                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Clemons, 2011 IL App (1st) 102329




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    DWAYNE CLEMONS, Defendant-Appellant.



District & No.             First District, First Division
                           Docket No. 1-10-2329


Filed                      September 30, 2011


Held                       In a prosecution for aggravated discharge of a firearm and unlawful use
(Note: This syllabus       of a weapon by a felon, the trial court’s denial of defendant’s petition
constitutes no part of     under section 2-1401 of the Code of Civil Procedure seeking specific
the opinion of the court   performance of his plea agreement was premature where the trial court
but has been prepared      sua sponte denied the petition less than 30 days after its filing and service
by the Reporter of         without a response by the State; therefore, the denial was vacated and the
Decisions for the          cause was remanded for further proceedings.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-21603; the
Review                     Hon. Brian Flaherty, Judge, presiding.


Judgment                   Judgment vacated; cause remanded for further proceedings.
Counsel on                 Michael J. Pelletier and Kieran M. Wiberg, both of State Appellate
Appeal                     Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Mary
                           P. Needham, and Stacy D. Weber, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      JUSTICE ROCHFORD delivered the judgment of the court, with
                           opinion.
                           Presiding Justice Hoffman and Justice Hall concurred in the judgment
                           and opinion.




                                             OPINION

¶1          Defendant, Dwayne Clemons, appeals the denial of his “MOTION FOR SPECIFIC
        PERFORMANCE OF PLEA AGREEMENT” (petition), which he filed pursuant to section
        2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)).
        Defendant’s sole contention on appeal is that the trial court acted prematurely by denying his
        petition within 30 days of its filing and service, pursuant to People v. Laugharn, 233 Ill. 2d
        318 (2009). We agree, vacate the denial of defendant’s petition, and remand for further
        proceedings.

¶2                                         I. Background
¶3          Defendant had been charged with 12 counts of aggravated unlawful use of a weapon, 2
        counts of unlawful use of a weapon by a felon, 2 counts of aggravated discharge of a firearm,
        and 1 count of aggravated assault, all relating to an October 26, 2009, incident. On March
        4, 2010, defendant pled guilty to one count each of aggravated discharge of a firearm and
        unlawful use of a weapon by a felon and was sentenced to seven years’ imprisonment on
        both charges. On that date he also pled guilty to a single charge of aggravated fleeing and
        eluding brought in a separate case and was sentenced to three years’ imprisonment. The
        sentences were to be served concurrently.
¶4          On April 2, 2010, defendant filed a motion to withdraw his guilty plea through counsel.
        The motion contended that, at the time of defendant’s plea, he did not fully understand that
        he was required to serve 85% of his sentence for aggravated discharge of a firearm. On April
        12, 2010, defendant filed a pro se petition for relief from judgment under section 2-1401 of
        the Code, seeking to vacate his sentence because the trial court erroneously had informed
        him that he “would serve the seven (7) year term of imprisonment at a good-time rate of


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       50%” (emphasis in original), rather than at a rate of 85%. On May 19, 2010, defendant
       appeared in court with counsel. The trial court, addressing defendant’s motion to withdraw
       the plea, informed defendant: “If you do not understand it, I will let you withdraw your plea
       of guilty, and what’s going to happen is that the State’s Attorney is going to be reinstating
       all of the charges that they dismissed ***.” Defendant told the trial court that he wished to
       withdraw his motion to vacate his plea. There is no evidence in the record on appeal as to the
       disposition of the section 2-1401 petition filed on April 12, 2010.
¶5          On June 11, 2010, defendant mailed a “MOTION FOR SPECIFIC PERFORMANCE OF
       PLEA AGREEMENT” to the clerk of the circuit court and to the office of the Cook County
       State’s Attorney, which requested relief under section 2-1401 of the Code. The petition was
       file stamped on June 24, 2010. On appeal, the State has stated that it received notice of the
       petition. In his petition, defendant argued that he was deprived of due process because he had
       not been informed he would be required to serve 85% of his sentence and requested that his
       sentence be modified.
¶6          On July 1, 2010, the State was present in court at a hearing in which the trial court
       addressed the defendant’s petition. The trial court sua sponte considered and denied the
       petition on that date, without hearing argument or evidence. The trial court stated:
                “The defendant negotiated a plea for seven years Illinois Department of Corrections.
                That’s what he got. He got eighty-five percent, which he is saying I should have told
                him about, and that’s not true. That’s not required. So the motion is denied.”
       Defendant filed this timely appeal from the denial of his section 2-1401 petition.

