2016 IL 118114

IN THE 

SUPREME COURT 

OF

THE STATE OF ILLINOIS 

(Docket No. 118114) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. 

JERRELL MATTHEWS, Appellee. 

Opinion filed December 1, 2016.

 JUSTICE GARMAN delivered the judgment of the court, with opinion. 

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and 

Theis concurred in the judgment and opinion. 

OPINION 

¶ 1 On March 25, 2012, defendant Jerrell Matthews mailed a petition for relief 

from judgment via the prison mail system at Menard Correctional Center to the 

clerk of the Cook County circuit court and the Cook County State’s Attorney’s 

office. On May 24, 2012, the circuit court dismissed the petition sua sponte as 

untimely. The appellate court concluded that the dismissal was premature because 
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the State was never properly served. The judgment of the circuit court was vacated, 

and the cause remanded. The State appealed to this court pursuant to Illinois 

Supreme Court Rule 315 (eff. July 1, 2013). 

¶ 2 BACKGROUND 

¶ 3 Defendant-petitioner was convicted of first degree murder in 2007. The 

appellate court affirmed the conviction. Defendant filed a postconviction petition in 

2010 alleging ineffective assistance of counsel and insufficient evidence to support 

his conviction. The circuit court dismissed the petition as frivolous and patently 

without merit. The appellate court again affirmed. 

¶ 4 On March 25, 2012, defendant mailed a petition for relief from judgment 

pursuant to section 2-1401 of the Code of Civil Procedure, asserting he was denied 

a fair trial based on alleged perjury by a State’s witness. 735 ILCS 5/2-1401 (West 

2010). The substance of the petition is irrelevant for purposes of this appeal. 

Defendant attached to the petition a “proof/certificate of service,” which stated that 

the petition was mailed “with proper first-class postage attached thereto” via the 

prison mail system at Menard Correctional Center to the clerk of the Cook County 

circuit court and the Cook County State’s Attorney’s office. The petition was 

marked “received” on April 11 by the clerk’s office and file-marked and docketed 

on April 23. On May 21, 2012, the circuit court continued the case. On May 24, the 

circuit court entered an order in which it dismissed the petition as untimely. The 

court further explained that the petition contained no argument of merit and lacked 

any supporting documentation. Defendant was not present in the courtroom at the 

time of the dismissal, and the transcript reveals no active participation by the 

State’s Attorney’s office, although it does list assistant State’s Attorney Kimellen 

Chamberlain and State’s Attorney Anita Alvarez as appearing for the State.

¶ 5 On appeal, defendant argued that the dismissal was premature because he never 

properly served the State and, thus, the 30-day period for filing a response had not 

yet expired. Defendant contended that service was improper because the proof of 

service does not indicate that the petition was mailed via certified or registered mail 

as required by Illinois Supreme Court Rule 105 (eff. Sept. 28, 1978). The appellate 

court concluded that defendant did not properly serve the State but that the State 

received actual notice of the petition and forfeited any objection to improper 
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service. Thus, defendant’s argument that the dismissal was premature could not be 

sustained on the basis that service was never effectively completed. However, the 

appellate court held the petition was not ripe for adjudication and dismissal was 

premature because less than 30 days had passed from the date the State received 

actual notice of the filing. The appellate court reversed the judgment of the circuit 

court and remanded the case for further proceedings. The State filed a petition for 

leave to appeal in this court, which was allowed January 20, 2016.1

 Ill. S. Ct. R. 

315.

¶ 6 ANALYSIS 

¶ 7 The circuit court dismissed defendant’s petition for relief from judgment as 

untimely. Such petitions “must be filed not later than 2 years after the entry of the 

order or judgment,” unless the petitioner can demonstrate that he or she has been 

“under legal disability or duress” or unless the “ground for relief [has been] 

fraudulently concealed.” 735 ILCS 5/2-1401(c) (West 2010). Defendant does not 

challenge the circuit court’s finding that his petition was untimely, but he asserts 

that the court’s order dismissing the petition was premature based on his own 

failure to comply with the applicable service requirements. Ill. S. Ct. R. 106 (eff. 

Aug. 1, 1985) (indicating that the service procedures set forth in Rule 105 apply to 

section 2-1401 petitions); Ill. S. Ct. R. 105 (setting forth the requirements for 

serving and filing a petition). 

