at them with a handgun. The two
fled. Ciralski’s family ran down to the car, where he was sprawled across the front
seat. Ciralski’s pants pocket was ripped open, and his belongings were scattered.
Police and an ambulance arrived shortly thereafter. Efforts to revive Ciralski failed.
¶6 In late November 1985, Chicago Police Detective Michael Pochordo received a
telephone call regarding Ciralski’s murder. According to Pochordo, the anonymous
caller told him that if he wanted to solve Ciralski’s murder, he should look to the
people who had committed the murder of Carl Gibson. Pochordo had investigated
Gibson’s murder, and defendant was one of several people convicted of murder for
Gibson’s death. Gibson’s death was a contract killing; defendant was sentenced to
natural life for driving the car in which his accomplices shot Gibson. A drug dealer
named Charles Ashley had paid for Gibson’s murder, on belief that Gibson was a
police informant.
¶7 From investigating Gibson’s murder, Pochordo was already familiar with
defendant and an informant named Darryl Moore. Pochordo first spoke to Moore
and elicited several details: that Moore had arranged the contract killing of Ciralski;
that defendant had followed Ciralski the night of his murder; and that two other
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men, Franklin Freeman and Henry Griffin, had gotten out of defendant’s car to
carry out Ciralski’s murder. Griffin was already on death row for the murder of
Gibson. See People v. Griffin, 148 Ill. 2d 45 (1992). Pochordo began looking for
Freeman, who was located in Rockford. He arranged to speak to defendant at
Stateville Correctional Center on December 9, 1985.
¶8 Pochordo told defendant he had certain information linking him to Ciralski’s
murder. Pochordo indicated an informant had told him that defendant participated
in the contract murder of Ciralski on behalf of two drug dealers, Charles Ashley and
Willie “Flukey” Stokes. Ashley and Stokes solicited Ciralski’s murder because
Ciralski had cut back on sales of quinine to drug dealers on the south side of
Chicago. Quinine was used to dilute the heroin sold to users; this reduced its
potency and gave the dealers more volume to sell. Ciralski had sold quinine from
his store at 58th Street and Indiana Avenue. Defendant had carried out the murder
with Henry Griffin and a third person. As Pochordo related this narrative,
defendant indicated that Stokes had a contract out on defendant’s life.
¶9 The evidence heard at trial conflicted on what happened next in that meeting.
Pochordo testified that defendant told him his information was “basically correct,”
but that defendant would have to think about his family’s safety and his own safety
before agreeing to cooperate with the investigation. Nonetheless, Pochordo
testified defendant provided the name of two additional drug dealers who had
solicited Ciralski’s murder, Harry Scott and Prentiss King. Defendant, on the other
hand, testified that he gave Pochordo no information on that date; he knew nothing
about the crime and denied involvement.
¶ 10 Pochordo and defendant next met in late December, when Pochordo brought
along assistant State’s Attorney Rick Beuke. Defendant did not initially cooperate
in providing information to Beuke. Defendant testified at trial that Beuke then left
the room so that he and Pochordo could talk alone. Defendant testified that
Pochordo told him that this was his opportunity to help himself and avoid a death
sentence like Henry Griffin’s, and all he had to do was tell the truth. Defendant
testified that when he asked what the truth was, Pochordo told him it was the
narrative Pochordo had told him in their initial conversation. Defendant then
relayed the story to Beuke.
¶ 11 Plea negotiations ensued over meetings and calls in the following weeks.
Defendant asked for immunity from prosecution; this request was denied in part
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because defendant had previously been convicted of the murder of a police officer.
Defendant agreed to testify against the others involved in the plot and to plead
guilty to Ciralski’s murder; in return, the State would seek a life sentence to run
concurrently with the life sentence he was already serving for the murder of Carl
Gibson. Defendant also received various accommodations, including a prison
transfer for his protection and a few thousand dollars in assistance for the mother of
his child. At the time the case went before the grand jury, it appeared that defendant
would perform under the plea agreement. Defendant, Darryl Moore, and Franklin
Freeman all testified about the contract on Ciralski’s life. Defendant’s grand jury
testimony matched the narrative described above: four drug dealers hired
defendant, Freeman, and Griffin to kill Ciralski for cutting back on quinine sales.
The murder was to look like an armed robbery carried out at Ciralski’s home, so as
to conceal that it was in fact a drug-related contract connected to his business.
¶ 12 However, the agreement for defendant to testify for the State fell apart, and
defendant went to trial in late August, 1987. No physical evidence linked defendant
to the crime. The only witness to the occurrence to testify was Ciralski’s son, who
came to the window after his father had already been shot. He was not able to
identify either of the men standing next to his father’s car. 1 Defendant was
convicted almost exclusively on the testimony of Detective Pochordo and ASA
Beuke, along with his own grand jury testimony. At trial, defendant disavowed his
grand jury testimony. Testifying in his own defense, defendant indicated he simply
repeated the story Pochordo had told him, first to Beuke and then to the grand jury.
He fabricated embellishments where there were gaps. In support of his claim of a
plan to lie, he testified at trial that before his grand jury testimony, he prepared a
notarized statement indicating his plan to lie to the grand jury. He also sent letters to
Scott and King, telling them that if they did not pay him $25,000, he would tell the
grand jury they were involved in killing Ciralski. He indicated he had no
knowledge whatsoever that Ciralski was involved in selling in quinine; he was
impeached on this point by statements he made to police during the Carl Gibson
murder investigation. In sum, defendant’s overall defense was that he knew nothing
about the Ciralski murder; he saw a chance for personal advantage in lying about
the Ciralski murder, by getting considerations from the State’s Attorney; and he
1
Robert Ciralski, Jr., did make a tentative identification of a black and white photograph of
defendant early in the investigation but said he was unsure. He was even less confident after seeing
a color photograph of the defendant. In any event, the prosecution of defendant did not hinge on this
identification; the State’s theory was that defendant remained in the car down the block while
Griffin and Freeman attacked Ciralski.
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wanted to expose Pochordo as a liar to help support his then-pending appeal in
Gibson’s murder.
¶ 13 The jury convicted defendant of first degree murder, armed robbery, and
conspiracy to commit murder. Defendant was sentenced to natural life, to run
consecutively to the natural life sentence he was already serving. The conspiracy
conviction was vacated on appeal, but the conviction and sentence were otherwise
affirmed.
¶ 14 On July 6, 2009, defendant filed his first postconviction petition. In it, he
alleged actual innocence and constitutional violations, generally pertaining to his
claim that the state suborned perjury to convict him and coerced confessions from
him and his codefendants. He attached to that petition a signed statement,
purporting to be from “Robert Langford A-01157” (Langford statement). The
Langford statement certified that Langford was its author, and that the statement
was made under penalty of perjury. It stated that Langford and a now-deceased
accomplice followed Ciralski on the night of August 1, 1984, confronting him
outside his home. Told to empty his pockets, Ciralski refused. “At that time I shot
him and proceeded to take money from his pocket, several thousand dollars. Before
we could search all his pockets someone inside the house he’d parked in front of
called something out to us, then fired a gun shot from the house,” the Langford
statement claims. The Langford statement says Langford and his accomplice then
fled to their car. “Mr. Ciralski was killed as a result of an armed robbery that went
down badly. James Allen is innocent of the Robert Ciralski murder,” the Langford
statement concludes. The Langford statement is dated January 20, 2009. It is signed
with Langford’s name and prisoner number; it also has several attempted
fingerprints at the bottom. The petition additionally claimed defendant’s confession
was coerced, that the State paid Moore and Freeman to lie under oath, that the State
concealed exculpatory evidence in the form of information linking Langford to the
crime, and that the State knowingly used perjured testimony.
¶ 15 The circuit court dismissed the petition as frivolous and patently without merit,
writing:
“At the outset, Langford’s statement is not an affidavit since it is not a sworn
statement and is not notarized. Langford does not even state that he would
testify to these facts on behalf of petitioner. Moreover, petitioner has failed to
explain how he acquired this statement and why he could not have obtained it
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sooner, especially since he specifically states that he heard of Langford from
investigating officers. Finally, Langford’s statement is hardly of such a
conclusive character that it would change the result of petitioner’s trial. Simply
put, it is a one-page, bare-bones statement indicating that the victim was killed
as the result of an attempted robbery and describes the route Langford
purportedly drove in his car to commit the attempted robbery. Indeed, the
statement is nothing more than a recitation of the most benign facts presented
during petitioner’s trial. As such, petitioner’s claim fails.”
