Section 2-1401 Petition Illinois
In People v. Anderson, 352 Ill. App. 3d 934, 942, 817 N.E.2d 1000, 288 Ill. Dec. 350 (2004), the First Division of the First District concurred with Pearson in finding that it is unfair to a defendant, when faced with the proposed dismissal of his section 2-1401 petition, to be deprived of notice and an opportunity to respond. the Anderson decision articulated various reasons for prohibiting the use of the summary dismissal procedure, including the fact that notice and an opportunity to respond are fundamental principles of justice. Anderson, 352 Ill. App. 3d at 942.
Anderson also noted that the legislature expressly provided for the summary dismissal of a post-conviction petition in the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)), but did not do so in section 2-1401. Anderson, 352 Ill. App. 3d at 944-45.
The court emphasized that summary dismissal, which is a drastic procedure, should not be read into the procedures provided by section 2-1401. Anderson, 352 Ill. App. 3d at 945.
Anderson, however, then departed from Pearson and its progeny by holding that the harmless error analysis should still be applied where the defects are patently incurable. Anderson, 352 Ill. App. 3d at 946-47.
The court reasoned that where the dismissal of the petition is inevitable and further proceedings in the circuit court would have little remedial effect and only delay dismissal, the summary dismissal should be affirmed based on harmless error. Anderson, 352 Ill. App. 3d at 947-48.
The court explained that its application of the harmless error analysis was consistent with the general duty of the reviewing court to consider the record as a whole and ignore harmless errors. Anderson, 352 Ill. App. 3d at 948.