2015 IL 113135

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 113135) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. ALLEN, 

Appellant. 

Opinion filed May 21, 2015.

CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

Justices Freeman, Kilbride, Burke, and Theis concurred in the judgment and 

opinion. 

 Justice Thomas dissented, with opinion, joined by Justice Karmeier. 

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. 
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¶ 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. Ill. S. 

Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we reverse the judgments 

of the appellate court and the circuit court.

¶ 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: that Moore had arranged the contract killing of Ciralski; 

that defendant had followed Ciralski the night of his murder; and that two other 
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men, Franklin Freeman and Henry Griffin, had gotten out of defendant’s car to 

carry out Ciralski’s murder. Griffin was already on death row for the murder of 

Gibson. See People v. Griffin, 148 Ill. 2d 45 (1992). Pochordo began looking for 

Freeman, who was located in Rockford. He arranged to speak to defendant at 

Stateville Correctional Center on December 9, 1985. 

¶ 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 
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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 ASA 

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 

 1

Robert Ciralski, Jr., did make a tentative identification of a black and white photograph of 

defendant early in the investigation but said he was unsure. He was even less confident after seeing 

a color photograph of the defendant. In any event, the prosecution of defendant did not hinge on this 

identification; the State’s theory was that defendant remained in the car down the block while 

Griffin and Freeman attacked Ciralski.
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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 form of information linking Langford to the 

crime, and that the State knowingly used perjured testimony. 

¶ 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 
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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. Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶ 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). 
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¶ 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.” 725 ILCS 

5/122-2.1(a)(2) (West 2008). If the petition is not dismissed as being frivolous or 

patently without merit, the court then orders the petition to be docketed for further 

consideration. 725 ILCS 5/122-2.1(b) (West 2008). In the second stage, the 

defendant bears the burden of making a substantial showing of a constitutional 

violation. People v. Coleman, 206 Ill. 2d 261, 277 (2002). Within 30 days of the 

court’s order to docket a petition, the State must either move to dismiss or file an 

answer. 725 ILCS 5/122-5 (West 2008). At this stage, the court has discretion to 

allow amendment of the petition, “as shall be appropriate, just and reasonable and 

as is generally provided in civil cases.” Id. 

¶ 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. 725 ILCS 5/122-6 (West 2008). Under 

Illinois law, “a claim of newly discovered evidence showing a defendant to be 

actually innocent of the crime for which he was convicted is cognizable as a matter 

of due process.” People v. Washington, 171 Ill. 2d 475, 489 (1996). The supporting 

evidence for a petition on the basis of actual innocence must be “new, material, 

noncumulative and, most importantly, ‘of such conclusive character’ as would 

‘probably change the result on retrial.’ ” (Internal quotation marks omitted.) Id.

(quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987)). 
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¶ 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 based on untimeliness.” Boclair, 202 Ill. 2d at 99. Our case law thus reveals a 

limited number of reasons for summary dismissal of a postconviction petition. 

¶ 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. 725 ILCS 5/122-1(b) (West 2008) (noting that a proceeding 

is commenced by the filing of “a petition *** verified by affidavit”); 725 ILCS 

5/122-2 (West 2008) (stating that the “petition shall have attached thereto 

affidavits, records, or other evidence supporting its allegations”). Where the 

petition lacks “affidavits, records, or other evidence supporting its allegations,” the 

petitioner must explain in his pleadings why that evidence is not attached. 725 

ILCS 5/122-2 (West 2008). In People v. Collins, this court affirmed the first-stage 
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dismissal of a petition with only one affidavit, reading “ ‘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.’ ” Collins, 202 Ill. 2d at 62. The Collins court 

rejected the defendant’s argument that his attached affidavit could serve as both 

verification affidavit and evidentiary affidavit, as sections 122-1 and 122-2 serve 

different purposes under the Act. The requirement for a verification affidavit in 

section 122-1, “like all pleading verifications, confirms that the allegations are 

brought truthfully and in good faith.” Id. at 67. The requirement of an evidentiary 

affidavit or other evidence, “by contrast, shows that the verified allegations are 

capable of objective or independent corroboration.” Id. The court acknowledged 

that the attachment of affidavits, records, or other evidence would sometimes place 

an “unreasonable burden” on postconviction petitioners, but noted that the 

defendant in that case was asking to be excused from not only “section 122-2’s 

evidentiary requirements but also from section 122–2’s pleading requirements.” 

