People v. Giles

2020 IL App (1st) 190702-U

Opinion

2020 IL App (1st) 190702-U

THIRD DIVISION December 23, 2020

No. 1-19-0702

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

) PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) v. ) 04 CR 9383 ) BRUCE GILES, ) Honorable ) Leroy Martin, Defendant-Appellee. ) Judge Presiding _____________________________________________________________________________

JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

¶1 Held: Reversed and remanded. Petitioner was not entitled to certificate of innocence. Though petitioner was improperly convicted of one offense, stemming from multi-count indictment, that led to his incarceration, he was properly convicted of another, and statute governing COIs does not authorize COI unless petitioner was innocent of all offenses leading to incarceration.

¶2 Petitioner pleaded guilty to two offenses stemming from a multi-count indictment. One of

those offenses, aggravated unlawful use of a weapon (AUUW), was based on a statute later

found unconstitutional in People v. Aguilar, 2013 IL 112116, ¶ 22. After the circuit court vacated

that conviction, petitioner sought a Certificated of Innocence (COI) under section 2-702 of the No. 1-19-0435

Illinois Code of Civil Procedure, 735 ILCS 5/2-702 (West 2018). Although the State objected,

the circuit court granted a COI as to the AUUW count only.

¶3 BACKGROUND

¶4 I. Procedural Background on Appeal

¶5 This appeal was originally consolidated, after an agreed motion, with another appeal

styled People v. Moore, Appeal No. 1-19-0435. As here, Moore involved a petitioner who was

improperly convicted of one offense but properly convicted of another, both of which offenses

led to his incarceration. See People v. Moore, 2020 IL App (1st) 190435, ¶¶ 6-9. As here, in

Moore, the circuit judge (the same judge as here) granted petitioner a COI as to the invalid

conviction only. See id. ¶ 9. Because the petitioners in this appeal and in Moore were represented

by the same counsel, petitioners in each of these appeals (with the State’s agreement) sought to

consolidate the appeals to consider the lone question: Does section 2-702 authorize the grant of a

“partial” COI—a COI for one offense, even if the petitioner was properly incarcerated for

another offense as well?

¶6 A judge of this court granted the motion to consolidate. On reconsideration, though the

appeals share the same legal question, we find it more appropriate to file separate dispositions for

each of these petitioners. We have thus vacated our consolidation order and will simultaneously

release our opinion in Moore and the Order in this appeal.

¶7 For the reasons set forth below and in our decision in Moore, we hold that section 2-702

does not authorize a “partial” COI. We thus reverse the trial court’s judgment and remand.

¶8 II. Underlying Background

¶9 In 2004, petitioner was indicted for two counts of unlawful use of a weapon and two

counts of unlawful restraint. The indictment alleged that petitioner had possessed a handgun

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when he unlawfully restrained a child under the age of 12. A year later, petitioner pleaded guilty

to one count of AUUW and one count of unlawful restraint. The court sentenced him to 6 and 3

years, respectively.

¶ 10 In 2013, our Supreme Court decided Aguilar, 2013 IL 112116, ¶ 22, which invalidated a

portion of the statute prohibiting the unlawful use of a weapon. Based on Aguilar, petitioner filed

a pro se petition to have his 2004 AUUW conviction vacated. Although the circuit court initially

refused, this court granted a motion for summary remand and ordered the circuit court to vacate

the conviction.

¶ 11 Because the AUUW conviction had been vacated, petitioner sought a COI as to that

count. The State objected, arguing that the statute did not authorize a COI unless a defendant was

innocent of all charges that led to petitioner’s incarceration. The circuit court disagreed and

granted petitioner a COI on the AUUW count. The State timely appealed.

¶ 12 ANALYSIS

¶ 13 In short, the issue is whether section 2-702 allows a “partial” COI. Moore, 2020 IL App

(1st) 190435, ¶ 18. Petitioner argues he is entitled to a COI on the AUUW conviction. The State

responds that a COI is only proper if the petitioner is innocent of all offenses for which he was

incarcerated.

¶ 14 As explained fully in Moore, 2020 IL App 190435, ¶ 36, the plain language of the statute

“can lead to only one conclusion: Section 2-702 does not authorize a petition for COI when, as

here, the petitioner was properly incarcerated based on at least one conviction, even though he or

she was improperly incarcerated based on another.” And like Moore, there is no question that

petitioner here remained lawfully convicted of at least one crime—unlawful restraint. As such,

he is not entitled to a COI on the now-vacated AUUW conviction.

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¶ 15 In Moore, we identified a problematic aspect of section 2-702 when, as there and as here,

the invalid conviction led to a longer sentence than did the invalid conviction. See id. ¶¶ 41-42.

Here, petitioner received six years for the invalid AUUW conviction and three for the valid

conviction for unlawful restraint. He thus spent more time in prison, due to the invalid

conviction, than he would have for the valid conviction alone.

¶ 16 As we noted in Moore, that makes no difference under section 2-702, which

unfortunately makes no distinctions for situations like this one. See id. ¶ 43. But it nevertheless

strikes us as unfair. It is not clear to us in the record how many days, weeks, months, or even

years of additional time petitioner spent in prison based on his invalid conviction alone, but even

one day is too many.

¶ 17 We note here for petitioner what we noted for the petitioner in Moore: while we cannot

say with certainty, as the questions are not before us and have not been briefed, petitioner may

have other means for obtaining relief in the court of claims and/or obtaining an expungement of

the invalid conviction from his record, even without a COI. See id. ¶¶ 44-45; 20 ILCS

2630/5.2(b)(6) (West 2018).

¶ 18 Because section 2-702 does not provide an avenue for such relief, we reverse the trial

court’s judgment. But we remand, as we did in Moore, in the event petitioner may seek any

additional remedy or relief as discussed above. See Moore, 2020 IL App 190435, ¶ 47.

¶ 19 CONCLUSION

¶ 20 The judgment of the circuit court is reversed, and the cause is remanded for any

additional proceedings.

¶ 21 Reversed and remanded.

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