                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Maiden, 2013 IL App (2d) 120016




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JUAN M. MAIDEN, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-12-0016


Filed                      June 18, 2013


Held                       An incarcerated defendant’s affidavit that he timely placed his notice of
(Note: This syllabus       appeal in the prison mail was sufficient to comply with the notice
constitutes no part of     requirement and gave the appellate court jurisdiction over his appeal from
the opinion of the court   the trial court’s sua sponte denial of his petition filed under section 2-
but has been prepared      1401 of the Code of Civil Procedure, and in the absence of anything in
by the Reporter of         the record showing that the State filed a specific motion to dismiss or any
Decisions for the          other responsive pleadings or motions before the trial court dismissed
convenience of the         defendant’s petition, save the State’s argument that the trial court could
reader.)
                           sua sponte dismiss the petition, the 30-day period for the State to file a
                           responsive pleading never commenced and the sua sponte dismissal was
                           vacated as premature, and the cause was remanded for further
                           proceedings.


Decision Under             Appeal from the Circuit Court of Lake County, No. 97-CF-2369; the
Review                     Hon. James K. Booras, Judge, presiding.



Judgment                   Vacated and remanded.
Counsel on                 Peter A. Carusona and Santiago A. Durango, both of State Appellate
Appeal                     Defender’s Office, of Ottawa, for appellant.

                           Michael G. Nerheim, State’s Attorney, of Waukegan (Lawrence M. Bauer
                           and Sally A. Swiss, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE McLAREN delivered the judgment of the court, with opinion.
                           Presiding Justice Burke and Justice Spence concurred in the judgment
                           and opinion.



                                             OPINION

¶1          Defendant, Juan M. Maiden, 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)). He contends that under People v.
        Prado, 2012 IL App (2d) 110767, the trial court acted prematurely and that we should vacate
        the dismissal and remand for further proceedings. The State contends that we lack
        jurisdiction because defendant failed to show that he timely mailed his notice of appeal. We
        determine that we have jurisdiction, vacate the dismissal, and remand for further
        proceedings.

¶2                                        I. BACKGROUND
¶3          In May 1998, defendant was convicted of two counts of aggravated criminal sexual
        assault (720 ILCS 5/12-14(a)(2) (West 1994)). On February 9, 1999, he was sentenced to two
        consecutive 20-year prison terms. Defendant’s convictions were affirmed on appeal. People
        v. Maiden, 318 Ill. App. 3d 545 (2001); People v. Maiden, No. 2-99-0306 (2000)
        (unpublished order under Supreme Court Rule 23).
¶4          On April 4, 2011, defendant filed a petition for relief from judgment. Defendant included
        notices indicating that the petition was served on the State’s Attorney by regular mail. On
        May 26, 2011, the State informed the trial court that it never received a copy of the petition.
        The court, on its own motion, allowed an extension of 30 days for the State to file a
        responsive pleading or motion.
¶5          On June 27, 2011, the State informed the court that it was not going to file anything and
        told the court that, under People v. Vincent, 226 Ill. 2d 1 (2007), the court could rule sua
        sponte on the petition. There was no specific motion to dismiss. On July 15, 2011, the court
        sua sponte dismissed the petition on the merits. Defendant moved for reconsideration and,
        on November 16, 2011, the court denied the motion.


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¶6          Defendant filed a notice of appeal, which was file-stamped on December 21, 2011.
       Defendant included a notarized certificate, which stated that he put his notice in the mail at
       the prison on December 13, 2011, properly addressed for mailing to the State’s Attorney and
       the clerk of the court through the United States Postal Service. However, he did not state that
       it included proper prepaid postage. The record does not contain an envelope for the filing.