(Emphases omitted.) Id. at 68. Because the petitioner in Collins failed to attach 

evidence or to explain its absence, and with the absence of facts from which the 

court could reasonably infer an explanation, the court affirmed dismissal of the 

petition as frivolous and patently without merit. Id. at 69. 

¶ 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 
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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, Rule 315(b) required a party seeking additional time to appeal to timely 

“file with the Appellate Court an affidavit of intent to file a petition for leave, and 

file the petition within 35 days after the entry of such judgment.” (Emphasis and 

internal quotation marks omitted.) Id. at 492-93. The court considered whether the 

“affidavit” required in Rule 315(b) would be satisfied by the attorney’s signature 

alone. It considered the common usage of “affidavit” in cases within the state, 

noting it was generally “ ‘simply a declaration, on oath, in writing, sworn to by a 

party before some person who has authority under the law to administer oaths.’ ” 

Id. at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). The court rejected the 

appellant’s argument that the affidavit’s sole purpose was to provide notice of the 

party’s intention to seek leave to appeal, for two reasons: (1) rules of the court hold 

the force of law, and litigants must have incentive to follow them; and (2) the 

affidavit of intent did more than give notice; it automatically stayed the mandate of 

the appellate court. These purposes militated in favor of the more exacting 

requirement of notarization. The Roth court concluded that Rule 315 affidavits 

require notarization, in part because Rule 315 did not provide any explicit 
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requirements, so the common usage of the term “affidavit” would govern. The 

State cites Roth largely for its conclusion: an unsworn affidavit is a “nullity.” 

¶ 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 petition serves two purposes. First, it must contain a 

factual basis sufficient to show the petition’s allegations are “capable of objective 

or independent corroboration.” Collins, 202 Ill. 2d at 67. Second, it must “identify 

with reasonable certainty the sources, character, and availability of the alleged 

evidence supporting the petition’s allegations.” People v. Delton, 227 Ill. 2d 247, 

254 (2008). As the State has argued, the purpose behind notarization is twofold: 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. See

Vancura v. Katris, 238 Ill. 2d 352, 387 (2010); Loraitis v. Kukulka, 1 Ill. 2d 533, 

538 (1953) (noting the “superior effect” given to statements made under oath and 

applying penalties of perjury to affidavits). Each of these concerns focuses 

fundamentally on evidentiary reliability. The impact of these evidentiary concerns 

on the “capab[ility] of independent or objective corroboration” and the 

identification of “sources, character, and availability of the alleged evidence” 

would essentially be a question of whether the facts contained in the affidavit are 

true. 

 2

The State argues that the inclusion of a fingerprint under Langford’s signature, on a line 

marked “SIGNEE’S RIGHT [obscured] PRINT,” does not indicate that Langford attempted to 

verify or swear to the statement. We can conceive of no other reason to include it.
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¶ 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. 725 ILCS 5/122-1, 122-2.1 (West 2008); Collins, 202 

Ill. 2d at 67; Delton, 227 Ill. 2d at 254. At the first stage, the court considers solely 

the petition’s substantive virtue, dismissing only where the petition is frivolous or 

patently without merit. Hommerson, 2014 IL 115638, ¶ 11; see 725 ILCS 

5/122-2.1, 122-5 (West 2008). Not until the second stage is the petition subjected to 

adversarial testing through the State’s involvement. 725 ILCS 5/122-5 (West 

2008). There, the State can raise certain other defects, insofar as they represent a 

deficiency in the petition but do not render a petition frivolous or patently without 

merit. Boclair, 202 Ill. 2d at 101 (holding that allowing the circuit court to 

summarily dismiss for untimeliness would improperly expand the words “frivolous 

or *** patently without merit” (internal quotation marks omitted)); Hommerson, 

2014 IL 115638, ¶ 11 (holding that the court’s first-stage review of “substantive 

virtue” should not include compliance with the section 122-1(b) verification 

affidavit requirement). The State may challenge such “nonjurisdictional procedural 

defect[s]” at the second stage; failure to do so forfeits the issue. People v. Cruz, 

2013 IL 113399, ¶¶ 21, 25 (holding that, like untimeliness, failure to notarize a 

verification affidavit can be forfeited); Boclair, 202 Ill. 2d at 101-02. Enforcing 

such requirements at the first stage would “frustrate[ ] the legislature’s intent to 

provide incarcerated individuals with this avenue of redress.” Hommerson, 2014 IL 

115638, ¶ 12. 

