{ "id": 4266685, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. WHITNEY, Defendant-Appellant", "name_abbreviation": "People v. Whitney", "decision_date": "2006-11-07", "docket_number": "No. 2\u201404\u20140230", "first_page": "678", "last_page": "689", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 678" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "355 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600572 ], "year": 2005, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0416-01" ] }, { "cite": "185 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121977 ], "year": 1998, "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0179-01" ] }, { "cite": "345 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739001 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0191-01" ] }, { "cite": "335 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637050 ], "weight": 12, "year": 2002, "pin_cites": [ { "page": "293" }, { "page": "293-94" }, { "page": "293-94" }, { "page": "294" }, { "page": "294" }, { "page": "295" }, { "page": "296" }, { "page": "296" }, { "page": "296" }, { "page": "296" }, { "page": "296" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0292-01" ] }, { "cite": "344 Ill. App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778382 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0678-01" ] }, { "cite": "157 Ill. App. 3d 691", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543172 ], "weight": 3, "year": 1987, "pin_cites": [ { "page": "693" }, { "page": "694" }, { "page": "694" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/157/0691-01" ] }, { "cite": "215 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5292711 ], "year": 1991, "pin_cites": [ { "page": "399" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/215/0396-01" ] }, { "cite": "296 Ill. App. 3d 684", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222629 ], "year": 1998, "pin_cites": [ { "page": "688" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/296/0684-01" ] }, { "cite": "353 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3364347 ], "year": 2004, "pin_cites": [ { "page": "278" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/353/0268-01" ] }, { "cite": "355 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600572 ], "year": 2005, "pin_cites": [ { "page": "419" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/355/0416-01" ] }, { "cite": "345 Ill. App. 3d 191", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739001 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/345/0191-01" ] }, { "cite": "335 Ill. App. 3d 292", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637050 ], "year": 2002, "pin_cites": [ { "page": "296" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/335/0292-01" ] } ], "analysis": { "cardinality": 946, "char_count": 29044, "ocr_confidence": 0.755, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3558253782363373 }, "sha256": "d98c62578077f28f99ce68a19a59f3a3db03d1d74b9eb9d25a6a8315db77860b", "simhash": "1:132a561607481176", "word_count": 4813 }, "last_updated": "2023-07-14T20:06:43.500571+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. WHITNEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KAPALA\ndelivered the opinion of the court:\nDefendant, Charles E. Whitney, appeals from the judgment of the circuit court of Kane County denying his postjudgment petition brought pursuant to section 2 \u2014 1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1401 (West 2004)). Defendant requests that we reverse the trial court\u2019s judgment and that we remand the cause to the circuit court for further proceedings on his petition. We affirm.\nI. BACKGROUND\nIn October 1998, defendant pleaded guilty to one count of home invasion (720 ILCS 5/12 \u2014 11 (West 1996)) and was sentenced to 17 years\u2019 imprisonment and 3 years\u2019 mandatory supervised release. On July 1, 2003, defendant filed a pro se petition for postjudgment relief pursuant to section 2 \u2014 1401 of the Code. In his petition, defendant maintained that a conflict between the day-for-day good-conduct credit in section 3 \u2014 6\u20143 of the Unified Code of Corrections (730 ILCS 5/3\u2014 6 \u2014 3 (West 1998)) and his three-year term of mandatory supervised release (730 ILCS 5/5 \u2014 8\u20141(d) (West 1998)) resulted in a void judgment in violation of his rights under the United States and Illinois Constitutions. Defendant asked the trial court to \u201cissue a corrected mittimus of eleven (11) years, as opposed to the seventeen (17) years.\u201d On July 18, 2003, the State filed a motion to dismiss, the sole contention of which was that the petition was filed beyond the two-year limitations period (735 ILCS 5/2 \u2014 1401(c) (West 2004)) and, therefore, was untimely. The State\u2019s motion did not address the merits of defendant\u2019s petition.