People v. Allen

2015 IL 113135

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 113135)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAMES E. ALLEN,

Appellant.

Opinion filed May 21, 2015.

CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.

Justices Freeman, Kilbride, Burke, and Theis concurred in the judgment and

opinion.

Justice Thomas dissented, with opinion, joined by Justice Karmeier.

OPINION

¶1 Defendant James Allen was convicted of murder and armed robbery for the

August 1, 1984, shooting death of Robert Ciralski, Sr. In 2009, defendant filed a

pro se postconviction petition, alleging actual innocence and raising constitutional

issues related to his claim of innocence, chiefly that the State suborned perjury and

coerced confessions. He attached to his petition an unnotarized statement, styled as

an affidavit. The statement indicated its writer was Robert Langford, and the author

took responsibility for Ciralski’s murder, stating that Allen had no involvement at

all.

¶2 The circuit court of Cook County dismissed the petition, finding it frivolous and

patently without merit. The court noted that the statement was unnotarized and

listed additional reasons for dismissal. The appellate court affirmed the dismissal

for lack of notarization. We granted defendant’s petition for leave to appeal. Ill. S.

Ct. R. 315 (eff. July 1, 2013). For the reasons that follow, we reverse the judgments

of the appellate court and the circuit court.

¶3 BACKGROUND

¶4 Around 10 p.m. on August 1, 1984, Robert Ciralski, Sr., closed his liquor and

grocery store for the night. As he exited, he stopped to talk to a police officer he

knew in the neighborhood. He then got in his car and drove home, where his wife

and son, Robert, Jr., were waiting. As Ciralski parked the car and started to get out,

he was attacked. His attacker shot him once in the shoulder and once in the

forehead, killing him.

¶5 The disturbance drew Ciralski’s wife and 14-year-old son to the window. His

son yelled at two men he saw standing near Ciralski’s car and, seeing the flash of a

shiny object in one man’s hand, fired one shot at them with a handgun. The two

fled. Ciralski’s family ran down to the car, where he was sprawled across the front

seat. Ciralski’s pants pocket was ripped open, and his belongings were scattered.

Police and an ambulance arrived shortly thereafter. Efforts to revive Ciralski failed.

¶6 In late November 1985, Chicago Police Detective Michael Pochordo received a

telephone call regarding Ciralski’s murder. According to Pochordo, the anonymous

caller told him that if he wanted to solve Ciralski’s murder, he should look to the

people who had committed the murder of Carl Gibson. Pochordo had investigated

Gibson’s murder, and defendant was one of several people convicted of murder for

Gibson’s death. Gibson’s death was a contract killing; defendant was sentenced to

natural life for driving the car in which his accomplices shot Gibson. A drug dealer

named Charles Ashley had paid for Gibson’s murder, on belief that Gibson was a

police informant.

¶7 From investigating Gibson’s murder, Pochordo was already familiar with

defendant and an informant named Darryl Moore. Pochordo first spoke to Moore

and elicited several details: that Moore had arranged the contract killing of Ciralski;

that defendant had followed Ciralski the night of his murder; and that two other

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men, Franklin Freeman and Henry Griffin, had gotten out of defendant’s car to

carry out Ciralski’s murder. Griffin was already on death row for the murder of

Gibson. See People v. Griffin, 148 Ill. 2d 45 (1992). Pochordo began looking for

Freeman, who was located in Rockford. He arranged to speak to defendant at

Stateville Correctional Center on December 9, 1985.

¶8 Pochordo told defendant he had certain information linking him to Ciralski’s

murder. Pochordo indicated an informant had told him that defendant participated

in the contract murder of Ciralski on behalf of two drug dealers, Charles Ashley and

Willie “Flukey” Stokes. Ashley and Stokes solicited Ciralski’s murder because

Ciralski had cut back on sales of quinine to drug dealers on the south side of

Chicago. Quinine was used to dilute the heroin sold to users; this reduced its

potency and gave the dealers more volume to sell. Ciralski had sold quinine from

his store at 58th Street and Indiana Avenue. Defendant had carried out the murder

with Henry Griffin and a third person. As Pochordo related this narrative,

defendant indicated that Stokes had a contract out on defendant’s life.

¶9 The evidence heard at trial conflicted on what happened next in that meeting.

Pochordo testified that defendant told him his information was “basically correct,”

but that defendant would have to think about his family’s safety and his own safety

before agreeing to cooperate with the investigation. Nonetheless, Pochordo

testified defendant provided the name of two additional drug dealers who had

solicited Ciralski’s murder, Harry Scott and Prentiss King. Defendant, on the other

hand, testified that he gave Pochordo no information on that date; he knew nothing

about the crime and denied involvement.

¶ 10 Pochordo and defendant next met in late December, when Pochordo brought

along assistant State’s Attorney Rick Beuke. Defendant did not initially cooperate

in providing information to Beuke. Defendant testified at trial that Beuke then left

the room so that he and Pochordo could talk alone. Defendant testified that

Pochordo told him that this was his opportunity to help himself and avoid a death

sentence like Henry Griffin’s, and all he had to do was tell the truth. Defendant

testified that when he asked what the truth was, Pochordo told him it was the

narrative Pochordo had told him in their initial conversation. Defendant then

relayed the story to Beuke.

¶ 11 Plea negotiations ensued over meetings and calls in the following weeks.

Defendant asked for immunity from prosecution; this request was denied in part

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because defendant had previously been convicted of the murder of a police officer.

Defendant agreed to testify against the others involved in the plot and to plead

guilty to Ciralski’s murder; in return, the State would seek a life sentence to run

concurrently with the life sentence he was already serving for the murder of Carl

Gibson. Defendant also received various accommodations, including a prison

transfer for his protection and a few thousand dollars in assistance for the mother of

his child. At the time the case went before the grand jury, it appeared that defendant

would perform under the plea agreement. Defendant, Darryl Moore, and Franklin

Freeman all testified about the contract on Ciralski’s life. Defendant’s grand jury

testimony matched the narrative described above: four drug dealers hired

defendant, Freeman, and Griffin to kill Ciralski for cutting back on quinine sales.

The murder was to look like an armed robbery carried out at Ciralski’s home, so as

to conceal that it was in fact a drug-related contract connected to his business.

¶ 12 However, the agreement for defendant to testify for the State fell apart, and

defendant went to trial in late August, 1987. No physical evidence linked defendant

to the crime. The only witness to the occurrence to testify was Ciralski’s son, who

came to the window after his father had already been shot. He was not able to

identify either of the men standing next to his father’s car. 1 Defendant was

convicted almost exclusively on the testimony of Detective Pochordo and ASA

Beuke, along with his own grand jury testimony. At trial, defendant disavowed his

grand jury testimony. Testifying in his own defense, defendant indicated he simply

repeated the story Pochordo had told him, first to Beuke and then to the grand jury.

He fabricated embellishments where there were gaps. In support of his claim of a

plan to lie, he testified at trial that before his grand jury testimony, he prepared a

notarized statement indicating his plan to lie to the grand jury. He also sent letters to

Scott and King, telling them that if they did not pay him $25,000, he would tell the

grand jury they were involved in killing Ciralski. He indicated he had no

knowledge whatsoever that Ciralski was involved in selling in quinine; he was

impeached on this point by statements he made to police during the Carl Gibson

murder investigation. In sum, defendant’s overall defense was that he knew nothing

about the Ciralski murder; he saw a chance for personal advantage in lying about

the Ciralski murder, by getting considerations from the State’s Attorney; and he

1

Robert Ciralski, Jr., did make a tentative identification of a black and white photograph of

defendant early in the investigation but said he was unsure. He was even less confident after seeing

a color photograph of the defendant. In any event, the prosecution of defendant did not hinge on this

identification; the State’s theory was that defendant remained in the car down the block while

Griffin and Freeman attacked Ciralski.

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wanted to expose Pochordo as a liar to help support his then-pending appeal in

Gibson’s murder.

¶ 13 The jury convicted defendant of first degree murder, armed robbery, and

conspiracy to commit murder. Defendant was sentenced to natural life, to run

consecutively to the natural life sentence he was already serving. The conspiracy

conviction was vacated on appeal, but the conviction and sentence were otherwise

affirmed.