¶ 8 Illinois Supreme Court Rule 105 provides that a section 2-1401 petitioner must 

provide the opposing party with notice that the petition has been filed. Notice may 

be served in person, by mail, or by publication. Ill. S. Ct. R. 105. If by mail, service 

must be sent by certified or registered mail. Id. The notice must inform the 

respondent that “a judgment by default may be taken against him *** unless he 

 

1Despite the fact that the petition for leave to appeal had been filed, the circuit court on 

remand allowed defendant to file an amended section 2-1401 petition. The court then 

dismissed both the original and the amended petitions, and defendant again appealed. The 

appellate court granted an agreed motion for summary disposition, vacating the circuit 

court’s dismissal of the petitions based on lack of jurisdiction. Although both parties failed 

to provide the court with any record of the proceedings occurring after the petition for leave 

to appeal was filed, this court has taken judicial notice of the subsequent orders. 
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files an answer or otherwise files an appearance *** within 30 days after service, 

receipt by certified or registered mail, or the first publication of the notice.” Id. If 

the responding party fails to respond within the 30-day period, any question as to 

the petition’s sufficiency is deemed waived, and the petition is treated as properly 

stating a cause of action. People v. Vincent, 226 Ill. 2d 1, 8 (2007). The court can 

dismiss a petition despite a lack of responsive pleading if the petition is deficient as 

a matter of law. Id. at 8-9. However, the court cannot sua sponte dismiss a petition 

before the 30-day response period expires. People v. Laugharn, 233 Ill. 2d 318, 323 

(2009). Defendant cites Laugharn in support of his position that the dismissal of his 

petition was premature because he never properly served the State and thus the 

30-day response period never commenced. He further contends that, because the 

State was not properly served, the circuit court lacked personal jurisdiction and, 

therefore, the dismissal order is void. 

¶ 9 This court reviews the dismissal of a section 2-1401 petition de novo. People v.

Carter, 2015 IL 117709, ¶ 13. This court also reviews de novo whether the circuit 

court obtained personal jurisdiction. BAC Home Loans Servicing, LP v. Mitchell, 

2014 IL 116311, ¶ 17. 

¶ 10 As the appellant below, defendant had the burden of presenting a sufficiently 

complete record so that the reviewing court could determine whether the claimed 

error occurred. People v. Carter, 2015 IL 117709, ¶ 19. The State contends that 

defendant did not sufficiently show that service was improper. Alternatively, the 

State claims it had actual notice of the petition more than 30 days before the 

dismissal; therefore, the court had personal jurisdiction and dismissal was 

appropriate. However, the State urges this court to first address whether defendant 

should be estopped from making such an argument based on his own failure to 

properly serve the State or whether he has standing to challenge the dismissal order. 

¶ 11 We have been presented with this issue before. In Carter, the defendant 

similarly argued that dismissal of his section 2-1401 petition was premature 

because he had not yet correctly served the State. Id. ¶ 18. Based on the evidence in 

the record, we concluded that the defendant had failed to demonstrate that service 

was improper. Id. ¶ 22. We did not reach the State’s argument that a petitioner 

should not be able to challenge an order based on his own service error. Since then, 

several panels of our appellate court have considered this argument and reached 
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contradictory conclusions. Compare People v. Donley, 2015 IL App (4th) 130223, 

¶ 34 (“ ‘Defendant should not be able to serve a party incorrectly and then rely on 

the incorrect service to seek reversal’ of the trial court’s decision.” (quoting People 

v. Alexander, 2014 IL App (4th) 130132, ¶ 47)), Alexander, 2014 IL App (4th) 

130132, ¶ 46 (“[T]he 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.” (Emphasis in original.)), and People v. Kuhn, 2014 IL 

App (3d) 130092, ¶ 15 (“[D]efendant does not have standing to raise an issue 

regarding the State’s receipt of service.”), with People v. Monroe, 2015 IL App 

(3d) 130149-U, ¶¶ 16-17 (distinguishing Kuhn and concluding that, because the 

State was neither served nor had actual notice, the defendant’s challenge to the trial 

court order based on improper service was appropriate), and People v. Pena, 2015 

IL App (1st) 131744-U, ¶ 12 (vacating dismissal order based on petitioner’s failure 

to serve the State); see also People v. Bustos, 2015 IL App (1st) 131212-U, ¶ 8 

(discussing conflicting opinions of the appellate court on this issue). Therefore, we 

begin our analysis with this argument. 