¶ 16 As to defendant’s constitutional claims, the circuit court noted that defendant’s
trial court found his confession was not coerced, noted that neither Moore nor
Freeman testified in his trial, and noted that defendant himself knew of Langford’s
existence from his claim that police mentioned Langford during interrogation. The
circuit court characterized defendant’s claim that the State suborned perjury as
conclusory in nature and unsubstantiated. Defendant appealed the first-stage
dismissal.
¶ 17 The appellate court affirmed the dismissal due to the lack of notarization on the
Langford statement. Noting that section 122-2 of the Post-Conviction Hearing Act
requires the petitioner to attach “affidavits, records, or other evidence” in support
of the petition’s allegations, the appellate court found the unnotarized Langford
statement would not qualify as an affidavit. People v. Allen, 2011 IL App (1st)
093438-U, ¶ 3. The appellate court also rejected an argument by defendant that,
even if the Langford statement did not qualify as an affidavit, it would still qualify
as “other evidence,” reasoning that allowing a failed affidavit to qualify as “other
evidence” would make the requirement of an affidavit surplus. Id. This court
granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).
¶ 18 ANALYSIS
¶ 19 This case presents two questions for the court to resolve. The first question is
whether lack of notarization of a petition’s supporting evidence, styled as an
affidavit, renders the petition frivolous or patently without merit, requiring
dismissal at the first stage. The second question is whether defendant’s petition is
otherwise frivolous or patently without merit, such that summary dismissal on the
first stage was required. We review a circuit court’s dismissal of a postconviction
petition de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009).
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¶ 20 The Post-Conviction Hearing Act provides a criminal defendant the means to
redress substantial violations of his constitutional rights in his original trial or
sentencing. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). Proceedings on a
postconviction petition are collateral to conviction; “issues that were raised and
decided on direct appeal are barred from consideration by the doctrine of res
judicata; issues that could have been raised, but were not, are considered waived.”
Id. at 456.
¶ 21 The Post-Conviction Hearing Act contains a three-stage procedure for relief.
People v. Boclair, 202 Ill. 2d 89, 99 (2002). Within the first 90 days after the
petition is filed and docketed, a circuit court shall dismiss a petition summarily if
the court determines it is “frivolous or is patently without merit.” 725 ILCS
5/122-2.1(a)(2) (West 2008). If the petition is not dismissed as being frivolous or
patently without merit, the court then orders the petition to be docketed for further
consideration. 725 ILCS 5/122-2.1(b) (West 2008). In the second stage, the
defendant bears the burden of making a substantial showing of a constitutional
violation. People v. Coleman, 206 Ill. 2d 261, 277 (2002). Within 30 days of the
court’s order to docket a petition, the State must either move to dismiss or file an
answer. 725 ILCS 5/122-5 (West 2008). At this stage, the court has discretion to
allow amendment of the petition, “as shall be appropriate, just and reasonable and
as is generally provided in civil cases.” Id.
¶ 22 If the defendant has carried his burden to make a substantial showing of a
constitutional violation throughout the second stage, the court advances the petition
to the third stage. At the third stage, the court may receive “affidavits, depositions,
oral testimony, or other evidence,” to weigh the merits of the petition and determine
whether the defendant is entitled to relief. 725 ILCS 5/122-6 (West 2008). Under
Illinois law, “a claim of newly discovered evidence showing a defendant to be
actually innocent of the crime for which he was convicted is cognizable as a matter
of due process.” People v. Washington, 171 Ill. 2d 475, 489 (1996). The supporting
evidence for a petition on the basis of actual innocence must be “new, material,
noncumulative and, most importantly, ‘of such conclusive character’ as would
‘probably change the result on retrial.’ ” (Internal quotation marks omitted.) Id.
(quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987)).
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¶ 23 First-Stage Review
¶ 24 In the case at bar, defendant’s petition was dismissed at the first stage, as the
circuit court found it to be frivolous and patently without merit. At the first stage,
“the court considers the petition’s substantive virtue rather than its procedural
compliance.” People v. Hommerson, 2014 IL 115638, ¶ 11. Most postconviction
petitions are drafted by pro se defendants, and accordingly, the threshold for a
petition to survive the first stage of review is low. Hodges, 234 Ill. 2d at 9. If a
petition alleges sufficient facts to state the gist of a constitutional claim, even where
the petition lacks formal legal argument or citations to authority, first-stage
dismissal is inappropriate. Id. This low threshold 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. Collins, 202 Ill. 2d 59, 67 (2002).
¶ 25 Where a petition presents “ ‘legal points arguable on their merits,’ ” it is not
frivolous. Hodges, 234 Ill. 2d at 11 (quoting Anders v. California, 386 U.S. 738,
744 (1967)). A petition may be dismissed as frivolous or patently without merit
only “if the petition has no arguable basis either in law or in fact”—relying on “an
indisputably meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill.
2d at 16, 17. Meritless legal theories include ones completely contradicted by the
record, while fanciful factual allegations may be “fantastic or delusional.” Id. at 17.
In evaluating the allegations in the petition, the circuit court must take them as true
and construe them liberally. People v. Edwards, 197 Ill. 2d 239, 244 (2001). “[T]he
Act does not authorize the dismissal of a post-conviction petition during the initial
stage based on untimeliness.” Boclair, 202 Ill. 2d at 99. Our case law thus reveals a
limited number of reasons for summary dismissal of a postconviction petition.
¶ 26 On the other hand, this court has allowed the summary dismissal of a
postconviction petition for being substantially incomplete. The Post-Conviction
Hearing Act requires both a verification affidavit and supporting evidence to be
attached to the petition. 725 ILCS 5/122-1(b) (West 2008) (noting that a proceeding
is commenced by the filing of “a petition *** verified by affidavit”); 725 ILCS
5/122-2 (West 2008) (stating that the “petition shall have attached thereto
affidavits, records, or other evidence supporting its allegations”). Where the
petition lacks “affidavits, records, or other evidence supporting its allegations,” the
petitioner must explain in his pleadings why that evidence is not attached. 725
ILCS 5/122-2 (West 2008). In People v. Collins, this court affirmed the first-stage
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dismissal of a petition with only one affidavit, reading “ ‘I, London Collins, a
prisoner incarcerated in Tamms Minimum Security Unit, have read and understand
the above Petition for Post Conviction Relief. All the facts presented are true and
correct to the best of my recollection.’ ” Collins, 202 Ill. 2d at 62. The Collins court
rejected the defendant’s argument that his attached affidavit could serve as both
verification affidavit and evidentiary affidavit, as sections 122-1 and 122-2 serve
different purposes under the Act. The requirement for a verification affidavit in
section 122-1, “like all pleading verifications, confirms that the allegations are
brought truthfully and in good faith.” Id. at 67. The requirement of an evidentiary
affidavit or other evidence, “by contrast, shows that the verified allegations are
capable of objective or independent corroboration.” Id. The court acknowledged
that the attachment of affidavits, records, or other evidence would sometimes place
an “unreasonable burden” on postconviction petitioners, but noted that the
defendant in that case was asking to be excused from not only “section 122-2’s
evidentiary requirements but also from section 122–2’s pleading requirements.”
(Emphases omitted.) Id. at 68. Because the petitioner in Collins failed to attach
evidence or to explain its absence, and with the absence of facts from which the
court could reasonably infer an explanation, the court affirmed dismissal of the
petition as frivolous and patently without merit. Id. at 69.
¶ 27 Collins, however, has not been this court’s last word on the first-stage dismissal
of a postconviction petition for incompleteness. In People v. Hommerson, the court
considered whether a petition could be dismissed solely for lacking a verification
affidavit. Hommerson, 2014 IL 115638. The court noted the purpose of the
verification affidavit is to confirm that the allegations were brought “ ‘truthfully
and in good faith.’ ” Id. ¶ 9 (quoting Collins, 202 Ill. 2d at 67). The court looked to
its conclusion in People v. Boclair that the legislature had allowed for summary
dismissal only where the petition was “frivolous or patently without merit,” and
placement of the timeliness provision in a separate subsection indicated timeliness
was not a proper basis for summary dismissal. Id. ¶ 10 (citing Boclair, 202 Ill. 2d at
100). The court found that to allow dismissal for the absence of a verification
affidavit would be “at odds with a first-stage determination of whether the
petition’s allegations set forth a constitutional claim for relief.” Id. ¶ 11. Further, it
would conflict “with our prior holdings that, at the first stage of proceedings, the
court considers the petition’s substantive virtue rather than its procedural
compliance.” Id. Rather than providing a basis for dismissal at the first stage, the
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lack of a verification affidavit could provide grounds for a challenge by the State at
the second stage. Id.
