Appellate Court holds that imprisonment doesn’t excuse a petitioner’s failure to attach supporting material to his post-conviction petition

The appellant in People v. Harris, 2019 IL App (4th) 170261 appealed the decision of the trial court summarily dismissing his pro se petition for post-conviction relief on the grounds that his petition presented an arguable claim of ineffective assistance of counsel for failure to request a continuance to secure witness testimony for his claim of self-defense. The appellate court affirmed the dismissal.

Harris was found guilty on five counts of first-degree murder, one count of attempted first-degree murder, one count of aggravated battery of a child, one count of home invasion, and one count of armed robbery at his May 2013 trial. Id. at ¶ 4. Harris was sentenced to five terms of natural life imprisonment for the first-degree murder charges, 30 years’ imprisonment for the attempted murder charge, 30 years’ imprisonment for the home invasion charge, and 20 years’ imprisonment for the armed robbery charge, all of which were imposed consecutively. Id. at ¶ 4. Both Harris’ convictions and sentences were affirmed on direct appeal.

In December 2016, Harris filed a pro se post-conviction petition alleging ineffective assistance of his trial counsel for failing to request a continuance on the last day of his trial to secure testimony from two witnesses who would have supported his trial defense of self-defense. Id. at ¶ 5. Harris alleged that the witness testimony from the two surviving members of the incident for which Harris was charged would confirm that another member of the family had threatened to kill the entire family and had only been unable to appear at trial because of a missed flight from Florida to Illinois. Id. at ¶ 5.

In support of this argument, Harris attached to his petition (1) a signed and notarized personal evidentiary affidavit, (2) an unsigned “affidavit” drafted by Harris for a witness named “Nicole,” and (3) an unsigned “affidavit” drafted by Harris for a witness named “A.H.” Harris averred that he had questioned his counsel regarding his decision to rest on the last day of trial without their testimony, to which counsel informed him that he had made the decision because both witnesses had missed their flights.

The trial court summarily dismissed the petition in March of 2017, ruling that appellant had failed to attach the necessary supporting material or sufficiently explain why failure to request a continuance amounted to ineffective assistance of counsel. The trial court also found that even if it had considered the summary of the alleged testimony from both witnesses, counsel’s failure to seek a continuance was not arguably deficient, as the testimony would have been inadmissible as hearsay and irrelevant. Id. at ¶ 6. This appeal followed.

On appeal, the Appellate Court reviewed the first-stage dismissal of appellant’s postconviction petition de novo. The court held that despite the “low threshold” for petitions to survive the first stage of postconviction proceedings, Harris was not excused from “providing factual support for his claims… [and] must supply sufficient factual basis to show the allegations in the petition are capable of objective or independent corroboration.” Id. at ¶ 11.

The court indicated that the attached affidavits, records or other evidence included with a postconviction petition exist to establish such support and must (1) show the petitions are capable of corroboration and (2) identify the sources, character, and availability of evidence alleged to support the petition’s allegations. Id. at ¶ 12. The court looked to the Illinois Supreme Court’s ruling that failure to attach the necessary supporting material or explain its absence is “fatal” to a post-conviction petition and alone “justifies the petition’s summary dismissal.” Id. at ¶ 13.

The court disagreed with Harris’ assertion that the personal evidentiary affidavit attached to his postconviction petition adequately supported the assertions made about witness testimony. The court ruled that the affidavit did not demonstrate that the allegation was capable of objective or independent corroboration, nor did it identify the availability of evidence alleged to support the allegation. Id. at ¶ 14.

Harris, in response, relied upon a ruling in People v. Washington, 38 Ill. 2d 446, 449 (1967) to argue that his imprisonment excused his failure to attach such evidence. However, the court found that the court’s decision in Washington was not made on the grounds of the defendant’s failure to present such evidence (as the court found the State had forfeited their argument by failing to raise it before the trial court), and, problematically for Harris, had arrived at a conclusion that did not support the proposition that imprisonment, by itself, could excuse a defendant’s failure to attach supporting material to a post-conviction petition. Id. at ¶ 17.

