People v. Niffen

2018 IL App (4th) 150881

115 N.E.3d 1140

426 Ill.Dec. 218

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Joseph L. NIFFEN, Defendant-Appellant.

NOS. 4-15-0881

4-15-0882 cons.

Appellate Court of Illinois, Fourth District.

FILED October 31, 2018

James E. Chadd, Jacqueline L. Bullard, and Zachary A. Rosen, of State Appellate Defender’s Office, of Springfield, for appellant.

Gary L. Farha, State’s Attorney, of Quincy (Patrick Delfino, David J. Robinson, and Kathy Shepard, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE CAVANAGH delivered the judgment of the court, with 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 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, 258 Ill.Dec. 753, 757 N.E.2d 442 (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, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 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 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, 332 Ill.Dec. 318, 912 N.E.2d 1204 (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, 258 Ill.Dec. 753, 757 N.E.2d 442. 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, 308 Ill.Dec. 434, 861 N.E.2d 999 (2006). If no showing of a substantial constitutional violation is made, the court dismisses the petition. Edwards , 197 Ill. 2d at 246, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 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, 308 Ill.Dec. 434, 861 N.E.2d 999. 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 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, 258 Ill.Dec. 753, 757 N.E.2d 442.

¶ 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, 258 Ill.Dec. 753, 757 N.E.2d 442. 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, 258 Ill.Dec. 753, 757 N.E.2d 442 ). 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, 258 Ill.Dec. 753, 757 N.E.2d 442. 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 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...