Opinion
No. 1-12-2939
07-27-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS SHIELDS, 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. 07 CR 6585
Honorable Timothy J. Joyce, Judge, presiding.
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice Fitzgerald Smith concurred in the judgment.
ORDER
¶ 1 Held: Pursuant to People v. Matthews, 2016 IL 118114, defendant cannot use his own failure to comply with supreme court rules to seek reversal of the circuit court's dismissal of his section 2-1401 petition (735 ILCS 5/2-1401 (West 2012)).
¶ 2 Defendant Curtis Shields 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 this case should be remanded for further proceedings because the State was not served with notice of his petition. On
December 11, 2014, this court issued an order vacating the circuit court's dismissal of defendant's petition and remanding for further proceedings. People v. Shields, 2014 IL App (1st) 122939-U, ¶¶ 13-14. 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. Shields, No. 118773 (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 2010, defendant was convicted of first degree murder and sentenced to natural life imprisonment. On direct appeal, this court affirmed defendant's conviction and sentence. People v. Shields, 2013 IL App (1st) 102739-U. The Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Shields, No. 116869 (Jan. 29, 2014).
¶ 4 During the pendency of defendant's appeal, he filed a petition pursuant to section 2-1401 to vacate the circuit court's judgment, alleging that his convictions were based on false testimony. That petition is the subject of this appeal. Defendant's petition was dated February 2, 2012, and was file-stamped and docketed in the circuit court on February 14, 2012. The proof of service attached to defendant's petition stated that the documents were placed in the prison mail "for mailing through the United States Postal Service."
¶ 5 On July 17, 2012, the circuit court addressed defendant's petition. The cover page of the transcript of proceedings for that day reflects the judge and a court reporter were the only persons present. According to that transcript, the court stated: "Sheet 1, Curtis Shields, 2-1401 petition, order of Court 8-21-12. Mr. Shields is in the Department of Corrections."
¶ 6 The court next considered defendant's petition on August 24, 2012. The report of proceedings for that date indicates that, again, only the judge and a court reporter were present. The circuit court denied defendant's petition sua sponte.
¶ 7 Defendant contends on appeal that the 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 to notice of the petition 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).
¶ 8 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. Shields, 2014 IL App (1st) 122939-U, ¶¶ 13-14. Our supreme court has since reversed the appellate decision in Carter, affirming the circuit court's dismissal of the 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 reach the issue of whether the defendant could challenge his own improper service.
¶ 9 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 a claim of the defendant's 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.
¶ 10 For the reasons stated 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. Accordingly, the circuit court's dismissal of defendant's petition is affirmed. Additionally, because the petition in Matthews was dismissed with prejudice, we reject defendant's contention, citing People v. Nitz, 2012 IL App (2d) 091165, that he should be allowed to refile his petition and properly serve the State.
¶ 11 Affirmed.