JUSTICE GARMAN delivered the judgment of the court, with
opinion. Chief Justice Karmeier and Justices Freeman, Thomas,
Kilbride, Burke, and Theis concurred in the judgment and
1 On March 25, 2012, defendant Jerrell Matthews mailed a
petition for relief from judgment via the prison mail system
at Menard Correctional Center to the clerk of the Cook County
circuit court and the Cook County State's Attorney's
office. On May 24, 2012, the circuit court dismissed the
petition sua sponte as untimely. The appellate court
concluded that the dismissal was premature because the State
was never properly served. The judgment of the circuit court
was vacated, and the cause remanded. The State appealed to
this court pursuant to Illinois Supreme Court Rule 315 (eff.
July 1, 2013).
3 Defendant-petitioner was convicted of first degree murder
in 2007. The appellate court affirmed the conviction.
Defendant filed a postconviction petition in 2010 alleging
ineffective assistance of counsel and insufficient evidence
to support his conviction. The circuit court dismissed the
petition as frivolous and patently without merit. The
appellate court again affirmed.
4 On March 25, 2012, defendant mailed a petition for relief
from judgment pursuant to section 2-1401 of the Code of Civil
Procedure, asserting he was denied a fair trial based on
alleged perjury by a State's witness. 735 ILCS 5/2-1401
(West 2010). The substance of the petition is irrelevant for
purposes of this appeal. Defendant attached to the petition a
"proof/certificate of service, " which stated that
the petition was mailed "with proper first-class postage
attached thereto" via the prison mail system at Menard
Correctional Center to the clerk of the Cook County circuit
court and the Cook County State's Attorney's office.
The petition was marked "received" on April 11 by
the clerk's office and file-marked and docketed on April
23. On May 21, 2012, the circuit court continued the case. On
May 24, the circuit court entered an order in which it
dismissed the petition as untimely. The court further
explained that the petition contained no argument of merit
and lacked any supporting documentation. Defendant was not
present in the courtroom at the time of the dismissal, and
the transcript reveals no active participation by the
State's Attorney's office, although it does list
assistant State's Attorney Kimellen Chamberlain and
State's Attorney Anita Alvarez as appearing for the
5 On appeal, defendant argued that the dismissal was
premature because he never properly served the State and,
thus, the 30-day period for filing a response had not yet
expired. Defendant contended that service was improper
because the proof of service does not indicate that the
petition was mailed via certified or registered mail as
required by Illinois Supreme Court Rule 105 (eff. Sept. 28,
1978). The appellate court concluded that defendant did not
properly serve the State but that the State received actual
notice of the petition and forfeited any objection to
improper service. Thus, defendant's argument that the
dismissal was premature could not be sustained on the basis
that service was never effectively completed. However, the
appellate court held the petition was not ripe for
adjudication and dismissal was premature because less than 30
days had passed from the date the State received actual
notice of the filing. The appellate court reversed the
judgment of the circuit court and remanded the case for
further proceedings. The State filed a petition for leave to
appeal in this court, which was allowed January 20,
2016. Ill. S.Ct. R. 315.
7 The circuit court dismissed defendant's petition for
relief from judgment as untimely. Such petitions "must
be filed not later than 2 years after the entry of the order
or judgment, " unless the petitioner can demonstrate
that he or she has been "under legal disability or
duress" or unless the "ground for relief [has been]
fraudulently concealed." 735 ILCS 5/2-1401(c) (West
2010). Defendant does not challenge the circuit court's
finding that his petition was untimely, but he asserts that
the court's order dismissing the petition was premature
based on his own failure to comply with the applicable
service requirements. Ill. S.Ct. R. 106 (eff. Aug. 1, 1985)
(indicating that the service procedures set forth in Rule 105
apply to section 2-1401 petitions); Ill. S.Ct. R. 105
(setting forth the requirements for serving and filing a
8 Illinois Supreme Court Rule 105 provides that a section
2-1401 petitioner must provide the opposing party with notice
that the petition has been filed. Notice may be served in
person, by mail, or by publication. Ill. S.Ct. R. 105. If by
mail, service must be sent by certified or registered mail.
