                                  Illinois Official Reports

                                          Appellate Court



                             People v. McCoy, 2014 IL App (2d) 100424-B



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DANIEL K. McCOY, Defendant-Appellant.


District & No.               Second District
                             Docket No. 2-10-0424


Filed                        September 29, 2014

                             Where the appellate court initially affirmed the dismissal of
Held
                             defendant’s postconviction petition on the ground that the petition
(Note: This syllabus
                             lacked a proper verification and the Illinois Supreme Court ordered
constitutes no part of the
opinion of the court but     the appellate court to vacate the affirmance and reconsider the appeal
has been prepared by the     in light of the holding in Hommerson that the lack of a proper
Reporter of Decisions        verification is not a permissible basis for a first-stage dismissal, the
for the convenience of       appellate court held that the petition was substantively frivolous and
the reader.)                 patently without merit and again affirmed the first-stage dismissal,
                             since the allegations that defendant was denied effective assistance of
                             counsel, that the police lacked proper evidence, misplaced or
                             overlooked evidence and coerced his guilty plea, that the State’s
                             Attorney manufactured evidence, and that law enforcement officers
                             broke into the apartment of defendant’s wife and told her that their
                             children would grow up in foster homes if she did not provide a
                             statement they wanted had to be considered totally meritless,
                             especially when those allegations contradicted defendant’s responses
                             to the court’s questions at his plea hearing.

Decision Under               Appeal from the Circuit Court of Boone County, No. 07-CF-524; the
Review                       Hon. Fernando L. Engelsma, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Thomas A. Lilien and Bruce Kirkham, both of State Appellate
     Appeal                    Defender’s Office, of Elgin, for appellant.

                               Michelle J. Courier, State’s Attorney, of Belvidere (Lawrence M.
                               Bauer and Victoria E. Jozef, both of State’s Attorneys Appellate
                               Prosecutor’s Office, of counsel), for the People.



     Panel                     JUSTICE JORGENSEN delivered the judgment of the court, with
                               opinion.
                               Justices Schostok and Hudson concurred in the judgment and opinion.




                                                OPINION

¶1         Defendant, Daniel K. McCoy, appealed the first-stage dismissal of his petition under the
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)); he asserted that he
       stated the gist of a claim of ineffective assistance of counsel and that the dismissal was thus
       error. The State responded that defendant did not properly verify the petition and that dismissal
       was therefore mandatory. We agreed and affirmed the dismissal. People v. McCoy, 2011 IL
       App (2d) 100424. The supreme court has now ordered us to vacate the affirmance and
       reconsider the appeal in light of People v. Hommerson, 2014 IL 115638, in which it held that
       the lack of a proper verification is not a permissible basis for a first-stage dismissal. People v.
       McCoy, No. 113490 (Ill. Mar. 26, 2014) (supervisory order). We now hold that defendant’s
       petition was substantively frivolous and patently without merit. We therefore affirm the
       dismissal.

¶2                                         I. BACKGROUND
¶3         A grand jury indicted defendant on a count of armed robbery (720 ILCS 5/18-2(a) (West
       2006)) (the taking at knifepoint of $65, a large stuffed-crust pizza, and an order of hot wings)
       and two counts of burglary (720 ILCS 5/19-1(a) (West 2006)). The court accepted a negotiated
       guilty plea from defendant on September 26, 2008. At that hearing, the court asked defendant
       whether, to induce him to accept the plea agreement, anyone had made any promises other than
       those in the plea agreement or had done anything to coerce him. Defendant agreed that there
       had been no additional promises or coercion. For its part, the State dismissed the burglary
       counts. The court sentenced defendant to 10 years’ imprisonment. He later filed a “Motion for
       Reduction of Sentence” that the court properly denied as untimely. We dismissed his appeal.
       See People v. McCoy, No. 2-09-0068 (2010) (unpublished order under Supreme Court Rule
       23).
¶4         On January 26, 2010, defendant filed a petition under the Act. In it, he asserted five claims.



