People v. Saterfield

2015 IL App (1st) 132355, 34 N.E.3d 1174

• Court: Appellate Court of Illinois
• Decided: June 12, 2015
• Docket: 1-13-2355
• Status: Unpublished

Opinion

2015 IL App (1st) 132355

FIFTH DIVISION June 12, 2015

No. 1-13-2355

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 99 CR 21702 ) LLOYD SATERFIELD, ) Honorable ) William H. Hooks, Defendant-Appellant. ) Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

Justice Reyes concurred in the judgment and opinion. Justice Gordon dissented, with opinion.

OPINION

¶1 Defendant Lloyd Saterfield appeals from the circuit court's dismissal of his pro se

petition for postjudgment relief filed pursuant to section 2-1401 of the Code of Civil Procedure

(the Code) (735 ILCS 5/2-1401 (West 2012)). On appeal, defendant contends, relying on People

v. Laugharn, 233 Ill. 2d 318 (2009), that the court's sua sponte dismissal of the petition was

premature because the court entered it before the 30-day period for the State to respond had

expired. We affirm.

¶2 In July 2001, defendant entered into negotiated pleas of guilty to home invasion and

felony murder predicated on home invasion. At the plea hearing, the prosecutor offered the

following factual basis for defendant's plea. 1-13-2355

¶3 The prosecutor stated that the evidence would show that on August 25, 1999, defendant

and his codefendants discussed a plan to murder Niquita Johnson, who was 33 years old at that

time. The original plan was to use a firearm, but they were unable to obtain one. They planned to

enter Johnson's bedroom while she was asleep with knives and a garden shovel. Defendant was

the first one to enter the bedroom where Johnson was asleep on the bed with her 11-month-old

baby. He began to stab her "about the head and neck with the garden shovel." One of the

codefendants removed the baby from the bed. Two codefendants also began stabbing Johnson.

Defendant then carried Johnson from the bed to the front room of the apartment. When he heard

her breathing, he stabbed her two more times with the garden shovel. Defendant and his

codefendants cleaned the apartment and defendant changed his clothes. They carried Johnson's

body outside, put it in the trunk of her car, and pushed the car down the street, and then

defendant lit the car on fire.

¶4 When defendant was arrested, he gave a videotaped confession outlining the planned

murder of Johnson. The medical examiner would testify that he found over 30 stab wounds on

Johnson's body, primarily to her neck, shoulders, and chest. The trial court found the factual

basis sufficient to support the charges, accepted defendant's plea of guilty, and entered a finding

of guilty. The trial court sentenced defendant to concurrent prison terms of 60 years for felony

murder and 30 years for home invasion. Defendant then filed several unsuccessful collateral

attacks upon his convictions. See, e.g., People v. Saterfield, No. 1-08-3096 (2010) (unpublished

order under Supreme Court Rule 23).

¶5 On March 18, 2013, defendant's pro se section 2-1401 petition was stamped "received,"

by the clerk's office, criminal division. The petition sought injunctive relief for a "void sentence"

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alleging that the truth-in-sentencing legislation was unconstitutional and that the calculation of

his "credit" under this legislation violated his constitutional rights. The same petition was also

stamped "filed" on April 8, 2013, by the clerk's office, criminal division, 26th and California. On

April 15, 2013, at a proceeding in the criminal division, the petition was on the court's call and

an assistant State's Attorney (ASA) asked the court for time to look at the petition, specifically to

April 26th, and report back to the court.

¶6 On April 26, 2013, the circuit court 1 concluded that defendant's petition was frivolous

and patently without merit and sua sponte dismissed the petition. The court found:

"[Defendant] was convicted of murder and is alleging that the

Truth and Sentencing Statute is unconstitutional. The grounds that

[defendant's] petition are frivolous and patently without merit.

Numerous cases have held that the Truth and Sentencing is

constitutional."

