## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Nitz , 2012 IL App (2d) 091165

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. HERMAN L . NI TZ , J R., Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-09-1165

Filed Rehea ringdenied J une 18, 2012

August 1, 2012

Held (Note : This syl lab us
con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e
c o n v e n i e n c e o

f t h e
rea der

. ) The trial court’ s s u a sponte dismiss al of defe ndant’s petition under section 2-1401 of the Code of Civil Procedur e seeking rel i ef from his theft conviction was aff

irm ed with the modification that the dismiss al

wa s without prejudice
, since there was no proof of service on the S t at e and the State wa s not give n notice of the filing.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County , No. 07-CF- 2821; the Hon. Geor g e J. Bakalis, Judge, pr esiding

.

J udg ment Affir med as modified.Counsel on

Appea l Thomas A. L ilien and J ack Hildebra nd, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Robert B. Be rlin, State’s Attorney , of Wheaton (L awr ence M. Ba uer and J oan M. Kripke, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of counse l), for the People.

Panel J USTI CE Z ENOF F de livered the judgme nt of the cour t, with opinion. J ustices Hutchinson and Hudson concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Her

man L

. Nitz, J r., appea ls from the trial court’s sua sponte dismiss al of his petition for relief from judgme nt under section 2-1401 of the Code of Civil Procedur e (Code) (735 I L CS 5/ 2-1401 (West 2008)). We a ffirm a s modified.

¶ 2 I . BA CKGROUND ¶ 3 In November 2008, defe ndant was convicted of theft (720 I L CS 5/16-1(a) (West 2006)) and sente nced to 12 year s’ incar cer ation. An excessive-se ntence arg ument was re

jected on direc t appea l. People v. Nitz , No. 2-09-0178 (2010) (unpublished order under Supreme Court Rule 23). ¶ 4 On September 2 3 , 2009, defe ndant filed a notarized petition for relief from judg ment 1 under section 2-1401, raising numerous issues. In later filings, he ra i s ed additional issues, including a

claim that he wa s improperly sentenc ed as a

Class X offe nder. ¶ 5 Def

endant pr ovided a document stating tha t he had c aused the section 2-1401 pe tition, exhibi ts, and other supporting documents to be filed with the circ uit cler k. In this document, entitled “proof

/cer tificate of s erv i ce–notice of filing and verific ation by cer tification,” defe ndant verifie d his petition under s ection 1-109 of the Code (735 I L CS 5/1-109 (West 2008)) but his signa

ture on the doc ument was not nota rized. Def

endant did not g ive notice to the State. Whil e defe ndant’s proof of service shows th at h e m ai led the petition to the Du Pag e County

circ uit clerk for

filing, the re is no proof

of ser vice on the State. ¶ 6 On October 21, 2009, the matter was t ak en up by the trial court. An assistant State’s Attorney was p resent but did not participa te beyond stating his name. The trial court

T he Sta te cl ai m s in it s bri ef tha t the pet it ion was “no t pro per ly not ar ized.” But the pet it ion 1 bea rs a n ota ry st amp date d Se pte m ber10, 2009

.
-2-dismiss ed the peti t i o n s ua sponte , finding that defe ndant did not prese nt any newly

discovere d or additional evidenc e and that the claims wer e previously addre ssed during trial and on posttrial motions. The court also found t hat d ef en d ant was properly sentenc ed as a Class X offe nder. The court memorialized its finding s and decision in a written memorandum. De fenda

nt appea ls.

¶ 7 I I . ANALYSI S ¶ 8 Def

endant’ s sole contention is that People v. Laugharn
, 233 I ll. 2d 318 (2009), prohibits the sua sponte dismiss al of a defe ndant’s section 2-1401 petition befor e the expiration of the 30-day period in which the State has time to answe r, beca use, until the expiration of that 30- 2 day period, the c ase is not ripe f or adjudication. ¶ 9 Section 2-1401 p r ovides a compre hensive, statutory proce dure that allows for the vac atur of a final judgme nt olde r than 30 day s. Mills v

. McD uffa
, 393 I ll. App. 3d 940, 945 (2009). The petition must be filed not later than two y ear s following the entry of judgme nt, excluding time during which the petitioner is under a leg al disability or duress or the g round for relief is fra udulently conce aled. Mills
, 393 I ll. App. 3d at 945-46. The petition must be filed in the

same proceed i n g i n which the judgme nt was enter ed, but it is not a continuation of that proce eding

. 735 I L CS 5/2-1401(b) (West 2008). The petition must be supported by aff idavit

or other appropr iate showing as to matters not contained in the rec ord. 735 I L CS 5/2-1401(b) (West 2008). All parties to the petition shall be notified as provided by rule. 735 I L CS 5/2- 1 4 0 1(b) (West 2008). The rule ref err ed to in section 2-1401(b) is I llinois Supreme Court Rule 106 (ef

f. Aug

. 1, 1985 ), which provides that notice of the filing of a section 2-1401 petition shall be g iven b y t h e s ame methods provided in I llinois Supreme Court Rule 105 (ef f. J an. 1, 1989) for g iving notice of additional relief to parties in defa ult. Lofendo v. Ozog , 118 I ll. App. 3d 237, 240 (1983). Rule 105 provides that the notice shall be dire cted to the party and must be served either by summons, by prepa id cer tified or reg istered mail, or by publication. I l l

