THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN A. LOFTON, Defendant-Appellant.
NO. 4-15-0743
IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT
November 28, 2018
2018 IL App (4th) 150743-UB
Honorable Thomas J. Difanis, Judge Presiding.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Presiding Justice Harris and Justice DeArmond concurred in the judgment.
ORDER
¶ 1 Held: Defendant’s due process rights were violated when the circuit court granted the State’s motion to dismiss defendant’s petition without giving defendant an opportunity to respond, but the error was harmless.
¶ 2 In May 2015, defendant, John A. Lofton, filed a pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Procedure Code) (
¶ 3 Defendant appealed and asserted (1) his due process rights were violated because
I. BACKGROUND
¶ 5 In May 2001, the State charged defendant by information with one count of unlawful possession of cannabis with the intent to deliver (
¶ 6 The parties later entered into a second plea agreement, under which defendant would plead guilty to a reinstated second count of unlawful possession of cannabis with the intent to deliver and the State would seek dismissal of the first count and recommend a sentence of 30 years’ imprisonment. The State refiled its original second count; and at an October 2005 plea hearing, the circuit court accepted defendant’s plea to count II, dismissed count I, and sentenced defendant to 30 years in prison as a Class X offender (
¶ 7 On November 7, 2006, defendant filed a pro se petition for postconviction relief under the Post-Conviction Hearing Act (Postconviction Act) (
¶ 8 In February 2009, defendant filed a third pro se postconviction petition,
¶ 9 In April 2012, defendant filed a pro se petition for relief from judgment pursuant to
¶ 10 On May 26, 2015, defendant filed a second petition for relief from judgment pursuant to
¶ 11 On August 10, 2015, defendant filed a motion to reconsider, asserting (1) the State defaulted because its motion to dismiss was not filed within 30 days and (2) he never received an opportunity to respond to defendant’s motion. He also filed a document entitled “Supplemental Pleadings,” in which he sought to supplement his section 2-1401 petition with a claim of vindictive prosecution. In an August 18, 2015, docket entry, the circuit court denied defendant’s motion to reconsider. The court did not expressly address defendant’s “Supplemental Pleadings” document but implicitly denied defendant an opportunity to supplement in denying his motion to reconsider.
¶ 12 On August 31, 2015, defendant filed a notice of appeal, which failed to list the name of the order appealed from. On September 9, 2015, defendant filed a timely amended notice of appeal in sufficient compliance with
A. Due Process
¶ 15 Defendant first asserts his due process rights were violated when the circuit court granted the State’s motion to dismiss without giving him an opportunity to respond. The State concedes defendant’s due process rights were violated but contends any error was harmless.
1. Due Process Violation
¶ 17 In People v. Bradley, 2017 IL App (4th) 150527, ¶ 19, 85 N.E.3d 591, this court held due process prohibits a circuit court “from granting an opposing party’s motion to dismiss a section 2-1401 petition without allowing the petitioner notice and a meaningful opportunity to respond.” There, two days after the State filed its motion to dismiss the defendant’s section 2-1401 petition, the circuit court considered the State’s motion and dismissed the defendant’s petition based on the State’s arguments. Bradley, 2017 IL App (4th) 150527, ¶ 19. The record contained no indication the defendant was given a meaningful opportunity to respond to the State’s motion. Bradley, 2017 IL App (4th) 150527, ¶ 19. This court concluded the defendant’s due process rights were violated. Bradley, 2017 IL App (4th) 150527, ¶ 19.
¶ 18 We continue to find a circuit court’s failure to give a defendant a meaningful opportunity to respond to the State’s motion to dismiss a section 2-1401 petition is a procedural due process violation. The Bradley decision explained why a due process violation had occurred but did not specifically address why our supreme court’s decision in People v. Vincent, 226 Ill. 2d 1, 14, 871 N.E.2d 17, 26 (2007), which examined the propriety of sua sponte dismissals of meritless section 2-1401 petitions, did not apply to an ex parte granting of a motion to dismiss. We take the opportunity to do so now.
¶ 19 Vincent’s holding only authorizes dismissals of section 2-1401 petitions when no
¶ 20 Moreover, we note Vincent’s abrogation of People v. Gaines, 335 Ill. App. 3d 292, 780 N.E.2d 822 (2002), which this court cited as a basis for finding a due process violation in Bradley, 2017 IL App (4th) 150527, ¶ 18, did not extend to the Second District’s decision the section 2-1401 petitioner was entitled to due process after the State filed a responsive pleading. In Vincent, our supreme court listed Gaines as an example of a decision in which the appellate
¶ 21 Moreover, Vincent’s rationale does not authorize the dismissal of section 2-1401 petitions, which are “essentially complaints[.]” Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23. Vincent emphasized section 2-1401 petitions are governed by the rules of civil procedure. Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23. Complaints may be dismissed absent a responsive pleading. See Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24 (citing Mitchell v. Norman James Construction Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872, 877 (1997)). It is well established, however, due process does not allow a court to grant a motion to dismiss a complaint without
¶ 22 In this case, the facts are identical to those in Bradley, as the circuit court also dismissed defendant’s section 2-1401 petition two days after the State’s motion to dismiss was filed and the record contains no indication defendant had an opportunity to respond before the dismissal. Thus, we agree with the parties and find defendant’s due process rights were violated.
