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Docket No. 90679-Agenda 12-November 2001.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 
LONDON COLLINS, Appellee.

The issue presented is whether the circuit court properlydismissed defendant's pro se post-conviction petition as frivolousand patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West2000). We hold that dismissal was proper.

BACKGROUND

On August 20, 1998, and as part of a negotiated pleaagreement, defendant pleaded guilty to one count of possessing acontrolled substance with the intent to deliver (720 ILCS570/401(a)(2)(B) (West 2000)). As required by Supreme CourtRule 402(a) (177 Ill. 2d R. 402(a)), the circuit court fullyadmonished defendant as to the nature of the charge, the statutorysentencing range, and the rights he would be waiving by pleadingguilty. After determining that defendant's guilty plea was bothvoluntary and supported by a sufficient factual basis, the circuitcourt accepted the plea and imposed the statutory minimumsentence 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 contingentupon the timely filing of a motion to withdraw his guilty plea andvacate the judgment. Defendant filed no such motion, and noappeal was taken.

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

"I wanted to appeal the case, which my counsel told methat he will. But never did. that brings me to submitt thismotion. thinking im waiting to go back on appeal. I alsoask him to put me in for a reduction sentence. which hemislead me. He never submitted that either."

The only attachment to defendant's petition was the followingsworn verification, which states in its entirety:

"I, London Collins, a prisoner incarcerated in TammsMinimum Security Unit, have read and understand theabove Petition for Post Conviction Relief. All the factspresented are true and correct to the best of myrecollection."

The circuit court dismissed defendant's petition as frivolous andpatently without merit. See 725 ILCS 5/122-2.1(a)(2) (West2000).

On October 10, 2000, the appellate court issued its initialorder reversing the circuit court's dismissal of defendant'spetition. In that order, the appellate court concluded that, althoughthe allegations set forth above stated the gist of a meritoriousconstitutional claim, the absence of any supporting documentationrendered defendant's petition insufficient to justify second-stagereview under the Post-Conviction Hearing Act (Act) (725 ILCS5/122-1 et seq. (West 2000)). The court therefore remanded thecause to the circuit court so that defendant could file affidavitsthat:

"minimally address the specifics of the defendant'sattorney's statement that he would appeal the case,describe in detail all of defendant's subsequent contactswith his attorney and explain fully the twenty-one monthdelay between the defendant's conviction and the filing ofhis petition."⁽¹⁾

According to the appellate court's order, if defendant successfullyfiled the requisite affidavits within the allotted time frame, thecircuit court would be required to docket defendant's petition forfurther proceedings. Conversely, if defendant failed to file thenecessary affidavits, "the trial court [would be] free to grant amotion 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 thecause for the submission of additional affidavits. According todefendant, once it concluded that defendant's petition stated thegist of a meritorious constitutional claim, the appellate court wasrequired to remand the cause for second-stage post-convictionproceedings, including the appointment of counsel. On October26, 2000, the State likewise filed a petition for rehearing, arguingthat the appellate court's decision ran afoul of the Act in numerousways. In particular, the State argued that (1) the Act does notcontemplate a petition that states the gist of a meritorious claimbut nevertheless is insufficient to justify second-stage review, and(2) the circuit court would not be "free to grant a motion todismiss by the State" based on defendant's failure to submit therequisite affidavits, as the Act does not permit the filing of suchmotions until the second stage of post-conviction review. OnNovember 17, 2000, the appellate court denied both petitions forrehearing without comment.

On November 21, 2000, the appellate court notified theparties of its intent to file a subsequent opinion in this case. Thenext day, the appellate court cancelled the filing of any subsequentopinions "until further notice." On December 5, 2000, the Statefiled in the appellate court a notice of intent to seek leave toappeal. On December 19, 2000, the State filed its petition for leaveto appeal. Two days later, the appellate court withdrew its order ofOctober 10, 2000, and informed the parties of its intent to file anew opinion in the case at a later but unspecified date. OnDecember 28, 2000, defendant filed a motion in the appellate courtrequesting reinstatement of the appellate court's original order,arguing that the appellate court lost jurisdiction over the case whenthe State filed its petition for leave to appeal. On December 29,2000, and without disposing of defendant's motion to reinstate, theappellate court issued a new opinion.