¶ 28 The Langford Statement’s Lack of Notarization
¶ 29 This case presents a fact pattern falling somewhere between Hommerson and
Collins. As in both cases, the circuit court summarily dismissed in part because the
petition was incomplete. Unlike both Hommerson and Collins, the petition was not
missing an attachment altogether. The flaw at issue in this case does not concern the
“brought truthfully and in good faith” purpose of the verification affidavit in
Hommerson. (Internal quotation marks omitted.) Hommerson, 2014 IL 115638,
¶ 9. It instead concerns the “capable of objective or independent corroboration”
purpose of the attached evidence in Collins. Collins, 202 Ill. 2d at 67.
¶ 30 The State has argued the lack of notarization renders the Langford statement a
“nullity.” The State relies chiefly on Roth v. Illinois Farmers Insurance Co., 202
Ill. 2d 490, 497 (2002). In Roth, the appellant filed a document entitled “Affidavit
of Intent to File Petition For Leave to Appeal” with the court. Id. at 492. It was
signed by the appellant’s attorney, but it was not notarized or sworn. Id. at 494. At
that time, Rule 315(b) required a party seeking additional time to appeal to timely
“file with the Appellate Court an affidavit of intent to file a petition for leave, and
file the petition within 35 days after the entry of such judgment.” (Emphasis and
internal quotation marks omitted.) Id. at 492-93. The court considered whether the
“affidavit” required in Rule 315(b) would be satisfied by the attorney’s signature
alone. It considered the common usage of “affidavit” in cases within the state,
noting it was generally “ ‘simply a declaration, on oath, in writing, sworn to by a
party before some person who has authority under the law to administer oaths.’ ”
Id. at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). The court rejected the
appellant’s argument that the affidavit’s sole purpose was to provide notice of the
party’s intention to seek leave to appeal, for two reasons: (1) rules of the court hold
the force of law, and litigants must have incentive to follow them; and (2) the
affidavit of intent did more than give notice; it automatically stayed the mandate of
the appellate court. These purposes militated in favor of the more exacting
requirement of notarization. The Roth court concluded that Rule 315 affidavits
require notarization, in part because Rule 315 did not provide any explicit
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requirements, so the common usage of the term “affidavit” would govern. The
State cites Roth largely for its conclusion: an unsworn affidavit is a “nullity.”
¶ 31 The Langford statement is styled as an affidavit, but it is not one. The Langford
statement is captioned “AFFIDAVIT” and contains a signature. It contains an
additional attempt to verify identity: the attempted affiant’s thumbprint. 2 The
Langford statement attests that Langford is the one making it. It states that
Langford is making the statement subject to penalties of perjury, then recites
various details of the crime. Yet the Langford statement is not an affidavit. An
affidavit consists of a “statement sworn to before a person who has authority under
the law to administer oaths.” Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d
490, 494 (2002). The question for this court is whether the lack of notarization on
this statement renders the petition frivolous or patently without merit, or whether
the Langford statement might otherwise qualify as sufficient evidence to survive
the first stage.
¶ 32 When interpreting a statute, we must “consider the statute in its entirety,
keeping in mind the subject it addresses and the apparent intent of the legislature in
enacting it.” People v. Perry, 224 Ill. 2d 312, 323 (2007). The evidentiary affidavit
attached to a postconviction petition serves two purposes. First, it must contain a
factual basis sufficient to show the petition’s allegations are “capable of objective
or independent corroboration.” Collins, 202 Ill. 2d at 67. Second, it 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). As the State has argued, the purpose behind notarization is twofold: to
verify the identity of the person signing the document and to ensure that person
understands that he subjects himself to penalties of perjury in the statement. See
Vancura v. Katris, 238 Ill. 2d 352, 387 (2010); Loraitis v. Kukulka, 1 Ill. 2d 533,
538 (1953) (noting the “superior effect” given to statements made under oath and
applying penalties of perjury to affidavits). Each of these concerns focuses
fundamentally on evidentiary reliability. The impact of these evidentiary concerns
on the “capab[ility] of independent or objective corroboration” and the
identification of “sources, character, and availability of the alleged evidence”
would essentially be a question of whether the facts contained in the affidavit are
true.
2
The State argues that the inclusion of a fingerprint under Langford’s signature, on a line
marked “SIGNEE’S RIGHT [obscured] PRINT,” does not indicate that Langford attempted to
verify or swear to the statement. We can conceive of no other reason to include it.
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¶ 33 The summary dismissal provision has given rise to a specific body of case law
that guides our analysis. The legislature intended that the circuit court at the first
stage would look to whether the petition alleges a constitutional deprivation and
whether petitioner’s proffered evidence substantially indicates the availability of
admissible evidence in support of his claim, in a way that can be corroborated
through later proceedings. 725 ILCS 5/122-1, 122-2.1 (West 2008); Collins, 202
Ill. 2d at 67; Delton, 227 Ill. 2d at 254. At the first stage, the court considers solely
the petition’s substantive virtue, dismissing only where the petition is frivolous or
patently without merit. Hommerson, 2014 IL 115638, ¶ 11; see 725 ILCS
5/122-2.1, 122-5 (West 2008). Not until the second stage is the petition subjected to
adversarial testing through the State’s involvement. 725 ILCS 5/122-5 (West
2008). There, the State can raise certain other defects, insofar as they represent a
deficiency in the petition but do not render a petition frivolous or patently without
merit. Boclair, 202 Ill. 2d at 101 (holding that allowing the circuit court to
summarily dismiss for untimeliness would improperly expand the words “frivolous
or *** patently without merit” (internal quotation marks omitted)); Hommerson,
2014 IL 115638, ¶ 11 (holding that the court’s first-stage review of “substantive
virtue” should not include compliance with the section 122-1(b) verification
affidavit requirement). The State may challenge such “nonjurisdictional procedural
defect[s]” at the second stage; failure to do so forfeits the issue. People v. Cruz,
2013 IL 113399, ¶¶ 21, 25 (holding that, like untimeliness, failure to notarize a
verification affidavit can be forfeited); Boclair, 202 Ill. 2d at 101-02. Enforcing
such requirements at the first stage would “frustrate[ ] the legislature’s intent to
provide incarcerated individuals with this avenue of redress.” Hommerson, 2014 IL
115638, ¶ 12.
¶ 34 As a practical matter, this issue boils down to a determination of whether
defendant, who filed a pro se petition that is accompanied by an unnotarized factual
statement supporting the allegations in his petition, should be permitted to consult
with an attorney regarding his constitutional claim and whether he should be given
the opportunity to have counsel amend his petition before the State responds. Lack
of notarization here does not prevent the court from reviewing the petition’s
“substantive virtue,” as to whether it “set[s] forth a constitutional claim for relief.”
Hommerson, 2014 IL 115638, ¶ 11. Defendant’s failure to notarize does not limit
the Langford statement’s identification of the “sources, character, and availability”
of evidence alleged to support the petition, or destroy its ability to show that the
petition’s allegations are capable of independent corroboration. Delton, 227 Ill. 2d
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at 254; Collins, 202 Ill. 2d at 67. Defendant’s failure to notarize does not leave the
petition with “no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12.
In sum, the Langford statement’s lack of notarization does not make the petition
frivolous or patently without merit. We find the circuit court may not dismiss at the
first stage solely for failure to notarize a statement styled as an evidentiary
affidavit. Instead, the circuit court at the first stage must look to whether the
evidentiary attachments satisfy the purposes identified in Collins and Delton:
showing that the petition’s allegations are capable of corroboration and identifying
the sources, character, and availability of evidence alleged to support the petition’s
allegations. As explained below, the Langford statement satisfies these purposes.
While not an admissible affidavit in its present form, the Langford statement
properly qualifies as “other evidence.” 725 ILCS 5/122-6 (West 2008).
¶ 35 The defendant is not entirely absolved from the notarization requirement of
Roth, however. Where a defendant has submitted an unnotarized statement, the
State may challenge this nonjurisdictional procedural defect at the second stage of
proceedings. 725 ILCS 5/122-5 (West 2008) (providing that, where a petition is not
dismissed at the first stage, the State has 30 days to “answer or move to dismiss”);
see, e.g., Boclair, 202 Ill. 2d at 102 (finding “the matter of untimeliness should be
left for the State to assert during the second stage of the post-conviction
proceedings”). Where a defendant’s postconviction counsel is unable to obtain a
properly notarized affidavit, the court may dismiss the petition upon the State’s
motion. See 725 ILCS 5/122-5 (West 2008) (granting the court discretion to allow
amendment of the petition “as shall be appropriate, just and reasonable and as is
generally provided in civil cases”).
