People v. Brown , 2014 IL App (1st) 122549 ( 2014 )

Illinois Official Reports
Appellate Court
People v. Brown, 2014 IL App (1st) 122549Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption v. JAMILLE BROWN, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-12-2549
Filed July 25, 2014
Held Defendant’s pro se postconviction petition was properly dismissed
(Note: This syllabus summarily at the first stage of the proceedings, since her allegations
constitutes no part of the that her trial counsel was ineffective in failing to advise her of the
opinion of the court but State’s 20-year plea offer and in failing to present evidence at the
has been prepared by the hearing on her motion to suppress that her statement to the police was
Reporter of Decisions the result of mental and physical coercion were not factually
for the convenience of supported by affidavits, records or other evidence as required by
the reader.) section 122-2 of the Post-Conviction Hearing Act and there was no
explanation as to why those required items were not presented.
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-1766 (02);
Review the Hon. John Joseph Hynes, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg,
Matthew Connors, and Whitney Bond, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the
judgment and opinion.
OPINION
¶1 Defendant, Jamille Brown, appeals from the order of the circuit court of Cook County
summarily dismissing her pro se postconviction petition at the first stage of postconviction
proceedings.1 Defendant was convicted by a jury of aggravated vehicular hijacking, armed
robbery, and first-degree murder. The trial court sentenced defendant to a total of 43 years’
imprisonment in the Illinois Department of Corrections. This court affirmed defendant’s
conviction and sentence on direct appeal. People v. Brown, 2011 IL App (1st) 093619-U.
Thereafter, defendant filed a pro se petition for postconviction relief alleging, inter alia,
ineffective assistance of trial counsel. The trial court summarily dismissed the petition.
Defendant appeals only from the dismissal of that portion of the petition alleging ineffective
assistance of trial counsel for failing to (1) transmit the State’s 20-year plea offer to her; and
(2) present evidence at the motion to suppress hearing that her statement was a product of
mental and physical coercion. We determine that the petition does not meet the pleading
requirements of section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2
(West 2012)) and, thus, we affirm.
¶2 BACKGROUND
¶3 Defendant’s conviction arose from the December 22, 2005, murder of Abimola Ogunniyi,
who was shot in the leg by codefendant Elliott Peterson while Peterson, Joyce McGee
(another codefendant), and defendant were hijacking his vehicle. On January 17, 2006,
defendant was charged by indictment with multiple counts of first-degree murder, felony
murder, armed robbery, aggravated vehicular hijacking, armed violence, aggravated robbery,
vehicular hijacking, robbery, aggravated unlawful restraint, and unlawful restraint. The State
1
We note that the caption of the matter on appeal and in the trial court spelled defendant’s name
“Jamille.” In her videotaped statement, as well as in her pro se postconviction petition, defendant
spelled her name “Jimille.”
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proceeded to trial only on the counts for first-degree murder, aggravated vehicular hijacking,
and armed robbery.2 For purposes of the current appeal, we will reiterate here only those
facts which are germane to the issues raised in this appeal.
¶4 Motion to Suppress Statement
¶5 On March 3, 2009, defendant filed a motion to suppress her statement to police in which
she asserted that: (1) her statements to police should be excluded because she was not given
all of her Miranda rights, namely, she was not informed that she could request that
questioning be stopped; and (2) her statement was a product of “psychological and mental
coercion.” On April 2, 2009, during a case status, the following exchange took place:
“[Assistant State’s Attorney]: Your Honor, I did have discussions with Counsel
[defendant’s trial counsel]. I did take a look at his Motion to Suppress Statements,
which is the motion that’s on file. It has been set down. I did indicate to him that I
would need specificity as to Paragraph No. 4 [regarding the psychological and mental
coercion]. He indicated he will go and interview his client and if there were any
charges [sic], he would make me aware of them.
THE COURT: All right. When do you think you will have that for me?
[Defense Counsel]: Next week, Judge. Not a problem.
THE COURT: I will give you ten days. If it’s not done, let me know beforehand. I
don’t want to continue this again just for that reason. All right?
[Assistant State’s Attorney]: Yes, [Y]our Honor.”
The trial court set the evidentiary hearing on defendant’s motion to suppress for May 27,
2009.
¶6 A supplemental motion to suppress was filed on May 25, 2009. The motion set forth
more facts regarding the alleged psychological and mental coercion. The motion expressly
stated that the interrogating officers “yelled and raised their voices to the defendant,
threatened the defendant with forcing her to have her baby in jail in unsanitary circumstances
and threatened to charge her along with the co-defendants with the crime itself if she did not
make a statement.”
¶7 On the day of the hearing, the assistant State’s Attorney informed the trial court that
defendant’s supplemental motion was not supported by an affidavit from defendant. The
assistant State’s Attorney requested defendant “be sworn today to those facts that are in ***
[trial counsel’s] motion.” Trial counsel had no objection to defendant being “sworn in to the
facts.” Consequently, defendant swore “the contents of the motion to be true and accurate to
the best of [her] knowledge.” A suppression hearing was then held.
¶8 Trial counsel then presented his opening statement. Trial counsel asserted the motion
raised two issues: (1) that defendant did not receive a complete set of Miranda warnings; and
(2) that officers “overcame her desire not to talk about the case by threatening her [and]
threatening to take her baby away from her.” Trial counsel noted defendant was pregnant at
the time the interrogation occurred. He further asserted the officers threatened defendant with
2
Defendant and McGee were tried in simultaneous but severed proceedings; the defendant was
tried by a jury; McGee elected a bench trial.
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forcing her to deliver the baby in county jail in unsanitary conditions. The State presented no
opening statement.
