                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Nitz, 2011 IL App (2d) 100031




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



District & No.             Second District
                           Docket No. 2-10-0031


Filed                      October 24, 2011


Held                       Where defendant’s postconviction petition was filed with a certification
(Note: This syllabus       pursuant to section 1-109 of the Code of Civil Procedure, but without a
constitutes no part of     properly notarized affidavit as required by section 122-1(b) of the Post-
the opinion of the court   Conviction Hearing Act, and was then summarily dismissed at the second
but has been prepared      stage of the proceedings after counsel was appointed, the summary
by the Reporter of         dismissal was reversed and the cause was remanded for further
Decisions for the          proceedings with the appointment of new counsel, since the trial court
convenience of the         had jurisdiction and defendant’s appointed counsel was ineffective in
reader.)
                           failing to cure the lack of a notarized affidavit.


Decision Under             Appeal from the Circuit Court of Du Page County, No. 05-CF-2101; the
Review                     Hon. John J. Kinsella, Judge, presiding.


Judgment                   Reversed and remanded.
Counsel on                 Thomas A. Lilien and Jack Hildebrand, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                           Assistant State’s Attorney, and Lawrence M. Bauer and Joan M. Kripke,
                           both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                           the People.


Panel                      JUSTICE HUDSON delivered the judgment of the court, with opinion.
                           Justice Schostok concurred in the judgment and opinion.
                           Justice McLaren specially concurred, with opinion.



                                             OPINION

¶1          Defendant, Herman L. Nitz, appeals the trial court’s second-stage dismissal of his
        petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
        2008)). The State argues that the trial court and this court lack jurisdiction because the
        petition was not verified by a notarized affidavit as required by section 122-1(b) of the Act
        (725 ILCS 5/122-1(b) (West 2008)) and our recent decision in People v. Carr, 407 Ill. App.
        3d 513, 516 (2011). We agree that the petition was not verified by affidavit and further
        determine that Nitz’s certification under section 1-109 of the Code of Civil Procedure (735
        ILCS 5/1-109 (West 2008)) could not cure that defect. However, the defect did not deprive
        the trial court or this court of jurisdiction, and postconviction counsel provided unreasonable
        assistance by failing to properly verify the petition at the second stage. Accordingly, we
        reverse and remand for further proceedings with appointment of new counsel.

¶2                                       I. BACKGROUND
¶3          On February 9, 2006, Nitz pleaded guilty to unlawful possession of less than 15 grams
        of cocaine (720 ILCS 570/402(c) (West 2004)) in exchange for an extended-term sentence
        of four years’ incarceration and the dismissal of another charge. No factual basis was given
        for the plea. A previous motion to suppress statements was withdrawn because of the plea.
        Nitz spoke only briefly at the hearing. The court did not inquire about Nitz’s mental health
        and did not admonish him of his appeal rights. No appeal was filed.
¶4          On September 20, 2006, Nitz filed a pro se postconviction petition, which was not
        notarized and did not include a notarized affidavit or a certification under section 1-109. An
        unnotarized memorandum in support of the petition was file-stamped on October 4, 2006,
        and an affidavit was file-stamped on October 5. The affidavit was not notarized, but it did
        mention section 1-109.


