People v. Brown

2014 IL App (1st) 122549, 16 N.E.3d 299

Opinion

2014 IL App (1st) 122549

SIXTH DIVISION July 25, 2014

No. 1-12-2549

) Appeal from the THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) v. ) No. 06 CR 1766 (02) ) JAMILLE BROWN, ) ) Honorable Defendant-Appellant. ) John Joseph Hynes, ) Judge Presiding.

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 Defendant, Jamille Brown, appeals from the order of the circuit court of Cook County

summarily dismissing her pro se postconviction petition at the first stage of postconviction

proceedings. 1 Defendant was convicted by a jury of aggravated vehicular hijacking, armed

robbery, and first-degree murder. The trial court sentenced defendant to a total of 43 years'

imprisonment in the Illinois Department of Corrections. This court affirmed defendant's

conviction and sentence on direct appeal. People v. Brown, 2011 IL App (1st) 093619-U.

Thereafter, defendant filed a pro se petition for postconviction relief alleging, inter alia,

1 We note that the caption of the matter on appeal and in the trial court spelled defendant's name "Jamille." In her videotaped statement, as well as in her pro se postconviction petition, defendant spelled her name "Jimille." 1-12-2549

ineffective assistance of trial counsel. The trial court summarily dismissed the petition.

Defendant appeals only from the dismissal of that portion of the petition alleging ineffective

assistance of trial counsel for failing to (1) transmit the State's 20-year plea offer to her; and (2)

present evidence at the motion to suppress hearing that her statement was a product of mental

and physical coercion. We determine that the petition does not meet the pleading requirements

of section 122-2 of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 (West 2012)) and,

thus, we affirm.

¶2 BACKGROUND

¶3 Defendant's conviction arose from the December 22, 2005, murder of Abimola Ogunniyi,

who was shot in the leg by codefendant Elliott Peterson while Peterson, Joyce McGee (another

codefendant), and defendant were hijacking his vehicle. On January 17, 2006, defendant was

charged by indictment with multiple counts of first-degree murder, felony murder, armed

robbery, aggravated vehicular hijacking, armed violence, aggravated robbery, vehicular

hijacking, robbery, aggravated unlawful restraint, and unlawful restraint. The State proceeded to

trial only on the counts for first-degree murder, aggravated vehicular hijacking, and armed

robbery. 2 For purposes of the current appeal, we will reiterate here only those facts which are

germane to the issues raised in this appeal.

¶4 Motion to Suppress Statement

¶5 On March 3, 2009, defendant filed a motion to suppress her statement to police in which

she asserted that: (1) her statements to police should be excluded because she was not given all

of her Miranda rights, namely, she was not informed that she could request that questioning be

stopped; and (2) her statement was a product of "psychological and mental coercion." On April

Defendant and McGee were tried in simultaneous but severed proceedings; the 2

defendant was tried by a jury; McGee elected a bench trial. 2 1-12-2549

2, 2009, during a case status, the following exchange took place:

"[Assistant State's Attorney]: Your Honor, I did have discussions with

Counsel [defendant's trial counsel]. I did take a look at his Motion to Suppress

Statements, which is the motion that's on file. It has been set down. I did indicate to him

that I would need specificity as to Paragraph No. 4 [regarding the psychological and

mental coercion]. He indicated he will go and interview his client and if there were

any charges [sic], he would make me aware of them.

THE COURT: All right. When do you think you will have that for me?

[Defense Counsel]: Next week, Judge. Not a problem.

THE COURT: I will give you ten days. If it's not done, let me know beforehand.

I don't want to continue this again just for that reason. All right?

[Assistant State's Attorney]: Yes, your Honor."

The trial court set the evidentiary hearing on defendant's motion to suppress for May 27, 2009.

¶6 A supplemental motion to suppress was filed on May 25, 2009. The motion set forth

more facts regarding the alleged psychological and mental coercion. The motion expressly

stated that the interrogating officers "yelled and raised their voices to the defendant, threatened

the defendant with forcing her to have her baby in jail in unsanitary circumstances and

threatened to charge her along with the co-defendants with the crime itself if she did not make a

statement."

¶7 On the day of the hearing, the assistant State's Attorney informed the trial court that

defendant's supplemental motion was not supported by an affidavit from defendant. The

assistant State's Attorney requested defendant "be sworn today to those facts that are in * * *

[trial counsel's] motion." Trial counsel had no objection to defendant being "sworn in to the

3 1-12-2549

facts." Consequently, defendant swore "the contents of the motion to be true and accurate to the

best of [her] knowledge." A suppression hearing was then held.

¶8 Trial counsel then presented his opening statement. Trial counsel asserted the motion

raised two issues: (1) that defendant did not receive a complete set of Miranda warnings; and (2)

that officers "overcame her desire not to talk about the case by threatening her [and] threatening

to take her baby away from her." Trial counsel noted defendant was pregnant at the time the

interrogation occurred. He further asserted the officers threatened defendant with forcing her to

deliver the baby in county jail in unsanitary conditions. The State presented no opening

statement.

¶9 Thereafter, the State called its first and only witness, Lieutenant James Twohill of the

Burbank police department. Twohill testified that on December 27, 2005, he was sergeant of

Burbank investigations. At 12:53 p.m. that day, he and Lieutenant Tom Harold of the Evergreen

Park police department conducted an interview of defendant. Twohill read defendant her

Miranda rights from a preprinted card. Twohill further testified he did not inform defendant that

she could stop the questioning at any time. Additionally, Twohill stated he did not raise his

voice or yell at defendant and that he did not threaten defendant with losing her baby or tell

defendant her baby would be born in jail in unsanitary conditions. Twohill testified defendant

had no complaints regarding her treatment by police.