¶ 14 On July 6, 2009, defendant filed his first postconviction petition. In it, he

alleged actual innocence and constitutional violations, generally pertaining to his

claim that the state suborned perjury to convict him and coerced confessions from

him and his codefendants. He attached to that petition a signed statement,

purporting to be from “Robert Langford A-01157” (Langford statement). The

Langford statement certified that Langford was its author, and that the statement

was made under penalty of perjury. It stated that Langford and a now-deceased

accomplice followed Ciralski on the night of August 1, 1984, confronting him

outside his home. Told to empty his pockets, Ciralski refused. “At that time I shot

him and proceeded to take money from his pocket, several thousand dollars. Before

we could search all his pockets someone inside the house he’d parked in front of

called something out to us, then fired a gun shot from the house,” the Langford

statement claims. The Langford statement says Langford and his accomplice then

fled to their car. “Mr. Ciralski was killed as a result of an armed robbery that went

down badly. James Allen is innocent of the Robert Ciralski murder,” the Langford

statement concludes. The Langford statement is dated January 20, 2009. It is signed

with Langford’s name and prisoner number; it also has several attempted

fingerprints at the bottom. The petition additionally claimed defendant’s confession

was coerced, that the State paid Moore and Freeman to lie under oath, that the State

concealed exculpatory evidence in the form of information linking Langford to the

crime, and that the State knowingly used perjured testimony.

¶ 15 The circuit court dismissed the petition as frivolous and patently without merit,

writing:

“At the outset, Langford’s statement is not an affidavit since it is not a sworn

statement and is not notarized. Langford does not even state that he would

testify to these facts on behalf of petitioner. Moreover, petitioner has failed to

explain how he acquired this statement and why he could not have obtained it

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sooner, especially since he specifically states that he heard of Langford from

investigating officers. Finally, Langford’s statement is hardly of such a

conclusive character that it would change the result of petitioner’s trial. Simply

put, it is a one-page, bare-bones statement indicating that the victim was killed

as the result of an attempted robbery and describes the route Langford

purportedly drove in his car to commit the attempted robbery. Indeed, the

statement is nothing more than a recitation of the most benign facts presented

during petitioner’s trial. As such, petitioner’s claim fails.”

¶ 16 As to defendant’s constitutional claims, the circuit court noted that defendant’s

trial court found his confession was not coerced, noted that neither Moore nor

Freeman testified in his trial, and noted that defendant himself knew of Langford’s

existence from his claim that police mentioned Langford during interrogation. The

circuit court characterized defendant’s claim that the State suborned perjury as

conclusory in nature and unsubstantiated. Defendant appealed the first-stage

dismissal.

¶ 17 The appellate court affirmed the dismissal due to the lack of notarization on the

Langford statement. Noting that section 122-2 of the Post-Conviction Hearing Act

requires the petitioner to attach “affidavits, records, or other evidence” in support

of the petition’s allegations, the appellate court found the unnotarized Langford

statement would not qualify as an affidavit. People v. Allen, 2011 IL App (1st)

093438-U, ¶ 3. The appellate court also rejected an argument by defendant that,

even if the Langford statement did not qualify as an affidavit, it would still qualify

as “other evidence,” reasoning that allowing a failed affidavit to qualify as “other

evidence” would make the requirement of an affidavit surplus. Id. This court

granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶ 18 ANALYSIS

¶ 19 This case presents two questions for the court to resolve. The first question is

whether lack of notarization of a petition’s supporting evidence, styled as an

affidavit, renders the petition frivolous or patently without merit, requiring

dismissal at the first stage. The second question is whether defendant’s petition is

otherwise frivolous or patently without merit, such that summary dismissal on the

first stage was required. We review a circuit court’s dismissal of a postconviction

petition de novo. People v. Hodges, 234 Ill. 2d 1, 9 (2009).

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¶ 20 The Post-Conviction Hearing Act provides a criminal defendant the means to

redress substantial violations of his constitutional rights in his original trial or

sentencing. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002). Proceedings on a

postconviction petition are collateral to conviction; “issues that were raised and

decided on direct appeal are barred from consideration by the doctrine of res

judicata; issues that could have been raised, but were not, are considered waived.”

Id. at 456.

¶ 21 The Post-Conviction Hearing Act contains a three-stage procedure for relief.

People v. Boclair, 202 Ill. 2d 89, 99 (2002). Within the first 90 days after the

petition is filed and docketed, a circuit court shall dismiss a petition summarily if

the court determines it is “frivolous or is patently without merit.” 725 ILCS

5/122-2.1(a)(2) (West 2008). If the petition is not dismissed as being frivolous or

patently without merit, the court then orders the petition to be docketed for further

consideration. 725 ILCS 5/122-2.1(b) (West 2008). In the second stage, the

defendant bears the burden of making a substantial showing of a constitutional

violation. People v. Coleman, 206 Ill. 2d 261, 277 (2002). Within 30 days of the

court’s order to docket a petition, the State must either move to dismiss or file an

answer. 725 ILCS 5/122-5 (West 2008). At this stage, the court has discretion to

allow amendment of the petition, “as shall be appropriate, just and reasonable and

as is generally provided in civil cases.” Id.

¶ 22 If the defendant has carried his burden to make a substantial showing of a

constitutional violation throughout the second stage, the court advances the petition

to the third stage. At the third stage, the court may receive “affidavits, depositions,

oral testimony, or other evidence,” to weigh the merits of the petition and determine

whether the defendant is entitled to relief. 725 ILCS 5/122-6 (West 2008). Under

Illinois law, “a claim of newly discovered evidence showing a defendant to be

actually innocent of the crime for which he was convicted is cognizable as a matter

of due process.” People v. Washington, 171 Ill. 2d 475, 489 (1996). The supporting

evidence for a petition on the basis of actual innocence must be “new, material,

noncumulative and, most importantly, ‘of such conclusive character’ as would

‘probably change the result on retrial.’ ” (Internal quotation marks omitted.) Id.

(quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987)).

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¶ 23 First-Stage Review

¶ 24 In the case at bar, defendant’s petition was dismissed at the first stage, as the

circuit court found it to be frivolous and patently without merit. At the first stage,

“the court considers the petition’s substantive virtue rather than its procedural

compliance.” People v. Hommerson, 2014 IL 115638, ¶ 11. Most postconviction

petitions are drafted by pro se defendants, and accordingly, the threshold for a

petition to survive the first stage of review is low. Hodges, 234 Ill. 2d at 9. If a

petition alleges sufficient facts to state the gist of a constitutional claim, even where

the petition lacks formal legal argument or citations to authority, first-stage

dismissal is inappropriate. Id. This low threshold does not excuse the pro se

petitioner from providing factual support for his claims; he must supply sufficient

factual basis to show the allegations in the petition are “capable of objective or

independent corroboration.” People v. Collins, 202 Ill. 2d 59, 67 (2002).

¶ 25 Where a petition presents “ ‘legal points arguable on their merits,’ ” it is not

frivolous. Hodges, 234 Ill. 2d at 11 (quoting Anders v. California, 386 U.S. 738,

744 (1967)). A petition may be dismissed as frivolous or patently without merit

only “if the petition has no arguable basis either in law or in fact”—relying on “an

indisputably meritless legal theory or a fanciful factual allegation.” Hodges, 234 Ill.

2d at 16, 17. Meritless legal theories include ones completely contradicted by the

record, while fanciful factual allegations may be “fantastic or delusional.” Id. at 17.

In evaluating the allegations in the petition, the circuit court must take them as true

and construe them liberally. People v. Edwards, 197 Ill. 2d 239, 244 (2001). “[T]he

Act does not authorize the dismissal of a post-conviction petition during the initial

stage based on untimeliness.” Boclair, 202 Ill. 2d at 99. Our case law thus reveals a

limited number of reasons for summary dismissal of a postconviction petition.

¶ 26 On the other hand, this court has allowed the summary dismissal of a

postconviction petition for being substantially incomplete. The Post-Conviction

Hearing Act requires both a verification affidavit and supporting evidence to be

attached to the petition. 725 ILCS 5/122-1(b) (West 2008) (noting that a proceeding

is commenced by the filing of “a petition *** verified by affidavit”); 725 ILCS

5/122-2 (West 2008) (stating that the “petition shall have attached thereto

affidavits, records, or other evidence supporting its allegations”). Where the

petition lacks “affidavits, records, or other evidence supporting its allegations,” the

petitioner must explain in his pleadings why that evidence is not attached. 725

ILCS 5/122-2 (West 2008). In People v. Collins, this court affirmed the first-stage

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dismissal of a petition with only one affidavit, reading “ ‘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.’ ” Collins, 202 Ill. 2d at 62. The Collins court

rejected the defendant’s argument that his attached affidavit could serve as both

verification affidavit and evidentiary affidavit, as sections 122-1 and 122-2 serve

different purposes under the Act. The requirement for a verification affidavit in

section 122-1, “like all pleading verifications, confirms that the allegations are

brought truthfully and in good faith.” Id. at 67. The requirement of an evidentiary

affidavit or other evidence, “by contrast, shows that the verified allegations are

capable of objective or independent corroboration.” Id. The court acknowledged

that the attachment of affidavits, records, or other evidence would sometimes place

an “unreasonable burden” on postconviction petitioners, but noted that the

defendant in that case was asking to be excused from not only “section 122-2’s

evidentiary requirements but also from section 122–2’s pleading requirements.”

