                                 2015 IL App (1st) 133123
                                       No. 1-13-3123
                              Opinion filed December 31, 2015

                                                                           FIFTH DIVISION

                                            IN THE

                           APPELLATE COURT OF ILLINOIS

                                      FIRST DISTRICT


     THE PEOPLE OF THE STATE OF                  )       Appeal from the Circuit Court
     ILLINOIS,                                   )       of Cook County.
                                                 )
         Plaintiff-Appellee,                     )
                                                 )
         v.                                      )       04 CR 12109; 05 CR 10998; 05
                                                 )       CR 01458 (02)
     VERNON JONES,                               )
                                                 )       The Honorable
         Defendant-Appellant.                    )       Mary Colleen Roberts,
                                                 )       Judge, presiding.


                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.




                                         OPINION


¶1            Defendant Vernon Jones pled guilty on February 15, 2005, to possession

       of heroin in cases Nos. 04 CR 12109 and 05 CR 1458 and was sentenced to

       concurrent 24-month terms of probation. Later that year, on July 25, 2005,
     No. 1-13-3123

       defendant pled guilty to possession of heroin in a third case, No. 05 CR 10998.

       His probation in the prior two cases was terminated unsatisfactorily, and he was

       sentenced to three years with the Illinois Department of Corrections. Defendant

       did not file a postplea motion or a direct appeal in any of the three cases.

¶2           In a subsequent section 2-1401 petition, defendant sought relief from his

       judgment of conviction, alleging both ineffective assistance of counsel and the

       failure of the trial court to admonish him about the collateral consequences of

       his plea. See 735 ILCS 5/2-1401 (West 2012). It is this petition which is at

       issue on this appeal. More than 30 days after the 2-1401 petition was filed in

       court, the trial court dismissed it sua sponte, on the grounds that it was untimely

       and that defendant's claims also failed on the merits.

¶3           On this appeal, defendant raises no issues concerning the substance of the

       trial court's order.   Instead, defendant argues that the trial court erred by

       dismissing his section 2-1401 petition, because it was not properly served on

       the State and because the State had not waived proper notice. Defendant asks

       this court either to remand for further proceedings or, in the alternative, to

       modify the trial court's judgment so that its dismissal is without prejudice.

¶4           Recently our supreme court issued an opinion in People v. Carter, 2015

       IL 117709, which held that a defendant, who asserted his own improper service,

       has the burden of proving that the service was, in fact, improper. Carter, 2015

                                              2
     No. 1-13-3123

        IL 117709, ¶¶ 18-19. The Carter court also specified what was needed in the

        record in order to satisfy this burden. Carter, 2015 IL 117709, ¶ 20. The

        supreme court held: "To serve as a basis for defendant's contention of error,

        [his] statement must affirmatively establish that defendant mailed his petition

        via some other means other than certified or registered mail." Carter, 2015 IL

        117709, ¶ 20. The court held that a statement, which states that he placed the

        petition in the institutional mailbox for mailing by United States mail, is

        insufficient. Carter, 2015 IL 117709, ¶ 20. In the case at bar, defendant failed

        to satisfy the burden described in Carter, and thus we must affirm for the

        reasons explained below.

¶5                                    BACKGROUND

¶6             Defendant's section 2-1401 petition included both a motion to proceed in

        forma pauperis and a motion to vacate sentence. 1 The notice of motion, which

        accompanied the petition, had both a "received" stamp and a "filed" stamp by

        the circuit court clerk's office. The "received" stamp is dated May 7, 2013, and

        the "filed" stamp is dated May 20, 2013.

¶7             The record contains two documents entitled "Certificate of Service": one

        accompanies the motion to proceed in forma pauperis and the other

           1
             It is unclear from the petition whether defendant also seeks to vacate his
     guilty plea.

                                               3
No. 1-13-3123

   accompanies the motion to vacate sentence. However, they are both dated May

   2, 2013, and they both contain almost exactly the same language. In the

   "Certificate of Service" attached to the motion to vacate, defendant stated:

             "I, Vernon Jones hereby state and affirm under the penalties of perjury

          prescribed pursuant to Title 28 U.S.C. § 1746 that I mailed a true and

          correct copy of the foregoing document to *** [the circuit court clerk's

          office and the] Office of the Prosecuting Attorney, 2650 South

          California, Chicago, Illinois 60608 by placing said document in the

          institutional mail box prepaid at the Federal Correction Institute located

          at Post Office Box 33 Terre Haute, Indiana 47808 in accordance with

          Houston v. Lack, 101 L.Ed. 2d 243 (1988),[2] which such mail is deemed

          filed with the circuit court when said mail is handed to prison officials for

          forwarding to the court."

