People v. Nitz
2011 IL App (2d) 100031
Ill. App. Ct.2011Background
- Nitz pleaded guilty on Feb 9, 2006 to unlawful possession of cocaine with an extended term; no factual basis was provided for the plea and no appeal was filed.
- On Sep 20, 2006, Nitz filed a pro se postconviction petition that was not notarized and lacked a notarized affidavit or a Section 1-109 certification.
- Nov 2006 filings included unnotarized affidavits invoking 1-109; the trial court granted a withdrawal on Dec 14, 2006.
- April 1, 2008, Nitz filed another pro se postconviction petition with an unnotarized affidavit citing 1-109; counsel was appointed and filed amended petitions without affidavits.
- The court ultimately dismissed at the second stage; the State argued lack of notarized affidavit deprived jurisdiction; Carr controls notarization requirements; the court would later remand for new counsel due to ineffective assistance of postconviction counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lack of a notarized affidavit deprived jurisdiction | Nitz argues lack of notarized affidavit under 122-1(b) invalidates petition | State contends jurisdiction exists but petition defective; Carr controls | Jurisdiction not deprived; defect permitted but not dispositive |
| Whether Section 1-109 certification can cure the notarization defect | Nitz contends 1-109 certification suffices to verify petition | State argues 1-109 cannot verify postconviction petitions | 1-109 does not verify postconviction petitions; cannot cure lack of notarized affidavit |
| Whether postconviction counsel's performance was unreasonable under Rule 651(c) | Counsel failed to amend and obtain proper verification; ineffective assistance | State would assume counsel acted reasonably given procedure | Remand for appointment of new counsel to amend petition with proper affidavit |
Key Cases Cited
- People v. Carr, 407 Ill. App. 3d 513 (Ill. App. 2011) (Notarized affidavits required; affidavits must be notarized to be valid under 122-1(b))
- People v. Rivera, 342 Ill. App. 3d 547 (Ill. App. 2003) (Section 1-109 may verify certain filings but not postconviction petitions per later decisions)
- People v. Sharifpour, 402 Ill. App. 3d 100 (Ill. App. 2010) (Statutory 'conditions precedent' to jurisdiction generally disallowed; not a universal jurisdictional defect)
- People v. Delton, 227 Ill. 2d 247 (Ill. 2008) (Affidavits must be notarized to be valid under 122-1(b))
- People v. Waldrop, 353 Ill. App. 3d 244 (Ill. App. 2004) (Counsel’s duties under Rule 651(c) include ensuring adequate presentation of claims)