¶ 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 allegations are capable of independent corroboration. Delton, 227 Ill. 2d 
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at 254; Collins, 202 Ill. 2d at 67. Defendant’s failure to notarize does not leave the 

petition with “no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12. 

In sum, the Langford statement’s lack of notarization does not make the petition 

frivolous or patently without merit. We find the circuit court may not dismiss at the 

first stage solely for failure to notarize a statement styled as an evidentiary 

affidavit. 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. As explained below, the Langford statement satisfies these purposes. 

While not an admissible affidavit in its present form, the Langford statement 

properly qualifies as “other evidence.” 725 ILCS 5/122-6 (West 2008). 

¶ 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. 725 ILCS 5/122-5 (West 2008) (providing that, where a petition is not 

dismissed at the first stage, the State has 30 days to “answer or move to dismiss”); 

see, e.g., Boclair, 202 Ill. 2d at 102 (finding “the matter of untimeliness should be 

left for the State to assert during the second stage of the post-conviction 

proceedings”). Where a defendant’s postconviction counsel is unable to obtain a 

properly notarized affidavit, the court may dismiss the petition upon the State’s 

motion. See 725 ILCS 5/122-5 (West 2008) (granting the court discretion to allow 

amendment of the petition “as shall be appropriate, just and reasonable and as is 

generally provided in civil cases”).

¶ 36 Relying on the canon against surplusage, the State argues that considering the 

Langford statement as “other evidence” renders the word “affidavit” surplus. See 

725 ILCS 5/122-2 (West 2008). Further, the State argues, the Langford statement is 

inadmissible hearsay, such that it cannot qualify as other evidence. We do not 

agree. The use of “other evidence” in the phrase “affidavits, records, or other 

evidence” indicates the legislature contemplated a wide range of documentary 

evidence would satisfy the evidentiary requirements of the first stage. 725 ILCS 

5/122-2 (West 2008). That the legislature would accept an explanation for failure to 

attach evidence in lieu of such evidence further indicates legislative intent that 

petitions with substantive merit would advance to the second stage, even where the 

evidence attached suffers from remediable procedural defects. Id. The word 

“affidavit” is not rendered surplus: a defendant still has ample reason to obtain a 
- 14 - 

properly notarized affidavit. First-stage notarization would prevent the State from 

raising that issue in a second-stage challenge. First-stage notarization also would 

eliminate any risk that postconviction counsel would be unable to get the statement 

notarized and would focus postconviction counsel’s resources on substantive 

improvements to the petition. Because an affidavit remains sufficient and in some 

ways superior for first-stage purposes, the word “affidavit” is not rendered surplus 

by accepting a signed statement as “other evidence.” 

¶ 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 Ill. R. Evid. 702, 901; see, e.g., Van Hattem v. K mart Corp., 308 Ill. 

App. 3d 121, 135 (1999) (requiring evidence’s proponents to show “that it was 

reasonably probable the evidence remained unchanged in any important respect or 

was not substituted”). Such inquiries are incompatible with the first stage’s 

abbreviated review. It is enough for first-stage purposes that the defendant has 

provided substantive evidentiary content showing his claims are capable of 

corroboration and independent verification. The contrary view would allow a 

postconviction petition that is neither frivolous nor patently without merit, but 

supported only by an unnotarized factual statement, to be denied substantive 

review simply because the petitioner did not have access to a notary. Further, 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. Indeed, such an explanation would be entirely unrelated to whether the 

petition relies on legal theories completely contradicted by the record or factual 

allegations that are “fantastic or delusional.” Hodges, 234 Ill. 2d at 12, 16-17. 

¶ 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 
- 15 - 

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.
- 16 - 

¶ 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 $1100 to $1500, and Ciralski’s family indicated that more than 

$1000 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 
- 17 - 

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 jury testimony. Two individuals confronted Ciralski as he 

was exiting his car, in accordance with Robert Ciralski, Jr.’s testimony that two 

men were standing near the car. Ciralski’s killers shot him, then rifled through his 

pockets, in accordance with officers’ testimony as to the crime scene. Someone in 

Ciralski’s house fired a gun at Ciralski’s killers, and the killers fled on foot to their 

car, in accordance with Robert Ciralski, Jr.’s testimony. Overall, the Langford 

statement is consistent with defendant’s testimony at trial and overall theory of the 

case: that defendant was uninvolved and only parroted what Detective Pochordo 

had already told him, embellishing his account with details he thought were 

credible. 

