People v. RuckerPeople v. Rucker
¶ 1 Defendant, Adrian A. Rucker, appeals from the dismissal of his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (
¶ 2 I. BACKGROUND
¶ 3 In 2006, after a jury trial, defendant was convicted of two counts of first degree murder (
¶ 4 At trial, the State presented evidence that, at 1 a.m. on November 7, 2004, Freeport police responded to a shooting. Isaac Hall, who was lying on the ground between two parked cars, suffered five gunshot wounds and bled to death at the scene. Eleven shell casings were found at the scene: five from a .45-caliber gun and six from a .38-caliber gun. A firearms expert testified that the casings came from at least two different guns. It was possible that more than two weapons were involved, but the casings “definitely” did not come from just one weapon. Several witnesses testified that Hall was shot after he left an apartment party with two male companions. Defendant also attended the party, but he was not present in the apartment when Hall left the party. Krisana Patrick testified that she saw defendant, who wore a dark, hooded jacket, shoot Hall. Other witnesses testified that the shooter wore a dark, hooded jacket, but they did not identify defendant as the shooter. Three witnesses testified that Aisha Meeks, defendant‘s girlfriend, argued at the party with one of Hall‘s companions. Hall and the two men left, and shooting erupted outside. About two seconds afterward, Meeks entered the apartment and said something to the effect that her “baby daddy ain‘t punk, he‘ll ride. He got two of them thumpers.” Three witnesses testified that “thumpers” referred to guns.
¶ 5 On direct appeal, this court affirmed, but we modified defendant‘s sentence for unlawful possession of a firearm by a felon to 14 years’ imprisonment and amended the mittimus to provide an additional nine days’ credit toward defendant‘s sentence. People v. Rucker, No. 2-06-0694 (2008) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (
¶ 6 On November 24, 2014, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code. In his petition, he argued that the firearm enhancement was void
¶ 7 On January 16, 2015, the State requested one month to respond to defendant‘s petition. The trial court granted the request. Defendant was not present.
¶ 8 On February 20, 2015, the State filed a motion to dismiss defendant‘s petition, arguing that it was filed more than two years after the judgment was entered and that the judgment was not void. At a hearing that day, the State asked if defendant should be brought to court, and the trial court replied in the negative.
¶ 9 Fourteen days later, on March 6, 2015, the trial court granted the State‘s motion and dismissed defendant‘s petition, finding that (1) the court had jurisdiction to enter the judgment, and thus the judgment was not void, and (2) the petition was filed more than two years after the judgment, and thus it was untimely (
¶ 10 On March 23, 2015, defendant moved pro se to reconsider. He argued that the issues he raised in his petition concerned errors of fact that were unknown to him and the court when the judgment was entered, he had not previously raised the issues, and he had shown cause. Defendant also argued that the judgment was void as to the firearm enhancement, in that the State did not comply with the statute or put defendant on notice that he was being charged with the enhancement (which, further, violated the fifth, sixth, and fourteenth amendments). In sum, defendant asserted that he was not charged with the firearm enhancement, the jury was not instructed on it, it was not discussed during plea negotiations, and the court did not have the power to impose it.
¶ 11 At a hearing on July 24, 2015, only the State was present and it asked the court to deny defendant‘s motion to reconsider, without further elaboration or argument. The court agreed, noting that defendant‘s section 2-1401 petition was not timely filed.
¶ 12 On August 21, 2015, defendant filed a notice of appeal, and, on September 18, 2015, he filed an amended notice of appeal.
¶ 13 On June 22, 2017, appellate counsel moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993). Defendant filed a response, and, on August 10, 2017, this court denied counsel‘s motion, without prejudice. We ordered counsel to either address any issues of arguable merit raised in defendant‘s response or file a supplement to the motion to withdraw.