¶ 36 Relying on the canon against surplusage, the State argues that considering the
Langford statement as “other evidence” renders the word “affidavit” surplus. See
725 ILCS 5/122-2 (West 2008). Further, the State argues, the Langford statement is
inadmissible hearsay, such that it cannot qualify as other evidence. We do not
agree. The use of “other evidence” in the phrase “affidavits, records, or other
evidence” indicates the legislature contemplated a wide range of documentary
evidence would satisfy the evidentiary requirements of the first stage. 725 ILCS
5/122-2 (West 2008). That the legislature would accept an explanation for failure to
attach evidence in lieu of such evidence further indicates legislative intent that
petitions with substantive merit would advance to the second stage, even where the
evidence attached suffers from remediable procedural defects. Id. The word
“affidavit” is not rendered surplus: a defendant still has ample reason to obtain a
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properly notarized affidavit. First-stage notarization would prevent the State from
raising that issue in a second-stage challenge. First-stage notarization also would
eliminate any risk that postconviction counsel would be unable to get the statement
notarized and would focus postconviction counsel’s resources on substantive
improvements to the petition. Because an affidavit remains sufficient and in some
ways superior for first-stage purposes, the word “affidavit” is not rendered surplus
by accepting a signed statement as “other evidence.”
¶ 37 Nor are we persuaded by the State’s arguments that all such “other evidence”
must be competent, admissible evidence at the time attached to the petition. Were
this the case, postconviction petitioners would be subjected at the first stage to the
requirements for authentication of documents and qualification of expert witnesses
who might testify, or to satisfactorily prove a chain of custody for physical
evidence. See Ill. R. Evid. 702, 901; see, e.g., Van Hattem v. K mart Corp., 308 Ill.
App. 3d 121, 135 (1999) (requiring evidence’s proponents to show “that it was
reasonably probable the evidence remained unchanged in any important respect or
was not substituted”). Such inquiries are incompatible with the first stage’s
abbreviated review. It is enough for first-stage purposes that the defendant has
provided substantive evidentiary content showing his claims are capable of
corroboration and independent verification. The contrary view would allow a
postconviction petition that is neither frivolous nor patently without merit, but
supported only by an unnotarized factual statement, to be denied substantive
review simply because the petitioner did not have access to a notary. Further, under
Collins, defendant’s petition would have advanced to the second stage, as long as
he explained that Langford had authored the statement supporting the allegations in
the petition but that the statement could not be notarized due to the lack of a notary.
It is difficult to understand how an explanation of the difficulty of finding a notary
within the prison—a difficulty the court can readily surmise—would convert the
instant petition from being frivolous or patently without merit to being potentially
meritorious. Indeed, such an explanation would be entirely unrelated to whether the
petition relies on legal theories completely contradicted by the record or factual
allegations that are “fantastic or delusional.” Hodges, 234 Ill. 2d at 12, 16-17.
¶ 38 The dissent expresses concern that our ruling will cause a flood of frivolous
second-stage postconviction proceedings. Infra ¶ 77. We note, first, that the court
may dismiss a petition where it is frivolous or patently without merit. Those
petitions containing assertions without an arguable basis in fact or law will be
filtered at the first stage. Second, where postconviction counsel is unable to remedy
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the lack of notarization of an attached statement, dismissal at the second stage is
appropriate—filtering out forgeries. Third, the dissent’s fear of an overwhelming
number of frivolous second-stage proceedings is equally applicable to this court’s
decision in Boclair, wherein we held that timeliness was not an appropriate ground
to dismiss at the first stage. Boclair, 202 Ill. 2d at 99. We are unaware of a flood of
frivolous second-stage proceedings stemming from that decision. Boclair so held
because the legislature limited first-stage dismissal to two reasons: the petition is
frivolous or patently without merit. Id. at 100-01. Because we conclude the lack of
notarization does not render defendant’s petition to be frivolous or patently without
merit, we reach the same result.
¶ 39 Whether Defendant’s Petition Is Otherwise Frivolous
¶ 40 The circuit court first noted the Langford statement was not an affidavit “since
it is not a sworn statement and is not notarized.” The appellate court affirmed solely
on that basis, which we have now rejected. The circuit court made additional
observations that might present a basis to dismiss:
“Langford does not even state that he would testify to these facts on behalf of
petitioner. Moreover, petitioner has failed to explain how he acquired this
statement and why he could not have obtained it sooner, especially since he
specifically states that he heard of Langford from investigating officers.
Finally, Langford’s statement is hardly of such a conclusive character that it
would change the result of petitioner’s trial. Simply put, it is a one-page,
bare-bones statement indicating that the victim was killed as the result of an
attempted robbery and describes the route Langford purportedly drove in his
car to commit the attempted robbery. Indeed, the statement is nothing more
than a recitation of the most benign facts presented during petitioner’s trial. As
such, petitioner’s claim fails.”
¶ 41 The circuit court is correct in noting the Langford statement does not indicate
he would testify to the facts therein. However, on the first stage of review, the court
is to take the allegations of the petition as true and construe them liberally.
Edwards, 197 Ill. 2d at 244. At this point, the court might infer that Langford was
willing to provide the statement but not testify, or it might infer that Langford was
willing to provide the statement and to testify. We believe the latter inference is
consistent with the directive to construe the petition’s allegations liberally.
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¶ 42 The State has echoed the circuit court’s reasoning, in that evidence at trial
revealed defendant knew Langford’s name and potential involvement even back in
1985. Yet there seems to us to be a gulf between knowing a person’s name and that
he may have been involved, and having a signed confession from that person in
hand. There are ample conceivable reasons for the delay. Both defendant and
Langford are incarcerated, limiting their ability to contact each other. Likewise, an
individual who has committed a murder is presumably reluctant to confess to it. On
the record before us, we cannot conclude defendant “was armed with this
information at the time of trial” or that it clearly “could have been discovered
sooner.” See People v. Harris, 206 Ill. 2d 293, 301 (2002). In any event, the circuit
court’s role at this point is not to speculate reasons for dismissal; it is to dismiss
only if the petition presents “no arguable basis either in law or in fact.” Hodges, 234
Ill. 2d at 12. To be sure, there has been a long delay between defendant’s conviction
and the Langford statement, more than two decades. However, at this early stage in
the postconviction proceedings, there is no indication the Langford statement
should have been available to defendant sooner. Further, “the Act does not
authorize the dismissal of a post-conviction petition during the initial stage based
on untimeliness.” Boclair, 202 Ill. 2d at 99. This issue requires more factual
development.
¶ 43 The circuit court found the Langford statement to be “a one-page, bare-bones
statement” and “nothing more than a recitation of the most benign facts presented
during petitioner’s trial.” The attached evidence must only show the petition’s
allegations are “capable of objective or independent corroboration,” Collins, 202
Ill. 2d at 67, and “identify with reasonable certainty the sources, character, and
availability of the alleged evidence supporting the petition’s allegations.”
(Emphasis added.) Delton, 227 Ill. 2d at 254. We conclude that under the forgiving
standards of the first stage, the Langford statement meets these requirements. There
are aspects of the Langford statement that conflict with the testimony heard at trial.
Obviously, it conflicts with defendant’s own grand jury testimony, in which
defendant admitted following Ciralski to his home so that Griffin and Freeman
could kill Ciralski. The Langford statement indicates Langford shot Ciralski and
took “several thousand dollars” from his pockets. At trial, a police detective
testified a store employee said Ciralski would have been carrying the day’s
proceeds of only $1100 to $1500, and Ciralski’s family indicated that more than
$1000 was turned over to them from Ciralski’s body, at the hospital. Notably, the
Langford statement describes Ciralski’s store as being at “the southeast corner of
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57th Street and Indiana,” while all the testimony at trial indicated the store was
located at 58th Street and Indiana Avenue.