¶7 The transcript of April 26, 2013, indicates that the same ASA was present and that an

assistant public defender appeared on behalf of defendant. Neither attorney spoke on the record.

¶8 On May 28, 2013, defendant filed a petition for rehearing and argued the merits of his

petition and that the circuit court had prematurely dismissed his petition, citing People v.

Laugharn, 233 Ill. 2d 318 (2009). On June 4, 2013, the circuit court denied defendant's pro se

petition for rehearing.

1 We note that the record is unclear which trial judge dismissed defendant's petition. The half-sheets indicate that Judge William Hooks was presiding, but the report of proceedings state that Judge Steven J. Goebel was presiding. The record shows that Judge Hooks denied defendant's petition for rehearing.

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¶9 Defendant's sole contention on appeal is that People v. Laugharn, 233 Ill. 2d 318 (2009),

prohibits the sua sponte dismissal of a section 2-1401 petition before the expiration of the 30-day

period in which the State has time to answer. Defendant argues that because the instant petition

was filed on April 8, 2013, and dismissed on April 26, 2013, the cause must be remanded to the

circuit court. Defendant did not file a reply brief and made no substantive arguments regarding

his section 2-1401 petition in his opening brief.

¶ 10 The State responds first by arguing that the petitioner has "waived" any issues regarding

the merits of the petition because of his failure to present any argument on the issues in his brief

on appeal. It further contends that the circuit court's dismissal of the petition was not premature

because more than 30 days had passed by the time the court denied defendant's motion to

reconsider. The State further argues that the petition was properly dismissed when an ASA was

present in court and did not object to the dismissal. The State finally argues that remand is

unnecessary because the instant petition is meritless and a remand would be a waste of judicial

resources in light of this fact.

¶ 11 As to the State's first argument that the merits of the petition have been forfeited, we

agree. Petitioner has made no argument regarding the merits of his petition on appeal and has

therefore forfeited these issues on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("Points

not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition

for rehearing"). However, were we to address the merits of defendant's petition, the result would

not change.

¶ 12 With regard to defendant's challenge to the truth-in-sentencing legislation, the statute was

found to be unconstitutional as enacted because the legislature violated the single-subject clause

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of the Illinois Constitution in enacting the law. People v. Reedy, 186 Ill. 2d 1, 12 (1999). Reedy,

however, acknowledged that the constitutional infirmity was corrected when the legislature

passed curative legislation, Public Act 90-592 (eff. June 19, 1998), and therefore, the act was no

longer unconstitutional as applied to offenses committed after June 19, 1998. Reedy, 186 Ill. 2d

at 17-18.

¶ 13 Here, the record indicates that defendant entered a plea of guilty in 2001, and he does not,

nor can he, claim that the offenses at issue were committed prior to June 19, 1998, because the

offense were committed on August 25, 1999. Therefore, his claim that the truth-in-sentencing

law is unconstitutional must fail. Similarly his claim that the calculation of his good-time credit

pursuant to the truth-in-sentencing law deprives him of his constitutional rights must fail, when

defendant fails to explain how the application of a constitutional statute caused him a

constitutional deprivation.

¶ 14 Next, we address petitioner's argument that the trial court's dismissal of section 2-1401

petition was premature. Section 2-1401 of the Code establishes a comprehensive procedure for

allowing the vacatur of final judgments more than 30 days after their entry. See People v.

Vincent, 226 Ill. 2d 1, 7 (2007). We review the dismissal of a section 2-1401 petition de novo.

People v. Laugharn, 233 Ill. 2d 318, 322 (2009).

¶ 15 All parties to a section 2-1401 petition must be notified as provided by rule. 735 ILCS

5/2-1401(b) (West 2012). Pursuant to Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), notice

of the petition shall be directed to the party against whom relief is sought and must be served

either by summons, by prepaid certified or registered mail, or by publication. See also Ill. S. Ct.

