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                               Appellate Court                            Date: 2017.10.17
                                                                          13:57:33 -05'00'




                   People v. Garry, 2017 IL App (4th) 150373



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



District & No.    Fourth District
                  Docket No. 4-15-0373



Filed             August 22, 2017



Decision Under    Appeal from the Circuit Court of Macon County, No. 99-CF-940; the
Review            Hon. Thomas E. Griffith, Jr., Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Peter A. Carusona, and Jay Wiegman, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  Jay Scott, State’s Attorney, of Decatur (Patrick Delfino and Charles G.
                  Reynard, of State’s Attorneys Appellate Prosecutor’s Office, of
                  counsel), for the People.



Panel             JUSTICE STEIGMANN delivered the judgment of the court, with
                  opinion.
                  Justices Appleton and Knecht concurred in the judgment and opinion.
                                               OPINION

¶1         In November 1999, a jury found defendant, Tyrek Garry, guilty of home invasion (720
       ILCS 5/12-11 (West 1998)), armed robbery (720 ILCS 5/18-2(a) (West 1998)), and armed
       violence (720 ILCS 5/33A-2, 12-4(a) (West 1998)). The trial court sentenced him to 40 years
       in prison for armed violence and 20 years each for home invasion and armed robbery, with
       all sentences to be served concurrently. We affirmed defendant’s convictions on direct
       appeal. People v. Garry, 323 Ill. App. 3d 292, 752 N.E.2d 1244 (2001).
¶2         In May 2001, defendant pro se filed a petition for postconviction relief under the
       Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-8 (West 2000)). The trial court
       granted the State’s motion to dismiss the petition. We affirmed. People v. Garry, No.
       4-04-0310 (2005) (unpublished order under Supreme Court Rule 23).
¶3         In January 2015, defendant filed a petition for relief from judgment under section 2-1401
       of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)), arguing that his
       convictions for armed violence and home invasion violated the one-act, one-crime rule and
       were therefore void. In April 2015, the trial court sua sponte dismissed defendant’s petition.
¶4         Defendant appeals, arguing that the trial court’s sua sponte dismissal was premature
       because the State was not properly served with the petition. We reject that argument. In
       addition, we conclude that defendant’s petition was untimely and, therefore, we do not reach
       the merits of defendant’s one-act, one-crime claim. We affirm the trial court’s dismissal of
       defendant’s petition.

¶5                                           I. BACKGROUND
¶6                            A. Defendant’s Convictions and Direct Appeal
¶7          In July 1999, the State charged defendant with home invasion (720 ILCS 5/12-11 (West
       1998)), armed robbery (720 ILCS 5/18-2(a) (West 1998)), and armed violence (720 ILCS
       5/33A-2, 12-4(a) (West 1998)). After the November 1999 trial, the jury found defendant
       guilty of all three charges. The trial court sentenced defendant to 40 years in prison for armed
       violence and 25 years each for armed robbery and home invasion, all sentences to be served
       concurrently. In July 2001, we affirmed defendant’s convictions and sentences. Garry, 323
       Ill. App. 3d 292, 752 N.E.2d 1244.

¶8                             B. The May 2001 Postconviction Petition
¶9          In May 2001, defendant filed a petition for postconviction relief. In it, he argued that the
       trial court erred by imposing an extended-term sentence for armed violence, when armed
       violence was not the most serious offense for which he was convicted. The court appointed
       counsel, who filed an amended petition. The State filed a motion to dismiss, which the court
       granted. On appeal, we affirmed after granting appellate counsel’s motion to withdraw
       because no meritorious issue could be raised on appeal. Garry, No. 4-04-0310.

¶ 10                    C. The January 2015 Petition for Relief From Judgment
¶ 11       In January 2015, defendant filed the section 2-1401 petition at issue in this appeal. In it,
       he argued that his armed violence conviction was void because it was based on the same act


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       that supported his conviction for home invasion, in violation of the one-act, one-crime rule.
       See People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977).
¶ 12       Attached to defendant’s petition was a document titled “Notice of Filing,” which
       included the following section, titled “Proof of Service by Mail”:
               “I, Tyrek Garry, pro-se litigant, certify that I served this notice by mailing a [sic] to
               ___________ at the address above[,] depositing the same in the United States mail at
               Lawrence Corr. Center on [January] 21, 2015 with proper postage paid.”
       The only address listed above was the address of the Macon County circuit clerk.
¶ 13       In April 2015, the trial court sua sponte dismissed defendant’s section 2-1401 petition,
       determining that no one-act, one-crime issue existed.
¶ 14       This appeal followed.

