2015 IL App (2d) 130473 No. 2-13-0473 Opinion filed December 23, 2015

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff

- Appellee, ) ) v. ) No. 05- CF -686 ) MICHAEL E. NEEDHAM , ) Honorable ) Susan Clancy Boles, Defendant -Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Schostok and Ju stice Birkett concurred in the judgment and opinion. O PINION ¶ 1 Defendant, Michael E. Needham, appeals the trial court’s sua sponte denial of his pro se “motion,” effectively a petition for relief from judgment filed under section 2

- 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2

- 1401 (West 2010)). Applying People v. Carter , 2015 IL 117709, we affirm. ¶ 2 I. BACKGROUND ¶ 3 In 2006, defendant was convicted of armed violence ( 720 ILCS 5/33A- 2(a) (West 200 4)) and two counts of aggravated battery (720 ILCS 5 /12- 4(a) , (b)(1) (West 200 4)). The aggravatedbattery convictions were merged into the armed

- violence conviction, and defendant was sentenced to 22 years’ incarceration . Defendant appealed, and we affirmed. People v. Needham ,2015 IL App (2d) 130473

- 2

- No. 2 -06- 0327 (2008) (unpublished order under Supreme Court Rule 23). In 2009, defendant filed a postconviction petition alleging that the armed

- violence statute violated the proportionate

penalties clause . That petition was summarily dismissed, and we affirmed

. People v. Needha m , 2011 IL App (2d) 100288 -U ( summary order ). After that, defendant filed various documents attempting to ob tain a rehearing of the matter. ¶ 4 On February 20, 201 3 , defendant filed a “ Motion: (For/To) Judg e ment [ sic ] Relief
M.S.R. ,” expressing concern about the imposition of m andatory supervised r elease (MSR ). The motion did not cit e section 2 -1401, nor did it make any specific legal arguments . Rather, it appeared to contain only short factual recitations. That same day, the court struck the motion because defendant was not gra n ted leave t o file it. ¶ 5 On March 4, 201 3 , defendant filed a motion seeking a ruling on his previously filed documents that sought a rehearing of the d ismissal of his postconviction petition. On M arch 7, 2013, the court struck that mot ion because defendant was not granted leave to file it and directed the circuit court clerk not to accept further filings from defendant without leave of the court. ¶ 6 On April 3, 2013, defendant filed a “Motion For Leave To File Amended Motion For Petition F or Relief of Judgment.” In it, defe ndant specifically cited section 2

- 1401 and argued that he was not properly admonished about MSR , result ing in an improper sentence. Defendant attached an amended “m otion ” for relief from judgment a nd a memorandum of law in which he argued that the addition of MSR to his sentence was void. Defendant attached a certificate of service in which he stated that he placed the documents in institutional mail for mailing through the United States Postal Service . He listed addresses for the clerk of the court and the State’s
Att orney. The documents were file- stamped by the c lerk

.2015 IL App (2d) 130473

- 3

- ¶ 7 That same day, the court vacated its M arch 7, 201 3, order but wrote: “The defendant is hereby instructed not to file further pleadings without prior leave of the court to do so. Any pleadings filed in violation of this order will be stricken and sanctions may be imposed.” On April 8, 2013, the matter was assigned to a different judge for further proceedings. ¶ 8 On April 10, 2013 , the tri al court denied the “ motion ” in a written order. The order also recited boilerplate l egal propositions concerning the filing of a successive postconviction petit ion and stated that , “[e] ven if” the pleading w ere recharacterized as a successive postconviction petition , it would still fail. Defendant appeals. ¶ 9 II. ANALYSIS ¶ 10 Defendant argues that, because his section 2 -1401 “ petition ” was not properly served, under People v. Prado , 2012 IL App (2d) 110767, the trial court’s “ dismissal ” was prematur e and the cause must be remanded for further proceedings

. In th e alternative, he argues that the trial court improperly recharacterized the pleading as a postconviction petition without giv ing him notice and an opportunity to respond. ¶ 11 “Section 2 -1401 provides a comprehensive civil procedure that allows for the vacatur of a final judgment older than 30 days.” Id. & 6. “ ‘The petition must be filed not later than two years following the entry of judgment, excluding time during which the petitioner is under a legal disability or duress or the ground for rel ief is fraudulently concealed.’ ” Id . (quotin g People v. Nit z , 2012 IL App (2d) 091165, & 9). However, a void order may be attacked at any time through a section 2

- 1401 petition. Sarkissian v. Chicago Board of Educatio n , 201 Ill. 2d 95 , 10 3- 04 (2002). “While the petition must be filed in the same proceeding in which the judgment was entered, it is not a continuation of that proceeding.” Prad o , 2012 IL App (2d) 110767, & 6; see 735 ILCS 5/2 -1401(b) (West 20 12 ). “All parties to the petition shall be2015 IL App (2d) 130473

- 4

- notified as provided by rule.” Nitz , 2012 IL App (2d) 091165, ¶ 9 (citing 735 ILCS 5/2 -1401(b) (West 2008)). “The rule referred to in section 2

- 1401(b) is Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985), which provides that notice of the filing of a section 2

- 1401 petition shall be given by the same methods provided in Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989) for giving notice of additional relief to parties in default.” Id

. “ Rule 105 pr ovides that the notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication.” Id. (citing Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). “The notice must state that a judgment by defaul t may be taken against the party unless he files an answer or otherwise files an appearance within 30 days after service.” Id. (citing Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). We review de novo the dismissal of a section 2 -1401 petition. Id

