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People v. Collins

THE SUPREME COURT OF THE STATE OF ILLINOIS


March 15, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
LONDON COLLINS, APPELLEE.

The opinion of the court was delivered by: Justice Thomas.

UNPUBLISHED

The issue presented is whether the circuit court properly dismissed defendant's pro se post-conviction petition as frivolous and patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2000). We hold that dismissal was proper.

BACKGROUND

On August 20, 1998, and as part of a negotiated plea agreement, defendant pleaded guilty to one count of possessing a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2000)). As required by Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), the circuit court fully admonished defendant as to the nature of the charge, the statutory sentencing range, and the rights he would be waiving by pleading guilty. After determining that defendant's guilty plea was both voluntary and supported by a sufficient factual basis, the circuit court accepted the plea and imposed the statutory minimum sentence of nine years in prison (see 720 ILCS 570/401(a)(2)(B) (West 2000)). The circuit court then advised defendant that, although he possessed the right to appeal, that right is contingent upon the timely filing of a motion to withdraw his guilty plea and vacate the judgment. Defendant filed no such motion, and no appeal was taken.

On March 16, 1999, defendant filed a pro se petition for post-conviction relief. In the petition, defendant alleged several claims of error, including the following:

"I wanted to appeal the case, which my counsel told me that he will. But never did. that brings me to submitt this motion. thinking im waiting to go back on appeal. I also ask him to put me in for a reduction sentence. which he mislead me. He never submitted that either." The only attachment to defendant's petition was the following sworn verification, which states in its entirety:

"I, London Collins, a prisoner incarcerated in Tamms Minimum Security Unit, have read and understand the above Petition for Post Conviction Relief. All the facts presented are true and correct to the best of my recollection."

The circuit court dismissed defendant's petition as frivolous and patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2000).

On October 10, 2000, the appellate court issued its initial order reversing the circuit court's dismissal of defendant's petition. In that order, the appellate court concluded that, although the allegations set forth above stated the gist of a meritorious constitutional claim, the absence of any supporting documentation rendered defendant's petition insufficient to justify second-stage review under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)). The court therefore remanded the cause to the circuit court so that defendant could file affidavits that:

"minimally address the specifics of the defendant's attorney's statement that he would appeal the case, describe in detail all of defendant's subsequent contacts with his attorney and explain fully the twenty-one month delay between the defendant's conviction and the filing of his petition."*fn1

According to the appellate court's order, if defendant successfully filed the requisite affidavits within the allotted time frame, the circuit court would be required to docket defendant's petition for further proceedings. Conversely, if defendant failed to file the necessary affidavits, "the trial court [would be] free to grant a motion to dismiss by the State."

On October 25, 2000, defendant filed a petition for rehearing, arguing that the appellate court lacked the authority to remand the cause for the submission of additional affidavits. According to defendant, once it concluded that defendant's petition stated the gist of a meritorious constitutional claim, the appellate court was required to remand the cause for second-stage post-conviction proceedings, including the appointment of counsel. On October 26, 2000, the State likewise filed a petition for rehearing, arguing that the appellate court's decision ran afoul of the Act in numerous ways. In particular, the State argued that (1) the Act does not contemplate a petition that states the gist of a meritorious claim but nevertheless is insufficient to justify second-stage review, and (2) the circuit court would not be "free to grant a motion to dismiss by the State" based on defendant's failure to submit the requisite affidavits, as the Act does not permit the filing of such motions until the second stage of post-conviction review. On November 17, 2000, the appellate court denied both petitions for rehearing without comment.

On November 21, 2000, the appellate court notified the parties of its intent to file a subsequent opinion in this case. The next day, the appellate court cancelled the filing of any subsequent opinions "until further notice." On December 5, 2000, the State filed in the appellate court a notice of intent to seek leave to appeal. On December 19, 2000, the State filed its petition for leave to appeal. Two days later, the appellate court withdrew its order of October 10, 2000, and informed the parties of its intent to file a new opinion in the case at a later but unspecified date. On December 28, 2000, defendant filed a motion in the appellate court requesting reinstatement of the appellate court's original order, arguing that the appellate court lost jurisdiction over the case when the State filed its petition for leave to appeal. On December 29, 2000, and without disposing of defendant's motion to reinstate, the appellate court issued a new opinion.

