                                     2015 IL 117709



                                        IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS



                                   (Docket No. 117709)

          THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KELVIN
                             CARTER, Appellee.


                             Opinion filed December 3, 2015.



        JUSTICE KARMEIER delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and
     Theis concurred in the judgment and opinion.



                                        OPINION

¶1       This case comes before the court from an appellate court decision holding that
     remand is required “because the circuit judge’s sua sponte dismissal of
     [defendant-petitioner’s] petition for relief from judgment on the merits was
     premature given that the petition was not properly served on the State.” 2014 IL
     App (1st) 122613, ¶ 1. For the following reasons, we reverse the judgment of the
     appellate court.
¶2                                     BACKGROUND

¶3        Following a bench trial in the circuit court of Cook County, defendant, Kelvin
     Carter, was found guilty of the 2002 murder of Edmond Allen. Identification
     evidence was supplied by four occurrence witnesses. The circuit court ultimately
     imposed a 20-year prison sentence in addition to a 25-year enhancement, which
     was statutorily mandated because of the court’s determination that defendant had
     personally discharged a firearm during the commission of the crime. The court had
     initially sentenced defendant to a 30-year term of imprisonment, but immediately
     amended its determination, imposing the 20-year minimum instead after realizing
     that defendant was subject to the enhancement. The appellate court affirmed
     defendant’s conviction and sentence in 2006 (People v. Carter, No. 1-04-1385
     (2006) (unpublished order under Illinois Supreme Court Rule 23)) and this court
     denied leave to appeal (People v. Carter, 221 Ill. 2d 647 (2006) (table)).

¶4       Thereafter, defendant filed a pro se postconviction petition alleging, inter alia,
     that he was denied the effective assistance of trial counsel, and that the State had
     engaged in multiple instances of prosecutorial misconduct. Defendant’s petition
     was summarily dismissed, the circuit court finding it frivolous and patently without
     merit. The appellate court affirmed (People v. Carter, No. 1-07-2160 (2009)
     (unpublished order under Illinois Supreme Court Rule 23)) and this court denied
     leave to appeal (People v. Carter, 233 Ill. 2d 570 (2009) (table)).

¶5        On May 9, 2012, defendant mailed a “Motion to Vacate Judgment” in which he
     argued that the 25-year firearm enhancement to his sentence was void because the
     trial court only found him guilty of murder. Defendant also argued that the trial
     court was bound by its initial statement of 30 years’ imprisonment regardless of the
     statutorily required enhancement. Defendant attached a “Proof/Certificate of
     Service” to his pleading, alleging that he placed it in the “institutional mail” at the
     Menard Correctional Center. He listed as addressees, the “Clerk of Court” and
     “State’s Atty. Office,” both of “2650 S. California Avenue,” Chicago, Illinois. The
     record shows a copy of defendant’s pleading was stamped “received” by the circuit
     clerk on May 15, 2012. It was docketed on May 29, 2012, to be called on June 5,
     2012.

¶6       The circuit court called the matter on June 5, 2012, but the record of
     proceedings indicates that only the judge and court reporter were present. A docket
     entry on that date evinces the circuit court’s quizzical assumption that defendant

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     intended the pleading as a petition pursuant to section 2-1401 of the Code of Civil
     Procedure (735 ILCS 5/2-1401 (West 2012)). The docket and transcript for that
     date show that the case was scheduled for “court review” on July 10. On July 10,
     the court dismissed the petition on the merits. The cover page of the transcript of
     proceedings indicates that an assistant State’s Attorney was present in the
     courtroom when the court announced that defendant’s “2-1401 petition is
     dismissed,” but the transcript does not show that the assistant State’s Attorney took
     any action. In a written order entered July 10, the circuit court recited the law
     applicable to section 2-1401 proceedings and concluded with this observation and
     finding:

        “[P]etitioner contends that his firearm enhancement is void because the court
        did not find him guilty of personally discharging the firearm but only found him
        guilty of first degree murder. However, petitioner was found guilty of count
        two of his indictment which states that Kelvin Carter, without lawful
        justification shot and killed Edmond Allen while armed with a firearm,
        knowing that such an act created a strong probability of death or great bodily
        harm to Edmond Allen.” (Emphasis in original.)

