People v. Mescall

• Decision Date: 15 April 2004
• Docket Number: No. 2-03-0185.,2-03-0185.
• Citation: 283 Ill.Dec. 813,347 Ill. App.3d 995,808 N.E.2d 1101
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas R. MESCALL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

808 N.E.2d 1101

347 Ill. App.3d 995

283 Ill.Dec. 813

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas R. MESCALL, Defendant-Appellant.

No. 2-03-0185.

Appellate Court of Illinois, Second District.

April 15, 2004.

Rehearing Denied May 28, 2004.

G. Joseph Weller, Deputy Defender, and Dev A. Parikh (Court-appointed), Office of the State Appellate Defender, Elgin, for Thomas R. Mescall.

Roger T. Russell, Boone County State's Attorney, Belvidere, Martin P. Moltz, Deputy Director, Joan M. Kripke, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice BYRNE delivered the opinion of the court:

Defendant, Thomas R. Mescall, appeals from the dismissal of his petition pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2002)), in which he sought relief from an allegedly void sentence. He contends that the trial court erred in dismissing his petition sua sponte and without notice to him. We agree, and thus we vacate the dismissal. Also, defendant asserts for the first time on appeal that his convictions of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)) are void because that offense did not exist during part of the period in which the culpable acts allegedly occurred. We find that we cannot reach this claim because we lack personal jurisdiction over the State.

Defendant was charged by information with one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1994)), and four counts of predatory criminal sexual assault of a child. The information alleged that the offenses took place between June 1995 and September 1996. At trial, the court instructed the jury that the State was not required to prove that the offenses took place within the specified time if the jury was convinced that defendant had committed the acts that made up the offenses. The jury convicted him on all counts. On August 20, 1997, the court sentenced defendant to four consecutive eight-year terms of imprisonment and one five-year term concurrent to the eight-year terms. Defendant appealed, arguing that his trial had been unfair due to various errors and that the court had erred in making his terms of imprisonment subject to the truth-in-sentencing provisions. This court affirmed the convictions, but modified the sentence to allow defendant to receive pre-truth-in-sentencing good-conduct credits. People v. Mescall, No. 02-97-0925 (1999) (unpublished order under Supreme Court Rule 23).

On January 23, 2003, defendant filed a "Petition for Post-Judgment Relief in which he alleged that his sentence was void. He contended that trial courts have consistently misinterpreted the provision requiring mandatory supervised release (MSR) and the sentencing credit provisions to make terms of imprisonment exclusive of MSR. He did not raise any claim regarding the validity of his predatory-criminal-sexual-assault-of-a-child convictions. According to defendant's certificate of service, he served the petition on the Attorney General by regular mail. The court dismissed the petition with prejudice as a petition under section 2-1401, finding that it was untimely. The record shows that the court acted sua sponte and gave no notice to defendant.

Defendant timely appeals. He argues, first, that his convictions of predatory criminal sexual assault of a child are void because that offense did not exist during part of the period in which the acts allegedly occurred. Defendant asserts that this court can vacate the convictions because he can challenge a void judgment at any time. The State argues only that we have no jurisdiction to hear the appeal because defendant did not properly serve it with the petition.

We determine that, because the trial court lacked personal jurisdiction over the State in this matter, this court cannot enter judgment against the State. The record shows that defendant served the State with his petition by regular mail, which is not an acceptable mode of service. Supreme Court Rules 105 and 106 (134 Ill.2d Rs. 105, 106) require that section 2-1401 petitions be served by certified or registered mail, proper personal service, or, when applicable, publication. A court has no personal jurisdiction over a party that has not been properly served unless that party waives service, which the State has not done. See In re Marriage of Schmitt, 321 Ill.App.3d 360, 367, 254 Ill. Dec. 484, 747 N.E.2d 524 (2001). The State also contends that Rule 105 required defendant to serve the State's Attorney, not the Attorney General. It has not provided authority sufficient for us to say that service on the Attorney General cannot be proper, and since the issue is not dispositive, we do not resolve it. However, defendant should note that serving the State's Attorney is the best practice.

