Opinion
No. 1-12-2103
04-28-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES LEWIS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 07 CR 9487 Honorable Timothy Joseph Joyce, Judge, presiding. JUSTICE HALL delivered the judgment of the court.
Justices Hoffman and Rochford concurred in the judgment.
ORDER
¶ 1 Held: On remand from the supreme court, this court held that the defendant could not challenge the trial court's sua sponte dismissal of his section 2-1401 petition based on his own failure to properly serve his section 2-1401 petition, and he lacked standing to object to the improper service on the State. We further held that the sua sponte dismissal of the petition on the merits was proper where petition lacked an arguable basis in law or fact. We vacated the trial court's assessment of $105 pursuant to section 22-105 of the Code of Civil Procedure. ¶ 2 In 2010, following a bench trial, the defendant, James Lewis, was convicted of aggravated kidnapping, home invasion and two counts of armed robbery. He was sentenced as a Class X offender to 60 years' imprisonment for each of the armed robberies and the home invasion and to 35 years for aggravated kidnapping, with all sentences to be served concurrently. ¶ 3 The evidence against the defendant and codefendant Bruce Booker leading to the defendant's convictions in this case was detailed in this court's order affirming his conviction and sentences on direct appeal. See People v. Lewis, 2012 IL App (1st) 102617-U. Ricky Williams, another codefendant, pleaded guilty and testified for the State in exchange for a reduced sentence. ¶ 4 The testimony at trial established that the defendant, Mr. Booker and Mr. Williams, along with other individuals, were involved in the kidnapping for ransom of Shalamarr Rowan. In show-up identifications, Mr. Rowan identified the defendant, Mr. Booker and Mr. Williams as the individuals who kidnapped him. After Mr. Rowan was kidnapped, several individuals, including Mr. Booker and Mr. Williams, searched Mr. Rowan's residence for money and drugs. Traysha Hayden, Mr. Rowan's girlfriend who was present in the residence when the individuals arrived, testified that the men put a gun to her head and then placed a plastic bag over her head and tied her up. ¶ 5 After his unsuccessful direct appeal and this court's affirmance of the summary dismissal of his postconviction petition (see People v. Lewis, 2012 IL App (1st) 111252-U), the defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401(West 2012)). The trial court dismissed the petition sua sponte finding that the petition lacked an arguable basis in law or fact, the allegations and factual contentions were not supported by the evidence, the claims duplicated ones made in the defendant's prior pleadings, and the defendant's filings were made to hinder, delay and caused needless increase in the cost of litigation. The defendant appealed contending that: (1) the trial court erred when it dismissed his section 2-1401 petition on the merits without considering the perjured trial testimony of Ms. Hayden; (2) the sua sponte dismissal was error because service of the section 2-1401 petition on the State was improper; and (3) the trial court erred when it assessed fees against him for filing a second section 2-1401 petition. ¶ 6 On appeal, this court agreed with the defendant that his failure to serve the State with the petition in accordance with Illinois Supreme Court Rule 105(b) (eff. Jan. 1, 1989) rendered the dismissal of his petition premature. People v. Lewis, 2014 IL App (1st) 122103-U. We found People v. Carter, 2014 IL App (1st) 122613 instructive. See Lewis, 2014 IL App (1st) 122103-U, ¶ 12. In Carter, the court held that the sua sponte dismissal of a section 2-1401 petition was premature where there was no service of the petition on the State or an affirmative showing that the State waived service. Carter, 2014 IL App (1st) 122613, ¶¶ 25-26. In Lewis, we found that the defendant clearly failed to comply with Rule 105 in effecting service on the State and as did the court in Carter, we rejected the State's argument that it waived service by appearing in court without objecting to the improper service. Lewis, 2014 IL App (1st) 122103-U, ¶¶ 12-13. We did not address the merits of the remaining issues except to note that the parties' agreement that since this was the defendant's first section 2-1401 petition, the assessment of fees pursuant to section 22-105 of the Code of Civil Procedure (Code) (735 ILCS 5/22-105 (West 2012)) was improperly imposed. We vacated the judgment and remanded for further proceedings. Lewis, 2014 IL App (1st) 122103-U, ¶¶ 15-16. ¶ 7 On January 25, 2017, the supreme court issued a supervisory order denying the State's petition for leave to appeal and directing this court to vacate its judgment in Lewis, 2014 IL App (1st) 122103-U and to reconsider our decision in light of People v. Matthews, 2016 IL 118114 to determine whether a different result was warranted.
