Docket No. 90679–Agenda 12–November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

								LONDON COLLINS, Appellee.

	JUSTICE THOMAS delivered the opinion of the court:

	The issue presented is whether the circuit court properly

dismissed defendant’s pro se post-conviction petition as frivolous and patently without merit. See 725 ILCS 5/122–2.1(a)(2) (West

2000). We hold that dismissal was proper.

BACKGROUND

	On August 20, 1998, and as part of a negotiated plea

agreement, defendant pleaded guilty to one count of possessing a

controlled substance with the intent to deliver (720 ILCS

570/401(a)(2)(B) (West 2000)). As required by Supreme Court

Rule 402(a) (177 Ill. 2d R. 402(a)), the circuit court fully

admonished defendant as to the nature of the charge, the statutory

sentencing range, and the rights he would be waiving by pleading

guilty. After determining that defendant’s guilty plea was both

voluntary and supported by a sufficient factual basis, the circuit

court accepted the plea and imposed the statutory minimum

sentence of nine years in prison (see 720 ILCS 570/401(a)(2)(B)

(West 2000)). The circuit court then advised defendant that,

although he possessed the right to appeal, that right is contingent

upon the timely filing of a motion to withdraw his guilty plea and

vacate the judgment. Defendant filed no such motion, and no

appeal was taken.

	On March 16, 1999, defendant filed a pro se petition for post- conviction relief. In the petition, defendant alleged several claims

of error, including the following:

			“I wanted to appeal the case, which my counsel told me

that he will. But never did. that brings me to submitt this

motion. thinking im waiting to go back on appeal. I also

ask him to put me in for a reduction sentence. which he

mislead me. He never submitted that either.”

The only attachment to defendant’s petition was the following

sworn verification, which states in its entirety:

			“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.”

The circuit court dismissed defendant’s petition as frivolous and

patently without merit. See 725 ILCS 5/122–2.1(a)(2) (West

2000).

	On October 10, 2000, the appellate court issued its initial

order reversing the circuit court’s dismissal of defendant’s petition.

In that order, the appellate court concluded that, although the

allegations set forth above stated the gist of a meritorious

constitutional claim, the absence of any supporting documentation

rendered defendant’s petition insufficient to justify second-stage

review under the Post-Conviction Hearing Act (Act) (725 ILCS

5/122–1 et seq. (West 2000)). The court therefore remanded the cause to the circuit court so that defendant could file affidavits

that:

		“minimally address the specifics of the defendant’s

attorney’s statement that he would appeal the case,

describe in detail all of defendant’s subsequent contacts

with his attorney and explain fully the twenty-one month

delay between the defendant’s conviction and the filing of

his petition.”1 

According to the appellate court’s order, if defendant successfully

filed the requisite affidavits within the allotted time frame, the

circuit court would be required to docket defendant’s petition for

further proceedings. Conversely, if defendant failed to file the

necessary affidavits, “the trial court [would be] free to grant a

motion to dismiss by the State.”

	On October 25, 2000, defendant filed a petition for rehearing,

arguing that the appellate court lacked the authority to remand the cause for the submission of additional affidavits. According to

defendant, once it concluded that defendant’s petition stated the

gist of a meritorious constitutional claim, the appellate court was

required to remand the cause for second-stage post-conviction

proceedings, including the appointment of counsel. On October 26,

2000, the State likewise filed a petition for rehearing, arguing that

the appellate court’s decision ran afoul of the Act in numerous

ways. In particular, the State argued that (1) the Act does not

contemplate a petition that states the gist of a meritorious claim but

nevertheless is insufficient to justify second-stage review, and (2)

the circuit court would not be “free to grant a motion to dismiss by the State” based on defendant’s failure to submit the requisite

affidavits, as the Act does not permit the filing of such motions

until the second stage of post-conviction review. On November 17,

2000, the appellate court denied both petitions for rehearing

without comment.

	On November 21, 2000, the appellate court notified the parties

of its intent to file a subsequent opinion in this case. The next day,

the appellate court cancelled the filing of any subsequent opinions

“until further notice.” On December 5, 2000, the State filed in the

appellate court a notice of intent to seek leave to appeal. On

December 19, 2000, the State filed its petition for leave to appeal.

Two days later, the appellate court withdrew its order of October

10, 2000, and informed the parties of its intent to file a new

opinion in the case at a later but unspecified date. On December

28, 2000, defendant filed a motion in the appellate court requesting

reinstatement of the appellate court’s original order, arguing that

the appellate court lost jurisdiction over the case when the State

filed its petition for leave to appeal. On December 29, 2000, and

without disposing of defendant’s motion to reinstate, the appellate

court issued a new opinion.

	In its new opinion, the appellate court again reversed the

circuit court’s dismissal of defendant’s petition. 319 Ill. App. 3d

193. As in its initial order, the appellate court concluded that the

contested portion of defendant’s petition stated the gist of a

meritorious constitutional claim. Contrary to its initial order,

however, the court this time concluded that the absence of

supporting affidavits did not render defendant’s petition legally insufficient. Specifically, the court held that the absence of such

documentation was both “unsurprising” and “justified,” given that

defendant was “incarcerated, indigent and apparently barely

literate.” Moreover, because the only other likely witness to the

alleged conversation was the attorney that defendant now claims

was ineffective, it would be “both oppressive and unfair” to require

independent evidence of that conversation beyond defendant’s

sworn verification. Consequently, the appellate court reversed the

circuit court’s summary dismissal of defendant’s petition and

remanded the cause for second-stage post-conviction proceedings.

