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                                                                              Date: 2016.01.08
                                  Supreme Court                               09:49:23 -06'00'




                           People v. Carter, 2015 IL 117709




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               KELVIN CARTER, Appellee.


Docket No.           117709


Filed                December 3, 2015

Decision Under       Appeal from the Appellate Court for the First District; heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Kevin M. Sheehan, Judge, presiding.

Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal               State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
                     Annette Collins, Michelle Grimaldi-Stein, and Brian K. Hodes,
                     Assistant State’s Attorneys, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
                     Deputy Defender, and Jennifer L. Bontrager, Assistant Appellate
                     Defender, of the Office of the State Appellate Defender, of Chicago,
                     for appellee.

Justices             JUSTICE KARMEIER delivered the judgment of the court, with
                     opinion.
                     Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
                     and Theis concurred in the judgment and opinion.
                                             OPINION

¶1       This case comes before the court from an appellate court decision holding that remand is
     required “because the circuit judge’s sua sponte dismissal of [defendant-petitioner’s] petition
     for relief from judgment on the merits was premature given that the petition was not properly
     served on the State.” 2014 IL App (1st) 122613, ¶ 1. For the following reasons, we reverse
     the judgment of the appellate court.

¶2                                        BACKGROUND
¶3        Following a bench trial in the circuit court of Cook County, defendant, Kelvin Carter,
     was found guilty of the 2002 murder of Edmond Allen. Identification evidence was supplied
     by four occurrence witnesses. The circuit court ultimately imposed a 20-year prison sentence
     in addition to a 25-year enhancement, which was statutorily mandated because of the court’s
     determination that defendant had personally discharged a firearm during the commission of
     the crime. The court had initially sentenced defendant to a 30-year term of imprisonment but
     immediately amended its determination, imposing the 20-year minimum instead after
     realizing that defendant was subject to the enhancement. The appellate court affirmed
     defendant’s conviction and sentence in 2006 (People v. Carter, No. 1-04-1385 (2006)
     (unpublished order under Illinois Supreme Court Rule 23)) and this court denied leave to
     appeal (People v. Carter, 221 Ill. 2d 647 (2006) (table)).
¶4        Thereafter, defendant filed a pro se postconviction petition alleging, inter alia, that he
     was denied the effective assistance of trial counsel and that the State had engaged in multiple
     instances of prosecutorial misconduct. Defendant’s petition was summarily dismissed, the
     circuit court finding it frivolous and patently without merit. The appellate court affirmed
     (People v. Carter, No. 1-07-2160 (2009) (unpublished order under Illinois Supreme Court
     Rule 23)), and this court denied leave to appeal (People v. Carter, 233 Ill. 2d 570 (2009)
     (table)).
¶5        On May 9, 2012, defendant mailed a “Motion to Vacate Judgment” in which he argued
     that the 25-year firearm enhancement to his sentence was void because the trial court only
     found him guilty of murder. Defendant also argued that the trial court was bound by its initial
     statement of 30 years’ imprisonment regardless of the statutorily required enhancement.
     Defendant attached a “Proof/Certificate of Service” to his pleading, alleging that he placed it
     in the “institutional mail” at the Menard Correctional Center. He listed as addressees the
     “Clerk of Court” and “State’s Atty. Office,” both of “2650 S. California Avenue,” Chicago,
     Illinois. The record shows a copy of defendant’s pleading was stamped “received” by the
     circuit clerk on May 15, 2012. It was docketed on May 29, 2012, to be called on June 5,
     2012.
¶6        The circuit court called the matter on June 5, 2012, but the record of proceedings
     indicates that only the judge and court reporter were present. A docket entry on that date
     evinces the circuit court’s quizzical assumption that defendant intended the pleading as a
     petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
     2012)). The docket and transcript for that date show that the case was scheduled for “court
     review” on July 10. On July 10, the court dismissed the petition on the merits. The cover