¶7                                          II. ANALYSIS
¶8          Defendant contends that the trial court improperly dismissed his petition on the merits
       sua sponte. The State contends that this court lacks jurisdiction because defendant did not
       properly comply with Illinois Supreme Court Rule 12(b)(3) (eff. Dec. 29, 2009), rendering
       his appeal untimely. Specifically, the State notes that defendant did not state in his certificate
       that his notice of appeal was sent with proper prepaid postage.
¶9          “A timely filed notice of appeal is necessary to establish this court’s jurisdiction.” People
       v. Lugo, 391 Ill. App. 3d 995, 997 (2009). Here, because defendant’s notice of appeal was
       received after the deadline, it was timely if defendant satisfied Illinois Supreme Court Rule
       373 (eff. Dec. 29, 2009). That rule states:
                “Unless received after the due date, the time of filing records, briefs or other papers
            required to be filed within a specified time will be the date on which they are actually
            received by the clerk of the reviewing court. If received after the due date, the time of
            mailing *** shall be deemed the time of filing. Proof of mailing *** shall be as provided
            in Rule 12(b)(3). This rule also applies to the notice of appeal filed in the trial court.” Ill.
            S. Ct. R. 373 (eff. Dec. 29, 2009).
       Illinois Supreme Court Rules 12(a) and (b)(3) provide:
                “(a) Filing. When service of a paper is required, proof of service shall be filed with
            the clerk.
                (b) Manner of Proof. Service is proved:
                                                  ***
                (3) in case of service by mail ***, by certificate of the attorney, or affidavit of a
            person other than the attorney, who deposited the paper in the mail ***, stating the time
            and place of mailing ***, the complete address which appeared on the envelope ***, and
            the fact that proper postage *** was prepaid[.]”
¶ 10        Proof of mailing under Rule 12(b)(3) is required for filing by mail under Rule 373. See
       People v. Hansen, 2011 IL App (2d) 081226, ¶ 11. “ ‘If there is no proof of mailing on file,
       there is nothing in the record to establish the date the document was timely mailed to confer
       jurisdiction on the appellate court.’ ” Id. (quoting Secura Insurance Co. v. Illinois Farmers
       Insurance Co., 232 Ill. 2d 209, 216 (2009)).
¶ 11        We have previously discussed the requirements of Rule 12(b)(3) in connection with the
       question of whether a postmark may provide sufficient proof of mailing in the absence of an
       affidavit certifying when a notice of appeal was mailed. For example, divided panels of this
       court have held both that a postmark is not sufficient proof of mailing (Lugo, 391 Ill. App.
       3d at 1003) and that a postmark is sufficient proof (Hansen, 2011 IL App (2d) 081226, ¶ 15).

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       But we have not addressed a circumstance such as this where an affidavit of mailing is
       present and all that is missing is a statement that proper postage was affixed to the envelope.
       The postmark cases, however, provide some guidance.
¶ 12        In Lugo, a panel of this court observed that, under the plain language of Rule 373, proof
       of mailing “shall” be as provided in Rule 12(b)(3). Lugo, 391 Ill. App. 3d at 998. Because
       “ ‘[g]enerally, use of the word “shall” indicates a mandatory obligation unless the statute
       indicates otherwise,’ ” the panel held that, under the plain language of Rule 373, proof of
       mailing must comply with Rule 12(b)(3). Id. (quoting People v. Thomas, 171 Ill. 2d 207, 222
       (1996)). The panel also observed that it did not have the authority to excuse the filing
       requirements of the supreme court rules governing appeals. Id. at 1003 (citing Secura, 232
       Ill. 2d at 218). Thus, the panel determined that a postmark was insufficient proof of mailing
       because Rule 12(b)(3) requires a certificate or affidavit of mailing and there was not one
       present in that case. However, the panel also noted that the issue of what constitutes a
       mailing was not before it and specifically stated that it expressed no opinion on the matter
       of whether an incarcerated litigant’s documents are considered mailed when they are placed
       in the hands of prison staff or only when they are placed in a United States Post Office
       receptacle. Id. at 1002-03.
¶ 13        In Hansen, a panel of this court determined that a postmark is competent evidence of
       mailing. Hansen, 2011 IL App (2d) 081226, ¶ 13. The Hansen panel noted that, if there is
       a legible postmark, it is the most competent evidence of mailing and an affidavit or
       certificate of mailing is immaterial if the postmark indicates that the filing under the mailbox
       rule was timely. Id. ¶ 14. Although Hansen did not address a situation such as the instant
       case, where the fact of proper postage was not included, it did discuss a policy concern that
       is applicable, stating:
            “Rule 12(b)(3) requires a ‘certificate of the attorney, or affidavit of a person other than
            the attorney, who deposited the paper in the mail.’ Ill. S. Ct. R. 12(b)(3) (eff. Nov. 15,
            1992). An inmate can mail nothing himself; he is required to place outgoing mail in the
            hands of the staff at the institution in which he is incarcerated. See Lugo, 391 Ill. App.
            3d at 1006 (McLaren, J., dissenting). The staff then forwards the mail to the United
            States Postal Service. We cannot conclude that our supreme court intended that the
            Illinois Department of Corrections staff must execute an affidavit pursuant to Rule
            12(b)(3) for every legal filing by a pro se inmate, nor can we conclude that a defendant
            must depend on a third party other than the post office to timely deal with the delivery
            of his mail.” Id. ¶ 15.
¶ 14        This view is supported by older case law from the Fourth District, which has allowed a
       certificate of service in which a prisoner stated that he filed documents by “ ‘placing the
       same in the institutional mail at the Menard Correctional Center this 31 [sic] day of Dec.
       1991, to be processed as per procedure, and delivered to the addressee via United States
       Mail.’ ” People v. Johnson, 232 Ill. App. 3d 882, 883 (1992). Noting that an incarcerated
       party cannot control the movement of the document after it is placed in the institutional mail,
       the court held that the certificate was sufficient to establish the date of mailing. Id. at 884;
       see also People v. Smith, 2011 IL App (4th) 100430, ¶ 16 (observing that Rule 12(b)(3) is
       liberally construed to accommodate incarcerated defendants). Likewise, we have cited

