                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Miller, 2012 IL App (5th) 110201




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



District & No.             Fifth District
                           Docket No. 5-11-0201


Filed                      December 10, 2012
Rehearing denied           January 9, 2013


Held                       The dismissal of a petition pursuant to section 2-1401 of the Code of
(Note: This syllabus       Civil Procedure that was filed by defendant without giving proper notice
constitutes no part of     to the State was vacated and the cause was remanded for further
the opinion of the court   proceedings in which defendant may serve the State as required by the
but has been prepared      statute or the trial court may dismiss the case for want of prosecution after
by the Reporter of         a reasonable period of time.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Madison County, No. 98-CF-1814; the
Review                     Hon. James Hackett, Judge, presiding.



Judgment                   Judgment vacated; cause remanded for further proceedings.
Counsel on                 Michael J. Pelletier, Peter A. Carusona, and Verlin R. Meinz, all of State
Appeal                     Appellate Defender’s Office, of Ottawa, for appellant.

                           Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino,
                           Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE WEXSTTEN delivered the judgment of the court, with
                           opinion.
                           Justices Welch and Chapman concurred in the judgment and opinion.




                                              OPINION

¶1          In April 2011, the defendant filed a pro se petition for relief from judgment pursuant to
        section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Eleven
        days later, the trial court dismissed the petition sua sponte. On appeal, the defendant argues
        that we should vacate the trial court’s judgment and remand for further proceedings. For the
        reasons that follow, we agree.

¶2                                        BACKGROUND
¶3          In May 1999, a Madison County jury found the defendant, Michael Miller, guilty of
        attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 1998)). At trial, the
        State’s evidence established that in August 1998, the defendant savagely attacked Lavita
        Butkus with a knife and a tire tool and that as a result, she required extensive hospitalization
        and spent 21 days in a coma.
¶4          In July 1999, the trial court sentenced the defendant to serve a 45-year term of
        imprisonment. In July 2003, the defendant’s conviction and sentence were affirmed on direct
        appeal. People v. Miller, No. 5-99-0651 (2003) (unpublished order under Supreme Court
        Rule 23).
¶5          From March 2001 to January 2010, the defendant filed numerous pro se pleadings
        challenging his conviction and sentence, none of which proved successful. The defendant’s
        pleadings included multiple motions and petitions filed pursuant to the Post-Conviction
        Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2002, 2004, 2008)) and a petition for relief
        from judgment pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-
        1401 (West 2004)).
¶6          On April 1, 2011, the defendant filed a second petition for relief from judgment pursuant
        to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). Notably,

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       the record indicates that the defendant failed to give the State proper notice of the petition
       as required by section 2-1401(b). See Padilla v. Vazquez, 223 Ill. App. 3d 1018, 1024 (1991)
       (pursuant to section 2-1401(b), “[a] party seeking relief under section 2-1401 must give
       notice to opposing parties according to Supreme Court Rules 105 and 106”).
¶7         On April 12, 2011, the trial court entered an order sua sponte dismissing the defendant’s
       petition as untimely filed and failing to state a cognizable claim. Thereafter, the defendant
       filed a timely notice of appeal.

¶8                                          DISCUSSION
¶9         “Section 2-1401 of the Code of Civil Procedure *** provides a comprehensive statutory
       procedure by which final orders and judgments may be challenged more than 30 days after
       their entry.” People v. Pinkonsly, 207 Ill. 2d 555, 562 (2003). “Although a section 2-1401
       petition is usually characterized as a civil remedy, its remedial powers extend to criminal
       cases.” People v. Harvey, 196 Ill. 2d 444, 447 (2001).
¶ 10       “[P]roceedings under section 2-1401 are subject to the usual rules of civil practice”
       (People v. Vincent, 226 Ill. 2d 1, 8 (2007)), and thus “a party is entitled to notice that it must
       answer or otherwise respond to a section 2-1401 petition within 30 days after service of the
       petition” (Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill. App.
       3d 416, 419 (2005)). “We review the dismissal of a section 2-1401 petition de novo.” People
       v. Laugharn, 233 Ill. 2d 318, 322 (2009).
¶ 11       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 and the opportunity to respond.
       Vincent, 226 Ill. 2d at 10-14. The court further rejected the notion that a trial court cannot
       dismiss a section 2-1401 petition in the absence of a responsive pleading from the State. Id.
       at 9. As framed by the court, the issue in Vincent 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.” Id. at 5.
¶ 12       In Laugharn, the defendant filed a section 2-1401 petition, and “[s]even court days later,”
       the trial court sua sponte dismissed the petition as untimely filed. Laugharn, 233 Ill. 2d at
       321-23. Stating that because “[o]nly seven days had passed since its filing,” the defendant’s
       petition “was not ‘ripe for adjudication’ “ when the trial court dismissed it, our supreme court
       subsequently held that the “sua sponte dismissal of [the] defendant’s petition before the
       conclusion of the usual 30-day period to answer or otherwise plead was premature and
       require[d] vacatur of the dismissal order.” Id. at 323. The Laugharn court accordingly
       vacated the trial court’s judgment and remanded the cause for further proceedings. Id. at 324.
¶ 13       Here, the parties agree that the trial court erred in dismissing the defendant’s section 2-
       1401 petition as if it were ripe for adjudication. They disagree, however, as to the proper
       remedy. The defendant maintains that consistent with Laugharn, his cause must be remanded
       for further proceedings. See Laugharn, 233 Ill. 2d at 324. Citing People v. Nitz, 2012 IL App
       (2d) 091165, the State counters that because the defendant failed to comply with section 2-
       1401(b)’s notice requirement, the trial court’s judgment should be affirmed “with the

