Appellate court reverses denial of 2-1401 petition where State did not file a response
The appellant in People v. Cathey, 2019 IL App (1st) 153118, appealed the decision of the trial court dismissing two petitions seeking relief from convictions, on grounds that the court erred by dismissing his petition filed pursuant to section 2-1401 of the Code of Civil Procedure attacking his convictions under the one-act, one-crime rule. Appellant further contended that his petition “in nature of writ of error coram nobis” sufficiently stated a claim of actual innocence (based on planted evidence) and that his plea was obtained under threat of physical harm to him and his family. The First District affirmed the dismissal of appellant’s coram nobis petition but reversed the dismissal of his section 2-1401 petition and remanded for further proceedings.
Cathey was found guilty at jury trial for attempted first degree murder and aggravated battery with a firearm and sentenced to 20 years’ imprisonment for both charges. Cathey’s sentences were ordered to be served concurrently. Id. at ¶ 2-9. Cathey unsuccessfully appealed his convictions, arguing, unpersuasively, that his counsel was ineffective and that his due process rights had been violated. Id. at ¶ 10. After his subsequent pro se post-conviction petition was dismissed by the trial court, he filed the petitions for which this appeal is the subject.
The appellate court’s analysis of each of appellant’s petitions were conducted independent of one another. The court evaluated appellant’s section 2-1401 petition first.
Upon filing his pro se section 2-1401 petition alleging a one-act, one-crime violation, the State did not file a response. Id. at ¶ 12. Shortly after filing, the trial court sua sponte dismissed the petition. At no point did the court orally state its reasons for dismissing the petition, nor did it state for the record that Cathey or a representative was present. In its written order, the trial court found Cathey’s petition untimely since it was filed more than 20 years beyond the limitations period. The court also found that defendant was not entitled to relief on his one-act, one-crime claim “because aggravated discharge of a firearm and attempt murder are separate convictions.” Id. at ¶ 12. This appeal followed.
The court noted that section 2-1401 sets forth a procedure, that extends to criminal cases, by which the trial court may vacate final orders and judgements more than 30 days after their entry. Further, the court noted that because the State failed to file a response to the petition and the trial court did not hold a hearing before dismissing the petition, the threshold issue is whether the trial court had the authority to dismiss defendant’s section 2-1401 petition sua sponte because it was untimely filed where the timeliness issue was never raised by the parties. Id. at ¶ 14.
The appellate court found that pursuant to rulings in People v. Vincent and People v. Pinkonsly, the trial court cannot sua sponte dismiss a section 2-1401 petition based on untimeliness if that issue was never raised before the court. Id. at ¶ 18. Further, the court held that when the State does not answer a petition, its failure to respond constitutes an admission of all well-pleaded facts and that no triable issue of fact exists. Id. at ¶ 18. The court reasoned that where the State forfeits the timeliness defense by not answering the petition, defendant has no opportunity to amend his petition to allege facts showing a potential factual dispute, and dismissal, in this context, would be improper as a matter of law.
On the merits of the petition, the court held that while the petition sufficiently alleged a meritorious claim, “to obtain relief defendant must also allege facts supporting due diligence in presenting the claim to the trial court, and due diligence in filing section 2-1401 petition.” Id. at ¶ 27. Appellant alleged in his petition that he was not aware of the one-act, one-crime rule until September 2013, and that he relied upon his attorney to conduct his defense. The court ruled that while they must take all-well pleaded allegations as true, the issue of defendant’s diligence here raises questions of fact more suitable for an evidentiary hearing. As a result, the appellate court reversed the dismissal of appellant’s petition and remanded the cause for an evidentiary hearing on the issue of defendant’s diligence. Id. at ¶ 28.
On the motion in “Nature of Writ of Error Coram Nobis,” the appellate court noted that Illinois legislature had long ago replaced the common law writ with the statutory scheme that was the predecessor to section 2-1401 of the Code. As such, the motion was treated as a section 2-1401 petition for relief. Id. at ¶ 41. Under that framework, the appellate court determined the new evidence presented by appellant was “not of such conclusive character that it would change the result upon retrial” and therefore, the trial court had properly dismissed the petition. Id at ¶ 50.
Ultimately, the Appellate Court of Illinois First District affirmed in part, and reversed in part, the dismissal of appellant’s section 2-1401 petition and coram nobis petition. The case was remanded for further proceedings.