People v. Walker

• Decision Date: 19 November 2009
• Docket Number: No. 2-07-0711.,2-07-0711.
• Citation: 918 N.E.2d 1260
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David D. WALKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

918 N.E.2d 1260

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David D. WALKER, Defendant-Appellant.

No. 2-07-0711.

Appellate Court of Illinois, Second District.

November 19, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Linda A. Johnson, Office of State Appellate Defender, Elgin, IL, for Appellant.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, IL, Robert J. Biderman, State's Attorneys Appellate Prosecutor, Linda Susan McClain, State's Attorneys Appellate Prosecutor, Springfield, IL, for Appellee.

Justice McLAREN delivered the opinion of the court:

Defendant, David D. Walker, appeals from an order dismissing all pending collateral pleadings relating to his criminal conviction, including a petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) and several successive petitions under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2006)). He contends that the trial court erred in ruling that, because of the pendency of an appeal relating to an earlier petition under the Act, it lacked jurisdiction to consider the pending petitions. The State asserts that this court's resolution of the earlier appeal moots this appeal. It further asserts that because, under Village of Glenview v. Buschelman, 296 Ill.App.3d 35, 230 Ill.Dec. 491, 693 N.E.2d 1242 (1998), a trial court has jurisdiction to consider only one section 2-1401 petition, the trial court was correct to decide that it lacked jurisdiction over the pending successive petitions. We hold (1) that the appeal was timely as to the section 2-1401 petitions, but not the petition under the Act; and (2) the trial court had jurisdiction to consider the successive petitions, contrary to the view of the Buschelman court. We therefore vacate the trial court's dismissal of the section 2-1401 petitions, but dismiss the appeal as to the petition under the Act, and remand the matter for further proceedings on the section 2-1401 petitions.

I. BACKGROUND

A jury convicted defendant of first-degree murder, and, on April 25, 2003, the court sentenced him to 50 years' imprisonment. Defendant appealed, and, on July 14, 2005, this court affirmed his conviction and sentence. People v. Walker, No. 2-03-0494, 357 Ill.App.3d 1094, 324 Ill.Dec. 203, 895 N.E.2d 698 (2005) (unpublished order under Supreme Court Rule 23).

While his direct appeal was pending, defendant started filing petitions under section 2-1401. He filed the first on April 8, 2004, the second on October 22, 2004, the third on December 22, 2004, and the fourth on March 2, 2005. Defendant abandoned the first three petitions when the State filed limited appearances asserting that defendant had not properly served those petitions on it. The State moved to dismiss the fourth on its merits. With the fourth section 2-1401 petition pending, defendant, on November 9, 2005, filed a petition under the Act. On March 1, 2006, the court dismissed as frivolous defendant's fourth section 2-1401 petition. On March 23, 2006, the court entered an order ruling that defendant had voluntarily withdrawn his postconviction petition; on April 28, 2006, it filed another order explaining the March 23 order.

On May 11, 2006, defendant filed his fifth section 2-1401 petition. He filed a sixth petition on May 15, 2006. On May 22, 2006, defendant filed an appeal relating to the court's decision that he had withdrawn his petition under the Act. On June 2, 2006, he filed a second petition under the Act. On July 6, 2006, he filed a motion asserting that, on June 8, 2006, the court had recharacterized his fifth section 2-1401 petition and objecting to that recharacterization. (We note no evidence of a recharacterization.) The State filed limited appearances in response to the fifth and sixth section 2-1401 petitions, asserting that defendant had not properly served it with either petition. On September 20, 2006, defendant filed a seventh section 2-1401 petition.

On December 21, 2006, the court entered an order finding that, because of the pendency of defendant's appeal of May 22, 2006, it lacked jurisdiction to decide the pending filings. It gave defendant 45 days to file "a memorandum in response to this finding." It also invited a response from the State, setting the matter for status on April 5, 2007. On January 1 and 26, 2007 defendant filed (in two parts) the invited memorandum. On April 5, 2007, the court entered an order that "the order of 21 December 2006 shall continue, and all of defendant's filings are denied or otherwise dismissed." On April 25, 2007, defendant filed a "Motion for Objection" in which he objected to the procedure the court employed in the entry of the April 5 order and disputed its jurisdictional analysis. Also, on April 25, 2007, defendant filed an appeal of the April 5 order. On May 10, 2007, the court entered an order reaffirming the April 5 order. On appeal, defendant asserts that the court erred in ruling that it lacked jurisdiction to consider defendant's pending petitions.