In its new opinion, the appellate court again reversed thecircuit court's dismissal of defendant's petition. 319 Ill. App. 3d193. As in its initial order, the appellate court concluded that thecontested portion of defendant's petition stated the gist of ameritorious constitutional claim. Contrary to its initial order,however, the court this time concluded that the absence ofsupporting affidavits did not render defendant's petition legallyinsufficient. Specifically, the court held that the absence of suchdocumentation was both "unsurprising" and "justified," given thatdefendant was "incarcerated, indigent and apparently barelyliterate." Moreover, because the only other likely witness to thealleged conversation was the attorney that defendant now claimswas ineffective, it would be "both oppressive and unfair" torequire independent evidence of that conversation beyonddefendant's sworn verification. Consequently, the appellate courtreversed the circuit court's summary dismissal of defendant'spetition and remanded the cause for second-stage post-convictionproceedings.

The State subsequently filed a motion to substitute a newpetition for leave to appeal for the one originally filed in this court,and this court granted both the motion and the petition.177 Ill. 2dR. 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. InPeople v. Turnage, 162 Ill. 2d 299, 305 (1994), this courtunanimously held that, once a petition for leave to appeal is filedin this court, the appellate court loses jurisdiction over the causeand may not file any additional opinions. Here, the appellate courtissued its second opinion sua sponte on December 29, 2000, 10days after the State petitioned this court for leave to appeal. Theappellate court's December 29, 2000, decision therefore is void fora lack of jurisdiction, and we order the appellate court to withdrawthat opinion and reinstate its decision of October 10, 2000. SeeTurnage, 162 Ill. 2d at 305.

We now turn to the merits. The Post-Conviction Hearing Act(Act) establishes a procedure for determining whether a criminaldefendant was convicted in substantial violation of his or herconstitutional rights. 725 ILCS 5/122-1(a) (West 2000).Proceedings under the Act are commenced by the filing of apetition in the circuit court in which the conviction occurred. 725ILCS 5/122-1(b) (West 2000). The petition must identify theproceeding in which the conviction occurred, state the date of thecontested final judgment, and clearly identify the allegedconstitutional violations. 725 ILCS 5/122-2 (West 2000). Inaddition, the petition must be both verified by affidavit (725 ILCS5/122-1(b) (West 2000)) and supported by "affidavits, records, orother evidence" (725 ILCS 5/122-2 (West 2000)). If such"affidavits, records, or other evidence" are unavailable, thepetition must explain why. 725 ILCS 5/122-2 (West 2000).

Upon the petition's filing, the circuit court has 90 days inwhich to review the petition and determine whether, on its face,"the petition is frivolous or is patently without merit." 725 ILCS5/122-2.1(a)(2) (West 2000). If the circuit court determines thatthe petition is either frivolous or patently without merit, it "shalldismiss the petition in a written order." 725 ILCS 5/122-2.1(a)(2)(West 2000). A post-conviction petition is considered frivolous orpatently without merit if the petition's allegations, taken as true,fail to present the gist of a meritorious constitutional claim. Peoplev. Gaultney, 174 Ill. 2d 410, 418 (1996). Moreover, the failure toeither 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 itselfjustifies the petition's summary dismissal (People v. Coleman, 183Ill. 2d 366, 380 (1998), quoting People v. Jennings, 411 Ill. 21, 26(1952)). We review the dismissal of a post-conviction petition denovo. Coleman, 183 Ill. 2d at 389.

In this case, the circuit court properly dismissed defendant'spro se post-conviction petition. Contrary to the clear mandate ofsection 122-2 of the Act, defendant's petition was unsupported by"affidavits, records, or other evidence" and offered no explanationfor the absence of such documentation. This fact alone justifies thesummary dismissal of defendant's petition. Coleman, 183 Ill. 2dat 380; Jennings, 411 Ill. at 26.