     Neither party filed a postjudgment motion in the circuit court; thus, issues of
     sufficiency of service and notice to the State were never addressed.

¶7       In the words of the appellate court, on appeal, defendant-petitioner argued “that
     this court must remand this case to the circuit court because the court’s sua sponte
     dismissal of his section 2-1401 petition on the merits was premature, given that the
     petition was not properly served on the State.” 2014 IL App (1st) 122613, ¶ 8. The
     appellate court observed: “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.’ ” Id.

¶8       The appellate court noted that the State’s response was two-fold. First, because
     an assistant State’s Attorney was in court at the time that the petition was
     dismissed, and thus had actual knowledge of the petition, the State waived
     improper service by not objecting to it. As such, the petition 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. Id. ¶¶ 9, 16. Second, alternatively, the

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       State suggested, “it is not clear from the record on appeal that defendant’s service
       did not comply with the requirements of Rule 105(b).” Id. ¶ 13.

¶9         The appellate court rejected the latter suggestion, stating: “the record clearly
       shows” that petitioner’s proof of service indicated “he attempted to serve the State
       by placing the documents in the institutional mail at the Menard Correctional
       Center *** for mailing through the United States Postal Service.” (Internal
       quotation marks omitted.) The appellate court continued, in a conclusive and
       dispositional vein: “There is nothing in the record that contradicts this information,
       nor does either party offer anything ***.” Id. ¶ 14.

¶ 10        Then, without speaking to the merits of defendant’s petition—which defendant
       apparently never argued—or the substance of the circuit court’s ruling thereon, the
       appellate court reversed and remanded for further proceedings, holding that the
       circuit court erred in prematurely dismissing petitioner’s section 2-1401 petition
       sua sponte before the petition had been properly served on the State. Id. ¶ 25. The
       court reasoned that result was dictated by our decisions in People v. Vincent, 226
       Ill. 2d 1 (2007), and People v. Laugharn, 233 Ill. 2d 318 (2009):

          “Because Laugharn and Vincent demand that we base our determination as to
          whether the circuit court prematurely sua sponte dismissed a section 2-1401
          petition by looking at the date of service, it necessarily follows that proper
          dismissal, either with or without prejudice, cannot be achieved without service
          ***. See Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24;
          Vincent, 226 Ill. 2d at 5.” 2014 IL App (1st) 122613, ¶ 25.

¶ 11       Having rejected the State’s arguments in opposition to reversal, the appellate
       court determined that the appropriate disposition was to vacate the judgment of the
       circuit court—which had found defendant’s petition lacked merit—and remand for
       further proceedings (id. ¶ 26).



¶ 12                                       ANALYSIS

¶ 13      We review de novo the dismissal of a section 2-1401 petition (Vincent, 226 Ill.
       2d at 18), the interpretation of court rules (In re Thomas, 2012 IL 113035, ¶ 56),
       and questions of law generally (People v. Williams, 188 Ill. 2d 365, 368-69 (1999)).


                                               -4-
¶ 14       At the outset, we note that Illinois Supreme Court Rule 106 governs the
       methods of notice to be used for petitions filed pursuant to section 2-1401,
       providing that “[n]otice of the filing of a petition under section 2–1401 *** shall be
       given by the same methods provided in Rule 105.” Ill. S. Ct. R. 106 (eff. Aug. 1,
       1985). Rule 105(b) states that notice may be served, inter alia, by certified or
       registered mail. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Once notice has been served,
       the responding party has 30 days to file an answer or otherwise appear. Ill. S. Ct. R.
       105(a) (eff. Jan. 1, 1989).

¶ 15       As appellate panels have aptly noted, the notice requirements of Rule 105 are
       designed to prevent a litigant from obtaining new or additional relief without first
       giving the defaulted party a renewed opportunity to appear and defend. People v.
       Saterfield, 2015 IL App (1st) 132355, ¶ 20. “ ‘The object of process is to notify a
       party of pending litigation in order to secure his appearance.’ ” People v. Kuhn,
       2014 IL App (3d) 130092, ¶ 11 (quoting Professional Therapy Services, Inc. v.
       Signature Corp., 223 Ill. App. 3d 902, 910 (1992)). Some courts in this context
       have suggested, in construing the sufficiency of the notice, that courts should focus
       on whether the object and intent of the law were substantially attained rather than
       the formal and technical requirements. See id.; People v. Ocon, 2014 IL App (1st)
       120912, ¶ 23.