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¶5         First was a claim of ineffective assistance of counsel. Most of the facts defendant alleged
       were failures to review evidence and interview potential witnesses. Read charitably, these
       could be taken to suggest that counsel conveyed to defendant that counsel was not prepared to
       present exculpatory evidence at trial despite its existence. Further, defendant alleged,
       “[counsel] led [him] to believe, that if [he] didn’t plead guilty, the detectives [were] going to
       incarcerate [his] wife for harboring a fu[g]itive and [the Department of Children and Family
       Services (DCFS) would] take our children.”1
¶6         Second was a claim of denial of due process based on an assertion that the police lacked
       proper evidence against him. Read very charitably, these allegations could be taken to assert
       that the police coerced defendant’s guilty plea by exerting improper pressure on witnesses to
       make statements implicating him. Defendant asserted that he had given counsel letters from
       two witnesses in which they recanted statements they had made to the police and described
       pressure placed on them to make false statements.
¶7         Third was “[t]he misplac[ing] and overlooking of evidence.” Defendant implied that the
       misconduct was on the part of the police or the State’s Attorney.
¶8         Fourth was prosecutorial misconduct. This claim was based on the assertion that the State’s
       Attorney was aware of the manufacturing of evidence.
¶9         Fifth was misconduct by law-enforcement officers. Defendant again alleged that officers
       pressured witnesses to give false statements. In particular, officers broke into his wife’s
       apartment, made sexually harassing remarks, and told her that “our children would grow up in
       foster homes if she didn’t write her Statement the way they wanted it.”
¶ 10       He attached a verification page that he signed but did not have notarized. The next page,
       however, is his properly notarized affidavit.
¶ 11       The court summarily dismissed the petition as without an arguable basis in law or fact; the
       court ruled that defendant’s allegations, if taken as true, did not establish substandard
       performance. Defendant timely appealed.

¶ 12                                           II. ANALYSIS
¶ 13       On appeal, defendant asserts that his petition stated the gist of a claim that counsel was
       ineffective. The State asserts that the petition’s lack of proper verification is a sufficient basis
       to affirm the dismissal. Alternatively, it asserts (1) that defendant has failed to overcome the
       presumption of sound strategy that attached to counsel’s choices, (2) that his claim of coercion
       is contradicted by his statement at the plea hearing that no one had made any undisclosed
       promises or threats to him, and (3) that his claim that counsel failed to investigate possible
       witnesses fails because defendant did not provide affidavits from those witnesses showing
       what they would have told counsel.
¶ 14       We originally agreed with the State that the absence of a proper verification was a
       sufficient basis to affirm the dismissal. However, now, based on the rule in Hommerson, we
       must reject that conclusion. Section 122-1(b) of the Act provides that “[t]he proceeding shall
       be commenced by filing *** a petition *** verified by affidavit.” 725 ILCS 5/122-1(b) (West
       2010). This court has held that affidavits associated with petitions under the Act must be

           1
            The statute on harboring, concealing, or aiding a fugitive as then written did not allow prosecution
       of a spouse. 720 ILCS 5/31-5 (West 2006).

