                                                                                 THIRD DIVISION
                                                                                 November 28, 2007




No. 1-04-1090


THE PEOPLE OF THE STATE OF ILLINOIS,                    )       Appeal from the
                                                        )       Circuit Court of
                        Plaintiff-Appellee,             )       Cook County.
                                                        )
v.                                                      )       Nos.     90 CR 11981
                                                        )                90 CR 11984
                                                        )                90 CR 11987
                                                        )
ROBERT ALLEN,                                           )         Honorable
                                                        )       James B. Linn,
                        Defendant-Appellant.            )       Judge Presiding.


        JUSTICE THEIS delivered the opinion of the court:

        Defendant Robert Allen appeals from the dismissal of his petition for relief under section

2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2002)). On appeal,

defendant contends that: (1) the trial court treated his petition as a post-conviction petition and

improperly failed to address all of its allegations; (2) alternatively, if the court considered his

pleading as a section 2-1401 petition, the court lacked the statutory authority to “summarily

dismiss” it; and (3) the “summary dismissal” of his section 2-1401 petition was not harmless

where it presented a meritorious issue. For the following reasons, we affirm.

        The following facts are relevant to the disposition of this appeal. In trial court case

number 90 CR 11984, defendant was convicted by a jury of attempted first degree murder, armed

robbery, and armed violence for the April 15, 1990 armed robbery of a Trak Auto store (the Trak

Auto robbery). Defendant was sentenced to concurrent terms of 55 years’ imprisonment on each
1-04-1090

conviction. His codefendant, Tony Anderson, was found guilty of all three offenses following a

bench trial. During defendant’s trial, the evidence revealed that on April 18, 1990, defendant was

a passenger in a stolen car driven by Anderson when it was stopped by police. While an officer

conducted a protective search of defendant, he saw a black jacket lying across defendant’s feet.

The officer took the jacket and felt a .25-caliber automatic pistol in the pocket. Defendant was

then placed under arrest. A ballistics examination later revealed that that gun matched the bullet

retrieved from the scene of the Trak Auto robbery. Additionally at trial, two eyewitnesses

testified that they had positively identified defendant in two separate lineups as the gunman.

Another eyewitness, who was shot in the neck, tentatively identified defendant as the shooter.

Three witnesses had positively identified Anderson as the other offender.

       On direct appeal, defendant argued that the trial court erred in denying his motion to

quash arrest and suppress evidence because the search violated his fourth amendment rights, his

alibi witness was improperly impeached, the prosecutor’s remarks in closing argument denied

defendant a fair trial, and the trial court erred in sentencing him to 55 years’ imprisonment. This

court rejected these arguments and affirmed his convictions and sentences. People v. Allen, No.

1-91-2071 (July 12, 1994) (unpublished order under Supreme Court Rule 23). This court further

found that the jury “had sufficient evidence from which to conclude that defendant was the

gunman during the robbery of the Trak Auto store.” Allen, slip op. at 12. The supreme court

denied his petition for leave to appeal. People v. Allen, 157 Ill. 2d 506, 642 N.E.2d 1286 (1994).

       Following a jury trial in case number 90 CR 11987, defendant was convicted of two

counts of armed robbery in the April 8, 1990 robbery of a drug store (the drug store robbery).


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Defendant was sentenced to a term of 40 years, to be served consecutively to his 55-year sentence

from the Trak Auto robbery. At the motion to suppress, evidence was again presented that

defendant and Anderson had been stopped while driving a stolen vehicle and that defendant was

arrested when police discovered a revolver in a jacket at defendant’s feet. Defendant denied

ownership of the jacket and gun and claimed that he was unaware of the jacket’s presence in the

backseat until it was discovered by the officer. The court denied defendant’s motion to suppress.

At trial, an eyewitness testified that he had identified defendant and Anderson in a lineup as the

perpetrators of the drug store robbery. The witness testified that Anderson stepped behind the

counter and pointed a gun at him while defendant stood at the door. Anderson removed money

from the register while defendant handcuffed the witness. Defendant was also armed with a

handgun. Defendant then handcuffed and locked several employees in a storage room. The

witness identified the gun recovered from defendant’s feet as resembling the gun used in this

robbery. A customer in the drug store also identified defendant and Anderson as the robbers.