   The document was signed by defendant, with an address indicating that he was

   in the federal prison in Terre Haute, Indiana. Defendant's brief to this court also
      2
        This citation is a reference to Houston v. Lack, 487 U.S. 266, 268 (1988),
which held: "Pro se prisoners can file notices of appeal to the federal courts of
appeals only by delivering them to prison authorities for forwarding to the
appropriate district court." See also Ill. S. Ct. R. 12(b)(4) (eff. Sept. 19, 2014) ("in
case of service by mail by a pro se petitioner from a correctional institution," proof
of service shall be filed with the clerk "by affidavit, or by certification *** of the
person who deposited the document in the institutional mail, stating the time and
place of deposit and the complete address to which the document was to be
delivered").

                                           4
       No. 1-13-3123

          states that he was in federal custody in the federal prison in Terre Haute,

          Indiana.

¶8               The appellate record contains three different half-sheets.3 The record

          contains separate sets of half-sheets for case No. 04 CR 12109 and case no. 05

          CR 01458, which were the two cases to which defendant pled guilty on

          February 15, 2005, and also a set for case No. 05 CR 10998, which was the case

          to which defendant subsequently pled guilty on July 25, 2005.

¶9               The first entry for the petition on all three half-sheets is dated May 20,

          2013. The entries do not identify the petition as a section 2-1401 petition, as

          opposed to a postconviction petition. The petition is described as "Motion

          Proceed in forma pauperis & vacate sentence." All three half-sheets indicate

          status dates were held on May 28, 2013, June 28, 2013, July 19, 2013, and

          August 2, 2013, with the dismissal on August 23, 2013.

¶ 10             The transcript for August 23, 2013, does not indicate that the State,

          defendant or a defense counsel were present. The trial judge stated:

                     "This Court has drafted an order, and based upon the analysis

                 contained therein and the discussion, the Court finds that the Petitioner




             3
               A half-sheet is a sheet on which the clerk's office enters chronological
       notations indicating the procedural events of a case.
                                                 5
       No. 1-13-3123

               has failed to show cause for relief under Section 2-1401. Accordingly,

               the Petition for Relief from Judgment is hereby dismissed.

                   That order is signed and entered.

                   And one of these can go to Mr. Vernon Jones, copy to Petitioner."

¶ 11           On October 17, 2013, the appellate court granted defendant's motion to

         file a late notice of appeal and to proceed in forma pauperis, and ordered the

         Office of the State Appellate Defender appointed to represent defendant on

         appeal. On November 1, 2013, the trial court entered an order appointing the

         Office of the State Appellate Defender, permitting a free record on appeal and

         directing the clerk of the circuit court to prepare the record on appeal.

¶ 12                                      ANALYSIS

¶ 13           On this appeal, defendant raises no issues concerning the substance of the

         trial court's order. Instead, defendant argues that the trial court erred by

         dismissing defendant's section 2-1401 petition since it was not properly served

         on the State and since the State did not waive proper service; and he asks this

         court either to remand for further proceedings or, in the alternative, to modify

         the trial court's judgment so that its dismissal is without prejudice.

¶ 14           There is a dispute in the appellate court about whether actual notice of a

         2-1401 petition plus the subsequent lapse of 30 days is sufficient to deem that

         the State waived its right to proper service of process or whether the State must

                                                 6
       No. 1-13-3123

         formally waive that right. Compare People v. Ocon, 2014 IL App (1st) 120912

         (holding that actual notice of the filing of a section 2-1401 petition is sufficient)

         with People v. Maiden, 2013 IL App (2d) 120016 (holding that actual notice is

         not sufficient). However, this dispute does not have to be resolved in order to

         decide this case, as we explain below.

¶ 15           For the reasons discussed below, we affirm.

