Can letters from family members be supporting affidavits?
Yes, but here Defendant’s supporting affidavits were two letters from her mother and brother held were together with tape.
Defendant’s postconviction petition was properly dismissed at the first stage. Defendant was alleging ineffective assistance of counsel because her trial attorney failed to transmit a 20 year offer and failed to challenge her coerced confession.
Defendant was convicted by a jury of aggravated vehicular hijacking, armed robbery, and first-degree murder. She was sentenced to a total of 43 years’ imprisonment in the Illinois Department of Corrections.
Her Supporting Affidavits
She submitted three unnotarized affidavits from herself and two letters from her mother and brother. The letters were unquestionably not affidavits; they lack attestation, identifiers in the statement, factual specificity, and notarization.
So can letters from family members be supporting affidavits? Yes, but these letters are prime examples of why affidavits are required to be notarized.
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.
No Independent Corroboration
Further, these affidavits failed to provide independent corroboration of the facts alleged in her petition.
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.
Summary of the Post-Conviction Hearing Act
The scope of the postconviction act is limited to constitutional matters that have not been, nor could have been, previously adjudicated. 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.
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. 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.
“The court is further foreclosed from engaging in any fact-finding or any review of matters beyond the allegations of the petition.” At this stage, a defendant “need only present a limited amount of detail in the petition” and the “threshold for survival” is “low.” A pro se defendant need only “allege enough facts to make out a claim that is arguably constitutional for purposes of invoking the Act.”
Supporting Affidavits Required
Can letters from family members be supporting affidavits? Yes, but…
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.”
An affidavit is “a declaration, on oath, in writing, and sworn to before some person who has authority under the law to administer oaths.” An affidavit “should consist of factual propositions to which the affiant could testify in an evidentiary hearing.” 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.”
The failure to meet either of the requirements of section 122-2 justifies the petition’s summary dismissal.
If a postconviction petition is unsupported as required by section 122-2, then the court will not consider whether the petition sets forth the gist of a constitutional claim.
Verifying Affidavit is Different
The court 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.”
“[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.”
Our supreme court stated that the purposes of sections 122-1(b) and 122-2 are “wholly distinct.” Specifically, a section 122-1(b) affidavit “like all
pleading verifications, confirms that the allegations are brought truthfully and in good faith. The latter [section 122-2], by contrast, shows that the verified allegations are capable of objective or independent corroboration.”
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.” Accordingly, section 122-1(b) verification affidavits are readily distinguishable from section 122-2 affidavits.
Sometimes Supporting Affidavit Not Available
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.
“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.”
Even if the court had construed the notarization requirement as a technicality, like defendant wanted, the affidavits were still insufficient to support defendant’s petition. The trial transcript excerpts did not provide the requisite factual support for defendant’s postconviction allegations of ineffective assistance of counsel which are at issue in this appeal.
Nor does the petition explain why those documents are absent, which is also required by section 122-2.
The petition did not meet the pleading requirements of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-2 ) and it was proper to dismiss it. The record shows that her allegation of coercion was fully litigated at the trial level. Further, the trial attorney made it clear on the record that Defendant had declined the offer and wanted a trial.
If the content of an affidavit is no more than hearsay, then it is insufficient to support a claim under the Act. Accordingly, the court found that the trial court did not err in summarily dismissing defendant’s postconviction petition.