                                    2014 IL App (4th) 130132
                                                                                    FILED
                                                                               December 17, 2014
                                                                                  Carla Bender
                                          NO. 4-13-0132                       4th District Appellate
                                                                                    Court, IL
                                 IN THE APPELLATE COURT

                                          OF ILLINOIS

                                      FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                       )    Appeal from
            Plaintiff-Appellee,                             )    Circuit Court of
            v.                                              )    McLean County
 ALVIN A. ALEXANDER,
                                                            )    No. 91CF480
            Defendant-Appellant.
                                                            )
                                                            )    Honorable
                                                            )    Rebecca Simmons Foley,
                                                            )    Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Presiding Justice Pope and Justice Turner concurred in the judgment and opinion.

                                            OPINION

¶1             In December 2012, defendant, Alvin A. Alexander, pro se filed a document enti-

tled "Leave To File Petition for Relief From Judgment" under section 2-1401(f) of the Code of

Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West 2012)). At the time of his filing, de-

fendant was serving concurrent sentences of (1) natural life for the October 1998 first degree

murder of three people and (2) 50 years for armed robbery (Ill. Rev. Stat. 1987, ch. 38, ¶¶ 9-

1(a)(1), 18-2(a)). In January 2013, the trial court sua sponte denied defendant's petition, finding

that it was frivolous as defined by section 22-105 of the Civil Code (735 ILCS 5/22-105 (West

2012)).

¶2             Defendant appeals, urging this court to vacate the trial court's sua sponte denial of

his December 2012 petition for relief from judgment. Specifically, defendant argues that be-

cause he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff.
Jan. 1, 1989), his petition was not ripe for adjudication. For the reasons that follow, we affirm

and remand with directions.

¶3                                       I. BACKGROUND

¶4                            A. Defendant's Underlying Convictions

¶5             In July 1991, the State charged defendant with (1) three counts of first degree

murder, (2) three counts of first degree murder based on the felony-murder doctrine, and (3)

armed robbery (Ill. Rev. Stat. 1987, ch. 38, ¶¶ 9-1(a)(1), (a)(3), 18-2(a)). Specifically, the State

alleged that on October 27, 1988, defendant shot and killed Scott A. Burton, Robert J. Webb, and

Whitney L. Cole during the commission of an armed robbery.

¶6             At defendant's July 1992 jury trial, Tracey Gault testified that on October 27,

1988, she was working as a cashier at the S&S Liquor Store in Bloomington, Illinois, when she

saw two men enter. As Gault began her preparations to close the store, she noticed the two men

moving toward two other customers—later identified as Burton and Cole. Shortly thereafter,

Gault saw the two men, Burton, and Cole walk down the main aisle of the store. Although Gault

opined that Cole looked upset, she did not notice any interaction among them. Gault's coworker,

Webb, then approached the group, who were now located between the cash register and the

shelves that formed the main aisle. At that moment, Gault noticed that one of the men possessed

a handgun.

¶7             Both men ordered Gault, Webb, Burton, and Cole down on the floor. The taller

man fired his handgun, which Gault considered a warning to follow their instructions. Both men

then ordered Gault to open her cash register. After she complied, the shorter man—whom Gault

identified as defendant—took the money from the register. Gault returned to the floor. Defend-

ant then searched Cole's purse. Finding nothing of value, defendant and his accomplice—later



                                                -2-
identified as Glenn H. Wilson—stated, "Get the safe." Although their words were not directed at

her, Gault got up and walked back to the safe, accompanied by defendant.

¶8             Gault bent down, reached into the safe, and handed wrapped stacks of money to

defendant, who stood directly behind her. Gault then turned toward defendant and asked if he

wanted the change in the safe. Defendant responded, "Hell no. What are you looking at, bitch?"

Defendant then struck Gault with his handgun, causing her to fall back into a corner as her glass-

es hit the ground. Gault—now bleeding from the bridge of her nose—faced away from defend-

ant. At that moment, Gault heard three shots. Afterward, Gault stated that everything "got qui-

et." About 20 seconds later, Gault crawled on her hands and knees and whispered, "You guys,

you guys," attempting to determine whether Webb, Burton, and Cole were still in the store.

