People v. Carter

2015 IL 117709

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 117709)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. KELVIN
CARTER, Appellee.

Opinion filed December 3, 2015.

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(2006) (unpublished order under Illinois Supreme Court Rule 23)) and this court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(unpublished order under Illinois Supreme Court Rule 23)) and this court denied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

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 intended the pleading as a petition pursuant to section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2012)). The docket and transcript for that
date show that the case was scheduled for “court review” on July 10. On July 10,
the court dismissed the petition on the merits. The cover page of the transcript of
proceedings indicates that an assistant State’s Attorney was present in the
courtroom when the court announced that defendant’s “2-1401 petition is
dismissed,” but the transcript does not show that the assistant State’s Attorney took
any action. In a written order entered July 10, the circuit court recited the law
applicable to section 2-1401 proceedings and concluded with this observation and
finding:

“[P]etitioner contends that his firearm enhancement is void because the court
did not find him guilty of personally discharging the firearm but only found him
guilty of first degree murder. However, petitioner was found guilty of count
two of his indictment which states that Kelvin Carter, without lawful
justification shot and killed Edmond Allen while armed with a firearm,
knowing that such an act created a strong probability of death or great bodily
harm to Edmond Allen.” (Emphasis in original.)

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

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

¶8 The appellate court noted that the State’s response was two-fold. First, because
an assistant State’s Attorney was in court at the time that the petition was
dismissed, and thus had actual knowledge of the petition, the State waived
improper service by not objecting to it. As such, the petition was ripe for
adjudication when it was dismissed for failure to state a cause of action more than
30 days after it was received by the court. Id. ¶¶ 9, 16. Second, alternatively, the

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 State suggested, “it is not clear from the record on appeal that defendant’s service
did not comply with the requirements of Rule 105(b).” Id. ¶ 13.

¶9 The appellate court rejected the latter suggestion, stating: “the record clearly
shows” that petitioner’s proof of service indicated “he attempted to serve the State
by placing the documents in the institutional mail at the Menard Correctional
Center *** for mailing through the United States Postal Service.” (Internal
quotation marks omitted.) The appellate court continued, in a conclusive and
dispositional vein: “There is nothing in the record that contradicts this information,
nor does either party offer anything ***.” Id. ¶ 14.

¶ 10 Then, without speaking to the merits of defendant’s petition—which defendant
apparently never argued—or the substance of the circuit court’s ruling thereon, the
appellate court reversed and remanded for further proceedings, holding that the
circuit court erred in prematurely dismissing petitioner’s section 2-1401 petition
sua sponte before the petition had been properly served on the State. Id. ¶ 25. The
court reasoned that result was dictated by our decisions in People v. Vincent, 226
Ill. 2d 1 (2007), and People v. Laugharn, 233 Ill. 2d 318 (2009):

“Because Laugharn and Vincent demand that we base our determination as to
whether the circuit court prematurely sua sponte dismissed a section 2-1401
petition by looking at the date of service, it necessarily follows that proper
dismissal, either with or without prejudice, cannot be achieved without service
***. See Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989); Laugharn, 233 Ill. 2d at 323-24;
Vincent, 226 Ill. 2d at 5.” 2014 IL App (1st) 122613, ¶ 25.

¶ 11 Having rejected the State’s arguments in opposition to reversal, the appellate
court determined that the appropriate disposition was to vacate the judgment of the
circuit court—which had found defendant’s petition lacked merit—and remand for
further proceedings (id. ¶ 26).

¶ 12 ANALYSIS

¶ 13 We review de novo the dismissal of a section 2-1401 petition (Vincent, 226 Ill.
2d at 18), the interpretation of court rules (In re Thomas, 2012 IL 113035, ¶ 56),
and questions of law generally (People v. Williams, 188 Ill. 2d 365, 368-69 (1999)).

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¶ 14 At the outset, we note that Illinois Supreme Court Rule 106 governs the
methods of notice to be used for petitions filed pursuant to section 2-1401,
providing that “[n]otice of the filing of a petition under section 2–1401 *** shall be
given by the same methods provided in Rule 105.” Ill. S. Ct. R. 106 (eff. Aug. 1,
1985). Rule 105(b) states that notice may be served, inter alia, by certified or
registered mail. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Once notice has been served,
the responding party has 30 days to file an answer or otherwise appear. Ill. S. Ct. R.
105(a) (eff. Jan. 1, 1989).

