People v. Carter

Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and

integrity of this document Date: 2016.01.08

Supreme Court 09:49:23 -06'00'

People v. Carter, 2015 IL 117709

Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. Court: KELVIN CARTER, Appellee.

Docket No. 117709

Filed December 3, 2015

Decision Under Appeal from the Appellate Court for the First District; heard in that Review court on appeal from the Circuit Court of Cook County, the Hon.

Kevin M. Sheehan, Judge, presiding.

Judgment Appellate court judgment reversed.

Circuit court judgment affirmed.

Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,

Annette Collins, Michelle Grimaldi-Stein, and Brian K. Hodes, Assistant State’s Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Jennifer L. Bontrager, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

Justices JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.

OPINION

¶1 This case comes before the court from an appellate court decision holding that remand is

required “because the circuit judge’s sua sponte dismissal of [defendant-petitioner’s] petition for relief from judgment on the merits was premature given that the petition was not properly served on the State.” 2014 IL App (1st) 122613, ¶ 1. For the following reasons, we reverse the judgment of the appellate court.

¶2 BACKGROUND ¶3 Following a bench trial in the circuit court of Cook County, defendant, Kelvin Carter,

was found guilty of the 2002 murder of Edmond Allen. Identification evidence was supplied

by four occurrence witnesses. The circuit court ultimately imposed a 20-year prison sentence

in addition to a 25-year enhancement, which was statutorily mandated because of the court’s

determination that defendant had personally discharged a firearm during the commission of

the crime. The court had initially sentenced defendant to a 30-year term of imprisonment but

immediately amended its determination, imposing the 20-year minimum instead after

realizing that defendant was subject to the enhancement. The appellate court affirmed

defendant’s conviction and sentence in 2006 (People v. Carter, No. 1-04-1385 (2006)

(unpublished order under Illinois Supreme Court Rule 23 and this court denied leave to

appeal (People v. Carter, 221 Ill. 2d 647 (2006) (table .

¶4 Thereafter, defendant filed a pro se postconviction petition alleging, inter alia, that he

was denied the effective assistance of trial counsel and that the State had engaged in multiple

instances of prosecutorial misconduct. Defendant’s petition was summarily dismissed, the

circuit court finding it frivolous and patently without merit. The appellate court affirmed

(People v. Carter, No. 1-07-2160 (2009) (unpublished order under Illinois Supreme Court

Rule 23 , and this court denied leave to appeal (People v. Carter, 233 Ill. 2d 570 (2009)

(table .

¶5 On May 9, 2012, defendant mailed a “Motion to Vacate Judgment” in which he argued

that the 25-year firearm enhancement to his sentence was void because the trial court only

found him guilty of murder. Defendant also argued that the trial court was bound by its initial

statement of 30 years’ imprisonment regardless of the statutorily required enhancement.

Defendant attached a “Proof/Certificate of Service” to his pleading, alleging that he placed it

in the “institutional mail” at the Menard Correctional Center. He listed as addressees the

“Clerk of Court” and “State’s Atty. Office,” both of “2650 S. California Avenue,” Chicago,

Illinois. The record shows a copy of defendant’s pleading was stamped “received” by the

circuit clerk on May 15, 2012. It was docketed on May 29, 2012, to be called on June 5,

2012.

¶6 The circuit court called the matter on June 5, 2012, but the record of proceedings

indicates that only the judge and court reporter were present. A docket entry on that date

evinces the circuit court’s quizzical assumption that defendant intended the pleading as a

petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2012 . The docket and transcript for that date show that the case was scheduled for “court

review” on July 10. On July 10, the court dismissed the petition on the merits. The cover page of the transcript of proceedings indicates that an assistant State’s Attorney was present

in the courtroom when the court announced that defendant’s “2-1401 petition is dismissed,” but the transcript does not show that the assistant State’s Attorney took any action. In a written order entered July 10, the circuit court recited the law applicable to section 2-1401 proceedings and concluded with this observation and finding:

“[P]etitioner contends that his firearm enhancement is void because the court did not

find him guilty of personally discharging the firearm but only found him guilty of

first degree murder. However, petitioner was found guilty of count two of his

indictment which states that Kelvin Carter, without lawful justification shot and killed

Edmond Allen while armed with a firearm, knowing that such an act created a strong

probability of death or great bodily harm to Edmond Allen.” (Emphasis in original.)

