NOTICE 2025 IL App (4th) 241264-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-1264 May 15, 2025 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Respondent-Appellee, ) Circuit Court of v. ) Peoria County DURAN K. GLADNEY, ) No. 22MX257 Petitioner-Appellant. ) ) Honorable ) Paul P. Gilfillan, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Grischow and Cavanagh concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed an order denying a petition for a certificate of innocence. The trial court reasonably found that petitioner failed to prove his innocence by a preponderance of the evidence. The trial court also acted within its discretion by questioning petitioner during the hearing on the petition.
¶2 In February 2019, a grand jury indicted petitioner, Duran K. Gladney, on two counts
of unlawful possession with intent to deliver a controlled substance (heroin and cocaine) (720
ILCS 570/401(a)(1)(A), (a)(2)(A) (West 2018)), two counts of unlawful possession of a controlled
substance (heroin and cocaine) (720 ILCS 570/402(a)(1)(A), (a)(2)(A) (West 2018)), and one
count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2018)). A jury
found petitioner guilty of the weapons charge and guilty of possessing both heroin and cocaine
with the intent to deliver. The trial court, Judge Kevin Lyons presiding, sentenced petitioner to a
total of 22 years in prison. On direct appeal, the Third District reversed the convictions, holding that the State failed to prove beyond a reasonable doubt that petitioner constructively possessed
the contraband. People v. Gladney, 2022 IL App (3d) 200066-U, ¶ 2. Petitioner subsequently filed
a petition seeking a certificate of innocence pursuant to section 2-702 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-702 (West 2022)). The court, Judge Paul Gilfillan presiding,
denied this petition. Petitioner appeals, and we affirm.
¶3 I. BACKGROUND
¶4 A. The Trial Evidence
¶5 We will restate and incorporate the summary of the trial evidence provided in the
decision in petitioner’s direct appeal with slight modifications to provide clarity for the reader. See
Gladney, 2022 IL App (3d) 200066-U, ¶¶ 9-20.
¶6 Officer David Logan testified that officers executed a search warrant for a single-
family home located at 2121 West Kellogg Avenue in Peoria, Illinois on the afternoon of January
26, 2019. During the course of the search, they found several small plastic baggies, multiple foil
packets, and a handgun underneath a dresser in one of the bedrooms. The baggies and packets
contained a light brown substance, believed to be heroin, and a white chunky substance, believed
to be cocaine. Logan testified that while officers searched the house, the current tenant, Kimberly
Harper, arrived in her vehicle. Officers searched her vehicle and found what appeared to be heroin
in her purse.
¶7 Officer Matthew Lane testified that no one answered the door when he and other
officers knocked at the residence to execute the search warrant. Officers then “breached” the door.
Inside the residence, they found foil packets containing suspected heroin, multiple plastic baggies
containing a white substance, and a Glock semiautomatic pistol under a bedroom dresser. Officer
Lane testified that the video of the search of the bedroom showed that the baggies and handgun
-2- were revealed after officers removed the bottom drawer from a tall tan dresser just inside the
bedroom door. A blue duffel bag, containing petitioner’s social security card, was on the floor next
to the dresser. Officers also observed several articles of men’s clothing, a heroin “user’s kit,” and
a digital scale in the bedroom. As the search continued, officers found a bag of unused plastic
baggies, a box of partially torn aluminum foil, and a scale in the kitchen.
¶8 Peoria Police Officer Jacob Beck testified that he reported to the scene and collected
all the items recovered from 2121 West Kellogg. He explained that the bag containing the baggies
and foil packages was found under the tall dresser. All the drawers had to be removed before the
bag of drugs could be revealed. Officer Beck also testified that petitioner’s social security card
was found inside the blue duffel bag.
¶9 Officer Nick Mason testified that, while officers searched the residence in question,
he arrested petitioner at another location. He found $476 and a key on petitioner’s person. Officer
Mason later used the key to successfully unlock the door at 2121 West Kellogg.
¶ 10 Harper testified that she used heroin for about 15 years and was going to treatment
for her addiction. She had known petitioner for quite a while because she bought heroin from him.
