                                                                          Digitally signed by
                                                                          Reporter of
                                                                          Decisions
                                                                          Reason: I attest to
                       Illinois Official Reports                          the accuracy and
                                                                          integrity of this
                                                                          document
                              Appellate Court                             Date: 2018.12.31
                                                                          12:57:25 -06'00'




                  People v. Niffen, 2018 IL App (4th) 150881



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOSEPH L. NIFFEN, Defendant-Appellant.



District & No.    Fourth District
                  Docket Nos. 4-15-0881, 4-15-0882 cons.



Filed             October 31, 2018



Decision Under    Appeal from the Circuit Court of Adams County, Nos. 11-CF-648,
Review            12-CF-175; the Hon. Robert K. Adrian, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        James E. Chadd, Jacqueline L. Bullard, and Zachary A. Rosen, of
Appeal            State Appellate Defender’s Office, of Springfield, for appellant.

                  Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino, David J.
                  Robinson, and Kathy Shepard, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE CAVANAGH delivered the judgment of the court, with
                  opinion.
                  Justices DeArmond and Turner concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Defendant, Joseph L. Niffen, is serving a total of 39½ years’ imprisonment for unlawful
     possession of a methamphetamine precursor (720 ILCS 646/20(a)(2)(E) (West 2012)) and
     anhydrous ammonia (720 ILCS 646/25(a)(1) (West 2010)). He appeals the summary
     dismissal of his pro se petition for postconviction relief (see 725 ILCS 5/122-2.1(a) (West
     2014)). In addition, in his brief, he challenges the imposition of fines by the Adams County
     circuit clerk and the clerk’s retention of $1901 of his bond money to cover those purported
     fines. We find arguable merit in one of the claims of his petition, but we lack subject-matter
     jurisdiction to review the clerk-imposed fines or the retention of the bond money. Therefore,
     we merely reverse the summary dismissal and remand this case for further postconviction
     proceedings.

¶2                                       I. BACKGROUND
¶3        On July 19, 2012, defendant entered a negotiated guilty plea to one count of unlawful
     possession of a methamphetamine precursor (720 ILCS 646/20(a)(2)(E) (West 2012)) in
     Adams County case No. 12-CF-175 and one count of unlawful possession of anhydrous
     ammonia (720 ILCS 646/25(a)(1) (West 2010)) in Adams County case No. 11-CF-648. The
     trial court sentenced him to consecutive terms of 15 years’ imprisonment for the
     methamphetamine precursor and 24½ years’ imprisonment for the anhydrous ammonia.
¶4        The written sentencing order also included the following: (1) “Court Costs, VCVA
     [(Violent Crime Victims Assistance)], and Penalties,” with no listed monetary
     denominations; (2) a “Crime Lab fee of $100.00” in both cases; (3) an “Assessment (per
     Cannabis/Controlled Substances Act) of $3000/$1000”; (4) $100 for “Meth”; (5) $5 for
     “Spinal Cord”; and (6) $1325 restitution.
¶5        Also, in “Payment Status Information” sheets in both cases, the circuit clerk imposed the
     following assessments: $50 for “Court,” $100 for “Violent Crime,” $10 for “Medical Costs,”
     $10 for “Lump Sum Surcharge,” $15 for “Child Advocacy Fee,” and $5 for “State Police
     Ops.”
¶6        Defendant never filed a motion to withdraw his guilty pleas. Nor did he take a direct
     appeal.
¶7        On July 13, 2015, defendant filed a pro se petition for postconviction relief. One of his
     claims was that on approximately July 26, 2012, he wrote defense counsel a letter requesting
     that he file a motion to withdraw his guilty pleas. (As we already have noted, no such motion
     ever was filed.) In a “Sworn Affidavit,” which was attached to his petition, defendant stated:
                  “1. That while housed at the Graham Correctional Center I sent a letter to my
             retain [sic] counsel requesting that he fil[e] a [m]otion to withdraw my plea. That in
             the body of my letter I complained about the length of a sentence I had received[,]
             telling my [a]ttorney that I would have one foot in the graveyard by the time I was
             released from prison. That also I told my [a]ttorney that the factual basis information
             was inaccurate and[,] based upon my prior guilty pleas[,] I thought it would be
             grounds for withdrawing my plea.”
¶8        On October 2, 2015, by written order, the trial court summarily dismissed the
     postconviction petition. The court reasoned: “The *** issue concerning counsel’s failure to

                                                -2-
       file a timely motion to withdraw the guilty plea is without merit because [defendant] could
       have filed the motion pro se and been appointed counsel. Further, the motion[,] even if
       filed[,] would have been without merit.”

