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The People of the State of Illinois v. Herman L. Nitz

June 18, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
HERMAN L. NITZ, JR.,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 07-CF-2821 Honorable George J. Bakalis, Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

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

Justices Hutchinson and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Herman L. Nitz, Jr., appeals from the trial court's sua sponte dismissal of his petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)). We affirm as modified.

¶ 2 I. BACKGROUND

¶ 3 In November 2008, defendant was convicted of theft (720 ILCS 5/16-1(a) (West 2006)) and sentenced to 12 years' incarceration. An excessive-sentence argument was rejected on direct appeal. People v. Nitz, No. 2-09-0178 (2010) (unpublished order under Supreme Court Rule 23).

¶ 4 On September 23, 2009, defendant filed a notarized*fn1 petition for relief from judgment under section 2-1401, raising numerous issues. In later filings, he raised additional issues, including a claim that he was improperly sentenced as a Class X offender.

¶ 5 Defendant provided a document stating that he had caused the section 2-1401 petition, exhibits, and other supporting documents to be filed with the circuit clerk. In this document, entitled "proof/certificate of service-notice of filing and verification by certification," defendant verified his petition under section 1-109 of the Code (735 ILCS 5/1-109 (West 2008)) but his signature on the document was not notarized. Defendant did not give notice to the State. While defendant's proof of service shows that he mailed the petition to the Du Page County circuit clerk for filing, there is no proof of service on the State.

¶ 6 On October 21, 2009, the matter was taken up by the trial court. An assistant State's Attorney was present but did not participate beyond stating his name. The trial court dismissed the petition sua sponte, finding that defendant did not present any newly discovered or additional evidence and that the claims were previously addressed during trial and on posttrial motions. The court also found that defendant was properly sentenced as a Class X offender. The court memorialized its findings and decision in a written memorandum. Defendant appeals.

¶ 7 II. ANALYSIS

¶ 8 Defendant's sole contention is that People v. Laugharn, 233 Ill. 2d 318 (2009), prohibits the sua sponte dismissal of a defendant's section 2-1401 petition before the expiration of the 30-day period in which the State has time to answer,*fn2 because, until the expiration of that 30-day period, the case is not ripe for adjudication.

¶ 9 Section 2-1401 provides a comprehensive, statutory procedure that allows for the vacatur of a final judgment older than 30 days. Mills v. McDuffa, 393 Ill. App. 3d 940, 945 (2009). 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 relief is fraudulently concealed. Mills, 393 Ill. App. 3d at 945-46. The petition must be filed in the same proceeding in which the judgment was entered, but it is not a continuation of that proceeding. 735 ILCS 5/2-1401(b) (West 2008). The petition must be supported by affidavit or other appropriate showing as to matters not contained in the record. 735 ILCS 5/2-1401(b) (West 2008). All parties to the petition shall be notified as provided by rule. 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. Lofendo v. Ozog, 118 Ill. App. 3d 237, 240 (1983). Rule 105 provides 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. Ill. S. Ct. R. 105 (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. Ill. S. Ct. R. 105 (eff. Jan. 1, 1989). In this case, because the trial court dismissed the petition based on the pleading alone, our review is de novo. Mills, 393 Ill. App. 3d at 947.

¶ 10 We begin our discussion with People v. Vincent, 226 Ill. 2d 1 (2007), in which our supreme ...


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