2016 IL 118114



                                       IN THE
                              SUPREME COURT
                                          OF
                         THE STATE OF ILLINOIS



                                  (Docket No. 118114)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                        JERRELL MATTHEWS, Appellee.



                             Opinion filed December 1, 2016.



        JUSTICE GARMAN delivered the judgment of the court, with opinion.

        Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and
     Theis concurred in the judgment and opinion.



                                       OPINION

¶1       On March 25, 2012, defendant Jerrell Matthews mailed a petition for relief
     from judgment via the prison mail system at Menard Correctional Center to the
     clerk of the Cook County circuit court and the Cook County State’s Attorney’s
     office. On May 24, 2012, the circuit court dismissed the petition sua sponte as
     untimely. The appellate court concluded that the dismissal was premature because
     the State was never properly served. The judgment of the circuit court was vacated,
     and the cause remanded. The State appealed to this court pursuant to Illinois
     Supreme Court Rule 315 (eff. July 1, 2013).


¶2                                     BACKGROUND

¶3       Defendant-petitioner was convicted of first degree murder in 2007. The
     appellate court affirmed the conviction. Defendant filed a postconviction petition in
     2010 alleging ineffective assistance of counsel and insufficient evidence to support
     his conviction. The circuit court dismissed the petition as frivolous and patently
     without merit. The appellate court again affirmed.

¶4       On March 25, 2012, defendant mailed a petition for relief from judgment
     pursuant to section 2-1401 of the Code of Civil Procedure, asserting he was denied
     a fair trial based on alleged perjury by a State’s witness. 735 ILCS 5/2-1401 (West
     2010). The substance of the petition is irrelevant for purposes of this appeal.
     Defendant attached to the petition a “proof/certificate of service,” which stated that
     the petition was mailed “with proper first-class postage attached thereto” via the
     prison mail system at Menard Correctional Center to the clerk of the Cook County
     circuit court and the Cook County State’s Attorney’s office. The petition was
     marked “received” on April 11 by the clerk’s office and file-marked and docketed
     on April 23. On May 21, 2012, the circuit court continued the case. On May 24, the
     circuit court entered an order in which it dismissed the petition as untimely. The
     court further explained that the petition contained no argument of merit and lacked
     any supporting documentation. Defendant was not present in the courtroom at the
     time of the dismissal, and the transcript reveals no active participation by the
     State’s Attorney’s office, although it does list assistant State’s Attorney Kimellen
     Chamberlain and State’s Attorney Anita Alvarez as appearing for the State.

¶5       On appeal, defendant argued that the dismissal was premature because he never
     properly served the State and, thus, the 30-day period for filing a response had not
     yet expired. Defendant contended that service was improper because the proof of
     service does not indicate that the petition was mailed via certified or registered mail
     as required by Illinois Supreme Court Rule 105 (eff. Sept. 28, 1978). The appellate
     court concluded that defendant did not properly serve the State but that the State
     received actual notice of the petition and forfeited any objection to improper



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     service. Thus, defendant’s argument that the dismissal was premature could not be
     sustained on the basis that service was never effectively completed. However, the
     appellate court held the petition was not ripe for adjudication and dismissal was
     premature because less than 30 days had passed from the date the State received
     actual notice of the filing. The appellate court reversed the judgment of the circuit
     court and remanded the case for further proceedings. The State filed a petition for
     leave to appeal in this court, which was allowed January 20, 2016.1 Ill. S. Ct. R.
     315.


¶6                                           ANALYSIS

¶7       The circuit court dismissed defendant’s petition for relief from judgment as
     untimely. Such petitions “must be filed not later than 2 years after the entry of the
     order or judgment,” unless the petitioner can demonstrate that he or she has been
     “under legal disability or duress” or unless the “ground for relief [has been]
     fraudulently concealed.” 735 ILCS 5/2-1401(c) (West 2010). Defendant does not
     challenge the circuit court’s finding that his petition was untimely, but he asserts
     that the court’s order dismissing the petition was premature based on his own
     failure to comply with the applicable service requirements. Ill. S. Ct. R. 106 (eff.
     Aug. 1, 1985) (indicating that the service procedures set forth in Rule 105 apply to
     section 2-1401 petitions); Ill. S. Ct. R. 105 (setting forth the requirements for
     serving and filing a petition).

