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No. 2--02--0322

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The defendant, Szymon Niezgoda, appeals from the February 27,2002, order of the circuit court of Du Page County dismissing hispetition for postconviction relief. On appeal, the defendantargues that the trial court erred in dismissing his petitionwithout an evidentiary hearing because he presented evidence thathe received the ineffective assistance of counsel and that his pleawas involuntary. We affirm.

The record reveals that on November 22, 2000, the defendantwas charged by indictment with unlawful possession of less than 15grams of cocaine (720 ILCS 570/402(c) (West 2000)). On April 16,2001, the defendant pleaded guilty to the charged offense and wassentenced to 24 months' probation and 100 hours' community serviceand assessed certain fees and costs. The defendant did not file atimely notice of appeal.

On September 19, 2001, the defendant filed a petition pursuantto the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122--1 etseq. (West 2000)) seeking to withdraw his guilty plea. Thepetition alleged that, before he entered his plea, the defendantconsulted with his attorney as to the effect of a guilty plea onhis status as an immigrant from Poland. His attorney allegedlytold him that his conviction would not be reported to theImmigration and Naturalization Service (INS) and that he would notbe deported. Based on his attorney's advice, the defendant waivedhis right to a jury and entered a plea of guilty. On July 25,2001, the defendant was taken into custody by the INS.

On October 12, 2001, the trial court found that thedefendant's petition was not frivolous or patently without meritand ordered that the State file a response to the petition within35 days. On November 13, 2001, the State filed a motion to dismissthe defendant's petition. The State argued that there was noevidence in the record that the defendant had received erroneousadvice from his counsel or that he had otherwise been prejudiced byhis counsel's representation.

On February 5, 2002, the defendant filed an amendedpostconviction petition. The defendant additionally alleged thathe was never admonished that he had the right to consult withPolish authorities about his arrest. In support of his petition,the defendant attached his own affidavit and those of three otherpeople. None of these affidavits were notarized. On February 27,2002, the trial court granted the State's motion to dismiss thedefendant's petition. The defendant thereafter filed this timelyappeal.

At the outset, we address the State's motion to dismiss thedefendant's appeal or, alternatively, strike certain portions ofhis brief. The State argues that the defendant's statement offacts includes statements that are not supported by the record, inviolation of Supreme Court Rule 341. 188 Ill. 2d R. 341(e)(6). The State also argues that the defendant has not included acomplete record of the proceedings below for this court's review,in violation of Supreme Court Rule 608. 177 Ill. 2d Rs. 608(a)(4),(a)(8). We agree with the State that the defendant has notincluded a complete record for our review. We also find that thedefendant's brief is not in full compliance with the applicablesupreme court rules governing the content and form of appellatebriefs, as the brief includes facts that are unsupported by therecord. Nonetheless, we find that the brief and record aresufficient to allow us to review the merits of the appeal. SeeTaake v. WHGK, Inc., 228 Ill. App. 3d 692, 714 (1992). Wetherefore deny the State's motion and instead will disregard anyinappropriate materials or argument. See Kincaid v. Smith, 252Ill. App. 3d 618, 621 (1993).

Turning to the merits of the defendant's appeal, we note thatthe Act provides that a defendant may challenge his conviction byalleging that "in the proceedings which resulted in his or herconviction there was a substantial denial of his or her rightsunder the Constitution of the United States or of the State ofIllinois or both." 725 ILCS 5/122--1 (West 2000); People v.Tenner, 175 Ill. 2d 372, 377 (1997). A petition filed under theAct must "clearly set forth the respects in which defendant'sconstitutional rights were violated." 725 ILCS 5/122--2 (West2000). The petition shall have attached "affidavits, records, orother evidence," as required by section 122--2 of the Act,"supporting its allegations or shall state why the same are notattached." 725 ILCS 5/122--2 (West 2000). A postconvictionpetition that is not properly supported by affidavits or otherevidence is dismissed without an evidentiary hearing unless thedefendant's allegation stands uncontradicted and is clearlysupported by the record. People v. Johnson, 183 Ill. 2d 176, 191(1998).