¶ 15 As appellate panels have aptly noted, the notice requirements of Rule 105 are
designed to prevent a litigant from obtaining new or additional relief without first
giving the defaulted party a renewed opportunity to appear and defend. People v.
Saterfield, 2015 IL App (1st) 132355, ¶ 20. “ ‘The object of process is to notify a
party of pending litigation in order to secure his appearance.’ ” People v. Kuhn,
2014 IL App (3d) 130092, ¶ 11 (quoting Professional Therapy Services, Inc. v.
Signature Corp., 223 Ill. App. 3d 902, 910 (1992)). Some courts in this context
have suggested, in construing the sufficiency of the notice, that courts should focus
on whether the object and intent of the law were substantially attained rather than
the formal and technical requirements. See id.; People v. Ocon, 2014 IL App (1st)
120912, ¶ 23.

¶ 16 In Vincent—where neither proper service on the State nor actual notice were at
issue—this court held that sua sponte dismissals of section 2-1401 petitions are
proper, on the merits, where the State does not answer or otherwise plead within the
applicable 30-day period. In Vincent, we stated that the State’s failure to answer the
petition, “constituted an admission of all well-pleaded facts *** and rendered
Vincent’s petition ripe for adjudication.” Vincent, 226 Ill. 2d at 9-10.

¶ 17 Subsequently, in Laugharn—where neither proper service on the State nor
actual notice were at issue—we held that petitioner’s section 2-1401 petition was
not “ripe for adjudication.” (Internal quotation marks omitted.) Laugharn, 233 Ill.
2d at 323. Noting that “[o]nly seven days had passed since [the petition’s] filing,”
this court found that “[t]he circuit court’s dismissal short-circuited the proceedings
and deprived the State of the time it was entitled to answer or otherwise plead.” Id.
In short, this court acknowledged that the 30-day period for response, specified in
Rule 105, was for the State’s benefit, and that the circuit court’s sua sponte ruling
on the petition before the State had an opportunity to respond constituted the

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 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

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 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 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
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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 defendant’s service upon the State was deficient. Though the regular return receipt
for certified mail—for example—is sufficient proof of service by certified mail
(see In re Dar C., 2011 IL 111083, ¶ 63 (citing 705 ILCS 405/2-16(1) (West
2006))), the absence of such a receipt in the record does not affirmatively establish
that service by certified mail was not accomplished, as it is up to the sender to file
the receipt or not. In this case, the matter of service—adequate or deficient—was
simply not addressed by the parties in the circuit court.

¶ 24 What we can discern from the record is that well over 30 days had passed since
the filing of defendant’s petition when the circuit court dismissed defendant’s
petition, sua sponte, on the merits. Defendant’s pleading was stamped received by
the circuit clerk on May 15, 2012, docketed on May 29, 2012, and dismissed on
July 10, 2012. An assistant State’s Attorney was in attendance and voiced no
objection when the circuit court announced, in open court, that defendant’s “2-1401
petition is dismissed.” A written order was then prepared and filed that same day,
outlining the court’s reasoning for the dismissal. No party filed a posttrial motion.
A notice of appeal was timely filed by defendant listing, on the notice of appeal, the
Cook County State’s Attorney as a recipient thereof. In sum, nothing in this record
affirmatively establishes that the State was not given proper notice or that the
circuit court’s sua sponte dismissal was premature. It was defendant’s burden, as
the appellant below, to so show. On this record, we must presume the circuit court’s
order was rendered in accordance with the applicable law.

¶ 25 To be sure, we encourage circuit courts to ascertain and note of record the date
the State was properly served, and to time any sua sponte rulings on pending
petitions accordingly. That said, however, any section 2-1401 petitioner who seeks
to use, on appeal, his own error, by way of allegedly defective service, in an effort
to gain reversal of a circuit court’s sua sponte dismissal of his or her petition on the
merits, must affirmatively demonstrate the error via proceedings of record in the
circuit court.

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

¶ 27 Appellate court judgment reversed.

¶ 28 Circuit court judgment affirmed.

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