(Emphases omitted.) Id. at 68. Because the petitioner in Collins failed to attach

evidence or to explain its absence, and with the absence of facts from which the

court could reasonably infer an explanation, the court affirmed dismissal of the

petition as frivolous and patently without merit. Id. at 69.

¶ 27 Collins, however, has not been this court’s last word on the first-stage dismissal

of a postconviction petition for incompleteness. In People v. Hommerson, the court

considered whether a petition could be dismissed solely for lacking a verification

affidavit. Hommerson, 2014 IL 115638. The court noted the purpose of the

verification affidavit is to confirm that the allegations were brought “ ‘truthfully

and in good faith.’ ” Id. ¶ 9 (quoting Collins, 202 Ill. 2d at 67). The court looked to

its conclusion in People v. Boclair that the legislature had allowed for summary

dismissal only where the petition was “frivolous or patently without merit,” and

placement of the timeliness provision in a separate subsection indicated timeliness

was not a proper basis for summary dismissal. Id. ¶ 10 (citing Boclair, 202 Ill. 2d at

100). The court found that to allow dismissal for the absence of a verification

affidavit would be “at odds with a first-stage determination of whether the

petition’s allegations set forth a constitutional claim for relief.” Id. ¶ 11. Further, it

would conflict “with our prior holdings that, at the first stage of proceedings, the

court considers the petition’s substantive virtue rather than its procedural

compliance.” Id. Rather than providing a basis for dismissal at the first stage, the

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lack of a verification affidavit could provide grounds for a challenge by the State at

the second stage. Id.

¶ 28 The Langford Statement’s Lack of Notarization

¶ 29 This case presents a fact pattern falling somewhere between Hommerson and

Collins. As in both cases, the circuit court summarily dismissed in part because the

petition was incomplete. Unlike both Hommerson and Collins, the petition was not

missing an attachment altogether. The flaw at issue in this case does not concern the

“brought truthfully and in good faith” purpose of the verification affidavit in

Hommerson. (Internal quotation marks omitted.) Hommerson, 2014 IL 115638,

¶ 9. It instead concerns the “capable of objective or independent corroboration”

purpose of the attached evidence in Collins. Collins, 202 Ill. 2d at 67.

¶ 30 The State has argued the lack of notarization renders the Langford statement a

“nullity.” The State relies chiefly on Roth v. Illinois Farmers Insurance Co., 202

Ill. 2d 490, 497 (2002). In Roth, the appellant filed a document entitled “Affidavit

of Intent to File Petition For Leave to Appeal” with the court. Id. at 492. It was

signed by the appellant’s attorney, but it was not notarized or sworn. Id. at 494. At

that time, Rule 315(b) required a party seeking additional time to appeal to timely

“file with the Appellate Court an affidavit of intent to file a petition for leave, and

file the petition within 35 days after the entry of such judgment.” (Emphasis and

internal quotation marks omitted.) Id. at 492-93. The court considered whether the

“affidavit” required in Rule 315(b) would be satisfied by the attorney’s signature

alone. It considered the common usage of “affidavit” in cases within the state,

noting it was generally “ ‘simply a declaration, on oath, in writing, sworn to by a

party before some person who has authority under the law to administer oaths.’ ”

Id. at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). The court rejected the

appellant’s argument that the affidavit’s sole purpose was to provide notice of the

party’s intention to seek leave to appeal, for two reasons: (1) rules of the court hold

the force of law, and litigants must have incentive to follow them; and (2) the

affidavit of intent did more than give notice; it automatically stayed the mandate of

the appellate court. These purposes militated in favor of the more exacting

requirement of notarization. The Roth court concluded that Rule 315 affidavits

require notarization, in part because Rule 315 did not provide any explicit

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requirements, so the common usage of the term “affidavit” would govern. The

State cites Roth largely for its conclusion: an unsworn affidavit is a “nullity.”

¶ 31 The Langford statement is styled as an affidavit, but it is not one. The Langford

statement is captioned “AFFIDAVIT” and contains a signature. It contains an

additional attempt to verify identity: the attempted affiant’s thumbprint. 2 The

Langford statement attests that Langford is the one making it. It states that

Langford is making the statement subject to penalties of perjury, then recites

various details of the crime. Yet the Langford statement is not an affidavit. An

affidavit consists of a “statement sworn to before a person who has authority under

the law to administer oaths.” Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d

490, 494 (2002). The question for this court is whether the lack of notarization on

this statement renders the petition frivolous or patently without merit, or whether

the Langford statement might otherwise qualify as sufficient evidence to survive

the first stage.

¶ 32 When interpreting a statute, we must “consider the statute in its entirety,

keeping in mind the subject it addresses and the apparent intent of the legislature in

enacting it.” People v. Perry, 224 Ill. 2d 312, 323 (2007). The evidentiary affidavit

attached to a postconviction petition serves two purposes. First, it must contain a

factual basis sufficient to show the petition’s allegations are “capable of objective

or independent corroboration.” Collins, 202 Ill. 2d at 67. Second, it must “identify

with reasonable certainty the sources, character, and availability of the alleged

evidence supporting the petition’s allegations.” People v. Delton, 227 Ill. 2d 247,

254 (2008). As the State has argued, the purpose behind notarization is twofold: to

verify the identity of the person signing the document and to ensure that person

understands that he subjects himself to penalties of perjury in the statement. See

Vancura v. Katris, 238 Ill. 2d 352, 387 (2010); Loraitis v. Kukulka, 1 Ill. 2d 533,

538 (1953) (noting the “superior effect” given to statements made under oath and

applying penalties of perjury to affidavits). Each of these concerns focuses

fundamentally on evidentiary reliability. The impact of these evidentiary concerns

on the “capab[ility] of independent or objective corroboration” and the

identification of “sources, character, and availability of the alleged evidence”

would essentially be a question of whether the facts contained in the affidavit are

true.

2

The State argues that the inclusion of a fingerprint under Langford’s signature, on a line

marked “SIGNEE’S RIGHT [obscured] PRINT,” does not indicate that Langford attempted to

verify or swear to the statement. We can conceive of no other reason to include it.

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¶ 33 The summary dismissal provision has given rise to a specific body of case law

that guides our analysis. The legislature intended that the circuit court at the first

stage would look to whether the petition alleges a constitutional deprivation and

whether petitioner’s proffered evidence substantially indicates the availability of

admissible evidence in support of his claim, in a way that can be corroborated

through later proceedings. 725 ILCS 5/122-1, 122-2.1 (West 2008); Collins, 202

Ill. 2d at 67; Delton, 227 Ill. 2d at 254. At the first stage, the court considers solely

the petition’s substantive virtue, dismissing only where the petition is frivolous or

patently without merit. Hommerson, 2014 IL 115638, ¶ 11; see 725 ILCS

5/122-2.1, 122-5 (West 2008). Not until the second stage is the petition subjected to

adversarial testing through the State’s involvement. 725 ILCS 5/122-5 (West

2008). There, the State can raise certain other defects, insofar as they represent a

deficiency in the petition but do not render a petition frivolous or patently without

merit. Boclair, 202 Ill. 2d at 101 (holding that allowing the circuit court to

summarily dismiss for untimeliness would improperly expand the words “frivolous

or *** patently without merit” (internal quotation marks omitted)); Hommerson,

2014 IL 115638, ¶ 11 (holding that the court’s first-stage review of “substantive

virtue” should not include compliance with the section 122-1(b) verification

affidavit requirement). The State may challenge such “nonjurisdictional procedural

defect[s]” at the second stage; failure to do so forfeits the issue. People v. Cruz,

2013 IL 113399, ¶¶ 21, 25 (holding that, like untimeliness, failure to notarize a

verification affidavit can be forfeited); Boclair, 202 Ill. 2d at 101-02. Enforcing

such requirements at the first stage would “frustrate[ ] the legislature’s intent to

provide incarcerated individuals with this avenue of redress.” Hommerson, 2014 IL

115638, ¶ 12.

¶ 34 As a practical matter, this issue boils down to a determination of whether

defendant, who filed a pro se petition that is accompanied by an unnotarized factual

statement supporting the allegations in his petition, should be permitted to consult

with an attorney regarding his constitutional claim and whether he should be given

the opportunity to have counsel amend his petition before the State responds. Lack

of notarization here does not prevent the court from reviewing the petition’s

“substantive virtue,” as to whether it “set[s] forth a constitutional claim for relief.”

Hommerson, 2014 IL 115638, ¶ 11. Defendant’s failure to notarize does not limit

the Langford statement’s identification of the “sources, character, and availability”

of evidence alleged to support the petition, or destroy its ability to show that the

petition’s allegations are capable of independent corroboration. Delton, 227 Ill. 2d

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at 254; Collins, 202 Ill. 2d at 67. Defendant’s failure to notarize does not leave the

petition with “no arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12.