\nOn February 3, 2004, defendant appeared pro se and the court convened the proceedings as follows:\n\u201cTHE COURT: 98 \u2014 C\u201429. People versus Charles Whitney; Counsel, for the record?\nMR. SAMS [Assistant State\u2019s Attorney]: Greg Sams.\nTHE COURT: Okay. Matter is up this afternoon for the Court\u2019s ruling following a Petition that Mr. Whitney had filed pro se, seeking relief from the plea agreement that he had earlier entered into. The Prosecution then filed a Notice [sic] to Dismiss Mr. Whitney\u2019s Petition, and the Court asked that Mr. Whitney be brought to the courtroom this afternoon for the Court\u2019s ruling, in person.\nMr. Whitney, I\u2019ve read the Petitionf,] I\u2019ve done the legal research into this. Under the case law, under basic notes [sic] of fairness, you would have the right to add anything in addition that you would like me to consider. Is there anything in addition that you want to present to the Court, beside the Petition and the cases that you\u2019ve already presented?\nTHE DEFENDANT: No, sir.\u201d\nThereafter, the trial court reiterated that the \u201c[m]atter comes before the Court for the Court\u2019s decision and ruling on the Defendant\u2019s Petition for Post Judgment relief pursuant to 735 ILCS, 5/2 \u2014 1401.\u201d The court then discussed, at some length, the characteristics of a section 2 \u2014 1401 petition before noting that the State had moved to dismiss the defendant\u2019s petition as untimely. In denying the motion to dismiss, the trial court observed that defendant\u2019s petition raised a claim that the judgment was void and, therefore, the usual two-year limitations period of section 2 \u2014 1401 was inapplicable. The trial court proceeded to \u201centertain the allegation under other well-settled legal analysis,\u201d that is, the trial court ruled on the merits of defendant\u2019s petition. The trial court analyzed the substance of defendant\u2019s petition and found that it lacked merit. The trial court denied defendant\u2019s petition and advised defendant of his right to appeal. Defendant filed this timely appeal challenging the manner in which the trial court disposed of his petition.\nII. DISCUSSION\nAs a preliminary matter, we address the State\u2019s contention that defendant\u2019s argument is moot because he has been released from incarceration. The validity of a sentence becomes a moot question after the sentence is served. People v. Elizalde, 344 Ill. App. 3d 678, 681 (2003). Although defendant is no longer incarcerated, he is currently serving a term of supervised release that does not terminate until December 2008. A defendant\u2019s term of supervised release is considered part of his sentence. Elizalde, 344 Ill. App. 3d at 681. Defendant\u2019s sentencing claim, therefore, is not moot.\nThe State argues that, because this is a collateral action, it does not raise the same \u201cpolicy concerns\u201d that would be present if this were a direct appeal from the trial court\u2019s sentencing order. The State neither identifies these \u201cpolicy concerns\u201d nor cites any authority to support this claim. This contention, devoid as it is of argument or citation to authority, is waived. See 210 Ill. 2d R. 341(e)(7). Accordingly, we turn to the substance of defendant\u2019s argument on appeal.\nDefendant argues that the trial court\u2019s dismissal of his petition on the ground that it lacked merit was \u201cfundamentally unfair\u201d because the State\u2019s motion to dismiss raised only timeliness concerns and so defendant \u201cwas not given notice that the merits would be at issue.\u201d Defendant relies on two cases from this district, People v. Gaines, 335 Ill. App. 3d 292 (2002), and People v. Pearson, 345 Ill. App. 3d 191 (2003), both of which set limits on how the trial court may dispose of a section 2\u20141401 petition.\nIn Gaines, the defendant filed a section 2 \u2014 1401 petition to which he attached an affidavit from a woman who averred that certain of her statements that were used against the defendant at trial were coerced by the police. Gaines, 335 Ill. App. 3d at 293. On the date set for hearing on the defendant\u2019s petition, the State filed what was deemed a motion to dismiss. Gaines, 335 Ill. App. 3d at 293-94. The defense was not served with a copy before the hearing on the petition, and the trial judge who presided at the hearing was not the judge who had presided at the defendant\u2019s trial. Gaines, 335 Ill. App. 3d at 293-94. The State argued at the hearing that the woman\u2019s statements in her affidavit did not differ from the statements used at trial and, therefore, did not constitute newly discovered evidence. Gaines, 335 Ill. App. 3d at 294. The assistant public defender who appeared for the defendant advised the court that he was unprepared to argue against the State\u2019s motion to dismiss, because he had received no prior notice of it. Gaines, 335 Ill. App. 3d at 294. The trial court accepted the State\u2019s argument and granted the State\u2019s motion. Gaines, 335 Ill. App. 3d at 295.