¶ 16       In Vincent—where neither proper service on the State nor actual notice were at
       issue—this court held that sua sponte dismissals of section 2-1401 petitions are
       proper, on the merits, where the State does not answer or otherwise plead within the
       applicable 30-day period. In Vincent, we stated that the State’s failure to answer the
       petition, “constituted an admission of all well-pleaded facts *** and rendered
       Vincent’s petition ripe for adjudication.” Vincent, 226 Ill. 2d at 9-10.

¶ 17       Subsequently, in Laugharn—where neither proper service on the State nor
       actual notice were at issue—we held that petitioner’s section 2-1401 petition was
       not “ripe for adjudication.” (Internal quotation marks omitted.) Laugharn, 233 Ill.
       2d at 323. Noting that “[o]nly seven days had passed since [the petition’s] filing,”
       this court found that “[t]he circuit court’s dismissal short-circuited the proceedings
       and deprived the State of the time it was entitled to answer or otherwise plead.” Id.
       In short, this court acknowledged that the 30-day period for response, specified in
       Rule 105, was for the State’s benefit, and that the circuit court’s sua sponte ruling
       on the petition before the State had an opportunity to respond constituted the


                                                -5-
       deprivation of an entitlement inuring to the respondent-State—not the
       defendant-petitioner.

¶ 18       In this case, the defendant’s argument in the appellate court, and the appellate
       court’s disposition, were premised upon the assumption that defendant’s service on
       the State was deficient for failure to strictly comply with Rule 105, and that
       defendant’s error in that regard rendered the circuit court’s dismissal of defendant’s
       petition premature. We have examined the record and now conclude it does not
       affirmatively demonstrate there was deficient service.

¶ 19        This court has long recognized that to support a claim of error, the
       appellant—in this case the defendant in the appellate court—has the burden to
       present a sufficiently complete record such that the court of review may determine
       whether there was the error claimed by the appellant. In re Marriage of Gulla, 234
       Ill. 2d 414, 422 (2009). Without an adequate record preserving the claimed error,
       the court of review must presume the circuit court’s order conforms with the law.
       Id.; see also In re Jonathon C.B., 2011 IL 107750, ¶ 72 (“This court presumes that a
       trial judge knows and follows the law unless the record affirmatively indicates
       otherwise.”); People v. Gaultney, 174 Ill. 2d 410, 420 (1996) (same). “Any doubts
       which may arise from the incompleteness of the record will be resolved against the
       appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984).

¶ 20       In this case, the claimed error, which is premised on allegedly deficient service,
       was not addressed at all in the circuit court, by either party. The issue was first
       raised by defendant on appeal, as a means to obtain remand after his petition was
       dismissed by the circuit court on the merits. Thus, there is no meaningful record
       from the circuit court to be reviewed. What scant record there is consists of a
       statement in the proof of service defendant attached to his petition: “I have placed
       the documents listed below in the institutional mail at Menard Correctional Center,
       properly addressed to the parties listed above for mailing through the United States
       Postal Service.” To serve as a basis for defendant’s contention of error, that
       statement must affirmatively establish that defendant mailed his petition via some
       means other than certified or registered mail. However, all it establishes is where
       defendant mailed his petition—“the institutional mail”—and the medium through
       which it was to be transmitted: “the United States Postal Service.” The appellate
       court’s assumption that the language of the proof of service affirmatively



                                               -6-
       established transmittal by regular mail, and thus deficient service (see 2014 IL App
       (1st) 122613, ¶ 14), is unwarranted on this record. 1