In sum, the Langford statement’s lack of notarization does not make the petition

frivolous or patently without merit. We find the circuit court may not dismiss at the

first stage solely for failure to notarize a statement styled as an evidentiary

affidavit. Instead, the circuit court at the first stage must look to whether the

evidentiary attachments satisfy the purposes identified in Collins and Delton:

showing that the petition’s allegations are capable of corroboration and identifying

the sources, character, and availability of evidence alleged to support the petition’s

allegations. As explained below, the Langford statement satisfies these purposes.

While not an admissible affidavit in its present form, the Langford statement

properly qualifies as “other evidence.” 725 ILCS 5/122-6 (West 2008).

¶ 35 The defendant is not entirely absolved from the notarization requirement of

Roth, however. Where a defendant has submitted an unnotarized statement, the

State may challenge this nonjurisdictional procedural defect at the second stage of

proceedings. 725 ILCS 5/122-5 (West 2008) (providing that, where a petition is not

dismissed at the first stage, the State has 30 days to “answer or move to dismiss”);

see, e.g., Boclair, 202 Ill. 2d at 102 (finding “the matter of untimeliness should be

left for the State to assert during the second stage of the post-conviction

proceedings”). Where a defendant’s postconviction counsel is unable to obtain a

properly notarized affidavit, the court may dismiss the petition upon the State’s

motion. See 725 ILCS 5/122-5 (West 2008) (granting the court discretion to allow

amendment of the petition “as shall be appropriate, just and reasonable and as is

generally provided in civil cases”).

¶ 36 Relying on the canon against surplusage, the State argues that considering the

Langford statement as “other evidence” renders the word “affidavit” surplus. See

725 ILCS 5/122-2 (West 2008). Further, the State argues, the Langford statement is

inadmissible hearsay, such that it cannot qualify as other evidence. We do not

agree. The use of “other evidence” in the phrase “affidavits, records, or other

evidence” indicates the legislature contemplated a wide range of documentary

evidence would satisfy the evidentiary requirements of the first stage. 725 ILCS

5/122-2 (West 2008). That the legislature would accept an explanation for failure to

attach evidence in lieu of such evidence further indicates legislative intent that

petitions with substantive merit would advance to the second stage, even where the

evidence attached suffers from remediable procedural defects. Id. The word

“affidavit” is not rendered surplus: a defendant still has ample reason to obtain a

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properly notarized affidavit. First-stage notarization would prevent the State from

raising that issue in a second-stage challenge. First-stage notarization also would

eliminate any risk that postconviction counsel would be unable to get the statement

notarized and would focus postconviction counsel’s resources on substantive

improvements to the petition. Because an affidavit remains sufficient and in some

ways superior for first-stage purposes, the word “affidavit” is not rendered surplus

by accepting a signed statement as “other evidence.”

¶ 37 Nor are we persuaded by the State’s arguments that all such “other evidence”

must be competent, admissible evidence at the time attached to the petition. Were

this the case, postconviction petitioners would be subjected at the first stage to the

requirements for authentication of documents and qualification of expert witnesses

who might testify, or to satisfactorily prove a chain of custody for physical

evidence. See Ill. R. Evid. 702, 901; see, e.g., Van Hattem v. K mart Corp., 308 Ill.

App. 3d 121, 135 (1999) (requiring evidence’s proponents to show “that it was

reasonably probable the evidence remained unchanged in any important respect or

was not substituted”). Such inquiries are incompatible with the first stage’s

abbreviated review. It is enough for first-stage purposes that the defendant has

provided substantive evidentiary content showing his claims are capable of

corroboration and independent verification. The contrary view would allow a

postconviction petition that is neither frivolous nor patently without merit, but

supported only by an unnotarized factual statement, to be denied substantive

review simply because the petitioner did not have access to a notary. Further, under

Collins, defendant’s petition would have advanced to the second stage, as long as

he explained that Langford had authored the statement supporting the allegations in

the petition but that the statement could not be notarized due to the lack of a notary.

It is difficult to understand how an explanation of the difficulty of finding a notary

within the prison—a difficulty the court can readily surmise—would convert the

instant petition from being frivolous or patently without merit to being potentially

meritorious. Indeed, such an explanation would be entirely unrelated to whether the

petition relies on legal theories completely contradicted by the record or factual

allegations that are “fantastic or delusional.” Hodges, 234 Ill. 2d at 12, 16-17.

¶ 38 The dissent expresses concern that our ruling will cause a flood of frivolous

second-stage postconviction proceedings. Infra ¶ 77. We note, first, that the court

may dismiss a petition where it is frivolous or patently without merit. Those

petitions containing assertions without an arguable basis in fact or law will be

filtered at the first stage. Second, where postconviction counsel is unable to remedy

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the lack of notarization of an attached statement, dismissal at the second stage is

appropriate—filtering out forgeries. Third, the dissent’s fear of an overwhelming

number of frivolous second-stage proceedings is equally applicable to this court’s

decision in Boclair, wherein we held that timeliness was not an appropriate ground

to dismiss at the first stage. Boclair, 202 Ill. 2d at 99. We are unaware of a flood of

frivolous second-stage proceedings stemming from that decision. Boclair so held

because the legislature limited first-stage dismissal to two reasons: the petition is

frivolous or patently without merit. Id. at 100-01. Because we conclude the lack of

notarization does not render defendant’s petition to be frivolous or patently without

merit, we reach the same result.

¶ 39 Whether Defendant’s Petition Is Otherwise Frivolous

¶ 40 The circuit court first noted the Langford statement was not an affidavit “since

it is not a sworn statement and is not notarized.” The appellate court affirmed solely

on that basis, which we have now rejected. The circuit court made additional

observations that might present a basis to dismiss:

“Langford does not even state that he would testify to these facts on behalf of

petitioner. Moreover, petitioner has failed to explain how he acquired this

statement and why he could not have obtained it sooner, especially since he

specifically states that he heard of Langford from investigating officers.

Finally, Langford’s statement is hardly of such a conclusive character that it

would change the result of petitioner’s trial. Simply put, it is a one-page,

bare-bones statement indicating that the victim was killed as the result of an

attempted robbery and describes the route Langford purportedly drove in his

car to commit the attempted robbery. Indeed, the statement is nothing more

than a recitation of the most benign facts presented during petitioner’s trial. As

such, petitioner’s claim fails.”

¶ 41 The circuit court is correct in noting the Langford statement does not indicate

he would testify to the facts therein. However, on the first stage of review, the court

is to take the allegations of the petition as true and construe them liberally.

Edwards, 197 Ill. 2d at 244. At this point, the court might infer that Langford was

willing to provide the statement but not testify, or it might infer that Langford was

willing to provide the statement and to testify. We believe the latter inference is

consistent with the directive to construe the petition’s allegations liberally.

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¶ 42 The State has echoed the circuit court’s reasoning, in that evidence at trial

revealed defendant knew Langford’s name and potential involvement even back in

1985. Yet there seems to us to be a gulf between knowing a person’s name and that

he may have been involved, and having a signed confession from that person in

hand. There are ample conceivable reasons for the delay. Both defendant and

Langford are incarcerated, limiting their ability to contact each other. Likewise, an

individual who has committed a murder is presumably reluctant to confess to it. On

the record before us, we cannot conclude defendant “was armed with this

information at the time of trial” or that it clearly “could have been discovered

sooner.” See People v. Harris, 206 Ill. 2d 293, 301 (2002). In any event, the circuit

court’s role at this point is not to speculate reasons for dismissal; it is to dismiss

only if the petition presents “no arguable basis either in law or in fact.” Hodges, 234

Ill. 2d at 12. To be sure, there has been a long delay between defendant’s conviction

and the Langford statement, more than two decades. However, at this early stage in

the postconviction proceedings, there is no indication the Langford statement

should have been available to defendant sooner. Further, “the Act does not

authorize the dismissal of a post-conviction petition during the initial stage based

on untimeliness.” Boclair, 202 Ill. 2d at 99. This issue requires more factual

development.

¶ 43 The circuit court found the Langford statement to be “a one-page, bare-bones

statement” and “nothing more than a recitation of the most benign facts presented

during petitioner’s trial.” The attached evidence must only show the petition’s

allegations are “capable of objective or independent corroboration,” Collins, 202

Ill. 2d at 67, and “identify with reasonable certainty the sources, character, and

availability of the alleged evidence supporting the petition’s allegations.”

(Emphasis added.) Delton, 227 Ill. 2d at 254. We conclude that under the forgiving

standards of the first stage, the Langford statement meets these requirements. There

are aspects of the Langford statement that conflict with the testimony heard at trial.