Mr. Booker and Mr. Williams are not parties to this appeal.
¶ 8 ANALYSIS
¶ 9 I. Improper Service on the State
¶ 10 In Matthews, the supreme court reached two issues not addressed by the court in Carter : whether a defendant has standing to raise the propriety of his service of notice on the State, and whether a defendant may rely on his own failure to comply with Rule 105 as a basis for vacating the circuit court's denial of his section 2-1401 petition. Matthews, 2016 IL 118114, ¶¶ 12-21. In its supervisory order, the supreme court directed us to consider its rulings in Matthews on these two issues. ¶ 11 In Matthews, the supreme court held that a defendant is estopped from claiming service on the State was improper based on his own failure to comply with the requirements of Rule 105. The court further held that only the party to whom service is owed can object to improper service. Therefore, a defendant lacks standing to challenge the validity of a dismissal order based on lack of personal jurisdiction. Matthews, 2016 IL 118114, ¶ 23. ¶ 12 In the present case, the defendant raised the same arguments rejected in Matthews, i.e., that he failed to serve the State in accordance with Rule 105 and that there was no evidence that the State was served with the petition or had actual notice of the proceedings to effect a waiver. Here, the defendant acknowledged that he failed to comply with Rule 105. His argument that the State's appearance or waiver of service fails because the defendant lacked standing to challenge lack of personal jurisdiction. In accordance with Matthews, the trial court's sua sponte dismissal was not improper on those grounds.
We note that the supreme court reversed the appellate decision in Carter, finding that the evidence in the record failed to demonstrate that the service was improper. People v. Carter, 2015 IL 117709, ¶ 22.
¶ 13 II. Dismissal of Petition
¶ 14 Following the supreme court's remand of this case, the defendant's appellate counsel filed a motion to consider the substantive issues which were fully briefed but left unresolved by our prior order. See Lewis, 2014 IL App (1st) 122103-U, ¶13 ("we need not address defendant's substantive issues regarding whether the court properly considered a State's witness' perjured testimony, because we find the issue was not ripe for adjudication"). The State has not filed an objection. We now grant the defendant's appellate counsel's motion and resolve the remaining issues.
¶ 15 A. Standard of Review
¶ 16 The nature of the challenge presented in a section 2-1401 petition dictates the proper standard of review on appeal. Warren County Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Where the petition raises a purely legal issue, the court's review is de novo. Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 47; see People v. Vincent, 226 Ill. 2d 1(2007) (challenge to the judgment as void was reviewed de novo). In such cases, equitable considerations are inapplicable, and it is unnecessary to establish either a meritorious defense or due diligence. Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 48. ¶ 17 Where a party has raised a fact-dependent challenge to a final judgment, the circuit court's ultimate decision on the petition is reviewed for an abuse of discretion. Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 51. If the facts supporting the decision are challenged by the opposing party, an evidentiary hearing is required. Warren County Soil & Water Conservation District, 2015 IL 117783, ¶ 51. ¶ 18 In this case, the defendant does not raise a purely legal challenge to the judgment of conviction. His challenge is a fact-dependent one to which we would normally apply the abuse of discretion standard. ¶ 19 Nonetheless, proceedings under section 2-1401 are subject to the usual rules of civil practice. Vincent, 226 Ill. 2d at 8. The petition is subject to dismissal for want of legal or factual sufficiency. Vincent, 226 Ill. 2d at 8. The petition may be challenged on the basis that even if taken as true, its allegations failed to state a meritorious defense or diligence under section 2-1401. Vincent, 226 Ill. 2d at 8. In this case, the State did not answer the petition, therefore admitting all of the well-pleaded facts in the petition. The reviewing court applies the de novo standard in ruling on the dismissal of a complaint. Dumas v. Pappas, 2014 IL App (1st) 121966, ¶ 11 (dismissals for failure to state a cause of action or for affirmative matter). ¶ 20 While the defendant's petition does not challenge the judgment of conviction on a purely legal issue, the trial court dismissed the petition sua sponte because the petition was insufficient as a matter of law. Therefore, our review is de novo.
