NO. 4-05-0033
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Detention of GREGORY MORRIS, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Plaintiff-Appellee, ) Cass County
v. ) No. 98MR17
GREGORY MORRIS, )
Defendant-Appellant. ) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Defendant, Gregory Morris, filed a petition for relieffrom judgment (735 ILCS 5/2-1401 (West 2000)) following his ad-judication as a sexually violent person. The trial court deniedthe petition, and we affirm.
Defendant was convicted of the aggravated criminalsexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14) of twodifferent women in 1987 and had a subsequent conviction foraggravated criminal sexual assault (720 ILCS 5/12-14 (West 1992))in 1994. The 1994 assault occurred while defendant was on paroleand attending sex-offender treatment. In May 1999, a jury founddefendant was a sexually violent person under the SexuallyViolent Persons Commitment Act (Act) (725 ILCS 207/1 through 99(West 1998)). The circuit court entered judgment on the verdictand committed defendant to the Department of Human Services forinstitutional care in a secure facility. This court affirmed. In re Detention of Morris, No. 4-99-0454 (November 13, 2000)(unpublished under Supreme Court Rule 23).
On May 31, 2001, defendant filed a petition for relieffrom judgment pursuant to section 2-1401 of the Code of CivilProcedure. 735 ILCS 5/2-1401 (West 2000). The petition wasplaced in the state facility mailing system on May 26, 2001, butthe circuit clerk of Cass County did not file-stamp the petitionuntil May 31, 2001. The trial court dismissed the petitionbecause it was three days late. Following a supervisory order ofthe supreme court (In re Detention of Morris, 201 Ill. 2d 568,776 N.E.2d 236 (2002) (nonprecedential supervisory order)), thiscourt, with one judge dissenting, reversed the trial court'sorder and remanded for further proceedings. In re Detention ofMorris, No. 4-01-0685 (May 1, 2003) (unpublished under SupremeCourt Rule 23).
On September 20, 2004, the trial court dismisseddefendant's section 2-1401 petition, finding that the petitionand supplementary documents "fail[ed] to set forth sufficientfact to constitute grounds for relief pursuant to [section 2-1401]" and finding that the documents failed to sufficientlyallege due diligence as required by section 2-1401. Defendantappeals.
"[T]he purpose of a section 2-1401 petition for relieffrom judgment is to bring before the circuit court facts notappearing in the record which, if known to the court at the timejudgment was entered, would have prevented the entry of thejudgment." Beauchamp v. Zimmerman, 359 Ill. App. 3d 143, 147,833 N.E.2d 877, 881-82 (2005). To be entitled to relief undersection 2-1401, the petitioner must affirmatively set forthspecific factual allegations showing each of the followingelements by a preponderance of the evidence: (1) the existenceof a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the originalaction; and (3) due diligence in filing the section 2-1401petition for relief. Smith v. Airoom, Inc., 114 Ill. 2d 209,220-21, 499 N.E.2d 1381, 1386 (1986). A meritorious defense isnot enough; petitioner must explain why he did not raise thatdefense during the trial.
Section 2-1401 is often employed in civil cases involving default judgments. Smith, 114 Ill. 2d at 225, 499 N.E.2d at1388 ("where justice and good conscience may require it a defaultjudgment may be vacated even though the requirement of duediligence has not been satisfied"). Although a section 2-1401petition is usually characterized as a civil remedy, its remedialpowers extend to criminal cases. People v. Sanchez, 131 Ill. 2d417, 420, 546 N.E.2d 574, 576 (1989). "Relief should be grantedunder section 2-1401 when necessary to achieve justice. Toaccomplish that goal, the statute is to be construed liberally." People v. Lawton, 212 Ill. 2d 285, 298, 818 N.E.2d 326, 334(2004).
A section 2-1401 petition is subject to a motion todismiss where it either fails to state a cause of action or showson its face that the petitioner is not entitled to relief. Ostendorf v. International Harvester Co., 89 Ill. 2d 273, 279-80,433 N.E.2d 253, 256 (1982). However, a motion to dismiss shouldnot be granted unless it clearly appears that no set of factscould ever be proved that would entitle the plaintiff to relief. Ostendorf, 89 Ill. 2d at 280, 433 N.E.2d at 256.
"The petition must be supported by affidavit or otherappropriate showing as to matters not of record." 735 ILCS 5/2-1401(b) (West 2000). Hearings on a section 2-1401 petition aresimilar to hearings on a motion for summary judgment. Ostendorf,89 Ill. 2d at 286, 433 N.E.2d at 259. A section 2-1401 petitionmay be decided on the basis of the pleadings, affidavits, and therecord of the prior proceedings alone, if no factual dispute israised. If a disputed factual issue exists material to whetherrelief is justified, however, an evidentiary hearing is required. Klein v. LaSalle National Bank, 155 Ill. 2d 201, 205, 613 N.E.2d737, 739 (1993). In the present case, the trial court did notsummarily dismiss the case but decided it on the merits afterconsidering defendant's affidavits and supplementary documentsand concluding no evidentiary hearing was necessary.
The trial court properly rejected the petition. Defendant asserted that the Act was unconstitutional, but thatargument has been rejected by the supreme court. In re Detentionof Varner, 207 Ill. 2d 425, 433, 800 N.E.2d 794, 799 (2003). Defendant asserted the jury violated its instructions, theState's witnesses repeatedly perjured themselves, and the Statepresented prejudicial testimony of uncharged offenses. Some ofthose arguments were made, or could have been made, in the directappeal, and defendant's affidavits and other materials are notsufficient to show the existence of a meritorious defense orclaim.
Defendant asserts his counsel was ineffective infailing to object to certain testimony, to introduce letters andother evidence, to investigate the claims and credentials of theexperts, and to expose lies "which are too numerous to listexhaustively here." A defendant committed under the SexuallyDangerous Persons Act (725 ILCS 205/0.01 through 12 (West 2000))may assert an ineffective-assistance-of-counsel claim undersection 2-1401, at least where his trial counsel, who cannot beexpected to argue his own ineffectiveness, represented him on thedirect appeal. Lawton, 212 Ill. 2d at 295-96, 818 N.E.2d at 333. In the present case, defendant was represented by new counsel onhis direct appeal. No reason appears why the claims defendantnow makes could not have been raised on direct appeal. Also,defendant's affidavits and other materials do not establish thatany other action by counsel would have changed the outcome.
For the foregoing reasons, we affirm the trial court'sdenial of defendant's section 2-1401 petition.
Affirmed.
STEIGMANN and KNECHT, JJ., concur.