                                                 -4-
       Johnson and held that a notarized proof of service was sufficient when it stated that a
       document was placed in the prison mail on a specific date and an attached affidavit stated
       that the defendant timely submitted the petition. People v. Saunders, 261 Ill. App. 3d 700,
       701-02 (1994).
¶ 15        We agree with the positions taken in Johnson and Saunders. An incarcerated defendant’s
       lack of control over the placement of postage is further evinced by the administrative
       regulations of the Department of Corrections, which discuss the use of prisoner trust fund
       accounts to pay for postage. They provide that offenders are permitted to send reasonable
       amounts of legal mail, even with insufficient funds in their accounts to cover postage, if they
       provide signed vouchers authorizing deductions of future funds to cover the cost of the
       postage. 20 Ill. Adm. Code 525.130(a) (2003).
¶ 16        Here, unlike in Lugo and Hansen, we are not faced with a complete lack of evidence of
       mailing other than a postmark. Instead, defendant executed a notarized certificate stating that
       he timely placed the notice of appeal in the prison mail. Although this case would have been
       made easier had the clerk of the court kept the mailing envelope in the record, and we ask
       that clerks do so in the future, we find defendant’s actions to be sufficient.1 Defendant did
       all that he could do, which was to place the mail in the hands of the prison staff, at which
       point he was dependent on their actions to place it into the United States mail. Defendant
       could not aver that the prison staff placed proper postage on it after he relinquished it to their
       control. At best, he could aver only that he timely placed it in the prison mail, which is what
       he did. Accordingly, we determine that defendant’s notarized certificate was sufficient to
       show timely mailing, and we have jurisdiction over the appeal.
¶ 17        Having determined that there is jurisdiction, the next question is whether the trial court
       could dismiss the petition sua sponte on the merits when the State had not filed an answer.
       Defendant concedes that the petition was not properly served, because he sent it by regular
       mail, but he argues that, under Prado, the dismissal was premature and the cause must be
       remanded for further proceedings. The State disagrees, arguing that, unlike in Prado, it
       specifically waived service.
¶ 18        “Section 2-1401 provides a comprehensive civil procedure that allows for the vacatur of
       a final judgment older than 30 days.” Prado, 2012 IL App (2d) 110767, ¶ 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. (quoting People v. Nitz, 2012 IL App (2d) 091165, ¶ 9). “While
       the petition must be filed in the same proceeding in which the judgment was entered, it is not
       a continuation of that proceeding.” Id.; see 735 ILCS 5/2-1401(b) (West 2010). “The petition
       must be supported by affidavit or other appropriate showing as to matters not contained in
       the record.” Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing 735 ILCS 5/2-1401(b) (West 2008)).
       “All parties to the petition shall be notified as provided by rule.” Id. (citing 735 ILCS 5/2-


               1
                Defendant’s “Motion for Court to Take Judicial Notice That All Correspondence from
       Inmates in the Illinois Department Of Corrections Is Affixed with Proper Prepaid Postage,” filed in
       this court on May 24, 2013, is hereby denied.