¶9 Thereafter, the State called its first and only witness, Lieutenant James Twohill of the
Burbank police department. Twohill testified that on December 27, 2005, he was sergeant of
Burbank investigations. At 12:53 p.m. that day, he and Lieutenant Tom Harold of the
Evergreen Park police department conducted an interview of defendant. Twohill read
defendant her Miranda rights from a preprinted card. Twohill further testified he did not
inform defendant that she could stop the questioning at any time. Additionally, Twohill
stated he did not raise his voice or yell at defendant and that he did not threaten defendant
with losing her baby or tell defendant her baby would be born in jail in unsanitary conditions.
Twohill testified defendant had no complaints regarding her treatment by police.
¶ 10 During Twohill’s testimony, the State introduced into evidence defendant’s December
27, 2005, videotaped interview. The State played a portion of the interview for the court
wherein Twohill read defendant her Miranda rights. The videotape reflected that Twohill did
not inform defendant that she could stop the questioning at any time. In addition, the
videotape demonstrated defendant was not physically, psychologically, or mentally coerced
and that the officers did not yell or raise their voices to defendant. Further, the officers did
not make threats toward defendant’s unborn child. At the beginning of the interview, the
videotape demonstrates that defendant is asked, “Everything okay so far, you need a glass of
water, you good?” To which she responds, “No, I’m okay.” Near the end of the interview,
when asked if she had been treated well, defendant responds affirmatively. The officers then
asked defendant, “You have no complaints about the way anybody treated you here?” In
response, defendant slightly bowed her head, shaking it from side-to-side indicating she did
not have any complaints.
¶ 11 On cross-examination Twohill testified that he first met defendant on December 26,
2005, and spoke with her “very briefly” at the police station. Defendant was not a suspect
and, therefore, was not informed of her Miranda rights at that time. Later that day, defendant
accompanied Twohill and other unidentified officers to locate and identify “J-Mo,” an
individual who Twohill indicated was, at that time, a suspect in the matter. Defendant was in
a van with the officers for “no more than an hour.” Afterwards, the officers dropped
defendant off at a family member’s home.
¶ 12 Twohill further testified on cross-examination that on December 27, 2005, he “received
information” that defendant had “voluntarily arrived” at the police station. Twohill “went
there immediately to conduct the interview.” Twohill, however, did not know exactly when
defendant had arrived at the station. Twohill testified that Lieutenant Harold escorted
defendant into the interview room, where Twohill was waiting outside. Twohill, Harold, and
defendant walked into the interview room together, which is when the videotape begins.
Prior to beginning the interview at 12:50 p.m., Twohill stated he had not spoken with
defendant and neither had any other officers.
¶ 13 On redirect, Twohill testified that on December 27, 2005, he and Harold were at task
force headquarters in Chicago Ridge when Harold received a telephone call that defendant
was at the Evergreen Park police department. The two officers left immediately and arrived
at the Evergreen Park police department “no more than 15 minutes” later. When they arrived
at the Evergreen Park station, Harold went to get defendant, who was “waiting in a report
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room away from the Detective Division.” Twohill further testified that the first time he spoke
with defendant on December 27, 2005, was when he commenced defendant’s interview.
¶ 14 On re-cross, Twohill testified he did not see defendant walk into the station and believed
“she arrived [at the station] when Lieutenant Harold received a phone call.”
¶ 15 The State rested and defendant moved for a directed finding, which was denied by the
trial court. The defense then rested without calling any witnesses. In closing arguments,
defense counsel asserted that defendant did not receive “the final Miranda warning” and
noted that the officers did not have defendant acknowledge each right individually. Defense
counsel pointed out that the officers did not inform defendant that she did not have to answer
further questions. Defense counsel further asserted that Twohill did not know what happened
in the police station prior to defendant being interviewed. Defense counsel maintained this
information was “important on the voluntariness issue” as it is “the State’s burden to prove
that none of this happened. That her voluntariness was not overcome.” Defense counsel
concluded that because the State did not offer any evidence as to what happened to defendant
earlier in the day, the State did not meet its burden and, therefore, the motion should be
granted.
¶ 16 In its closing argument, the State asserted that defendant was given all of her Miranda
rights as shown in the videotape of the interview and from Twohill’s testimony. The State
further asserted that the December 27, 2005, interview was a “totally different phase to this
investigation.” In addition, defendant indicated on the videotape that she was treated well and
there was no indication that she was not treated well by any officer at any time. Accordingly,
the State requested that defendant’s motion to suppress be denied.
¶ 17 After listening to the arguments of counsel, the testimony of Twohill, and viewing the
videotape of defendant’s interview, the trial court determined that “the Miranda warnings do
not require any ‘fifth’ warnings with regards to the right to have questioning stopped at any
time.” The trial court also determined that defendant “clearly indicated that she understood
all her rights and answered, yes, to that question.” With regard to the voluntariness of
defendant’s statement, the trial court determined that the State met its burden of proof as the
testimony of Twohill and the contents of the videotape demonstrated “she had no complaints
about any one or the way she was treated there at the police station.” Accordingly, the trial
court denied defendant’s motion to suppress.
¶ 18 Plea Offer
¶ 19 In the trial record, the first time a plea offer appears to be discussed was on June 10,
2009. Concerned about scheduling, the trial court inquired of counsel whether there had been
any “negotiations between the parties.”3 Defendant’s trial counsel stated, “I have started the
negotiation process. I was thinking an early September trial, [Y]our Honor.” The trial court
then pressed trial counsel for a response as to whether defendant was willing to enter any
plea negotiations or whether defendant would proceed to trial, noting this case had been
pending since 2006. Trial counsel agreed with the trial court and indicated that he would
speak with the State.
