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                              Appellate Court                             Date: 2017.10.26
                                                                          11:46:06 -05'00'




                  People v. Bradley, 2017 IL App (4th) 150527



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOANIS M. BRADLEY, Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-15-0527



Filed             October 2, 2017



Decision Under    Appeal from the Circuit Court of Champaign County, No.
Review            07-CF-1458; the Hon. Thomas J. Difanis, Judge, presiding.



Judgment          Reversed in part and vacated in part; cause remanded.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan, of
Appeal            State Appellate Defender’s Office, of Springfield, for appellant.

                  Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                  Robinson, and David Mannchen, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE KNECHT delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Turner and Justice Appleton concurred in the
                  judgment and opinion.
                                                OPINION

¶1         Defendant, Joanis M. Bradley, appeals from the dismissal of his pro se petition for relief
       from judgment under section 2-1401 of the Code of Civil Procedure (Civil Code) (735 ILCS
       5/2-1401 (West 2014)), arguing (1) his due process rights were violated when the trial court
       granted the State’s motion to dismiss without giving him an opportunity to respond, (2) his
       petition was not ripe for adjudication at the time it was dismissed, and (3) the circuit clerk
       improperly imposed fines against him. We reverse in part, vacate in part, and remand for
       further proceedings.

¶2                                           I. BACKGROUND
¶3         In February 2008, a jury convicted defendant of first degree murder (720 ILCS 5/9-1(a)(2)
       (West 2006)). In April 2008, the trial court sentenced defendant to 75 years’ imprisonment,
       which included a 25-year sentencing enhancement for personally discharging a firearm that
       caused the victim’s death. The court did not impose any fines against defendant. Defendant’s
       conviction and sentence were later affirmed on appeal and survived a collateral attack. See
       People v. Bradley, No. 4-08-0427 (July 30, 2009) (unpublished order under Supreme Court
       Rule 23) (affirming on direct review); People v. Bradley, 2011 IL App (4th) 100580-U
       (affirming summary dismissal of defendant’s postconviction petition).
¶4         In April 2015, defendant filed a pro se petition for relief from judgment under section
       2-1401 of the Civil Code (735 ILCS 5/2-1401 (West 2014)). In his petition, defendant argued
       his 25-year sentencing enhancement was void because the trial court did not have the authority
       to impose the enhancement when no jury instruction or specific finding from the jury was
       made indicating the State had proved beyond a reasonable doubt he had personally discharged
       the firearm causing the victim’s death.
¶5         On May 18, 2015, the State filed a motion to dismiss defendant’s section 2-1401 petition.
       In its motion, the State argued defendant’s petition was untimely and the claim raised therein
       was both forfeited and meritless. That same day, the State’s motion was mailed from
       Champaign County to defendant at Menard Correctional Center.
¶6         On May 20, 2015, the trial court entered a written order dismissing defendant’s section
       2-1401 petition. In its order, the court indicated it considered the State’s motion to dismiss and
       agreed with its arguments.
¶7         This appeal followed.

¶8                                          II. ANALYSIS
¶9         On appeal, defendant argues this court should (1) reverse the trial court’s dismissal of his
       section 2-1401 petition and remand for further proceedings and (2) vacate fines improperly
       imposed against him by the circuit clerk. The State disagrees.

¶ 10               A. Trial Court’s Dismissal of Defendant’s Section 2-1401 Petition
¶ 11      Defendant argues, citing Merneigh v. Lane, 87 Ill. App. 3d 852, 854, 409 N.E.2d 319, 320
       (1980), this court should reverse the trial court’s dismissal of his section 2-1401 petition and
       remand for further proceedings because his due process rights were violated when the court
       granted the State’s motion to dismiss without giving him an opportunity to respond. Defendant