	The State subsequently filed a motion to substitute a new

petition for leave to appeal for the one originally filed in this court,

and this court granted both the motion and the petition.177 Ill. 2d

R. 315(a).

ANALYSIS

	Before reaching the merits of this appeal, we must address the 

validity of the appellate court’s second decision in this case. In

People v. Turnage, 162 Ill. 2d 299, 305 (1994), this court unanimously held that, once a petition for leave to appeal is filed in

this court, the appellate court loses jurisdiction over the cause and

may not file any additional opinions. Here, the appellate court

issued its second opinion sua sponte on December 29, 2000, 10 days after the State petitioned this court for leave to appeal. The

appellate court’s December 29, 2000, decision therefore is void for

a lack of jurisdiction, and we order the appellate court to withdraw

that opinion and reinstate its decision of October 10, 2000. See

Turnage, 162 Ill. 2d at 305.

	We now turn to the merits. The Post-Conviction Hearing Act

(Act) establishes a procedure for determining whether a criminal

defendant was convicted in substantial violation of his or her

constitutional rights. 725 ILCS 5/122–1(a) (West 2000).

Proceedings under the Act are commenced by the filing of a

petition in the circuit court in which the conviction occurred. 725

ILCS 5/122–1(b) (West 2000). The petition must identify the

proceeding in which the conviction occurred, state the date of the

contested final judgment, and clearly identify the alleged constitutional violations. 725 ILCS 5/122–2 (West 2000). In

addition, the petition must be both verified by affidavit (725 ILCS

5/122–1(b) (West 2000)) and supported by “affidavits, records, or

other evidence” (725 ILCS 5/122–2 (West 2000)). If such

“affidavits, records, or other evidence” are unavailable, the petition

must explain why. 725 ILCS 5/122–2 (West 2000).

	Upon the petition’s filing, the circuit court has 90 days in

which to review the petition and determine whether, on its face,

“the petition is frivolous or is patently without merit.” 725 ILCS

5/122–2.1(a)(2) (West 2000). If the circuit court determines that

the petition is either frivolous or patently without merit, it “shall

dismiss the petition in a written order.” 725 ILCS 5/122–2.1(a)(2)

(West 2000). A post-conviction petition is considered frivolous or

patently without merit if the petition’s allegations, taken as true,

fail to present the gist of a meritorious constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Moreover, the failure to either attach the necessary “affidavits, records, or other evidence”

or explain their absence is “fatal” to a post-conviction petition

(People v. Turner, 187 Ill. 2d 406, 414 (1999)) and by itself justifies the petition’s summary dismissal (People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952)). We review the dismissal of a post-conviction petition de novo. Coleman, 183 Ill. 2d at 389.

	In this case, the circuit court properly dismissed defendant’s pro se post-conviction petition. Contrary 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. This fact alone justifies the

summary dismissal of defendant’s petition. Coleman, 183 Ill. 2d at 380; Jennings, 411 Ill. at 26.

	In reaching this result, we necessarily reject defendant’s

contention that his sworn verification can serve as a substitute for

the “affidavits, records, or other evidence” mandated by section

122–2. First, the Act itself clearly distinguishes between the sworn

verification that defendant filed and the supporting “affidavits,

records, or other evidence” that defendant neglected to file. The

necessity of a sworn verification is addressed in section 122–1 of

the Act, which provides that a post-conviction proceeding is initiated by the filing of a petition “verified by affidavit.” 725 ILCS

5/122–1(b) (West 2000). The necessity of attaching “affidavits,

records, or other evidence” to the petition is addressed in section

122–2, which provides 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.” (Emphasis added.) 725 ILCS 5/122–2 (West 2000). Thus, under

the plain language of the Act, the sworn verification described in

section 122–1 serves a purpose wholly distinct from the “affidavits,

records, or other evidence” described in section 122–2. The

former, like all pleading verifications, confirms that the allegations are brought truthfully and in good faith. See, e.g., In re Marriage of Pitulla, 202 Ill. App. 3d 103, 120 (1990). The latter, by contrast, shows that the verified allegations are capable of

objective or independent corroboration. To equate the two is not

only to confuse the purposes of subjective verification and

independent corroboration but also to render the “affidavits,

records, or other evidence” requirement of section 122–2

meaningless surplusage. We will not adopt such a reading. See

People v. Maggette, 195 Ill. 2d 336, 350 (2001) (statute should be construed so that no term is rendered superfluous or meaningless). 

	Moreover, the two decisions upon which defendant principally

relies are clearly distinguishable from this case. Defendant insists

that both People v. Washington, 38 Ill. 2d 446 (1967), and People v. Williams, 47 Ill. 2d 1 (1970), stand for the proposition that a sworn verification is all that is needed to substantiate a post-

conviction claim arising from discussions between a criminal

defendant and his attorney. Defendant misreads these decisions. To

be sure, in both Washington and Williams, the post-conviction petitions contained claims arising from conversations between the

defendant and his attorney and were supported only by the

defendant’s sworn verification. But in Washington, the petition also contained an explanation as to why the necessary “affidavits, records, or other evidence” were unobtainable. Thus, the petition

in Washington explicitly complied with section 122–2’s mandate that a post-conviction 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 2000). Similarly, in Williams, the defendant alleged that he relied upon certain misrepresentations that were

“whispered to him” by his attorney following the entry of his guilty

plea. Williams, 47 Ill. 2d at 2. Thus, although the petition in Williams did not explicitly explain why “affidavits, records, or other evidence” were not attached, it did contain facts from which

this court easily inferred that “the only affidavit that petitioner

could possibly have furnished, other than his own sworn statement,

would have been that of his attorney.” Williams, 47 Ill. 2d at 4. In stark contrast, the post-conviction petition that defendant filed in

this case complies with neither the letter nor the substance of

section 122–2, as it lacks not only an explanation for the absence

of supporting evidence but also even a single allegation from which

such an explanation could reasonably be inferred.