Because the defendant's affidavits were not notarized, we mustfirst address whether they were sufficient to be considered by thetrial court under the Act. The Illinois Supreme Court recentlyaddressed on two separate occasions what constitutes a sufficientaffidavit. See Roth v. Illinois Farmers Insurance Co., 202 Ill. 2d490 (2002); Robidoux v. Oliphant, 201 Ill. 2d 324 (2002). InRobidoux, the supreme court held that an affidavit need not benotarized in order to comply with the requirements of Supreme CourtRule 191(a) (145 Ill. 2d R. 191(a)). Robidoux, 201 Ill. 2d at 340. In so ruling, the supreme court found that Rule 191 contained noexpress requirement that the affidavit be notarized. Robidoux, 201Ill. 2d at 340. Rather, the supreme court held that notarizationwas not required so long as the affidavit was either signed by theaffiant or his name appeared as one having taken an oath. Robidoux, 201 Ill. 2d at 347.

In Roth, the appellant's attorney filed an affidavit insupport of his petition for leave to appeal to the supreme courtpursuant to Supreme Court Rule 315 (177 Ill. 2d R. 315). Roth, 202Ill. 2d at 491. His affidavit was not notarized. Roth, 202 Ill.2d at 491-94. The supreme court held that the affidavit had nolegal effect and, therefore, the appeal should have been dismissedfor the lack of a supporting affidavit. Roth, 202 Ill. 2d at 497. The supreme court explained that " ' "[a]n affidavit is simply adeclaration, on oath, in writing sworn to before some person whohas authority under the law to administer oaths." ' [Citation.]" Roth, 202 Ill. 2d at 493. Thus, statements in writing that havenot been sworn to before an authorized person cannot be consideredaffidavits. Roth, 202 Ill. 2d at 494.

In so ruling, the supreme court explained that Robidoux wasdistinguishable because that case applied only to affidavits filedpursuant to Rule 191(a). Roth, 202 Ill. 2d at 495. The supremecourt found that Rule 191 expressly provides what is required ofthe affidavit but omits any reference to notarization. Roth, 202Ill. 2d at 496. In contrast, Rule 315 sets forward no specificaffidavit requirements. Roth, 202 Ill. 2d at 496. Therefore, thesupreme court held that the affidavit requirements under Rule 315would be the same as the court's traditional requirements for anaffidavit, including a notarization. Roth, 202 Ill. 2d at 496.

We believe that Roth sets forward the state of the law inIllinois as to what is required in an affidavit and that Robidouxpresents an exception to this law. Thus, unless otherwise providedfor by a specific supreme court rule or statutory authorization, anaffidavit must be notarized to be valid. See Roth, 202 Ill. 2d at496. Here, the defendant's affidavits at issue were filed pursuantto the Act. The Act sets forth no such specific affidavitrequirements. See 725 ILCS 5/122--1 et seq. (West 2000). Thus, anaffidavit filed pursuant to the Act must be notarized to be valid. See Roth, 202 Ill. 2d at 496.

In the present case, the defendant alleged in hispostconviction petition that he received the ineffective assistanceof counsel because his counsel misinformed him about the effect ofa guilty plea on his immigration status. The defendant alsoalleged that he was not properly admonished that he had the rightto consult with Polish authorities concerning his arrest. None ofthese allegations are supported by the record. Thus, the defendantwas required to support these allegations with sworn affidavits. See Johnson, 183 Ill. 2d at 191. However, none of the defendant'saffidavits were notarized or sworn before anyone who has authorityunder the law to administer oaths. See Roth, 202 Ill. 2d at 493. Consequently, the affidavits the defendant filed had no legaleffect. See Roth, 202 Ill. 2d at 497. As the defendant'spostconviction petition was not supported by the record or anyvalid affidavits, the trial court properly dismissed his petitionwithout an evidentiary hearing. See Johnson, 183 Ill. 2d at 191.

For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed.

Affirmed.

HUTCHINSON, P.J., and CALLUM, J., concur.