People v. Hemingway

14 N.E.3d 1238

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Kevin E. HEMINGWAY, Defendant–Appellant.

No. 4–12–1039.

Appellate Court of Illinois, Fourth District.

July 23, 2014.

Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Alan D. Goldberg, Jessica Pamon, and Jessica D. Ware (argued), all of State Appellate Defender's Office, of Chicago, for appellant.

Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, David J. Robinson, and Kathy Shepard (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice APPLETON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Kevin E. Hemingway, who is serving a 35–year prison term for armed robbery (720 ILCS 5/18–2(a)(2) (West 2008)), appeals from the summary dismissal of his petition for postconviction relief. He contends that, in his pro se petition, he made two claims having an arguable basis in law and fact: (1) his trial counsel rendered ineffective assistance in the jury trial by failing to call an alibi witness, Tiffany Steele, and (2) his appellate counsel rendered ineffective assistance on direct appeal by failing to argue that the sentence was excessive.

¶ 2 In our de novo review (People v. Tate, 2012 IL 112214, ¶ 10, 366 Ill.Dec. 741, 980 N.E.2d 1100 ), we find the first claim to be unsupported by affidavit and unaccompanied by any explanation for the lack of an affidavit. See 725 ILCS 5/122–2 (West 2012). The second claim actually is not in the petition, and hence it is forfeited. See 725 ILCS 5/122–3 (West 2012). For those reasons, we affirm the trial court's judgment.

¶ 3 I. BACKGROUND

¶ 4 A. The Written Statement By Steele

¶ 5 According to the evidence in the jury trial, the armed robbery occurred at a McDonald's restaurant on North Mattis Street, in Champaign, on August 17, 2009, between 10:30 and 11 a.m.

¶ 6 Defendant attached to his postconviction petition a statement by Steele. Her statement begins as follows: “I, Tiffany, under oath and penalty of perjury, state the following,” and then she writes that, between 10:23 a.m. and 11:03 a.m. on August 17, 2009, she was with defendant at his apartment on Cynthia Drive. She further writes that she had told defendant's trial counsel, Amanda Riess, she was willing to testify to that effect but that Riess told her she did not need her to testify and that she could just sit and watch the trial. Steele signed her statement and dated it July 17, 2012, but her statement contains no notary clause (“[s]igned and sworn (or affirmed) to before me” (see 5 ILCS 312/6–105 (West 2012) )) or even the signature of a notary public. Instead, under Steele's signature, there is only a notary seal, imprinted by a rubber stamp.

¶ 7 B. The Claim of Ineffective Assistance of Appellate Counsel

¶ 8 In his postconviction petition, defendant makes four claims. First, he claims that his video-recorded confession to the police was the fruit of an illegal seizure because the police lacked probable cause to arrest him. Second, he claims that Riess rendered ineffective assistance by failing to inquire into all the facts relevant to the illegal arrest. Third, he claims that appellate counsel rendered ineffective assistance on direct appeal by failing to argue Riess's ineffectiveness in neglecting to contest the illegal arrest. Fourth, he claims that Riess rendered ineffective assistance by failing to call Steele in the jury trial.

¶ 9 The third claim, the one against appellate counsel, reads in its entirety as follows:

“III. APPELLATE COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE ARGUMENT THAT TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A PRETRIAL MOTION TO SQUASH [sic ] ARREST AND SUPPRESS ANY EVIDENCE AFTER THE ARREST FOR IT WAS AN ILLEGAL ARREST WITHOUT PROBABLE CAUSE.

After the petitioner's conviction and sentence, he appealed to the Appellate Court, Fourth District, and he was appointed the State Appellate Defender's Office to represent him on appeal. On appeal the appointed counsel John M. McCarthy did not brief one issue concerning petitioner['s] conviction, his sentence or anything pertaining to the case.

Petitioner believe[s] that his direct appeal counsel fell well below the normal standard of representation: here the petitioner was found guilty of armed robbery with a firearm and sentenced to 35 years imprisonment. And the only issue presented for review on appeal is that whether ten dollar arrestee's medical fee was improperly imposed.

[H]ere the arrest was illegal and without probable cause and the record and actions of arresting officers vividly shows this petitioner had a right to a direct appeal regarding his conviction. He had the direct appeal but record will show he did not have the legal representation concerning issues that should have been brief[ed] that are now before this Court.”