In reaching this result, we necessarily reject defendant'scontention that his sworn verification can serve as a substitute forthe "affidavits, records, or other evidence" mandated by section122-2. First, the Act itself clearly distinguishes between the swornverification that defendant filed and the supporting "affidavits,records, or other evidence" that defendant neglected to file. Thenecessity of a sworn verification is addressed in section 122-1 ofthe Act, which provides that a post-conviction proceeding isinitiated by the filing of a petition "verified by affidavit." 725ILCS 5/122-1(b) (West 2000). The necessity of attaching"affidavits, records, or other evidence" to the petition is addressedin section 122-2, which provides that "[t]he petition shall haveattached thereto affidavits, records, or other evidence supportingits allegations or shall state why the same are not attached."(Emphasis added.) 725 ILCS 5/122-2 (West 2000). Thus, underthe plain language of the Act, the sworn verification described insection 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 theallegations are brought truthfully and in good faith. See, e.g., In reMarriage of Pitulla, 202 Ill. App. 3d 103, 120 (1990). The latter,by contrast, shows that the verified allegations are capable ofobjective or independent corroboration. To equate the two is notonly to confuse the purposes of subjective verification andindependent corroboration but also to render the "affidavits,records, or other evidence" requirement of section 122-2meaningless surplusage. We will not adopt such a reading. SeePeople v. Maggette, 195 Ill. 2d 336, 350 (2001) (statute should beconstrued so that no term is rendered superfluous or meaningless).

Moreover, the two decisions upon which defendantprincipally 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 theproposition that a sworn verification is all that is needed tosubstantiate a post-conviction claim arising from discussionsbetween a criminal defendant and his attorney. Defendantmisreads these decisions. To be sure, in both Washington andWilliams, the post-conviction petitions contained claims arisingfrom conversations between the defendant and his attorney andwere supported only by the defendant's sworn verification. But inWashington, the petition also contained an explanation as to whythe necessary "affidavits, records, or other evidence" wereunobtainable. Thus, the petition in Washington explicitly compliedwith section 122-2's mandate that a post-conviction petition "shallhave attached thereto affidavits, records, or other evidencesupporting its allegations or shall state why the same are notattached." (Emphasis added.) 725 ILCS 5/122-2 (West 2000).Similarly, in Williams, the defendant alleged that he relied uponcertain misrepresentations that were "whispered to him" by hisattorney following the entry of his guilty plea. Williams, 47 Ill. 2dat 2. Thus, although the petition in Williams did not explicitlyexplain why "affidavits, records, or other evidence" were notattached, it did contain facts from which this court easily inferredthat "the only affidavit that petitioner could possibly havefurnished, other than his own sworn statement, would have beenthat of his attorney." Williams, 47 Ill. 2d at 4. In stark contrast, thepost-conviction petition that defendant filed in this case complieswith neither the letter nor the substance of section 122-2, as itlacks not only an explanation for the absence of supportingevidence but also even a single allegation from which such anexplanation could reasonably be inferred.

We recognize, of course, that requiring the attachment of"affidavits, records, or other evidence" will, in some cases, placean 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 bearingany burden whatsoever. On the contrary, section 122-2 makesclear that the petitioner who is unable to obtain the necessary"affidavits, records, or other evidence" must at least explain whysuch evidence is unobtainable. In this case, defendant is asking tobe excused not only from section 122-2's evidentiaryrequirements 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, Edwardsaddressed a wholly distinct question. The issue in Edwards waswhether the factual allegations set forth in the defendant's post-conviction petition stated the gist of a meritorious claim ofineffective assistance of counsel. In analyzing that question, thiscourt had neither reason nor occasion to assess the sufficiency ofthe petition's supporting documentation. In fact, the opinion inEdwards does not even describe what, if any, supporting evidencewas attached to the petition. We therefore reject defendant'scontention that Edwards dictates an affirmance of the appellatecourt's decision in this case.

CONCLUSION

Because defendant's pro se post-conviction petition includedneither "affidavits, records, or other evidence" supporting hisclaims nor an explanation as to why such supporting evidence waslacking, the circuit court properly dismissed that petition asfrivolous and patently without merit. We therefore reverse thejudgment of the appellate court and affirm the judgment of thecircuit court.

Appellate court judgment reversed;

circuit court judgment affirmed.