\nThis process, we found, was \u201cseriously flawed.\u201d Gaines, 335 Ill. App. 3d at 296. We explained that, unlike a postconviction petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 2004)), \u201c[a] section 2 \u2014 1401 petition is akin to the complaint in a civil action, and to challenge the petition, the opponent must either move to dismiss it or file an answer.\u201d Gaines, 335 Ill. App. 3d at 296. \u201c[B]asic notions of fairness,\u201d we said, \u201cdictate that the defendant be afforded notice of, and an opportunity to respond to, any motion or responsive pleading by the State.\u201d Gaines, 335 Ill. App. 3d at 296. We found:\n\u201cDefendant\u2019s attorney was not given adequate notice of the motion and did not have a meaningful opportunity to respond. This was particularly unfair in this case as the State based its argument, in part, on evidence at trial even though the judge who heard the State\u2019s motion had not presided over the trial and was not familiar with the evidence. *** [Defendant should have had an opportunity to respond to the State\u2019s factual representations about what occurred at trial.\u201d Gaines, 335 Ill. App. 3d at 296.\nIn Pearson, the trial court dismissed the defendant\u2019s section 2 \u2014 1401 petition without any responsive pleading from the State and without any hearing. We considered this \u201ca complete abrogation of the adversary process\u201d because \u201c[bjasic notions of fairness dictate that defendant be afforded the same notice and opportunity to respond that he would have had if the State had filed a motion to dismiss.\u201d Pearson, 345 Ill. App. 3d at 195.\nHere, in contrast to Gaines and Pearson, the State filed a motion to dismiss, and defendant was afforded notice of, and an opportunity to respond to, that motion. Defendant\u2019s contention, therefore, is not that he was denied a meaningful opportunity to address a point raised in the State\u2019s motion, as happened in Gaines. Nor is his contention that the trial court summarily dismissed the petition, as happened in Pearson. Rather, defendant\u2019s contention is that, because the State\u2019s motion to dismiss claimed only that the petition was untimely, the trial court erred in dismissing the petition on the merits.\nDefendant has mischaracterized the trial court\u2019s ruling in this case as a dismissal of his section 2 \u2014 1401 petition when, in fact, the trial court denied his petition on the merits. The record shows that at the outset of the proceeding on February 3, 2004, the trial court explained that the matter was up for a ruling on (1) defendant\u2019s petition, and (2) the State\u2019s motion to dismiss defendant\u2019s petition. After offering defendant an opportunity to present any additional matters that he wanted the court to consider, the trial court once again stated that the matter was up for the court\u2019s ruling on defendant\u2019s petition. After explaining its rationale for rejecting the argument defendant asserted in his petition, the trial court stated, in a most positive manner, that \u201cthe Defendant\u2019s Motion [sic] is denied.\u201d Moreover, the trial court\u2019s written order of February 3, 2004, provides that \u201c[defendant\u2019s] petition for relief under 735 ILCS 5/2 \u2014 1401 is denied, for the reasons stated on the record.\u201d If the trial court had acted upon the State\u2019s motion to dismiss, as defendant suggests, the court would have entered an order granting the State\u2019s motion rather than denying relief to defendant. In fact, the trial judge stated, \u201cthe Court is not going to dismiss the Defendant\u2019s Petition because it was not filed in the statutory time period.\u201d\nThe dissent accepts defendant\u2019s argument, which is based upon the faulty premise that the trial court dismissed his petition. In our view, however, on February 3, 2004, the trial court conducted a simultaneous hearing on both the State\u2019s motion to dismiss and defendant\u2019s section 2 \u2014 1401 petition. The result of that proceeding was the denial of the State\u2019s motion to dismiss followed by the denial of defendant\u2019s section 2 \u2014 1401 petition on its merits.\nOn appeal, defendant does not argue that there was anything inherently wrong with conducting a simultaneous hearing on the State\u2019s motion and his petition. This is understandable considering his mischaracterization of the trial court\u2019s ruling. Nevertheless, any argument that the trial court erred in conducting a simultaneous hearing is waived (210 Ill. 2d R. 341(e)(7)).