Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. 04 CR 12109; 05 CR
10998; 05 CR 01458 (02) . The Honorable Mary Colleen Roberts,
APPELLANT: Michael J. Pelletier, State Appellate Defender,
Alan D. Goldberg, Deputy Defender, David M. Berger, Assistant
Appellate Defender, Office of the State Appellate Defender,
First Judicial District, Chicago, Illinois.
APPELLEE: Anita Alvarez, State's Attorney, County of
Cook, Alan J. Spellberg, Assistant State's Attorney,
Michelle Katz, Assistant State's Attorney, Joseph
Alexander, Assistant State's Attorney, Chicago, Illinois.
Presiding Justice and Palmer, Justice concurred in the
judgment and opinion.
[¶1] Defendant Vernon Jones pled guilty on
February 15, 2005, to possession of heroin in cases Nos. 04
CR 12109 and 05 CR 1458 and was sentenced to concurrent
24-month terms of probation. Later that year, on July 25,
2005, defendant pled guilty to possession of heroin in a
third case, No. 05 CR 10998. His probation in the prior two
cases was terminated unsatisfactorily, and he was sentenced
to three years with the Illinois Department of Corrections.
Defendant did not file a postplea motion or a direct appeal
in any of the three cases.
[¶2] In a subsequent section 2-1401
petition, defendant sought relief from his judgment of
conviction, alleging both ineffective assistance of counsel
and the failure of the trial court to admonish him about the
collateral consequences of his plea. See 735 ILCS 5/2-1401
(West 2012). It is this petition which is at issue on this
appeal. More than 30 days after the 2-1401 petition was filed
in court, the trial court dismissed it sua sponte,
on the grounds that it was untimely and that defendant's
claims also failed on the merits.
[¶3] On this appeal, defendant raises no
issues concerning the substance of the trial court's
order. Instead, defendant argues that the trial court erred
by dismissing his section 2-1401 petition, because it was not
properly served on the State and because the State had not
waived proper notice. Defendant asks this court either to
remand for further proceedings or, in the alternative, to
modify the trial court's judgment so that its dismissal
is without prejudice.
[¶4] Recently our supreme court issued an
opinion in People v. Carter, 2015 IL 117709, 398
Ill.Dec. 62, 43 N.E.3d 972, which held that a defendant, who
asserted his own improper service, has the burden of proving
that the service was, in fact, improper. Carter,
2015 IL 117709, ¶ ¶ 18-19. The Carter
court also specified what was needed in the record in order
to satisfy this burden. Carter, 2015 IL 117709,
¶ 20. The supreme court held: " To serve as a basis
for defendant's contention of error, [his] statement must
affirmatively establish that defendant mailed his petition
via some other means other than certified or registered
mail." Carter, 2015 IL 117709, ¶ 20. The
court held that a statement, which states that he placed the
petition in the institutional mailbox for mailing by United
States mail, is insufficient. Carter, 2015 IL
117709, ¶ 20. In the case at bar, defendant failed to
satisfy the burden described in Carter, and thus we
must affirm for the reasons explained below.
[¶6] Defendant's section 2-1401 petition
included both a motion to proceed in forma pauperis
and a motion to vacate sentence. The notice of motion,
which accompanied the petition, had both a "
received" stamp and a " filed" stamp by the
circuit court clerk's office. The " received"
stamp is dated May 7, 2013, and the " filed" stamp
is dated May 20, 2013.
[¶7] The record contains two documents
entitled " Certificate of Service" : one
accompanies the motion to proceed in forma pauperis
and the other accompanies the motion to vacate sentence.
However, they are both dated May 2, 2013, and they both
contain almost exactly the same language. In the "
Certificate of Service" attached to the motion to
vacate, defendant stated:
" I, Vernon Jones hereby state and affirm under the
penalties of perjury prescribed pursuant to Title 28 U.S.C.
§ 1746 that I mailed a true and correct copy of the
foregoing document to *** [the circuit court clerk's
office and the] Office of the Prosecuting Attorney, 2650
South California, Chicago, Illinois 60608 by placing said
document in the institutional mail box prepaid at the Federal
Correction Institute located at Post Office Box 33 Terre
Haute, Indiana 47808 in accordance with Houston v.
Lack, 101 L.Ed.2d 245, 487 U.S. 266, 108 S.Ct. 2379
(1988), which such mail is deemed filed with
the circuit court when said mail is handed to prison
officials for forwarding to the court."
document was signed by defendant, with an address indicating
that he was in the federal prison in Terre Haute, Indiana.
Defendant's brief to this court also states that he was
in federal custody in the federal prison in Terre Haute,
[¶8] The appellate record contains three
different half-sheets. The record contains separate sets of
half-sheets for case No. 04 CR 12109 and case no. 05 CR
01458, which were the two cases to which defendant pled
guilty on February 15, 2005, and also a set for case No. 05
CR 10998, which was the case to which defendant subsequently
pled guilty on July 25, 2005.
[¶9] The first entry for the petition on all
three half-sheets is dated May 20, 2013. The entries do not
identify the petition as a section 2-1401 petition, as
opposed to a postconviction petition. The petition is
described as " Motion Proceed in forma pauperis &
vacate sentence." All three half-sheets indicate status
dates were held on May 28, 2013, June 28, 2013, July 19,
2013, and August 2, 2013, with the dismissal on August 23,
[¶10] The transcript for August 23, 2013,
does not indicate that the State, defendant or a defense
counsel were present. The trial judge stated:
" This Court has drafted an order, and based upon the
analysis contained therein and the discussion, the Court
finds that the Petitioner has failed to show cause for relief
under Section 2-1401. Accordingly, the Petition ...