¶ 15                                       II. ANALYSIS
¶ 16       Defendant raises the following alternative arguments: (1) the trial court sua sponte
       dismissed defendant’s section 2-1401 petition before it was ripe for adjudication because
       defendant never served the petition on the State and (2) the trial court’s dismissal was
       incorrect on the merits because two of defendant’s convictions violated the one-act,
       one-crime rule. We disagree with defendant’s first argument. We do not reach his second
       argument because his petition was untimely. We therefore affirm the trial court’s judgment.

¶ 17                   A. The Trial Court’s Sua Sponte Dismissal of Defendant’s
                                         Section 2-1401 Petition
¶ 18       Defendant argues that the trial court sua sponte dismissed his section 2-1401 petition
       before it was ripe for adjudication because he never served the petition on the State. For the
       following reasons, we reject this argument.

¶ 19                             1. Section 2-1401 Petitions, in General
¶ 20       Section 2-1401 of the Code establishes a procedure by which to vacate final judgments
       that are more than 30 days old. 735 ILCS 5/2-1401 (West 2014). “Relief under section
       2-1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that
       would have precluded entry of the judgment in the original action and diligence in both
       discovering the defense or claim and presenting the petition.” People v. Vincent, 226 Ill. 2d 1,
       7-8, 871 N.E.2d 17, 22 (2007). The petition must be filed no later than two years after the
       entry of the contested judgment. 735 ILCS 5/2-1401(c) (West 2014). An exception to the
       two-year deadline applies when the petition challenges a void judgment. 735 ILCS
       5/2-1401(f) (West 2014).
¶ 21       Although section 2-1401 petitions may be used to attack criminal judgments, they are
       civil pleadings, “subject to the usual rules of civil practice.” Vincent, 226 Ill. 2d at 6, 871
       N.E.2d at 22. When filing a section 2-1401 petition, “[a]ll parties to the petition shall be
       notified as provided by rule.” 735 ILCS 5/2-1401(b) (West 2014). Illinois Supreme Court
       Rule 106 (eff. Aug. 1, 1985) requires that notice of filing a section 2-1401 petition shall
       comply with the methods provided by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989).
       Rule 105(a) provides that the notice must inform the recipient party that a new pleading has
       been filed against him and that a default judgment may be entered if the recipient party does

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       not respond within 30 days of service. Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989).

¶ 22                       2. The Authority of Trial Courts to Sua Sponte Dismiss
                                          Section 2-1401 Petitions
¶ 23       In a series of cases decided over the past 10 years, the supreme court has clarified the
       power of trial courts to sua sponte dismiss a petitioner’s section 2-1401 petition.
¶ 24       In Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23, the supreme court held that a respondent’s
       failure to answer a section 2-1401 petition within 30 days constituted “an admission of all
       well-pleaded facts” contained in the petition. At that point, a trial court can dismiss the
       petition “when it is clear on its face that the requesting party is not entitled to relief as a
       matter of law.” Id. at 12, 871 N.E.2d at 25. The Vincent court rejected the petitioner’s claim
       that the trial court was required to give the petitioner notice and an opportunity to respond
       prior to the trial court’s dismissal of the section 2-1401 petition. Id. at 12-14, 871 N.E.2d at
       25-26. In sum, “the State’s choice to forgo filing an answer stands as an admission of all
       well-pleaded facts, which allowed the circuit court to render judgment on the pleadings
       alone.” Id. at 14, 871 N.E.2d at 26.
¶ 25       In People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009), the trial court
       sua sponte dismissed a defendant’s section 2-1401 petition before the State’s 30-day
       response period had expired. The supreme court reversed, concluding that the petition was
       not yet “ripe for adjudication.” Id. The Laugharn court explained that “[w]hile 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.” Id. The court concluded that dismissing the
       petition before the State had its full opportunity to respond “short-circuited the proceedings
       and deprived the State of the time it was entitled to answer or otherwise plead.” Id.
¶ 26       Most recently, in People v. Matthews, 2016 IL 118114, ¶ 4, 76 N.E.3d 1233, the trial
       court sua sponte dismissed the defendant’s section 2-1401 petition more than 30 days after it
       was filed. On appeal, the defendant argued that the State’s 30 days to respond to the petition
       never began to run because the defendant failed to properly serve the petition on the State. Id.
       ¶ 5. The defendant argued that, under Laugharn, the petition was therefore not ripe for
       adjudication. Id. ¶ 8.
¶ 27       The Matthews court held that the defendant was estopped from using his own failure to
       serve the State as support for his claim of error. Id. ¶¶ 13-15. The supreme court reasoned
       that, in the trial court, the defendant had filed a proof-of-service document claiming that he
       properly served his petition on the State. Id. ¶ 14. In addition, allowing a defendant to make
       an argument about lack of service “would effectively revoke the State’s power to waive
       service in these cases.” Id. ¶ 15. Further, allowing a defendant to raise such a challenge
       would grant him a “ ‘second bite of the apple.’ ” Id. (quoting People v. Alexander, 2014 IL
       App (4th) 130132, ¶ 46, 23 N.E.3d 621). Finally, the service requirements of Rule 105 were
       not designed “to allow a petitioner to object to lack of service on behalf of the opposing
       party.” Id.

