People v. Ryburn

NO. 4-04-0836 Filed 2/7/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
THOMAS V. RYBURN, ) No. 98CF1062
Defendant-Appellant. )
) Honorable
) G. Michael Prall,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In July 2004, defendant, Thomas V. Ryburn, filed a

petition under section 2-1401 of the Code of Civil Procedure (735

ILCS 5/2-1401 (West 2002)), seeking to set aside his multiple

October 1999 guilty pleas. In August 2004, the trial court sua

sponte dismissed defendant's petition as frivolous and without

merit. Defendant appealed, arguing, in part, that the trial

court's sua sponte dismissal of his section 2-1401 petition was

error. Specifically, defendant argued that the trial court did

not have the authority to take that action. This court disagreed

and affirmed with one judge dissenting. People v. Ryburn, 362

Ill. App. 3d 870, 841 N.E.2d 1013 (2005) (Ryburn III).

On September 26, 2007, the Supreme Court of Illinois

denied defendant's petition for leave to appeal but directed this

court to vacate our judgment and to reconsider in light of People

v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007). People v.

Ryburn, 225 Ill. 2d 666-67, 873 N.E.2d 932 (2007) (nonprece-

dential supervisory order on denial of petition for leave to
appeal). In accordance with the supreme court's directions, we

vacate our prior judgment and reconsider it in light of Vincent

to determine whether a different result is warranted. After

doing so, we again affirm.

I. BACKGROUND

In October 1998, the State charged defendant with four

counts each of aggravated criminal sexual assault, criminal

sexual assault, and aggravated criminal sexual abuse (720 ILCS

5/12-14(a)(1), 12-13(a)(1), 12-16(d) (West 1998)).

At defendant's October 1999 guilty-plea hearing,

defense counsel informed the trial court that defendant had

agreed to plead guilty to three counts of aggravated criminal

sexual assault (720 ILCS 5/12-14(a)(1) (West 1998)). In ex-

change, the State agreed (1) to dismiss the remaining nine counts

and other unrelated charges against defendant, (2) to recommend

an aggregate sentence totaling no more than 60 years, and (3)

that the court would not impose a fine on defendant.

The State provided the following factual basis for

defendant's guilty pleas. On September 8, 1998, defendant

appeared at the victim's residence and asked to use the tele-

phone. The victim, who was acquainted with defendant, allowed

him to come inside. After looking through a telephone book for a

few minutes, defendant sneaked up behind the victim, held a knife

to her throat, and repeatedly sexually assaulted her.

The trial court accepted the State's factual basis.

The court also fully admonished defendant, outlined the terms of

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the plea agreement, and determined that he was knowingly and

voluntarily pleading guilty. The court then accepted defendant's

guilty pleas.

In November 1999, the trial court sentenced defendant

to 20 years in prison on each count of aggravated criminal sexual

assault, with those sentences to be served consecutively (730

ILCS 5/5-8-4(a) (West 1998)). The court also ordered that

defendant pay the statutorily mandated $100 sexual-assault fine

(730 ILCS 5/5-9-1.7(b)(1) (West 1998)). That same day, the

circuit clerk imposed the statutorily mandated $25 fine under the

Violent Crime Victims Assistance Act (725 ILCS 240/10 (West

1998)).

In December 1999, defendant filed a motion to withdraw

his guilty pleas, alleging that he did not enter them knowingly

and voluntarily. Following a February 2000 hearing, the trial

court denied the motion.

Defendant appealed, arguing, inter alia, that (1)

section 5-8-4(a) of the Unified Code of Corrections (730 ILCS

5/5-8-4(a) (West 1998)), requiring the imposition of consecutive

sentences in his case, was unconstitutional under Apprendi v. New

Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000);

and (2) the $25 fine imposed under the Violent Crime Victims

Assistance Act was improper because the circuit clerk, not the

trial court, imposed it.

This court affirmed defendant's convictions and 60-year

aggregate sentence, vacated the $25 Violent Crime Victims Assis-

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tance Act fine, and remanded for the trial court, not the circuit

clerk, to impose that fine. People v. Ryburn, No. 4-00-0117

(June 22, 2001) (unpublished order under Supreme Court Rule 23)

(Ryburn I). In January 2002, the trial court entered an order

imposing a $25 fine under the Violent Crime Victims Assistance

Act (725 ILCS 240/10 (West 1998)).