	We recognize, of course, that requiring the attachment of

“affidavits, records, or other evidence” will, in some cases, place

an unreasonable burden upon post-conviction petitioners. Indeed, Washington and Williams are two such cases. This does not mean, however, that the petitioners in such cases are relieved of bearing

any burden whatsoever. On the contrary, section 122–2 makes

clear that the petitioner who is unable to obtain the necessary

“affidavits, records, or other evidence” must at least explain why

such evidence is unobtainable. In this case, defendant is asking to

be excused not only from section 122–2’s evidentiary requirements but also from section 122–2’s pleading requirements. Nothing in the Act authorizes such a comprehensive departure.

	Finally, we note that our recent decision in People v. Edwards, 197 Ill. 2d 239 (2001), has no application to this case. Although

factually quite similar to the present case, Edwards addressed a wholly distinct question. The issue in Edwards was whether the factual allegations set forth in the defendant’s post-conviction

petition stated the gist of a meritorious claim of ineffective

assistance of counsel. In analyzing that question, this court had

neither reason nor occasion to assess the sufficiency of the

petition’s supporting documentation. In fact, the opinion in

Edwards does not even describe what, if any, supporting evidence was attached to the petition. We therefore reject defendant’s contention that Edwards dictates an affirmance of the appellate court’s decision in this case.

CONCLUSION

	Because defendant’s pro se post-conviction petition included neither “affidavits, records, or other evidence” supporting his

claims nor an explanation as to why such supporting evidence was

lacking, the circuit court properly dismissed that petition as

frivolous and patently without merit. We therefore reverse the

judgment of the appellate court and affirm the judgment of the

circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

	JUSTICE McMORROW, dissenting:

	The majority holds that defendant’s post-conviction petition

must be summarily dismissed because, even though defendant

provided a sworn affidavit verifying the petition, he did not attach

to the petition a second, evidentiary affidavit in support of his

constitutional claim. In reaching this holding, the majority attempts

to distinguish this court’s decision in People v. Williams, 47 Ill. 2d 1 (1970), on its facts. However, the majority’s recitation of the

facts in Williams is inaccurate. The facts in that case, properly understood, cannot be distinguished from those in the present

appeal. Williams stands as controlling authority on the issue of the adequacy of the attachments to defendant’s post-conviction

petition. Accordingly, I dissent.

	In Williams, the defendant alleged in a post-conviction petition that he was induced to plead guilty by misrepresentations made by

his attorney. The petition was verified by the defendant’s sworn

statement but no additional affidavits were attached. The State, like

the majority today, argued that the petition should be dismissed

“because, contrary to the requirements of the Post-Conviction

Hearing Act, satisfactory affidavits were not attached to the

petition” and because no reasons were “given for the absence of such affidavits.” Williams, 47 Ill. 2d at 3. This court squarely rejected that argument, noting that the only additional affidavit the

defendant could possibly have furnished to support his claim, other

than his own sworn statement, would have been that of the very

attorney who allegedly made the misrepresentations. Williams, 47 Ill. 2d at 4.

	Attempting to distinguish the facts in the present case from

those in Williams, the majority states,

		“[I]n Williams, the defendant alleged that he relied upon certain misrepresentations that were ‘whispered to him’ by

his attorney following the entry of his guilty plea.

Williams, 47 Ill. 2d at 2. Thus, although the petition in Williams did not explicitly explain why ‘affidavits, records, or other evidence’ were not attached, it did

contain facts from which this court easily inferred that ‘the

only affidavit that petitioner could possibly have furnished,

other than his own sworn statement, would have been that

of his attorney.’ Williams, 47 Ill. 2d at 4.” Slip op. at 7.

The majority’s attempt to distinguish Williams rests exclusively on the assumption that the defendant in that case in some way “relied

upon” his attorney’s whispered comments. According to the majority, it was the whispered nature of the misrepresentations in Williams which made it impossible for the defendant to provide any other affidavit in support of his post-conviction claim. But this

reading of Williams is incorrect. The defendant in Williams did not allege that he “relied upon” his attorney’s whispered comments.

This court’s holding in Williams was not based on that distinction.

	The actual allegations made by the defendant in Williams were:

			“In his [post-conviction] petition defendant [Williams]

alleged, among other things, that his constitutional rights

were violated in that he was induced to plead guilty by

representation of his attorney that the State would agree

to a sentence of six months to one year in the county jail

instead of seeking a sentence of 40 to 80 years in the

penitentiary if he went to trial, and further, that even after

the court imposed a sentence of three to seven years, his counsel whispered to him that the court would call him

back and give him one year in the county jail. The petition,

though sworn to by defendant, was unsupported by any

other affidavits.” Williams, 47 Ill. 2d at 2.

	The foregoing quotation is this court’s only description of the allegations set forth in the defendant’s post-conviction petition in Williams. Nowhere in that quotation does this court state that “the defendant alleged that he relied upon” (slip op. at 7) his attorney’s

whispered comments. Nor, for that matter, does this court make

that statement anywhere else in the Williams opinion. The simple fact is that, contrary to the majority’s assertions in the case at bar,

the defendant in Williams did not allege that he “relied upon” the whispered comments that were made by his attorney after sentence

had been pronounced. The reason this allegation was not made is

readily understood when one considers the nature of the

constitutional claim at issue.

	The defendant in Williams alleged that, prior to entering his plea, his attorney made certain representations regarding the length

of sentence he might receive if he were to plead guilty. Based on these representations, which were inaccurate, the defendant alleged

that he was induced to plead guilty. Accordingly, the constitutional

claim raised by the defendant in Williams was that his decision to plead guilty was involuntary, and thus violated due process,

because it was based upon inaccurate information given to him by

his attorney. The defendant further stated in his post-conviction

petition that his attorney made whispered comments to him after

sentence was pronounced. But the events that occurred after defendant entered his plea and after he was sentenced logically had no bearing on his claim that his guilty plea was involuntary and

therefore played no part in this court’s decision.

