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People v. Rucker

Court of Appeals of Illinois, Second District

June 27, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ADRIAN A. RUCKER, Defendant-Appellant.

          Appeal from the Circuit Court of Stephenson County. No. 04-CF-359 Honorable James M. Hauser, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion.Presiding Justice Hudson and Justice McLaren concurred in the judgment and opinion.

          OPINION

          JORGENSEN JUSTICE

         ¶ 1 Defendant, Adrian A. Rucker, appeals from the dismissal of his pro se petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), arguing that (1) the trial court dismissed the petition before it was ripe for adjudication, doing so only 14 days after the State moved to dismiss, which was 7 days short of the period allowed by Illinois Supreme Court Rule 182(a) (eff. Jan. 1, 1967), and (2) he was deprived of due process when the trial court dismissed his petition before he had an opportunity to meaningfully respond. We agree that defendant was deprived of due process, and thus we vacate the dismissal and remand the cause.

         ¶ 2 I. BACKGROUND

         ¶ 3 In 2006, after a jury trial, defendant was convicted of two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (2) (West 2004)) and one count each of aggravated battery with a firearm (id. §12-4.2), aggravated discharge of a firearm (id. § 24-1.2), and unlawful possession of a firearm by a felon (id. § 24-1.1). After merging the aggravated-battery and aggravated-discharge-of-a-firearm convictions, the trial court sentenced defendant to concurrent terms of 60 years' imprisonment for first-degree murder (including a 25-year firearm enhancement) and 28 years' imprisonment for unlawful possession of a firearm by a felon.

         ¶ 4 At trial, the State presented evidence that, at 1 a.m. on November 7, 2004, Freeport police responded to a shooting. Isaac Hall, who was lying on the ground between two parked cars, suffered five gunshot wounds and bled to death at the scene. Eleven shell casings were found at the scene: five from a .45-caliber gun and six from a .38-caliber gun. A firearms expert testified that the casings came from at least two different guns. It was possible that more than two weapons were involved, but the casings "definitely" did not come from just one weapon. Several witnesses testified that Hall was shot after he left an apartment party with two male companions. Defendant also attended the party, but he was not present in the apartment when Hall left the party. Krisana Patrick testified that she saw defendant, who wore a dark, hooded jacket, shoot Hall. Other witnesses testified that the shooter wore a dark, hooded jacket, but they did not identify defendant as the shooter. Three witnesses testified that Aisha Meeks, defendant's girlfriend, argued at the party with one of Hall's companions. Hall and the two men left, and shooting erupted outside. About two seconds afterward, Meeks entered the apartment and said something to the effect that her "baby daddy ain't punk, he'll ride. He got two of them thumpers." Three witnesses testified that "thumpers" referred to guns.

         ¶ 5 On direct appeal, this court affirmed, but we modified defendant's sentence for unlawful possession of a firearm by a felon to 14 years' imprisonment and amended the mittimus to provide an additional nine days' credit toward defendant's sentence. People v. Rucker, No. 2-06-0694 (2008) (unpublished order under Illinois Supreme Court Rule 23). Defendant filed a pro se petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)), and the trial court dismissed it as frivolous and patently without merit. We affirmed the summary dismissal of the petition. People v. Rucker, 2014 IL App (2d) 120951-U.

         ¶ 6 On November 24, 2014, defendant filed a pro se petition for relief from judgment under section 2-1401 of the Code. In his petition, he argued that the firearm enhancement was void because the State did not put him on notice of the enhanced penalty in the charging instrument or in a statutory notice of its intent to seek an aggravating factor. He also argued that the enhancement was not submitted to the jury, which did not receive separate aggravating-factor instructions or a special verdict form. Finally, defendant asserted that merging the aggravating-factor instructions into the first-degree-murder instructions constituted a double enhancement, and he alleged that trial counsel was ineffective during plea negotiations in that he gave incompetent advice concerning the enhancement.

         ¶ 7 On January 16, 2015, the State requested one month to respond to defendant's petition. The trial court granted the request. Defendant was not present.

         ¶ 8 On February 20, 2015, the State filed a motion to dismiss defendant's petition, arguing that it was filed more than two years after the judgment was entered and that the judgment was not void. At a hearing that day, the State asked if defendant should be brought to court, and the trial court replied in the negative.

         ¶ 9 Fourteen days later, on March 6, 2015, the trial court granted the State's motion and dismissed defendant's petition, finding that (1) the court had jurisdiction to enter the judgment and thus the judgment was not void, and (2) the petition was filed more than two years after the judgment and thus it was untimely (735 ILCS 5/2-1401(c) (West 2014)).

         ¶ 10 On March 23, 2015, defendant moved pro se to reconsider. He argued that the issues he raised in his petition concerned errors of fact that were unknown to him and the court when the judgment was entered, he had not previously raised the issues, and he had shown cause. Defendant also argued that the judgment was void as to the firearm enhancement, in that the State did not comply with the statute or put defendant on notice that he was being charged with the enhancement (which, further, violated the fifth, sixth, and fourteenth amendments). In sum, defendant asserted that he was not charged with the firearm enhancement, the jury was not instructed on it, it was not discussed during plea negotiations, and the court did not have the power to impose it.

         ¶ 11 At a hearing on July 24, 2015, only the State was present, and it asked the court to deny defendant's motion to reconsider, without further elaboration or argument. The court agreed, noting ...


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