Opinion
No. 1-13-1744
07-27-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HARRY PENA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 91 CR 26586
Honorable Stanley J. Sacks, Judge, presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices Fitzgerald Smith and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: Pursuant to People v. Matthews, 2016 IL 118114, defendant cannot use his own failure to comply with Illinois Supreme Court Rule 105(a) to seek reversal of the circuit court's dismissal of his section 2-1401 petition (735 ILCS 5/2-1401 (West 2012)).
¶ 2 Defendant Harry Pena appeals from the circuit court's sua sponte dismissal of his petition for relief from judgment filed under section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant argued the dismissal of his case was
premature because the State was not served with notice of his petition. On July 30, 2015, this court issued an order vacating the circuit court's dismissal of defendant's petition and remanding for further proceedings. People v. Pena, 2015 IL App (1st) 131744-U, ¶ 18. We have since vacated that decision pursuant to the Illinois Supreme Court's order directing us to reconsider this case in light of People v. Matthews, 2016 IL 118114. People v. Pena, No. 119771 (Jan. 25, 2017) (supervisory order). After considering the instant case in light of Matthews, we affirm the circuit court's sua sponte dismissal of defendant's petition.
¶ 3 Following a jury trial in 1993, defendant was convicted of first-degree murder and armed robbery and was sentenced to respective terms of 45 years and 30 years in prison for those offenses, to be served concurrently. On appeal, this court affirmed. People v. Pena, No. 1-94-0564 (1997) (unpublished order under Supreme Court Rule 23). Defendant's petition for postconviction relief was summarily dismissed, and this court affirmed that dismissal. People v. Pena, No. 1-99-0757 (2000) (unpublished order under Supreme Court Rule 23).
¶ 4 On March 6, 2013, defendant filed the petition for relief from judgment pursuant to section 2-1401 of the Code that is the subject of this appeal. In that filing, defendant challenged the addition of a three-year term of mandatory supervised release (MSR) to his sentence. On April 17, 2013, the circuit court dismissed defendant's petition sua sponte.
¶ 5 On appeal, defendant contends the circuit court's dismissal of his petition was premature because the petition had not been properly served on the State and the State did not waive proper service or appear in court to answer the petition. A defendant filing a petition under section 2-1401 must provide notice to the opposing party of the petition's filing by service in person, by mail or by publication, in accordance with Illinois Supreme Court Rule 105(a) (eff. Jan. 1, 1989).
See also Ill. S. Ct. R. 106 (eff. Aug. 1, 1985) (stating that the service procedures in Rule 105 apply to section 2-1401 petitions). If the opposing party fails to respond within 30 days, the petition is treated as properly stating a cause of action. People v. Vincent, 226 Ill. 2d 1, 8 (2007). The circuit court cannot dismiss a petition sua sponte before the 30-day response period has expired. People v. Laugharn, 233 Ill. 2d 318, 323 (2009).
¶ 6 In our initial order addressing defendant's section 2-1401 petition, we held that a petition could not be dismissed by the circuit court sua sponte where the State had not received notice of its filing, relying in part on People v. Carter, 2014 IL App (1st) 122613. Pena, 2015 IL App (1st) 131744-U, ¶ 15. Our supreme court has since reversed the appellate decision in Carter, affirming the circuit court's dismissal of a petition because the record failed to establish the State did not receive proper notice or that the dismissal was premature. People v. Carter, 2015 IL 117709, ¶ 24. The supreme court in Carter did not address whether the defendant could challenge his own improper service.
¶ 7 That question has been answered in Matthews. There, the supreme court held that the defendant could not challenge the validity of the circuit court's order dismissing his section 2-1401 petition based on the defendant's claim of his own improper service on the State. Matthews, 2016 IL 118114, ¶ 15. Noting that the 30-day window for the State's response provides it with the opportunity to answer the petition or otherwise plead, the supreme court observed that "[n]one of the notice requirements at issue were designed to allow a petitioner to object to lack of service on behalf of the opposing party." Id. The supreme court also rejected the defendant's alternative assertion that the court lacked personal jurisdiction over the parties, finding that the defendant could not raise that objection on the State's behalf. Id. ¶ 20. The
supreme court affirmed the judgment of the circuit court and dismissed defendant's petition with prejudice. Id. ¶ 23. For the reasons set out in Matthews, defendant cannot challenge the circuit court's dismissal of his petition brought under section 2-1401 on the grounds of his improper service.
¶ 8 Furthermore, defendant recognizes that his precise argument that the addition of an MSR term to his sentence violates his right to due process has been rejected in People v. McChriston, 2014 IL 115310. Although defendant claims that McChriston was incorrectly decided, we are bound by decisions of the Illinois Supreme Court. See People v. Artis, 232 Ill. 2d 156, 164 (2009). Thus, defendant's argument as to his MSR term lacks legal merit.
¶ 9 Accordingly, for the reasons set out in this order, the circuit court's dismissal of defendant's petition is affirmed.
¶ 10 Affirmed.