Illinois Official Reports 

Appellate Court

People v. Alexander, 2014 IL App (4th) 130132

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

ALVIN A. ALEXANDER, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-13-0132

Filed December 17, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

The appellate court’s dismissal of defendant’s appeal from the trial 

court’s sua sponte dismissal of his petition pursuant to section 2-1401 

of the Code of Civil Procedure seeking relief from his convictions for

three first degree murders committed during an armed robbery as 

frivolous was affirmed where the State did not challenge defendant’s

failure to properly serve the State but, rather, the State argued the 

petition was frivolous and did not state any basis for relief under 

section 2-1401, and the appellate court, agreeing that the petition was 

frivolous, also found that defendant’s continued filing of such 

frivolous or procedurally barred claims resulted in the expenditure of 

scarce judicial resources, thereby requiring the appellate court to order 

that defendant show cause within 30 days why sanctions should not be 

imposed under Supreme Court Rule 375(b) against defendant for 

filing a frivolous appeal; and until defendant responds to that order, 

and the appellate court determines what action to take, the clerk of the 

court was directed not to file any new appeals submitted by defendant 

to this appellate court.

Decision Under 

Review

Appeal from the Circuit Court of McLean County, No. 91-CF-480; the 

Hon. Rebecca Simmons Foley, Judge, presiding.
- 2 - 

Judgment Affirmed; cause remanded with directions.

Counsel on

Appeal

Michael J. Pelletier, of State Appellate Defender’s Office, of 

Springfield, and Peter A. Carusona and Sean Conley, both of State 

Appellate Defender’s Office, of Ottawa, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, 

David J. Robinson, and Luke McNeill, all of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE STEIGMANN delivered the judgment of the court, with 

opinion.

Presiding Justice Pope and Justice Turner concurred in the judgment 

and opinion.

 OPINION 

¶ 1 In December 2012, defendant, Alvin A. Alexander, pro se filed a document entitled 

“Leave To File Petition for Relief From Judgment” under section 2-1401(f) of the Code of 

Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West 2012)). At the time of his filing, 

defendant was serving concurrent sentences of (1) natural life for the October 1998 first degree 

murder of three people and (2) 50 years for armed robbery (Ill. Rev. Stat. 1987, ch. 38, 

¶¶ 9-1(a)(1), 18-2(a)). In January 2013, the trial court sua sponte denied defendant’s petition, 

finding that it was frivolous as defined by section 22-105 of the Civil Code (735 ILCS 

5/22-105 (West 2012)). 

¶ 2 Defendant appeals, urging this court to vacate the trial court’s sua sponte denial of his 

December 2012 petition for relief from judgment. Specifically, defendant argues that because 

he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 

1989), his petition was not ripe for adjudication. For the reasons that follow, we affirm and 

remand with directions. 

¶ 3 I. BACKGROUND 

¶ 4 A. Defendant’s Underlying Convictions 

¶ 5 In July 1991, the State charged defendant with (1) three counts of first degree murder, (2) 

three counts of first degree murder based on the felony-murder doctrine, and (3) armed robbery 

(Ill. Rev. Stat. 1987, ch. 38, ¶¶ 9-1(a)(1), (a)(3), 18-2(a)). Specifically, the State alleged that on 
- 3 - 

October 27, 1988, defendant shot and killed Scott A. Burton, Robert J. Webb, and Whitney L. 

Cole during the commission of an armed robbery. 

¶ 6 At defendant’s July 1992 jury trial, Tracey Gault testified that on October 27, 1988, she 

was working as a cashier at the S&S Liquor Store in Bloomington, Illinois, when she saw two 

men enter. As Gault began her preparations to close the store, she noticed the two men moving 

toward two other customers–later identified as Burton and Cole. Shortly thereafter, Gault saw 

the two men, Burton, and Cole walk down the main aisle of the store. Although Gault opined 

that Cole looked upset, she did not notice any interaction among them. Gault’s coworker, 

Webb, then approached the group, who were now located between the cash register and the 

shelves that formed the main aisle. At that moment, Gault noticed that one of the men 

possessed a handgun. 

¶ 7 Both men ordered Gault, Webb, Burton, and Cole down on the floor. The taller man fired 

his handgun, which Gault considered a warning to follow their instructions. Both men then 

ordered Gault to open her cash register. After she complied, the shorter man–whom Gault 

identified as defendant–took the money from the register. Gault returned to the floor. 