When nobody answered, Gault looked around the corner and saw blood coming out of Cole's

mouth. Gault retreated and called 9-1-1.

¶9             The remaining pertinent testimony showed that when police arrived at the store,

Webb, Burton, and Cole were lying on their stomachs with "their hands up to their heads." Bur-

ton died at the store but Webb and Cole—who were still breathing when police arrived—were

transported to a hospital, where they died. Pathologists later determined that Webb, Burton, and

Cole each died of a single gunshot wound to the head.

¶ 10           The jury, after convicting defendant of all counts, determined that he was eligible

for the death penalty as then authorized by Illinois law. However, following another hearing

conducted shortly thereafter, the jury found sufficient mitigating factors to preclude the death

penalty. Immediately after the jury's finding, the trial court imposed the following sentences: (1)

natural life for each first-degree-murder conviction; (2) 80 years for each felony-murder convic-

tion; and (3) 50 years for armed robbery, to be served concurrently.



                                               -3-
¶ 11                    B. Defendant's Filings Subsequent to His Incarceration

¶ 12           Defendant appealed his conviction and sentence, challenging (1) Gault's out-of-

court and in-court identifications, (2) the trial court's admission of a black leather jacket, (3) the

sufficiency of the evidence presented to convict him, and (4) his felony-murder convictions be-

cause they were based on the same physical act as his first-degree-murder convictions. This

court affirmed but vacated defendant's felony-murder convictions. People v. Alexander, No. 4-

92-0877 (June 24, 1994) (unpublished order under Supreme Court Rule 23).

¶ 13           In May 1993, defendant pro se filed his first petition for relief under the Post-

Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8 (West 1992)), alleging

that his trial counsel was incompetent. In January 1995, defendant's appointed counsel filed a

second amended postconviction petition, alleging that (1) defendant's sixth-amendment right to

confront witnesses against him (U.S. Const., amend. VI) was violated when the State presented

evidence of out-of-court statements made by Wilson and (2) defendant received ineffective assis-

tance of trial and appellate counsel. Following a February 1995 hearing, the trial court denied

defendant's petition.

¶ 14           Defendant appealed, and this court affirmed, concluding, in pertinent part, that

defendant failed to demonstrate a confrontation-clause violation, specifically noting that Wilson's

statements did not inculpate defendant. People v. Alexander, No. 4-95-0146, slip order at 7

(Dec. 18, 1996) (unpublished order under Supreme Court Rule 23).

¶ 15           In April 1997, defendant pro se filed a second postconviction petition, raising the

same claims as in his first postconviction petition. In May 1997, the trial court dismissed de-

fendant's petition as frivolous and patently without merit. Initially, defendant appealed the

court's dismissal, but in August 1997, defendant abandoned his appeal.



                                                 -4-
¶ 16           In June 1997, defendant filed a petition for relief from judgment under section 2-

1401 of the Civil Code, alleging that the State knowingly used false evidence to convict him. In

July 1997, the trial court struck defendant's petition because defendant's case was still on appeal

from the court's May 1997 dismissal of defendant's second postconviction petition.

¶ 17           In October 1997, defendant filed a petition for writ of habeas corpus pursuant to

the Habeas Corpus Act (735 ILCS 5/10-101 to 10-137 (West 1996)), alleging that he was entitled

to immediate release from prison because (1) he was innocent; (2) the State's indictment was

tainted because African-Americans were excluded as grand jurors; (3) the appellate court, which

affirmed his conviction, and the supreme court, which denied his petition for leave to appeal,

were improperly constituted in that African-American and Hispanic jurists were underrepresent-

ed; (4) he was denied due-process when the State (a) knowingly used perjured testimony and (b)

deliberately withheld impeachment evidence favorable to him; and (5) the trial court erroneously

admitted into evidence a brown paper bag and a black leather jacket because the State failed to

establish a continuous chain of custody. That same month, the court sua sponte denied defend-

ant's writ of habeas corpus, finding that defendant's claims were meritless.

