People v. Vincent

Docket No. 101477.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JAKE

VINCENT, Appellant.

Opinion filed June 7, 2007.

JUSTICE FREEMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Fitzgerald, Garman, Karmeier,

and Burke concurred in the judgment and opinion.

Justice Kilbride dissented, with opinion.

OPINION

Jake Vincent unsuccessfully petitioned for postjudgment relief

pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS

5/2–1401 (West 2002)) in the circuit court of Cook County. The

appellate court affirmed. No. 1–04–1802 (unpublished order under

Supreme Court Rule 23). We granted leave to appeal (210 Ill. 2d R.

315) and affirm the judgment of the appellate court.

Background

Vincent was convicted in a bench trial of five counts each of

attempted murder, armed violence, aggravated battery with a firearm,

and aggravated battery. The circuit court sentenced him to five

consecutive 20-year prison terms. The appellate court affirmed the

convictions and sentences on direct appeal. People v. Vincent, No.

1–98–3942 (1999) (unpublished order under Supreme Court Rule 23).

Vincent, having been denied relief under the Post-Conviction Hearing

Act (725 ILCS 5/122–2 et seq. (West 2002); People v. Vincent, No.

1–02–0836 (2003) (unpublished order under Supreme Court Rule

23)), sought to challenge his sentences by way of the Code of Civil

Procedure. To that end, he filed, on January 30, 2004, a pro se

petition, which he titled “Collateral Attack Upon a Void Judgment

Pursuant to ILCS 5/2–1401(f).” He alleged in this petition that the

circuit court violated sections 5–8–4(a) and 5–8–4(c)(2) of the

Unified Code of Corrections (730 ILCS 5/5–8–4(a), (c)(2) (West

1998)) in imposing sentence.

The State did not file any responsive pleading to the petition. The

circuit court’s disposition of the petition consists of three lines on a

single page of the transcript: “Jake Vincent. He’s saying that it’s a

void judgment, and he wants me to vacate his sentence of a hundred

years, and that will be denied.”

On appeal, the appellate court concluded that the circuit court had

erred in “summarily dismissing” Vincent’s petition because section

2–1401 does not provide for such a disposition. The court, however,

considered this procedural error harmless because Vincent’s claims

were without merit.

Analysis

The question raised in this case is whether a trial court may

dispose of a properly served section 2–1401 petition without benefit

of responsive pleadings and without giving the petitioner notice of the

impending ruling and the opportunity to address the court prior to the

ruling. Over the past several years, the appellate court has

inconsistently answered the question of the sua sponte disposition of

section 2–1401 petitions brought by those convicted of crimes. Some

panels have approved the practice under the rationale that a sua

sponte disposition is analogous to the summary dismissal procedure

contained in the Post-Conviction Hearing Act. See, e.g., People v.

Bramlett, 347 Ill. App. 3d 468, 473 (2004). Others have approved the

practice under the rationale that a sua sponte disposition is proper

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under the inherent authority of a court to control its docket. See, e.g.,

People v. Ryburn, 362 Ill. App. 3d 870, 876 (2005). Still others

prohibit the practice entirely, reasoning that a petitioner must be given

notice and the opportunity to respond (in the absence of any

responsive pleading) before the trial court may rule. See, e.g., People

v. Gaines, 335 Ill. App. 3d 292, 296 (2002). Vincent relies on this last

line of cases in arguing that the trial court’s order in this case cannot

stand, while the State cites to the first two lines of appellate decisions

in support of upholding the trial court’s order.

A common theme running through the appellate court’s decisions

is the court’s use of the term “summary dismissal.” The term is

borrowed from the Post-Conviction Hearing Act. However, using this

term to describe what the trial court did in cases such as this one

overlooks two critical points: (i) the Post-Conviction Hearing Act,

which provides collateral relief from criminal convictions, has no

application whatsoever to section 2–1401, an entirely different form

of statutory, collateral relief, and (ii) an action brought under section

2–1401 is a civil proceeding and, according to this court’s long-

standing precedent, is subject to the usual rules of civil practice, even

when it is used to challenge a criminal conviction or sentence. In civil

practice, there is no such thing as a “summary dismissal.” The failure

to recognize these points necessitates our reiteration of the

appropriate trial-level practice and procedure required in section

2–1401 litigation and provides us the opportunity to address the

standards of review that must follow on appeal. See D. Simko,

Updating the Standard of Review for Petitions to Vacate Final

Judgments, 86 Ill. B.J. 34 (1998) (criticizing use of the abuse of

discretion standard of review and proposing other standards in light

of precedent).