As such, the court held that imprisonment cannot excuse an appellant’s failure to attach supporting material to a post-conviction petition, as holding otherwise would make the requirement to include such materials “meaningless.” Id. at ¶ 19. Further, the appellate court determined that Harris did not describe any efforts made to obtain signatures for the affidavits he submitted (unsigned), nor did he describe any circumstances, other than imprisonment, that may have prevented him from obtaining those signatures. Id. at ¶ 20.

Because appellant Harris failed to attach the necessary supporting material or provide a reasonable explanation for its absence, the Appellate Court of Illinois Fourth District found the summary dismissal of appellant’s postconviction petition by the Circuit Court of Logan County to be proper and affirmed the court’s judgement. Id. at ¶ 20-23.

Failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal of his 2-1401 petition

The appellant in People v. Roberson, 2019 IL App (1st) 170757 appealed the decision of the Circuit Court of Cook County dismising his pro se petition for relief from judgement (under section 2-1401 of the Code of Civil Procedure) on the grounds that the dismissal was premature since it was within 30 days of the petition’s filing. The Appellate Court of Illinois First District ultimately affirmed the decision of the Circuit Court of Cook County.

Appellant Roberson was charged with one count of armed habitual criminal and two counts of unlawful use of a weapon by a felon, related to an incident in December 2008. Id. at ¶ 3. At trial, one of the police officers who executed the search warrant resulting in Roberson’s arrest–Officer Kasper–testified that Roberson confessed to the purchase and possession of an illegal firearm found within his apartment. Id. at ¶ 5. The trial court found Roberson guilty on all counts and sentenced him to 20 years’ imprisonment. Id. at ¶ 6. On direct appeal, Roberson unsuccessfully argued that his trial counsel was ineffective for failing to file a pre-trial motion challenging the veracity of the allegations in the search warrant (a Franks hearing) and failing to move to suppress his statements regarding the location of the recovered firearm. Id. at ¶ 7. The Appellate Court of Illinois First District affirmed on direct appeal.

Following his direct appeal, Roberson then filed a pro se post-conviction petition, arguing, inter alia, that his confession was coerced, and he was not properly Mirandized, and that his sentence constituted an abuse of discretion. The circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 8. Upon dismissal, Roberson filed a pro se section 2-1401 petition, repeating the arguments that he was improperly Mirandized and that his sentence lacked statutory authority. Id. at ¶ 9. This petition was accompanied by a Proof/Certificate of Service, dated December 7, 2016, from Dixon Correctional Center, where appellant Roberson was imprisoned. Court records show multiple copies of the petition were circulated before being “filed” on January 3, 2016 (corrected by hand to say January 3, 2017) and January 4, 2017. Id. at ¶ 10. The petition was dismissed sua sponte on February 3, 2017, with a noted filing date of January 4, 2017, for being “frivolous and patently without merit.” Id. at ¶ 11. This appeal followed.

Roberson contended on appeal that the court prematurely dismissed his section 2-1401 petition within the 30-day waiting period that began after the petition was filed on January 4, 2017. Id. at ¶ 13. The State’s response to Roberson’s argument was that the petition was filed on January 3, 2017, transferred to another court on January 4, 2017, and then subsequently re-filed on January 4, 2017. With a filing date of January 3, 2017, the State argues the petition’s dismissal on February 3, 2017 was timely, as it came more than 30 days following the filing. Id. at ¶ 13.

The Court observed that both timeliness arguments were predicated upon the theory that the 30-day response period begins with the date the petition was filed. However, as noted by the Supreme Court, the 30-day response period begins on the date the State receives notice, not the date of filing. Id. at ¶ 17. Yet, because Roberson failed to serve notice on the State, the Court was required to “presume the circuit court’s order conforms with the law,” as the burden of presenting a sufficiently complete records falls upon the appellant. Id. at ¶ 18. Moreover, the Court held that failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal. Id at ¶ 18.