JUSTICE McMORROW, dissenting:

The majority holds that defendant's post-conviction petitionmust be summarily dismissed because, even though defendantprovided a sworn affidavit verifying the petition, he did not attachto the petition a second, evidentiary affidavit in support of hisconstitutional claim. In reaching this holding, the majorityattempts to distinguish this court's decision in People v. Williams,47 Ill. 2d 1 (1970), on its facts. However, the majority's recitationof the facts in Williams is inaccurate. The facts in that case,properly understood, cannot be distinguished from those in thepresent appeal. Williams stands as controlling authority on theissue of the adequacy of the attachments to defendant's post-conviction petition. Accordingly, I dissent.

In Williams, the defendant alleged in a post-convictionpetition that he was induced to plead guilty by misrepresentationsmade by his attorney. The petition was verified by the defendant'ssworn statement but no additional affidavits were attached. TheState, like the majority today, argued that the petition should bedismissed "because, contrary to the requirements of the Post-Conviction Hearing Act, satisfactory affidavits were not attachedto the petition" and because no reasons were "given for theabsence of such affidavits." Williams, 47 Ill. 2d at 3. This courtsquarely rejected that argument, noting that the only additionalaffidavit the defendant could possibly have furnished to supporthis claim, other than his own sworn statement, would have beenthat of the very attorney who allegedly made themisrepresentations. Williams, 47 Ill. 2d at 4.

Attempting to distinguish the facts in the present case fromthose in Williams, the majority states,

"[I]n Williams, the defendant alleged that he relied uponcertain 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 inWilliams did not explicitly explain why 'affidavits,records, or other evidence' were not attached, it didcontain facts from which this court easily inferred that'the only affidavit that petitioner could possibly havefurnished, other than his own sworn statement, wouldhave been that of his attorney.' Williams, 47 Ill. 2d at 4."Slip op. at 7.

The majority's attempt to distinguish Williams rests exclusively onthe assumption that the defendant in that case in some way "reliedupon" his attorney's whispered comments. According to themajority, it was the whispered nature of the misrepresentations inWilliams which made it impossible for the defendant to provideany other affidavit in support of his post-conviction claim. But thisreading of Williams is incorrect. The defendant in Williams did notallege that he "relied upon" his attorney's whispered comments.This court's holding in Williams was not based on that distinction.

The actual allegations made by the defendant in Williamswere:

"In his [post-conviction] petition defendant [Williams]alleged, among other things, that his constitutional rightswere violated in that he was induced to plead guilty byrepresentation of his attorney that the State would agree toa sentence of six months to one year in the county jailinstead of seeking a sentence of 40 to 80 years in thepenitentiary if he went to trial, and further, that even afterthe court imposed a sentence of three to seven years, hiscounsel whispered to him that the court would call himback and give him one year in the county jail. Thepetition, though sworn to by defendant, was unsupportedby any other affidavits." Williams, 47 Ill. 2d at 2.

The foregoing quotation is this court's only description of theallegations set forth in the defendant's post-conviction petition inWilliams. Nowhere in that quotation does this court state that "thedefendant alleged that he relied upon" (slip op. at 7) his attorney'swhispered comments. Nor, for that matter, does this court makethat statement anywhere else in the Williams opinion. The simplefact is that, contrary to the majority's assertions in the case at bar,the defendant in Williams did not allege that he "relied upon" thewhispered comments that were made by his attorney after sentencehad been pronounced. The reason this allegation was not made isreadily understood when one considers the nature of theconstitutional claim at issue.

The defendant in Williams alleged that, prior to entering hisplea, his attorney made certain representations regarding the lengthof sentence he might receive if he were to plead guilty. Based onthese representations, which were inaccurate, the defendantalleged that he was induced to plead guilty. Accordingly, theconstitutional claim raised by the defendant in Williams was thathis decision to plead guilty was involuntary, and thus violated dueprocess, because it was based upon inaccurate information givento him by his attorney. The defendant further stated in his post-conviction petition that his attorney made whispered comments tohim after sentence was pronounced. But the events that occurredafter defendant entered his plea and after he was sentencedlogically had no bearing on his claim that his guilty plea wasinvoluntary and therefore played no part in this court's decision.

