                                                                             Digitally signed by
                                                                             Reporter of Decisions
                          Illinois Official Reports                          Reason: I attest to
                                                                             the accuracy and
                                                                             integrity of this
                                                                             document
                                  Supreme Court                              Date: 2017.07.06
                                                                             13:59:09 -05'00'




                         People v. Matthews, 2016 IL 118114




Caption in Supreme   THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court:               JERRELL MATTHEWS, Appellee.



Docket No.           118114



Filed                December 1, 2016
Rehearing denied     January 23, 2017



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.
                     Arthur F. Hill, Jr., 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, and Hareena Meghani-Wakely, Assistant State’s
                     Attorneys, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
                     Defender, and Rachel M. Kindstrand, Assistant Appellate Defender,
                     of the Office of the State Appellate Defender, of Chicago, for
                     appellee.
     Justices                 JUSTICE GARMAN delivered the judgment of the court, with
                              opinion.
                              Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride,
                              Burke, and Theis concurred in the judgment and opinion.



                                                OPINION

¶1         On March 25, 2012, defendant Jerrell Matthews mailed a petition for relief from judgment
       via the prison mail system at Menard Correctional Center to the clerk of the Cook County
       circuit court and the Cook County State’s Attorney’s office. On May 24, 2012, the circuit court
       dismissed the petition sua sponte as untimely. The appellate court concluded that the dismissal
       was premature because the State was never properly served. The judgment of the circuit court
       was vacated, and the cause remanded. The State appealed to this court pursuant to Illinois
       Supreme Court Rule 315 (eff. July 1, 2013).

¶2                                           BACKGROUND
¶3         Defendant-petitioner was convicted of first degree murder in 2007. The appellate court
       affirmed the conviction. Defendant filed a postconviction petition in 2010 alleging ineffective
       assistance of counsel and insufficient evidence to support his conviction. The circuit court
       dismissed the petition as frivolous and patently without merit. The appellate court again
       affirmed.
¶4         On March 25, 2012, defendant mailed a petition for relief from judgment pursuant to
       section 2-1401 of the Code of Civil Procedure, asserting he was denied a fair trial based on
       alleged perjury by a State’s witness. 735 ILCS 5/2-1401 (West 2010). The substance of the
       petition is irrelevant for purposes of this appeal. Defendant attached to the petition a
       “proof/certificate of service,” which stated that the petition was mailed “with proper first-class
       postage attached thereto” via the prison mail system at Menard Correctional Center to the clerk
       of the Cook County circuit court and the Cook County State’s Attorney’s office. The petition
       was marked “received” on April 11 by the clerk’s office and file-marked and docketed on April
       23. On May 21, 2012, the circuit court continued the case. On May 24, the circuit court entered
       an order in which it dismissed the petition as untimely. The court further explained that the
       petition contained no argument of merit and lacked any supporting documentation. Defendant
       was not present in the courtroom at the time of the dismissal, and the transcript reveals no
       active participation by the State’s Attorney’s office, although it does list Assistant State’s
       Attorney Kimellen Chamberlain and State’s Attorney Anita Alvarez as appearing for the State.
¶5         On appeal, defendant argued that the dismissal was premature because he never properly
       served the State and, thus, the 30-day period for filing a response had not yet expired.
       Defendant contended that service was improper because the proof of service does not indicate
       that the petition was mailed via certified or registered mail as required by Illinois Supreme
       Court Rule 105 (eff. Sept. 28, 1978). The appellate court concluded that defendant did not
       properly serve the State but that the State received actual notice of the petition and forfeited
       any objection to improper service. Thus, defendant’s argument that the dismissal was
       premature could not be sustained on the basis that service was never effectively completed.

                                                   -2-
       However, the appellate court held the petition was not ripe for adjudication and dismissal was
       premature because less than 30 days had passed from the date the State received actual notice
       of the filing. The appellate court reversed the judgment of the circuit court and remanded the
       case for further proceedings. The State filed a petition for leave to appeal in this court, which
       was allowed January 20, 2016.1 Ill. S. Ct. R. 315.