¶ 16                                 I. Standard of Review

¶ 17           We review the dismissal of a section 2-1401 petition de novo. Carter,

         2015 IL 117709, ¶ 13; People v. Laugharn, 233 Ill. 2d 318, 322 (2009) (citing

         People v. Vincent, 226 Ill. 2d 1, 18 (2007)). De novo consideration means that

         we perform the same analysis that a trial judge would perform. Arient v. Shaik,

         2015 IL App (1st) 133969, ¶ 18.

¶ 18           Section 2-1401 permits relief from final judgment, which are older than

         30 days but were entered less than 2 years ago. 735 ILCS 5/2-1401(a), (c)

         (West 2012); Laugharn, 233 Ill. 2d at 322. "To obtain relief under section 2-

         1401, the defendant 'must affirmatively set forth specific factual allegations

         supporting each of the following elements: (1) the existence of a meritorious

         defense or claim; (2) due diligence in presenting this defense or claim to the

         circuit court in the original action; and (3) due diligence in filing the section 2-

         1401 petition for relief.' " People v. Pinkonsly, 207 Ill. 2d 555, 565 (2003)

                                                  7
       No. 1-13-3123

         (quoting Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986)). "[A]n action

         brought under section 2-1401 is a civil proceeding and, according to this court's

         longstanding precedent, is subject to the usual rules of civil practice, even when

         it is used to challenge a criminal conviction or sentence." Vincent, 226 Ill. 2d at

         6.

¶ 19           When reviewing a trial court's dismissal of a section 2-1401 petition, this

         court may affirm "on any basis we find in the record." People v. Nitz, 2012 IL

         App (2d) 091165, ¶ 13.

¶ 20                              II. The Laugharn Decision

¶ 21           Defendant argues that the trial court's sua sponte dismissal was premature

         pursuant to our supreme court's decision in Laugharn.

¶ 22           In Laugharn, our supreme court held that a trial court may dismiss a

         section 2-1401 petition sua sponte, so long as the dismissal occurs after the 30-

         day period of time in which the State has to respond. Laugharn, 233 Ill. 2d at

         323. Rule 105(a) allows for a 30-day response period, stating: "a judgment by

         default may be taken against [the State] for the new or additional relief unless

         [the State] files an answer or otherwise files an appearance in the office of the

         clerk of the court within 30 days after service." Ill. S. Ct. R. 105(a) (eff. Jan. 1,

         1989); Laugharn, 233 Ill. 2d at 323. "[T]he State's failure to answer the petition

         within the time allotted for doing so result[s] in 'an admission of all well-

                                                 8
       No. 1-13-3123

         pleaded facts,' which render[s] the petition 'ripe for adjudication.' " Laugharn,

         233 Ill. 2d at 323 (quoting Vincent, 226 Ill. 2d at 10).

¶ 23            Thus, the supreme court in Vincent had affirmed the sua sponte dismissal

         in Vincent which occurred after the expiration of the State's 30-day response

         period, but it vacated the sua sponte dismissal in Laugharn which occurred only

         7 days after the petition was filed. Laugharn, 233 Ill. 2d at 323 (citing and

         quoting Vincent, 226 Ill. 2d at 5, 10). Our supreme court held in Laugharn:

         "The circuit court's sua sponte dismissal of defendant's petition before the

         conclusion of the usual 30-day period to answer or otherwise plead was

         premature and requires vacatur of the dismissal order." Laugharn, 233 Ill. 2d at

         323.

¶ 24            In Laugharn, the supreme court permitted the defendant to challenge the

         dismissal of her petition on the ground that the State's time to respond had not

         yet run. Laugharn, 233 Ill. 2d at 323. The defendant was allowed to argue that

         the trial court's sua sponte dismissal after only seven days "deprived the State of

         the time it was entitled to answer or otherwise plead." Laugharn, 233 Ill. 2d at

         323. Thus, the defendant was allowed to raise the State's right to a full 30 days

         to respond; and our supreme court reversed on that basis. Laugharn, 233 Ill. 2d

         at 323.




                                                 9
       No. 1-13-3123

¶ 25                             III. The Parties' Arguments

¶ 26           In the case at bar, the trial court dismissed the petition sua sponte more

         than 30 days after it was filed in court. Laugharn, 233 Ill. 2d at 323. However,

         defendant argues that the dismissal was premature because he served the State

         improperly and thus the 30-day period never began to run. In the alternative, he

         argues that the record does not establish that the State had actual notice.

         Defendant argues that a section 2-1401 petition was never explicitly mentioned

         or discussed in court; and the State, in its brief to this court, does not dispute

         this assertion. Thus, defendant claims that the trial court's sua sponte dismissal

         was "premature," pursuant to our supreme court's decision in Laugharn.