Obviously, it conflicts with defendant’s own grand jury testimony, in which

defendant admitted following Ciralski to his home so that Griffin and Freeman

could kill Ciralski. The Langford statement indicates Langford shot Ciralski and

took “several thousand dollars” from his pockets. At trial, a police detective

testified a store employee said Ciralski would have been carrying the day’s

proceeds of only $1100 to $1500, and Ciralski’s family indicated that more than

$1000 was turned over to them from Ciralski’s body, at the hospital. Notably, the

Langford statement describes Ciralski’s store as being at “the southeast corner of

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57th Street and Indiana,” while all the testimony at trial indicated the store was

located at 58th Street and Indiana Avenue.

¶ 44 The Langford statement also contains elements consistent with the testimony at

trial. The route described in the Langford statement matches the route defendant

described in his grand jury testimony. Two individuals confronted Ciralski as he

was exiting his car, in accordance with Robert Ciralski, Jr.’s testimony that two

men were standing near the car. Ciralski’s killers shot him, then rifled through his

pockets, in accordance with officers’ testimony as to the crime scene. Someone in

Ciralski’s house fired a gun at Ciralski’s killers, and the killers fled on foot to their

car, in accordance with Robert Ciralski, Jr.’s testimony. Overall, the Langford

statement is consistent with defendant’s testimony at trial and overall theory of the

case: that defendant was uninvolved and only parroted what Detective Pochordo

had already told him, embellishing his account with details he thought were

credible.

¶ 45 The circuit court’s consideration that the Langford statement lacked

“conclusive character” essentially weighed the credibility of defendant’s petition

and the Langford statement against defendant’s prior grand jury testimony, the

testimony of Detective Pochordo, and the testimony of assistant State’s Attorney

Beuke. This analysis constituted a more probing inquiry than what is contemplated

on first-stage review, where dismissal is appropriate only if “the petition has no

arguable basis either in law or in fact.” Hodges, 234 Ill. 2d at 12. These strengths

and weaknesses are best tested in the second or third stages of postconviction

review.

¶ 46 Accordingly, we reverse and remand for second-stage proceedings.

¶ 47 CONCLUSION

¶ 48 The Langford statement, while subject to challenge at the second stage for lack

of notarization, qualifies as other evidence for first-stage postconviction review.

The circuit court’s alternative reasons to dismiss the postconviction petition

constituted greater scrutiny than the first stage involves. The judgment of the

appellate court is reversed. The judgment of the circuit court is reversed.

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¶ 49 Reversed and remanded.

¶ 50 JUSTICE THOMAS, dissenting:

¶ 51 The facts of this case do not, as the majority asserts, fall “somewhere between

Hommerson and Collins.” Supra ¶ 29. On the contrary, the facts of this case fall

squarely within Collins, and consequently defendant’s petition in this case deserves

the same fate as that in Collins: summary dismissal. The appellate court’s decision

below therefore should be affirmed, and for this reason I dissent.

¶ 52 Titled “Contents of Petition,” section 122-2 of the Post-Conviction Hearing Act

expressly states that a postconviction petition “shall have attached thereto

affidavits, records, or other evidence supporting its allegations or shall state why

the same are not attached.” 725 ILCS 5/122-2 (West 2012). In Collins, the

defendant filed a pro se postconviction petition that, “[c]ontrary 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.” Collins, 202 Ill. 2d at 66 (quoting 725 ILCS 5/122-2 (West

2000)). The trial court summarily dismissed the pro se petition, and this court

affirmed. In doing so, this court explained that the failure to comply with section

122-2 is “fatal” to a postconviction petition and “alone justifies” summary

dismissal. Id.

¶ 53 Here, there is absolutely no question that defendant failed to comply with

section 122-2. Indeed, the only thing attached to defendant’s pro se petition was a

piece of paper containing a statement purporting to be from a man named Robert

Langford. Though captioned “affidavit,” the statement was not made under oath,

was not sworn to before a person who has authority under the law to administer

oaths, and was not notarized. Consequently, rather than being an “affidavit,” the

piece of paper attached to defendant’s postconviction petition was a complete

“nullity” that had absolutely “no legal effect.” Roth v. Illinois Farmers Insurance

Co., 202 Ill. 2d 490, 497 (2002) (holding that an unsworn affidavit is a nullity that

has no legal effect). In other words, just like the petition in Collins, defendant’s

petition here was supported by precisely nothing. Given this, the trial court below

was correct to dismiss defendant’s petition summarily, and the appellate court was

correct to affirm that dismissal.

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¶ 54 The majority reaches the opposite conclusion. According to the majority, the

trial court below erred in summarily dismissing defendant’s pro se petition

because, although the unsworn Langford statement does not constitute an

“affidavit,” it does constitute “other evidence” for purposes of the Act. Supra ¶ 34.

In reaching this result, the majority explains that section 122-2’s evidentiary

affidavit requirement serves two important purposes: (1) to show that the petition’s

allegations are capable of independent or objective corroboration; and (2) to

identify with reasonable certainty the sources, character, and availability of the

alleged evidence supporting the petition’s allegations. Supra ¶ 32. Thus, the

majority explains, the critical question is not whether an “unsworn factual

statement” is an affidavit, nor even whether such a statement is admissible (supra

¶ 34). Rather, the critical question is whether the “unsworn factual statement”

satisfies the two purposes identified above. If it does, then the “unsworn factual

statement” constitutes “other evidence” for purposes of section 122-2, whatever its

“remediable procedural defects.” Supra ¶ 36. As to the unsworn Langford

statement specifically, although the majority concedes that the statement is not only

not an affidavit but also inadmissible (supra ¶ 34), the majority nevertheless

concludes that the statement constitutes “other evidence” for purposes of the Act

because failure to notarize does not “limit” or “destroy” an unsworn statement’s

ability to serve the purposes of an evidentiary affidavit. Supra ¶ 34.

¶ 55 “Other Evidence”

¶ 56 There are numerous problems with the majority’s analysis. First and foremost

is the majority’s conclusion that, despite being unsworn, the Langford statement

nevertheless is “other evidence” that “satisf[ies] the purposes” of section 122-2’s

evidentiary affidavit requirement. This court could not have been any clearer in

Roth: an affidavit that is not sworn is “a nullity” that has “no legal effect.” Roth,

202 Ill. 2d at 497. Thus, under Roth, the unsworn Langford statement not only

cannot satisfy the purpose of section 122-2’s evidentiary affidavit requirement, it

cannot satisfy any legal purpose. Given this, the majority’s conclusion to the

contrary amounts to an outright overruling of Roth. Prior to today, an unsworn

affidavit was “a nullity” with “no legal effect.” After today, an unsworn affidavit is

“evidence” on par with affidavits, records, evidence depositions, and oral

testimony. See infra ¶ 61. Indeed, according to the majority, the fact that the

unsworn Langford statement is unsworn neither “limits” or “destroys” that

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statement’s ability to “satisfy the purposes” of an evidentiary affidavit. Supra ¶ 34.

In other words, according to the majority, an “unsworn factual statement” is no less

effective at satisfying the purposes of an evidentiary affidavit than an actual

evidentiary affidavit is. This is a complete inversion of our affidavit jurisprudence,

and the majority offers no explanation to justify its radical departure from stare

decisis on this point.

¶ 57 And lest there be any thought that perhaps Roth was either misguided or

shortsighted in its conclusion concerning the impotency of unsworn statements,

this case provides all the confirmation one needs that Roth was emphatically

correct on this point. Again, according to the majority, an “unsworn factual

statement” constitutes “other evidence” for purposes of the Act if it (1) shows that

the petition’s allegations are capable of independent or objective corroboration; and

(2) identifies with reasonable certainty the sources, character, and availability of

the alleged evidence supporting the petition’s allegations. Supra ¶ 32. Or to put it

another way, “[i]t is enough for first-stage purposes that the defendant has provided

substantive evidentiary content showing his claims are capable of corroboration

and independent verification.” (Emphasis added.) Supra ¶ 37. The question I have,

and the one the majority nowhere answers, is how can an unsworn factual statement

possibly “show” or establish “with reasonable certainty” either of these things?

Indeed, as the majority concedes, the whole point of having an affidavit sworn to

under oath is “to verify the identity of the person signing the document and to

ensure that person understands that he subjects himself to penalties of perjury in the

statement.” Supra ¶ 32. The obvious corollary to this is that, with respect to a

statement that is not sworn to under oath, neither of these purposes is served—the

identity of the declarant remains unverified, and the risk of perjury is nonexistent.