	There was only one constitutional claim raised in Williams that bore any relation to attorney comments, whispered or otherwise.2 That claim was the defendant’s allegation that he was induced to

plead guilty by his attorney’s misrepresentations. Of necessity,

therefore, when the majority states that the defendant in Williams “relied upon” his attorney’s whispered comments (although this

reliance is mentioned nowhere in the opinion) the majority must be

saying that the whispered comments had some relevance to the

defendant’s claim that his guilty plea was involuntary. But this

position is untenable. How could the defendant in Williams have “relied upon” the whispered comments in deciding whether to

plead guilty, when those comments came after the defendant had entered his plea and after the court had pronounced sentence? The obvious answer is that the defendant could not and did not. The

majority’s statement that the defendant in Williams “relied upon” his attorney’s whispered comments is false. Consequently, the

majority’s attempt to distinguish Williams fails.

	As noted, this court in Williams rejected the State’s argument that the defendant’s post-conviction petition should be dismissed

because it was not supported by a second, evidentiary affidavit.

This court held:

			“The State’s only contention is that the petition is

insufficient to entitle petitioner to a hearing in that it was

not accompanied by supporting affidavits. But the only

affidavit that petitioner could possibly have furnished,

other than his own sworn statement, would have been that

of his attorney who allegedly made the misrepresentation

to him. The difficulty or impossibility of obtaining such an

affidavit is self-apparent. In People v. Wegner, 40 Ill. 2d 28, where similar allegations of misrepresentations of

counsel as to sentence were made, we held that dismissal

of the petition without a hearing was improper; that

defendant was entitled to an evidentiary hearing even

though the State had filed a counteraffidavit of defendant’s

attorney in which he denied making the statement

attributed to him. It would certainly follow that if a

defendant is entitled to a hearing despite a counteraffidavit

of his attorney denying the allegations of the petition then

a defendant should not be denied a hearing merely because he did not obtain a supporting affidavit from the attorney

who represented him at the time of his plea.

			Under such circumstances, to so strictly construe the

Act as requested by the State would defeat its very

purpose by denying petitioner a hearing on the factual

issue raised by the pleadings. However, as stated in People v. Reeves, 412 Ill. 555, we do not intend hereby to lessen the duty of petitioners under the Act to make a substantial

showing of a violation of constitutional rights, for the

allegations of mere conclusions to that effect under oath

will not suffice. We do find that in this case the sworn

statements of petitioner warrant a fair inference of a

violation of constitutional rights which are not negated by

the State nor by the record, and that an evidentiary hearing

is required to determine the truth or falsity of petitioner’s

allegations.” Williams, 47 Ill. 2d at 4-5.

	Notably, this court’s holding in Williams makes no mention of the defense attorney’s whispered comments. Again, this is not

surprising. Because the whispered comments came after defendant

had entered his plea and been sentenced they had no bearing on the

constitutional issue presented, i.e., whether the defendant’s plea was involuntary because it was induced by misrepresentations

made by his attorney.

	Williams is controlling on the issue of whether, for purposes of surviving summary dismissal, the sworn statement submitted by

defendant in the present case is sufficient to support the claim

presented in his post-conviction petition. Defendant alleges that his

counsel told him he would file an appeal but that counsel failed to

do so. In support of this claim, “the only affidavit that petitioner

could possibly have furnished, other than his own sworn statement,

would have been that of his attorney who allegedly made the

misrepresentation to him. The difficulty or impossibility of

obtaining such an affidavit is self-apparent.” Williams, 47 Ill. 2d at 4. Accordingly, the majority in the case at bar errs when it holds

that defendant’s post-conviction petition must be summarily

dismissed because defendant failed to attach satisfactory affidavits.

	My colleagues in the majority may be concerned that, by

allowing defendant’s sworn affidavit to suffice under the facts of this case, the standard for obtaining post-conviction relief may, in

some way, be lessened. But as Williams makes clear, defendant’s burden is not diminished. To obtain post-conviction relief,

defendant must still establish a substantial violation of a

constitutional right. Moreover, any concern regarding the lessening

of post-conviction standards is, in fact, much less pressing in the

instant case than it was in Williams. The issue presented in Williams was whether the defendant was entitled to an evidentiary hearing. But the issue in the case at bar is simply whether

defendant’s petition survives summary dismissal at the first stage

of post-conviction review. In practical terms, the question

presented in this case is whether defendant, who filed his post-

conviction petition pro se, should be permitted to consult with an attorney regarding his constitutional claim and whether he should

be given the opportunity to have counsel draft his claim into an

appropriate legal form. Under Williams, the lack of a second, evidentiary affidavit is not a bar to defendant being afforded that

opportunity.

	The majority has inaccurately stated the facts of Williams. Those facts, with respect to the affidavit issue, are indistinguishable

from the facts in the present case. Williams has been the law of this state for over 30 years. The majority has offered no reason to

depart from that settled holding. I therefore dissent.

	JUSTICES FREEMAN and KILBRIDE join in this dissent.

Dissent Upon Denial of Rehearing

	JUSTICE McMORROW, dissenting:

	I dissent from the court’s denial of rehearing because the

majority opinion in this case is in conflict with People v. Boclair, Nos. 89388, 89471, 89534 cons. (August 29, 2002), and no

explanation or justification has been offered by the majority for the

discrepancy between the two cases. I also dissent because, as set

forth in detail below, the majority opinion is unsupported by legal

authority and is beset with fundamental analytical flaws.

