Defendant tries to use his failure to properly serve State as basis for appeal. Does not end well for him. (People v. Alexander, 2014 IL App (4th) 130132)

People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014) McLean Co. Affirmed and remanded. Alvin Alexander was convicted of three counts of first-degree murder in 1992 and sentenced to life in prison. He spent the next 20-plus years filing post-conviction petitions and 2-1401 petitions in the trial court, and then appealing the (often sua sponte) denial of those petitions to the appellate court. “The issue in this appeal—defendant’s sixth appeal to this court—concerns defendant’s pro se document entitled “leave to file petition for relief from judgment” pursuant to section 2-1401(f) of the Civil Code, which defendant mailed to the McLean County circuit clerk on December 17, 2012.” ¶ 26.

Alexander’s 2-1401 petition argued that the trial court lacked personal jurisdiction over his case because the police lacked probable cause to arrest him. The defendant filed various handwritten notices and affidavits of service with his petition. The defendant’s petition was denied sua sponte as being frivolous as defined by 22-105 of the Civil Code. Defendant appealed, urging the appellate court to vacate the “trial court’s sua sponte denial of his December 2012 petition for relief from judgment, arguing that because he did not properly serve the State as required by Rule 105, his petition was not ripe for adjudication.” ¶32.

Based on Vincent and Laugharn, the law in Illinois is settled that (1) a trial court may dismiss a section 2-1401 petition on its own motion without benefit of responsive pleadings (Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not adjudicate a section 2-1401 petition prior to the 30-day period in which the respondent can answer or otherwise plead (Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805). ¶ 41. Alexander argued on appeal that “because he sent his petition by regular mail, he failed to comply with the provisions of Rule 105 regarding proper service of his notice by either (1) summons, (2) certified or registered mail, or (3) publication. Defendant then asserts that because service was improper, the 30-day period for the State to answer or otherwise plead did not even begin. Primarily relying on Vincent and Laugharn, defendant claims that the court’s denial was premature because his petition was not yet ripe for adjudication.” ¶ 44.

The appellate court disagreed. “The flaw in defendant’s argument is that under Laugharn, the primary purpose of the 30-day period is to afford the State sufficient time to respond to a petitioner’s claims seeking relief from judgment before a trial court may sua sponte consider the petition. Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805. In other words, the court must allow the State time to make its position known. However, the 30-day period does not provide a sword for a petitioner to wield once a court—as in this case—does not find in his favor, especially given that, under defendant’s interpretation, the basis of his claim on appeal is his failure to comply with Rule 105. If we were to accept defendant’s rationale, a prisoner who uses regular mail to effect service upon the State will—upon appeal—be rewarded with a second bite of the apple if the court denies his petition on the merits. Indeed, no practical reason would exist to comply with the provisions of Rule 105 because to do so would foreclose that avenue of review, which effectively empowers a prisoner to persist in filing frivolous claims.” ¶ 46. “…We refuse to reward defendant for his knowing failure to comply with Rule 105. Defendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal.” ¶ 47.

The Court, in a separate section entitled “Defendant’s Abuse of the Court System,” went on to rebuke the defendant for his “numerous claims under the Postconviction Act, Habeas Corpus Act, and Civil Code in the hope of raising any issue—however obscure, repeated, or futile—that would end or curtail his current incarceration” that have been filed over the past 22 years.” ¶ 57. As the Court “previously concluded, defendant’s claim is without question frivolous, and he had no legitimate basis for appealing the court’s sua sponte denial of his jurisdictional claim. The fact that OSAD—in demonstrating its usual competence and professionalism—raised a colorable argument on appeal regarding service of process was merely fortuitous. It is readily apparent that without some consequences for his repeated frivolous filings, defendant will continue to burden the trial and appellate courts.” ¶ 58. The Court thereafter ordered defendant to show cause why he should not be sanctioned pursuant to Ill. SCR 375(b).

The Court concluded with this amusing gem in its “Epilogue”: “Surely, the judiciary cannot permit this situation to continue. Doing so simply empowers defendants like the one now before us, who is unhappy with his lot in life—sitting in prison merely because of his complicity in the execution of three innocent people—to continue to “attack the system” with groundless claims, thereby requiring the courts to squander their scarce resources. Indeed, we surmise that forcing the courts to do so is likely defendant’s key motivation.” ¶ 63.

One thought on “Defendant tries to use his failure to properly serve State as basis for appeal. Does not end well for him. (People v. Alexander, 2014 IL App (4th) 130132)

  1. Pingback: The 30-day waiting period for sua sponte dismissal of 2-1401 petitions does not apply for successive 2-1401 petitions (People v. Donley, 2015 IL App (4th) 130223) | Illinois Post-Conviction Blog

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s