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       page of the transcript of proceedings indicates that an assistant State’s Attorney was present
       in the courtroom when the court announced that defendant’s “2-1401 petition is dismissed,”
       but the transcript does not show that the assistant State’s Attorney took any action. In a
       written order entered July 10, the circuit court recited the law applicable to section 2-1401
       proceedings and concluded with this observation and finding:
                “[P]etitioner contends that his firearm enhancement is void because the court did not
                find him guilty of personally discharging the firearm but only found him guilty of
                first degree murder. However, petitioner was found guilty of count two of his
                indictment which states that Kelvin Carter, without lawful justification shot and killed
                Edmond Allen while armed with a firearm, knowing that such an act created a strong
                probability of death or great bodily harm to Edmond Allen.” (Emphasis in original.)
       Neither party filed a postjudgment motion in the circuit court; thus, issues of sufficiency of
       service and notice to the State were never addressed.
¶7          In the words of the appellate court, on appeal, defendant-petitioner argued “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.” 2014 IL App (1st) 122613, ¶ 8. The appellate court observed:
       “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.’ ” Id.
¶8          The appellate court noted that the State’s response was two-fold. First, because an
       assistant State’s Attorney was in court at the time that the petition was dismissed, and thus
       had actual knowledge of the petition, the State waived improper service by not objecting to
       it. As such, the petition 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. Id. ¶¶ 9, 16. Second,
       alternatively, the State suggested, “it is not clear from the record on appeal that defendant’s
       service did not comply with the requirements of Rule 105(b).” Id. ¶ 13.
¶9          The appellate court rejected the latter suggestion, stating: “the record clearly shows” that
       petitioner’s proof of service indicated “he attempted to serve the State by placing the
       documents in the institutional mail at the Menard Correctional Center *** for mailing
       through the United States Postal Service.” (Internal quotation marks omitted.) The appellate
       court continued, in a conclusive and dispositional vein: “There is nothing in the record that
       contradicts this information, nor does either party offer anything ***.” Id. ¶ 14.
¶ 10        Then, without speaking to the merits of defendant’s petition—which defendant
       apparently never argued—or the substance of the circuit court’s ruling thereon, the appellate
       court reversed and remanded for further proceedings, holding that the circuit court erred in
       prematurely dismissing petitioner’s section 2-1401 petition sua sponte before the petition had
       been properly served on the State. Id. ¶ 25. The court reasoned that result was dictated by our
       decisions in People v. Vincent, 226 Ill. 2d 1 (2007), and People v. Laugharn, 233 Ill. 2d 318
       (2009):
                “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

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              with or without prejudice, cannot be achieved without service ***. See Ill. S. Ct. R.
              105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24; Vincent, 226 Ill. 2d at 5.”
              2014 IL App (1st) 122613, ¶ 25.
¶ 11       Having rejected the State’s arguments in opposition to reversal, the appellate court
       determined that the appropriate disposition was to vacate the judgment of the circuit
       court—which had found defendant’s petition lacked merit—and remand for further
       proceedings (id. ¶ 26).