Defendant then searched Cole’s purse. Finding nothing of value, defendant and his 

accomplice–later identified as Glenn H. Wilson–stated, “Get the safe.” Although their words 

were not directed at her, Gault got up and walked back to the safe, accompanied by defendant. 

¶ 8 Gault bent down, reached into the safe, and handed wrapped stacks of money to defendant, 

who stood directly behind her. Gault then turned toward defendant and asked if he wanted the 

change in the safe. Defendant responded, “Hell no. What are you looking at, bitch?” Defendant 

then struck Gault with his handgun, causing her to fall back into a corner as her glasses hit the 

ground. Gault–now bleeding from the bridge of her nose–faced away from defendant. At that 

moment, Gault heard three shots. Afterward, Gault stated that everything “got quiet.” About 20 

seconds later, Gault crawled on her hands and knees and whispered, “You guys, you guys,”

attempting to determine whether Webb, Burton, and Cole were still in the store. When nobody 

answered, Gault looked around the corner and saw blood coming out of Cole’s mouth. Gault 

retreated and called 9-1-1. 

¶ 9 The remaining pertinent testimony showed that when police arrived at the store, Webb, 

Burton, and Cole were lying on their stomachs with “their hands up to their heads.” Burton 

died at the store but Webb and Cole–who were still breathing when police arrived–were 

transported to a hospital, where they died. Pathologists later determined that Webb, Burton, 

and Cole each died of a single gunshot wound to the head. 

¶ 10 The jury, after convicting defendant of all counts, determined that he was eligible for the 

death penalty as then authorized by Illinois law. However, following another hearing 

conducted shortly thereafter, the jury found sufficient mitigating factors to preclude the death 

penalty. Immediately after the jury’s finding, the trial court imposed the following sentences: 

(1) natural life for each first-degree-murder conviction; (2) 80 years for each felony-murder 

conviction; and (3) 50 years for armed robbery, to be served concurrently. 

¶ 11 B. Defendant’s Filings Subsequent to His Incarceration 

¶ 12 Defendant appealed his conviction and sentence, challenging (1) Gault’s out-of-court and 

in-court identifications, (2) the trial court’s admission of a black leather jacket, (3) the 

sufficiency of the evidence presented to convict him, and (4) his felony-murder convictions 
- 4 - 

because they were based on the same physical act as his first-degree-murder convictions. This 

court affirmed but vacated defendant’s felony-murder convictions. People v. Alexander, No. 

4-92-0877 (June 24, 1994) (unpublished order under Supreme Court Rule 23). 

¶ 13 In May 1993, defendant pro se filed his first petition for relief under the Post-Conviction 

Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8 (West 1992)), alleging that his 

trial counsel was incompetent. In January 1995, defendant’s appointed counsel filed a second 

amended postconviction petition, alleging that (1) defendant’s sixth-amendment right to 

confront witnesses against him (U.S. Const., amend. VI) was violated when the State presented 

evidence of out-of-court statements made by Wilson and (2) defendant received ineffective 

assistance of trial and appellate counsel. Following a February 1995 hearing, the trial court 

denied defendant’s petition. 

¶ 14 Defendant appealed, and this court affirmed, concluding, in pertinent part, that defendant 

failed to demonstrate a confrontation-clause violation, specifically noting that Wilson’s 

statements did not inculpate defendant. People v. Alexander, No. 4-95-0146, slip order at 7 

(Dec. 18, 1996) (unpublished order under Supreme Court Rule 23). 

¶ 15 In April 1997, defendant pro se filed a second postconviction petition, raising the same 

claims as in his first postconviction petition. In May 1997, the trial court dismissed defendant’s 

petition as frivolous and patently without merit. Initially, defendant appealed the court’s 

dismissal, but in August 1997, defendant abandoned his appeal. 

¶ 16 In June 1997, defendant filed a petition for relief from judgment under section 2-1401 of 

the Civil Code, alleging that the State knowingly used false evidence to convict him. In July 

1997, the trial court struck defendant’s petition because defendant’s case was still on appeal 

from the court’s May 1997 dismissal of defendant’s second postconviction petition. 

