Appeal from the Circuit Court of Cook County. No. 09 CR 21603 Honorable Brian Flaherty, Judge Presiding.
The opinion of the court was delivered by: Justice Rochford
JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Hall concurred in the judgment and opinion.
¶ 1 Defendant, Dwayne Clemons, appeals the denial of his "MOTION FOR SPECIFIC PERFORMANCE OF PLEA AGREEMENT" (petition), which he filed pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2010)). Defendant's sole contention on appeal is that the trial court acted prematurely by denying his petition within 30 days of its filing and service, pursuant to People v. Laugharn, 233 Ill. 2d 318 (2009). We agree, vacate the denial of defendant's petition, and remand for further proceedings.
¶ 3 Defendant had been charged with 12 counts of aggravated unlawful use of a weapon, 2 counts of unlawful use of a weapon by a felon, 2 counts of aggravated discharge of a firearm, and 1 count of aggravated assault, all relating to an October 26, 2009, incident. On March 4, 2010, defendant pled guilty to 1 count each of aggravated discharge of a firearm and unlawful use of a weapon by a felon and was sentenced to seven years' imprisonment on both charges. On that date he also pled guilty to a single charge of aggravated fleeing and eluding brought in a separate case and was sentenced to three years' imprisonment. The sentences were to be served concurrently.
¶ 4 On April 2, 2010, defendant filed a motion to withdraw his guilty plea through counsel. The motion contended that, at the time of defendant's plea, he did not fully understand that he was required to serve 85% of his sentence for aggravated discharge of a firearm. On April 12, 2010, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code, seeking to vacate his sentence because the trial court erroneously had informed him that he "would serve the seven (7) year term of imprisonment at a good-time rate of 50%" (emphasis in original), rather than at a rate of 85%. On May 19, 2010, defendant appeared in court with counsel. The trial court, addressing defendant's motion to withdraw the plea, informed defendant: "If you do not understand it, I will let you withdraw your plea of guilty, and what's going to happen is that the State's Attorney is going to be reinstating all of the charges that they dismissed ***." Defendant told the trial court that he wished to withdraw his motion to vacate his plea. There is no evidence in the record on appeal as to the disposition of the section 2-1401 petition filed on April 12, 2010.
¶ 5 On June 11, 2010, defendant mailed a "MOTION FOR SPECIFIC PERFORMANCE OF PLEA AGREEMENT" to the clerk of the circuit court and to the office of the Cook County State's Attorney, which requested relief under section 2-1401 of the Code. The petition was file stamped on June 24, 2010. On appeal, the State has stated that it received notice of the petition. In his petition, defendant argued that he was deprived of due process because he had not been informed he would be required to serve 85% of his sentence and requested that his sentence be modified.
¶ 6 On July 1, 2010, the State was present in court at a hearing in which the trial court addressed the defendant's petition. The trial court sua sponte considered and denied the petition on that date, without hearing argument or evidence. The trial court stated:
"The defendant negotiated a plea for seven years Illinois Department of Corrections. That's what he got. He got eighty-five percent, which he is saying I should have told him about, and that's not true. That's not required. So the motion is denied."
Defendant filed this timely appeal from the denial of his section 2-1401 petition.
¶ 8 On appeal, defendant cites to Laugharn, contends that the trial court prematurely ruled upon his petition, and requests that the trial court's order be vacated and the case remanded. The State argues that the issues raised in the petition were ripe for adjudication because it was present in court when the trial court denied defendant's petition, and, therefore, it had an opportunity to challenge the petition.
¶ 9 Section 2-1401 establishes a procedure for seeking relief from judgments, in both criminal and civil cases, more than 30 days after their entry. 735 ILCS 5/2-1401 (West 2010); People v. Vincent, 226 Ill. 2d 1, 8 (2007). In general, a section 2-1401 petition must be filed within two years of the entry of judgment. 735 ILCS 5/2-1401(c) (West 2010). The rules of civil practice govern proceedings under this section, even in criminal proceedings. Vincent, 226 Ill. 2d at 8. Illinois Supreme Court Rule 106 (eff. Aug. 1, 1985) provides that a petitioner must notify all parties of the petition in accordance with Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989). The notice must inform the responding party that an answer to the ...