                                  Illinois Official Reports

                                         Appellate Court



                              People v. Carter, 2014 IL App (1st) 122613



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      KELVIN CARTER, Defendant-Appellant.



District & No.               First District, Second Division
                             Docket No. 1-12-2613



Rule 23 Order filed          March 4, 2014
Rehearing denied             April 14, 2014
Modified upon
denial of rehearing          April 22, 2014



Held                         The trial court’s sua sponte dismissal of the petition defendant filed
(Note: This syllabus         under section 2-1401 of the Code of Civil Procedure challenging the
constitutes no part of the   firearm enhancement of his sentence for murder was reversed and the
opinion of the court but     cause was remanded on the ground that the dismissal was premature,
has been prepared by the     since defendant served the petition by regular mail, not by summons,
Reporter of Decisions        certified or registered mail or publication, as required by Supreme
for the convenience of       Court Rule 105(b), and although the prosecutor was in court, no
the reader.)                 formal waiver of service was entered on the record.



Decision Under               Appeal from the Circuit Court of Cook County, No. 02-CR-16884; the
Review                       Hon. Kevin M. Sheehan, Judge, presiding.



Judgment                     Judgment vacated; cause remanded for further proceedings.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, all
     Appeal                   of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                              Michelle Grimaldi Stein, Assistant State’s Attorneys, of counsel), for
                              the People.




     Panel                    JUSTICE PIERCE delivered the judgment of the court, with opinion.
                              Justices Simon and Liu concurred in the judgment and opinion.




                                                OPINION

¶1         Defendant appeals from the circuit court’s sua sponte dismissal of his petition under
       section 2-1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401 (West 2012)).
       He argues that this court must remand the case because the circuit judge’s sua sponte dismissal
       of his petition for relief from judgment on the merits was premature given that the petition was
       not properly served on the State. We agree and for the foregoing reasons, remand the cause to
       the circuit court for further proceedings.

¶2                                           BACKGROUND
¶3         Following a bench trial, defendant was convicted of the murder of Edmond Allen. This
       court upheld his conviction on appeal. People v. Carter, No. 1-04-1385 (Feb. 8, 2006)
       (unpublished order under Supreme Court Rule 23). Defendant’s subsequent postconviction
       petition was dismissed by the trial court and that dismissal was also affirmed. People v. Carter,
       No. 1-07-2160 (May 8, 2009) (unpublished order under Supreme Court Rule 23).
¶4         Defendant mailed his section 2-1401 petition, wherein he challenged his sentence for the
       murder, on May 9, 2012. Specifically, defendant argued that the 25-year firearm enhancement
       he received was void because the trial judge only found him guilty of general murder and his
       sentence would only be 30 years in prison because that was the initial statement from the
       judge.
¶5         The petition was file stamped by the clerk of the circuit court on May 15, 2012. The
       petition was first docketed on the trial call on June 5, 2012. The cover page of the transcript of
       the proceedings on June 5, 2014, reflects only the judge and the court reporter were present
       when the court stated, “Kelvin Carter filed a pro se motion to vacate a judgment. Order of
       Court to 7/10 for court review.”
¶6         On July 10, 2012, the trial judge dismissed the petition, stating that all of the counts of
       murder charged defendant with shooting and killing the victim with a firearm, and he
       concluded that the requisite findings had been made to impose the firearm enhancement. The
       transcript of the proceeding reflects the trial court stating, “[a]lso post-conviction petition


                                                   -2-
       2-1401 petition, Kelvin Carter, he’s on sheet one. Mr. Carter is not present, he’s in IDOC
       custody. His 2-1401 petition is dismissed. Copy of the written order in the file is to be sent to
       defendant by the clerk within ten days.” This is the full extent of the oral record regarding this
       petition on the date of dismissal. It is from this dismissal that defendant now appeals.

¶7                                              ANALYSIS
¶8          Defendant argues 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. 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.”
¶9          The State counters that defendant’s argument should be rejected because an assistant
       State’s Attorney was in court at the time the petition was dismissed and had actual knowledge
       of defendant’s section 2-1401 petition. The State waived improper service by not objecting to
       it. As such, the 30-day time limit commenced and the case 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.
¶ 10        Section 2-1401 provides a statutory procedure by which final orders, judgments, and
       decrees may be vacated after 30 days from their entry. People v. Vincent, 226 Ill. 2d 1, 7
       (2007). Pursuant to Illinois Supreme Court Rule 101(d) (eff. May 30, 2008), which governs
       section 2-1401 of the Civil Code, once a party files a petition for relief, the opposing party has
       30 days to answer the petition or otherwise plead. See also People v. Laugharn, 233 Ill. 2d 318,
       323 (2009).
¶ 11        Section 2-1401(b) requires “[a]ll parties to the petition [to] be notified as provided by rule.”
       735 ILCS 5/2-1401(b) (West 2012). Pursuant to Illinois Supreme Court Rule 106, notice of the
       filing of section 2-1401 petitions “shall be given by the same methods provided in Rule 105.”
       Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). According to Illinois Supreme Court Rule 105, service
       cannot be made by regular mail. Instead it must be served in the same manner as service by
       summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff.
       Jan. 1, 1989). We review the dismissal of a section 2-1401 petition de novo. People v. Vincent,
       226 Ill. 2d 1, 18 (2007).
¶ 12        In Vincent, our supreme court held that a trial court may sua sponte dismiss a section
       2-1401 petition without providing a defendant with notice or an opportunity to address the
       court, reasoning that because section 2-1401 proceedings are subject to the usual rules of civil
       procedure, when the State fails to answer a defendant’s petition the failure to answer
       constitutes an admission of all well-pleaded facts. Id. at 9-14. The Vincent court also held that
       the State’s failure to answer the petition rendered the case “ripe for adjudication.” Id. at 10.
       Subsequently, in Laugharn, 233 Ill. 2d at 323, our supreme court held that in a case where the
       State fails to answer a defendant’s petition, the case will not be ripe for adjudication until 30
       days have passed from the time of service. Id. Hence, a trial court may only properly sua
       sponte dismiss a section 2-1401 petition 30 days from the date of service. Id. Therefore, in
       accordance with Vincent and Laugharn, we look to the date of service to determine whether the


                                                     -3-
       trial court properly sua sponte dismissed defendant’s section 2-1401 petition. See Ill. S. Ct. R.
       105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24.
¶ 13        Defendant argues that the State was not properly served because defendant placed the
       petition for mailing with the United States Post Office and therefore the petition was not ripe
       for adjudication when the court dismissed it. The State counters that it is not clear from the
       record on appeal that defendant’s service did not comply with the requirements of Rule 105(b).
¶ 14        We agree with defendant that the State was not properly served in this case. Contrary to the
       State’s argument, the record clearly shows that in defendant’s “Proof/Certificate of Service” he
       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.” There is nothing in the record that contradicts this information,
       nor does either party offer anything to the contrary.
¶ 15        The State argues that it effectively waived service by appearing in court and not objecting
       to improper service. The transcript of the proceedings on June 5, 2014, shows only the judge
       and the court reporter were present when the court stated, “Kelvin Carter filed a pro se motion
       to vacate a judgment. Order of Court to 7/10 for court review.” From this brief, two-sentence
       statement of the trial court we can assume nothing regarding the State’s knowledge of this
       petition.
¶ 16        When the case next appeared on the court’s call on July 10, 2012, the cover page of the
       report of proceedings reflected that an assistant State’s Attorney was “present.” The assistant
       State’s Attorney did not make any comment on the record that it was appearing or waiving
       service. No questions were directed to or comments solicited from the prosecutor by the court.
       From this record, the State contends it waived the requirement of proper statutory service of
       the petition.
¶ 17        In its petition for rehearing, the State argues that requiring the State to formally waive
       service directly conflicts with this court’s recent opinion in People v. Ocon, 2014 IL App (1st)
       120912. In Ocon, the defendant argued that the trial court’s sua sponte dismissal of his section
       2-1401 petition was improper as premature because the State had not been properly served
       with the defendant’s petition. In support of his argument, the defendant cited People v. Prado,
       2012 IL App (2d) 110767, and People v. Nitz, 2012 IL App (2d) 091165.
¶ 18        In People v. Nitz, the defendant’s proof of service showed that he mailed his section 2-1401
       petition to the circuit court for filing but there was no proof of service on the State. The trial
       court sua sponte dismissed the petition. A panel of the Second District of this court reasoned
       that the dismissal was proper because the failure to give notice amounted to a deficient
       pleading. However, the Nitz court held the dismissal was premature because the 30 days for the
       State to respond had not commenced. It concluded that the appropriate action was to dismiss
       the petition without prejudice for a failure to comply with section 2-1401, reasoning that a
       remand for further proceedings would be meaningless where no further proceedings would
       occur, because the State would never move to answer or move to dismiss the petition, and the
       court would be unable to take any action while the case remained permanently on its docket.
       Id. ¶ 13.
¶ 19        In People v. Prado, defendant sent service of his section 2-1401 petition to the State
       through regular mail. The trial court sua sponte dismissed the petition. On appeal, a panel in
       the Second District court agreed with the holding in Nitz that the dismissal on the merits was
       premature when service was improper, but disagreed that dismissal without prejudice was the

                                                   -4-
       proper disposition. Instead, the Prado court agreed with the decision in Powell v. Lewellyn,
       2012 IL App (4th) 110168, ¶ 14, wherein the Fourth District noted that remanding for further
       proceedings would not be meaningless or result in the case being indefinitely set on the court’s
       docket. The Prado court found that an immediate sua sponte dismissal even without prejudice
       was premature. The court’s reasoning was consistent with Lewellyn, that “if defendant wishes
       to have his case heard, he can promptly serve the State. [Citation.] Otherwise, the trial court
       has the power to dismiss the case for want of prosecution, after a reasonable period of time.”
       Prado, 2012 IL App (1st) 110767, ¶ 9. The court also stated that the action could be dismissed
       under Illinois Supreme Court Rule 103(b) (eff. July 1, 2007), if the defendant failed to exercise
       due diligence in serving the State. Id.
¶ 20       The Ocon court found that, unlike the cases cited by the defendant, an assistant State’s
       Attorney was present in court when Ocon’s petition was docketed and the subsequent
       dismissal by the trial court was entered after the 30-day period for a response had passed.
                “Although the record is unclear whether defendant properly served the State with his
                section 2-1401petition, the State had actual notice of the filing of the section 2-1401
                petition. The report of proceedings from January 10, 2012, indicates that an assistant
                State’s Attorney was present for defendant’s case when the trial judge docketed the
                petition. This is in contrast with the facts in Nitz where the prosecutor was present only
                when the case was dismissed, which did not permit time for the State to receive notice
                of the petition and choose to respond.” Ocon, 2014 IL App (1st) 120912, ¶ 31.
¶ 21       Unlike Ocon, there is no indication in this case that anyone other than the judge and the
       court reporter was present in court when defendant’s petition was docketed on June 5, 2012.
       Only the cover page of the report of proceeding shows that an assistant State’s Attorney was
       present when the petition was dismissed on July 10, 2012. Nothing indicates that the
       prosecutor had any knowledge of, and could therefore knowingly waive, service of the
       petition. The entire record of the court’s dismissal of the petition reflects the trial court stating,
       “[a]lso post-conviction petition 2-1401 petition, Kelvin Carter, he’s on sheet one. Mr. Carter is
       not present, he’s in IDOC custody. His 2-1401 petition is dismissed. Copy of the written order
       in the file is to be sent to defendant by the clerk within ten days.” The State did not make a
       single utterance or take any position on the existence or dismissal of defendant’s section
       2-1401 petition. We cannot assume the state had knowledge of the petition and waived service
       simply because the prosecutor was shown on the cover page of the transcript of the
       proceedings as “present” in court at the time the case was called.
¶ 22       We could assume the judge believed the State had been served because the circuit court
       clerk had also been served and the notice of mailing reflected the document was mailed to both
       entities. We could also assume the court made the assumption that the State need not or would
       not respond once it took the time to review the petition. We could further assume that the
       absence of any utterance attributed to the assistant State’s Attorney is because the assistant was
       otherwise occupied and focused on other matters or was in fact unaware of the petition or that
       it was under consideration by the court. In short, there are many events that one could assume
       took place where the prosecutor was shown to be present that do not necessarily reflect service
       of the petition and an intentional waiver of service and right to respond.
¶ 23       The criminal justice system has many important moving parts, one being the prosecutor. It
       is not the function of the reviewing court to assume what the State “effectively” intended based


                                                     -5-
       on the record before us. Prosecutors have a job to do and that job includes standing before the
       trial court and clearly and articulately stating the State’s position regarding the matter at hand.
¶ 24        The State argues that in the interest of judicial economy we find that the State waived
       service and affirm the trial court. Judicial economy is best served when the prosecutor, in the
       first instance, affirmatively spreads of record whether the petition has been served and, if not,
       whether the State intends on waiving the required service. When this has been done, the trial
       court will be in a position to inquire whether the prosecution intends to file a response. Should
       the trial court then dismiss the petition, this potential appellate issue will be eliminated.
       Otherwise, notwithstanding the reasoned decision in Ocon, section 2-1401 defendants that use
       the same or similar method of service as used by the defendant in this case will routinely seek
       appellate review.
¶ 25        Because a case is not ripe for adjudication until 30 days after service, the circuit court in
       this case prematurely dismissed defendant’s petition sua sponte where service was never
       effectuated. Laugharn, 233 Ill. 2d at 323. In the absence of proper service, we choose to follow
       Prado with respect to its disposition as we find it to be more in line with existing case law.
       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 or an affirmative showing that proper service was waived by the
       prosecution. See Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24;
       Vincent, 226 Ill. 2d at 5.
¶ 26        Therefore, because there is no evidence that the State was properly served in this case, the
       court sua sponte dismissed the section 2-1401 petition prematurely. In accordance with Prado,
       the appropriate disposition is to vacate and remand for further proceedings.

¶ 27                                        CONCLUSION
¶ 28       For the foregoing reasons, the circuit court’s sua sponte dismissal on the merits of
       defendant’s section 2-1401 petition was premature. We vacate the judgment of the circuit court
       and remand for further proceedings.

¶ 29      Judgment vacated; cause remanded for further proceedings.




                                                    -6-