. S

. Ct. R. 105 (ef f. J an. 1, 1989). The notice must state that a judgme nt by defa ult may be taken ag ainst the party unless he files an an s we r o r otherwise files an appea ranc e wi t h i n 3 0 d ay s afte r service

. I ll. S. Ct. R. 105 (ef f. J an. 1, 1989). In this case , beca use the trial c ourt dismissed the petition based on the plea ding alone, our r eview is de

novo

. Mills , 393 I ll. App. 3d at 947. ¶ 10 We begin o u r d i s cu ssion with People v. Vincent , 226 I ll. 2d 1 (2007), in which our supreme c ourt fra

med the issue thusly : “The question raised in this case is whether a trial court may dispose of a properly

serve d section 2-1401 petition without benef it of responsive pleading s and wi t hout g iving the pet i t i o n er notice of the i mpending ruling and the opportunity to addre ss the court prior

to the ruling .” (Empha sis added.) Vincent , 226 I ll. 2d at 5. Procee dings under section 2-1401 are subject to the usual rules of civil prac tice. Vincent , 226

I n his bri ef

, def end ant ar gues tha t a dis m is sal is pre m ature if it occ ur s w i t hin 30 days of 2

w hen the pet it ion is fi le d. T his is erron eou s, as the 30- day per iod for the fi li ng of a r e s p o n s i ve ple adi ng comm enc es as of the dat e of se rvice . I ll . S. Ct . R. 10 5(a ) ( ef f. J an. 1, 19 89)

.
-3-I ll. 2d at 8. I f the responde nt doe s not a nswer the petition, it constitutes an admission of all well-plea ded fac ts, and t h e trial court may decide the case on the pleading s, aff idavits, exhibi ts, an d s upporting materia l befor e it, including the rec ord of the prior proce eding s. Vincent , 226 I ll. 2d at 9. The court i n V i n ce n t h el d that the State’s failure to answe r the petition constituted an admission of all well-ple aded f acts a nd “re ndere d [t he defenda nt’s] petition ripe for a djudication.” Vincent , 226 I ll. 2d at 10. ¶ 11 In Laugharn
, the principl es s et fo rth in Vincent wer e expanded to addre ss the issue of ripene ss wh en a s ua sponte dismiss al occur s befor e 30 day s have passed from the time of service

. There
, the defe ndant filed a section 2-1401 petition, and the trial court dismiss ed it

sua sponte as untimely filed, but the 30-day period had not expired and the State had not filed an answe r. Laugharn
, 233 I ll. 2d at 323. On appea l, the court held that the dismiss al of the petition be fore the expiration of the 30-day period in which the State could answe r was premature. Laugharn , 233 I ll. 2d at 323. The court noted t hat, while Vincent allowed f

or a
sua sponte dismiss al of a section 2-1401 petition, it did not authorize such a dismiss al befor e the expiration of the 30-day period. The court in Laugharn thus conclude d that the premature dismiss al cut short–“short-c ircuited”–the time in which the State could answe r or otherwise plead. Laugharn , 233 I ll. 2d at 323. ¶ 12 In the prese nt case , defe ndant argues without much discussion that this case is ide ntical to Laugharn and that we must reve rse and rema nd for further proce eding s. We disag ree

. The

cruc ial fac t in this c ase is that de fenda nt did not g ive the State notice pursuant to section 2- 1401(b). The court in Vincent expressly framed the issue with respe ct to a “prope rly serve d section 2-1401 petition.” Vincent , 226 I ll. 2d at 5. Whil e the court in L a u gh a r n did not express that the State had been serve d, the discussion indicates that it had, beca use the court

n o t ed t h at the 30-day period for filing an answe r does not beg in to run until service h as
occur red. I f the State in our case had waived service and appea red, then t h e V

i n ce nt and Laugharn principles would apply . But no such waiver occ urre d. Consequently , the 30-da y period is irrele vant, beca

use it will never com m ence

. A rema nd “for further proce eding s” would be meaning less, beca use no “fur

ther p roce eding s” will occur

. The State will never
answe r or move to dismiss, and the State cannot be defa ulted, beca

use it was never serve d. Thus, rema

nd would place the trial court in the position of being able to do nothing while the

case rema ins on its docket permane ntly

. ¶ 13 He re , d i smissal was proper , beca use the trial court did not have b ef o re i t a p ro p er pleading upon which to g ra nt section 2-1401 relief

. Section 2-1401(b) require s that all parties to the petition be g iven notice. Fa ilure to g ive notice results in a defic ient petition. Lofendo
, 118 I ll. App. 3d at 240; see Harris Trust & Savings Bank v. Illinois Fair Plan Ass’n , 194 I ll. App. 3d 761, 765 (1990) (dismissal is proper wher e the plaintiff did not comply with either the proce dural or the substantive requir em ents of section 2-1401). Whil e dismiss al on the merits in our case was premature, dismiss al without prejudice for a defic iency in complying with section 2-1401 was proper , and this court can aff irm on any basis we find in the rec ord. Citgo Petroleum Corp. v. McD ermott International, Inc. , 368 I ll. App. 3d 603, 606 (2006).

-4-¶ 14 I I I . CONCLUSI ON

¶ 15 The trial court did noterr when it di smissed defe ndant’s petiti on sua sponte wher e the State was not g iven notice of the filingof the petition; however , the dismissal should have been w ithout prejudice, a nd we so modify

the judg ment. Acc ording ly
, the judg ment of the circ uit court of Du Pag e County is affirme d as modified.

¶ 16 Affir

med as modified.

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