I

Section 2–1401 establishes a comprehensive, statutory procedure

that allows for the vacatur of a final judgment older than 30 days. 735

ILCS 5/2–1401 (West 2002). While the remedy in the statute does

have its roots in common law equity, the General Assembly abolished

the common law writ system and replaced it with the statutory

postjudgment petition. 735 ILCS 5/2–1401(a) (West 2002). See also

Ill. Ann. Stat., ch. 110, par. 2–1401, Historical & Practice Notes, at

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604 (Smith-Hurd 1983). Section 2–1401 requires that the petition be

filed in the same proceeding in which the order or judgment was

entered, but it is not a continuation of the original action. 735 ILCS

5/2–1401(b) (West 2002).1 The statute further requires that the

petition be supported by affidavit or other appropriate showing as to

matters not of record. 735 ILCS 5/2–1401(b) (West 2002). The

statute provides that petitions must be filed not later than two years

after the entry of the order or judgment. 735 ILCS 5/2–1401(c) (West

2002). The statute further provides for an exception to the time

limitation for legal disability and duress or if the ground for relief is

fraudulently concealed. 735 ILCS 5/2–1401(c) (West 2002).2 Relief

under section 2–1401 is predicated upon proof, by a preponderance

of evidence, of a defense or claim that would have precluded entry of

the judgment in the original action and diligence in both discovering

the defense or claim and presenting the petition. Smith v. Airoom,

Inc., 114 Ill. 2d 209 (1986). Finally, section 2–1401 is a civil remedy

that extends to criminal cases as well as to civil cases. People v.

Sanchez, 131 Ill. 2d 417, 420 (1989); People v. Hinton, 52 Ill. 2d 239

(1972).

This court has consistently held that proceedings under section

2–1401 are subject to the usual rules of civil practice. Ostendorf v.

International Harvester Co., 89 Ill. 2d 273, 279 (1982) (and cases

cited therein). Section 2–1401 petitions are essentially complaints

inviting responsive pleadings. Ostendorf, 89 Ill. 2d at 279. The

petition is subject to dismissal for want of legal or factual sufficiency.

Brockmeyer v. Duncan, 18 Ill. 2d 502 (1960). Thus, the petition may

be dismissed upon a challenge that, even taking as true its allegations,

1

The statute provides that “[a]ll parties to the petition shall be notified as

provide by rule.” 735 ILCS 5/2–1401(b) (West 2002). Rule 106 governs the

methods of notice to be used for petitions filed pursuant to section 2–1401.

134 Ill. 2d R. 106.

2

However, where, as in this case, a petitioner seeks to vacate a final

judgment as being void (735 ILCS 5/2–1401(f) (West 2002)), the allegations

of voidness “substitute[ ] for and negate[ ] the need to allege a meritorious

defense and due diligence.” Sarkissian v. Chicago Board of Education, 201

Ill. 2d 95, 104 (2002).

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it does not state a meritorious defense or diligence under section

2–1401 case law. “Like a complaint, the petition may be challenged

by a motion to dismiss for its failure to state a cause of action or if, on

its face, it shows that the petitioner is not entitled to relief.” Klein v.

La Salle National Bank, 155 Ill. 2d 201, 205 (1993), citing Ostendorf,

89 Ill. 2d at 279-80; Brockmeyer, 18 Ill. 2d at 505.

As with complaints generally, when the opposing party elects to

forgo filing a motion attacking the sufficiency of the petition and

answers on the merits, the respondent is deemed to have waived any

question as to the petition’s sufficiency, and the petition will be

treated as properly stating a cause of action. Windmon v. Banks, 31

Ill. App. 3d 870, 873 (1975); Carroll & Neiman, Inc. v. Silverman, 28

Ill. App. 3d 289, 291 (1975); see Smyth v. Fargo, 307 Ill. 300, 305

(1923) (stating principle for complaints generally). On appeal, any

claim of insufficiency will be deemed to have been defaulted.

However, as in any civil action, if the facts alleged cannot state a legal

basis for the relief requested, i.e., the petition is insufficient as a matter

of law, the pleading may be challenged at any time, even on appeal.

Wagner v. Kepler, 411 Ill. 368, 371 (1951).

Similarly, if the respondent does not answer the petition, this

constitutes an admission of all well-pleaded facts (Robinson v.

Commonwealth Edison Co., 238 Ill. App. 3d 436, 442 (1992)), and

the trial court may decide the case on the pleadings, affidavits, exhibits

and supporting material before it, including the record of the prior

proceedings. Ostendorf, 89 Ill. 2d at 286; Klein, 155 Ill. 2d at 205.