Neither party filed a postjudgment motion in the circuit court; thus, issues of sufficiency of service and notice to the State were never addressed.

¶7 In the words of the appellate court, on appeal, defendant-petitioner argued “that this court

must remand this case to the circuit court because the court’s sua sponte dismissal of his section 2-1401 petition on the merits was premature, given that the petition was not properly served on the State.” 2014 IL App (1st) 122613, ¶ 8. The appellate court observed: “According to the proof of service attached to the section 2-1401 petition, defendant mailed his petition on May 9, 2012, and attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center ‘properly addressed to the parties listed above for mailing through the United States Postal Service.’ ” Id.

¶8 The appellate court noted that the State’s response was two-fold. First, because an

assistant State’s Attorney was in court at the time that the petition was dismissed, and thus had actual knowledge of the petition, the State waived improper service by not objecting to it. As such, the petition was ripe for adjudication when it was dismissed for failure to state a cause of action more than 30 days after it was received by the court. Id. ¶¶ 9, 16. Second, alternatively, the State suggested, “it is not clear from the record on appeal that defendant’s service did not comply with the requirements of Rule 105(b).” Id. ¶ 13.

¶9 The appellate court rejected the latter suggestion, stating: “the record clearly shows” that

petitioner’s proof of service indicated “he attempted to serve the State by placing the documents in the institutional mail at the Menard Correctional Center *** for mailing through the United States Postal Service.” (Internal quotation marks omitted.) The appellate court continued, in a conclusive and dispositional vein: “There is nothing in the record that contradicts this information, nor does either party offer anything ***.” Id. ¶ 14. ¶ 10 Then, without speaking to the merits of defendant’s petition—which defendant

apparently never argued—or the substance of the circuit court’s ruling thereon, the appellate court reversed and remanded for further proceedings, holding that the circuit court erred in prematurely dismissing petitioner’s section 2-1401 petition sua sponte before the petition had been properly served on the State. Id. ¶ 25. The court reasoned that result was dictated by our decisions in People v. Vincent, 226 Ill. 2d 1 (2007), and People v. Laugharn, 233 Ill. 2d 318 (2009):

“Because Laugharn and Vincent demand that we base our determination as to

whether the circuit court prematurely sua sponte dismissed a section 2-1401 petition

by looking at the date of service, it necessarily follows that proper dismissal, either with or without prejudice, cannot be achieved without service ***. See Ill. S. Ct. R.

105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24; Vincent, 226 Ill. 2d at 5.” 2014 IL App (1st) 122613, ¶ 25.

¶ 11 Having rejected the State’s arguments in opposition to reversal, the appellate court

determined that the appropriate disposition was to vacate the judgment of the circuit court—which had found defendant’s petition lacked merit—and remand for further proceedings (id. ¶ 26).

¶ 12 ANALYSIS ¶ 13 We review de novo the dismissal of a section 2-1401 petition (Vincent, 226 Ill. 2d at 18),

the interpretation of court rules (In re Thomas, 2012 IL 113035, ¶ 56), and questions of law

generally (People v. Williams, 188 Ill. 2d 365, 368-69 (1999 .

¶ 14 At the outset, we note that Illinois Supreme Court Rule 106 governs the methods of

notice to be used for petitions filed pursuant to section 2-1401, providing that “[n]otice of the

filing of a petition under section 2–1401 *** shall be given by the same methods provided in

Rule 105.” Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) states that notice may be served,

inter alia, by certified or registered mail. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Once notice

has been served, the responding party has 30 days to file an answer or otherwise appear. Ill.