¶ 17 In October 1997, defendant filed a petition for writ of habeas corpus pursuant to the 

Habeas Corpus Act (735 ILCS 5/10-101 to 10-137 (West 1996)), alleging that he was entitled 

to immediate release from prison because (1) he was innocent; (2) the State’s indictment was 

tainted because African-Americans were excluded as grand jurors; (3) the appellate court, 

which affirmed his conviction, and the supreme court, which denied his petition for leave to 

appeal, were improperly constituted in that African-American and Hispanic jurists were 

underrepresented; (4) he was denied due-process when the State (a) knowingly used perjured 

testimony and (b) deliberately withheld impeachment evidence favorable to him; and (5) the 

trial court erroneously admitted into evidence a brown paper bag and a black leather jacket 

because the State failed to establish a continuous chain of custody. That same month, the court 

sua sponte denied defendant’s writ of habeas corpus, finding that defendant’s claims were 

meritless. 

¶ 18 Defendant appealed, but the office of the State Appellate Defender (OSAD) later filed a 

motion to withdraw as appointed counsel pursuant to Anders v. California, 386 U.S. 738 

(1967), alleging that defendant’s appeal presented no meritorious issues. This court granted 

OSAD’s motion to withdraw and affirmed the trial court’s judgment, concluding that the 

allegations of defendant’s petition, even if true, would not state a claim warranting the issuance 

of a writ of habeas corpus. People v. Alexander, No. 4-97-1038, slip order at 3-4 (Jan. 11, 

1999) (unpublished order under Supreme Court Rule 23). 

¶ 19 In February 1999, defendant pro se filed a third postconviction petition based on “new 

evidence,” alleging that he was denied a fair trial because the State knowingly used perjured 

testimony to convict him. On August 3, 2001, defendant’s appointed counsel filed an amended 
- 5 - 

third petition for postconviction relief, alleging that defendant was denied due process of law 

because (1) the State’s indictment of defendant was procured, in part, through perjured 

testimony; (2) the State elicited false testimony regarding when police acquired possession of a 

black leather jacket; (3) the trial court admitted the aforementioned leather jacket without 

establishing a chain of custody; and (4) the State knowingly solicited perjured testimony at 

defendant’s July 1992 trial. In addition, defendant argued that his sentence should be vacated 

or, in the alternative, reduced because the State’s indictment did not indicate that defendant 

was eligible for the death penalty, life imprisonment, or an extended-term sentence. Three days 

later, defendant’s appointed counsel also filed a motion for forensic deoxyribonucleic acid 

(DNA) testing pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 

5/116-3 (West 2000)). 

¶ 20 In July 2002, the State filed a motion to dismiss defendant’s amended third petition for 

postconviction relief. Following a later hearing, the trial court granted the State’s motion to 

dismiss, finding that (1) defendant’s claims were raised or could have been raised in 

defendant’s prior petitions or in his direct appeal and were therefore barred by the doctrine of 

res judicata and (2) the filing of the third petition was untimely and defendant stated no 

grounds that would satisfy his statutory burden of showing that the delay was not due to his 

own culpable negligence. In September 2002, the court denied defendant’s motion for DNA 

testing. 

¶ 21 Defendant appealed the trial court’s denial of his motion for DNA testing, and this court 

affirmed, concluding that “DNA testing of the leather jacket [did] not have the potential to 

significantly advance defendant’s claim of actual innocence and thus [was] not ‘materially 

relevant’ to his claim.” People v. Alexander, No. 4-02-0778, slip order at 7 (Sept. 2, 2004) 

(unpublished order under Supreme Court Rule 23). 

¶ 22 In March 2005, defendant pro se filed a petition for relief from judgment under section 

2-1401 of the Civil Code, alleging that his convictions and sentences were unconstitutional and 

void because the State lacked the statutory authority to introduce Wilson’s inculpatory 

statements at defendant’s July 1992 trial and, as a result, defendant was denied the right to 

confront and cross-examine Wilson. In July 2005, the State filed a motion to dismiss 

defendant’s petition for relief from judgment. In September 2005, the trial court denied 

defendant’s petition, finding that it was not only untimely but also “completely without merit.”

¶ 23 In October 2005, defendant pro se filed a fourth postconviction petition, again raising a 

confrontation-clause argument based on his challenge to the State’s introduction of Wilson’s 

allegedly inculpatory statements at his July 1992 trial. Later that month, the trial court sent 

defendant a letter, denying him leave to file a successive postconviction petition under section 

122-1(f) of the Postconviction Act (725 ILCS 5/122-1(f) (West 2004)). 

¶ 24 Defendant appealed the trial court’s (1) September 2005 denial of his petition for relief 

from judgment and (2) October 2005 denial to file a successive postconviction petition under 

section 122-1(f) of the Postconviction Act. This court later consolidated defendant’s appeals. 