3
As previously noted, the trial proceedings of defendant and codefendant McGee were conducted
jointly.
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¶ 20 At the next court date, July 7, 2009, defendant’s trial counsel stated he was “in a position
of setting the case down for trial.” While discussing with counsel when to set the matter for
trial, the trial court inquired as to whether “there had been any negotiations beforehand.”
Defendant’s trial counsel indicated that the negotiations were ongoing. The assistant State’s
Attorney stated she telephoned counsel for defendant and codefendant McGee last week and
left a message with an offer. The record does not indicate what the offer was. In response, the
trial court set an interim status date of September 2, 2009, for status on plea negotiations.
After counsel for defendant and McGee indicated their clients elected jury trials, the trial
court set a firm trial date of October 5, 2009.
¶ 21 On September 2, 2009, the trial court inquired as to the status of any plea offers made to
defendant and McGee. Defendant’s trial counsel requested that counsel confer with the trial
judge in chambers to discuss matters regarding scheduling. In response, the trial court
inquired whether the matter could be worked out, to which defendant’s trial counsel
responded, “Well, that’s one of the issues.” The trial court asked whether counsel were
requesting the court “to admonish your clients on a 402 Conference,” to which trial counsel
for McGee responded, “It’s not for the 402 conference.” No other discussion was had on the
record regarding any plea offer.
¶ 22 On October 5, 2009, prior to trial, the trial court inquired of trial counsel whether any
plea offers had been made to defendant and McGee:
“THE COURT: The first thing I want to go over with everyone is I know during
the course of the pendency of this matter that the State has made certain offers, plea
offers to the defendants. I just want to make sure under the case of People versus
Curry that the defendants are aware of that and that they also are aware of the
minimum and maximum penalties.
So, State, were offers made to either or both defendants?
[Assistant State’s Attorney]: Yes, [Y]our Honor. As to both defendants an offer
was made as to count–I’m sorry, Judge–as to Count 7 or 8 of 30 years.
THE COURT: 7 or 8. That would be the–
[Assistant State’s Attorney]: Felony murder, armed robbery, felony murder,
aggravated vehicular hijacking.
THE COURT: And the offer was 30 years in the Illinois Department of
Corrections?
[Assistant State’s Attorney]: Yes, [Y]our Honor, it was.
***
THE COURT: All right, very good. And [defense counsel], is that your
understanding of the offer by the State?
[Defense Counsel]: It is, [Y]our Honor and I also communicated that offer to my
client and she is also electing to proceed to trial.
***
THE COURT: And Miss Brown, you have heard the representations of your
attorney and the State’s Attorney, is that your understanding of the offer that they
made?
DEFENDANT BROWN: Yes, sir.”
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The trial court then informed defendant of the minimum and maximum sentences she could
receive. Defendant acknowledged she discussed sentencing with her attorney and understood
the minimum and maximum sentences possible. The matter then proceeded to trial.
¶ 23 Evidence at Trial
¶ 24 This court previously detailed the evidence adduced at defendant’s trial in our decision
on direct appeal (People v. Brown, 2011 IL App (1st) 093619-U):
“The evidence established that on December 22, 2005, the victim was dispatched
to a nonexistent address on Chicago’s southside, where he was unable to locate the
caller in need of a taxi. Upon a second call to the dispatcher, the victim picked up
three passengers, the defendant and her two codefendants. He was asked to take the
three to the [sic] 96th Street and Pulaski.
According to the defendant’s videotaped statement, the three had agreed to rob an
armored truck. In order to carry out their plan, they needed a vehicle to follow the
armored truck before executing the robbery. They decided to hijack a cab to get the
needed vehicle. Codefendant McGee called the livery service twice from her cell
phone to arrange for a cab.
Before the three left codefendant Peterson’s apartment, the defendant saw
Peterson arm himself with a weapon whose length she approximated by using her
hands and noted it had wood on it. The victim was killed by a shotgun blast. When
the cab reached the requested destination, McGee told the victim to go the rear of the
residence by way of the alley. Once in the alley, Peterson put his weapon to the
victim’s head and had him get out of the car. The two exited on the driver’s side of
the car. Peterson instructed the victim to remove his clothing. In the meantime, the
defendant and codefendant McGee also exited the car on the passenger side of the
car. According to the defendant, the victim was taking off his blue jean jacket when
‘all I heard was a pah.’ The defendant stated Peterson shot the victim from a distance
of about three feet and the victim fell in the snow.
After clearing the cab of some items, the three reentered with the defendant
driving. The defendant saw Peterson place the shotgun into what she described as a
‘book bag.’ The defendant identified a shotgun depicted in a photograph as the same
gun she saw Peterson possess and use on the victim.
The three abandoned the cab. Before leaving the cab, the defendant saw Peterson
remove a ‘black box’ from the glove box and throw it away. Peterson also removed
$200 to $300 from a wallet that was also in the glove box. The three walked in the
direction of a bus stop on 95th Street near Christ Hospital. On their way, the
defendant and McGee entered a Walgreen’s store and purchased a candy bar with a
$20 bill Peterson took from the wallet. A videotape of the purchase was shown to the
jury. The three took a bus to Peterson’s apartment.
The defendant concluded her statement by acknowledging that she had been
treated well by the police. The defendant reiterated that what she had stated was the
truth. A detective responded: ‘You know the only thing that upsets me? *** What
really *** upsets me is this poor guy was laying there bleeding and the three of [you,
not one of you] *** called 911.’
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The jury found the defendant guilty of aggravated vehicular hijacking, armed
robbery and first-degree murder. The jury specially found that first-degree murder
was committed by the use of a firearm. Following the denial of posttrial motions, the
defendant was sentenced to 28 years for first-degree murder with an additional 15
years based on the use of a firearm.” Id. ¶¶ 5-11.
