2013 I LApp (2d) 120746 No. 2-12-0746 Opinion filed Novembe r 20, 2013

______________________________________________________________________________ I N THE APPEL L ATE COURT OF I L L I NOI S SECOND DI STRI CT

______________________________________________________________________________ THE PEOPL E OF THE STATE ) Appea l from the Circuit Court OF I L L I NOI S, ) of Ka ne County

. ) Plaintiff-Appellee , ) ) v. ) No. 06-CF- 66 ) CHRI STOPHER R. HOUSE, ) Honora ble ) Timothy

Q. Sheldon, Def endant- Appellant. ) J udg e, Presiding

.

______________________________________________________________________________ J USTI CE McL AREN deliver ed the judg ment of the c ourt, with opinion. Presiding Justice Bur

ke conc urre d in the judgme nt and opinion. J ustice Schostok dissented, with opinion. OP INION ¶ 1 Def

endant, Christopher House, appea ls the trial court’s summary d i s m i ssal of his petition fi led under the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2010))

. Apply ing People v. Carr , 407 I ll. App. 3d 513, 515-16 (2011), the trial court dismiss ed the petition beca use it was not verifie d by a notarized aff idavit. The court made no deter minations on the merits. We reve rse a

nd rema nd to the trial court f

or sec ond-stag e proc eeding s. ¶ 2 I . BA CKGROUND2013 I LApp (2d) 120746

¶ 3 I n September 2006, defe ndant was convicted of first-deg ree murder. O n October 7, 2011, he filed a pro se postconviction petition alleg ing various cl ai m s, including claims that his trial counsel was ineffe ctive for failing to f ile a motion to qua sh his a rre st a nd suppress evidenc e based

on a lack o f p robable cause , failing to move to dismiss the indictment beca use he was initially char g ed by complaint and the indictment w as not obta ined within 30 day s of his a rre st, and failing
to challeng e whether the State exercised due diligenc e in obtaining DNA testing. I n support of those arguments, defe ndant att ac h ed p olice repor ts, rec ords showing the dates of the complaint and the indictment, and lab repor

ts noting dates rele vant to the due diligenc e claim. Def endant also alleg ed that his counsel wrong ly told him not to testify , failed to proper ly investigate, and failed in a number of other respe cts. He further made various alleg ations conce rning his appellate counsel. Def endant stated that he was unable to obtain an aff idavit from his trial counsel. He then included unnotarized
statements from witnesses to support his claims. T h ose statements included cer tifications under section 1-109 of the Code of Civil Pr o ce d u re (Code) (735 I L CS 5/1-109 (West 2010)). I n his petition, de fenda

nt sta ted that the prison ref used to notarize those materia ls, but he did not explain why the witnesses could not obtain their own notarizations. Def endant also included an unnotarized verific ation, with a section 1-109 cer tification. He stated that the prison para leg al ref used to notarize his documents despite the fa ct that he r epeatedly asked the person to do so. ¶ 4 On Dec ember 14, 2011, the trial court summarily dismiss ed the petition be cause it was not verifie d by a notarized aff idavit. Def

endant moved to rec onsider, arguing that it was a posted prison policy that prison staff would not notarize affi d avit s, postconviction petitions, or documents

re gar ding postconviction petitions. He alleg ed that he soug ht notarization and was ref used. The motion was denied, a

nd defe ndant appe als.

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¶ 5 I I . ANAL YSI S ¶ 6 Def

endant contends that the trial court err ed when it summarily dismiss ed his petition based on the lack of

a notar ized verification affidavit. The State contends, citing t o Carr , that a petition fi led under the Act must be verifie d by aff idavit (725 I L CS 5/122-1(b) (West 2010)) an d t h at t h e failure to do so justi fies a summar y dismiss al. ¶ 7 Since Carr , this court has been split on whether the failure to provide a notarized verif ication aff idavit is a sufficie nt basis for a summary dismiss al. Compare People v. Turner , 2012 I L App (2d) 100819, with People v. McCoy , 2011 I L App (2d) 100424. Our supreme court has g rante d leave to appea l on the i ssue, but has not y et ruled on it. People v. Homme rson , 2013 I L App (2d) 110805, appeal allowed , No. 115638 (I ll. May 29, 2013). ¶ 8 A defe ndant may initiate proce eding s under the Act by alleg ing that, in the proce eding s that resulted in his or her conviction, there was a subs t an t i al d en i al of his or her rig hts under the Constit ution of t he United States or of the S tate of I llinois or b o t h

. P eo ple v. Cage , 2013 I L App (2d) 111264, ¶ 8. Under section 122-1(b) of the Act, “ ‘[t] he proce eding shall be commenc ed by filing with the cler

k of the court in which the conviction took place a petition (tog ether with a copy there of) verified by affidavit .’ ” (Emphasis in orig inal.) Id