In its new opinion, the appellate court again reversed the circuit court's dismissal of defendant's petition. 319 Ill. App. 3d 193. As in its initial order, the appellate court concluded that the contested portion of defendant's petition stated the gist of a meritorious constitutional claim. Contrary to its initial order, however, the court this time concluded that the absence of supporting affidavits did not render defendant's petition legally insufficient. Specifically, the court held that the absence of such documentation was both "unsurprising" and "justified," given that defendant was "incarcerated, indigent and apparently barely literate." Moreover, because the only other likely witness to the alleged conversation was the attorney that defendant now claims was ineffective, it would be "both oppressive and unfair" to require independent evidence of that conversation beyond defendant's sworn verification. Consequently, the appellate court reversed the circuit court's summary dismissal of defendant's petition and remanded the cause for second-stage post-conviction proceedings.

The State subsequently filed a motion to substitute a new petition for leave to appeal for the one originally filed in this court, and this court granted both the motion and the petition.177 Ill. 2d R. 315(a).

ANALYSIS

Before reaching the merits of this appeal, we must address the validity of the appellate court's second decision in this case. In People v. Turnage, 162 Ill. 2d 299, 305 (1994), this court unanimously held that, once a petition for leave to appeal is filed in this court, the appellate court loses jurisdiction over the cause and may not file any additional opinions. Here, the appellate court issued its second opinion sua sponte on December 29, 2000, 10 days after the State petitioned this court for leave to appeal. The appellate court's December 29, 2000, decision therefore is void for a lack of jurisdiction, and we order the appellate court to withdraw that opinion and reinstate its decision of October 10, 2000. See Turnage, 162 Ill. 2d at 305.

We now turn to the merits. The Post-Conviction Hearing Act (Act) establishes a procedure for determining whether a criminal defendant was convicted in substantial violation of his or her constitutional rights. 725 ILCS 5/122-1(a) (West 2000). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the conviction occurred. 725 ILCS 5/122-1(b) (West 2000). The petition must identify the proceeding in which the conviction occurred, state the date of the contested final judgment, and clearly identify the alleged constitutional violations. 725 ILCS 5/122-2 (West 2000). In addition, the petition must be both verified by affidavit (725 ILCS 5/122-1(b) (West 2000)) and supported by "affidavits, records, or other evidence" (725 ILCS 5/122-2 (West 2000)). If such "affidavits, records, or other evidence" are unavailable, the petition must explain why. 725 ILCS 5/122-2 (West 2000).

Upon the petition's filing, the circuit court has 90 days in which to review the petition and determine whether, on its face, "the petition is frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2000). If the circuit court determines that the petition is either frivolous or patently without merit, it "shall dismiss the petition in a written order." 725 ILCS 5/122-2.1(a)(2) (West 2000). A post-conviction petition is considered frivolous or patently without merit if the petition's allegations, taken as true, fail to present the gist of a meritorious constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Moreover, the failure to either attach the necessary "affidavits, records, or other evidence" or explain their absence is "fatal" to a post-conviction petition (People v. Turner, 187 Ill. 2d 406, 414 (1999)) and by itself justifies the petition's summary dismissal (People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952)). We review the dismissal of a post-conviction petition de novo. Coleman, 183 Ill. 2d at 389.

In this case, the circuit court properly dismissed defendant's pro se post-conviction petition. Contrary to the clear mandate of section 122-2 of the Act, defendant's petition was unsupported by "affidavits, records, or other evidence" and offered no explanation for the absence of such documentation. This fact alone justifies the summary dismissal of defendant's petition. Coleman, 183 Ill. 2d at 380; Jennings, 411 Ill. at 26.