       In that direct appeal, defendant argued that he was arrested in violation of his fourth

amendment rights where the police conducted a search for weapons without probable cause

during the traffic stop, the trial court abused its discretion in denying him a continuance to locate

an alibi witness, defendant’s rights were violated when the jury read police reports not in

evidence, even though defendant refused the trial court’s offer of a mistrial, and consecutive

sentences were imposed without the necessary statutory finding that defendant represented a

danger to the public. This court rejected defendant’s contentions and affirmed. People v. Allen,

268 Ill. App. 3d 279, 645 N.E.2d 263 (1994). The supreme court denied defendant’s petition for


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leave to appeal. People v. Allen, 161 Ill. 2d 530, 649 N.E.2d 419 (1995).

       In case number 90 CR 11981, defendant was convicted by a jury of armed robbery in the

April 17, 1990 armed robbery of a jewelry store (the jewelry store robbery). He was sentenced to

30 years’ imprisonment to be served consecutively to his earlier sentences for the Trak Auto and

drug store robberies. At trial, the evidence established that defendant and two unidentified men

entered a jewelry store and one of the men pointed a gun at the owner’s head. Defendant and the

third man also pulled guns and held them to the owner’s back while they removed his wallet.

When defendant discovered an employee on the telephone in the office, defendant pointed a gun

at that employee’s head and told him to hang up the phone. The men handcuffed the owner and

two employees and locked them in the back room while they stole jewelry and cash. Defendant

returned to the back room, pointed his gun at the owner and threatened to kill him if he did not

reveal the location of the money. Evidence was again presented of defendant’s arrest in the stolen

car and of the gun found in the jacket at defendant’s feet. An employee identified this gun as the

gun defendant used in this robbery. A search of that stolen car also revealed a cosmetic case filled

with jewelry. All three jewelry store employees identified defendant as one of the robbers from

lineups conducted two days after the robbery.

       In that direct appeal, defendant argued that his motion to quash arrest and suppress the

gun was improperly denied, the consecutive sentences imposed were improper because the record

did not adequately reflect a belief by the court that consecutive sentences are necessary for the

protection of the public, and his sentence must be reduced to 25 years because the aggregate of

the consecutive sentences imposed exceeded the sum of the maximum extended terms authorized


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for the two most serious felonies. This court rejected defendant’s challenges to his conviction and

affirmed the imposition of consecutive sentences, but reduced his sentence to 25 years’

imprisonment. People v. Allen, 268 Ill. App. 3d 947, 645 N.E.2d 270 (1994). The supreme court

denied defendant’s petition for leave to appeal. People v. Allen, 161 Ill. 2d 530, 649 N.E.2d 419

(1995).

          In 1995, defendant filed a pro se post-conviction petition attacking only the Trak Auto

robbery case, alleging inter alia, that the jacket containing the gun was never proven to belong to

defendant. The trial court dismissed this petition as frivolous and without merit. On direct

appeal, defendant’s counsel filed a motion to withdraw from the case, stating that there were no

arguable bases for collateral relief. This court granted the motion and affirmed the summary

dismissal of defendant’s post-conviction petition. People v. Allen, No. 1-95-2276 (February 27,

1996) (unpublished order under Supreme Court Rule 23).

          On December 17, 2003, defendant filed a pro se petition entitled “Petition for Relief from

Judgement” pursuant to section 2-1401 of the Code in all three of his criminal cases. The petition

alleged that (1) his consecutive, extended-term sentences violated Apprendi v. New Jersey, 530

U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); (2) the denial of his motion to quash his

arrest and suppress the gun was erroneous because there was no basis to believe that he was

armed and dangerous; and (3) he was entitled to DNA and forensic testing which was unavailable

at the time of his trials in light of newly discovered evidence that codefendant Anderson, in a

statement to police, implicated a person other than defendant in the Trak Auto robbery.

          In January 2004, the trial court “summarily denied” defendant's petition. This court then


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accepted defendant’s late notice of appeal.

       Defendant first argues that the trial court treated his section 2-1401 petition as a post-

conviction petition and improperly failed to address all of its allegations. However, the record

contains no evidence that the trial court considered his petition as a post-conviction petition.

Rather, the trial court’s statement that defendant’s “pro se motion for what he calls relief of

judgment is denied” demonstrates that it treated defendant’s pleading as a section 2-1401 petition.

Accordingly, we reject defendant’s argument and find that the trial court properly considered

defendant’s pleading as a section 2-1401 petition.