There was only one constitutional claim raised in Williamsthat bore any relation to attorney comments, whispered orotherwise.⁽²⁾ That claim was the defendant's allegation that he wasinduced to plead guilty by his attorney's misrepresentations. Ofnecessity, therefore, when the majority states that the defendant inWilliams "relied upon" his attorney's whispered comments(although this reliance is mentioned nowhere in the opinion) themajority must be saying that the whispered comments had somerelevance to the defendant's claim that his guilty plea wasinvoluntary. But this position is untenable. How could thedefendant in Williams have "relied upon" the whispered commentsin deciding whether to plead guilty, when those comments cameafter the defendant had entered his plea and after the court hadpronounced sentence? The obvious answer is that the defendantcould not and did not. The majority's statement that the defendantin Williams "relied upon" his attorney's whispered comments isfalse. Consequently, the majority's attempt to distinguish Williamsfails.

As noted, this court in Williams rejected the State's argumentthat the defendant's post-conviction petition should be dismissedbecause it was not supported by a second, evidentiary affidavit.This court held:

"The State's only contention is that the petition isinsufficient to entitle petitioner to a hearing in that it wasnot accompanied by supporting affidavits. But the onlyaffidavit that petitioner could possibly have furnished,other than his own sworn statement, would have been thatof his attorney who allegedly made the misrepresentationto him. The difficulty or impossibility of obtaining suchan affidavit is self-apparent. In People v. Wegner, 40 Ill.2d 28, where similar allegations of misrepresentations ofcounsel as to sentence were made, we held that dismissalof the petition without a hearing was improper; thatdefendant was entitled to an evidentiary hearing eventhough the State had filed a counteraffidavit ofdefendant's attorney in which he denied making thestatement attributed to him. It would certainly follow thatif a defendant is entitled to a hearing despite acounteraffidavit of his attorney denying the allegations ofthe petition then a defendant should not be denied ahearing merely because he did not obtain a supportingaffidavit from the attorney who represented him at thetime of his plea.

Under such circumstances, to so strictly construe theAct as requested by the State would defeat its verypurpose by denying petitioner a hearing on the factualissue raised by the pleadings. However, as stated inPeople v. Reeves, 412 Ill. 555, we do not intend hereby tolessen the duty of petitioners under the Act to make asubstantial showing of a violation of constitutional rights,for the allegations of mere conclusions to that effect underoath will not suffice. We do find that in this case thesworn statements of petitioner warrant a fair inference ofa violation of constitutional rights which are not negatedby the State nor by the record, and that an evidentiaryhearing is required to determine the truth or falsity ofpetitioner's allegations." Williams, 47 Ill. 2d at 4-5.

Notably, this court's holding in Williams makes no mentionof the defense attorney's whispered comments. Again, this is notsurprising. Because the whispered comments came after defendanthad entered his plea and been sentenced they had no bearing on theconstitutional issue presented, i.e., whether the defendant's pleawas involuntary because it was induced by misrepresentationsmade by his attorney.

Williams is controlling on the issue of whether, for purposesof surviving summary dismissal, the sworn statement submitted bydefendant in the present case is sufficient to support the claimpresented in his post-conviction petition. Defendant alleges thathis counsel told him he would file an appeal but that counsel failedto do so. In support of this claim, "the only affidavit that petitionercould possibly have furnished, other than his own swornstatement, would have been that of his attorney who allegedlymade the misrepresentation to him. The difficulty or impossibilityof obtaining such an affidavit is self-apparent." Williams, 47 Ill. 2dat 4. Accordingly, the majority in the case at bar errs when it holdsthat defendant's post-conviction petition must be summarilydismissed because defendant failed to attach satisfactory affidavits.

My colleagues in the majority may be concerned that, byallowing defendant's sworn affidavit to suffice under the facts ofthis case, the standard for obtaining post-conviction relief may, insome way, be lessened. But as Williams makes clear, defendant'sburden is not diminished. To obtain post-conviction relief,defendant must still establish a substantial violation of aconstitutional right. Moreover, any concern regarding the lesseningof post-conviction standards is, in fact, much less pressing in theinstant case than it was in Williams. The issue presented inWilliams was whether the defendant was entitled to an evidentiaryhearing. But the issue in the case at bar is simply whetherdefendant's petition survives summary dismissal at the first stageof post-conviction review. In practical terms, the questionpresented in this case is whether defendant, who filed his post-conviction petition pro se, should be permitted to consult with anattorney regarding his constitutional claim and whether he shouldbe given the opportunity to have counsel draft his claim into anappropriate legal form. Under Williams, the lack of a second,evidentiary affidavit is not a bar to defendant being afforded thatopportunity.