¶9                                             II. ANALYSIS
¶ 10                        A. The Three Stages of a Postconviction Proceeding
¶ 11       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 to 122-7 (West 2014))
       provides a remedy for defendants who have suffered a substantial violation of their
       constitutional rights at trial. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). In a
       noncapital case, the Act contemplates that a postconviction proceeding will advance through
       as many as three stages to determine whether such a constitutional violation occurred. Id. at
       244.
¶ 12       At the first stage, the trial court independently reviews the postconviction petition and
       decides, within 90 days after its filing, whether “the petition is frivolous or is patently
       without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). If the court decides that the petition
       is frivolous or patently without merit—or, in other words, that it lacks any “arguable basis
       either in law or in fact” (People v. Hodges, 234 Ill. 2d 1, 17 (2009))—the court will
       summarily dismiss the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2014).
       That is what the court did in the present case.
¶ 13       If, within 90 days after the filing of the petition, the trial court does not summarily
       dismiss it, the petition will advance to the second stage. Defense counsel will be appointed, if
       necessary (see 725 ILCS 5/122-4 (West 2014)), and the State will move to dismiss the
       petition, or else the State will answer it (see id. § 122-5). The question at the second stage is
       “whether the petition and any accompanying documentation make a substantial showing of a
       constitutional violation.” Edwards, 197 Ill. 2d at 246. In answering that question, the trial
       court takes as true “all well-pleaded facts that are not positively rebutted by the trial record.”
       People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If no showing of a substantial constitutional
       violation is made, the court dismisses the petition. Edwards, 197 Ill. 2d at 246.
¶ 14       Alternatively, if the petition and its attached documentation make a substantial showing
       of a constitutional violation, the petition will advance to the third stage for an evidentiary
       hearing. Id. At the third stage, the petition and its accompanying documentation no longer are
       taken to be true. Instead, the court resolves any questions of fact and determines credibility,
       as in a bench trial. Pendleton, 223 Ill. 2d at 473. The defendant bears the evidentiary burden
       of making a substantial showing of a constitutional violation. Id.

¶ 15                          B. The First-Stage Issue of Whether Defendant’s
                           Pro Se Petition Is Frivolous or Patently Without Merit
¶ 16        In his petition for postconviction relief, defendant claimed that defense counsel rendered
       ineffective assistance by ignoring a letter from him in which he requested defense counsel to
       file a motion to withdraw his guilty pleas. For two reasons, the trial court concluded that this
       claim lacked any potential merit. First, defendant “could have filed the motion pro se and
       been appointed counsel.” Second, “the motion[,] even if filed[,] would have been without
       merit.” The State agrees with defendant, and so do we, that those two reasons are inconsistent
       with Edwards, 197 Ill. 2d 239.


                                                   -3-
¶ 17        In Edwards, the defendant alleged in his pro se postconviction petition that, soon after
       pleading guilty, he requested defense counsel to file an appeal and that defense counsel failed
       to do so. Id. at 242. Because it would have been impossible to pursue an appeal without first
       filing a motion to withdraw the guilty plea (see Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992)), the
       petition was construed as additionally criticizing defense counsel for failing to file a motion
       to withdraw the guilty plea (Edwards, 197 Ill. 2d at 242). The trial court summarily
       dismissed the petition because it stated no grounds for withdrawing the guilty plea and,
       therefore, failed to show that the defendant suffered any prejudice from defense counsel’s
       allegedly deficient performance. Id. The supreme court overturned the summary dismissal
       because no attorney had ever reviewed the plea proceedings for error and it would have been
       unreasonable to require the pro se defendant to perform such a review and provide legal
       grounds for withdrawing his guilty plea. Id. at 257. Until an attorney was appointed, who
       would “be able to consult with [the] defendant regarding his claim and explore in more detail
       the factual and legal ramifications of [the] claim,” it was premature “to conclude that [the]
       defendant’s claim of ineffective assistance of counsel [was] so completely lacking in
       substance that it [was] frivolous or patently without merit.” Id.
¶ 18        If, in Edwards, a defendant who accused his defense counsel of ignoring his request to
       file a motion to withdraw his guilty plea did not have to provide, at the first stage of the
       postconviction proceeding, any grounds for withdrawing his guilty plea, it must follow that
       the same defendant, earlier, in the original proceeding, did not have to file a pro se motion to
       withdraw his guilty plea, since such a motion would have had to provide grounds for
       withdrawing his guilty plea (see Ill. S. Ct. R. 604(d) (eff. Aug. 1, 1992)). Therefore, contrary
       to the trial court’s rationale in the present case, the fact that defendant never filed a pro se
       motion to withdraw his guilty pleas did not invalidate his claim that defense counsel rendered
       ineffective assistance by disregarding his request to file a motion to withdraw his guilty
       pleas.
¶ 19        It would have been, after all, understandable if defendant had relied on defense counsel to
       comply with his request and had refrained from filing such a motion himself, since we
       prohibit defendants from filing pro se motions while they are represented by counsel, except
       posttrial motions alleging ineffective assistance, and we instruct trial courts to reject such
       attempts at “hybrid representation.” People v. Stevenson, 2011 IL App (1st) 093413, ¶ 30.
       (Presumably, defendant did not intend to ask his defense counsel to argue his own ineffective
       assistance.) By accepting the trial court’s rationale, we would penalize defendant for
       complying with our own prohibition.
¶ 20        Although, as the State concedes, the trial court’s reasons for rejecting this claim at the
       first stage were erroneous, the State reminds us that we should review the summary dismissal
       de novo, without any deference to the court’s reasoning, and that if we can find in the record
       any valid basis for the summary dismissal, we should affirm it. See Edwards, 197 Ill. 2d at
       247; People v. Relwani, 2018 IL App (3d) 170201, ¶ 20, appeal allowed, No. 123385 (May
       30, 2018). The State argues the petition deserved to be summarily dismissed for
       noncompliance with section 122-2 of the Act (725 ILCS 5/122-2 (West 2016)). Section
       122-2 required that the petition “have attached thereto affidavits, records, or other evidence
       supporting its allegations or *** state why the same [were] not attached.” Id. Although
       defendant attached to his pro se petition an “affidavit,” in which he averred that he had sent
       defense counsel a letter requesting that he file a motion to withdraw his guilty pleas, and


