Opinion
No. 1-13-3805
08-04-2016
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISAAC VILLAREAL, 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. 05 CR 14868
Honorable Kevin M. Sheehan, Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶ 1 Held: The trial court's sua sponte dismissal of defendant's pro se section 2-1401 petition is vacated where the record affirmatively demonstrates that defendant failed to serve notice of the petition on the State.
¶ 2 Defendant Isaac Villareal appeals from the sua sponte dismissal of his pro se petition for relief pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
2012)). On appeal, defendant contends that because he did not serve his section 2-1401 petition on the State, the petition was not ripe for adjudication at the time the trial court dismissed it. On November 12, 2015, we issued an order vacating the trial court's judgment and remanding for further proceedings. People v. Villareal, 2015 IL App (1st) 133805-U. We have since vacated that decision pursuant to our supreme court's supervisory order directing us to reconsider in light of People v. Carter, 2015 IL 117709. People v. Villareal, No. 120234 (Ill. March 30, 2016) (supervisory order).
¶ 3 After considering the instant case in light of Carter, we again vacate the trial court's judgment and remand for further proceedings.
¶ 4 On March 19, 2008, defendant pleaded guilty to aggravated kidnapping in exchange for a 14-year term of imprisonment. He did not file a motion to withdraw his plea or take a direct appeal. On August 14, 2013, defendant placed a section 2-1401 petition in the "institutional mail" at the Shawnee Correctional Center. The "Proof/Certificate of Service" attached to the petition indicates that the petition was addressed solely to the clerk of the circuit court of Cook County "for mailing through the United States Postal Service." In the petition, defendant alleged that his sentence was void because his waiver of a presentence investigation was invalid where the trial court did not make a specific finding on the record as to his criminal history. Defendant also attached an affidavit in which he asserted that the trial court did not admonish him that he would be subject to a term of mandatory supervised release.
¶ 5 The clerk of the circuit court received the petition on August 20, 2013, and stamped it "filed" on August 23, 2013. The matter appeared on the circuit court's September 3, 2013, call. The transcript of proceedings from that date indicates that only the judge and court reporter were
present. The trial court stated that defendant had filed a pro se section 2-1401 petition and set the matter for October 17, 2013, for court review.
¶ 6 On October 17, 2013, the circuit court dismissed defendant's petition in a written order, finding that contrary to defendant's claims, the trial court did make a finding of defendant's criminal history on the record and did admonish him that he would serve three years of mandatory supervised release. The cover page of the transcript of proceedings from October 17, 2013, does not indicate that anyone other than the judge and the court reporter was present in court.
¶ 7 On appeal, defendant contends that because he did not serve his petition on the State, it was not yet ripe for adjudication when the court dismissed it. Defendant further argues that there is no indication in the record that the State received actual notice of the petition when it was filed or dismissed. He asserts that the dismissal must be vacated and the cause must be remanded for further proceedings. The State responds that defendant should not be rewarded for his own malfeasance and that defendant lacks standing to challenge improper service on the State.
¶ 8 Our review of the dismissal of a section 2-1401 petition is de novo. People v. Laugharn, 233 Ill. 2d 318, 322 (2009).
¶ 9 Section 2-1401 establishes a comprehensive procedure for allowing the vacatur of final judgments more than 30 days after their entry. People v. Vincent, 226 Ill. 2d 1, 7 (2007). Section 2-1401(b) 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 (eff. Aug. 1, 1985) provides that service of a section 2-1401 petition must comply with Illinois Supreme Court Rule 105 (eff.
Jan. 1, 1989), which in turn mandates service on the opposing party either by summons, prepaid certified or registered mail, or publication.
¶ 10 A trial court may properly dismiss a section 2-1401 petition on the merits sua sponte and without notice or an opportunity to be heard. Vincent, 226 Ill. 2d at 11-19. However, a sua sponte dismissal on the merits before the State has been properly served is premature. People v. Zimmerman, 2016 IL App (2d) 130350, ¶ 9. When dismissal is premature, the appropriate remedy is to vacate the dismissal order and remand for further proceedings. Id.
¶ 11 In People v. Carter, 2015 IL 117709, our supreme court addressed the issue of an incarcerated defendant's service of a section 2-1401 petition on the State. In that case, the defendant filed a "Motion to Vacate Judgment" and attached a certificate of service indicating that he had placed it in the "institutional mail" at the correctional center where he was incarcerated, addressed to the "Clerk of Court" and the "State's Atty. Office." Id. ¶ 5. The first time the circuit court called the matter, only the judge and court reporter were present. Id. ¶ 6. The second time the case was called, the circuit court dismissed the pleading sua sponte. Id. The cover page of the transcript of proceedings from that date indicated that an assistant State's Attorney was present in the courtroom when the court announced the dismissal, but the transcript did not show that the prosecutor took any action. Id. On appeal, the defendant claimed that the circuit court's dismissal of his section 2-1401 petition was premature given that the petition was not properly served on the State. Id. ¶ 7. This court vacated the circuit court's judgment and remanded for further proceedings. Id. ¶ 11.
¶ 12 On further review, our supreme court affirmed the circuit court's judgment dismissing the defendant's petition, holding that:
"any section 2-1401 petitioner who seeks to use, on appeal, his own error, by way of allegedly defective service, in an effort to gain reversal of a circuit court's sua sponte dismissal of his or her petition on the merits, must affirmatively demonstrate the error via proceedings of record in the circuit court." Id. ¶ 25.
The Carter court found that the record in that case did not affirmatively establish defective service, as the proof of service indicated where the defendant mailed his petition and the medium though which it was to be transmitted, but did not demonstrate that he had mailed the petition to the State via "regular mail" or some means other than certified or registered mail. Id. ¶ 20.
¶ 13 In the instant case, unlike Carter, we find that the "Proof/Certificate of Service" affirmatively establishes that defendant did not properly serve the State. Defendant's certificate indicates that he mailed a copy of his petition to the circuit court clerk, but not to the State's Attorney. Additionally, unlike in Carter, the record in this case does not indicate that the petition was dismissed in open court in the presence of an assistant State's Attorney. See id. ¶ 24. Rather, only the judge and court reporter were present when the dismissal was announced. In these circumstances, we conclude that the record affirmatively shows that the State was not given and did not waive proper notice. Accordingly, we vacate the order dismissing defendant's section 2-1401 petition and remand for further proceedings. See Zimmerman, 2016 IL App (2d) 130350, ¶¶ 10, 18-19 (vacating and remanding where the record affirmatively showed that the State was not served by certified or registered mail).
¶ 14 We are mindful of the State's argument regarding standing and acknowledge that the Third District in People v. Kuhn, 2014 IL App (3d) 130092, ¶¶ 15-16, held that a defendant lacked standing to raise the issue of his own improper service of notice of a section 2-1401
petition by regular mail. However, we find Kuhn distinguishable. There, the proof of service indicated that the defendant had sent documents to the State's Attorney via regular mail, 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. Id. ¶¶ 4, 14. The Kuhn court held that the "notice provided to the State was sufficient to allow the State to determine how it wanted to proceed" and that 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, in contrast to Kuhn, 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 section 2-1401 petition by participating in any court proceedings. Therefore, Kuhn is not analogous.
¶ 15 For the reasons explained above, we vacate the judgment of the circuit court and remand for further proceedings.
¶ 16 Judgment vacated; remanded.