In October 2006, OSAD filed a motion to withdraw as appointed counsel pursuant to 

Pennsylvania v. Finley, 481 U.S. 551 (1987), alleging that defendant’s appeal presented no 

meritorious issues. This court granted OSAD’s motion to withdraw and affirmed the court’s 

judgment. In so doing, we concluded that in both cases, defendant’s claims were barred by the 

doctrine of res judicata. People v. Alexander, Nos. 4-05-0897, 4-05-0960 cons., slip order at 

6-7 (Mar. 26, 2007) (unpublished order under Supreme Court Rule 23). 
- 6 - 

¶ 25 C. The Issue on Appeal 

¶ 26 The issue in this appeal–defendant’s sixth appeal to this court–concerns defendant’s pro se

document entitled “leave to file petition for relief from judgment” pursuant to section 

2-1401(f) of the Civil Code, which defendant mailed to the McLean County circuit clerk on 

December 17, 2012. In his petition, defendant alleged that his “fourth[-]amendment right to be 

free from [an] unreasonable seizure was violated because his arrest was not supported by 

probable cause.” Defendant contended that absent certain untruthful testimony provided to a 

July 1991 grand jury, the police would have lacked sufficient probable cause to arrest him. 

Defendant asserted that this revelation entitled him to relief under section 2-1401(f) of the 

Civil Code because “his arrest was invalid” and as a result, “it rendered void the personal 

jurisdiction of the [trial court].”

¶ 27 Included with defendant’s petition was a handwritten “Notice” addressed to Ronald 

Dozier, McLean County State’s Attorney. In that notice, which essentially reiterated the notice 

language of Illinois Supreme Court Rule 105(a) (eff. Jan. 1, 1989), defendant wrote the 

following: 

“The pleading seeking new and additional relief against you has been filed and that 

a judgment by default may be taken against you for the new or additional relief unless 

you file[ ] an answer or otherwise file[ ] an appearance in the Office of the Clerk of the 

Court within 30 days after service, receipt by certified or registered mail, or the first 

publication of the notice, as the case may be, exclusive of the day of service, receipt, or 

first publication.”

Defendant also signed an affidavit of service, certifying that on December 17, 2012, he served 

a copy of his petition on each party by enclosing his filing in a sealed envelope and placing it in 

a designated prison receptacle for delivery by the United States Postal Service. 

¶ 28 On December 24, 2012, the circuit clerk filed defendant’s petition, noting in a docket entry 

dated that same day that a copy of defendant’s filing was sent to the State, which included 

defendant’s “affidavit of service” and “proof/certification of service.”

¶ 29 On January 30, 2013, the trial court sua sponte denied defendant’s petition in a written 

order, finding that it was frivolous as defined by section 22-105 of the Civil Code. 

¶ 30 This appeal followed. 

¶ 31 II. ANALYSIS 

¶ 32 On appeal, defendant (now represented by OSAD) urges this court to vacate the trial 

court’s sua sponte denial of his December 2012 petition for relief from judgment, arguing that 

because he did not properly serve the State as required by Rule 105, his petition was not ripe 

for adjudication. We disagree. 

¶ 33 A. Petitions for Relief From Judgments Under Section 2-1401 

 of the Civil Code, Notice, and the Standard of Review 

¶ 34 “Section 2-1401 allows for relief from final judgments more than 30 days after their entry, 

provided the petition proves by a preponderance of evidence certain elements.” People v. 

Laugharn, 233 Ill. 2d 318, 322, 909 N.E.2d 802, 804-05 (2009). “[A] petition for relief from 
- 7 - 

judgment must be filed ‘not later than [two] years after the entry of the order or judgment’

sought to be vacated.” Price v. Philip Morris, Inc., No. 112067 (Ill. Sept. 30, 2011) (Garman, 

J., dissenting upon denial of pet. for leave to appeal) (quoting 735 ILCS 5/2-1401(c) (West 

2008)). “Relief under section 2-1401 is predicated upon proof, by a preponderance of 

evidence, of a defense or claim that would have precluded entry of the judgment in the original 

action and diligence in both discovering the defense or claim and presenting the petition.” 

People v. Vincent, 226 Ill. 2d 1, 7-8, 871 N.E.2d 17, 22 (2007).