. (quoting 725 I L C S 5/122-1(b) (West 2010)). ¶ 9 “I n non ca p i t al ca s es , t h e Ac t es t ab l i s h es a three -stag e proce ss for adjudicating a postconviction petition [citation] .” Turner , 2012 I L App (2d) 100819, ¶ 18. “At the first stag e, ‘the trial court, without input from the State, examines the petition only to det er m i n e i f [ it alleg es] a

co n s t i t u t ional depriva tion unrebutted by the rec ord, rende ring the petition neither frivolous nor patently without merit.’ (Emphasis omitted.)” Id

. (quoting People v. Phyfiher , 361 I ll. App. 3d 881,

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883 (2005))

. Under section 122-2.1(a)( 2) of the Act, if the t rial court determ i n es that the petit ion is frivolous o r p at en t l y without merit, it shall dismiss it in a written order

. Id

. (citing 725 I L CS 5/122-2.1(a) (2) (West 2010)). We revie w de novo the first-stag e dismiss al of a p o s t conviction petition. People v . Swamynathan , 236 I ll. 2d 103, 113 (2010). ¶ 10 Her e, defe ndant’s verific ation was signe d but not notarized. Instead, defe ndant cited section 1-109 of the Code and stated that the contents of the petition wer e true to the best of his knowledg e. Section 1-109 provides a s follows: “The p erson or persons having knowledg e of the matters stated in a pleading , aff idavit or other document cer

tified in acc ordanc e with this Section shall subscribe to a cer tification in substantially the following form: Under penalties as provided by law pursuant to Section 1- 109 of the Code of Civil Procedur e, the undersig ned cer tifies that the statements set forth in this instrument are true and corr ect, except as to matters there in stated to be on information and belief and as to such matters the undersig ned cer tifies as afor esaid that he verily believes the same to be true.” 735 I L CS 5/ 1-109 (West 2010). ¶ 11 I n Carr , the defe ndant filed a pro se postconviction petition with an unnotarized verif ication
at t est ing to the truth of the petition. The trial court dismiss ed the petition at the first stag e, an d a panel of this court aff

irmed. Citi ng to the g ener al rule that “[a] t ri al court proper ly dismiss es a postconviction petition wher e the petition does not comply with the require ments of t he Act,” t he panel held that noncompliance with section 122-1(b) rende red the petition invalid and was a basis for denying relief under the Act. Carr , 407 I ll. App. 3d at 515. L ater , in People v. Nitz , 2011 I L App (2d) 100031, ¶ 16, a panel of this court held that a postconviction petition cannot be verifie d under section 1-109 of the Code. Then, in McCoy , a panel of this c ourt held that a petition a ccompa nied

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by a notariz ed verification was nece ssary to commence proce eding s under the Act. McCoy , 2 011 I L App (2d) 100424, ¶ 10. Rece ntly , a split panel of this court rea ffirme d Carr and McCoy , stating that to hold otherwise would rende r the section 122-1(b) aff idavit require ment surplusag e and essentially allow a defe ndant to alleg e any thing that would allow the petition to p ro ce ed to the second stag e. Homme rson , 2013 I LApp (2d) 110805, ¶ 13. ¶ 12 Howeve r, the First and Four th D istricts ha

ve disag ree d, deter

mining that the mere fac t that

a verific ation is not notarized does not justify dismiss al at the first stag e. People v. Terry , 2012 I L App (4th) 100205; People v. Hende rson , 2011 I L App (1st) 090923. Fur ther, in Turner , a panel of this court addressed the dismiss al of a petiti on at t he sec ond stag e. The panel determined that the State proce durally defa

ulted the issue of an unnotarized verific ation by failing to raise it in a motion
to dismiss at the second stag e. T u r n er , 2012 I L App (2d) 100819, ¶ 39. Rely ing on People v. Boclair , 202 I ll. 2d 89, 98 (2002), the panel found that the matter was a nonjurisdictional proce dural defe ct that should have been reme died by the defe ndant’s counsel at the second stag e. Turner , 2012 I L App (2d ) 1 0 0 8 1 9 , ¶ 42. The panel also ag ree d with Hende rson and Terry that an invalid verific ation was not a ba sis for a f irst-stag e dismissal, stating: “I ndeed, the State’s ability to forf eit the defe ct makes an invalid aff idavit akin to a petition’s untimeliness, which likewise is not a basis for a first-stag e dismissal. [C itation.] J ust as a petition can have merit despit e i t s untimeliness [citation] , so can a petition that is mere ly unverifie d [citation]

. Thus, to the extent that th ey hold to the contra ry , we disag ree with Carr and McCoy .” Id . ¶ 46. See also Cage , 2013 I L App (2d) 111264, ¶¶ 13-14; People v. Gardner , 2013 I L App (2d) 110598, ¶ 14; Homme rson , 2013 I LApp (2d) 110805, ¶ 24 (B urke, P.J., di ssenting)

.

