People v. Carter
Ill.
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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(unpublished order under Illinois Supreme Court Rule 23)) and this court denied leave to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
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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
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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
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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
1
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).
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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
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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.
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