Although we can generally vacate a void order even when a litigant has raised the voidness claim for the first time on appeal (People v. Thompson, 209 Ill.2d 19, 25, 282 Ill.Dec. 183, 805 N.E.2d 1200 (2004); People v. Muntaner, 339 Ill.App.3d 887, 889-90, 274 Ill.Dec. 529, 791 N.E.2d 621 (2003)), that rule is not absolute: "[T]he issue of voidness must be raised in the context of a proceeding that is properly pending in the courts. If a court lacks jurisdiction, it cannot confer any relief, even from prior judgments that are void. * * * Absent jurisdiction, an order directed at the void judgment would itself be void and of no effect." People v. Flowers, 208 Ill.2d 291, 308, 280 Ill.Dec. 653, 802 N.E.2d 1174 (2003). Although Flowers concerned circumstances where subject matter jurisdiction was lacking (Flowers, 208 Ill.2d at 308, 280 Ill.Dec. 653, 802 N.E.2d 1174), we believe that the same principle extends to cases where personal jurisdiction over a party is lacking. A court should not be able to give relief from a void judgment where it would lack the jurisdiction to give relief from a judgment challenged on other grounds. To hold otherwise would be to condone ex parte judgments of voidness, which would raise serious due process concerns in some circumstances, and would not be conducive to the orderly administration of justice in any circumstances.

In reaching this conclusion, we have presumed that the trial court's lack of personal jurisdiction deprives us also of personal jurisdiction. Although the personal jurisdiction of a reviewing court is almost never at issue, we believe that the limited precedent suggests that such jurisdiction is simply a continuation of the personal jurisdiction of the trial court. This proposition was most clearly expressed by a Florida District Court of Appeal in Chabert v. Bacquie, 694 So.2d 805 (Fla.App.1997). Florida statute and international law required the court to determine whether the French court of review that entered the judgment that the plaintiff sought to enforce had proper jurisdiction over the defendant. Chabert, 694 So.2d at 811-12. The Florida appellate court found that the required process was analogous to that in Florida law, under which the service of a notice of appeal is not jurisdictional, because "[t]he Florida appellate court's personal jurisdiction over the appellee is but a continuation of the trial court's jurisdiction." Chabert, 694 So.2d at 813. Also, in Gomez v. Bobker, 104 A.D.2d 790, 791, 480 N.Y.S.2d 43, 44 (1984), the Appellate Division of the Supreme Court of New York recognized that an appellate court will lack personal jurisdiction to enter an order when the trial court lacks it. Under New York law, either the trial court or a reviewing court can excuse a defect in the form in which a civil proceeding is brought, but only if it has jurisdiction over the parties affected. A receiver in a foreclosure attempted to obtain equitable relief from certain non-parties by serving them with an order to show cause and a petition for the various forms of relief. Not only was this the wrong form for the action, but the service was insufficient to give the court personal jurisdiction over the nonparties. The nonparties moved to dismiss for want of jurisdiction, but the trial court granted the relief sought by the receiver. The appellate court noted that it would have had the discretion to excuse the improper form of the action had there been proper service, but, since the improper service prevented the court from having jurisdiction over the nonparties, it had no basis to exercise that discretion. Gomez, 104 A.D.2d at 791,480 N.Y.S.2d at 44.

We note that the rule that we lack personal jurisdiction when the trial court does has better results than a rule that gives us jurisdiction when the trial court lacks it. If the rule we set out did not exist, the beneficiary of an order alleged to be void would lose any entitlement to service of the petition to vacate the order because, whatever the trial court did, the petitioner could always ask the appellate court to vacate the order. We do not think that this would be a reasonable result. Thus, we determine that we lack jurisdiction to consider defendant's claim that his convictions are void.

On the other hand, we reject the State's arguments that this court lacks jurisdiction to review the dismissal of defendant's petition. First, the State contends that any judgment on the petition was void because defendant did not serve the State. It escapes the State that defendant had submitted to the jurisdiction of the court by filing his petition, thus giving the trial court personal jurisdiction over him. In re Estate of Pinckard, 94 Ill. App.3d 34, 41, 49 Ill.Dec. 346, 417 N.E.2d 1360 (1980)

; see also Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 458, 82 L.Ed. 649, 654-55 (1938). By the State's reasoning, a trial court could never enter a valid order in a...