Appeal from the Circuit Court of Kane County. No. 06-CF-1897 Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Justice Hutchinson
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.
¶ 1 Defendant, Kerry Cage, appeals from the summary dismissal of his petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2010)) on the basis that the petition was not verified by a notarized affidavit as required by section 122-1(b) of the Act (725 ILCS 5/122-1(b) (West 2010)). We hold that the failure to provide a notarized affidavit is not a sufficient basis for summary dismissal. Accordingly, we reverse and remand for further proceedings.
¶ 3 On June 19, 2007, defendant was convicted of three counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2006)), one count of robbery (720 ILCS 5/18-1(a) (West 2006)), and one count of obstructing justice (720 ILCS 5/31-4(a) (West 2006)). He was sentenced to 34 years' incarceration.
¶ 4 On July 15, 2011, defendant filed a pro se post-conviction petition, alleging ineffective assistance of counsel. Defendant attempted to verify the petition with an unnotarized certification under section 1-109 of the Code of Civil Procedure (the Code) (735 ILCS 5/1-109 (West 2010)).
¶ 5 On September 19, 2011, the trial court summarily dismissed the petition pursuant to People
v. Carr, 407 Ill. App. 3d 513, 515-16 (2011), for defendant's failure to verify the petition with a notarized affidavit. On October 19, 2011, defendant moved to reconsider and included a notarized affidavit. The motion was denied, and defendant timely appeals.
¶ 7 Since Carr, this court has been split on the issue of whether the failure to provide a notarized affidavit is a sufficient basis for a summary dismissal. Compare People v. Turner, 2012 IL App (2d) 100819, with People v. McCoy, 2011 IL App (2d) 100424. Defendant contends that, under Turner, an invalid affidavit is not a sufficient basis. We agree.
¶ 8 "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 [citation].' " Turner, 2012 IL App (2d) 100819, ¶ 17 (quoting 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 in original.) Id. (quoting 725 ILCS 5/122-1(b) (West 2010)).
¶ 9 "In non-capital cases, the Act establishes a three-stage process for adjudicating a post-conviction petition [citation]." Id. ¶ 18. "At the first stage, 'the trial court, without input from the State, examines the petition only to determine if [it alleges] a constitutional deprivation unrebutted by the record, rendering the petition neither frivolous nor patently without merit.' " Id. (quoting People v. Phyfiher, 361 Ill. App. 3d 881, 883 (2005)). "Section 122-2.1 of the Act directs that, if the trial court determines that the petition is frivolous or patently without merit, it shall dismiss it in a written order." Id. (citing 725 ILCS 5/122-2.1(a)(2) (West 2010)). We review de novo the first-stage dismissal of a post-conviction petition. People v. Swamynathan, 236 Ill. 2d 103, 113 (2010).
¶ 10 Here, defendant's affidavit was signed but not notarized. Instead, defendant cited section 1-109 of the Code and stated that the contents of the petition were true to the best of ...