                            No. 2--04--0230                filed:11/7/06
_____________________________________________________________________

                                          IN THE

                           APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_____________________________________________________________________

THE PEOPLE OF THE STATE           ) Appeal from the Circuit Court
OF ILLINOIS,                      ) of Kane County.
                                  )
     Plaintiff-Appellee,          )
                                  )
v.                                ) No. 98--CF--29
                                  )
CHARLES E. WHITNEY,               ) Honorable
                                  ) Donald C. Hudson,
     Defendant-Appellant.         ) Judge, Presiding.
_____________________________________________________________________

       JUSTICE KAPALA delivered the opinion of the Court:

       Defendant, Charles E. Whitney, appeals from the judgment of the circuit court of

Kane County denying his postjudgment petition brought pursuant to section 2--1401 of the

Code of Civil Procedure (Code) (735 ILCS 5/2--1401 (West 2004)). Defendant requests

that we reverse the trial court's judgment and that we remand the cause to the circuit court

for further proceedings on his petition. We affirm.

                                    I. BACKGROUND

       In October 1998, defendant pleaded guilty to one count of home invasion (720 ILCS

5/12--11 (West 1996)) and was sentenced to 17 years' imprisonment and 3 years'

mandatory supervised release. On July 1, 2003, defendant filed a pro se petition for

postjudgment relief pursuant to section 2--1401 of the Code. In his petition, defendant

maintained that a conflict between the day-for-day good-conduct credit in section 3--6--3
No. 2--04--0230


of the Unified Code of Corrections (730 ILCS 5/3--6--3 (West 1998)) and his three-year

term of mandatory supervised release (730 ILCS 5/5--8--1(d) (West 1998)) resulted in a

void judgment in violation of his rights under the United States and Illinois Constitutions.

Defendant asked the trial court to "issue a corrected mittimus of eleven (11) years, as

opposed to the seventeen (17) years." On July 18, 2003, the State filed a motion to

dismiss, the sole contention of which was that the petition was filed beyond the two-year

limitations period (735 ILCS 5/2--1401(c) (West 2004)) and, therefore, was untimely. The

State's motion did not address the merits of defendant's petition.

       On February 3, 2004, defendant appeared pro se and the court convened the

proceedings as follows:

              "THE COURT: 98--C--29. People versus Charles Whitney; Counsel, for the

record?              MR. SAMS [Assistant State's Attorney]: Greg Sams.

              THE COURT: Okay. Matter is up this afternoon for the Court's ruling

       following a Petition that Mr. Whitney had filed pro se, seeking relief from the plea

       agreement that he had earlier entered into. The Prosecution then filed a Notice [sic]

       to Dismiss Mr. Whitney's Petition, and the Court asked that Mr. Whitney be brought

       to the courtroom this afternoon for the Court's ruling, in person.

              ***

              Mr. Whitney, I've read the Petition[,] I've done the legal research into this.

Under the     case law, under basic notes [sic] of fairness, you would have the right to add

              anything in addition that you would like me to consider. Is there anything in

              addition that you want to present to the Court, beside the Petition and the

              cases that you've already presented?


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              THE DEFENDANT: No, sir."

       Thereafter, the trial court reiterated that the "[m]atter comes before the Court for the

Court's decision and ruling on the Defendant's Petition for Post Judgment relief pursuant

to 735 ILCS, 5/2--1401." The court then discussed, at some length, the characteristics of

a section 2--1401 petition before noting that the State had moved to dismiss the

defendant's petition as untimely. In denying the motion to dismiss, the trial court observed

that defendant's petition raised a claim that the judgment was void and, therefore, the

usual two-year limitations period of section 2--1401 was inapplicable. The trial court

proceeded to "entertain the allegation under other well-settled legal analysis," that is, the

trial court ruled on the merits of defendant's petition.       The trial court analyzed the

substance of defendant's petition and found that it lacked merit. The trial court denied

defendant's petition and advised defendant of his right to appeal. Defendant filed this

timely appeal challenging the manner in which the trial court disposed of his petition.

