                      Nos. 2-08-0875 & 2-09-0759 cons. Filed: 9-10-10
______________________________________________________________________________

                                               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. 05--CF--2260
                                       )
TIMOTHY D. KANE,                       ) Honorable
                                       ) Victoria A. Rossetti,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       Defendant, Timothy D. Kane, entered an open guilty plea to escape (720 ILCS 5/31--6(c)

(West 2004)). He was sentenced as a Class X offender (see 730 ILCS 5/5--5--3(c)(8) (West 2004))

to 20 years in prison. The trial court denied his motion to reconsider his sentence. On appeal, we

remanded the cause for compliance with Supreme Court Rule 604(d) (210 Ill. 2d R. 604(d)) (People

v. Kane, No. 2--07--1274 (2008) (unpublished order under Supreme Court Rule 23)). On remand,

defendant's motion to reconsider his sentence was denied, and he appealed (appeal No. 2--08--0875).

       Defendant then petitioned under section 2--1401 of the Code of Civil Procedure (Code) (735

ILCS 5/2--1401 (West 2008)), alleging that, in sentencing him, the trial court had relied on grand jury

testimony that was later proved false. On the State's motion, the trial court "dismissed" the petition.

Defendant appealed (appeal No. 2--09--0759). We consolidated the appeals.
Nos. 2--08--0875 & 2--09--0759 cons.


        On appeal, defendant argues that he is entitled to a new sentencing hearing because the trial

court relied on inaccurate grand jury testimony in sentencing him. We affirm the judgment in the

direct appeal. We vacate the dismissal of the section 2--1401 petition, and we remand the cause.

                                       Appeal No. 2--08--0875

        On January 3, 2007, defendant entered an open guilty plea to escape. The factual basis was

as follows. On August 20, 2004, defendant was arrested for burglary and retail theft and he was

driven to jail for bond court. While defendant waited in a police car, an officer opened the car door

for him. Defendant knocked the officer to the ground and fled. He was not found until May 28,

2005.

        As later corrected, the presentencing investigation report, filed February 2, 2007, revealed that

defendant had a lengthy criminal record. We note the most serious offenses. In 1992, defendant was

sentenced to 24 months' probation for unlawfully possessing cannabis. In 1993, he pleaded guilty to

two counts of residential burglary, admitted violating his probation for the cannabis offense, and

received concurrent three-year prison sentences for the three offenses. In November 1994, he was

placed on mandatory supervised release (MSR), which was discharged in August 1995. In February

1997, defendant was sentenced to four years in prison for theft and six years for residential burglary.

In June 1999, he was placed on MSR for both offenses, but, in 2000, he was sentenced to 18 months

in prison for unlawful possession of a controlled substance. In March 2001, defendant was sentenced

to two years in prison for unlawful possession of a controlled substance. In October 2002, he was

sentenced to two years in prison for theft. In March 2004, he was placed on MSR. In November

2005, in Wisconsin, he pleaded no contest to retail theft, criminal damage to property, and two counts

of bail jumping.



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Nos. 2--08--0875 & 2--09--0759 cons.


       In jail, defendant was placed into segregation in August 2006 for threatening another inmate

and in December 2006 for fighting with another inmate. Defendant reported that he had used heroin

daily since age 29 until 2005; that he had used cocaine from age 18 until 2005; and that, in 1989, he

received inpatient drug therapy but did not follow it up with outpatient treatment.

       On March 21, 2007, the trial court held a sentencing hearing. The parties stipulated that the

police officers who had appeared before the grand jury in case Nos. 04--CF--3093 and 06--CF--62

would testify as they had in the prior proceedings. In the latter case, on February 1, 2006, Lake

County sheriff's deputy Raymond Gilbert testified that, on January 7, 2006, he was dispatched to a

trailer park to investigate suspected drug activity. Gilbert engaged in a high-speed chase of a truck

that defendant was driving. Later, Gilbert entered a hotel room, where defendant was hiding under

a bed. When Gilbert and Deputy Paavilainen tried to arrest defendant, he resisted. Before the grand

jury, the prosecutor asked Gilbert, "[Defendant] picked you up and threw you on the ground?"

Gilbert responded, "Yes." Further, Gilbert testified, defendant placed his hand on the holster of

Paavilainen's gun and touched the gun's handle. Paavilainen sustained various injuries.