2. Harmless Error
¶ 24 As to harmless error, in Bradley, the State argued this court should not remand the case because the circuit “court’s “procedural error” was not prejudicial.” Bradley, 2017 IL App (4th) 150527, ¶ 20. We disagreed, finding the circuit court’s failure to give the “defendant an opportunity to respond to the State’s motion to dismiss was inherently prejudicial and undermined the integrity of the proceedings.” Bradley, 2017 IL App (4th) 150527, ¶ 21 (citing People v. Coleman, 358 Ill. App. 3d 1063, 1071, 835 N.E.2d 387, 393 (2005) (“At times, “it is important to stand on the side of due process, even at the cost of some inefficiency.““)). In Bradley, 2017 IL App (4th) 150527, ¶¶ 3-4, the defendant was appealing the dismissal of his only section 2-1401 petition after this court had affirmed his direct appeal and the summary
¶ 25 Here, defendant is appealing the dismissal of his second section 2-1401 petition after he had filed a direct appeal and three postconviction petitions. In People v. Donley, 2015 IL App (4th) 130223, ¶ 40, 29 N.E.3d 683, this court addressed successive section 2-1401 petitions and multiple collateral attacks in considering the applicability of the holding in People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 892, 805 (2009), that a sua sponte dismissal of a section 2-1401 petition before the expiration of the 30-day period in which the State can answer or plead is premature. The Donley court rejected the defendant’s argument the supreme court’s decision in Laugharn prohibits a circuit court from immediately considering a successive section 2-1401 petition when the petition “(1) does not comport with the requirements outlined in section 2-1401 of the [Procedure] Code or (2) raises claims the court has previously considered and rejected or could have been raised in the initial section 2-1401 pleading.” Donley, 2015 IL App (4th) 130223, ¶ 42. In doing so, this court acknowledged a party was not limited jurisdictionally to one section 2-1401 petition but found successive section 2-1401 petitions unnecessarily frustrate the policy of bringing finality to circuit court proceedings. Donley, 2015 IL App (4th) 130223, ¶ 40. In support of that conclusion, this court cited the Seventh Circuit’s decision in Empress Casino Joliet Corp. v. Blagojevich, 638 F.3d 519, 538 (7th Cir. 2011). There, the Seventh Circuit cited approvingly the observation of the court in Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 39, 693 N.E.2d 1242, 1245 (1998), that the Illinois Supreme Court’s decisions in Deckard v. Joiner, 44 Ill. 2d 412, 418-19, 255 N.E.2d 900, 903-04 (1970), and its progeny have steadily held repeated section 2-1401 petitions are prohibited because they ” “unnecessarily frustrate the policy of bringing finality to court proceedings.” ” Empress Casino Joliet Corp., 638 F.3d at 538. The court further noted “[t]he reason for this rule is obvious: It
¶ 26 In this case, defendant’s second section 2-1401 petition meets both situations noted in Donley for not applying Laugharn. See Donley, 2015 IL App (4th) 130223, ¶ 42. In his petition, defendant sought to challenge his withdrawal of his guilty plea at a hearing in January 2002. Thus, it is clear from the face of his second section 2-1401 petition defendant could have raised this issue well before July 2015. Moreover, the supplemental pleading defendant filed was related to his ultimate guilty plea in October 2005, which also could have been raised long before the July 2015 petition at issue. As to his claim of a void judgment, our supreme court has held only fundamental defects such as a lack of personal jurisdiction or lack of subject-matter jurisdiction warrant declaring a judgment void. People v. Castleberry, 2015 IL 116916, ¶ 15, 43 N.E.3d 932. Defendant does not raise any jurisdictional claims in either his second section 2-1401 petition or his supplemental pleading. Thus, his second section 2-1401 petition is untimlely and does not comport with the requirements of section 2-1401. Accordingly, the concerns raised in Donley about successive section 2-1401 petitions apply to the facts of this case.
¶ 27 Enough judicial resources have already been wasted on another meritless collateral pleading filed by defendant. Unlike in Bradley, this is not a situation where it is important to stand on the side of due process. Thus, we find the error was harmless. However, our finding of harmless error does not condone the circuit court’s procedure in this case. Two days are insufficient for a defendant to respond to a State’s motion to dismiss. The court’s failure to give defendant an opportunity to be heard on the State’s motion to dismiss is particularly frustrating since defendant raised the lack of an opportunity to respond in his motion
B. Fines and Fees
¶ 29 Defendant next asserts the circuit court improperly imposed several fines, and the State agrees. However, after our original judgment, the supreme court handed down its decision in Vara, 2018 IL 121823, ¶ 23, which held the appellate court lacks jurisdiction to review a circuit clerk’s recording of mandatory fines that were not included in the circuit court’s final judgment. Thus, this court lacks jurisdiction to address defendant’s challenge to his fines under Vara.
III. CONCLUSION
¶ 31 For the reasons stated, we affirm the Champaign County circuit court’s July 22, 2015, dismissal of defendant’s May 2015 section 2-1401 petition. As part of our judgment, we award the State its $50 statutory assessment against defendant as costs of this appeal.
¶ 32 Affirmed.