In June 2002, defendant pro se filed a petition for

relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1

through 122-8 (West 2002)). The petition raised the following

constitutional claims: (1) defendant received ineffective

assistance of guilty-plea counsel in that counsel (a) failed to

raise a speedy-trial claim, (b) failed to call certain alibi

witnesses, (c) failed to present evidence to corroborate the

purported alibi, (d) failed to obtain police records that alleg-

edly showed that the victim had a motive to fabricate her com-

plaint against defendant, and (e) stipulated that defendant was

fit to plead guilty; and (2) he received ineffective assistance

of appellate counsel because counsel failed to raise on appeal

the aforementioned issues. Later in June 2002, the trial court

dismissed the petition as frivolous and patently without merit

under section 122-2.1(a)(2) of the Post-Conviction Hearing Act

(725 ILCS 5/122-2.1(a)(2) (West 2002)). Defendant filed a notice

of appeal, and the trial court appointed the office of the State

Appellate Defender (OSAD) to serve as his counsel. In March

2003, OSAD moved to withdraw as counsel. (This court later

granted OSAD's motion to withdraw as counsel on appeal of the

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trial court's dismissal of defendant's postconviction petition

and affirmed that court's judgment. People v. Ryburn, No. 4-02-

0552 (July 29, 2003) (unpublished order under Supreme Court Rule

23) (Ryburn II).)

Also in March 2003, defendant filed a "Petition for a

New Trial," in which he alleged that he should not have to serve

85% of his 60-year aggregate prison sentence because the sentence

was based on "tainted/perjuried [sic]" testimony in an unrelated

case. Later that month, the trial court dismissed the petition,

upon determining that the court lacked jurisdiction to consider

it.

In April 2003, defendant filed a motion entitled

"Petition to Chief Administrative Judge for Rehearing En Banc

with Substitution of Judge and Conduct Review of Judges." Later

that same month, the trial court dismissed the petition as

frivolous, upon finding, inter alia, that defendant had been

"engaging in a pattern of filing frivolous pleadings without

factual or legal merit[,] all with the apparent end of obtaining

relief from his convictions and sentences in [McLean County case

No. 98-CF-1062]."

In July 2004, defendant filed the section 2-1401

petition at issue (735 ILCS 5/2-1401 (West 2002)), seeking to set

aside his October 1999 guilty pleas on the following grounds:

(1) he received ineffective assistance of guilty-plea counsel in

that counsel (a) "fraudulently concealed [the trial court's]

violation of the guilty plea" agreement when the court imposed

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fines and ordered that defendant pay restitution, (b) violated

several rules of professional conduct, (c) did not consult with

him about what issues he wanted to raise in his motion to with-

draw his guilty pleas, (d) filed a Supreme Court Rule 604(d) (188

Ill. 2d R. 604(d)) certificate that was "suspect," (e) "fraudu-

lently concealed" defendant's medical records, mental-health

history, and certain exculpatory evidence, (f) failed to argue

that his consecutive sentences were improper, and (g) failed to

argue defendant's "legal innocents [sic]" in his motion to

withdraw his guilty pleas; (2) the trial court violated several

supreme court rules by failing to provide him with a free tran-

script of proceedings; and (3) his consecutive sentences violated

Apprendi, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348.

In August 2004, the trial court sua sponte dismissed

defendant's section 2-1401 petition, upon finding that it was

frivolous and without merit. Defendant appealed, and as earlier

stated, this court affirmed. Ryburn III, 362 Ill. App. 3d 870,

841 N.E.2d 1013.

In that opinion, we rejected defendant's argument that

his guilty pleas were void based on the trial court's imposition

of $125 in fines, deeming that argument "ridiculous." Ryburn

III, 362 Ill. App. 3d at 875, 841 N.E.2d at 1017. Citing People

v. Bramlett, 347 Ill. App. 3d 468, 472-73, 806 N.E.2d 1251, 1254-

55 (2004), we also concluded that the trial court possessed the

authority sua sponte to dismiss defendant's section 2-1401

petition if it finds that the petition is frivolous and without

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merit.

