ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Hommerson, 2013 IL App (2d) 110805

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

PETER HOMMERSON, Defendant-Appellant.

District & No. Second District

Docket No. 2-11-0805

Filed January 18, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

The summary dismissal of defendant’s pro se postconviction petition

alleging ineffective assistance of his trial counsel was upheld on the

ground that defendant failed to file an affidavit attesting to the veracity

of the petition’s contents pursuant to section 122-1(b) of the PostConviction Hearing Act, since the absence of verification by an affidavit

permits the inference that the allegations are neither truthful nor brought

in good faith and that inference allows dismissal on the basis that the

allegations are frivolous and patently without merit.

Decision Under 

Review

Appeal from the Circuit Court of Lake County, No. 96-CF-544; the Hon.

John T. Phillips, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate

Defender’s Office, of Elgin, for appellant. 

Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M.

Bauer, Edward R. Psenicka, and Jay Paul Hoffmann, all of State’s

Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE SCHOSTOKdelivered the judgment of the court, with opinion.

Justice Jorgensen concurred in the judgment and opinion.

Presiding Justice Burke dissented, with opinion.

OPINION

¶ 1 The defendant, Peter Hommerson, filed a pro se postconviction petition, alleging that

trial counsel was ineffective at his trial, at which he was found guilty of the first-degree

murders of Marvin and Kay Lichtman. The defendant argued, inter alia, that trial counsel

was ineffective for failing to impeach prosecution witnesses, investigate and call other

witnesses whose testimony would have refuted the State’s witnesses’ claims, present

exculpatoryevidence, challenge a search warrant, and move to dismissthe charges on speedy

trial grounds. The defendant also cited counsel’s failure to report prosecutorial misconduct

and alleged that both defense counsel and the prosecutor withheld evidence that would have

established his innocence. Relying on this court’s opinion in People v. Carr, 407 Ill. App.

3d 513, 515 (2011), the trial court summarily dismissed the petition solely because the

petition lacked a valid, notarized affidavit attesting to the veracity of its contents, as required

by section 122-1(b) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(b) (West

2010)).

¶ 2 The defendant now appeals the dismissal of his pro se postconviction petition,

contending that in light of this court’s recent opinion in People v. Turner, 2012 IL App (2d)

100819, which was published after Carr, the lack of a notarized section 122-1(b) affidavit

is an inappropriate basis for a first-stage dismissal of a postconviction petition and therefore

the trial court erred in dismissing his petition solely on this basis. The State urges us to

adhere to our decision in Carr and to affirm the dismissal of the defendant’s petition. We

agree with the State and therefore affirm the trial court’s decision.

¶ 3 ANALYSIS

¶ 4 The defendant appeals the dismissal of his pro se postconviction petition at the first stage

of postconviction proceedings. In dismissing the petition, the trial court cited Carrfor ruling

that a lack of notarization of an affidavit verifying a postconviction petition is grounds for

dismissal of a petition at the first stage of postconviction proceedings. AfterCarr was issued,

this court, in Turner, again examined the dismissal of a postconviction petition, but in the

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context of the second stage of postconviction proceedings. This court also considered

whether the State had forfeited the argument that the defendant’s noncompliance with the

Act’s verification requirement supported the trial court’s dismissal. The Turner court held

that the State had forfeited any challenge to the defective document. Turner, 2012 IL App

(2d) 100819, ¶ 15. The Turner court’s conclusion was rooted in the notion that an invalid

affidavit is a nonjurisdictional procedural defect that the State must raise or forfeit at the

second stage of postconviction proceedings. Id. ¶ 46. In so ruling, the Turner court noted that

its decision was consistent with other districts’ case law holding that an invalid affidavit is

not a basis for a first-stage dismissal. Id.

¶ 5 The State correctly asserts that the language in Turner is dicta and is therefore of

questionable precedential value. More importantly, the State insists that Turner is

distinguishable from Carr, which applies to first-stage dismissals based upon lack of

notarization. Thus, we must determine whether to apply Carr or Turner.

