People v. Dalcollo

• Court: Appellate Court of Illinois
• Decided: July 8, 2026
• Docket: 3-24-0437
• Status: Published

Opinion

2026 IL App (3d) 240437

Opinion filed July 8, 2026 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-24-0437 v. ) Circuit No. 19-CF-698 ) JUSTIN L. DALCOLLO, ) Honorable ) Ann Celine O’Hallaren Walsh, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE DAVENPORT delivered the judgment of the court, with opinion. Justices Anderson and Bertani concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 A jury convicted defendant, Justin L. Dalcollo, of six counts of aggravated criminal sexual

assault (ACSA) (720 ILCS 5/11-1.30(a)(3), (4), (8) (West 2018)), aggravated kidnapping (id. § 10-

2(a)(6)), armed robbery (id. § 18-2(a)(2)), and two counts of unlawful use of a weapon by a felon

(id. § 24-1.1(a)). The trial court sentenced defendant to an aggregate prison term of 101 years. We

affirmed defendant’s convictions and sentence on direct appeal. People v. Dalcollo, 2024 IL App

(3d) 220153-U.

¶2 In April 2024, defendant petitioned for relief under the Post-Conviction Hearing Act (Act)

(725 ILCS 5/122-1 et seq. (West 2024)). He contended, among other things, his due process rights were violated when he faced trial on charges the State had previously dismissed but never formally

reinstated. He also claimed his right to effective assistance of appellate counsel was violated when

counsel failed to raise this issue in his direct appeal. The trial court summarily dismissed the

petition, finding it frivolous and patently without merit.

¶3 We conclude defendant’s due process claim is completely rebutted by the trial record and,

thus, defendant was not arguably prejudiced by his counsel’s failure to raise the issue in his direct

appeal. Accordingly, we affirm the trial court’s judgment.

¶4 I. BACKGROUND

¶5 A. Basic Facts of the Offenses

¶6 On the afternoon of March 22, 2019, defendant entered M.F.’s vehicle at gunpoint after

she left a store in Bloomingdale. Defendant demanded money and, when M.F. said she had none,

ordered her to drive to a bank in Glendale Heights. There, defendant directed M.F. to withdraw

$300 from an automatic teller machine. M.F. complied and gave defendant the money.

¶7 Defendant then ordered M.F. to drive to a casino in Elgin. When they arrived, defendant

directed M.F. to the top level of a parking garage and ordered her to park between two vehicles.

He then ordered her into the back seat, pulled down her pants to her ankles, and—while holding

the gun in her back—attempted to penetrate her anus with his penis before penetrating her vagina

with his penis. Traces of suspected semen, later determined to contain defendant’s DNA, were

recovered from M.F.’s vagina and anus and the outside of her car’s center console.

¶8 Defendant then ordered M.F. to drive to a train station. First, however, he directed her to

stop at a convenience store. Defendant took M.F.’s keys, wallet, and phone, and ordered her into

the store with him. Defendant purchased chewing tobacco. They left, and defendant ordered M.F.

to drive him to the train station, where he called a cab using M.F.’s phone. While they were

2 waiting, defendant spat his chewing tobacco into a shopping bag in the vehicle. Traces of saliva,

later determined to contain defendant’s DNA, were recovered from the bag.

¶9 After about 10 minutes, the cab picked up defendant and drove him to Chicago. Defendant

was arrested the next day in Chicago. He was carrying the gun he used to attack M.F. inside a bag.

M.F. identified defendant in a photographic array. Defendant admitted to police that he committed

much of this conduct but told them the sex was consensual.

¶ 10 B. The Charges

¶ 11 In April 2019, a grand jury returned a 14-count indictment against defendant. The charges

included eight counts of ACSA (counts I, IV, V, VI, VII, VIII, IX, X), aggravated kidnapping

(count II), armed robbery (count III), unlawful restraint (720 ILCS 5/10-3 (West 2018)) (count

XI), aggravated unlawful restraint (id. § 10-3.1) (count XII), and two counts of unlawful use of a

weapon by a felon (counts XIII and XIV). Four counts of ACSA (counts I, V, VII, and IX) were

based on defendant’s penetration of M.F.’s vagina. Four counts of ACSA (counts IV, VI, VII, and

X) were based on his penetration of M.F.’s anus. 1 Two of the ACSA charges (counts I and IV)

were predicated on defendant’s use of a firearm during the offenses. The remaining ACSA charges

were predicated on the felonies of unlawful restraint (counts V and VI) and aggravated kidnapping

(counts VII and VIII) and on the fact that defendant acted in a manner that threatened or

endangered M.F.’s life (counts IX and X).

¶ 12 Because of a 15-year sentencing enhancement based on defendant’s use of a firearm (id.

§§ 10-2(a)(6), (b); 11-1.30(a)(8), (d)(1); 18-2(a)(2), (b)) and the mandatory consecutive nature of

certain offenses (730 ILCS 5/5-8-4(d) (West 2018)), defendant faced a minimum sentence of 63

1 The Criminal Code of 2012 defines sexual penetration as “any contact, however slight, between the sex organ *** of one person and *** the *** anus of another person.” 720 ILCS 5/11-0.1 (West 2018). 3 years’ imprisonment if convicted of all offenses. Absent the imposition of any permissive

consecutive sentences (see id. § 5-8-4(c)(1)), defendant faced a maximum of 135 years’

imprisonment.