¶ 12 Whether Defendant Is Estopped 

 From Challenging the Validity of the Order 

¶ 13 Defendant’s argument that the dismissal order should be reversed rests on his 

claim that service was improper. He concedes that such error was caused by his 

own failure to comply with the requirements of Rule 105. “[I]t is well established 

that ‘an accused may not ask the trial court to proceed in a certain manner and then 

contend in a court of review that the order which he obtained was in error.’ ” People 

v. Segoviano, 189 Ill. 2d 228, 241 (2000) (quoting People v. Lowe, 153 Ill. 2d 195, 

199 (1992)); see also People v. Hawkins, 181 Ill. 2d 41, 58 (1998) (“[T]he law is 

understandably reluctant to aid litigants responsible for the very errors of which 

they complain.”); Clemson v. President & Directors of the State Bank of Illinois, 2

Ill. 45, 46 (1832) (“It would be clearly unjust to permit a party to assign his own 

mistakes as errors to reverse a judgment.”). 

¶ 14 In People v. Villarreal, the defendant challenged the propriety of the verdict 

forms used at trial. 198 Ill. 2d 209, 227 (2001). The defendant’s own counsel 
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provided those forms. Id. The court concluded that “[t]o allow defendant to object, 

on appeal, to the very verdict forms he requested at trial, would offend all notions 

of fair play.” (Emphasis in original.) Id.; see also People v. Harvey, 211 Ill. 2d 368 

(2004) (concluding that the defendant was estopped, pursuant to the invited error 

doctrine, from challenging admission of mere-fact impeachment evidence on 

appeal after agreeing to the admission of the evidence at trial); People v. Carter,

208 Ill. 2d 309, 319 (2003) (precluding the defendant from challenging his 

conviction on grounds that a certain jury instruction was not given after he declined 

to provide such an instruction at trial when given an opportunity to do so). By filing 

the “proof/certificate of service,” defendant asked the court to proceed as though 

the State had been adequately notified of the proceedings. Therefore, defendant is 

now estopped from alleging the court erred in acquiescing to this request. See 

Harvey, 211 Ill. 2d at 385 (noting that the issue of invited error is often considered 

one of estoppel). 

¶ 15 Furthermore, if defendant were allowed to invalidate the circuit court’s order 

based on his own failure to properly serve the State, future litigants may have an 

incentive to improperly serve respondents or provide incomplete certificates of 

service to create a second opportunity to litigate their claims. See Alexander, 2014 

IL App (4th) 130132, ¶ 46 (“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.”). This would effectively revoke the State’s power to waive service in these 

cases. Such a result would be inconsistent with the purpose of Supreme Court Rule 

105 and of notice requirements generally. Rule 105 was designed to prevent a 

litigant from obtaining new or additional relief without first giving the opposing 

party an opportunity to appear and defend. Carter, 2015 IL 117709, ¶ 15. “ ‘The 

object of process is to notify a party of pending litigation in order to secure his 

appearance.’ ” (Internal quotation marks omitted.) Id. (quoting People v. Kuhn, 

2014 IL App (3d) 130092, ¶ 11). The 30-day requirement ensures the State has an 

opportunity to answer or otherwise plead. Laugharn, 233 Ill. 2d at 323. None of the 

notice requirements at issue were designed to allow a petitioner to object to lack of 

service on behalf of the opposing party. For these reasons, we conclude that 

defendant cannot challenge the trial court order based on his own failure to properly 

serve the State. 
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¶ 16 Whether Defendant Has Standing to Challenge the Order 

¶ 17 Defendant alternatively claims that, even if he is estopped from objecting to a 

violation of Rule 105, the entire proceedings were invalid and the dismissal order 

should be dismissed as void based on lack of personal jurisdiction over the parties. 

Courts must have both subject-matter and personal jurisdiction to enter a valid 

judgment. In re M.W., 232 Ill. 2d 408, 414 (2009). “Absent a general appearance, 

personal jurisdiction can be acquired only by service of process in the manner 

directed by statute.” State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986). 