¶ 6 We turn first to a review of proceedings under the Act. A defendant may initiate

proceedings under the Act by alleging that, “in the proceedings which resulted in his or her

conviction[,] there was a substantial denial of his or her rights under the Constitution of the

United States or of the State of Illinois or both” (725 ILCS 5/122-1(a)(1) (West 2010)).

Section 122-1(b) of the Act provides that “[t]he 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.” (Emphasis added.) 725 ILCS 5/122-1(b) (West 2010). Here,

the defendant acknowledges that when he filed his pro se petition it was not verified by a

notarized affidavit.

¶ 7 In noncapital cases, the Act establishes a three-stage process for adjudicating a

postconviction petition (725 ILCS 5/122-1 et seq. (West 2010)). People v. Jones, 213 Ill. 2d

498, 503 (2004). In the first stage, the trial court determines whether the postconviction

petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010).

The State does not have an opportunity to raise anyarguments against the petition during this

summary review stage. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). The trial court is

required, within 90 days, to make an independent assessment in the summary review stage

as to whether the allegations in the petition, liberally construed and taken as true, set forth

a constitutional claim for relief. The court is foreclosed from engaging in any fact finding or

any review of matters beyond the petition’s allegations. People v. Coleman, 183 Ill. 2d 366,

380-81 (1998). To survive dismissal at this stage, the petition must present only “the gist of

a constitutional claim.” Gaultney, 174 Ill. 2d at 418. If the petition is found to be “frivolous”

or “patentlywithout merit,” the court “shall dismissthe petition in a written order, specifying

the findings of fact and conclusions of law it made in reaching its decision.” 725 ILCS 5/122-

2.1(a)(2) (West 2010). If the petition survives the initial stage, the court may appoint counsel

to represent an indigent defendant, and counsel will have an opportunity to amend the

petition. 725 ILCS 5/122-4 (West 2010); People v. Watson, 187 Ill. 2d 448, 451 (1999). The

State then may file an answer or a motion to dismiss the petition. 725 ILCS 5/122-5 (West

2010); Gaultney, 174 Ill. 2d at 418. If the State does not file a motion to dismiss or if the trial

court denies the State’s motion, the petition will proceed to the third stage and the court will

conduct an evidentiary hearing on the merits of the petition. 725 ILCS 5/122-6 (West 2010).

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¶ 8 Here, the trial court dismissed the petition without rendering a determination of whether

the petition was frivolous or patently without merit. Instead, relying on Carr, the court

dismissed the petition for lack of notarization.

¶ 9 In Carr, the pro se postconviction petition alleged that the defendant pleaded guilty as

a result of ineffective assistance of trial counsel. He attached an affidavit that was not

notarized. The trial court dismissed the petition at the first stage, and the defendant appealed.

Citing the general rule that “[a] trial court properly dismisses a postconviction petition where

the petition does not comply with the requirements of the Act,” we affirmed the first-stage

dismissal because the defendant’s noncompliance with section 122-1(b) was a basis for

denying relief under the Act. Carr, 407 Ill. App. 3d at 515-16. However, we found an

alternative reason for affirming the dismissal, based on the petition’s failure to “ ‘set forth

the respects in which petitioner’s constitutional rights were violated.’ ” Id. at 516 (quoting

725 ILCS 5/122-2 (West 2008)).

¶ 10 People v. McCoy, 2011 IL App (2d) 100424, followed Carr. In that case, the trial court

dismissed the postconviction petition at the first stage, concluding that the petition failed to

state the gist of a claim of ineffective assistance of counsel. The defendant appealed, and the

State argued that the petition was not properly verified and that dismissal was therefore

appropriate. Specifically relying on Carr, we agreed with the State and affirmed the

dismissal, holding that “[t]he lack of notarization of defendant’s verification is a basis to

affirm the petition’s dismissal.” Id. ¶ 10.

¶ 11 Carr and McCoy are both consistent with our supreme court’s decision in People v.

