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.

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.

Actual innocence claims and ineffective assistance claims have different time limits for filing, even when brought in the same petition. (People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015))

People v. Flowers, 2015 IL App (1st) 113259 (January 6, 2015) Cook Co. Affirmed. Defendant Jimmy Flowers was convicted of first-degree murder and aggravated battery with a firearm in 1993. He was sentenced to concurrent terms of 45 years on the murder charge and 20 years on the weapon charge. The defendant appealed his convictions and sentences, which were affirmed on appeal. Flowers filed a pro se petition for post-conviction relief in July of 2005, alleging newly discovered evidence to establish actual innocence. The defendant’s newly discovered evidence was an affidavit from a witness who indicated that Flowers was not at the shooting scene.

The Court appointed counsel at the second-stage to represent Flowers. Counsel filed a supplemental post-conviction petition in June of 2010, additionally claiming ineffective assistance of counsel, supported by a second affidavit from another witness who also maintained that she did not see the defendant at the scene of the shooting, either. Flowers alleged that his trial counsel was ineffective for failing to interview or call her as a witness. The State filed a motion to dismiss, which the court granted, “finding that the information contained in McCray’s affidavit was not newly discovered and that McCray’s testimony would not change the result on retrial. The court also found that, while the delay in bringing forth his ineffective assistance claim was not due to defendant’s culpable negligence, he failed to demonstrate that trial counsel was ineffective for failing to call Peterson as a witness.” ¶ 24. The defendant appealed, arguing that the trial court 1) “erred in dismissing his postconviction petition where he made a substantial showing of actual innocence. Specifically, defendant argues that an evidentiary hearing is warranted where alleged newly discovered evidence from occurrence witness Dujuan McCray shows that defendant was not involved in the shooting,” ¶ 28, and 2) defendant’s “pleadings and affidavits substantially established he was deprived of the effective assistance of trial counsel. Defendant specifically maintains that his trial counsel was ineffective for failing to interview and call eyewitness Karen Peterson.” ¶ 40.

The defendant’s pro se petition advanced to second-stage proceedings under the PCHA, where counsel was appointed and he fulfilled his duties under Ill. Sup. Ct. Rule 651(c). At the second stage of proceedings, all well-pleaded facts that are not positively rebutted by the trial record are taken as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). An evidentiary hearing is only required when the allegations of the petition, supported by the trial record and accompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). At the second stage of a post-conviction “actual innocence” inquiry, the relevant question is “whether the petitioner has made a substantial showing of actual innocence such that an evidentiary hearing is warranted.” People v. Lofton, 2011 IL App (1st) 100118, ¶ 34. The evidence supporting a claim of actual innocence must be newly discovered, material and not merely cumulative, and of sufficiently conclusive character that it would probably change the result of a retrial. People v. Edwards, 2012 IL 111711, ¶ 32.

The appellate court concluded that “Even if we were to find that this evidence was newly discovered, defendant’s claim fails because it is neither material nor conclusive.” ¶ 34. The Court explained that “McCray’s affidavits, which clearly state that he did not see the actual shooting, but only the aftermath of the shooting…are insufficient to move this petition to a third-stage evidentiary hearing. These documents do not support defendant’s claim of actual innocence where, at most, they show that McCray was not at the scene of the shooting and has no personal knowledge about the shooting itself.” ¶ 37.

Before the court considered the ineffective assistance claim that defense counsel failed to interview and call as a witness another person who claimed that she did not see defendant at the scene of the shooting, the court considered the timeliness of this claim. Under section 122-1 of the Act, a postconviction proceeding may not be commenced outside the time limitation period stated in the Act unless the defendant alleges sufficient facts to show that the delay in filing his initial petition was not due to his culpable negligence. ¶ 43, citing 725 ILCS 5/122-1(c) (West 2010); People v. Rissley, 206 Ill. 2d 403, 420-21 (2003). Flowers maintained that he was not culpably negligent for the late filing of this claim when he had trouble contacting one of the witnesses who supplied an affidavit, due to her moving around over the years. The Flowers court was unmoved by the defendant’s excuse. The defendant had until 6 months after the denial of his PLA to file this claim in a post-conviction petition. He filed it 10 years later. Accordingly, he was culpably negligent in filing this claim beyond the time limitation and this claim was dismissed.

What’s interesting about this case is the appellate court’s different treatment of the time limitations for filing each claim. The defendant raised both an actual innocence claim and an ineffective assistance of counsel claim in the same petition. Section 725 ILCS 5/122-1(c) concerns the statute of limitations for filing post-conviction petitions. Claims of actual innocence are specifically exempted from the normal time limits, so it could be brought 10 years after the denial of the PLA without issue. However, the ineffective assistance claim, even though it was brought in the same petition as the actual innocence claim, was separately required to be brought within the normal limitation period prescribed by 5/122-1(c). It was brought about 10 years too late. Consequently, even though the actual innocence claim could be heard on the merits, while IAC claim could not be heard

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.