¶ 25 Direct Appeal
¶ 26 On direct appeal, defendant raised three issues: (1) that she was deprived of a fair trial by
the introduction of an autopsy photo; (2) prosecutorial misconduct; and (3) that her 43-year
sentence was excessive. Brown, 2011 IL App (1st) 093619-U, ¶ 13. Both parties agreed that
defendant’s mittimus must be corrected to reflect a single conviction of murder. Id. We
affirmed defendant’s conviction and sentence. Id. ¶ 37. We concluded that the introduction of
the autopsy photograph did not deprive defendant of a fair trial; that the claimed instances of
prosecutorial misconduct did not rise to the level of second-prong plain errors; and that
defendant’s sentence was not excessive. Id. We further corrected the mittimus to reflect a
single conviction of murder. Id.
¶ 27 Defendant’s Pro Se Postconviction Petition
¶ 28 In May 2012 defendant filed a pro se petition under the Act (725 ILCS 5/122-1 et seq.
(West 2012)). Defendant’s pro se petition alleged trial counsel was ineffective for several
reasons, specifically, trial counsel failed to: (1) argue “the rule of accountability” and argue
for a lesser included offense; (2) properly argue her motion to suppress statements; (3) file a
motion to suppress evidence, namely, the contents of a backpack recovered from codefendant
Peterson’s apartment; (4) challenge a juror who spoke English as a second language; and (5)
advise her of a 20-year plea bargain from the State. Defendant pursues only issues (2) and (5)
in this appeal; that trial counsel rendered ineffective assistance of counsel by failing to
present evidence and testimony that her statement to police was the product of physical and
mental coercion and failing to inform her of an offer by the State to enter a 20-year plea
bargain.
¶ 29 In support of her petition, defendant attached portions of the record of proceedings,
excerpts of case law, three affidavits containing her own statements, and two letters–one
from Cashmere Wallace, her brother, and the second from Camille Kershaw, her mother. In
defendant’s first affidavit she averred that before trial the State offered her 30 years, but that
she turned the offer down. She further averred that the assistant State’s Attorney then
informed trial counsel that they would offer 20 years; however, trial counsel declined the
offer because he assumed defendant would not accept the offer and believed he could win the
trial. In her second affidavit, defendant stated that prior to trial her counsel informed her
mother and brother of the 20-year plea deal offered by the State. She further asserted that
trial counsel informed her mother that he “turned the deal down.” In her third affidavit,
defendant averred that she informed trial counsel that “two days prior to my confession, I
was physically assaulted & threatened of my unborn child begin [sic] taken from me.” She
further averred that she “also informed my brother, Cashmere Wallace, that I was hit in my
head while in the van with officers.”
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¶ 30 The letter from defendant’s brother stated, “The [e]arly [m]orning of December 27, 2005
me, and my sister got high. [S]he confined [sic] in me that office [sic] Two[h]ill had slapped
her in the head, while in the van.” The letter was signed by Cashmere Wallace, but was not
sworn or notarized.
¶ 31 The letter from defendant’s mother stated, “December 27, 2005 I [d]rove [m]y [d]augher
Jimille Brown to Evergreen police [s]tation, she was highly [i]ntoxicated with [m]arijuana,
and [e]cstacy.” The letter was signed by Camille Kershaw, but was not sworn or notarized.
¶ 32 On August 10, 2012, the circuit court summarily dismissed defendant’s pro se petition in
a written order. Regarding the claims at issue on appeal, the court first determined
defendant’s argument regarding trial counsel’s failure to present evidence that her statements
to police were the product of mental and physical coercion were “specifically contradicted by
the record.” The circuit court pointed out that the motion to suppress contained allegations
regarding the verbal threats against defendant; however, defendant had sworn to the contents
of the motion. At no point did defendant allege the interrogating officers physically assaulted
her. In addition, the circuit court noted the allegations were specifically denied by the officer
at the hearing. Further, in the videotaped confession defendant indicated she was treated well
by the police and had no complaints about her treatment. The circuit court also referenced the
fact that trial counsel argued defendant’s statement was involuntary because she was
threatened by the detectives in opening and closing statements during the hearing on the
motion to suppress as well as in the motion for a new trial. The circuit court concluded this
allegation was “completely contradicted by the record.”
¶ 33 The circuit court also determined defendant’s factual allegation that she received
ineffective assistance of counsel due to trial counsel’s failure to advise her of a plea offer by
the State of 20 years in prison was contradicted by the trial record. The circuit court noted
that the trial court asked the State whether any plea offers were made. In response, the
assistant State’s Attorney informed the court and the defense that in exchange for the
defendant’s plea to all counts, the State had offered the defendant 30 years in prison. The
circuit court stated in its order that trial counsel acknowledged this offer and indicated he had
communicated this offer to his client, but that defendant elected to proceed to trial. The trial
court also asked defendant if this was her understanding of the offer and she indicated it was.
The circuit court concluded the record “shows that the only offer ever made to the defendant
was for 30 years in prison” and, therefore, “[t]he factual allegations in the petition are
meritless.”
¶ 34 This appeal timely followed.
¶ 35 ANALYSIS
¶ 36 On appeal, defendant contends that her petition stated the gist of a meritorious claim that
defense counsel rendered ineffective assistance at trial. Specifically, defendant asserts her
trial counsel was ineffective for two reasons: (1) for failing to present evidence that her
statement to police was the product of mental and physical coercion; and (2) for failing to
inform her of a 20-year plea offer. We note that defendant makes no argument on appeal as
to the other allegations in her petition.