And this is precisely why an unsworn affidavit is a “nullity” having “no legal

effect.” Indeed, what possible foundation does the majority have for concluding, or

even presuming, that the unsworn Langford statement was in fact drafted and

signed by Langford? There is absolutely nothing on the face of that statement to

either “show” or establish “with reasonable certainty” that this is the case. As for

the perjury piece, even if an unsworn statement states, as the unsworn Langford

statement does, that the declarent understands that he or she is subject to the

penalties of perjury, in fact the declarent is not subject to the penalties of perjury

because the statement is unsworn. That’s the point, and the one the majority seems

to miss. The bottom line is that “unsworn factual statement” is just another way of

saying “hearsay.” And it is beyond well-settled that hearsay is “generally

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inadmissible due to its lack of reliability.” People v. Olinger, 176 Ill. 2d 326, 357

(1997). An inadmissible and unreliable statement cannot “show” or establish “with

reasonable certainty” anything. Thus, even assuming that the majority has correctly

defined the test for establishing whether something is “other evidence” under the

Act, the unsworn Langford statement fails that test miserably.

¶ 58 At this point, it is worth recalling this court’s decision in Secura Insurance Co.

v. Illinois Farmers Insurance Co., 232 Ill. 2d 209 (2009). In Secura, the plaintiff’s

notice of appeal was received by the circuit court outside the 30-day appeal period,

and there was no affidavit or certificate of mailing in the record stating that the

notice of appeal had been timely filed. Id. at 212. After initially granting the

defendant’s motion to dismiss the plaintiff’s appeal for lack of jurisdiction, the

appellate court allowed the plaintiff to supplement the record with a cover letter

that the plaintiff had sent to the circuit court and that was dated on the final day of

the 30-day filing period. Id. In this court, the issue was whether that letter was

sufficient evidence to establish that the notice of appeal was timely. In holding that

it was not, this court explained that, under the relevant rules, proof of mailing must

be either by a certificate of attorney or by affidavit. Id. at 215-16. The court then

explained that, for obvious reasons, the plaintiff’s letter to the clerk constituted

neither of these things:

“The letter does not contain an affidavit or a certificate and nothing is certified

or sworn to. The cover letter contains only a date, which, at best, indicates that it

may have been mailed on that date. This is simply insufficient for purposes of

the rule.” (Emphases omitted.) Id. at 216.

At that point, and of particular relevance to the present case, the court emphasized

that “the record, having been supplemented with the cover letter, offers no more

certainty concerning the timeliness of the notice than it did before the cover letter

became part of the record.” (Emphasis added.) Id. In other words, according to

Secura, the evidentiary value of filing an “unsworn factual statement” where an

affidavit is required is precisely zero. Indeed, the legal consequence is exactly the

same as filing nothing at all, which is exactly what I argued above and exactly what

Roth compels.

¶ 59 But even if this were not the case, the majority’s conclusion that the unsworn

Langford statement constitutes “other evidence” would remain incorrect because

that conclusion is wholly foreclosed by the plain language of the Act. Under our

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well-settled rules of statutory construction, “[w]here a word is used in different

sections of the same statute, the presumption is that the word is used with the same

meaning throughout the statute, unless a contrary legislative intent is clearly

expressed.” People v. Maggette, 195 Ill. 2d 336, 349 (2001). The phrase “other

evidence” appears twice in the Act. It appears first in section 122-2, which is the

section at issue in this case and which states that the petition when filed must have

attached to it “affidavits, records, or other evidence supporting its allegations.” 725

ILCS 5/122-2 (West 2008). The phrase next appears in section 122-6, which,

among other things, states that the trial court in a postconviction proceeding “may

receive proof by affidavits, depositions, oral testimony, or other evidence.”

(Emphases added.) 725 ILCS 5/122-6 (West 2008). Thus, under the plain language

of the Act, “other evidence” refers to something that can be used to prove contested

facts to the court. In other words, “other evidence” means other admissible

evidence, because of course only admissible evidence can be used to prove

contested facts to the court. This is important because, as an “unsworn factual

statement,” the unsworn Langford statement is wholly inadmissible and therefore

incapable of proving anything, a point the majority readily concedes. Supra ¶ 34.

That being the case, the unsworn Langford statement is clearly not “other

evidence” under section 122-6, which means it also is not “other evidence” under

section 122-2, as we must presume that the phrase “other evidence” means the

same thing in both provisions. Conversely, were we to say, as the majority does,

that the unsworn Langford statement constitutes “other evidence” under section

122-2, then we would also have to say, under our settled canons of construction,

that the unsworn Langford statement is “other evidence” under section 122-6. But

this cannot be, as to say this would be to say that a defendant may prove contested

facts in a postconviction proceeding though the use of “unsworn factual

statements,” a principle the majority surely does not wish to establish. No, the

proper and consistent reading of the statute is to say that, under the plain language

of section 122-6, “other evidence” means other admissible evidence. Indeed, given

the Act’s plain language, it can mean no other thing. Consequently, under our

settled canons of construction, “other evidence” must mean the same thing when

used in section 122-2. The unsworn Langford statement therefore is not “other

evidence,” and defendant’s pro se petition therefore did not comply with section

122-2.

¶ 60 On this last point, it is interesting to note that, although the majority

affirmatively holds that the unsworn Langford statement constitutes “other

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evidence” for purposes of the Act (supra ¶ 34), the majority does not appear to

believe that this is really the case. Again, the majority’s holding in this case is that

defendant complied fully with section 122-2 because, while not an “affidavit,” the

unsworn Langford statement is “other evidence.” Supra ¶ 34. Nevertheless, the

majority goes on to hold that the State may move to dismiss defendant’s petition at

the second stage on the grounds that the Langford statement is unsworn, and that

defendant’s continued failure to have it sworn would compel the granting of the

state’s motion. Supra ¶ 35. Forgive my confusion, but if the unsworn Langford

statement is, as the majority insists, “other evidence,” then how could defendant’s

continued reliance upon that statement possibly constitute grounds for dismissal at

the second stage? Presumably, the State could not move to dismiss a petition at the

second stage solely on the grounds that it is supported by a properly sworn

affidavit. Nor could the State move to dismiss a petition at the second stage solely

on the grounds that it is supported by records. Indeed, such petitions would be in

full substantive compliance with the Act, and a motion to dismiss of the sort

described would be nonsense. Why, then, could the State move to dismiss at the

second stage solely on the grounds that the petition is supported by “other

evidence”? Yet this is exactly what the majority is saying. In one breath, the

majority is saying that the unsworn Langford statement is “other evidence” and that

defendant’s petition therefore complies with section 122-2 and may not be

dismissed. In the next breath, the majority is saying that the State may move to

dismiss defendant’s petition at the second stage on the grounds that it is not

supported by “other evidence” and therefore does not comply with section 122-2

and that, if nothing changes, the State’s motion to dismiss must be granted. Which

is it? Again, if the unsworn Langford statement is indeed “other evidence,” then

defendant’s continued reliance upon it at stage two could not possibly constitute

grounds for dismissal, as “other evidence” is precisely what the Act demands of

him. Conversely, if the unsworn Langford statement does not constitute “other

evidence” at stage two, then it never constituted “other evidence” to begin with and

summary dismissal is appropriate. This is the exact point I have been making, and

in its own way, the majority appears to be making it, too.

¶ 61 As if this were not enough, the majority’s conclusion that the unsworn

Langford statement is “other evidence” also runs directly contrary to the ejusdem

generis doctrine, which provides that, when a statutory clause specifically

describes several classes of persons or things and then includes “other persons or

things,” the word “other” is interpreted to mean “other such like.” People v. Davis,

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199 Ill. 2d 130, 138 (2002). That is exactly the situation we have here. Section

122-2 requires that a postconviction petition have attached to it “affidavits, records,

or other evidence.” Likewise, section 122-6 states that “[t]he court may receive

proof by affidavits, depositions, oral testimony, or other evidence.” 725 ILCS

5/122-6 (West 2008). Under the ejusdem generis doctrine, this court must presume

that, when the legislature used the phrase “other evidence,” it meant other evidence

like affidavits, records, depositions, and oral testimony. So then what do these

specified classes of evidence have in common? What they have in common is they

are all classes of evidence that may be used to prove contested facts in a legal

proceeding. 3 In other words, they are classes of admissible evidence. Thus, under

the ejusdem generis doctrine, the phrase “other evidence” must mean other classes

of admissible evidence, which again is the point I’ve been making. And measured

by this standard, the unsworn Langford statement utterly fails, as even the majority

concedes that the unsworn Langford statement is wholly inadmissible. By contrast,

the majority’s position turns the ejusdem generis doctrine on its head by holding

that the “other evidence” allowed for in sections 122-2 and 122-6 need not bear any

resemblance whatsoever to the specified classes of evidence that come before.

