ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Henderson, 2011 IL App (1st) 090923
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONTE HENDERSON, Defendant-Appellant.
District & No. First District, Fourth Division
Docket No. 1-09-0923
Rule 23 Order filed July 21, 2011
Rule 23 Order
withdrawn November 10, 2011
Opinion filed November 17, 2011
Held Where defendant had served his sentences and mandatory supervised
(Note: This syllabus release terms for multiple convictions for offenses committed when he
constitutes no part of was 16 years of age, defendant’s appeal from the summary dismissal of
the opinion of the court his pro se postconviction petition was moot and his claim that the guilty
but has been prepared plea proceedings violated his right to due process did not fall under any
by the Reporter of exception to the mootness doctrine, but pursuant to the public interest
Decisions for the exception, the appellate court held that the unnotarized verification
convenience of the affidavit attached to the petition was not an appropriate basis for the
reader.)
summary dismissal, and furthermore, the claim, which defendant raised
for the first time on appeal, that his conviction for unlawful delivery of
a controlled substance within 1,000 feet of a school was void because the
automatic transfer provision of the Juvenile Court Act did not authorize
his transfer to criminal court was properly before the appellate court and
was rejected, where defendant failed to show he was not charged with
being on a public way and, in the absence of such a showing, he could not
demonstrate that the automatic transfer provision was improperly
invoked.
Decision Under Appeal from the Circuit Court of Cook County, Nos. 05-C6-60799, 06-
Review CR-03910, 06-CR-01515; the Hon. Frank G. Zelezinski, Judge,
presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Unsinn, Alan D. Goldberg, and Pamela
Appeal Rubeo, all of State Appellate Defender’s Office, of Chicago, for
appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court, with
opinion.
Justices Pucinski and Salone concurred in the judgment and opinion.
OPINION
¶1 Defendant Donte Henderson appeals from the trial court’s summary dismissal of his
petition filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq.
(West 2008)). In his petition, defendant challenged negotiated guilty pleas entered in three
different cases because he was aggrieved at not being admitted to boot camp, as allegedly
promised pursuant to the plea agreements. On appeal, defendant asserts that the trial court
erroneously dismissed his petition because it presented a claim that was neither frivolous nor
patently without merit. Defendant also argues for the first time that his conviction for
delivery of a controlled substance within 1,000 feet of a school is void because the automatic
transfer provision of the Juvenile Court Act of 1987 (the Juvenile Act) (705 ILCS 405/5-
130(2)(a) (West 2004)) did not authorize his transfer from juvenile court to criminal court.
We affirm.
¶2 I. BACKGROUND
¶3 In 2006, defendant entered negotiated guilty pleas to delivery of a controlled substance
within 1,000 feet of a school (No. 05 C6 60799), possession of a controlled substance with
intent to deliver (No. 06 CR 03910) and aggravated battery of a correctional officer (No. 06
CR 01515). At a hearing before Judge Kenneth Wadas on October 17, 2006, defense counsel
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represented that pursuant to an agreement with the State, defendant would plead guilty to
aggravated battery of a correctional officer in exchange for three years in prison “with a Boot
Camp recommendation” and that his sentence would be served concurrently with the
sentences to be imposed in defendant’s other two cases. When asked whether he had been
promised anything other than a sentence of three years in prison with a “recommendation of
impact incarceration, also known as Boot Camp,” defendant answered no. After defendant
was admonished and the State recited the factual basis for the offense, the court accepted
defendant’s guilty plea and sentenced him to three years in prison, to run concurrently with
his other two sentences, and a “[r]ecommendation of Impact Incarceration, also known as
Boot Camp.” The written sentencing order reflects defendant’s sentence as pronounced by
the court and states, “recommended for bootcamp.”
¶4 At a hearing before Judge Christopher Donnelly the next day, defense counsel stated that
defendant was entering guilty pleas in both controlled substance cases in exchange for “the
recommended sentence of four years Illinois Department of Corrections with boot camp to
run concurrent” with his sentence for aggravated battery of a correctional officer. In
admonishing defendant, the court stated, “[o]ther than the plea agreement stated here in open
court by your attorney, did anybody make any promises to you about what I would or would
not do if you pled guilty today?” Defendant answered no. Following further admonishments
and the recitation of the factual bases for defendant’s offenses, the court accepted defendant’s
guilty pleas. The court subsequently sentenced defendant to “four years Illinois Department
of Corrections with a boot camp recommendation,” to be served concurrently with each other
as well as his sentence for aggravated battery of a correctional officer. At the end of the
hearing, the following colloquy ensued:
“DEFENDANT: They told me I might not be able to get boot camp because I was on
psych medication. If I don’t be able to get it–
THE COURT: Then you will be brought back to this Court, and we will have to do
something else.”
The sentencing orders regarding defendant’s controlled substance convictions state “[i]t is
further ordered that with boot camp.” Defendant did not file a direct appeal in any of the
three cases.
¶5 On December 10, 2008, defendant filed a pro se petition for postconviction relief, in
which he essentially alleged, in pertinent part, that his guilty pleas were involuntary and he
did not receive the benefit of his bargain because he pled guilty specifically in exchange for
the promise of boot camp, which he did not receive. Attached to the petition was an
unnotarized affidavit signed by defendant, in which he swore to the truth of the allegations
in his petition pursuant to section 1-109 of the Illinois Code of Civil Procedure (the Code)
(735 ILCS 5/1-109 (West 2008)). On February 9, 2009, Judge Frank Zelezinski summarily
dismissed defendant’s petition as untimely and frivolous and patently without merit. On July
21, 2011, this court entered a decision affirming the trial court’s judgment. We subsequently
granted the appellate defender’s petition for rehearing and accordingly, we consider
defendant’s appeal once more.