¶ 35 Section 2-1401(b) provides that “[a]ll parties to the petition shall be notified as provided by 

rule.” 735 ILCS 5/2-1401(b) (West 2012). Illinois Supreme Court Rule 106 states that notice 

of the filing of a petition under section 2-1401 of the Civil Code “shall be given by the same 

methods provided in Rule 105.” Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) provides that 

notice shall be directed to the party and must be served either by summons, by prepaid certified 

or registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). “The notice must 

state that a judgment by default may be taken against the party unless he files an answer or 

otherwise files an appearance within 30 days after service.” People v. Nitz, 2012 IL App (2d) 

091165, ¶ 9, 971 N.E.2d 633 (citing Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989)).

¶ 36 A trial court’s sua sponte denial of the relief sought in a section 2-1401 petition is the same 

as a dismissal with prejudice. Vincent, 226 Ill. 2d at 12, 871 N.E.2d at 25. We review de novo a 

trial court’s denial of a petition brought under section 2-1401 of the Civil Code. Laugharn, 233 

Ill. 2d at 322, 909 N.E.2d at 804; Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25-26.

¶ 37 B. The Trial Court’s Sua Sponte Denial of Defendant’s Section 2-1401 Petition 

¶ 38 1. The Supreme Court’s Guidance on Section 2-1401 Petitions

¶ 39 To place defendant’s claim in its proper context, we begin our analysis with Vincent, in 

which the supreme court considered, in part, “whether a trial court may dispose of a properly 

served section 2-1401 petition without benefit of responsive pleadings.” Id. at 5, 871 N.E.2d at 

21. In rejecting the prisoner’s argument as to that issue, the supreme court held that “the State’s 

failure to answer the petition constituted an admission of all well-pleaded facts,” which 

rendered the petition “ripe for adjudication.” Id. at 9-10, 871 N.E.2d at 24. 

¶ 40 Two years later, in Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805, the supreme court 

considered the propriety of the trial court’s sua sponte dismissal of a prisoner’s section 2-1401 

petition seven days after its filing with the court. The supreme court held that the court’s 

dismissal of the prisoner’s petition before the expiration of the 30-day period in which the State 

could answer or plead was premature, explaining that “[w]hile Vincent allows for sua sponte

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

the 30-day period.” Id. The supreme court in Laugharn concluded that (1) the prisoner’s 

section 2-1401 petition was “not ‘ripe for adjudication’ ” and (2) the “court’s dismissal 

short-circuited the proceedings and deprived the State of the time it was entitled to answer or 

otherwise plead.” Id.

¶ 41 Based on Vincent and Laugharn, the law in Illinois is settled that (1) a trial court may 

dismiss a section 2-1401 petition on its own motion without benefit of responsive pleadings 

(Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23) and (2) a court may not adjudicate a section 2-1401 

petition prior to the 30-day period in which the respondent can answer or otherwise plead 

(Laugharn, 233 Ill. 2d at 323, 909 N.E.2d at 805). In both Vincent and Laugharn, service under 
- 8 - 

Rule 105 was not at issue. Defendant’s claim in this case, however, presents a different 

scenario. 

¶ 42 2. Defendant’s Section 2-1401 Claim

¶ 43 a. Defendant’s Underlying Rationale 

¶ 44 As we have previously noted, defendant argues that because he did not properly serve the 

State as required by Rule 105, his petition was not ripe for adjudication. In his brief to this 

court, defendant acknowledges that he “executed the required ‘default’ notice directed at the 

State” and that “[t]he record also contains a proof of service directed at the clerk of the [trial] 

court.” Despite these admissions, defendant contends that because he sent his petition by 

regular mail, he failed to comply with the provisions of Rule 105 regarding proper service of 

his notice by either (1) summons, (2) certified or registered mail, or (3) publication. Defendant 

then asserts that because service was improper, the 30-day period for the State to answer or 

otherwise plead did not even begin. Primarily relying on Vincent and Laugharn, defendant 

claims that the court’s denial was premature because his petition was not yet ripe for 

adjudication. In his prayer for relief, defendant requests that this court vacate the trial court’s 

order denying his section 2-1401 petition and “remand for further proceedings, *** 

specifically for the opportunity *** to properly serve the State.” We decline to do so.

¶ 45 In this case, the sequence of events that prompted the trial court’s denial occurred as 

follows. On December 17, 2012, defendant mailed his request for leave to file a section 2-1401 

petition to the circuit clerk. On December 24, 2012, the circuit clerk filed defendant’s petition 

on his behalf with the court. More than 30 days later, on January 30, 2013, the court denied 

defendant’s claim, finding that it was frivolous as defined by section 22-105 of the Civil Code. 