¶ 37 In response, the State first addresses the sufficiency of defendant’s petition, arguing: (1)
that defendant forfeited her arguments regarding ineffective assistance of counsel because
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they were not raised in her direct appeal; and (2) that the State asserts that defendant’s
petition lacked independent corroboration as required by section 122-2 of the Act. The State
concludes that the insufficiency of defendant’s petition is a basis on which to uphold the
court’s summary dismissal. In the alternative, the State addresses the substance of
defendant’s petition, asserting defendant’s contentions are rebutted by the record as
defendant was never offered a 20-year plea bargain and evidence was adduced at the
evidentiary hearing that defendant’s statement was not a product of coercion. Our review of
the summary dismissal of defendant’s postconviction petition is de novo. People v. Tate,
2012 IL 112214, ¶ 10. We first consider the sufficiency of defendant’s petition.
¶ 38 Sufficiency of the Petition
¶ 39 The State asserts defendant’s petition was insufficient to survive first-stage review for
two reasons: (1) defendant has forfeited her arguments regarding counsel’s ineffectiveness;
and (2) defendant failed to provide any evidence in support of her claims as required by
section 122-2 of the Act. We address each in turn.
¶ 40 Forfeiture
¶ 41 “The scope of the [postconviction] proceeding is limited to constitutional matters that
have not been, nor could have been, previously adjudicated.” People v. Harris, 224 Ill. 2d
115, 124 (2007). Accordingly, issues that could have been raised on direct appeal, but were
not, are considered forfeited and, therefore, barred from consideration in a postconviction
proceeding. People v. Petrenko, 237 Ill. 2d 490, 499 (2010). A postconviction claim that
depends on matters outside the record, however, is not ordinarily forfeited because such
matters may not be raised on direct appeal. People v. English, 2013 IL 112890, ¶ 22; People
v. Youngblood, 389 Ill. App. 3d 209, 214 (2009).
¶ 42 In the present case, defendant asserts two arguments regarding what she alleges was her
trial counsel’s ineffectiveness. The first argument, that her trial counsel failed to inform her
of a 20-year plea offer, could not have been raised on direct appeal. Information regarding
this claim was outside of the record, therefore, we find the argument is not forfeited. See
People v. Harris, 206 Ill. 2d 1, 15 (2002) (finding “[t]he facts relating to this claim do not
appear on the face of the original appellate record, and res judicata and waiver therefore do
not apply in this instance”). Second, defendant asserts that trial counsel was ineffective for
failing to present evidence at her suppression hearing to corroborate her claim that she was
mentally and physically coerced into providing her statement to police. In that this claim is
based on purported corroborative evidence of coercion which was not presented, the facts
relating to this claim are outside the record. Accordingly, we will also consider this portion
of defendant’s claim. See Harris, 206 Ill. 2d at 15.
¶ 43 Compliance With Section 122-2 of the Act
¶ 44 The State contends that defendant’s petition was properly dismissed at the first stage as
defendant failed to provide any evidence in support of her claims as required by section
122-2 of the Act. 725 ILCS 5/122-2 (West 2012). Specifically, the State points out that
defendant submitted affidavits that were not notarized and, therefore, do not satisfy the
pleading requirements of section 122-2. Relying on People v. Collins, 202 Ill. 2d 59, 66-68
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(2002), the State concludes that the failure to meet the pleading requirements of section
122-2 is fatal to defendant’s postconviction petition. In response, defendant claims that “the
lack of notarization on the evidentiary statements attached to a pro se petition is a
‘technicality’ that would not prevent a petition from advancing to the second stage,” relying
on People v. Parker, 2012 IL App (1st) 101809, ¶ 75.
¶ 45 We begin our analysis of the State’s contention by noting that the Act provides a
procedural mechanism through which a defendant may assert a substantial denial of his
constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1
(West 2012). “The purpose of a postconviction proceeding is to permit inquiry into
constitutional issues involved in the original conviction and sentence that were not, and could
not have been, adjudicated previously on direct appeal.” English, 2013 IL 112890, ¶ 22. At
the first stage of a postconviction proceeding, the trial court independently reviews the
petition, taking the allegations as true, and determines if it is frivolous or patently without
merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). “The court is further foreclosed from
engaging in any fact-finding or any review of matters beyond the allegations of the petition.”
People v. Boclair, 202 Ill. 2d 89, 99 (2002). At this stage, a defendant “need only present a
limited amount of detail in the petition” and the “threshold for survival” is “low.” Hodges,
234 Ill. 2d at 9. A pro se defendant need only “allege enough facts to make out a claim that is
arguably constitutional for purposes of invoking the Act.” Id. “Thus, in our past decisions,
when we have spoken of a ‘gist’ [of a constitutional claim], we meant only that the section
122-2 pleading requirements are met, even if the petition lacks formal legal arguments or
citations to legal authority.” Id.¶ 46 Whether defendant’s postconviction claims survive the first stage of the postconviction
proceedings is dependent upon whether defendant’s petition conforms to the requirements of
the Act. See Collins, 202 Ill. 2d at 66-67; People v. Delton, 227 Ill. 2d 247, 255 (2008).