¶ 18            Defendant appealed, but the office of the State Appellate Defender (OSAD) later

filed a motion to withdraw as appointed counsel pursuant to Anders v. California, 386 U.S. 738

(1967), alleging that defendant's appeal presented no meritorious issues. This court granted

OSAD's motion to withdraw and affirmed the trial court's judgment, concluding that the allega-

tions of defendant's petition, even if true, would not state a claim warranting the issuance of a

writ of habeas corpus. People v. Alexander, No. 4-97-1038, slip order at 3-4 (Jan. 11, 1999)

(unpublished order under Supreme Court Rule 23).




                                                -5-
¶ 19           In February 1999, defendant pro se filed a third postconviction petition based on

"new evidence," alleging that he was denied a fair trial because the State knowingly used per-

jured testimony to convict him. On August 3, 2001, defendant's appointed counsel filed an

amended third petition for postconviction relief, alleging that defendant was denied due process

of law because (1) the State's indictment of defendant was procured, in part, through perjured

testimony; (2) the State elicited false testimony regarding when police acquired possession of a

black leather jacket; (3) the trial court admitted the aforementioned leather jacket without estab-

lishing a chain of custody; and (4) the State knowingly solicited perjured testimony at defend-

ant's July 1992 trial. In addition, defendant argued that his sentence should be vacated, or in the

alternative, reduced because the State's indictment did not indicate that defendant was eligible for

the death penalty, life imprisonment, or an extended-term sentence. Three days later, defendant's

appointed counsel also filed a motion for forensic deoxyribonucleic acid (DNA) testing pursuant

to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West 2000)).

¶ 20           In July 2002, the State filed a motion to dismiss defendant's amended third peti-

tion for postconviction relief. Following a later hearing, the trial court granted the State's motion

to dismiss, finding that (1) defendant's claims were raised or could have been raised in defend-

ant's prior petitions or in his direct appeal and were therefore barred by the doctrine of res judi-

cata and (2) the filing of the third petition was untimely and defendant stated no grounds that

would satisfy his statutory burden of showing that the delay was not due to his own culpable

negligence. In September 2002, the court denied defendant's motion for DNA testing.

¶ 21           Defendant appealed the trial court's denial of his motion for DNA testing, and this

court affirmed, concluding that "DNA testing of the leather jacket [did] not have the potential to

significantly advance defendant's claim of actual innocence and thus [was] not 'materially



                                                -6-
relevant' to his claim." People v. Alexander, No. 4-02-0778, slip order at 7 (Sept. 2, 2004) (un-

published order under Supreme Court Rule 23).

¶ 22           In March 2005, defendant pro se filed a petition for relief from judgment under

section 2-1401 of the Civil Code, alleging that his convictions and sentences were unconstitu-

tional and void because the State lacked the statutory authority to introduce Wilson's inculpatory

statements at defendant's July 1992 trial and, as a result, defendant was denied the right to con-

front and cross-examine Wilson. In July 2005, the State filed a motion to dismiss defendant's

petition for relief from judgment. In September 2005, the trial court denied defendant's petition,

finding that it was not only untimely but also "completely without merit."

¶ 23           In October 2005, defendant pro se filed a fourth postconviction petition, again

raising a confrontation-clause argument based on his challenge to the State's introduction of Wil-

son's allegedly inculpatory statements at his July 1992 trial. Later that month, the trial court sent

defendant a letter, denying him leave to file a successive postconviction petition under section

122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West 2004)).

¶ 24           Defendant appealed the trial court's (1) September 2005 denial of his petition for

relief from judgment and (2) October 2005 denial to file a successive postconviction petition un-

der section 122-1(f) of the Postconviction Act. This court later consolidated defendant's appeals.

In October 2006, OSAD filed a motion to withdraw as appointed counsel pursuant to Pennsylva-

nia v. Finley, 481 U.S. 551 (1987), alleging that defendant's appeal presented no meritorious is-

sues. This court granted OSAD's motion to withdraw and affirmed the court's judgment. In so

doing, we concluded that in both cases, defendant's claims were barred by the doctrine of res ju-

dicata. People v. Alexander, Nos. 4-05-0897, 4-05-0960, slip order at 6-7 (Mar. 26, 2007) (un-

published order under Supreme Court Rule 23).