At that time, the record showed (1) defendant’s representations that he served a copy of his 

petition on the State by enclosing his filing in a sealed envelope and placing it in a designated 

prison receptacle for delivery by the United States Postal Service and (2) the circuit clerk’s 

docket entry certifying that a copy of defendant’s petition, which included defendant’s notice, 

was sent to the State. Vincent held that the failure to respond to a section 2-1401 petition 

“constitutes an admission of all well-pleaded facts [citation], and the trial court may decide the 

case on the pleadings, affidavits, exhibits[,] and supporting material before it, including the 

record of the prior proceedings.” Vincent, 226 Ill. 2d at 9, 871 N.E.2d at 23. The court’s denial 

of defendant’s petition occurred in this context. 

¶ 46 The flaw in defendant’s argument is that under Laugharn, the primary purpose of the 

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

relief from judgment before a trial court may sua sponte consider the petition. Laugharn, 233 

Ill. 2d at 323, 909 N.E.2d at 805. In other words, the court must allow the State time to make its 

position known. However, the 30-day period does not provide a sword for a petitioner to wield 

once a court–as in this case–does not find in his favor, especially given that, under defendant’s 

interpretation, the basis of his claim on appeal is his failure to comply with Rule 105. If we 

were to accept defendant’s rationale, a prisoner who uses regular mail to effect service upon 

the State will–upon appeal–be rewarded with a second bite of the apple if the court denies his 

petition on the merits. Indeed, no practical reason would exist to comply with the provisions of 

Rule 105 because to do so would foreclose that avenue of review, which effectively empowers 

a prisoner to persist in filing frivolous claims.
- 9 - 

¶ 47 As we have previously noted, included with defendant’s December 2012 petition for relief 

from judgment was a handwritten document, entitled “Notice,” that substantially reiterated the 

language of Rule 105(a) regarding the consequences of not responding to a petition for relief 

from judgment within 30 days after service effected by either summons, certified or registered 

mail, or publication. This notice defendant sent out reveals his knowledge of the requirements 

of Rule 105, which he chose to disregard. Defendant now seeks to benefit by his failure, 

claiming that the trial court erred by denying his petition for relief from judgment more than 30 

days after the petition’s filing because he improperly effectuated service on the State by 

regular mail. We refuse to reward defendant for his knowing failure to comply with Rule 105. 

Defendant should not be able to serve a party incorrectly and then rely on the incorrect service 

to seek reversal. 

¶ 48 We find support for our conclusion in a case that similarly rejected such arguments. See 

People v. Kuhn, 2014 IL App (3d) 130092, ¶¶ 13, 15, 16 N.E.3d 872 (rejecting the defendant’s 

“unusual position of objecting to his failure to properly serve the State with notice of his 

section 2-1401 petition”; in that case, the trial court ruled more than 30 days after the defendant 

filed his petition, and the appellate court noted that the State claimed it had actual notice of the 

petition, which, as here, was sent by regular mail). 

¶ 49 In People v. Carter, 2014 IL App (1st) 122613, ¶ 8, 8 N.E.3d 441, the appellate court 

considered the same issue now before us–that is, whether a prisoner’s defective service of a 

section 2-1401 petition prevents a trial court from sua sponte considering the petition after 30 

days have passed. In reversing the court’s sua sponte dismissal and remanding for further 

proceedings, the appellate court concluded, as follows: 

“The State argues that in the interest of judicial economy we find that the State 

waived service and affirm the trial court. Judicial economy is best served when the 

prosecutor, in the first instance, affirmatively spreads of record whether the petition has 

been served and, if not, whether the State intends on waiving the required service. 

When this has been done, the trial court will be in a position to inquire whether the 

prosecution intends to file a response. Should the trial court then dismiss the petition, 

this potential appellate issue will be eliminated. Otherwise *** section 2-1401 

defendants that use the same or similar method of service as used by the defendant in 

this case will routinely seek appellate review.” Id. ¶ 24, 8 N.E.3d 441. 

The appellate court in Carter reasoned that “[b]ecause Laugharn and Vincent demand that we 

base our determination as to whether the *** 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 or an affirmative showing 

that proper service was waived by the [State].” Id. ¶ 25, 8 N.E.3d 441. 