¶7                                           II. Analysis
¶8          On appeal, defendant cites to Laugharn, contends that the trial court prematurely ruled
       upon his petition, and requests that the trial court’s order be vacated and the case remanded.
       The State argues that the issues raised in the petition were ripe for adjudication because it
       was present in court when the trial court denied defendant’s petition, and, therefore, it had
       an opportunity to challenge the petition.
¶9          Section 2-1401 establishes a procedure for seeking relief from judgments, in both
       criminal and civil cases, more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2010);
       People v. Vincent, 226 Ill. 2d 1, 8 (2007). In general, a section 2-1401 petition must be filed
       within two years of the entry of judgment. 735 ILCS 5/2-1401(c) (West 2010). The rules of
       civil practice govern proceedings under this section, even in criminal proceedings. Vincent,
       226 Ill. 2d at 8. Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) provides that a petitioner
       must notify all parties of the petition in accordance with Illinois Supreme Court Rule 105
       (eff. Jan. 1, 1989). The notice must inform the responding party that an answer to the petition
       is required to be filed within 30 days or a judgment of default may be entered. Ill. S. Ct. R.
       105(a) (eff. Jan. 1, 1989); Keener v. City of Herrin, 235 Ill. 2d 338, 348-49 (2009).
¶ 10        “Section 2-1401 petitions are essentially complaints inviting responsive pleadings.”
       Vincent, 226 Ill. 2d at 8. Thus, the responding party may move to dismiss the petition for
       failure to properly plead a claim for relief or because, on the face of the petition, it is clear
       that the petitioner is not entitled to the requested relief. Id. If the opposing party files an

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       answer to the petition without filing a motion attacking its sufficiency, any challenge to the
       sufficiency of the petition is waived and the petition will be treated by the trial and reviewing
       courts as having stated a claim. Id. However, “if the facts alleged cannot state a legal basis
       for the relief requested, i.e., the petition is insufficient as a matter of law, the pleading may
       be challenged at any time, even on appeal.” Id. at 8-9. The failure to file a responsive
       pleading “constitutes an admission of all well-pleaded facts [citation], and the trial court may
       decide the case on the pleadings, affidavits, exhibits and supporting material before it,
       including the record of the prior proceedings.” Id. at 9. A trial court may dispose of a section
       2-1401 petition in five possible ways: (1) dismiss the petition; (2) grant or deny the petition
       on the basis of the record as a matter of law; or (3) grant or deny relief after a hearing to
       resolve any factual disputes. Id.
¶ 11       The holdings in both Vincent and Laugharn guide our decision here. In Vincent, the
       defendant filed a section 2-1401 petition challenging his sentences as violating sections 5-8-
       4(a) and 5-8-4(c)(2) of the Unified Code of Corrections. Id. at 5; 730 ILCS 5/5-8-4(a), (c)(2)
       (West 1998)). The State did not file responsive pleadings within the 30 days allowed.
       Vincent, 225 Ill. 2d at 5. The trial court disposed of the petition by stating orally: “Jake
       Vincent. He’s saying that it’s a void judgment, and he wants me to vacate his sentence of a
       hundred years, and that will be denied.” (Internal quotation marks omitted.) Id.
¶ 12       The supreme court framed the issue in Vincent as “whether a trial court may dispose of
       a properly served section 2-1401 petition without benefit of responsive pleadings and without
       giving the petitioner notice of the impending ruling and the opportunity to address the court
       prior to the ruling.” Id. at 5. Before addressing this issue, the supreme court emphasized that
       a sua sponte dismissal of a section 2-1401 petition was not the same and could not be
       considered as a “summary dismissal” of a postconviction petition under the Post-Conviction
       Hearing Act (Act) (735 ILCS 5/122-2 et seq. (West 2002)). Vincent, 226 Ill. 2d at 6. The Act
       has no application to petitions filed pursuant to section 2-1401, which provide “an entirely
       different form of statutory, collateral relief” from criminal convictions and are subject to civil
       practice rules. Id. The court concluded that an understanding of this distinction would aid in
       orderly trial and appellate review of section 2-1401 petitions. Id.
¶ 13       The supreme court held that the State was not required to answer or otherwise respond
       to a section 2-1401 petition, but its failure to do so results in all well-pled facts being
       admitted. Id. at 10; see also People v. Allen, 377 Ill. App. 3d 938, 943 (2007) (The failure
       to respond “renders the petition ripe for adjudication as a matter of law.”). The court held
       that “a trial court ‘may dismiss a claim sua sponte *** without notice where the claimant
       cannot possibly win relief.’ ” Vincent, 226 Ill. 2d at 13 (quoting Omar v. Sea-Land Service,
       Inc., 813 F.2d 986, 991 (9th Cir. 1987)). The supreme court found that the trial court’s sua
       sponte decision to deny the petition did not deprive the defendant of an opportunity to be
       heard, in that his petition was filed and considered by the trial court and adequate methods
       of review existed to prevent an erroneous sua sponte termination of the section 2-1401
       proceedings. Id. at 12-13.
¶ 14       The issues of ripeness and sua sponte determinations of section 2-1401 petitions were
       examined by the supreme court again in Laugharn. The defendant in that case filed a section
       2-1401 petition on August 24, 2001, challenging her 1996 murder conviction. On September