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       notarized to be valid. People v. Niezgoda, 337 Ill. App. 3d 593, 597 (2003). Defendant’s
       verification was not notarized. However, at the first stage, the trial court must “consider[ ] the
       petition’s ‘substantive virtue’ rather than its procedural compliance,” and proper verification is
       a matter of procedural compliance only. Hommerson, 2014 IL 115638, ¶¶ 7, 11. Lack of
       notarized verification is thus not a basis for a first-stage dismissal. Hommerson, 2014 IL
       115638, ¶ 11.
¶ 15        We now turn to the merits of defendant’s claims. We conclude that they lack merit. “[A]
       pro se petition seeking postconviction relief under the Act for a denial of constitutional rights
       may be *** dismissed [at the first stage] as frivolous or patently without merit only if the
       petition has no arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 11-12
       (2009). A pro se petition can be sufficient to survive first-stage dismissal “even if the petition
       lacks formal legal arguments or citations to legal authority.” Hodges, 234 Ill. 2d at 9.
       Moreover, the supreme court has “required only that a pro se defendant allege enough facts to
       make out a claim that is arguably constitutional for purposes of invoking the Act.” Hodges, 234
       Ill. 2d at 9. Our review of a first-stage dismissal is de novo. Hodges, 234 Ill. 2d at 9.
¶ 16        The standard for a claim of ineffective assistance of counsel in a guilty-plea setting is that
       of Strickland v. Washington, 466 U.S. 668, 687-88 (1984): the “defendant must establish that
       counsel’s performance fell below an objective standard of reasonableness and the defendant
       was prejudiced by counsel’s substandard performance.” People v. Hall, 217 Ill. 2d 324, 335
       (2005). “An attorney’s conduct is deficient if the attorney failed to ensure that the defendant’s
       guilty plea was entered voluntarily and intelligently.” Hall, 217 Ill. 2d at 335. “To establish the
       prejudice *** the defendant must show there is a reasonable probability that, absent counsel’s
       errors, the defendant would have pleaded not guilty and insisted on going to trial.” Hall, 217
       Ill. 2d at 335. Doing this requires that “the defendant’s claim *** be accompanied by either a
       claim of innocence or the articulation of a plausible defense that could have been raised at
       trial.” Hall, 217 Ill. 2d at 335-36. “[P]rejudice to [the defendant] is *** measured by the
       likelihood that his plea was induced by [counsel’s] deficiency.” People v. Robinson, 157 Ill.
       App. 3d 622, 627 (1987).
¶ 17        The general rule is that a defendant must support a petition’s allegations by attaching
       affidavits, records, or other evidence, or else explain the absence of such evidence, and that the
       unexplained absence of such evidence is fatal to the petition. People v. Collins, 202 Ill. 2d 59,
       66-67 (2002). An exception to this rule is that, where a defendant’s claims are based on what
       occurred in consultations between the defendant and his attorney, no explicit explanation for
       the lack of such evidence is necessary. Hall, 217 Ill. 2d at 333-34; see also People v. Williams,
       47 Ill. 2d 1, 4 (1970).
¶ 18        The rule in Hall and Williams–that a defendant need not provide independent support for a
       claim grounded in statements between defense counsel and the defendant–is not relevant to the
       portion of defendant’s claim that was grounded in allegations that counsel failed to seek out
       exculpatory evidence. Defendant implied that counsel’s behavior led defendant to believe that
       he could not have a fair trial that presented all the available exculpatory evidence. However, no
       prejudice to defendant could have existed unless exculpatory evidence did exist. Defendant has
       failed to provide such evidence, so this portion of the claim must fail. See People v. Jones, 399
       Ill. App. 3d 341, 371 (2010) (a claim that counsel was ineffective for failing to call a witness
       must be supported by that witness’s affidavit). Further, in terms of prejudice, defendant failed
       to allege that he would have pled not guilty and insisted on going to trial. The factual basis for

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       defendant’s plea reflects that the codefendant would have testified to defendant’s participating
       in the crime. In addition, without the plea agreement, defendant would have faced the two
       separate burglary charges that were dismissed as part of the plea agreement. The record simply
       belies any assertion that defendant would not have pled guilty.
¶ 19       The remaining part of defendant’s claim is that “[counsel] led [him] to believe that, if [he]
       didn’t plead guilty, the detectives [were] going to incarcerate [his] wife for harboring a
       fu[g]itive and [DCFS would] take our children.” This allegation cannot be understood as
       anything but a claim of a coerced guilty plea. The State is correct to argue that defendant’s
       statement at the plea hearing–that no one coerced him–contradicts this portion of his
       ineffective-assistance claim. A postconviction petition that, without explanation, contradicts a
       defendant’s responses to the court’s questions concerning the voluntariness of the plea must be
       treated as meritless. See Robinson, 157 Ill. App. 3d at 629 (“If a plea of guilty is to have any
       binding effect *** [the] admonitions given by the circuit court *** and acknowledged by
       petitioner must be held to overwhelm [the] petitioner’s current assertion that he entered his
       plea involuntarily.”). Thus, this claim is without merit.

¶ 20                                      III. CONCLUSION
¶ 21      For the reasons stated, we affirm the dismissal of defendant’s postconviction petition.

¶ 22      Affirmed.




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