¶ 13 Defendant initially pleaded not guilty to all 14 counts.

¶ 14 C. The Parties’ Partially Negotiated Plea Agreement

¶ 15 On September 30, 2020, the parties told the court they had reached a partially negotiated

plea agreement, and defendant tendered a signed written jury waiver. The State recited the terms.

Defendant agreed to plead guilty to one count of ACSA (count I) and armed robbery (count III).

In exchange, the State agreed to nolle prosequi, or dismiss, the remaining 12 counts of the

indictment (counts II and IV through XIV). 2 In addition, the parties agreed the sentences on the

two counts would be served consecutively and were both subject to ranges of 21 to 45 years based

on the firearm enhancement. The State, however, agreed to cap its sentencing recommendation at

30 years on the armed robbery conviction. Finally, the parties agreed the sentence on the ACSA

conviction would be served at 85% and the sentence on the armed robbery conviction would be

served at 50% (because of their agreement that no bodily harm occurred during the robbery (see

id. § 3-6-3(a)(2)(iii), (2.1)).

¶ 16 D. The Court Accepts Defendant’s Guilty Plea

¶ 17 After the State recited the parties’ agreement, the court addressed defendant personally and

admonished him in accordance with Illinois Supreme Court Rule 402(a) (eff. July 1, 2012). The

court found defendant’s plea was voluntary and there existed a factual basis for it. The court

accepted defendant’s plea, ordered a presentence investigation report, and continued the matter for

2 As we will explain below, a nolle prosequi, or nol-pros, is the functional equivalent of a voluntary nonsuit or dismissal in a civil case. People v. Daniels, 187 Ill. 2d 301, 312 (1999). 4 sentencing. The court entered a written order stating the terms of the parties’ plea agreement,

including that counts II and IV through XIV were nol-prossed in exchange for defendant’s guilty

plea on counts I and III.

¶ 18 E. Defendant Moves to Withdraw His Guilty Plea

¶ 19 In October 2020, before sentencing, defendant moved to withdraw his plea and vacate the

judgment. Among the relief defendant requested was to “set *** th[e] case for trial.” In addition,

defendant made written allegations of ineffective assistance of counsel that were incorporated into

the presentence investigation report. Thus, the court commenced an inquiry per People v. Krankel,

102 Ill. 2d 181 (1984), and after finding possible neglect, appointed new counsel for defendant.

¶ 20 F. Defendant Waives His Right to Counsel

¶ 21 On February 9, 2021, defendant told the court he wanted to proceed pro se. The court

continued the matter to the next day for defendant to “contemplate the consequences” of

proceeding pro se. It gave him a copy of Illinois Supreme Court Rule 401 (eff. July 1, 1984) and

confirmed he had a copy of the 14-count indictment.

¶ 22 The next day, defendant told the court he had read the rule and the indictment and still

wished to represent himself. The court did not admonish defendant in accordance with Rule 401

at that time. Instead, it continued the matter to February 18 to verify the sentencing ranges for each

of the 14 counts and to determine whether any sentences would run consecutively.

¶ 23 On February 18, 2021, the court gave the admonishments required by the rule. The court

handed defendant a copy of the indictment to follow along as it read each of the 14 counts to him.

The court explained the minimum and maximum penalties for each count and that convictions on

some of the counts would require consecutive sentences. Defendant interrupted the proceedings,

5 stating he did not understand why the court was admonishing him on all 14 counts when he had

already pleaded guilty to 2 counts. The court told defendant,

“[I]n order for the Court to make its determination that your waiver [of counsel] is knowing,

intelligent and voluntary, I intend to read each one of these counts because the Court cannot

predict what direction potentially the case will go. And I want to make sure you are well

aware. There is a motion to withdraw your guilty plea on file. It’s been entered and

continued for a period of time. And because that is out there, I want to make sure that you

are understanding of all of the range of penalties for each of the counts.”

¶ 24 After the court read each of the charges and explained the possible penalties, defendant

persisted in his request to proceed pro se. The court addressed defendant personally and accepted

his waiver of counsel. The court then confirmed with defendant that he wished to proceed on his

motion to withdraw his guilty plea.

¶ 25 G. The Court Grants Defendant’s Motion to Withdraw His Guilty Plea

¶ 26 In March 2021, defendant—now representing himself—amended and supplemented his

motion to withdraw his plea and vacate the judgment. He requested an order “allowing the

defendant to withdraw his plea of guilty previously entered and vacate judgment and to set this

case for trial.” 3

¶ 27 Defendant also moved to dismiss for lack of jurisdiction and based on alleged due process

and speedy-trial violations. In his motions, defendant acknowledged he faced 14 counts in the

indictment—even going so far as to list them out—and stated he was seeking dismissal of the “14-

count indictment.” In April 2021, the court denied defendant’s motions to dismiss.