\nDefendant also waived the simultaneous-hearing issue when he, unlike the defendant in Gaines, failed to pose any objection in the trial court. At the beginning of the proceeding on February 3, 2004, the trial court stated that the matter was up for the court\u2019s ruling on both \u201ca petition that [defendant] had filed pro se\u201d and the State\u2019s \u201cNotice [sic] to dismiss [defendant\u2019s] petition.\u201d Defendant was thereby expressly put on notice that the trial court intended to rule on both matters that day. Defendant posed no objection. Additionally, before ruling on both matters, the trial court reiterated that the \u201c[m]atter comes before the Court for the Court\u2019s decision and ruling on Defendant\u2019s Petition for Post Judgement relief pursuant to 735 ILCS 5/2 \u2014 1401,\u201d advising defendant in no uncertain terms that the court was about to address the merits of the petition. Again, defendant posed no objection. \u201c \u2018 \u201cAn accused may not sit idly by and allow irregular proceedings to occur without objection and afterwards seek to reverse [the judgment] by reason of those same irregularities.\u201d \u2019 [Citations.]\u201d People v. Bull, 185 Ill. 2d 179, 200 (1998).\nNot only did defendant not object when the trial court announced that both matters would be addressed, defendant forwent the opportunity to participate in the hearing when he declined the trial court\u2019s offer to present evidence or further argument in support of his petition. The trial court informed defendant that \u201c[u]nder the case law, under basic notes [sic] of fairness, you would have the right to add anything in addition that you would like me to consider\u201d and then asked defendant, \u201cIs there anything in addition that you want to present to the Court, beside[s] the Petition and the cases that you\u2019ve already presented?\u201d This was defendant\u2019s opportunity to present evidence and to further address the merits of his petition. As indicated, defendant declined. We conclude that defendant\u2019s express decision to stand on his petition at the hearing rather than present evidence or further legal argument, and his failure to object to the simultaneous hearing, constituted acquiescence to the joint proceeding. We note that it is permissible for a petitioner to waive any obligation a respondent may have to file an answer to a section 2 \u2014 1401 petition. See Dealer Management Systems, Inc. v. Design Automotive Group, Inc., 355 Ill. App. 3d 416, 419 (2005).\nWe are mindful that defendant has argued, in a general manner, that the proceedings in the trial court were fundamentally unfair because he was not given notice that the merits would be at issue. As we explained above, at the beginning of the proceeding on February 3, 2004, the trial court informed defendant that it intended to rule on his petition that day. There is nothing in the record to indicate that defendant had prior notice of the purpose of the February 3, 2004, hearing. However, by the time he was transported to the circuit court, he had knowledge that he had filed a section 2 \u2014 1401 petition and that the State had filed a motion to dismiss his petition. We note specifically that defendant was not advised that the only purpose for this hearing was to address the State\u2019s motion to dismiss. In any event, on February 3, 2004, after being informed that both the State\u2019s motion to dismiss and his petition were before the court, defendant posed no objection to any lack of prior notice and, as indicated above, acquiesced in the simultaneous proceeding.\nDefendant relies heavily on Gaines to support his position. However, Gaines is inapposite. First, in contrast to the situation in Gaines, where the State\u2019s motion to dismiss was filed on the same day it was heard, in our case the State\u2019s motion to dismiss was filed 6V2 months before the February 3, 2004, hearing. Second, the defense in Gaines objected to proceeding with the hearing on the motion to dismiss, while in this case defendant acquiesced in the hearing. Finally, in Gaines the State\u2019s motion to dismiss was granted, while the State\u2019s motion to dismiss in the instant cause was denied. Gaines teaches that fundamental notions of fairness are violated where a trial court grants a motion to dismiss a defendant\u2019s section 2 \u2014 1401 petition and the defendant did not have adequate notice or a meaningful opportunity to be heard. Gaines, 335 Ill. App. 3d at 296. Here, however, defendant had both notice of the motion to dismiss and an opportunity to be heard on that motion, which in any event was denied.