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¶6 II. THE ACT
¶7 On appeal, defendant first asserts the trial court erred in summarily dismissing his
petition because he alleged a constitutional claim which was neither frivolous nor patently
without merit. Specifically, defendant contends that he presented sufficient allegations
showing that he did not knowingly and voluntarily enter his guilty plea and did not receive
the benefit of his bargain because he was falsely promised boot camp. The State contends,
however, that the trial court’s summary dismissal of defendant’s petition was warranted
because the petition was not verified by affidavit, as required by section 122-1(b) of the Act.
725 ILCS 5/122-1(b) (West 2008). The State does not dispute that defendant attached to his
petition a document labeled as an “affidavit,” declaring the truth of the allegations in his
petition, but contends that this document does not constitute an affidavit because it was not
notarized. Before we address the parties’ arguments, an additional threshold matter has arisen
pending a final judgment on appeal.
¶8 The parties do not dispute that defendant has completed his prison term. It has also come
to our attention that pending a final judgment on appeal, defendant has successfully
completed his mandatory supervised release (MSR) terms and, thus, is no longer serving a
sentence in any of the three cases at issue. In the beginning of October, the website of the
Illinois Department of Corrections (IDOC) indicated that defendant was scheduled to be fully
discharged from MSR on October 19, 2011. As of that date, the website no longer shows that
defendant is in the custody of the IDOC. See People v. McKinney, 399 Ill. App. 3d 77, 79
(2010) (finding that the reviewing court can take judicial notice of the IDOC’s website).
Because defendant’s liberty is no longer encumbered by his convictions, we must consider
whether the parties’ contentions under the Act have been rendered moot.
¶9 Illinois appellate courts generally will not review moot issues. People v. Kelly, 397 Ill.
App. 3d 232, 248 (2009). The purpose of the rule is for courts to avoid considering cases
where the parties no longer have a personal stake in the case’s outcome. Id. at 249. In
addition, an issue may become moot where circumstances change while an appeal is pending
and prevent the reviewing court from being able to render effectual relief. People v. Shum,
207 Ill. 2d 47, 51 (2003). Intervening events may eliminate issues involved in the trial court.
People v. Roberson, 212 Ill. 2d 430, 435 (2004). The question before us is whether
defendant, who is in no way serving a sentence, may obtain relief under the Act or whether
his release from MSR eliminates his standing to obtain relief under the Act, rendering the
parties’ arguments under the Act moot.
¶ 10 Section 122-1 of the Act states, in pertinent part, that “[a]ny person imprisoned in the
penitentiary may institute a proceeding under this Article.” (Emphasis added.) 725 ILCS
5/122-1 (West 2008). A remedy under the Act is only available to persons who are actually
being deprived of their liberty, not persons who have completely served their sentences and
merely wish to purge their criminal records of past convictions. People v. Carrera, 239 Ill.
2d 241, 257 (2010); People v. Martin-Trigona, 111 Ill. 2d 295, 299 (1986) (citing People v.
Dale, 406 Ill. 238, 246 (1950)). Thus, a defendant’s liberty interest is paramount under the
Act. People v. Pack, 224 Ill. 2d 144, 150 (2007).
¶ 11 A defendant’s liberty is constrained if he is always on a string that the State may pull
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when it pleases. People v. Rajagopal, 381 Ill. App. 3d 326, 329 (2008). Thus, a defendant
retains standing under the Act so long as he is challenging a conviction for which he
continues to serve some form of sentence so that his liberty would be directly affected by
invalidating his conviction. People v. Dent, 408 Ill. App. 3d 650, 654 (2011). As with
incarceration, restraints on a person’s liberty accompanying parole, probation and release on
appeal bond are unacceptable when imposed in violation of his constitutional rights. Martin-
Trigona, 111 Ill. 2d at 300. A defendant who is no longer on parole, however, lacks standing
to file a postconviction petition. People v. Steward, 406 Ill. App. 3d 82, 90 (2010). When a
defendant’s conviction is no longer an encumbrance, he no longer needs assistance from the
Act to secure his liberty and, thus, the Act is no longer available to him. People v. Downin,
394 Ill. App. 3d 141, 144 (2009). Furthermore, this court has held that a lack of standing
under the Act renders a petition frivolous and patently without merit and requires the petition
to be summarily dismissed. Steward, 406 Ill. App. 3d at 90.
¶ 12 In People v. Correa, 108 Ill. 2d 541, 546-47 (1985), our supreme court found that the
defendant was entitled to relief under the Act where he was serving the MSR portion of his
sentence when he filed his petition. Notably, the supreme court did not state whether the
defendant in Correa had already successfully completed his MSR term by the time the
supreme court rendered its opinion or consider whether a defendant loses standing under the
Act where he is released from MSR following the filing of his petition.
¶ 13 Our research reveals only one case in which a defendant completed his entire sentence,
including parole, after he filed his postconviction petition but before this court entered a final
judgment on appeal from the dismissal of his petition. People v. Vunetich, 185 Ill. App. 3d
415, 418 (1989). In Vunetich, this court rejected the State’s argument that “the defendant
lacks standing to file the petition.” Vunetich, 185 Ill. App. 3d at 417, 419. The court found
that “defendant was still subject to potential parole revocation *** when he filed his post-
conviction petition. We accordingly find that defendant has standing to file his petition.”