Because of Roberson’s failure to properly serve the State and his resultant inability to establish that the circuit court’s sua sponte\dismissal was untimely, the Appellate Court of Illinois First District presumed the circuit court’s order conformed with the law and affirmed the judgment of the Circuit Court of Cook County.

 

 

 

Appellate court finds post-conviction petition timely but finds merits lacking

In the People of the State of Illinois v. Luster T. Scott, 2019 IL App (2d) 160439, the Appellate Court of Illinois Second District reviewed and ultimately affirmed the decision of the Circuit Court of Du Page County to dismiss appellant’s pro se post-conviction petition at the second stage of proceedings.

Appellant Luster Scott was adjudicated guilty at trial of two counts of aggravated unlawful use of a weapon, as well as one count each of attempted vehicular hijacking, attempted armed robbery, aggravated battery with a firearm, and aggravated battery. These charges were related to a December 11, 2002 shooting in a bank parking lot. Id. at ¶ 3. Scott was sentenced to 22 years’ incarceration. Id. at ¶ 7. Immediately following conviction and sentencing, Scott appealed the ruling, arguing (in part) that the court had erred in failing to suppress statements made by detectives at trial. Scott alleged throughout trial proceedings that he had been physically abused by case detectives, denied access to an attorney, and never been read his Miranda rights. The Appellate Court of Illinois Second District affirmed upon appeal. Id. at ¶ 7. In April 2007, the United States Supreme Court denied certiorari. In November 2007, Appellant Scott, pro se, filed a post-conviction petition pursuant to the Post Conviction Hearing Act, via the prison mail system, which was incorrectly post-marked and featured a cover page attempting to establish proof of service on October 28, 2007. Id. at ¶ 8. The petition was initially dismissed for untimeliness and failure to provide an affidavit from the witness, Jon McClain, alleging violations of Appellant’s Miranda rights, yet was corrected and ultimately approved upon rehearing. Id at ¶ 9.

Following an unexplained nearly 8-year delay, in October 2015, Scott’s post-conviction counsel filed an amended petition alleging that trial counsel was ineffective for failing to investigate and call McClain to testify, as well as failing to investigate Scott’s allegations of police misconduct and abuse. Id. at ¶ 10. Included in the petition were allegations that Detectives Evoy and Klecka had transferred Scott to an interrogation room, following repeated requests to speak with an attorney, and repeatedly struck him in the face; an affidavit from McClain stating he had been in the holding cell with Scott and witnessed Scott leave their joint holding cell absent physical injuries yet returned with wounds to his head and an affidavit from McClain that Scott had been denied requests for an attorney. Id. at ¶ 12. The court dismissed the petition as untimely without addressing the merits, holding that Scott had until October 30, 2007, six months from the date that certiorari was denied, to file his petition. Id. at ¶ 13.

On appeal, Appellant contended that the trial court erred in finding his petition untimely as changes in law apply retroactively and should render all pleadings and post-trial motions timely, so long as they were placed in the prison mail system within the required period of time. In support of this argument, Scott cited Illinois Supreme Court Rule12(b), which was amended to allow a pro se litigant in a correctional institution to enclose a certification, in lieu of an affidavit, “of the person who deposited the document in the institutional mail, stating the time and place of deposit and the complete address to which the document was to be delivered.” Id. at ¶ 16.

The Appellate Court and State agreed that the amendment to Rule 12(b) ought to apply retroactively, yet disagreed on its application to Scott’s case, as his proceedings had completed prior to his filing of the proof of service. Upon review, the Appellate Court held that the amended rule applied retroactively to Scott. Id. at ¶ 19. Moreover, the Appellate Court held that despite the State’s assertions to the contrary, the minor errors in the address listed on the certification were inconsequential and that proof of service (as required under Rule 12(b)) substantially complied with requirements to list a complete address. As a result, the Court ruled that the trial court erred in dismissing appellant’s petition as untimely and determined the petition was timely in nature. Id. at ¶ 24.

