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                                                                          Date: 2019.07.10
                              Appellate Court                             10:19:34 -05'00'




                  People v. Rucker, 2018 IL App (2d) 150855



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



District & No.    Second District
                  Docket No. 2-15-0855



Filed             June 27, 2018



Decision Under    Appeal from the Circuit Court of Stephenson County, No. 04-CF-359;
Review            the Hon. James M. Hauser, Judge, presiding.



Judgment          Vacated and remanded.


Counsel on        James E. Chadd, Patricia Mysza, and Emily E. Filpi, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Carl H. Larson, State’s Attorney, of Freeport (Patrick Delfino, David
                  J. Robinson, and Diane L. Campbell, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE JORGENSEN delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Hudson and Justice McLaren concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Defendant, Adrian A. Rucker, appeals from the dismissal of his pro se petition for relief
     from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS
     5/2-1401 (West 2016)), arguing that (1) the trial court dismissed the petition before it was
     ripe for adjudication, doing so only 14 days after the State moved to dismiss, which was 7
     days short of the period allowed by Illinois Supreme Court Rule 182(a) (eff. Jan. 1, 1967),
     and (2) he was deprived of due process when the trial court dismissed his petition before he
     had an opportunity to meaningfully respond. We agree that defendant was deprived of due
     process, and thus, we vacate the dismissal and remand the cause.

¶2                                        I. BACKGROUND
¶3       In 2006, after a jury trial, defendant was convicted of two counts of first degree murder
     (720 ILCS 5/9-1(a)(1), (a)(2) (West 2004)) and one count each of aggravated battery with a
     firearm (id. § 12-4.2), aggravated discharge of a firearm (id. § 24-1.2), and unlawful
     possession of a firearm by a felon (id. § 24-1.1). After merging the aggravated battery and
     aggravated discharge of a firearm convictions, the trial court sentenced defendant to
     concurrent terms of 60 years’ imprisonment for first degree murder (including a 25-year
     firearm enhancement) and 28 years’ imprisonment for unlawful possession of a firearm by a
     felon.
¶4       At trial, the State presented evidence that, at 1 a.m. on November 7, 2004, Freeport police
     responded to a shooting. Isaac Hall, who was lying on the ground between two parked cars,
     suffered five gunshot wounds and bled to death at the scene. Eleven shell casings were found
     at the scene: five from a .45-caliber gun and six from a .38-caliber gun. A firearms expert
     testified that the casings came from at least two different guns. It was possible that more than
     two weapons were involved, but the casings “definitely” did not come from just one weapon.
     Several witnesses testified that Hall was shot after he left an apartment party with two male
     companions. Defendant also attended the party, but he was not present in the apartment when
     Hall left the party. Krisana Patrick testified that she saw defendant, who wore a dark, hooded
     jacket, shoot Hall. Other witnesses testified that the shooter wore a dark, hooded jacket, but
     they did not identify defendant as the shooter. Three witnesses testified that Aisha Meeks,
     defendant’s girlfriend, argued at the party with one of Hall’s companions. Hall and the two
     men left, and shooting erupted outside. About two seconds afterward, Meeks entered the
     apartment and said something to the effect that her “baby daddy ain’t punk, he’ll ride. He got
     two of them thumpers.” Three witnesses testified that “thumpers” referred to guns.
¶5       On direct appeal, this court affirmed, but we modified defendant’s sentence for unlawful
     possession of a firearm by a felon to 14 years’ imprisonment and amended the mittimus to
     provide an additional nine days’ credit toward defendant’s sentence. People v. Rucker, No.
     2-06-0694 (2008) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed
     a pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq.
     (West 2012)), and the trial court dismissed it as frivolous and patently without merit. We
     affirmed the summary dismissal of the petition. People v. Rucker, 2014 IL App (2d)
     120951-U.
¶6       On November 24, 2014, defendant filed a pro se petition for relief from judgment under
     section 2-1401 of the Code. In his petition, he argued that the firearm enhancement was void