¶ 10 During Twohill's testimony, the State introduced into evidence defendant's December 27,

2005, videotaped interview. The State played a portion of the interview for the court wherein

Twohill read defendant her Miranda rights. The videotape reflected that Twohill did not inform

defendant that she could stop the questioning at any time. In addition, the videotape

demonstrated defendant was not physically, psychologically, or mentally coerced and that the

4 1-12-2549

officers did not yell or raise their voices to defendant. Further, the officers did not make threats

toward defendant's unborn child. At the beginning of the interview, the videotape demonstrates

that defendant is asked, "Everything okay so far, you need a glass of water, you good?" To

which she responds, "No, I'm okay." Near the end of the interview, when asked if she had been

treated well, defendant responds affirmatively. The officers then asked defendant, "You have no

complaints about the way anybody treated you here?" In response, defendant slightly bowed her

head, shaking it from side-to-side indicating she did not have any complaints.

¶ 11 On cross-examination Twohill testified that he first met defendant on December 26,

2005, and spoke with her "very briefly" at the police station. Defendant was not a suspect and,

therefore, was not informed of her Miranda rights at that time. Later that day, defendant

accompanied Twohill and other unidentified officers to locate and identify "J-Mo," an individual

who Twohill indicated was, at that time, a suspect in the matter. Defendant was in a van with the

officers for "no more than an hour." Afterwards, the officers dropped defendant off at a family

member's home.

¶ 12 Twohill further testified on cross-examination that on December 27, 2005, he "received

information" that defendant had "voluntarily arrived" at the police station. Twohill "went there

immediately to conduct the interview." Twohill, however, did not know exactly when defendant

had arrived at the station. Twohill testified that Lieutenant Harold escorted defendant into the

interview room, where Twohill was waiting outside. Twohill, Harold, and defendant walked into

the interview room together, which is when the videotape begins. Prior to beginning the

interview at 12:50 p.m., Twohill stated he had not spoken with defendant and neither had any

other officers.

¶ 13 On redirect, Twohill testified that on December 27, 2005, he and Harold were at task

5 1-12-2549

force headquarters in Chicago Ridge when Harold received a telephone call that defendant was at

the Evergreen Park police department. The two officers left immediately and arrived at the

Evergreen Park police department "no more than 15 minutes" later. When they arrived at the

Evergreen Park station, Harold went to get defendant who was "waiting in a report room away

from the Detective Division." Twohill further testified that the first time he spoke with

defendant on December 27, 2005, was when he commenced defendant's interview.

¶ 14 On re-cross, Twohill testified he did not see defendant walk into the station and believed

"she arrived [at the station] when Lieutenant Harold received a phone call."

¶ 15 The State rested and defendant moved for a directed finding, which was denied by the

trial court. The defense then rested without calling any witnesses. In closing arguments, defense

counsel asserted that defendant did not receive "the final Miranda warning" and noted that the

officers did not have defendant acknowledge each right individually. Defense counsel pointed

out that the officers did not inform defendant that she did not have to answer further questions.

Defense counsel further asserted that Twohill did not know what happened in the police station

prior to defendant being interviewed. Defense counsel maintained this information was

"important on the voluntariness issue" as it is "the State's burden to prove that none of this

happened. That her voluntariness was not overcome." Defense counsel concluded that because

the State did not offer any evidence as to what happened to defendant earlier in the day, the State

did not meet its burden and, therefore, the motion should be granted.

¶ 16 In its closing argument, the State asserted that defendant was given all of her Miranda

rights as shown in the videotape of the interview and from Twohill's testimony. The State

further asserted that the December 27, 2005, interview was a "totally different phase to this

investigation." In addition, defendant indicated on the videotape that she was treated well and

6 1-12-2549

there was no indication that she was not treated well by any officer at any time. Accordingly, the

State requested that defendant's motion to suppress be denied.

¶ 17 After listening to the arguments of counsel, the testimony of Twohill, and viewing the

videotape of defendant's interview, the trial court determined that "the Miranda warnings do not

require any 'fifth' warnings with regards to the right to have questioning stopped at any time."

The trial court also determined that defendant "clearly indicated that she understood all her rights

and answered, yes, to that question." With regards to voluntariness of defendant's statement, the

trial court determined that the State met its burden of proof as the testimony of Twohill and the

contents of the videotape demonstrated "she had no complaints about any one or the way she was

treated there at the police station." Accordingly, the trial court denied defendant's motion to

suppress.

¶ 18 Plea Offer

¶ 19 In the trial record, the first time a plea offer appears to be discussed was on June 10,

2009. Concerned about scheduling, the trial court inquired of counsels whether there had been

any "negotiations between the parties." 3 Defendant's trial counsel stated, "I have started the

negotiation process. I was thinking an early September trial, your Honor." The trial court then

pressed trial counsel for a response as to whether defendant was willing to enter any plea

negotiations or whether defendant would proceed to trial, noting this case had been pending

since 2006. Trial counsel agreed with the trial court and indicated that he would speak with the

State.

¶ 20 At the next court date, July 7, 2009, defendant's trial counsel stated he was "in a position

of setting the case down for trial." While discussing with counsels when to set the matter for

3 As previously noted, the trial proceedings of defendant and codefendant McGee were conducted jointly. 7 1-12-2549

trial, the trial court inquired as to whether "there had been any negotiations beforehand."