¶ 50 We decline to follow Carter because we disagree that the supreme court’s decisions in 

Laugharn and Vincent mandate such a result. In this appeal, the State (1) does not contest the 

deficient service, (2) has taken the position that defendant’s petition is frivolous (a position we 

agree with), and (3) has represented to this court that it will take the same position if the case is 

remanded to the trial court. Under these circumstances, we see no reason to remand the case so 

that (1) defendant can properly serve the State or the State can waive service, (2) the State can 

respond by repeating its position that defendant’s petition is frivolous, and (3) the court can 

repeat its denial of defendant’s petition. 
- 10 - 

¶ 51 We find support for our position in numerous cases in which the supreme court favors the 

efficient expenditure of judicial resources. See Poindexter v. State, 229 Ill. 2d 194, 207, 890 

N.E.2d 410, 419 (2008) (requiring a petitioner to exhaust all administrative remedies before 

appealing, which may result in a conservation of judicial resources); Gallagher v. Lenart, 226 

Ill. 2d 208, 239, 874 N.E.2d 43, 62 (2007) (requiring the existence of an explicit waiver of a 

compensation lien would mitigate settling parties’ expending “time and money arguing over 

the interpretation of settlement provisions, and valuable judicial resources will be conserved”);

People v. Young, 82 Ill. 2d 234, 247, 412 N.E.2d 501, 507 (1980) (declining to permit a trial 

court to test the veracity of the State certification under Illinois Supreme Court Rule 604(a)(1) 

(eff. July 1, 1975) that a suppression order impairs the State’s case because such oversight 

would not justify the expenditure of judicial resources necessary to make such a 

determination). In addition, such a mandate would be inconsistent with the well-established 

principle that a court “retain[s] a traditional right of discretionary control over its own docket.” 

Oldenstedt v. Marshall Erdman & Associates, Inc., 381 Ill. App. 3d 1, 15, 884 N.E.2d 830, 843 

(2008). 

¶ 52 b. The Merits of Defendant’s Section 2-1401 Claim 

¶ 53 In his brief to this court, defendant does not address the propriety of the trial court’s 

dismissal of his section 2-1401 petition. However, we review de novo a court’s denial of a 

petition raised under section 2-1401 of the Civil Code (Laugharn, 233 Ill. 2d at 322, 909

N.E.2d at 804; Vincent, 226 Ill. 2d at 13, 871 N.E.2d at 25-26), which requires us to 

“consider[ ] anew the facts and law related to the case” (Wiseman-Hughes Enterprises, Inc. v. 

Reger, 248 Ill. App. 3d 854, 857, 617 N.E.2d 1310, 1312 (1993)). In so doing, we review “the 

trial court’s judgment and not the reasons given for that judgment.” Nelson v. Aurora 

Equipment Co., 391 Ill. App. 3d 1036, 1044, 909 N.E.2d 931, 939 (2009).

¶ 54 In its brief to this court–as we have previously noted–the State posits that “[h]ad the State 

been properly served, it would have (1) refrained from filing any pleadings to a clearly 

frivolous petition as the record reflects currently[ ] or (2) filed a response arguing that indeed 

defendant’s petition was frivolous and meritless.” Given the State’s stance and based on the 

record in this case, we conclude that the trial court correctly determined that the allegations 

contained within defendant’s December 2012 section 2-1401 petition are frivolous and fail to 

state a cause of action for relief from judgment under section 2-1401 of the Civil Code. 

Accordingly, we affirm the court’s judgment. 

¶ 55 C. Defendant’s Abuse of the Court System 

¶ 56 As the aforementioned history of this case clearly reveals, defendant is not content with his 

plight in life, which began over 22 years ago with his July 1992 convictions for his complicity 

in three brutal murders committed during an armed robbery. Since that time, defendant has 

made numerous claims under the Postconviction Act, Habeas Corpus Act, and Civil Code in 

the hope of raising any issue–however obscure, repeated, or futile–that would end or curtail his 

current incarceration. Those filings, which the trial court has consistently found either 

frivolous or procedurally barred, have undoubtedly caused the expenditures of scarce judicial 

resources. 
- 11 - 

¶ 57 We note that in its January 2013 order disposing of defendant’s frivolous section 2-1401 

claim, the court warned defendant that “any subsequent pleadings determined to be frivolous 

may be subject to the imposition of court costs and garnishment of the [d]efendant’s 

Department of Corrections Trust Fund Account.” Despite the commendable judicial restraint 

the trial court has shown thus far, we encourage the court to avail itself of section 22-105(a) of 

the Civil Code, which makes defendant financially responsible for his frivolous filings, if 

defendant disregards the court’s warning and continues to file frivolous pleadings. 

