People v. Whitney

859 N.E.2d 28, 307 Ill. Dec. 28, 368 Ill. App. 3d 678, 2006 Ill. App. LEXIS 1034

• Court: Appellate Court of Illinois
• Decided: November 7, 2006
• Docket: 2-04-0230
• Status: Published

Opinions

JUSTICE KAPALA

delivered the opinion of the court:

Defendant, Charles E. Whitney, appeals from the judgment of the circuit court of Kane County denying his postjudgment petition brought pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1401 (West 2004)). Defendant requests that we reverse the trial court’s judgment and that we remand the cause to the circuit court for further proceedings on his petition. We affirm.

I. BACKGROUND

In October 1998, defendant pleaded guilty to one count of home invasion (720 ILCS 5/12 — 11 (West 1996)) and was sentenced to 17 years’ imprisonment and 3 years’ mandatory supervised release. On July 1, 2003, defendant filed a pro se petition for postjudgment relief pursuant to section 2 — 1401 of the Code. In his petition, defendant maintained that a conflict between the day-for-day good-conduct credit in section 3 — 6—3 of the Unified Code of Corrections (730 ILCS 5/3— 6 — 3 (West 1998)) and his three-year term of mandatory supervised release (730 ILCS 5/5 — 8—1(d) (West 1998)) resulted in a void judgment in violation of his rights under the United States and Illinois Constitutions. Defendant asked the trial court to “issue a corrected mittimus of eleven (11) years, as opposed to the seventeen (17) years.” On July 18, 2003, the State filed a motion to dismiss, the sole contention of which was that the petition was filed beyond the two-year limitations period (735 ILCS 5/2 — 1401(c) (West 2004)) and, therefore, was untimely. The State’s motion did not address the merits of defendant’s petition.

On February 3, 2004, defendant appeared pro se and the court convened the proceedings as follows:

“THE COURT: 98 — C—29. People versus Charles Whitney; Counsel, for the record?

MR. SAMS [Assistant State’s Attorney]: Greg Sams.

THE COURT: Okay. Matter is up this afternoon for the Court’s ruling following a Petition that Mr. Whitney had filed pro se, seeking relief from the plea agreement that he had earlier entered into. The Prosecution then filed a Notice [sic] to Dismiss Mr. Whitney’s Petition, and the Court asked that Mr. Whitney be brought to the courtroom this afternoon for the Court’s ruling, in person.

Mr. Whitney, I’ve read the Petitionf,] I’ve done the legal research into this. Under the case law, under basic notes [sic] of fairness, you would have the right to add anything in addition that you would like me to consider. Is there anything in addition that you want to present to the Court, beside the Petition and the cases that you’ve already presented?

THE DEFENDANT: No, sir.”

Thereafter, the trial court reiterated that the “[m]atter comes before the Court for the Court’s decision and ruling on the Defendant’s Petition for Post Judgment relief pursuant to 735 ILCS, 5/2 — 1401.” The court then discussed, at some length, the characteristics of a section 2 — 1401 petition before noting that the State had moved to dismiss the defendant’s petition as untimely. In denying the motion to dismiss, the trial court observed that defendant’s petition raised a claim that the judgment was void and, therefore, the usual two-year limitations period of section 2 — 1401 was inapplicable. The trial court proceeded to “entertain the allegation under other well-settled legal analysis,” that is, the trial court ruled on the merits of defendant’s petition. The trial court analyzed the substance of defendant’s petition and found that it lacked merit. The trial court denied defendant’s petition and advised defendant of his right to appeal. Defendant filed this timely appeal challenging the manner in which the trial court disposed of his petition.

II. DISCUSSION

As a preliminary matter, we address the State’s contention that defendant’s argument is moot because he has been released from incarceration. The validity of a sentence becomes a moot question after the sentence is served. People v. Elizalde, 344 Ill. App. 3d 678, 681 (2003). Although defendant is no longer incarcerated, he is currently serving a term of supervised release that does not terminate until December 2008. A defendant’s term of supervised release is considered part of his sentence. Elizalde, 344 Ill. App. 3d at 681. Defendant’s sentencing claim, therefore, is not moot.

The State argues that, because this is a collateral action, it does not raise the same “policy concerns” that would be present if this were a direct appeal from the trial court’s sentencing order. The State neither identifies these “policy concerns” nor cites any authority to support this claim. This contention, devoid as it is of argument or citation to authority, is waived. See 210 Ill. 2d R. 341(e)(7). Accordingly, we turn to the substance of defendant’s argument on appeal.

Defendant argues that the trial court’s dismissal of his petition on the ground that it lacked merit was “fundamentally unfair” because the State’s motion to dismiss raised only timeliness concerns and so defendant “was not given notice that the merits would be at issue.” Defendant relies on two cases from this district, People v. Gaines, 335 Ill. App. 3d 292 (2002), and People v. Pearson, 345 Ill. App. 3d 191 (2003), both of which set limits on how the trial court may dispose of a section 2—1401 petition.

