People v. Condon , 2022 IL App (3d) 200344-U ( 2022 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 200344-UOrder filed September 16, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Iroquois County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0344
v. ) Circuit No. 12-CF-183
)
ANDREW M. CONDON, ) Honorable
) Michael C. Sabol,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justices Holdridge and Hauptman concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court did not err in dismissing defendant’s postconviction petition at
the first stage.
¶2 Defendant, Andrew M. Condon, appeals from the first-stage dismissal of his
postconviction petition. Defendant argues that his postconviction petition stated the gist of a
claim that counsel provided ineffective assistance. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with two counts of first degree murder (720 ILCS 5/9-
1(a)(1), (2) (West 2012)) for the shooting death of Jonathan Rubin. Defendant was represented
by counsel at trial. During the trial, the State presented testimony that a shell casing recovered
from defendant’s shooting berm was fired from the same weapon as the shell casings recovered
from the crime scene. The jury found defendant guilty, and the court sentenced him to 50 years’
imprisonment. Defendant appealed and this court affirmed. People v. Condon, 2018 IL App (3d)
150793-U.
¶5 Defendant filed, as a self-represented litigant, a postconviction petition alleging,
inter alia, that counsel provided ineffective assistance by failing to investigate and call Brent
Tammen, Jermy Jesse, and Dan Otto as witnesses. He argued that these three witnesses would
verify that they each provided a load of dirt from their shooting berms to be used for defendant’s
shooting berm. In support of his petition, defendant attached an unsigned affidavit purportedly
from his ex-wife, Amanda Condon, which indicated that Tammen, Jesse, and Otto all provided
dirt from their shooting berms to be used for defendant’s shooting berm. Neither the petition nor
the purported affidavit provided an explanation as to why the affidavit was not signed. Defendant
further attached three affidavits, which he signed, which purported to set forth what Tammen,
Jesse, and Otto would attest to. All three affidavits stated that “[t]he material facts which ought
to appear in this affidavit are known only to [Tammen/Jesse/Otto] whose affidavit affiant is
unable to procure due to affiant’s inability as an incarcerated poor person to locate will testify, if
sworn, to the following.” Defendant attached his own affidavit which stated that prior to trial he
informed counsel that Tammen, Jesse, and Otto provided dirt from their shooting berms to be
used for defendant’s shooting berm, but counsel refused to interview them or call them to testify.
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¶6 The court dismissed the petition at the first stage. Defendant filed a motion for rehearing
and to vacate judgment. He also filed a motion for leave to file an amended postconviction
petition along with an apparent proposed amended petition, titled “Verified Petition for Post-
Conviction Relief.” Defendant attached an affidavit to the proposed amended petition setting
forth what Amanda would allegedly attest to, which defendant himself signed and which alleged
that defendant could not obtain an affidavit from Amanda “due to Covid 19 quarantine lockdown
at Menard Correctional Center, and delays in the mail.” Defendant attached to the proposed
amended petition several signed affidavits relevant to other claims he raised in the proposed
amended petition. The court denied both the motion for rehearing and to vacate judgment and the
motion for leave to file an amended postconviction petition. Defendant appeals.
¶7 II. ANALYSIS
¶8 Defendant argues that his postconviction petition stated the gist of a claim that his
counsel provided ineffective assistance and that he properly supported the claim through the
factual allegations and supporting materials or he provided the required explanation for the
absence of such materials.
¶9 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a
process for a criminal defendant to assert that his conviction resulted from a substantial denial of
his rights under the United States Constitution, the Illinois Constitution, or both. People v.
Hodges, 234 Ill. 2d 1, 9 (2009). At the first stage, defendant need only state the “gist” of a
constitutional claim. Id. The circuit court may summarily dismiss the petition at the first stage of
proceedings if it is frivolous or patently without merit, such that it “has no arguable basis either
in law or in fact.” Id. at 16. But the petition must “clearly set forth the respects in which
petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West 2018). “The petition
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shall have attached thereto affidavits, records, or other evidence supporting its allegations or ***
state why the same are not attached.” Id. “[T]he failure to either attach the necessary
‘ “affidavits, records, or other evidence” or explain their absence is “fatal” to a post-conviction
petition [citation] and by itself justifies the petition’s summary dismissal.’ ” People v. Delton,
227 Ill. 2d 247, 255 (2008) (quoting People v. Collins, 202 Ill. 2d 59, 66 (2002)).
¶ 10 Here, People v. Harris, 224 Ill. 2d 115, 142 (2007), compels the conclusion that
defendant’s supporting documentation—none of which was actually provided or signed by the
purported witnesses—is insufficient. In Harris, the defendant had alleged that counsel provided
ineffective assistance by failing to interview and present testimony from certain witnesses. Id.Similar to the instant case, the defendant in Harris attached affidavits purporting to be from the
witnesses, none of which were signed, as well as his own affidavit setting forth what he believed
the proposed witnesses would have testified to. Id. at 119, 142. The supreme court determined
that the circuit court was correct in finding that the proposed affidavits “were merely what
defendant wished these people would say” and that they were insufficient. Id. at 142. It
concluded that since defendant “failed to supply the necessary evidentiary support for his claim,
the trial court did not err in finding it frivolous and patently without merit.” Id. In doing so, it
reiterated that “ ‘[a] claim that trial counsel failed to investigate and call a witness must be
supported by an affidavit from the proposed witness’ ” and that “ ‘[i]n 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.’ ” Id. (quoting People v. Enis, 194 Ill. 2d 361, 380 (2000)). Based on the foregoing,
we conclude that defendant failed to supply the necessary support for his claim and the court
properly dismissed the petition as frivolous and patently without merit.
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¶ 11 Additionally, defendant failed to provide an adequate explanation for his failure to attach
the required support for his petition. First, defendant’s initial postconviction petition provided no
explanation for the failure to have a signed affidavit from Amanda. While he attempted to cure
this in his proposed amended petition, the court did not grant him leave to file the amended
petition and we do not consider its allegations. Regardless, the fact that he attached several
signed affidavits in support of other claims in the amended petition undermines his explanation
that he could not obtain the affidavit due to Covid-19 and mail delays. Second, his explanation—
that he was an incarcerated poor person—for failing to obtain affidavits from Tammen, Jesse,
and Otto was insufficient. See People v. Harris, 2019 IL App (4th) 170261, ¶ 19 (“Because the
Act contemplates defendants seeking postconviction relief are likely to be imprisoned, we hold
imprisonment, by itself, cannot excuse a defendant’s failure to attach supporting material to a
postconviction petition. To hold otherwise would be to render the requirement to attach
supporting materials meaningless, which we may not do.”).
¶ 12 III. CONCLUSION
¶ 13 The judgment of the circuit court of Iroquois County is affirmed.
¶ 14 Affirmed.
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