       Defendant next contends that the trial court committed reversible error by “summarily

dismissing” his section 2-1401 petition. Specifically, defendant argues that summary dismissal is

not authorized under section 2-1401, and that even if summary dismissal is allowed, the dismissal

of his petition was not harmless where it presented a meritorious issue.

       Until recently, a split existed among the various districts of the appellate court over

whether a section 2-1401 petition could be summarily dismissed. The Fourth District held that the

trial court has the inherent authority to summarily dismiss a section 2-1401 petition if it finds that

the petition is frivolous and without merit. See, e.g., People v. Ryburn, 362 Ill. App. 3d 870, 877,

841 N.E.2d 1013, 1018 (4th Dist. 2005); People v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806

N.E.2d 1251, 1254-55 (4th Dist. 2004). The Second and Third Districts held that a circuit court

commits reversible error by dismissing a section 2-1401 petition without giving the defendant

notice and an opportunity to respond to the circuit court’s action and that the appellate court

cannot look beyond this error to assess the merits of the petition. See, e.g., People v. Coleman,


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358 Ill. App. 3d 1063, 1066-71, 835 N.E.2d 387, 390-94 (3d Dist. 2005); People v. Mescall, 347

Ill. App. 3d 995, 1000-01, 808 N.E.2d 1101, 1106-07 (2d Dist. 2004); People v. Pearson, 345 Ill.

App. 3d 191, 193-95, 802 N.E.2d 386, 388-89 (2d Dist. 2003), aff’d on other grounds, 216 Ill.

2d 58, 833 N.E.2d 827 (2005); People v. Gaines, 335 Ill. App. 3d 292, 295-97, 780 N.E.2d 822,

824-26 (2d Dist. 2002). The First District held that although the circuit court does not have the

authority to summarily dismiss section 2-1401 petitions, harmless error analysis should apply to

such dismissals. People v. Dyches, 355 Ill. App. 3d 225, 227-29, 824 N.E.2d 636, 638-39

(2005); People v. Anderson, 352 Ill. App. 3d 934, 939-48, 817 N.E.2d 1000, 1005-11 (2004).

See also People v. Schrader, 353 Ill. App. 3d 684, 686-88, 820 N.E.2d 489, 493-94 (2004).

       However, in People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007), our supreme court

resolved this issue. Therein, the supreme court explained that because an action brought under

section 2-1401 is a civil proceeding, it is subject to the usual rules of civil practice. Vincent, 226

Ill. 2d at 7, 871 N.E.2d at 22. According to those rules, if no responsive pleading is filed, the trial

court must take all well-pleaded facts as true. Vincent, 226 Ill. 2d at 9-10, 871 N.E.2d at 24.

This renders the petition ripe for adjudication as a matter of law. Vincent, 226 Ill. 2d at 10, 871

N.E.2d at 24. Thus, the trial court may sua sponte enter judgment on the pleadings dismissing the

petition with prejudice even if no responsive pleading has been filed. Vincent, 226 Ill. 2d at 9-10,

871 N.E.2d at 23-24. However, because of the civil nature of section 2-1401 petitions, it is

improper to refer to this practice as “summary dismissal.” Vincent, 226 Ill. 2d at 10-11, 871

N.E.2d at 24-25. Further, the defendant need not receive notice prior to the court’s ruling.

Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 26. Finally, the supreme court explained that when a


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trial court sua sponte dismisses a section 2-1401 petition as a manner of law, this court will apply

the de novo standard of review on an appeal from that dismissal. Vincent, 226 Ill. 2d at 14-15,

871 N.E.2d at 26.

        With these principles in mind, we must now determine whether defendant’s petition was

properly denied as a matter of law. On appeal, defendant argues that his petition raised a single

issue of merit. This issue is contained within a section of his 32-page petition where defendant

attacks the police officers’ search of his jacket during the traffic stop and alleges that his search

and the seizure of the gun was unconstitutional. His two-sentence claim states in pertinent part:

                “The petitioner has a right under Due Process of the United States

                Constitution to have a forensic testing to prove his innocense [sic]

                and that the D.N.A. [sic] and forensic testing was unavailable at the

                time of trial and rendered the trial fundamentally unfair which

                violated the petitioner’s fourteenth Amendment rights, and Due

                process of the U.S. Constitution. [Citations.] Under newly

                discovered evidence, petitioner request[s] the Court to consider the

                fact that Anderson, co-defendant of petitioner [pled] guilty to first

                degree murder under indictment number CR 90 11979 which

                involved that particular weapon which was found in the car that

                Anderson had total possession of; and gave a statement to the

                police officers alleging and implicating an offender other than the

                petitioner in the [T]rak Auto occurrence.”