                                                -2-
       because the State did not put him on notice of the enhanced penalty in the charging
       instrument or in a statutory notice of its intent to seek an aggravating factor. He also argued
       that the enhancement was not submitted to the jury, which did not receive separate
       aggravating-factor instructions or a special verdict form. Finally, defendant asserted that
       merging the aggravating-factor instructions into the first degree murder instructions
       constituted a double enhancement, and he alleged that trial counsel was ineffective during
       plea negotiations in that he gave incompetent advice concerning the enhancement.
¶7         On January 16, 2015, the State requested one month to respond to defendant’s petition.
       The trial court granted the request. Defendant was not present.
¶8         On February 20, 2015, the State filed a motion to dismiss defendant’s petition, arguing
       that it was filed more than two years after the judgment was entered and that the judgment
       was not void. At a hearing that day, the State asked if defendant should be brought to court,
       and the trial court replied in the negative.
¶9         Fourteen days later, on March 6, 2015, the trial court granted the State’s motion and
       dismissed defendant’s petition, finding that (1) the court had jurisdiction to enter the
       judgment, and thus the judgment was not void, and (2) the petition was filed more than two
       years after the judgment, and thus it was untimely (735 ILCS 5/2-1401(c) (West 2014)).
¶ 10       On March 23, 2015, defendant moved pro se to reconsider. He argued that the issues he
       raised in his petition concerned errors of fact that were unknown to him and the court when
       the judgment was entered, he had not previously raised the issues, and he had shown cause.
       Defendant also argued that the judgment was void as to the firearm enhancement, in that the
       State did not comply with the statute or put defendant on notice that he was being charged
       with the enhancement (which, further, violated the fifth, sixth, and fourteenth amendments).
       In sum, defendant asserted that he was not charged with the firearm enhancement, the jury
       was not instructed on it, it was not discussed during plea negotiations, and the court did not
       have the power to impose it.
¶ 11       At a hearing on July 24, 2015, only the State was present and it asked the court to deny
       defendant’s motion to reconsider, without further elaboration or argument. The court agreed,
       noting that defendant’s section 2-1401 petition was not timely filed.
¶ 12       On August 21, 2015, defendant filed a notice of appeal, and, on September 18, 2015, he
       filed an amended notice of appeal.
¶ 13       On June 22, 2017, appellate counsel moved to withdraw pursuant to Pennsylvania v.
       Finley, 481 U.S. 551 (1987), and People v. Lee, 251 Ill. App. 3d 63 (1993). Defendant filed a
       response, and, on August 10, 2017, this court denied counsel’s motion, without prejudice.
       We ordered counsel to either address any issues of arguable merit raised in defendant’s
       response or file a supplement to the motion to withdraw.

¶ 14                                             II. ANALYSIS
¶ 15       Defendant argues that: (1) Rule 182(a), which entitled defendant to 21 days to respond to
       the State’s motion to dismiss, was violated when the trial court dismissed the petition 14 days
       after the State filed its motion, i.e., before it was ripe for adjudication, and (2) his due process
       rights were violated when the trial court granted the State’s motion without giving him a
       meaningful opportunity to respond. For the following reasons, we agree with defendant that
       he was deprived of due process.


