People v. Nitz
355 Ill. Dec. 525
Ill. App. Ct.2011Background
- Nitz pleaded guilty on February 9, 2006 to unlawful possession of less than 15 grams of cocaine in exchange for a four-year extended-term sentence; no factual basis was provided for the plea.
- Nitz did not appeal, and the trial court did not admonish him about appeal rights or inquire into mental health at sentencing.
- Nitz filed a September 2006 pro se postconviction petition that was not notarized and lacked a notarized affidavit or a section 1-109 certification.
- An unnotarized affidavit referenced section 1-109; multiple filings and withdrawals occurred through 2006.
- In 2008, Nitz filed another petition with unnotarized affidavits but attached earlier materials including an unnotarized affidavit; counsel later filed amended petitions without affidavits.
- The trial court moved the petition to the second stage, appointed counsel, and the State moved to dismiss on the merits; the court found no bona fide fitness doubt and rejected the ineffective assistance claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition lacked a properly notarized affidavit under 122-1(b). | Nitz’s affidavit was not notarized. | Section 1-109 certification could cure lack of notarization. | Not cured; however, jurisdiction remained and remand for new counsel warranted. |
| Whether section 1-109 certification can verify a postconviction petition. | 1-109 certification may verify the petition. | 1-109 does not apply to postconviction petitions. | 1-109 cannot verify a postconviction petition; not applicable. |
| Whether postconviction counsel's failure to secure proper verification constitutes unreasonable assistance. | Counsel failed to amend to proper verification. | Counsel acted reasonably under the circumstances. | Counsel provided unreasonable assistance; remand for appointment of new counsel. |
Key Cases Cited
- People v. Carr, 407 Ill.App.3d 513 (2011) (affidavits under 122-1(b) must be notarized; notary requirement can support dismissal)
- People v. Rivera, 342 Ill.App.3d 547 (2003) (section 1-109 certification may verify documents in some codes)
- People v. Delton, 227 Ill.2d 247 (2008) (noting dismissal for noncompliance with Act provisions)
- People v. Sharifpour, 402 Ill.App.3d 100 (2010) (statutory conditions to jurisdiction generally cannot be imposed absent exceptions)
- People v. White, 2011 IL 109689 (2011) (avoid addressing issues not essential to disposition; mootness caution)