¶ 12                                            ANALYSIS
¶ 13        We review de novo the dismissal of a section 2-1401 petition (Vincent, 226 Ill. 2d at 18),
       the interpretation of court rules (In re Thomas, 2012 IL 113035, ¶ 56), and questions of law
       generally (People v. Williams, 188 Ill. 2d 365, 368-69 (1999)).
¶ 14        At the outset, we note that Illinois Supreme Court Rule 106 governs the methods of
       notice to be used for petitions filed pursuant to section 2-1401, providing that “[n]otice of the
       filing of a petition under section 2–1401 *** shall be given by the same methods provided in
       Rule 105.” Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) states that notice may be served,
       inter alia, by certified or registered mail. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Once notice
       has been served, the responding party has 30 days to file an answer or otherwise appear. Ill.
       S. Ct. R. 105(a) (eff. Jan. 1, 1989).
¶ 15        As appellate panels have aptly noted, the notice requirements of Rule 105 are designed to
       prevent a litigant from obtaining new or additional relief without first giving the defaulted
       party a renewed opportunity to appear and defend. People v. Saterfield, 2015 IL App (1st)
       132355, ¶ 20. “ ‘The object of process is to notify a party of pending litigation in order to
       secure his appearance.’ ” People v. Kuhn, 2014 IL App (3d) 130092, ¶ 11 (quoting
       Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 910 (1992)).
       Some courts in this context have suggested, in construing the sufficiency of the notice, that
       courts should focus on whether the object and intent of the law were substantially attained
       rather than the formal and technical requirements. See id.; People v. Ocon, 2014 IL App (1st)
       120912, ¶ 23.
¶ 16        In Vincent—where neither proper service on the State nor actual notice were at
       issue—this court held that sua sponte dismissals of section 2-1401 petitions are proper, on
       the merits, where the State does not answer or otherwise plead within the applicable 30-day
       period. In Vincent, we stated that the State’s failure to answer the petition “constituted an
       admission of all well-pleaded facts *** and rendered Vincent’s petition ripe for
       adjudication.” Vincent, 226 Ill. 2d at 9-10.
¶ 17        Subsequently, in Laugharn—where neither proper service on the State nor actual notice
       were at issue—we held that petitioner’s section 2-1401 petition was not “ripe for
       adjudication.” (Internal quotation marks omitted.) Laugharn, 233 Ill. 2d at 323. Noting that
       “[o]nly seven days had passed since [the petition’s] filing,” this court found that “[t]he circuit
       court’s dismissal short-circuited the proceedings and deprived the State of the time it was
       entitled to answer or otherwise plead.” Id. In short, this court acknowledged that the 30-day
       period for response, specified in Rule 105, was for the State’s benefit, and that the circuit
       court’s sua sponte ruling on the petition before the State had an opportunity to respond



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       constituted the deprivation of an entitlement inuring to the respondent-State—not the
       defendant-petitioner.
¶ 18       In this case, the defendant’s argument in the appellate court, and the appellate court’s
       disposition, were premised upon the assumption that defendant’s service on the State was
       deficient for failure to strictly comply with Rule 105, and that defendant’s error in that regard
       rendered the circuit court’s dismissal of defendant’s petition premature. We have examined
       the record and now conclude it does not affirmatively demonstrate there was deficient
       service.
¶ 19       This court has long recognized that to support a claim of error, the appellant—in this case
       the defendant in the appellate court—has the burden to present a sufficiently complete record
       such that the court of review may determine whether there was the error claimed by the
       appellant. In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009). Without an adequate record
       preserving the claimed error, the court of review must presume the circuit court’s order
       conforms with the law. Id.; see also In re Jonathon C.B., 2011 IL 107750, ¶ 72 (“This court
       presumes that a trial judge knows and follows the law unless the record affirmatively
       indicates otherwise.”); People v. Gaultney, 174 Ill. 2d 410, 420 (1996) (same). “Any doubts
       which may arise from the incompleteness of the record will be resolved against the
       appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984).
¶ 20       In this case, the claimed error, which is premised on allegedly deficient service, was not
       addressed at all in the circuit court, by either party. The issue was first raised by defendant on
       appeal as a means to obtain remand after his petition was dismissed by the circuit court on
       the merits. Thus, there is no meaningful record from the circuit court to be reviewed. What
       scant record there is consists of a statement in the proof of service defendant attached to his
       petition: “I have placed the documents listed below in the institutional mail at Menard
       Correctional Center, properly addressed to the parties listed above for mailing through the
       United States Postal Service.” To serve as a basis for defendant’s contention of error, that
       statement must affirmatively establish that defendant mailed his petition via some means
       other than certified or registered mail. However, all it establishes is where defendant mailed
       his petition—“the institutional mail”—and the medium through which it was to be
       transmitted: “the United States Postal Service.” The appellate court’s assumption that the
       language of the proof of service affirmatively established transmittal by regular mail, and
       thus deficient service (see 2014 IL App (1st) 122613, ¶ 14), is unwarranted on this record.1
¶ 21       In their briefs, the parties debate the significance of what defendant sees as shifting
       positions the State has taken in the course of the appellate process with respect to whether
       defendant’s service was or was not deficient. Defendant, of course, readily concedes
       deficient service on the State. Since his position is premised on deficient service, it is
       obviously in his interest to do so. As we have noted, the State’s arguments in the appellate

           1
             Defendant suggests that “[a]s an indigent, pro se petitioner incarcerated at a state correctional
       facility, [he] lacks the access to the methods of service required by Rule 105(b),” “an obstacle this
       Court recognized in its amendment to Rule 12, allowing proof of service by affidavit or certification of
       deposit in the institutional mail.” Defendant acknowledges, however, that “[t]he proof of service
       addressed by Rule 12 is distinct from the method of service, which is addressed in Rule 105(b).”
       (Emphases added.) We note that the record in this case is inadequate to demonstrate that inmates in
       correctional facilities lack the means to comply with the service requirements of Rule 105(b).

