                                       2014 IL 115638



                                 IN THE
                            SUPREME COURT
                                   OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 115638)

           THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. PETER
                          HOMMERSON, Appellant.


                               Opinion filed January 24, 2014.



        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 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.

                                              -2-
¶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
       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
                                                -3-
       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.
                                                    -4-
¶ 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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