Appeal from Circuit Court of McLean County. No. 91CF480. Honorable Rebecca Simmons Foley, Judge Presiding.
The appellate court's dismissal of defendant's appeal from the trial court's sua sponte dismissal of his petition pursuant to section 2-1401 of the Code of Civil Procedure seeking relief from his convictions for three first degree murders committed during an armed robbery as frivolous was affirmed where the State did not challenge defendant's failure to properly serve the State but, rather, the State argued the petition was frivolous and did not state any basis for relief under section 2-1401, and the appellate court, agreeing that the petition was frivolous, also found that defendant's continued filing of such frivolous or procedurally barred claims resulted in the expenditure of scarce judicial resources, thereby requiring the appellate court to order that defendant show cause within 30 days why sanctions should not be imposed under Supreme Court Rule 375(b) against defendant for filing a frivolous appeal; and until defendant responds to that order, and the appellate court determines what action to take, the clerk of the court was directed not to file any new appeals submitted by defendant to this appellate court.
Michael J. Pelletier, of State Appellate Defender's Office, of Springfield, and Peter A. Carusona and Sean Conley, both of State Appellate Defender's Office, of Ottawa, for appellant.
Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Luke McNeill, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Pope and Justice Turner concurred in the judgment and opinion.
[¶1] In December 2012, defendant, Alvin A. Alexander, pro se filed a document entitled " Leave To File Petition for Relief From Judgment" under section 2-1401(f) of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-1401(f) (West 2012)). At the time of his filing, defendant was serving concurrent sentences of (1) natural life for the October 1998 first degree murder of three people and (2) 50 years for armed robbery (Ill. Rev. Stat. 1987, ch. 38, ¶ ¶ 9-1(a)(1), 18-2(a)). In January 2013, the trial court sua sponte denied defendant's petition, finding that it was frivolous as defined by section 22-105 of the Civil Code (735 ILCS 5/22-105 (West 2012)).
[¶2] Defendant appeals, urging this court to vacate the trial court's sua sponte denial of his December 2012 petition for relief from judgment. Specifically, defendant argues that because he did not properly serve the State as required by Illinois Supreme Court Rule 105 (eff. Jan. 1, 1989), his petition was not ripe for adjudication. For the reasons that follow, we affirm and remand with directions.
[¶3] I. BACKGROUND
[¶4] A. Defendant's Underlying Convictions
[¶5] In July 1991, the State charged defendant with (1) three counts of first degree murder, (2) three counts of first degree murder based on the felony-murder doctrine, and (3) armed robbery (Ill. Rev. Stat. 1987, ch. 38, ¶ ¶ 9-1(a)(1), (a)(3), 18-2(a)). Specifically, the State alleged that on October 27, 1988, defendant shot and killed Scott A. Burton, Robert J. Webb, and Whitney L. Cole during the commission of an armed robbery.
[¶6] At defendant's July 1992 jury trial, Tracey Gault testified that on October 27, 1988, she was working as a cashier at the S& S Liquor Store in Bloomington, Illinois, when she saw two men enter. As Gault began her preparations to close the store, she noticed the two men moving toward two other customers--later identified as Burton and Cole. Shortly thereafter, Gault saw the two men, Burton, and Cole walk down the main aisle of the store. Although Gault opined that Cole looked upset, she did not notice any interaction among them. Gault's coworker, Webb, then approached the group, who were now located between the cash register and the shelves that formed the main aisle. At that moment, Gault noticed that one of the men possessed a handgun.
[¶7] Both men ordered Gault, Webb, Burton, and Cole down on the floor. The taller man fired his handgun, which Gault considered a warning to follow their instructions. Both men then ordered Gault to open her cash register. After she complied, the shorter man--whom Gault identified as defendant--took the money from the register. Gault returned to the floor. Defendant then searched Cole's purse. Finding nothing of value, defendant and his accomplice--later identified as Glenn H. Wilson--stated, " Get the safe." Although their words were not directed at her, Gault got up and walked back to the safe, accompanied by defendant.
