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.
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
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 ...