This court has long held that summary judgment considerations apply

to petitions that survive dismissal. Ostendorf, 89 Ill. 2d at 286; Klein,

155 Ill. 2d at 205. Where a material issue of fact exists, summary

judgment is inappropriate and an evidentiary hearing–a trial in

effect–is required in ruling on the petition. Ostendorf, 89 Ill. 2d at

286.

The foregoing discussion of our precedent leads to several

conclusions. First, we expressly hold that responsive pleadings are no

more required in section 2–1401 proceedings than they are in any

other civil action. Therefore, we reject the notion that the trial court

was prohibited from acting because of the lack of a responsive

pleading from the State. Second, consistent with our case law, we

recognize that several types of final dispositions are possible in section

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2–1401 litigation. In fact, there are five: the trial judge may dismiss

the petition; the trial judge may grant or deny the petition on the

pleadings alone (summary judgment); or the trial judge may grant or

deny relief after holding a hearing at which factual disputes are

resolved. See M. Kaufman, Illinois Civil Trial Practice, in 9 Illinois

Practice §40.2 (1996) (setting forth various dispositions available

under the statute); 86 Ill. B.J. 34 (same).

In this case, the State’s failure to answer the petition constituted

an admission of all well-pleaded facts (see Robinson, 238 Ill. App. 3d

at 442) and rendered Vincent’s petition ripe for adjudication. The

State’s failure to answer made the issue for the court a question of

whether the allegations in Vincent’s petition entitled him to relief as

a matter of law. See Government Employees Insurance Co. v. Buford,

338 Ill. App. 3d 448, 457 (2003) (noting that when a complaint fails

to tender a triable issue of fact and is insufficient as a matter of law,

judgment on the pleadings is appropriate); Mitchell v. Norman James

Construction Co., 291 Ill. App. 3d 927, 932 (1997) (explaining that

granting of judgment on the pleadings in favor of a defendant who has

never filed an answer in the action is the “functional equivalent of

dismissing the complaint for failure to state a cause of action against

that defendant”). Case law has long recognized that a such a

judgment, whether it be characterized as a judgment on the pleadings

or a dismissal, can be entered by the court notwithstanding the

absence of a responsive pleading. Mitchell, 291 Ill. App. 3d at 937-38,

citing Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024 (1984).

II

Vincent maintains that even if the State is not required to respond

to a section 2–1401 petition, a “summary dismissal” like that entered

in this case amounts to reversible error because such a dismissal is not

recognized in section 2–1401 jurisprudence. In addition, he claims that

the trial court cannot rule as it did without first affording him notice

and the opportunity to respond.

We believe it is useful, at this point in our opinion, to address the

use of the term “summary dismissal.” In this case, the term was first

used by the appellate court to describe the trial court’s action. Vincent

uses the term throughout his brief, as does the State. The term

“summary dismissal” has no application to this case for several

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different reasons. As an initial matter, the use of the term invites

confusion because that term has a precise meaning under the Post-

Conviction Hearing Act. Section 122–2.1(a)(2) of the Act specifically

allows for the circuit court to dismiss, in noncapital cases, a

postconviction petition in summary fashion if the court determines that

“the petition is frivolous or is patently without merit.” 725 ILCS

5/122–2.1(a)(2) (West 2004); see also People v. Rivera, 198 Ill. 2d

364 (2001) (explaining the nature of the summary dismissal procedure

under Post-Conviction Hearing Act). “Summary dismissals” are not

recognized under the Code of Civil Procedure in general or section

2–1401 in particular. While we acknowledge that such a procedure is

a part of the Post-Conviction Hearing Act, we stress again that the

Act provides a different form of statutory relief than does section

2–1401, notwithstanding that it, like section 2–1401, allows for

collateral relief from judgments, albeit only collateral relief in criminal

cases for constitutional violations. 725 ILCS 5/122–1 (West 2004).

Thus, it is incorrect to equate the disposition in this case to a summary

dismissal under the Post-Conviction Hearing Act. This is particularly

so because this court has long held that actions pursuant to section

2–1401 are civil proceedings and are to be litigated in accordance with

the usual rules of civil procedure. Ostendorf, 89 Ill. 2d at 279. This

means that the procedure to be used in section 2–1401 actions is the

same whether the petitioner is seeking vacatur of a civil or criminal

final judgment.

