                                  Illinois Official Reports

                                          Supreme Court




                                People v. Hommerson, 2014 IL 115638




Caption in Supreme           THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PETER
Court:                       HOMMERSON, Appellant.



Docket No.                   115638



Filed                        January 24, 2014



Held                         The absence of the statutorily required verification affidavit from a
(Note: This syllabus         postconviction petition is a procedural defect not to be dealt with until
constitutes no part of the   the second stage of the proceeding; this defect does not support a
opinion of the court but     first-stage dismissal of a petition as frivolous or patently without
has been prepared by the     merit.
Reporter of Decisions
for the convenience of
the reader.)



Decision Under               Appeal from the Appellate Court for the Second District; heard in that
Review                       court on appeal from the Circuit Court of Lake County, the Hon. John
                             T. Phillips, Judge, presiding.




Judgment                     Judgments reversed.
     Counsel on                Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien,
     Appeal                    Deputy Defender, and Kathleen J. Hamill, Assistant Appellate
                               Defender, of the Office of the State Appellate Defender, of Elgin, for
                               appellant.

                               Lisa Madigan, Attorney General, of Springfield (Michael A. Scodro,
                               Solicitor General, and Michael M. Glick and Brian McLeish,
                               Assistant Attorneys General, of Chicago, of counsel), for the People.



     Justices                  JUSTICE FREEMAN delivered the judgment of the court, with
                               opinion.
                               Chief Justice Garman and Justices Thomas, Kilbride, Karmeier,
                               Burke, and Theis concurred in the judgment and opinion.



                                              OPINION

¶1         Petitioner Peter Hommerson filed a postconviction petition pursuant to the
       Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), alleging
       violations of his constitutional rights based on his trial counsel’s deficient performance. The
       circuit court of Lake County summarily dismissed the petition because it did not contain a
       verification affidavit. A divided appellate panel affirmed the summary dismissal. 2013 IL App
       (2d) 110805.
¶2         This court allowed petitioner’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
       2010). For the following reasons, we reverse the judgments of the circuit and appellate courts.

¶3                                         I. BACKGROUND
¶4         Following a jury trial in 2008, petitioner was convicted of two counts of first degree
       murder and sentenced to a term of natural life in prison. His convictions and sentence were
       affirmed on direct appeal. People v. Hommerson, 399 Ill. App. 3d 405 (2010). In 2011,
       petitioner filed a pro se postconviction petition alleging ineffective assistance of trial counsel.
       The petition did not contain a verification affidavit pursuant to section 122-1(b) of the Act (725
       ILCS 5/122-1(b) (West 2010)). The circuit court dismissed the petition solely on that basis.
       The appellate court affirmed the summary dismissal, concluding that a petition lacking a
       verification affidavit was frivolous and patently without merit and could be summarily
       dismissed. 2013 IL App (2d) 110805, ¶ 11. The dissenting justice characterized petitioner’s
       failure to include a verification affidavit as a nonjurisdictional procedural defect, which should
       not be a basis for summary dismissal. Id. ¶ 24 (Burke, P.J., dissenting). Petitioner now appeals

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       to this court.