¶ 10 II. ANALYSIS

¶ 11 A. The Alleged Failure of Trial Counsel To Call Steele as an Alibi Witness

¶ 12 Defendant's first argument is that his trial counsel, Riess, rendered ineffective assistance by failing to call Steele as an alibi witness in the jury trial. The State argues, however, that Steele's written statement is not notarized and that it therefore does not qualify as a supporting affidavit under section 122–2 of the Post–Conviction Hearing Act (725 ILCS 5/122–2 (West 2012) ).

¶ 13 1. The Difference Between a Verifying Affidavit and a Supporting Affidavit

¶ 14 The Post–Conviction Hearing Act (725 ILCS 5/122–1 to 122–7 (West 2012)) speaks of two separate and distinct affidavits. See People v. Collins, 202 Ill.2d 59, 67, 270 Ill.Dec. 1, 782 N.E.2d 195 (2002). One affidavit is the verifying affidavit. “The [postconviction] proceeding shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit.” 725 ILCS 5/122–1(b) (West 2012). The other affidavit is the supporting affidavit. “The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached.” 725 ILCS 5/122–2 (West 2012).

¶ 15 As the supreme court has explained, these affidavits serve different purposes. The verifying affidavit “confirms that the allegations are brought truthfully and in good faith,” whereas the supporting affidavit “shows that the verified allegations [in the petition] are capable of objective or independent corroboration.” Collins, 202 Ill.2d at 67, 270 Ill.Dec. 1, 782 N.E.2d 195. In other words, through the penalty of perjury (720 ILCS 5/32–2 (West 2012) ; 730 ILCS 5/5–4.5–40(a) (West 2012)), the verifying affidavit gives the petitioner an incentive to be subjectively honest in what he or she pleads, whereas the supporting affidavit serves more of an objective, evidentiary function.

¶ 16 2. When a Supporting Affidavit Is Needed

¶ 17 The factual allegations in the petition must be “support[ed]” by “evidence.” 725 ILCS 5/122–2 (West 2012). “[R]ecords” and “affidavits” are examples of “evidence.” Id. If the trial court's record does not corroborate the allegations in the petition, it is necessary for the petition to have a supporting affidavit (People v. Johnson, 377 Ill.App.3d 854, 859, 316 Ill.Dec. 589, 879 N.E.2d 977 (2007) ), or else the petition has to state why the supporting evidence is not attached (725 ILCS 5/122–2 (West 2012) ). See also People v. Hall, 217 Ill.2d 324, 333, 299 Ill.Dec. 181, 841 N.E.2d 913 (2005) (“Failure to attach independent corroborating documentation or explain its absence may, nonetheless, be excused where the petition contains facts sufficient to infer that the only affidavit the defendant could have furnished, other than his own sworn statement, was that of his attorney.”). Because “affidavits” are listed in section 122–2 as acceptable “evidence” (725 ILCS 5/122–2 (West 2012) ), the implication is that unsworn statements will not suffice.

¶ 18 The supreme court has long held that the lack of a supporting affidavit (when one is needed) constitutes grounds for the summary dismissal of a postconviction petition. In Collins, 202 Ill.2d at 66, 270 Ill.Dec. 1, 782 N.E.2d 195, the supreme court said: “[T]he 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, 241 Ill.Dec. 596, 719 N.E.2d 725 (1999) ) and by itself justifies the petition's summary dismissal (People v. Coleman, 183 Ill.2d 366, 380, 233 Ill.Dec. 789, 701 N.E.2d 1063 (1998), quoting People v. Jennings, 411 Ill. 21, 26, 102 N.E.2d 824 (1952) ).” True, the lack of a verifying affidavit does not justify summary dismissal. People v. Hommerson, 2014 IL 115638, ¶ 11, 378 Ill.Dec. 459, 4 N.E.3d 58. But the supreme court takes a different view when the petition lacks a supporting affidavit. People v. Delton, 227 Ill.2d 247, 258, 317 Ill.Dec. 636, 882 N.E.2d 516 (2008) (on the authority of Collins, affirming the summary dismissal of a postconviction petition because of the failure to attach to it any affidavits, records, or other evidence or explain the reason for their omission).

¶ 19 3. What Is an Affidavit?

¶ 20 “[A]n affidavit is simply a declaration, on oath, in writing, sworn to by a party before some person who has authority under the law to administer oaths.” (Emphasis added.) (Internal quotation marks omitted.) Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 493, 270 Ill.Dec. 18, 782 N.E.2d 212 (2002). The following things must coincide to make an affidavit: “there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.” (Internal quotation marks omitted.) Harris v. Murray, 233 Ga.App. 661, 504 S.E.2d 736, 740 (1998). “[I]n the presence of the officer,” the affiant must do something whereby he or she knowingly and intentionally accepts the obligation of an oath (internal quotation...