                                        2017 IL App (3d) 150265

                              Opinion filed September 14, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2017

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 12th Judicial Circuit,
                                                     )      Will County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )      Appeal No. 3-15-0265
            v.                                       )      Circuit No. 06-CF-1057
                                                     )
     PAUL A. SMITH,                                  )      Honorable
                                                     )      Amy M. Bertani-Tomczak,
            Defendant-Appellant.                     )      Judge, Presiding.
     _____________________________________________________________________________

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

                                               OPINION

¶1          Defendant, Paul A. Smith, appeals the dismissal of his pro se petition for postjudgment

     relief. We affirm as modified.

¶2                                               FACTS

¶3          Following two separate bench trials, defendant was found guilty of aggravated battery

     with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)) and being an armed habitual criminal (720

     ILCS 5/24-1.7 (West 2006)). The court sentenced defendant to 40 years’ imprisonment for

     aggravated battery with a firearm to run consecutively with a 20-year term for being an armed

     habitual criminal.
¶4          Defendant appealed, arguing that the circuit court erred in limiting defendant’s cross-

     examination of a State witness. We affirmed defendant’s convictions and sentences. People v.

     Smith, No. 3-08-0408 (2010) (unpublished order under Supreme Court Rule 23).

¶5          Subsequently, defendant filed a petition for postconviction relief. The petition advanced

     to the second stage. Appointed counsel amended defendant’s petition and alleged, in relevant

     part, that the State knowingly used perjured testimony, which falsely claimed that defendant

     pushed his mother during his confrontation with the victim. The circuit court granted the State’s

     motion to dismiss defendant’s postconviction petition. Defendant appealed, arguing that

     postconviction counsel provided unreasonable assistance. We affirmed the dismissal of

     defendant’s petition. People v. Smith, 2016 IL App (3d) 140387-U.

¶6          Next, on February 13, 2015, defendant filed a pro se petition for relief from judgment

     pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)).

     The notice accompanying the petition stated that defendant sent the petition through regular mail.

     The petition alleged that defendant’s conviction was void because he was indicted based on the

     false testimony that he pushed his mother during his physical altercation with the victim.

¶7          On February 18, 2015, the circuit court continued the case. Defendant was not present in

     the courtroom, and the record reveals no active participation by the State, although the transcript

     from the proceeding does list the State as appearing. The circuit court provided the State with a

     copy of defendant’s petition.

¶8          One day later, the State filed a special limited appearance and objection to the circuit

     court’s jurisdiction, arguing that defendant had not properly served his pro se petition, as

     defendant served the petition through regular mail. On the same day, the State filed a combined

     motion to dismiss defendant’s petition. The motion argued that defendant’s petition should be


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       dismissed on four grounds: (1) the court lacked personal jurisdiction over it because the State

       had not been properly served, (2) defendant’s petition failed to state a cause of action, (3) the

       issues raised in defendant’s petition were barred by res judicata, and (4) the petition was

       untimely.

¶9            Eight days after the State filed its motions, the circuit court held a hearing at which only

       the State was present. The court dismissed the petition “for lack of jurisdiction for the

       defendant’s failure to properly serve the State pursuant to Supreme Court Rules. Further, on the

       merits the Court finds the issue is res judicata since the issue was raised and decided during

       postconviction proceedings.”

¶ 10          After the court dismissed the petition, defendant filed a pro se response to the State’s

       motion to dismiss. In his pro se motion, defendant acknowledged that he failed to properly serve

       the State with his petition. However, defendant stated that his failure to properly serve the State

       was due to the fact that he lacked sufficient funds in his inmate trust account and therefore could

       not afford to send the petition via certified mail. Defendant also addressed the State’s arguments

       that defendant’s claim was barred by res judicata and untimely.

¶ 11          The circuit court held a hearing on defendant’s pro se response to the State’s motion to

       dismiss. The State appeared, but defendant was not present. At the hearing, the State informed

       the court that defendant had filed a response to the State’s motion, but noted that the court had

       already granted the State’s motion to dismiss. The docket entry corresponding to the hearing

       shows that the court acknowledged defendant’s response, but that defendant’s petition had

       already been dismissed. The court took no further action.

¶ 12          Subsequently, defendant filed a pro se motion to reconsider the circuit court’s decision

       granting the State’s motion to dismiss. Defendant’s motion again alleged that he attempted to


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       properly serve the State, but he lacked sufficient funds to send the petition by certified mail.

       Defendant requested the court to excuse his failure to comply with the service requirements. In

       addition, defendant argued that the circuit court erred when it went beyond the issue of improper

       service and ultimately found his claim barred by res judicata.

¶ 13          The court held a hearing on defendant’s motion to reconsider, at which time only the

       State appeared. The court denied defendant’s motion to reconsider.