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There is no affidavit from Anderson attached to the petition and no other documents supporting

defendant’s claim that Anderson made such a statement to police. The trial court construed these

sentences as an argument that defendant wanted DNA testing on the gun and jacket. Defense

counsel on appeal acknowledges that with these sentences, defendant is arguing “that he was

entitled to forensic testing, particularly in light of the newly discovered evidence of a statement

made by his co-defendant to the police implicating a different offender other than” defendant.

       This DNA issue did not provide a legal basis for relief under section 2-1401. Defendant

seems to be asking for DNA testing based on Anderson’s statement to police in only the Trak

Auto robbery case. There is no evidence in either the trial court record or the appellate court

decision in the Trak Auto robbery case that there was any blood, saliva or other genetic material

on the gun or jacket which could be subject to DNA testing. Further, there is no evidence in

either the drug store robbery or the jewelry store robbery cases that any DNA existed. Thus,

defendant’s claim for DNA testing in light of Anderson’s statement was properly denied as a

matter of law.

       Moreover, even if the gun could have been tested for the presence of DNA and even if

such testing revealed that defendant’s DNA was not present, such evidence would not exonerate

him. The absence of defendant’s DNA on the gun would not conclusively establish that he did

not handle the gun or that he did not commit the Trak Auto robbery. Further, such DNA

evidence would have had no effect at the motion to suppress the weapon because it would not

have proved that the weapon or the jacket was not his when he had constructive possession of

both items. Additionally, the evidence presented at trial established that defendant was involved


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in this robbery as the shooter. Two eyewitnesses positively identified defendant in two separate

lineups as the gunman. Another eyewitness, who was shot in the neck, tentatively identified

defendant as shooter. Even if defendant’s DNA was not on this gun, this fact would not have

negated or detracted from the credibility of these eyewitnesses. Further, this court found on

direct appeal that the jury “had sufficient evidence from which to conclude that defendant was the

gunman during the robbery of the Trak Auto store.” Allen, slip op. at 12. Therefore, defendant

has not pled facts that would entitle him to relief under section 2-1401, and his petition was

properly denied as a matter of law.

       Further, even if defendant’s two-sentence issue could be construed to be solely a claim of

newly discovered evidence that Anderson made a statement to police, when he pled guilty to a

1990 murder charge, that defendant was not at the Trak Auto robbery, this claim is contradicted

by defendant’s petition itself, which he verified by an affidavit. In the section 2-1401 petition,

defendant states that during the armed robberies, he “acted at the direction of his co-defendant

[Anderson], who instigated the offense[s], rather than being the leader.” In this statement,

although in the context of a sentencing argument, defendant admits to being involved in all the

armed robberies with Anderson, including the Trak Auto robbery. Therefore, defendant’s

allegation of alleged newly discovered evidence in the form of Anderson’s statement is meritless.

       Accordingly, defendant’s section 2-1401 petition was properly denied as a matter of law.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

       Affirmed.

       HOFFMAN, P.J., and CUNNINGHAM, J., concur.


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            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
        _________________________________________________________________

          THE PEOPLE OF THE STATE OF ILLINOIS,

                 Plaintiff-Appellee,

                 v.

          ROBERT ALLEN,

                 Defendant-Appellant.

         ________________________________________________________________

                                         No. 1-04-1090

                                  Appellate Court of Illinois
                                 First District, Third Division

                              Filed: November 28, 2007
        _________________________________________________________________

                      JUSTICE THEIS delivered the opinion of the court.

                      Hoffman, P.J., and Cunningham, J., concur.
        _________________________________________________________________

                    Appeal from the Circuit Court of Cook County
                      Honorable James B. Linn, Judge Presiding
        _________________________________________________________________

For APPELLANT,            Michael J. Pelletier, State Appellate Defender
                          Rebecca L. Myhr, Assistant Appellate Defender
                          Office of the State Appellate Defender
                          203 N. LaSalle St., 24th Floor
                          Chicago, IL 60601

For APPELLEE,             Richard A. Devine, State’s Attorney
                          James E. Fitzgerald, Assistant State’s Attorney
                          Kathryn Schierl, Assistant State’s Attorney
                          Sean J. O’Callaghan, Assistant State’s Attorney
                          300 Richard J. Daley Center
                          Chicago, IL 60602
