                                                                                   FILED
                                                                                 October 31, 2018
                                   2018 IL App (4th) 150881                        Carla Bender
                                                                               4th District Appellate
                               NOS. 4-15-0881, 4-15-0882 cons.                       Court, IL

                                IN THE APPELLATE COURT

                                         OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                      )   Appeal from the

             Plaintiff-Appellee,                           )   Circuit Court of

             v.                                            )   Adams County

 JOSEPH L. NIFFEN,                                         )   No. 11CF648

             Defendant-Appellant.	                         )   12CF175
                                                           )
                                                           )   Honorable
                                                           )   Robert K. Adrian,
                                                           )   Judge Presiding.

______________________________________________________________________________

               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



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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 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



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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

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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.

¶ 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



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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



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*** 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 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.



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¶ 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



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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




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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.”)

¶ 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



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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.




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