Vunetich, 185 Ill. App. 3d at 418-19. The court did not consider however, whether the
defendant subsequently lost standing after the filing of his petition when he completed his
parole term. Accordingly, we do not find Vunetich assists in our determination of whether
a defendant loses standing under the Act where after the filing of his petition, he completes
his MSR term so that no sentence remains to be served.
¶ 14 The aforementioned case law clearly demonstrates that the Act is not intended to purge
a defendant’s convictions where his liberty is not encumbered. Absent a deprivation of
liberty, “the wrong which the Act was intended to remedy is nonexistent.” People v. Farias,
187 Ill. App. 3d 879, 884 (1989). We find no meaningful distinction to be drawn between
instances where the defendant’s liberty is not encumbered when he files the petition and
those instances in which a defendant regains his liberty after the petition is filed. The purpose
of the Act would not be fulfilled by giving either defendant relief. He is no longer on that
string and the State cannot affect his liberty at present.
¶ 15 Here, defendant has completed his MSR term and, thus, no longer needs the Act’s
assistance to secure his liberty. Accordingly, defendant has lost standing under the Act, a
defect that cannot be cured. Even if we were to remand this cause for further proceedings,
the trial court would be obligated to deny defendant relief at the second stage due to this
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defect. As a result, the parties’ arguments under the Act have become moot. Having
acknowledged that fact, we hasten to note the three exceptions to the mootness doctrine: (1)
the public interest exception; (2) the “capable of repetition yet evading review” exception;
and (3) the collateral consequences exception. In re Vanessa K., 2011 IL App (3d) 100545,
¶ 14.
¶ 16 The public interest exception permits a court to consider an otherwise moot issue when
(1) the question presented is of a public nature; (2) an authoritative determination is
necessary for the future guidance of public officers; and (3) a likelihood exists that the
question will recur. People v. Horsman, 406 Ill. App. 3d 984, 986 (2011). We find the State’s
argument falls within this exception. The question of whether the trial court can summarily
dismiss a petition due to an unnotarized verification affidavit is clearly a question of a public
nature. It affects the large number of criminal defendants who file petitions every year.
People v. Coupland, 387 Ill. App. 3d 774, 777 (2008) (finding that questions of a public
nature include issues that affect a large number of the public or issues of public importance).
We also find an authoritative determination is necessary for the future guidance of trial court
judges, who are public officers. See Kelly, 397 Ill. App. 3d at 250. Only one case has
addressed the precise issue before us and for reasons to be explained, we disagree with that
decision. Finally, a likelihood exists that this issue will arise in the future in light of the sheer
volume of petitions being filed and the fact that this is at least the second case this year in
which the State has argued that this is an appropriate basis for first-stage dismissal.
Accordingly, we will consider the verification affidavit issue pursuant to the public interest
exception. On the other hand, we do not find that defendant’s claim that the guilty plea
proceedings violated his right to due process falls under any exception to the mootness
doctrine.
¶ 17 Defendant’s argument that his guilty plea was not knowingly and voluntarily entered and
that he otherwise did not receive the benefit of his bargain is based on the specific comments
made by counsel and the court in this particular case. We find it unlikely that this question
will recur, thus rendering the public interest exception inapplicable. To fall within the
“capable of repetition yet evading review” exception, (1) the challenged action must be too
short in duration to be fully litigated prior to its cessation; and (2) a reasonable expectation
must exist that the same party will be subject to the same action again. Kelly, 397 Ill. App.
3d at 249. Because defendant has fully completed his sentence and is no longer encumbered
by his conviction, he will not be subjected to the same action again.
¶ 18 As for the collateral consequences exception, it applies only where a party is threatened
by or has suffered from an actual injury that can be traced to another party and is likely to be
redressed if the court renders a favorable judicial decision. In re Vanessa K., 2011 IL App
(3d) 100545, ¶ 16. Here, even if we were to determine that defendant’s guilty plea in this
case violated due process, defendant could not obtain redress. Assuming defendant’s claim
was neither frivolous nor patently without merit, this court would generally only have one
course of action available, i.e., remand for second-stage proceedings under the Act. The relief
defendant ultimately seeks, however, is to withdraw his guilty pleas. Because defendant has
lost standing under the Act, no court could grant defendant the relief he ultimately desires.
Defendant will obtain no redress from a determination that his due process rights were
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violated but that his conviction must nonetheless stand. Accordingly, the collateral
consequences exception does not apply.
¶ 19 Having determined that the issue concerning the unnotarized verification affidavit falls
within an exception to the mootness doctrine, we now consider whether this alleged defect
warrants the summary dismissal of a defendant’s petition. To assist with our determination,
we consider the procedural structure of the Act. In noncapital cases, there are three stages
under the Act (People v. English, 406 Ill. App. 3d 943, 952 (2010)), the first two of which
are relevant to our present inquiry. We review the trial court’s summary dismissal of a
postconviction petition at the first stage de novo. People v. Brown, 236 Ill. 2d 175, 184
(2010). The pleading requirements of the Act are found in section 122-2 (see People v.
Hodges, 234 Ill. 2d 1, 9 (2009)), which requires that the petition “clearly set forth the
respects in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2 (West
2008). Section 122-2 also requires that “[t]he petition shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not
attached.” 725 ILCS 5/122-2 (West 2008).
¶ 20 At the first stage of proceedings, the petition’s allegations, construed liberally and taken
as true, need only present the gist of a constitutional claim. Brown, 236 Ill. 2d at 184. If “the
court determines the petition is frivolous or is patently without merit, it shall dismiss the
petition.” 725 ILCS 5/122-2.1(a)(2) (West 2008). At this stage, the court does not measure
the petition’s procedural compliance but, rather, its substantive virtue. People v. Perkins, 229
Ill. 2d 34, 42 (2007). If the trial court does not dismiss the petition as frivolous or patently
without merit, it proceeds to the second stage, where the defendant is appointed counsel.
