Opinion
NO. 4-12-0154
07-09-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY L. MARCRUM, 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
Circuit Court of
Edgar County
No. 96CF103
Honorable
David W. Lewis,
Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court.
Justices Pope and Holder White concurred in the judgment.
ORDER
¶ 1 Held: The appellate court vacated the trial court's sua sponte denial of defendant's section 2-1401 petition for relief from judgment (735 ILCS 5/2-1401 (West 2010)) and remanded for further proceedings because the petition was not ripe for adjudication at the time of denial. OSAD's motion to withdraw as counsel was moot. ¶ 2 This appeal comes to us on the motion of the office of the State Appellate Defender (OSAD) to withdraw as counsel on appeal because no meritorious issues can be raised in this case. After reviewing the record, we find defendant's section 2-1401 petition for relief from judgment was not ripe for adjudication at the time of the trial court's sua sponte denial. We vacate the court's judgment and remand for further proceedings. As a result, OSAD's motion to withdraw is moot.
¶ 3 I. BACKGROUND
¶ 4 In October 1996, defendant, Jeffrey L. Marcrum, was charged by information with two counts of burglary (720 ILCS 5/19-1(a) (West 1994)), three counts of theft (720 ILCS 5/16-1(a)(1)(A) (West 1994)), and one count of criminal damage to property (720 ILCS 5/21-1(1)(a) (West 1994)) in Edgar County. In November 1997, defendant waived his right to a jury trial and pleaded guilty to two counts of burglary, and the trial court sentenced him to concurrent terms of four years' imprisonment on each count. ¶ 5 On August 15, 2011, defendant filed a petition for relief from judgment. According to an August 22, 2011, docket entry, the trial court struck this petition because it was not in compliance with statute and gave defendant leave to refile on or before October 3, 2011. On August 29, 2011, defendant filed an amended petition for relief from judgment, pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)). On September 6, 2011, defendant filed an affidavit in support of his petition. Defendant asserted his Edgar County burglary convictions were void because they were not ordered to run consecutively, as required by section 5-8-4(h) of the Unified Code of Corrections (730 ILCS 5/5-8-4(h) (West 1996)), with a sentence he received in Champaign County (at a later date). Defendant was on pretrial release in Champaign County when he committed the instant offenses in Edgar County. In support of his petition, defendant attached a docket sheet from Champaign County case No. 96-CF-722. In September 2011, the trial court denied the motion, noting in a docket entry as follows:
"Clearly, the Edgar County sentence was imposed prior to the Champaign County sentence. The Edgar County mittimus makes no reference to a Champaign County case. It is not proper to order¶ 6 In October 2011, defendant filed a motion to reconsider, asserting (1) his appointed counsel and the State's Attorneys in the counties of Edgar, Douglas, Coles, and Champaign had agreed to a "package" deal that his sentences in each county would run concurrent with the other counties and (2) section 5-8-4(h) of the Unified Code of Corrections (730 ILCS 5/5-8-4(h) (West 1996)) requires these sentences to run consecutively regardless of the order in which the judgments of conviction were entered. In November 2011, the trial court denied defendant's motion, noting in a docket entry the sentences imposed in this case were correct. ¶ 7 In March 2012, this court allowed defendant's motion to file a late notice of appeal and OSAD was appointed to represent defendant on appeal. ¶ 8 In December 2012, OSAD moved to withdraw, including in its motion a brief in conformity with the requirements of Pennsylvania v. Finley, 481 U.S. 551 (1987). On its own motion, this court granted defendant leave to file additional points and authorities by January 11, 2013. This court then granted defendant three extensions; the final extension required defendant to file additional points and authorities by March 28, 2013. On April 1, 2013, defendant filed a "motion opposing counsel's Finley brief" and this court reestablished the docketing schedule. The State responded. After examining the record and executing our duties in accordance with Finley, we deny OSAD's motion.
a sentence to run consecutive to another sentence that has not been imposed."