In Gaines, the defendant filed a section 2 — 1401 petition to which he attached an affidavit from a woman who averred that certain of her statements that were used against the defendant at trial were coerced by the police. Gaines, 335 Ill. App. 3d at 293. On the date set for hearing on the defendant’s petition, the State filed what was deemed a motion to dismiss. Gaines, 335 Ill. App. 3d at 293-94. The defense was not served with a copy before the hearing on the petition, and the trial judge who presided at the hearing was not the judge who had presided at the defendant’s trial. Gaines, 335 Ill. App. 3d at 293-94. The State argued at the hearing that the woman’s statements in her affidavit did not differ from the statements used at trial and, therefore, did not constitute newly discovered evidence. Gaines, 335 Ill. App. 3d at 294. The assistant public defender who appeared for the defendant advised the court that he was unprepared to argue against the State’s motion to dismiss, because he had received no prior notice of it. Gaines, 335 Ill. App. 3d at 294. The trial court accepted the State’s argument and granted the State’s motion. Gaines, 335 Ill. App. 3d at 295.

This process, we found, was “seriously flawed.” Gaines, 335 Ill. App. 3d at 296. We explained that, unlike a postconviction petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122 — 1 et seq. (West 2004)), “[a] section 2 — 1401 petition is akin to the complaint in a civil action, and to challenge the petition, the opponent must either move to dismiss it or file an answer.” Gaines, 335 Ill. App. 3d at 296. “[B]asic notions of fairness,” we said, “dictate that the defendant be afforded notice of, and an opportunity to respond to, any motion or responsive pleading by the State.” Gaines, 335 Ill. App. 3d at 296. We found:

“Defendant’s attorney was not given adequate notice of the motion and did not have a meaningful opportunity to respond. This was particularly unfair in this case as the State based its argument, in part, on evidence at trial even though the judge who heard the State’s motion had not presided over the trial and was not familiar with the evidence. *** [Defendant should have had an opportunity to respond to the State’s factual representations about what occurred at trial.” Gaines, 335 Ill. App. 3d at 296.

In Pearson, the trial court dismissed the defendant’s section 2 — 1401 petition without any responsive pleading from the State and without any hearing. We considered this “a complete abrogation of the adversary process” because “[bjasic notions of fairness dictate that defendant be afforded the same notice and opportunity to respond that he would have had if the State had filed a motion to dismiss.” Pearson, 345 Ill. App. 3d at 195.

Here, in contrast to Gaines and Pearson, the State filed a motion to dismiss, and defendant was afforded notice of, and an opportunity to respond to, that motion. Defendant’s contention, therefore, is not that he was denied a meaningful opportunity to address a point raised in the State’s motion, as happened in Gaines. Nor is his contention that the trial court summarily dismissed the petition, as happened in Pearson. Rather, defendant’s contention is that, because the State’s motion to dismiss claimed only that the petition was untimely, the trial court erred in dismissing the petition on the merits.

Defendant has mischaracterized the trial court’s ruling in this case as a dismissal of his section 2 — 1401 petition when, in fact, the trial court denied his petition on the merits. The record shows that at the outset of the proceeding on February 3, 2004, the trial court explained that the matter was up for a ruling on (1) defendant’s petition, and (2) the State’s motion to dismiss defendant’s petition. After offering defendant an opportunity to present any additional matters that he wanted the court to consider, the trial court once again stated that the matter was up for the court’s ruling on defendant’s petition. After explaining its rationale for rejecting the argument defendant asserted in his petition, the trial court stated, in a most positive manner, that “the Defendant’s Motion [sic] is denied.” Moreover, the trial court’s written order of February 3, 2004, provides that “[defendant’s] petition for relief under 735 ILCS 5/2 — 1401 is denied, for the reasons stated on the record.” If the trial court had acted upon the State’s motion to dismiss, as defendant suggests, the court would have entered an order granting the State’s motion rather than denying relief to defendant. In fact, the trial judge stated, “the Court is not going to dismiss the Defendant’s Petition because it was not filed in the statutory time period.”

The dissent accepts defendant’s argument, which is based upon the faulty premise that the trial court dismissed his petition. In our view, however, on February 3, 2004, the trial court conducted a simultaneous hearing on both the State’s motion to dismiss and defendant’s section 2 — 1401 petition. The result of that proceeding was the denial of the State’s motion to dismiss followed by the denial of defendant’s section 2 — 1401 petition on its merits.