Hodges, 234 Ill. 2d at 10. After appointed counsel has made any necessary amendments to
the petition, the State is permitted to move to dismiss the petition. English, 406 Ill. App. 3d
at 953.
¶ 21 In addition to the pleading requirements of section 122-2, section 122-1(b) of the Act
provides that “[t]he proceeding shall be commenced by filing with the clerk of the court in
which the conviction took place a petition (together with a copy thereof) verified by
affidavit.” 725 ILCS 5/122-1(b) (West 2008). Unlike the section 122-2 affidavit, which
shows that the allegations can be objectively and independently corroborated, the verification
affidavit requirement of section 122-1, “like all pleading verifications, confirms that the
allegations are brought truthfully and in good faith.” People v. Collins, 202 Ill. 2d 59, 67
(2002). The question before us is whether unnotarized statements declaring the truth of the
allegations constitute a verification affidavit and, if not, whether this deficiency is a basis for
dismissing a petition at the first stage of proceedings.
¶ 22 Our supreme court has held that a statement in writing which is not sworn to before an
authorized individual is not an affidavit but, rather, is a nullity. Roth v. Illinois Farmers
Insurance Co., 202 Ill. 2d 490, 494, 497 (2002). In examining the “affidavit of intent”
contemplated by Illinois Supreme Court Rule 315(b) (eff. Oct. 1, 1997), the court observed
that although “affidavit” was not defined in the rule, courts had consistently defined an
affidavit as a declaration, under oath and in writing, that has been sworn to by a party before
a person with authority under the law to administer oaths. Roth, 202 Ill. 2d at 492-93. In
reaching this decision, the court clarified a decision of the court rendered several months
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earlier in Robidoux v. Oliphant, 201 Ill. 2d 324, 343, 347 (2002), which held that an affidavit
need not be notarized to comply with Illinois Supreme Court Rule 191(a) (eff. Aug. 1, 1992).
¶ 23 The supreme court clarified in Roth that its Robidoux decision was limited to Rule
191(a), which, in contrast to Rule 315(b), specifically stated what was required of an
affidavit filed pursuant to that rule. Roth, 202 Ill. 2d at 495-96. Following Roth and
Robidoux, this court has had but few opportunities to consider the effect of an unnotarized
affidavit on postconviction proceedings. People v. Niezgoda, 337 Ill. App. 3d 593 (2d Dist.
2003); People v. Carr, 407 Ill. App. 3d 513 (2d Dist. 2011); People v. Wilborn, 2011 IL App
(1st) 092802 (this opinion has not yet been released and is subject to being modified or
withdrawn); People v. Nitz, 2011 IL App (2d) 100031 (this opinion has not yet been released
and is subject to being modified or withdrawn).
¶ 24 In Niezgoda, the defendant appealed from the second-stage dismissal of his petition. On
appeal, the Second District considered whether the defendant’s supporting affidavits pursuant
to section 122-2 were sufficient to be considered under the Act where they were not
notarized. Niezgoda, 337 Ill. App. 3d at 596. After considering Roth and Robidoux, the court
found the unnotarized affidavits were insufficient. Id. at 596-97. The court determined that
Roth governed what was required to constitute an affidavit in Illinois and that Robidoux was
a mere exception. Id. at 597. Thus, unless otherwise provided for by a specific statute, an
affidavit must be notarized to be valid. Id. The court concluded that because the Act provided
no specific affidavit requirements, an affidavit must be notarized to be valid under the Act.
Id. Accordingly, the court determined that the defendant’s unnotarized affidavits pursuant
to section 122-2 were invalid and he had failed to comply with the Act, requiring the
dismissal of his petition without an evidentiary hearing. Id.
¶ 25 Recently, in Carr, the defendant appealed from the summary dismissal of his pro se
postconviction petition. Carr, 407 Ill. App. 3d at 515. Relying on Niezgoda, the Second
District held that because the defendant’s section 122-1 affidavit was not notarized, it was
not valid. Id. The court also declined to distinguish affidavits filed pursuant to section 122-1
from the section 122-2 affidavit at issue in Niezgoda because Niezgoda held that the
notarization requirement for affidavits applies to the entire Act. Id. Accordingly, the court
did not consider the differing purposes of the two affidavit requirements or that, unlike
Niezgoda, the petition at issue had been dismissed at the first stage. The court found that
because the defendant’s section 122-1 affidavit was not notarized, it was not valid and he
was not entitled to relief. Id. at 516.
¶ 26 Following the earlier decision entered in the case sub judice, a panel of the First District
of this court affirmed the first-stage dismissal of a pro se postconviction petition based on
the defendant’s failure to attach a supporting affidavit to his petition pursuant to section 122-
2, as the attached “affidavit” was not notarized. Wilborn, 2011 IL App (1st) 092802, ¶¶ 1,
71. In support of his petition, the defendant had attached an “affidavit” signed by his
codefendant. Id. at ¶¶ 3, 39. The codefendant stated therein that he declared under penalty
of perjury that the content of his affidavit was true “[p]ursuant to *** 735 ILCS 5/1-109,”
and explained that his affidavit was “not notarized [because the] Menard Correctional Center
law library refused to do so.” Id. at ¶ 39. Relying on Roth and Niezgoda, the court found that
the codefendant’s affidavit was not a valid section 122-2 affidavit. Id. at ¶¶ 69-77. The court
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rejected the defendant’s argument that the codefendant’s statement certifying his affidavit
pursuant to section 1-109 of the Code (735 ILCS 5/1-109 (West 2008)) was the equivalent
of notarization. Wilborn, 2011 IL App (1st) 092802, ¶¶ 72-75.
