People v. Laugharn ( 2008 )

NO. 4-04-0846 Filed 2/15/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Morgan County
MILDRED L. LAUGHARN, ) No. 95CF75
Defendant-Appellant. )
) Honorable
) Richard T. Mitchell,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In August 2004, defendant, Mildred L. Laugharn, filed a
petition under section 2-1401 of the Code of Civil Procedure (735
ILCS 5/2-1401 (West 2004)), seeking to set aside her November
1996 first-degree-murder conviction (720 ILCS 5/9-1(a)(1) (West
1996)). In September 2004, the trial court sua sponte dismissed
defendant's petition as untimely filed.
Defendant appealed, arguing only that the trial court's
sua sponte dismissal of her section 2-1401 petition was error.
Specifically, she contended that the trial court lacked authority
to take that action. This court disagreed and affirmed. People
v. Laugharn, No. 4-04-0846 (August 1, 2006) (unpublished order
under Supreme Court Rule 23).
On September 26, 2007, the Supreme Court of Illinois
denied defendant's petition for leave to appeal but directed this
court to vacate our judgment and to reconsider it in light of
People v. Vincent, 226 Ill. 2d 1, 871 N.E.2d 17 (2007). People
v. Laugharn, 225 Ill. 2d 656, 873 N.E.2d 936 (2007) (nonprece-
dential supervisory order on denial of petition for leave to
appeal). In accordance with the supreme court's directions, we
vacate our earlier judgment and reconsider it in light of Vincent
to determine whether a different result is warranted.
In Vincent, the supreme court wrote that "[t]he ques-
tion raised in this case was 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." Vincent, 226 Ill. 2d at 5, 871 N.E.2d at
21. The supreme court ultimately held that a trial court pos-
sesses the authority to dispose of a properly served section 2-
1401 petition sua sponte without a responsive pleading. Vincent,
226 Ill. 2d at 13, 871 N.E.2d at 26. The supreme court further
held that when a trial 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." Vincent, 226 Ill.
2d at 18, 871 N.E.2d at 28. See People v. Ryburn, No. 4-04-0836,
slip op. at 8-12 (February 7, 2008), ___ Ill. App. 3d ___, ___,
___ N.E.2d ___, ___ (in which this court recently discussed the
supreme court's decision in Vincent at some length).
After reconsidering our earlier judgment in light of
Vincent to determine whether a different result is warranted, we
again conclude that the trial court correctly ruled against
defendant sua sponte, dismissing her petition with prejudice. As
part of our judgment, we award the State its $50 statutory
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assessment against defendant as costs of this appeal.
Affirmed.
MYERSCOUGH, J., concurs.
COOK, J., dissents.
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JUSTICE COOK, dissenting:
I respectfully dissent and would reverse and remand.
In ruling on a section 2-1401 petition in a criminal
case, a trial court may not summarily dismiss the petition as
"frivolous or *** patently without merit" as permitted under the
Post-Conviction Hearing Act. 725 ILCS 5/122-2.1(a)(2) (West
2004); Vincent, 226 Ill. 2d at 10-11, 871 N.E.2d at 24-25. The
trial court may, however, sua sponte–as it would in civil cases -
-dismiss the case for failure to state a cause of action.
Vincent, 226 Ill. 2d at 14, 871 N.E.2d at 26. A civil case may
not be dismissed simply because the trial court believes it has
little merit. A motion to dismiss raises an issue of law as to
the legal sufficiency of the allegations in the complaint. A
motion to dismiss should not be granted unless it clearly appears
that no set of facts could ever be proved that would entitle the
plaintiff to recover. Ostendorf v. International Harvester Co.,
89 Ill. 2d 273, 280, 433 N.E.2d 253, 256 (1982).
The trial court in this case did not dismiss the
petition because its allegations did not provide a legal basis
for relief under section 2-1401. Instead, the court dismissed
the petition as untimely because the two-year period had expired.
As I stated in my original dissent in this case:
"When the trial court dismissed defen-
dant's section 2-1401 petition for being
untimely, the court did not afford defendant
the opportunity to respond. Under section 2-
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1401, a petition 'must be filed not later
than 2 years after the entry of the order or
judgment. Time during which the person seek-
ing relief is under legal disability or du-
ress or the ground for relief is fraudulently
concealed shall be excluded in computing the
period of 2 years.' 735 ILCS 5/2-1401(c)
(West 2004). Defendant could also have
avoided the two-year limitations period if
she could show that the judgment against her
was void. See Anderson, 352 Ill. App. 3d
936, 817 N.E.2d at 1002. Had the trial court
given defendant the opportunity, defendant
may have presented an acceptable explanation
for the delay. Defendant may then have dem-
onstrated a meritorious claim. On the other
hand, defendant may not have had any explana-
tion for the lengthy delay and the court
could have quickly disposed of defendant's
claim." Laugharn, slip order at 5 (Cook, J.,
dissenting) (unpublished summary order under
Supreme Court Rule 23(c)(2)).
It is not clear that no set of facts could ever be
proved in this case that would allow defendant to show the
petition was timely. The trial court should allow a litigant the
opportunity to amend the petition when so doing could yield a
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meritorious claim. Vincent, 226 Ill. 2d at 13 n.3, 871 N.E.2d at
26 n.3. Even a postconviction petition may not be summarily
dismissed, at the first stage, as untimely. The time requirement
for filing a postconviction petition is considered an affirmative
defense that may be raised, waived, or forfeited by the State.
People v. Boclair, 202 Ill. 2d 89, 101, 789 N.E.2d 734, 742
(2002).
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