R. 106 (eff. Aug. 1, 1985) (notice of the filing of petition under section 2-1401 shall be given by

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the methods provided in Rule 105). The purpose of these rules is to notify a party of pending

litigation in order to secure his presence. People v. Ocon, 2014 IL App (1st) 120912, ¶ 23. In

construing the sufficiency of the notice, our focus is not on whether the notice is formally and

technically correct but, rather, on whether the object and intent of the law were substantially

attained. Id.

¶ 16 Our supreme court laid out the procedure for the dismissal of a section 2-1401 petition in

People v. Laugharn, 233 Ill. 2d 318 (2009). In that case, the defendant was found guilty of first

degree murder in 1996 and filed a pro se section 2-1401 petition in 2004, alleging that evidence

that had a bearing on her case had been withheld from her. Id. at 320-21. Seven court days later,

the circuit court sua sponte dismissed the petition as untimely because it was filed more than two

years after the judgment. Id. at 321.

¶ 17 On appeal, our supreme court first addressed the State's argument that the defendant

forfeited the question of timeliness because she did not raise the issue in the appellate court. The

court disagreed, as "there was nothing else before that court to review other than [the

defendant's] pro se petition and the circuit court's docket entry, which left no doubt that the

single ground for the dismissal was the circuit court's determination that the petition was

untimely." Id. at 322. The court then turned to the circuit court's sua sponte dismissal of the

petition, concluding that the section 2-1401 petition was not ripe for adjudication because it was

dismissed prior to the expiration of the 30-day period for a response. Id. at 323. "The circuit

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

to answer or otherwise plead." Id. The court further held that although "Vincent allows for sua

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sponte dismissals of section 2-1401 petitions, it did not authorize such action prior to the

expiration of the 30-day period." Id. (citing Vincent, 226 Ill. 2d at 5).

¶ 18 In the instant case, the record is unclear as to whether or when defendant's pro se section

2-1401 petition was served upon the State. Although the petition was stamped "received" by the

clerk's office on March 18, 2013, it was not stamped "filed" until April 8, 2013. Initially, this

court notes that pursuant to Rule 105, it is the petitioner who must provide service because the

petitioner is seeking new relief and the precise language of the rule provides that the notice shall

state "that a judgment by default may be taken against [the respondent] for the new or additional

relief unless [the respondent] files an answer or otherwise files an appearance in the office of the

clerk of the court within 30 days after service." (Emphasis added.) Ill. S. Ct. R. 105 (eff. Jan. 1,

1989). Here, there is no indication in the record that the State was not properly served on or

before March 18, 2013. In fact, there is no notice of service of any kind attached to defendant's

section 2-1401 petition. This fact alone, lack of evidence of proper service, amounts to a

deficient petition and we could affirm on this basis. People v. Nitz, 2012 IL App (2d) 091165, ¶

13.

¶ 19 However, an application to sue or defend as a poor person attached to the section 2-1401

petition was notarized on February 8, 2013, so there is some indication the petition was prepared

by defendant on or before February 8, 2013. Defendant has the burden, as the appellant, to

present this court with a sufficiently complete record of the proceedings in the circuit court to

support his claim of error; and, any doubts which arise from the incompleteness of the record

will be resolved against him. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

Accordingly, because more than 30 days passed between the receipt of the section 2-1401

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petition on March 18, 2013 and its dismissal on April 26, 2013, the petition was "ripe" for

adjudication and the circuit court properly dismissed it. Laugharn, 233 Ill. 2d at 323.