¶ 27 Most recently, in Nitz, the Second District of this court found that the defendant’s
postconviction petition was defective at the second stage of proceedings because it was not
accompanied by a notarized affidavit pursuant to section 122-1(b) of the Act, but also found
postconviction counsel provided unreasonable assistance by failing to remedy the lack of a
notarized affidavit. Nitz, 2011 IL App (2d) 100031, ¶¶ 19-21. In reaching its decision, the
court found that certification pursuant to section 1-109 of the Code was not sufficient to
verify a petition under the Act. Id. at ¶¶ 13-16.
¶ 28 Justice Robert D. McLaren, who had concurred in the Carr decision, specially concurred
with the decision in Nitz. Justice McLaren indicated, in pertinent part, that had the State
raised the issue regarding this affidavit requirement in the trial court, it could have been
addressed and resolved, and he found that this issue was not properly before the reviewing
court in light of the State’s procedural default. Nitz, 2011 IL App (2d) 100031, ¶¶ 25, 27
(McLaren, J., specially concurring). Justice McLaren also found that “the Carr decision
created an anomaly better left alone.” Nitz, 2011 IL App (2d) 100031, ¶ 26 (McLaren, J.,
specially concurring). Justice McLaren further opined that the decision regarding the
unnotarized affidavit in Carr had “questionable value with regard to the efficient disposition
of postconviction petitions.” Id.
¶ 29 Hewing to the tenets of Roth, we are consonant with the holdings of the aforementioned
cases that any affidavit filed pursuant to the Act must be notarized. This does not end our
inquiry, however, as not every defect in a petition warrants summary dismissal. As stated,
section 122-2.1(a)(2) of the Act governs first-stage dismissals and provides that “[i]f the
petitioner is sentenced to imprisonment and the court determines the petition is frivolous or
is patently without merit, it shall dismiss the petition.” (Emphasis added.) 725 ILCS 5/122-
2.1(a)(2) (West 2008).
¶ 30 Our supreme court has had several opportunities to interpret and apply the “frivolous and
patently without merit” test. In Collins, our supreme court held that because the defendant’s
petition did not include affidavits, records or other evidence supporting his claims, as
required by section 122-2, the trial court “properly dismissed that petition as frivolous and
patently without merit.” Collins, 202 Ill. 2d at 69. The court found that the purpose of a
section 122-2 affidavit was to demonstrate that the allegations can be objectively and
independently corroborated. Id. at 67.
¶ 31 Shortly thereafter, in People v. Boclair, 202 Ill. 2d 89, 99 (2002), our supreme court held
that the Act does not permit the summary dismissal of a petition based on untimeliness. In
reaching this decision, the court found that neither “frivolous” nor “merit,” by its traditional
definition included issues of timeliness. Id. at 101. The court also observed that by
addressing untimeliness and frivolousness in separate statutory provisions, the legislature
plainly intended to distinguish between these two different flaws. Id. In addition, the court
found that timeliness was not an inherent component of the right to file a postconviction
petition and that time limitations in the Act should be treated as affirmative defenses that can
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be raised or forfeited by the State. Id. The court stated, “[t]he process at the summary review
stage measures a petition’s substantive virtue rather than its procedural compliance.” Id. at
102.
¶ 32 In People v. Blair, 215 Ill. 2d 427, 430, 442 (2005), the supreme court found that the
legislature intended for the trial court to be permitted to summarily dismiss petitions based
on res judicata and waiver. The court found that the terms “frivolous” and “patently without
merit” encompassed both res judicata and forfeiture, which were themselves inherently legal
determinations that could bar relief under the Act. Id. at 445. The court found that an
otherwise meritorious claim has no legal basis if the claim is barred by res judicata or
forfeiture and that this legal component was consistent with being frivolous and patently
without merit. Id. In distinguishing res judicata and forfeiture from untimeliness, the court
observed that the former requirements, unlike the latter requirement, were not included in
a separate provision of the Act but, rather, fell within the plain language of “frivolous ***
or patently without merit.” Id.
¶ 33 More recently, in Hodges, the supreme court reiterated that although a defendant must
allege the gist of a constitutional claim, the standard for evaluating a petition at the first stage
was the “frivolous or patently without merit” test. Hodges, 234 Ill. 2d at 11. Accordingly, a
petition will avoid dismissal if it is neither frivolous nor patently without merit. Id. The court
explained that a petition is frivolous or patently without merit only if it has no arguable basis
in law or fact, i.e., the petition is based on an indisputably meritless legal theory or fanciful
allegations. Id. at 16. In addition, a legal theory that is contradicted by the record is
indisputably meritless. Id. We further note that in its application of the “frivolous and
patently without merit” test, the supreme court considered the affidavit requirement of
section 122-2 in determining whether the petition had a factual basis sufficient to survive the
first stage. Id. at 18; see also Brown, 236 Ill. 2d at 185-86 (the supreme court considered the
section 122-2 affidavits during the first stage of proceedings in determining whether the
allegations presented an arguable factual basis).
¶ 34 A review of the foregoing supreme court decisions demonstrates that the Act allows
summary dismissal only where a defect renders a petition frivolous or patently without merit.