I

	In Boclair, this court was asked to decide whether a post- conviction petition which has not been filed within the time

limitations set forth in section 122–1 of the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122–1 (West 2000)) and which has failed to allege facts which show that the delay in filing was not due

to the petitioner’s “culpable negligence,” may be summarily

dismissed as “frivolous or *** patently without merit” under

section 122–2.1(a)(2) of the Act (725 ILCS 5/122–2.1(a)(2) (West

2000)). This court concluded that such a petition could not be

summarily dismissed. In so holding, we reasoned that the circuit

court could not consider the timeliness of the post-conviction

petition at the summary dismissal stage of the proceedings because

the time limitations were neither included nor mentioned in the

section of the Act which authorizes summary dismissals. We

explained:

			“Section 122–2.1(a)(2) requires the circuit court to

determine within 90 days of the filing of a post-conviction

petition whether the petition is ‘frivolous or is patently

without merit.’ 725 ILCS 5/122–2.1(a)(2) (West 2000).

Importantly, we note that this section is silent regarding

timeliness. Rather, timeliness is addressed elsewhere, in

section 122–1(c), instructing defendants as to the time

periods for filing petitions. If this court can ascertain

legislative intent from the plain language of the statute

itself, that intent must prevail. Barnett v. Zion Park District, 171 Ill. 2d 378 (1996). We will not depart from the plain language of the statute by reading into it

exceptions, limitations, or conditions that conflict with the

express legislative intent. Barnett, 171 Ill. 2d at 389.

			Under a plain reading of section 122–2.1(a)(2), the

circuit court may dismiss a post-conviction petition at the

initial stage only if the petition is deemed to be ‘frivolous

or patently without merit,’ not if it is untimely filed. If the

legislature intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so provided in

section 122–2.1(a)(2) of the Act. Instead, the legislature

provided in section 122–5 that the State may file a motion to dismiss. [Citation.] By addressing timeliness and

frivolousness in separate provisions of the Act, the

legislature plainly intended to draw a distinction between

these two flaws of post-conviction petitions.” Boclair, slip op. at 6-7.

	After reaching the above conclusions, we went on to

determine that the phrase “frivolous or *** patently without merit”

refers only to the substance of the claim alleged in the petition, not

any procedural requirements or limitations imposed by the Act. We

noted:

			“To accept the argument that the circuit court has the

authority to dismiss [an untimely] petition pursuant to

section 122–2.1(a)(2) of the Act we would have to hold,

contrary to the language of the Act, that the phrase

‘frivolous or *** patently without merit’ encompasses

untimely petitions. We will not ignore the Act’s language

and adopt this interpretation. If a petition is untimely that

does not necessarily mean that the petition lacks merit.”

Boclair, slip op. at 7.

	We also explained that it would be improper for a circuit court

to consider the timeliness of a post-conviction petition at the

summary dismissal stage because such an inquiry might require the

court to determine whether the petitioner had alleged facts showing

a lack of “culpable negligence” which would excuse the tardy

filing. See 725 ILCS 5/122–1(c) (West 2000). Making a

determination as to whether a petitioner lacked culpable

negligence, we observed, would require the circuit court to do

more than examine whether the petition alleged a violation of a

constitutional right. We concluded that this would be improper:

			“Moreover, when a circuit court determines whether a

defendant is culpably negligent in filing his petition late,

the circuit court makes an assessment of the defendant’s

credibility. See McCain, 312 Ill. App. 3d at 531. At this initial stage of the proceedings, however, the court should only determine whether the petition alleges constitutional

deprivations. The process at the summary review stage measures a petition’s substantive virtue rather than its

procedural compliance. See Johnson, 312 Ill. App. 3d at 534. In determining an issue of credibility, the circuit court

necessarily exceeds the boundary set by section

122–2.1(a)(1).” (Emphasis added.) Boclair, slip op. at 8.

	Finally, we noted that it was inappropriate as a matter of

policy for the circuit court to consider the timeliness of a post-

conviction petition at the summary dismissal stage because to do

might result in the loss of a meritorious claim of actual innocence.

As we explained:

			“Claims of actual innocence may be raised in a manner

other than in a post-conviction petition, including in a

section 2–1401 motion. 735 ILCS 5/2–1401 (West 2000).

Nonetheless, to allow the circuit court to dismiss

summarily post-conviction petitions for failure to present

evidence of actual innocence in a timely manner could lead

to a miscarriage of justice. Although our criminal justice

system needs finality in criminal litigation and judgments,

it should not come at the expense of justice and fairness.”

Boclair, slip op. at 8.

	For the foregoing reasons, we concluded in Boclair that matters of timeliness must “be left for the State to assert during the

second stage of the post-conviction proceedings.” Boclair, slip op. at 8. During the initial, summary dismissal stage of post-conviction

proceedings, Boclair holds, a circuit court may not consider whether a post-conviction petition has satisfied the procedural

requirement of timeliness.

II

	In the case at bar, the majority holds that the summary

dismissal of defendant’s pro se post-conviction petition was proper because defendant failed to comply with the affidavit requirement

set forth in section 122–2 of the Act (725 ILCS 5/122–2 (West

2000)). That section states, in pertinent part, 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 2000). Defendant’s petition does contain an affidavit which attests to the truthfulness of the claim presented in his petition which is at issue here, i.e., that his court-appointed attorney failed to comply with his request to file

an appeal. However, according to the majority, that affidavit serves

only to verify the allegations in the petition. As such, the majority

reasons, defendant’s affidavit is sufficient to satisfy section

122–1(b) of the Act (725 ILCS 5/122–1(b) (West 2000) (post-

conviction petition must be verified by affidavit)), but is insufficient

to satisfy the requirements of section 122–2. Slip op. at 6.