¶ 20 Even accepting defendant's contention that the petition was "filed" on April 8, 2013, the

petition was properly dismissed under Laugharn because the State was not deprived of the

opportunity to respond. Pursuant to Laugharn, the primary purpose of the 30-day period is to

give the State sufficient time to respond to the petitioner's claims before the trial court may sua

sponte consider the petition. Laugharn, 233 Ill. 2d at 323. In other words, the trial court must

allow the State time to make its position known. Here, regardless of whether the petition was

"filed" on March 18 or April 8, the State was not deprived of the opportunity to respond. The

record reveals that the State received actual notice of the petition in open court on April 15 and

requested a continuance, specifically the date of April 26 to "review the petition." At the next

court date, April 26, the State did not file a response or object to the circuit court's dismissal of

the petition. Accordingly, this court cannot conclude that the State's time to respond was in any

way short-circuited, i.e., the State was not defaulted or deprived in any way of being able to

appear and defend. See Albany Bank & Trust Co. N.A. v. Albany Bank & Trust Co.N.A., 142 Ill.

App. 3d 390, 393 (1986) ("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."). See also People v. Lake, 2014 IL App (1st) 131542, ¶ 22

(highlighting that neither Vincent nor Laugharn discussed whether the State may waive improper

service by failing to object and whether a defendant may challenge his own failure to properly

serve the State as a basis for remand).

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¶ 21 People v. Ocon, 2014 IL App (1st) 120912, is instructive. In that case, the court

determined that although it was unclear whether defendant properly served the State with his

section 2-1401 petition, the record showed that an assistant State's Attorney was present in court

on the date the petition was docketed for review, which meant that the State had actual notice of

the petition as of that date. Id. ¶ 31. Therefore, we determined that the trial court's sua sponte

dismissal of the petition more than 30 days after the date the State appeared was proper because

the petition was ripe for adjudication at that time. Id. ¶¶ 35, 41.

¶ 22 Similarly, here, the record shows that the same ASA was present in court on April 15,

2013, as well as on April 26, 2013, when the petition was dismissed. In other words, regardless

of whether the State received the petition prior to the date it was file-stamped, the State had

actual notice of the petition and chose not to object to the dismissal, thereby waiving any

objection to improper service. Id. ¶ 41. Under these circumstances, we find no error in the

dismissal of defendant's petition. See also Lake, 2014 IL App (1st) 131542, ¶ 31 (affirming the

dismissal of the defendant's section 2-1401 petition when the State had actual notice of the

petition because an ASA was present in court when the petition was docketed).

¶ 23 Our conclusion is further supported by People v. Alexander, 2014 IL App (4th) 130132.

In that case, the defendant relied on Vincent and Laugharn to argue that the circuit court

improperly dismissed his petition when it was not yet ripe for adjudication due to improper

service upon the State. The court disagreed as, pursuant to Laugharn, the primary purpose of the

30-day period is to afford the State sufficient time to respond to a defendant's claims seeking

relief from judgment before the court may sua sponte consider the petition, rather than to allow a

defendant to use his own failure to comply with Rule 105 to require a remand. Id. ¶¶ 46-47. We

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find no meaningful differences between the facts of this case and those of Alexander and reach

the same conclusion.

¶ 24 We recognize that an opposite result was reached in People v. Carter, 2014 IL App (1st)

122613, appeal allowed, No. 117709 (Ill. Sept. 24, 2014). In that case, the court distinguished

Ocon because it could not assume that the State had knowledge of the petition and waived

service simply because an ASA was listed as present on the cover page of the transcript on the

date that the petition was dismissed. Id. ¶ 21. The court further held that because the question of

whether the circuit court prematurely dismissed a section 2-1401 petition is dependent upon the

date of service, a proper dismissal cannot be achieved without either service or an affirmative

showing that proper service was waived by the State. Id. ¶¶ 24-25.

¶ 25 However, we find Alexander's determination that Vincent and Laugharn do not mandate

such a result to be more persuasive. Here, as in Alexander, the State does not contest service and

has taken the position that petition is meritless. We also note that an ASA was present in court

when the petition was dismissed and did not object. There is no reason to remand this cause so

that either the 30 days can run or the State can reiterate its position that defendant's petition is

meritless before the circuit court. See Alexander, 2014 IL App (4th) 130132, ¶¶ 50-51

(concluding that remand so that the State could respond that the petition was frivolous and the

petition could be dismissed a second time would be a waste of judicial resources).