Next, the Appellate Court moved to evaluate the merits of Scott’s pro se post-conviction petition. Following the State’s assertion that the petition should be dismissed for failure to make a substantial showing of a constitutional violation, the Appellate Court ordered Scott to file a supplemental brief addressing the merits. Id. at ¶ 25.

On the merits, Scott argued that constitutional violations took place both when his counsel failed to investigate and call McClain to support his motion to suppress based on his invocation of his right to counsel, and when his counsel failed to challenge his sworn statements as being the byproduct of physical coercion. Id. at ¶ 28. Appellant’s assertions of constitutional violations stemming from the ineffective assistance of counsel were evaluated under the guidelines established in Strickland v. Washington, 466 U.S. 668 (1984), which states that “To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defendant.” Id. at ¶ 30. This standard is referred to as the Strickland standard. Prejudice, under the Strickland standard, is established “when a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at ¶ 30. The State argued that prejudice could not be established because of the overwhelming evidence that existed against Appellant. The Appellate Court agreed. Id. at ¶ 31, 33. Moreover, the Appellate Court held that Appellant’s assertions regarding physically coerced statements were rebutted by the record and Scott’s own statements at trial. Id. at ¶ 34.

The judgement of the circuit court of Du Page County was affirmed by the Appellate Court of Illinois Second District on the merits. Id. at ¶ 37.

 

Court holds that all evidence in support of a petitioner’s claims must be attached to the post-conviction petition, which counsel failed to do

In the People v. Burns (2019 IL App (4th) 170018), the Appellate Court of Illinois Fourth District reviewed and ultimately overturned the decision of the Circuit Court of Macon County to grant the State’s motion for dismissal of defendant’s amended pro se post-conviction petition.

Appellant Emerson T. Burns was convicted of first-degree murder of his six-month-old child, A.S. and sentenced to 50 years in prison following a bench trial in June 2011. Immediately thereafter, appellant unsuccessfully appealed his conviction, which was affirmed by the Appellate Court of Illinois Fourth District. Id. at ¶ 5. In December 2013, pursuant to the Post Conviction Hearing Act, appellant filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel related to appellant’s initial appeal. Id. at ¶ 6. The petition advanced to the second stage of proceedings in March 2014, with the trial court permitting post-conviction counsel to withdraw and appointing new counsel in December 2015. In August 2016, appellant (through counsel) filed an amended petition further alleging ineffective assistance of both trial and appellate counsel for failing to allow appellant to testify on his own behalf and failure to present evidence to rebut the State’s theory. Id. at ¶ 7. Appellant’s counsel failed to attach any of the relevant evidence or documents to the amended petition upon filing. As a result, the trial court dismissed the petition in December 2016 after concluding appellant forfeited claims because they “could have been raised on direct appeal” and “failed to demonstrate prejudice regarding his ineffective-assistance claims.” Id. at ¶ 9.

On appeal, appellant Burns argued that the trial court erred in dismissing his petition at the second stage because he had both made a substantial showing of ineffective assistance of counsel and, in the alternative, argued that the court should remand for further proceedings because his post-conviction counsel failed to comply with Illinois Supreme Court Rule 651(c). Id. at ¶ 12. Illinois Supreme Court Rule 651 (c) provides the specific duties required of appointed counsel in post-conviction proceedings. Specifically, that counsel has an obligation to certify that he/she has “consulted with petitioner either by phone, mail, electronic means or in person to ascertain [petitioner’s] contentions of deprivation of constitutional rights,” examined the record of the proceedings at trial and sentencing, and made any amendments to the petition that are necessary for the adequate presentation of the petitioner’s claims.” Id. at ¶ 20. Further, the rule requires that all evidence in support of petitioner’s claims be attached to all relevant motions, which post-conviction counsel failed to do in all accounts. Id. at ¶ 21. The court ruled that because their decision to remand would be made on this issue alone, they did not need to address nor analyze the remaining claims made by appellant. Id. at ¶ 23.