By their traditional meaning, we do not find those terms would encompass the mere lack of
notarization of a verification affidavit. Cf. Steward, 406 Ill. App. 3d at 90 (“We conclude that
the legislature intended that the phrase ‘frivolous or *** patently without merit’ encompass
the issue of standing because under Boclair, ‘merit’ means legal significance and standing.”
(Emphasis in original.) (quoting Boclair, 202 Ill. 2d at 101)). Notarization of the verification
affidavit has no relation to the substance of a defendant’s alleged constitutional claim. Unlike
res judicata and waiver, a lack of notarization would not leave an otherwise meritorious
claim without a legal basis. We also observe that a lack of notarization does not affect the
veracity of the allegations and that similar to the defect of untimeliness, the legislature has
addressed the issues of verification and frivolousness in separate statutory provisions.
Furthermore, unlike a section 122-2 affidavit, a section 122-1 verification affidavit does not
show that the defendant’s allegations can be corroborated and is not considered when
determining whether a defendant has a factual basis for his claims. Even where a section 122-
1 affidavit is a technical nullity for lack of notarization, this simply does not affect the
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petitioner’s claims or right to relief. Simply stated, since an unnotarized verification affidavit
cannot render a petition frivolous or patently without merit, it cannot be condoned as a
proper basis for first-stage dismissal of a postconviction petition. As a result, we disagree
with Carr.
¶ 35 We are also persuaded that the purposes of the Act and section 122-2.1 would be
hindered by preventing petitions which are neither frivolous nor patently without merit from
proceeding to the second stage due to the technicality at issue. See Blair, 215 Ill. 2d at 437,
447 (the Act is a procedural mechanism which permits a defendant to assert that a substantial
denial of his constitutional rights occurred in the proceedings which resulted in his
conviction and section 122-2.1 sets forth a simplified procedure to ensure that the criminal
justice system’s limited resources are expended where they are most needed). At the second
stage, the State will have the opportunity to object to the lack of notarization (see Nitz, 2011
IL App (2d) 100031, ¶¶ 25-27 (McLaren, J., specially concurring)), and appointed counsel
can assist in arranging for the notarization of the verification affidavit (see Nitz, 2011 IL App
(2d) 100031, ¶¶ 18, 19).
¶ 36 We further find that addressing this defect at the second stage of proceedings comports
with practical considerations which arise in the prison system. Defendant argues that pro se
postconviction petitions are typically filed by prisoners and that there is no guarantee that
“such petitioners are regularly afforded the services of a notary public.” Defendant has also
attached to his reply brief a memorandum, written by an employee of the IDOC, which
referred to the vacancies in prison library staff positions statewide and periods of time where
staff members lacked notary status. Although documents attached to the appendix are not
properly before us (People v. Spencer, 408 Ill. App. 3d 1, 6 (2011)), we note that the
codefendant in Wilborn similarly represented that he was unable to have his affidavit
notarized in prison. We need not address the result in Wilborn, as that case did not present
an issue identical to the one before us. Nonetheless, the codefendant’s affidavit in that case
indicates that petitioners may lack the ability to have their petitions notarized, not because
they are pro se litigants, but because they are prisoners, subject to the restrictions imposed
by their jailers and the limited resources provided by the State. If a correctional institution
does not provide the defendant a means to appear before a notary, he is singularly without
the means to comply with section 122-1(b). See 5 ILCS 312/6-102 (West 2008) (the
defendant must appear before the notary in order to have his affidavit notarized). If the
defendant’s petition survives the first stage, however, appointed counsel can arrange for the
defendant to meet with a notary. In light of the high volume of postconviction petitions that
are filed and the lack of case law addressing this precise issue, it also appears that trial courts
have not been summarily dismissing petitions on this basis and our determination comports
with the practice in the trial court. Accordingly, contrary to Carr, we find that an unnotarized
verification affidavit is not an appropriate basis for first-stage dismissal of a petition.
¶ 37 III. AUTOMATIC TRANSFER PROVISION
¶ 38 Defendant next contends that his conviction for delivery of a controlled substance within
1,000 feet of a school is void because he was a minor, age 16, at the time of the offense and
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was not charged with being on a public way at the time he committed the offense, as required
to authorize his transfer to adult criminal court pursuant to section 5-130(2)(a) of the Juvenile
Act. 705 ILCS 405/5-130(2)(a) (West 2004). A closer inspection of defendant’s argument
reveals, however, that he does not know what the indictment alleged but, rather, presumes
based on inferences from statements made on the record that he was not charged with being
on a public way. As a threshold matter, the State contends that defendant has forfeited this
argument because it was not included in his initial petition for postconviction relief. See
People v. Jones, 211 Ill. 2d 140, 148 (2004) (generally, the only question that can be raised
on appeal from the denial of a postconviction petition is whether the allegations in the
petition are sufficient to invoke relief under the Act). It is well established, however, that a
void judgment may be attacked directly or collaterally in any court at any time. People v.
Spears, 371 Ill. App. 3d 1000, 1006-07 (2007). We note that another panel of the First
District recently held that because the defendant had no standing to file a petition under the
Act, the reviewing court could not consider the defendant’s claim that his sentence was void.
People v. Vinokur, 2011 IL App (1st) 090798, ¶¶ 14-16, 18 (this opinion has not yet been
released and is subject to being modified or withdrawn). In reaching this decision, the
Vinokur court relied on People v. Flowers, 208 Ill. 2d 291 (2003).