¶ 44 The Langford statement also contains elements consistent with the testimony at
trial. The route described in the Langford statement matches the route defendant
described in his grand jury testimony. Two individuals confronted Ciralski as he
was exiting his car, in accordance with Robert Ciralski, Jr.’s testimony that two
men were standing near the car. Ciralski’s killers shot him, then rifled through his
pockets, in accordance with officers’ testimony as to the crime scene. Someone in
Ciralski’s house fired a gun at Ciralski’s killers, and the killers fled on foot to their
car, in accordance with Robert Ciralski, Jr.’s testimony. Overall, the Langford
statement is consistent with defendant’s testimony at trial and overall theory of the
case: that defendant was uninvolved and only parroted what Detective Pochordo
had already told him, embellishing his account with details he thought were
credible.
¶ 45 The circuit court’s consideration that the Langford statement lacked
“conclusive character” essentially weighed the credibility of defendant’s petition
and the Langford statement against defendant’s prior grand jury testimony, the
testimony of Detective Pochordo, and the testimony of assistant State’s Attorney
Beuke. This analysis constituted a more probing inquiry than what is contemplated
on first-stage review, where dismissal is appropriate only if “the petition has no
arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12. These strengths
and weaknesses are best tested in the second or third stages of postconviction
review.
¶ 46 Accordingly, we reverse and remand for second-stage proceedings.
¶ 47 CONCLUSION
¶ 48 The Langford statement, while subject to challenge at the second stage for lack
of notarization, qualifies as other evidence for first-stage postconviction review.
The circuit court’s alternative reasons to dismiss the postconviction petition
constituted greater scrutiny than the first stage involves. The judgment of the
appellate court is reversed. The judgment of the circuit court is reversed.
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¶ 49 Reversed and remanded.
¶ 50 JUSTICE THOMAS, dissenting:
¶ 51 The facts of this case do not, as the majority asserts, fall “somewhere between
Hommerson and Collins.” Supra ¶ 29. On the contrary, the facts of this case fall
squarely within Collins, and consequently defendant’s petition in this case deserves
the same fate as that in Collins: summary dismissal. The appellate court’s decision
below therefore should be affirmed, and for this reason I dissent.
¶ 52 Titled “Contents of Petition,” section 122-2 of the Post-Conviction Hearing Act
expressly states that a postconviction 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 2012). In Collins, the
defendant filed a pro se postconviction petition that, “[c]ontrary to the clear
mandate of section 122-2 of the Act, defendant’s petition was unsupported by
‘affidavits, records, or other evidence’ and offered no explanation for the absence
of such documentation.” Collins, 202 Ill. 2d at 66 (quoting 725 ILCS 5/122-2 (West
2000)). The trial court summarily dismissed the pro se petition, and this court
affirmed. In doing so, this court explained that the failure to comply with section
122-2 is “fatal” to a postconviction petition and “alone justifies” summary
dismissal. Id.
¶ 53 Here, there is absolutely no question that defendant failed to comply with
section 122-2. Indeed, the only thing attached to defendant’s pro se petition was a
piece of paper containing a statement purporting to be from a man named Robert
Langford. Though captioned “affidavit,” the statement was not made under oath,
was not sworn to before a person who has authority under the law to administer
oaths, and was not notarized. Consequently, rather than being an “affidavit,” the
piece of paper attached to defendant’s postconviction petition was a complete
“nullity” that had absolutely “no legal effect.” Roth v. Illinois Farmers Insurance
Co., 202 Ill. 2d 490, 497 (2002) (holding that an unsworn affidavit is a nullity that
has no legal effect). In other words, just like the petition in Collins, defendant’s
petition here was supported by precisely nothing. Given this, the trial court below
was correct to dismiss defendant’s petition summarily, and the appellate court was
correct to affirm that dismissal.
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¶ 54 The majority reaches the opposite conclusion. According to the majority, the
trial court below erred in summarily dismissing defendant’s pro se petition
because, although the unsworn Langford statement does not constitute an
“affidavit,” it does constitute “other evidence” for purposes of the Act. Supra ¶ 34.
In reaching this result, the majority explains that section 122-2’s evidentiary
affidavit requirement serves two important purposes: (1) to show that the petition’s
allegations are capable of independent or objective corroboration; and (2) to
identify with reasonable certainty the sources, character, and availability of the
alleged evidence supporting the petition’s allegations. Supra ¶ 32. Thus, the
majority explains, the critical question is not whether an “unsworn factual
statement” is an affidavit, nor even whether such a statement is admissible (supra
¶ 34). Rather, the critical question is whether the “unsworn factual statement”
satisfies the two purposes identified above. If it does, then the “unsworn factual
statement” constitutes “other evidence” for purposes of section 122-2, whatever its
“remediable procedural defects.” Supra ¶ 36. As to the unsworn Langford
statement specifically, although the majority concedes that the statement is not only
not an affidavit but also inadmissible (supra ¶ 34), the majority nevertheless
concludes that the statement constitutes “other evidence” for purposes of the Act
because failure to notarize does not “limit” or “destroy” an unsworn statement’s
ability to serve the purposes of an evidentiary affidavit. Supra ¶ 34.
¶ 55 “Other Evidence”
¶ 56 There are numerous problems with the majority’s analysis. First and foremost
is the majority’s conclusion that, despite being unsworn, the Langford statement
nevertheless is “other evidence” that “satisf[ies] the purposes” of section 122-2’s
evidentiary affidavit requirement. This court could not have been any clearer in
Roth: an affidavit that is not sworn is “a nullity” that has “no legal effect.” Roth,
202 Ill. 2d at 497. Thus, under Roth, the unsworn Langford statement not only
cannot satisfy the purpose of section 122-2’s evidentiary affidavit requirement, it
cannot satisfy any legal purpose. Given this, the majority’s conclusion to the
contrary amounts to an outright overruling of Roth. Prior to today, an unsworn
affidavit was “a nullity” with “no legal effect.” After today, an unsworn affidavit is
“evidence” on par with affidavits, records, evidence depositions, and oral
testimony. See infra ¶ 61. Indeed, according to the majority, the fact that the
unsworn Langford statement is unsworn neither “limits” or “destroys” that
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statement’s ability to “satisfy the purposes” of an evidentiary affidavit. Supra ¶ 34.
In other words, according to the majority, an “unsworn factual statement” is no less
effective at satisfying the purposes of an evidentiary affidavit than an actual
evidentiary affidavit is. This is a complete inversion of our affidavit jurisprudence,
and the majority offers no explanation to justify its radical departure from stare
decisis on this point.
¶ 57 And lest there be any thought that perhaps Roth was either misguided or
shortsighted in its conclusion concerning the impotency of unsworn statements,
this case provides all the confirmation one needs that Roth was emphatically
correct on this point. Again, according to the majority, an “unsworn factual
statement” constitutes “other evidence” for purposes of the Act if it (1) shows that
the petition’s allegations are capable of independent or objective corroboration; and
(2) identifies with reasonable certainty the sources, character, and availability of
the alleged evidence supporting the petition’s allegations. Supra ¶ 32. Or to put it
another way, “[i]t is enough for first-stage purposes that the defendant has provided
substantive evidentiary content showing his claims are capable of corroboration
and independent verification.” (Emphasis added.) Supra ¶ 37. The question I have,
and the one the majority nowhere answers, is how can an unsworn factual statement
possibly “show” or establish “with reasonable certainty” either of these things?
Indeed, as the majority concedes, the whole point of having an affidavit sworn to
under oath is “to verify the identity of the person signing the document and to
ensure that person understands that he subjects himself to penalties of perjury in the
statement.” Supra ¶ 32. The obvious corollary to this is that, with respect to a
statement that is not sworn to under oath, neither of these purposes is served—the
identity of the declarant remains unverified, and the risk of perjury is nonexistent.
And this is precisely why an unsworn affidavit is a “nullity” having “no legal
effect.” Indeed, what possible foundation does the majority have for concluding, or
even presuming, that the unsworn Langford statement was in fact drafted and
signed by Langford? There is absolutely nothing on the face of that statement to
either “show” or establish “with reasonable certainty” that this is the case. As for
the perjury piece, even if an unsworn statement states, as the unsworn Langford
statement does, that the declarent understands that he or she is subject to the
penalties of perjury, in fact the declarent is not subject to the penalties of perjury
because the statement is unsworn. That’s the point, and the one the majority seems
to miss. The bottom line is that “unsworn factual statement” is just another way of
saying “hearsay.” And it is beyond well-settled that hearsay is “generally
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inadmissible due to its lack of reliability.” People v. Olinger, 176 Ill. 2d 326, 357
(1997). An inadmissible and unreliable statement cannot “show” or establish “with
reasonable certainty” anything. Thus, even assuming that the majority has correctly
defined the test for establishing whether something is “other evidence” under the
Act, the unsworn Langford statement fails that test miserably.
