*1 Illinois Official Reports
Appellate Court
People v. Carter
,
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELVIN CARTER, Defendant-Appellant. Caption First District, Second Division District & No.
Docket No. 1-12-2613 Rule 23 Order filed March 4, 2014 April 14, 2014
Rehearing denied Modified upon April 22, 2014
denial of rehearing Held The trial court’s dismissal of the petition defendant filed under section 2-1401 of the Code of Civil Procedure challenging the ( Note: This syllabus firearm enhancement of his sentence for murder was reversed and the constitutes no part of the opinion of the court but cause was remanded on the ground that the dismissal was premature, has been prepared by the since defendant served the petition by regular mail, not by summons, Reporter of Decisions certified or registered mail or publication, as required by Supreme for the convenience of Court Rule 105(b), and although the prosecutor was in court, no the reader. ) formal waiver of service was entered on the record. Decision Under Appeal from the Circuit Court of Cook County, No. 02-CR-16884; the Hon. Kevin M. Sheehan, Judge, presiding. Review Judgment vacated; cause remanded for further proceedings. Judgment *2 Counsel on Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and Michelle Grimaldi Stein, Assistant State’s Attorneys, of counsel), for the People. JUSTICE PIERCE delivered the judgment of the court, with opinion.
Panel
Justices Simon and Liu concurred in the judgment and opinion. OPINION Defendant appeals from the circuit court’s dismissal of his petition under
section 2-1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401 (West 2012)). He argues that this court must remand the case because the circuit judge’s dismissal of his petition for relief from judgment on the merits was premature given that the petition was not properly served on the State. We agree and for the foregoing reasons, remand the cause to the circuit court for further proceedings. BACKGROUND Following a bench trial, defendant was convicted of the murder of Edmond Allen. This
court upheld his conviction on appeal. People v. Carter , No. 1-04-1385 (Feb. 8, 2006) (unpublished order under Supreme Court Rule 23). Defendant’s subsequent postconviction petition was dismissed by the trial court and that dismissal was also affirmed. People v. Carter No. 1-07-2160 (May 8, 2009) (unpublished order under Supreme Court Rule 23). Defendant mailed his section 2-1401 petition, wherein he challenged his sentence for the murder, on May 9, 2012. Specifically, defendant argued that the 25-year firearm enhancement he received was void because the trial judge only found him guilty of general murder and his sentence would only be 30 years in prison because that was the initial statement from the judge. The petition was file stamped by the clerk of the circuit court on May 15, 2012. The
petition was first docketed on the trial call on June 5, 2012. The cover page of the transcript of the proceedings on June 5, 2014, reflects only the judge and the court reporter were present when the court stated, “Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review.” On July 10, 2012, the trial judge dismissed the petition, stating that all of the counts of
murder charged defendant with shooting and killing the victim with a firearm, and he concluded that the requisite findings had been made to impose the firearm enhancement. The transcript of the proceeding reflects the trial court stating, “[a]lso post-conviction petition *3 2-1401 petition, Kelvin Carter, he’s on sheet one. Mr. Carter is not present, he’s in IDOC custody. His 2-1401 petition is dismissed. Copy of the written order in the file is to be sent to defendant by the clerk within ten days.” This is the full extent of the oral record regarding this petition on the date of dismissal. It is from this dismissal that defendant now appeals. ANALYSIS Defendant argues that this court must remand this case to the circuit court because the court’s dismissal of his section 2-1401 petition on the merits was premature, given that the petition was not properly served on the State. According to the proof of service attached to the section 2-1401 petition, defendant mailed his petition on May 9, 2012, and attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center “properly addressed to the parties listed above for mailing through the United States Postal Service.” The State counters that defendant’s argument should be rejected because an assistant
State’s Attorney was in court at the time the petition was dismissed and had actual knowledge of defendant’s section 2-1401 petition. The State waived improper service by not objecting to it. As such, the 30-day time limit commenced and the case was ripe for adjudication when it was dismissed for failure to state a cause of action more than 30 days after it was received by the court. Section 2-1401 provides a statutory procedure by which final orders, judgments, and
decrees may be vacated after 30 days from their entry.
People v. Vincent
, 226 Ill. 2d 1, 7
(2007). Pursuant to Illinois Supreme Court Rule 101(d) (eff. May 30, 2008), which governs
section 2-1401 of the Civil Code, once a party files a petition for relief, the opposing party has
30 days to answer the petition or otherwise plead. See also
People v. Laugharn
,
735 ILCS 5/2-1401(b) (West 2012). Pursuant to Illinois Supreme Court Rule 106, notice of the
filing of section 2-1401 petitions “shall be given by the same methods provided in Rule 105.”
Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). According to Illinois Supreme Court Rule 105, service
cannot be made by regular mail. Instead it must be served in the same manner as service by
summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff.
Jan. 1, 1989). We review the dismissal of a section 2-1401 petition
de novo
.
People v. Vincent
2-1401 petition without providing a defendant with notice or an opportunity to address the
court, reasoning that because section 2-1401 proceedings are subject to the usual rules of civil
procedure, when the State fails to answer a defendant’s petition the failure to answer
constitutes an admission of all well-pleaded facts.
