People v. Banks ( 2020 )

NOTICE
2020 IL App (5th) 170381-U NOTICE
Decision filed 05/21/20. The This order was filed under
text of this decision may be NO. 5-17-0381 Supreme Court Rule 23 and
changed or corrected prior to may not be cited as precedent
the filing of a Petition for by any party except in the
Rehearing or the disposition of IN THE limited circumstances allowed
the same.
under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 88-CF-641
)
WILLIE BANKS JR., ) Honorable
) Jennifer L. Hightower,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court.
Justices Cates and Barberis concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of the defendant’s section 2-1401 petition two
days after the State filed a motion to dismiss and before the defendant had
notice of and an opportunity to respond to the motion to dismiss denied the
defendant procedural due process.
¶2 After a bench trial, the circuit court found the defendant, Willie Banks Jr., guilty of
two counts of armed robbery. Prior to sentencing, the circuit court also found that the
defendant qualified to be sentenced as a habitual criminal pursuant to the Habitual Criminal
Act (Ill. Rev. Stat. 1987, ch. 38, ¶ 33B-2). The circuit court, therefore, sentenced the
1
defendant to natural life in prison. On direct appeal, this court affirmed the defendant’s
conviction and sentence. People v. Banks, 212 Ill. App. 3d 105 (1991).
¶3 The defendant subsequently filed a pro se petition pursuant to section 2-1401 of the
Code of Civil Procedure (Code) (section 2-1401 petition) (735 ILCS 5/2-1401 (West
2016)), arguing that the Habitual Criminal Act was invalidly and illegally applied in his
case. The defendant’s allegations focused on the State’s use of three armed robbery
convictions that occurred in 1973, when the defendant was 15 years old, as part of the basis
for qualifying him to be sentenced under the Habitual Criminal Act. The defendant further
alleged that the State’s fraudulent concealment of its improper use of the convictions
hindered him from discovering the invalid and illegal application of the Habitual Criminal
Act in his case.
¶4 The State filed a motion to dismiss the defendant’s section 2-1401 petition. Two
days later the circuit court granted the State’s motion and dismissed the defendant’s petition
without affording the defendant an opportunity to respond to the motion. The defendant
now appeals and argues that he was denied due process because he was not allowed a
meaningful opportunity to respond to the motion to dismiss. In addition, the defendant
argues that the circuit court improperly dismissed his petition before it was “ripe for
adjudication.” For the following reasons, we agree with the defendant’s due process claim
and remand for further proceedings consistent with this decision.
2
¶5 BACKGROUND
¶6 The defendant’s natural life sentence in this case stems from convictions entered on
January 26, 1989. After a bench trial, the circuit court found the defendant guilty of two
counts of armed robbery. Prior to sentencing, and pursuant to section 33B-2 of the Habitual
Criminal Act (Ill. Rev. Stat. 1987, ch. 38, ¶ 33B-2), the State filed a notice indicating that
the defendant qualified to be sentenced as a habitual criminal, and set out the defendant’s
prior convictions which included the three convictions for armed robbery in April 1973
and a conviction for armed robbery in April 1978.
¶7 The defendant’s presentencing investigation (PSI) report was filed on February 28,
1989. The PSI report included a section reflecting the defendant’s history of delinquency
and/or criminality. That section described the 1973 and 1978 convictions as follows. Under
the heading “Juvenile,” the PSI report stated that in 1973 the State filed a supplemental
petition in a pending juvenile proceeding alleging that the defendant committed armed
robbery and that the defendant was “[c]ertified to stand trial as an adult.” Under the heading
“Adult,” the PSI report indicated that the defendant was convicted of armed robbery in
1973 and sentenced to “4 to 6 years Illinois Department of Corrections, Juvenile Division.”
The PSI report also listed the armed robbery conviction from 1978 under the “Adult”
heading.
