Court elevates substance over form during first-stage review of petitions (People v. McCoy, 2014 IL App (2d) 100424-B)

People v. McCoy, 2014 IL App (2d) 100424-B (September 29, 2014) Boone Co. Affirmed. Defendant was charged with, and plea guilty to, armed robbery in exchange for a 10-year DOC sentence pursuant to a fully negotiated plea agreement. Defendant later filed a “Motion for Reduction of Sentence” that was dismissed as untimely. Defendant then filed a pro se post-conviction petition under the PCHA wherein he alleged a laundry list of constitutional violations. Defendant filed a signed by un-notarized “verification” page and a signed and notarized affidavit along with his petition. The trial court summarily dismissed the petition as frivolous or patently without merit.

Defendant appealed, arguing that his petition stated a gist of a constitutional claim that his trial counsel had been ineffective. The dismissal of defendant’s petition was affirmed on appeal on technical grounds that it lacked proper verification. However, the Illinois Supreme Court remanded the matter for reconsideration following People v. Hommerson, 2014 IL 115638, which held that “the lack of a proper verification is not a permissible basis for a first-stage dismissal.” McCoy at ¶ 1. The McCoy court “originally agreed with the State that the absence of a proper verification was a sufficient basis to affirm the dismissal. However, now, based on the rule in Hommerson, we must reject that conclusion. Section 122-1(b) of the Act provides that “[t]he proceeding shall be commenced by filing *** a petition *** verified by affidavit.” 725 ILCS 5/122-1(b) (West 2010). This court has held that affidavits associated with petitions under the Act must be notarized to be valid. People v. Niezgoda, 337 Ill. App. 3d 593, 597 (2003). Defendant’s verification was not notarized. However, at the first stage, the trial court must “consider[] the petition’s ‘substantive virtue’ rather than its procedural compliance,” and proper verification is a matter of procedural compliance only. Hommerson, 2014 IL 115638, ¶¶ 7, 11. Lack of notarized verification is thus not a basis for a first-stage dismissal. Hommerson, 2014 IL 115638, ¶ 11. McCoy at ¶ 14. The court then turned to the merits of defendant’s garden variety ineffective assistance claims which the McCoy court held were meritless. The dismissal of defendant’s post-conviction petition was accordingly affirmed.

The takeaway message from McCoy really has nothing to do with the substantive issues that the defendant raised, as they were routine second-guessing of trial strategy that were unsupported by any facts provided by the defendant in connection with the petition. What is notable in this case is the application of Hommerson to what is a pretty typical post-conviction fact pattern. That is, pro se petitions must be adjudged at the first stage based on the “substantive virtue,” or lack thereof, of the defendant’s claims of error, instead of defendant’s procedural compliance with the very technical and confusing procedural requirements of the Act that cause even seasoned defense lawyers to shy away from this area of criminal law.

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