Illinois Official Reports 

Appellate Court

People v. Smith, 2017 IL App (3d) 150265

Appellate Court 

Caption

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

PAUL A. SMITH, Defendant-Appellant.

District & No. Third District

Docket No. 3-15-0265

Filed September 14, 2017

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 06-CF-1057; the 

Hon. Amy M. Bertani-Tomczak, Judge, presiding.

Judgment Affirmed as modified.

Counsel on

Appeal

Michael J. Pelletier and Ryan R. Wilson, of State Appellate 

Defender’s Office, of Springfield, for appellant.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, 

Lawrence M. Bauer, and Gary F. Gnidovec, of State’s Attorneys 

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

Panel JUSTICE McDADE delivered the judgment of the court, with 

opinion.

Justices Schmidt and Wright concurred in the judgment and opinion. 
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 OPINION 

¶ 1 Defendant, Paul A. Smith, appeals the dismissal of his pro se petition for postjudgment 

relief. We affirm as modified. 

¶ 2 FACTS 

¶ 3 Following two separate bench trials, defendant was found guilty of aggravated battery with 

a firearm (720 ILCS 5/12-4.2(a)(1) (West 2006)) and being an armed habitual criminal (720 

ILCS 5/24-1.7 (West 2006)). The court sentenced defendant to 40 years’ imprisonment for 

aggravated battery with a firearm to run consecutively with a 20-year term for being an armed 

habitual criminal. 

¶ 4 Defendant appealed, arguing that the circuit court erred in limiting defendant’s 

cross-examination of a State witness. We affirmed defendant’s convictions and sentences.

People v. Smith, No. 3-08-0408 (2010) (unpublished order under Supreme Court Rule 23). 

¶ 5 Subsequently, defendant filed a petition for postconviction relief. The petition advanced to 

the second stage. Appointed counsel amended defendant’s petition and alleged, in relevant 

part, that the State knowingly used perjured testimony, which falsely claimed that defendant 

pushed his mother during his confrontation with the victim. The circuit court granted the 

State’s motion to dismiss defendant’s postconviction petition. Defendant appealed, arguing 

that postconviction counsel provided unreasonable assistance. We affirmed the dismissal of 

defendant’s petition. People v. Smith, 2016 IL App (3d) 140387-U.

¶ 6 Next, on February 13, 2015, defendant filed a pro se petition for relief from judgment 

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2014)). 

The notice accompanying the petition stated that defendant sent the petition through regular 

mail. The petition alleged that defendant’s conviction was void because he was indicted based 

on the false testimony that he pushed his mother during his physical altercation with the victim. 

¶ 7 On February 18, 2015, the circuit court continued the case. Defendant was not present in 

the courtroom, and the record reveals no active participation by the State, although the 

transcript from the proceeding does list the State as appearing. The circuit court provided the 

State with a copy of defendant’s petition.

¶ 8 One day later, the State filed a special limited appearance and objection to the circuit 

court’s jurisdiction, arguing that defendant had not properly served his pro se petition, as 

defendant served the petition through regular mail. On the same day, the State filed a combined 

motion to dismiss defendant’s petition. The motion argued that defendant’s petition should be 

dismissed on four grounds: (1) the court lacked personal jurisdiction over it because the State 

had not been properly served, (2) defendant’s petition failed to state a cause of action, (3) the 

issues raised in defendant’s petition were barred by res judicata, and (4) the petition was 

untimely. 

¶ 9 Eight days after the State filed its motions, the circuit court held a hearing at which only the 

State was present. The court dismissed the petition “for lack of jurisdiction for the defendant’s 

failure to properly serve the State pursuant to Supreme Court Rules. Further, on the merits the 

Court finds the issue is res judicata since the issue was raised and decided during 

postconviction proceedings.”
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¶ 10 After the court dismissed the petition, defendant filed a pro se response to the State’s 

motion to dismiss. In his pro se motion, defendant acknowledged that he failed to properly 

serve the State with his petition. However, defendant stated that his failure to properly serve 

the State was due to the fact that he lacked sufficient funds in his inmate trust account and 

therefore could not afford to send the petition via certified mail. Defendant also addressed the 

State’s arguments that defendant’s claim was barred by res judicata and untimely. 

¶ 11 The circuit court held a hearing on defendant’s pro se response to the State’s motion to 

dismiss. The State appeared, but defendant was not present. At the hearing, the State informed 

the court that defendant had filed a response to the State’s motion, but noted that the court had 

already granted the State’s motion to dismiss. The docket entry corresponding to the hearing 

shows that the court acknowledged defendant’s response, but that defendant’s petition had 

already been dismissed. The court took no further action. 

¶ 12 Subsequently, defendant filed a pro se motion to reconsider the circuit court’s decision 

granting the State’s motion to dismiss. Defendant’s motion again alleged that he attempted to 

properly serve the State, but he lacked sufficient funds to send the petition by certified mail. 