¶8 On April 25, 1989, the circuit court conducted a hearing to determine whether the
defendant qualified as a habitual offender. At the hearing, an employee of the Madison
County circuit clerk’s office identified certified copies of armed robbery convictions of
3
“Willie Banks” in the three 1973 criminal cases. The clerk also identified a certified copy
of the armed robbery conviction for “Willie Banks” in 1978.
¶9 An assistant state’s attorney testified that he prosecuted the defendant in the 1978
armed robbery case. He identified the defendant as the Willie Banks he prosecuted. A
police officer employed with the City of Alton testified that he participated in the
investigations of the 1973 and 1978 armed robberies that led to the convictions in the 1973
and 1978 cases. He identified the defendant as the Willie Banks that was convicted in those
cases.
¶ 10 Based on this evidence, the State argued that natural life in prison was the only
sentencing option because the defendant had been convicted of three Class X felonies. The
defense argued that the State failed to carry its burden under the Habitual Criminal Act
because the certified convictions for the 1973 offenses did not include any age or other
identity indicators of the person convicted in those offenses other than “Willie Banks.” In
addition, the defense noted that the defendant would have been 15 years old in 1973 and
that the State failed to prove that the defendant “was certified to stand trial as an adult,
which would be an element of that offense.”
¶ 11 On August 15, 1989, the circuit court entered an order finding that the prior armed
robbery convictions from 1973 and 1978 qualified the defendant as a habitual criminal
under the Habitual Criminal Act. The defendant subsequently filed a motion requesting the
circuit court to declare the Habitual Criminal Act to be unconstitutional. The circuit court
denied the defendant’s motion and sentenced the defendant to natural life in prison as
4
required by section 33B-1(e) of the Habitual Criminal Act (Ill. Rev. Stat. 1987, ch. 38,
¶ 33B-1(e)). In rejecting the defendant’s challenges to the statute at the sentencing hearing,
the circuit court stated that, after reading the statute, it could not find anything that would
prohibit the Habitual Criminal Act from being applied to a defendant who was “tried as an
adult even though that person may have been a juvenile at the time.” The circuit court,
therefore, sentenced the defendant to natural life in prison without the possibility of parole.
¶ 12 The defendant filed a direct appeal of his conviction and sentence, arguing that he
should not have been qualified as a habitual criminal because he was only 15 at the time of
the first armed robbery convictions. People v. Banks, 212 Ill. App. 3d 105, 106 (1991). He
argued that applying the Habitual Criminal Act in his case constituted an impermissible
double enhancement penalty because the provision in the Juvenile Court Act that allowed
him to be tried as an adult (Ill. Rev. Stat. 1981, ch. 37, ¶ 702-7(3)) was an enhancing statute.
The Banks court disagreed and affirmed the defendant’s natural life sentence. The court
held that the statute was “unambiguous and clear in its meaning” and that “[a]ny conviction
may be used as a former conviction,” regardless of whether the defendant was a juvenile
or not. Banks, 212 Ill. App. 3d at 107.
¶ 13 On September 8, 2015, the defendant filed a pro se petition for postconviction relief
pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)),
arguing that his sentence under the Habitual Criminal Act violated his due process rights.
The circuit court dismissed the postconviction petition at the first stage of the
5
postconviction proceeding. Although the defendant filed a notice of appeal of the dismissal,
he did not pursue the appeal and it was dismissed.
¶ 14 On March 17, 2017, the defendant filed the pro se section 2-1401 petition that is the
subject of the present appeal. In the section 2-1401 petition, the defendant argued that the
Habitual Criminal Act was “invalid and illegal as applied” in his case and that the State’s
fraudulent concealment prevented the defendant from discovering his claim. Specifically,
the defendant alleged that the State misrepresented the 1973 convictions as part of his adult
criminal record. The defendant maintained that the circuit court entered a juvenile court
disposition stemming from the 1973 armed robberies. The defendant alleged that the State
had filed a motion to transfer the juvenile disposition “to be used and reflected as [an] Adult
Criminal Record,” but the circuit court denied that request.