                                                    -3-
¶ 16        We review de novo a claim asserting the denial of due process (People v. Bradley, 2017
       IL App (4th) 150527, ¶ 13), as we do the dismissal of a section 2-1401 petition (People v.
       Vincent, 226 Ill. 2d, 1, 18 (2007)).
¶ 17        An individual’s right to procedural due process is guaranteed by the United States and
       Illinois Constitutions. See U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2. This
       right entitles an individual to “the opportunity to be heard at a meaningful time and in a
       meaningful manner.” In re D.W., 214 Ill. 2d 289, 316 (2005). “Due process is a flexible
       concept”; not all circumstances call for the same type of procedure. People ex rel. Birkett v.
       Konetski, 233 Ill. 2d 185, 201 (2009). However, the fundamental right to the opportunity to
       be heard “ ‘has little reality or worth unless one is informed that the matter is pending.’ ”
       BAC Home Loans Servicing, LP v. Mitchell, 2014 IL 116311, ¶ 28 (quoting Mullane v.
       Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)).
¶ 18        Section 2-1401 establishes a comprehensive procedure that allows for the vacatur of a
       final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2016). It requires that the
       petition be filed in the same proceeding in which the judgment was entered, but it is not a
       continuation of the original action. Id. § 2-1401(b). The statute further requires that the
       petition be supported by affidavit or other appropriate showing as to matters not of record. Id.
       The petition must be filed not later than two years after the entry of the judgment, excluding
       time during which the petitioner is under a legal disability or duress or the ground for relief is
       fraudulently concealed. Id. § 2-1401(c). However, a void judgment may be attacked at any
       time through a section 2-1401 petition. Id. § 2-1401(f); Sarkissian v. Chicago Board of
       Education, 201 Ill. 2d 95, 104 (2002).
¶ 19        In Vincent, the supreme court noted:
                    “This court has consistently held that proceedings under section 2-1401 are
                subject to the usual rules of civil practice. [Citation.] Section 2-1401 petitions are
                essentially complaints inviting responsive pleadings. [Citation.] The petition is
                subject to dismissal for want of legal or factual sufficiency.” Vincent, 226 Ill. 2d at 8.
¶ 20        Defendant argues that he was deprived of due process when the trial court dismissed his
       petition before he had an opportunity to meaningfully respond to the State’s motion to
       dismiss. He asks that we vacate the dismissal and remand for further proceedings. The State
       maintains that defendant had an effective opportunity to respond to its motion by filing a
       motion to reconsider and having the trial court consider and rule upon that motion. For the
       following reasons, we agree with defendant.
¶ 21        In Vincent, the supreme court held that a trial court need not provide a defendant notice
       and an opportunity to respond before sua sponte ruling on the defendant’s section 2-1401
       petition. Id. at 12-13. The defendant’s opportunity to be heard, the court determined, was not
       compromised: the petition was considered by the trial court, the defendant was not prevented
       from bringing a meritorious claim because, under the facts, the defendant’s claim had no
       merit, and “adequate procedural safeguards exist to prevent erroneous sua sponte
       determinations.” Id. at 13. The safeguards available to a defendant whose petition is disposed
       of sua sponte are to (1) file a motion for rehearing (735 ILCS 5/2-1203 (West 2016))1 or

          1
           Section 2-1203(a) of the Code of Civil Procedure states:
              “In all cases tried without a jury, any party may, within 30 days after the entry of the judgment
          or within any further time the court may allow within the 30 days or any extensions thereof, file a

                                                     -4-
       (2) appeal (“which invites de novo review of the legal sufficiency of the complaint”). Id.
       “Thus, the availability of corrective remedies, such as a motion to reconsider, renders the
       lack of notice prior to the ruling less of a concern.” Id.
¶ 22        In Bradley, 2017 IL App (4th) 150527, ¶ 19, the reviewing court held that the trial court
       failed to give the defendant a meaningful opportunity to respond to the State’s motion to
       dismiss the defendant’s pro se section 2-1401 petition, where the trial court granted the
       State’s motion (based on the State’s arguments) two days after the State filed it and before
       allowing the defendant the opportunity to respond. The State conceded on appeal that the
       trial court had acted prematurely in dismissing the petition, but the reviewing court
       nevertheless addressed the merits of that issue, noting that it violates due process “to grant a
       motion to dismiss a complaint without allowing the opposing party notice and a meaningful
       opportunity to be heard.” Id. ¶ 16 (citing cases). The court then held that the defendant’s due
       process rights were violated when the trial court dismissed his petition two days after the
       State filed its motion, without giving him a meaningful opportunity to respond. Id. ¶ 19. It
       remanded the cause for further proceedings and found that it need not address the merits of
       the defendant’s petition or reach his ripeness argument. Id. ¶ 21.
¶ 23        The Bradley court, as does defendant here, relied on several cases that we also find
       instructive. In Merneigh v. Lane, 87 Ill. App. 3d 852, 854 (1980), the Fifth District held that
       the inmate plaintiff was denied due process when the trial court granted the State’s motion to
       dismiss the plaintiff’s mandamus complaint without giving him notice of the motion and the
       opportunity to respond. The Merneigh court noted that basic due process required that the
       plaintiff be given (1) a copy of the motion, (2) “a meaningful opportunity to respond to the
       motion by submitting a written memorandum in opposition thereto,” (3) a copy of the
       dismissal order, in the event of dismissal, and (4) an opportunity to amend his complaint,
       unless it was apparent that any deficiencies could not be overcome by amendment. Id. at
       854-55. The court reversed and remanded the case to give the plaintiff the opportunity to
       amend, even though it appeared “doubtful” that he would succeed on the merits of his
       complaint. Id. at 855.
¶ 24        In People v. Gaines, 335 Ill. App. 3d 292, 295-96 (2002), abrogated on other grounds by
       Vincent, 226 Ill. 2d at 12, this court held that the defendant’s due process rights were violated
       when the trial court dismissed a section 2-1401 petition after hearing a motion by the State
       (and relying on its arguments) and not providing the defendant time to respond. (Appointed
       counsel was present at the hearing but advised the court that he was given no prior notice of
       the motion and was unprepared to argue against it. The State was allowed to proceed with its
       arguments. Id. at 294.) This court recognized that “basic notions of fairness dictate that the
       defendant be afforded notice of, and an opportunity to respond to, any motion or responsive
       pleading by the State.” Id. at 296.
¶ 25        Here, defendant contends that this case law instructs that a vacatur is warranted, because
       the denial of an opportunity to meaningfully respond to the State’s motion was inherently
       prejudicial and undermined the integrity of the proceedings. Bradley, 2017 IL App (4th)
       150527, ¶ 21. Addressing Vincent, defendant argues that it is distinguishable because it
       involved a sua sponte dismissal and, here, the State filed a motion to dismiss. Defendant

          motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for
          other relief.” 735 ILCS 5/2-1203(a) (West 2016).

                                                      -5-
       contends that, where the State fails to respond to a petition, all well-pleaded facts are
       admitted, thereby allowing the trial court to decide whether the allegations entitle the
       petitioner to relief as a matter of law. Vincent, 226 Ill. 2d at 9-10. In such circumstances, the
       defendant’s right to be heard is not compromised. However, that reasoning does not, he
       maintains, compel the same result when the trial court dismisses a petition on the State’s
       motion. In defendant’s view, Vincent does not condone the trial court’s conduct in this case.
       Rather, it demonstrates that a petitioner does have the right to respond to the State’s motion
       before the trial court acts on that motion and dismisses the petition.
¶ 26       The State responds that defendant’s due process rights were respected and that he was
       afforded the appropriate opportunities and protections. Specifically, defendant had the
       opportunity to respond to the State’s motion to dismiss when he filed, and the trial court
       considered though denied, his motion to reconsider the dismissal. It further argues that
       Merneigh and Bradley are distinguishable because the petitioners in those cases did not file
       motions to reconsider. The State relies on Vincent’s statement that “the availability of
       corrective remedies, such as a motion to reconsider, renders the lack of notice prior to the
       ruling less of a concern.” Id. at 13. Defendant’s opportunity to respond through his motion to
       reconsider, the State asserts, differentiates this case from those upon which defendant relies.
¶ 27       We note that People v. Smith, 2017 IL App (3d) 150265, a case not cited by the parties,
       presents a factual scenario somewhat closer to that in this case than the foregoing case law
       and contains language that is favorable to the State’s position. In Smith, the trial court
       dismissed the defendant’s section 2-1401 petition after the State filed a combined motion to
       dismiss, arguing that the court lacked personal jurisdiction because the State had not been
       properly served and that the petition failed to state a cause of action, the issues were barred
       by res judicata, and the petition was untimely. Eight days after the State filed its motion, the
       court held a hearing at which only the State was present and dismissed the petition on both
       the jurisdictional ground and on the merits. After the dismissal, the defendant filed a pro se
       response to the State’s motion to dismiss, acknowledging that he failed to properly serve the
       State and addressing the res judicata and timeliness arguments. The court held a hearing on
       the defendant’s response. The State appeared at the hearing, but the defendant did not. The
       court acknowledged the defendant’s response, but it left the dismissal in place. Subsequently,
       the defendant filed a pro se motion to reconsider the dismissal. After a hearing at which only
       the State appeared, the court denied the defendant’s motion.
¶ 28       On appeal, as relevant here, the court rejected the defendant’s alternative argument that
       his failure to properly serve the State could have been excused by the trial court upon
       application. Id. ¶ 21. In reaching this conclusion, the court commented that it found troubling
       the fact that the State was allowed to present its limited appearance and motion without the
       defendant’s input. However, the court determined, the supreme court’s reasoning in Vincent
       applied to the case before it. Thus, “a defendant whose petition has been disposed of by the
       court could file a motion to reconsider,” and the “availability of corrective remedies, such as
       a motion to reconsider, render [the] defendant’s absence from the hearing and his inability to
       timely respond to the State’s motion ‘less of a concern.’ ” Id. ¶ 24 (quoting Vincent, 226 Ill.
       2d at 13). The court noted that “[t]his 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.” Id.