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¶ 13 Our supreme court rec ently provided support for this deter mination in People v. Cruz , 2013 I L 113399. There , a postconviction petition initially was summarily dismiss ed as untimely , but following an appea l, the supreme court re m an d ed for further proce eding s in light of Boclair

. On

rema nd, the petition proce eded to the second stag e. The defe ndant, who had waived counsel, filed

a supplemental petition addre ssing his lack of culpable neg lige nce in filing an untimely petition, but he did not attach a not ar i z ed v er i fi cation aff idavit to the petition. Id

. ¶¶ 9-12, 19. The State responde d, arguing ag ainst the merits of the defe ndant’s claim of lack of culpable neg lige nce. The State did not argue that the petition was d ef i ci en t fo r failing to include a notarized verific ation. Howeve r, on ap p eal it did raise this claim, and the appellate court ag ree d, aff irming the dismiss al of the pe tition on t he new g round ra ised by

the State. Id . ¶ 16. ¶ 14 The supreme court held t hat t h e State forf eited it s arg

ument reg arding the failure t o attach

a notariz ed verific ation aff idavit by not raising that issue in the trial court. Id

. ¶ 20. The court favor ably cited our application of Boclair in Turner

. Id. ¶¶ 20-21 (citing Turner , 2012 I L App (2d) 100819, ¶ 41). The court then simil arly h el d that the State’s failure to claim err or from the unnotarized verific ation in the trial court deprive d the defe ndant of the opportunity to corr ect the alleg ed def

iciency and depr ived the trial c ourt of the oppor tunity to consider the issue. Id. ¶ 22. ¶ 15 The supreme court’s compar ison to t h e t i m eliness argument advanc ed in Boclair , and its holding that the S tate for feited its rig ht to make the ar g ument on appea l, instructs that a petiti on’s lack of proper verific ation is not a proper g round for a dismiss al at the first stag e of postconviction proce eding s. See Cage , 2013 I L App (2d) 111264, ¶ 14 (holding that defe ndant’s failure to attach

a notarized verific ation aff idavit t o h i s p o s tconviction petition was not an appropr iate rea son to

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dismiss the petition at first stag e of postconv i ct i o n p roce eding s and reje cting Carr , McCoy , and Homme rson ). ¶ 16 Her e, the tria l court summ arily dismiss ed on the basis that the petit ion was not verif ied by

an aff idavit. Consist ent with our analy sis a nd our supreme court’s instruction in Cruz , we rema nd for second- stag e proce eding s under the Act. See People v. Inman , 407 I ll. App. 3d 1156, 1162-63 (2011); People v . Vasquez , 307 I ll. App. 3d 670, 673 (1999). ¶ 17 The State, howeve r, asks us to aff irm on the alternate basis that defe ndant failed to pr ovide notarized aff

idavits from witnesses in support of hi s petition, under section 122-2 of the Act (725 I L CS 5/122-2 (West 2010)). Howeve r, as to at least some of h i s cl ai m s , defe ndant made leg al arguments based on materia l that is appar ent on the rec ord an d for which he also submitt ed other documents. ¶ 18 Section 122-2 require s a petition to be acc ompanied by aff idavits, rec ords, or other evidenc e supporting its alleg ations, or an explanation for their absenc e. Id

. “The require ment of ‘af fidavits,

rec ords, or other evidenc e’ is stated with the disjunctive word ‘or.’ There fore , any one of the three forms of proof will suff

ice.” People v. Rivera , 342 I ll. App. 3d 547, 550 (2003). Fur ther, beca use

a petition may not be summarily dismiss ed only in part, not “eve ry alleg ation in a petition must have evidentiar y support.” Id

. at 551; see P eople v. Rivera , 198 I ll. 2d 364, 371-72 (2001). Her e, defe ndant submitted recor ds to support at least some of his cla ims. ¶ 19 The State relies on People v. Colli ns , 202 I ll. 2d 59, 66 (2002), which held that the trial court proper ly dismiss ed a petition at the first stag e for violating section 122-2. But in Colli ns , the only attachme nt to the petition was a verific ation. Thus, there was no evidenc e at all under section 122-2.

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Id

. at 62. That is distinguishable from here , wher e defe ndant did provide support. Acc ording ly , we do not affir

m on this ground. ¶ 20 I I I . CONCL USI ON ¶ 21 The trial co u rt i m p ro p er l y d ismiss ed the petition based on the lack of verific ation by notarized aff

idavit. Acc ording ly , the judgme nt of the circ uit c ourt of Kane County is reve rsed and the ca use is rema

nded to the trial c ourt for se cond-stag e proc eeding s. ¶ 22 Reverse d and re manded. ¶ 23 J USTI CE SC HOSTOK, dissenting

. ¶ 24 For the rea sons set forth in this court’s decisions in Carr , McCoy , and Homme rson , the trial
court proper ly dismiss ed the defe ndant’s postconviction petition beca use t h e p eti tion was not verifie d by aff

idavit. The majority ’s relianc e on People v. Cruz , 2013 I L 113399, to depar t from those case s is unpersuasive a s Cruz does not specif

ically addre ss the underlying analy sis of any of those ca ses. Acc ording ly , Iwould aff irm the trial cour

t’s judgme nt.

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