¶ 14                                               ANALYSIS

¶ 15          Initially, we note that both parties agree that defendant failed to properly serve the State

       with his section 2-1401 petition. Service of a section 2-1401 petition is governed by the

       requirements of Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). See Ill. S. Ct. R. 106 (eff.

       Aug. 1, 1985). Rule 105 provides that service may be effected by summons, certified or

       registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Here, defendant served

       the petition on the State through regular mail. Service was, therefore, insufficient, and the court

       lacked personal jurisdiction over the State. See BAC Home Loans Servicing, LP v. Mitchell, 2014

       IL 116311, ¶ 18 (personal jurisdiction may be established either by sufficient service or by a

       party’s submission to jurisdiction).

¶ 16          Despite his failure to properly serve the State, defendant contends that dismissal was

       premature. Specifically, defendant contends that because he failed to properly serve the State, the

       30-day period within which the State could respond to the petition never commenced. We find

       our supreme court’s recent decision in People v. Matthews, 2016 IL 118114, instructive.

¶ 17          In Matthews, defendant mailed a section 2-1401 petition by regular mail. Id. ¶ 4. The

       State did not appear or respond to the petition. Id. Subsequently, the circuit court sua sponte

       dismissed the petition on the basis that the petition was untimely, contained no argument of


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       merit, and lacked any supporting documentation. Id. The court did not consider the jurisdictional

       issue in dismissing defendant’s petition. On appeal, defendant argued that he failed to properly

       serve the State with his section 2-1401 petition, and he argued that the dismissal order was

       premature based on his own failure to comply with the applicable service requirements. Id. ¶ 7.

       The court in Matthews rejected defendant’s contention that the 30-day period never commenced

       because he never properly served his petition on the State. Id. ¶ 8. Specifically, the court held

       that defendant lacked standing to raise an objection to personal jurisdiction on the State’s behalf.

       Id. ¶ 20. In so holding, the court found that a “defendant cannot challenge the trial court order

       based on his own failure to properly serve the State.” Id. ¶ 15. The court proceeded to affirm the

       dismissal of the petition on the merits. Id. ¶¶ 21-23.

¶ 18          Like the defendant in Matthews, defendant seeks to use his own failure to comply with

       the supreme court rules as grounds to challenge the court’s dismissal order. Because defendant

       cannot use his failure to comply with the supreme court rules to raise an objection on the State’s

       behalf, he lacks standing to argue that dismissal was premature. However, unlike the defendant

       in Matthews, in the present case the State first raised the issue of personal jurisdiction. In other

       words, defendant is not raising an objection on behalf of the State. Instead, he challenges the

       circuit court’s response to the issues raised in the State’s combined motion to dismiss. Thus,

       while defendant lacks standing to raise an objection to personal jurisdiction on the State’s behalf,

       he can challenge the circuit court’s determination on the issues raised in the State’s combined

       motion to dismiss.

¶ 19          When considering a combined motion objecting to personal jurisdiction and a motion to

       dismiss on other grounds, the circuit court must address the jurisdictional issue first. Ryburn v.

       People, 349 Ill. App. 3d 990, 994 (2004). In the instant case, the circuit court dismissed


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       defendant’s petition for failing to properly serve the State. However, the court went beyond the

       jurisdictional question and also reached the merits of defendant’s petition. Once the circuit court

       determines there is no personal jurisdiction over the State, the court has no power to dismiss the

       petition on the merits. Id. at 993. A dismissal on jurisdictional grounds is not res judicata on the

       merits of the petition. Id. at 994. Accordingly, we modify the court’s order to reflect that

       defendant’s petition was dismissed, without prejudice, on the grounds that defendant’s failure to

       serve the State by certified mail deprived the court of personal jurisdiction. We vacate the

       finding on the merits.

¶ 20          In reaching this conclusion, we reject defendant’s contention that the circuit court’s

       dismissal order should be reversed in its entirety and the cause remanded so that he can properly

       serve the State. We believe the relief we have granted is tantamount to what defendant has

       sought but we disagree with his rationale. Specifically, defendant contends that because the State

       filed its special and limited appearance, the circuit court was obligated to provide him with the

       opportunity to respond to the State’s arguments. There is no dispute that defendant failed to

       comply with the service requirements of Rule 105. Therefore, the court could have acted

       sua sponte to dismiss the petition because service was improper and it lacked personal

       jurisdiction. Defendant fails to explain how the State’s decision to file a limited appearance

       contesting jurisdiction legally precludes a court from acting sua sponte. In either case, the court

       can properly determine that it lacks jurisdiction, and the petition must be dismissed. See State

       Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308-09 (1986) (personal jurisdiction can be

       acquired only by service of process in the manner directed by statute). Significantly, defendant

       here suffers no prejudice from our decision to modify the dismissal order to reflect that the

       dismissal was only on jurisdictional grounds. As noted above (supra ¶ 19), dismissal on


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       jurisdictional grounds is not res judicata on the merits of the petition. Therefore, defendant may

       refile his petition, comply with the service requirements, and have his petition heard.