Equally important is the fact that what the trial judge did in this

case was not rule in “summary” fashion; rather, the judge entered

judgment sua sponte by denying relief on the petition. As explained

above, by not responding to the petition, the State caused the trial

judge to accept the allegations in the petition as true. What the trial

court determined was that those allegations did not provide a legal

basis for relief under section 2–1401. Under our case law, the trial

judge’s disposition in the case can be accurately characterized in two

ways: It is correct to say that the trial judge granted judgment in favor

of the State on the pleadings and denied relief, and it is equally correct

to say that the trial judge ruled against the petitioner by dismissing the

petition with prejudice. See Mitchell, 291 Ill. App. 3d at 932.What

cannot be said, with any accuracy under civil practice rules, is that the

trial judge “summarily dismissed” the petition.

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Having properly characterized the trial judge’s action, we must

still address Vincent’s contention that before such a sua sponte ruling

could be entered, the trial judge was required to provide him with

notice and the opportunity to respond. In support of this proposition,

Vincent, like some panels in the appellate court (see People v.

Anderson, 352 Ill. App. 3d 934, 943 (2004)), points to Barrett v.

Guaranty Bank & Trust Co.,123 Ill. App. 2d 326 (1970), as requiring

certain actions be taken on the part of the trial judge before a sua

sponte judgment may be entered. Nothing in Barrett, however,

suggests that notice and the opportunity to be heard are required

before a trial judge may act on its own. Illinois cases, including

Barrett, recognize that a trial court may, on its own motion, dispose

of a matter when it is clear on its face that the requesting party is not

entitled to relief as a matter of law. Mitchell, 291 Ill. App. 3d 927;

Rhodes v. Mill Race Inn, Inc., 126 Ill. App. 3d 1024 (1984). The

cases do not establish any uniform procedure that must be followed

such that the trial court’s actions in this case mandate reversal.

Vincent’s primary contention in this regard is that his ability to be

heard is jeopardized by the type of practice that occurred in this case.

We disagree. It is unclear to us in what way Vincent’s opportunity to

be heard has been compromised. He has not been denied access to the

courts, as his petition was filed in the circuit court and considered by

a judge. The procedure employed by the trial judge here did not

prevent Vincent from bringing a meritorious claim because, as we will

explain in part III of this opinion, his claim has no merit. In addition,

adequate procedural safeguards exist to prevent erroneous sua sponte

terminations. A section 2–1401 petitioner whose petition has been

disposed of by the court sua sponte could file a motion for rehearing

under section 2–1203 of the Code of Civil Procedure (735 ILCS

5/2–1203 (West 2002)). In addition, a litigant whose cause of action

has been terminated by the court sua sponte may bring an appeal,

which invites de novo review of the legal sufficiency of the complaint.

See Mitchell, 291 Ill. App. 3d at 932. Thus, the availability of

corrective remedies, such as a motion to reconsider, renders the lack

of notice prior to the ruling less of a concern.3 Our conclusion in this

3

We point out that the trial court should allow a litigant the opportunity

to amend the petition in those circumstances when doing so would yield a

meritorious claim.

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regard accords with the majority view in the federal courts that sua

sponte dismissal of a meritless complaint that cannot be salvaged by

amendment comports with due process and does not infringe the right

of access to the courts. See Curley v. Perry, 246 F.3d 1278 (10th Cir.

2001); Constant v. United States, 929 F.2d 654 (Fed. Cir. 1991). We

agree with those federal cases and hold that a trial court “may dismiss

a claim sua sponte *** without notice where the claimant cannot

possibly win relief.” Omar v. Sea-Land Service, Inc., 813 F.2d 986,

991 (9th Cir. 1987). This position finds support in our case law and

is “fully consistent with plaintiff’s rights and the efficient use of

judicial resources.” Baker v. Director, 916 F.2d 725, 726 (D.C. Cir.

1990). Illinois pleading requirements and well-settled principles of

civil practice and procedure permit the trial judge to have acted sua

sponte in this case. Our recognition of this today is based on long

recognized legal precepts, and is, in our view, more preferable than

creating exceptions based solely on the criminal-defendant status of

the petitioner (see People v. Ryburn, 362 Ill. App. 3d at 873) or on

arbitrary notions of docket control (see People v. Bramlett, 347 Ill.

App. 3d 468 (2004)).

