People v. McCoy
2011 IL App (2d) 100424
Ill. App. Ct.2011Background
- Defendant Daniel K. McCoy was indicted on armed robbery and two burglary counts; he pleaded guilty to armed robbery and received a 10-year term after the burglary counts were dismissed.
- About 1.5 years after his guilty plea, McCoy filed a postconviction petition under 725 ILCS 5/122-1 et seq.
- McCoy attached a verification page that he signed but did not notarize, followed by a notarized affidavit summarizing the petition’s allegations.
- The petition was summarily dismissed as lacking arguable basis in law or fact, leading McCoy to appeal.
- McCoy argued the petition stated a gist of an ineffective-assistance claim and challenged the validity of the verification.
- The court affirmed the dismissal, holding the verification was not proper and the petition was not properly commenced.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition was properly verified under 122-1(b) | McCoy argues the signed statement suffices under 1-109 | State asserts non-notarized verification fails under 122-1(b) | Not properly verified; dismissal affirmed |
| Whether 1-109 certification could validate the verification | McCoy relies on 1-109; argues substantial compliance | Court rejected 1-109 certification as controlling for Act petitions | Section 1-109 does not validate verification; rejection affirmed |
| Whether defective verification renders petition uncommenced | McCoy contends proceedings were not properly commenced | State maintains petition commenced regardless of defect | Proceeding not properly commenced; with prejudice dismissal affirmed |
| Whether the notarized affidavit could serve as verification | Affidavit could substitute for verification | Affidavit too vague to verify essential details | Not adequate verification; petition remained unverified |
Key Cases Cited
- People v. Carr, 407 Ill. App. 3d 513 (2011) (affidavits must be notarized to be valid under 122-1(b))
- People v. Nitz, 2011 IL App (2d) 100031 (2011) (verification cannot be properly verified under 1-109 for Act petitions)
- People v. Barber, 381 Ill. App. 3d 558 (2008) (first-stage dismissal affirmed for improper verification)
- People v. Rajagopal, 381 Ill. App. 3d 326 (2008) (court may affirm on any record basis; lack of verification supports dismissal)