State had actual notice of 2-1401 petition when ASA appeared in court, despite service being improper (People v. Lake, 2014 IL App (1st) 131542)

People v. Lake, 2014 IL App (1st) 131542 (December 29, 2014) Cook Co., 5th Div. Affirmed. Defendant Lamonte Lake was convicted at trial of first degree murder in 1996 and sentenced to 45 years DOC. His conviction and sentence were later affirmed on appeal, but defendant continued to challenge his conviction and sentence, without success, through post-conviction petitions, a petition for writ of mandamus, and through section 2-1401 petitions.

Lake’s latest appeal concerns the dismissal of a pro se 2-1401 petition in which he argued that the trial court erred by failing to admonish defendant that an MSR term would follow his prison sentence and by in fact adding that MSR term to his sentence. Defendant’s notice of filing of the petition indicated that he served the petition on the trial court and the State via U.S. mail. The defendant’s petition was received by the Clerk and docketed on January 29, 2013. The trial court acknowledged in open court on February 22, 2013, that the defendant had filed his 2-1401 petition. The court, in the presence of the Assistant State’s Attorney who had appeared for the State on February 22, 2013, continued the case until March 21, 2013, and then continued the case again until April 4, 2013. The trial court denied the defendant’s petition in a written order filed at the court date on April 4, 2013. Defendant appealed.

The Lake court rejected the defendant’s substantive MSR claim, relying on the Ill. Supreme Court’s recently decided decision in People v. McChriston, 2014 IL 115310, which held that the defendant’s MSR term was automatically added to his sentence, such that the trial court had no discretionary power in imposing it.

Notable in this decision is not defendant’s weak substantive claim, but the defendant’s argument that “that the trial court’s dismissal of his section 2-1401 petition was premature because he failed to properly serve the State with the petition” “because, according to Supreme Court Rule 105(b), service cannot be made through regular mail.” ¶ 11, citing Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). This is the exact same argument that the defendant made in People v. Alexander, 2014 IL App (4th) 130132 (December 18, 2014), discussed in detail earlier today in this post. The Lake court, like the Alexander court, acknowledged People v. Vincent, 226 Ill. 2d 1 (2007) and People v. Laugharn, 233 Ill. 2d 318 (2009), but declined to decide on the issue by the holding of these two cases because “neither Vincent nor Laugharn addressed the question of proper service on the State or considered whether the State may waive improper service by failing to object and whether the defendant may challenge his own error as a basis for remand.” ¶ 22.

Instead, the Lake court held that the sua sponte dismissal of defendant’s petition was proper under the First District’s decision in People v. Ocon, 2014 IL App (1st) 120912. “In Ocon, we looked to whether the object and intent of notice had been achieved. We held that the State had actual notice of the petition because an assistant State’s Attorney appearing on behalf of the Cook County State’s Attorney and the respondent for purposes of section 2-1401 was present in open court when the petition was docketed. ¶ 25, citing Ocon at ¶ 35. Accordingly, “Under Ocon, the State in the instant case had actual notice of defendant’s section 2-1401 petition when an assistant State’s Attorney was present in court on February 22, 2013. It opted not to respond to the motion and the petition was ‘ripe for adjudication’ after the 30-day period passed. The trial court, therefore, properly dismissed the petition on the merits on April 4, 2013.” ¶ 26.

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