People v. Allen , 2015 IL 113135 ( 2015 )

Illinois Official Reports
Supreme Court
People v. Allen, 2015 IL 113135Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES
Court: E. ALLEN, Appellant.
Docket No. 113135
Filed May 21, 2015
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon.
Nicholas Ford, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Appeal Deputy Defender, and Brian A. McNeil, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of Chicago,
for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita M.
Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Michele
Grimaldi Stein and Brian K. Hodes, Assistant State’s Attorneys, of
counsel), for the People.
Justices 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:
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that Moore had arranged the contract killing of Ciralski; that defendant had followed Ciralski
the night of his murder; and that two other 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 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.
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¶ 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 Assistant State’s Attorney 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 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
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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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 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).
¶ 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.
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¶ 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)).
¶ 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
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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 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 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
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¶ 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 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
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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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.
¶ 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
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allegations are capable of independent corroboration. Delton, 227 Ill. 2d 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 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,
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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 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
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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.
¶ 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 $1,100 to $1,500, and Ciralski’s family
indicated that more than $1,000 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
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
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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.
¶ 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
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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.
¶ 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” nor
“destroys” that 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.
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¶ 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 declarant understands that he or she is subject to the
penalties of perjury, in fact the declarant 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 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
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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 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 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,
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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, 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
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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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 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
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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.” 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
affidavit’s lack of notarization as a “remediable procedural defect.” Supra ¶ 36. Of course, the
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
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¶¶ 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.
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
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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 “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 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.
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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 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.
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¶ 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 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 is 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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