## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Hom m erson , 2013 IL App (2d) 110805

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. PETER HOMMERSON, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-11-0805

Filed J anuar y 18, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The summary dismiss al of defe ndant’s pro se postconviction petition alleg ing ineffe ctive assistance of his trial counsel was upheld on the
g round that defe ndant failed to file an aff idavit attesting to the vera city of the petition’s conten t s p u rs uant to section 122-1(b) of the PostConviction Hea

ring Act, since the absenc e of verific ation by an aff idavit permits the infere nce that the alleg ations are neither truthful nor broug ht in g ood faith and that infere nce allows dismiss al on the basis that the alleg ations are frivolous and patently without merit.

Dec ision Under
Review Appea l from the Circuit Court of L ake County
, No. 96-CF- 544; the Hon. J ohn T. Phill ips, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and Kathlee n J

. Hamill, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michael G. Ner

heim, State’s Attorney
, of Waukeg an (L awr ence M. Ba uer, Edwar d R. Psenicka, and J ay P aul Hoffma nn, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE SC H O ST O K d e li v e red the judgme nt of the court, with opinion.
J ustice Jorge nsen conc urre d in the judgme nt and opinion. Presiding Justice Bur

ke dissented, with opinion.

OP INION

¶ 1 The d ef

en d an t , Peter Hommerson, filed a pro se postconviction petition, alleg ing that trial counsel was i n ef

fe ctive at his trial, at which he was found guilty of the first-degree murders of Marvin and Kay L i ch tman. The defe ndant argued, inter alia
, that trial counsel

was ineffe ctive for failing to impeach prosec ution witness es , i n v es tigate and call other witnesses whose testimony would have ref uted the State’s wi t n es s es’ claims, prese nt exculpatory evidenc e, challeng e a sear ch war rant, and move to dismiss the charg es on speedy trial grounds. The defe ndant also cited counsel’s failure to repor t prosec utorial misconduct and alleg ed that both defe nse counsel and the prosec utor withheld evidenc e that would have established his innocenc e. R elying on this court’s opinion in Peo ple v. Carr
, 407 I ll. App. 3d 513, 515 (2011), the tr i al co urt summarily dismiss ed the petition solely beca use the petition lacke d a valid, notarized aff idavit attesting to the vera city of its contents, as require d by section 122-1(b) of the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1(b) (West 2010)). ¶ 2 The d ef

en d an t n o w ap p ea l s t h e d i s missal of his pro se postconviction petition, contending that in light of this court’s rec ent opinion in People v. Turner
, 2012 I L App (2d) 100819, which wa s published afte r Carr
, the lack of a notar ized section 122-1(b) a ffidavit is an inappropriate basis for a first-stag e dismiss al of a postconviction petition and there fore
t h e t ri al court err ed in dismiss ing his petition solely on this basis. The State urg es us t o adher e to our decision in Carr and to aff irm the dismiss al o f the defe ndant’s petition. We
ag ree with the State and ther efor e af firm the trial c ourt’s dec ision.

¶ 3 ANALYSI S ¶ 4 The defe ndant appea ls the dismiss al of his pro se postconviction petition at the first stag e of postconviction proce eding s. In dismiss ing the petition, the trial court cited Carr for ruling that a lack of not arization of an aff idavit verify

ing a pos tconviction petition is grounds for dismiss al of a petition at the first stag e of postconviction proce eding s. After Carr was issued, this court, in Turner
, ag ai n ex amined the dismiss al of a post conviction petit ion, but in the

-2-context of the second stage of postconviction proce eding s. This co u rt als o considere d

whether the State had forf eited the argum ent that the defe ndant’s noncompliance with the Act’s ve rification requireme nt supported the trial court’s dismi ssal. The Turner court he ld that the S tate had forf

eited any challeng e to the defective document. Turner
, 20 1 2 I L App (2d) 100819, ¶ 15. T h e Turner court’s conclusion was rooted in the notion that an invalid aff idavit is a nonjuris d i ctional proce dural defe ct that the State must raise or forf eit at the second stag e of postconviction proce eding s. Id. ¶ 46. In so ruling
, the Turner court noted that its de cision was consistent with othe r districts’ case law holding that an invalid aff idavit is not a basis for a

first-stag e dismissal. Id. ¶ 5 T h e S t at e co rr ec t l y as s er ts that the languag e in Turner is dicta and is there fore of questionable prec edential value. More importantly
, the Stat e i nsists that Turner is distinguishable from Carr
, wh i ch applies to first-stag e dismiss als based upon lack of notarization. Thus, we must determine whether to apply Carr

or Turner. ¶ 6 We turn first to a revie w of proce eding s u n d er t h e Ac t

. A defe ndant may initiate
proce eding s under the Act by alleg ing that, “in the proce eding s which resulted in his or her conviction[,] there was a substantial denial of his or her rig hts under the Constitution of the United Sta t es o r of the State of I llinois or both” (725 I L CS 5/122-1(a) (1) (West 2010)). Section 122-1(b) of the Act provides that “[t] he proce eding shall be commence d by filing with the cler

k of the court in which the conviction took place a petition (tog ether with a copy there of) verified by affidavit .” (Emphasis added.) 725 I L CS 5/122-1(b) (West 2010)

