from the Circuit Court of the 12th Judicial Circuit, Will
County, Illinois, Circuit No. 06-CF-1057, Honorable Amy M.
Bertani-Tomczak, Judge, Presiding.
JUSTICE McDADE delivered the judgment of the court, with
opinion. Justices Schmidt and Wright concurred in the
judgment and opinion.
1 Defendant, Paul A. Smith, appeals the dismissal of his
pro se petition for postjudgment relief. We affirm
3 Following two separate bench trials, defendant was found
guilty of aggravated battery with a firearm (720 ILCS
5/12-4.2(a)(1) (West 2006)) and being an armed habitual
criminal (720 ILCS 5/24-1.7 (West 2006)). The court sentenced
defendant to 40 years' imprisonment for aggravated
battery with a firearm to run consecutively with a 20-year
term for being an armed habitual criminal.
4 Defendant appealed, arguing that the circuit court erred in
limiting defendant's cross- examination of a State
witness. We affirmed defendant's convictions and
sentences. People v. Smith, No. 3-08-0408 (2010)
(unpublished order under Supreme Court Rule 23).
5 Subsequently, defendant filed a petition for postconviction
relief. The petition advanced to the second stage. Appointed
counsel amended defendant's petition and alleged, in
relevant part, that the State knowingly used perjured
testimony, which falsely claimed that defendant pushed his
mother during his confrontation with the victim. The circuit
court granted the State's motion to dismiss
defendant's postconviction petition. Defendant appealed,
arguing that postconviction counsel provided unreasonable
assistance. We affirmed the dismissal of defendant's
petition. People v. Smith, 2016 IL App (3d)
6 Next, on February 13, 2015, defendant filed a pro
se petition for relief from judgment pursuant to section
2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2014)). The notice accompanying the petition stated
that defendant sent the petition through regular mail. The
petition alleged that defendant's conviction was void
because he was indicted based on the false testimony that he
pushed his mother during his physical altercation with the
7 On February 18, 2015, the circuit court continued the case.
Defendant was not present in the courtroom, and the record
reveals no active participation by the State, although the
transcript from the proceeding does list the State as
appearing. The circuit court provided the State with a copy
of defendant's petition.
8 One day later, the State filed a special limited appearance
and objection to the circuit court's jurisdiction,
arguing that defendant had not properly served his pro
se petition, as defendant served the petition through
regular mail. On the same day, the State filed a combined
motion to dismiss defendant's petition. The motion argued
that defendant's petition should be dismissed on four
grounds: (1) the court lacked personal jurisdiction over it
because the State had not been properly served, (2)
defendant's petition failed to state a cause of action,
(3) the issues raised in defendant's petition were barred
by res judicata, and (4) the petition was untimely.
9 Eight days after the State filed its motions, the circuit
court held a hearing at which only the State was present. The
court dismissed the petition "for lack of jurisdiction
for the defendant's failure to properly serve the State
pursuant to Supreme Court Rules. Further, on the merits the
Court finds the issue is res judicata since the
issue was raised and decided during postconviction
10 After the court dismissed the petition, defendant filed a
pro se response to the State's motion to
dismiss. In his pro se motion, defendant
acknowledged that he failed to properly serve the State with
his petition. However, defendant stated that his failure to
properly serve the State was due to the fact that he lacked
sufficient funds in his inmate trust account and therefore
could not afford to send the petition via certified mail.
Defendant also addressed the State's arguments that
defendant's claim was barred by res judicata and
11 The circuit court held a hearing on defendant's
pro se response to the State's motion to
dismiss. The State appeared, but defendant was not present.
At the hearing, the State informed the court that defendant
had filed a response to the State's motion, but noted
that the court had already granted the State's motion to
dismiss. The docket entry corresponding to the hearing shows
that the court acknowledged ...