¶6                                               ANALYSIS
¶7          The circuit court dismissed defendant’s petition for relief from judgment as untimely. Such
       petitions “must be filed not later than 2 years after the entry of the order or judgment,” unless
       the petitioner can demonstrate that he or she has been “under legal disability or duress” or
       unless the “ground for relief [has been] fraudulently concealed.” 735 ILCS 5/2-1401(c) (West
       2010). Defendant does not challenge the circuit court’s finding that his petition was untimely,
       but he asserts that the court’s order dismissing the petition was premature based on his own
       failure to comply with the applicable service requirements. Ill. S. Ct. R. 106 (eff. Aug. 1, 1985)
       (indicating that the service procedures set forth in Rule 105 apply to section 2-1401 petitions);
       Ill. S. Ct. R. 105 (setting forth the requirements for serving and filing a petition).
¶8          Illinois Supreme Court Rule 105 provides that a section 2-1401 petitioner must provide the
       opposing party with notice that the petition has been filed. Notice may be served in person, by
       mail, or by publication. Ill. S. Ct. R. 105. If by mail, service must be sent by certified or
       registered mail. Id. The notice must inform the respondent that “a judgment by default may be
       taken against him *** unless he files an answer or otherwise files an appearance *** within 30
       days after service, receipt by certified or registered mail, or the first publication of the notice.”
       Id. If the responding party fails to respond within the 30-day period, any question as to the
       petition’s sufficiency is deemed waived, and the petition is treated as properly stating a cause
       of action. People v. Vincent, 226 Ill. 2d 1, 8 (2007). The court can dismiss a petition despite a
       lack of responsive pleading if the petition is deficient as a matter of law. Id. at 8-9. However,
       the court cannot sua sponte dismiss a petition before the 30-day response period expires.
       People v. Laugharn, 233 Ill. 2d 318, 323 (2009). Defendant cites Laugharn in support of his
       position that the dismissal of his petition was premature because he never properly served the
       State and thus the 30-day response period never commenced. He further contends that, because
       the State was not properly served, the circuit court lacked personal jurisdiction and, therefore,
       the dismissal order is void.
¶9          This court reviews the dismissal of a section 2-1401 petition de novo. People v. Carter,
       2015 IL 117709, ¶ 13. This court also reviews de novo whether the circuit court obtained
       personal jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 17.
¶ 10        As the appellant below, defendant had the burden of presenting a sufficiently complete
       record so that the reviewing court could determine whether the claimed error occurred. People

           1
            Despite the fact that the petition for leave to appeal had been filed, the circuit court on remand
       allowed defendant to file an amended section 2-1401 petition. The court then dismissed both the
       original and the amended petitions, and defendant again appealed. The appellate court granted an
       agreed motion for summary disposition, vacating the circuit court’s dismissal of the petitions based on
       lack of jurisdiction. Although both parties failed to provide the court with any record of the proceedings
       occurring after the petition for leave to appeal was filed, this court has taken judicial notice of the
       subsequent orders.

                                                       -3-
       v. Carter, 2015 IL 117709, ¶ 19. The State contends that defendant did not sufficiently show
       that service was improper. Alternatively, the State claims it had actual notice of the petition
       more than 30 days before the dismissal; therefore, the court had personal jurisdiction, and
       dismissal was appropriate. However, the State urges this court to first address whether
       defendant should be estopped from making such an argument based on his own failure to
       properly serve the State or whether he has standing to challenge the dismissal order.
¶ 11       We have been presented with this issue before. In Carter, the defendant similarly argued
       that dismissal of his section 2-1401 petition was premature because he had not yet correctly
       served the State. Id. ¶ 18. Based on the evidence in the record, we concluded that the defendant
       had failed to demonstrate that service was improper. Id. ¶ 22. We did not reach the State’s
       argument that a petitioner should not be able to challenge an order based on his own service
       error. Since then, several panels of our appellate court have considered this argument and
       reached contradictory conclusions. Compare People v. Donley, 2015 IL App (4th) 130223,
       ¶ 34 (“ ‘Defendant should not be able to serve a party incorrectly and then rely on the incorrect
       service to seek reversal’ of the trial court’s decision.” (quoting People v. Alexander, 2014 IL
       App (4th) 130132, ¶ 47)), Alexander, 2014 IL App (4th) 130132, ¶ 46 (“[T]he 30-day period
       does not provide a sword for a petitioner to wield once a court—as in this case—does not find
       in his favor, especially given that, under defendant’s interpretation, the basis of his claim on
       appeal is his failure to comply with Rule 105.” (Emphasis in original.)), and People v. Kuhn,
       2014 IL App (3d) 130092, ¶ 15 (“[D]efendant does not have standing to raise an issue
       regarding the State’s receipt of service.”), with People v. Monroe, 2015 IL App (3d)
       130149-U, ¶¶ 16-17 (distinguishing Kuhn and concluding that, because the State was neither
       served nor had actual notice, the defendant’s challenge to the trial court order based on
       improper service was appropriate), and People v. Pena, 2015 IL App (1st) 131744-U, ¶ 12
       (vacating dismissal order based on petitioner’s failure to serve the State); see also People v.
       Bustos, 2015 IL App (1st) 131212-U, ¶ 8 (discussing conflicting opinions of the appellate
       court on this issue). Therefore, we begin our analysis with this argument.