Defendant's trial counsel indicated that the negotiations were ongoing. The assistant State's

Attorney stated she telephoned counsel for defendant and codefendant McGee last week and left

a message with an offer. The record does not indicate what the offer was. In response, the trial

court set an interim status date of September 2, 2009, for status on plea negotiations. After

counsel for defendant and McGee indicated their clients elected jury trials, the trial court set a

firm trial date of October 5, 2009.

¶ 21 On September 2, 2009, the trial court inquired as to the status of any plea offers made to

defendant and McGee. Defendant's trial counsel requested that counsels confer with the trial

judge in chambers to discuss matters regarding scheduling. In response, the trial court inquired

whether the matter could be worked out, to which defendant's trial counsel responded, "Well,

that's one of the issues." The trial court asked whether counsel were requesting the court "to

admonish your clients on a 402 Conference," to which trial counsel for McGee responded, "It's

not for the 402 conference." No other discussion was had on the record regarding any plea offer.

¶ 22 On October 5, 2009, prior to trial, the trial court inquired of trial counsels whether any

plea offers had been made to defendant and McGee:

"THE COURT: The first thing I want to go over with everyone is I know during

the course of the pendency of this matter that the State has made certain offers, plea

offers to the defendants. I just want to make sure under the case of People versus Curry

that the defendants are aware of that and that they also are aware of the minimum and

maximum penalties.

So, State, were offers made to either or both defendants?

[Assistant State's Attorney]: Yes, your Honor. As to both defendants an offer

8 1-12-2549

was made as to count - - I'm sorry, Judge - - as to Count 7 or 8 of 30 years.

THE COURT: 7 or 8. That would be the - -

[Assistant State's Attorney]: Felony murder, armed robbery, felony murder,

aggravated vehicular hijacking.

THE COURT: And the offer was 30 years in the Illinois Department of

Corrections?

[Assistant State's Attorney]: Yes, your Honor, it was.

***

THE COURT: All right, very good. And [defense counsel], is that your

understanding of the offer by the State?

[Defense Counsel]: It is, your Honor and I also communicated that offer to my

client and she is also electing to proceed to trial.

THE COURT: And Miss Brown, you have heard the representations of your

attorney and the State's Attorney, is that your understanding of the offer that they made?

DEFENDANT BROWN: Yes, sir."

The trial court then informed defendant of the minimum and maximum sentences she could

receive. Defendant acknowledged she discussed sentencing with her attorney and understood the

minimum and maximum sentences possible. The matter then proceeded to trial.

¶ 23 Evidence at Trial

¶ 24 This court previously detailed the evidence adduced at defendant's trial in our decision on

direct appeal (People v. Brown, 2011 IL App (1st) 093619-U):

"The evidence established that on December 22, 2005, the victim was dispatched

9 1-12-2549

to a nonexistent address on Chicago's southside, where he was unable to locate the caller

in need of a taxi. Upon a second call to the dispatcher, the victim picked up three

passengers, the defendant and her two codefendants. He was asked to take the three to the

[sic] 96th Street and Pulaski.

According to the defendant's videotaped statement, the three had agreed to rob an

armored truck. In order to carry out their plan, they needed a vehicle to follow the

armored truck before executing the robbery. They decided to hijack a cab to get the

needed vehicle. Codefendant McGee called the livery service twice from her cell phone

to arrange for a cab.

Before the three left codefendant Peterson's apartment, the defendant saw

Peterson arm himself with a weapon whose length she approximated by using her hands

and noted it had wood on it. The victim was killed by a shotgun blast. When the cab

reached the requested destination, McGee told the victim to go the rear of the residence

by way of the alley. Once in the alley, Peterson put his weapon to the victim's head and

had him get out of the car. The two exited on the driver's side of the car. Peterson

instructed the victim to remove his clothing. In the meantime, the defendant and

codefendant McGee also exited the car on the passenger side of the car. According to the

defendant, the victim was taking off his blue jean jacket when 'all I heard was a pah.'

The defendant stated Peterson shot the victim from a distance of about three feet and the

victim fell in the snow.

After clearing the cab of some items, the three reentered with the defendant

driving. The defendant saw Peterson place the shotgun into what she described as a

10 1-12-2549

'book bag.' The defendant identified a shotgun depicted in a photograph as the same gun

she saw Peterson possess and use on the victim.

The three abandoned the cab. Before leaving the cab, the defendant saw Peterson

remove a 'black box' from the glove box and throw it away. Peterson also removed $200

to $300 from a wallet that was also in the glove box. The three walked in the direction of

a bus stop on 95th Street near Christ Hospital. On their way, the defendant and McGee

entered a Walgreen's store and purchased a candy bar with a $20 bill Peterson took from

the wallet. A videotape of the purchase was shown to the jury. The three took a bus to

Peterson's apartment.

The defendant concluded her statement by acknowledging that she had been

treated well by the police. The defendant reiterated that what she had stated was the truth.

A detective responded: 'You know the only thing that upsets me? *** What really ***

upsets me is this poor guy was laying there bleeding and the three of [you, not one of

you] *** called 911.'

The jury found the defendant guilty of aggravated vehicular hijacking, armed

robbery and first-degree murder. The jury specially found that first-degree murder was

committed by the use of a firearm. Following the denial of posttrial motions, the

defendant was sentenced to 28 years for first-degree murder with an additional 15 years

based on the use of a firearm." Id. ¶¶ 5-11.