¶5                                            II. ANALYSIS
¶6          Petitioner contends on appeal that the lack of a verification affidavit is an improper basis to
       summarily dismiss a postconviction petition. Resolution of this issue requires the
       interpretation of section 122-1(b) of the Act. Our primary objective in construing a statute is to
       give effect to the intention of the legislature. People v. Blair, 215 Ill. 2d 427, 442 (2005). To
       ascertain the legislature’s intent, we may consider the language of the statute as well as the
       purpose and the necessity for the law, the evils sought to be remedied and the goals to be
       achieved. Id. at 443. We review the dismissal of a postconviction petition de novo. People v.
       Coleman, 183 Ill. 2d 366, 389 (1998).
¶7          The Act provides a three-stage process for adjudicating postconviction petitions. At the
       first stage, the circuit court determines whether the petition is “frivolous or is patently without
       merit.” 725 ILCS 5/122-2.1(a)(2) (West 2010). The court makes an independent assessment as
       to whether the allegations in the petition, liberally construed and taken as true, set forth a
       constitutional claim for relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). The court considers
       the petition’s “substantive virtue” rather than its procedural compliance. Id. at 102. If the court
       determines the petition is frivolous or patently without merit, the court dismisses the petition.
       725 ILCS 5/122-2.1(a)(2) (West 2010). If the petition is not dismissed, it will proceed to the
       second stage.
¶8          At the second stage, the court may appoint counsel to represent an indigent defendant, and
       counsel may amend the petition if necessary. Boclair, 202 Ill. 2d at 100. The State may then
       file a motion to dismiss the petition. 725 ILCS 5/122-5 (West 2010). If the State does not file a
       motion to dismiss or if the 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).
¶9          The verification affidavit requirement in section 122-1(b) of the Act provides in part 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.” 725 ILCS
       5/122-1(b) (West 2010). The verification affidavit, “like all pleading verifications, confirms
       that the allegations are brought truthfully and in good faith.” People v. Collins, 202 Ill. 2d 59,
       67 (2002).
¶ 10        In addressing petitioner’s claim that summary dismissal of his petition was improper, we
       are guided by the principles set forth in Boclair. In Boclair, we considered whether an untimely
       petition could be dismissed solely on that basis at the first stage of proceedings. We held that
       the issue of timeliness should be left for the State to assert during the second stage of
       proceedings. Boclair, 202 Ill. 2d at 102. We explained that, at the first stage of proceedings, the
       court should only determine whether the petition alleges constitutional deprivations. Id. Our
       reasoning was based on section 122-2.1(a)(2) of the Act, which provides that the court may
       dismiss a petition at the initial stage only if the petition is deemed frivolous or patently without
       merit, not if it is untimely filed. Id. at 100. We further reasoned that had the legislature
       intended for a trial judge to sua sponte dismiss a petition as being untimely, it would have so
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       provided in section 122-2.1(a)(2) of the Act. Id. at 100-01. Additionally, we noted that because
       the timeliness and frivolousness provisions were contained in separate sections of the Act, the
       legislature therefore intended to draw a distinction between them. Id. at 101.
¶ 11       Here, we similarly hold that the circuit court may not dismiss a petition at the first stage of
       proceedings solely on the basis that it lacked a verification affidavit. Allowing a trial judge to
       sua sponte dismiss a petition on that ground conflicts with our prior holdings that, at the first
       stage of proceedings, the court considers the petition’s substantive virtue rather than its
       procedural compliance. It is also at odds with a first-stage determination of whether the
       petition’s allegations set forth a constitutional claim for relief. Additionally, as with timeliness,
       the provision that includes the verification affidavit requirement is in a separate section from
       the frivolousness provision of the Act, therefore evincing legislative intent to draw a
       distinction between them. Any deficiency in compliance with section 122-1(b)’s verification
       affidavit requirement may be objected to by the State in a motion to dismiss at the second stage
       of proceedings. See People v. Cruz, 2013 IL 113399 (State’s failure to object to postconviction
       petition’s lack of a notarized verification affidavit was forfeited and could not be raised on
       appeal). Accordingly, the verification affidavit requirement is neither rendered surplusage nor
       eviscerated by this decision.
¶ 12       Further, our holding is consistent with the legislature’s intent in passing the Act. The
       purpose of the Act is to provide incarcerated individuals with a means of asserting that their
       convictions were the result of a substantial denial of their constitutional rights. 725 ILCS
       5/122-1(a) (West 2010). Construing the statute as requiring a verification affidavit at the first
       stage of proceedings frustrates the legislature’s intent to provide incarcerated individuals with
       this avenue of redress.
¶ 13       We disagree with the State’s suggested remedy of a “pre-second stage dismissal.” The
       State argues we should permit circuit courts, “in lieu of first stage review,” to dismiss a petition
       lacking a proper verification affidavit, without prejudice, with leave to refile a petition in
       conformance with the Act within a specified time period. However, we believe that doing so
       would elevate a petition’s form over substance and would ignore this court’s directive in
       Boclair to consider the petition’s “substantive virtue” rather than its procedural compliance.
       Moreover, such an approach would require us to read language into the statute that the
       legislature did not include, which we may not do. People v. Ellis, 199 Ill. 2d 28, 39 (2002).
¶ 14       Here, petitioner’s postconviction petition lacked a verification affidavit. 1 That deficiency
       is properly the subject of a motion to dismiss at the second stage of proceedings. Accordingly,
       since we find the circuit court’s dismissal and the appellate court’s affirmance of that dismissal
       to be in error, we reverse those judgments and remand the cause to the circuit court for
       second-stage postconviction proceedings. See 725 ILCS 5/122-2.1 (West 2010) (within 90
       days after the filing and docketing of each petition, if the petition is not dismissed as frivolous
       or patently without merit, it shall be docketed for further proceedings).


           1
           The petition did contain several affidavits pursuant to section 122-2 (725 ILCS 5/122-2 (West
       2010)) of the Act, which are not at issue here.
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¶ 15                                   III. CONCLUSION
¶ 16      For the aforementioned reasons, we reverse the judgments of the circuit court of Lake
       County and the appellate court, and remand the cause to the circuit court for second-stage
       proceedings.

¶ 17      Judgments reversed.




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