The summary dismissal of defendant’s postconviction petition on the ground that the petition was not verified by a notarized affidavit was reversed and the cause was remanded for second-stage proceedings, since a postconviction petition’s lack of proper verification is not an appropriate reason for a dismissal at the first stage of postconviction proceedings.
Appeal from the Circuit Court of Kane County, No. 06-CF-66; the Hon. Timothy Q. Sheldon, Judge, presiding
Alan D. Goldberg and Daniel T. Mallon, both of State Appellate Appeal Defender's Office, of Chicago, for appellant.
Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Joan M. Kripke, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Presiding Justice Burke concurred in the judgment and opinion. Justice Schostok dissented, with 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. Peo ...