3 Defendant capitalized, bracketed, and placed quotation marks around words throughout his many pro se filings in this matter. It is not clear whether he was using these to emphasize certain text or for some other purpose. We have removed them to aid readability. 6 ¶ 28 In May 2021, the court granted defendant’s amended motion to withdraw the plea after a

two-day evidentiary hearing. The court stated it was “vacating the judgment against [defendant].”

The State did not ask the court to reinstate the 12 charges that had been nol-prossed per the plea

agreement, and the court did not explicitly address the issue. The court asked defendant whether

he wished to set the matter for trial. Defendant responded affirmatively. The court continued the

matter by agreement to July 13, 2021, for trial.

¶ 29 H. Defendant’s Motions to Dismiss and for Substitution of Judge

¶ 30 In May and June 2021, defendant filed several motions seeking, among other things,

dismissal and a substitution of judge. In one motion seeking dismissal, defendant asserted that

(1) the State’s nol-pros of the 12 counts pursuant to the plea acted as an acquittal and (2) jeopardy

attached on all charges when the trial court accepted his guilty plea. According to defendant, when

the court vacated his guilty plea, he was “put twice in jeopardy of all charges again.” Defendant

contended he could not be “retried” on “any of the charges” brought in the 14-count indictment.

In another motion seeking dismissal, defendant stated the court had “not only abused [its]

discretion but conspired with the State to re-open all indictment and charges against the

Defendant” even though he had pleaded guilty to two charges. In his motion seeking substitution

of judge, defendant asserted that on February 18, 2021, the court “re-indicted or rather re-re-

admonished the defendant of all 14 counts when the defendant only plead[ed] guilty to [2 counts].”

¶ 31 The State did not file a written response to defendant’s motions.

¶ 32 On June 11, 2021, the court heard defendant’s motions. During argument on one of his

motions, defendant complained about the Krankel procedure that was employed earlier in the case.

The State responded, “Judge, we’re way past the point of a Krankel hearing. The defendant has

7 been given—granted his motion to withdraw his guilty plea. The trial is set for a month from now

on all counts.” In ruling, the court stated,

“The issue with regard to a Krankel hearing is now moot, and no longer an issue, because

the Court granted the defendant’s motion to withdraw the guilty plea, so that means you

started over. There was an indictment on all of the original counts. Those counts were

reinstated. That was stated to you during your admonishments during the course of the

plea. Now we’re in a position that there is a plea of not guilty on all of those counts, and

based on that, and we’re in a posture to proceed toward a trial, that was at the defendant’s

request to move to withdraw his guilty plea, so *** the Court denies the defendant’s motion

to dismiss for violation of due process.”

Defendant told the court it did not admonish him about the consequences of withdrawing his plea

and that the court did not allow him to plead anew when it vacated his plea. The court responded

that it had admonished defendant at the time of his guilty plea that the nol-prossed counts would

be reinstated if his motion to withdraw his plea was granted.

¶ 33 The court also denied defendant’s double jeopardy motion, giving the same reason: when

defendant withdrew his guilty plea, the case “started over” and at that time all 14 counts were set

for trial.

¶ 34 In June and July 2021, defendant filed more motions to dismiss. In one motion, defendant

sought dismissal of the eight ACSA counts (count I and counts IV through X), arguing the alleged

sexual acts did not occur in Du Page County. In another motion, defendant acknowledged all 14

counts were pending against him and sought dismissal of all counts. Defendant withdrew these

motions before the court ruled on them.

¶ 35 I. The Parties’ Motions In Limine

8 ¶ 36 In August 2021, the parties filed and litigated various motions in limine. In several of its

motions, the State noted defendant had been charged with 14 offenses, listing each charge of the

indictment with reference to the applicable statutes. In one of its motions, the State sought an order,

per Illinois Rule of Evidence 410 (eff. Oct. 15, 2015), barring defendant “from introducing

evidence of his September 30, 2020 plea ***, and the plea’s subsequent withdrawal on May 4,

2021 and reinstatement of the counts previously nolle prosequi’ed per plea.” In another motion,

the State sought permission to admit evidence of defendant’s prior felony conviction and parole

status for the purpose of proving unlawful use of a weapon by a felon (counts XIII and XIV).

¶ 37 On November 22, 2021, the State placed the matter on the court’s call to address various

matters. During the hearing, the State tendered its proposed jury instructions, which included

definitional and issues instructions for each of the indictment’s 14 counts. The court asked the

State whether it was intending to proceed on all 14 counts. The State told the court that it was. The

court later asked defendant, “[D]o you acknowledge that the State has indicated that they’re

proceeding on all counts?” Defendant responded, “I understand.”

¶ 38 J. The Jury Convicts Defendant

¶ 39 Immediately before trial, the State dismissed two counts of ACSA (counts V and VI) and

the counts alleging unlawful restraint and aggravated unlawful restraint (counts XI and XII). The

State proceeded to trial on the remaining six counts of ACSA, one count of armed robbery, one

count of aggravated kidnapping, and two counts of unlawful use of weapon by a felon. The

evidence was consistent with that set forth above (supra ¶¶ 6-9). The jury convicted defendant of

all 10 counts.