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¶5          On November 9, 2006, Nitz filed a second memorandum in support of his postconviction
       petition, along with a document referencing a petition for relief from judgment, and included
       an unnotarized affidavit that invoked section 1-109. On November 29, 2006, Nitz moved to
       withdraw the pending petitions and, on December 14, 2006, the trial court granted the
       motion.
¶6          On April 1, 2008, Nitz filed another pro se postconviction petition, with an unnotarized
       affidavit that cited section 1-109. The trial court appointed counsel, who filed an amended
       petition and a second amended petition, neither of which included an affidavit. However,
       attached to the amended petitions were earlier materials and pleadings from Nitz, including
       an affidavit from Nitz that was not notarized but did reference section 1-109.
¶7          In the second amended petition, Nitz alleged that his trial counsel was ineffective for
       failing to pursue a preplea motion to suppress statements and for allowing Nitz to plead
       guilty when he was not fit to do so. Nitz alleged that he withdrew a request for counsel and
       gave inculpatory statements to police in response to offers of leniency and release. He also
       alleged that, while in custody three months before the plea, he attempted suicide by
       swallowing a razor blade and that he had made another previous suicide attempt. The petition
       incorporated Nitz’s previous petitions, which alleged in part that, at the time of the plea, Nitz
       was under care for schizophrenia and other mental-health issues and was taking a number
       of psychotropic medications, and that counsel did not file a motion to withdraw the plea
       when Nitz asked counsel to do so. In support of the allegations, Nitz provided documents
       from the Department of Corrections showing that he had attempted suicide on both January
       17 and 23, 2006, and that he had a long history of mental illness.
¶8          The State moved to dismiss. The court reviewed the transcripts of the plea and found that
       there was a lack of evidence that a bona fide doubt as to fitness existed. The court stated that
       counsel was not ineffective for failing to move to withdraw the plea, because Nitz did not
       articulate appropriate grounds, and that, had counsel pursued the suppression motion, it
       would not have affected the outcome of the case. Nitz appeals.

¶9                                          II. ANALYSIS
¶ 10        Nitz contends that the trial court erred by dismissing his petition. The State first contends
       that this court lacks jurisdiction because Nitz failed to provide a notarized affidavit under
       section 122-1(b) and Carr.
¶ 11        In Carr, we held that section 122-1(b) of the Act requires a notarized affidavit in order
       for the defendant to be entitled to any relief. Carr, 407 Ill. App. 3d at 516. Section 122-1(b)
       provides that “[t]he 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 2008). “Affidavits filed pursuant to the Act must be
       notarized to be valid.” Carr, 407 Ill. App. 3d at 515; see People v. Niezgoda, 337 Ill. App.
       3d 593, 597 (2003). “A trial court properly dismisses a postconviction petition where the
       petition does not comply with the requirements of the Act.” Carr, 407 Ill. App. 3d at 515
       (citing People v. Delton, 227 Ill. 2d 247, 258 (2008)).
¶ 12        The State argues that the failure to provide a notarized affidavit deprived the trial court,

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       and by extension, this court, of jurisdiction. However, it is now well settled that, absent
       exceptions not applicable here, the legislature may not impose statutory “ ‘conditions
       precedent’ ” to a court’s exercise of jurisdiction. People v. Sharifpour, 402 Ill. App. 3d 100,
       121 (2010). Notably, we did not view the matter as a jurisdictional defect in Carr. Instead,
       we found that the failure to provide a notarized affidavit was an alternate basis for affirming
       the trial court’s dismissal of the petition. Carr, 407 Ill. App. 3d at 515-16.
¶ 13       Here, Nitz’s affidavit was not notarized and, therefore, pursuant to Carr, the affidavit
       was not valid. Accordingly, Nitz argues that his section 1-109 certification sufficed to satisfy
       the notarized-affidavit requirement of section 122-1(b).
¶ 14       Section 1-109 provides in part:
           “Verification by certification. Unless otherwise expressly provided by rule of the
           Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of
           particulars, answer to interrogatories, affidavit, return or proof of service, or other
           document or pleading filed in any court of this State is required or permitted to be
           verified, or made, sworn to or verified under oath, such requirement or permission is
           hereby defined to include a certification of such pleading, affidavit or other document
           under penalty of perjury as provided in this Section.
                Whenever any such pleading, affidavit or other document is so certified, the several
           matters stated shall be stated positively or upon information and belief only, according
           to the fact. The person or persons having knowledge of the matters stated in a pleading,
           affidavit or other document certified in accordance with this Section shall subscribe to
           a certification in substantially the following form: Under penalties as provided by law
           pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that
           the statements set forth in this instrument are true and correct, except as to matters
           therein stated to be on information and belief and as to such matters the undersigned
           certifies as aforesaid that he verily believes the same to be true.
                Any pleading, affidavit or other document certified in accordance with this Section
           may be used in the same manner and with the same force and effect as though subscribed
           and sworn to under oath.” (Emphasis added.) 735 ILCS 5/1-109 (West 2008).
¶ 15       Although we suggested in People v. Rivera, 342 Ill. App. 3d 547, 550-51 (2003), that a
       section 1-109 certification may be sufficient to verify a postconviction petition, we did not
       consider in Rivera that section 1-109 limits its application only to verifications required by
       the Code of Civil Procedure.
¶ 16       Section 1-109, by its terms, applies only to “this Code”–the Code of Civil Procedure.
       Postconviction petitions, however, are governed by the Post-Conviction Hearing Act (725
       ILCS 5/122-1 et seq. (West 2008)), which is part of the Code of Criminal Procedure of 1963
       (725 ILCS 5/100-1 et seq. (West 2008)). As a result, a section 1-109 certification may not
       verify a postconviction petition. Instead, a section 122-1(b) affidavit is required and, as we
       stated in Carr, “[a]ffidavits filed pursuant to the Act must be notarized to be valid.” Carr,
       407 Ill. App. 3d at 515. Accordingly, we find that section 1-109 does not apply and, to the
       extent that Rivera states otherwise, we decline to follow it.
¶ 17       Here, Nitz failed to provide a properly notarized affidavit, and his inclusion of a section