II. ANALYSIS

We first consider our own jurisdiction to hear this appeal. We have a duty to consider our jurisdiction sua sponte and to dismiss the appeal if jurisdiction is lacking. People v. Trimarco, 364 Ill.App.3d 549, 550, 301 Ill.Dec. 405, 846 N.E.2d 1008 (2006).

If the April 5, 2007, order was final, defendant's appeal was properly timed as to the section 2-1401 petitions, but fatally premature as to the postconviction petition. The December 21, 2006, "order" in which the court announced that it was "divested of jurisdiction to hear any further proceedings" was effectively its own motion to dismiss for lack of jurisdiction. We say it was effectively a motion, rather than a dispositive order, because a dispositive order would not have invited responses from both parties. Therefore, the April 5, 2007, order, restating the court's conclusion that it lacked jurisdiction, was its ruling on its own motion. Because defendant's "Motion for Objection" was directed against the judgment and was filed within 30 days of the judgment it attacked, it was a timely postjudgment motion for purposes of deciding the timeliness of the appeal. See Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(1), eff. May 1, 2007 (a postjudgment motion directed against the judgment extends the time for appeal); 210 Ill.2d R. 606(b) (same). Defendant thus filed his notice of appeal before the resolution of his timely postjudgment motion.

Defendant's section 2-1401 petitions were civil pleadings. People v. Vincent, 226 Ill.2d 1, 6, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007). Under civil rules, "[w]hen a timely postjudgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion * * * becomes effective when the order disposing of said motion * * * is entered."¹ Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007.

On the other hand, Supreme Court Rule 606(b) (210 Ill.2d R. 606(b)) governs the timing of appeals in proceedings under the Act. People v. Lugo, 391 Ill.App.3d 995, 997, 331 Ill.Dec. 358, 910 N.E.2d 767 (2009). Under that rule, "[w]hen a timely posttrial or postsentencing motion directed against the judgment has been filed by counsel or by defendant, if not represented by counsel, any notice of appeal filed before the entry of the order disposing of all pending postjudgment motions shall have no effect and shall be stricken by the trial court." 210 Ill.2d R. 606(b). It would be unreasonable for the court to strike a notice of appeal that could be effective as to the civil issues; nevertheless, the early notice of appeal was ineffective as to the dismissal of the petition under the Act.

Rule 303(a)(2) made the notice of appeal effective as to the section 2-1401 petitions upon the resolution of the "Motion for Objection." Rule 606(b) has no such saving provision, so the notice was premature as to the petition under the Act. Accordingly, still presuming the order was final, this appeal is effective as to the dismissals of the section 2-1401 petitions only.

The next question is whether the court's ruling that it lacked jurisdiction to consider defendant's petitions was a final order, appealable under Supreme Court Rule 301 (155 Ill.2d R. 301). The dismissal here was not on the merits and was not precisely a dismissal with prejudice — defendant could have refiled after this court issued its mandate in the pending appeal. Those factors hint at a lack of finality. However, a dismissal based on a lack of jurisdiction that might not be permanent is, nevertheless, a final order, at least if the dismissal significantly affects the ability to raise the claims in the original court. Defendant's ability to raise his claims was so affected, so the order here was final.

The question of whether a disposition based on a jurisdictional flaw is a final disposition has most often arisen when the trial court has quashed service of process. The classic case on this issue is Brauer Machine & Supply Co. v. Parkhill Truck Co., 383 Ill. 569, 50 N.E.2d 836 (1943). The Brauer court reasoned as follows:

"[T]he order [at issue], in form, was only an order quashing the service of the summons. It was not an order dismissing the suit, nor was it in the form of a final judgment on the merits. Regardless of its form, however, it was a complete and final disposition of the case, based upon the conclusion the court had reached that appellee was not amenable to the service of process in the manner in which the summons was served. On that issue it was not only as effectual and conclusive but it was as final as any decision upon the merits. The result was the same.

If it should be held that an order of this character is not appealable, then there would be no method by which a plaintiff could obtain a...