¶ 28                    3. The Trial Court’s Sua Sponte Dismissal in This Case
¶ 29     Here, the trial court sua sponte dismissed defendant’s section 2-1401 petition nearly three
       months after it was filed. However, defendant argues that he never served the petition on the


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       State and, therefore, the 30 days for the State to respond never began to run. Defendant thus
       argues that Laugharn proscribes the court’s sua sponte dismissal of his petition because the
       petition was not ripe for adjudication.
¶ 30       We conclude that this case is more like Matthews than Laugharn. Here, the State’s 30
       days to respond never began because defendant failed to properly serve the State. That was
       the characteristic that distinguished Matthews from Laugharn. As the Matthews court
       concluded, Rule 105 was not designed “to allow a petitioner to object to lack of service on
       behalf of the opposing party.” Id. As did the Matthews court, we determine that defendant
       should not be able to benefit from his own failure to properly serve the State.
¶ 31       We therefore reject defendant’s argument that we should vacate the trial court’s order
       dismissing defendant’s section 2-1401 petition on the ground that the petition was not ripe
       for adjudication.

¶ 32                               B. Timeliness of Defendant’s Petition
¶ 33       Before we consider the merits of the claim raised in defendant’s petition, we first address
       the timeliness of the petition. As noted above, a section 2-1401 petition for relief from
       judgment generally must be filed within two years of the challenged judgment, unless the
       challenged judgment is void. See 735 ILCS 5/2-1401(c), (f) (West 2014). In this case,
       defendant concedes that his petition was untimely.
¶ 34       Despite admitting that his petition was untimely, defendant argues that we should
       nonetheless consider his one-act, one-crime claim. Defendant does not argue that we may
       consider that claim because it rendered the resulting judgment void. Instead, citing People v.
       Davis, 156 Ill. 2d 149, 619 N.E.2d 750 (1993), defendant encourages us to address his
       one-act, one-crime claim and merge the allegedly offending convictions under Illinois
       Supreme Court Rule 615(b).
¶ 35       In Davis, 156 Ill. 2d at 153, 619 N.E.2d at 753, the defendant was found guilty and
       sentenced for two offenses that the parties agreed violated the one-act, one-crime rule of
       People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). (The Davis court went on to discuss
       the one-act, one-crime rule in terms of the double jeopardy clauses of the Illinois and federal
       constitutions (Ill. Const. 1970, art. I, § 10; U.S. Const., amends. V, XIV). The supreme court
       has since clarified that the one-act, one-crime doctrine of King lineage is not a constitutional
       rule. People v. Artis, 232 Ill. 2d 156, 164, 902 N.E.2d 677, 682 (2009).) But the Davis
       defendant raised that argument for the first time on appeal from the denial of his
       postconviction petition. His failure to raise the claim earlier meant that the claim was
       forfeited. Defendant attempted to excuse that procedural default by arguing that the one-act,
       one-crime violation rendered his conviction void, meaning that it could be challenged at any
       time. Davis, 156 Ill. 2d at 155, 619 N.E.2d at 754.
¶ 36       The Davis court confirmed that one-act, one-crime violations do not render a conviction
       void. Id. at 157-58, 619 N.E.2d at 755. Further, the court determined that the defendant’s
       one-act, one-crime claim had not been properly preserved for review. Id. at 160, 619 N.E.2d
       at 765. Nonetheless, the court vacated the lesser of defendant’s offending convictions “in the
       exercise of our supervisory authority.” Id. The court reasoned that an improper conviction
       was not only a problem in the case at hand but also for potential future criminal proceedings
       involving the defendant, where “the improper conviction could likely affect decisions with
       respect to setting of bond and sentencing, as well as parole opportunities.” Id.

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¶ 37       Davis does not grant this court the authority to merge any of defendant’s convictions. In
       Davis, the supreme court exercised its supervisory authority when vacating one of the
       defendant’s convictions. This court lacks such supervisory authority. Further, Davis
       addressed proceedings stemming from a petition for postconviction relief, not a section
       2-1401 petition. In addition, Davis did not involve Rule 615(b), and defendant does not
       explain how Rule 615(b) might grant this court the authority to overlook the untimeliness of
       his section 2-1401 petition. As defendant has not cited any case law to support his
       contention, we reject his argument.

¶ 38                                      III. CONCLUSION
¶ 39      For the foregoing reasons, we affirm the trial court’s judgment. As part of our judgment,
       we award the State its $50 statutory assessment against defendant as costs of this appeal. 55
       ILCS 5/4-2002(a) (West 2016).

¶ 40      Affirmed.




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