People v. Garry
2017 IL App (4th) 150373
| Ill. App. Ct. | 2017Background
- In November 1999 Tyrek Garry was convicted by a jury of home invasion, armed robbery, and armed violence; concurrent prison terms were imposed and affirmed on direct appeal.
- In May 2001 Garry filed a postconviction petition challenging an extended-term sentence; the petition was dismissed and that dismissal was affirmed.
- In January 2015 Garry filed a section 2-1401 petition arguing his armed violence conviction violated the one-act, one-crime rule because it arose from the same act as the home invasion conviction.
- Garry’s 2-1401 filing included a self-prepared notice of filing with a proof-of-service by mail referencing only the circuit clerk’s address; he did not properly serve the State.
- The trial court sua sponte dismissed the 2-1401 petition about three months after filing, concluding no one-act, one-crime issue required relief; Garry appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court prematurely sua sponte dismissed the 2-1401 petition because the State was not properly served | State: dismissal was proper after lapse of time; defendant cannot benefit from his failure to serve | Garry: petition not ripe because he never served the State and the 30-day response period never began | Court: dismissal was not premature; Garry cannot rely on his own failure to serve (Matthews controlling) |
| Whether the 2-1401 petition was timely or the convictions void so timeliness is excused | State: petition untimely and one-act, one-crime does not render judgment void | Garry: asks court to reach one-act, one-crime claim and use supervisory authority or Rule 615(b) to merge/void duplicate conviction | Court: petition untimely; one-act, one-crime does not render judgment void and appellate court lacks supervisory power exercised in Davis; merits not reached |
Key Cases Cited
- People v. Vincent, 226 Ill. 2d 1 (2007) (a respondent’s failure to answer a 2-1401 petition within 30 days admits well-pleaded facts and permits dismissal on the pleadings)
- People v. Laugharn, 233 Ill. 2d 318 (2009) (trial court may not sua sponte dismiss a 2-1401 petition before the State’s 30-day response period expires)
- People v. Matthews, 2016 IL 118114 (2016) (petitioner estopped from claiming lack of service to defeat ripeness when petitioner’s own conduct or proof of service misled the court)
- People v. Davis, 156 Ill. 2d 149 (1993) (supreme court vacated a duplicative conviction under its supervisory authority but held one-act, one-crime violations do not render convictions void)
- People v. King, 66 Ill. 2d 551 (1977) (established the one-act, one-crime rule)
- People v. Artis, 232 Ill. 2d 156 (2009) (clarified that King’s one-act, one-crime doctrine is not a constitutional rule)