Section 122-2 of the Act requires that the petitioner either provide “affidavits, records, or
other evidence” to support the petitioner’s allegations or explain the absence of such
documentation. 725 ILCS 5/122-2 (West 2012). “The purpose of the ‘affidavits, records, or
other evidence’ requirement is to establish that a petition’s allegations are capable of
objective or independent corroboration.” Hodges, 234 Ill. 2d at 10 (citing Delton, 227 Ill. 2d
at 254). If at first-stage review the affidavits do not comply with the evidentiary requirements
of section 122-2, then the petition must comply with the pleading requirements of section
122-2 by at least providing an explanation as to why the documents or affidavits are
unobtainable. Collins, 202 Ill. 2d at 66-67. The failure to meet either of the requirements of
section 122-2 justifies the petition’s summary dismissal. 725 ILCS 5/122-2 (West 2012);
Delton, 227 Ill. 2d at 255. If a postconviction petition is unsupported as required by section
122-2, then we need not consider whether the petition sets forth the gist of a constitutional
claim. Delton, 227 Ill. 2d at 255.
¶ 47 In Collins our supreme court stated that the purpose of a section 122-2 affidavit is to
establish that the defendant’s allegations can be independently corroborated and, therefore,
failure to meet the requirements of section 122-2 is enough to justify summary dismissal.
Collins, 202 Ill. 2d at 66-67. There, the defendant filed a pro se petition for postconviction
relief. Id. at 62. The only attachment to the defendant’s petition was a sworn verification
from the defendant that “ ‘[a]ll the facts presented are true and correct to the best of my
recollection.’ ” Id. The circuit court dismissed the defendant’s petition as frivolous and
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patently without merit. Id. The appellate court ultimately reversed the circuit court’s
dismissal of defendant’s petition. Id. at 64.
¶ 48 Our supreme court affirmed the circuit court’s dismissal of the petition, reasoning that
“the failure to either attach the necessary ‘affidavits, records, or other evidence’ or explain
their absence is ‘fatal’ to a post-conviction petition [citation] and by itself justifies the
petition’s summary dismissal [citation].” Id. at 66. The court, however, expressly rejected the
“defendant’s contention that his sworn verification can serve as a substitute for the
‘affidavits, records, or other evidence’ mandated by section 122-2.” Id. “[T]he Act itself
clearly distinguishes between the sworn verification that defendant filed and the supporting
‘affidavits, records, or other evidence’ that defendant neglected to file.” Id. Our supreme
court stated that the purposes of sections 122-1(b) and 122-2 are “wholly distinct.” Id. at 67.
Specifically, a section 122-1(b) affidavit “like all pleading verifications, confirms that the
allegations are brought truthfully and in good faith. [Citation.] The latter [section 122-2], by
contrast, shows that the verified allegations are capable of objective or independent
corroboration.” Id. In upholding the circuit court’s dismissal of the petition, our supreme
court recognized that requiring a defendant to attach “ ‘affidavits, records, or other
evidence’ ” may place an unreasonable burden on postconviction petitioners. Id. at 68. “This
does not mean, however, that the petitioners in such cases are relieved of bearing any burden
whatsoever. On the contrary, section 122-2 makes clear that the petitioner who is unable to
obtain the necessary ‘affidavits, records, or other evidence’ must at least explain why such
evidence is unobtainable.” Id.4
¶ 49 The propriety of a summary dismissal of a first-stage petition based on the petitioner’s
failure to comply with section 122-2 of the Act was further reiterated in Delton, wherein our
supreme court stated, “while a pro se petition is not expected to set forth a complete and
detailed factual recitation, it must set forth some facts which can be corroborated and are
objective in nature or contain some explanation as to why those facts are absent. As a result,
the failure to either attach the necessary affidavits, records, or other evidence or explain their
absence is fatal to a post-conviction petition [citation] and by itself justifies the petition’s
summary dismissal.” (Internal quotation marks omitted.) Delton, 227 Ill. 2d at 254-55(quoting Collins, 202 Ill. 2d at 66).
¶ 50 Defendant contends that the lack of notarization of a section 122-2 affidavit is not fatal to
her first-stage petition, as it is a mere technicality and, therefore, should proceed to
4
In a dissent upon denial of rehearing, Justice McMorrow, joined by Justice Freeman, criticized the
majority’s holding in Collins that the defendant’s failure to comply with the pleading requirements of
section 122-2 by itself warranted summary dismissal of the postconviction petition. Id. at 79(McMorrow, J., dissenting, joined by Freeman, J.). The dissent pointed out that under Boclair, the
circuit court is limited at the summary dismissal stage to asking whether the petition states the “gist of a
constitutional claim”; accordingly, matters of “procedural compliance,” such as the failure to comply
with the affidavit requirement of section 122-2, may not be considered at the initial stage of
postconviction review. Id. at 80. In the time since the Collins decision was issued, however, our
supreme court has expressly stated that “in our past decisions, when we have spoken of a ‘gist,’ we
meant only that the section 122-2 pleading requirements are met, even if the petition lacks formal legal
arguments or citations to legal authority.” Hodges, 234 Ill. 2d at 9. Accordingly, in order to even reach
the question of whether the petition states the gist of a constitutional claim, the pleading requirements
of section 122-2 must be satisfied. See Delton, 227 Ill. 2d at 255.
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second-stage review. In support of this position, defendant relies upon two cases; Parker, and
People v. Henderson, 2011 IL App (1st) 090923, which we discuss in turn.
¶ 51 We first turn to consider Henderson. We note that the relevant issue in Henderson was
whether the lack of notarized section 122-1(b) verification affidavit was a proper basis for
summary dismissal at the first stage. Id. ¶ 21. The Henderson court did not consider the
consequences of an unnotarized section 122-2 affidavit, as is at issue in the present case.