She arrived home as the search warrant was being executed, and officers arrested her after finding
heroin in her purse. She was cooperating with investigators in exchange for a deal with the State’s
Attorney’s office in the hopes of regaining custody of her children.
¶ 11 Harper testified that a few weeks before officers searched her house, she ran into
petitioner at the store, and they exchanged numbers. Petitioner contacted her shortly after that and
said he was having issues with his family. He asked if he could stay at her house “once in a while.”
She said that he could and gave him a key. Harper testified that petitioner “didn’t sleep there every
night or anything, just a few times.”
-3- ¶ 12 The day before officers executed the search warrant, petitioner returned to Harper’s
house following a trip to Kentucky. He brought a blue duffel bag with his clothes in it and put it
in Harper’s bedroom. Harper testified that she had previously offered petitioner the use of a dresser
and the bedroom closet. She explained that there were two dressers in her bedroom, a tall tan one
and a black one, and she kept her clothes in both of them. She told petitioner that he could use the
tall dresser.
¶ 13 The night before the search warrant was executed, petitioner showed up at Harper’s
house with several friends. Harper purchased $20 worth of heroin from petitioner. He showered
and listened to music with his friends, and then they all left. Petitioner did not spend the night at
Harper’s house that evening. He returned the next morning, January 26, 2019, with his aunt. Harper
had a short conversation with petitioner in the living room, and then he left. Petitioner did not go
into her bedroom.
¶ 14 On cross-examination, Harper testified that she still kept personal clothing items in
the tall dresser that she offered to petitioner. When the officers searched the dresser, the drawers
contained her lingerie, swimsuits, and pajamas. Harper denied ownership of the gun that was found
under the dresser. She also stated that she had never seen petitioner with a gun.
¶ 15 Pamela Passolano, a forensic scientist with the Illinois State Police, testified that
she tested the substances found in the foil packages and the small plastic baggies. There was a total
of 50 small foil packets inside 5 larger foil packages. The substance in those packages tested
positive for heroin, and the chunky white substance found in the plastic baggies tested positive for
cocaine. Officer John Foster, an officer with the Peoria crime scene unit, testified that he swabbed
the handgun and conducted fingerprint testing on the packages of heroin and cocaine but found no
identifiable prints.
-4- ¶ 16 At the conclusion of the witnesses’ testimony, the parties stipulated that petitioner
had a prior felony conviction.
¶ 17 The jury found petitioner guilty of unlawful possession with intent to deliver heroin,
unlawful possession with intent to deliver cocaine, and unlawful possession of a weapon by a
felon. Following a sentencing hearing, the trial court sentenced petitioner to concurrent terms of
imprisonment of 22 years, 8 years, and 8 years, respectively.
¶ 18 B. Petitioner’s Direct Appeal
¶ 19 On direct appeal, after reciting the law concerning constructive possession, the
appellate court reversed petitioner’s convictions for lack of sufficient evidence, reasoning as
follows:
“Here, the evidence supporting [petitioner’s] constructive possession of the
drugs and the handgun is minimal. It is undisputed that [petitioner] was not in the
residence at the time the evidence of criminal activity was discovered. [Petitioner’s]
absence meant [petitioner] did not have immediate access to the area within the
residence where the controlled substance and firearms were seized. Moreover, the
evidence did not establish that [petitioner] inhabited the location where the
contraband was found. No bills or mail in [petitioner’s] name were found at the
residence. Although [petitioner] possessed a key to the house, a conviction based
solely on the possession of a key cannot stand. See [People v.] Fernandez, 2016 IL
App (1st) 141667, ¶ 21. Under these facts, a reasonable person would not be able
to conclude that [petitioner] had exclusive control over the residence such that
[petitioner] could be found to have knowingly possessed the contents of the
residence.
-5- Moreover, the State cannot meet its burden of proof regarding constructive
possession by introducing circumstantial evidence tying [petitioner] to the
controlled substances or the firearm. Cf. [People v. Minniweather, 301 Ill. App. 3d
574, 578 (1998)] (evidence that defendant hid from police, drugs were found within
feet of where defendant was hiding, and no one else was seen in the area provided
strong circumstantial evidence sufficient to prove constructive possession). The
investigation did not reveal [petitioner’s] fingerprints or DNA on the bags of heroin
and cocaine or on the handgun. There was no direct evidence showing [petitioner]
touched or actually possessed any of the items. And there was little, if any,
circumstantial evidence to support a reasonable inference that [petitioner] intended
to exercise control over the contraband. [Petitioner] was not found in close
proximity to the contraband (officers arrested him blocks away during execution of
the search warrant), and he was not the last person seen in the area where the
contraband was located.