. ¶ 12 A trial court may properly dismiss a section 2

- 1401 petition on the merits sua sponte and without notice or an opportunity to be heard. People v. Vincent , 226 Ill. 2d 1, 11 -19 (2007). However, a dismissal on the merits before the State has been properly served is p remature. Prado , 2012 IL App (2d) 110767 , ¶ 9; Nitz , 2012 IL App (2d) 091165 , ¶ 12 . In the case of a premature dismissal, we vacate and remand for further proceedings. Prado , 2012 IL App (2d) 110767, ¶ 9. ¶ 13 Although a party can attack a void judgment at any time , a freestanding motion is not a viable method to challenge such a judgment , because it does not initiate an action in which the court has jurisdiction to address it. People v. Rodriguez , 355 Ill. App. 3d 290, 293 (2005) (citing People v. Helgesen , 347 Ill. App. 3d 672, 675

- 76 (2004) ). “ Nevertheless, a trial court may address the motion after construing it as a filing (such as a section 2

- 1401 petition or a postconviction petition) by which a party may collaterally attack a judgment. ” Id

.

“ Alter natively, if a trial court rendered a judgment on the merits of such a motion, this court too2015 IL App (2d) 130473

- 5

- can give it an appropriate characterization on review.” Id

. For example, we may construe an order denying a motion to vacate a void judgment as the dismiss al of a section 2

- 1401 petition , even though the trial court did not explicitly recharacterize it as such. See Sarkissian , 201 Ill. 2d
at 99-102. ¶ 14 Here, defendant’s February 20, 2013 , motion was nothing more than a freestanding motion. Defendant did not cite s ection 2

- 1401 in the motion, and he did not argue that a judgment was void. Indeed, he did not make any legal claims. The court did not address the motion on its merits and instead simply st r uck it because defendant failed to obtain leave of the
court to file it. However, defendant’s April 3, 2013, motion was in substance a section 2-1401 petition. Defendant specifically cited section 2 -1401, included legal proposition s related to section 2 -14 01, and argued that a portion of his sentence was void. D efe ndant ’s label ing of the pleading as a motion for leave to amend appears to be defendant’s attempt to comply with previous court orders requiring that he obtain leave of the court before filing any pleadings

. Accordingly, we construe the motio n as a sectio n 2 -1401 petition. ¶ 15 The next question then is the effect of the trial court’s denial, which, however worded, effectively dismissed the matter on the merits. As previously noted, the sua sponte dismissal of a section 2

- 1401 p etitio n that was never properly served on the State is premature . However, our supreme court recently clarified that, when the defendant claims that deficient service invalidate s

a sua sponte dismissal , the burden is on the defendant to affirmatively show that the S tate was not given proper notice. Carter , 2015 IL 117709, ¶ 24. ¶ 16 In Carter , the defendant fil e d a section 2

- 1401 petition with a certificate stating that he placed the pleading in institutional mail for mailing through the United States Postal Service . He included addresses for the clerk of the court and the State’s Attorney, and the pleading was file

-2015 IL App (2d) 130473

- 6

- stamped by the c lerk . After the trial court dismissed the petition sua sponte , the defendant did not file a postjudgment motion, and the sufficien cy of serv ice was never otherwise addressed. On appeal, the First District reversed, holding that the dismissal wa s premature. People v.
Carter , 2014 IL App (1st) 122613, ¶ 25. Our supreme court reversed, noting that the record did not affirmative ly show that the re was deficient service. Carter , 2015 IL 117709, ¶ 18. The court held that th e defendant’s statement that he placed the petition in institutional mail to be transmitted through the United State s Postal Service did not establish that it was not sent by certified or registered mail. Id . ¶ 20. Thus, without an adequate record, the court presumed that the trial court’s order was in conformance with the law. Id . ¶ 23 . The court stated that it encouraged trial courts to ascertain and no te of record the date on which the S tate was properly served but that “any section 2

- 1401 petitioner who seeks to use, on appeal, his ow n error, by way of allegedly deficient service, in a n 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.” Id . ¶ 25. ¶ 17 Here, Carter controls. As in Carter , defendant filed a certificate stat ing th at he placed his pleading in institutio nal mail for transmittal via the United States Postal Service. He did not file a postjudgment motion or otherwise raise the sufficiency of service . Thus, defendant ne ver affirmatively demonstrated defic ient service. Accordingly, we presume that the tria l court’s order wa s in conformance with the law. ¶ 18 Defendant argues in the alternative that the trial court improperly recharacterized his pleading as a successive postconviction petition without providing notice. See People v.
Pearson , 216 Ill. 2d 58, 66 -6 7 (2005). T he trial court confused the matter by using language pertaining to a postconviction petition

. However, it clearly stated that “ [e] ven if” the petition2015 IL App (2d) 130473

- 7

- were recharacterize d as a successive post conviction petition it would fail. Thus, it is clear that the court did not actually recharacterize the petition as such. ¶ 19 III. CONCLUSION ¶ 20 Defendant failed to affirmatively show that service of his petition was deficient

. Accordingly, the judgment o f the circuit court of Kane County is affirmed. As part of our judgment, we grant the State ’ s request that defendant be assessed $50 as costs for this appeal. 55
ILCS 5/4 -2002(a) (West 2014); see also People v. Nicholls , 71 Ill. 2d 166, 179 (1978). ¶ 21 Affirmed.