¶ 40 K. Defendant’s Posttrial Motions

9 ¶ 41 Defendant filed several posttrial motions. Among his claims was that the trial court had

erroneously reinstated the charges that were nol-prossed pursuant to the parties’ plea agreement.

At the hearing on defendant’s motions, defendant acknowledged the State was allowed, upon the

withdrawal of his plea, to ask the court to vacate the nol-prosses and reinstate the charges.

Defendant asserted the State had never done so, meaning he had been convicted of crimes he was

“not legally even charged with.” Defendant contended he was “unfairly forced to defend himself

against” nonpending charges, which violated his due process rights. The court denied defendant’s

posttrial motions.

¶ 42 L. Sentencing

¶ 43 At the sentencing hearing, defendant objected to the proceedings on this same basis. In

doing so, he addressed the Rule 401 admonishments he received on February 18, 2021. He noted,

on that date, the court told him it did not know what “direction” the case was “going to go.”

According to defendant, this did not “apprise [him] of the fact that the State was seeking to admit

the nolle processed [sic] charges.” The court proceeded over defendant’s objection and sentenced

him to an aggregate prison term of 101 years.

¶ 44 M. Defendant’s Postsentencing Motion

¶ 45 Defendant moved to reconsider his sentence, again raising the due process claim and the

purportedly defective admonishment the court gave defendant in February 2021. Defendant

contended the purported procedural error made his sentence on the affected counts improper.

¶ 46 The court denied defendant’s motion. The court accepted defendant’s premise that the

charges had not been formally reinstated. It concluded, however, that the record showed defendant

was “on notice” the State “was proceeding on every single count that had been nolle prossed.” The

court pointed to defendant’s numerous motions to dismiss that acknowledged the pendency of

10 those charges notwithstanding their earlier nol-pros. The court concluded defendant had not shown

he was unfairly surprised or prejudiced in preparing a defense.

¶ 47 N. Defendant’s Direct Appeal

¶ 48 Defendant filed a direct appeal, and counsel was appointed to represent him. Defendant

raised two challenges to his sentence. We rejected them both and affirmed. Dalcollo, 2024 IL App

(3d) 220153-U, ¶¶ 2, 24.

¶ 49 O. The Trial Court Summarily Dismisses Defendant’s Postconviction Petition

¶ 50 In April 2024, defendant petitioned for relief under the Act. He claimed his right to due

process was violated when the State never formally asked the court to reinstate the nol-prossed

charges yet proceeded to trial and obtained convictions on some of those charges. He also asserted

his counsel on direct appeal provided ineffective assistance when counsel failed to raise the due

process claim.

¶ 51 The trial court dismissed defendant’s petition in a written order, finding it was frivolous

and patently without merit. This appeal followed.

¶ 52 II. ANALYSIS

¶ 53 Defendant contends his postconviction petition established an arguable claim of ineffective

assistance of appellate counsel. Specifically, defendant argues counsel should have raised a due

process claim based on the State’s failure to secure a new charging instrument or ask the court to

reinstate the previously nol-prossed charges. Had counsel raised the claim, defendant concludes,

it is at least arguable that this court would have granted him relief.

¶ 54 A. Standard of Review

¶ 55 The Act sets forth a procedure under which a criminal defendant may assert his conviction

resulted from a substantial denial of his rights under the United States Constitution, the Illinois

11 Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). Proceedings under the Act consist

of three stages and are initiated by filing a petition. Id. At the first stage, the trial court must

independently evaluate the petition (725 ILCS 5/122-2.1(a) (West 2024)), liberally construing its

allegations to allow borderline claims to proceed (People v. Thomas, 2014 IL App (2d) 121001,

¶ 48). If the court determines the petition is frivolous and patently without merit, it must dismiss

the petition in a written order. 725 ILCS 5/122-2.1(a)(2) (West 2024); People v. Edwards, 197 Ill.

2d 239, 244 (2001). If, on the other hand, the court determines the petition states the “gist” of a

constitutional violation (see People v. Williams, 2024 IL 127304, ¶ 15), the court must docket the

petition for second-stage proceedings and appoint counsel for the defendant (725 ILCS 5/122-

2.1(b), 122-4 to 122-6 (West 2024)).

¶ 56 A petition is frivolous and patently without merit when it has no arguable basis in law or

fact. Williams, 2024 IL 127304, ¶ 17. A petition has no arguable basis when it is “completely

contradicted by the record.” Hodges, 234 Ill. 2d at 16. We review de novo the summary dismissal

of a postconviction petition. Id. at 9.

¶ 57 B. Ineffective Assistance of Appellate Counsel

¶ 58 Defendant claimed in his petition that appellate counsel was ineffective for failing to raise

his due process claim. See People v. Simms, 192 Ill. 2d 348, 361 (2000) (recognizing a defendant

has a constitutional right to the effective assistance of counsel on direct appeal). To survive

summary dismissal, defendant’s petition had to establish it was at least arguable (1) a reasonable

attorney would have raised the due process claim and (2) defendant was prejudiced by his

counsel’s failure raise the claim. People v. Dalgado, 2022 IL App (2d) 210008, ¶ 26; see Strickland

v. Washington, 466 U.S. 668, 687 (1984). The failure to establish either proposition is fatal to the

claim. People v. Jackson, 2020 IL 124112, ¶ 90.