¶8       Illinois Supreme Court Rule 105 provides that a section 2-1401 petitioner must
     provide the opposing party with notice that the petition has been filed. Notice may
     be served in person, by mail, or by publication. Ill. S. Ct. R. 105. If by mail, service
     must be sent by certified or registered mail. Id. The notice must inform the
     respondent that “a judgment by default may be taken against him *** unless he

         1
          Despite the fact that the petition for leave to appeal had been filed, the circuit court on
     remand allowed defendant to file an amended section 2-1401 petition. The court then
     dismissed both the original and the amended petitions, and defendant again appealed. The
     appellate court granted an agreed motion for summary disposition, vacating the circuit
     court’s dismissal of the petitions based on lack of jurisdiction. Although both parties failed
     to provide the court with any record of the proceedings occurring after the petition for leave
     to appeal was filed, this court has taken judicial notice of the subsequent orders.




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       files an answer or otherwise files an appearance *** within 30 days after service,
       receipt by certified or registered mail, or the first publication of the notice.” Id. If
       the responding party fails to respond within the 30-day period, any question as to
       the petition’s sufficiency is deemed waived, and the petition is treated as properly
       stating a cause of action. People v. Vincent, 226 Ill. 2d 1, 8 (2007). The court can
       dismiss a petition despite a lack of responsive pleading if the petition is deficient as
       a matter of law. Id. at 8-9. However, the court cannot sua sponte dismiss a petition
       before the 30-day response period expires. People v. Laugharn, 233 Ill. 2d 318, 323
       (2009). Defendant cites Laugharn in support of his position that the dismissal of his
       petition was premature because he never properly served the State and thus the
       30-day response period never commenced. He further contends that, because the
       State was not properly served, the circuit court lacked personal jurisdiction and,
       therefore, the dismissal order is void.

¶9        This court reviews the dismissal of a section 2-1401 petition de novo. People v.
       Carter, 2015 IL 117709, ¶ 13. This court also reviews de novo whether the circuit
       court obtained personal jurisdiction. BAC Home Loans Servicing, LP v. Mitchell,
       2014 IL 116311, ¶ 17.

¶ 10       As the appellant below, defendant had the burden of presenting a sufficiently
       complete record so that the reviewing court could determine whether the claimed
       error occurred. People v. Carter, 2015 IL 117709, ¶ 19. The State contends that
       defendant did not sufficiently show that service was improper. Alternatively, the
       State claims it had actual notice of the petition more than 30 days before the
       dismissal; therefore, the court had personal jurisdiction and dismissal was
       appropriate. However, the State urges this court to first address whether defendant
       should be estopped from making such an argument based on his own failure to
       properly serve the State or whether he has standing to challenge the dismissal order.

¶ 11       We have been presented with this issue before. In Carter, the defendant
       similarly argued that dismissal of his section 2-1401 petition was premature
       because he had not yet correctly served the State. Id. ¶ 18. Based on the evidence in
       the record, we concluded that the defendant had failed to demonstrate that service
       was improper. Id. ¶ 22. We did not reach the State’s argument that a petitioner
       should not be able to challenge an order based on his own service error. Since then,
       several panels of our appellate court have considered this argument and reached




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       contradictory conclusions. Compare People v. Donley, 2015 IL App (4th) 130223,
       ¶ 34 (“ ‘Defendant should not be able to serve a party incorrectly and then rely on
       the incorrect service to seek reversal’ of the trial court’s decision.” (quoting People
       v. Alexander, 2014 IL App (4th) 130132, ¶ 47)), Alexander, 2014 IL App (4th)
       130132, ¶ 46 (“[T]he 30-day period does not provide a sword for a petitioner to
       wield once a court—as in this case—does not find in his favor, especially given
       that, under defendant’s interpretation, the basis of his claim on appeal is his failure
       to comply with Rule 105.” (Emphasis in original.)), and People v. Kuhn, 2014 IL
       App (3d) 130092, ¶ 15 (“[D]efendant does not have standing to raise an issue
       regarding the State’s receipt of service.”), with People v. Monroe, 2015 IL App
       (3d) 130149-U, ¶¶ 16-17 (distinguishing Kuhn and concluding that, because the
       State was neither served nor had actual notice, the defendant’s challenge to the trial
       court order based on improper service was appropriate), and People v. Pena, 2015
       IL App (1st) 131744-U, ¶ 12 (vacating dismissal order based on petitioner’s failure
       to serve the State); see also People v. Bustos, 2015 IL App (1st) 131212-U, ¶ 8
       (discussing conflicting opinions of the appellate court on this issue). Therefore, we
       begin our analysis with this argument.


