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People v. Jones

Court of Appeals of Illinois, First District, Fifth Division

December 31, 2015

VERNON JONES, Defendant-Appellant

         Appeal from the Circuit Court of Cook County. 04 CR 12109; 05 CR 10998; 05 CR 01458 (02) . The Honorable Mary Colleen Roberts, Judge, presiding.

         FOR 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.

         FOR 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.

         Reyes, 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.

         [¶5] BACKGROUND

          [¶6] Defendant's section 2-1401 petition included both a motion to proceed in forma pauperis and a motion to vacate sentence.[1] 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),[2] which such mail is deemed filed with the circuit court when said mail is handed to prison officials for forwarding to the court."

         The 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, Indiana.

          [¶8] The appellate record contains three different half-sheets.[3] 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, 2013.

          [¶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 ...

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