¶ 15 On March 28, 2017, the circuit court entered an order granting the State 45 days to
file a responsive pleading and granted the defendant “30 days from the filing of the State’s
pleading within which to file any response.” (Emphasis added.) The circuit court stated in
its order that on June 26, 2017, it would review the pleadings filed in the case.
¶ 16 On May 31, 2017, the State filed a motion for leave to file a motion to dismiss the
section 2-1401 petition. The State alleged in the motion that the attorney handling the case
had resigned and that a new attorney was assigned to handle the case. The State, therefore,
requested leave to file a motion to dismiss 18 days past the designated filing date. The
record indicates that the State’s motion to dismiss was file stamped the same day as the
filing of the motion for leave.
6
¶ 17 In its motion to dismiss the defendant’s section 2-1401 petition, the State noted that
subsection (c) of section 2-1401 required petitions under that section to be filed “not later
than 2 years after the entry of the order or judgment.” 735 ILCS 5/2-1401(c) (West 2016).
The State, therefore, argued that the defendant’s section 2-1401 petition was untimely. Two
days later, on June 2, 2017, the circuit court granted the State’s motion for leave to file the
motion to dismiss. In addition, in the same order, the circuit court also granted the State’s
motion to dismiss and dismissed the defendant’s petition on the ground that it was untimely
and that the defendant’s claims were “not legally sufficient.” The circuit court did not
afford the defendant any opportunity to respond to the motion to dismiss.
¶ 18 Before receiving the circuit court’s dismissal order, the defendant sent the circuit
court a handwritten letter objecting to the State’s request for leave to file the motion to
dismiss, asking the court “to continue on the dates that has been ordered *** 6-26-17.”
The defendant wrote in his letter that he was “ready to prove and show [his] claim against
the State.” On June 23, 2017, the defendant filed a pro se response to the State’s motion to
dismiss alleging fraudulent concealment as a basis for tolling the time limit contained in
section 2-1401(c). After receiving a copy of the dismissal order, on August 11, 2017, the
defendant filed a pro se motion to reconsider in which he requested the circuit court to
reconsider its order dismissing his section 2-1401 petition. The defendant again
emphasized that he was claiming fraudulent concealment on the part of the State and argued
that the circuit court’s order did not address his fraudulent concealment claim. The circuit
7
court denied the defendant’s motion to reconsider, and he now appeals the dismissal of his
section 2-1401 petition.
¶ 19 ANALYSIS
¶ 20 On appeal, the defendant argues that the circuit court improperly dismissed his
section 2-1401 petition on the State’s motion without giving him a meaningful opportunity
to respond. He argues that the dismissal violated his due process rights and that the
dismissal was also improper because the section 2-1401 petition was not ripe for
adjudication “under civil pleading rules.” We agree with the defendant that the dismissal
of his section 2-1401 petition violated the defendant’s procedural 1 due process rights.
¶ 21 Here, the circuit court dismissed the defendant’s section 2-1401 petition on the
State’s motion without an evidentiary hearing. Where the circuit court dismisses a section
2-1401 petition without a hearing, our review of the dismissal is de novo. People v. Vincent,
226 Ill. 2d 1, 17 (2007). In addition, we note that a procedural due process claim presents
a legal question that is also subject to de novo review. Village of Vernon Hills v. Heelan,
2015 IL 118170, ¶ 31.
¶ 22 Section 2-1401 of the Code allows for relief from final judgments more than 30 days
after their entry, provided the petitioner proves by a preponderance of evidence certain
elements. See 735 ILCS 5/2-1401 (West 2016); Smith v. Airoom, Inc., 114 Ill. 2d 209, 220-
21 (1986) (identifying existence of meritorious defense and diligence in both the original
“Procedural due process claims challenge the constitutionality of the specific procedures used to
1
deny a person’s life, liberty, or property.” People v. Cardona, 2013 IL 114076, ¶ 15.