¶ 26 The Laugharn decision has generated numerous appeals, many of them addressing

whether the court improperly dismissed a petitioner's section 2-1401 petition. See People v.

Lake, 2014 IL App (1st) 131542, ¶ 23 (citing Nitz, 2012 IL App (2d) 091165; People v. Prado,

2012 IL App (2d) 110767; People v. Maiden, 2013 IL App (2d) 120016; People v. Carter, 2014

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IL App (1st) 122613, appeal allowed, No. 117709 (Sept. 24, 2014); People v. Kuhn, 2014 IL

App (3d) 130092). As pointed out above, the propriety of one of those dismissals is pending

before the supreme court in People v. Carter, 2014 IL App (1st) 122613, appeal granted, No.

117709 (Ill. Sept. 24, 2014). However, we note that since Laugharn was decided, there has been

no reported decision in which a trial court in a criminal proceeding sua sponte dismissed such a

petition because it was filed after the general two-year limitation period contained in section 2-

1401 (735 ILCS 5/2-1401 (West 2012)), which is what occurred in Laugharn. See Laugharn,

233 Ill. 2d at 322. Another observation made by the Nitz court is that both Vincent and Laugharn

involved the question of whether a trial court may dispose of a properly served section 2-1401

petition without the benefit of responsive pleadings and without giving defendant notice of the

impending ruling and the opportunity to address the court prior to the ruling. Nitz, 2012 IL App

(2d) 091165, ¶¶ 10, 12. Here, the record does not disclose any evidence whatsoever of a properly

served petition. So we could also conclude Laugharn does not control the outcome of this

appeal.

¶ 27 Defendant claims that he is not basing his appeal on defective notice or service upon the

State, but rather because the 30-day period had not yet expired. We disagree and conclude

defendant is attempting to benefit from an argument that the 30-day period was short-circuited in

this case. Therefore, defendant is attempting to use what would be his own error, improper

notice or service, or lack thereof, as a means to circumvent the well established rule that a

defendant may not create, agree, or acquiesce to an error, and then use that same error as a basis

for an issue on appeal. See People v. Carter, 208 Ill. 2d 309, 319 (2003).

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¶ 28 The dissent calculates the 30 days based upon the notion that the parties agree the petition

was filed on April 8, 2013. However, we as a reviewing court are not bound by a party's

concession. People v. Horrell, 235 Ill. 2d 235, 241 (2009). There is no question that the petition

prepared by defendant was "received" by the clerk of the circuit court, criminal division on

March 18, 2013. It is also undisputed that the same petition was "filed" in the criminal division

at 26th and California, on April 8, 2013. Therefore, the trial court was well within its authority

to conclude that 30 days after service had passed on April 26th, when it dismissed the

defendant's petition. More significant, however, is the fact that the filing date is not the operative

date because the 30 days runs from the date of service, not the date of filing. See S. Ct. R. 105

(eff. Jan. 1, 1989); Nitz, 2012 IL App (2d) 091165, ¶ 1 n.2. Defendant, as appellant, has the

burden to demonstrate an error, and on this record, he has not done so. Therefore, the dismissal

was proper.

¶ 29 Further, to the extent that the dissent suggests our decision permits the State to have

multiple bites at the apple, we disagree. Here, it is defendant who has had multiple bites at the

apple, because this is his third opportunity to have the merits of his petition reviewed. Since we

have reviewed the actual merits and find them lacking despite petitioner's obvious procedural

default, we conclude the trial court did not err in dismissing the petition.

¶ 30 In light of the foregoing, we affirm the dismissal of defendant's section 2-1401 petition

by the circuit court of Cook County.

¶ 31 Affirmed.

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¶ 32 JUSTICE GORDON, dissenting:

¶ 33 For the following reasons, I believe that our supreme court's decision in People v.

Laugharn, 233 Ill. 2d 318, 323 (2009), requires a different result, and thus, I must respectfully

dissent.

