Post-conviction petitions must be supported by evidence; if that is in the form of an affidavit, then the affidavit must be notarized (People v. Brown, 2015 IL App (1st) 122940)

People v. Brown, 2015 IL App (1st) 122940 (March 11, 2015) Cook Co. Affirmed. The defendant in Brown was convicted of unlawful use of a weapon by a felon after a jury trial. He was sentenced to 13 year DOC, and his conviction and sentence were affirmed on appeal. Brown filed a post-conviction petition alleging that his trial counsel provided ineffective assistance for “failing (a) to investigate and present four witnesses whose testimony would have supported the one defense witness at trial who testified Brown did not have a weapon and (b) to inform Brown of the State’s guilty plea offer and the extended sentence he faced if convicted at trial” and laboring under a conflict of interest because trial counsel also represented a man who could have been a potential defense witness. ¶ 1. Brown’s Petition was dismissed at second stage because “allegations in Brown’s petition, with his supporting documentation, fail to make a substantial showing of any constitutional deprivation to warrant a third-stage proceeding when viewed against the full and complete record…” ¶ 2.

Brown attached his own affidavit in support of his petition, as well as an affidavit from trial counsel, an affidavit from a potential witness named Arnold Misher, and a handwritten statement entitled “affidavit” from another individual. Brown’s affidavit attested that he told trial counsel that another person had possessed the weapon that Brown was convicted of possessing, and that this person would testify to this, but that his lawyer indicated to Brown that she would not call this witness because he was a “trouble maker.” The affidavit also averred that trial counsel never communicated the State’s 3-year DOC offer to the defendant. Trial counsel’s affidavit indicated that she was concerned about the effect that any plea agreement would have on Brown’s federal parole and that Brown was not interested in accepting the State’s 3-year DOC offer. Misher’s affidavit recalled the arrest of defendant and did not mention defendant having a gun. The handwritten statement that was entitled “affidavit” but was unsigned, undated, and not notarized, was from a witness who made vague reference to seeing a man wearing a white shirt with a machine gun prior to the police arriving. The statement did not mention Brown. Brown later amended the petition and attached two additional documents entitled “Affidavit” that were not notarized. These were purportedly from additional witnesses with similar stories. Both “Affidavits” stated that the witnesses had not seen Brown with a gun.

Brown’s petition had advanced first stage proceedings, but was dismissed at the second stage. The relevant question raised during a second-stage postconviction proceeding is whether the petition’s allegations, supported by the trial record and accompanying affidavits, demonstrate a substantial showing of a constitutional deprivation, which requires an evidentiary hearing. People v. Coleman, 183 Ill. 2d 366, 381 (1998). All well-pled facts in the petition and affidavits are taken as true, but assertions that are really conclusions add nothing to the required showing to trigger an evidentiary hearing under the Act. Id.

The appellate court held that Brown’s petition was properly denied at the second stage. As to the ineffective assistance of counsel claim that Brown’s trial counsel failed to call these various witnesses who have testified that they did not see him with a gun, “the defendant’s allegation must be supported by an affidavit from that witness that contains the witness’s proposed testimony.” 725 ILCS 5/122-2 (West 2010); People v. Enis, 194 Ill. 2d 361, 380 (2000); see also People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (when defendant attacks competency of trial counsel in postconviction petition for failure to call or contact certain witnesses, defendant must attach affidavits from those witnesses). “In the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.” Enis, 194 Ill. 2d at 380. Affidavits must be notarized in order to satisfy the pleading requirements of section 5/122-2 of the Act. The “affidavits” purportedly made by these various witnesses that Brown sought to have trial counsel call at trial were legally insufficient because they were not notarized, and Brown did not offer any explanation for why they were not notarized.

However, even “Construing the notarization requirement as a technicality, we find the affidavits Brown offered in support of his allegations are still insufficient to support his allegation that trial counsel was ineffective for failing to call each of his proposed witnesses to testify. Brown cannot overcome the strong presumption that counsel strategically decided which witnesses to call to testify at his trial and he has not made a substantial showing of prejudice based on counsel’s decision not to call any of his proposed witnesses.” ¶ 55. The appellate court also dismissed Brown’s claim that trial counsel did not communicate the State’s offer to him because 1) the trial court independently recalled defense counsel communicating the offer to Brown, and 2) Brown failed to show prejudice, even if he could prove that trial counsel failed to communicate the offer to him. The court found that the remainder of Brown’s claim lacked evidentiary support from his affidavits.

Brown demonstrates 1) the importance of supplying evidence to accompany the legal claims made in the post-conviction petition, and 2) if that evidence is in the form of an affidavit, that document needs to be notarized in order to meeting the pleading requirements of the Act.

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