                                                  -5-
       1401(b) (West 2008)). “The rule referred to in section 2-1401(b) is Illinois Supreme Court
       Rule 106 (eff. Aug. 1, 1985), which provides that notice of the filing of a section 2-1401
       petition shall be given by the same methods provided in Illinois Supreme Court Rule 105
       (eff. Jan. 1, 1989) for giving notice of additional relief to parties in default.” Id. “Under Rule
       105, the notice shall be directed to the party and must be served either by summons, by
       prepaid certified or registered mail, or by publication.” Prado, 2012 IL App (2d) 110767, ¶ 6
       (citing Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989)). “The notice must state that a judgment by
       default may be taken against the party unless he files an answer or otherwise files an
       appearance within 30 days after service.” Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S.
       Ct. R. 105 (eff. Jan. 1, 1989)). “[B]ecause the trial court dismissed the petition based on the
       pleading alone, our review is de novo.” Id.
¶ 19        In People v. Vincent, 226 Ill. 2d 1, 11-19 (2007), our supreme court held that a trial court
       may properly dismiss a section 2-1401 petition on the merits sua sponte and without notice
       or an opportunity to be heard. The supreme court noted that such a ruling may properly be
       characterized as either a grant of judgment on the pleadings in favor of the State or a
       dismissal of the petition with prejudice for failure to state a cause of action. Id. at 12. The
       court further observed that, in the case of such a ruling, the defendant’s opportunity to be
       heard has not been compromised. The defendant had access to the courts, as his petition was
       filed and considered by the judge. Id. at 13. Further, the defendant is not deprived of the
       ability to bring a meritorious claim, because adequate procedural safeguards exist to remedy
       erroneous sua sponte dismissals. Id. For example, the defendant may file a motion for
       reconsideration or bring an appeal with a de novo review of the merits. Id. However, when
       the trial court dismisses an improperly served petition before the State has filed an answer,
       Nitz and Prado come into play.
¶ 20        In Nitz, the defendant’s proof of service showed that he mailed his section 2-1401
       petition to the circuit clerk for filing, but there was no proof of service on the State. Nitz,
       2012 IL App (2d) 091156, ¶ 5. The trial court sua sponte dismissed the petition on the merits.
       Id. ¶ 6. A panel of this court reasoned that the dismissal was proper, because a failure to give
       notice results in a deficient pleading. Id. ¶ 13. However, dismissal on the merits was
       premature, because the 30 days for the State to answer had not yet commenced. Id. ¶ 12. The
       panel then determined that a remand for further proceedings would be meaningless,
       reasoning that no further proceedings would occur, because the State would never answer or
       move to dismiss and the court would be unable to take action while the case remained on its
       docket permanently. Id. Thus, the panel concluded that the appropriate action was to dismiss
       without prejudice for a deficiency in complying with section 2-1401. Id. ¶ 13. Accordingly,
       it affirmed the dismissal, but modified the order to reflect that the dismissal was without
       prejudice. Id.
¶ 21        In Prado, we agreed with Nitz that a dismissal on the merits when there was improper
       service was premature, but disagreed that a dismissal without prejudice was the proper
       disposition. Instead, we agreed with a recent Fourth District opinion, which noted that
       remanding for further proceedings would not be meaningless or result in the case being
       permanently set on the trial court’s docket. Powell v. Lewellyn, 2012 IL App (4th) 110168,
       ¶ 14. In particular, we noted that, “[c]ontrary to the determination in Nitz, if defendant wishes