12 ¶ 59 “Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not

incompetence of counsel to refrain from raising issues which, in [counsel’s] judgment, are without

merit, unless counsel’s appraisal of the merits is patently wrong.” Simms, 192 Ill. 2d at 362. A

defendant does not suffer prejudice when appellate counsel declines to raise a nonmeritorious

issue. Id. Thus, when assessing an ineffective assistance claim in the appellate context, this court

must examine the underlying issue’s merits. Id.

¶ 60 Before moving to the merits, we make an important observation that informs our review of

the merits—defendant fully preserved this issue for review. Accordingly, if counsel had raised the

claim, it would have been the State’s burden to establish the purported due process violation was

harmless beyond a reasonable doubt. See People v. McClanahan, 191 Ill. 2d 127, 139 (2000). With

this in mind, we turn to the merits.

¶ 61 C. Procedural Due Process

¶ 62 Defendant’s underlying claim is that his right to due process was violated when the State

proceeded to trial and obtained convictions on the previously nol-prossed charges without filing a

new charging instrument or asking the court to vacate the nol-prosses and reinstate the charges.

Because defendant is challenging the procedures employed to deprive his liberty, his claim is one

of procedural due process. See People v. Cardona, 2013 IL 114076, ¶ 17.

¶ 63 1. Fundamental Right to Notice of Charges

¶ 64 “A defendant in a criminal prosecution has a fundamental due process right to notice of the

charges brought against him.” People v. Kolton, 219 Ill. 2d 353, 359 (2006). Thus, a defendant

generally may not be convicted of an offense that he has not been charged with committing. Id.

This requirement ensures, among other things, a defendant’s ability to prepare a defense. People

13 v. Meyers, 158 Ill. 2d 46, 51 (1994); see Cardona, 2013 IL 114076, ¶ 15 (recognizing one

“fundamental requirement[ ]” of due process is the opportunity to present objections).

¶ 65 2. The Effect of a Nolle Prosequi

¶ 66 Defendant contends the nol-pros of the 12 charges pursuant to defendant’s guilty plea

terminated the proceedings with respect to those charges. To recommence the prosecution on any

of those charges, he asserts, the State was required to either bring a new and separate proceeding

via a new charging instrument or ask the court to vacate the nol-prosses and reinstate the charges.

Because the State took neither action—a fact the State concedes—defendant argues the charges

were never reinstated. And because the charges were not reinstated, he continues, he faced trial on

charges that were not legally in existence, which violated his due process right to notice of the

charges.

¶ 67 In exchange for defendant’s guilty plea on counts I and III, the State nol-prossed the

remaining 12 counts of the indictment. A nol-pros “is the formal entry of record by the State which

denotes its unwillingness to prosecute a charge.” People v. Hughes, 2012 IL 112817, ¶ 22. It

functions like a voluntary dismissal or nonsuit in civil practice. People v. Gill, 379 Ill. App. 3d

1000, 1003-04 (2008) (citing People v. Watson, 394 Ill. 177, 179 (1946)). A charge that has been

nol-prossed is no longer “legally in existence” (People v. Stafford, 325 Ill. App. 3d 1069, 1074

(2001)) because the nol-pros terminates the proceedings with respect to the affected charge

(Hughes, 2012 IL 112817, ¶ 23). That said, a nol-pros is not an acquittal (id.), though it may have

the same effect if it is entered after jeopardy has attached on the charge (People v. Ventsias, 2014

IL App (3d) 130275, ¶ 12). If the State nol-prosses a charge before jeopardy attaches, the State

generally has the right to recommence prosecution subject only to statutory, constitutional, and

equitable considerations. Hughes, 2012 IL 112817, ¶ 23. The parties do not dispute the State nol-

14 prossed the charges before jeopardy attached to them and, therefore, had the right to recommence

prosecution on the nol-prossed charges when defendant withdrew his plea and the court vacated

the judgment against him.

¶ 68 3. Recommencing Prosecution on Nol-Prossed Charges

¶ 69 In the past, it was generally understood that the State could recommence prosecution on a

nol-prossed charge only if it “institut[ed] *** a new and separate proceeding” (Ferguson v. City

of Chicago, 213 Ill. 2d 94, 101 (2004)) or “file[d] a new charging instrument” (People v. Woolsey,

139 Ill. 2d 157, 168 (1990)). See Stafford, 325 Ill. App. 3d at 1073-74 (applying Woolsey). In

Hughes, however, our supreme court clarified that a new and separate proceeding or a new

charging instrument is not required. Hughes, 2012 IL 112817, ¶¶ 24-25. The court reaffirmed its

acceptance of an alternative procedure—the State may simply ask the court to vacate the nol-pros

and reinstate the charges. Id. ¶ 25 (citing Watson, 394 Ill. at 181).

¶ 70 According to defendant, prosecution on a nol-prossed charge may be recommenced only

through one of the two procedures identified in Hughes, both of which require the State to act.

Because the State does not challenge this point, we will accept for argument’s sake that

recommencing prosecution on a nol-prossed charge requires the State to act.