	To satisfy the affidavit requirement of section 122–2, the

majority holds, defendant should have attached at least one

additional affidavit in support of his post-conviction claim. This

second affidavit is necessary, the majority reasons, to show “that

the verified allegations are capable of objective or independent

corroboration.” Slip op. at 6. Presumably, therefore, the additional

affidavit must come from someone other than defendant. The

majority further holds that, in the absence of a second affidavit,

defendant was required to “at least explain why such [objective or

independent] evidence is unobtainable.” Slip op. at 7. In the

majority’s view, defendant’s failure to comply with this latter

“pleading requirement,” by itself, warrants summary dismissal of

his post-conviction petition. Slip op. at 5, 7. The majority

emphasizes that it is not deciding in this case whether defendant’s

petition alleges a constitutional deprivation. See slip op. at 7

(distinguishing People v. Edwards, 197 Ill. 2d 239 (2001)). Rather, the majority’s holding rests solely on the affidavit requirement of

section 122–2.

III

	The majority opinion in this case conflicts with Boclair at every significant point in its analysis. For example, the majority

opinion at bar states:

		“Contrary 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. This fact alone

justifies the summary dismissal of defendant’s petition.”

(Emphasis added.) Slip op. at 5.

	The affidavit requirement that the majority finds dispositive in

this case is found in section 122–2 of the Act, not section 122–2.1,

the section of the Act which authorizes summary dismissal.

Pursuant to Boclair, a circuit court may not look to any section of the Act other than section 122–2.1 to determine whether a post-

conviction petition is subject to summary dismissal. See Boclair, slip op. at 6.

	In addition, Boclair holds that the only inquiry the circuit court may make at the summary dismissal stage is whether the

post-conviction petition “alleges constitutional deprivations.”

Boclair, slip op. at 8. In other words, under Boclair, the circuit court is limited at the summary dismissal stage to asking whether

the petition states the “ ‘gist of a constitutional claim.’ ” Boclair, slip op. at 6, 8, quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996). According to Boclair, matters of “procedural compliance” (Boclair, slip op. at 8) may not be considered in the initial stage of post-conviction review.

	In contrast, the majority opinion in the case at bar does not

consider whether defendant’s petition successfully alleges a

constitutional deprivation by stating the gist of a constitutional

claim. Instead, the majority concerns itself solely with whether

defendant complied with the affidavit requirement of section

122–2. In contrast to Boclair, the majority in this case holds that the circuit court should consider whether a pro se defendant has complied with the Act’s procedural requirements at the initial stage

of post-conviction review. The majority holds that a pro se defendant’s failure to explain the absence of a second affidavit is

sufficient reason, standing alone, to summarily dismiss a post-

conviction petition (slip op. at 5, 7), even though the failure to

provide that explanation “does not necessarily mean that the

petition lacks merit” (Boclair, slip op. at 7).

	The majority opinion in the case at bar also conflicts with the

policy concerns expressed in Boclair. As noted, the majority in this case holds that a pro se post-conviction petition should be summarily dismissed if it fails to comply with one of the pleading

requirements set forth in section 122–2 of the Act. Section 122–2

provides, in full:

			“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 2000).

	According to the majority, defendant in this case failed to

satisfy section 122–2’s requirement that he “at least explain” why

a second affidavit was not attached to his petition. Slip op. at 7.

Therefore, the majority holds, his petition was properly dismissed

at the summary review stage. Slip op. at 7. Notably, in reaching

this conclusion, the majority chooses not to provide defendant with

the opportunity to amend his post-conviction petition with an

explanation for why an additional affidavit is unavailable. Our case

law would permit such an amendment. See People v. Watson, 187 Ill. 2d 448 (1999). Nevertheless, the majority holds that

defendant’s petition should be finally dismissed.

	The majority’s decision not to permit any amendment of

defendant’s post-conviction petition is of considerable importance.

Under this holding, it is possible that a pro se defendant who has a meritorious constitutional claim, including a claim of actual

innocence, may never have that claim reviewed by the courts solely

because of a technical pleading defect that is easily subject to

correction through amendment. The majority recognizes that its

holding “will, in some cases, place an unreasonable burden upon

post-conviction petitioners.” Slip op. at 7. However, the majority

feels constrained by the language of the Act to reach this result.

See slip op. at 7 (“[n]othing in the Act” authorizes the circuit court

to depart from section 122–2’s pleading requirements at the

summary dismissal stage).

	Boclair reaches a contrary result. In Boclair, we held that it would be a “miscarriage of justice” for a meritorious claim of actual innocence to evade judicial review because of a procedural

deficiency in the post-conviction petition. According to Boclair, allowing a claim of actual innocence to be lost because of a

procedural deficiency would be contrary to principles of “justice

and fairness.” Boclair, slip op. at 8.

	In sum:

			• The majority opinion in this case holds that, in

determining whether a pro se post-conviction petition is subject to summary dismissal, the circuit court should look

beyond section 122–2.1(a)(2) of the Act and consider

whether the petition has complied with the pleading

requirements set forth in section 122–2. Boclair holds that the circuit court may not consider sections of the Act other than section 122–2.1(a)(2).

			• The majority opinion in this case upholds the summary

dismissal of defendant’s petition without considering

whether defendant’s petition states the gist of a

constitutional claim. Boclair holds that the circuit court may dismiss a post-conviction petition at the initial stage

of review only if the petition fails to state the gist of a constitutional claim.

			• The majority opinion in this case holds that a technical

pleading deficiency in a pro se post-conviction petition warrants its summary dismissal. Boclair holds that, at the summary dismissal stage, the circuit court should not

consider whether the petition is in “procedural

compliance.” Boclair, slip op. at 8.