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       2, 2004, the trial court sua sponte dismissed the petition as untimely because it was filed
       beyond the two-year filing period set forth in section 2-1401. Laugharn, 233 Ill. 2d at 321.
       The supreme court held:
               “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. While Vincent allows for sua sponte
               dismissals of section 2-1401 petitions, it did not authorize such action prior to the
               expiration of the 30-day period. [Citation.] In Vincent, the State’s failure to answer
               the petition within the time for doing so resulted in ‘an admission of all well-pleaded
               facts,’ which rendered the petition ‘ripe for adjudication.’ [Citation.]
                    Laugharn’s petition, in contrast, was not ‘ripe for adjudication.’ Only seven days
               had passed since its filing. The circuit court’s dismissal short-circuited the
               proceedings and deprived the State of the time it was entitled to answer or otherwise
               plead.” Id. at 323.
¶ 15       In this case, the trial court denied the defendant’s petition sua sponte before the 30-day
       time to respond had expired. Under Laugharn, defendant’s petition was not ripe for
       adjudication.
¶ 16       Nevertheless, on appeal, the State argues it appeared “in court on the petition and offered
       no objection” and, therefore, the petition was ripe for adjudication. We disagree.
¶ 17       “To determine whether an issue is ripe for adjudication, we are required to evaluate both
       the fitness of the issue for judicial decision and the hardship to the parties of withholding
       court consideration.” Cianci v. Safeco Insurance Co. of Illinois, 356 Ill. App. 3d 767, 777
       (2005). The State stood silent on the date the trial court sua sponte denied defendant’s
       petition, less than 30 days after the petition’s filing and service. However, a failure to
       respond to a section 2-1401 petition is of no import and does not frame the issues until after
       the 30-day time period to answer has passed and the responding party is in default. Once the
       State fails to file a response to the petition within the time allowed, the State may then be
       found in default and all well-pled facts contained in the petition will be deemed admitted.
       Vincent, 226 Ill. 2d at 14. As set forth in Vincent, the trial court may then review the petition
       and determine, based on the record, whether a claim exists as a matter of law. Id. at 10, 14.
       Mere silence on the part of the State, within the 30-day period allowed for it to respond to
       a defendant’s section 2-1401 petition, does not render the petition ripe for adjudication.
       Furthermore, we can perceive of no real hardship to the parties if consideration of the
       petition takes place only after expiration of the 30-day time period to respond.

¶ 18                                    III. Conclusion
¶ 19       For the foregoing reasons, we must vacate the trial court’s premature denial of
       defendant’s petition and remand for further proceedings. We express no opinion on the
       merits of the substantive arguments raised by defendant in his petition.

¶ 20       Judgment vacated; cause remanded for further proceedings.


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