                                      II. DISCUSSION

       As a preliminary matter, we address the State's contention that defendant's

argument is moot because he has been released from incarceration. The validity of a

sentence becomes a moot question after the sentence is served. People v. Elizalde, 344

Ill. App. 3d 678, 681 (2003). Although defendant is no longer incarcerated, he is currently

serving a term of supervised release that does not terminate until December 2008. A

defendant's term of supervised release is considered part of his sentence. Elizalde, 344

Ill. App. 3d at 681. Defendant's sentencing claim, therefore, is not moot.

       The State argues that, because this is a collateral action, it does not raise the same

"policy concerns" that would be present if this were a direct appeal from the trial court's


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No. 2--04--0230


sentencing order. The State neither identifies these "policy concerns" nor cites any

authority to support this claim. This contention, devoid as it is of argument or citation to

authority, is waived. See Official Reports Advance Sheet No. 21 (October 17, 2001), R.

341(e)(7), eff. October 1, 2001. Accordingly, we turn to the substance of defendant's

argument on appeal.

       Defendant argues that the trial court's dismissal of his petition on the ground that

it lacked merit was "fundamentally unfair" because the State's motion to dismiss raised

only timeliness concerns and so defendant "was not given notice that the merits would be

at issue." Defendant relies on two cases from this district, People v. Gaines, 335 Ill. App.

3d 292 (2002), and People v. Pearson, 345 Ill. App. 3d 191 (2003), both of which set limits

on how the trial court may dispose of a section 2--1401 petition.

       In Gaines, the defendant filed a section 2--1401 petition to which he attached an

affidavit from a woman who averred that certain of her statements that were used against

the defendant at trial were coerced by the police. Gaines, 335 Ill. App. 3d at 293. On the

date set for hearing on the defendant's petition, the State filed what was deemed a motion

to dismiss. Gaines, 335 Ill. App. 3d at 293-94. The defense was not served with a copy

before the hearing on the petition, and the trial judge who presided at the hearing was not

the judge who had presided at the defendant's trial. Gaines, 335 Ill. App. 3d at 293-94.

The State argued at the hearing that the woman's statements in her affidavit did not differ

from the statements used at trial and, therefore, did not constitute newly discovered

evidence. Gaines, 335 Ill. App. 3d at 294. The assistant public defender who appeared

for the defendant advised the court that he was unprepared to argue against the State's

motion to dismiss, because he had received no prior notice of it. Gaines, 335 Ill. App. 3d


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at 294. The trial court accepted the State's argument and granted the State's motion.

Gaines, 335 Ill. App. 3d at 295.

         This process, we found, was "seriously flawed." Gaines, 335 Ill. App. 3d at 296.

We explained that, unlike a postconviction petition filed under the Post-Conviction Hearing

Act (725 ILCS 5/122--1 et seq. (West 2004)), "[a] section 2--1401 petition is akin to the

complaint in a civil action, and to challenge the petition, the opponent must either move to

dismiss it or file an answer." Gaines, 335 Ill. App. 3d at 296. "[B]asic notions of fairness,"

we said, "dictate that the defendant be afforded notice of, and an opportunity to respond

to, any motion or responsive pleading by the State." Gaines, 335 Ill. App. 3d at 296. We

found:

         "Defendant's attorney was not given adequate notice of the motion and did not have

         a meaningful opportunity to respond. This was particularly unfair in this case as the

         State based its argument, in part, on evidence at trial even though the judge who

         heard the State's motion had not presided over the trial and was not familiar with the

         evidence. *** [D]efendant should have had an opportunity to respond to the State's

         factual representations about what occurred at trial." Gaines, 335 Ill. App. 3d at

         296.

         In Pearson, the trial court dismissed the defendant's section 2--1401 petition without

any responsive pleading from the State and without any hearing. We considered this "a

complete abrogation of the adversary process" because "[b]asic notions of fairness dictate

that defendant be afforded the same notice and opportunity to respond that he would have

had if the State had filed a motion to dismiss." Pearson, 345 Ill. App. 3d at 195.




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       Here, in contrast to Gaines and Pearson, the State filed a motion to dismiss, and

defendant was afforded notice of, and an opportunity to respond to, that motion.

Defendant's contention, therefore, is not that he was denied a meaningful opportunity to

address a point raised in the State's motion, as happened in Gaines. Nor is his contention

that the trial court summarily dismissed the petition, as happened in Pearson. Rather,

defendant's contention is that, because the State's motion to dismiss claimed only that the

petition was untimely, the trial court erred in dismissing the petition on the merits.