Defendant requested the court to excuse his failure to comply with the service requirements. In 

addition, defendant argued that the circuit court erred when it went beyond the issue of 

improper service and ultimately found his claim barred by res judicata.

¶ 13 The court held a hearing on defendant’s motion to reconsider, at which time only the State 

appeared. The court denied defendant’s motion to reconsider.

¶ 14 ANALYSIS 

¶ 15 Initially, we note that both parties agree that defendant failed to properly serve the State 

with his section 2-1401 petition. Service of a section 2-1401 petition is governed by the 

requirements of Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). See Ill. S. Ct. R. 106 (eff. 

Aug. 1, 1985). Rule 105 provides that service may be effected by summons, certified or 

registered mail, or by publication. Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). Here, defendant 

served the petition on the State through regular mail. Service was, therefore, insufficient, and 

the court lacked personal jurisdiction over the State. See BAC Home Loans Servicing, LP v. 

Mitchell, 2014 IL 116311, ¶ 18 (personal jurisdiction may be established either by sufficient 

service or by a party’s submission to jurisdiction).

¶ 16 Despite his failure to properly serve the State, defendant contends that dismissal was 

premature. Specifically, defendant contends that because he failed to properly serve the State, 

the 30-day period within which the State could respond to the petition never commenced. We 

find our supreme court’s recent decision in People v. Matthews, 2016 IL 118114, instructive. 

¶ 17 In Matthews, defendant mailed a section 2-1401 petition by regular mail. Id. ¶ 4. The State 

did not appear or respond to the petition. Id. Subsequently, the circuit court sua sponte

dismissed the petition on the basis that the petition was untimely, contained no argument of 

merit, and lacked any supporting documentation. Id. The court did not consider the 

jurisdictional issue in dismissing defendant’s petition. On appeal, defendant argued that he 

failed to properly serve the State with his section 2-1401 petition, and he argued that the 

dismissal order was premature based on his own failure to comply with the applicable service 

requirements. Id. ¶ 7. The court in Matthews rejected defendant’s contention that the 30-day 

period never commenced because he never properly served his petition on the State. Id. ¶ 8. 

Specifically, the court held that defendant lacked standing to raise an objection to personal 
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jurisdiction on the State’s behalf. Id. ¶ 20. In so holding, the court found that a “defendant 

cannot challenge the trial court order based on his own failure to properly serve the State.” Id.

¶ 15. The court proceeded to affirm the dismissal of the petition on the merits. Id. ¶¶ 21-23. 

¶ 18 Like the defendant in Matthews, defendant seeks to use his own failure to comply with the 

supreme court rules as grounds to challenge the court’s dismissal order. Because defendant 

cannot use his failure to comply with the supreme court rules to raise an objection on the 

State’s behalf, he lacks standing to argue that dismissal was premature. However, unlike the 

defendant in Matthews, in the present case the State first raised the issue of personal 

jurisdiction. In other words, defendant is not raising an objection on behalf of the State. 

Instead, he challenges the circuit court’s response to the issues raised in the State’s combined 

motion to dismiss. Thus, while defendant lacks standing to raise an objection to personal 

jurisdiction on the State’s behalf, he can challenge the circuit court’s determination on the 

issues raised in the State’s combined motion to dismiss. 

¶ 19 When considering a combined motion objecting to personal jurisdiction and a motion to 

dismiss on other grounds, the circuit court must address the jurisdictional issue first. Ryburn v. 

People, 349 Ill. App. 3d 990, 994 (2004). In the instant case, the circuit court dismissed 

defendant’s petition for failing to properly serve the State. However, the court went beyond the 

jurisdictional question and also reached the merits of defendant’s petition. Once the circuit 

court determines there is no personal jurisdiction over the State, the court has no power to 

dismiss the petition on the merits. Id. at 993. A dismissal on jurisdictional grounds is not 

res judicata on the merits of the petition. Id. at 994. Accordingly, we modify the court’s order 

to reflect that defendant’s petition was dismissed, without prejudice, on the grounds that 

defendant’s failure to serve the State by certified mail deprived the court of personal 

jurisdiction. We vacate the finding on the merits. 

¶ 20 In reaching this conclusion, we reject defendant’s contention that the circuit court’s 

dismissal order should be reversed in its entirety and the cause remanded so that he can 

properly serve the State. We believe the relief we have granted is tantamount to what defendant 

has sought but we disagree with his rationale. Specifically, defendant contends that because the 

State filed its special and limited appearance, the circuit court was obligated to provide him 

with the opportunity to respond to the State’s arguments. There is no dispute that defendant 

failed to comply with the service requirements of Rule 105. Therefore, the court could have 

acted sua sponte to dismiss the petition because service was improper and it lacked personal 

jurisdiction. Defendant fails to explain how the State’s decision to file a limited appearance 

contesting jurisdiction legally precludes a court from acting sua sponte. In either case, the 

court can properly determine that it lacks jurisdiction, and the petition must be dismissed. See 

State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308-09 (1986) (personal jurisdiction can be 

acquired only by service of process in the manner directed by statute). Significantly, defendant 

here suffers no prejudice from our decision to modify the dismissal order to reflect that the 

dismissal was only on jurisdictional grounds. As noted above (supra ¶ 19), dismissal on 

jurisdictional grounds is not res judicata on the merits of the petition. Therefore, defendant 

may refile his petition, comply with the service requirements, and have his petition heard. 