¶ 25 Direct Appeal

¶ 26 On direct appeal, defendant raised three issues: (1) that she was deprived of a fair trial by

the introduction of an autopsy photo; (2) prosecutorial misconduct; and (3) that her 43-year

sentence was excessive. Brown, 2011 IL App (1st) 093619-U, ¶ 13. Both parties agreed that

11 1-12-2549

defendant's mittimus must be corrected to reflect a single conviction of murder. Id. We affirmed

defendant's conviction and sentence. Id. ¶ 37. We concluded that the introduction of the autopsy

photograph did not deprive defendant of a fair trial; that the claimed instances of prosecutorial

misconduct did not rise to the level of second prong plain errors; and that defendant's sentence

was not excessive. Id. We further corrected the mittimus to reflect a single conviction of

murder. Id.

¶ 27 Defendant's Pro Se Postconviction Petition

¶ 28 In May 2012 defendant filed a pro se petition under the Act (725 ILCS 5/122-1 et seq.

(West 2012)). Defendant's pro se petition alleged trial counsel was ineffective for several

reasons, specifically trial counsel failed to: (1) argue "the rule of accountability" and argue for a

lesser included offense; (2) properly argue her motion to suppress statements; (3) file a motion to

suppress evidence, namely, the contents of a backpack recovered from codefendant Peterson's

apartment; (4) challenge a juror who spoke English as a second language; and (5) advise her of a

20-year plea bargain from the State. Defendant pursues only issues (2) and (5) in this appeal;

that trial counsel rendered ineffective assistance of counsel by failing to present evidence and

testimony that her statement to police was the product of physical and mental coercion and

failing to inform her of an offer by the State to enter a 20-year plea bargain.

¶ 29 In support of her petition, defendant attached portions of the record of proceedings,

excerpts of case law, three affidavits containing her own statements, and two letters–one from

Cashmere Wallace, her brother, and the second from Camille Kershaw, her mother. In

defendant's first affidavit she averred that before trial the State offered her 30 years, but that she

turned the offer down. She further averred that the assistant State's Attorney then informed trial

counsel that they would offer 20 years; however, trial counsel declined the offer because he

12 1-12-2549

assumed defendant would not accept the offer and believed he could win the trial. In her second

affidavit, defendant stated that prior to trial her counsel informed her mother and brother of the

20-year plea deal offered by the State. She further asserted that trial counsel informed her

mother that he "turned the deal down." In her third affidavit, defendant averred that she

informed trial counsel that "two days prior to my confession, I was physically assaulted &

threatened of my unborn child begin [sic] taken from me." She further averred that she "also

informed my brother, Cashmere Wallace, that I was hit in my head while in the van with

officers."

¶ 30 The letter from defendant's brother stated, "The [e]arly [m]orning of December 27, 2005

me, and my sister got high. [S]he confined [sic] in me that office [sic] Two[h]ill had slapped her

in the head, while in the van." The letter was signed by Cashmere Wallace, but was not sworn or

notarized.

¶ 31 The letter from defendant's mother stated, "December 27, 2005 I [d]rove [m]y [d]augher

Jimille Brown to Evergreen police [s]tation, she was highly [i]ntoxicated with [m]arijuana, and

[e]cstacy." The letter was signed by Camille Kershaw, but was not sworn or notarized.

¶ 32 On August 10, 2012, the circuit court summarily dismissed defendant's pro se petition in

a written order. Regarding the claims at issue on appeal, the court first determined defendant's

argument regarding trial counsel's failure to present evidence that her statements to police were

the product of mental and physical coercion were "specifically contradicted by the record." The

circuit court pointed out that the motion to suppress contained allegations regarding the verbal

threats against defendant; however, defendant had sworn to the contents of the motion. At no

point did defendant allege the interrogating officers physically assaulted her. In addition, the

circuit court noted the allegations were specifically denied by the officer at the hearing. Further,

13 1-12-2549

in the videotaped confession defendant indicated she was treated well by the police and had no

complaints about her treatment. The circuit court also referenced the fact that trial counsel

argued defendant's statement was involuntary because she was threatened by the detectives in

opening and closing statements during the hearing on the motion to suppress as well as in the

motion for a new trial. The circuit court concluded this allegation was "completely contradicted

by the record."

¶ 33 The circuit court also determined defendant's factual allegation that she received

ineffective assistance of counsel due to trial counsel's failure to advise her of a plea offer by the

State of 20 years in prison was contradicted by the trial record. The circuit court noted that the

trial court asked the State whether any plea offers were made. In response, the assistant State's

Attorney informed the court and the defense that in exchange for the defendant's plea to all

counts, the State had offered the defendant 30 years in prison. The circuit court stated in its

order that trial counsel acknowledged this offer and indicated he had communicated this offer to

his client, but that defendant elected to proceed to trial. The trial court also asked defendant if

this was her understanding of the offer and she indicated it was. The circuit court concluded the

record "shows that the only offer ever made to the defendant was for 30 years in prison" and,

therefore, "[t]he factual allegations in the petition are meritless."

¶ 34 This appeal timely followed.

¶ 35 ANALYSIS

¶ 36 On appeal, defendant contends that her petition stated the gist of a meritorious claim that

defense counsel rendered ineffective assistance at trial. Specifically, defendant asserts her trial

counsel was ineffective for two reasons: (1) for failing to present evidence that her statement to

police was the product of mental and physical coercion; and (2) for failing to inform her of a 20-

14 1-12-2549

year plea offer. We note that defendant makes no argument on appeal as to the other allegations

in her petition.

¶ 37 In response, the State first addresses the sufficiency of defendant's petition arguing: (1)

that defendant forfeited her arguments regarding ineffective assistance of counsel because they

were not raised in her direct appeal; and (2) that the State asserts that defendant's petition lacked

independent corroboration as required by section 122-2 of the Act. The State concludes that the

insufficiency of defendant's petition is a basis on which to uphold the court's summary dismissal.

