Opinion
No. 1-13-1212
06-30-2015
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NAHUM BUSTOS, 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. 04 CR 9222
Honorable Charles P. Burns, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.
ORDER
¶ 1 Held: The trial court was precluded from sua sponte dismissing defendant's section 2-1401 petition where defendant failed to serve notice of the petition on the State.
¶ 2 Defendant, Nahum Bustos, appeals the circuit court's sua sponte dismissal of his pro se
petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2012)). Defendant contends this case should be remanded because the State was not properly served with notice of his petition.
¶ 3 The record shows that in 2005, defendant pleaded guilty to the murder of Tito Roman. Because the offense occurred in 1976, defendant was given the option to choose whether he would be sentenced under the law as it existed at the time, or the law that came into effect in 1978. The court explained that, under the law as it existed at the time of the murder, defendant was to be sentenced to a minimum of 14 years' imprisonment, with a five-year period of "parole" to follow. Under the new law, defendant was to be sentenced to a minimum 20-, and maximum 40-year term, subject to a three-year period of "mandatory supervised release" (MSR), and he was eligible for "day-for-day" sentence credit. Defendant elected to be sentenced under the new law, and the court sentenced him to the agreed-upon term of 20-years' imprisonment. Thereafter, defendant did not seek to withdraw his plea, or otherwise attempt to perfect a direct appeal from that judgment.
¶ 4 On January 28, 2013, defendant filed the pro se petition for relief from judgment at issue here. In the petition, he alleged that the judgment was "void" because it included a three-year term of MSR in addition to the 20-year sentence imposed by the circuit court. No notices of filing or service of that petition are included in the record on appeal. On February 4, 2013, the circuit court noted that the petition was filed, and held it on call until March 1, 2013. On that date, the circuit court entered a written order denying defendant's petition. The court concluded the judgment was not void, and that defendant failed to advance a claim that would entitle him to relief under section 2-1401. The court further determined that the petition was untimely, and that
defendant had not shown due diligence in filing it. The court summarized that ruling in open court on March 1, 2013, but there is no indication in the record that an assistant State's Attorney (ASA) was present on that, or the previous, court date.
¶ 5 Defendant filed a timely notice of appeal, and in this court, he contends that the circuit court's sua sponte dismissal of his section 2-1401 petition was premature and improper because the State was not properly served with notice of his petition. The State responds that defendant lacks standing to complain of his own improper service of his petition, and that he should not be rewarded for his failure to comply with section 2-1401's notice requirements. The State additionally notes that, since defendant submitted his initial brief in this case, the Third District of this court has held that a defendant who files a section 2-1401 petition "does not have standing to raise an issue regarding the State's receipt of service." People v. Kuhn, 2014 IL App (3d) 130092, ¶ 16.
¶ 6 This court has recently addressed similar circumstances in People v. Carter, 2014 IL App (1st) 122613, appeal allowed, No. 117709 (Sept. 24, 2014). In that case, the circuit court sua sponte dismissed the defendant's section 2-1401 petition with no input from the State, although a prosecutor was present in court at the time of dismissal. Carter, 2014 IL App (1st) 122613, ¶ 15-16. This court determined that the defendant's petition could not be properly dismissed without a showing that service was achieved or that the State had waived proper service, and that the correct remedy was to vacate the dismissal and remand for further proceedings. Id. ¶¶ 25-26. We find this case even stronger than Carter, where there is no indication here that an assistant State's Attorney was present at dismissal.