¶ 21 B. Discussion
¶ 22 "Section 2-1401 of the Code constitutes a comprehensive statutory procedure authorizing a trial court to vacate or modify a final order or judgment in civil and criminal 7 proceedings." People v. Thompson, 2015 IL 118151, ¶ 28. For a party to be entitled to relief under section 2-1401, the petition must set forth specific factual allegations supporting each of the following elements: " '(1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2-1401 petition for relief.' " People v. Glowacki, 404 Ill. App. 3d 169, 171 (2010) (quoting Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-21 (1986)). The petition must be supported by affidavit or other appropriate showing as to matters not of record. 735 ILCS 5/2-1401(b) (West 2012). A circuit court may dismiss a section 2-1401 petition sua sponte if the allegations do not entitle the party to relief as a matter of law. Vincent, 226 Ill. 2d at 13. ¶ 23 The defendant contends that the trial court was required to consider all of the claims he raised in his section 2-1401 petition on the merits and that the court erred by applying the doctrine of res judicata to those claims. The defendant maintains that res judicata bars only those claims that were actually raised, citing People v. Anderson, 375 Ill. App. 3d 121, 132 (2006). However, while the court in Anderson recognized that res judicata bars all issues actually decided on direct appeal or in the original postconviction petition, it also recognized that "all issues that could have been raised in the original proceeding, or original postconviction proceeding, but were not, are waived." Anderson, 375 Ill. App. 3d at 132. Moreover, as our supreme court explained in People v. Burrows, 172 Ill. 2d 169 (1996): "The purpose of post-judgment review is not to relitigate matters that were or could have been raised on direct appeal, but rather to resolve arguments that new or additional matters, if they had been known at the time of trial, could have prevented a finding that the defendant was guilty of the crimes charged. [Citation.] Claims that were 8 raised on direct appeal, or that could have been raised on direct appeal, are barred under principles of res judicata and collateral estoppel. Post-judgment relief is limited to matters relating to evidence that did not appear in the record of the trial court's original proceedings and that was discovered after trial was completed." Burrows, 172 Ill. 2d at 187. ¶ 24 In his section 2-1401 petition, the defendant raised claims that the State failed to supply him with photographs, materials relating to prior bad acts of the defendant, F.B.I. reports, DNA reports, transcripts from various proceedings and that the State failed to investigate Roosevelt Sains, whose DNA was found on the victim's cell phone. The defendant supported his claims with excerpts from the trial court record. Not only were these claims raised or could have been raised on direct appeal or in the defendant's postconviction petition, since these claims were made known to the trial court, they would not be the proper basis for a section 2-1401 petition. Therefore, the defendant is not entitled to postjudgment relief on the basis of those claims. ¶ 25 The defendant's remaining claim was that Mr. Rowan, Mr. Williams and Ms. Hayden gave perjured testimony at the defendant's trial. Perjured testimony may form the basis for a new trial if raised in a section 2-1401 petition. Burrows, 172 Ill. 2d at 179-80. To be entitled to relief on the basis of perjured testimony, the defendant was required to show by clear and convincing evidence that the testimony was not merely false but willfully and purposefully given, material to the issue tried and not merely cumulative and that it probably controlled the determination. People v. Sanchez, 115 Ill. 2d 238, 286 (1986). ¶ 26 With regard to perjury by Mr. Rowan and Mr. Williams, the defendant supported his claims with excerpts from their testimony at trial. These excerpts showed only that the testimony 9 of Mr. Rowan and Mr. Williams differed on certain points, such as whether the offenders wore masks or whether any females were present. Minor conflicts among the testimony of different witnesses go merely to the credibility of the witness and of the evidence. People v. Moore, 199 Ill. App. 3d 747, 766 (1990). ¶ 27 As to Ms. Hayden, the defendant claimed that she perjured herself when, in contrast to her statement to police that Mr. Williams placed a plastic bag over her head, she testified at trial that she heard