Id. The notice must inform the respondent that
"a judgment by default may be taken against him ***
unless he files an answer or otherwise files an appearance
*** within 30 days after service, receipt by certified or
registered mail, or the first publication of the
notice." Id. If the responding party fails to
respond within the 30-day period, any question as to the
petition's sufficiency is deemed waived, and the petition
is treated as properly stating a cause of action. People
v. Vincent, 226 Ill.2d 1, 8 (2007). The court
can dismiss a petition despite a lack of responsive pleading
if the petition is deficient as a matter of law. Id.
at 8-9. However, the court cannot sua sponte dismiss
a petition before the 30-day response period expires.
People v. Laugharn, 233 Ill.2d 318, 323
(2009). Defendant cites Laugharn in support of his
position that the dismissal of his petition was premature
because he never properly served the State and thus the
30-day response period never commenced. He further contends
that, because the State was not properly served, the circuit
court lacked personal jurisdiction and, therefore, the
dismissal order is void.
9 This court reviews the dismissal of a section 2-1401
petition de novo. People v.
Carter, 2015 IL 117709, ¶ 13. This court also
reviews de novo whether the circuit court obtained
personal jurisdiction. BAC Home Loans Servicing, LP
v. Mitchell, 2014 IL 116311, ¶ 17.
10 As the appellant below, defendant had the burden of
presenting a sufficiently complete record so that the
reviewing court could determine whether the claimed error
occurred. People v. Carter, 2015 IL 117709,
¶ 19. The State contends that defendant did not
sufficiently show that service was improper. Alternatively,
the State claims it had actual notice of the petition more
than 30 days before the dismissal; therefore, the court had
personal jurisdiction and dismissal was appropriate. However,
the State urges this court to first address whether defendant
should be estopped from making such an argument based on his
own failure to properly serve the State or whether he has
standing to challenge the dismissal order.
11 We have been presented with this issue before. In
Carter, the defendant similarly argued that
dismissal of his section 2-1401 petition was premature
because he had not yet correctly served the State.
Id. ¶ 18. Based on the evidence in the record,
we concluded that the defendant had failed to demonstrate
that service was improper. Id. ¶ 22. We did not
reach the State's argument that a petitioner should not
be able to challenge an order based on his own service error.
Since then, several panels of our appellate court have
considered this argument and reached contradictory
conclusions. Compare People v. Donley, 2015
IL App (4th) 130223, ¶ 34 (" 'Defendant should
not be able to serve a party incorrectly and then rely on the
incorrect service to seek reversal' of the trial
court's decision." (quoting People v.
Alexander, 2014 IL App (4th) 130132, ¶ 47)),
Alexander, 2014 IL App (4th) 130132, ¶ 46
("[T]he 30-day period does not provide a sword for a
petitioner to wield once a court-as in this case-does not
find in his favor, especially given that, under
defendant's interpretation, the basis of his claim on
appeal is his failure to comply with Rule 105."
(Emphasis in original.)), and People v.
Kuhn, 2014 IL App (3d) 130092, ¶ 15
("[D]efendant does not have standing to raise an issue
regarding the State's receipt of service."), with
People v. Monroe, 2015 IL App (3d)
130149-U, ¶¶ 16-17 (distinguishing Kuhn
and concluding that, because the State was neither served nor
had actual notice, the defendant's challenge to the trial
court order based on improper service was appropriate), and
People v. Pena, 2015 IL App (1st) 131744-U,
¶ 12 (vacating dismissal order based on petitioner's
failure to serve the State); see also People v.
Bustos, 2015 IL App (1st) 131212-U, ¶ 8
(discussing conflicting opinions of the appellate court on
this issue). Therefore, we begin our analysis with this
12 Whether Defendant Is Estopped From Challenging ...