People v. Carter

• Decision Date: 22 April 2014
• Docket Number: No. 1–12–2613.,1–12–2613.
• Citation: 380 Ill.Dec. 271,2014 IL App (1st) 122613,8 N.E.3d 441
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kelvin CARTER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 122613

8 N.E.3d 441

380 Ill.Dec. 271

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Kelvin CARTER, Defendant–Appellant.

No. 1–12–2613.

Appellate Court of Illinois, First District, Second Division.

March 4, 2014.

Rehearing Denied April 14, 2014.

Modified Upon Denial of Rehearing April 22, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Jennifer L. Bontrager, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg and Michelle Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice PIERCE delivered the judgment of the court, with opinion.

¶ 1 Defendant appeals from the circuit court's sua sponte dismissal of his petition under section 2–1401 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2–1401 (West 2012)). He argues that this court must remand the case because the circuit judge's sua sponte dismissal of his petition for relief from judgment on the merits was premature given that the petition was not properly served on the State. We agree and for the foregoing reasons, remand the cause to the circuit court for further proceedings.

¶ 2 BACKGROUND

¶ 3 Following a bench trial, defendant was convicted of the murder of Edmond Allen. This court upheld his conviction on appeal. People v. Carter, No. 1–04–1385, 363 Ill.App.3d 1193, 334 Ill.Dec. 808, 917 N.E.2d 634 (Feb. 8, 2006) (unpublished order under Supreme Court Rule 23). Defendant's subsequent postconviction petition was dismissed by the trial court and that dismissal was also affirmed. People v. Carter, No. 1–07–2160, 389 Ill.App.3d 1144, 364 Ill.Dec. 645, 976 N.E.2d 1208 (May 8, 2009) (unpublished order under Supreme Court Rule 23).

¶ 4 Defendant mailed his section 2–1401 petition, wherein he challenged his sentence for the murder, on May 9, 2012. Specifically, defendant argued that the 25–year firearm enhancement he received was void because the trial judge only found him guilty of general murder and his sentence would only be 30 years in prison because that was the initial statement from the judge.

¶ 5 The petition was file stamped by the clerk of the circuit court on May 15, 2012. The petition was first docketed on the trial call on June 5, 2012. The cover page of the transcript of the proceedings on June 5, 2014, reflects only the judge and the court reporter were present when the court stated, “Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review.”

¶ 6 On July 10, 2012, the trial judge dismissed the petition, stating that all of the counts of murder charged defendant with shooting and killing the victim with a firearm, and he concluded that the requisite findings had been made to impose the firearm enhancement. The transcript of the proceeding reflects the trial court stating, “[a]lso post-conviction petition 2–1401 petition, Kelvin Carter, he's on sheet one. Mr. Carter is not present, he's in IDOC custody. His 2–1401 petition is dismissed. Copy of the written order in the file is to be sent to defendant by the clerk within ten days.” This is the full extent of the oral record regarding this petition on the date of dismissal. It is from this dismissal that defendant now appeals.

¶ 7 ANALYSIS

¶ 8 Defendant argues that this court must remand this case to the circuit court because the court's sua sponte dismissal of his section 2–1401 petition on the merits was premature, given that the petition was not properly served on the State. According to the proof of service attached to the section 2–1401 petition, defendant mailed his petition on May 9, 2012, and attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center “properly addressed to the parties listed above for mailing through the United States Postal Service.”

¶ 9 The State counters that defendant's argument should be rejected because an assistant State's Attorney was in court at the time the petition was dismissed and had actual knowledge of defendant's section 2–1401 petition. The State waived improper service by not objecting to it. As such, the 30–day time limit commenced and the case was ripe for adjudication when it was dismissed for failure to state a cause of action more than 30 days after it was received by the court.

¶ 10 Section 2–1401 provides a statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from their entry. People v. Vincent, 226 Ill.2d 1, 7, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007). Pursuant to Illinois Supreme Court Rule 101(d) (eff. May 30, 2008), which governs section 2–1401 of the Civil Code, once a party files a petition for relief, the opposing party has 30 days to answer the petition or otherwise plead. See also People v. Laugharn, 233 Ill.2d 318, 323, 330 Ill.Dec. 780, 909 N.E.2d 802 (2009).