\nDefendant\u2019s acquiescence to the trial court reaching the merits of his petition is understandable in view of the fact that the argument he advanced in his petition was purely a legal one. Thus, it stands to reason that defendant deemed it unnecessary to call any witnesses or to present any other evidence at the hearing. Moreover, putting aside the merits of the argument, defendant\u2019s pro se petition is a well-written, coherent, 12-page document complete with accurate citations to pertinent statutes and case law. Thus, it is also understandable that defendant chose to stand on the legal arguments and authorities within his petition and declined the opportunity to argue the merits further.\nIII. CONCLUSION\nDefendant does not contend on appeal that the trial court\u2019s analysis of the merits of his petition was deficient. In fact, defendant\u2019s position is that the cause should be remanded without regard to the merits of the underlying claim. Consequently, having found no unfairness in the proceedings on defendant\u2019s section 2 \u2014 1401 petition, we affirm the judgment of the circuit court of Kane County denying defendant\u2019s petition.\nAffirmed.\nCALLUM, J., concurs.", "type": "majority", "author": "JUSTICE KAPALA" }, { "text": "JUSTICE O\u2019 MALLEY,\ndissenting:\nIn Gaines, this court stated that, unlike a postconviction petition filed under the Post-Conviction Hearing Act (725 ILCS 5/122 \u2014 1 et seq. (West 2004)), \u201c[a] section 2 \u2014 1401 petition is akin to the complaint in a civil action, and to challenge the petition, the opponent must either move to dismiss it or file an answer.\u201d Gaines, 335 Ill. App. 3d at 296. Once the implications of Gaines\u2019 statement for section 2 \u2014 1401 procedures are realized, it becomes clear that a trial court cannot sua sponte address the merits of a defendant\u2019s section 2 \u2014 1401 petition, as the trial court did here.\nIf, as Gaines instructs, a section 2 \u2014 1401 petition is akin to a civil complaint, then a motion to dismiss that attacks the petition as untimely is akin to a motion to dismiss under section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 2004)). Section 2 \u2014 619(a)(5) provides in relevant part:\n\u201cDefendant may, within the time for pleading, file a motion for dismissal of the action or for other appropriate relief upon any of the following grounds. If the grounds do not appear on the face of the pleading attacked the motion shall be supported by affidavit:\n$\n(5) That the action was not commenced within the time limited by law.\u201d 735 ILCS 5/2 \u2014 619(a)(5) (West 2004).\nSection 2 \u2014 619 allows for a dismissal under different theories from section 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 615 (West 2004)). A section 2 \u2014 615 motion attacks the legal sufficiency of the plaintiffs claims, while a section 2 \u2014 619 motion admits the legal sufficiency of the claims but raises defects, defenses, or other affirmative matter, appearing on the face of the complaint or established by external submissions, that defeat the action. Northern Trust Co. v. County of Lake, 353 Ill. App. 3d 268, 278 (2004). \u201c \u2018Motions made pursuant to section 2 \u2014 619 of the Code must be limited to the grounds enumerated therein. [Citations.] Failure to state a cause of action is not such an enumerated ground, but is instead a basis for a section 2 \u2014 615 motion.\u2019 \u201d AG Farms, Inc. v. American Premier Underwriters, Inc., 296 Ill. App. 3d 684, 688 (1998), quoting Universal Underwriters Insurance Co. ex. rel Manley Ford, Inc. v. Long, 215 Ill. App. 3d 396, 399 (1991). Confusing a section 2 \u2014 615 motion to dismiss with a section 2 \u2014 619 motion to dismiss may have \u201csevere\u201d consequences and \u201cshould not be countenanced\u201d by trial judges. Rowan v. Novotny, 157 Ill. App. 3d 691, 693 (1987).\nIn Rowan, the defendant filed a motion to dismiss, purportedly under section 2 \u2014 619, which raised several contentions, among them that the plaintiff failed to state a cause of action. The trial court granted the motion to dismiss without specifying any reasons for the dismissal or citing the specific statutory section under which the dismissal was made. On appeal, the defendant defended the dismissal by arguing that the plaintiffs complaint failed to state a cause of action. The appellate court held that this argument was never properly before the trial court because it was \u201cnot [an] argument[ ] to be advanced through a section 2 \u2014 619 motion but rather through a section 2 \u2014 615 motion.\u201d Rowan, 157 Ill. App. 3d at 694. The court explained:\n\u201cIt would be improper and unjust to allow the defendant to attack the complaint after failing to file a proper motion pointing out specifically the defects complained as required by [section 2 \u2014 615] because the purpose of the statute is to give the plaintiff an opportunity to respond to the objection and to cure the defect in the trial court.