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       1-109 certification could not cure that failure. Nevertheless, Nitz’s petition proceeded to the
       second stage of postconviction proceedings, and he was appointed counsel. Thus, he next
       argues that his postconviction counsel failed to adequately represent him under Illinois
       Supreme Court Rule 651(c) (eff. Dec. 1, 1984) and asks that, instead of affirming based on
       the failure to provide a proper affidavit, we remand for appointment of new counsel. We
       agree.
¶ 18        “There is no constitutional right to counsel in postconviction proceedings.” People v.
       Daniels, 388 Ill. App. 3d 952, 960 (2009). “However, in cases like this one, where the trial
       court does not summarily dismiss the petition, the Act affords indigent defendants a statutory
       right to counsel.” Id. “Counsel must provide ‘reasonable assistance,’ which includes
       compliance with Rule 651(c). [Citation.]” (Internal quotation marks omitted.) Id. Rule 651(c)
       provides that the record on appeal must “contain a showing, which may be made by the
       certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by
       mail or in person to ascertain his contentions of deprivation of constitutional rights, has
       examined the record of the proceedings at the trial, and has made any amendments to the
       petitions filed pro se that are necessary for an adequate presentation of petitioner’s
       contentions.” (Emphasis added.) Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984). Under Rule 651(c),
       postconviction counsel has an obligation to present a defendant’s postconviction claims in
       the appropriate legal form, and the failure to do so constitutes unreasonable assistance. See
       People v. Waldrop, 353 Ill. App. 3d 244, 251 (2004). Further, a defendant is not required to
       make a positive showing that his counsel’s failure to comply with Rule 651(c) caused
       prejudice. People v. Perkins, 367 Ill. App. 3d 895, 905 (2006), rev’d on other grounds, 229
       Ill. 2d 34 (2007).
¶ 19        Here, as previously noted, the notarization requirement is not a matter of jurisdiction. See
       Carr, 407 Ill. App. 3d at 515-16. Thus, even if the court should have dismissed for that
       failure, it still had jurisdiction over the petition and, when it moved the petition to the second
       stage, Nitz’s counsel should have sought to remedy the lack of a notarized affidavit.1 Nitz’s
       counsel failed to make all amendments necessary to ensure that the petition was proper so
       that it could adequately present Nitz’s claims. Thus, counsel provided unreasonable
       assistance, and we remand for appointment of new counsel to amend the petition as
       necessary and provide the proper verifying affidavit.