¶ 27           In response, the State argues that the record shows that the State had

         actual notice of a section 2-1401 petition. The State asks us to infer that the

         State must have had notice from the facts that status dates were held and that

         ASAs were present at two of them. In addition, the State asks us to infer that the

         State waived any objection to the lack of proper service, from the fact that the

         State did not respond or otherwise answer the petition during this time.

         However, as we noted above, there is a split in the appellate courts on the issue

         of whether actual notice is sufficient to find that the State waived proper

         service, with People v. Ocon, 2014 IL App (1st) 120912, holding that actual

         notice is sufficient to find that the State waived proper service, and People v.

                                               10
       No. 1-13-3123

         Maiden, 2013 IL App (2d) 120016, holding that actual notice is not sufficient to

         find waiver by the State and that a formal waiver is required.

¶ 28                       II. The Rules Governing Proper Service

¶ 29           However, a threshold question is whether the State was properly served.

¶ 30           Section 2-1401(b) provides that: "All parties to the petition shall be

         notified as provided by rule." 735 ILCS 5/2-1401(b) (West 2012); Laugharn,

         233 Ill. 2d at 323 ("Section 2-1401 requires that notice be given as provided by

         rule."). Illinois Supreme Court Rule 106 provides that "[n]otice of the filing of

         a petition under section 2-1401 *** shall be given by the same methods

         provided in Rule 105 for the giving of notice." Ill. S. Ct. R. 106 (eff. Aug. 1,

         1985); Carter, 2015 IL 117709, ¶ 14 ("Illinois Supreme Court Rule 106 governs

         the methods of notice to be used for petitions filed pursuant to section 2-1401

         ***."); Laugharn, 233 Ill. 2d at 323 ("Rule 106 governs the methods of notice

         to be used for petitions filed pursuant to section 2-1401").

¶ 31           Supreme Court Rule 105(b) provides for several methods of service.

         including "prepaid certified or registered mail addressed to the party, return

         receipt requested." Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989); Carter, 2015 IL

         117709, ¶ 14. "Once notice has been served, the responding party has 30 days

         to file an answer or otherwise appear." Carter, 2015 IL 117709, ¶ 14 (citing Ill.

         S. Ct. R. 105(a) (eff. Jan. 1, 1989)). Defendant argues, and the State does not

                                               11
       No. 1-13-3123

         dispute, that the method utilized by defendant was simply prepaid United States

         mail, which was not certified or registered. Defendant argues that, since he did

         not send his petition by certified or registered mail, the State did not receive

         proper service, and the 30 days never began to run, and thus the trial court's sua

         sponte dismissal was premature.

¶ 32           Rule 105(b) provides that we may consider any "competent proofs in

         determining whether service has been properly made." Ill. S. Ct. R. 105(b) (eff.

         Jan. 1, 1989). In the case at bar, the proof consists of defendant's certificate of

         service.

¶ 33           In Carter, as in the case at bar, the parties assumed that the defendant had

         mailed his petition by regular United States mail. Carter, 2015 IL 117709, ¶ 20.

         Although neither party argued the point, the Carter court still found that

         defendant failed to satisfy his burden of proving his claim of insufficient service

         and affirmed the circuit court's dismissal on that basis. Carter, 2015 IL 117709,

         ¶¶ 19-20. We do the same here. As this court has observed on many occasions,

         the appellate court may affirm the trial court on any basis that appears in the

         record. E.g., Ruch v. Padgett, 2015 IL App (1st) 142972, ¶ 40; People v.

         Olsson, 2015 IL App (2d) 140955, ¶ 17 ("We review the trial court's judgment

         rather than its reasoning, and we may affirm on any basis supported by the

         record.").

                                                12
       No. 1-13-3123

¶ 34           In Carter, as in our case, the defendant attached a certificate of service to

         his petition which alleged that he had placed it in the institutional mail at the

         correctional center where he was housed. Carter, 2015 IL 117709, ¶ 5. In

         Carter, as in our case, there was no dispute that the defendant had properly

         addressed the parties listed for mailing through the United States Postal Service.

         Carter, 2015 IL 117709, ¶ 7.

¶ 35             In Carter, our supreme court held:

               "What scant record there is consists of a statement in the proof of service

               defendant attached to his petition: 'I have placed the documents listed

               below in the institutional mail at Menard Correctional Center, properly

               addressed to the parties listed above for mailing through the United

               States Postal Service.' To serve as a basis for defendant's contention of

               error, that statement must affirmatively establish that defendant mailed

               his petition via some means other than certified or registered mail.