While not relevant to the court’s decision on Rule 651 (c), the court opined that in order to avoid an “explosive situation” related to denial of a petitioner’s right to testify, that all trial courts should “admonish the defendant personally that he alone possesses the right to choose whether to testify on his own behalf, and that he should make that decision after consulting with counsel. Trial courts should emphasize to the defendant that whatever trial counsel’s advice on this point may be, counsel cannot force the defendant to testify, nor can counsel prevent the defendant from testifying.” Id. at ¶ 24. The court concluded that in the event of an admonishment of this sort, defendants would be properly informed of their rights and insulated from attacks. Id. at ¶ 25.

The court ultimately accepted the State’s concession that appellant’s post-conviction counsel failed to comply with Illinois Supreme Court Rule 651 and remanded for further second-stage post-conviction proceedings. Id. at ¶ 13. Further, in addressing the failure to comply with the rule, the court directed the trial court to provide appellant with “new post-conviction counsel who shall have leave to amend and to add supporting documentation, as counsel deems necessary, in support of defendant’s claims.” Id. at ¶ 13.

Defendant on sex offender registry does not have standing to file a post-conviction petition

The First District grappled with two related issues in People v. Begay, 2018 IL App (1st) 150466 that were ultimately resolved against the defendant-petitioner. The petitioner, with the assistance of an attorney, filed a post-conviction petition. There are three stages to a post-conviction proceeding. The first stage involves the court reviewing the petition to determine whether it contains a “gist” of a constitutional claim. If the court makes this determination, then the court advances the petition to the second stage, where the State has an opportunity to file an answer or a motion to dismiss. If the petition survives this stage, then the petition proceeds to the third and final stage, which is an evidentiary hearing on the claims alleged in the petition.

Under the Act, the court has 90 days to determine whether the petition contains a gist of a constitutional claim. If the court does not make a determination on that issue within 90 days, then the petition automatically advances to the second stage, regardless of the substantive merits of the petition. In this case, the court determined that the petition should be dismissed at the first stage because the petitioner did not have standing to file a petition under the Act. However, the court made this determination after the 90-day review period had expired. Begay argued on appeal that the case should have automatically advanced  to the second stage because the court dismissed the petition after the 90-day review period had expired. However, the appellate court disagreed.

As stated in Begay, 2018 IL App (1st) 150466, ¶ 43:

The Act provides that “[a] proceeding shall be commenced by filing with the clerk of the court” a petition. 725 ILCS 5/122-1(b) (West 2016). “Petitioner shall also serve another copy upon the State’s Attorney ***.” 725 ILCS 5/122-1(b) (West 2016). “The clerk shall docket the petition for consideration by the court *** upon his or her receipt thereof and bring the same promptly to the attention of the court.” 725 ILCS 5/122-1(b) (West 2016). “Within 90 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section.” (Emphases added.) 725 ILCS 5/122-2.1(a) (West 2016). “If the petition is not dismissed pursuant to this Section, the court shall order the petition to be docketed for further consideration ***.” 725 ILCS 5/122-2.1(b) (West 2016). 

The question then became “whether the 90-day period is counted from the filing or the docketing of the petition.” ¶ 44. If it was counted from the filing of the petition, then Begay would win because the trial court dismissed the petition well beyond 90 days from when the petition was filed. However, the Begay court held that the 90 days begins to run when the petition is docketed, not merely when it is filed. A petition is considered “docketed” “when the clerk of the court entered the petition into the case file and set it for a hearing.” Id. at ¶ 46. In this case, the court dismissed the case within 90 days of the clerk entering the petition into the case file and setting it for hearing. Therefore, the petition should not have automatically advanced to the second stage.