       Defendant has mischaracterized the trial court's ruling in this case as a dismissal

of his section 2--1401 petition when, in fact, the trial court denied his petition on the merits.

The record shows that at the outset of the proceeding on February 3, 2004, the trial court

explained that the matter was up for a ruling on (1) defendant's petition, and (2) the State's

motion to dismiss defendant's petition. After offering defendant an opportunity to present

any additional matters that he wanted the court to consider, the trial court once again

stated that the matter was up for the court's ruling on defendant's petition. After explaining

its rationale for rejecting the argument defendant asserted in his petition, the trial court

stated, in a most positive manner, that "the Defendant's Motion [sic] is denied." Moreover,

the trial court's written order of February 3, 2004, provides that "[defendant's] petition for

relief under 735 ILCS 5/2--1401 is denied, for the reasons stated on the record." If the trial

court had acted upon the State's motion to dismiss, as defendant suggests, the court would

have entered an order granting the State's motion rather than denying relief to defendant.

In fact, the trial judge stated, "the Court is not going to dismiss the Defendant's Petition

because it was not filed in the statutory time period."




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No. 2--04--0230


         The dissent accepts defendant's argument, which is based upon the faulty premise

that the trial court dismissed his petition. In our view, however, on February 3, 2004, the

trial court conducted a simultaneous hearing on both the State's motion to dismiss and

defendant's section 2--1401 petition. The result of that proceeding was the denial of the

State's motion to dismiss followed by the denial of defendant's section 2--1401 petition on

its merits.

         On appeal, defendant does not argue that there was anything inherently wrong with

conducting a simultaneous hearing on the State's motion and his petition.               This is

understandable considering his mischaracterization of the trial court's ruling. Nevertheless,

any argument that the trial court erred in conducting a simultaneous hearing is waived

(Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1,

2001).

         Defendant also waived the simultaneous-hearing issue when he, unlike the

defendant in Gaines, failed to pose any objection in the trial court. At the beginning of the

proceeding on February 3, 2004, the trial court stated that the matter was up for the court's

ruling on both "a petition that [defendant] had filed pro se" and the State's "Notice [sic] to

dismiss [defendant's] petition." Defendant was thereby expressly put on notice that the trial

court intended to rule on both matters that day.            Defendant posed no objection.

Additionally, before ruling on both matters, the trial court reiterated that the "[m]atter comes

before the Court for the Court's decision and ruling on Defendant's Petition for Post

Judgement relief pursuant to 735 ILCS 5/2--1401," advising defendant in no uncertain

terms that the court was about to address the merits of the petition. Again, defendant

posed no objection. " ' "An accused may not sit idly by and allow irregular proceedings to


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No. 2--04--0230


occur without objection and afterwards seek to reverse [the judgment] by reason of those

same irregularities." ' [Citations.]" People v. Bull, 185 Ill. 2d 179, 200 (1998).

       Not only did defendant not object when the trial court announced that both matters

would be addressed, defendant forwent the opportunity to participate in the hearing when

he declined the trial court's offer to present evidence or further argument in support of his

petition. The trial court informed defendant that "[u]nder the case law, under basic notes

[sic] of fairness, you would have the right to add anything in addition that you would like me

to consider" and then asked defendant, "Is there anything in addition that you want to

present to the Court, beside[s] the Petition and the cases that you've already presented?"

This was defendant's opportunity to present evidence and to further address the merits of

his petition. As indicated, defendant declined. We conclude that defendant's express

decision to stand on his petition at the hearing rather than present evidence or further legal

argument, and his failure to object to the simultaneous hearing, constituted acquiescence

to the joint proceeding. We note that it is permissible for a petitioner to waive any

obligation a respondent may have to file an answer to a section 2--1401 petition. See

Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill. App. 3d 416,

419 (2005).