			• The majority opinion in this case holds that the

language of the Act requires strict procedural compliance

from pro se post-conviction petitioners at the summary dismissal stage. Boclair holds that such compliance may not be required at the initial stage of post-conviction

review because to do so could result in “a miscarriage of

justice.” Boclair, slip op. at 8.

	Our opinion in Boclair and the majority opinion in this case are in direct and irreconcilable conflict. Given this conflict, it is

clear that the court’s opinion in Boclair, as the later issued of the two opinions, has overruled the majority opinion in the case at bar.

As I noted in my separate opinion in Boclair (see Boclair, slip op. at 30 (McMorrow, J., concurring in part and dissenting in part,

joined by Freeman, J.)), the court’s decision in Boclair to overrule the instant case cannot, by itself, be considered error. It is error,

however, for the court in the case at bar not to acknowledge that

fact. Because Boclair has overruled the majority opinion in this case, rehearing should be granted.

IV

	Although the conflict between Boclair and the majority opinion in the case at bar is a sufficient basis, by itself, to grant

defendant’s petition for rehearing, there are also several other

compelling reasons to allow rehearing in this case.

The Meaning of ‘Objective Corroboration’

	Setting Boclair to one side and assuming, arguendo, that the circuit court may consider a post-conviction petition’s compliance

with section 122–2 at the summary dismissal stage, rehearing

should be granted in this case because the majority opinion

overlooks, and thus fails to answer, a very basic question: Why is

it that the affidavit submitted by defendant in this case cannot serve

two purposes? In other words, Why is it that defendant’s affidavit

cannot verify the allegations in the post-conviction petition while

also substantiating those same allegations? The majority holds that

a second affidavit is necessary in this case to show “that the

verified allegations [in the petition] are capable of objective or

independent corroboration.” Slip op. at 6. But in this case,

defendant was a party to the conversation he had with his attorney regarding his appeal. Why then does defendant’s sworn statement that his attorney told him he would appeal his case, but then

neglected to do so, fail to satisfy the “objective corroboration” that

the majority requires? As far as I can determine, the only way one

could conclude that defendant’s affidavit in this case does not provide “objective corroboration” for his claim would be to assume

that defendant is not telling the truth. But we are not permitted to

make such an assumption at this stage of the proceedings. When the circuit court examines a post-conviction petition at the first

stage of review pursuant to section 122–2.1(a)(2) of the Act, it

must accept everything in the petition as true. See People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). Certainly, if defendant’s petition were to advance to an evidentiary hearing, defendant’s

testimony by itself, if believed by the circuit court, would establish

the truth of his factual assertions. Why then is the majority

imposing a greater burden of evidentiary “corroboration” on the

pro se defendant at the summary dismissal stage of the proceedings? The phrase “objective or independent corroboration”

(slip op. at 6) does not appear in the Act and the majority has

offered no authority for its proposition that, under the

circumstances presented here, defendant must supply a second

affidavit to “corroborate” his post-conviction claim at the summary

dismissal stage. At a minimum, rehearing should be granted to

explain why defendant’s affidavit fails the majority’s corroboration

requirement.

Inapposite Authority

	The majority states that defendant’s failure to attach a second

affidavit or explain its absence is “fatal” to his petition. Slip op. at

5. In support of this statement, the majority cites People v. Turner, 187 Ill. 2d 406, 414 (1999), People v. Coleman, 183 Ill. 2d 366, 380 (1998), and People v. Jennings, 411 Ill. 21, 26 (1952). Slip op. at 5. These cases are manifestly distinguishable from the case

at bar. Jennings is inapposite because that case predates the addition of section 122–2.1(a)(2) to the Act. The petitioner in

Jennings was represented by counsel and summary dismissal was not a possibility. Turner and Coleman are death penalty cases. There is no summary dismissal for post-conviction petitions filed

in capital cases. See 725 ILCS 5/122–2.1(a)(1) (West 2000). It is

plainly inappropriate to rely on these decisions in this case, which

is concerned solely with the requirements a noncapital post-

conviction petition must meet at the summary dismissal stage. 

	Although the majority cites no pertinent authority to support

its holding, there is authority from this court, directly on point,

which is contrary to the majority’s position. As I noted in my

original dissent in this case, over 30 years ago, in People v. Williams, 47 Ill. 2d 1 (1970), this court held that when a pro se post-conviction petitioner’s claim of ineffective assistance of

counsel is based on an attorney-client conversation, the only

supporting affidavit required is the defendant’s own. In Williams, we stated:

			“The State’s only contention is that the petition is

insufficient to entitle petitioner to a hearing in that it was

not accompanied by supporting affidavits. But the only

affidavit that petitioner could possibly have furnished,

other than his own sworn statement, would have been that

of his attorney who allegedly made the misrepresentation

to him. The difficulty or impossibility of obtaining such an

affidavit is self-apparent. In People v. Wegner, 40 Ill. 2d 28, where similar allegations of misrepresentations of

counsel as to sentence were made, we held that dismissal

of the petition without a hearing was improper; that

defendant was entitled to an evidentiary hearing even

though the State had filed a counteraffidavit of defendant’s

attorney in which he denied making the statement

attributed to him. It would certainly follow that if a

defendant is entitled to a hearing despite a counteraffidavit

of his attorney denying the allegations of the petition then

a defendant should not be denied a hearing merely because

he did not obtain a supporting affidavit from the attorney

who represented him at the time of his plea.