¶ 21       In their briefs, the parties debate the significance of what defendant sees as
       shifting positions the State has taken in the course of the appellate process with
       respect to whether defendant’s service was or was not deficient. Defendant, of
       course, readily concedes deficient service on the State. Since his position is
       premised on deficient service, it is obviously in his interest to do so. As we have
       noted, the State’s arguments in the appellate court were in the alternative. First,
       because an assistant State’s Attorney was in court at the time that the petition was
       dismissed, and thus had actual knowledge of the petition, the State waived
       improper service by not objecting to it. Id. ¶¶ 9, 16. Second, the State suggested “it
       is not clear from the record on appeal that defendant’s service did not comply with
       the requirements of Rule 105(b).” Id. ¶ 13. We see no impropriety in the State’s
       arguments in the alternative. The State has taken a similar approach in argument
       before this court. Defendant insists that the State conceded in its petition for leave
       to appeal that there was improper service in this case. As defendant points out, there
       is a statement in the body of the petition wherein the State arguably concedes that
       the defendant served the State via regular mail, though the State claims there was
       no concession, that the State “simply referenced the fact that the appellate court so
       held by citing to the appellate court’s own conclusions.”

¶ 22       We mention this debate only to acknowledge that we have considered the point
       raised by defendant. Irrespective of the parties’ arguments, the record is what it is,
       and, in our view, it is insufficient to demonstrate the service deficiency that
       defendant must establish in order to advance his argument. As far as any arguable
       concession is concerned, it is well established that we, as a court of review, are not
       bound by a party’s concession. Beacham v. Walker, 231 Ill. 2d 51, 60-61 (2008).

¶ 23      As noted, without an adequate record preserving the claimed error, we, as a
       court of review, must presume the circuit court’s order conforms with the law. In re
       Gulla, 234 Ill. 2d at 422. Applying that principle in this case, we cannot assume that
           1
             Defendant suggests that “[a]s an indigent, pro se petitioner incarcerated at a state correctional
       facility, [he] lacks the access to the methods of service required by Rule 105(b)” “an obstacle this
       Court recognized in its amendment to Rule 12, allowing proof of service by affidavit or certification
       of deposit in the institutional mail.” Defendant acknowledges, however, that “[t]he proof of service
       addressed by Rule 12 is distinct from the method of service, which is addressed in Rule 105(b).”
       (Emphases added.) We note that the record in this case is inadequate to demonstrate that inmates in
       correctional facilities lack the means to comply with the service requirements of Rule 105(b).

                                                       -7-
       defendant’s service upon the State was deficient. Though the regular return receipt
       for certified mail—for example—is sufficient proof of service by certified mail
       (see In re Dar C., 2011 IL 111083, ¶ 63 (citing 705 ILCS 405/2-16(1) (West
       2006))), the absence of such a receipt in the record does not affirmatively establish
       that service by certified mail was not accomplished, as it is up to the sender to file
       the receipt or not. In this case, the matter of service—adequate or deficient—was
       simply not addressed by the parties in the circuit court.

¶ 24       What we can discern from the record is that well over 30 days had passed since
       the filing of defendant’s petition when the circuit court dismissed defendant’s
       petition, sua sponte, on the merits. Defendant’s pleading was stamped received by
       the circuit clerk on May 15, 2012, docketed on May 29, 2012, and dismissed on
       July 10, 2012. An assistant State’s Attorney was in attendance and voiced no
       objection when the circuit court announced, in open court, that defendant’s “2-1401
       petition is dismissed.” A written order was then prepared and filed that same day,
       outlining the court’s reasoning for the dismissal. No party filed a posttrial motion.
       A notice of appeal was timely filed by defendant listing, on the notice of appeal, the
       Cook County State’s Attorney as a recipient thereof. In sum, nothing in this record
       affirmatively establishes that the State was not given proper notice or that the
       circuit court’s sua sponte dismissal was premature. It was defendant’s burden, as
       the appellant below, to so show. On this record, we must presume the circuit court’s
       order was rendered in accordance with the applicable law.

¶ 25       To be sure, we encourage circuit courts to ascertain and note of record the date
       the State was properly served, and to time any sua sponte rulings on pending
       petitions accordingly. That said, however, any section 2-1401 petitioner who seeks
       to use, on appeal, his own error, by way of allegedly defective service, in an effort
       to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the
       merits, must affirmatively demonstrate the error via proceedings of record in the
       circuit court.

¶ 26       For the foregoing reasons, the judgment of the appellate court is reversed, and
       the judgment of the circuit court is affirmed.



¶ 27      Appellate court judgment reversed.

¶ 28      Circuit court judgment affirmed.

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