                                    2016 IL App (4th) 130832                    FILED
                                                                                April 7, 2016
                                         NO. 4-13-0832                          Carla Bender
                                                                            4th District Appellate
                                 IN THE APPELLATE COURT                           Court, IL

                                          OF ILLINOIS

                                      FOURTH DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from
            Plaintiff-Appellee,                             )      Circuit Court of
            v.                                              )      Macon County
 TONY A. ROLFE,                                             )      No. 03CF552
            Defendant-Appellant.                            )
                                                            )      Honorable
                                                            )      James R. Coryell,
                                                            )      Judge Presiding.


               JUSTICE APPLETON delivered the judgment of the court, with opinion.
               Justices Turner and Steigmann concurred in the judgment and opinion.

                                           OPINION
¶1             Thirty-nine days after defendant, Tony R. Rolfe, filed his petition for relief from

judgment (735 ILCS 5/2-1401 (West 2012)), the trial court dismissed the petition, sua sponte.

Defendant appeals on the ground that his petition was unripe for adjudication. See People v.

Laugharn, 233 Ill. 2d 318, 323 (2009). The record fails to affirmatively show the petition was

unripe for adjudication. Therefore, we affirm the trial court's judgment.

¶2                                     I. BACKGROUND

¶3             On March 16, 2007, a jury found defendant guilty of the first degree murder of

Sheila Wilson (720 ILCS 5/9-1 (West 2002)).

¶4             On April 25, 2007, the trial court sentenced defendant to imprisonment for 50

years.
¶5             On July 15, 2013, defendant filed a petition for relief from judgment (735 ILCS

5/2-1401 (West 2012)). The proof of service, attached to his petition, states only that on June 25,

2013, he put the petition "in the prison mail system at Stateville Correctional Center ***, to be

mailed to the clerk of the circuit court of Macon County." The proof of service says nothing, one

way or the other, about serving the petition on the State.

¶6             On August 23, 2013, the trial court dismissed the petition, sua sponte. The order

of dismissal says, in part:

                       "The motion seeks to re-litigate the issue of him being

               charged as a principal but the Jury being instructed on

               accountability the position is meritless [sic].

                       The State's Attorney has filed no response to the

               Defendant's motion although more than 30 days have passed. The

               motion raised no new factual matters that would have been

               unknown to the Defendant at the time of trial nor does it

               demonstrate any question to believe the judgment is void.

                       Therefore, no relief could be granted on the motion and the

               motion is therefore dismissed."

¶7             This appeal followed.

¶8                                        II. ANALYSIS

¶9             In his appeal, defendant makes no argument on the merits of his petition for relief

from judgment. Instead, he takes the position that until the petition is ripe for adjudication, any

discussion of the merits of the petition would be premature. He argues the petition is unripe for

adjudication until 30 days pass after service of the petition on the State pursuant to Illinois



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Supreme Court Rule 105 (eff. Jan. 1, 1989), and he represents he has not yet served the petition

on the State. See Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989) (judgment by default may be taken

unless the respondent files an answer or appearance within 30 days after service); Ill. S. Ct. R.

106 (eff. Aug. 1, 1985) ("Notice of the filing of a petition under section 2-1401 *** shall be

given by the same methods provided in Rule 105 ***."); Laugharn, 233 Ill. 2d at 323.

¶ 10           To evaluate this argument by defendant, we consider the analysis of the supreme

court in People v. Carter, 2015 IL 117709. In Carter, the trial court dismissed the defendant's

section 2-1401 petition, sua sponte, more than 30 days after he filed the petition. Id. ¶ 6. On

appeal, the defendant argued his petition was unripe for adjudication because Rules 105 and 106

required service on the State by certified or registered mail and all his proof of service said was

that he had served the petition on the State by putting it in the "institutional mail" at the

correctional facility, without saying, one way or the other, whether the petition had been sent to

the State by certified or registered mail. (Internal quotation marks omitted.) Id. ¶ 7.

¶ 11           The supreme court rejected the defendant's argument because the record "[did] not

affirmatively demonstrate there was deficient service." (Emphasis in original.) Id. ¶ 18. The

supreme court explained that, as the appellant, the defendant "ha[d] the burden to present a

sufficiently complete record such that the court of review [could] determine whether there was

the error claimed by the appellant." Id. ¶ 19. Without a record affirmatively showing the

claimed error, a court of review would presume the trial court followed the law. Id. "To serve as

a basis for [the] defendant's contention of error, [the proof of service had to] affirmatively

establish that [the] defendant mailed his petition via some means other than certified or

registered mail." (Emphasis added.) Id. ¶ 20. It did not do so.




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¶ 12           A proof of service that fails to mention the State at all as an addressee is

effectively the same as a proof of service that lists the State as an addressee but fails to specify

whether the mailing was by certified or registered mail. Either way—regardless of whether the

petitioner sent the State nothing or, alternatively, sent the petition to the State by regular mail (as

opposed to certified or registered mail)—the result is the same: there has been no legally

effective service, and the 30-day clock does not begin ticking. See Ill. S. Ct. R. 105(a) (eff.

Jan. 1, 1989); R. 106 (eff. Aug. 1, 1985). For that reason, no meaningful distinction can be made

between the proof of service in Carter and the proof of service in the present case. Both fail to

affirmatively show effective service on the State—and, by the same token, both fail to

affirmatively show the lack of effective service on the State. The silence of the record is not the

affirmative showing of error required of an appellant. See Carter, 2015 IL 117709, ¶¶ 20, 23.

Defendant never asked the trial court to reconsider its decision on the ground that he had not yet

served the State. See 735 ILCS 5/2-1203(a) (West 2014); Carter, 2015 IL 117709, ¶ 25 ("[A]ny

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."). Consequently, we are left with a record inadequate to support the claim of

error. See id. ¶ 23.

¶ 13           It is true that, in its brief, "the State does not contest the deficient service." We

decline, however, to accept a concession that the record fails to support. See id. ¶ 22 ("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.").

¶ 14                                     III. CONCLUSION



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¶ 15   For the foregoing reasons, we affirm the trial court's judgment.

¶ 16   Affirmed.




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