¶ 14 II. ANALYSIS
¶ 15 Defendant argues that: (1) Rule 182(a), which entitled defendant to 21 days to respond to the State‘s motion to dismiss, was violated when the trial court dismissed the petition 14 days after the State filed its motion, i.e., before it was ripe for adjudication, and (2) his due process rights were violated when the trial court granted the State‘s motion without giving him a meaningful opportunity to respond. For the following reasons, we agree with defendant that he was deprived of due process.
¶ 17 An individual‘s right to procedural due process is guaranteed by the United States and Illinois Constitutions. See
¶ 18 Section 2-1401 establishes a comprehensive procedure that allows for the vacatur of a final judgment older than 30 days.
¶ 19 In Vincent, the supreme court noted:
“This court has consistently held that proceedings under section 2-1401 are subject to the usual rules of civil practice. [Citation.] Section 2-1401 petitions are essentially complaints inviting responsive pleadings. [Citation.] The petition is subject to dismissal for want of legal or factual sufficiency.” Vincent, 226 Ill. 2d at 8.
¶ 20 Defendant argues that he was deprived of due process when the trial court dismissed his petition before he had an opportunity to meaningfully respond to the State‘s motion to dismiss. He asks that we vacate the dismissal and remand for further proceedings. The State maintains that defendant had an effective opportunity to respond to its motion by filing a motion to reconsider and having the trial court consider and rule upon that motion. For the following reasons, we agree with defendant.
¶ 21 In Vincent, the supreme court held that a trial court need not provide a defendant notice and an opportunity to respond before sua sponte ruling on the defendant‘s section 2-1401 petition. Id. at 12-13. The defendant‘s opportunity to be heard, the court determined, was not compromised: the petition was considered by the trial court, the defendant was not prevented from bringing a meritorious claim because, under the facts, the defendant‘s claim had no merit, and “adequate procedural safeguards exist to prevent erroneous sua sponte determinations.” Id. at 13. The safeguards available to a defendant whose petition is disposed of sua sponte are to (1) file a motion for rehearing (
¶ 22 In Bradley, 2017 IL App (4th) 150527, ¶ 19, the reviewing court held that the trial court failed to give the defendant a meaningful opportunity to respond to the State‘s motion to dismiss the defendant‘s pro se section 2-1401 petition, where the trial court granted the State‘s motion (based on the State‘s arguments) two days after the State filed it and before allowing the defendant the opportunity to respond. The State conceded on appeal that the trial court had acted prematurely in dismissing the petition, but the reviewing court nevertheless addressed the merits of that issue, noting that it violates due process “to grant a motion to dismiss a complaint without allowing the opposing party notice and a meaningful opportunity to be heard.” Id. ¶ 16 (citing cases). The court then held that the defendant‘s due process rights were violated when the trial court dismissed his petition two days after the State filed its motion, without giving him a meaningful opportunity to respond. Id. ¶ 19. It remanded the cause for further proceedings and found that it need not address the merits of the defendant‘s petition or reach his ripeness argument. Id. ¶ 21.
¶ 23 The Bradley court, as does defendant here, relied on several cases that we also find instructive. In Merneigh v. Lane, 87 Ill. App. 3d 852, 854 (1980), the Fifth District held that the inmate plaintiff was denied due process when the trial court granted the State‘s motion to dismiss the plaintiff‘s mandamus complaint without giving him notice of the motion and the opportunity to respond. The Merneigh court noted that basic due process required that the plaintiff be given (1) a copy of the motion, (2) “a meaningful opportunity to respond to the motion by submitting a written memorandum in opposition thereto,” (3) a copy of the dismissal order, in the event of dismissal, and (4) an opportunity to amend his complaint, unless it was apparent that any deficiencies could not be overcome by amendment. Id. at 854-55. The court reversed and remanded the case to give the plaintiff the opportunity to amend, even though it appeared “doubtful” that he would succeed on the merits of his complaint. Id. at 855.