S. Ct. R. 105(a) (eff. Jan. 1, 1989).

¶ 15 As appellate panels have aptly noted, the notice requirements of Rule 105 are designed to

prevent a litigant from obtaining new or additional relief without first giving the defaulted

party a renewed opportunity to appear and defend. People v. Saterfield, 2015 IL App (1st)

132355, ¶ 20. “ ‘The object of process is to notify a party of pending litigation in order to

secure his appearance.’ ” People v. Kuhn, 2014 IL App (3d) 130092, ¶ 11 (quoting

Professional Therapy Services, Inc. v. Signature Corp., 223 Ill. App. 3d 902, 910 (1992 .

Some courts in this context have suggested, in construing the sufficiency of the notice, that

courts should focus on whether the object and intent of the law were substantially attained

rather than the formal and technical requirements. See id.; People v. Ocon, 2014 IL App (1st)

120912, ¶ 23.

¶ 16 In Vincent—where neither proper service on the State nor actual notice were at

issue—this court held that sua sponte dismissals of section 2-1401 petitions are proper, on

the merits, where the State does not answer or otherwise plead within the applicable 30-day

period. In Vincent, we stated that the State’s failure to answer the petition “constituted an

admission of all well-pleaded facts *** and rendered Vincent’s petition ripe for

adjudication.” Vincent, 226 Ill. 2d at 9-10.

¶ 17 Subsequently, in Laugharn—where neither proper service on the State nor actual notice

were at issue—we held that petitioner’s section 2-1401 petition was not “ripe for

adjudication.” (Internal quotation marks omitted.) Laugharn, 233 Ill. 2d at 323. Noting that

“[o]nly seven days had passed since [the petition’s] filing,” this court found that “[t]he circuit

court’s dismissal short-circuited the proceedings and deprived the State of the time it was

entitled to answer or otherwise plead.” Id. In short, this court acknowledged that the 30-day

period for response, specified in Rule 105, was for the State’s benefit, and that the circuit

court’s sua sponte ruling on the petition before the State had an opportunity to respond constituted the deprivation of an entitlement inuring to the respondent-State—not the defendant-petitioner.

¶ 18 In this case, the defendant’s argument in the appellate court, and the appellate court’s

disposition, were premised upon the assumption that defendant’s service on the State was

deficient for failure to strictly comply with Rule 105, and that defendant’s error in that regard

rendered the circuit court’s dismissal of defendant’s petition premature. We have examined

the record and now conclude it does not affirmatively demonstrate there was deficient

service.

¶ 19 This court has long recognized that to support a claim of error, the appellant—in this case

the defendant in the appellate court—has the burden to present a sufficiently complete record

such that the court of review may determine whether there was the error claimed by the

appellant. In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009). Without an adequate record

preserving the claimed error, the court of review must presume the circuit court’s order

conforms with the law. Id.; see also In re Jonathon C.B., 2011 IL 107750, ¶ 72 (“This court

presumes that a trial judge knows and follows the law unless the record affirmatively

indicates otherwise.”); People v. Gaultney, 174 Ill. 2d 410, 420 (1996) (same). “Any doubts

which may arise from the incompleteness of the record will be resolved against the

appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392 (1984).

¶ 20 In this case, the claimed error, which is premised on allegedly deficient service, was not

addressed at all in the circuit court, by either party. The issue was first raised by defendant on

appeal as a means to obtain remand after his petition was dismissed by the circuit court on

the merits. Thus, there is no meaningful record from the circuit court to be reviewed. What

scant record there is consists of a statement in the proof of service defendant attached to his

petition: “I have placed the documents listed below in the institutional mail at Menard

Correctional Center, properly addressed to the parties listed above for mailing through the

United States Postal Service.” To serve as a basis for defendant’s contention of error, that

statement must affirmatively establish that defendant mailed his petition via some means

other than certified or registered mail. However, all it establishes is where defendant mailed

his petition—“the institutional mail”—and the medium through which it was to be

transmitted: “the United States Postal Service.” The appellate court’s assumption that the

language of the proof of service affirmatively established transmittal by regular mail, and

thus deficient service (see 2014 IL App (1st) 122613, ¶ 14), is unwarranted on this record.1