¶ 7 Although we acknowledge that the Third District in Kuhn held that a defendant lacked standing to raise the issue of his own improper service of notice by regular mail of his section 2-1401 petition, we do not find that case comparable to the facts here. See Kuhn, 2014 IL App (3d) 130092 (2014), ¶ 16. In Kuhn, the proof of service indicated that defendant had sent the documents, via regular mail, to the State's Attorney, and after the defendant's section 2-1401 petition had been file-stamped, the State appeared at two hearings on motions to withdraw the defendant's guilty plea. The Third District held that the "notice provided to the State was sufficient to allow the State to determine how it wanted to proceed" and the State did not file a responsive pleading or object to the improper service after its representative had participated in two court proceedings. Kuhn, 2041 IL App (3d) 130092, ¶ 17. Here, by contrast, there is no indication in the record that defendant mailed the documents in any way to the State, or that the State was otherwise informed of the petition by participating in court proceedings. In these circumstances, the circuit court's order dismissing defendant's petition must be vacated, and this case is remanded for further proceedings. Carter, 2014 IL App (1st) 122613, ¶ 26.
¶ 8 While we recognize that the Fourth District appellate court recently declined to follow Carter in People v. Alexander, 2014 IL App (4th) 130132, appeal pending (Mar Term 2015), we see no reason to depart from our logic in Carter. In Alexander, the court affirmed the circuit court's dismissal of the defendant's 2-1401 petition where defendant failed to properly serve the State. Id. ¶¶ 46-48. After indicating that this was the defendant's sixth appeal and that the defendant's notice of filing his 2-1401 petition "reveal[ed] his knowledge of the requirements of Rule 105, which he chose to disregard[,]" the court found that "the State (1) does not contest the deficient service, (2) has taken the position that defendant's petition is frivolous, and (3) has
represented to this court that it will take the same position if the case is remanded to the trial court." Id. ¶ 50. For these reasons, the Alexander court denied the defendant's request for a remand and explained: "Under these circumstances, we see no reason to remand the case so that (1) defendant can properly serve the State or the State can waive service, (2) the State can respond by repeating its position that defendant's petition is frivolous, and (3) the court can repeat its denial of defendant's petition." Id.
¶ 9 We appreciate the frustration with defendants who abuse of the judicial system, however. we do not find such frustrations merit departing from our prior precedent requiring proper service or waiver of service before a court may sua sponte dismiss a 2-1401 petition. Carter, 2014 IL App (1st) 122613.
¶ 10 We note section 2-1401(b) clearly provides that "[a]ll parties to the petition shall be notified as provided by rule." 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 states that notice of the filing of a petition under section 2-1401 of the Civil Code "shall be given by the same methods provided in Rule 105." Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) provides that notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). "The notice must state that a judgment by default may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service." People v. Nitz, 2012 IL App (2d) 091165, ¶ 9 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)). As such, by following Carter, we are also abiding by those rules by our legislature.
¶ 12 Despite the Fourth District's assertion in Alexander that judicial economy would be served by allowing the court to sua sponte dismiss 2-1401 petitions where there has been improper service, we find just the opposite would be true. As stated in Carter,
"Judicial economy is best served when the prosecutor, in the first instance, affirmatively spreads of record whether the petition has been served and, if not, whether the State intends on waiving the required service. When this has been done, the trial court will be in a position to inquire whether the prosecution intends to file a response. Should the trial court then dismiss the petition, this potential appellate issue will be eliminated. Otherwise, notwithstanding the reasoned decision in Ocon, section 2-1401 defendants that use the same or similar method of service as used by the defendant in this case will routinely seek appellate review." Carter, 2014 IL App (1st) 122613, ¶ 24.
Accordingly, in order to abide by the rules created by our legislature (see 735 ILCS 5/2-1401(b) (West 2012) "[a]ll parties to the petition shall be notified as provided by rule"); Ill. S. Ct. R. 106 (eff. Aug. 1, 1985); Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989)), to apply those rules in a uniform fashion, and to ensure that procedures are followed so as to avoid unnecessary appeals and issues in the future, we find that in the absence of proper service or some type of affirmative waiver of that service, a trial court cannot sua sponte dismiss a defendant's 2/1401 petition. See Carter, 2014 IL App (1st) 122613.
¶ 13 Judgment vacated; cause remanded for further proceedings.