This court also noted that defendant's claim on appeal

that his guilty pleas were void not only had no merit, but also

that he failed to raise it in the section 2-1401 petition that

was before us on appeal. Ryburn III, 362 Ill. App. 3d at 877,

841 N.E.2d at 1018.

In response to defendant's contention that he was not a

"vexatious or frivolous litigator," this court wrote the follow-

ing:

"In addition, defendant's assertion that

he is not a vexatious litigant who inappro-

priately burdens the court system with

nonmeritorious litigation is belied by (1)

the sheer number of pleadings he has filed

since his October 1999 guilty pleas in this

case and (2) the trial court's explicit find-

ing in its April 2003 order that defendant

had been 'engaging in a pattern of filing

frivolous pleadings without factual or legal

merit[,] all with the apparent end of obtain-

ing relief from his convictions and sentences

in [McLean County case No. 98-CF-1062].'

Defendant continued his practice of filing

frivolous pleadings when he filed his July

2004 section 2-1401 petition now before us.

Indeed, this defendant could be the 'poster

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 boy' for why trial courts should have the

inherent authority to sua sponte dismiss

section 2-1401 petitions that are frivolous

and without merit. Denying trial courts this

authority would require them to squander

scarce judicial resources. Accordingly, we

conclude that the trial court appropriately

exercised its authority by sua sponte dis-

missing defendant's petition." Ryburn III,

362 Ill. App. 3d at 877, 841 N.E.2d at 1018-

19.

As earlier stated, the Supreme Court of Illinois denied

defendant's petition for leave to appeal in Ryburn III but

directed this court to vacate our judgment and to reconsider in

light of People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007).

That reconsideration follows.

II. THE SUPREME COURT'S DECISION IN VINCENT

The Third District Appellate Court recently had occa-

sion to analyze the decision of the supreme court in Vincent. In

People v. Malloy, 374 Ill. App. 3d 820, 821-22, 872 N.E.2d 140,

141-42 (2007), the Third District wrote the following:

"In the recent case of People v. Vin-

cent, our supreme court stated that a trial

court's dismissal of a petition for relief

from judgment on its own motion may properly

be characterized as either a grant of judg-

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ment on the pleadings in favor of the State

or a dismissal of the petition with prejudice

for failure to state a cause of action.

People v. Vincent, 226 Ill. 2d 1, 11-12[, 871

N.E.2d 17, 25-29] (2007). Such a dismissal

is subject to de novo review on appeal.

Vincent, 226 Ill. 2d at [14, 871 N.E.2d at

26]. Thus, we will apply a de novo standard

of review to the dismissal in the present

case. See Vincent, 226 Ill. 2d at [15-19,

871 N.E.2d at 25-29].

Turning to the merits of defendant's

argument, defendant first asserts that the

trial court may not dismiss a petition for

relief from judgment, on its own motion,

without first providing defendant with notice

and an opportunity to be heard. Our supreme

court addressed that exact issue in Vincent

and ruled to the contrary. Vincent, 226 Ill.

2d at 13-14[, 871 N.E.2d at 25-27]. The

trial court's authority to take such action

comes from the Illinois pleading requirements

and from well-settled principles of civil

practice and procedure. Vincent, 226 Ill. 2d

at 13-14[, 871 N.E.2d at 26]. *** Our su-

preme court has noted that the jurisdiction

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 of the lower courts to restrain the mainte-

nance of vexatious or harassing litigation is

well established. People ex rel. Lake County

Bar Ass'n v. Circuit Court[ of Lake County],

31 Ill. 2d 170, 173-174, 201 N.E.2d 109, 111

(1964). In reaffirming the trial court's

authority to dismiss suit under civil prac-

tice principles, our supreme court in Vincent

pointed out that adequate safeguards exist to

protect a litigant from an erroneous dis-

missal. Vincent, 226 Ill. 2d at 13[, 871

N.E.2d at 25]. A litigant may file a motion

for rehearing or an appeal or both. Vincent,

226 Ill. 2d at 13[, 871 N.E.2d at 25-26].

Based upon the supreme court's ruling in

Vincent, the law is now settled in Illinois

that the trial court may dismiss a petition

for relief from judgment on its own motion

without first providing the defendant with

notice and an opportunity to be heard. Vin-

cent, 226 Ill. 2d at 13-14[, 871 N.E.2d at

25-27]."