On appeal, defendant does not argue that there was anything inherently wrong with conducting a simultaneous hearing on the State’s motion and his petition. This is understandable considering his mischaracterization of the trial court’s ruling. Nevertheless, any argument that the trial court erred in conducting a simultaneous hearing is waived (210 Ill. 2d R. 341(e)(7)).

Defendant also waived the simultaneous-hearing issue when he, unlike the defendant in Gaines, failed to pose any objection in the trial court. At the beginning of the proceeding on February 3, 2004, the trial court stated that the matter was up for the court’s ruling on both “a petition that [defendant] had filed pro se” and the State’s “Notice [sic] to dismiss [defendant’s] petition.” Defendant was thereby expressly put on notice that the trial court intended to rule on both matters that day. Defendant posed no objection. Additionally, before ruling on both matters, the trial court reiterated that the “[m]atter comes before the Court for the Court’s decision and ruling on Defendant’s Petition for Post Judgement relief pursuant to 735 ILCS 5/2 — 1401,” advising defendant in no uncertain terms that the court was about to address the merits of the petition. Again, defendant posed no objection. “ ‘ “An accused may not sit idly by and allow irregular proceedings to occur without objection and afterwards seek to reverse [the judgment] by reason of those same irregularities.” ’ [Citations.]” People v. Bull, 185 Ill. 2d 179, 200 (1998).

Not only did defendant not object when the trial court announced that both matters would be addressed, defendant forwent the opportunity to participate in the hearing when he declined the trial court’s offer to present evidence or further argument in support of his petition. The trial court informed defendant that “[u]nder the case law, under basic notes [sic] of fairness, you would have the right to add anything in addition that you would like me to consider” and then asked defendant, “Is there anything in addition that you want to present to the Court, beside[s] the Petition and the cases that you’ve already presented?” This was defendant’s opportunity to present evidence and to further address the merits of his petition. As indicated, defendant declined. We conclude that defendant’s express decision to stand on his petition at the hearing rather than present evidence or further legal argument, and his failure to object to the simultaneous hearing, constituted acquiescence to the joint proceeding. We note that it is permissible for a petitioner to waive any obligation a respondent may have to file an answer to a section 2 — 1401 petition. See Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill. App. 3d 416, 419 (2005).

We are mindful that defendant has argued, in a general manner, that the proceedings in the trial court were fundamentally unfair because he was not given notice that the merits would be at issue. As we explained above, at the beginning of the proceeding on February 3, 2004, the trial court informed defendant that it intended to rule on his petition that day. There is nothing in the record to indicate that defendant had prior notice of the purpose of the February 3, 2004, hearing. However, by the time he was transported to the circuit court, he had knowledge that he had filed a section 2 — 1401 petition and that the State had filed a motion to dismiss his petition. We note specifically that defendant was not advised that the only purpose for this hearing was to address the State’s motion to dismiss. In any event, on February 3, 2004, after being informed that both the State’s motion to dismiss and his petition were before the court, defendant posed no objection to any lack of prior notice and, as indicated above, acquiesced in the simultaneous proceeding.

Defendant relies heavily on Gaines to support his position. However, Gaines is inapposite. First, in contrast to the situation in Gaines, where the State’s motion to dismiss was filed on the same day it was heard, in our case the State’s motion to dismiss was filed 6V2 months before the February 3, 2004, hearing. Second, the defense in Gaines objected to proceeding with the hearing on the motion to dismiss, while in this case defendant acquiesced in the hearing. Finally, in Gaines the State’s motion to dismiss was granted, while the State’s motion to dismiss in the instant cause was denied. Gaines teaches that fundamental notions of fairness are violated where a trial court grants a motion to dismiss a defendant’s section 2 — 1401 petition and the defendant did not have adequate notice or a meaningful opportunity to be heard. Gaines, 335 Ill. App. 3d at 296. Here, however, defendant had both notice of the motion to dismiss and an opportunity to be heard on that motion, which in any event was denied.

Defendant’s acquiescence to the trial court reaching the merits of his petition is understandable in view of the fact that the argument he advanced in his petition was purely a legal one. Thus, it stands to reason that defendant deemed it unnecessary to call any witnesses or to present any other evidence at the hearing. Moreover, putting aside the merits of the argument, defendant’s pro se petition is a well-written, coherent, 12-page document complete with accurate citations to pertinent statutes and case law. Thus, it is also understandable that defendant chose to stand on the legal arguments and authorities within his petition and declined the opportunity to argue the merits further.

III. CONCLUSION

Defendant does not contend on appeal that the trial court’s analysis of the merits of his petition was deficient. In fact, defendant’s position is that the cause should be remanded without regard to the merits of the underlying claim. Consequently, having found no unfairness in the proceedings on defendant’s section 2 — 1401 petition, we affirm the judgment of the circuit court of Kane County denying defendant’s petition.

Affirmed.

CALLUM, J., concurs.