¶ 34 In Laugharn, 233 Ill. 2d at 323, our supreme court held that a trial court may dismiss a

section 2-1401 petition sua sponte so long as the dismissal occurs after the 30-day period of time

in which the State has to respond.

¶ 35 The problem is that doing anything else would give the State two bites at the apple. In

other words, even if the State had actual notice of the petition, the State could stand silent and do

nothing and see if the trial court decides on its own to dismiss sua sponte. However, if the trial

court ruled the other way, and granted defendant relief, the State could then object, on the ground

that its 30 days to respond had not yet expired and it had not formally waived this period of time.

¶ 36 In the instant appeal, the State's sole argument is that over 30 days had elapsed between

the date when the petition was filed and the date when the trial court denied defendant's motion

for reconsideration. However, the State's argument poses the same problem. If the trial court

had reconsidered and granted defendant's petition, then the State could still have objected on the

ground that the trial court's sua sponte dismissal occurred less than 30 days after defendant's

filing. This is a version of the proverbial "heads I win, tails you lose."

¶ 37 The majority stresses that the ASA stood silent and did not object to the trial court's

dismissal. Supra ¶ 22. What the majority overlooks is that the ASA had no incentive to object:

either the trial court would sua sponte dismiss or the ASA could assert the State's 30 day period

to respond. Under either scenario, there was no way the State could lose on that day.

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¶ 38 The majority states that it is "unclear" when this 30-day period began to run. However,

there is no dispute between the parties. The petition was filed on April 8, 2013, and both parties

use this date as the start date for calculating the State's 30-day period. In addition, the record

supports the parties' agreement on this factual point, since the petition itself is stamped "filed" on

April 8, 2013, and the ASA stated in open court on April 15 that defendant had "filed something

April 8th." Thus, only 18 days elapsed between April 8 and the trial court's sua sponte dismissal

on April 26, which is far less than the 30 days which are required.

¶ 39 The majority relies on People v. Ocon, 2014 IL App (1st) 120912; People v. Alexander,

2014 IL App (4th) 130132; and People v. Lake, 2014 IL App (1st) 131542. However, those

cases present very different situations than the one at bar.

¶ 40 In Ocon, 2014 IL App (1st) 120912, ¶¶ 1, 18, defendant argued that the trial court's

dismissal was premature, since he failed to properly serve the State with his petition. By contrast,

in the case at bar, there is no issue that the State was properly served and, thus, no attempt by

defendant to benefit from his own malfeasance. Alexander, 2014 IL App (4th) 130132, ¶ 47 (the

appellate court affirmed the trial court's sua sponte dismissal, observing that the "[d]efendant

now seeks to benefit by his failure").

¶ 41 In Ocon, the State argued that 30 days had elapsed between the date of filing, when it

received actual notice, and the date when the trial court dismissed sua sponte. Ocon, 2014 IL

App (1st) 120912, ¶¶ 19, 31. By contrast, in the case at bar, the State concedes that only 18 days

elapsed before the trial court's sua sponte dismissal. Thus, Ocon bears little resemblance to the

case at bar.

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¶ 42 Alexander and Lake presented the same issue as Ocon, with the same result. As in Ocon,

the Alexander and Lake defendants sought to benefit from their own malfeasance by claiming

that the State's 30-day period never began to run because they had failed to serve the State

properly. Alexander, 2014 IL App (4th) 130132, ¶ 47; Lake, 2014 IL App (1st) 131542, ¶ 11.

As in Ocon, the Alexander and Lake courts affirmed, observing that "more than 30 days" had

elapsed "after the petition's filing." (Emphasis in original.) Alexander, 2014 IL App (4th)

130132, ¶ 47; Lake, 2014 IL App (1st) 131541, ¶ 23 ("There is no dispute" that more than 30

days elapsed between the petition's filing and the trial court's sua sponte dismissal.). Like Ocon,

Alexander and Lake also bear little resemblance to our case, since our case does not involve

issues: (1) of improper service, (2) of more than 30 days elapsing since the petition's filing, or (3)

of an attempt by defendant to benefit from his own failure.

