Opinion
No. 1-16-0604
02-05-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. OMAR JOHNSON, Defendant-Appellant.
Appeal from the Circuit Court of Cook County.
No. 97 CR 25837
Honorable Gregory Ginex, Judge Presiding.
PRESIDING JUSTICE PIERCE delivered the judgment of the court.
Justices Harris and Simon concurred in the judgment.
ORDER
¶ 1 Defendant, Omar Johnson, appeals from an order of the circuit court of Cook County denying his pro se section 2-1401 (735 ILCS 5/2-1401 (West 2012), petition to vacate judgment. He is currently serving the sentence of life imprisonment imposed on his 1999 jury conviction of first degree murder, the 60-year terms imposed on his convictions of aggravated kidnapping, armed robbery, aggravated vehicular hijacking, and a 10-year sentence for his concealment of a homicidal death. This court affirmed those judgments on direct appeal (People v. Johnson, No. 1-99-1989 (2004) (unpublished order under Supreme Court Rule 23)), as well as the denial of his subsequent pro se post-conviction and section 2-1401 petitions (People v. Johnson, Nos. 1-99
1989 (2006), 1-05-3285 (2006) (unpublished orders under Supreme Court Rule 23)). We also ultimately affirmed the State's motion to dismiss defendant's second section 2-1401 petition (People v. Johnson, 2012 IL App (1st) 111378); however, in accordance with the directive of the supreme court in People v. Johnson, 2013 IL 114639, we vacated the assessment of a $50 State's Attorney fee. In People v. Johnson, 2015 IL App (1st) 131079-U, we affirmed the circuit court's denial of leave to file defendant's successive postconviction petition. Most recently, we dismissed defendant's appeal from the dismissal of his successive 2-1401 petition for lack of jurisdiction. People v. Johnson, 2016 IL App 130697-U.
¶ 2 Defendant now appeals from the dismissal of his fifth section 2-1401 petition arguing that the circuit court erred in dismissing his 2-1401 petition because the "trial court lacked the inherent authority to enter a conviction and sentences based on intentional murder" and maintains that his sentences should, despite People v. Castleberry, 2016 IL 116916, and People v. Price, 2016 IL 118613, be vacated because they "violate the Constitution and are prohibited after [People v. Smith, 233 Ill. 2d 1 (2009) and People v. Bailey, 2013 IL 113690]." Defendant also argues that the trial court violated his procedural due process rights when it ex parte instructed the State to file a response to his 2-1401 petition, informed the State of case law adverse to defendant's claim, and allowed the State to file a late responsive pleading ex parte. Furthermore, defendant is appealing from the trial court's denial of his motion to vacate the court's granting of the State's motion for an extension of time to respond to his pro se 2-1401 petition.
¶ 3 At the forefront, we note that defendant has failed to include his section 2-1401 petition in the record on appeal. As the appellant asserting error, defendant bears the burden of providing
a sufficient record for us to assess the trial court proceedings. This principle is expressly stated in both the Supreme Court Rules and our case law. The Illinois Supreme Court "has long held that in order to support a claim of error on appeal the appellant has the burden to present a sufficiently complete record." Webster v. Hartman, 195 Ill.2d 426, 431 (2001) (quoting Foutch v. O'Bryant, 99 Ill.2d 389, 391-92 (1984)). Illinois Supreme Court Rule 321 provides that, absent a stipulation or court order to the contrary, "[t]he record on appeal shall consist of the judgment appealed from, the notice of appeal and the entire original common law record." Ill. S.Ct. R. 321 (eff.Feb.1, 1994). The rule explains that "[t]he common law record includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party." Id. As the 2-1401 motion defendant appeals from is not of record, we have no knowledge as to what claims defendant raised therein and therefore have no choice but to affirm the trial court's dismissal.
¶ 4 Defendant makes many tangential claims with respect to his 2-1401 petition. He argues that the trial court violated his procedural due process rights by depriving him of fair and impartial proceedings in court when the court had ex parte communications with an assistant state's attorney regarding his 2-1401 petition, informed the assistant state's attorney about the allegations in defendant's 2-1401 petition and the relevant case law, and allowed the State an extension of time to respond to defendant's petition rather than ruling on the 2-1401 petition or defendant's pending motion for default judgment.
¶ 5 Section 2-1401 allows for final judgments to be vacated more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2012). Once a section 2-1401 petition has been filed, the
opposing party has 30 days to answer or otherwise plead in response to the petition. People v. Laugharn, 233 Ill. 2d 318, 323 (2009).
¶ 6 While defendant has provided transcripts of the events he claims were violative of his procedural due process rights, those events were necessarily intertwined with the contents of defendant's 2-1401 petition, which is not presently before this court. Without being able to remark on the contents of defendant's petition, we affirmatively find that defendant's due process rights were not violated. Although the trial court did briefly discuss the contents of defendant's 2-1401 petition on the record, without defendant present, it did so only after the case appeared on his call, and only gave a brief summary of the allegations. The prosecutor did not respond other than to say that she did "not have anything" on the case. The court then explained that because there appeared to be some question about the application of new case law to defendant's claim, it was instructing the State to respond to defendant's petition and set a continuance date. The court was not required to notify defendant before making such a ruling. There is no requirement that notice and the opportunity to be heard are required before a court may act on its own. People v. Vincent, 226 Ill. 2d 1, 12 (2007). Furthermore, we cannot find that the court's discussion of defendant's allegations and the conflicting case law applicable to defendant's claims on the record, as a stated basis for instructing the State to respond to defendant's petition, can be construed as giving the State advice on how to proceed. Defendant's procedural due process rights were not violated.
¶ 7 Thereafter, several continuances were granted for the State to obtain the record of defendant's trial to be able to properly respond to defendant's claims. We are not aware of any
case law, nor does defendant cite to any, to suggest that a court may not, at its discretion, give a party an extension of time to answer or otherwise plead in response to a 2-1401 petition.
¶ 8 Even if the court improperly ordered the State to respond to the petition, and later improperly allowed the State an extension of time to file the response, and should have taken the State's failure to respond within 30 days as an admission of all well-pleaded facts, the court would have had to resolve the petition on its merits and our result here would be the same. See Vincent, 226 Ill. 2d at 10 ("if the respondent does not answer the petition, this constitutes an admission of all well-pleaded facts and the court may decide the case on the documents and record before it"). The court ultimately ruled on the merits of defendant's claims. Defendant has failed to include his 2-1401 petition in the record in this court and we are unable to rule on the merits of the claims defendant raised therein.
¶ 9 Based on the foregoing, the judgment of the circuit court is affirmed. hes a genious
¶ 10 Affirmed.