III

Once a trial court disposes of a properly served section 2–1401

petition sua sponte without a responsive pleading, that disposition

must be measured against our normal rules of civil practice and

procedure. As we have explained, the State’s choice to forgo filing an

answer stands as an admission of all well-pleaded facts, which allowed

the circuit court to render judgment on the pleadings alone. And, as

we explained earlier in this opinion, in this context the judgment on

the pleadings entered is the functional equivalent of a dismissal for

failure to state a cause of action. Either disposition under the Act is

permissible under this court’s opinion in Ostendorf. What now

remains for us to decide is whether the circuit court correctly denied

Vincent’s petition.

Whether a trial court correctly enters judgment on pleadings or

dismisses a complaint is subject to the same de novo standard of

review on appeal. See Gillen v. State Farm Mutual Automobile

Insurance Co., 215 Ill. 2d 381, 385 (2005) (addressing judgment on

the pleadings); Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147-48

(2002) (addressing dismissal). We acknowledge, however, that

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applying a de novo standard of review in this case conflicts with prior

section 2–1401 case law that holds that an abuse of discretion

standard of review is to be used in such circumstances. See, e.g.,

Klein, 155 Ill. 2d at 206; People v. Sanchez, 131 Ill. 2d 417, 420

(1989). We therefore deem it appropriate, in light of the arguments

presented in this appeal and the procedural questions that have been

raised, to clarify the standard of review in this and future cases.

Based on our discussion of section 2–1401 case law and the rules

of civil procedure that this court has applied to such actions, the abuse

of discretion standard is improper in section 2–1401 proceedings in

which either judgment on the pleadings or dismissal for failure to state

a cause of action has been entered. If, at the trial level, a petition is to

be treated like a complaint, then its dismissal should likewise be

treated like a complaint on review. The abuse of discretion standard

is inconsistent with both the procedural posture of this case and this

court’s own precedent that holds that section 2–1401 actions are

subject to the usual rules of civil practice. See 86 Ill. B.J. at 36 (noting

inconsistency between abuse of discretion standard of review and

court precedent). Prior case law (this court’s included) that applied

the abuse of discretion standard did so without regard for either the

civil practice considerations that govern trial-level section 2–1401

proceedings or the various dispositions possible.

Moreover, the operation of the abuse of discretion standard is the

result of an erroneous belief that a section 2–1401 petition “invokes

the equitable powers of the court, as justice and fairness require.”

Elfman v. Evanston Bus Co., 27 Ill. 2d 609, 613 (1963). The

observation was certainly true when such relief was available under

the common law writs. But it was from this general statement

regarding the statute’s equitable origins that courts incorrectly

continued to hold that the new statutory remedy was still a matter of

judicial discretion and thus subject to an abuse of discretion review on

appeal. See, e.g., American Reserve Corp. v. Holland, 80 Ill. App. 3d

638, 643 (1980) (citing Elfman); Eastman Kodak Co. v. Guasti, 68

Ill. App. 3d 484, 487 (1979) (citing Elfman); Chase v. Cummingham,

64 Ill. App. 3d 54, 56 (1978) (same); 86 Ill. B.J. at 36 (noting courts’

continued references to source of the judicial power to vacate as being

equitable despite the legislature’s abolishment of the common law writ

of coram nobis and enactment of the purely statutory remedy in its

place). When the legislature abolished the writs in favor of today’s

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statutory remedy, it became inaccurate to continue to view the relief

in strictly equitable terms. Moreover, this court’s application of civil

practice rules and precedent factored out any notions about a trial

court’s “discretion” to do justice. Because relief is no longer purely

discretionary, it makes little sense to continue to apply an abuse of

discretion standard on review. Simply put, an abuse of discretion

standard of review in cases where either a judgment on the pleadings

or a dismissal has been entered does not comport with the usual rules

of civil practice and procedure.

As this court has repeatedly stressed, the “ ‘[m]ere repetition of a

purported rule of law does not establish its validity.’ ” Best v. Best,

223 Ill. 2d 342, 350 (2006), quoting In re D.T., 212 Ill. 2d 347, 357

(2004). Nor does the doctrine of stare decisis stand as a bar to this

court’s rejecting today the abuse of discretion standard in this

particular context. Rather than being an “inexorable command,” the

doctrine serves to ensure that the law “will not merely change

erratically, but will develop in a principled and intelligible fashion.”

Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d

502, 510 (1994).

We recognize, of course, that this case involves only two

dispositions under section 2–1401: judgment on the pleading and

dismissals. Accordingly, today’s decision is limited only to the

standard of review applicable to those dispositions. We are obligated,

however, to note, as we have earlier in this analysis, that other

dispositions are possible in section 2–1401 actions, i.e., grant of relief

after an evidentiary hearing, and denial of relief after an evidentiary

hearing. Concerns about the proper standard of review applicable to

those dispositions must necessarily await other cases. 4

4

We are not unaware that our appellate court has recognized the

dichotomy between the abuse of discretion standard and the various

procedural postures which arise in section 2–1401 litigation. See Uptown

Federal Savings & Loan Ass’n of Chicago v. Kotsiopoulous, 105 Ill. App.