The majority has inaccurately stated the facts of Williams.Those facts, with respect to the affidavit issue, areindistinguishable from the facts in the present case. Williams hasbeen the law of this state for over 30 years. The majority hasoffered no reason to depart from that settled holding. I thereforedissent.

JUSTICES FREEMAN and KILBRIDE join in this dissent.

Dissent Upon Denial of Rehearing

JUSTICE McMORROW, dissenting:

I dissent from the court's denial of rehearing because themajority opinion in this case is in conflict with People v. Boclair,Nos. 89388, 89471, 89534 cons. (August 29, 2002), and noexplanation or justification has been offered by the majority for thediscrepancy between the two cases. I also dissent because, as setforth in detail below, the majority opinion is unsupported by legalauthority and is beset with fundamental analytical flaws.

I

In Boclair, this court was asked to decide whether a post-conviction petition which has not been filed within the timelimitations set forth in section 122-1 of the Post-ConvictionHearing Act (Act) (725 ILCS 5/122-1 (West 2000)) and which hasfailed to allege facts which show that the delay in filing was notdue to the petitioner's "culpable negligence," may be summarilydismissed as "frivolous or *** patently without merit" undersection 122-2.1(a)(2) of the Act (725 ILCS 5/122-2.1(a)(2) (West2000)). This court concluded that such a petition could not besummarily dismissed. In so holding, we reasoned that the circuitcourt could not consider the timeliness of the post-convictionpetition at the summary dismissal stage of the proceedings becausethe time limitations were neither included nor mentioned in thesection of the Act which authorizes summary dismissals. Weexplained:

"Section 122-2.1(a)(2) requires the circuit court todetermine within 90 days of the filing of a post-convictionpetition whether the petition is 'frivolous or is patentlywithout merit.' 725 ILCS 5/122-2.1(a)(2) (West 2000).Importantly, we note that this section is silent regardingtimeliness. Rather, timeliness is addressed elsewhere, insection 122-1(c), instructing defendants as to the timeperiods for filing petitions. If this court can ascertainlegislative intent from the plain language of the statuteitself, that intent must prevail. Barnett v. Zion ParkDistrict, 171 Ill. 2d 378 (1996). We will not depart fromthe plain language of the statute by reading into itexceptions, limitations, or conditions that conflict with theexpress legislative intent. Barnett, 171 Ill. 2d at 389.

Under a plain reading of section 122-2.1(a)(2), thecircuit court may dismiss a post-conviction petition at theinitial stage only if the petition is deemed to be 'frivolousor patently without merit,' not if it is untimely filed. If thelegislature intended for a trial judge to sua sponte dismissa petition as being untimely, it would have so provided insection 122-2.1(a)(2) of the Act. Instead, the legislatureprovided in section 122-5 that the State may file a motionto dismiss. [Citation.] By addressing timeliness andfrivolousness in separate provisions of the Act, thelegislature plainly intended to draw a distinction betweenthese two flaws of post-conviction petitions." Boclair, slipop. at 6-7.

After reaching the above conclusions, we went on todetermine that the phrase "frivolous or *** patently without merit"refers only to the substance of the claim alleged in the petition, notany procedural requirements or limitations imposed by the Act.We noted:

"To accept the argument that the circuit court has theauthority to dismiss [an untimely] petition pursuant tosection 122-2.1(a)(2) of the Act we would have to hold,contrary to the language of the Act, that the phrase'frivolous or *** patently without merit' encompassesuntimely petitions. We will not ignore the Act's languageand adopt this interpretation. If a petition is untimely thatdoes not necessarily mean that the petition lacks merit."Boclair, slip op. at 7.