8
action and the collateral proceeding as elements). Section 2-1401 is a civil remedy that
extends to criminal cases as well as civil cases. People v. Sanchez, 131 Ill. 2d 417, 420
(1989). A section 2-1401 petition must be filed not later than two years after the entry of
the order or judgment. 735 ILCS 5/2-1401(c) (West 2016). However, the period during
which the ground for relief is fraudulently concealed is to be excluded in computing the
two-year limitations period. Id.¶ 23 The supreme court has stated that “an action brought under section 2-1401 is a civil
proceeding and, according to [the supreme court’s] long-standing precedent, is subject to
the usual rules of civil practice, even when [the action] is used to challenge a criminal
conviction or sentence.” People v. Vincent, 226 Ill. 2d 1, 6 (2007). The usual rules of civil
practice that apply to proceedings under section 2-1401 include Illinois Supreme Court
Rule 182(c) (eff. Jan. 1, 1967), which allows litigants 21 days to file a response to a motion
to dismiss. In addition, a defendant who has filed a section 2-1401 petition is entitled to
procedural due process during the litigation of his petition.
¶ 24 An individual’s right to procedural due process is guaranteed by the United States
and Illinois Constitutions. U.S. Const., amend. XIV, § 1; Ill. Const. 1970, art. I, § 2. The
right entitles an individual to “the opportunity to be heard at a meaningful time and in a
meaningful manner.” (Internal quotation marks omitted.) Bartlow v. Shannon, 399 Ill. App.
3d 560, 571 (2010). The opportunity to be heard “ ‘has little reality or worth unless one is
informed that the matter is pending.’ ” BAC Home Loans Servicing, LP v. Mitchell, 2014
9
IL 116311, ¶ 28 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950)).
¶ 25 For example, in People v. Gaines, 335 Ill. App. 3d 292, 296 (2002), abrogated on
other grounds by Vincent, 226 Ill. 2d at 12, the court held a petitioner’s due process rights
were violated when the circuit court dismissed a section 2-1401 petition after hearing a
motion by the State and not providing the petitioner time to respond. The Gaines court
recognized the “basic notions of fairness dictate that the defendant be afforded notice of,
and an opportunity to respond to, any motion or responsive pleading by the State.” Gaines,
335 Ill. App. 3d at 296.
¶ 26 Likewise, in Merneigh v. Lane, 87 Ill. App. 3d 852, 854 (1980), this court held that
an inmate petitioner was denied due process when the State moved to dismiss the
petitioner’s mandamus petition without giving him notice of the motion to dismiss and
opportunity to respond. The Merneigh court noted that basic due process required the
petitioner to have, among other things, “a meaningful opportunity to respond to the motion
by submitting a written memorandum in opposition thereto.” Id.¶ 27 More recently, in People v. Rucker, 2018 IL App (2d) 150855, ¶ 30, the court held
that the defendant was deprived of due process when the circuit court dismissed his section
2-1401 petition before he had a meaningful opportunity to respond. In People v. Bradley,
2017 IL App (4th) 150527, the court held that the defendant’s due process rights were
violated where the circuit court considered the State’s motion two days after it was filed
10
and dismissed the petition based on the State’s arguments, and there was no indication that
defendant was given opportunity to respond.
¶ 28 Also, we note that in Vincent the supreme court held that a section 2-1401 petition
was in the nature of a complaint and governed by the rules of civil procedure. Vincent, 226
Ill. 2d at 8. Illinois courts have long recognized that civil practice in Illinois incudes the
basic principle that a party receive notice and an opportunity to respond to a potentially
dispositive motion. Peterson v Randhava, 313 Ill. App. 3d 1, 12 (2000). Such opportunity
“is deeply imbedded in our concept of fair play and justice.” English v. Cowell, 10 F.3d
434, 437 (7th Cir. 1993).
¶ 29 In this case, in setting the ground rules for litigating the defendant’s section 2-1401
petition, the circuit court extended the 21-day time limit provided in Rule 182(c) in which
the defendant could file a response to any pleading filed by the State. 2 Specifically, the
circuit court expressly granted the defendant “30 days from the filing of the State’s pleading
within which to file any response.” (Emphasis added.) The court, however, did not afford
the defendant 30 days to file a response to the State’s motion to dismiss as required by its
order nor did it provide the defendant the 21 days to respond as provided by Rule 182(c).