¶ 21          Defendant has also raised an alternative argument that relies on Illinois Supreme Court

       Rule 104 (eff. Jan. 4, 2013) to assert that his failure to comply with service may be excused by

       the court upon his application. Rule 104(c) provides: “For good cause shown on ex parte

       application, the court or any judge thereof may excuse the delivery or service of any complaint,

       pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish a

       copy promptly and without charge to any party requesting it.” Ill. S. Ct. R. 104(c) (eff. Jan. 4,

       2013). Therefore, defendant argues that the court should not have acted on the State’s motion,

       without first allowing defendant to respond to the State’s argument and seek the court’s

       permission to excuse his improper service. Because Rule 105 governs service of section 2-1401

       petitions, we find defendant’s reliance on Rule 104 misplaced. See Ill. S. Ct. R. 106 (eff. Aug. 1,

       1985) (notice of filing of a petition under section 2-1401 shall be governed by the same methods

       provided in Rule 105 for the giving of notice of additional relief to parties in default). Rule 105

       does not contain the above quoted exception for failing to comply with the service requirements

       of a section 2-1401 petition. Therefore, the circuit court would have no basis to excuse

       defendant’s improper service.

¶ 22          We would be remiss if we did not acknowledge the difficulty an individual faces when

       attempting to file a pleading while incarcerated. Like defendant in the instant case, many

       incarcerated individuals lack the financial resources necessary to serve the State via certified

       mail. The fact remains, however, that the supreme court has not provided an impoverishment

       exception to the service requirements contained within Rule 105. Moreover, while on its face, we

       find it troubling that the State was allowed to present its limited appearance and motion to


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       dismiss without input from defendant, we note that our supreme court, faced with a factual

       variant of that same question in People v. Vincent, 226 Ill. 2d 1, 13 (2007), found that “adequate

       procedural safeguards exist to prevent erroneous sua sponte terminations.”

¶ 23           In Vincent, the circuit court sua sponte dismissed defendant’s section 2-1401 petition,

       even though the State neither appeared nor filed a response. Id. at 5. The dismissal was on the

       merits and not on jurisdictional grounds. Id. Defendant argued that even if the circuit court could

       act without a response from the State, the court was required to provide him notice and an

       opportunity to respond to the court’s action. Id. at 10. The supreme court rejected defendant’s

       contention on the basis that a defendant’s ability to file a motion to reconsider and to appeal the

       dismissal order provided sufficient safeguards to prevent an erroneous sua sponte dismissal of a

       section 2-1401 petition. Id. at 12-13. In coming to this conclusion, the supreme court noted that

       the practice of sua sponte dismissing meritless complaints “comports with due process and does

       not infringe the right of access to the courts.” Id. at 13.

¶ 24           Though Vincent involved a court sua sponte dismissing a section 2-1401 petition, its

       reasoning arguably applies equally to the instant case (where dismissal occurs upon the State’s

       motion). Of the available remedies, a defendant whose petition has been disposed of by the court

       could file a motion to reconsider (which defendant did in this case). See 735 ILCS 5/2-1203

       (West 2014). In addition, a defendant whose cause of action has been terminated for improper

       service could appeal and argue that service was in fact proper (which defendant does not argue).

       See People v. Flowers, 208 Ill. 2d 291, 307 (2003). Thus, the availability of corrective remedies,

       such as a motion to reconsider, render defendant’s absence from the hearing and his inability to

       timely respond to the State’s motion “less of a concern.” Vincent, 226 Ill. 2d at 13. This

       defendant utilized one such remedy in the circuit court by filing his motion to reconsider. The


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       court considered the motion and denied it. He also filed the instant appeal. Further, the mere fact

       that the State was present at these hearings and presented its motion to dismiss in defendant’s

       absence cannot be characterized as improper ex parte communications or waiver of its

       jurisdictional challenge. Until the law evolves to take into account the policy considerations

       presented in the instant case, we are bound to apply the holdings and rules of our supreme court

       (Matthews, 2016 IL 118114, ¶ 23; Vincent, 226 Ill. 2d at 13; Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)).

       Blumenthal v. Brewer, 2016 IL 118781, ¶¶ 28-29 (where our supreme court has declared the law

       on any point, it alone can overrule and modify its previous opinion, and the lower tribunals are

       bound by such decisions and it is the duty of such lower tribunals to follow such decisions in

       similar cases).

¶ 25                                             CONCLUSION

¶ 26          The judgment of the circuit court of Will County dismissing defendant’s section 2-1401

       petition on jurisdictional grounds is affirmed as modified.

¶ 27          Affirmed as modified.




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