Failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal of his 2-1401 petition

The appellant in People v. Roberson, 2019 IL App (1st) 170757 appealed the decision of the Circuit Court of Cook County dismising his pro se petition for relief from judgement (under section 2-1401 of the Code of Civil Procedure) on the grounds that the dismissal was premature since it was within 30 days of the petition’s filing. The Appellate Court of Illinois First District ultimately affirmed the decision of the Circuit Court of Cook County.

Appellant Roberson was charged with one count of armed habitual criminal and two counts of unlawful use of a weapon by a felon, related to an incident in December 2008. Id. at ¶ 3. At trial, one of the police officers who executed the search warrant resulting in Roberson’s arrest–Officer Kasper–testified that Roberson confessed to the purchase and possession of an illegal firearm found within his apartment. Id. at ¶ 5. The trial court found Roberson guilty on all counts and sentenced him to 20 years’ imprisonment. Id. at ¶ 6. On direct appeal, Roberson unsuccessfully argued that his trial counsel was ineffective for failing to file a pre-trial motion challenging the veracity of the allegations in the search warrant (a Franks hearing) and failing to move to suppress his statements regarding the location of the recovered firearm. Id. at ¶ 7. The Appellate Court of Illinois First District affirmed on direct appeal.

Following his direct appeal, Roberson then filed a pro se post-conviction petition, arguing, inter alia, that his confession was coerced, and he was not properly Mirandized, and that his sentence constituted an abuse of discretion. The circuit court summarily dismissed the petition as “frivolous and patently without merit.” Id. at ¶ 8. Upon dismissal, Roberson filed a pro se section 2-1401 petition, repeating the arguments that he was improperly Mirandized and that his sentence lacked statutory authority. Id. at ¶ 9. This petition was accompanied by a Proof/Certificate of Service, dated December 7, 2016, from Dixon Correctional Center, where appellant Roberson was imprisoned. Court records show multiple copies of the petition were circulated before being “filed” on January 3, 2016 (corrected by hand to say January 3, 2017) and January 4, 2017. Id. at ¶ 10. The petition was dismissed sua sponte on February 3, 2017, with a noted filing date of January 4, 2017, for being “frivolous and patently without merit.” Id. at ¶ 11. This appeal followed.

Roberson contended on appeal that the court prematurely dismissed his section 2-1401 petition within the 30-day waiting period that began after the petition was filed on January 4, 2017. Id. at ¶ 13. The State’s response to Roberson’s argument was that the petition was filed on January 3, 2017, transferred to another court on January 4, 2017, and then subsequently re-filed on January 4, 2017. With a filing date of January 3, 2017, the State argues the petition’s dismissal on February 3, 2017 was timely, as it came more than 30 days following the filing. Id. at ¶ 13.

The Court observed that both timeliness arguments were predicated upon the theory that the 30-day response period begins with the date the petition was filed. However, as noted by the Supreme Court, the 30-day response period begins on the date the State receives notice, not the date of filing. Id. at ¶ 17. Yet, because Roberson failed to serve notice on the State, the Court was required to “presume the circuit court’s order conforms with the law,” as the burden of presenting a sufficiently complete records falls upon the appellant. Id. at ¶ 18. Moreover, the Court held that failure to serve notice to the State rendered appellant unable to challenge the timeliness of the circuit court’s sua sponte dismissal. Id at ¶ 18.

Because of Roberson’s failure to properly serve the State and his resultant inability to establish that the circuit court’s sua sponte\dismissal was untimely, the Appellate Court of Illinois First District presumed the circuit court’s order conformed with the law and affirmed the judgment of the Circuit Court of Cook County.

 

 

 

Leave a Reply

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

WordPress.com Logo

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

Google photo

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

Twitter picture

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

Facebook photo

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

Connecting to %s