       We are mindful that defendant has argued, in a general manner, that the

proceedings in the trial court were fundamentally unfair because he was not given notice

that the merits would be at issue. As we explained above, at the beginning of the

proceeding on February 3, 2004, the trial court informed defendant that it intended to rule

on his petition that day. There is nothing in the record to indicate that defendant had prior

notice of the purpose of the February 3, 2004, hearing. However, by the time he was


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No. 2--04--0230


transported to the circuit court, he had knowledge that he had filed a section 2--1401

petition and that the State had filed a motion to dismiss his petition. We note specifically

that defendant was not advised that the only purpose for this hearing was to address the

State's motion to dismiss. In any event, on February 3, 2004, after being informed that

both the State's motion to dismiss and his petition were before the court, defendant posed

no objection to any lack of prior notice and, as indicated above, acquiesced in the

simultaneous proceeding.

       Defendant relies heavily on Gaines to support his position. However, Gaines is

inapposite. First, in contrast to the situation in Gaines, where the State's motion to dismiss

was filed on the same day it was heard, in our case the State's motion to dismiss was filed

6½ months before the February 3, 2004, hearing. Second, the defense in Gaines objected

to proceeding with the hearing on the motion to dismiss, while in this case defendant

acquiesced in the hearing. Finally, in Gaines the State's motion to dismiss was granted,

while the State's motion to dismiss in the instant cause was denied. Gaines teaches that

fundamental notions of fairness are violated where a trial court grants a motion to dismiss

a defendant's section 2--1401 petition and the defendant did not have adequate notice or

a meaningful opportunity to be heard. Gaines, 335 Ill. App. 3d at 296. Here, however,

defendant had both notice of the motion to dismiss and an opportunity to be heard on that

motion, which in any event was denied.

       Defendant's acquiescence to the trial court reaching the merits of his petition is

understandable in view of the fact that the argument he advanced in his petition was purely

a legal one. Thus, it stands to reason that defendant deemed it unnecessary to call any

witnesses or to present any other evidence at the hearing. Moreover, putting aside the


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merits of the argument, defendant's pro se petition is a well-written, coherent, 12-page

document complete with accurate citations to pertinent statutes and case law. Thus, it is

also understandable that defendant chose to stand on the legal arguments and authorities

within his petition and declined the opportunity to argue the merits further.

                                      III. CONCLUSION

       Defendant does not contend on appeal that the trial court's analysis of the merits

of his petition was deficient. In fact, defendant's position is that the cause should be

remanded without regard to the merits of the underlying claim. Consequently, having

found no unfairness in the proceedings on defendant's section 2--1401 petition, we affirm

the judgment of the circuit court of Kane County denying defendant's petition.

       Affirmed.

       CALLUM, J., concurs.

       JUSTICE O' MALLEY, dissenting:

       In Gaines, this court stated that, unlike a postconviction petition filed under the Post-

Conviction Hearing Act (725 ILCS 5/122--1 et seq. (West 2004)), "[a] section 2--1401

petition is akin to the complaint in a civil action, and to challenge the petition, the opponent

must either move to dismiss it or file an answer." Gaines, 335 Ill. App. 3d at 296. Once

the implications of Gaines' statement for section 2--1401 procedures are realized, it

becomes clear that a trial court cannot sua sponte address the merits of a defendant's

section 2--1401 petition, as the trial court did here.

       If, as Gaines instructs, a section 2--1401 petition is akin to a civil complaint, then a

motion to dismiss that attacks the petition as untimely is akin to a motion to dismiss under




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section 2--619 of the Code (735 ILCS 5/2--619 (West 2004)). Section 2--619(a)(5)

provides in relevant part:

              "Defendant may, within the time for pleading, file a motion for dismissal of the

       action or for other appropriate relief upon any of the following grounds. If the

       grounds do not appear on the face of the pleading attacked the motion shall be

       supported by affidavit:

                                            ***

                     (5) That the action was not commenced within the time limited by law."

              735 ILCS 5/2--619(a)(5) (West 2004).

Section 2--619 allows for a dismissal under different theories from section 2--615 of the

Code (735 ILCS 5/2--615 (West 2004)). A section 2--615 motion attacks the legal

sufficiency of the plaintiff's claims, while a section 2--619 motion admits the legal

sufficiency of the claims but raises defects, defenses, or other affirmative matter, appearing

on the face of the complaint or established by external submissions, that defeat the action.

Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 278 (2004). " 'Motions made

pursuant to section 2--619 of the Code must be limited to the grounds enumerated therein.