¶ 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. 
- 18 - 

¶ 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.” 725 ILCS 5/122-2 (West 2012). In Collins, the 

defendant filed a pro se postconviction petition that, “[c]ontrary 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.” Collins, 202 Ill. 2d at 66 (quoting 725 ILCS 5/122-2 (West 

2000)). The trial court summarily dismissed the pro se petition, and this court 

affirmed. In doing so, this court explained that the failure to comply with section 

122-2 is “fatal” to a postconviction petition and “alone justifies” summary 

dismissal. Id. 

¶ 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 statement purporting to be from a man named Robert 

Langford. Though captioned “affidavit,” the statement was not made under oath, 

was not sworn to before a person who has authority under the law to administer 

oaths, and was not notarized. Consequently, rather than being an “affidavit,” the 

piece of paper attached to defendant’s postconviction petition was a complete 

“nullity” that had absolutely “no legal effect.” Roth v. Illinois Farmers Insurance 

Co., 202 Ill. 2d 490, 497 (2002) (holding that an unsworn affidavit is a nullity that 

has no legal effect). In other words, just like the petition in Collins, defendant’s 

petition here was supported by precisely nothing. Given this, the trial court below 

was correct to dismiss defendant’s petition summarily, and the appellate court was 

correct to affirm that dismissal.
- 19 - 

¶ 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 Roth. Prior to today, an unsworn 

affidavit was “a nullity” with “no legal effect.” After today, an unsworn affidavit is 

“evidence” on par with affidavits, records, evidence depositions, and oral 

testimony. See infra ¶ 61. Indeed, according to the majority, the fact that the 

unsworn Langford statement is unsworn neither “limits” or “destroys” that 
- 20 - 

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 declarent understands that he or she is subject to the 

penalties of perjury, in fact the declarent 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 
- 21 - 

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 
- 22 - 

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.” 725 

ILCS 5/122-2 (West 2008). The phrase next appears in section 122-6, which, 

among other things, states that the trial court in a postconviction proceeding “may 

receive proof by affidavits, depositions, oral testimony, or other evidence.” 

(Emphases added.) 725 ILCS 5/122-6 (West 2008). Thus, under the plain language 

of the Act, “other evidence” refers to something that can be used to prove contested 

facts to the court. In other words, “other evidence” means other admissible

evidence, because of course only admissible evidence can be used to prove 

contested facts to the court. This is important because, as an “unsworn factual 

statement,” the unsworn Langford statement is wholly inadmissible and therefore 

incapable of proving anything, a point the majority readily concedes. Supra ¶ 34. 

That being the case, the unsworn Langford statement is clearly not “other 

evidence” under section 122-6, which means it also is not “other evidence” under 

section 122-2, as we must presume that the phrase “other evidence” means the 

same thing in both provisions. Conversely, were we to say, as the majority does, 

that the unsworn Langford statement constitutes “other evidence” under section 

122-2, then we would also have to say, under our settled canons of construction, 

that the unsworn Langford statement is “other evidence” under section 122-6. But 

this cannot be, as to say this would be to say that a defendant may prove contested 

facts in a postconviction proceeding though the use of “unsworn factual 

statements,” a principle the majority surely does not wish to establish. No, the 

proper and consistent reading of the statute is to say that, under the plain language 

of section 122-6, “other evidence” means other admissible evidence. Indeed, given 

the Act’s plain language, it can mean no other thing. Consequently, under our 

settled canons of construction, “other evidence” must mean the same thing when 

used in section 122-2. The unsworn Langford statement therefore is not “other 

evidence,” and defendant’s pro se petition therefore did not comply with section 

122-2. 