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       also argues, citing People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009), and
       Illinois Supreme Court Rule 182(a) (eff. Jan. 1, 1967), a reversal and remand is warranted, as
       his petition was not ripe for adjudication at the time it was dismissed. On either basis,
       defendant asserts this court should reverse and remand without consideration of the merits of
       his petition.
¶ 12        The State concedes the trial court “acted prematurely” in dismissing defendant’s section
       2-1401 petition by not allowing defendant the opportunity to respond to its motion to dismiss.
       The State maintains, however, “any procedural error” in the court’s dismissal does not require
       remand as defendant’s petition fails to state a cause of action and cannot be amended to state a
       valid basis for relief. Therefore, the State argues, defendant could “not have been prejudiced by
       the court’s premature dismissal of his petition.”
¶ 13        Absent an evidentiary hearing, we review the dismissal of a section 2-1401 petition
       de novo. People v. Garza, 2014 IL App (4th) 120882, ¶ 18, 5 N.E.3d 240. Likewise, we review
       a claim of the denial of due process de novo. In re Shirley M., 368 Ill. App. 3d 1187, 1190, 860
       N.E.2d 353, 356 (2006).
¶ 14        Section 2-1401 of the Civil Code (735 ILCS 5/2-1401 (West 2014)) provides a
       comprehensive, statutory procedure allowing for the vacatur of final judgments older than 30
       days. People v. Vincent, 226 Ill. 2d 1, 7, 871 N.E.2d 17, 22 (2007). Proceedings under section
       2-1401 are subject to the civil practice rules. Id. at 8, 871 N.E.2d at 23. Section 2-1401
       petitions “are essentially complaints inviting responsive pleadings.” Id. The State may answer
       the petition, move to dismiss it, or ignore it. See generally Laugharn, 233 Ill. 2d at 323, 909
       N.E.2d at 805.
¶ 15        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. “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, 909 N.E.2d 783, 796 (2009). “The fundamental
       requirement of due process is the opportunity to be heard, and that right ‘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, 6 N.E.3d 162 (quoting Mullane v. Central Hanover Bank &
       Trust Co., 339 U.S. 306, 314 (1950)); see also In re D.W., 214 Ill. 2d 289, 316, 827 N.E.2d
       466, 484 (2005) (Due process requires “the opportunity to be heard at a meaningful time and in
       a meaningful manner.”).
¶ 16        It is well established that due process does not allow a trial court to grant a motion to
       dismiss a complaint without allowing the opposing party notice and a meaningful opportunity
       to be heard. See, e.g., Berg v. Mid-America Industrial, Inc., 293 Ill. App. 3d 731, 735, 688
       N.E.2d 699, 702 (1997) (“It would be unjust, unfair, and inequitable to allow the dismissal
       order to stand because, from the foregoing litany of events, it is unclear that plaintiffs received
       proper notice of the [hearing in which the trial court granted the motion to dismiss].”); Alper
       Services, Inc. v. Wilson, 85 Ill. App. 3d 908, 911, 407 N.E.2d 677, 680 (1980) (“[P]laintiffs[ ]
       *** were not adequately forewarned that they would be asked to defend against a motion to
       dismiss” and were not given “an adequate opportunity to do so.”).
¶ 17        In Merneigh, 87 Ill. App. 3d at 854, 409 N.E.2d at 320, the Fifth District held the inmate
       petitioner was denied due process when the trial court granted the State’s motion to dismiss the
       petitioner’s mandamus petition without giving him notice of the motion to dismiss and an
       opportunity to respond. The court noted basic due process required the petitioner to have,

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       inter alia, “a meaningful opportunity to respond to the motion by submitting a written
       memorandum in opposition thereto.” Id.
¶ 18       In People v. Gaines, 335 Ill. App. 3d 292, 296, 780 N.E.2d 822, 825 (2002), abrogated on
       other grounds by Vincent, 226 Ill. 2d at 12, 871 N.E.2d at 25, the Second District held 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 not allowing the defendant the opportunity to
       respond. The court again recognized the “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.
¶ 19       We hold due process bars a trial court from granting an opposing party’s motion to dismiss
       a section 2-1401 petition without allowing the petitioner notice and a meaningful opportunity
       to respond. Here, two days after the State filed its motion to dismiss, the trial court considered
       the State’s motion and dismissed defendant’s petition based on its arguments. The record is
       absent of any indication defendant was given a meaningful opportunity to respond to the
       State’s motion. This was a violation of his due process rights.
¶ 20       The State contends we need not remand the matter as the trial court’s “procedural error”
       was not prejudicial. In support, the State cites People v. Malloy, 374 Ill. App. 3d 820, 872
       N.E.2d 140 (2007), Owens v. Snyder, 349 Ill. App. 3d 35, 811 N.E.2d 738 (2004), and People
       v. Taylor, 349 Ill. App. 3d 718, 812 N.E.2d 581 (2004). In none of these cases, however, did
       the court dispose of a pleading based on an opposing party’s motion without giving the
       nonmovant an opportunity to respond. The State also asserts remand is not required based on
       Merneigh, which it asserts held a remand is unnecessary where it appears from the complaint
       the deficiency cannot be overcome by amendment. The State mischaracterizes the court’s
       holding in Merneigh. There, the court plainly held remand was required because the petitioner
       was not given notice and an opportunity to respond to the State’s motion to dismiss. Merneigh,
       87 Ill. App. 3d at 854, 409 N.E.2d at 320. Only after holding the cause required remand and
       observing it need not address the merits of the petitioner’s complaint, did the court comment
       the petitioner “might well overcome” defects in his petition and the trial court should allow
       him the opportunity to amend his petition on remand. Id. at 854-55, 409 N.E.2d at 320. The
       court’s comment had no bearing on whether remand was required.
¶ 21       Contrary to the State’s argument, we find the trial court’s failure to give defendant an
       opportunity to respond to the State’s motion to dismiss was inherently prejudicial and
       undermined the integrity of the proceedings. See People v. Coleman, 358 Ill. App. 3d 1063,
       1071, 835 N.E.2d 387, 393 (2005) (At times, “it is important to stand on the side of due
       process, even at the cost of some inefficiency.”). We find the matter must be remanded for
       further proceedings without consideration of the merits of defendant’s petition. Because the
       matter must be remanded on due process grounds, we need not address defendant’s ripeness
       argument.