In reaching this result, we necessarily reject defendant's contention that his sworn verification can serve as a substitute for the "affidavits, records, or other evidence" mandated by section 122-2. First, the Act itself clearly distinguishes between the sworn verification that defendant filed and the supporting "affidavits, records, or other evidence" that defendant neglected to file. The necessity of a sworn verification is addressed in section 122-1 of the Act, which provides that a post-conviction proceeding is initiated by the filing of a petition "verified by affidavit." 725 ILCS 5/122-1(b) (West 2000). The necessity of attaching "affidavits, records, or other evidence" to the petition is addressed in section 122-2, which provides that "[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." (Emphasis added.) 725 ILCS 5/122-2 (West 2000). Thus, under the plain language of the Act, the sworn verification described in section 122-1 serves a purpose wholly distinct from the "affidavits, records, or other evidence" described in section 122-2. The former, like all pleading verifications, confirms that the allegations are brought truthfully and in good faith. See, e.g., In re Marriage of Pitulla, 202 Ill. App. 3d 103, 120 (1990). The latter, by contrast, shows that the verified allegations are capable of objective or independent corroboration. To equate the two is not only to confuse the purposes of subjective verification and independent corroboration but also to render the "affidavits, records, or other evidence" requirement of section 122-2 meaningless surplusage. We will not adopt such a reading. See People v. Maggette, 195 Ill. 2d 336, 350 (2001) (statute should be construed so that no term is rendered superfluous or meaningless).

Moreover, the two decisions upon which defendant principally relies are clearly distinguishable from this case. Defendant insists that both People v. Washington, 38 Ill. 2d 446 (1967), and People v. Williams, 47 Ill. 2d 1 (1970), stand for the proposition that a sworn verification is all that is needed to substantiate a post-conviction claim arising from discussions between a criminal defendant and his attorney. Defendant misreads these decisions. To be sure, in both Washington and Williams, the post-conviction petitions contained claims arising from conversations between the defendant and his attorney and were supported only by the defendant's sworn verification. But in Washington, the petition also contained an explanation as to why the necessary "affidavits, records, or other evidence" were unobtainable. Thus, the petition in Washington explicitly complied with section 122-2's mandate that a post-conviction petition "shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." (Emphasis added.) 725 ILCS 5/122-2 (West 2000). Similarly, in Williams, the defendant alleged that he relied upon certain misrepresentations that were "whispered to him" by his attorney following the entry of his guilty plea. Williams, 47 Ill. 2d at 2. Thus, although the petition in Williams did not explicitly explain why "affidavits, records, or other evidence" were not attached, it did contain facts from which this court easily inferred that "the only affidavit that petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney." Williams, 47 Ill. 2d at 4. In stark contrast, the post-conviction petition that defendant filed in this case complies with neither the letter nor the substance of section 122-1, as it lacks not only an explanation for the absence of supporting evidence but also even a single allegation from which such an explanation could reasonably be inferred.

We recognize, of course, that requiring the attachment of "affidavits, records, or other evidence" will, in some cases, place an unreasonable burden upon post-conviction petitioners. Indeed, Washington and Williams are two such cases. This does not mean, however, that the petitioners in such cases are relieved of bearing any burden whatsoever. On the contrary, section 122-2 makes clear that the petitioner who is unable to obtain the necessary "affidavits, records, or other evidence" must at least explain why such evidence is unobtainable. In this case, defendant is asking to be excused not only from section 122-2's evidentiary requirements but also from section 122-2's pleading requirements. Nothing in the Act authorizes such a comprehensive departure.

Finally, we note that our recent decision in People v. Edwards, 197 Ill. 2d 239 (2001), has no application to this case. Although factually quite similar to the present case, Edwards addressed a wholly distinct question. The issue in Edwards was whether the factual allegations set forth in the defendant's post-conviction petition stated the gist of a meritorious claim of ineffective assistance of counsel. In analyzing that question, this court had neither reason nor occasion to assess the sufficiency of the petition's supporting documentation. In fact, the opinion in Edwards does not even describe what, if any, supporting evidence was attached to the petition. We therefore reject defendant's contention that Edwards dictates an affirmance of the appellate court's decision in this case.

CONCLUSION

Because defendant's pro se post-conviction petition included neither "affidavits, records, or other evidence" supporting his claims nor an explanation as to why such supporting evidence was lacking, the circuit court properly dismissed that petition as frivolous and patently without merit. We therefore reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court judgment reversed; circuit court judgment affirmed.