¶ 20                                     III. CONCLUSION
¶ 21       Nitz’s petition was defective because it was not accompanied by a properly notarized
       affidavit as required by section 122-1(b) of the Act, and his postconviction counsel provided
       unreasonable assistance by failing to ensure that the proper affidavit was provided.
       Accordingly, we reverse and remand for further proceedings with appointment of new
       counsel.



               1
               Indeed, the State conceded at oral argument that, if there was jurisdiction over the petition,
       counsel’s failure to provide the proper affidavit was unreasonable assistance.

                                                    -5-
¶ 22       Reversed and remanded.

¶ 23        JUSTICE McLAREN, specially concurring:
¶ 24        I specially concur because I wish to distance myself from an aspect of the majority’s
       analysis that I believe is unnecessary and inappropriate, based upon the facts in this case. The
       analysis addresses the lack of properly notarized affidavits with petitions filed by defendant
       pro se and his attorney. The lack thereof was not raised below by the State or the trial court
       in any manner. The State moved to dismiss based upon the merits, and the trial court ruled
       on the merits and dismissed the cause at the second stage of the proceeding. The State now
       raises for the first time on appeal People v. Carr and the lack of a properly notarized affidavit
       as a basis for dismissal. The State goes so far as to argue that, because of the lack of a
       notarized affidavit, there was no jurisdiction in the trial court to entertain the cause. The
       majority rightfully determines that jurisdiction is not based upon a notarized affidavit.
¶ 25        Despite the State’s procedural default that, if raised, could have been addressed and
       resolved, the majority then proceeds to address defendant’s response to the State’s defaulted
       claim and determines that a section 1-109 certification does not verify a postconviction
       petition. I submit that the entire issue is not justiciable and need not be addressed in this
       appeal. Once the State moved to dismiss on the merits and did not attack or move to dismiss
       on the issue of the lack of a notarized affidavit, the issue of the need for a proper affidavit,
       or for verification by any means, became moot. “This court has also cautioned, however, that
       courts of review should not ordinarily consider issues where they are not essential to the
       disposition of the cause or where the result will not be affected regardless of how the issues
       are decided ***.” People v. White, 2011 IL 109689, ¶ 144.
            “We do not, and should not, manufacture reasons to address issues–constitutional or
            otherwise–where the record has not been fully and fairly developed for that purpose and
            where resolution of the issues is unnecessary.” White, 2011 IL 109689, ¶ 148.
¶ 26        Furthermore, the Carr decision created an anomaly that is better left alone. In Carr, the
       trial court dismissed the cause on the merits. It did not dismiss the cause for lack of an
       appropriate pleading or attachment. The former is clearly a disposition that implicates res
       judicata; the latter is not. Thus, the Carr panel, myself included, created a counterfactual
       conditional2 with regard to the issue of an unnotarized affidavit that was neither raised nor
       ruled upon (nor did it involve a question regarding section 1-109 certification) and was not
       implicated in the judgment on the merits. Carr, according to this majority’s analysis, opined
       on a factual circumstance that: (1) did not exist; (2) the trial court did not address; (3) was
       not necessary; and (4) has questionable value with regard to the efficient disposition of
       postconviction petitions. The Carr decision created a straw man, knocked him down, and


               2
                 A counterfactual conditional is a conditional statement “indicating what would be the case
       if its antecedent were true (although it is not true).” (Emphases in original.) Counterfactual
       conditional,Wikipedia,                       The       Free       Encyclopedia,http://
       en.wikipedia.org/wiki/Counterfactual_conditional (last visited September 22, 2011); see also
       Corcoran-Hakala v. Dowd, 362 Ill. App. 3d 523, 530 (2005).

                                                   -6-
       then proceeded to affirm on the merits.
¶ 27       Carr and its counterfactual conditional dicta should not be involved in the majority’s
       analysis. Additionally, the majority should address the State’s procedural default, determine
       that the default precludes review of that issue, and proceed to the merits of the appeal. I will
       not succumb to the temptation that the majority was unable to withstand; I will not opine as
       to whether a section 1-109 certification will suffice as a means of proper verification of a
       postconviction petition. It is not yet time.




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