\u201d Rowan, 157 Ill. App. 3d at 694.\nGiven the parallels between a motion to dismiss a civil complaint under section 2 \u2014 619 and a motion to dismiss a section 2 \u2014 1401 petition not on the merits of the petition but only on an affirmative matter such as timeliness, the impropriety of the trial court\u2019s procedure here is clear. Defendant, faced with a motion to dismiss that raised only timeliness issues, had a right to expect that the merits of his claim would not be addressed at the hearing on that motion to dismiss, just as a plaintiff in a civil action would not expect the trial court to raise issues about the legal sufficiency of his claims in addressing a section 2 \u2014 619 motion to dismiss. The trial court, I conclude, erred in reaching the substance of defendant\u2019s petition.\nThe majority does not acknowledge my points here but rules against defendant largely by finding his claims procedurally defaulted. The majority applies notions of \u201cwaiver\u201d and \u201cacquiescence\u201d but not persuasively. First, the majority suggests, rather strangely, that defendant\u2019s argument \u201cis based upon the faulty premise that the trial court dismissed his petition\u201d rather than \u201cconducted a simultaneous hearing on both the State\u2019s motion to dismiss and [his] *** petition,\u201d and that I have bought into defendant\u2019s erroneous assumption by accepting his argument. 368 Ill. App. 3d at 683. The majority proceeds to find that, because defendant has not 'attacked the legitimacy of that \u201csimultaneous hearing,\u201d he has waived any challenge to that hearing. 368 Ill. App. 3d at 683. The majority\u2019s claim bewilders me. I do not know why defendant would be arguing, and I agreeing, that the trial court erred in reaching the merits of his petition unless we both believed that the trial court actually reached the merits of his petition through a \u201csimultaneous hearing\u201d and then rejected those merits. The \u201cfaulty premise\u201d I see at work here is the majority\u2019s belief that defendant has not argued on appeal that the trial court erred in reaching the merits of his petition.\nSecond, the majority finds waiver for the additional reason that defendant failed to object in the trial court to the simultaneous hearing. I do not share the majority\u2019s comfort with using waiver to defeat the claims of a pro se criminal defendant under section 2 \u2014 1401, particularly where, as here, the State has not argued waiver and the defendant\u2019s arguments on appeal implicate rights that we so zealously defended in Gaines and Pearson.\nThe majority alternatively finds that defendant acquiesced in the simultaneous hearing by declining the opportunity given him by the trial court to present any additional matter on the petition before the trial court ruled on it. Even if (as I dispute) the trial court had authority to address sua sponte the merits of defendant\u2019s petition, the procedure employed by the trial court still was deficient. What the trial court in essence did was (using the Gaines analogy again) invoke section 2 \u2014 615 on its own initiative to dismiss defendant\u2019s petition. A section 2 \u2014 615 motion \u201cshall point out specifically the defects complained of.\u201d 735 ILCS 5/2 \u2014 615(a) (West 2004). The trial court did not identify any defects in defendant\u2019s petition before asking if he wanted to add anything regarding the petition. The trial court did, of course, subsequently identify several defects in the petition, but the court proceeded to dismiss the petition without affording defendant an opportunity to address the alleged deficiencies. The trial court\u2019s unsolicited venture into the merits of defendant\u2019s petition no more complied with section 2 \u2014 615 than would a procedure in which the State filed a motion, purportedly under section 2 \u2014 615, that made no assertions but simply asked defendant if he had anything to add to his petition and the trial court immediately granted the motion, with or without any stated reasons, and provided defendant no opportunity to respond.\nThe majority asserts that \u201cit is permissible for a petitioner to waive any obligation a respondent may have to file an answer to a section 2 \u2014 1401 petition,\u201d and cites as authority Dealer Management Systems. 