We also explained that it would be improper for a circuit courtto consider the timeliness of a post-conviction petition at thesummary dismissal stage because such an inquiry might requirethe court to determine whether the petitioner had alleged factsshowing a lack of "culpable negligence" which would excuse thetardy filing. See 725 ILCS 5/122-1(c) (West 2000). Making adetermination as to whether a petitioner lacked culpablenegligence, we observed, would require the circuit court to domore than examine whether the petition alleged a violation of aconstitutional right. We concluded that this would be improper:

"Moreover, when a circuit court determines whether adefendant is culpably negligent in filing his petition late,the circuit court makes an assessment of the defendant'scredibility. See McCain, 312 Ill. App. 3d at 531. At thisinitial stage of the proceedings, however, the court shouldonly determine whether the petition alleges constitutionaldeprivations. The process at the summary review stagemeasures a petition's substantive virtue rather than itsprocedural compliance. See Johnson, 312 Ill. App. 3d at534. In determining an issue of credibility, the circuitcourt necessarily exceeds the boundary set by section122-2.1(a)(1)." (Emphasis added.) Boclair, slip op. at 8.

Finally, we noted that it was inappropriate as a matter ofpolicy for the circuit court to consider the timeliness of a post-conviction petition at the summary dismissal stage because to domight result in the loss of a meritorious claim of actual innocence.As we explained:

"Claims of actual innocence may be raised in a mannerother than in a post-conviction petition, including in asection 2-1401 motion. 735 ILCS 5/2-1401 (West 2000).Nonetheless, to allow the circuit court to dismisssummarily post-conviction petitions for failure to presentevidence of actual innocence in a timely manner couldlead to a miscarriage of justice. Although our criminaljustice system needs finality in criminal litigation andjudgments, it should not come at the expense of justiceand fairness." Boclair, slip op. at 8.

For the foregoing reasons, we concluded in Boclair thatmatters of timeliness must "be left for the State to assert during thesecond stage of the post-conviction proceedings." Boclair, slip op.at 8. During the initial, summary dismissal stage of post-conviction proceedings, Boclair holds, a circuit court may notconsider whether a post-conviction petition has satisfied theprocedural requirement of timeliness.

II

In the case at bar, the majority holds that the summarydismissal of defendant's pro se post-conviction petition wasproper because defendant failed to comply with the affidavitrequirement set forth in section 122-2 of the Act (725 ILCS5/122-2 (West 2000)). That section states, in pertinent part, that"[t]he petition shall have attached thereto affidavits, records, orother evidence supporting its allegations or shall state why thesame are not attached." 725 ILCS 5/122-2 (West 2000).Defendant's petition does contain an affidavit which attests to thetruthfulness of the claim presented in his petition which is at issuehere, i.e., that his court-appointed attorney failed to comply withhis request to file an appeal. However, according to the majority,that affidavit serves only to verify the allegations in the petition.As such, the majority reasons, defendant's affidavit is sufficient tosatisfy section 122-1(b) of the Act (725 ILCS 5/122-1(b) (West2000) (post-conviction petition must be verified by affidavit)), butis insufficient to satisfy the requirements of section 122-2. Slip op.at 6.

To satisfy the affidavit requirement of section 122-2, themajority holds, defendant should have attached at least oneadditional affidavit in support of his post-conviction claim. Thissecond affidavit is necessary, the majority reasons, to show "thatthe verified allegations are capable of objective or independentcorroboration." Slip op. at 6. Presumably, therefore, the additionalaffidavit must come from someone other than defendant. Themajority further holds that, in the absence of a second affidavit,defendant was required to "at least explain why such [objective orindependent] evidence is unobtainable." Slip op. at 7. In themajority's view, defendant's failure to comply with this latter"pleading requirement," by itself, warrants summary dismissal ofhis post-conviction petition. Slip op. at 5, 7. The majorityemphasizes that it is not deciding in this case whether defendant'spetition alleges a constitutional deprivation. See slip op. at 7(distinguishing People v. Edwards, 197 Ill. 2d 239 (2001)). Rather,the majority's holding rests solely on the affidavit requirement ofsection 122-2.

III

The majority opinion in this case conflicts with Boclair atevery significant point in its analysis. For example, the majorityopinion at bar states:

"Contrary to the clear mandate of section 122-2 of theAct, defendant's petition was unsupported by 'affidavits,records, or other evidence' and offered no explanation forthe absence of such documentation. This fact alonejustifies the summary dismissal of defendant's petition."(Emphasis added.) Slip op. at 5.

