Appeal from the Circuit Court of Kane County No. 06-CF-66, Honorable Timothy Q. Sheldon, Judge, Presiding.
Presiding Justice Burke concurred in the judgment and opinion.
¶1 Defendant, Christopher House, appeals the trial court's summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Applying People v. Carr, 407 Ill.App.3d 513, 515-16 (2011), the trial court dismissed the petition because it was not verified by a notarized affidavit. The court made no determinations on the merits. We reverse and remand to the trial court for second-stage proceedings.
¶2 I. BACKGROUND
¶3 In September 2006, defendant was convicted of first-degree murder. On October 7, 2011, he filed a pro se postconviction petition alleging various claims, including claims that his trial counsel was ineffective for failing to file a motion to quash his arrest and suppress evidence based on a lack of probable cause, failing to move to dismiss the indictment because he was initially charged by complaint and the indictment was not obtained within 30 days of his arrest, and failing to challenge whether the State exercised due diligence in obtaining DNA testing. In support of those arguments, defendant attached police reports, records showing the dates of the complaint and the indictment, and lab reports noting dates relevant to the due diligence claim. Defendant also alleged that his counsel wrongly told him not to testify, failed to properly investigate, and failed in a number of other respects. He further made various allegations concerning his appellate counsel. Defendant stated that he was unable to obtain an affidavit from his trial counsel. He then included unnotarized statements from witnesses to support his claims. Those statements included certifications under section 1-109 of the Code of Civil Procedure (Code) (735 ILCS 5/1-109 (West 2010)). In his petition, defendant stated that the prison refused to notarize those materials, but he did not explain why the witnesses could not obtain their own notarizations. Defendant also included an unnotarized verification, with a section 1-109 certification. He stated that the prison paralegal refused to notarize his documents despite the fact that he repeatedly asked the person to do so.
¶4 On December 14, 2011, the trial court summarily dismissed the petition because it was not verified by a notarized affidavit. Defendant moved to reconsider, arguing that it was a posted prison policy that prison staff would not notarize affidavits, postconviction petitions, or documents regarding postconviction petitions. He alleged that he sought notarization and was refused. The motion was denied, and defendant appeals.
¶5 II. ANALYSIS
¶6 Defendant contends that the trial court erred when it summarily dismissed his petition based on the lack of a notarized verification affidavit. The State contends, citing to Carr, that a petition filed under the Act must be verified by affidavit (725 ILCS 5/122-1(b) (West 2010)) and that the failure to do so justifies a summary dismissal.
¶7 Since Carr, this court has been split on whether the failure to provide a notarized verification 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. Our supreme court has granted leave to appeal on the issue, but has not yet ruled on it. People v. Hommerson, 2013 IL App (2d) 110805, appeal allowed, No. 115638 (Ill. May 29, 2013).
¶8 A defendant may initiate proceedings under the Act by alleging that, in the proceedings that 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. People v. Cage, 2013 IL App (2d) 111264, ¶8. Under section 122-1(b) of the Act, " '[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 noncapital cases, the Act establishes a three-stage process for adjudicating a postconviction petition [citation]." Turner, 2012 IL App (2d) 100819, ¶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.' (Emphasis omitted.)" Id. (quoting People v. Phyfiher, 361 Ill.App. 3D 881, 883 (2005)). Under section 122-2.1(a)(2) of the Act, 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 postconviction petition. People v. Swamynathan, 236 Ill.2d 103, 113 (2010).
¶10 Here, defendant's verification 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 his knowledge. Section 1-109 provides as follows:
"The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters ...