THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. ALLEN, Appellant.
113135
Supreme Court of Illinois
May 21, 2015
2015 IL 113135
Illinois Official Reports
Judgment: Reversed and remanded.
Counsel on Appeal: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, 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.
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.
¶ 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:
¶ 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.
¶ 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
¶ 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.
¶ 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.
¶ 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.”
¶ 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.
¶ 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
¶ 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.
¶ 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
¶ 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,
¶ 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
¶ 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.
¶ 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
¶ 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.
¶ 36 Relying on the canon against surplusage, the State argues that considering the Langford statement as “other evidence” renders the word “affidavit” surplus. See
¶ 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
¶ 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
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
¶ 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.”
¶ 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
¶ 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 Rothinfra ¶ 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.
¶ 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
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.”
¶ 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,
¶ 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.”
¶ 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 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.” Supra ¶ 34.
If this is consolation, it is hollow consolation. Again, we have already established that, under this court‘s settled case law, an “unsworn factual statement” of the sort filed by defendant in this case is an inadmissible and unreliable “legal nullity” that has “no legal effect.” Indeed, from an evidentiary standpoint, filing an “unsworn factual statement” where an “affidavit” is called for is exactly the same as filing nothing at all. Secura, 232 Ill. 2d at 216. So if an “unsworn factual statement” can pass the majority‘s test, which is precisely what the majority holds in this case (supra ¶ 34), then I think it is safe to say that anything can pass the majority‘s test — provided, of course, that it bears the caption “affidavit.” Make no mistake, the caption does indeed control, and stage two is now available simply for the styling.
¶ 63 Before moving on from this issue, I would note that, near the end of its “other evidence” analysis, the majority confesses that its conclusion concerning the evidentiary value of the unsworn Langford statement is motivated at least in part by its inability to understand a policy that would allow for the summary dismissal of petitions containing defective evidence but disallow the summary dismissal of petitions containing an explanation as to why such evidence is defective. Thus, the majority explains:
“under Collins, defendant‘s petition would have advanced to the second stage, as long as he explained that Langford had authored the statement supporting the allegations in the petition but that the statement could not be notarized due to the lack of a notary. It is difficult to understand how an explanation of the difficulty of finding a notary within
the prison — a difficulty the court can 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
¶ 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
¶ 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
“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
¶ 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
¶ 72 Hommerson, by contrast, arose under section 122-1(b) of the Act, which outlines how a postconviction proceeding “shall be commenced“:
“The proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.
Petitioner shall also serve another copy upon the State‘s Attorney by any of the methods provided in
Rule 7 of the Supreme Court. The clerk shall docket the petition for consideration by the court pursuant to Section 122-2.1 upon his or her receipt thereof and bring the same promptly to the attention of the court.”725 ILCS 5/122-1(b) (West 2012).
In Hommerson, the defendant filed a pro se postconviction petition alleging ineffective assistance of counsel. Although the petition was supported by several section 122-2 affidavits, defendant did not verify the petition prior to filing it, as required by section 122-1(b). The trial court summarily dismissed the pro se petition, and this time the court reversed. In doing so, the court explained that “at the first stage of proceedings, the court considers the petition‘s substantive virtue rather than its procedural compliance.” Hommerson, 2014 IL 115638, ¶ 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 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.”
¶ 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, 238 Ill. 2d 352, 367 (2010);
¶ 77 For all of these reasons, I dissent.
¶ 78 JUSTICE KARMEIER joins in this dissent.