[Citations.] Failure to state a cause of action is not such an enumerated ground, but is

instead a basis for a section 2--615 motion.' " AG Farms, Inc. v. American Premier

Underwriters, Inc., 296 Ill. App. 3d 684, 688 (1998), quoting Universal Underwriters

Insurance Co. ex. rel Manley Ford, Inc. v. Long, 215 Ill. App. 3d 396, 399 (1991).

Confusing a section 2--615 motion to dismiss with a section 2--619 motion to dismiss may

have "severe" consequences and "should not be countenanced" by trial judges. Rowan

v. Novotny, 157 Ill. App. 3d 691, 693 (1987).


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       In Rowan, the defendant filed a motion to dismiss, purportedly under section 2--619,

which raised several contentions, among them that the plaintiff failed to state a cause of

action. The trial court granted the motion to dismiss without specifying any reasons for the

dismissal or citing the specific statutory section under which the dismissal was made. On

appeal, the defendant defended the dismissal by arguing that the plaintiff's complaint failed

to state a cause of action. The appellate court held that this argument was never properly

before the trial court because it was "not [an] argument[] to be advanced through a section

2--619 motion but rather through a section 2--615 motion." Rowan, 157 Ill. App. 3d at 694.

The court explained:

       "It would be improper and unjust to allow the defendant to attack the complaint after

       failing to file a proper motion pointing out specifically the defects complained as

       required by [section 2--615] because the purpose of the statute is to give the plaintiff

       an opportunity to respond to the objection and to cure the defect in the trial court."

       Rowan,157 Ill. App. 3d at 694.

       Given the parallels between a motion to dismiss a civil complaint under section 2--

619 and a motion to dismiss a section 2--1401 petition not on the merits of the petition but

only on an affirmative matter such as timeliness, the impropriety of the trial court's

procedure here is clear. Defendant, faced with a motion to dismiss that raised only

timeliness issues, had a right to expect that the merits of his claim would not be addressed

at the hearing on that motion to dismiss, just as a plaintiff in a civil action would not expect

the trial court to raise issues about the legal sufficiency of his claims in addressing a

section 2--619 motion to dismiss. The trial court, I conclude, erred in reaching the

substance of defendant's petition.


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       The majority does not acknowledge my points here but rules against defendant

largely by finding his claims procedurally defaulted. The majority applies notions of

"waiver" and "acquiescence" but not persuasively. First, the majority suggests, rather

strangely, that defendant's argument "is based upon the faulty premise that the trial court

dismissed his petition" rather than "conducted a simultaneous hearing on both the State's

motion to dismiss and [his] *** petition," and that I have bought into defendant's erroneous

assumption by accepting his argument. Slip op. at 7. The majority proceeds to find that,

because defendant has not attacked the legitimacy of that "simultaneous hearing," he has

waived any challenge to that hearing. Slip op. at 7. The majority's claim bewilders me.

I do not know why defendant would be arguing, and I agreeing, that the trial court erred in

reaching the merits of his petition unless we both believed that the trial court actually

reached the merits of his petition through a "simultaneous hearing" and then rejected those

merits. The "faulty premise" I see at work here is the majority's belief that defendant has

not argued on appeal that the trial court erred in reaching the merits of his petition.

       Second, the majority finds waiver for the additional reason that defendant failed to

object in the trial court to the simultaneous hearing. I do not share the majority's comfort

with using waiver to defeat the claims of a pro se criminal defendant under section 2--1401,

particularly where, as here, the State has not argued waiver and the defendant's

arguments on appeal implicate rights that we so zealously defended in Gaines and

Pearson.

       The majority alternatively finds that defendant acquiesced in the simultaneous

hearing by declining the opportunity given him by the trial court to present any additional

matter on the petition before the trial court ruled on it. Even if (as I dispute) the trial court


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had authority to address sua sponte the merits of defendant's petition, the procedure

employed by the trial court still was deficient. What the trial court in essence did was