Both parties agree the circuit court had jurisdiction over the subject matter of the 

litigation. 

¶ 18 Defendant maintains that the circuit court lacked personal jurisdiction over the 

State, based on his own failure to properly serve the State. Typically, a lack of 

personal jurisdiction argument based on improper service is raised by a respondent 

claiming an order is invalid because he or she did not receive notice of the 

proceedings. See, e.g., Keener v. City of Herrin, 235 Ill. 2d 338 (2009); State Bank 

of Lake Zurich, 113 Ill. 2d at 303. Defendant relies upon State Bank of Lake Zurich 

for the rule that a judgment entered without jurisdiction can be attacked at any time 

and “is void regardless of whether the defendant had actual knowledge of the 

proceedings” to support his position that he can challenge the circuit court’s order 

based on lack of personal jurisdiction over the State. 113 Ill. 2d at 308. This 

argument, however, fails to recognize that personal jurisdiction, unlike 

subject-matter jurisdiction, can be waived. In re M.W., 232 Ill. 2d 408, 417, 426-27 

(2009). 

¶ 19 In In re M.W., we concluded that, because objections to personal jurisdiction 

and improper service may be waived, “a party may ‘object to personal jurisdiction 

or improper service of process only on behalf of himself or herself.’ ” Id. at 427 

(quoting Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 29 (1998)). In that 

case, a minor was adjudicated delinquent. Id. at 412. She argued on appeal that the 

adjudication was void for lack of jurisdiction because her father had not been 

served in violation of the Juvenile Court Act of 1987. Id. We concluded that, 

because the father could waive service, the minor did not have standing to object to 

improper service on his behalf. Id. at 427. Therefore, the minor could not claim the 

adjudication was void for lack of personal jurisdiction over her father. Id.
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¶ 20 Nothing in In re M.W. indicates that this rule should be limited to proceedings 

pursuant to the Juvenile Court Act. The same logic applies outside the context of 

juvenile proceedings. For example, in In re Estate of Meskimen, the respondent 

challenged a trial court order on grounds that other trust beneficiaries had not been 

notified as required by the Probate Act. 39 Ill. 2d 415, 422 (1968). The court 

declined to consider the argument after noting the respondent was “in no position to 

raise the question.” Id. “The beneficiaries who failed to receive notice are the only 

persons in a position to raise the *** issue.” Id. at 422-23; see also In re Estate of 

Millsap, 75 Ill. 2d 247, 255 (1979) (“Appellant commenced these proceedings, 

appeared, and therefore was not entitled to notice. Since he was not entitled to 

notice, he may not complain of a failure to require that notice be given to others. 

Second, because he did have notice of the proceedings, appellant may not complain 

that others were not notified.”). We apply the same logic today to conclude that 

defendant lacks standing to challenge the validity of the circuit court’s dismissal 

order based on lack of personal jurisdiction over the State. 

¶ 21 Since we have concluded that defendant cannot object to improper service or 

lack of personal jurisdiction on behalf of the State, we need not consider whether 

the record is sufficient to support defendant’s claim that service was improper. Nor 

do we need to consider the merits of the substantive arguments originally raised in 

the petition. 

¶ 22 CONCLUSION 

¶ 23 A section 2-1401 petitioner must serve the responding party with notice of the 

petition in compliance with Supreme Court Rule 105. If the respondent is not 

properly served, the court lacks personal jurisdiction unless the respondent waives 

service or makes an appearance. Today, we do not address whether service 

complied with Rule 105 or whether the State waived service or filed an appearance. 

We do not need to reach a conclusion on these issues, because defendant is 

estopped from claiming service was improper based on his own failure to comply 

with the requirements of Rule 105. Notions of fair play dictate that a litigant should 

not be allowed to relitigate a matter resolved against him based on his own error. 

Furthermore, defendant does not have standing to challenge the validity of the 

circuit court’s dismissal order based on lack of personal jurisdiction. Because 
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service and personal jurisdiction can be waived, only the party to whom service is 

owed can object to improper service. Therefore, the judgment of the appellate court 

is reversed, and the judgment of the circuit court is affirmed. Defendant’s petition is 

dismissed with prejudice. 

¶ 24 Appellate court judgment reversed. 

¶ 25 Circuit court judgment affirmed.