¶ 12                            Whether Defendant Is Estopped
                           From Challenging the Validity of the Order

¶ 13        Defendant’s argument that the dismissal order should be reversed rests on his
       claim that service was improper. He concedes that such error was caused by his
       own failure to comply with the requirements of Rule 105. “[I]t is well established
       that ‘an accused may not ask the trial court to proceed in a certain manner and then
       contend in a court of review that the order which he obtained was in error.’ ” People
       v. Segoviano, 189 Ill. 2d 228, 241 (2000) (quoting People v. Lowe, 153 Ill. 2d 195,
       199 (1992)); see also People v. Hawkins, 181 Ill. 2d 41, 58 (1998) (“[T]he law is
       understandably reluctant to aid litigants responsible for the very errors of which
       they complain.”); Clemson v. President & Directors of the State Bank of Illinois, 2
       Ill. 45, 46 (1832) (“It would be clearly unjust to permit a party to assign his own
       mistakes as errors to reverse a judgment.”).

¶ 14      In People v. Villarreal, the defendant challenged the propriety of the verdict
       forms used at trial. 198 Ill. 2d 209, 227 (2001). The defendant’s own counsel




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       provided those forms. Id. The court concluded that “[t]o allow defendant to object,
       on appeal, to the very verdict forms he requested at trial, would offend all notions
       of fair play.” (Emphasis in original.) Id.; see also People v. Harvey, 211 Ill. 2d 368
       (2004) (concluding that the defendant was estopped, pursuant to the invited error
       doctrine, from challenging admission of mere-fact impeachment evidence on
       appeal after agreeing to the admission of the evidence at trial); People v. Carter,
       208 Ill. 2d 309, 319 (2003) (precluding the defendant from challenging his
       conviction on grounds that a certain jury instruction was not given after he declined
       to provide such an instruction at trial when given an opportunity to do so). By filing
       the “proof/certificate of service,” defendant asked the court to proceed as though
       the State had been adequately notified of the proceedings. Therefore, defendant is
       now estopped from alleging the court erred in acquiescing to this request. See
       Harvey, 211 Ill. 2d at 385 (noting that the issue of invited error is often considered
       one of estoppel).

¶ 15        Furthermore, if defendant were allowed to invalidate the circuit court’s order
       based on his own failure to properly serve the State, future litigants may have an
       incentive to improperly serve respondents or provide incomplete certificates of
       service to create a second opportunity to litigate their claims. See Alexander, 2014
       IL App (4th) 130132, ¶ 46 (“If we were to accept defendant’s rationale, a prisoner
       who uses regular mail to effect service upon the State will—upon appeal—be
       rewarded with a second bite of the apple if the court denies his petition on the
       merits.”). This would effectively revoke the State’s power to waive service in these
       cases. Such a result would be inconsistent with the purpose of Supreme Court Rule
       105 and of notice requirements generally. Rule 105 was designed to prevent a
       litigant from obtaining new or additional relief without first giving the opposing
       party an opportunity to appear and defend. Carter, 2015 IL 117709, ¶ 15. “ ‘The
       object of process is to notify a party of pending litigation in order to secure his
       appearance.’ ” (Internal quotation marks omitted.) Id. (quoting People v. Kuhn,
       2014 IL App (3d) 130092, ¶ 11). The 30-day requirement ensures the State has an
       opportunity to answer or otherwise plead. Laugharn, 233 Ill. 2d at 323. None of the
       notice requirements at issue were designed to allow a petitioner to object to lack of
       service on behalf of the opposing party. For these reasons, we conclude that
       defendant cannot challenge the trial court order based on his own failure to properly
       serve the State.




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¶ 16                  Whether Defendant Has Standing to Challenge the Order

¶ 17        Defendant alternatively claims that, even if he is estopped from objecting to a
       violation of Rule 105, the entire proceedings were invalid and the dismissal order
       should be dismissed as void based on lack of personal jurisdiction over the parties.
       Courts must have both subject-matter and personal jurisdiction to enter a valid
       judgment. In re M.W., 232 Ill. 2d 408, 414 (2009). “Absent a general appearance,
       personal jurisdiction can be acquired only by service of process in the manner
       directed by statute.” State Bank of Lake Zurich v. Thill, 113 Ill. 2d 294, 308 (1986).
       Both parties agree the circuit court had jurisdiction over the subject matter of the
       litigation.