¶ 58 At this point, it is worth recalling this court’s decision in Secura Insurance Co.
v. Illinois Farmers Insurance Co., 232 Ill. 2d 209 (2009). In Secura, the plaintiff’s
notice of appeal was received by the circuit court outside the 30-day appeal period,
and there was no affidavit or certificate of mailing in the record stating that the
notice of appeal had been timely filed. Id. at 212. After initially granting the
defendant’s motion to dismiss the plaintiff’s appeal for lack of jurisdiction, the
appellate court allowed the plaintiff to supplement the record with a cover letter
that the plaintiff had sent to the circuit court and that was dated on the final day of
the 30-day filing period. Id. In this court, the issue was whether that letter was
sufficient evidence to establish that the notice of appeal was timely. In holding that
it was not, this court explained that, under the relevant rules, proof of mailing must
be either by a certificate of attorney or by affidavit. Id. at 215-16. The court then
explained that, for obvious reasons, the plaintiff’s letter to the clerk constituted
neither of these things:
“The letter does not contain an affidavit or a certificate and nothing is certified
or sworn to. The cover letter contains only a date, which, at best, indicates that it
may have been mailed on that date. This is simply insufficient for purposes of
the rule.” (Emphases omitted.) Id. at 216.
At that point, and of particular relevance to the present case, the court emphasized
that “the record, having been supplemented with the cover letter, offers no more
certainty concerning the timeliness of the notice than it did before the cover letter
became part of the record.” (Emphasis added.) Id. In other words, according to
Secura, the evidentiary value of filing an “unsworn factual statement” where an
affidavit is required is precisely zero. Indeed, the legal consequence is exactly the
same as filing nothing at all, which is exactly what I argued above and exactly what
Roth compels.
¶ 59 But even if this were not the case, the majority’s conclusion that the unsworn
Langford statement constitutes “other evidence” would remain incorrect because
that conclusion is wholly foreclosed by the plain language of the Act. Under our
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well-settled rules of statutory construction, “[w]here a word is used in different
sections of the same statute, the presumption is that the word is used with the same
meaning throughout the statute, unless a contrary legislative intent is clearly
expressed.” People v. Maggette, 195 Ill. 2d 336, 349 (2001). The phrase “other
evidence” appears twice in the Act. It appears first in section 122-2, which is the
section at issue in this case and which states that the petition when filed must have
attached to it “affidavits, records, or other evidence supporting its allegations.” 725
ILCS 5/122-2 (West 2008). The phrase next appears in section 122-6, which,
among other things, states that the trial court in a postconviction proceeding “may
receive proof by affidavits, depositions, oral testimony, or other evidence.”
(Emphases added.) 725 ILCS 5/122-6 (West 2008). Thus, under the plain language
of the Act, “other evidence” refers to something that can be used to prove contested
facts to the court. In other words, “other evidence” means other admissible
evidence, because of course only admissible evidence can be used to prove
contested facts to the court. This is important because, as an “unsworn factual
statement,” the unsworn Langford statement is wholly inadmissible and therefore
incapable of proving anything, a point the majority readily concedes. Supra ¶ 34.
That being the case, the unsworn Langford statement is clearly not “other
evidence” under section 122-6, which means it also is not “other evidence” under
section 122-2, as we must presume that the phrase “other evidence” means the
same thing in both provisions. Conversely, were we to say, as the majority does,
that the unsworn Langford statement constitutes “other evidence” under section
122-2, then we would also have to say, under our settled canons of construction,
that the unsworn Langford statement is “other evidence” under section 122-6. But
this cannot be, as to say this would be to say that a defendant may prove contested
facts in a postconviction proceeding though the use of “unsworn factual
statements,” a principle the majority surely does not wish to establish. No, the
proper and consistent reading of the statute is to say that, under the plain language
of section 122-6, “other evidence” means other admissible evidence. Indeed, given
the Act’s plain language, it can mean no other thing. Consequently, under our
settled canons of construction, “other evidence” must mean the same thing when
used in section 122-2. The unsworn Langford statement therefore is not “other
evidence,” and defendant’s pro se petition therefore did not comply with section
122-2.
¶ 60 On this last point, it is interesting to note that, although the majority
affirmatively holds that the unsworn Langford statement constitutes “other
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evidence” for purposes of the Act (supra ¶ 34), the majority does not appear to
believe that this is really the case. Again, the majority’s holding in this case is that
defendant complied fully with section 122-2 because, while not an “affidavit,” the
unsworn Langford statement is “other evidence.” Supra ¶ 34. Nevertheless, the
majority goes on to hold that the State may move to dismiss defendant’s petition at
the second stage on the grounds that the Langford statement is unsworn, and that
defendant’s continued failure to have it sworn would compel the granting of the
state’s motion. Supra ¶ 35. Forgive my confusion, but if the unsworn Langford
statement is, as the majority insists, “other evidence,” then how could defendant’s
continued reliance upon that statement possibly constitute grounds for dismissal at
the second stage? Presumably, the State could not move to dismiss a petition at the
second stage solely on the grounds that it is supported by a properly sworn
affidavit. Nor could the State move to dismiss a petition at the second stage solely
on the grounds that it is supported by records. Indeed, such petitions would be in
full substantive compliance with the Act, and a motion to dismiss of the sort
described would be nonsense. Why, then, could the State move to dismiss at the
second stage solely on the grounds that the petition is supported by “other
evidence”? Yet this is exactly what the majority is saying. In one breath, the
majority is saying that the unsworn Langford statement is “other evidence” and that
defendant’s petition therefore complies with section 122-2 and may not be
dismissed. In the next breath, the majority is saying that the State may move to
dismiss defendant’s petition at the second stage on the grounds that it is not
supported by “other evidence” and therefore does not comply with section 122-2
and that, if nothing changes, the State’s motion to dismiss must be granted. Which
is it? Again, if the unsworn Langford statement is indeed “other evidence,” then
defendant’s continued reliance upon it at stage two could not possibly constitute
grounds for dismissal, as “other evidence” is precisely what the Act demands of
him. Conversely, if the unsworn Langford statement does not constitute “other
evidence” at stage two, then it never constituted “other evidence” to begin with and
summary dismissal is appropriate. This is the exact point I have been making, and
in its own way, the majority appears to be making it, too.
¶ 61 As if this were not enough, the majority’s conclusion that the unsworn
Langford statement is “other evidence” also runs directly contrary to the ejusdem
generis doctrine, which provides that, when a statutory clause specifically
describes several classes of persons or things and then includes “other persons or
things,” the word “other” is interpreted to mean “other such like.” People v. Davis,
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199 Ill. 2d 130, 138 (2002). That is exactly the situation we have here. Section
122-2 requires that a postconviction petition have attached to it “affidavits, records,
or other evidence.” Likewise, section 122-6 states that “[t]he court may receive
proof by affidavits, depositions, oral testimony, or other evidence.” 725 ILCS
5/122-6 (West 2008). Under the ejusdem generis doctrine, this court must presume
that, when the legislature used the phrase “other evidence,” it meant other evidence
like affidavits, records, depositions, and oral testimony. So then what do these
specified classes of evidence have in common? What they have in common is they
are all classes of evidence that may be used to prove contested facts in a legal
proceeding. 3 In other words, they are classes of admissible evidence. Thus, under
the ejusdem generis doctrine, the phrase “other evidence” must mean other classes
of admissible evidence, which again is the point I’ve been making. And measured
by this standard, the unsworn Langford statement utterly fails, as even the majority
concedes that the unsworn Langford statement is wholly inadmissible. By contrast,
the majority’s position turns the ejusdem generis doctrine on its head by holding
that the “other evidence” allowed for in sections 122-2 and 122-6 need not bear any
resemblance whatsoever to the specified classes of evidence that come before.
Indeed, as construed by the majority, section 122-2 may as well read “affidavits,
records, or anything else,” and section 122-6 may as well read “affidavits,
depositions, oral testimony, or anything else,” as that is exactly the import of
saying that “other evidence” includes “unsworn factual statements” that are neither
“admissible” nor “competent.” Supra ¶ 37. I am certain that this is not what the
legislature intended, and in any event it is utterly incompatible with the long-settled
ejusdem generis doctrine.