¶ 12                                   Whether Defendant Is Estopped
                                From Challenging the Validity of the Order
¶ 13        Defendant’s argument that the dismissal order should be reversed rests on his claim that
       service was improper. He concedes that such error was caused by his own failure to comply
       with the requirements of Rule 105. “[I]t is well established that ‘an accused may not ask the
       trial court to proceed in a certain manner and then contend in a court of review that the order
       which he obtained was in error.’ ” People v. Segoviano, 189 Ill. 2d 228, 241 (2000) (quoting
       People v. Lowe, 153 Ill. 2d 195, 199 (1992)); see also People v. Hawkins, 181 Ill. 2d 41, 58
       (1998) (“[T]he law is understandably reluctant to aid litigants responsible for the very errors of
       which they complain.”); Clemson v. President & Directors of the State Bank of Illinois, 2 Ill.
       45, 46 (1832) (“It would be clearly unjust to permit a party to assign his own mistakes as errors
       to reverse a judgment.”).
¶ 14        In People v. Villarreal, the defendant challenged the propriety of the verdict forms used at
       trial. 198 Ill. 2d 209, 227 (2001). The defendant’s own counsel provided those forms. Id. The
       court concluded that “[t]o allow defendant to object, on appeal, to the very verdict forms he
       requested at trial, would offend all notions of fair play.” (Emphasis in original.) Id.; see also


                                                   -4-
       People v. Harvey, 211 Ill. 2d 368 (2004) (concluding that the defendant was estopped,
       pursuant to the invited error doctrine, from challenging admission of mere-fact impeachment
       evidence on appeal after agreeing to the admission of the evidence at trial); People v. Carter,
       208 Ill. 2d 309, 319 (2003) (precluding the defendant from challenging his conviction on
       grounds that a certain jury instruction was not given after he declined to provide such an
       instruction at trial when given an opportunity to do so). By filing the “proof/certificate of
       service,” defendant asked the court to proceed as though the State had been adequately notified
       of the proceedings. Therefore, defendant is now estopped from alleging the court erred in
       acquiescing to this request. See Harvey, 211 Ill. 2d at 385 (noting that the issue of invited error
       is often considered one of estoppel).
¶ 15        Furthermore, if defendant were allowed to invalidate the circuit court’s order based on his
       own failure to properly serve the State, future litigants may have an incentive to improperly
       serve respondents or provide incomplete certificates of service to create a second opportunity
       to litigate their claims. See Alexander, 2014 IL App (4th) 130132, ¶ 46 (“If we were to accept
       defendant’s rationale, a prisoner who uses regular mail to effect service upon the State
       will—upon appeal—be rewarded with a second bite of the apple if the court denies his petition
       on the merits.”). This would effectively revoke the State’s power to waive service in these
       cases. Such a result would be inconsistent with the purpose of Supreme Court Rule 105 and of
       notice requirements generally. Rule 105 was designed to prevent a litigant from obtaining new
       or additional relief without first giving the opposing party an opportunity to appear and defend.
       Carter, 2015 IL 117709, ¶ 15. “ ‘The object of process is to notify a party of pending litigation
       in order to secure his appearance.’ ” (Internal quotation marks omitted.) Id. (quoting People v.
       Kuhn, 2014 IL App (3d) 130092, ¶ 11). The 30-day requirement ensures the State has an
       opportunity to answer or otherwise plead. Laugharn, 233 Ill. 2d at 323. None of the notice
       requirements at issue were designed to allow a petitioner to object to lack of service on behalf
       of the opposing party. For these reasons, we conclude that defendant cannot challenge the trial
       court order based on his own failure to properly serve the State.