                                                -7-
¶ 25                                   C. The Issue on Appeal

¶ 26           The issue in this appeal—defendant's sixth appeal to this court—concerns defend-

ant's pro se document entitled "leave to file petition for relief from judgment" pursuant to section

2-1401(f) of the Civil Code, which defendant mailed to the McLean County circuit clerk on De-

cember 17, 2012. In his petition, defendant alleged that his "fourth[-]amendment right to be free

from [an] unreasonable seizure was violated because his arrest was not supported by probable

cause." Defendant contended that absent certain untruthful testimony provided to a July 1991

grand jury, the police would have lacked sufficient probable cause to arrest him. Defendant as-

serted that this revelation entitled him to relief under section 2-1401(f) of the Civil Code because

"his arrest was invalid" and as a result, "it rendered void the personal jurisdiction of the [trial

court]."

¶ 27           Included with defendant's petition was a handwritten "Notice" addressed to

Ronald Dozier, McLean County State's Attorney. In that notice, which essentially reiterated the

notice language of Illinois Supreme Court Rule 105(a) (eff. Jan. 1, 1989), defendant wrote the

following:

                       "The pleading seeking new and additional relief against

               you has been filed and that a judgment by default may be taken

               against you for the new or additional relief unless you file[] an an-

               swer or otherwise file[] an appearance in the Office of the Clerk of

               the Court within 30 days after service, receipt by certified or regis-

               tered mail, or the first publication of the notice, as the case may be,

               exclusive of the day of service, receipt, or first publication."




                                                 -8-
Defendant also signed an affidavit of service, certifying that on December 17, 2012, he served a

copy of his petition on each party by enclosing his filing in a sealed envelope and placing it in a

designated prison receptacle for delivery by the United States Postal Service.

¶ 28           On December 24, 2012, the circuit clerk filed defendant's petition, noting in a

docket entry dated that same day that a copy of defendant's filing was sent to the State, which

included defendant's "affidavit of service" and "proof/certification of service."

¶ 29           On January 30, 2013, the trial court sua sponte denied defendant's petition in a

written order, finding that it was frivolous as defined by section 22-105 of the Civil Code.

¶ 30           This appeal followed.

¶ 31                                      II. ANALYSIS

¶ 32           On appeal, defendant (now represented by OSAD) urges this court to vacate the

trial court's sua sponte denial of his December 2012 petition for relief from judgment, arguing

that because he did not properly serve the State as required by Rule 105, his petition was not ripe

for adjudication. We disagree.

¶ 33              A. Petitions for Relief From Judgments Under Section 2-1401
                      of the Civil Code, Notice, and the Standard of Review

¶ 34           "Section 2-1401 allows for relief from final judgments more than 30 days after

their entry, provided the petition proves by a preponderance of evidence certain elements." Peo-

ple v. Laugharn, 233 Ill. 2d 318, 322, 909 N.E.2d 802, 804-05 (2009). "[A] petition for relief

from judgment must be filed 'not later than [two] years after the entry of the order or judgment'

sought to be vacated." Price v. Philip Morris, Inc., No. 112067 (Ill. Sept. 30, 2011) (Garman, J.,

dissenting upon denial of petition for leave to appeal) (quoting 735 ILCS 5/2-1401(c) (West

2008)). "Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence,

of a defense or claim that would have precluded entry of the judgment in the original action and

                                                -9-
diligence in both discovering the defense or claim and presenting the petition." People v. Vin-

cent, 226 Ill. 2d 1, 7-8, 871 N.E.2d 17, 22 (2007).

¶ 35           Section 2-1401(b) provides that "[a]ll parties to the petition shall be notified as

provided by rule." 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 states

that notice of the filing of a petition under section 2-1401 of the Civil Code "shall be given by

the same methods provided in Rule 105." Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) pro-

vides that notice shall be directed to the party and must be served either by summons, by prepaid

certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). "The no-

tice must state that a judgment by default may be taken against the party unless he files an an-

swer or otherwise files an appearance within 30 days after service." People v. Nitz, 2012 IL App

(2d) 091165, ¶ 9, 971 N.E.2d 633 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)).

