People v. Collins , 202 Ill. 2d 59 ( 2002 )

JUSTICE THOMAS

delivered the opinion of the court:

The issue presented is whether the circuit court properly dismissed defendant’s pro se post-conviction petition as frivolous and patently without merit. See 725 ILCS 5/122 — 2.1(a)(2) (West 2000). We hold that dismissal was proper.

BACKGROUND

On August 20, 1998, as part of a negotiated plea agreement, defendant pleaded guilty to one count of possessing a controlled substance with the intent to deliver (720 ILCS 570/401(a)(2)(B) (West 2000)). As required by Supreme Court Rule 402(a) (177 Ill. 2d R. 402(a)), the circuit court fully admonished defendant as to the nature of the charge, the statutory sentencing range, and the rights he would be waiving by pleading guilty. After determining that defendant’s guilty plea was both voluntary and supported by a sufficient factual basis, the circuit court accepted the plea and imposed the statutory minimum sentence of nine years in prison (see 720 ILCS 570/401(a)(2)(B) (West 2000)). The circuit court then advised defendant that, although he possessed the right to appeal, that right is contingent upon the timely filing of a motion to withdraw his guilty plea and vacate the judgment. Defendant filed no such motion, and no appeal was taken.

On March 16, 1999, defendant filed a pro se petition for post-conviction relief. In the petition, defendant alleged several claims of error, including the following:

“I wanted to appeal the case, which my counsel told me that he will. But never did. that brings me to submitt this motion, thinking im waiting to go back on appeal. I also ask him to put me in for a reduction sentence, which he mislead me. He never submitted that either.”

The only attachment to defendant’s petition was the following sworn verification, which states in its entirety:

“I, London Collins, a prisoner incarcerated in Tamms Minimum Security Unit, have read and understand the above Petition for Post Conviction Relief. All the facts presented are true and correct to the best of my recollection.”

The circuit court dismissed defendant’s petition as frivolous and patently without merit. See 725 ILCS 5/122 — 2.1(a)(2) (West 2000).

On October 10, 2000, the appellate court issued its initial order reversing the circuit court’s dismissal of defendant’s petition. In that order, the appellate court concluded that, although the allegations set forth above stated the gist of a meritorious constitutional claim, the absence of any supporting documentation rendered defendant’s petition insufficient to justify second-stage review under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 2000)). The court therefore remanded the cause to the circuit court so that defendant could file affidavits that:

“minimally address the specifics of the defendant’s attorney’s statement that he would appeal the case, describe in detail all of defendant’s subsequent contacts with his attorney and explain fully the twenty-one month delay between the defendant’s conviction and the filing of his petition.”¹

According to the appellate court’s order, if defendant successfully filed the requisite affidavits within the allotted time frame, the circuit court would be required to docket defendant’s petition for further proceedings. Conversely, if defendant failed to file the necessary affidavits, “the trial court [would be] free to grant a motion to dismiss by the State.”

On October 25, 2000, defendant filed a petition for rehearing, arguing that the appellate court lacked the authority to remand the cause for the submission of additional affidavits. According to defendant, once it concluded that defendant’s petition stated the gist of a meritorious constitutional claim, the appellate court was required to remand the cause for second-stage post-conviction proceedings, including the appointment of counsel. On October 26, 2000, the State likewise filed a petition for rehearing, arguing that the appellate court’s decision ran afoul of the Act in numerous ways. In particular, the State argued that (1) the Act does not contemplate a petition that states the gist of a meritorious claim but nevertheless is insufficient to justify second-stage review, and (2) the circuit court would not be “free to grant a motion to dismiss by the State” based on defendant’s failure to submit the requisite affidavits, as the Act does not permit the filing of such motions until the second stage of post-conviction review. On November 17, 2000, the appellate court denied both petitions for rehearing without comment.

On November 21, 2000, the appellate court notified the parties of its intent to file a subsequent opinion in this case. The next day, the appellate court cancelled the filing of any subsequent opinions “until further notice.” On December 5, 2000, the State filed in the appellate court a notice of intent to seek leave to appeal. On December 19, 2000, the State filed its petition for leave to appeal. Two days later, the appellate court withdrew its order of October 10, 2000, and informed the parties of its intent to file a new opinion in the case at a later but unspecified date. On December 28, 2000, defendant filed a motion in the appellate court requesting reinstatement of the appellate court’s original order, arguing that the appellate court lost jurisdiction over the case when the State filed its petition for leave to appeal. On December 29, 2000, and without disposing of defendant’s motion to reinstate, the appellate court issued a new opinion.