¶ 21 In their briefs, the parties debate the significance of what defendant sees as shifting

positions the State has taken in the course of the appellate process with respect to whether

defendant’s service was or was not deficient. Defendant, of course, readily concedes

deficient service on the State. Since his position is premised on deficient service, it is

obviously in his interest to do so. As we have noted, the State’s arguments in the appellate

Defendant suggests that “[a]s an indigent, pro se petitioner incarcerated at a state correctional facility, [he] lacks the access to the methods of service required by Rule 105(b),” “an obstacle this Court recognized in its amendment to Rule 12, allowing proof of service by affidavit or certification of deposit in the institutional mail.” Defendant acknowledges, however, that “[t]he proof of service addressed by Rule 12 is distinct from the method of service, which is addressed in Rule 105(b).” (Emphases added.) We note that the record in this case is inadequate to demonstrate that inmates in correctional facilities lack the means to comply with the service requirements of Rule 105(b).

court were in the alternative. First, because an assistant State’s Attorney was in court at the

time that the petition was dismissed, and thus had actual knowledge of the petition, the State

waived improper service by not objecting to it. Id. ¶¶ 9, 16. Second, the State suggested “it is

not clear from the record on appeal that defendant’s service did not comply with the

requirements of Rule 105(b).” Id. ¶ 13. We see no impropriety in the State’s arguments in the

alternative. The State has taken a similar approach in argument before this court. Defendant

insists that the State conceded in its petition for leave to appeal that there was improper

service in this case. As defendant points out, there is a statement in the body of the petition

wherein the State arguably concedes that the defendant served the State via regular mail,

though the State claims there was no concession, that the State “simply referenced the fact

that the appellate court so held by citing to the appellate court’s own conclusions.”

¶ 22 We mention this debate only to acknowledge that we have considered the point raised by

defendant. Irrespective of the parties’ arguments, the record is what it is, and, in our view, it

is insufficient to demonstrate the service deficiency that defendant must establish in order to

advance his argument. As far as any arguable concession is concerned, it is well established

that we, as a court of review, are not bound by a party’s concession. Beacham v. Walker, 231

Ill. 2d 51, 60-61 (2008).

¶ 23 As noted, without an adequate record preserving the claimed error, we, as a court of

review, must presume the circuit court’s order conforms with the law. In re Gulla, 234 Ill. 2d

at 422. Applying that principle in this case, we cannot assume that defendant’s service upon

the State was deficient. Though the regular return receipt for certified mail—for example—is

sufficient proof of service by certified mail (see In re Dar C., 2011 IL 111083, ¶ 63 (citing

705 ILCS 405/2-16(1) (West 2006 , the absence of such a receipt in the record does not

affirmatively establish that service by certified mail was not accomplished, as it is up to the

sender to file the receipt or not. In this case, the matter of service—adequate or

deficient—was simply not addressed by the parties in the circuit court.

¶ 24 What we can discern from the record is that well over 30 days had passed since the filing

of defendant’s petition when the circuit court dismissed defendant’s petition, sua sponte, on

the merits. Defendant’s pleading was stamped received by the circuit clerk on May 15, 2012;

docketed on May 29, 2012; and dismissed on July 10, 2012. An assistant State’s Attorney

was in attendance and voiced no objection when the circuit court announced, in open court,

that defendant’s “2-1401 petition is dismissed.” A written order was then prepared and filed

that same day, outlining the court’s reasoning for the dismissal. No party filed a posttrial

motion. A notice of appeal was timely filed by defendant listing, on the notice of appeal, the

Cook County State’s Attorney as a recipient thereof. In sum, nothing in this record

affirmatively establishes that the State was not given proper notice or that the circuit court’s

sua sponte dismissal was premature. It was defendant’s burden, as the appellant below, to so

show. On this record, we must presume the circuit court’s order was rendered in accordance

with the applicable law.

¶ 25 To be sure, we encourage circuit courts to ascertain and note of record the date the State

was properly served and to time any sua sponte rulings on pending petitions accordingly.

That said, however, 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.

¶ 26 For the foregoing reasons, the judgment of the appellate court is reversed, and the

judgment of the circuit court is affirmed.

¶ 27 Appellate court judgment reversed. ¶ 28 Circuit court judgment affirmed.