¶ 60 On this last point, it is interesting to note that, although the majority 

affirmatively holds that the unsworn Langford statement constitutes “other 
- 23 - 

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, while not an “affidavit,” the 

unsworn Langford statement is “other evidence.” Supra ¶ 34. Nevertheless, the 

majority goes on to hold that the State may move to dismiss defendant’s petition at 

the second stage on the grounds that the Langford statement is unsworn, and that 

defendant’s continued failure to have it sworn would compel the granting of the 

state’s motion. Supra ¶ 35. Forgive my confusion, but if the unsworn Langford 

statement is, as the majority insists, “other evidence,” then how could defendant’s 

continued reliance upon that statement possibly constitute grounds for dismissal at 

the second stage? Presumably, the State could not move to dismiss a petition at the 

second stage solely on the grounds that it is supported by a properly sworn 

affidavit. Nor could the State move to dismiss a petition at the second stage solely 

on the grounds that it is supported by records. Indeed, such petitions would be in 

full substantive compliance with the Act, and a motion to dismiss of the sort 

described would be nonsense. Why, then, could the State move to dismiss at the 

second stage solely on the grounds that the petition is supported by “other 

evidence”? Yet this is exactly what the majority is saying. In one breath, the 

majority is saying that the unsworn Langford statement is “other evidence” and that 

defendant’s petition therefore complies with section 122-2 and may not be 

dismissed. In the next breath, the majority is saying that the State may move to 

dismiss defendant’s petition at the second stage on the grounds that it is not

supported by “other evidence” and therefore does not comply with section 122-2 

and that, if nothing changes, the State’s motion to dismiss must be granted. Which 

is it? Again, if the unsworn Langford statement is indeed “other evidence,” then 

defendant’s continued reliance upon it at stage two could not possibly constitute 

grounds for dismissal, as “other evidence” is precisely what the Act demands of 

him. Conversely, if the unsworn Langford statement does not constitute “other 

evidence” at stage two, then it never constituted “other evidence” to begin with and 

summary dismissal is appropriate. This is the exact point I have been making, and 

in its own way, the majority appears to be making it, too. 

¶ 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, 
- 24 - 

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.” 725 ILCS 

5/122-6 (West 2008). Under the ejusdem generis doctrine, this court must presume 

that, when the legislature used the phrase “other evidence,” it meant other evidence 

like affidavits, records, depositions, and oral testimony. So then what do these 

specified classes of evidence have in common? What they have in common is they 

are all classes of evidence that may be used to prove contested facts in a legal 

proceeding.3 In other words, they are classes of admissible evidence. Thus, under 

the ejusdem generis doctrine, the phrase “other evidence” must mean other classes 

of admissible evidence, which again is the point I’ve been making. And measured 

by this standard, the unsworn Langford statement utterly fails, as even the majority 

concedes that the unsworn Langford statement is wholly inadmissible. By contrast, 

the majority’s position turns the ejusdem generis doctrine on its head by holding 

that the “other evidence” allowed for in sections 122-2 and 122-6 need not bear any 

resemblance whatsoever to the specified classes of evidence that come before. 

Indeed, as construed by the majority, section 122-2 may as well read “affidavits, 

records, or anything else,” and section 122-6 may as well read “affidavits, 

depositions, oral testimony, or anything else,” as that is exactly the import of 

saying that “other evidence” includes “unsworn factual statements” that are neither 

“admissible” nor “competent.” Supra ¶ 37. I am certain that this is not what the 

legislature intended, and in any event it is utterly incompatible with the long-settled 

ejusdem generis doctrine. 

¶ 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 

 3

In People v. Rose, 48 Ill. 2d 300, 302 (1971), this court specifically held that “depositions” 

under section 122-6 refers only to evidence depositions and not to discovery depositions.
- 25 - 

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 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 
- 26 - 

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’s affidavit’s lack of 

notarization as a “remediable procedural defect.” Supra ¶ 36. Of course, the 
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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 ¶¶ 34, 36. In other words, according to the majority, being sworn 

to under oath is a mere procedural step in the creation of an affidavit, the absence of 

which has no substantive impact on the statement’s evidentiary efficacy. This 

position finds no support in Roth, and it is utterly contrary to everything Roth has to 

say about affidavits. 

¶ 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 Rule 315(b)’s 

affidavit requirement. In holding that it absolutely was not, this court 

doubled-down on the principle that, to be an “affidavit,” the statement in question 

simply must be made under oath and sworn to before someone who has authority 

under the law to administer oaths. Indeed, the court could not have been any clearer 

on this point, stating it multiple times and in multiple ways, both positively and 

negatively. Noting that “Illinois courts have defined [‘affidavit’] in consistent 

fashion for over 100 years,” the court first explained that “ ‘[a]n affidavit is simply 

a declaration, on oath, in writing, sworn to by a party before some person who has 

authority under the law to administer oaths.’ ” (Emphases added.) Roth, 202 Ill. 2d 

at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). From there, the court 

reiterated that principle, this time adding the obvious corollary that “ ‘ “[a] writing 

which does not appear to have been sworn to before any officer does not constitute 

an affidavit.” ’ ” (Emphases added.) Id. at 493-94 (quoting People v. Smith, 22 Ill. 
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App. 3d 377, 380 (1974), quoting 2 Ill. L. and Prac. Affidavits § 2, at 648 (1953)). 