In its new opinion, the appellate court again reversed the circuit court’s dismissal of defendant’s petition. 319 Ill. App. 3d 193. As in its initial order, the appellate court concluded that the contested portion of defendant’s petition stated the gist of a meritorious constitutional claim. Contrary to its initial order, however, the court this time concluded that the absence of supporting affidavits did not render defendant’s petition legally insufficient. Specifically, the court held that the absence of such documentation was both “unsurprising” and “justified,” given that defendant was “incarcerated, indigent and apparently barely literate.” Moreover, because the only other likely witness to the alleged conversation was the attorney that defendant now claims was ineffective, it would be “both oppressive and unfair” to require independent evidence of that conversation beyond defendant’s sworn verification. Consequently, the appellate court reversed the circuit court’s summary dismissal of defendant’s petition and remanded the cause for second-stage post-conviction proceedings.

The State subsequently filed a motion to substitute a new petition for leave to appeal for the one originally filed in this court, and this court granted both the motion and the petition. 177 Ill. 2d R 315(a).

ANALYSIS

Before reaching the merits of this appeal, we must address the validity of the appellate court’s second decision in this case. In People v. Turnage, 162 Ill. 2d 299, 305 (1994), this court unanimously held that, once a petition for leave to appeal is filed in this court, the appellate court loses jurisdiction over the cause and may not file any additional opinions. Here, the appellate court issued its second opinion sua sponte on December 29, 2000, 10 days after the State petitioned this court for leave to appeal. The appellate court’s December 29, 2000, decision therefore is void for a lack of jurisdiction, and we order the appellate court to withdraw that opinion and reinstate its decision of October 10, 2000. See Turnage, 162 Ill. 2d at 305.

We now turn to the merits. The Post-Conviction Hearing Act (Act) establishes a procedure for determining whether a criminal defendant was convicted in substantial violation of his or her constitutional rights. 725 ILCS 5/122 — 1(a) (West 2000). Proceedings under the Act are commenced by the filing of a petition in the circuit court in which the conviction occurred. 725 ILCS 5/122 — 1(b) (West 2000). The petition must identify the proceeding in which the conviction occurred, state the date of the contested final judgment, and clearly identify the alleged constitutional violations. 725 ILCS 5/122 — 2 (West 2000). In addition, the petition must be both verified by affidavit (725 ILCS 5/122 — 1(b) (West 2000)) and supported by “affidavits, records, or other evidence” (725 ILCS 5/122 — 2 (West 2000)). If such “affidavits, records, or other evidence” are unavailable, the petition must explain why. 725 ILCS 5/122 — 2 (West 2000).

Upon the petition’s filing, the circuit court has 90 days in which to review the petition and determine whether, on its face, “the petition is frivolous or is patently without merit.” 725 ILCS 5/122 — 2.1(a)(2) (West 2000). If the circuit court determines that the petition is either frivolous or patently without merit, it “shall dismiss the petition in a written order.” 725 ILCS 5/122— 2.1(a)(2) (West 2000). A post-conviction petition is considered frivolous or patently without merit if the petition’s allegations, taken as true, fail to present the gist of a meritorious constitutional claim. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). Moreover, the failure to either attach the necessary “affidavits, records, or other evidence” or explain their absence is “fatal” to a post-conviction petition (People v. Turner, 187 Ill. 2d 406, 414 (1999)) and by itself justifies the petition’s summary dismissal (People v. Coleman, 183 Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26 (1952)). We review the dismissal of a post-conviction petition de nova. Coleman, 183 Ill. 2d at 389.

In this case, the circuit court properly dismissed defendant’s pro se post-conviction petition. Contrary to the clear mandate of section 122 — 2 of the Act, defendant’s petition was unsupported by “affidavits, records, or other evidence” and offered no explanation for the absence of such documentation. This fact alone justifies the summary dismissal of defendant’s petition. Coleman, 183 Ill. 2d at 380; Jennings, 411 Ill. at 26.