			Under such circumstances, to so strictly construe the

Act as requested by the State would defeat its very

purpose by denying petitioner a hearing on the factual

issue raised by the pleadings. However, as stated in People v. Reeves, 412 Ill. 555, we do not intend hereby to lessen the duty of petitioners under the Act to make a substantial

showing of a violation of constitutional rights, for the

allegations of mere conclusions to that effect under oath

will not suffice. We do find that in this case the sworn

statements of petitioner warrant a fair inference of a

violation of constitutional rights which are not negated by

the State nor by the record, and that an evidentiary hearing is required to determine the truth or falsity of petitioner’s

allegations.”Williams, 47 Ill. 2d at 4-5.

	I explained at length in my original dissent in this case why the

majority’s attempt to factually distinguish Williams fails. I leave it to the reader to decide whether the majority has accurately

represented the facts in Williams. For myself, I must reluctantly conclude, as Chief Justice Harrison once remarked, that “[s]tare decisis means nothing” (People v. Kinkead, 182 Ill. 2d 316, 348 (1998) (Harrison, J., specially concurring)) to the majority in this

case. Rehearing should be granted in this case to strike the citations

to inapposite case law and to conform the majority opinion with

our holding in Williams.

Failure to Permit Amendment of Defendant’s Petition

	In recent years there has been a growing public discussion

regarding possible shortcomings in the Illinois criminal justice

system. Most of the discussion has centered on the cases of 13

individuals who have been released from death row in Illinois.

These cases have provoked a serious reexamination of capital

punishment in this state and prompted some individuals to question

the integrity of our criminal justice system itself. Chief Justice

Harrison, for example, has expressed this view:

		“[L]egislatures and the courts appear to have abandoned

any genuine concern with insuring the fairness and

reliability of the system. Achieving ‘finality’ in death cases,

and doing so as expeditiously as possible, have become the

dominant goals in death penalty jurisprudence.” People v. Bull, 185 Ill. 2d 179, 227 (1998) (Harrison, J., concurring in part and dissenting in part) (noting that legal oversight

of the capital punishment system has diminished and that

“[t]he General Assembly has drastically shortened the

period in which post-conviction relief can be sought,

thereby reducing the time in which exonerating evidence

may be discovered”).

	Voicing concerns over the fairness and reliability of the capital

punishment system, Governor Ryan imposed a moratorium on the

death penalty in January 2000. Shortly thereafter, he authorized the creation of the Commission on Capital Punishment and charged

that body with making recommendations “ ‘designed to further

ensure the application and administration of the death penalty in

Illinois is just, fair and accurate.’ ” T. Sullivan, Repair or Repeal–Report of the Governor’s Comm’n on Capital

Punishment, 90 Ill. B.J. 304, 304 (2002). In its recently issued final report, the commission makes numerous recommendations for

improving the capital punishment system. Importantly, however,

for purposes of the case at bar, the commission notes that many of

the problems underlying the capital punishment system pertain to

the criminal justice system as a whole:

		“It became readily apparent during many of the

discussions on particular points, however, that

recommendations that were being made with respect to

the capital punishment system could apply with equal

force to other cases in the criminal justice system.

			During some of its discussions, Commission members

were struck by the fact that particular cases received a

much higher level of scrutiny because capital punishment

was involved. Had those same defendants been sentenced

to life imprisonment, or a term of years, their cases might

not have been reviewed as carefully and by so many

different parties. As a result, some of the injustices with

which the public has recently become acquainted might

not have been corrected.” Report of the Governor’s

Commission on Capital Punishment, ch.14, at 188 (April

2002).

	I explained previously in this dissent how the majority opinion

in the case precludes a pro se defendant from amending his post- conviction petition to correct pleading deficiencies and how this

holding means the possible loss of meritorious constitutional

claims. It is both ironic and unfortunate that at a time when the

entire Illinois criminal justice system is under intense scrutiny and

serious questions have been raised regarding its fairness and

accuracy, the majority has decided to completely foreclose

consideration of meritorious constitutional claims, including claims

of actual innocence, based on technical pleading deficiencies. As

stated, our case law permits the amendment of post-conviction petitions at the summary dismissal stage. See People v. Watson, 187 Ill. 2d 448 (1999). Even assuming, therefore, that pro se defendants should be held accountable for section 122–2’s pleading

requirements at the summary dismissal stage, rehearing should be

granted in this case and the majority opinion modified to provide

defendant with the opportunity to amend his post-conviction

petition with an additional affidavit or an explanation for why such

an affidavit is unavailable.

	The majority'’s decision in this case is contrary to both recent

and long-established precedent of this court and, with due respect,

is profoundly iolll-advised.  

	hn R. Schmidt, Mayer, Brown & Platt, Chicago, former

deputy Attorney General of the United States;

			Seymour F. Simon, Piper Marbury, Rudnick & Wolfe,

retired justice, Illinois Supreme Court, former justice,

Illinois Appellate Court, First District;

			Randolph N. Stone, clinical professor of Law, Edwin F.

Mandel Legal Aid Clinic, University of Chicago Law

School, former public defender of Cook County;

			Lawrence J. Suffredin, Jr., Law Offices of Lawrence J.

Suffredin, Jr., Chicago;

			Ann C. Tighe, Cotsirilos, Tighe & Streiker, Chicago,

former assistant United States Attorney, Northern District of Illinois;

			Jeffrey Urdangen, Jeffrey Urdangen, Ltd., Chicago;

			Illinois Association of Criminal Defense Lawyers, Jack

P. Rimland, president;

			Illinois Public Defender Association, David P. Brodsky,

president.

	The majority’s decision in this case is contrary to both recent

and long-established precedent of this court. It is unwise as a

matter of policy and has been found wanting by leading

representatives of our legal community. With due respect, the

majority opinion is profoundly ill-advised. I therefore dissent from the court’s denial

of rehearing.

	JUSTICE FREEMAN joins in this dissent.