Appeal from the Circuit Court of Lake County. No. 96-CF-544 Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Jorgensen concurred in the judgment and opinion.
Presiding Justice Burke dissented, with opinion.
¶ 1 The defendant, Peter Hommerson, filed a pro se post-conviction 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 post-conviction 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 post-conviction 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.
¶ 4 The defendant appeals the dismissal of his pro se post-conviction petition at the first stage of post-conviction proceedings. In dismissing the petition, the trial court cited Carr for ruling that a lack of notarization of an affidavit verifying a post-conviction petition is grounds for dismissal of a petition at the first stage of post-conviction proceedings. After Carr was issued, this court, in Turner, again examined the dismissal of a post-conviction petition, but in the context of the second stage of post-conviction 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 non-jurisdictional procedural defect that the State must raise or forfeit at the second stage of post-conviction 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 fromCarr, 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 non-capital cases, the Act establishes a three-stage process for adjudicating a post-conviction 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 post-conviction 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).
¶ 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 post-conviction 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 post-conviction 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 post-conviction 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 ...