¶ 18       Defendant maintains that the circuit court lacked personal jurisdiction over the
       State, based on his own failure to properly serve the State. Typically, a lack of
       personal jurisdiction argument based on improper service is raised by a respondent
       claiming an order is invalid because he or she did not receive notice of the
       proceedings. See, e.g., Keener v. City of Herrin, 235 Ill. 2d 338 (2009); State Bank
       of Lake Zurich, 113 Ill. 2d at 303. Defendant relies upon State Bank of Lake Zurich
       for the rule that a judgment entered without jurisdiction can be attacked at any time
       and “is void regardless of whether the defendant had actual knowledge of the
       proceedings” to support his position that he can challenge the circuit court’s order
       based on lack of personal jurisdiction over the State. 113 Ill. 2d at 308. This
       argument, however, fails to recognize that personal jurisdiction, unlike
       subject-matter jurisdiction, can be waived. In re M.W., 232 Ill. 2d 408, 417, 426-27
       (2009).

¶ 19       In In re M.W., we concluded that, because objections to personal jurisdiction
       and improper service may be waived, “a party may ‘object to personal jurisdiction
       or improper service of process only on behalf of himself or herself.’ ” Id. at 427
       (quoting Fanslow v. Northern Trust Co., 299 Ill. App. 3d 21, 29 (1998)). In that
       case, a minor was adjudicated delinquent. Id. at 412. She argued on appeal that the
       adjudication was void for lack of jurisdiction because her father had not been
       served in violation of the Juvenile Court Act of 1987. Id. We concluded that,
       because the father could waive service, the minor did not have standing to object to
       improper service on his behalf. Id. at 427. Therefore, the minor could not claim the
       adjudication was void for lack of personal jurisdiction over her father. Id.




                                               -7-
¶ 20       Nothing in In re M.W. indicates that this rule should be limited to proceedings
       pursuant to the Juvenile Court Act. The same logic applies outside the context of
       juvenile proceedings. For example, in In re Estate of Meskimen, the respondent
       challenged a trial court order on grounds that other trust beneficiaries had not been
       notified as required by the Probate Act. 39 Ill. 2d 415, 422 (1968). The court
       declined to consider the argument after noting the respondent was “in no position to
       raise the question.” Id. “The beneficiaries who failed to receive notice are the only
       persons in a position to raise the *** issue.” Id. at 422-23; see also In re Estate of
       Millsap, 75 Ill. 2d 247, 255 (1979) (“Appellant commenced these proceedings,
       appeared, and therefore was not entitled to notice. Since he was not entitled to
       notice, he may not complain of a failure to require that notice be given to others.
       Second, because he did have notice of the proceedings, appellant may not complain
       that others were not notified.”). We apply the same logic today to conclude that
       defendant lacks standing to challenge the validity of the circuit court’s dismissal
       order based on lack of personal jurisdiction over the State.

¶ 21       Since we have concluded that defendant cannot object to improper service or
       lack of personal jurisdiction on behalf of the State, we need not consider whether
       the record is sufficient to support defendant’s claim that service was improper. Nor
       do we need to consider the merits of the substantive arguments originally raised in
       the petition.


¶ 22                                     CONCLUSION

¶ 23       A section 2-1401 petitioner must serve the responding party with notice of the
       petition in compliance with Supreme Court Rule 105. If the respondent is not
       properly served, the court lacks personal jurisdiction unless the respondent waives
       service or makes an appearance. Today, we do not address whether service
       complied with Rule 105 or whether the State waived service or filed an appearance.
       We do not need to reach a conclusion on these issues, because defendant is
       estopped from claiming service was improper based on his own failure to comply
       with the requirements of Rule 105. Notions of fair play dictate that a litigant should
       not be allowed to relitigate a matter resolved against him based on his own error.
       Furthermore, defendant does not have standing to challenge the validity of the
       circuit court’s dismissal order based on lack of personal jurisdiction. Because




                                               -8-
       service and personal jurisdiction can be waived, only the party to whom service is
       owed can object to improper service. Therefore, the judgment of the appellate court
       is reversed, and the judgment of the circuit court is affirmed. Defendant’s petition is
       dismissed with prejudice.


¶ 24      Appellate court judgment reversed.

¶ 25      Circuit court judgment affirmed.




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