Background
Michael S. Burgund was convicted at his second jury trial of five counts of predatory criminal sexual assault of a child involving his daughters. The circuit court imposed a mandatory natural-life sentence and ordered restitution. On direct appeal, the appellate court affirmed his convictions and sentence but vacated the restitution order.
Burgund later filed a pro se postconviction petition alleging, among other things, that trial counsel was ineffective for failing to present testimony from Kharissa Guss and Emily Delp to rebut testimony from Burgund’s mother-in-law, Mary Buttry, concerning spiritual counseling and religious beliefs central to the defense. The circuit court summarily dismissed the petition as frivolous and patently without merit. On appeal, Burgund pursued the ineffective-assistance claim involving Guss and Delp, while acknowledging that he had not attached affidavits from either witness.
The Court’s Holding
The appellate court affirmed the first-stage summary dismissal because Burgund failed to comply with section 122-2 of the Post-Conviction Hearing Act. A claim that counsel failed to investigate or present a witness generally must be supported by an affidavit from that witness, other independent corroborating evidence, or a sufficiently particular explanation for why the supporting material could not be obtained. Burgund’s own affidavits describing what Guss and Delp purportedly would have said were not objective or independent corroboration.
The court rejected Burgund’s argument that his incarceration adequately explained the missing affidavits. His petition’s general statements about the difficulties incarceration created—including obtaining notarized affidavits—were offered to explain the petition’s lateness and did not specifically explain why affidavits from Guss and Delp could not be secured. The court also concluded that, even if Burgund’s own descriptions of their proposed testimony were considered, he did not show a reasonable probability of a different trial outcome because Buttry’s credibility and potential bias had already been extensively challenged.
Key Takeaways
- A first-stage postconviction petition alleging that counsel failed to present witnesses ordinarily must include affidavits from those witnesses or other independent corroboration.
- A general assertion that incarceration made obtaining affidavits difficult does not, without a particularized explanation, satisfy section 122-2.
- An appellate court may affirm summary dismissal on any basis supported by the record, even when the circuit court did not expressly rely on the missing affidavits.
Why It Matters
The decision underscores that the low threshold for surviving first-stage postconviction review does not eliminate the Act’s documentation requirement. Petitioners asserting uncalled-witness claims must supply evidence showing what the witnesses would have said or specifically explain why that evidence could not be obtained.
The order was issued under Illinois Supreme Court Rule 23 and is not precedential except in the limited circumstances permitted by Rule 23(e)(1).