[¶8] Gault bent down, reached into the safe, and handed wrapped stacks of money to defendant, who stood directly behind her. Gault then turned toward defendant and asked if he wanted the change in the safe. Defendant responded, " Hell no. What are you looking at, bitch?" Defendant then struck Gault with his handgun,
causing her to fall back into a corner as her glasses hit the ground. Gault--now bleeding from the bridge of her nose--faced away from defendant. At that moment, Gault heard three shots. Afterward, Gault stated that everything " got quiet." About 20 seconds later, Gault crawled on her hands and knees and whispered, " You guys, you guys," attempting to determine whether Webb, Burton, and Cole were still in the store. When nobody answered, Gault looked around the corner and saw blood coming out of Cole's mouth. Gault retreated and called 9-1-1.
[¶9] The remaining pertinent testimony showed that when police arrived at the store, Webb, Burton, and Cole were lying on their stomachs with " their hands up to their heads." Burton died at the store but Webb and Cole--who were still breathing when police arrived--were transported to a hospital, where they died. Pathologists later determined that Webb, Burton, and Cole each died of a single gunshot wound to the head.
[¶10] The jury, after convicting defendant of all counts, determined that he was eligible for the death penalty as then authorized by Illinois law. However, following another hearing conducted shortly thereafter, the jury found sufficient mitigating factors to preclude the death penalty. Immediately after the jury's finding, the trial court imposed the following sentences: (1) natural life for each first-degree-murder conviction; (2) 80 years for each felony-murder conviction; and (3) 50 years for armed robbery, to be served concurrently.
[¶11] B. Defendant's Filings Subsequent to His Incarceration
[¶12] Defendant appealed his conviction and sentence, challenging (1) Gault's out-ofcourt and in-court identifications, (2) the trial court's admission of a black leather jacket, (3) the sufficiency of the evidence presented to convict him, and (4) his felony-murder convictions because they were based on the same physical act as his first-degree-murder convictions. This court affirmed but vacated defendant's felony-murder convictions. People v. Alexander, 259 Ill.App.3d 1043, 674 N.E.2d 1280, 221 Ill.Dec. 173, 221 Ill.Dec. 175 (1994) (unpublished order under Supreme Court Rule 23).
[¶13] In May 1993, defendant pro se filed his first petition for relief under the Post-Conviction Hearing Act (Postconviction Act) (725 ILCS 5/122-1 to 122-8 (West 1992)), alleging that his trial counsel was incompetent. In January 1995, defendant's appointed counsel filed a second amended postconviction petition, alleging that (1) defendant's sixth-amendment right to confront witnesses against him (U.S. Const., amend. VI) was violated when the State presented evidence of out-of-court statements made by Wilson and (2) defendant received ineffective assistance of trial and appellate counsel. Following a February 1995 hearing, the trial court denied defendant's petition.
[¶14] Defendant appealed, and this court affirmed, concluding, in pertinent part, that defendant failed to demonstrate a confrontation-clause violation, specifically noting that Wilson's statements did not inculpate defendant. People v. Alexander, 284 Ill.App.3d 1144, 708 N.E.2d 1285, 237 Ill.Dec. 245, slip order at 7 (1996) (unpublished order under Supreme Court Rule 23).
[¶15] In April 1997, defendant pro se filed a second postconviction petition, raising the same claims as in his first postconviction petition. In May 1997, the trial court dismissed defendant's petition as frivolous and patently without merit. Initially, defendant appealed the court's dismissal, but in August 1997, defendant abandoned his appeal.
[¶16] In June 1997, defendant filed a petition for relief from judgment under section 2-1401 of the Civil Code, alleging that the State knowingly used false evidence to convict him. In July 1997, the trial court struck defendant's petition because defendant's case was still on appeal from the court's May 1997 dismissal of defendant's second postconviction petition.
[¶17] In October 1997, defendant filed a petition for writ of habeas corpus pursuant to the Habeas Corpus Act (735 ILCS 5/10-101 to 10-137 (West 1996)), alleging that he was entitled to immediate release from prison because (1) he was innocent; (2) the State's indictment was tainted because African-Americans were excluded as grand jurors; (3) the appellate court, which affirmed his conviction, and the supreme court, which denied his petition for leave to appeal, were improperly constituted in that African-American and Hispanic jurists were underrepresented; (4) he was denied due-process when the State (a) knowingly used perjured testimony and (b) deliberately withheld impeachment evidence favorable to him; and (5) the trial court erroneously admitted into evidence a brown paper bag and a black leather jacket ...