In the alternative, the State addresses the substance of defendant's petition, asserting defendant's

contentions are rebutted by the record as defendant was never offered a 20-year plea bargain and

evidence was adduced at the evidentiary hearing that defendant's statement was not a product of

coercion. Our review of the summary dismissal of defendant's postconviction petition is de

novo. People v. Tate, 2012 IL 112214, ¶ 10. We first consider the sufficiency of defendant's

petition.

¶ 38 Sufficiency of the Petition

¶ 39 The State asserts defendant's petition was insufficient to survive first-stage review for

two reasons: (1) defendant has forfeited her arguments regarding counsel's ineffectiveness; and

(2) defendant failed to provide any evidence in support of her claims as required by section 122-

2 of the Act. We address each in turn.

¶ 40 Forfeiture

¶ 41 "The scope of the [postconviction] proceeding is limited to constitutional matters that

have not been, nor could have been, previously adjudicated." People v. Harris, 224 Ill. 2d 115,

124 (2007). Accordingly, issues that could have been raised on direct appeal, but were not, are

considered forfeited and, therefore, barred from consideration in a postconviction proceeding.

15 1-12-2549

People v. Petrenko, 237 Ill. 2d 490, 499 (2010). A postconviction claim that depends on matters

outside the record, however, is not ordinarily forfeited because such matters may not be raised on

direct appeal. People v. English, 2013 IL 112890, ¶ 22; People v. Youngblood, 389 Ill. App. 3d

209, 214 (2009).

¶ 42 In the present case, defendant asserts two arguments regarding what she alleges was her

trial counsel's ineffectiveness. The first argument, that her trial counsel failed to inform her of a

20-year plea offer, could not have been raised on direct appeal. Information regarding this claim

was outside of the record, therefore, we find the argument is not forfeited. See People v. Harris,

206 Ill. 2d 1, 15 (2002) (finding " [t]he facts relating to this claim do not appear on the face of

the original appellate record, and res judicata and waiver therefore do not apply in this

instance"). Second, defendant asserts that trial counsel was ineffective for failing to present

evidence at her suppression hearing to corroborate her claim that she was mentally and

physically coerced into providing her statement to police. In that this claim is based on

purported corroborative evidence of coercion which was not presented, the facts relating to this

claim are outside the record. Accordingly, we will also consider this portion of defendant's

claim. See Harris, 206 Ill. 2d at 15.

¶ 43 Compliance With Section 122-2 of the Act

¶ 44 The State contends that defendant's petition was properly dismissed at the first stage as

defendant failed to provide any evidence in support of her claims as required by section 122-2 of

the Act. 725 ILCS 5/122-2 (West 2012). Specifically, the State points out that defendant

submitted affidavits that were not notarized and, therefore, do not satisfy the pleading

requirements of section 122-2. Relying on People v. Collins, 202 Ill. 2d 59, 66-68 (2002), the

State concludes that the failure to meet the pleading requirements of section 122-2 is fatal to

16 1-12-2549

defendant's postconviction petition. In response, defendant claims that "the lack of notarization

on the evidentiary statements attached to a pro se petition is a 'technicality' that would not

prevent a petition from advancing to the second stage," relying on People v. Parker, 2012 IL

App (1st) 101809, ¶ 75.

¶ 45 We begin our analysis of the State's contention by noting that the Act provides a

procedural mechanism through which a defendant may assert a substantial denial of his

constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1

(West 2012). "The purpose of a postconviction proceeding is to permit inquiry into constitutional

issues involved in the original conviction and sentence that were not, and could not have been,

adjudicated previously on direct appeal." English, 2013 IL 112890, ¶ 22. At the first stage of a

postconviction proceeding, the trial court independently reviews the petition, taking the

allegations as true, and determines if it is frivolous or patently without merit. People v. Hodges,

234 Ill. 2d 1, 10 (2009). "The court is further foreclosed from engaging in any fact-finding or

any review of matters beyond the allegations of the petition." People v. Boclair, 202 Ill. 2d 89,

99 (2002). At this stage, a defendant "need only present a limited amount of detail in the

petition" and the "threshold for survival" is "low." Hodges, 234 Ill. 2d at 9. A pro se defendant

need only "allege enough facts to make out a claim that is arguably constitutional for purposes of

invoking the Act." Id. "Thus, in our past decisions, when we have spoken of a 'gist,' [of a

constitutional claim] we meant only that the section 122-2 pleading requirements are met, even if

the petition lacks formal legal arguments or citations to legal authority." Id.

¶ 46 Whether defendant's postconviction claims survive the first stage of the postconviction

proceedings is dependent upon whether defendant's petition conforms to the requirements of the

Act. See Collins, 202 Ill. 2d at 66-67; People v. Delton, 227 Ill. 2d 247, 255 (2008). Section

17 1-12-2549

122-2 of the Act requires that the petitioner either provide "affidavits, records, or other evidence"

to support the petitioner's allegations or explain the absence of such documentation. 725 ILCS

5/122-2 (West 2012). "The purpose of the 'affidavits, records, or other evidence' requirement is

to establish that a petition's allegations are capable of objective or independent corroboration."