In reaching this result, we necessarily reject defendant’s contention that his sworn verification can serve as a substitute for the “affidavits, records, or other evidence” mandated by section 122 — 2. First, the Act itself clearly distinguishes between the sworn verification that defendant filed and the supporting “affidavits, records, or other evidence” that defendant neglected to file. The necessity of a sworn verification is addressed in section 122 — 1 of the Act, which provides that a post-conviction proceeding is initiated by the filing of a petition “verified by affidavit.” 725 ILCS 5/122 — 1(b) (West 2000). The necessity of attaching “affidavits, records, or other evidence” to the petition is addressed in section 122 — 2, which provides that “[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” (Emphasis added.) 725 ILCS 5/122 — 2 (West 2000). Thus, under the plain language of the Act, the sworn verification described in section 122 — 1 serves a purpose wholly distinct from the “affidavits, records, or other evidence” described in section 122 — 2. The former, like all pleading verifications, confirms that the allegations are brought truthfully and in good faith. See, e.g., In re Marriage of Pitulla, 202 Ill. App. 3d 103, 120 (1990). The latter, by contrast, shows that the verified allegations are capable of objective or independent corroboration. To equate the two is not only to confuse the purposes of subjective verification and independent corroboration but also to render the “affidavits, records, or other evidence” requirement of section 122 — 2 meaningless surplusage. We will not adopt such a reading. See People v. Maggette, 195 Ill. 2d 336, 350 (2001) (statute should be construed so that no term is rendered superfluous or meaningless).

Moreover, the two decisions upon which defendant principally relies are clearly distinguishable from this case. Defendant insists that both People v. Washington, 38 Ill. 2d 446 (1967), and People v. Williams, 47 Ill. 2d 1 (1970), stand for the proposition that a sworn verification is all that is needed to substantiate a post-conviction claim arising from discussions between a criminal defendant and his attorney. Defendant misreads these decisions. To be sure, in both Washington and Williams, the post-conviction petitions contained claims arising from conversations between the defendant and his attorney and were supported only by the defendant’s sworn verification. But in Washington, the petition also contained an explanation as to why the necessary “affidavits, records, or other evidence” were unobtainable. Thus, the petition in Washington explicitly complied with section 122 — 2’s mandate that a post-conviction petition “shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” (Emphasis added.) 725 ILCS 5/122 — 2 (West 2000). Similarly, in Williams, the defendant alleged that he relied upon certain misrepresentations that were “whispered to him” by his attorney following the entry of his guilty plea. Williams, 47 Ill. 2d at 2. Thus, although the petition in Williams did not explicitly explain why “affidavits, records, or other evidence” were not attached, it did contain facts from which this court easily inferred that “the only affidavit that petitioner could possibly have furnished, other than his own sworn statement, would have been that of his attorney.” Williams, 47 Ill. 2d at 4. In stark contrast, the post-conviction petition that defendant filed in this case complies with neither the letter nor the substance of section 122 — 1, as it lacks not only an explanation for the absence of supporting evidence but also even a single allegation from which such an explanation could reasonably be inferred.

We recognize, of course, that requiring the attachment of “affidavits, records, or other evidence” will, in some cases, place an unreasonable burden upon post-conviction petitioners. Indeed, Washington and Williams are two such cases. This does not mean, however, that the petitioners in such cases are relieved of bearing any burden whatsoever. On the contrary, section 122 — 2 makes clear that the petitioner who is unable to obtain the necessary “affidavits, records, or other evidence” must at least explain why such evidence is unobtainable. In this case, defendant is asking to be excused not only from section 122 — 2’s evidentiary requirements but also from section 122 — 2’s pleading requirements. Nothing in the Act authorizes such a comprehensive departure.

Finally, we note that our recent decision in People v. Edwards, 197 Ill. 2d 239 (2001), has no application to this case. Although factually quite similar to the present case, Edwards addressed a wholly distinct question. The issue in Edwards was whether the factual allegations set forth in the defendant’s post-conviction petition stated the gist of a meritorious claim of ineffective assistance of counsel. In analyzing that question, this court had neither reason nor occasion to assess the sufficiency of the petition’s supporting documentation. In fact, the opinion in Edwards does not even describe what, if any, supporting evidence was attached to the petition. We therefore reject defendant’s contention that Edwards dictates an affirmance of the appellate court’s decision in this case.

CONCLUSION

Because defendant’s pro se post-conviction petition included neither “affidavits, records, or other evidence” supporting his claims nor an explanation as to why such supporting evidence was lacking, the circuit court properly dismissed that petition as frivolous and patently without merit. We therefore reverse the judgment of the appellate court and affirm the judgment of the circuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

1 In its initial order, the appellate court mistakenly identified the date of defendant’s guilty plea and conviction as July 9, 1997.