The affidavit requirement that the majority finds dispositivein this case is found in section 122-2 of the Act, not section122-2.1, the section of the Act which authorizes summarydismissal. Pursuant to Boclair, a circuit court may not look to anysection of the Act other than section 122-2.1 to determine whethera post-conviction petition is subject to summary dismissal. SeeBoclair, slip op. at 6.

In addition, Boclair holds that the only inquiry the circuitcourt may make at the summary dismissal stage is whether thepost-conviction petition "alleges constitutional deprivations."Boclair, slip op. at 8. In other words, under Boclair, the circuitcourt is limited at the summary dismissal stage to asking whetherthe petition states the " 'gist of a constitutional claim.' " Boclair,slip op. at 6, 8, quoting People v. Gaultney, 174 Ill. 2d 410, 418(1996). According to Boclair, matters of "procedural compliance"(Boclair, slip op. at 8) may not be considered in the initial stage ofpost-conviction review.

In contrast, the majority opinion in the case at bar does notconsider whether defendant's petition successfully alleges aconstitutional deprivation by stating the gist of a constitutionalclaim. Instead, the majority concerns itself solely with whetherdefendant complied with the affidavit requirement of section122-2. In contrast to Boclair, the majority in this case holds thatthe circuit court should consider whether a pro se defendant hascomplied with the Act's procedural requirements at the initialstage of post-conviction review. The majority holds that a pro sedefendant's failure to explain the absence of a second affidavit issufficient reason, standing alone, to summarily dismiss a post-conviction petition (slip op. at 5, 7), even though the failure toprovide that explanation "does not necessarily mean that thepetition lacks merit" (Boclair, slip op. at 7).

The majority opinion in the case at bar also conflicts with thepolicy concerns expressed in Boclair. As noted, the majority inthis case holds that a pro se post-conviction petition should besummarily dismissed if it fails to comply with one of the pleadingrequirements set forth in section 122-2 of the Act. Section 122-2provides, in full:

"The petition shall identify the proceeding in which thepetitioner was convicted, give the date of the rendition ofthe final judgment complained of, and clearly set forth therespects in which petitioner's constitutional rights wereviolated. The petition shall have attached theretoaffidavits, records, or other evidence supporting itsallegations or shall state why the same are not attached.The petition shall identify any previous proceedings thatthe petitioner may have taken to secure relief from hisconviction. Argument and citations and discussion ofauthorities shall be omitted from the petition." 725 ILCS5/122-2 (West 2000).

According to the majority, defendant in this case failed tosatisfy section 122-2's requirement that he "at least explain" whya second affidavit was not attached to his petition. Slip op. at 7.Therefore, the majority holds, his petition was properly dismissedat the summary review stage. Slip op. at 7. Notably, in reachingthis conclusion, the majority chooses not to provide defendantwith the opportunity to amend his post-conviction petition with anexplanation for why an additional affidavit is unavailable. Ourcase law would permit such an amendment. See People v. Watson,187 Ill. 2d 448 (1999). Nevertheless, the majority holds thatdefendant's petition should be finally dismissed.

The majority's decision not to permit any amendment ofdefendant's post-conviction petition is of considerable importance.Under this holding, it is possible that a pro se defendant who hasa meritorious constitutional claim, including a claim of actualinnocence, may never have that claim reviewed by the courtssolely because of a technical pleading defect that is easily subjectto correction through amendment. The majority recognizes that itsholding "will, in some cases, place an unreasonable burden uponpost-conviction petitioners." Slip op. at 7. However, the majorityfeels constrained by the language of the Act to reach this result.See slip op. at 7 ("[n]othing in the Act" authorizes the circuit courtto depart from section 122-2's pleading requirements at thesummary dismissal stage).

Boclair reaches a contrary result. In Boclair, we held that itwould be a "miscarriage of justice" for a meritorious claim ofactual innocence to evade judicial review because of a proceduraldeficiency in the post-conviction petition. According to Boclair,allowing a claim of actual innocence to be lost because of aprocedural deficiency would be contrary to principles of "justiceand fairness." Boclair, slip op. at 8.

In sum: