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                              Appellate Court                          Date: 2017.10.30
                                                                       12:20:43 -05'00'




                   People v. Smith, 2017 IL App (3d) 150265



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           PAUL A. SMITH, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-15-0265



Filed             September 14, 2017



Decision Under    Appeal from the Circuit Court of Will County, No. 06-CF-1057; the
Review            Hon. Amy M. Bertani-Tomczak, Judge, presiding.



Judgment          Affirmed as modified.


Counsel on        Michael J. Pelletier and Ryan R. Wilson, of State Appellate
Appeal            Defender’s Office, of Springfield, for appellant.

                  James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino,
                  Lawrence M. Bauer, and Gary F. Gnidovec, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE McDADE delivered the judgment of the court, with
                  opinion.
                  Justices Schmidt and Wright concurred in the judgment and opinion.
                                               OPINION

¶1       Defendant, Paul A. Smith, appeals the dismissal of his pro se petition for postjudgment
     relief. We affirm as modified.

¶2                                               FACTS
¶3       Following two separate bench trials, defendant was found guilty of aggravated battery with
     a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)) and being an armed habitual criminal (720
     ILCS 5/24-1.7 (West 2006)). The court sentenced defendant to 40 years’ imprisonment for
     aggravated battery with a firearm to run consecutively with a 20-year term for being an armed
     habitual criminal.
¶4       Defendant appealed, arguing that the circuit court erred in limiting defendant’s
     cross-examination of a State witness. We affirmed defendant’s convictions and sentences.
     People v. Smith, No. 3-08-0408 (2010) (unpublished order under Supreme Court Rule 23).
¶5       Subsequently, defendant filed a petition for postconviction relief. The petition advanced to
     the second stage. Appointed counsel amended defendant’s petition and alleged, in relevant
     part, that the State knowingly used perjured testimony, which falsely claimed that defendant
     pushed his mother during his confrontation with the victim. The circuit court granted the
     State’s motion to dismiss defendant’s postconviction petition. Defendant appealed, arguing
     that postconviction counsel provided unreasonable assistance. We affirmed the dismissal of
     defendant’s petition. People v. Smith, 2016 IL App (3d) 140387-U.
¶6       Next, on February 13, 2015, 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 2014)).
     The notice accompanying the petition stated that defendant sent the petition through regular
     mail. The petition alleged that defendant’s conviction was void because he was indicted based
     on the false testimony that he pushed his mother during his physical altercation with the victim.
¶7       On February 18, 2015, the circuit court continued the case. Defendant was not present in
     the courtroom, and the record reveals no active participation by the State, although the
     transcript from the proceeding does list the State as appearing. The circuit court provided the
     State with a copy of defendant’s petition.
¶8       One day later, the State filed a special limited appearance and objection to the circuit
     court’s jurisdiction, arguing that defendant had not properly served his pro se petition, as
     defendant served the petition through regular mail. On the same day, the State filed a combined
     motion to dismiss defendant’s petition. The motion argued that defendant’s petition should be
     dismissed on four grounds: (1) the court lacked personal jurisdiction over it because the State
     had not been properly served, (2) defendant’s petition failed to state a cause of action, (3) the
     issues raised in defendant’s petition were barred by res judicata, and (4) the petition was
     untimely.
¶9       Eight days after the State filed its motions, the circuit court held a hearing at which only the
     State was present. The court dismissed the petition “for lack of jurisdiction for the defendant’s
     failure to properly serve the State pursuant to Supreme Court Rules. Further, on the merits the
     Court finds the issue is res judicata since the issue was raised and decided during
     postconviction proceedings.”



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¶ 10       After the court dismissed the petition, defendant filed a pro se response to the State’s
       motion to dismiss. In his pro se motion, defendant acknowledged that he failed to properly
       serve the State with his petition. However, defendant stated that his failure to properly serve
       the State was due to the fact that he lacked sufficient funds in his inmate trust account and
       therefore could not afford to send the petition via certified mail. Defendant also addressed the
       State’s arguments that defendant’s claim was barred by res judicata and untimely.
¶ 11       The circuit court held a hearing on defendant’s pro se response to the State’s motion to
       dismiss. The State appeared, but defendant was not present. At the hearing, the State informed
       the court that defendant had filed a response to the State’s motion, but noted that the court had
       already granted the State’s motion to dismiss. The docket entry corresponding to the hearing
       shows that the court acknowledged defendant’s response, but that defendant’s petition had
       already been dismissed. The court took no further action.
¶ 12       Subsequently, defendant filed a pro se motion to reconsider the circuit court’s decision
       granting the State’s motion to dismiss. Defendant’s motion again alleged that he attempted to
       properly serve the State, but he lacked sufficient funds to send the petition by certified mail.
       Defendant requested the court to excuse his failure to comply with the service requirements. In
       addition, defendant argued that the circuit court erred when it went beyond the issue of
       improper service and ultimately found his claim barred by res judicata.
¶ 13       The court held a hearing on defendant’s motion to reconsider, at which time only the State
       appeared. The court denied defendant’s motion to reconsider.

¶ 14                                            ANALYSIS
¶ 15       Initially, we note that both parties agree that defendant failed to properly serve the State
       with his section 2-1401 petition. Service of a section 2-1401 petition is governed by the
       requirements of Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). See Ill. S. Ct. R. 106 (eff.
       Aug. 1, 1985). Rule 105 provides that service may be effected by summons, certified or
       registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Here, defendant
       served the petition on the State through regular mail. Service was, therefore, insufficient, and
       the court lacked personal jurisdiction over the State. See BAC Home Loans Servicing, LP v.
       Mitchell, 2014 IL 116311, ¶ 18 (personal jurisdiction may be established either by sufficient
       service or by a party’s submission to jurisdiction).
¶ 16       Despite his failure to properly serve the State, defendant contends that dismissal was
       premature. Specifically, defendant contends that because he failed to properly serve the State,
       the 30-day period within which the State could respond to the petition never commenced. We
       find our supreme court’s recent decision in People v. Matthews, 2016 IL 118114, instructive.
¶ 17       In Matthews, defendant mailed a section 2-1401 petition by regular mail. Id. ¶ 4. The State
       did not appear or respond to the petition. Id. Subsequently, the circuit court sua sponte
       dismissed the petition on the basis that the petition was untimely, contained no argument of
       merit, and lacked any supporting documentation. Id. The court did not consider the
       jurisdictional issue in dismissing defendant’s petition. On appeal, defendant argued that he
       failed to properly serve the State with his section 2-1401 petition, and he argued that the
       dismissal order was premature based on his own failure to comply with the applicable service
       requirements. Id. ¶ 7. The court in Matthews rejected defendant’s contention that the 30-day
       period never commenced because he never properly served his petition on the State. Id. ¶ 8.
       Specifically, the court held that defendant lacked standing to raise an objection to personal

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       jurisdiction on the State’s behalf. Id. ¶ 20. In so holding, the court found that a “defendant
       cannot challenge the trial court order based on his own failure to properly serve the State.” Id.
       ¶ 15. The court proceeded to affirm the dismissal of the petition on the merits. Id. ¶¶ 21-23.
¶ 18       Like the defendant in Matthews, defendant seeks to use his own failure to comply with the
       supreme court rules as grounds to challenge the court’s dismissal order. Because defendant
       cannot use his failure to comply with the supreme court rules to raise an objection on the
       State’s behalf, he lacks standing to argue that dismissal was premature. However, unlike the
       defendant in Matthews, in the present case the State first raised the issue of personal
       jurisdiction. In other words, defendant is not raising an objection on behalf of the State.
       Instead, he challenges the circuit court’s response to the issues raised in the State’s combined
       motion to dismiss. Thus, while defendant lacks standing to raise an objection to personal
       jurisdiction on the State’s behalf, he can challenge the circuit court’s determination on the
       issues raised in the State’s combined motion to dismiss.
¶ 19       When considering a combined motion objecting to personal jurisdiction and a motion to
       dismiss on other grounds, the circuit court must address the jurisdictional issue first. Ryburn v.
       People, 349 Ill. App. 3d 990, 994 (2004). In the instant case, the circuit court dismissed
       defendant’s petition for failing to properly serve the State. However, the court went beyond the
       jurisdictional question and also reached the merits of defendant’s petition. Once the circuit
       court determines there is no personal jurisdiction over the State, the court has no power to
       dismiss the petition on the merits. Id. at 993. A dismissal on jurisdictional grounds is not
       res judicata on the merits of the petition. Id. at 994. Accordingly, we modify the court’s order
       to reflect that defendant’s petition was dismissed, without prejudice, on the grounds that
       defendant’s failure to serve the State by certified mail deprived the court of personal
       jurisdiction. We vacate the finding on the merits.
¶ 20       In reaching this conclusion, we reject defendant’s contention that the circuit court’s
       dismissal order should be reversed in its entirety and the cause remanded so that he can
       properly serve the State. We believe the relief we have granted is tantamount to what defendant
       has sought but we disagree with his rationale. Specifically, defendant contends that because the
       State filed its special and limited appearance, the circuit court was obligated to provide him
       with the opportunity to respond to the State’s arguments. There is no dispute that defendant
       failed to comply with the service requirements of Rule 105. Therefore, the court could have
       acted sua sponte to dismiss the petition because service was improper and it lacked personal
       jurisdiction. Defendant fails to explain how the State’s decision to file a limited appearance
       contesting jurisdiction legally precludes a court from acting sua sponte. In either case, the
       court can properly determine that it lacks jurisdiction, and the petition must be dismissed. See
       State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308-09 (1986) (personal jurisdiction can be
       acquired only by service of process in the manner directed by statute). Significantly, defendant
       here suffers no prejudice from our decision to modify the dismissal order to reflect that the
       dismissal was only on jurisdictional grounds. As noted above (supra ¶ 19), dismissal on
       jurisdictional grounds is not res judicata on the merits of the petition. Therefore, defendant
       may refile his petition, comply with the service requirements, and have his petition heard.
¶ 21       Defendant has also raised an alternative argument that relies on Illinois Supreme Court
       Rule 104 (eff. Jan. 4, 2013) to assert that his failure to comply with service may be excused by
       the court upon his application. Rule 104(c) provides: “For good cause shown on ex parte
       application, the court or any judge thereof may excuse the delivery or service of any complaint,

                                                   -4-
       pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish a
       copy promptly and without charge to any party requesting it.” Ill. S. Ct. R. 104(c) (eff. Jan. 4,
       2013). Therefore, defendant argues that the court should not have acted on the State’s motion,
       without first allowing defendant to respond to the State’s argument and seek the court’s
       permission to excuse his improper service. Because Rule 105 governs service of section
       2-1401 petitions, we find defendant’s reliance on Rule 104 misplaced. See Ill. S. Ct. R. 106
       (eff. Aug. 1, 1985) (notice of filing of a petition under section 2-1401 shall be governed by the
       same methods provided in Rule 105 for the giving of notice of additional relief to parties in
       default). Rule 105 does not contain the above quoted exception for failing to comply with the
       service requirements of a section 2-1401 petition. Therefore, the circuit court would have no
       basis to excuse defendant’s improper service.
¶ 22       We would be remiss if we did not acknowledge the difficulty an individual faces when
       attempting to file a pleading while incarcerated. Like defendant in the instant case, many
       incarcerated individuals lack the financial resources necessary to serve the State via certified
       mail. The fact remains, however, that the supreme court has not provided an impoverishment
       exception to the service requirements contained within Rule 105. Moreover, while on its face,
       we find it troubling that the State was allowed to present its limited appearance and motion to
       dismiss without input from defendant, we note that our supreme court, faced with a factual
       variant of that same question in People v. Vincent, 226 Ill. 2d 1, 13 (2007), found that
       “adequate procedural safeguards exist to prevent erroneous sua sponte terminations.”
¶ 23       In Vincent, the circuit court sua sponte dismissed defendant’s section 2-1401 petition, even
       though the State neither appeared nor filed a response. Id. at 5. The dismissal was on the merits
       and not on jurisdictional grounds. Id. Defendant argued that even if the circuit court could act
       without a response from the State, the court was required to provide him notice and an
       opportunity to respond to the court’s action. Id. at 10. The supreme court rejected defendant’s
       contention on the basis that a defendant’s ability to file a motion to reconsider and to appeal the
       dismissal order provided sufficient safeguards to prevent an erroneous sua sponte dismissal of
       a section 2-1401 petition. Id. at 12-13. In coming to this conclusion, the supreme court noted
       that the practice of sua sponte dismissing meritless complaints “comports with due process and
       does not infringe the right of access to the courts.” Id. at 13.
¶ 24       Though Vincent involved a court sua sponte dismissing a section 2-1401 petition, its
       reasoning arguably applies equally to the instant case (where dismissal occurs upon the State’s
       motion). Of the available remedies, a defendant whose petition has been disposed of by the
       court could file a motion to reconsider (which defendant did in this case). See 735 ILCS
       5/2-1203 (West 2014). In addition, a defendant whose cause of action has been terminated for
       improper service could appeal and argue that service was in fact proper (which defendant does
       not argue). See People v. Flowers, 208 Ill. 2d 291, 307 (2003). Thus, the availability of
       corrective remedies, such as a motion to reconsider, render defendant’s absence from the
       hearing and his inability to timely respond to the State’s motion “less of a concern.” Vincent,
       226 Ill. 2d at 13. This defendant utilized one such remedy in the circuit court by filing his
       motion to reconsider. The court considered the motion and denied it. He also filed the instant
       appeal. Further, the mere fact that the State was present at these hearings and presented its
       motion to dismiss in defendant’s absence cannot be characterized as improper ex parte
       communications or waiver of its jurisdictional challenge. Until the law evolves to take into
       account the policy considerations presented in the instant case, we are bound to apply the


                                                    -5-
       holdings and rules of our supreme court (Matthews, 2016 IL 118114, ¶ 23; Vincent, 226 Ill. 2d
       at 13; Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). Blumenthal v. Brewer, 2016 IL 118781, ¶¶ 28-29
       (where our supreme court has declared the law on any point, it alone can overrule and modify
       its previous opinion, and the lower tribunals are bound by such decisions and it is the duty of
       such lower tribunals to follow such decisions in similar cases).

¶ 25                                          CONCLUSION
¶ 26       The judgment of the circuit court of Will County dismissing defendant’s section 2-1401
       petition on jurisdictional grounds is affirmed as modified.

¶ 27      Affirmed as modified.




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