¶ 21 Defendant has also raised an alternative argument that relies on Illinois Supreme Court 

Rule 104 (eff. Jan. 4, 2013) to assert that his failure to comply with service may be excused by 

the court upon his application. Rule 104(c) provides: “For good cause shown on ex parte

application, the court or any judge thereof may excuse the delivery or service of any complaint, 
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pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish a 

copy promptly and without charge to any party requesting it.” Ill. S. Ct. R. 104(c) (eff. Jan. 4, 

2013). Therefore, defendant argues that the court should not have acted on the State’s motion, 

without first allowing defendant to respond to the State’s argument and seek the court’s 

permission to excuse his improper service. Because Rule 105 governs service of section 

2-1401 petitions, we find defendant’s reliance on Rule 104 misplaced. See Ill. S. Ct. R. 106 

(eff. Aug. 1, 1985) (notice of filing of a petition under section 2-1401 shall be governed by the 

same methods provided in Rule 105 for the giving of notice of additional relief to parties in 

default). Rule 105 does not contain the above quoted exception for failing to comply with the 

service requirements of a section 2-1401 petition. Therefore, the circuit court would have no 

basis to excuse defendant’s improper service.

¶ 22 We would be remiss if we did not acknowledge the difficulty an individual faces when 

attempting to file a pleading while incarcerated. Like defendant in the instant case, many 

incarcerated individuals lack the financial resources necessary to serve the State via certified 

mail. The fact remains, however, that the supreme court has not provided an impoverishment 

exception to the service requirements contained within Rule 105. Moreover, while on its face, 

we find it troubling that the State was allowed to present its limited appearance and motion to 

dismiss without input from defendant, we note that our supreme court, faced with a factual 

variant of that same question in People v. Vincent, 226 Ill. 2d 1, 13 (2007), found that 

“adequate procedural safeguards exist to prevent erroneous sua sponte terminations.”

¶ 23 In Vincent, the circuit court sua sponte dismissed defendant’s section 2-1401 petition, even 

though the State neither appeared nor filed a response. Id. at 5. The dismissal was on the merits 

and not on jurisdictional grounds. Id. Defendant argued that even if the circuit court could act 

without a response from the State, the court was required to provide him notice and an 

opportunity to respond to the court’s action. Id. at 10. The supreme court rejected defendant’s 

contention on the basis that a defendant’s ability to file a motion to reconsider and to appeal the 

dismissal order provided sufficient safeguards to prevent an erroneous sua sponte dismissal of 

a section 2-1401 petition. Id. at 12-13. In coming to this conclusion, the supreme court noted 

that the practice of sua sponte dismissing meritless complaints “comports with due process and 

does not infringe the right of access to the courts.” Id. at 13. 

¶ 24 Though Vincent involved a court sua sponte dismissing a section 2-1401 petition, its 

reasoning arguably applies equally to the instant case (where dismissal occurs upon the State’s 

motion). Of the available remedies, a defendant whose petition has been disposed of by the 

court could file a motion to reconsider (which defendant did in this case). See 735 ILCS 

5/2-1203 (West 2014). In addition, a defendant whose cause of action has been terminated for 

improper service could appeal and argue that service was in fact proper (which defendant does 

not argue). See People v. Flowers, 208 Ill. 2d 291, 307 (2003). Thus, the availability of 

corrective remedies, such as a motion to reconsider, render defendant’s absence from the 

hearing and his inability to timely respond to the State’s motion “less of a concern.” Vincent, 

226 Ill. 2d at 13. This defendant utilized one such remedy in the circuit court by filing his 

motion to reconsider. The court considered the motion and denied it. He also filed the instant 

appeal. Further, the mere fact that the State was present at these hearings and presented its 

motion to dismiss in defendant’s absence cannot be characterized as improper ex parte 

communications or waiver of its jurisdictional challenge. Until the law evolves to take into 

account the policy considerations presented in the instant case, we are bound to apply the 
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holdings and rules of our supreme court (Matthews, 2016 IL 118114, ¶ 23; Vincent, 226 Ill. 2d 

at 13; Ill. S. Ct. R. 105 (eff. Jan. 1, 1989)). Blumenthal v. Brewer, 2016 IL 118781, ¶¶ 28-29 

(where our supreme court has declared the law on any point, it alone can overrule and modify 

its previous opinion, and the lower tribunals are bound by such decisions and it is the duty of 

such lower tribunals to follow such decisions in similar cases). 

¶ 25 CONCLUSION 

¶ 26 The judgment of the circuit court of Will County dismissing defendant’s section 2-1401 

petition on jurisdictional grounds is affirmed as modified. 

¶ 27 Affirmed as modified.