Hodges, 234 Ill. 2d at 10 (citing Delton, 227 Ill. 2d at 254). If at first-stage review the affidavits

do not comply with the evidentiary requirements of section 122-2, then the petition must comply

with the pleading requirements of section 122-2 by at least providing an explanation as to why

the documents or affidavits are unobtainable. Collins, 202 Ill. 2d at 66-67. The failure to meet

either of the requirements of section 122-2 justifies the petition's summary dismissal. 725 ILCS

5/122-2 (West 2012); Delton, 227 Ill. 2d at 255. If a postconviction petition is unsupported as

required by section 122-2, then we need not consider whether the petition sets forth the gist of a

constitutional claim. Delton, 227 Ill. 2d at 255.

¶ 47 In Collins our supreme court stated that the purpose of a section 122-2 affidavit is to

establish that the defendant's allegations can be independently corroborated and, therefore,

failure to meet the requirements of section 122-2 is enough to justify summary dismissal.

Collins, 202 Ill. 2d at 66-67. There, the defendant filed a pro se petition for postconviction

relief. Id. at 62. The only attachment to the defendant's petition was a sworn verification from

the defendant that " '[a]ll the facts presented are true and correct to the best of my recollection.' "

Id. The circuit court dismissed the defendant's petition as frivolous and patently without merit.

Id. The appellate court ultimately reversed the circuit court's dismissal of defendant's petition.

Id. at 64.

¶ 48 Our supreme court affirmed the circuit court's dismissal of the petition, reasoning that

"the failure to either attach the necessary 'affidavits, records, or other evidence' or explain their

18 1-12-2549

absence is 'fatal' to a post-conviction petition [citation] and by itself justifies the petition's

summary dismissal [citation]." Id. at 66. The court, however, expressly rejected the "defendant's

contention that his sworn verification can serve as a substitute for the 'affidavits, records, or other

evidence' mandated by section 122-2." Id. "[T]he Act itself clearly distinguishes between the

sworn verification that defendant filed and the supporting 'affidavits, records, or other evidence'

that defendant neglected to file." Id. Our supreme court stated that the purposes of sections 122-

1(b) and 122-2 are "wholly distinct." Id. at 67. Specifically, a section 122-1(b) affidavit "like all

pleading verifications, confirms that the allegations are brought truthfully and in good faith.

[Citation.] The latter [section 122-2], by contrast, shows that the verified allegations are capable

of objective or independent corroboration." Id. In upholding the circuit court's dismissal of the

petition, our supreme court recognized that requiring a defendant to attach " 'affidavits, records,

or other evidence' " may place an unreasonable burden on postconviction petitioners. Id. at 68.

"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." Id. 4

4 In a dissent upon denial of rehearing, Justice McMorrow, joined by Justice Freeman, criticized the majority's holding in Collins that the defendant's failure to comply with the pleading requirements of section 122-2 by itself warranted summary dismissal of the postconviction petition. Id. at 79 (McMorrow, J., dissenting, joined by Freeman, J.). The dissent pointed out that under Boclair, the circuit court is limited at the summary dismissal stage to asking whether the petition states the "gist of a constitutional claim,"; accordingly, matters of "procedural compliance," such as the failure to comply with the affidavit requirement of section 122-2, may not be considered at the initial stage of postconviction review. Id. at 80. In the time since the Collins decision was issued, however, our supreme court has expressly stated that "in our past decisions, when we have spoken of a 'gist,' we meant only that the section 122-2 pleading requirements are met, even if the petition lacks formal legal arguments or citations to legal authority." Hodges, 234 Ill. 2d at 9. Accordingly, in order to even reach the question of whether the petition states the gist of a constitutional claim the pleading requirements of section 19 1-12-2549

¶ 49 The propriety of a summary dismissal of a first-stage petition based on the petitioner's

failure to comply with section 122-2 of the Act was further reiterated in Delton, wherein our

supreme court stated, "while a pro se petition is not expected to set forth a complete and detailed

factual recitation, it must set forth some facts which can be corroborated and are objective in

nature or contain some explanation as to why those facts are absent. As a result, the 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."

(Internal quotation marks omitted.) Delton, 227 Ill. 2d at 254-55 (quoting Collins, 202 Ill. 2d at

66).

¶ 50 Defendant contends that the lack of notarization of a section 122-2 affidavit is not fatal to

her first-stage petition, as it is a mere technicality and, therefore, should proceed to second-stage

review. In support of this position, defendant relies upon two cases; Parker, and People v.

Henderson, 2011 IL App (1st) 090923, which we discuss in turn.

¶ 51 We first turn to consider Henderson. We note that the relevant issue in Henderson was

whether the lack of notarized section 122-1(b) verification affidavit was a proper basis for

summary dismissal at the first stage. Id. ¶ 21. The Henderson court did not consider the

consequences of an unnotarized section 122-2 affidavit, as is at issue in the present case.

Recognizing the distinction between sections 122-1(b) and 122-2 of the Act, the Henderson court

stated: "Unlike the section 122-2 affidavit, which shows that the allegations can be objectively

and independently corroborated, the verification affidavit requirement of section 122-1, 'like all

pleading verifications, confirms that the allegations are brought truthfully and in good faith.' "

Id. (quoting Collins, 202 Ill. 2d at 67). The court concluded that although any affidavit filed

122-2 must be satisfied. See Delton, 227 Ill. 2d at 255.

20 1-12-2549

pursuant to the Act must be notarized, not every defect in a petition warrants summary dismissal.