¶ 71 However, we are not convinced that Hughes or the other case on which defendant relies,

People v. Shinaul, 2017 IL 120162, prescribes such a rule. In Hughes, the supreme court was

simply asked to determine whether it was permissible for the State—as an alternative to

commencing a new proceeding—to recommence prosecution on a nol-prossed charge via a motion

to vacate the nol-pros and reinstate the charges. The court approved such a procedure, if it is “done

before jeopardy attaches, prior to a final judgment, and in the absence of any applicable

constitutional or statutory limitations which a defendant may raise.” Hughes, 2012 IL 112817,

15 ¶ 25. The court did not hold that these are the only two procedures by which a nol-pros may be

vacated.

¶ 72 Shinaul likewise did not so hold. The issue in Shinaul was whether the State’s request to

reinstate nol-prossed charges was barred by the statute of limitations (Shinaul, 2017 IL 120162,

¶ 15), not whether the State was restricted to the two procedures recognized in Hughes. In any

event, the court simply cited Hughes as recognizing two procedures by which the State can

recommence prosecution on nol-prossed charges. Id. ¶ 9 (citing Hughes, 2012 IL 112817, ¶¶ 24-

25).

¶ 73 Neither Hughes nor Shinaul prohibits the trial court from sua sponte vacating an order

granting a nol-pros. Such a rule would conflict with a trial court’s inherent authority to ensure the

correct result is reached and to vacate its own orders, an authority it has even absent an authorizing

statute or rule. See People v. Mink, 141 Ill. 2d 163, 171 (1990); Watson, 394 Ill. at 180-82; Holt v.

City of Chicago, 2022 IL App (1st) 220400, ¶ 9. We have doubts about the viability of a rule that

prohibits the trial court from exercising its inherent authority.

¶ 74 We believe this is especially true under the circumstances present here. The parties’ plea

agreement was generally governed by contract law. People v. Absher, 242 Ill. 2d 77, 87 (2011);

see People v. Evans, 174 Ill. 2d 320, 326-27 (1996) (noting application of contract law to plea

agreements “may require tempering in some instances” to account for constitutional concerns).

Defendant’s motion to withdraw essentially sought rescission of the plea agreement before the

court entered judgment on the plea. See People v. Vara, 2018 IL 121823, ¶ 14 (noting the final

judgment in a criminal case is the sentence). Because the court allowed defendant to withdraw his

plea, a complete disposition of defendant’s motion required the parties to be returned to their

preplea statuses (People v. Haley, 315 Ill. App. 3d 717, 720 (2000)), as there existed no

16 constitutional, statutory, or equitable bars to prevent it (Hughes, 2012 IL 112817, ¶ 23). See

Zahdan v. Frontline Business Enterprise Inc., 2024 IL App (1st) 221351, ¶¶ 39-40 (noting the

remedy of rescission in contract law essentially voids the contract and requires the parties to be

returned to the status quo ante the agreement). Defendant’s preplea status was that he faced trial

on a 14-count indictment, having pleaded not guilty.

¶ 75 D. Defendant’s Claim Is Completely Contradicted by the Record

¶ 76 Despite our doubts about the viability of defendant’s interpretation of Hughes and Shinaul,

we will assume for argument’s sake that only the State can recommence prosecution on nol-

prossed charges and it can do so only through one of the procedures identified in Hughes. Even

making this assumption, we find defendant’s due process claim lacks merit.

¶ 77 Distilled, defendant’s claim is that he was denied due process because he did not have

formal notice the State was proceeding on the previously nol-prossed charges. Viewed through

this frame, the trial court properly dismissed defendant’s petition as frivolous and patently without

merit. Indeed, the record flatly rebuts any claim defendant was unaware the State was proceeding

on the previously nol-prossed charges, which the State had the right to do upon withdrawal of

defendant’s guilty plea. Moreover, the record flatly rebuts any claim that the absence of formal

notice resulted in surprise, unfairness, or inadequate preparation. As such, it is not arguable

defendant was prejudiced by his direct-appeal counsel’s failure to raise the due process claim.

¶ 78 As noted, a criminal defendant has a fundamental due process right to notice of the charges

against him. Kolton, 219 Ill. 2d at 359. The purpose of giving such notice “is to afford the accused

protection against surprise, unfairness, and inadequate preparation.” Stafford, 325 Ill. App. 3d at

1074.

17 ¶ 79 Before defendant agreed to plead guilty, defendant faced trial on 14 felony counts that, by

their mandatory consecutive nature, carried an aggregate sentencing range of 63 to 135 years.

Defendant agreed to plead guilty to one count of ACSA and one count of armed robbery. In

exchange, the State agreed to nol-pros the remaining 12 counts and made sentencing concessions

on the armed robbery count, resulting in a sentencing range of 42 to 75 years. In September 2020,

the court accepted defendant’s plea and entered a written order memorializing both his convictions

and the State’s nol-pros of the remaining 12 counts. Before the court could impose a sentence,

defendant moved to withdraw the plea and vacate the judgment and asked that the “case be set for

trial.”