¶ 11 Section 2–1401(b) requires “[a]ll parties to the petition [to] be notified as provided by rule.” 735 ILCS 5/2–1401(b) (West 2012). Pursuant to Illinois Supreme Court Rule 106, notice of the filing of section 2–1401 petitions “shall be given by the same methods provided in Rule 105.” Ill. S.Ct. R. 106 (eff. Aug. 1, 1985). According to Illinois Supreme Court Rule 105, service cannot be made by regular mail. Instead it must be served in the same manner as service by summons, by prepaid certified or registered mail, or by publication. Ill. S.Ct. R. 105(b) (eff. Jan. 1, 1989). We review the dismissal of a section 2–1401 petition de novo. People v. Vincent, 226 Ill.2d 1, 18, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007).

¶ 12 In Vincent, our supreme court held that a trial court may sua sponte dismiss a section 2–1401 petition without providing a defendant with notice or an opportunity to address the court, reasoning that because section 2–1401 proceedings are subject to the usual rules of civil procedure, when the State fails to answer a defendant's petition the failure to answer constitutes an admission of all well-pleaded facts. Id. at 9–14, 312 Ill.Dec. 617, 871 N.E.2d 17. The Vincent court also held that the State's failure to answer the petition rendered the case “ripe for adjudication.” Id. at 10, 312 Ill.Dec. 617, 871 N.E.2d 17. Subsequently, in Laugharn, 233 Ill.2d at 323, 330 Ill.Dec. 780, 909 N.E.2d 802, our supreme court held that in a case where the State fails to answer a defendant's petition, the case will not be ripe for adjudication until 30 days have passed from the time of service. Id. Hence, a trial court may only properly sua sponte dismiss a section 2–1401 petition 30 days from the date of service. Id. Therefore, in accordance with Vincent and Laugharn, we look to the date of service to determine whether the trial court properly sua sponte dismissed defendant's section 2–1401 petition. See Ill. S.Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill.2d at 323–24, 330 Ill.Dec. 780, 909 N.E.2d 802.

¶ 13 Defendant argues that the State was not properly served because defendant placed the petition for mailing with the United States Post Office and therefore the petition was not ripe for adjudication when the court dismissed it. The State counters that it is not clear from the record on appeal that defendant's service did not comply with the requirements of Rule 105(b).

¶ 14 We agree with defendant that the State was not properly served in this case. Contrary to the State's argument, the record clearly shows that in defendant's “Proof/Certificate of Service” he attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center “properly addressed to the parties listed above for mailing through the United States Postal Service.” There is nothing in the record that contradicts this information, nor does either party offer anything to the contrary.

¶ 15 The State argues that it effectively waived service by appearing in court and not objecting to improper service. The transcript of the proceedings on June 5, 2014, shows only the judge and the court reporter were present when the court stated, “Kelvin Carter filed a pro se motion to vacate a judgment. Order of Court to 7/10 for court review.” From this brief, two-sentence statement of the trial court we can assume nothing regarding the State's knowledge of this petition.

¶ 16 When the case next appeared on the court's call on July 10, 2012, the cover page of the report of proceedings reflected that an assistant State's Attorney was “present.” The assistant State's Attorney did not make any comment on the record that it was appearing or waiving service. No questions were directed to or comments solicited from the prosecutor by the court. From this record, the State contends it waived the requirement of proper statutory service of the petition.

¶ 17 In its petition for rehearing, the State argues that requiring the State to formally waive service directly conflicts with this court's recent opinion in People v. Ocon, 2014 IL App (1st) 120912, 379 Ill.Dec. 616, 7 N.E.3d 42. In Ocon, the defendant argued that the trial court's sua sponte dismissal of his section 2–1401 petition was improper as premature because the State had not been properly served with the defendant's petition. In support of his argument, the defendant cited People v. Prado, 2012 IL App (2d) 110767, 365 Ill.Dec. 960, 979 N.E.2d 564, and People v. Nitz, 2012 IL App (2d) 091165, 361 Ill.Dec. 531, 971 N.E.2d 633.

¶ 18 In People v. Nitz, the defendant's proof of service showed that he mailed his section 2–1401 petition to the circuit court for filing but there was no proof of service on the State. The trial court sua sponte dismissed the petition. A panel of the Second District of this court reasoned that the dismissal was proper because the failure to give notice amounted to a deficient pleading. However, the Nitz court held the dismissal was premature because the 30 days for the State to respond had not commenced. It concluded that the...