Id. ¶ 29. The Henderson court specifically held that "the Act allows summary dismissal only

where a defect renders a petition frivolous or patently without merit. By their traditional

meaning, we do not find those terms would encompass the mere lack of notarization of a

verification affidavit." (Emphasis added.) Id. ¶ 34. The court reasoned that the notarization of a

verification affidavit has "no relation to the substance of a defendant's alleged constitutional

claim" and that "unlike a section 122-2 affidavit, a section 122-1 verification affidavit does not

show that the defendant's allegations can be corroborated and is not considered when

determining whether a defendant has a factual basis for his claims." Id. The court further

explained, "since an unnotarized verification affidavit cannot render a petition frivolous or

patently without merit, it cannot be condoned as a proper basis for first-stage dismissal of a

postconviction petition." Id. 5

¶ 52 In the present case, the State does not challenge the sufficiency of defendant's verification

affidavit. Accordingly, we do not find Henderson to be applicable.

¶ 53 Second, defendant relies on Parker for the proposition that "the lack of notarization on

the evidentiary statements attached to a pro se petition is a 'technicality' that would not prevent a

petition from advancing to the second stage." In Parker, we considered whether the first-stage

dismissal of a postconviction petition was proper because one of the two section 122-2 affidavits

submitted by the defendant was unnotarized. Parker, 2012 IL App (1st) 101809, ¶ 73. There,

the unnotarized affidavit at issue consisted of statements from a codefendant in support of the 5 Similarly, our supreme court in People v. Hommerson, 2014 IL 115638, held that the trial court "may not dismiss a petition at the first stage of proceedings solely on the basis that it lacked a verification affidavit." (Emphasis added.) Id. ¶ 11. Although section 122-2 affidavits were attached to the defendant's postconviction petition, our supreme court expressly did not consider them in its decision. Id. ¶ 14 n. 1. Accordingly, Hommerson is also inapplicable to the case at bar.

21 1-12-2549

defendant's actual innocence claim. Id. ¶ 63. The affidavit, however, was sworn pursuant to

section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2010)) and asserted that

the defendant did not commit the murder and he had " 'never seen him in my life.' " Id. ¶ 64.

The Parker court expressly rejected the State's argument that summary dismissal was warranted

based on the lack of notarization of the section 122-2 affidavit. The Parker court adopted the

reasoning of Henderson, "where we stated that we would not let a technicality prevent a pro se

petition from advancing to the second stage." (Internal quotation marks omitted.) Id. ¶ 76

(quoting People v. Wilborn, 2011 IL App (1st) 092802, ¶ 72). The Parker court did not take

issue with the content of the codefendant's affidavit. Id. ¶¶ 83-85.

¶ 54 Although Parker stands for the proposition that a section 122-2 affidavit need not be

notarized upon first-stage review, this court has found the lack of notarization in that instance

can be a basis for summary dismissal. In People v. Gardner, 2013 IL App (2d) 110598, the

reviewing court concluded that the affidavit requirements of section 122-1(b) are "wholly

distinctive" from section 122-2 and, therefore, should be "construed independently as they serve

independent purposes." Id. ¶ 17. In addition, the court stated "[a]lthough a petition may not be

summarily dismissed for violating section 122-1(b), it may be for violating section 122-2." Id.

This reasoning was similarly applied in People v. Wideman, 2013 IL App (1st) 102273, wherein

we upheld the summary dismissal of a successive postconviction petition based on the fact the

section 122-2 affidavit was unnotarized and failed to offer any explanation as to why the

affidavits were not notarized. Id. ¶ 18. Had an explanation been given, "[t]he trial court would

have had an opportunity to determine whether there was at least minimal compliance with

section 122-2 of the Act." Id.

¶ 55 In contrast, the Parker court based its reasoning on Henderson wherein we held that the

22 1-12-2549

lack of notarization of a section 122-1(b) verification affidavit could not be the basis of a

summary dismissal. Henderson, 2011 IL App (1st) 090923, ¶ 21. Despite the fact Henderson

expressly distinguished between the purposes of section 122-1(b) and section 122-2 affidavits

(and also discussed Collins), the Parker court failed to acknowledge the distinction between

these two sections. See id. ¶ 30, 34; Parker, 2012 IL App (1st) 101809, ¶¶ 72-77. Our supreme

court has made clear that the purpose of a section 122-2 affidavit is to "show[ ] that the verified

allegations are capable of objective or independent corroboration. To equate the two [sections]

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." Collins, 202 Ill. 2d at 67. Accordingly, section 122-1(b) verification

affidavits are readily distinguishable from section 122-2 affidavits and, therefore, we decline to

follow Parker and will instead follow the more applicable opinions of Collins, Gardner, and

Wideman.

¶ 56 Even if we construed the notarization requirement as a technicality, the affidavits are still

insufficient to support defendant's petition. An affidavit is "a declaration, on oath, in writing,

and sworn to before some person who has authority under the law to administer oaths." People

v. Gray, 2011 IL App (1st) 091689, ¶ 13. An affidavit "should consist of factual propositions to

which the affiant could testify in an evidentiary hearing." People v. Coleman, 2012 IL App (4th)

110463, ¶ 54. Moreover, the "affidavits and exhibits which accompany a petition must identify

with reasonable certainty the sources, character, and availability of the alleged evidence

supporting the petition's allegations." Delton, 227 Ill. 2d at 254. If the content of an affidavit is

no more than hearsay, then it is insufficient to support a claim under the Act. Gray, 2011 IL App

(1st) 091689, ¶ 16.

