                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




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




Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      PETER HOMMERSON, Defendant-Appellant.



District & No.               Second District
                             Docket No. 2-11-0805


Filed                        January 18, 2013


Held                         The summary dismissal of defendant’s pro se postconviction petition
(Note: This syllabus         alleging ineffective assistance of his trial counsel was upheld on the
constitutes no part of       ground that defendant failed to file an affidavit attesting to the veracity
the opinion of the court     of the petition’s contents pursuant to section 122-1(b) of the Post-
but has been prepared        Conviction Hearing Act, since the absence of verification by an affidavit
by the Reporter of           permits the inference that the allegations are neither truthful nor brought
Decisions for the            in good faith and that inference allows dismissal on the basis that the
convenience of the           allegations are frivolous and patently without merit.
reader.)


Decision Under               Appeal from the Circuit Court of Lake County, No. 96-CF-544; the Hon.
Review                       John T. Phillips, Judge, presiding.



Judgment                     Affirmed.
Counsel on                  Thomas A. Lilien and Kathleen J. Hamill, both of State Appellate
Appeal                      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 SCHOSTOK delivered 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
        exculpatory evidence, challenge a search warrant, and move to dismiss the 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 Carr for 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. After Carr 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 any arguments 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 “patently without merit,” the court “shall dismiss the 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 patently without 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 proper section 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 majority finds 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, this is inaccurate, 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 first-
       stage 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 patently meritorious 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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