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       modification that the dismissal is without prejudice.”
¶ 14       In Nitz, the defendant filed a section 2-1401 petition and, like the defendant here, failed
       to give the State proper notice that the petition had been filed. Nitz, 2012 IL App (2d)
       091165, ¶¶ 4-5, 12. Less than 30 days later, the trial court addressed the merits of the
       defendant’s petition and dismissed it sua sponte. Id. ¶¶ 4, 6. On appeal, the Second District
       Appellate Court held that although the trial court’s dismissal of the defendant’s petition on
       the merits was premature and prohibited by Laugharn, the trial court could have properly
       dismissed the petition on the ground that the defendant had failed to comply with section 2-
       1401(b)’s notice requirement. Id. ¶¶ 12-13. Invoking its power to affirm on any basis
       supported by the record, the appellate court thus affirmed the trial court’s judgment but
       modified it to reflect that the dismissal was without prejudice. Id. ¶¶ 13, 15.
¶ 15       The Second District’s holding in Nitz turned solely on the fact that like here, the
       defendant failed to give the State proper notice that he had filed a section 2-1401 petition.
       As the court explained:
               “In the present case, defendant argues without much discussion that this case is
           identical to Laugharn and that we must reverse and remand for further proceedings. We
           disagree. The crucial fact in this case is that defendant did not give the State notice
           pursuant to section 2-1401(b). The court in Vincent expressly framed the issue with
           respect to a ‘properly served section 2-1401 petition.’ [Citation.] While the court in
           Laugharn did not express that the State had been served, the discussion indicates that it
           had, because the court noted that the 30-day period for filing an answer does not begin
           to run until service has occurred. If the State in our case had waived service and
           appeared, then the Vincent and Laugharn principles would apply. But no such waiver
           occurred. Consequently, the 30-day period is irrelevant, because it will never commence.
           A remand ‘for further proceedings’ would be meaningless, because no ‘further
           proceedings’ will occur. The State will never answer or move to dismiss, and the State
           cannot be defaulted, because it was never served. Thus, remand would place the trial
           court in the position of being able to do nothing while the case remains on its docket
           permanently.” Id. ¶ 12.
¶ 16       During the pendency of the present appeal, the Fourth District Appellate Court decided
       Powell v. Lewellyn, 2012 IL App (4th) 110168, and respectfully disagreed with the Nitz
       court’s conclusion that the proper remedy following a trial court’s premature dismissal of a
       defendant’s unserved petition is to modify the court’s judgment to reflect that the dismissal
       was without prejudice. In Powell, the plaintiff, an incarcerated inmate, filed a pro se petition
       for injunctive relief against three defendant-jailers but failed to give them proper notice.
       Powell, 2012 IL App (4th) 110168, ¶¶ 3, 8, 10-11. Two weeks later, the trial court sua sponte
       denied the plaintiff’s petition on its merits. Id. ¶¶ 6, 10-11. The plaintiff subsequently
       appealed, and applying the “Laugharn principles,” the appellate court held that because the
       defendants had never been served with the plaintiff’s petition, the petition was “not ripe for
       adjudication” when the trial court sua sponte entered its “ruling on the merits.” Id. ¶¶ 8, 10-
       11. Noting, inter alia, that the plaintiff on appeal “was indigent and in jail when he filed his
       petition,” that “[t]he trial court denied the petition only two weeks after it was filed,” and that
       “[a] plaintiff must be given a reasonable amount of time to obtain service on a defendant or

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       defendants,” the appellate court vacated the trial court’s judgment and remanded the cause
       for further proceedings. Id. ¶¶ 11, 14.
¶ 17       When noting its disagreement with Nitz, the Powell court stated the following:
               “In contrast to our sister district, we find further proceedings in this case would not
           be ‘meaningless’ or wind up permanently etched on the trial court’s docket. If plaintiff
           seeks to have his case heard, he can have defendants served. Otherwise, the trial court
           has the power to dismiss the case for want of prosecution after a reasonable period of
           time. Accordingly, we vacate the court’s judgment and remand for further proceedings.
           We express no opinion on the merits of the substantive arguments raised by plaintiff in
           his petition.” Id. ¶ 14.
¶ 18       Having reviewed both decisions, we find Powell more persuasive than Nitz. Moreover,
       as the defendant notes on appeal, Nitz “does not contribute at all to judicial efficiency and
       economy,” which is important to consider. See Schultz v. Republic Insurance Co., 124 Ill.
       App. 3d 342, 344 (1984) (noting that “a tool designed to further the important goal of
       achieving judicial economy *** is rendered useless if not employed in appropriate
       circumstances”).

¶ 19                                    CONCLUSION
¶ 20       For the foregoing reasons, we hereby vacate the trial court’s judgment dismissing the
       defendant’s section 2-1401 petition and remand for further proceedings.

¶ 21      Judgment vacated; cause remanded for further proceedings.




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