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The People of the State of Illinois v. Herman L. Nitz

October 24, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
HERMAN L. NITZ,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court ) of Du Page County. No. 05-CF-2101 Honorable John J. Kinsella, Judge, Presiding.

The opinion of the court was delivered by: Justice Hudson

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 post-conviction 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 A previous motion to suppress statements was withdrawn because of the plea.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 post-conviction 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.

¶ 5 On November 9, 2006, Nitz filed a second memorandum in support of his post-conviction 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 post-conviction 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

ΒΆ 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 ...


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