Recognizing the distinction between sections 122-1(b) and 122-2 of the Act, the Henderson
court stated: “Unlike the section 122-2 affidavit, which shows that the allegations can be
objectively and independently corroborated, the verification affidavit requirement of section
122-1, ‘like all pleading verifications, confirms that the allegations are brought truthfully and
in good faith.’ ” Id. (quoting Collins, 202 Ill. 2d at 67). The court concluded that although
any affidavit filed pursuant to the Act must be notarized, not every defect in a petition
warrants summary dismissal. Id. ¶ 29. The Henderson court specifically held that “the Act
allows summary dismissal only where a defect renders a petition frivolous or patently
without merit. By their traditional meaning, we do not find those terms would encompass the
mere lack of notarization of a verification affidavit.” (Emphasis added.) Id. ¶ 34. The court
reasoned that the notarization of a verification affidavit has “no relation to the substance of a
defendant’s alleged constitutional claim” and that “unlike a section 122-2 affidavit, a section
122-1 verification affidavit does not show that the defendant’s allegations can be
corroborated and is not considered when determining whether a defendant has a factual basis
for his claims.” Id. The court further explained, “since an unnotarized verification affidavit
cannot render a petition frivolous or patently without merit, it cannot be condoned as a proper
basis for first-stage dismissal of a postconviction petition.” Id.5
¶ 52 In the present case, the State does not challenge the sufficiency of defendant’s
verification affidavit. Accordingly, we do not find Henderson to be applicable.
¶ 53 Second, defendant relies on Parker for the proposition that “the lack of notarization on
the evidentiary statements attached to a pro se petition is a ‘technicality’ that would not
prevent a petition from advancing to the second stage.” In Parker, we considered whether the
first-stage dismissal of a postconviction petition was proper because one of the two section
122-2 affidavits submitted by the defendant was unnotarized. Parker, 2012 IL App (1st)
101809, ¶ 73. There, the unnotarized affidavit at issue consisted of statements from a
codefendant in support of the defendant’s actual innocence claim. Id. ¶ 63. The affidavit,
however, was sworn pursuant to section 1-109 of the Code of Civil Procedure (735 ILCS
5/1-109 (West 2010)) and asserted that the defendant did not commit the murder and he had
“ ‘never seen him in my life.’ ” Parker, 2012 IL App (1st) 101809, ¶ 64. The Parker court
expressly rejected the State’s argument that summary dismissal was warranted based on the
lack of notarization of the section 122-2 affidavit. The Parker court adopted the reasoning of
Henderson, “where we stated that we would not let a technicality prevent a pro se petition
from advancing to the second stage.” (Internal quotation marks omitted.) Id. ¶ 76 (quoting
5
Similarly, our supreme court in People v. Hommerson, 2014 IL 115638, held that the trial court
“may not dismiss a petition at the first stage of proceedings solely on the basis that it lacked a
verification affidavit.” (Emphasis added.) Id. ¶ 11. Although section 122-2 affidavits were attached to
the defendant’s postconviction petition, our supreme court expressly did not consider them in its
decision. Id. ¶ 14 n.1. Accordingly, Hommerson is also inapplicable to the case at bar.
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People v. Wilborn, 2011 IL App (1st) 092802, ¶ 72). The Parker court did not take issue with
the content of the codefendant’s affidavit. Id. ¶¶ 83-85.
¶ 54 Although Parker stands for the proposition that a section 122-2 affidavit need not be
notarized upon first-stage review, this court has found the lack of notarization in that instance
can be a basis for summary dismissal. In People v. Gardner, 2013 IL App (2d) 110598, the
reviewing court concluded that the affidavit requirements of section 122-1(b) are “wholly
distinctive” from section 122-2 and, therefore, should be “construed independently as they
serve independent purposes.” Id. ¶ 17. In addition, the court stated “[a]lthough a petition may
not be summarily dismissed for violating section 122-1(b), it may be for violating section
122-2.” Id. This reasoning was similarly applied in People v. Wideman, 2013 IL App (1st)
102273, wherein we upheld the summary dismissal of a successive postconviction petition
based on the fact the section 122-2 affidavit was unnotarized and failed to offer any
explanation as to why the affidavits were not notarized. Id. ¶ 18. Had an explanation been
given, “[t]he trial court would have had an opportunity to determine whether there was at
least minimal compliance with section 122-2 of the Act.” Id.
¶ 55 In contrast, the Parker court based its reasoning on Henderson wherein we held that the
lack of notarization of a section 122-1(b) verification affidavit could not be the basis of a
summary dismissal. Henderson, 2011 IL App (1st) 090923, ¶ 21. Despite the fact Henderson
expressly distinguished between the purposes of section 122-1(b) and section 122-2
affidavits (and also discussed Collins), the Parker court failed to acknowledge the distinction
between these two sections. See id. ¶¶ 30, 34; Parker, 2012 IL App (1st) 101809, ¶¶ 72-77.
Our supreme court has made clear that the purpose of a section 122-2 affidavit is to “show[ ]
that the verified allegations are capable of objective or independent corroboration. To equate
the two [sections] is not only to confuse the purposes of subjective verification and
independent corroboration but also to render the ‘affidavits, records, or other evidence’
requirement of section 122-2 meaningless surplusage.” Collins, 202 Ill. 2d at 67.
Accordingly, section 122-1(b) verification affidavits are readily distinguishable from section
122-2 affidavits and, therefore, we decline to follow Parker and will instead follow the more
applicable opinions of Collins, Gardner, and Wideman.
¶ 56 Even if we construed the notarization requirement as a technicality, the affidavits are still
insufficient to support defendant’s petition. An affidavit is “a declaration, on oath, in writing,
and sworn to before some person who has authority under the law to administer oaths.”