¶ 58 The instant appeal, which we have previously noted is defendant’s sixth before this court, 

concerns the trial court’s sua sponte denial of defendant’s December 2012 document entitled 

“leave to file petition for relief from judgment” under section 2-1401(f) of the Civil Code, in 

which defendant essentially challenges the court’s personal jurisdiction. As we have 

previously concluded, defendant’s claim is without question frivolous, and he had no 

legitimate basis for appealing the court’s sua sponte denial of his jurisdictional claim. The fact 

that OSAD–in demonstrating its usual competence and professionalism–raised a colorable 

argument on appeal regarding service of process was merely fortuitous. It is readily apparent 

that without some consequences for his repeated frivolous filings, defendant will continue to 

burden the trial and appellate courts. 

¶ 59 Accordingly, we order defendant to show cause within 30 days why sanctions should not 

be entered against him under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) for filing a 

frivolous appeal. Until such time as (1) defendant responds to this order and (2) this court 

determines what action to take, we direct the clerk of this court to disregard–and by that we 

mean to not file–any new appeals submitted to this court by defendant. See Williams v. 

Commissary Department of the Department of Corrections, 407 Ill. App. 3d 1135, 1138, 948 

N.E.2d 1061, 1063 (2011). 

¶ 60 III. EPILOGUE 

¶ 61 As noted earlier, defendant argues that the trial court’s sua sponte denial of his section 

2-1401 petition was premature, given that the State was never properly served by him because 

service cannot be effectuated by “regular mail” under Rule 105. This precise argument has 

been made repeatedly over the last few years by other defendants who similarly complained 

about trial courts’ sua sponte dismissals after the 30-day period has expired under 

circumstances where they have failed to properly serve the State under Rule 105. A partial list 

of such cases follows: Carter, 2014 IL App (1st) 122613, 8 N.E.3d 441; People v. Ocon, 2014 

IL App (1st) 120912, 7 N.E.3d 42; People v. Matthews, 2014 IL App (1st) 121913-U; People v. 

Hible, 2013 IL App (4th) 120171-U; People v. Miller, 2012 IL App (5th) 110201, 981 N.E.2d 

528; People v. Marcrum, 2013 IL App (4th) 120154-U; Oliver v. Pfister, 2013 IL App (4th) 

120885-U; Rynders v. Dawson, 2012 IL App (4th) 120830-U; Nitz, 2012 IL App (2d) 091165, 

971 N.E.2d 633; People v. Nash, 2013 IL App (1st) 112795-U; Kuhn, 2014 IL App (3d) 

130092, 16 N.E.3d 872; and People v. Prado, 2012 IL App (2d) 110767, 979 N.E.2d 564. 

¶ 62 The above list represents an astonishing and embarrassing squandering of scarce judicial 

resources. We use the term “embarrassing” advisedly because accepting defendant’s argument 

essentially renders the judiciary defenseless against “frequent-flyer litigators” like defendant, 

who, with nothing but time on their hands, can continue to bombard trial courts with frivolous 

litigation, ostensibly brought pursuant to section 2-1401. Then, when they fail to comply with 

Rule 105’s technical service requirements, they complain to the appellate courts about the trial 
- 12 - 

courts’ sua sponte dismissals, demanding that their utterly groundless claims be remanded 

back to the trial court for further proceedings in which everyone involved–including the 

defendants filing the groundless pleadings–knows to a certainty that no relief will be 

forthcoming. 

¶ 63 Surely, the judiciary cannot permit this situation to continue. Doing so simply empowers 

defendants like the one now before us, who is unhappy with his lot in life–sitting in prison 

merely because of his complicity in the execution of three innocent people–to continue to 

“attack the system” with groundless claims, thereby requiring the courts to squander their 

scarce resources. Indeed, we surmise that forcing the courts to do so is likely defendant’s key 

motivation. “Ensuring open and meaningful access to the courts means denying access to those 

who are intent on disrupting the judicial process.” People v. Austin, 2014 IL App (4th) 140408, 

¶ 27. 

¶ 64 IV. CONCLUSION 

¶ 65 For the reasons stated, we affirm the trial court’s judgment and remand with directions. 

¶ 66 Affirmed; cause remanded with directions.