JUSTICE McMORROW, dissenting:

The majority holds that defendant's post-conviction petition must be summarily dismissed because, even though defendant provided a sworn affidavit verifying the petition, he did not attach to the petition a second, evidentiary affidavit in support of his constitutional claim. In reaching this holding, the majority attempts to distinguish this court's decision in People v. Williams, 47 Ill. 2d 1 (1970), on its facts. However, the majority's recitation of the facts in Williams is inaccurate. The facts in that case, properly understood, cannot be distinguished from those in the present appeal. Williams stands as controlling authority on the issue of the adequacy of the attachments to defendant's post-conviction petition. Accordingly, I dissent.

In Williams, the defendant alleged in a post-conviction petition that he was induced to plead guilty by misrepresentations made by his attorney. The petition was verified by the defendant's sworn statement but no additional affidavits were attached. The State, like the majority today, argued that the petition should be dismissed "because, contrary to the requirements of the Post-Conviction Hearing Act, satisfactory affidavits were not attached to the petition" and because no reasons were "given for the absence of such affidavits." Williams, 47 Ill. 2d at 3. This court squarely rejected that argument, noting that the only additional affidavit the defendant could possibly have furnished to support his claim, other than his own sworn statement, would have been that of the very attorney who allegedly made the misrepresentations. Williams, 47 Ill. 2d at 4.

Attempting to distinguish the facts in the present case from those in Williams, the majority states,

"[I]n Williams, the defendant alleged that he relied upon certain misrepresentations that were `whispered to him' by his attorney following the entry of his guilty plea. Williams, 47 Ill. 2d at 2. Thus, although the petition in Williams did not explicitly explain why `affidavits, records, or other evidence' were not attached, it did contain facts from which this court easily inferred that `the only affidavit that petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney.' Williams, 47 Ill. 2d at 4." Slip op. at 7.

The majority's attempt to distinguish Williams rests exclusively on the assumption that the defendant in that case in some way "relied upon" his attorney's whispered comments. According to the majority, it was the whispered nature of the misrepresentations in Williams which made it impossible for the defendant to provide any other affidavit in support of his post-conviction claim. But this reading of Williams is incorrect. The defendant in Williams did not allege that he "relied upon" his attorney's whispered comments. This court's holding in Williams was not based on that distinction.

The actual allegations made by the defendant in Williams were:

"In his [post-conviction] petition defendant [Williams] alleged, among other things, that his constitutional rights were violated in that he was induced to plead guilty by representation of his attorney that the State would agree to a sentence of six months to one year in the county jail instead of seeking a sentence of 40 to 80 years in the penitentiary if he went to trial, and further, that even after the court imposed a sentence of three to seven years, his counsel whispered to him that the court would call him back and give him one year in the county jail. The petition, though sworn to by defendant, was unsupported by any other affidavits." Williams, 47 Ill. 2d at 2.

The foregoing quotation is this court's only description of the allegations set forth in the defendant's post-conviction petition in Williams. Nowhere in that quotation does this court state that "the defendant alleged that he relied upon" (slip op. at 7) his attorney's whispered comments. Nor, for that matter, does this court make that statement anywhere else in the Williams opinion. The simple fact is that, contrary to the majority's assertions in the case at bar, the defendant in Williams did not allege that he "relied upon" the whispered comments that were made by his attorney after sentence had been pronounced. The reason this allegation was not made is readily understood when one considers the nature of the constitutional claim at issue.

The defendant in Williams alleged that, prior to entering his plea, his attorney made certain representations regarding the length of sentence he might receive if he were to plead guilty. Based on these representations, which were inaccurate, the defendant alleged that he was induced to plead guilty. Accordingly, the constitutional claim raised by the defendant in Williams was that his decision to plead guilty was involuntary, and thus violated due process, because it was based upon inaccurate information given to him by his attorney. The defendant further stated in his post-conviction petition that his attorney made whispered comments to him after sentence was pronounced. But the events that occurred after defendant entered his plea and after he was sentenced logically had no bearing on his claim that his guilty plea was involuntary and therefore played no part in this court's decision.