¶ 39 In Flowers, the supreme court found that the trial court lacked subject matter jurisdiction
over an untimely posttrial motion. Id. at 304, 306. The supreme court also found that, as a
result, the appellate court’s jurisdiction was limited to considering the trial court’s lack of
jurisdiction and did not extend to the merits of the defendant’s appeal. Id. at 307. The
supreme court further rejected the defendant’s attempt to challenge a portion of her sentence
as void. Id. at 307-08. Specifically, the supreme court stated that “[a]lthough a void order
may be attacked at any time, the issue of voidness must be raised in the context of a
proceeding that is properly pending in the courts. If a court lacks jurisdiction, it cannot confer
any relief, even from prior judgments that are void.” Id. at 308. “[T]he appellate court is not
vested with authority to consider the merits of a case merely because the dispute involves an
order or judgment that is, or is alleged to be, void.” Id.
¶ 40 We disagree with the Vinokur court’s determination that a lack of standing has the same
effect as the jurisdictional defect addressed in Flowers. See Vinokur, 2011 IL App (1st)
090798, ¶ 18. Standing has no effect on subject matter jurisdiction in Illinois (People v. Four
Thousand Eight Hundred Fifty Dollars ($4,850) United States Currency, 2011 IL App (4th)
100528, ¶ 14) and the parties here do not dispute the jurisdiction of the trial court or this
court. Accordingly, this matter is properly pending before us, even if defendant has lost
standing to obtain relief under the Act following the filing of his appeal.
¶ 41 We now address defendant’s contention that his conviction is void. Whether a judgment
is void presents a legal question, which we review de novo. People v. Hauschild, 226 Ill. 2d
63, 72 (2007); People v. Rodriguez, 355 Ill. App. 3d 290, 291 (2005). A judgment is void,
as opposed to voidable, only where the trial court lacked jurisdiction or exceeded its statutory
authority to act. People v. Smith, 406 Ill. App. 3d 879, 887 (2010). Section 5-120 of the
Juvenile Act provides, with certain limited exceptions, that “no minor who was under 17
years of age at the time of the alleged offense may be prosecuted under the criminal laws of
this State.” 705 ILCS 405/5-120 (West 2004). Defendant acknowledges that the State
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represented in the trial court that defendant’s case was transferred to criminal court pursuant
to an exception in section 5-130 of the Juvenile Act. That section provides, in pertinent part,
as follows:
“The definition of a delinquent minor under section 5-120 of this Article shall not apply
to any minor who at the time of the offense was at least 15 years of age and who is
charged with an offense under Section 401 of the Illinois Controlled Substances Act,
while *** on a public way within 1,000 feet of the real property compromising any
school, regardless of the time of day or the time of year. *** These charges and all other
charges arising out of the same incident shall be prosecuted under the criminal laws of
this State.” (Emphasis added.) 705 ILCS 405/5-130(2)(a) (West 2004).
Thus, it is clear that the question of whether section 5-130 authorizes defendant’s automatic
transfer to adult criminal court depends on the allegations in the charges. The parties do not
dispute that here, defendant was charged with violating section 401 of the Illinois Controlled
Substances Act (720 ILCS 570/401 (West 2004)) and that he was charged with committing
the offense within 1,000 feet of a school. This is corroborated by the record, which shows
defendant was convicted of violating section 407(b), which specifically applies where the
defendant has violated section 401 within 1,000 feet of a school. 720 ILCS 570/407(b)(2)
(West 2004). Here, the question is whether defendant can show his conviction is void
because he was not charged with being on a public way.
¶ 42 In Rodriguez, the defendant, who had been a minor at the time the offenses were
committed, was found guilty of two counts of unlawful delivery of a controlled substance
following a stipulated bench trial and was sentenced to six years in prison. Rodriguez, 355
Ill. App. 3d at 291-92. The trial court had granted the State’s motion for the automatic
transfer of the defendant’s charges pursuant to a prior provision of the Juvenile Act requiring
transfer where the offense was committed on a public way. Id. at 292. This was because the
defendant was alleged to have sold drugs in a gas station parking lot, which the trial court
believed constituted a public way. Id. at 291. Several years after the defendant’s direct
appeal, he filed what was characterized as a petition pursuant to section 2-1401 of the Code
(735 ILCS 5/2-1401 (West 2002)). Rodriguez, 355 Ill. App. 3d at 292-93.
¶ 43 On appeal, the defendant claimed his conviction was void because the gas station parking
lot where the offense was alleged to have occurred was not a public way and absent an
allegation that his offense occurred on a public way, the transfer provision of the Juvenile
Act did not authorize the court to treat him as an adult. Id. at 293. Ultimately, the reviewing
court agreed, finding that the Juvenile Act did not authorize the automatic transfer of
defendant to criminal court because a gas station does not constitute a public way. Id. at 295-
96. The reviewing court stated that the court lacks the power to impose a criminal conviction
and sentence where the Juvenile Act mandates a juvenile adjudication and juvenile
punishment. Id. at 296. Thus, where the defendant erroneously receives a criminal
conviction, his conviction is void. Id. at 296; but see People v. Arnold, 323 Ill. App. 3d 102,
108 (2001) (a defendant can waive the right to be tried as a juvenile if he fails to make age
an issue); People v. Hall, 55 Ill. App. 3d 341, 343 (1977) (observing that prior Illinois case
law suggests that the prosecution of a juvenile in criminal court without regard to the transfer
provisions of the Juvenile Act will render a judgment voidable, not void).
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¶ 44 Even assuming Rodriguez correctly indicates that an improper transfer from the juvenile
court to the adult court can render a criminal judgment void, defendant in this case cannot
demonstrate his transfer was improper. Unlike Rodriguez, where there was no issue regarding
what the charging instrument alleged, here, defendant cannot demonstrate what the charging
instrument stated, as the indictment is not included in our record on appeal and defendant
waived the reading of the indictment in court.