And then, just for good measure and to ensure that there would be no remaining 

confusion on this point, the court again emphasized that “an affidavit must be 

sworn to, and statements in a writing not sworn to before an authorized person 

cannot be considered affidavits.” (Emphases added.) Id. at 494. Notably, this all 

occurred in the course of a single paragraph, the conclusion of which was the 

court’s express holding that “[the] defendant did not file an ‘affidavit’ in this case 

because the document filed with the appellate court does not consist of a statement 

sworn to before a person who has authority under the law to administer oaths.” 

(Emphasis added.) Id. 

¶ 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 Rule 191(a)’s affidavit requirement. 

In doing this, however, the court went out of its way to explain that Robidoux was a 

singular case that turned not on the century-old definition of “affidavit” but rather 

on the unusual language contained in Rule 191(a). Specifically, the court noted 

that, rather than simply require the filing of an “affidavit,” Rule 191(a) expressly 

enumerates what is required of the affidavits filed pursuant to that Rule, stating that 

such affidavits: 

“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 Rule 191(a) sets out specific 

requirements for an affidavit, but omits reference to notarization, it was reasonable 

for this court to conclude in Robidoux that notarization is not required.” Roth, 202 

Ill. 2d at 496. As importantly, the court in Roth then emphasized both that “our 

analysis in Robidoux necessarily applies only to affidavits filed pursuant to Rule 

191(a)” and that, where the provision at issue “gives absolutely no guidance as to 

what is required of the party filing the affidavit,” the “requirements must be 

gleaned from our case law, i.e., how this court has traditionally viewed the 

requirements of an affidavit.” (Emphasis added.) Id. at 495, 496. And how the court 
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“has traditionally viewed the requirements of an affidavit” is that an affidavit that is 

not sworn is a “nullity” that “has no legal effect.” Id. at 496, 497. 

¶ 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 725 ILCS 5/122-2 (West 2008)). The trial court 

summarily dismissed the pro se petition, and this court affirmed. In doing so, this 
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court explained that the failure to comply with section 122-2 is “fatal” to a 

postconviction petition and “alone justifies” summary dismissal. Id.

¶ 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.” 2014 IL 115368, ¶ 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 People v. 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 
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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.” 725 ILCS 5/122-2 (West 

2012). Here, the only thing attached to defendant’s petition was the unsworn 

Langford statement, which we already established is a “nullity” that “has no legal 

effect.” Roth, 202 Ill. 2d at 497. Again, it is exactly the same as if defendant filed 

nothing at all. Secura, 232 Ill. 2d at 216. Consequently, just like the petition in 

Collins, defendant’s petition here had none of the supporting documentation that 

section 122-2 requires. This being the case, the trial court below was absolutely 

correct to dismiss defendant’s petition summarily, and this court should not hesitate 

to affirm that dismissal.

¶ 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 v. Katris, 238 Ill. 2d 352, 367 (2010); 5 

ILCS 312/6-102 (West 2012). After today, actual affidavits are no longer 

necessary. After today, to survive first-stage review, a postconviction petition’s 
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attachment need only bear the caption “affidavit,” at which point the attachment 

need not be sworn, need not be notarized, and need not bear any indication that the 

person purporting to make the statement the person actually making the statement. 

In other words, after today, and so long as it says “affidavit” at the top, a document 

that an inmate can generate alone in his or her own cell, make say anything he or 

she wants, and attribute to anyone he or she deems helpful, will be sufficient to 

ensure that the inmate’s postconviction petition survives first-stage review and that 

the matter advances to second-stage proceedings, complete with the appointment of 

counsel. This is a dramatic lowering of section 122-2’s pleading requirements, and 

it has the very real potential to overwhelm our circuit courts with frivolous 

second-stage proceedings. Nothing in our law compels this, and I therefore decline 

to join the majority in establishing it.

¶ 77 For all of these reasons, I dissent. 

¶ 78 JUSTICE KARMEIER joins in this dissent.