¶ 16                     Whether Defendant Has Standing to Challenge the Order
¶ 17        Defendant alternatively claims that, even if he is estopped from objecting to a violation of
       Rule 105, the entire proceedings were invalid and the dismissal order should be dismissed as
       void based on lack of personal jurisdiction over the parties. Courts must have both
       subject-matter and personal jurisdiction to enter a valid judgment. In re M.W., 232 Ill. 2d 408,
       414 (2009). “Absent a general appearance, personal jurisdiction can be acquired only by
       service of process in the manner directed by statute.” State Bank of Lake Zurich v. Thill, 113
       Ill. 2d 294, 308 (1986). Both parties agree the circuit court had jurisdiction over the subject
       matter of the litigation.
¶ 18        Defendant maintains that the circuit court lacked personal jurisdiction over the State, based
       on his own failure to properly serve the State. Typically, a lack of personal jurisdiction
       argument based on improper service is raised by a respondent claiming an order is invalid
       because he or she did not receive notice of the proceedings. See, e.g., Keener v. City of Herrin,
       235 Ill. 2d 338 (2009); State Bank of Lake Zurich, 113 Ill. 2d at 303. Defendant relies upon
       State Bank of Lake Zurich for the rule that a judgment entered without jurisdiction can be
       attacked at any time and “is void regardless of whether the defendant had actual knowledge of


                                                    -5-
       the proceedings” to support his position that he can challenge the circuit court’s order based on
       lack of personal jurisdiction over the State. 113 Ill. 2d at 308. This argument, however, fails to
       recognize that personal jurisdiction, unlike subject-matter jurisdiction, can be waived. In re
       M.W., 232 Ill. 2d 408, 417, 426-27 (2009).
¶ 19       In In re M.W., we concluded that, because objections to personal jurisdiction and improper
       service may be waived, “a party may ‘object to personal jurisdiction or improper service of
       process only on behalf of himself or herself.’ ” Id. at 427 (quoting Fanslow v. Northern Trust
       Co., 299 Ill. App. 3d 21, 29 (1998)). In that case, a minor was adjudicated delinquent. Id. at
       412. She argued on appeal that the adjudication was void for lack of jurisdiction because her
       father had not been served in violation of the Juvenile Court Act of 1987. Id. We concluded
       that, because the father could waive service, the minor did not have standing to object to
       improper service on his behalf. Id. at 427. Therefore, the minor could not claim the
       adjudication was void for lack of personal jurisdiction over her father. Id.
¶ 20       Nothing in In re M.W. indicates that this rule should be limited to proceedings pursuant to
       the Juvenile Court Act. The same logic applies outside the context of juvenile proceedings. For
       example, in In re Estate of Meskimen, the respondent challenged a trial court order on grounds
       that other trust beneficiaries had not been notified as required by the Probate Act. 39 Ill. 2d
       415, 422 (1968). The court declined to consider the argument after noting the respondent was
       “in no position to raise the question.” Id. “The beneficiaries who failed to receive notice are the
       only persons in a position to raise the *** issue.” Id. at 422-23; see also In re Estate of Millsap,
       75 Ill. 2d 247, 255 (1979) (“Appellant commenced these proceedings, appeared, and therefore
       was not entitled to notice. Since he was not entitled to notice, he may not complain of a failure
       to require that notice be given to others. Second, because he did have notice of the proceedings,
       appellant may not complain that others were not notified.”). We apply the same logic today to
       conclude that defendant lacks standing to challenge the validity of the circuit court’s dismissal
       order based on lack of personal jurisdiction over the State.
¶ 21       Since we have concluded that defendant cannot object to improper service or lack of
       personal jurisdiction on behalf of the State, we need not consider whether the record is
       sufficient to support defendant’s claim that service was improper. Nor do we need to consider
       the merits of the substantive arguments originally raised in the petition.

¶ 22                                        CONCLUSION
¶ 23       A section 2-1401 petitioner must serve the responding party with notice of the petition in
       compliance with Supreme Court Rule 105. If the respondent is not properly served, the court
       lacks personal jurisdiction unless the respondent waives service or makes an appearance.
       Today, we do not address whether service complied with Rule 105 or whether the State waived
       service or filed an appearance. We do not need to reach a conclusion on these issues because
       defendant is estopped from claiming service was improper based on his own failure to comply
       with the requirements of Rule 105. Notions of fair play dictate that a litigant should not be
       allowed to relitigate a matter resolved against him based on his own error. Furthermore,
       defendant does not have standing to challenge the validity of the circuit court’s dismissal order
       based on lack of personal jurisdiction. Because service and personal jurisdiction can be
       waived, only the party to whom service is owed can object to improper service. Therefore, the
       judgment of the appellate court is reversed, and the judgment of the circuit court is affirmed.


                                                    -6-
       Defendant’s petition is dismissed with prejudice.

¶ 24      Appellate court judgment reversed.
¶ 25      Circuit court judgment affirmed.




                                                  -7-