. Her e, the defe ndant acknow ledg es that when he fi l ed h i s p r o se petition it was not verifie d by a notarized aff

idavit. ¶ 7 In noncapital case s, the Ac t es t ab l i s h es a t h re e- s t age proce ss for adjudicatinga postconviction petition (725 I L CS 5/122-1 et seq. (West 2010)). People v. Jones
, 213 I ll. 2d 4 98, 503 (2004). In the first stag e, the trial court deter mines whether the postconvict i o n petition is “frivolous or is patently without mer it.” 725 I L CS 5/122-2.1(a )(2) (West 2010). The State does not have an opportunity to raise any arguments ag ainst the petition during this
summary revie w stag e. People v. Gaultney
, 174 I l l

. 2 d 410, 418 (1996). The trial court is require d, within 90 da

y s, to make an independe nt a ssessment in the summary revie w stag e as to whether the allegations in the petit ion, liberally construed and t aken as true, set f orth

a constitutional claim for relief

. The court is fore closed from eng ag ing in any fac t finding or any revie w of matters beyond the petition’s alleg ations. People v. Coleman
, 183 I ll. 2d 366, 380-81 (1998). To survive dismiss al at this stag e, the petition must prese nt only “the g ist of

a constitutional claim.” Gaultney
, 174 I ll. 2d at 418. I f the petition is found to be “fr ivolous”

or “pate ntly without merit,” the court “shall dismiss the petition in a written order
, specify ing the finding s of fac t and conclusions of law it made in rea ching its decision.” 725 I L CS 5/122- 2.1(a) (2) (West 2010). I f the petition survives the initial stag e, the court may appoint counsel
t o repr esent an indige nt defe ndant, and counsel will have an opportunity to amend t h e petition. 725 I L CS 5/122-4 (West 2010); People v. W atson , 187 I ll. 2d 448, 451 (1999). The State then may

file an a nswer or a motion to dism iss the petition. 725 I L CS 5/122-5 (West 2010); Gaultney
, 174 I ll. 2d at 418. I f the State does not file a motion to dismiss or if the trial
court denies the State’s motion, the petition will proce ed to the third stag e and the court will conduct an evidentiar

y hear ing on the merits of the petition. 725 I L CS 5/122-6 (West 2010).

-3-¶ 8 Her e, the trial court dismiss ed the petition without rende ring a deter mination of whether the petition was frivol o u s o r patently without merit. Instead, rely ing on Carr
, the court dismiss ed the pe tition for lack of nota rization. ¶ 9 In Carr
, the pro se postconviction petition alleg ed that the defendant pleaded guilty as

a result of ineffe cti v e as sistance of trial counsel. He attache d an aff idavit that was not notarized. The trial court dismiss ed the petition at the first stag e, and the defe ndant appea led. Citi ng the g ener al rule that “[a] trial court proper ly dismiss es a postconviction petition wher e the petition does not comply with the require ments of the Act,” we a ffirme d the first-stag e dismiss al bec au s e the defe ndant’s noncompliance with section 122-1(b) was a basis for denying relief under the Act. Carr
, 407 I ll. App. 3d at 515-16. Howeve r, we fo u n d an alternative rea son for affirming the di smissal, based on the petition’s failure to “ ‘set forth the re spects in which petitioner’s constitutional rights we re violate d.’ ” Id. at 516 (quoting 725 I L CS 5/ 122-2 (West 2008)). ¶ 10 People v. McCoy
, 2011 I L App (2d) 100424, followed Carr

. In that case , the trial court dismiss ed the postconviction petition at the first stag e, concluding that the petition failed to state the g ist of a claim of ineffe ctive assistance of counsel. The defe ndant appea led, and the State argued that the petition was not proper ly verifie d and that dismiss al was there fore
appropr iate. Specifica lly relying on Ca r r , we agree d with the State and aff irmed the dismiss al, holding that “[t] he lack of notariz at i o n o f d efendant’s verific ation is a basis to aff irm the petition’s dismis sal.” Id. ¶ 10. ¶ 11 Carr and McCoy are both consistent wi t h o u r s up re m e court’s decision in People v