¶ 43 There is a dispute in the appellate court, in cases where a defendant improperly serves the

State, whether the 30-day period will start running if the record shows that the State had actual

notice. Ocon holds that it does (Ocon, 2014 IL App (1st) 120912, ¶ 39), and Maiden holds that it

does not. People v. Maiden, 2013 IL App (2d) ¶ 27 ("Absent *** an explicit statement of waiver

of improper service *** the State did not waive an objection to the improper service"); see also

People v. Carter, 2014 IL App (1st) 122613, ¶ 25 (a "proper dismissal *** cannot be achieved

without service or an affirmative showing that proper service was waived by the prosecution"),

appeal allowed No. 117709 (Sept. 24, 2014); However, the case at bar is not affected by this

dispute because it has nothing to do with improper service.

¶ 44 This opinion chips away at Laugharn more than Ocon did. Here, neither party disputes

when the 30-day period begins. As a result, it resembles Laugharn. Like in Laugharn, less than

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30 days had run. Laugharn, 233 Ill. 2d at 323 (defendant's petition was filed on August 24, 2004,

and sua sponte dismissed less than 30 days later on September 2, 2004). See also Carter, 2014

IL App (1st) 122613, ¶ 21 (reversing where there was no evidence in the record that the State

had notice of the petition until the day of the trial court's sua sponte dismissal and thus the State's

30 days had not run). Like in Laugharn, the State had not formally waived the 30-day period.

Laugharn, 233 Ill. 2d at 323. As in Laugharn, I would conclude that the dismissal was

premature. Laugharn, 233 Ill. 2d at 323.

¶ 45 If an ASA is standing there, present in court, I do not find it much of an imposition to

require the ASA to formally waive the 30-day period, rather than stand there silently. Anything

else is gamesmanship which a reviewing court should not allow. As this court has previously

observed when considering this same issue, "[p]rosecutors have a job to do and that job includes

standing before the trial court and clearly and articulately stating the State's position regarding

the matter at hand." Carter, 2014 Il App (1st) 122613, ¶ 23.

¶ 46 The State urges us to affirm in the interests of judicial economy. However, this court has

previously rejected this argument, stating: "Judicial economy is best served when the prosecutor,

in the first instance, affirmatively spreads of record *** whether the State intends on waiving"

either the required service or its 30-day time period. Carter, 2014 Il App (1st) 122613, ¶ 24.

¶ 47 The "heads I win, tails you lose" quality of this proceeding is even more troubling when

one considers that a pro se defendant is not usually present in court for the consideration and sua

sponte dismissal of these 2-1401 petitions.

¶ 48 Defendant specifically raised the Laugharn issue in his pro se petition for rehearing,

stating: "Petitioner filed his petition pro se with the circuit court on April 8, 2013. Fourteen

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court days later, on April 26, 2013[,] the circuit court entered its sua sponte dismissal order. In

accordance with People v. Laugharn, 233 Ill. 2d 318, 909 N.E. 2d 802, 330 Ill. Dec. 780, this

court was in err[or] in it[s] decision." When the trial court denied defendant's petition for

rehearing, the trial court stated that it "sees no legal basis for the initial matter," and thus "the

Court stands on its previous ruling." (Emphasis added.) The transcript indicates that neither

defendant nor defense counsel was present to raise the Laugharn issue. Since the trial court

focused on the initial matter, it appears that the trial court did not consider defendant's Laugharn

argument because no one was there to make it.

¶ 49 Thus, I would vacate the dismissal on the grounds (1) that it was premature pursuant to

Laugharn and (2) that the trial court failed to consider the Laugharn issue specifically raised by

defendant. For these reasons, I must respectfully dissent.

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