¶ 22                                     B. Clerk-Imposed Fines
¶ 23       Defendant argues, citing our recent decision in People v. Daily, 2016 IL App (4th) 150588,
       74 N.E.3d 15, this court should vacate fines improperly imposed against him by the circuit
       clerk. Specifically, defendant complains of the following assessments: (1) a $50 court finance
       assessment, (2) a $10 arrestee’s medical assessment, and (3) a $5 drug court program


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       assessment. Defendant asserts these assessments are fines, fines imposed by the circuit clerk
       are void, and a void judgment can be challenged at any time.
¶ 24       The State asserts this court should decline to address defendant’s argument because
       clerk-imposed fines are voidable and not void. The State does not cite any legal authority in
       support of its argument. The State further does not provide any argument as to why we should
       deviate from a long line of cases from this court, including the one cited by defendant in his
       opening brief, finding (1) fines imposed by a circuit clerk are void from their inception and (2)
       a void judgment may be challenged at any time or in any court, either directly or collaterally.
       See People v. Bowens, 2017 IL App (4th) 150830, ¶ 44, 78 N.E.3d 1058; Daily, 2016 IL App
       (4th) 150588, ¶ 28, 74 N.E.3d 15; People v. Warren, 2016 IL App (4th) 120721-B, ¶ 89, 55
       N.E.3d 117; People v. Hible, 2016 IL App (4th) 131096, ¶¶ 11-12, 53 N.E.3d 319; People v.
       Nelson, 2016 IL App (4th) 140168, ¶ 25, 49 N.E.3d 1007; People v. Jernigan, 2014 IL App
       (4th) 130524, ¶ 32, 23 N.E.3d 650; People v. Larue, 2014 IL App (4th) 120595, ¶ 56, 10
       N.E.3d 959; see also People v. Gutierrez, 2012 IL 111590, ¶ 14, 962 N.E.2d 437. The State has
       forfeited its argument for failing to cite legal authority and present well-reasoned argument.
       See Ill. S. Ct. R. 341(h) (eff. Jan. 1, 2016).
¶ 25       The record is devoid of an order, written or oral, by the trial court judge authorizing the
       imposition of the assessments defendant challenges. Instead, the circuit clerk imposed them.
       The $50 court finance assessment is a fine. 55 ILCS 5/5-1101(c) (West 2008); Daily, 2016 IL
       App (4th) 150588, ¶ 30, 74 N.E.3d 15. The $10 arrestee’s medical assessment is a fine. 730
       ILCS 125/17 (West 2008); Warren, 2016 IL App (4th) 120721-B, ¶ 119, 55 N.E.3d 117. The
       $5 drug court program assessment is a fine as the record is absent of any indication defendant
       participated in drug court. 55 ILCS 5/5-1101(f) (West 2008); People v. Rexroad, 2013 IL App
       (4th) 110981, ¶ 53, 992 N.E.2d 3. Because the circuit clerk improperly imposed these fines, we
       vacate them. See Daily, 2016 IL App (4th) 150588, ¶ 30, 74 N.E.3d 15 (to remand for the
       proper imposition of the statutorily mandated fines would result in an impermissible increase
       in the defendant’s sentence on appeal).

¶ 26                                       III. CONCLUSION
¶ 27       We reverse the trial court’s dismissal of defendant’s section 2-1401 petition and remand
       for further proceedings. We also vacate the (1) $50 court finance assessment, (2) $10 arrestee’s
       medical assessment, and (3) $5 drug court program assessment.

¶ 28      Reversed in part and vacated in part; cause remanded.




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