(using the Gaines analogy again) invoke section 2--615 on its own initiative to dismiss

defendant's petition. A section 2--615 motion "shall point out specifically the defects

complained of." 735 ILCS 5/2--615(a) (West 2004). The trial court did not identify any

defects in defendant's petition before asking if he wanted to add anything regarding the

petition. The trial court did, of course, subsequently identify several defects in the petition,

but the court proceeded to dismiss the petition without affording defendant an opportunity

to address the alleged deficiencies. The trial court's unsolicited venture into the merits of

defendant's petition no more complied with section 2--615 than would a procedure in which

the State filed a motion, purportedly under section 2--615, that made no assertions but

simply asked defendant if had anything to add to his petition and the trial court immediately

granted the motion, with or without any stated reasons, and provided defendant no

opportunity to respond.1

       The majority asserts that "it is permissible for a petitioner to waive any obligation a

respondent may have to file an answer to a section 2--1401 petition," and cites as authority

Dealer Management Systems. Dealer Management Systems, however, does not state any




       1
           It might be argued that the trial court could have cured any prejudice to defendant in the

handling of his petition by allowing him to amend the petition to cure the defects identified by the

court. The record does not show whether the dismissal of the petition was with prejudice. However,

the trial court's stance toward a potential amendment may be reflected in the fact that it informed

defendant of his appellate rights immediately after announcing the dismissal of the petition.

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No. 2--04--0230


such general rule, and its facts, which the majority neglects even to mention, are unlike

what occurred here. In Dealer Management Systems, the plaintiff filed a section 2--1401

petition seeking to vacate the dismissal of his complaint. The plaintiff set the petition for

a hearing on a particular day. The defendant neither answered the petition nor moved to

strike it. On the day set for the hearing, the trial court entered an order denying the

petition. The plaintiff appealed, arguing that, because the defendant failed to answer the

petition or move to strike it, its allegations must be taken as true. We disagreed, noting

that our supreme court rules state that a party served with a section 2--1401 petition is

entitled to notice that it must answer or otherwise respond to the petition within 30 days

after service of the petition. Dealer Management Systems, 355 Ill. App. 3d at 419. We

noted that, because the record did not indicate when the plaintiff served the petition, we

could not determine whether the defendant's time to answer had expired when the trial

court denied the petition. We also observed that the notice served by the plaintiff did not

inform the defendant that it was required to respond to the petition. We concluded that the

plaintiff waived the requirement that the defendant answer or otherwise respond to the

petition. Dealer Management Systems, 355 Ill. App. 3d at 419.

       I fail to see any relevant similarities between Dealer Management Systems and the

present case. Defendant does not suggest that this court should take the allegations of

his petition as true; rather, he argues that the trial court had no authority to reach the merits

of his claims given the scope of the State's challenge. There is also no suggestion that

defendant failed to comply with the rules pertaining to the service of a section 2--1401

petition, a breach of which was the basis for the finding of waiver in Dealer Management




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Systems. Not only is Dealer Management Systems factually distinguishable, but the case

gives no rule by which waiver might be applied in contexts different than its own.

       Rather than dispense with defendant's claims on dubious grounds of procedural

default, the majority ought to reach the vital issue that begs for resolution: whether the trial

court's action was consistent with the civil complaint/section 2--1401 analogy that drove our

decisions in Pearson and Gaines.

       I should also note that a harmless-error analysis is not applicable here. In Pearson

we refused to apply a harmless-error analysis, because the trial court's summary dismissal

of the defendant's section 2--1401 petition was "a fundamentally incorrect form of

proceeding." Pearson, 345 Ill. App. 3d at 196. We explained:

       "[W]e can conduct harmless-error analysis only by examining fundamentally proper

       proceedings and considering whether, if we removed the effect of an error, we

       would obtain the same result. Where the error is that the proceedings were of

       fundamentally the wrong kind, we cannot speculatively recreate the right

       proceedings to determine what should have been the result. A section 2--1401

       petition invokes an adversarial proceeding brought under the Code. Despite the

       predictability of the ultimate dismissal of this petition, we think that the procedure

       by which the trial court dismissed it was simply too far removed from what

       defendant was entitled to for us to review the matter as if defendant had been given

       notice and an opportunity to answer." Pearson, 345 Ill. App. 3d at 196.

       Because the dismissal of defendant's petition in the present case was based on an

error analogous to confusing a section 2--615 motion to dismiss with a section 2--619




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motion to dismiss, the dismissal was "a fundamentally incorrect form of proceeding" to

which harmless-error analysis does not apply.




                                         -17-