               However, all it establishes is where defendant mailed his petition–'the

               institutional mail—and the medium through which it was to be

               transmitted: 'the United States Postal Service.' " (Emphasis in original.)

               Carter, 2015 IL 117709, ¶ 20

         The supreme court then held that an assumption of improper service "is

         unwarranted on this record." Carter, 2015 IL 117709, ¶ 20.

                                                13
       No. 1-13-3123

¶ 36           Similarly, in the case at bar, an assumption of improper service is

         unwarranted on this record. The certificate in Carter, described above, is

         almost identical to the certificate in the case at bar. Like the certificate in

         Carter, the certificate in the case at bar stated only "where" he had mailed his

         petition, namely, the institutional mail box of his correctional center. (Emphasis

         in original.) Carter, 2015 IL 117709, ¶ 20. The certificate in the case at bar

         actually contains less information than the certificate in Carter because the

         certificate in the case at bar does not allege "the medium through which it was

         to be transmitted," namely, the United States Postal Service. Carter, 2015 IL

         117709, ¶ 20. Thus, for the same reasons stated by our supreme court in

         Carter, we must find that defendant has failed to satisfy his burden to present a

         sufficient record showing that his means of service was, in fact, improper; and

         we must affirm the dismissal of his section 2-1401 petition.

¶ 37               Although Carter was decided after this appeal was fully briefed and

         argued, we see no need for further argument. In Carter, our supreme court

         held: "[A]ny section 2-1401 petitioner who seeks to use, on appeal, his [or her]

         own error, by way of allegedly defective service, in an effort to gain reversal of

         a circuit court's sua sponte dismissal of his or her petition on the merits, must

         affirmatively demonstrate the error via proceedings of record in the circuit

         court." Carter, 2015 IL 117709, ¶ 25. Further argument in this court cannot

                                                 14
       No. 1-13-3123

         effect the "proceedings of record in the circuit court," which have already

         concluded. Carter, 2015 IL 117709, ¶ 25.

¶ 38           Our supreme court observed about the record before it in Carter "that the

         record in this case is inadequate to demonstrate that inmates in correctional

         facilities lack the means to comply with the service requirements of Rule

         105(b)." Carter, 2015 IL 117709, ¶ 20 n.1. The same is true of the record here.

         Thus, there is no need for further proceedings on this 2-1401 petition.

¶ 39           In Carter, defendant argued that the State had conceded that there was

         improper service. Carter, 2015 IL 117709, ¶ 21. The supreme court replied to

         this argument, holding: "Irrespective of the parties' arguments, the record is

         what it is, and, in our view, it is insufficient to demonstrate the service

         deficiency that defendant must establish in order to advance his argument. As

         far as any arguable concession is concerned, it is well established that we, as a

         court of review, are not bound by a party's concession." Carter, 2015 IL

         117709, ¶ 22 (citing Beachum v. Walker, 231 Ill. 2d 51, 60-61 (2008)). For the

         same reasons stated by the supreme court in Carter, any arguable concession by

         the State in this case does not change the outcome here.

¶ 40           The Carter court also held that, although a regular return receipt for

         certified mail is "sufficient proof of service by certified mail [citation] the

         absence of such a receipt in the record does not affirmatively establish that

                                                 15
       No. 1-13-3123

         service by certified mail was not accomplished." (Emphasis in original.) Carter,

         2015 IL 117709, ¶ 23. Similarly, in the case at bar, we cannot assume that the

         absence of a certified mail receipt establishes a failure to serve by certified

         mail.

¶ 41             The Carter court held: "any section 2-1401 petitioner who seeks to use,

         on appeal, his own error, by way of allegedly defective service, in an effort to

         gain reversal of a circuit court's sua sponte dismissal of his or her petition on

         the merits, must affirmatively demonstrate the error via proceedings of record

         in the circuit court." Carter, 2015 IL 117709, ¶ 25. As in Carter, that was not

         done in the proceedings of record in the circuit court, and thus "we must

         presume the circuit court's order was rendered in accordance with the applicable

         law." Carter, 2015 IL 117709, ¶ 24.

¶ 42                                    CONCLUSION

¶ 43             For the foregoing reasons and in light of our supreme court's recent

         decision in Carter, 2015 IL 117709, we affirm the dismissal by the trial court of

         defendant's section 2-1401 petition.

¶ 44             Affirmed.




                                                16