3d 444, 451 (1982) (noting that manifest weight of the evidence standard

applies after trial court has held an evidentiary hearing in section 2–1401

action); In re M.B., 235 Ill. App. 3d 352, 379 (1992) (noting both abuse of

discretion standard and manifest weight of evidence standard and collapsing

both to review trial court’s decision after an evidentiary hearing in section

2–1401 action); Collins v. Prestige Casualty Co., 54 Ill. App. 3d 762, 765

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Notwithstanding that fact, we submit that the touchstone of such

future analyses will be, as today’s was, grounded in the notion that

each of the dispositions available in a section 2–1401 action is

borrowed from our civil practice and pleadings rules.5

We therefore hold that when a court enters either a judgment on

the pleadings or a dismissal in a section 2–1401 proceeding, that order

will be reviewed, on appeal, de novo. Applying this standard of review

to the matter before us, the circuit court correctly denied Vincent’s

petition as a matter of law.

In his section 2–1401 petition, Vincent contended that the circuit

court erroneously construed and applied sections 5–8–4(a), (b), and

(c)(2) of the Code of Corrections (730 ILCS 5/5–8–4(a), (b), (c)(2)

(West 1998)) when it imposed consecutive sentences totaling 100

years’ imprisonment. We have reviewed Vincent’s sentences and find

that his sentences comport with the provisions of the Code. We note

that, by virtue of a prior felony conviction, Vincent was eligible for

extended-term sentences for the attempted murder convictions, with

a maximum sentence of 60 years on each conviction. 730 ILCS

5/5–5–3.2(b)(1) (West 1998). Vincent’s conviction for attempted

murder, a Class X felony and his infliction of severe bodily injury on

at least four of the victims rendered him subject to mandatory

(1977) (same); Gines v. Ivy, 358 Ill. App. 3d 607, 609-10 (2005) (applying

de novo standard of review for question of law).

5

Motions for summary judgment and evidentiary hearings, along with

judgments on the pleadings and dismissals, are all forms of civil practice that

have been applied to section 2–1401 proceedings. Today’s decision speaks

to judgment on the pleadings and dismissals in section 2–1401 actions. But

we should add, though dicta, that the abuse of discretions standard does not

match up with any other of the types of dispositions possible in section

2–1401 proceedings. See Chicago Investment Corp. v. Dolins, 107 Ill. 2d

120, 124 (1985) (grant or denial of relief after a civil bench trial is

traditionally reviewed under manifest weight of the evidence standard).

Importantly, this court has held that, as in all civil bench trials, to prevail

under section 2–1401 requires proof by a preponderance of evidence. Klein,

155 Ill. 2d at 201. The abuse of discretion standard is not tied to any

quantum of proof. Best v. Best, 223 Ill. 2d 342 (2006). In so noting, we

express no opinion on which standard of review is applicable for these other

dispositions and leave further discussion on the subject to another day.

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consecutive sentences. 730 ILCS 5/5–8–4(a) (West 1998). Because

section 5–8–4(a) mandated consecutive sentences, section 5–8–4(b)

had no application to Vincent’s situation. Our review of the transcript

indicates that the trial judge considered section 5–8–4(a) in imposing

sentence.

We similarly reject Vincent’s second contention regarding the

aggregate maximum of his consecutive sentences. Section 5–8–4(c)(2)

provides:

“For sentences imposed under the law in effect on or after

February 1, 1978, the aggregate of consecutive sentences for

offenses that were committed as part of a single course of

conduct *** shall not exceed the sum of the maximum terms

authorized under Section 5–8–2 for the 2 most serious

felonies involved ***.” 730 ILCS 5/5–8–4(c)(2) (West 1998).

Section 5–8–2 provides that the term for a Class X felony (the most

serious felony involved in this case) “shall not be less than 30 years

and not more than 60 years.” 730 ILCS 5/5–8–2 (West 1998). Thus,

the aggregate of consecutive sentences could not exceed 120 years.

Vincent’s sentences, which total 100 years, were in full accord with

the Code of Corrections. For this reason, the circuit court properly

denied Vincent’s section 2–1401 petition.

Conclusion

For the reasons expressed above, the judgment of the appellate

court, which affirmed the circuit court’s denial of section 2–1401

relief, is affirmed.

