Trial court improperly dismissed 2-1401 petition by not giving defendant time to respond

In People v. Rucker, 2018 IL App (2d) 150855, the defendant filed a pro se petition for relief from judgment (known as a 2-1401 petition). The State filed a motion to dismiss. Fourteen days later, the court granted the State’s motion to dismiss without the defendant being present. The defendant filed a pro se motion to reconsider, which was denied also without him being present. Rucker appealed.

The Second District reversed and remanded the trial court’s order granting the State’s motion to dismiss on grounds that Rucker was denied due process when the trial court granted the State’s motion to dismiss without giving Rucker an opportunity to respond to the State’s motion. The Rucker court reasoned that “Defendant was deprived of the opportunity to respond to the State’s motion before the trial court initially ruled on it. Further, when defendant had the opportunity to respond via his motion to reconsider, he had the burden of persuasion, whereas, if he had been given the opportunity to respond before the court’s initial ruling, the burden would have been on the State to establish a basis for dismissal.” Id. at ¶ 29. The trial court’s order was then vacated and remanded.

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.

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.

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.

Pro-tip: read the service requirements before filing a petition (People v. Kuhn, 2014 IL App (3d) 130092)

People v. Kuhn, 2014 IL App (3d) 130092 (August 15, 2014) LaSalle Co. Affirmed.
 Defendant in this case filed a 2-1401 petition, which is a collateral attack petition brought under 735 ILCS 5/2-1401. “The notice requirements for filing a section 2-1401 petition are governed by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105 provides that notice may be served by either summons, certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The object of process is to notify a party of pending litigation in order to secure his appearance.” Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 910 (1992). In construing the sufficiency of the notice, we focus on whether the object and intent of the law were substantially attained rather than the formal and technical requirements. People v. Ocon, 2014 IL App (1st) 120912.” Kuhn at ¶ 12.

The defendant, who was in prison, properly filed his petition, but he served notice by regular mail instead of certified mail. Therefore, notice was improper under Illinois Supreme Court Rule 105 because the notice was not sent by certified mail. The case was dismissed by the trial court because defendant failed to provide proper notice. The defendant appealed, “objecting to his failure to properly serve the State with notice of his section 2-1401 petition.” He was essentially objecting on the State’s behalf that his notice was improper. The court held that he didn’t have standing to object on the State’s behalf, and the trial court’s dismissal of the defendant’s petition was affirmed. The takeaway message from this case is to be sure you read, and strictly adhere to, the service requirements before filing any form of collateral attack petition.