¶ 36           A trial court's sua sponte denial of the relief sought in a section 2-1401 petition is

the same as a dismissal with prejudice. Vincent, 226 Ill. 2d at 12, 871 N.E.2d at 25. We review

de novo a trial court's denial of a petition brought under section 2-1401 of the Civil Code.

Laugharn, 233 Ill. 2d at 322, 909 N.E.2d at 804; Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25-26.

¶ 37          B. The Trial Court's Sua Sponte Denial of Defendant's Section 2-1401 Petition

¶ 38              1. The Supreme Court's Guidance on Section 2-1401 Petitions

¶ 39           To place defendant's claim in its proper context, we begin our analysis with Vin-

cent, in which the supreme court considered, in part, "whether a trial court may dispose of a

properly served section 2-1401 petition without benefit of responsive pleadings." Id. at 5, 871

N.E.2d at 21. In rejecting the prisoner's argument as to that issue, the supreme court held that

"the State's failure to answer the petition constituted an admission of all well-pleaded facts,"

which rendered the petition "ripe for adjudication." Id. at 9-10, 871 N.E.2d at 24.



                                                - 10 -
¶ 40           Two years later, in Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805, the supreme

court considered the propriety of the trial court's sua sponte dismissal of a prisoner's section 2-

1401 petition seven days after its filing with the court. The supreme court held that the court's

dismissal of the prisoner's petition before the expiration of the 30-day period in which the State

could answer or plead was premature, explaining that "[w]hile Vincent allows for sua sponte

dismissals of section 2-1401 petitions, it did not authorize such action prior to the expiration of

the 30-day period." Id. The supreme court in Laugharn concluded that (1) the prisoner's section

2-1401 petition was "not 'ripe for adjudication' " and (2) the "court's dismissal short-circuited the

proceedings and deprived the State of the time it was entitled to answer or otherwise plead." Id.

¶ 41           Based on Vincent and Laugharn, the law in Illinois is settled that (1) a trial court

may dismiss a section 2-1401 petition on its own motion without benefit of responsive pleadings

(Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not adjudicate a section 2-1401

petition prior to the 30-day period in which the respondent can answer or otherwise plead

(Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805). In both Vincent and Laugharn, service under

Rule 105 was not at issue. Defendant's claim in this case, however, presents a different scenario.

¶ 42                            2. Defendant's Section 2-1401 Claim

¶ 43                            a. Defendant's Underlying Rationale

¶ 44           As we have previously noted, defendant argues that because he did not properly

serve the State as required by Rule 105, his petition was not ripe for adjudication. In his brief to

this court, defendant acknowledges that he "executed the required 'default' notice directed at the

State" and that "[t]he record also contains a proof of service directed at the clerk of the [trial]

court." Despite these admissions, defendant contends that because he sent his petition by regular

mail, he failed to comply with the provisions of Rule 105 regarding proper service of his notice



                                                 - 11 -
by either (1) summons, (2) certified or registered mail, or (3) publication. Defendant then asserts

that because service was improper, the 30-day period for the State to answer or otherwise plead

did not even begin. Primarily relying on Vincent and Laugharn, defendant claims that the court's

denial was premature because his petition was not yet ripe for adjudication. In his prayer for re-

lief, defendant requests that this court vacate the trial court's order denying his section 2-1401

petition and "remand for further proceedings, *** specifically for the opportunity *** to properly

serve the State." We decline to do so.

¶ 45           In this case, the sequence of events that prompted the trial court's denial occurred

as follows. On December 17, 2012, defendant mailed his request for leave to file a section 2-

1401 petition to the circuit clerk. On December 24, 2012, the circuit clerk filed defendant's peti-

tion on his behalf with the court. More than 30 days later, on January 30, 2013, the court denied

defendant's claim, finding that it was frivolous as defined by section 22-105 of the Civil Code.

At that time, the record showed (1) defendant's representations that he served a copy of his peti-

tion on the State by enclosing his filing in a sealed envelope and placing it in a designated prison

receptacle for delivery by the United States Postal Service and (2) the circuit clerk's docket entry

certifying that a copy of defendant's petition, which included defendant's notice, was sent to the

State. Vincent held that the failure to respond to a section 2-1401 petition "constitutes an admis-

sion of all well-pleaded facts [citation], and the trial court may decide the case on the pleadings,

affidavits, exhibits[,] and supporting material before it, including the record of the prior proceed-

ings." Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23. The court's denial of defendant's petition oc-

curred in this context.

¶ 46           The flaw in defendant's argument is that under Laugharn, the primary purpose of

the 30-day period is to afford the State sufficient time to respond to a petitioner's claims seeking



                                                - 12 -
relief from judgment before a trial court may sua sponte consider the petition. Laugharn, 233 Ill.

2d at 323, 909 N.E.2d at 805. In other words, the court must allow the State time to make its po-

sition known. However, the 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. 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. Indeed, no practical reason would exist to comply with the provisions of Rule 105

because to do so would foreclose that avenue of review, which effectively empowers a prisoner

to persist in filing frivolous claims.

¶ 47            As we have previously noted, included with defendant's December 2012 petition

for relief from judgment was a handwritten document, entitled "Notice," that substantially reiter-

ated the language of Rule 105(a) regarding the consequences of not responding to a petition for

relief from judgment within 30 days after service effected by either summons, certified or regis-

tered mail, or publication. This notice defendant sent out reveals his knowledge of the require-

ments of Rule 105, which he chose to disregard. Defendant now seeks to benefit by his failure,

claiming that the trial court erred by denying his petition for relief from judgment more than 30

days after the petition's filing because he improperly effectuated service on the State by regular

mail. We refuse to reward defendant for his knowing failure to comply with Rule 105. Defend-

ant should not be able to serve a party incorrectly and then rely on the incorrect service to seek

reversal.

¶ 48            We find support for our conclusion in a case that similarly rejected such argu-

ments. See People v. Kuhn, 2014 IL App (3d) 130092, ¶¶ 13, 15, 16 N.E.3d 872 (rejecting the



                                               - 13 -
defendant's "unusual position of objecting to his failure to properly serve the State with notice of

his section 2-1401 petition"; in that case, the trial court ruled more than 30 days after the defend-

ant filed his petition, and the appellate court noted that the State claimed it had actual notice of

the petition, which, as here, was sent by regular mail).

¶ 49           In People v. Carter, 2014 IL App (1st) 122613, ¶ 8, 8 N.E.3d 441, the appellate

court considered the same issue now before us—that is, whether a prisoner's defective service of

a section 2-1401 petition prevents a trial court from sua sponte considering the petition after 30

days have passed. In reversing the court's sua sponte dismissal and remanding for further pro-

ceedings, the appellate court concluded, as follows:

                       "The State argues that in the interest of judicial economy

               we find that the State waived service and affirm the trial court. Ju-

               dicial economy is best served when the prosecutor, in the first in-

               stance, 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 re-

               sponse. Should the trial court then dismiss the petition, this poten-

               tial appellate issue will be eliminated. Otherwise *** 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 re-

               view." Id. ¶ 24, 8 N.E.3d 441.

The appellate court in Carter reasoned that "[b]ecause Laugharn and Vincent demand that we

base our determination as to whether the *** court prematurely sua sponte dismissed a section 2-



                                                - 14 -
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 [State]." Id. ¶ 25, 8 N.E.3d 441.

¶ 50            We decline to follow Carter because we disagree that the supreme court's deci-

sions in Laugharn and Vincent mandate such a result. In this appeal, the State (1) does not con-

test the deficient service, (2) has taken the position that defendant's petition is frivolous (a posi-

tion we agree with), and (3) has represented to this court that it will take the same position if the

case is remanded to the trial court. Under these circumstances, we see no reason to remand the

case so that (1) defendant can properly serve the State or the State can waive service, (2) the

State can respond by repeating its position that defendant's petition is frivolous, and (3) the court

can repeat its denial of defendant's petition.