Affirmed.

JUSTICE KILBRIDE, dissenting:

The crucial issue here is whether the trial court’s disposition

complies with section 2–1401 of the Code of Civil Procedure (Code)

(735 ILCS 5/2–1401 (West 2002)). It does not. Moreover, the trial

court’s disposition is inherently prejudicial because it is a fundamental

departure from the adversarial process mandated by the Code. The

trial court’s dismissal of defendant’s petition should be reversed and

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the matter remanded for further proceedings consistent with the Code.

Accordingly, I respectfully dissent.

Initially, the procedure employed by the trial court in considering

the petition on its own motion and dismissing the petition without

prior notice or an opportunity to be heard is similar to the summary

dismissal procedure contained in the Post-Conviction Hearing Act

(725 ILCS 5/122–1 et seq. (West 2002)). While I agree with the

majority that this procedure is not properly labeled a “summary

dismissal,” the appellate court’s characterization in that manner is

understandable given its similarity to the summary dismissal

procedure.

In several recent cases, our appellate court has addressed whether

a trial court may dismiss a section 2–1401 petition as employed in this

case. The Second and Third Districts and several divisions of the First

District have held it is error. People v. Thompson, 368 Ill. App. 3d

348, 352 (2006); People v. Allen, 366 Ill. App. 3d 903, 908 (2006);

People v. Coleman, 358 Ill. App. 3d 1063, 1068-70 (2005); People

v. Edwards, 355 Ill. App. 3d 1091, 1100 (2005); People v. Dyches,

355 Ill. App. 3d 225, 229 (2005); People v. Anderson, 352 Ill. App.

3d 934, 945 (2004); People v. Pearson, 345 Ill. App. 3d 191, 193

(2003), aff’d on other grounds, 216 Ill. 2d 58 (2005). In those cases,

the reviewing court reasoned that summary dismissal is a procedure

available only under the Post-Conviction Hearing Act, and it should

not be read into the Code by analogy when there is no expression of

legislative intent for the procedure to apply outside of the Act. Allen,

366 Ill. App. 3d at 907-08; Coleman, 358 Ill. App. 3d at 1068-70;

Edwards, 355 Ill. App. 3d at 1100; Dyches, 355 Ill. App. 3d at 228-

29; Anderson, 352 Ill. App. 3d at 945; Pearson, 345 Ill. App. 3d at

193. Thus, in those cases, the appellate court essentially concluded

that the disposition employed by the trial court was error because it

was not authorized under the provisions of the Code.

The Third District and the First Division of the First District have

also expressly relied upon the plain language of the Code in holding

that the procedure used here is error. Coleman, 358 Ill. App. 3d at

1069-70; Edwards, 355 Ill. App. 3d at 1100; Anderson, 352 Ill. App.

3d at 945. Those courts have held that the trial court’s disposition is

not permissible as a matter of statutory construction because section

2–1401 does not provide for “summary dismissal.” Coleman, 358 Ill.

App. 3d at 1069-70. The Third District has recognized that the

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legislature is best able to weigh any public policy concerns warranting

a summary disposition of section 2–1401 petitions. Coleman, 358 Ill.

App. 3d at 1071. Thus, in the absence of legislative guidance to the

contrary, the procedure employed here cannot be applied to section

2–1401 petitions. Coleman, 358 Ill. App. 3d at 1069-71.

I agree with the majority that the procedure used by the trial court

is better characterized as sua sponte dismissal. Nonetheless, the

appellate court in the cases cited above correctly analyzed the

dismissals based upon the plain language of the Code. I agree with

that analysis and believe that this appeal presents a simple question of

statutory construction. The question is whether the trial court’s

disposition is authorized by the plain language of the Code.

The fundamental rule of statutory construction is to ascertain and

give effect to the intent of the legislature. People v. Cordell, 223 Ill.

2d 380, 389 (2006). The best evidence of legislative intent is the

statutory language, given its plain and ordinary meaning. People v.

Wooddell, 219 Ill. 2d 166, 170-71 (2006). It is well-established that

courts may not add provisions that do not appear in a statute. See

People v. Lewis, 223 Ill. 2d 393, 402 (2006), citing

Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 153 (1997).

Section 2–1401 does not contain any provision authorizing the

trial court’s sua sponte dismissal of defendant’s petition without

notice or an opportunity to be heard. As noted by the majority, section

2–1401 proceedings are subject to the general rules of civil procedure.

Slip op. at 4, citing Ostendorf v. International Harvester Co., 89 Ill.