                                                      -5-
       court were in the alternative. First, because an assistant State’s Attorney was in court at the
       time that the petition was dismissed, and thus had actual knowledge of the petition, the State
       waived improper service by not objecting to it. Id. ¶¶ 9, 16. Second, the State suggested “it is
       not clear from the record on appeal that defendant’s service did not comply with the
       requirements of Rule 105(b).” Id. ¶ 13. We see no impropriety in the State’s arguments in the
       alternative. The State has taken a similar approach in argument before this court. Defendant
       insists that the State conceded in its petition for leave to appeal that there was improper
       service in this case. As defendant points out, there is a statement in the body of the petition
       wherein the State arguably concedes that the defendant served the State via regular mail,
       though the State claims there was no concession, that the State “simply referenced the fact
       that the appellate court so held by citing to the appellate court’s own conclusions.”
¶ 22        We mention this debate only to acknowledge that we have considered the point raised by
       defendant. Irrespective of the parties’ arguments, the record is what it is, and, in our view, it
       is insufficient to demonstrate the service deficiency that defendant must establish in order to
       advance his argument. As far as any arguable concession is concerned, it is well established
       that we, as a court of review, are not bound by a party’s concession. Beacham v. Walker, 231
       Ill. 2d 51, 60-61 (2008).
¶ 23        As noted, without an adequate record preserving the claimed error, we, as a court of
       review, must presume the circuit court’s order conforms with the law. In re Gulla, 234 Ill. 2d
       at 422. Applying that principle in this case, we cannot assume that defendant’s service upon
       the State was deficient. Though the regular return receipt for certified mail—for example—is
       sufficient proof of service by certified mail (see In re Dar C., 2011 IL 111083, ¶ 63 (citing
       705 ILCS 405/2-16(1) (West 2006))), the absence of such a receipt in the record does not
       affirmatively establish that service by certified mail was not accomplished, as it is up to the
       sender to file the receipt or not. In this case, the matter of service—adequate or
       deficient—was simply not addressed by the parties in the circuit court.
¶ 24        What we can discern from the record is that well over 30 days had passed since the filing
       of defendant’s petition when the circuit court dismissed defendant’s petition, sua sponte, on
       the merits. Defendant’s pleading was stamped received by the circuit clerk on May 15, 2012;
       docketed on May 29, 2012; and dismissed on July 10, 2012. An assistant State’s Attorney
       was in attendance and voiced no objection when the circuit court announced, in open court,
       that defendant’s “2-1401 petition is dismissed.” A written order was then prepared and filed
       that same day, outlining the court’s reasoning for the dismissal. No party filed a posttrial
       motion. A notice of appeal was timely filed by defendant listing, on the notice of appeal, the
       Cook County State’s Attorney as a recipient thereof. In sum, nothing in this record
       affirmatively establishes that the State was not given proper notice or that the circuit court’s
       sua sponte dismissal was premature. It was defendant’s burden, as the appellant below, to so
       show. On this record, we must presume the circuit court’s order was rendered in accordance
       with the applicable law.
¶ 25        To be sure, we encourage circuit courts to ascertain and note of record the date the State
       was properly served and to time any sua sponte rulings on pending petitions accordingly.
       That said, however, any section 2-1401 petitioner who seeks to use, on appeal, his own error,
       by way of allegedly defective service, in an effort to gain reversal of a circuit court’s sua



                                                   -6-
       sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error
       via proceedings of record in the circuit court.
¶ 26       For the foregoing reasons, the judgment of the appellate court is reversed, and the
       judgment of the circuit court is affirmed.

¶ 27      Appellate court judgment reversed.
¶ 28      Circuit court judgment affirmed.




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