¶ 80 After a delay caused by defendant’s decision to waive counsel, the court heard and granted

defendant’s motion to withdraw his guilty plea, stating the “judgment against [defendant]” was

vacated. The “judgment” the court was referring to can be none other than the September 2020

order memorializing the parties’ plea agreement. That order consisted of two components—

findings of guilt on counts I and III pursuant to defendant’s guilty plea and the nol-pros of the

remaining counts. The court’s statement is best understood as vacating the September 2020 order

in its entirety, including the findings of guilt and the nol-prosses.

¶ 81 Immediately after granting defendant’s motion to withdraw, the court asked defendant

whether he wished to set the matter for trial. Defendant told the court that he did. Admittedly, the

court did not at that time inform defendant that all charges had been reinstated or specify that it

was asking whether defendant wanted to set trial on all of them. Nevertheless, just 10 days after

the court granted defendant’s motion to withdraw his plea, defendant filed motions to dismiss and

for substitution of judge. In the motions, defendant contended (1) when the court vacated his guilty

plea, he was “put twice in jeopardy of all charges again” and he could not be “retried” on “any of

18 the charges,” (2) the court had “not only abused [its] discretion but conspired with the State to re-

open all indictment and charges against the Defendant,” and (3) the court, on February 18, 2021,

“re-indicted or rather re-re-admonished the defendant of all 14 counts when the defendant only

plead guilty to [2 counts].” Defendant’s own admissions thus establish he knew he was again

facing all 14 counts of the indictment.

¶ 82 The June 2021 hearing and the parties’ subsequent litigation make defendant’s knowledge

of this fact even more clear. During the June 2021 hearing, the State told the court defendant’s

plea had been withdrawn and “trial [was] set for a month from now on all counts.” (Emphasis

added.) Moreover, in denying defendant’s motions, the court explained defendant had “started

over” and the nol-prossed counts “were reinstated” when defendant withdrew his plea. Thus, by

June 2021, the State expressed its intent to proceed on all counts and the court informed defendant

he was facing those counts again.

¶ 83 As the case approached trial, defendant filed two more motions to dismiss that he later

withdrew. In one, defendant requested dismissal of all eight ACSA counts, including the seven

that had been nol-prossed per the parties’ agreement. In the other, defendant acknowledged he was

facing trial on 14 counts and sought dismissal of all of them. 4 The parties filed various motions

in limine. In its motions, the State showed its intent to proceed on all 14 counts of the indictment.

The State’s motions listed each of the 14 counts, and in one motion, the State sought permission

to admit evidence relevant only to two counts that had been nol-prossed (the counts charging

unlawful use of a weapon by a felon). The State also sought an order barring the jury from hearing

evidence that defendant had pleaded guilty, the guilty plea had been vacated, and certain charges

4 The assertions in defendant’s motions are akin to evidentiary admissions and, despite their withdrawal, demonstrate defendant’s understanding the State was proceeding on all counts. See In re Marriage of O’Brien, 247 Ill. App. 3d 745, 749 (1993) (noting the allegations of a withdrawn or superseded pleading are evidentiary admissions). 19 had been nol-prossed and reinstated. Lastly, just two weeks before trial, defendant unequivocally

confirmed he understood the State was proceeding on the nol-prossed counts.

¶ 84 The record thus shows defendant was on notice he was facing all 14 counts of the

indictment for at least seven months before his December 2021 jury trial. We cannot say seven

months is an inadequate time to prepare a defense to the charges defendant was facing, especially

since defendant has never once identified how this purported due process violation unfairly

surprised him or hampered his defense. Our own review of the record shows no apparent prejudice

in this regard. Accordingly, we conclude defendant’s due process claim has no merit.

¶ 85 In reaching our conclusion, we note the primary case on which defendant relies, Stafford,

is inapposite. In Stafford, the defendant was charged with two counts of murder, five counts of

attempted murder, and five counts of aggravated discharge of a firearm after he allegedly shot at

five men, one of whom died. Stafford, 325 Ill. App. 3d at 1070. Before trial, in January 1996, the

State nol-prossed all but the two counts of murder. Id. The jury convicted the defendant, and he

appealed. Id. The appellate court reversed and remanded for a new trial, and on April 1, 1998, the

supreme court denied leave to appeal. Id.; see People v. Stafford, 293 Ill. App. 3d 1135 (1998)

(table) (unpublished order under Illinois Supreme Court Rule 23), pet. for leave to appeal denied,

177 Ill. 2d 583 (1998). Almost a year later, on March 23, 1999, the parties began selecting the jury

for the defendant’s retrial, and the State told the court it was proceeding on the two murder counts

and the five previously nol-prossed attempted murder charges. Stafford, 325 Ill. App. 3d at 1071.

The court allowed the State to do so. Id. The trial proceeded in accordance with this ruling until

the jury instructions conference, when the trial court switched course and decided not to give

instructions concerning the five nol-prossed attempted murder charges. Id. at 1071-72. The jury

found the defendant guilty of both counts of murder, and he appealed again. Id. at 1072.

