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People v. Smith

Court of Appeals of Illinois, Third District

September 14, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
PAUL A. SMITH, Defendant-Appellant.

         Appeal 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.

          OPINION

          McDADE, JUSTICE

         ¶ 1 Defendant, Paul A. Smith, appeals the dismissal of his pro se petition for postjudgment relief. We affirm as modified.

         ¶ 2 FACTS

         ¶ 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 People v. Smith, No. 3-08-0408 (2010) (unpublished order under Supreme Court Rule 23).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) 140387-U.

         ¶ 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 victim.

         ¶ 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 proceedings."

         ¶ 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 untimely.

         ¶ 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 ...


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