¶ 51            We find support for our position in numerous cases in which the supreme court

favors the efficient expenditure of judicial resources. See Poindexter v. State, 229 Ill. 2d 194,

207, 890 N.E.2d 410, 419 (2008) (requiring a petitioner to exhaust all administrative remedies

before appealing, which may result in a conservation of judicial resources); Gallagher v. Lenart,

226 Ill. 2d 208, 239, 874 N.E.2d 43, 62 (2007) (requiring the existence of an explicit waiver of a

compensation lien would mitigate settling parties' expending "time and money arguing over the

interpretation of settlement provisions, and valuable judicial resources will be conserved"); Peo-

ple v. Young, 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507 (1980) (declining to permit a trial court to

test the veracity of the State certification under Illinois Supreme Court Rule 604(a)(1) (eff. July

1, 1975) that a suppression order impairs the State's case because such oversight would not justi-

fy the expenditure of judicial resources necessary to make such a determination). In addition,

such a mandate would be inconsistent with the well-established principle that a court "retain[s] a



                                                 - 15 -
traditional right of discretionary control over its own docket." Oldenstedt v. Marshall Erdman &

Associates, Inc., 381 Ill. App. 3d 1, 15, 884 N.E.2d 830, 843 (2008).

¶ 52                    b. The Merits of Defendant's Section 2-1401 Claim

¶ 53           In his brief to this court, defendant does not address the propriety of the trial

court's dismissal of his section 2-1401 petition. However, we review de novo a court's denial of

a petition raised under section 2-1401 of the Civil Code (Laugharn, 233 Ill. 2d at 322, 909

N.E.2d at 804; Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25-26), which requires us to "consider[]

anew the facts and law related to the case" (Wiseman-Hughes Enterprises, Inc. v. Reger, 248 Ill.

App. 3d 854, 857, 617 N.E.2d 1310, 1312 (1993)). In so doing, we review "the trial court's

judgment and not the reasons given for that judgment." Nelson v. Aurora Equipment Co., 391

Ill. App. 3d 1036, 1044, 909 N.E.2d 931, 939 (2009).

¶ 54           In its brief to this court—as we have previously noted—the State posits that

"[h]ad the State been properly served, it would have (1) refrained from filing any pleadings to a

clearly frivolous petition as the record reflects currently[] or (2) filed a response arguing that in-

deed defendant's petition was frivolous and meritless." Given the State's stance and based on the

record in this case, we conclude that the trial court correctly determined that the allegations con-

tained within defendant's December 2012 section 2-1401 petition are frivolous and fail to state a

cause of action for relief from judgment under section 2-1401 of the Civil Code. Accordingly,

we affirm the court's judgment.

¶ 55                         C. Defendant's Abuse of the Court System

¶ 56           As the aforementioned history of this case clearly reveals, defendant is not con-

tent with his plight in life, which began over 22 years ago with his July 1992 convictions for his

complicity in three brutal murders committed during an armed robbery. Since that time, defend-



                                                - 16 -
ant has made numerous claims under the Postconviction Act, Habeas Corpus Act, and Civil Code

in the hope of raising any issue—however obscure, repeated, or futile—that would end or curtail

his current incarceration. Those filings, which the trial court has consistently found either frivo-

lous or procedurally barred, have undoubtedly caused the expenditures of scarce judicial re-

sources.

¶ 57            We note that in its January 2013 order disposing of defendant's frivolous section

2-1401 claim, the court warned defendant that "any subsequent pleadings determined to be frivo-

lous may be subject to the imposition of court costs and garnishment of the [d]efendant's De-

partment of Corrections Trust Fund Account." Despite the commendable judicial restraint the

trial court has shown thus far, we encourage the court to avail itself of section 22-105(a) of the

Civil Code, which makes defendant financially responsible for his frivolous filings, if defendant

disregards the court's warning and continues to file frivolous pleadings.