. Boclair
, 202 I ll. 2d 89 (2002). In Boclair
, the supreme court emphasized that a petition could be dis missed at t he first stag e only i f it is “fr ivolous or patently without merit.” Id. at 101. Thus, to dismiss a postconvinction petition at the first stag e on a proce dural g round, such as untimeliness, would be improper. Id. H o w e v e r , wh e th e r a d e f e n d a nt’ s p o s tc o nv ic ti on petition is verifie d b y an affidavit goes to the very hear t of whether his alleg ations are frivolous or patently without merit. The purpose of requiring an aff idavit pursuant to section 122-1(b) is
to “conf irm[ ] that the alleg ations are broug ht truthfully and in g ood faith.” People v. Colli ns , 202 I ll. 2d 59, 67 (2002). I f the alleg ations are not v er i fi ed by an aff idavit, the logic al infere nce is that the alleg ations are neither truthful nor broug ht in g ood faith. Alleg ations that

are untruthful or are not broug ht in g ood faith are frivolous and patently without merit. Thus, wher e a defe ndant’s petition is not verifie d by a section 122-1(b) aff idavit, the trial court may proper ly dismiss the petition on that basis. ¶ 12 We also note that Carr and McCoy are not inconsistent with our supreme court’s de cision in Coleman

. In Coleman
, as stated above, the supreme court stated that a tria l court should take as true the alleg at i o n s that a defe ndant makes in his petition. Coleman
, 183 I ll. 2d at 380-81. In that case , as the supreme court did not comment on the defe ndant’s section 122- 1(b) affidavit, it can be i nfer red that t h e affidavit compli ed with the Act. Thus, in context, Coleman provides that, wher e a defe ndant files a proper section 122-1(b) aff idavit swea

ring that his alleg ations are true, the trial court should in fac t take those alleg ations as true. Her e,

as the defe ndant di d not file a proper section 122-1(b) aff idavit, the trial court was not require d to and should not ha ve taken the defe ndant’s alleg ations as being truthfully made.

-4-¶ 13 Cases that have reje cted Carr and Mc Co y ar e b ased on the premise that the af fidavit

re quirement of section 122-1(b) is nothing more than a proce dural requirem en t o r a “tec hnicality .” S ee People v. Stephens
, 2012 I L App (1st) 110296, ¶ 17; People v. Parker
, 2012 I L App (1st) 1 0 1 8 0 9
, ¶¶ 74-77; Turner
, 2012 I L App (2d) 100819, ¶ 31; People v. Hende rson , 2011 I L App (1st) 090923, ¶ 35; People v. W ilborn
, 2011 I L App (1st) 092802, ¶ 72; People v. Terry
, 2012 I L App (4th) 100205, ¶ 23. The analy sis in those case s is flawe d for at least two rea sons. First, those case s rende r the section 122-1(b) aff idavit require ment surplusag e. This runs afoul o f the well-e stablished principle of statutory construction that require s a statute to be interpre ted such that none of its parts are rende red mere surplusag e. Solon v. Midwest Medic al Rec ords A s s’n
, 236 I ll. 2d 433, 440-41 (2010). Second, by evisce rating the requirement that a defenda nt verify that his alleg ations are n o t fa b ri cate d, those case s essentially allow a defe ndant to alleg e any thing that guara

ntees that his petition will proce ed to the second stag e under the Act. In other terms, und er t h at ca s e l aw, a trial
court cannot consider whether the defe ndant is willing to verify that his alleg ations are true until the second stag e of the proce eding s. W e b eli eve that this thwarts the intent of the leg islature, as petitions that it intended for dismiss al at the first stag e–those that are frivolous

or patently without merit when only the alleg ations gro u n d ed in truth are considere d–are advanc ed to the sec ond stag e.

¶ 14 CONCLUSI ON ¶ 15 Acc ording ly
, as we believe that Carr and McCoy are better rea soned and more c onsistent with supreme court prec edent and the purposes of the Act, we continue to adher e to those authorities. We there fore aff irm the trial court’s decision to dismiss the defe ndant’s petition due to the defe ndant’s failure to verify his petition with a proper section 122-1(b) aff idavit.

¶ 16 Affir

med.