People v. Gray, 2011 IL App (1st) 091689, ¶ 13. An affidavit “should consist of factual
propositions to which the affiant could testify in an evidentiary hearing.” People v. Coleman,
2012 IL App (4th) 110463, ¶ 54. Moreover, the “affidavits and exhibits which accompany a
petition must identify with reasonable certainty the sources, character, and availability of the
alleged evidence supporting the petition’s allegations.” Delton, 227 Ill. 2d at 254. If the
content of an affidavit is no more than hearsay, then it is insufficient to support a claim under
the Act. Gray, 2011 IL App (1st) 091689, ¶ 16.
¶ 57 In the present case, defendant submitted three unnotarized affidavits from herself and two
letters from her mother and brother. We first address the fact that the letters are
unquestionably not affidavits; they lack attestation, identifiers in the statement, factual
specificity, and notarization. See id. ¶ 14. Further, these letters are prime examples of why
affidavits are required to be notarized, as both letters consist of two pieces of paper; the top
half consisting of the contents of the letter and the bottom half consisting of the date, the
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typed name, and the handwritten signature of the “author.” These two pieces of paper are
held together with a single piece of white-colored tape, which was placed on the back of the
paper and was attached to the petition as one sheet of paper. As presented, we cannot say that
these letters are even capable of being sworn to or notarized in future proceedings.
Accordingly, these letters fail to support defendant’s petition. See Gardner, 2013 IL App
(2d) 110598, ¶ 17 (finding the letter attached to a postconviction petition was not a valid
section 122-2 affidavit).
¶ 58 We next turn to consider the three unnotarized affidavits defendant authored on her own
behalf. 6 None of defendant’s affidavits provide independent corroboration of the facts
alleged in her petition. In fact, two of the affidavits contain hearsay statements; that the
assistant State’s Attorney informed her lawyer of a 20-year plea offer and that her trial
counsel informed her mother and brother of a 20-year plea offer. Affidavits containing
hearsay are insufficient to support a claim under the Act. Gray, 2011 IL App (1st) 091689,
¶ 16. Moreover, defendant could have supported her claim that trial counsel was ineffective
for failing to relay to her the 20-year plea offer with an affidavit from trial counsel. Under
defendant’s circumstances, it is understandable that such an affidavit would be difficult to
acquire. See People v. Williams, 47 Ill. 2d 1, 4 (1970) (“The difficulty or impossibility of
obtaining such an affidavit is self-apparent.”). An affidavit from trial counsel, however, was
not the only means of corroboration, as defendant claims her mother and brother could
corroborate the facts surrounding the 20-year plea offer but failed to obtain affidavits from
either of them which would corroborate her allegation. Further, defendant’s affidavits are
inconsistent with the allegations of her petition. For example, defendant asserts in one
affidavit that two days prior to her confession she was physically assaulted. This assertion
was belied by her petition (and also the record) wherein she stated she confessed on
December 27, 2005, and was hit in the head on December 26, 2005. For these reasons, we
find that defendant’s affidavits did not comply with section 122-2.
¶ 59 Even though none of defendant’s affidavits comply with section 122-2 it does not
necessarily follow that her petition warrants summary dismissal. Section 122-2 of the Act
also permits a defendant to attach records or other documentation to the petition as a means
of independent corroboration. 725 ILCS 5/122-2 (West 2012). Here, in support of her
contention that trial counsel was ineffective for failing to present evidence of coercion at the
hearing on the motion to suppress, defendant attached to her petition two pages of Officer
Twohill’s testimony from the motion to suppress hearing and three pages from the hearing on
defendant’s motion for a new trial. The excerpt of Officer Twohill’s testimony consists of
questions regarding defendant’s identification of individuals while in the van. The testimony
indicates defendant became emotional when making the identifications and seeing Peterson
escorted by officers out of a residence. Accordingly, these transcript excerpts do not provide
the requisite factual support for defendant’s postconviction allegations of ineffective
assistance of counsel which are at issue in this appeal.7 See Delton, 227 Ill. 2d at 256. In
6
We note that the affidavits authored by defendant were signed under penalties of perjury pursuant
to section 1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)).
7
Defendant also attached three portions of the record to support her other claims of ineffective
assistance of trial counsel which are not raised on appeal. As these claims are not raised on appeal, we
decline to address those portions of the record which were attached in support of them.
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addition, defendant attached excerpts of case law that she believes are relevant to her case. At
this stage in postconviction proceedings, a petition need not be supported by case law.
Further, attaching case law to the petition does not aid defendant in establishing independent
corroboration of the facts alleged in her petition. In fact, section 122-2 prohibits citations and
discussions of authorities in the petition. 725 ILCS 5/122-2 (West 2012).
¶ 60 Although defendant failed to support her petition pursuant to section 122-2, her failure
may be excused if she has provided an explanation as to why the affidavits, records, or other
evidence are not attached. 725 ILCS 5/122-2 (West 2012); see Delton, 227 Ill. 2d at 257.
Defendant does not explain why she failed to comply with section 122-2. Under the
circumstances of this case, we cannot excuse defendant’s complete disregard for the
requirements of the Act. See Wideman, 2013 IL App (1st) 102273, ¶ 18.
¶ 61 We conclude that defendant’s petition does not contain the proper affidavits, records, or
other evidence to factually support her allegations, as is required by section 122-2. Nor does
the petition explain why those documents are absent, which is also required by section 122-2.
Accordingly, we find that the trial court did not err in summarily dismissing defendant’s
postconviction petition. See Delton, 227 Ill. 2d at 258. Because we have determined that
defendant did not properly support her petition under section 122-2, we need not consider
whether defendant’s petition sets forth the gist of a constitutional claim. See id. at 255.
¶ 62 CONCLUSION
¶ 63 For the reasons stated above, we affirm the judgment of the circuit court summarily
dismissing defendant’s first-stage postconviction petition.
¶ 64 Affirmed.
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