We agree with the Third District's analysis and further

adhere to the views we expressed in Ryburn III, except, of

course, to the extent that those views conflict with Vincent.

Specifically, we acknowledge, as our dissenting colleague points

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out, that the supreme court disagreed with our statement that

trial courts possess the authority to summarily dismiss section

2-1401 petitions that are frivolous and without merit, noting

that "summary dismissals" are not recognized under the Code of

Civil Procedure. Vincent, 226 Ill. 2d at 11, 871 N.E.2d at 24.

This acknowledgment, however, does not change our

ultimate conclusion. Consistent with the standard set forth by

the supreme court for reviewing a trial court's sua sponte

dismissal of a section 2-1401 petition, we conclude that the

judgment of the trial court is correct because the allegations of

defendant's petition wholly fail to state a cause of action. As

a court of review, we review judgments, not the reasons therefor.

See People v. DeBerry, 372 Ill. App. 3d 1056, 1058, 868 N.E.2d

382, 383 (2007) (where this court held that "we will affirm the

trial court on any basis supported by the record even if the

trial court did not mention its reasons or reasoned

incorrectly"). Accordingly, even though (as the supreme court

held in Vincent) the reasons underlying the trial court's judg-

ment in this case were flawed, we can--and will--affirm if the

record otherwise shows that judgment to be soundly based. That

rule clearly applies here.

The primary focus of the dissent appears to be its

disagreement with the decision of the supreme court that the

trial court should possess the authority to sua sponte dismiss a

section 2-1401 petition. Nonetheless, Vincent resolves that

issue, and our job on this appeal is to apply supreme court

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doctrine as set forth in Vincent.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

MYERSCOUGH, J., concurs.

COOK, J., dissents.

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 JUSTICE COOK dissenting:

I respectfully dissent and would reverse and remand.

Is there any difference between summary dismissal of a

petition as "frivolous or patently without merit" under the Post-

Conviction Hearing Act and dismissal for failure to state a cause

of action under section 2-615 of the Code of Civil Procedure? In

civil cases, will we now routinely see cases summarily dismissed

as frivolous and without merit? I suggest that section 2-615

dismissals are much more limited than "summary dismissals," and

that the supreme court in Vincent did not simply engage in

semantics, allowing "summary dismissals" just under another name.

In Vincent, the supreme court rejected the argument

that special rules should be applied in ruling on section 2-1401

petitions in criminal cases. "This court has consistently held

that proceedings under section 2-1401 are subject to the usual

rules of civil practice." Vincent, 226 Ill. 2d at 8, 871 N.E.2d

at 23. In particular, the court rejected the argument that a

section 2-1401 petition could be dismissed under the provisions

of the Post-Conviction Hearing Act, which allows summary dis-

missal on the basis that "the petition is frivolous or is pa-

tently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2004).

"'Summary dismissals' are not recognized under the Code of Civil

Procedure in general or section 2-1401 in particular." Vincent,

226 Ill. 2d at 11, 871 N.E.2d at 24. Exceptions should not be

created "based solely on the criminal-defendant status of the

petitioner [citation] or on arbitrary notions of docket control

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[citation]." Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26.

Under civil practice rules, a section 2-1401 petition

may be challenged by a motion to dismiss for its failure to state

a cause of action. Vincent, 226 Ill. 2d at 8, 871 N.E.2d at 23.

Judgment on the pleadings may also be appropriate. See 735 ILCS

5/2-615(e) (West 2004) ("Any party may seasonably move for

judgment on the pleadings"). Judgment on the pleadings is often

entered in favor of a plaintiff if the answer admits or fails to

adequately deny any essential allegation of the plaintiff's cause

of action. 3 R. Michael, Illinois Practice Series §27.2, at 493-

94 (1989) (Civil Procedure Before Trial). "[J]udgment on the

pleadings in favor of a defendant who has never filed an answer

*** is the 'functional equivalent of dismissing the complaint for

failure to state a cause of action.'" Vincent, 226 Ill. 2d at

10, 871 N.E.2d at 24, quoting Mitchell v. Norman James Construc-

tion Co., 291 Ill. App. 3d 927, 932, 684 N.E.2d 872, 877 (1997).