Boclair, 202 Ill. 2d 89 (2002). In Boclair, the supreme court emphasized that a petition could

be dismissed at the first stage only if it is “frivolous or patently without merit.” Id. at 101.

Thus, to dismiss a postconvinction petition at the first stage on a procedural ground, such as

untimeliness, would be improper. Id. However,whether a defendant’s postconviction petition

is verified by an affidavit goes to the very heart of whether his allegations are frivolous or

patently without merit. The purpose of requiring an affidavit pursuant to section 122-1(b) is

to “confirm[ ] that the allegations are brought truthfully and in good faith.” People v. Collins,

202 Ill. 2d 59, 67 (2002). If the allegations are not verified by an affidavit, the logical

inference is that the allegations are neither truthful nor brought in good faith. Allegations that

are untruthful or are not brought in good faith are frivolous and patentlywithout merit. Thus,

where a defendant’s petition is not verified by a section 122-1(b) affidavit, the trial court may

properly dismiss the petition on that basis.

¶ 12 We also note that Carr and McCoy are not inconsistent with our supreme court’s decision

in Coleman. In Coleman, as stated above, the supreme court stated that a trial court should

take as true the allegations that a defendant makes in his petition. Coleman, 183 Ill. 2d at

380-81. In that case, as the supreme court did not comment on the defendant’s section 122-

1(b) affidavit, it can be inferred that the affidavit complied with the Act. Thus, in context,

Coleman provides that, where a defendant files a propersection 122-1(b) affidavit swearing

that his allegations are true, the trial court should in fact take those allegations as true. Here,

as the defendant did not file a proper section 122-1(b) affidavit, the trial court was not

required to and should not have taken the defendant’s allegations as being truthfully made.

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¶ 13 Cases that have rejected Carr and McCoy are based on the premise that the affidavit

requirement of section 122-1(b) is nothing more than a procedural requirement or a

“technicality.” See People v. Stephens, 2012 IL App (1st) 110296, ¶ 17; People v. Parker,

2012 IL App (1st) 101809, ¶¶ 74-77; Turner, 2012 IL App (2d) 100819, ¶ 31; People v.

Henderson, 2011 IL App (1st) 090923, ¶ 35; People v. Wilborn, 2011 IL App (1st) 092802,

¶ 72; People v. Terry, 2012 IL App (4th) 100205, ¶ 23. The analysis in those cases is flawed

for at least two reasons. First, those cases render the section 122-1(b) affidavit requirement

surplusage. This runs afoul of the well-established principle of statutory construction that

requires a statute to be interpreted such that none of its parts are rendered mere surplusage.

Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440-41 (2010). Second, by

eviscerating the requirement that a defendant verify that his allegations are not fabricated,

those cases essentially allow a defendant to allege anything that guarantees that his petition

will proceed to the second stage under the Act. In other terms, under that case law, a trial

court cannot consider whether the defendant is willing to verify that his allegations are true

until the second stage of the proceedings. We believe that this thwarts the intent of the

legislature, as petitions that it intended for dismissal at the first stage–those that are frivolous

or patently without merit when only the allegations grounded in truth are considered–are

advanced to the second stage.

¶ 14 CONCLUSION

¶ 15 Accordingly, as we believe that Carr and McCoy are better reasoned and more consistent

with supreme court precedent and the purposes of the Act, we continue to adhere to those

authorities. We therefore affirm the trial court’s decision to dismiss the defendant’s petition

due to the defendant’s failure to verify his petition with a proper section 122-1(b) affidavit.

¶ 16 Affirmed.

¶ 17 PRESIDING JUSTICE BURKE, dissenting.

¶ 18 I respectfully dissent. As I wrote in Turner, a defendant’s failure to verify his

postconviction petition with a section 122-1(b) affidavit is a nonjurisdictional procedural

defect. Turner, 2012 IL App (2d) 100819, ¶ 42. Today, the majority elevates a dismissal for

the lack of such an affidavit to a decision on the merits of the petition. Pursuant to this

holding, a petition, no matter how patently meritorious, is deemed frivolous or patently

without merit simply because an incarcerated defendant failed to garner a notary seal.