                                                  -4-
       although the lack of a notarization on the “affidavit” did not make the petition frivolous or
       patently without merit (see People v. Allen, 2015 IL 113135, ¶ 34), the State disputes that that
       the “affidavit” satisfied section 122-2. The State argues that to satisfy section 122-2,
       defendant additionally had to attach to his petition a copy of the letter he claimed to have sent
       to defense counsel or that, alternatively, he had to explain why a copy of the letter was not
       attached. In support of its argument, the State cites People v. Delton, 227 Ill. 2d 247 (2008),
       and People v. Anderson, 287 Ill. App. 3d 1023 (1997). Actually, neither of those cases
       supports the State’s argument.
¶ 21        In Delton, the defendant was serving a sentence of imprisonment for the aggravated
       battery of some police officers. Delton, 227 Ill. 2d at 249. He claimed, in his pro se
       postconviction petition, that his trial counsel had rendered ineffective assistance by failing to
       investigate his allegation that the police officers had been harassing him for a long time,
       thereby causing him, during the traffic stop in question, to reasonably believe he needed to
       defend himself from physical aggression by them. Id. at 251. The defendant attached to his
       petition excerpts from the transcript of his trial—and nothing else. Id. at 255-57. He did not
       attach his own affidavit. Id. at 257. The excerpts from the transcript, standing alone, had no
       tendency to corroborate the allegation, in his pro se petition, that he told trial counsel before
       the trial that the police officers had been harassing him. Id. The problem in Delton was that
       the trial transcript was the only thing attached to the defendant’s petition and the transcript,
       by its terms, corroborated nothing. The supreme court never suggested that an affidavit by
       the defendant, if he had provided one, would have been insufficient as corroboration.
¶ 22        The defendant in Delton argued to the supreme court that it was readily inferable why his
       petition lacked corroborative documentation: a subpoena was necessary to obtain police
       disciplinary records. Id. While agreeing that a subpoena was necessary to obtain such
       records, the supreme court pointed out that this was no excuse for the defendant because he
       himself was the one who had made the complaint against the police officers. Id. at 257-58.
       “Because [the defendant] filed the charges, he could easily have supported his petition with a
       copy of the complaint he filed against [the police officers] or with the specifics about the
       filing of that complaint if, in fact, he had filed one.” (Emphasis added.) Id. at 258. Thus,
       according to the supreme court, “the specifics about the filing of that complaint”—meaning,
       apparently, an affidavit by the defendant setting forth the specifics—would have served just
       as well as “a copy of the complaint.” Id.
¶ 23        In Anderson, the defendant alleged in his pro se postconviction petition that about three
       weeks after pleading guilty, he sent his attorney a letter stating he wanted to withdraw his
       guilty plea and that counsel never replied. Anderson, 287 Ill. App. 3d at 1026. “No affidavits
       or supporting documents were attached to the petition.” Id. We do not see anywhere in
       Anderson where the First District stated that the corroborative documentation had to be a
       copy of the letter that the defendant allegedly had sent to defense counsel. Rather, the First
       District stated that the petition “lack[ed] any supporting documents, such as the alleged letter
       written by [the] defendant.” (Emphases added.) Id. at 1032. By observing that “the instant
       defendant did not attach any affidavits or any supporting documents to his petition,” the First
       District seemed to imply that an affidavit by the defendant would have sufficed. (Emphasis
       added.) Id.
¶ 24        In the present case, not only in his petition but also in his affidavit, defendant describes
       the substance of his letter to defense counsel, and he states he sent the letter to defense