¶ 24 In People v. Gaines, 335 Ill. App. 3d 292, 295-96 (2002), abrogated on other grounds by Vincent, 226 Ill. 2d at 12, this court held that the defendant‘s due process rights were violated when the trial court dismissed a section 2-1401 petition after hearing a motion by the State (and relying on its arguments) and not providing the defendant time to respond. (Appointed counsel was present at the hearing but advised the court that he was given no prior notice of the motion and was unprepared to argue against it. The State was allowed to proceed with its arguments. Id. at 294.) This court recognized that “basic notions of fairness dictate that the defendant be afforded notice of, and an opportunity to respond to, any motion or responsive pleading by the State.” Id. at 296.
¶ 25 Here, defendant contends that this case law instructs that a vacatur is warranted, because the denial of an opportunity to meaningfully respond to the State‘s motion was inherently prejudicial and undermined the integrity of the proceedings. Bradley, 2017 IL App (4th) 150527, ¶ 21. Addressing Vincent, defendant argues that it is distinguishable because it involved a sua sponte dismissal and, here, the State filed a motion to dismiss. Defendant
¶ 26 The State responds that defendant‘s due process rights were respected and that he was afforded the appropriate opportunities and protections. Specifically, defendant had the opportunity to respond to the State‘s motion to dismiss when he filed, and the trial court considered though denied, his motion to reconsider the dismissal. It further argues that Merneigh and Bradley are distinguishable because the petitioners in those cases did not file motions to reconsider. The State relies on Vincent‘s statement that “the availability of corrective remedies, such as a motion to reconsider, renders the lack of notice prior to the ruling less of a concern.” Id. at 13. Defendant‘s opportunity to respond through his motion to reconsider, the State asserts, differentiates this case from those upon which defendant relies.
¶ 27 We note that People v. Smith, 2017 IL App (3d) 150265, a case not cited by the parties, presents a factual scenario somewhat closer to that in this case than the foregoing case law and contains language that is favorable to the State‘s position. In Smith, the trial court dismissed the defendant‘s section 2-1401 petition after the State filed a combined motion to dismiss, arguing that the court lacked personal jurisdiction because the State had not been properly served and that the petition failed to state a cause of action, the issues were barred by res judicata, and the petition was untimely. Eight days after the State filed its motion, the court held a hearing at which only the State was present and dismissed the petition on both the jurisdictional ground and on the merits. After the dismissal, the defendant filed a pro se response to the State‘s motion to dismiss, acknowledging that he failed to properly serve the State and addressing the res judicata and timeliness arguments. The court held a hearing on the defendant‘s response. The State appeared at the hearing, but the defendant did not. The court acknowledged the defendant‘s response, but it left the dismissal in place. Subsequently, the defendant filed a pro se motion to reconsider the dismissal. After a hearing at which only the State appeared, the court denied the defendant‘s motion.
¶ 28 On appeal, as relevant here, the court rejected the defendant‘s alternative argument that his failure to properly serve the State could have been excused by the trial court upon application. Id. ¶ 21. In reaching this conclusion, the court commented that it found troubling the fact that the State was allowed to present its limited appearance and motion without the defendant‘s input. However, the court determined, the supreme court‘s reasoning in Vincent applied to the case before it. Thus, “a defendant whose petition has been disposed of by the court could file a motion to reconsider,” and the “availability of corrective remedies, such as a motion to reconsider, render [the] defendant‘s absence from the hearing and his inability to timely respond to the State‘s motion ‘less of a concern.’ ” Id. ¶ 24 (quoting Vincent, 226 Ill. 2d at 13). The court noted that “[t]his defendant utilized one such remedy in the circuit court by filing his motion to reconsider. The court considered the motion and denied it. He also filed the instant appeal.” Id.
¶ 31 III. CONCLUSION
¶ 32 For the reasons stated, the judgment of the circuit court of Stephenson County is vacated and the cause is remanded.
¶ 33 Vacated and remanded.