There was only one constitutional claim raised in Williams that bore any relation to attorney comments, whispered or otherwise.*fn2 That claim was the defendant's allegation that he was induced to plead guilty by his attorney's misrepresentations. Of necessity, therefore, when the majority states that the defendant in Williams "relied upon" his attorney's whispered comments (although this reliance is mentioned nowhere in the opinion) the majority must be saying that the whispered comments had some relevance to the defendant's claim that his guilty plea was involuntary. But this position is untenable. How could the defendant in Williams have "relied upon" the whispered comments in deciding whether to plead guilty, when those comments came after the defendant had entered his plea and after the court had pronounced sentence? The obvious answer is that the defendant could not and did not. The majority's statement that the defendant in Williams "relied upon" his attorney's whispered comments is false. Consequently, the majority's attempt to distinguish Williams fails.

As noted, this court in Williams rejected the State's argument that the defendant's post-conviction petition should be dismissed because it was not supported by a second, evidentiary affidavit. This court held:

"The State's only contention is that the petition is insufficient to entitle petitioner to a hearing in that it was not accompanied by supporting affidavits. But the only affidavit that petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney who allegedly made the misrepresentation to him. The difficulty or impossibility of obtaining such an affidavit is self-apparent. In People v. Wegner, 40 Ill. 2d 28, where similar allegations of misrepresentations of counsel as to sentence were made, we held that dismissal of the petition without a hearing was improper; that defendant was entitled to an evidentiary hearing even though the State had filed a counteraffidavit of defendant's attorney in which he denied making the statement attributed to him. It would certainly follow that if a defendant is entitled to a hearing despite a counteraffidavit of his attorney denying the allegations of the petition then a defendant should not be denied a hearing merely because he did not obtain a supporting affidavit from the attorney who represented him at the time of his plea.

Under such circumstances, to so strictly construe the Act as requested by the State would defeat its very purpose by denying petitioner a hearing on the factual issue raised by the pleadings. However, as stated in People v. Reeves, 412 Ill. 555, we do not intend hereby to lessen the duty of petitioners under the Act to make a substantial showing of a violation of constitutional rights, for the allegations of mere conclusions to that effect under oath will not suffice. We do find that in this case the sworn statements of petitioner warrant a fair inference of a violation of constitutional rights which are not negated by the State nor by the record, and that an evidentiary hearing is required to determine the truth or falsity of petitioner's allegations." Williams, 47 Ill. 2d at 4-5.

Notably, this court's holding in Williams makes no mention of the defense attorney's whispered comments. Again, this is not surprising. Because the whispered comments came after defendant had entered his plea and been sentenced they had no bearing on the constitutional issue presented, i.e., whether the defendant's plea was involuntary because it was induced by misrepresentations made by his attorney.

Williams is controlling on the issue of whether, for purposes of surviving summary dismissal, the sworn statement submitted by defendant in the present case is sufficient to support the claim presented in his post-conviction petition. Defendant alleges that his counsel told him he would file an appeal but that counsel failed to do so. In support of this claim, "the only affidavit that petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney who allegedly made the misrepresentation to him. The difficulty or impossibility of obtaining such an affidavit is self-apparent." Williams, 47 Ill. 2d at 4. Accordingly, the majority in the case at bar errs when it holds that defendant's post-conviction petition must be summarily dismissed because defendant failed to attach satisfactory affidavits.

My colleagues in the majority may be concerned that, by allowing defendant's sworn affidavit to suffice under the facts of this case, the standard for obtaining post-conviction relief may, in some way, be lessened. But as Williams makes clear, defendant's burden is not diminished. To obtain post-conviction relief, defendant must still establish a substantial violation of a constitutional right. Moreover, any concern regarding the lessening of post-conviction standards is, in fact, much less pressing in the instant case than it was in Williams. The issue presented in Williams was whether the defendant was entitled to an evidentiary hearing. But the issue in the case at bar is simply whether defendant's petition survives summary dismissal at the first stage of post-conviction review. In practical terms, the question presented in this case is whether defendant, who filed his post-conviction petition pro se, should be permitted to consult with an attorney regarding his constitutional claim and whether he should be given the opportunity to have counsel draft his claim into an appropriate legal form. Under Williams, the lack of a second, evidentiary affidavit is not a bar to defendant being afforded that opportunity.

The majority has inaccurately stated the facts of Williams. Those facts, with respect to the affidavit issue, are indistinguishable from the facts in the present case. Williams has been the law of this state for over 30 years. The majority has offered no reason to depart from that settled holding. I therefore dissent.

JUSTICES FREEMAN and KILBRIDE join in this dissent.


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