                                                   -5-
       counsel and that defense counsel never responded. The State objects that the petition and the
       affidavit lack an indispensable supporting document: a copy of the letter. But the purpose of
       supporting documentation pursuant to section 122-2 is to “show[ ] that the verified
       allegations [of the petition] are capable of objective or independent corroboration.” People v.
       Collins, 202 Ill. 2d 59, 67 (2002). A purported copy of the letter would not have served that
       purpose. It would have been just another writing by defendant, like his petition and his
       affidavit. A purported copy of the letter would not have been “objective or independent
       corroboration” that he actually sent the letter to defense counsel and that defense counsel
       received it. Id. Only defense counsel could corroborate that he received the letter. See People
       v. Rogers, 372 Ill. App. 3d 859, 867 (2007) (“Here, it can easily be inferred that [the]
       defendant could not attach her correspondence to the petition because any correspondence
       would have been in the possession of her attorney and thus not readily available to [the]
       defendant.”). Therefore, we are unconvinced by the State’s argument that the corroboration
       requirement in section 122-2 justified the first-stage rejection of defendant’s claim that
       defense counsel rendered ineffective assistance by disregarding his request to file a motion to
       withdraw his guilty pleas.
¶ 25       Because the Act does not permit the partial summary dismissal of a postconviction
       petition, we need not address defendant’s additional claim that defense counsel rendered
       ineffective assistance by representing him while under a conflict of interest. See People v.
       Romero, 2015 IL App (1st) 140205, ¶ 27 (“If a single claim in a multiple-claim
       postconviction petition survives the summary dismissal stage ***, then the entire petition
       must be docketed for second-stage proceedings[,] regardless of the merits of the remaining
       claims in the petition.”); People v. White, 2014 IL App (1st) 130007, ¶ 33 (“We have no need
       to address any of the other claims in the petition because partial summary dismissals are not
       permitted during the first stage of a postconviction proceeding.”).

¶ 26                              C. Clerk-Imposed Fines and Bond Money
¶ 27       Defendant complains of fines that the circuit clerk, as distinct from the trial court,
       imposed upon him in the “Payment Status Information.” Although a circuit clerk can have
       statutory authority to impose fees, a circuit clerk never has authority to impose fines because
       a circuit clerk is not a judge and imposing fines as part of a sentence is exclusively a judicial
       act. People v. Smith, 2014 IL App (4th) 121118, ¶ 18.
¶ 28       The trouble is, the supreme court recently held as follows:
               “The appellate court is constitutionally vested with jurisdiction to review final
               judgments entered by circuit courts. The recording of a fine is a clerical, ministerial
               function and is not a judgment—void or otherwise. Therefore, the improper recording
               of a fine is not subject to direct review by the appellate court.” People v. Vara, 2018
               IL 121823, ¶ 23.
       In short, the “Payment Status Information” is not part of the trial court’s judgment.
       Therefore, we lack jurisdiction to review it. See id. And, in fact, appellate defense counsel
       candidly admits as much in a supplemental brief, which he filed after the issuance of Vara
       (“If Vara is not modified or changed upon rehearing, then the State’s position that this court
       lacks jurisdiction to vacate fines that were improperly imposed by the circuit court clerk
       would be correct.”).


                                                   -6-
¶ 29       Even so, defendant argues, “a sentencing court’s improper delegation of authority to the
       clerk to [impose a fine]—purporting to give the clerk authority he or she does not have—is
       an issue that may still be challenged.” In this context, defendant refers to the trial court’s
       imposing upon him a violent crime victims assessment in an unspecified amount and leaving
       it to the circuit clerk to specify the amount. But this issue has nothing to do with the
       judgment that defendant appeals. He appeals the summary dismissal of his postconviction
       petition, which contains no mention of the violent crime victims assessment. “A notice of
       appeal confers jurisdiction on the reviewing court to consider only the judgments or pertinent
       parts specified in the notice.” People v. Patrick, 2011 IL 111666, ¶ 21; see also People v.
       Smith, 228 Ill. 2d 95, 104 (2008). Because the violent crime victims assessment and the
       retention of defendant’s bond money are extraneous to the summary dismissal order, which
       defendant specifies in his notice of appeal, we lack subject-matter jurisdiction to consider
       those issues. See Patrick, 2011 IL 111666, ¶ 21; Smith, 228 Ill. 2d at 104.

¶ 30                                      III. CONCLUSION
¶ 31       For the foregoing reasons, we reverse the trial court’s judgment and remand this case for
       further proceedings.

¶ 32      Reversed and remanded.




                                                  -7-