Indeed, as construed by the majority, section 122-2 may as well read “affidavits,

records, or anything else,” and section 122-6 may as well read “affidavits,

depositions, oral testimony, or anything else,” as that is exactly the import of

saying that “other evidence” includes “unsworn factual statements” that are neither

“admissible” nor “competent.” Supra ¶ 37. I am certain that this is not what the

legislature intended, and in any event it is utterly incompatible with the long-settled

ejusdem generis doctrine.

¶ 62 On a related point, I am also troubled by the majority’s express finding that “the

circuit court may not dismiss at the first stage solely for failure to notarize a

statement styled as an evidentiary affidavit.” (Emphasis added.) Supra ¶ 34. This is

a remarkable holding, as it elevates form over substance to a nearly unprecedented

degree. To “style” something means simply to “title” or “caption” it. Black’s Law

Dictionary 1560 (9th ed. 2009); see also Webster’s Third New International

Dictionary 2271 (1993) (defining “style” alternatively as “designate,” “TERM,”

“NAME,” “CALL”). Thus, according to the majority, so long as a postconviction

petition has attached to it something titled “affidavit,” that petition is effectively

3

In People v. Rose, 48 Ill. 2d 300, 302 (1971), this court specifically held that “depositions”

under section 122-6 refers only to evidence depositions and not to discovery depositions.

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immune from summary dismissal. And this is true even if the actual substance of

the attachment bears no resemblance whatsoever to an actual affidavit. From now

on, at stage one, the caption controls. Now presumably, the majority will object to

my characterization of its holding on the grounds that, in the sentence following the

one quoted above, it adds:

“Instead, the circuit court at the first stage must look to whether the evidentiary

attachments satisfy the purposes identified in Collins and Delton: showing the

petition’s allegations are capable of corroboration and identifying the sources,

character, and availability of evidence alleged to support the petition’s

allegations.” Supra ¶ 34.

If this is consolation, it is hollow consolation. Again, we have already established

that, under this court’s settled case law, an “unsworn factual statement” of the sort

filed by defendant in this case is an inadmissible and unreliable “legal nullity” that

has “no legal effect.” Indeed, from an evidentiary standpoint, filing an “unsworn

factual statement” where an “affidavit” is called for is exactly the same as filing

nothing at all. Secura, 232 Ill. 2d at 216. So if an “unsworn factual statement” can

pass the majority’s test, which is precisely what the majority holds in this case

(supra ¶ 34), then I think it is safe to say that anything can pass the majority’s

test—provided, of course, that it bears the caption “affidavit.” Make no mistake,

the caption does indeed control, and stage two is now available simply for the

styling.

¶ 63 Before moving on from this issue, I would note that, near the end of its “other

evidence” analysis, the majority confesses that its conclusion concerning the

evidentiary value of the unsworn Langford statement is motivated at least in part by

its inability to understand a policy that would allow for the summary dismissal of

petitions containing defective evidence but disallow the summary dismissal of

petitions containing an explanation as to why such evidence is defective. Thus, the

majority explains:

“under Collins, defendant’s petition would have advanced to the second stage,

as long as he explained that Langford had authored the statement supporting the

allegations in the petition but that the statement could not be notarized due to

the lack of a notary. It is difficult to understand how an explanation of the

difficulty of finding a notary within the prison—a difficulty the court can

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readily surmise—would convert the instant petition from being frivolous or

patently without merit to being potentially meritorious.” Supra ¶ 37.

I would like to help the majority along in its understanding. To begin with, the

policy that the majority describes arises not “under Collins” but rather under the

plain language of section 122-2, which states:

“The 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 2008).

As for “how an explanation of the difficulty of finding a notary within the prison

*** would convert the instant petition from being frivolous or patently without

merit to being potentially meritorious,” the answer to that can be found in this

court’s settled canons of statutory construction. When construing a statute, this

court’s primary goal is to ascertain and give effect to the legislature’s intent. Moore

v. Chicago Park District, 2012 IL 112788, ¶ 9. We seek that intent first from the

plain language of the statute and, if that language is clear and unambiguous, we are

not at liberty to depart from its plain meaning. Id. Thus, the answer to the majority’s

question as to “how an explanation of the difficulty of finding a notary within the

prison *** would convert the instant petition from being frivolous or patently

without merit to being potentially meritorious” is that this is what section 122-2

says. Supra ¶ 37. Whether we “understand” or approve of the policy set forth in

section 122-2 is immaterial, as, absent a constitutional infraction, it is not this

court’s job to second-guess a legislative determination that a law is desirable or

necessary. See People v. Kohrig, 113 Ill. 2d 384, 397 (1986).

¶ 64 Procedural Defect

¶ 65 Moving on from the “other evidence” question, I would now like to address the

majority’s assertion that the failure to have a section 122-2 affidavit sworn to under

oath amounts to a “procedural” rather than a substantive defect in the

postconviction petition. According to the majority, “[w]here a defendant has

submitted an unnotarized statement, the State may challenge this nonjurisdictional

procedural defect at the second stage of proceedings.” (Emphasis added.) Supra ¶

35. At another place, the majority characterizes a section 122-2’s affidavit’s lack of

notarization as a “remediable procedural defect.” Supra ¶ 36. Of course, the

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majority’s choice of such language is no accident, as characterizing the lack of

notarization as a “procedural defect” allows the majority to invoke Hommerson’s

observation that, “at the first stage of proceedings, the court considers the petition’s

substantive virtue rather than its procedural compliance.” Hommerson, 2014 IL

115638, ¶ 11. And in fact, this is exactly what the majority does. Supra ¶ 33.

¶ 66 The problem with the majority’s approach is that, in relation to both the

Langford statement itself and defendant’s use of that statement in support of his

postconviction petition, the fact that the statement is unsworn is clearly a

substantive, rather than a procedural, defect. As to the unsworn Langford statement

itself, the majority asserts that “lack of notarization *** does not prevent the court

from reviewing the petition’s ‘substantive virtue,’ as to whether it ‘set[s] forth a

constitutional claim for relief.’ ” Supra ¶ 33 (quoting Hommerson, 2014 IL 115638,

¶ 11). In fact, according to the majority, lack of notarization is a mere “procedural

defect” that “does not limit” or “destroy” a statement’s ability to function as

evidence. Supra ¶¶ 34, 36. In other words, according to the majority, being sworn

to under oath is a mere procedural step in the creation of an affidavit, the absence of

which has no substantive impact on the statement’s evidentiary efficacy. This

position finds no support in Roth, and it is utterly contrary to everything Roth has to

say about affidavits.

¶ 67 Again, Roth is crystal clear: being sworn to under oath is not a mere procedural

step in the creation of an affidavit. On the contrary, it is the defining substantive

feature of an affidavit. The issue in Roth was whether an unsworn statement signed

by the defendant’s attorney was sufficient to satisfy Supreme Court Rule 315(b)’s

affidavit requirement. In holding that it absolutely was not, this court

doubled-down on the principle that, to be an “affidavit,” the statement in question

simply must be made under oath and sworn to before someone who has authority

under the law to administer oaths. Indeed, the court could not have been any clearer

on this point, stating it multiple times and in multiple ways, both positively and

negatively. Noting that “Illinois courts have defined [‘affidavit’] in consistent

fashion for over 100 years,” the court first explained that “ ‘[a]n affidavit is simply

a declaration, on oath, in writing, sworn to by a party before some person who has

authority under the law to administer oaths.’ ” (Emphases added.) Roth, 202 Ill. 2d

at 493 (quoting Harris v. Lester, 80 Ill. 307, 311 (1875)). From there, the court

reiterated that principle, this time adding the obvious corollary that “ ‘ “[a] writing

which does not appear to have been sworn to before any officer does not constitute

an affidavit.” ’ ” (Emphases added.) Id. at 493-94 (quoting People v. Smith, 22 Ill.

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App. 3d 377, 380 (1974), quoting 2 Ill. L. and Prac. Affidavits § 2, at 648 (1953)).

And then, just for good measure and to ensure that there would be no remaining

confusion on this point, the court again emphasized that “an affidavit must be

sworn to, and statements in a writing not sworn to before an authorized person

cannot be considered affidavits.” (Emphases added.) Id. at 494. Notably, this all

occurred in the course of a single paragraph, the conclusion of which was the

court’s express holding that “[the] defendant did not file an ‘affidavit’ in this case

because the document filed with the appellate court does not consist of a statement

sworn to before a person who has authority under the law to administer oaths.”

(Emphasis added.) Id.

¶ 68 Now admittedly, immediately following its discourse on the meaning of

“affidavit,” the court in Roth was compelled to acknowledge its recent decision in

Robidoux v. Oliphant, 201 Ill. 2d 324 (2002), which held that an unsworn affidavit

was sufficient to comply with Supreme Court Rule 191(a)’s affidavit requirement.