¶ 19 The supreme court has stated that, since most petitions are initially drafted by defendants

with little legal knowledge or training, the threshold for first-stage survival is low. People

v. Hodges, 234 Ill. 2d l, 9 (2009). Further, at the first stage, the trial court evaluates only the

merits of the petition’s substantive claims and it reserves for the second stage whether the

petition complies with procedural rules. People v. Perkins, 229 Ill. 2d 34, 42 (2007). The

majority holds that a petition without a notarized affidavit contains absolutely no reviewable

substantive claims. This runs contrary to the supreme court’s relaxation of the threshold

requirements for a petition to advance to the second stage, and completely disregards the

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practical considerations of prison inmates attempting to obtain notarized affidavits. See

Henderson, 2011 IL App (1st) 090923, ¶ 36.

¶ 20 The majorityfinds the analyses in Turner, Henderson, et al.flawed for two reasons. First,

the majority finds that the holdings in those cases render the section 122-1(b) affidavit

requirement surplusage.However,thisisinaccurate, as those cases simply shift consideration

of the affidavit requirement to the second stage, where any deficiency in the petition may be

rectified or the petition may be dismissed. Since the majority does not hold that this

requirement is jurisdictional (see People v. Nitz, 2011 IL App (2d) 100031, ¶ 12), there is no

bar to enforcing the requirement at the second stage. This certainly would comply with the

supreme court’s directive that a trial court should evaluate only the petition’s merits at the

first stage of the proceedings. See Perkins, 229 Ill. 2d at 42.

¶ 21 Second, the majority finds that those cases eviscerate the section 122-1(b) affidavit

requirement, allowing a defendant to allege anything that guarantees that the petition will

proceed to the second stage. In Hodges, the supreme court addressed this exact concern when

it recognized that the low threshold for first-stage review does not absolve a pro se petitioner

from providing factual detail surrounding the alleged constitutional violation. Hodges, 234

Ill. 2d at 10. Further, factual allegations in a petition must be supported by section 122-2

affidavits. 725 ILCS 5/122-2 (West 2010). A petition is subject to first-stage dismissal if not

supported by such affidavits unless the allegations stand uncontradicted and are clearly

supported by the record. Carr, 407 Ill. App. 3d at 516 (citing People v. Johnson, 183 Ill. 2d

176, 191 (1998)). Therefore, a petition will not simply march forward to the second stage on

the basis of spurious unsupported allegations.

¶ 22 In Boclair, the supreme court determined that the issue of the untimeliness of a

postconviction petition should be left for the State to raise during second-stage proceedings.

Boclair, 202 Ill. 2d at 102. The court found that a first-stage dismissal would usurp the

State’s prerogative to proceed on the petition despite procedural flaws. Id. Likewise, in the

present case, the State certainly would have the prerogative to proceed on the merits of the

petition despite the lack of a section 122-1(b) affidavit.

¶ 23 Further, the court in Boclair noted that the summary dismissal of a petition claiming

actual innocence on the procedural ground of untimeliness could lead to a miscarriage of

justice. Id. The court stated, “Although our criminal justice system needs finality in criminal

litigation and judgments, it should not come at the expense of justice and fairness.” Id. It is

difficult to see how a petition raising a cognizable claim of actual innocence, but failing to

include a section 122-1(b) affidavit, should be treated differently than the facially untimely

petitions in Boclair.

¶ 24 Considering the purposes of the Act and the supreme court’s directives concerning firststage review, the lack of a section 122-1(b) affidavit is a nonjurisdictional procedural defect

that can be addressed during second-stage proceedings. To hold otherwise would result in

a patentlymeritorious petition being dismissed on the merits solely for want of a section 122-

1(b) affidavit. This would truly elevate form over substance to new heights.

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