Case Information
*1 No. 2-13-0350
Opinion filed January 13, 2016 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
v. ) No. 03-CF-3023
)
MARK ZIMMERMAN, ) Honorable
) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Birkett concurred in the judgment and opinion. OPINION Defendant, Mark Zimmerman, appeals the trial court’s sua sponte dismissal on the merits
of his petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). Because the dismissal was premature, we vacate and remand for further proceedings. I. BACKGROUND In 2010, defendant was convicted of armed violence (720 ILCS 5/33A-2(a) (West 2008))
and sentenced to 16 years’ incarceration, which we affirmed on appeal. People v. Zimmerman , 2011 IL App (2d) 100465-U. On April 30, 2012, defendant filed a petition for relief from judgment under section 2-1401, alleging that his conviction and sentence were void because of *2 errors in the indictment and at sentencing. In an application to sue or defend as a poor person, he wrote that he was told that he was supposed to serve the State’s Attorney by certified mail, but he asked the court to waive that requirement because of his indigency. The envelope for the mailing to the court is in the record and bears a postal meter cancellation stamp showing that it was sent through first-class mail. No formal appearance or response to the petition was filed by the State.
¶ 4 On May 3, 2012, the matter was on the court call. The trial court noted that the State was present. The court said that a section 2-1401 petition had been filed and that it would review the matter. On June 29, 2012, August 17, 2012, November 30, 2012, and January 11, 2013, the matter was again on the court call, for status. Each time, the court stated that it had the matter under advisement and noted that the State was present. There is nothing to indicate that the State said anything at any of the hearings. On March 8, 2013, the trial court dismissed the petition on the merits. Defendant
appealed, and we held the case in abeyance pending a decision in
People v. Carter
, 2015 IL
117709. In
Carter
, our supreme court clarified that, when the defendant seeks to invalidate a
sua
sponte
dismissal in light of defective service, the burden is on the defendant to provide a record
affirmatively showing that the State was not given proper notice through certified or registered
mail. ¶ 24.
II. ANALYSIS
Defendant argues that, because the petition was not properly served, under
People v.
,
for further proceedings. Citing First District cases, the State contends that its presence at the status hearings acted to waive proper service. *3 “Section 2-1401 provides a comprehensive civil procedure that allows for the vacatur of a
final judgment older than 30 days.”
Id.
& 6. “ ‘The petition must be filed not later than two
years following the entry of judgment, excluding time during which the petitioner is under a
legal disability or duress or the ground for relief is fraudulently concealed.’ ”
Id
. (quotin
g
People v. Nitz
,
without notice or an opportunity to be heard. People v. Vincent , 226 Ill. 2d 1, 11-19 (2007). However, a dismissal on the merits before the State has been properly served is premature. , 2012 IL App (2d) 110767, ¶ 9; Nitz , 2012 IL App (2d) 091165, ¶ 12. In the case of a *4 premature dismissal, we vacate and remand for further proceedings. , 2012 IL App (2d) 110767, ¶ 9. Here, as defendant expressly asked the court to waive the certified-mailing requirement,
we deem the record to affirmatively show that the State was not served by certified or registered
mail. The State argues that its appearance in court on multiple occasions constituted a waiver of
proper service. We rejected such an argument in
People v. Maiden
,
service. Thus, under Maiden , the dismissal was premature. The State, however, asks this court to reconsider and instead adopt the view of the First District in People v. Ocon , 2014 IL App (1st) 120912. In Ocon , the State was not properly served. The State was present when the trial court
stated that a section 2-1401 petition had been filed. The court dismissed the petition on the merits, and the State maintained on appeal that it waived any objection to the lack of jurisdiction and submitted to the court’s jurisdiction by remaining silent during the proceedings. Id. ¶¶ 15, 19. The First District held that the dismissal was proper, finding that the State had actual notice of the petition and that a formal waiver by the State was not required. . ¶ 41. The Ocon court acknowledged but explicitly disagreed with its interpretation of section 2-301, stating that section 2-301 is permissive in that it allows a party to object to personal jurisdiction at any time prior to filing a responsive pleading or substantive motion and that nothing in section 2-301 requires a party to affirmatively file a formal waiver. ¶¶ 39-40. However, after Ocon was decided, our supreme court, interpreting section 2-301 in
another context, looked to the legislative history of the amendment. In doing so, the court noted
the previous distinction between general and special appearances and noted legislative remarks
that the amendment to section 2-301 was a “ ‘
cleanup
,’ ” which was “ ‘
designed to prevent an
unknowing waiver
.’ ” (Emphases in original.)
BAC Home Loans Servicing, LP v. Mitchell
, 2014
IL 116311, ¶ 39 (quoting 91st Ill. Gen. Assem., Senate Proceedings, Mar. 11, 1999, at 42-43
(statements of Senator Hawkinson)). The court stated that the distinction between the types of
appearances created confusion and the potential for inadvertent waivers of objections to personal
jurisdiction. . ¶ 40. Thus, the court stated, the amendment to section 2-301 eliminated the
*6
distinction between general and special appearances and “was intended to provide additional
protection of a defendant’s right to assert an objection to the court’s personal jurisdiction by
preventing unknowing waiver.” . ¶¶ 40, 42 (citing 735 ILCS 5/2-301(a) (West 2010)).
Further, another panel of the First District has distinguished
Ocon
and indicated disagreement
with its reasoning.
People v. Carter
,
appearance has been removed from section 2-301. In its place, that section now states that a party may object to insufficient service by filing a motion to dismiss or to quash the service. 735 ILCS 5/2-301(a) (West 2010). If a party files a responsive pleading or substantive motion, it then waives all objections to personal jurisdiction. 735 ILCS 5/2-301(a-5) (West 2010). While, as Ocon noted, the provision is permissive, Ocon ignored the amendment removing the effect of a general appearance, which was done in order to prevent an unknowing waiver. Numerous assumptions can be made about the State’s silence that would not amount to a waiver of an objection to the improper service. Allowing the State’s mere presence in court to amount to a waiver would contradict the purpose of removing the general-appearance provision from section 2-301. Thus, under , absent a specific motion, responsive pleading, or explicit statement of a waiver of service, the State does not waive an objection to improper service. No such waiver occurred here. Accordingly, the State was not yet in default for failing to answer or otherwise plead, the 30 days for it to file a responsive pleading never commenced, and the trial court dismissed the petition prematurely. We note that there is nothing to prevent a trial court from asking the State on the record
whether it is willing to waive service. If so, the State, in open court, could affirmatively accept *7 the improper service or waive proper service. Thereafter, upon the State’s timely filing of a response, or otherwise upon the expiration of the 30 days for such filing, the trial court could rule on the merits of the section 2-1401 petition. III. CONCLUSION The trial court prematurely dismissed the petition. Accordingly, the judgment of the
circuit court of Lake County is vacated and we remand for further proceedings. Vacated and remanded.