20 ¶ 86 This court concluded the defendant had established a due process violation under the

circumstances. Id. at 1074-75. The court emphasized that until the day of jury selection, defendant

and his trial counsel (1) were unaware the State intended to proceed on the nol-prossed attempted

murder charges and (2) had no expectation the State would proceed on charges that had been nol-

prossed three years earlier and were never mentioned again. Id. at 1074. The defendant and his

counsel therefore had no opportunity to prepare a defense to those charges. Id. The court concluded

the defendant’s rights to due process and a fair trial were violated because of the unfair surprise

and his resultant inadequate opportunity to prepare a defense. Id.

¶ 87 The circumstances here are quite different from those in Stafford. We note first that the

nol-prosses in Stafford were not conditioned on the defendant’s guilty plea. Here, on the other

hand, the nol-prosses were conditioned on defendant’s guilty plea to counts I and III. See People

v. Smollett, 2024 IL 130431, ¶ 58 (recognizing a distinction between nol-prosses without

conditions and those conditioned on a defendant’s guilty plea). Thus, the contract principles and

the concern of returning the parties to their preplea status that are at play here were not present in

Stafford. The more crucial distinction, however, is that the record here shows defendant knew the

State was proceeding on the nol-prossed charges for seven months before his trial and had an

adequate opportunity to prepare a defense.

¶ 88 Defendant relies on two other cases, People v. Williams, 2016 IL App (1st) 133812, and

People v. Monroy-Martinez, 2024 IL App (1st) 221684-U, to support his due process claim. We

find his reliance on both cases unavailing. Williams involved a rather unique procedural scenario

not present here. And, in any event, the State did not contest the defendant’s entitlement to relief,

meaning the defendant’s due process argument was not tested by adversarial review. See Williams,

2016 IL App (1st) 133812, ¶ 26.

21 ¶ 89 Monroy-Martinez is likewise distinguishable in that the State agreed the defendant was

entitled to relief, absolving the defendant’s claim of adversarial review. Monroy-Martinez, 2024

IL App (1st) 221684-U, ¶ 31. Further, the nol-prosses in that case were not conditioned on the

defendant’s guilty plea. See id. ¶ 6.

¶ 90 Before concluding, we briefly address one final point. Defendant takes issue with the

court’s failure to admonish him that the State could reinstate the nol-prossed charges if he

withdrew his plea. Defendant’s argument conflates the true notice issue in this case—whether he

was aware he was again facing trial on the nol-prossed charges—with another notice issue—

whether he had notice that the charges might be reinstated in the event he withdrew his guilty plea.

¶ 91 To be clear, the trial court never advised defendant that the previously nol-prossed charges

could be reinstated if it allowed him to withdraw his plea. The court actually stated it could not

“predict what direction potentially the case will go” and, because he had moved to withdraw his

plea, it “want[ed] to make sure” that defendant understood “all of the range[s] of penalties for each

of the counts.” While this certainly implied the nol-prossed charges could be reinstated if the plea

was vacated, the court did not expressly advise defendant of that potential consequence.

¶ 92 Of course, we do not fault the trial court for not admonishing defendant that the nol-prossed

charges could be reinstated if the plea was withdrawn. Rule 605(c)(4)—which requires the court

to give that admonishment—is triggered only when a sentence is imposed upon a negotiated guilty

plea. See Ill. S. Ct. R. 605(c) (eff. Oct. 1, 2001) (requiring certain admonishments to be given “at

the time of imposing sentence” on a negotiated guilty plea). Because no sentence was ever imposed

in this case, there was no need to give this admonishment. See id. And regardless, the record

reflects defendant understood, based on the court’s February 2021 admonishment, that he could

face a reinstatement of all 14 counts if he withdrew his plea. In March 2021, defendant moved to

22 dismiss, acknowledging he was facing 14 counts and asking the court to dismiss the “14-count

indictment.” Defendant would not request to dismiss charges already nol-prossed unless he

understood they could later be reinstated.

¶ 93 In any event, the issue raised by defendant’s due process claim is whether defendant had

notice of the charges on which the State was proceeding to trial such that he had the opportunity

to prepare and present a defense. See Meyers, 158 Ill. 2d at 51; Stafford, 325 Ill. App. 3d at 1074.

Even if the nol-prossed charges were not pending on paper, the record establishes beyond a

reasonable doubt defendant had actual notice the State was proceeding on those charges and was

not prejudiced in preparing his defense. See McClanahan, 191 Ill. 2d at 139. Defendant’s due

process claim therefore has no merit. However, we caution the State that it would be wise to always

avail itself of one of the procedures identified Hughes when it wishes to recommence prosecution

on charges that were nol-prossed in exchange for a later-withdrawn guilty plea.

¶ 94 Because defendant’s due process claim has no merit, it is not arguable that defendant was

prejudiced by his appellate attorney’s failure to raise the claim on direct appeal. See Simms, 192

Ill. 2d at 362. Accordingly, the trial court properly dismissed defendant’s petition as frivolous and

patently without merit.

¶ 95 III. CONCLUSION

¶ 96 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 97 Affirmed.

23 People v. Dalcollo, 2026 IL App (3d) 240437

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 19-CF- 698; the Hon. Ann Celine O’Hallaren Walsh, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Gilbert C. Lenz, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne for Hoffman, Assistant State’s Attorney, of counsel), for the People. Appellee: