                           NO. 4-04-0846        Filed 2/15/08

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Morgan County
MILDRED L. LAUGHARN,                   )    No. 95CF75
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Richard T. Mitchell,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE STEIGMANN delivered the opinion of the court:

          In August 2004, defendant, Mildred L. Laugharn, filed a

petition under section 2-1401 of the Code of Civil Procedure (735

ILCS 5/2-1401 (West 2004)), seeking to set aside her November

1996 first-degree-murder conviction (720 ILCS 5/9-1(a)(1) (West

1996)).   In September 2004, the trial court sua sponte dismissed

defendant's petition as untimely filed.

          Defendant appealed, arguing only that the trial court's

sua sponte dismissal of her section 2-1401 petition was error.

Specifically, she contended that the trial court lacked authority

to take that action.   This court disagreed and affirmed.       People

v. Laugharn, No. 4-04-0846 (August 1, 2006) (unpublished order

under Supreme Court Rule 23).

          On September 26, 2007, the Supreme Court of Illinois

denied defendant's petition for leave to appeal but directed this

court to vacate our judgment and to reconsider it in light of

People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007).     People

v. Laugharn, 225 Ill. 2d 656, 873 N.E.2d 936 (2007) (nonprece-
dential supervisory order on denial of petition for leave to

appeal).   In accordance with the supreme court's directions, we

vacate our earlier judgment and reconsider it in light of Vincent

to determine whether a different result is warranted.

           In Vincent, the supreme court wrote that "[t]he ques-

tion raised in this case was whether a trial court may dispose of

a properly served section 2-1401 petition without benefit of

responsive pleadings and without giving the petitioner notice of

the impending ruling and the opportunity to address the court

prior to the ruling."   Vincent, 226 Ill. 2d at 5, 871 N.E.2d at

21.   The supreme court ultimately held that a trial court pos-

sesses the authority to dispose of a properly served section 2-

1401 petition sua sponte without a responsive pleading.   Vincent,

226 Ill. 2d at 13, 871 N.E.2d at 26.   The supreme court further

held that when a trial court "enters either a judgment on the

pleadings or a dismissal in a section 2-1401 proceeding, that

order will be reviewed, on appeal, de novo."   Vincent, 226 Ill.

2d at 18, 871 N.E.2d at 28.   See People v. Ryburn, No. 4-04-0836,

slip op. at 8-12 (February 7, 2008), ___ Ill. App. 3d ___, ___,

___ N.E.2d ___, ___ (in which this court recently discussed the

supreme court's decision in Vincent at some length).

           After reconsidering our earlier judgment in light of

Vincent to determine whether a different result is warranted, we

again conclude that the trial court correctly ruled against

defendant sua sponte, dismissing her petition with prejudice.      As

part of our judgment, we award the State its $50 statutory


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assessment against defendant as costs of this appeal.

          Affirmed.

          MYERSCOUGH, J., concurs.

          COOK, J., dissents.




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          JUSTICE COOK, dissenting:

          I respectfully dissent and would reverse and remand.

          In ruling on a section 2-1401 petition in a criminal

case, a trial court may not summarily dismiss the petition as

"frivolous or *** patently without merit" as permitted under the

Post-Conviction Hearing Act.   725 ILCS 5/122-2.1(a)(2) (West

2004); Vincent, 226 Ill. 2d at 10-11, 871 N.E.2d at 24-25.      The

trial court may, however, sua sponte–as it would in civil cases -

-dismiss the case for failure to state a cause of action.

Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26.   A civil case may

not be dismissed simply because the trial court believes it has

little merit.   A motion to dismiss raises an issue of law as to

the legal sufficiency of the allegations in the complaint.   A

motion to dismiss should not be granted unless it clearly appears

that no set of facts could ever be proved that would entitle the

plaintiff to recover.   Ostendorf v. International Harvester Co.,

89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).

          The trial court in this case did not dismiss the

petition because its allegations did not provide a legal basis

for relief under section 2-1401.   Instead, the court dismissed

the petition as untimely because the two-year period had expired.

As I stated in my original dissent in this case:

                "When the trial court dismissed defen-

          dant's section 2-1401 petition for being

          untimely, the court did not afford defendant

          the opportunity to respond.   Under section 2-


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          1401, a petition 'must be filed not later

          than 2 years after the entry of the order or

          judgment.    Time during which the person seek-

          ing relief is under legal disability or du-

          ress or the ground for relief is fraudulently

          concealed shall be excluded in computing the

          period of 2 years.'    735 ILCS 5/2-1401(c)

          (West 2004).    Defendant could also have

          avoided the two-year limitations period if

          she could show that the judgment against her

          was void.    See Anderson, 352 Ill. App. 3d

          936, 817 N.E.2d at 1002.       Had the trial court

          given defendant the opportunity, defendant

          may have presented an acceptable explanation

          for the delay.    Defendant may then have dem-

          onstrated a meritorious claim.       On the other

          hand, defendant may not have had any explana-

          tion for the lengthy delay and the court

          could have quickly disposed of defendant's

          claim."     Laugharn, slip order at 5 (Cook, J.,

          dissenting) (unpublished summary order under

          Supreme Court Rule 23(c)(2)).

          It is not clear that no set of facts could ever be

proved in this case that would allow defendant to show the

petition was timely.    The trial court should allow a litigant the

opportunity to amend the petition when so doing could yield a


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meritorious claim.   Vincent, 226 Ill. 2d at 13 n.3, 871 N.E.2d at

26 n.3.   Even a postconviction petition may not be summarily

dismissed, at the first stage, as untimely.   The time requirement

for filing a postconviction petition is considered an affirmative

defense that may be raised, waived, or forfeited by the State.

People v. Boclair, 202 Ill. 2d 89, 101, 789 N.E.2d 734, 742

(2002).




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