People v. Turner
2012 IL App (2d) 100819
Ill. App. Ct.2012Background
- Defendant, Hoke Turner, filed a pro se postconviction petition alleging ineffective assistance of trial counsel on multiple counts of aggravated criminal sexual abuse and criminal sexual assault.
- The petition proceeded to the second stage, where the State moved to dismiss on several grounds, and the court dismissed with prejudice.
- Turner attached affidavits that were signed but not notarized; the State then challenged the affidavit requirement under 725 ILCS 5/122-1(b).
- Turner also alleged trial counsel failed to present evidence that the victim’s mother fabricated the allegations in retaliation for a failed relationship.
- The State did not raise the notarization issue at the second stage in its motion to dismiss, but later argued it on appeal.
- The appellate court held the State forfeited the notarization challenge and that the petition was properly dismissed for lack of a substantial showing of ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State forfeited the notarized-affidavit challenge. | Turner (defendant) maintains State forfeited issue by not raising it below. | Turner contends the affidavit defect is nonjurisdictional and not proper basis to dismiss at second stage. | Not forfeited; for purposes of review, issue deemed forfeited by State’s failure to raise it below. |
| Whether Turner made a substantial showing of ineffective assistance of trial counsel. | Turner argues counsel failed to investigate/present Janet’s fabrication theory. | State argues claims were not substantiated and trial strategy supported any omissions. | No substantial showing; dismissal upheld. |
| Whether the second-stage dismissal was proper given the defective affidavit and alleged ineffectiveness. | Turner asserts potential merits require an evidentiary hearing. | State argues no reversible error given lack of prejudice. | Dismissal proper; no evidentiary hearing required. |
Key Cases Cited
- People v. Carr, 407 Ill. App. 3d 513 (2011) (unnotarized affidavit can support first-stage dismissal; not always center of second-stage disposition)
- People v. Nitz, 2011 IL App (2d) 100031 (2011) (invalid affidavit not cured by 1-109; remedy via second-stage relief; counsel’s duty to fix defects)
- People v. McCoy, 2011 IL App (2d) 100424 (2011) (lack of notarization can support dismissal; not dispositive in all stages)
- People v. Henderson, 2011 IL App (1st) 090923 (2011) (notarization defect not basis for first-stage dismissal; focus on frivolous merit)
- People v. Terry, 2012 IL App (4th) 100205 (2012) ( Fourth District: first-stage not dismissal for lack of notarization; aligns with Henderson)
- People v. Pendleton, 223 Ill. 2d 458 (2006) (Rule governing appointment of counsel and corrective action at second stage)
- People v. Perkins, 229 Ill. 2d 34 (2007) (Rule 651(c) duties and remedies; parameters of second-stage proceedings)
- People v. Boclair, 202 Ill. 2d 89 (2002) (untimeliness as forfeitable defect; not jurisdictional)