The Begay court also reviewed the trial court’s ruling that a petitioner whose sentence has expired but who is still on the sex offender registry lacks standing under the Act. This is the more interesting legal issue here, but the First District did not analyze it in great detail because it recently held in People v. Jones, 2018 IL App (1st) 151307 that being a sex offender does not confer standing on a post-conviction petitioner. However, the court acknowledged the recently decided case of People v. Tetter, 2018 IL App (3d) 150243, where the Third District held that registering as a sex offender constituted punishment, which could very soon lead to a district-split on the issue of whether a sex offender has standing to file a petition under the Act. I expect this issue to reach the Illinois Supreme Court in the next couple years as this split deepens.

The 30-day waiting period for sua sponte dismissal of 2-1401 petitions does not apply for successive 2-1401 petitions (People v. Donley, 2015 IL App (4th) 130223)

People v. Donley, 2015 IL App (4th) 130223 (March 26, 2015) Livingston Co. Affirmed. Robert Donley was convicted of first degree murder following a 1997 bench trial. He was sentenced to 45 years DOC. His conviction and sentence were affirmed on appeal. Donley thereafter launched numerous unsuccessful attempts to collaterally attack his conviction and sentence pursuant to the PCHA. This appeal concerns two petitions for relief from judgment filed pursuant 735 ILCS 5/2-1401, the first of which was filed in January of 2013 and the second of which was filed in June of 2013. The first 2-1401 petition challenged defendant’s 3-year term of MSR. This petition was dismissed sua sponte with prejudice in March of 2013. The second 2-1401 petition claimed that defendant’s “conviction and sentence was obtained by fraud, ignorance, and deprivation of a defense.” This petition was also dismissed sua sponte with prejudice in June of 2013. The defendant appealed the dismissal of both, contending “that (1) because he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), his petitions were not ripe for adjudication; and (2) the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn, 233 Ill. 2d 318 (Ill. 2009). Donley requested that the appellate court vacate the trial court’s dismissal of his 2-1401 petitions and remand for further proceedings.

Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) states that notice of the filing of a petition under section 2-1401 of the Code “shall be given by the same methods provided in Rule 105.” Rule 105(b) provides that notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must state that a judgment by default may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)). ¶ 29.

The defendant argued that “when he sent his petitions through the regular mail instead of providing the State notice by either (1) summons, (2) certified or registered mail, or (3) publication, he failed to comply with Rule 105. Given his failure, defendant posits that the 30-day period for the State to answer or otherwise plead did not begin. From that premise, defendant claims that the court’s sua sponte dismissal was premature because his January and June 2013 petitions were not yet ripe for adjudication.” ¶ 32. However, the Court, in relying on People v. Alexander, 2014 IL App (4th) 130132, a case I discussed earlier in February, rejected this argument, adhering to “its conclusion in Alexander that a ‘[d]efendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal” of the trial court’s decision. ¶ 34.

As to defendant’s second argument that “the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn,” the Court distinguished defendant’s case from Laugharn because the petition at issue was a successive 2-1401 petition, whereas Laugharn concerned the dismissal of an initial 2-1401 petition. Under the circumstances presented in this case, the Donnelly court held, “we reject defendant’s argument that the supreme court’s decision in Laugharn prohibits a trial court from immediately considering a successive section 2-1401 petition that (1) does not comport with the requirements outlined in section 2-1401 of the Code or (2) raises claims the court has previously considered and rejected or could have been raised in the initial section 2-1401 pleading. As we have previously noted, the 30-day rule announced in Laugharn was intended to allow a party sufficient time to respond to a section 2-1401 petition instead of empowering a prisoner to persist in filing frivolous claims. The supreme court in Laugharn was not dealing with a successive section 2-1401 petition, and we do not believe that the supreme court would limit a trial court’s authority on handling such petitions, especially, as here, when they are clearly frivolous.”¶ 34.

Clearly frustrated by the defendant’s repeatedly frivolous filings, the Court, in addition to affirming the trial court’s dismissal of defendant’s 2-1401 petition, issued a rule to show cause why defendant shouldn’t be sanctioned, and ordered the clerk to reject anymore filings from the defendant.

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.