2d 273, 279 (1982). Those rules are found in the Code. Like section

2–1401, the remainder of the Code does not contain any specific

provision allowing the trial court’s disposition. The trial court’s

disposition is simply not authorized under the terms of section 2–1401

or the remainder of the Code.

Notably, the majority does not cite any section of the Code

authorizing the trial court’s disposition. Similarly, the majority does

not engage in any meaningful discussion of the Code in arriving at its

conclusion that the trial court’s disposition is permissible. Instead, the

majority simply asserts in conclusory fashion that the trial court’s sua

sponte dismissal of the petition is permitted by “Illinois pleading

requirements and well-settled principles of civil practice and

procedure.” Slip op. at 9.

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However, contrary to the majority’s decision, the usual rules of

civil procedure under the Code contemplate notice and hearings on

motions, including dispositive motions. See Anderson, 352 Ill. App.

3d at 945 (collecting authority). When a court acts sua sponte, the

court effectively creates a pending motion. Anderson, 352 Ill. App. 3d

at 945. Black’s Law Dictionary defines “sua sponte” as “[w]ithout

prompting or suggestion; on its own motion.” Black’s Law Dictionary

1437 (7th ed. 1999). Thus, the Code requires notice to the parties of

a proposed dismissal on the court’s own motion and an opportunity

to be heard before dismissal. See Anderson, 352 Ill. App. 3d at 945.

Significantly, if the State had initiated the court’s action in this

case, it would have been required to file a motion to dismiss the

petition on the pleadings under section 2–615 of the Code (735 ILCS

5/2–615 (West 2002)). The State would have also been required to

identify the specific defects in the petition and to ask for appropriate

relief. 735 ILCS 5/2–615 (West 2002). Under this court’s rules, the

State would have been required to serve that motion upon defendant.

134 Ill. 2d R. 104(b). Thus, defendant would have received notice of

the motion and an opportunity to respond to it. The trial court’s

dismissal on its own motion disregards these basic requirements of

notice and an opportunity to respond. The plain language of the Code

does not authorize this procedure and, therefore, the court’s action is

error.

Moreover, the error here is not subject to harmless error review

because it is inherently prejudicial. The trial court’s failure to give

defendant prior notice of the impending dismissal and an opportunity

to respond is a complete departure from the adversarial process.

Coleman, 358 Ill. App. 3d at 1070-71; Pearson, 345 Ill. App. 3d at

194-95. As explained in Pearson:

“[W]e can conduct harmless-error analysis only by examining

fundamentally proper proceedings and considering whether, if

we removed the effect of an error, we would obtain the same

result. Where the error is that the proceedings were of

fundamentally the wrong kind, we cannot speculatively

recreate the right proceedings to determine what should have

been the result. *** [T]he procedure by which the trial court

dismissed [the petition] was simply too far removed from what

defendant was entitled to for us to review the matter as if

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defendant had been given notice and an opportunity to

answer.” Pearson, 345 Ill. App. 3d at 196.

Finally, some courts have expressed a concern that increased

prisoner litigation by “professional litigants” in the form of section

2–1401 petitions and other filings may overwhelm courts, and a

summary or sua sponte dismissal procedure is a way to avoid that

consequence. See People v. Ryburn, 362 Ill. App. 3d 870, 876-77;

People v. Bramlett, 347 Ill. App. 3d 468, 472 (2004); Mason v.

Snyder, 332 Ill. App. 3d 834, 841-42 (2002). I believe the concern

expressed in those cases is unwarranted. Dealing with these filings in

accordance with the procedure mandated by the Code does not place

an undue burden on trial courts. If a trial court determines that a

section 2–1401 petition lacks merit, it may notify the petitioner of its

intent to dismiss the petition and the reasons for the proposed sua

sponte dismissal. The court may set the matter for a status hearing,

allowing the petitioner an opportunity to respond in writing to the

proposed dismissal. The court need not allow the petitioner to appear

in person and argue the sua sponte motion to dismiss the petition. If

the trial court still finds the petition lacks merit following this simple

process, the court may dismiss the petition. This procedure gives the

petitioner notice of the proposed dismissal and an opportunity to be

heard in compliance with the Code, and does not impose an undue

burden on trial courts.

In sum, the procedure employed by the trial court does not comply

with the provisions of the Code. The error is not subject to harmless

error review because it is inherently prejudicial. Accordingly, the trial

court’s disposition must be reversed and the cause remanded for

further proceedings consistent with the Code. For these reasons, I

respectfully dissent.

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