¶ 45 It is generally the appellant’s burden to properly complete the record on appeal. People
v. Salgado, 263 Ill. App. 3d 238, 245 (1994). Any doubts arising from the incompleteness
of the record will be construed against the appellant and in favor of the judgment rendered
in the lower court. People v. Barker, 403 Ill. App. 3d 515, 523 (2010). However, there are
circumstances when this rule will be relaxed. This occurs when the defendant can prove that
the record is incomplete due to no fault of his own, as well as demonstrate that there is a
colorable need for the missing portion of the record in order to have appellate review. People
v. Appelgren, 377 Ill. App. 3d 137, 142-43 (2007). If the defendant can establish both prongs,
the State then must show that there are other means in order to afford adequate review. Id.
¶ 46 Defendant represents that he has unsuccessfully attempted to obtain a copy of the
indictment from the clerk’s office. The State agrees that both parties’ efforts to locate a copy
of the charging instrument have been unsuccessful and concedes that defendant is not at fault
for failing to include the charging document in the record on appeal. Notwithstanding this
concession, the State argues we must presume defendant was properly transferred to criminal
court because defendant has not established a colorable need for this missing portion of the
record.
¶ 47 Having closely read the substance of defendant’s argument on appeal, it is clear that
defendant does not actually know whether or not he was charged with being on a public way.
Defendant concedes that “we do not know the exact language used in the charging
document.” More importantly, defendant has not even generally stated what the missing
indictment said. See also People v. Banks, 378 Ill. App. 3d 856, 866 (2007) (the defendant
failed to argue that a colorable need for the missing video tape existed where the defendant
failed “to articulate what the videotape would show”). Defendant also speculates that “[i]t
is just as likely that Henderson was standing on a private porch or in a private yard as
opposed to the city street.” Thus, defendant concedes that he may have been standing in the
street, a public way, when he committed the offense. It follows that the indictment may also
have charged defendant with committing the offense on a public way. See People v. Sims,
403 Ill. App. 3d 9, 17 (2010) (“It is not enough to say that as a result of the missing records
we do not know whether any error occurred.”). Thus, it appears from defendant’s arguments
that it is equally probable that an error did or did not occur but that he urges us to assume the
former. Furthermore, defendant’s decision to waive the reading of the indictment and
counsel’s decision not to challenge defendant’s transfer to criminal court suggests that
counsel’s review of the indictment revealed no defects. Cf. Appelgren, 377 Ill. App. 3d at
140, 144 (where the defendant asserted on appeal that the State failed to prove him guilty
beyond a reasonable doubt and had also challenged at trial the accuracy of the State’s most
significant piece of evidence, the defendant demonstrated a colorable need for such evidence
on appeal). We will not equate defendant’s fishing expedition with a colorable need for the
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indictment.
¶ 48 The record does not otherwise assist defendant. Although defendant’s age was mentioned
and discussed, defendant never formally presented any argument objecting to his transfer to
the adult criminal court. At a hearing before Judge Thomas J. Condon on May 23, 2005,
defense counsel stated, “I’m trying to figure out why this boy is up here. He’s 16 years of
age, possession with Intent. I haven’t seen anything statutorily that says–.” The court then
stated, “It’s not an automatic transfer case the best I can tell.” The State responded that it was
an automatic transfer case because it was “[w]ithin a thousand feet of a school.” After
defense counsel questioned whether that factor required an automatic transfer, the case was
passed for the State to consult its coordinator. When the case was recalled, the State again
represented that this was an automatic transfer case because defendant was within 1,000 feet
of a school and stated that “they take it very seriously when they sell drugs near schools.”
Defense counsel made no objection. Contrary to defendant’s suggestion, none of the
aforementioned statements show that defendant was not charged with committing the offense
on a public way. The State’s representation that defendant was subject to automatic transfer
because he was within 1,000 feet of a school was accurate, as defendant could not otherwise
have been transferred. That the State may have omitted the other reason for the transfer, that
defendant was charged with committing the offense on a public way, does not show that
defendant was not so charged.
¶ 49 Defendant also relies on statements made at the arraignment hearing before Judge
Reginald H. Baker. Because defendant waived a formal reading of the charge, no statements
made at that hearing can be said to represent a full and accurate recitation of the indictment’s
allegations. The State represented that “[i]t’s an automatic transfer case because it was
delivery within five hundred feet of a school.” We reiterate that this representation was
accurate, even if incomplete. Furthermore, it is irrelevant that the factual basis for
defendant’s guilty plea did not state that the alleged offense occurred on a “public way.” As
defendant concedes, the offense for which he was convicted does not require as an element
that the defendant be on a public way. See 720 ILCS 570/407(b)(2) (West 2004). Thus,
whether defendant was on a public way was not essential to the factual basis for his guilty
plea and it is not unexpected that such information would not be relayed in the factual basis.
See People v. Barker, 83 Ill. 2d 319, 327-28 (1980) (for a factual basis to be sufficient, the
record need only reflect a basis from which the trial court could reasonably determine that
the defendant actually committed the offense).
¶ 50 As stated, defendant has not shown a colorable need for the indictment where his claim
is entirely based on speculation. As a result, we construe any doubts arising from the missing
indictment against defendant. Because the record does not otherwise show defendant was not
charged with being on a public way, defendant cannot demonstrate that the judgment is void.
¶ 51 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 52 Affirmed.
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