871 N.E.2d 17 (Ill. 2007), 101477, People v. Vincent

Docket Nº:101477.
Citation:871 N.E.2d 17, 226 Ill.2d 1, 312 Ill.Dec. 617
Party Name:The PEOPLE of The State of Illinois, Appellee, v. Jake VINCENT, Appellant.
Case Date:June 07, 2007
Court:Supreme Court of Illinois

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871 N.E.2d 17 (Ill. 2007)

226 Ill.2d 1, 312 Ill.Dec. 617

The PEOPLE of The State of Illinois, Appellee,


Jake VINCENT, Appellant.

No. 101477.

Supreme Court of Illinois

June 7, 2007.

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Michael J. Pelletier, Deputy Defender, and Heidi Linn Lambros, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Michael M. Glick, Assistant Attorney General, Chicago, James E. Fitzgerald, Alan J. Spellberg and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.

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[226 Ill.2d 4] OPINION

FREEMAN, Justice.

Jake Vincent unsuccessfully petitioned for postjudgment relief pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2002)) in the circuit court of Cook County. The appellate court affirmed. No. 1-04-1802 (unpublished order under Supreme Court Rule 23). We granted leave to appeal (210 Ill.2d R. 315) and affirm the judgment of the appellate court.


Vincent was convicted in a bench trial of five counts each of attempted murder, armed violence, aggravated battery with a firearm, and aggravated battery. The circuit court sentenced him to five consecutive 20-year prison terms. The appellate court affirmed the convictions and sentences on direct appeal. People v. Vincent, No. 1-98-3942, 306 Ill.App.3d 1177, 258 Ill.Dec. 744, 757 N.E.2d 129 (1999) (unpublished order under Supreme Court Rule 23). Vincent, having been denied [226 Ill.2d 5] relief under the Post-Conviction Hearing Act (725 ILCS 5/122-2 et seq. (West 2002); People v. Vincent, No. 1-02-0836, 337 Ill.App.3d 1162, 300 Ill.Dec. 256, 843 N.E.2d 514 (2003) (unpublished order under Supreme Court Rule 23)), sought to challenge his sentences by way of the Code of Civil Procedure. To that end, he filed, on January 30, 2004, a pro se petition, which he titled "Collateral Attack Upon a Void Judgment Pursuant to ILCS 5/2-1401(f)." He alleged in this petition that the circuit court violated sections 5-8-4(a) and 5-8-4(c)(2) of the Unified Code of Corrections (730 ILCS 5/5-8-4(a), (c)(2) (West 1998)) in imposing sentence.

The State did not file any responsive pleading to the petition. The circuit court's disposition of the petition consists of three lines on a single page of the transcript: "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."

On appeal, the appellate court concluded that the circuit court had erred in "summarily dismissing" Vincent's petition because section 2-1401 does not provide for such a disposition. The court, however, considered this procedural error harmless because Vincent's claims were without merit.


The question raised in this case is 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. Over the past several years, the appellate court has inconsistently answered the question of the sua sponte disposition of section 2-1401 petitions brought by those convicted of crimes. Some panels have approved the practice under the rationale that a sua sponte disposition is analogous to the summary dismissal procedure contained in the Post-Conviction Hearing Act. [226 Ill.2d 6] See, e.g., People v. Bramlett, 347 Ill.App.3d 468, 473, 282 Ill.Dec. 663, 806 N.E.2d 1251 (2004). Others have approved the practice under the rationale that a sua sponte disposition is proper under the inherent authority of a court to control its docket. See, e.g., People v. Ryburn, 362 Ill.App.3d 870, 876, 299 Ill.Dec. 281, 841 N.E.2d 1013 (2005). Still others prohibit the practice entirely, reasoning that a petitioner must be given notice and the opportunity to respond (in the absence of any responsive pleading) before the trial court may rule. See, e.g., People v. Gaines, 335 Ill.App.3d 292, 296, 269 Ill.Dec. 350, 780 N.E.2d 822 (2002). Vincent relies on this last line of

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cases in arguing that the trial court's order in this case cannot stand, while the State cites to the first two lines of appellate decisions in support of upholding the trial court's order.