¶ 17 PRES I DI

NG JUS TI CE BURKE, dissenting

. ¶ 18 I respe ctfully dissent. As I wr o t e i n T u r n er , a d ef

en d an t ’s fa i l u re to verify his postconviction peti t i o n wi th a section 122-1(b) aff idavit is a nonjurisdictional proce dural defe ct. Turner
, 2012 I L App (2d) 100819, ¶ 42. Today
, the majority elevates a dismiss al for the lack of such an aff

idavit to a decision on the merits of the petition. Pursuant to this holding, a peti t i on, no matter how patently meritorious, is deeme d frivolous or patently without merit simpl y

beca use an inc arc erated def

endant f ailed to g arne r a nota

ry seal. ¶ 19 The supreme court has stated that, since most petitions are initially draf ted by defe ndants with littl e le gal knowledg e or training
, the t hreshold for first-stag e survival is low. People

v. Hodges
, 234 I ll. 2d l, 9 (2009). Fur ther, at the first stag e, the trial court evaluates only the merits o f t he petiti on’s s ubstantive claims and it rese rves for the second stag e whether the petition complies with proce dural rules. People v. Perkins
, 229 I ll. 2d 34, 42 (2 0 0 7 ). T he majority holds that a petition without a notarized aff idavit contains absolutely no revie wable substantive claims. This runs co n t ra ry to the supreme court’s relax ation of the threshold require ments for a petition to advanc e to the second stag e, an d co m pletely disreg ards the

-5-prac tical considerations of prison inmates attempting to obtain notarized aff idavi t s

. See Hende rson , 2011 I L

App (1st) 090923, ¶ 36. ¶ 20 The majority finds the analy ses in Turner
, Hende rson , et al. flawe d for two rea sons. F irst, the majority finds that the holdings in those case s rende r the section 122-1(b) aff idavit require ment surplusag e

. H o w e v e r , th is is in a c c u r a te, as those case s simply shift consideration of the aff idavit require ment to the second stag e, wher e any defic iency in the petition may be

rec t i fi ed o r the petition may be dismiss ed. Since the majority does not hold that this require ment is jurisdictional (see People v. Nitz
, 2011 I L App (2d) 100031, ¶ 12), there is no bar to e nforc ing the require ment at the second stag e. This c erta inly would comply

with the
supreme c ourt’s direc tive that a trial court should evaluate onl y the petit ion’s merits at the first stag e of the proce eding s. See Perkins , 229 I ll. 2d at 42. ¶ 21 Second, the majority finds that those case s evisce rate the s ec t i o n 1 2 2 -1 (b ) affidavit require ment, allowing a defe ndant to alleg e any thing th at guara

ntees that the petition will
proce ed to the second stag e. In Hodges
, the supreme court addre ssed this exact conce rn when it rec og nized that the low threshold for first-stag e revie w does not absolve a pro se petitioner from providing fac tual detail surrounding the alleg ed constitutional violation. Hodges
, 234 I ll. 2d at 10. Fur

ther, fac tual all ega t i o n s in a petition must be supported by section 122-2 aff idavits. 725 I L CS 5/122-2 (West 2010). A petition is subject to first-stag e dismiss al if not supported by such aff

idavits unless the alleg ations stand uncontra dict ed and are clea rly supported by the rec ord. Carr
, 407 I ll. App. 3d at 516 (citing People v. Johnson
, 183 I ll. 2d 176, 191 (1998))

. There fore
, a petition will not simply marc h forwa rd to the second stag e on the basis of spurious unsupported a lleg ations. ¶ 22 I n B o cl a i r , t h e s up re m e court deter mined that the issue of the untimelin es s o f a postconviction petition should be left for the State to raise during second- stag e proce eding s. Boclair
, 202 I ll. 2d at 102. The court found th at a first-stag e dismiss al would usurp the State’s prer og ative to proce ed on the petition de spite proce dural flaws. Id. L ikewise, in the
prese nt c ase, the State ce rtainly would have the prer og ative to pr ocee d on the merits of the petition despite the lack of a sec tion 122-1(b) a ffidavit. ¶ 23 Fur

ther, the court in Boclair noted that the sum m ar y d i s m i s sal of a petition claiming
actua l i n n o cenc e on the proce dural g round of untimeliness could lead to a miscarr iag e of justice. Id. The court stated, “Althoug h our criminal justice sy stem needs finality in criminal litigation and judgme nts, it should not come at the expense of justice and fairne ss.” Id. I t is difficult to see howa petition r aising a cognizable c laim of actua l innoc ence , but failingto include a section 122-1(b) aff idavit, should be trea

ted differ ently than the fac ially untimely petitions in Boclair

. ¶ 24 Considering the purposes of the Act and the supreme court’s direc tives conce rning firststag e revie w, the lack of a section 122-1(b) aff idavit is a nonjurisdictional proce dural defe ct that ca n b e addre ssed during second-stag e procee dings. To hold otherwise would result i n

a patently meritorious petition being dismiss ed on the merits solely for want of a section 122- 1(b) a ffidavit. This would truly eleva te form ove r substance to new heights.

-6-