voices but was unable to see faces. Minor conflicts between a witness's testimony at one proceeding and an earlier proceeding do not prove that a witness's testimony is perjured. Moore, 199 Ill. App. 3d at 766. ¶ 28 The defendant maintains that the affidavit of James Jackson supported his perjury allegation against Ms. Hayden. The defendant alleged that his "counsel never want to talk to a very key witness, that would have change the whole outcome of the trial." In the next paragraph, the defendant alleged that "James Jackson would have testified to the facts; 'that Ricky Williams, Traysha Hayden and Roosevelt Sains planned the whole kidnapping against Shalamarr Rowan.' " In his affidavit, Mr. Jackson averred that Ms. Hayden was involved in the plan to kidnap Mr. Rowan. He further averred that the defendant was not present on the night of the kidnapping. ¶ 29 An affidavit in support of a section 2-1401 petition must be a sufficient and competent one, i.e., one made by a person having firsthand knowledge of the factual allegations. People v. Perkins, 260 Ill. App. 3d 516, 518 (1994). In Amerco Field Office v. Onoforio, 22 Ill. App. 3d 989 (1974), the reviewing court reversed a judgment granting the defendant's petition to vacate a judgment, finding that the affidavit in support of the petition was inadequate and incompetent. It 10 did not appear from the affidavit that the affiant had any personal knowledge whatever of the facts contained in the affidavit since the facts related to transactions that took place between the defendant personally and an agent or representative of the plaintiff, and it did not appear affirmatively that the affiant was personally present or a witness to any of the transactions. Amerco Field Office, 22 Ill. App. 3d at 992. Since this made the affidavit of the affiant pure hearsay, the court observed that the affiant could not have been prosecuted for perjury as the party making the statements would not have made them under oath, and the party giving the affidavit was relying on what he may honestly have believed to be true statements. The court concluded that, "[t]his circumstance standing alone is sufficient to render the petition to vacate the judgment inadequate and insufficient in law." Amerco Field Office, 22 Ill. App. 3d at 992. ¶ 30 For the same reasons, Mr. Jackson's affidavit is inadequate and incompetent to support the defendant's section 2-1401 petition. Nothing in his affidavit established that he was present during the commission of these offenses or how he came to know the details and names of the participants in the "plot" to kidnap Mr. Rowan. Therefore his affidavit appears nothing more than pure hearsay, for which he could not be prosecuted for perjury. ¶ 31 Moreover, had Mr. Jackson testified in accordance with his affidavit, his testimony would not have changed the outcome of the trial. The testimony relied on by the defendant to establish that Ms. Hayden perjured herself was not perjury. As to Mr. Jackson's averments that Ms. Hayden was a participant in the kidnapping plot and that the defendant was not present during the commission of the offenses, both Mr. Rowan and Mr. Williams identified the defendant as a participant in the offenses. Thus, Mr. Jackson's testimony would merely conflict with other 11 evidence presented and would not have controlled the determination of the defendant's guilt at trial. ¶ 32 In a related claim, the defendant claimed that his trial attorney was ineffective for failing to call Mr. Jackson as a witness, alleging that his counsel refused to talk to Mr. Jackson. The defendant's claim fails because the issue could have been raised on direct appeal or in his postconviction petition. In any event, under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984), since Mr. Jackson's testimony would not have changed the result, trial counsel's failure to call him as a witness was not ineffective assistance of counsel under the Strickland test. ¶ 33 We conclude that as a matter of law, the defendant did not set forth a meritorious claim or defense to his convictions in this case, and we need not address the issue of due diligence. The trial court did not err in dismissing the defendant's section 2-1401 petition sua sponte. However, as the parties agreed that the $105 assessment was improper, we vacate that part of the trial court's order. See Lewis, 2014 IL App (1st) 122103-U, ¶ 15. ¶ 34 The judgment of the circuit court is affirmed in part and vacated in part. ¶ 35 Affirmed in part and vacated in part.