368 Ill. App. 3d at 684. Dealer Management Systems, however, does not state any such general rule, and its facts, which the majority neglects even to mention, are unlike what occurred here. In Dealer Management Systems, the plaintiff filed a section 2 \u2014 1401 petition seeking to vacate the dismissal of his complaint. The plaintiff set the petition for a hearing on a particular day. The defendant neither answered the petition nor moved to strike it. On the day set for the hearing, the trial court entered an order denying the petition. The plaintiff appealed, arguing that, because the defendant failed to answer the petition or move to strike it, its allegations must be taken as true. We disagreed, noting that our supreme court rules state that a party served with a section 2 \u2014 1401 petition is entitled to notice that it must answer or otherwise respond to the petition within 30 days after service of the petition. Dealer Management Systems, 355 Ill. App. 3d at 419. We noted that, because the record did not indicate when the plaintiff served the petition, we could not determine whether the defendant\u2019s time to answer had expired when the trial court denied the petition. We also observed that the notice served by the plaintiff did not inform the defendant that it was required to respond to the petition. We concluded that the plaintiff waived the requirement that the defendant answer or otherwise respond to the petition. Dealer Management Systems, 355. Ill. App. 3d at 419.\nI fail to see any relevant similarities between Dealer Management Systems and the present case. Defendant does not suggest that this court should take the allegations of his petition as true; rather, he argues that the trial court had no authority to reach the merits of his claims given the scope of the State\u2019s challenge. There is also no suggestion that defendant failed to comply with the rules pertaining to the service of a section 2 \u2014 1401 petition, a breach of which was the basis for the finding of waiver in Dealer Management Systems. Not only is Dealer Management Systems factually distinguishable, but the case gives no rule by which waiver might be applied in contexts different than its own.\nRather than dispense with defendant\u2019s claims on dubious grounds of procedural default, the majority ought to reach the vital issue that begs for resolution: whether the trial court\u2019s action was consistent with the civil complaint/section 2 \u2014 1401 analogy that drove our decisions in Pearson and Gaines.\nI should also note that a harmless-error analysis is not applicable here. In Pearson we refused to apply a harmless-error analysis, because the trial court\u2019s summary dismissal of the defendant\u2019s section 2 \u2014 1401 petition was \u201ca fundamentally incorrect form of proceeding.\u201d Pearson, 345 Ill. App. 3d at 196. We explained:\n\u201c[W]e can conduct harmless-error analysis only by examining fundamentally proper proceedings and considering whether, if we removed the effect of an error, we would obtain the same result. Where the error is that the proceedings were of fundamentally the wrong kind, we cannot speculatively recreate the right proceedings to determine what should have been the result. A section 2 \u2014 1401 petition invokes an adversarial proceeding brought under the Code. Despite the predictability of the ultimate dismissal of this petition, we think that the procedure by which the trial court dismissed it was simply too far removed from what defendant was entitled to for us to review the matter as if defendant had been given notice and an opportunity to answer.\u201d Pearson, 345 Ill. App. 3d at 196.\nBecause the dismissal of defendant\u2019s petition in the present case was based on an error analogous to confusing a section 2 \u2014 615 motion to dismiss with a section 2 \u2014 619 motion to dismiss, the dismissal was \u201ca fundamentally incorrect form of proceeding\u201d to which harmless-error analysis does not apply.\nIt might be argued that the trial court could have cured any prejudice to defendant in the handling of his petition by allowing him to amend the petition to cure the defects identified by the court. The record does not show whether the dismissal of the petition was with prejudice. However, the trial court\u2019s stance toward a potential amendment may be reflected in the fact that it informed defendant of his appellate rights immediately after announcing the dismissal of the petition.", "type": "dissent", "author": "JUSTICE O\u2019 MALLEY," } ], "attorneys": [ "Anna Ahronheim, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "John A. Barsanti, State\u2019s Attorney, of St. Charles (Martin P Moltz and Mary Beth Burns, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. WHITNEY, Defendant-Appellant.\nSecond District\nNo. 2\u201404\u20140230\nOpinion filed November 7, 2006.\nO\u2019MALLEY, J., dissenting.\nAnna Ahronheim, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJohn A. Barsanti, State\u2019s Attorney, of St. Charles (Martin P Moltz and Mary Beth Burns, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0678-01", "first_page_order": 696, "last_page_order": 707 }