¶ 58            The instant appeal, which we have previously noted is defendant's sixth before

this court, concerns the trial court's sua sponte denial of defendant's December 2012 document

entitled "leave to file petition for relief from judgment" under section 2-1401(f) of the Civil

Code, in which defendant essentially challenges the court's personal jurisdiction. As we have

previously concluded, defendant's claim is without question frivolous, and he had no legitimate

basis for appealing the court's sua sponte denial of his jurisdictional claim. The fact that

OSAD—in demonstrating its usual competence and professionalism—raised a colorable argu-

ment on appeal regarding service of process was merely fortuitous. It is readily apparent that

without some consequences for his repeated frivolous filings, defendant will continue to burden

the trial and appellate courts.




                                               - 17 -
¶ 59           Accordingly, we order defendant to show cause within 30 days why sanctions

should not be entered against him under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994)

for filing a frivolous appeal. Until such time as (1) defendant responds to this order and (2) this

court determines what action to take, we direct the clerk of this court to disregard—and by that

we mean to not file—any new appeals submitted to this court by defendant. See Williams v.

Commissary Department of the Department of Corrections, 407 Ill. App. 3d 1135, 1138, 948

N.E.2d 1061, 1063 (2011).

¶ 60                                      III. EPILOGUE

¶ 61           As noted earlier, defendant argues that the trial court's sua sponte denial of his

section 2-1401 petition was premature, given that the State was never properly served by him

because service cannot be effectuated by "regular mail" under Rule 105. This precise argument

has been made repeatedly over the last few years by other defendants who similarly complained

about trial courts' sua sponte dismissals after the 30-day period has expired under circumstances

where they have failed to properly serve the State under Rule 105. A partial list of such cases

follows: Carter, 2014 IL App (1st) 122613, 8 N.E.3d 441; People v. Ocon, 2014 IL App (1st)

120912, 7 N.E.3d 42; People v. Matthews, 2014 IL App (1st) 121913-U; People v. Hible, 2013

IL App (4th) 120171-U; People v. Miller, 2012 IL App (5th) 110201, 981 N.E.2d 528; People v.

Marcrum, 2013 IL App (4th) 120154-U; Oliver v. Pfister, 2013 IL App (4th) 120885-U; Rynders

v. Dawson, 2012 IL App (4th) 120830-U; Nitz, 2012 IL App (2d) 091165, 971 N.E.2d 633; Peo-

ple v. Nash, 2013 IL App (1st) 112795-U; Kuhn, 2014 IL App (3d) 130092, 16 N.E.3d 872; and

People v. Prado, 2012 IL App (2d) 110767, 979 N.E.2d 564.

¶ 62           The above list represents an astonishing and embarrassing squandering of scarce

judicial resources. We use the term "embarrassing" advisedly because accepting defendant's ar-



                                               - 18 -
gument essentially renders the judiciary defenseless against "frequent-flyer litigators" like de-

fendant, who, with nothing but time on their hands, can continue to bombard trial courts with

frivolous litigation, ostensibly brought pursuant to section 2-1401. Then, when they fail to com-

ply with Rule 105's technical service requirements, they complain to the appellate courts about

the trial courts' sua sponte dismissals, demanding that their utterly groundless claims be remand-

ed back to the trial court for further proceedings in which everyone involved—including the de-

fendants filing the groundless pleadings—knows to a certainty that no relief will be forthcoming.

¶ 63           Surely, the judiciary cannot permit this situation to continue. Doing so simply

empowers defendants like the one now before us, who is unhappy with his lot in life—sitting in

prison merely because of his complicity in the execution of three innocent people—to continue

to "attack the system" with groundless claims, thereby requiring the courts to squander their

scarce resources. Indeed, we surmise that forcing the courts to do so is likely defendant's key

motivation. "Ensuring open and meaningful access to the courts means denying access to those

who are intent on disrupting the judicial process." People v. Austin, 2014 IL App (4th) 140408,

¶ 27.

¶ 64                                    IV. CONCLUSION

¶ 65           For the reasons stated, we affirm the trial court's judgment and remand with direc-

tions.

¶ 66           Affirmed; cause remanded with directions.




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