       Defendant's sister testified that he was a good person who became a different person when

he used drugs. Defendant submitted photographs showing his injuries from the fray with Gilbert and

Paavilainen. In allocution, defendant apologized to the officer from whom he escaped, expressed

remorse, and explained that, at the time, he had been undergoing heroin withdrawal.

       In argument, the State stressed the facts of defendant's escape and delayed apprehension;

Gilbert's grand jury testimony; and that defendant had committed 10 different felonies since 1992, was

on bond when he escaped, had failed to take advantage of probation, and was recalcitrant during his

latest stretch in jail. The State urged a 25-year sentence. Defendant argued that his substance abuse

problem was a mitigating factor. He requested a sentence between 10 and 12 years.

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Nos. 2--08--0875 & 2--09--0759 cons.


       The trial judge explained her decision as follows. Defendant had had 10 or 11 felony

convictions since 1992 and was facing charges in Wisconsin. The grand jury testimony showed that,

in case No. 04--CF--3093, defendant was arrested for theft at a mall and had to be pepper sprayed.

In case No. 06--CF--62, he led police on a high-speed chase and tried to put his hand on the holster

of an officer's gun. In the present case, he escaped while he was on bond. Most of defendant's

problems had stemmed from his drug needs. He had expressed remorse and taken responsibility by

pleading guilty. However, over the previous 14 years, he had squandered his opportunities to change,

instead feeding his addictions. The court sentenced defendant to 20 years in prison and recommended

placement where drug and alcohol treatment would be available.

       Defendant moved to reconsider the sentence and also filed pro se motions for new counsel

and to withdraw the guilty plea. At a hearing, defendant personally argued his motion for new

counsel. He asserted that his trial counsel had been ineffective for stipulating to the grand jury

testimony. He explained that, contrary to Gilbert's testimony, he never "threw the officer" or "picked

the officer up and threw him across the room like [defendant] was super human [sic]." The judge

stated that she had considered that defendant had led the police on a high-speed chase, struggled with

them, and "put [his] hand on the holster of the police officer"; she had also considered the mitigating

evidence. The trial court denied all of defendant's postjudgment motions.

       On appeal, we held that defendant's attorney had not complied with Supreme Court Rule

604(d) (210 Ill. 2d R. 604(d)). We vacated the postjudgment proceedings and remanded for

compliance with Rule 604(d). People v. Kane, No. 2--07--1274 (2008) (unpublished order under

Supreme Court Rule 23). On August 15, 2008, defendant moved both to withdraw the guilty plea

and to reconsider the sentence. On September 17, 2008, the trial court denied the motions,

essentially for the same reasons as before. Defendant timely appealed.

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Nos. 2--08--0875 & 2--09--0759 cons.


                                      Appeal No. 2--09--0759

       On March 25, 2009, defendant filed a section 2--1401 petition alleging the following. Before

the grand jury, Gilbert testified that, on January 8, 2006, defendant picked him up and threw him to

the ground. At defendant's sentencing hearing, the prosecutor emphasized this testimony and the

judge considered it. However, Gilbert's testimony was perjured, as shown by his deposition of

September 26, 2008, in a federal case. Defendant's petition attached the transcript of his sentencing

hearing and a partial transcript of the hearing on his motion to reconsider his sentence. It also

attached a portion of Gilbert's deposition, including the following questions and answers about his

grand jury testimony:

               "Q. Okay. Do you recall that one of the questions was whether when you and Deputy

       Paavilainen attempted to arrest Mr. Kane, he struggled with you, and your answer was yes?

               A. Yes.

               Q. There is a question that was asked of you that says he picked you up and threw you

       on the ground. This is on page 4.

               A. Yes.

               Q. And you answered yes.

               A. Yes.

               Q. Did that, in fact, occur?

               A. No. I believe I misinterpreted the question as when Timothy Kane carried

       us--when I say--we were holding on to [sic] him and he dragged or carried us out to the front

       is what I was saying yes to.

               Q. Okay. So there was never a time when Timothy Kane was completely free and

       grabbed you, lifted you up and threw you?

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Nos. 2--08--0875 & 2--09--0759 cons.


             A. No, no.

             Q. You were asked [whether] during the struggle with Deputy Paavilainen the

      defendant placed his hand on the holster of Deputy Paavilainen's gun, and you answered yes?