The circuit court dismissed the section 2-1401 petition two days after the State presented
the court with a request for leave to file the motion to dismiss past its due date. The circuit
court granted the motion for leave to file the motion to dismiss and dismissed the
2
The supreme court rules give circuit courts broad discretion in setting and extending the deadlines
for the filing of pleadings. Miller v. Consolidated R. Corp., 173 Ill. 2d 252, 260 (1996).
11
proceeding in the same order. The circuit court did so before the expiration of the time in
which the defendant had to respond to the motion to dismiss and, in fact, before the
defendant even knew that the State had filed a responsive pleading. It is self-evident that
this procedure lacked fairness, and we concluded that the procedure violated the
defendant’s procedural due process rights.
¶ 30 In its brief, the State recognizes that the circuit court erred in prematurely dismissing
the defendant’s section 2-1401 petition without affording the defendant an opportunity to
respond to the State’s motion. Nonetheless, the State asks us to affirm the circuit court’s
dismissal as harmless error. On this point, we again find Bradley to be persuasive. In
Bradley, the State argued that the appellate court should not remand the case because the
circuit “court’s ‘procedural error’ was not prejudicial.” Bradley, 2017 IL App (4th) 150527,
¶ 20. The Bradley court disagreed, finding the circuit court’s failure to give the “defendant
an opportunity to respond to the State’s motion to dismiss was inherently prejudicial and
undermined the integrity of the proceedings.” Id. ¶ 21 (“At times, ‘it is important to stand
on the side of due process, even at the cost of some inefficiency.’ ” (quoting People v.
Coleman, 358 Ill. App. 3d 1063, 1071 (2005))).
¶ 31 In addition, harmless error analysis is based on the notion that a defendant’s interest
in an error-free proceeding must be balanced against societal interests in finality and
judicial economy. People v. Simms, 121 Ill. 2d 259, 275-76 (1988). In addressing the type
of procedural error that is at issue in this case, in the context of a criminal proceeding,
Illinois courts have engaged in a harmless error analysis in cases where the defendants had
12
already “amassed *** a large number of meritless collateral challenges to their convictions
or sentences.” People v. Stoecker, 2019 IL App (3d) 160781, ¶ 13. In Bradley, where the
court declined to engage in harmless error analysis, the defendant was appealing the
dismissal of his only section 2-1401 petition after the appellate court had affirmed his direct
appeal and the summary dismissal of his only postconviction petition. Bradley, 2017 IL
App (4th) 150527, ¶¶ 3-4. Likewise, in the present case, the defendant is appealing the
dismissal of his only section 2-1401 petition after he has appealed his sentence and filed
one postconviction petition that was summarily dismissed and was not subject to appellate
review. The history of this case, therefore, does not include “a large number of meritless
collateral challenges.”
¶ 32 Under these facts, societal interest in finality and judicial economy do not weigh
heavily against the defendant’s due process right to be heard on the merits of the State’s
motion. Fairness requires that the defendant be afforded the opportunity to fully litigate his
section 2-1401 petition. Full litigation includes notice of, and the opportunity to respond
to, the State’s responsive pleading. Anything less in this case is unacceptable under due
process standards. Accordingly, we vacate the circuit court’s order dismissing the section
2-1401 petition and remand this case for further proceedings without consideration of the
merits of defendant’s petition. Bradley, 2017 IL App (4th) 150527, ¶ 21. Also, similar to
Bradley, because we are remanding this case on procedural due process grounds, we need
not address defendant’s ripeness argument. Id.13
¶ 33 CONCLUSION
¶ 34 For the foregoing reasons, we vacate the circuit court’s judgment dismissing the
defendant’s section 2-1401 petition and remand for further proceedings consistent with this
decision.
¶ 35 Judgment vacated and cause remanded.
14