¶ 62 On a related point, I am also troubled by the majority’s express finding that “the
circuit court may not dismiss at the first stage solely for failure to notarize a
statement styled as an evidentiary affidavit.” (Emphasis added.) Supra ¶ 34. This is
a remarkable holding, as it elevates form over substance to a nearly unprecedented
degree. To “style” something means simply to “title” or “caption” it. Black’s Law
Dictionary 1560 (9th ed. 2009); see also Webster’s Third New International
Dictionary 2271 (1993) (defining “style” alternatively as “designate,” “TERM,”
“NAME,” “CALL”). Thus, according to the majority, so long as a postconviction
petition has attached to it something titled “affidavit,” that petition is effectively
3
In People v. Rose, 48 Ill. 2d 300, 302 (1971), this court specifically held that “depositions”
under section 122-6 refers only to evidence depositions and not to discovery depositions.
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immune from summary dismissal. And this is true even if the actual substance of
the attachment bears no resemblance whatsoever to an actual affidavit. From now
on, at stage one, the caption controls. Now presumably, the majority will object to
my characterization of its holding on the grounds that, in the sentence following the
one quoted above, it adds:
“Instead, the circuit court at the first stage must look to whether the evidentiary
attachments satisfy the purposes identified in Collins and Delton: showing the
petition’s allegations are capable of corroboration and identifying the sources,
character, and availability of evidence alleged to support the petition’s
allegations.” Supra ¶ 34.
If this is consolation, it is hollow consolation. Again, we have already established
that, under this court’s settled case law, an “unsworn factual statement” of the sort
filed by defendant in this case is an inadmissible and unreliable “legal nullity” that
has “no legal effect.” Indeed, from an evidentiary standpoint, filing an “unsworn
factual statement” where an “affidavit” is called for is exactly the same as filing
nothing at all. Secura, 232 Ill. 2d at 216. So if an “unsworn factual statement” can
pass the majority’s test, which is precisely what the majority holds in this case
(supra ¶ 34), then I think it is safe to say that anything can pass the majority’s
test—provided, of course, that it bears the caption “affidavit.” Make no mistake,
the caption does indeed control, and stage two is now available simply for the
styling.
¶ 63 Before moving on from this issue, I would note that, near the end of its “other
evidence” analysis, the majority confesses that its conclusion concerning the
evidentiary value of the unsworn Langford statement is motivated at least in part by
its inability to understand a policy that would allow for the summary dismissal of
petitions containing defective evidence but disallow the summary dismissal of
petitions containing an explanation as to why such evidence is defective. Thus, the
majority explains:
“under Collins, defendant’s petition would have advanced to the second stage,
as long as he explained that Langford had authored the statement supporting the
allegations in the petition but that the statement could not be notarized due to
the lack of a notary. It is difficult to understand how an explanation of the
difficulty of finding a notary within the prison—a difficulty the court can
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readily surmise—would convert the instant petition from being frivolous or
patently without merit to being potentially meritorious.” Supra ¶ 37.
I would like to help the majority along in its understanding. To begin with, the
policy that the majority describes arises not “under Collins” but rather under the
plain language of section 122-2, which states:
“The petition shall have attached thereto affidavits, records, or other evidence
supporting its allegations or shall state why the same are not attached.”
(Emphasis added.) 725 ILCS 5/122-2 (West 2008).
As for “how an explanation of the difficulty of finding a notary within the prison
*** would convert the instant petition from being frivolous or patently without
merit to being potentially meritorious,” the answer to that can be found in this
court’s settled canons of statutory construction. When construing a statute, this
court’s primary goal is to ascertain and give effect to the legislature’s intent. Moore
v. Chicago Park District, 2012 IL 112788, ¶ 9. We seek that intent first from the
plain language of the statute and, if that language is clear and unambiguous, we are
not at liberty to depart from its plain meaning. Id. Thus, the answer to the majority’s
question as to “how an explanation of the difficulty of finding a notary within the
prison *** would convert the instant petition from being frivolous or patently
without merit to being potentially meritorious” is that this is what section 122-2
says. Supra ¶ 37. Whether we “understand” or approve of the policy set forth in
section 122-2 is immaterial, as, absent a constitutional infraction, it is not this
court’s job to second-guess a legislative determination that a law is desirable or
necessary. See People v. Kohrig, 113 Ill. 2d 384, 397 (1986).
¶ 64 Procedural Defect
¶ 65 Moving on from the “other evidence” question, I would now like to address the
majority’s assertion that the failure to have a section 122-2 affidavit sworn to under
oath amounts to a “procedural” rather than a substantive defect in the
postconviction petition. According to the majority, “[w]here a defendant has
submitted an unnotarized statement, the State may challenge this nonjurisdictional
procedural defect at the second stage of proceedings.” (Emphasis added.) Supra ¶
35. At another place, the majority characterizes a section 122-2’s affidavit’s lack of
notarization as a “remediable procedural defect.” Supra ¶ 36. Of course, the
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majority’s choice of such language is no accident, as characterizing the lack of
notarization as a “procedural defect” allows the majority to invoke Hommerson’s
observation that, “at the first stage of proceedings, the court considers the petition’s
substantive virtue rather than its procedural compliance.” Hommerson, 2014 IL
115638, ¶ 11. And in fact, this is exactly what the majority does. Supra ¶ 33.
¶ 66 The problem with the majority’s approach is that, in relation to both the
Langford statement itself and defendant’s use of that statement in support of his
postconviction petition, the fact that the statement is unsworn is clearly a
substantive, rather than a procedural, defect. As to the unsworn Langford statement
itself, the majority asserts that “lack of notarization *** does not prevent the court
from reviewing the petition’s ‘substantive virtue,’ as to whether it ‘set[s] forth a
constitutional claim for relief.’ ” Supra ¶ 33 (quoting Hommerson, 2014 IL 115638,
¶ 11). In fact, according to the majority, lack of notarization is a mere “procedural
defect” that “does not limit” or “destroy” a statement’s ability to function as
evidence. Supra ¶¶ 34, 36. In other words, according to the majority, being sworn
to under oath is a mere procedural step in the creation of an affidavit, the absence of
which has no substantive impact on the statement’s evidentiary efficacy. This
position finds no support in Roth, and it is utterly contrary to everything Roth has to
say about affidavits.
¶ 67 Again, Roth is crystal clear: being sworn to under oath is not a mere procedural
step in the creation of an affidavit. On the contrary, it is the defining substantive
feature of an affidavit. The issue in Roth was whether an unsworn statement signed
by the defendant’s attorney was sufficient to satisfy Supreme Court Rule 315(b)’s
affidavit requirement. In holding that it absolutely was not, this court
doubled-down on the principle that, to be an “affidavit,” the statement in question
simply must be made under oath and sworn to before someone who has authority
under the law to administer oaths. Indeed, the court could not have been any clearer
on this point, stating it multiple times and in multiple ways, both positively and
negatively. Noting that “Illinois courts have defined [‘affidavit’] in consistent
fashion for over 100 years,” the court first explained that “ ‘[a]n affidavit is simply
a declaration, on oath, in writing, sworn to by a party before some person who has
authority under the law to administer oaths.’ ” (Emphases added.) Roth, 202 Ill. 2d
at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). From there, the court
reiterated that principle, this time adding the obvious corollary that “ ‘ “[a] writing
which does not appear to have been sworn to before any officer does not constitute
an affidavit.” ’ ” (Emphases added.) Id. at 493-94 (quoting People v. Smith, 22 Ill.
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App. 3d 377, 380 (1974), quoting 2 Ill. L. and Prac. Affidavits § 2, at 648 (1953)).
And then, just for good measure and to ensure that there would be no remaining
confusion on this point, the court again emphasized that “an affidavit must be
sworn to, and statements in a writing not sworn to before an authorized person
cannot be considered affidavits.” (Emphases added.) Id. at 494. Notably, this all
occurred in the course of a single paragraph, the conclusion of which was the
court’s express holding that “[the] defendant did not file an ‘affidavit’ in this case
because the document filed with the appellate court does not consist of a statement
sworn to before a person who has authority under the law to administer oaths.”
(Emphasis added.) Id.
¶ 68 Now admittedly, immediately following its discourse on the meaning of
“affidavit,” the court in Roth was compelled to acknowledge its recent decision in
Robidoux v. Oliphant, 201 Ill. 2d 324 (2002), which held that an unsworn affidavit
was sufficient to comply with Supreme Court Rule 191(a)’s affidavit requirement.