"Case law has long recognized that such a judgment, whether it be

characterized as a judgment on the pleadings or a dismissal, can

be entered by the court notwithstanding the absence of a respon-

sive pleading." Vincent, 226 Ill. 2d at 10, 871 N.E.2d at 24;

cf. Fed. R. Civ. P. 12(c) (28 U.S.C. app. Fed R. Civ. P. 12(c)

(2000)) (after the pleadings are closed--but early enough not to

delay trial--a party may move for judgment on the pleadings).

"A motion for judgment on the pleadings is sometimes

used instead of the proper motion in order to attempt to give the

determination the finality that a judgment implies." 3 R.

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Michael, Illinois Practice Series §27.2, at 495 (1989) (Civil

Procedure Before Trial). "The difficulty is that there appear to

be cases where the use of the motion for judgment on the plead-

ings, instead of a motion to strike and dismiss, has resulted in

the loss of the plaintiff's right to seek leave to amend after

the complaint was held to be defective." 3 R. Michael, Illinois

Practice Series §27.2, at 496 (1989) (Civil Procedure Before

Trial).

Vincent held that a section 2-1401 petition may be

dismissed sua sponte, in both civil and criminal cases, and that

adequate procedural safeguards exist to prevent erroneous sua

sponte terminations. A section 2-1401 petitioner whose petition

has been disposed of by the court sua sponte may file a motion

for rehearing and may have the right to amend the petition.

Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25. The decision of

the trial court must be reviewed de novo in the appellate court.

Vincent, 226 Ill. 2d at 18, 871 N.E.2d at 28.

Motions to dismiss with prejudice under section 2-615

are granted cautiously. In civil cases, a pleading need only

assert a legally recognized cause of action and plead facts that

bring the particular case within that cause of action. A motion

to dismiss is granted on the pleadings, not on the underlying

facts. The question presented by a section 2-615 motion is

whether the allegations of the complaint, when viewed in a light

most favorable to the plaintiff, are sufficient to state a cause

of action upon which relief can be granted. Chandler v. Illinois

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Central R.R. Co., 207 Ill. 2d 331, 348, 798 N.E.2d 724, 733

(2003) (facts alleged were sufficient to raise a duty). No

complaint is bad in substance which reasonably informs the

defendant of the nature of the claim that he or she is called

upon to meet. Chandler, 207 Ill. 2d at 348, 798 N.E.2d at 733.

"[A] motion to dismiss should not be granted unless it clearly

appears that no set of facts could ever be proved that would

entitle the plaintiff[s] to recover." Ostendorf v. International

Harvester Co., 89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).

The trial court here entered a three-page written

order, finding that defendant's claims were totally lacking in

merit. Ryburn III, 362 Ill. App. 3d at 877, 841 N.E.2d at 1018.

The trial court, however, did not determine that the allegations

of the section 2-1401 petition were insufficient, as a matter of

law, to state a claim. Vincent, 226 Ill. 2d at 10, 871 N.E.2d at

24. Instead, the trial court applied the summary dismissal

approach of the Post-Conviction Hearing Act, finding that the

petition was "frivolous and without merit." Ryburn III, 362 Ill.

App. 3d at 874, 841 N.E.2d at 1016; 725 ILCS 5/122-2.1(a)(2)

(West 2004). The majority does not attempt to justify the

dismissal on the basis that the allegations here could never

state a legal basis for the relief requested. The allegations of

ineffective assistance in failing to object to the imposition of

fines, failure to consult with defendant, and failure to argue

that consecutive sentences were improper at least appear to

allege a cause of action, however weak on the merits. Defendant

was unaware that he was entitled to file a motion for rehearing

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or a motion to amend his petition.

Whatever we do in this case can be done in any civil

case. It is important that we carefully follow the rules of

civil procedure. We should not allow special rules, developed to

address a problem in the criminal law system, to affect the

handling of civil cases.

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