23 1-12-2549

¶ 57 In the present case, defendant submitted three unnotarized affidavits from herself and two

letters from her mother and brother. We first address the fact that the letters are unquestionably

not affidavits; they lack attestation, identifiers in the statement, factual specificity, and

notarization. See id. ¶ 14. Further, these letters are prime examples of why affidavits are

required to be notarized, as both letters consist of two pieces of paper; the top half consisting of

the contents of the letter and the bottom half consisting of the date, the typed name, and the

handwritten signature of the "author." These two pieces of paper are held together with a single

piece of white-colored tape, which was placed on the back of the paper and was attached to the

petition as one sheet of paper. As presented, we cannot say that these letters are even capable of

being sworn to or notarized in future proceedings. Accordingly, these letters fail to support

defendant's petition. See Gardner, 2013 IL App (2d) 110598, ¶ 17 (finding the letter attached to

a postconviction petition was not a valid section 122-2 affidavit).

¶ 58 We next turn to consider the three unnotarized affidavits defendant authored on her own

behalf. 6 None of defendant's affidavits provide independent corroboration of the facts alleged in

her petition. In fact, two of the affidavits contain hearsay statements; that the Assistant State's

Attorney informed her lawyer of a 20-year plea offer and that her trial counsel informed her

mother and brother of a 20-year plea offer. Affidavits containing hearsay are insufficient to

support a claim under the Act. Gray, 2011 IL App (1st) 091689, ¶ 16. Moreover, defendant

could have supported her claim that trial counsel was ineffective for failing to relay to her the 20-

year plea offer with an affidavit from trial counsel. Under defendant's circumstances, it is

understandable that such an affidavit would be difficult to acquire. See People v. Williams, 47

6 We note that the affidavits authored by defendant were signed under penalties of perjury pursuant to section 1-109 of the Illinois Code of Civil Procedure (735 ILCS 5/1-109 (West 2012)). 24 1-12-2549

Ill. 2d 1, 4 (1970) ("The difficulty or impossibility of obtaining such an affidavit is self-

apparent."). An affidavit from trial counsel, however, was not the only means of corroboration,

as defendant claims her mother and brother could corroborate the facts surrounding the 20-year

plea offer but failed to obtain affidavits from either of them which would corroborate her

allegation. Further, defendant's affidavits are inconsistent with the allegations of her petition.

For example, defendant asserts in one affidavit that two days prior to her confession she was

physically assaulted. This assertion was belied by her petition (and also the record) wherein she

stated she confessed on December 27, 2005, and was hit in the head on December 26, 2005. For

these reasons, we find that defendant's affidavits did not comply with section 122-2.

¶ 59 Even though none of defendant's affidavits comply with section 122-2 it does not

necessarily follow that her petition warrants summary dismissal. Section 122-2 of the Act also

permits a defendant to attach records or other documentation to the petition as a means of

independent corroboration. 725 ILCS 5/122-2 (West 2012). Here, in support of her contention

that trial counsel was ineffective for failing to present evidence of coercion at the hearing on the

motion to suppress, defendant attached to her petition two pages of Officer Twohill's testimony

from the motion to suppress hearing and three pages from the hearing on defendant's motion for

a new trial. The excerpt of Officer Twohill's testimony consists of questions regarding

defendant's identification of individuals while in the van. The testimony indicates defendant

became emotional when making the identifications and seeing Peterson escorted by officers out

of a residence. Accordingly, these transcript excerpts do not provide the requisite factual support

for defendant's postconviction allegations of ineffective assistance of counsel which are at issue

in this appeal. 7 See Delton, 227 Ill. 2d at 256. In addition, defendant attached excerpts of case

7 Defendant also attached three portions of the record to support her other claims of 25 1-12-2549

law that she believes are relevant to her case. At this stage in postconviction proceedings, a

petition need not be supported by case law. Further, attaching case law to the petition does not

aid defendant in establishing independent corroboration of the facts alleged in her petition. In

fact, section 122-2 prohibits citations and discussions of authorities in the petition. 725 ILCS

5/122-2 (West 2012).

¶ 60 Although defendant failed to support her petition pursuant to section 122-2, her failure

may be excused if she has provided an explanation as to why the affidavits, records, or other

evidence are not attached. 725 ILCS 5/122-2 (West 2012); see Delton, 227 Ill. 2d at 257.

Defendant does not explain why she failed to comply with section 122-2. Under the

circumstances of this case, we cannot excuse defendant's complete disregard for the requirements

of the Act. See Wideman, 2013 IL App (1st) 102273, ¶ 18.

¶ 61 We conclude that defendant's petition does not contain the proper affidavits, records, or

other evidence to factually support her allegations, as is required by section 122-2. Nor does the

petition explain why those documents are absent, which is also required by section 122-2.

Accordingly, we find that the trial court did not err in summarily dismissing defendant's

postconviction petition. See Delton, 227 Ill. 2d at 258. Because we have determined that

defendant did not properly support her petition under section 122-2, we need not consider

whether defendant's petition sets forth the gist of a constitutional claim. See id. at 255.

¶ 62 CONCLUSION

¶ 63 For the reasons stated above, we affirm the judgment of the circuit court summarily

dismissing defendant's first-stage postconviction petition.

ineffective assistance of trial counsel which are not raised on appeal. As these claims are not raised on appeal, we decline to address those portions of the record which were attached in support of them. 26 1-12-2549

¶ 64 Affirmed.

27 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

THE PEOPLE OF THE STATE OF ILLINOIS,

Respondent-Appellee,

v.

JAMILLE BROWN,

Petitioner-Appellant.

Appellate Court of Illinois First District, Sixth Division

July 25, 2014

JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.

Appeal from the Circuit Court of Cook County.

For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, Christopher Kopacz, Office of the State Appellate Defender, Chicago, Illinois

For APPELLEE: Alan Spellberg, Matthew Connors, Whitney Bond, Illinois State's Attorney, Chicago, Illinois