                                                  -6-
       to have his case heard, he can promptly serve the State.” Prado, 2012 IL App (2d) 110767,
       ¶ 9. “Otherwise, the trial court has the power to dismiss the case for want of prosecution,
       after a reasonable period of time.” Id. “Further, the action may be dismissed under Illinois
       Supreme Court Rule 103(b) (eff. July 1, 2007) if defendant fails to exercise reasonable
       diligence in serving the State.” Id. “In any event, an immediate, sua sponte dismissal, even
       without prejudice, is premature.” Id. Thus, we held that the appropriate disposition is to
       vacate and remand for further proceedings. Id. We specifically noted that “[s]hould the State
       wish to make the disposition of cases such as this one more efficient, the best course would
       be to waive an objection to the defective service. The action could then proceed normally
       through an adjudication on the merits.” Id. ¶ 12.
¶ 22        Here, the State specifically told the court that it did not intend to file anything. If the
       State’s action was a waiver of an objection to the improper service, then, under Vincent, the
       court could dismiss the petition on the merits. However, the State did not state that it was
       waiving service, appearing, and refusing to answer or otherwise plead. The intention “not to
       file anything” when one is not required to file anything (because it has not been properly
       served) is not sufficient.
¶ 23        Before 2000, a defendant seeking to contest the exercise of personal jurisdiction in the
       trial court was required to file a special appearance under section 2-301(a) of the Code,
       which at that time provided: “Prior to filing any other pleading or motion, a special
       appearance may be made *** for the purpose of objecting to the jurisdiction of the court over
       the person of the defendant. *** Every appearance, prior to judgment, not in compliance with
       the foregoing is a general appearance.” 735 ILCS 5/2-301(a) (West 1998).
¶ 24        At that time, it was well established that “ ‘any action taken by the litigant which
       recognizes the case as in court will amount to a general appearance unless such action was
       for the sole purpose of objecting to the jurisdiction.’ ” KSAC Corp. v. Recycle Free, Inc., 364
       Ill. App. 3d 593, 594 (2006) (quoting Lord v. Hubert, 12 Ill. 2d 83, 87 (1957)). “A general
       appearance was held to waive all objections to personal jurisdiction and subject the party to
       the authority of the court.” Id. However, the general appearance was eliminated in 2000 when
       section 2-301 was amended. See id. at 595.
¶ 25        Section 2-301 was amended effective January 1, 2000 (see Pub. Act 91-145 (eff. Jan. 1,
       2000)) and provides in part:
                “(a) Prior to the filing of any other pleading or motion other than a motion for an
            extension of time to answer or otherwise appear, a party may object to the court’s
            jurisdiction over the party’s person, either on the ground that the party is not amenable
            to process of a court of this State or on the ground of insufficiency of process or
            insufficiency of service of process, by filing a motion to dismiss the entire proceeding
            or any cause of action involved in the proceeding or by filing a motion to quash service
            of process. Such a motion may be made singly or included with others in a combined
            motion, but the parts of a combined motion must be identified in the manner described
            in Section 2-619.1. ***
                (a-5) If the objecting party files a responsive pleading or a motion (other than a
            motion for an extension of time to answer or otherwise appear) prior to the filing of a


                                                 -7-
            motion in compliance with subsection (a), that party waives all objections to the court’s
            jurisdiction over the party’s person.” 735 ILCS 5/2-301(a), (a-5) (West 2010).
¶ 26        Section 2-301 now contains an explicit waiver provision that is narrower than the prior
       rule that waiver occurred if a party made a general appearance. “By its terms, the statute now
       provides for waiver of an objection based on personal jurisdiction only if the party files a
       responsive pleading or a motion (other than one seeking an extension of time to answer or
       otherwise appear) before filing a motion asserting the jurisdictional objection.” (Internal
       quotation marks omitted.) OneWest Bank, FSB v. Topor, 2013 IL App (1st) 120010, ¶ 11.
       Notably, there is no provision that a general appearance results in waiver. Id.
¶ 27        Here, there were no responsive pleadings or motions filed. The State made no specific
       motion to dismiss. Instead, the State argued that the trial court could sua sponte dismiss the
       action under Vincent, an action that by its nature does not involve a motion to dismiss by the
       State. The trial court then later did so. The State attempts to characterize its statements to the
       trial court as a motion to dismiss, but the record shows nothing more than what might have
       been viewed as a general appearance under the older version of the Code. Absent a specific
       motion, responsive pleading, or explicit statement of a waiver of improper service and an
       affirmative statement that no motion or responsive pleading would be filed, the State did not
       waive an objection to the improper service and was not yet in default for failing to answer
       or otherwise plead. As a result, the 30 days for the State to file a responsive pleading never
       commenced, and the trial court acted prematurely when it dismissed the petition sua sponte.
       Accordingly, under Prado, we vacate the dismissal and remand for further proceedings.

¶ 28                                    III. CONCLUSION
¶ 29      We have jurisdiction over the appeal and determine that the trial court’s sua sponte
       dismissal of the petition was premature. Accordingly, we vacate the judgment of the circuit
       court of Lake County and remand for further proceedings.

¶ 30       Vacated and remanded.




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