                                                   -6-
¶ 29        Smith’s discussion of Vincent is judicial dictum that supports the State’s position here.
       However, we disagree with it. “The intended purpose of a motion to reconsider is to bring to
       the court’s attention newly discovered evidence, changes in the law, or errors in the court’s
       previous application of existing law.” General Motors Acceptance Corp. v. Stoval, 374 Ill.
       App. 3d 1064, 1078 (2007). In his motion to reconsider, defendant brought to the trial court’s
       attention alleged errors in its application of the law. If he had been given the opportunity to
       respond to the State’s motion to dismiss, he could have responded to the State’s argument
       before the court ruled on the motion. If the court ruled against him, he could then have filed a
       motion to reconsider, to raise alleged errors in the court’s application of the law (and/or,
       thereafter, filed an appeal). The fact that he was not afforded the opportunity to respond to
       the State’s motion deprived him of one of two responsive options. As noted, “[d]ue process is
       a flexible concept” and not all circumstances call for the same type of procedure. Konetski,
       233 Ill. 2d at 201. However, “parties are generally permitted to respond to motions filed by
       the opposing party.” People v. Bailey, 2016 IL App (3d) 140207, ¶ 20. The question here is
       whether the deprivation of one responsive option rises to the level of a constitutional
       violation. We believe that it does. Vincent is distinguishable because the State there filed no
       response (and the supreme court noted that it was not required to), and thus, the trial court
       assessed whether the allegations in the defendant’s petition entitled him to relief as a matter
       of law. Vincent, 226 Ill. 2d at 9-10. The defendant benefitted from the State’s failure to file a
       response, in that the trial court was required to accept the allegations in the petition as true.
       Id. at 11. The trial court ultimately determined that the allegations did not provide a legal
       basis for section 2-1401 relief. Id. at 12. The Vincent court held that the trial court was not
       required to provide the defendant with notice and the opportunity to be heard before
       sua sponte ruling on the petition. Id. at 12-13. Case law had “recognize[d] that a trial court
       may, on its own motion, dispose of a matter when it is clear on its face that the requesting
       party is not entitled to relief as a matter of law.” Id. at 13. As noted, the defendant’s ability to
       be heard was not jeopardized, the court determined, because (1) his petition was heard by the
       trial court, (2) he was not prevented from bringing a meritorious claim, because his claim had
       no merit, and (3) adequate procedural safeguards existed to prevent erroneous sua sponte
       determinations (including the ability to file a motion for rehearing or to bring an appeal).
       Here, however, the State filed a responsive motion and, had the trial court followed the
       general rule that permits a party to respond to motions filed by the opposing party, the trial
       court would have waited to rule on the State’s motion to dismiss by first ordering a hearing
       and setting a reasonable briefing schedule on the motion (taking into consideration the filing
       obstacles presented by defendant’s incarceration). During this time, defendant could have
       filed a response and thereby had a meaningful opportunity to oppose the motion. Further, if
       the trial court granted the motion after considering defendant’s response, defendant could
       have filed a motion to reconsider or for rehearing and/or appealed the ruling. The foregoing
       procedure did not fully play out. Defendant was deprived of the opportunity to respond to the
       State’s motion before the trial court initially ruled on it. Further, when defendant had the
       opportunity to respond via his motion to reconsider, he had the burden of persuasion,
       whereas, if he had been given the opportunity to respond before the court’s initial ruling, the
       burden would have been on the State to establish a basis for dismissal.2

           2
            In addition, because defendant had not filed a response, the new matters in his motion to
       reconsider would have been forfeited under a typical analysis. Forfeiture in this case would have been

                                                     -7-
¶ 30      In summary, the circumstances here reflect that defendant was deprived of due process
       when the trial court granted the State’s motion to dismiss before he had a meaningful
       opportunity to respond. Because we resolve this appeal on defendant’s due process argument,
       we need not reach his alternative argument concerning ripeness.

¶ 31                                      III. CONCLUSION
¶ 32      For the reasons stated, the judgment of the circuit court of Stephenson County is vacated
       and the cause is remanded.

¶ 33      Vacated and remanded.




       problematic because defendant was precluded from filing a response that would have staved off
       forfeiture.

                                                 -8-