In doing this, however, the court went out of its way to explain that Robidoux was a
singular case that turned not on the century-old definition of “affidavit” but rather
on the unusual language contained in Rule 191(a). Specifically, the court noted
that, rather than simply require the filing of an “affidavit,” Rule 191(a) expressly
enumerates what is required of the affidavits filed pursuant to that Rule, stating that
such affidavits:
“shall be made on the personal knowledge of the affiants; shall set forth with
particularity the facts upon which the claim, counterclaim, or defense is based;
shall have attached thereto sworn or certified copies of all documents upon
which the affiant relies; shall not consist of conclusions but of facts admissible
in evidence; and shall affirmatively show that the affiant, if sworn as a witness,
can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).
The court then explained that, “[b]ecause Rule 191(a) sets out specific
requirements for an affidavit, but omits reference to notarization, it was reasonable
for this court to conclude in Robidoux that notarization is not required.” Roth, 202
Ill. 2d at 496. As importantly, the court in Roth then emphasized both that “our
analysis in Robidoux necessarily applies only to affidavits filed pursuant to Rule
191(a)” and that, where the provision at issue “gives absolutely no guidance as to
what is required of the party filing the affidavit,” the “requirements must be
gleaned from our case law, i.e., how this court has traditionally viewed the
requirements of an affidavit.” (Emphasis added.) Id. at 495, 496. And how the court
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“has traditionally viewed the requirements of an affidavit” is that an affidavit that is
not sworn is a “nullity” that “has no legal effect.” Id. at 496, 497.
¶ 69 Thus, far from being a mere procedural step in the creation of an affidavit,
being sworn to under oath is the defining and essential substantive feature of an
affidavit. It simply is not possible, then, as the majority does, to dismiss the
unsworn Langford statement’s lack of notarization as a mere “procedural defect”
that does not “limit” or “destroy” the statement’s ability to function as evidence.
Supra ¶ 34. Under Roth, the fact that the Langford statement was not sworn to
under oath not only precludes it from being an affidavit in the first place but also
makes it a “nullity” with “no legal effect,” which is a substantive defect if ever
there was one.
¶ 70 In the same way, the fact that the Langford statement is unsworn is not a mere
“procedural defect” in defendant’s postconviction petition, such that Hommerson
controls. On the contrary, it is a substantive defect that, under this court’s decision
in Collins, mandates summary dismissal.
¶ 71 At this point, it is worth reviewing the important difference between Collins
and Hommerson, as doing so will demonstrate that Hommerson has absolutely no
role to play in deciding the present controversy. Collins arose under section 122-2
of the Act, which is concerned solely with the substance of a postconviction
petition. Titled “Contents of Petition,” section 122-2 provides that:
“The petition shall identify the proceeding in which the petitioner was
convicted, give the date of the rendition of the final judgment complained of,
and clearly set forth the respects in which petitioner’s constitutional rights were
violated. The petition shall have attached thereto affidavits, records, or other
evidence supporting its allegations or shall state why the same are not attached.
The petition shall identify any previous proceedings that the petitioner may
have taken to secure relief from his conviction. Argument and citations and
discussion of authorities shall be omitted from the petition.” 725 ILCS 5/122-2
(West 2012).
Contrary to the requirements of this provision, the defendant in Collins filed a
pro se postconviction petition that was unsupported by affidavits, records, or other
evidence and offered no explanation for the absence of such documentation.
Collins, 202 Ill. 2d at 66 (quoting 725 ILCS 5/122-2 (West 2008)). The trial court
summarily dismissed the pro se petition, and this court affirmed. In doing so, this
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court explained that the failure to comply with section 122-2 is “fatal” to a
postconviction petition and “alone justifies” summary dismissal. Id.
¶ 72 Hommerson, by contrast, arose under section 122-1(b) of the Act, which
outlines how a postconviction proceeding “shall be commenced”:
“The proceeding shall be commenced by filing with the clerk of the court in
which the conviction took place a petition (together with a copy thereof)
verified by affidavit. Petitioner shall also serve another copy upon the State’s
Attorney by any of the methods provided in Rule 7 of the Supreme Court. The
clerk shall docket the petition for consideration by the court pursuant to Section
122-2.1 upon his or her receipt thereof and bring the same promptly to the
attention of the court.” 725 ILCS 5/122-1(b) (West 2012).
In Hommerson, the defendant filed a pro se postconviction petition alleging
ineffective assistance of counsel. Although the petition was supported by several
section 122-2 affidavits, defendant did not verify the petition prior to filing it, as
required by section 122-1(b). The trial court summarily dismissed the pro se
petition, and this time the court reversed. In doing so, the court explained that “at
the first stage of proceedings, the court considers the petition’s substantive virtue
rather than its procedural compliance.” 2014 IL 115368, ¶ 11.
¶ 73 Properly understood, then, Collins and Hommerson are two very different
cases. Collins arose under a substantive provision of the Act (section 122-2), and it
held that the failure to comply with that provision is a substantive defect in the
petition itself that justifies summary dismissal at the first stage. Hommerson, by
contrast, arose under a procedural provision of the Act (section 122-1), and it held
that the failure to comply with that provision is a procedural defect that does not
justify summary dismissal at the first stage. And if there is any doubt that this is
what distinguishes these two cases, simply consider that this court has continued
both to cite and to apply Collins long after announcing that, at the first stage of
proceedings, a court considers only the petition’s “substantive virtue” and not its
“procedural compliance.” Indeed, though the majority cites Hommerson for this
principle, it was actually first announced by the court in People v. Boclair, which
was decided only a few months after Collins. See People v. Boclair, 202 Ill. 2d 89,
102 (2002). Significantly, in the 13 years since Boclair was announced, this court
has continued to cite Collins for the principle that failing to comply with section
122-2 justifies summary dismissal at the first stage. See, e.g., People v. Harris, 224
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Ill. 2d 115, 126 (2007) (citing Collins for the principle that “[t]he failure to comply
with section 122-2 is fatal and by itself justifies the petition’s summary dismissal”);
People v. Hall, 217 Ill. 2d 324, 332 (2005) (same); see also People v. Delton, 227
Ill. 2d 247, 255 (2008). In light of the now long-settled principle that, at the first
stage, a court considers a postconviction petition’s “substantive virtue” rather than
its “procedural compliance,” this court’s continued adherence to Collins
necessarily means that the failure to comply with section 122-2 is a substantive
defect in the petition itself rather than a mere “procedural shortcoming.” Otherwise,
summary dismissal for such a failure would be impermissible.
¶ 74 Why does this matter? It matters because defendant in this case wholly failed to
comply with section 122-2. Again, that section expressly states that “[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
2012). Here, the only thing attached to defendant’s petition was the unsworn
Langford statement, which we already established is a “nullity” that “has no legal
effect.” Roth, 202 Ill. 2d at 497. Again, it is exactly the same as if defendant filed
nothing at all. Secura, 232 Ill. 2d at 216. Consequently, just like the petition in
Collins, defendant’s petition here had none of the supporting documentation that
section 122-2 requires. This being the case, the trial court below was absolutely
correct to dismiss defendant’s petition summarily, and this court should not hesitate
to affirm that dismissal.
¶ 75 Public Policy
¶ 76 As a final matter, I wish to note that the majority’s decision today will have
grave public policy implications going forward. Prior to today, to survive
first-stage review, a postconviction petition had to be supported by an actual
affidavit, meaning it had to be supported by a statement sworn to under oath before
a person who has authority under the law to administer oaths. This was important
because, in addition to being what section 122-2 expressly requires, actual
affidavits serve an important gatekeeping function, in that actual affidavits bear
reliable indication that the person purporting to make the statement is the person
actually making the statement. See Vancura v. Katris, 238 Ill. 2d 352, 367 (2010); 5
ILCS 312/6-102 (West 2012). After today, actual affidavits are no longer
necessary. After today, to survive first-stage review, a postconviction petition’s
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attachment need only bear the caption “affidavit,” at which point the attachment
need not be sworn, need not be notarized, and need not bear any indication that the
person purporting to make the statement the person actually making the statement.
In other words, after today, and so long as it says “affidavit” at the top, a document
that an inmate can generate alone in his or her own cell, make say anything he or
she wants, and attribute to anyone he or she deems helpful, will be sufficient to
ensure that the inmate’s postconviction petition survives first-stage review and that
the matter advances to second-stage proceedings, complete with the appointment of
counsel. This is a dramatic lowering of section 122-2’s pleading requirements, and
it has the very real potential to overwhelm our circuit courts with frivolous
second-stage proceedings. Nothing in our law compels this, and I therefore decline
to join the majority in establishing it.
¶ 77 For all of these reasons, I dissent.
¶ 78 JUSTICE KARMEIER joins in this dissent.
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