¶ 9 II. ANALYSIS
¶ 10 OSAD argues this appeal presents no meritorious claim upon which defendant could realistically expect to obtain relief. Specifically, OSAD contends an appeal in this case would be frivolous as the trial court properly dismissed defendant's section 2-1401 petition for relief from judgment because it (1) was untimely and (2) fails on the merits. ¶ 11 Initially, we note in the facts section of its brief, OSAD asserts, "[t]he trial court reviewed [defendant's] petition 30 days after it was filed." Despite the failure of defendant or the State to bring this to our attention, our review of the record reveals this statement is incorrect. While defendant's original section 2-1401 petition was filed on August 15, 2011, this petition was stricken by the court due to defendant's failure to comply with the statute, and defendant was given leave to refile on or by October 3, 2011. Defendant's amended section 2-1401 petition was filed on August 29, 2011, and the trial court denied it 17 days later on September 15, 2011. This raises a question of whether defendant's amended section 2-1401 petition was ripe for adjudication at the time of its denial by the trial court. ¶ 12 Section 2-1401(b) requires "[a]ll parties to the petition [to] be notified as provided by rule." 735 ILCS 5/2-1401(b) (West 2010). Under Illinois Supreme Court Rule 106, petitions filed pursuant to section 2-1401 "shall be given by the same methods provided in Rule 105." Ill. S. Ct. R. 106 (eff. Aug. 1, 1985). Rule 105(b) provides notice shall be directed to the party and must be served either by summons, by prepaid certified or registered mail, or by publication. People v. Prado, 2012 IL App (2d) 110767, ¶ 6, 979 N.E.2d 564; see Ill. S. Ct. R. 105(b) (eff. Jan. 1, 1989). The notice must state a default judgment may be entered against the party unless he files an answer or an appearance within 30 days after service. Ill. S. Ct. R. 105(a) (eff. Jan. 1, 1989). ¶ 13 In People v. Laugharn, 233 Ill. 2d 318, 323, 909 N.E.2d 802, 805 (2009), the trial court dismissed the prisoner's pro se section 2-1401 petition 7 days after the petition was filed and prior to the 30-day period for the State to answer or plead. The supreme court held the petition was not ripe for adjudication because the "circuit court's dismissal short-circuited the proceedings and deprived the State of the time it was entitled to answer or otherwise plead." Id. The court vacated the dismissal and remanded for new proceedings under section 2-1401 without reaching the merits of the petition. Id. at 324, 909 N.E.2d at 805. In Powell v. Lewellyn, 2012 IL App (4th) 110168, ¶¶ 10, 11, 976 N.E.2d 1106, this court applied the Laugharn principles to a petition for injunctive relief and found the plaintiff's case was not ripe for adjudication at the time the trial court sua sponte denied the petition because the defendants had not been properly notified. We vacated the trial court's judgment and remanded for further proceedings, noting if plaintiff wanted to have his case heard, he could properly serve defendants, and if notice was not properly served, the court could "dismiss the case for want of prosecution after a reasonable period of time." Id. at ¶ 14, 976 N.E.2d 1106. ¶ 14 Our review of the record fails to reveal whether the State was properly notified of defendant's section 2-1401 petition as required by Rule 105. The record contains a notarized "notice of filing" and "affidavit of service" in which defendant averred he served the amended petition for relief from judgment on the State's Attorney by placing the same in the United States mailbox located at Vienna Correctional Center on August 24, 2011. An August 29, 2011, docket entry shows an amended petition for relief from judgment on file and that a copy was forwarded to the State's Attorney. However, defendant's affidavit of service does not indicate whether the petition was sent by certified or registered mail as required by Rule 105(b), nor does it include a statement regarding default judgment. The record is devoid of any indication the State filed an answer or an appearance prior to the trial court's sua sponte denial of the petition which occurred 17 days after defendant placed his amended petition in the mail. As noted in Laugharn, the court's sua sponte denial of defendant's section 2-1401 petition prior to 30 days following service (which never occurred here) "short circuit[s] the proceedings and deprive[s] the State of the time it [is] entitled to answer or otherwise plea." The court's sua sponte denial of defendant's petition was premature. We vacate the court's judgment and remand for further proceedings. We express no opinion on the merits of the substantive arguments raised by OSAD, defendant, or the State.
¶ 15 III. CONCLUSION
¶ 16 We vacate the trial court's judgment and remand for further proceedings. In light of our conclusion, we deem OSAD's motion to withdraw as counsel pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), as moot. ¶ 17 Judgment vacated; cause remanded for further proceedings.