             A. Yes.

             Q. Did you actually see that occur?

             A. I did not.

             Q. Okay. Is that based on your discussion with Deputy Paavilainen after the incident?

             A. Yes.

             Q. When did you have that conversation?

             A. That was sometime right after. I don't exactly recall.

             Q. And what did Deputy Paavilainen tell you?

             A. He had said that *** he saw Timothy Kane's hand on his gun, which is why he

      drew his baton.

             Q. And then the next question *** says, 'And he also touched the handle of Deputy

      Paavilainen's gun during the struggle,' and you answered, 'Yes. He did': is that correct?

             A. Yes. Yes.

             Q. And that also is based on information that Deputy Paavilainen provided you in a

      conversation after the incident?

             A. Yes.

             Q. Was anybody else present during the course of that conversation?

             A. Not that I recall, no.

             Q. Okay. But you didn't see those events occur?

             A. No."

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Nos. 2--08--0875 & 2--09--0759 cons.


        The case was assigned to the judge who had sentenced defendant. The State responded to

the section 2--1401 petition with a "Motion to Dismiss or Otherwise Deny" the petition. The motion

did not specify the section(s) of the Code under which it was brought. It did not explicitly contend

that the petition failed to state a cause of action (see 735 ILCS 5/2--615 (West 2008)); that it was

barred for any reason listed in section 2--619(a) of the Code (735 ILCS 5/2--619(a) (West 2008));

or that there was no genuine issue of material fact and that the State was therefore entitled to

summary judgment (see 735 ILCS 5/2--1005(c) (West 2008)). Instead, the motion set out various

assertions, many overlapping, which we summarize as follows: (1) the petition was untimely; (2) the

petition did not allege a constitutional violation; (3) the alleged inconsistencies in Gilbert's testimony

were too slight to invalidate the sentence; and (4) the alleged impropriety did not affect the length of

defendant's sentence.

        The court held a hearing on the State's motion. Defendant contended that the transcripts of

the sentencing hearing and the hearing on his motion to reconsider showed that the judge had

considered the Gilbert incident as a factor in sentencing. Defendant reiterated that the State's use of

testimony that it knew or should have known was false denied him a fair sentencing hearing. He

argued that Gilbert had perjured himself before the grand jury. The assistant State's Attorney said

nothing of consequence, other than reiterating some of the allegations of the State's motion.

        The trial court issued a written order granting the State's motion. The order explained that

the judge had based defendant's sentence on all of the aggravating and mitigating factors. Also, it

reasoned, defendant exaggerated both the importance of Gilbert's testimony and its inconsistency with

his deposition: regardless of whether defendant had actually picked Gilbert up and thrown him,

defendant had struggled with the officers, and the mere fact that Gilbert did not himself see defendant

touch Paavilainen's gun did not prove that he had not done so. Thus, any inaccuracy had not affected

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Nos. 2--08--0875 & 2--09--0759 cons.


defendant's sentence. The order "dismissed" the petition but did not specify the legal ground for

doing so. Defendant timely appealed.

                                            ANALYSIS

       On appeal, defendant contends that his sentence must be vacated, and the cause remanded for

a new sentencing hearing, because the trial court violated due process by basing the sentence in part

on Gilbert's inaccurate grand jury testimony. Defendant does not clearly distinguish between the two

judgments on appeal, which, whatever their commonalities, have differing procedural backgrounds.

In appeal No. 2--08--0875, we review the denial of defendant's motion to reconsider his sentence.

In appeal No. 2--09--0759, we review the "dismissal" of defendant's section 2--1401 petition.

Because the appeals arise from separate actions, we consider them separately.

       In appeal No. 2--08--0875, defendant contends that the trial court abused its discretion in

denying his motion to reconsider his sentence. A trial court's ruling on a motion to reconsider

sentence will not be disturbed absent an abuse of discretion. People v. Reyes, 338 Ill. App. 3d 619,

621 (2003). We see no abuse of discretion here.

       In moving to reconsider his sentence, defendant asserted that his altercation with Gilbert did

not occur quite as Gilbert had described it. According to defendant, he did not actually throw Gilbert

across the room. In denying defendant's motion to reconsider his sentence, the trial judge explained

that she had considered the full circumstances of the encounter, including the high-speed chase, the

physical struggle, and the fact that defendant had tried to take a gun away from Gilbert's partner. We

note that the judge also considered--indeed, emphasized--the seriousness of the offense for which

defendant was being sentenced, defendant's long criminal record, and his failure to take advantage

of chances to rehabilitate himself. We cannot see how the court abused its discretion by discounting



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Nos. 2--08--0875 & 2--09--0759 cons.


defendant's unsworn assertion that his confrontation with Gilbert did not occur quite as Gilbert had

described it. Therefore, we affirm the denial of defendant's motion to reconsider his sentence.

