                            2014 IL App (2d) 100424-B
                                  No. 2-10-0424
                         Opinion filed September 29, 2014
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 07-CF-524
                                       )
DANIEL K. McCOY,                       ) Honorable
                                       ) Fernando L. Engelsma,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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
2014 IL App (2d) 100424-B


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.

¶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

          1
              The statute on harboring, concealing, or aiding a fugitive as then written did not allow



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¶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

prosecution of a spouse. 720 ILCS 5/31-5 (West 2006).



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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

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



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2014 IL App (2d) 100424-B


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).



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¶ 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

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



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2014 IL App (2d) 100424-B


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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