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)

People v. Donley, 2015 IL App (4th) 130223 (March 26, 2015) Livingston Co. Affirmed. Robert Donley was convicted of first degree murder following a 1997 bench trial. He was sentenced to 45 years DOC. His conviction and sentence were affirmed on appeal. Donley thereafter launched numerous unsuccessful attempts to collaterally attack his conviction and sentence pursuant to the PCHA. This appeal concerns two petitions for relief from judgment filed pursuant 735 ILCS 5/2-1401, the first of which was filed in January of 2013 and the second of which was filed in June of 2013. The first 2-1401 petition challenged defendant’s 3-year term of MSR. This petition was dismissed sua sponte with prejudice in March of 2013. The second 2-1401 petition claimed that defendant’s “conviction and sentence was obtained by fraud, ignorance, and deprivation of a defense.” This petition was also dismissed sua sponte with prejudice in June of 2013. The defendant appealed the dismissal of both, contending “that (1) because he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), his petitions were not ripe for adjudication; and (2) the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn, 233 Ill. 2d 318 (Ill. 2009). Donley requested that the appellate court vacate the trial court’s dismissal of his 2-1401 petitions and remand for further proceedings.

Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) states that notice of the filing of a petition under section 2-1401 of the Code “shall be given by the same methods provided in Rule 105.” Rule 105(b) provides that notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must state that a judgment by default may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)). ¶ 29.

The defendant argued that “when he sent his petitions through the regular mail instead of providing the State notice by either (1) summons, (2) certified or registered mail, or (3) publication, he failed to comply with Rule 105. Given his failure, defendant posits that the 30-day period for the State to answer or otherwise plead did not begin. From that premise, defendant claims that the court’s sua sponte dismissal was premature because his January and June 2013 petitions were not yet ripe for adjudication.” ¶ 32. However, the Court, in relying on People v. Alexander, 2014 IL App (4th) 130132, a case I discussed earlier in February, rejected this argument, adhering to “its conclusion in Alexander that a ‘[d]efendant should not be able to serve a party incorrectly and then rely on the incorrect service to seek reversal” of the trial court’s decision. ¶ 34.

As to defendant’s second argument that “the court erred by striking his June 2013 petition prior to the 30-day minimum time limit imposed by the supreme court in People v. Laugharn,” the Court distinguished defendant’s case from Laugharn because the petition at issue was a successive 2-1401 petition, whereas Laugharn concerned the dismissal of an initial 2-1401 petition. Under the circumstances presented in this case, the Donnelly court held, “we reject defendant’s argument that the supreme court’s decision in Laugharn prohibits a trial court from immediately considering a successive section 2-1401 petition that (1) does not comport with the requirements outlined in section 2-1401 of the Code or (2) raises claims the court has previously considered and rejected or could have been raised in the initial section 2-1401 pleading. As we have previously noted, the 30-day rule announced in Laugharn was intended to allow a party sufficient time to respond to a section 2-1401 petition instead of empowering a prisoner to persist in filing frivolous claims. The supreme court in Laugharn was not dealing with a successive section 2-1401 petition, and we do not believe that the supreme court would limit a trial court’s authority on handling such petitions, especially, as here, when they are clearly frivolous.”¶ 34.

Clearly frustrated by the defendant’s repeatedly frivolous filings, the Court, in addition to affirming the trial court’s dismissal of defendant’s 2-1401 petition, issued a rule to show cause why defendant shouldn’t be sanctioned, and ordered the clerk to reject anymore filings from the defendant.

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