In doing this, however, the court went out of its way to explain that Robidoux was a

singular case that turned not on the century-old definition of “affidavit” but rather

on the unusual language contained in Rule 191(a). Specifically, the court noted

that, rather than simply require the filing of an “affidavit,” Rule 191(a) expressly

enumerates what is required of the affidavits filed pursuant to that Rule, stating that

such affidavits:

“shall be made on the personal knowledge of the affiants; shall set forth with

particularity the facts upon which the claim, counterclaim, or defense is based;

shall have attached thereto sworn or certified copies of all documents upon

which the affiant relies; shall not consist of conclusions but of facts admissible

in evidence; and shall affirmatively show that the affiant, if sworn as a witness,

can testify competently thereto.” Ill. S. Ct. R. 191(a) (eff. Jan. 4, 2013).

The court then explained that, “[b]ecause Rule 191(a) sets out specific

requirements for an affidavit, but omits reference to notarization, it was reasonable

for this court to conclude in Robidoux that notarization is not required.” Roth, 202

Ill. 2d at 496. As importantly, the court in Roth then emphasized both that “our

analysis in Robidoux necessarily applies only to affidavits filed pursuant to Rule

191(a)” and that, where the provision at issue “gives absolutely no guidance as to

what is required of the party filing the affidavit,” the “requirements must be

gleaned from our case law, i.e., how this court has traditionally viewed the

requirements of an affidavit.” (Emphasis added.) Id. at 495, 496. And how the court

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“has traditionally viewed the requirements of an affidavit” is that an affidavit that is

not sworn is a “nullity” that “has no legal effect.” Id. at 496, 497.

¶ 69 Thus, far from being a mere procedural step in the creation of an affidavit,

being sworn to under oath is the defining and essential substantive feature of an

affidavit. It simply is not possible, then, as the majority does, to dismiss the

unsworn Langford statement’s lack of notarization as a mere “procedural defect”

that does not “limit” or “destroy” the statement’s ability to function as evidence.

Supra ¶ 34. Under Roth, the fact that the Langford statement was not sworn to

under oath not only precludes it from being an affidavit in the first place but also

makes it a “nullity” with “no legal effect,” which is a substantive defect if ever

there was one.

¶ 70 In the same way, the fact that the Langford statement is unsworn is not a mere

“procedural defect” in defendant’s postconviction petition, such that Hommerson

controls. On the contrary, it is a substantive defect that, under this court’s decision

in Collins, mandates summary dismissal.

¶ 71 At this point, it is worth reviewing the important difference between Collins

and Hommerson, as doing so will demonstrate that Hommerson has absolutely no

role to play in deciding the present controversy. Collins arose under section 122-2

of the Act, which is concerned solely with the substance of a postconviction

petition. Titled “Contents of Petition,” section 122-2 provides that:

“The petition shall identify the proceeding in which the petitioner was

convicted, give the date of the rendition of the final judgment complained of,

and clearly set forth the respects in which petitioner’s constitutional rights were

violated. The petition shall have attached thereto affidavits, records, or other

evidence supporting its allegations or shall state why the same are not attached.

The petition shall identify any previous proceedings that the petitioner may

have taken to secure relief from his conviction. Argument and citations and

discussion of authorities shall be omitted from the petition.” 725 ILCS 5/122-2

(West 2012).

Contrary to the requirements of this provision, the defendant in Collins filed a

pro se postconviction petition that was unsupported by affidavits, records, or other

evidence and offered no explanation for the absence of such documentation.

Collins, 202 Ill. 2d at 66 (quoting 725 ILCS 5/122-2 (West 2008)). The trial court

summarily dismissed the pro se petition, and this court affirmed. In doing so, this

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court explained that the failure to comply with section 122-2 is “fatal” to a

postconviction petition and “alone justifies” summary dismissal. Id.

¶ 72 Hommerson, by contrast, arose under section 122-1(b) of the Act, which

outlines how a postconviction proceeding “shall be commenced”:

“The 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. Petitioner shall also serve another copy upon the State’s

Attorney by any of the methods provided in Rule 7 of the Supreme Court. The

clerk shall docket the petition for consideration by the court pursuant to Section

122-2.1 upon his or her receipt thereof and bring the same promptly to the

attention of the court.” 725 ILCS 5/122-1(b) (West 2012).

In Hommerson, the defendant filed a pro se postconviction petition alleging

ineffective assistance of counsel. Although the petition was supported by several

section 122-2 affidavits, defendant did not verify the petition prior to filing it, as

required by section 122-1(b). The trial court summarily dismissed the pro se

petition, and this time the court reversed. In doing so, the court explained that “at

the first stage of proceedings, the court considers the petition’s substantive virtue

rather than its procedural compliance.” 2014 IL 115368, ¶ 11.

¶ 73 Properly understood, then, Collins and Hommerson are two very different

cases. Collins arose under a substantive provision of the Act (section 122-2), and it

held that the failure to comply with that provision is a substantive defect in the

petition itself that justifies summary dismissal at the first stage. Hommerson, by

contrast, arose under a procedural provision of the Act (section 122-1), and it held

that the failure to comply with that provision is a procedural defect that does not

justify summary dismissal at the first stage. And if there is any doubt that this is

what distinguishes these two cases, simply consider that this court has continued

both to cite and to apply Collins long after announcing that, at the first stage of

proceedings, a court considers only the petition’s “substantive virtue” and not its

“procedural compliance.” Indeed, though the majority cites Hommerson for this

principle, it was actually first announced by the court in People v. Boclair, which

was decided only a few months after Collins. See People v. Boclair, 202 Ill. 2d 89,

102 (2002). Significantly, in the 13 years since Boclair was announced, this court

has continued to cite Collins for the principle that failing to comply with section

122-2 justifies summary dismissal at the first stage. See, e.g., People v. Harris, 224

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Ill. 2d 115, 126 (2007) (citing Collins for the principle that “[t]he failure to comply

with section 122-2 is fatal and by itself justifies the petition’s summary dismissal”);

People v. Hall, 217 Ill. 2d 324, 332 (2005) (same); see also People v. Delton, 227

Ill. 2d 247, 255 (2008). In light of the now long-settled principle that, at the first

stage, a court considers a postconviction petition’s “substantive virtue” rather than

its “procedural compliance,” this court’s continued adherence to Collins

necessarily means that the failure to comply with section 122-2 is a substantive

defect in the petition itself rather than a mere “procedural shortcoming.” Otherwise,

summary dismissal for such a failure would be impermissible.

¶ 74 Why does this matter? It matters because defendant in this case wholly failed to

comply with section 122-2. Again, that section expressly states 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.” 725 ILCS 5/122-2 (West

2012). Here, the only thing attached to defendant’s petition was the unsworn

Langford statement, which we already established is a “nullity” that “has no legal

effect.” Roth, 202 Ill. 2d at 497. Again, it is exactly the same as if defendant filed

nothing at all. Secura, 232 Ill. 2d at 216. Consequently, just like the petition in

Collins, defendant’s petition here had none of the supporting documentation that

section 122-2 requires. This being the case, the trial court below was absolutely

correct to dismiss defendant’s petition summarily, and this court should not hesitate

to affirm that dismissal.

¶ 75 Public Policy

¶ 76 As a final matter, I wish to note that the majority’s decision today will have

grave public policy implications going forward. Prior to today, to survive

first-stage review, a postconviction petition had to be supported by an actual

affidavit, meaning it had to be supported by a statement sworn to under oath before

a person who has authority under the law to administer oaths. This was important

because, in addition to being what section 122-2 expressly requires, actual

affidavits serve an important gatekeeping function, in that actual affidavits bear

reliable indication that the person purporting to make the statement is the person

actually making the statement. See Vancura v. Katris, 238 Ill. 2d 352, 367 (2010); 5

ILCS 312/6-102 (West 2012). After today, actual affidavits are no longer

necessary. After today, to survive first-stage review, a postconviction petition’s

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attachment need only bear the caption “affidavit,” at which point the attachment

need not be sworn, need not be notarized, and need not bear any indication that the

person purporting to make the statement the person actually making the statement.

In other words, after today, and so long as it says “affidavit” at the top, a document

that an inmate can generate alone in his or her own cell, make say anything he or

she wants, and attribute to anyone he or she deems helpful, will be sufficient to

ensure that the inmate’s postconviction petition survives first-stage review and that

the matter advances to second-stage proceedings, complete with the appointment of

counsel. This is a dramatic lowering of section 122-2’s pleading requirements, and

it has the very real potential to overwhelm our circuit courts with frivolous

second-stage proceedings. Nothing in our law compels this, and I therefore decline

to join the majority in establishing it.

¶ 77 For all of these reasons, I dissent.

¶ 78 JUSTICE KARMEIER joins in this dissent.

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