Id
. at 9-14. The
Vincent
court also held that
the State’s failure to answer the petition rendered the case “ripe for adjudication.”
Id
. at 10.
Subsequently, in
Laugharn
,
¶ 13 Defendant argues that the State was not properly served because defendant placed the
petition for mailing with the United States Post Office and therefore the petition was not ripe for adjudication when the court dismissed it. The State counters that it is not clear from the record on appeal that defendant’s service did not comply with the requirements of Rule 105(b). We agree with defendant that the State was not properly served in this case. Contrary to the State’s argument, the record clearly shows that in defendant’s “Proof/Certificate of Service” he attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center “properly addressed to the parties listed above for mailing through the United States Postal Service.” There is nothing in the record that contradicts this information, nor does either party offer anything to the contrary. The State argues that it effectively waived service by appearing in court and not objecting
to improper service. The transcript of the proceedings on June 5, 2014, shows only the judge and the court reporter were present when the court stated, “Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review.” From this brief, two-sentence statement of the trial court we can assume nothing regarding the State’s knowledge of this petition. When the case next appeared on the court’s call on July 10, 2012, the cover page of the
report of proceedings reflected that an assistant State’s Attorney was “present.” The assistant State’s Attorney did not make any comment on the record that it was appearing or waiving service. No questions were directed to or comments solicited from the prosecutor by the court. From this record, the State contends it waived the requirement of proper statutory service of the petition. In its petition for rehearing, the State argues that requiring the State to formally waive
service directly conflicts with this court’s recent opinion in
People v. Ocon
, 2014 IL App (1st)
120912. In , the defendant argued that the trial court’s
sua sponte
dismissal of his section
2-1401 petition was improper as premature because the State had not been properly served
with the defendant’s petition. In support of his argument, the defendant cited
People v. Prado
petition to the circuit court for filing but there was no proof of service on the State. The trial
court
sua sponte
dismissed the petition. A panel of the Second District of this court reasoned
that the dismissal was proper because the failure to give notice amounted to a deficient
pleading. However, the
Nitz
court held the dismissal was premature because the 30 days for the
State to respond had not commenced. It concluded that the appropriate action was to dismiss
the petition without prejudice for a failure to comply with section 2-1401, reasoning that a
remand for further proceedings would be meaningless where no further proceedings would
occur, because the State would never move to answer or move to dismiss the petition, and the
court would be unable to take any action while the case remained permanently on its docket.
. ¶ 13.
In
People v. Prado
, defendant sent service of his section 2-1401 petition to the State
through regular mail. The trial court dismissed the petition. On appeal, a panel in
the Second District court agreed with the holding in
Nitz
that the dismissal on the merits was
premature when service was improper, but disagreed that dismissal without prejudice was the
*5
proper disposition. Instead, the
Prado
court agreed with the decision in
Powell v. Lewellyn
Attorney was present in court when Ocon’s petition was docketed and the subsequent dismissal by the trial court was entered after the 30-day period for a response had passed.
“Although the record is unclear whether defendant properly served the State with his
section 2-1401petition, the State had actual notice of the filing of the section 2-1401
petition. The report of proceedings from January 10, 2012, indicates that an assistant
State’s Attorney was present for defendant’s case when the trial judge docketed the
petition. This is in contrast with the facts in
Nitz
where the prosecutor was present only
when the case was dismissed, which did not permit time for the State to receive notice
of the petition and choose to respond.”
Ocon
,
clerk had also been served and the notice of mailing reflected the document was mailed to both entities. We could also assume the court made the assumption that the State need not or would not respond once it took the time to review the petition. We could further assume that the absence of any utterance attributed to the assistant State’s Attorney is because the assistant was otherwise occupied and focused on other matters or was in fact unaware of the petition or that it was under consideration by the court. In short, there are many events that one could assume took place where the prosecutor was shown to be present that do not necessarily reflect service of the petition and an intentional waiver of service and right to respond. The criminal justice system has many important moving parts, one being the prosecutor. It
is not the function of the reviewing court to assume what the State “effectively” intended based *6 on the record before us. Prosecutors have a job to do and that job includes standing before the trial court and clearly and articulately stating the State’s position regarding the matter at hand. The State argues that in the interest of judicial economy we find that the State waived service and affirm the trial court. Judicial economy is best served when the prosecutor, in the first instance, affirmatively spreads of record whether the petition has been served and, if not, whether the State intends on waiving the required service. When this has been done, the trial court will be in a position to inquire whether the prosecution intends to file a response. Should the trial court then dismiss the petition, this potential appellate issue will be eliminated. Otherwise, notwithstanding the reasoned decision in , section 2-1401 defendants that use the same or similar method of service as used by the defendant in this case will routinely seek appellate review. Because a case is not ripe for adjudication until 30 days after service, the circuit court in
this case prematurely dismissed defendant’s petition
sua sponte
where service was never
effectuated.
Laugharn
,
court dismissed the section 2-1401 petition prematurely. In accordance with Prado the appropriate disposition is to vacate and remand for further proceedings. CONCLUSION For the foregoing reasons, the circuit court’s dismissal on the merits of
defendant’s section 2-1401 petition was premature. We vacate the judgment of the circuit court and remand for further proceedings. Judgment vacated; cause remanded for further proceedings.