        We turn to the trial court's dismissal of defendant's section 2--1401 petition. In the argument

section of his brief, defendant does not distinguish between the denial of his motion to reconsider his

sentence and the dismissal of his section 2--1401 petition. Indeed, he treats the section 2--1401

petition as, in essence, a second motion to reconsider his sentence. Defendant does not discuss the

requirements for a section 2--1401 petition or whether he met those requirements. The State also

treats the petition as, in essence, a second motion to reconsider his sentence.

        This conflation of the two proceedings is improper. A motion to reconsider a sentence comes

after a final judgment in an ongoing case (see People v. Caballero, 102 Ill. 2d 23, 51 (1984) (final

judgment in a criminal case is the sentence)). A section 2--1401 petition, by contrast, is a new

proceeding, not a continuation of the case that resulted in the judgment that it challenges. Sarkissian

v. Chicago Board of Education, 201 Ill. 2d 95, 102 (2002). The distinction between a postjudgment

motion and a brand-new action is not arcane, and it might be crucial on appeal. Yet neither brief

recognizes that basic distinction. A section 2--1401 proceeding is a civil remedy that extends to

criminal as well as civil cases, and such proceedings are subject to the usual rules of civil practice.

Like a complaint in a civil proceeding, " 'the petition may be challenged by a motion to dismiss for

its failure to state a cause of action or if, on its face, it shows that the petitioner is not entitled to

relief.' " People v. Vincent, 226 Ill. 2d 1, 8 (2007), quoting Klein v. La Salle National Bank, 155 Ill.

2d 201, 205 (1993). The motion filed and the arguments made by the State did not conform to the

requirements of a proper motion to dismiss under the Code. To some extent, this neglect of

procedure is understandable, if not excusable. At the trial level, the parties and the court were

similarly indifferent to procedural specifics. The State's motion "to dismiss or deny" defendant's

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Nos. 2--08--0875 & 2--09--0759 cons.


petition did not state on what ground(s) the petition was insufficient; it cited no section(s) of the

Code at all. Defendant did not file a response to the motion. At the hearing on the motion, he did

not request clarification of the ground(s) on which the State moved to deny him relief. Finally, in the

judgment, the trial court cited no statutory ground for "dismissing" the petition.

          To dispose of this appeal, we conclude that the judgment "dismissed" the petition under

section 2--615 of the Code (735 ILCS 5/2--615 (West 2008)) for failing to state a claim upon which

relief can be granted. We see no other provision in the Code that fits what the trial court did.

          A complaint should be dismissed under section 2--615 only if it appears that no set of facts

could be proved that would entitle the plaintiff to recover. Seith v. Chicago Sun-Times, Inc., 371 Ill.

App. 3d 124, 133 (2007). Our review is de novo. Vincent, 226 Ill. 2d at 14; Seith, 371 Ill. App. 3d

at 133.

          In deciding a section 2--615 motion, a court is confined to matters within "the four corners

of the complaint" (Krueger v. Lewis, 342 Ill. App. 3d 467, 471 (2003)) and its attachments. Seith,

371 Ill. App. 3d at 133. Here, it does not appear that the trial court so limited itself. The judge who

sentenced defendant also presided over the section 2--1401 proceeding. From the written judgment,

it appears that the judge relied heavily on her own recollection of the sentencing hearing and the

hearing on defendant's motion to reconsider his sentence. At this stage of the proceedings, that

reliance was improper. On our de novo review, confining our inquiry to the petition and the

attachments, we cannot say that no set of facts could ever be proved that would entitle defendant to

relief. Although the allegations of perjury and prejudice might appear strained, we cannot say that

they could never be proved. Defendant should be given the opportunity to proceed further on the

petition. Therefore, we vacate the order dismissing the petition, and we remand the cause. Of

course, we express no opinion on the ultimate merits of the petition.

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Nos. 2--08--0875 & 2--09--0759 cons.


       For the foregoing reasons, we affirm the judgment in appeal No. 2--08--0875, and we vacate

the judgment in appeal No. 2--09--0759 and remand the cause.

       No. 2--08--0875, Affirmed.

       No. 2--09--0759, Vacated and remanded.

       ZENOFF, P.J., and HUTCHINSON, J., concur.




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