A common theme running through the appellate court's decisions is the court's use of the term "summary dismissal." The term is borrowed from the Post-Conviction Hearing Act. However, using this term to describe what the trial court did in cases such as this one overlooks two critical points: (i) the Post-Conviction Hearing Act, which provides collateral relief from criminal convictions, has no application whatsoever to section 2-1401, an entirely different form of statutory, collateral relief, and (ii) an action brought under section 2-1401 is a civil proceeding and, according to this court's longstanding precedent, is subject to the usual rules of civil practice, even when it is used to challenge a criminal conviction or sentence. In civil practice, there is no such thing as a "summary dismissal." The failure to recognize these points necessitates our reiteration of the appropriate trial-level practice and procedure required in section 2-1401 litigation and provides us the opportunity to address the standards of review that must follow on appeal. See D. Simko, Updating the Standard of Review for Petitions to Vacate Final Judgments, 86 Ill. B.J. 34 (1998) (criticizing use of the abuse of discretion [226 Ill.2d 7] standard of review and proposing other standards in light of precedent).


Section 2-1401 establishes a comprehensive, statutory procedure that allows for the vacatur of a final judgment older than 30 days. 735 ILCS 5/2-1401 (West 2002). While the remedy in the statute does have its roots in common law equity, the General Assembly abolished the common law writ system and replaced it with the statutory postjudgment petition. 735 ILCS 5/2-1401(a) (West 2002). See also Ill.Ann.Stat., ch. 110, par. 2-1401, Historical & Practice Notes, at 604 (Smith-Hurd 1983). Section 2-1401 requires that the petition be filed in the same proceeding in which the order or judgment was entered, but it is not a continuation of the original action. 735 ILCS 5/2-1401(b) (West 2002). 1 The statute further requires that the petition be supported by affidavit or other appropriate showing as to matters not of record. 735 ILCS 5/2-1401(b) (West 2002). The statute provides that petitions must be filed not later than two years after the entry of the order or judgment. 735 ILCS 5/2-1401(c) (West 2002). The statute further provides for an exception to the time limitation for legal disability and duress or if the ground for relief is fraudulently concealed. 735 ILCS 5/2-1401(c) (West 2002). 2 Relief under section 2-1401 is predicated upon proof, by a preponderance of evidence, of a defense or claim that [226 Ill.2d 8] would have precluded entry of the judgment in the original action and diligence in both discovering the defense or claim and presenting the petition. Smith v. Airoom, Inc., 114 Ill.2d 209, 102 Ill.Dec. 368, 499 N.E.2d 1381 (1986). Finally, section 2-1401 is a civil remedy that extends to

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criminal cases as well as to civil cases. People v. Sanchez, 131 Ill.2d 417, 420, 137 Ill.Dec. 629, 546 N.E.2d 574 (1989); People v. Hinton, 52 Ill.2d 239, 287 N.E.2d 657 (1972).

This court has consistently held that proceedings under section 2-1401 are subject to the usual rules of civil practice. Ostendorf v. International Harvester Co., 89 Ill.2d 273, 279, 60 Ill.Dec. 456, 433 N.E.2d 253 (1982) (and cases cited therein). Section 2-1401 petitions are essentially complaints inviting responsive pleadings. Ostendorf, 89 Ill.2d at 279, 60 Ill.Dec. 456, 433 N.E.2d 253. The petition is subject to dismissal for want of legal or factual sufficiency. Brockmeyer v. Duncan, 18 Ill.2d 502, 165 N.E.2d 294 (1960). Thus, the petition may be dismissed upon a challenge that, even taking as true its allegations, it does not state a meritorious defense or diligence under section 2-1401 case law. "Like a complaint, the petition may be challenged by a motion to dismiss for its failure to state a cause of action or if, on its face, it shows that the petitioner is not entitled to relief." Klein v. La Salle National Bank, 155 Ill.2d 201, 205, 184 Ill.Dec. 420, 613 N.E.2d 737 (1993), citing Ostendorf, 89 Ill.2d at 279-80, 60 Ill.Dec. 456, 433 N.E.2d 253; Brockmeyer, 18 Ill.2d at 505, 165 N.E.2d 294.

As with complaints generally, when the opposing party elects to forgo filing a motion attacking the sufficiency of the petition and answers on the merits, the respondent is deemed to have waived any question as to the petition's sufficiency, and the petition will be treated as properly stating a cause of action. Windmon v. Banks, 31 Ill.App.3d 870, 873, 335 N.E.2d 116 (1975); Carroll & Neiman, Inc. v. Silverman, 28 Ill.App.3d 289, 291, 328 N.E.2d 205 (1975); see Smyth v. Fargo, 307 Ill. 300, 305, 138 N.E. 610 (1923) (stating principle for complaints generally). On appeal, any claim of insufficiency will be deemed to have been defaulted. However, as in any civil action, if the facts alleged cannot state a [226 Ill.2d 9] 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. Wagner v. Kepler, 411 Ill. 368, 371, 104 N.E.2d 231 (1951).

Similarly, if the respondent does not answer the petition, this...

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