In this case, [petitioner] was one of multiple individuals inside Harper’s
residence in the days leading up to the execution of the search warrant. Harper’s
uncontroverted testimony established that [petitioner] was not living at 2121 West
Kellogg and did not have exclusive control over the dresser where officers
discovered the contraband. Further, there were no identifiable prints recovered from
the packaged heroin, the baggies of cocaine, or the handgun. Absent [petitioner’s]
presence at 2121 West Kellogg on the morning of January 26, 2019, there is no
evidence linking [petitioner] to the controlled substances or the firearm. Such
evidence is insufficient to support [petitioner’s] convictions for possession.”
-6- Gladney, 2022 IL App (3d) 200066-U, ¶¶ 29-31.
¶ 20 C. Petition for a Certificate of Innocence
¶ 21 On April 11, 2022, petitioner filed a petition for a certificate of innocence. He did
not submit any new evidentiary material in his petition. The State filed a response to this petition,
arguing that, despite the reversal of the convictions, petitioner could not show he was innocent of
the offenses for which he was charged.
¶ 22 1. The Evidentiary Hearing
¶ 23 On July 26, 2024, the trial court held an evidentiary hearing on the petition.
Petitioner’s counsel stated that petitioner intended to testify in support of his innocence. As part
of ascertaining how else petitioner planned to prove his innocence, the court asked petitioner’s
counsel: “And you’ll indicate that he will be able to establish his innocence by a preponderance of
the evidence by relying on the court record, which I can take judicial notice of and the appellate
court opinion, which I’ve read, along with anything else to come out in the hearing?” Petitioner’s
counsel replied, “That’s correct, Your Honor.” However, the court never expressly said that it was
taking judicial notice of anything, and neither party expressly requested the court to do so.
¶ 24 Petitioner was the only witness. On direct examination by his own counsel,
petitioner testified as follows. He was never in possession of the drugs or the gun at issue in the
underlying case, and they were not his. Although he stayed overnight at the home at 2121 West
Kellogg (misidentified in the testimony as “2021 West Kellogg”) once or twice, he never lived
there. Petitioner was never “aware that heroin, cocaine, or a gun were located within that house.”
He never exercised “possession or dominion over those items whatsoever.” Aside from having the
key to this house and staying there occasionally, he had no other connection with it.
¶ 25 The State declined the opportunity to cross-examine petitioner. The trial court then
-7- asked petitioner’s counsel whether petitioner requested “any additional evidence beyond the
record.” Petitioner’s counsel responded, “No.” The court indicated it preferred to allow for written
closing arguments, as “some of this might be catching the State’s Counsel by surprise.” The court
and the parties discussed timelines for submitting written closing arguments. The court said it
would take the matter under advisement and set a status date within which to issue a decision.
¶ 26 Shortly thereafter, the trial court sua sponte reopened the proofs and questioned
petitioner. Petitioner’s counsel did not object. Upon examination by the court, petitioner testified
as follows. “Kimberly Harp” (Harper), the tenant of the home where the drugs and gun were found,
gave him a key to that house. Asked why she did so, petitioner responded:
“Because I got into it, like, with my mother when I came home from
Woodford County for driving on suspended license. Me and mama had some
words, and she just gave me the key. She really wasn’t there all the time to let me
in, so she gave me the key to spend the night.”
Petitioner had that key for 48 to 72 hours before the search warrant was executed. Apparently
referencing petitioner’s testimony on direct examination, the court asked petitioner, “And didn’t
you tell your attorney you stayed there one or two times?” Petitioner responded, “Yes, sir.”
Petitioner acknowledged that, within the three days that he had a key to the house, he stayed there
two days. Asked whether he had “any idea what room the drugs and gun were found in,” petitioner
said the transcripts reflected that “they found it in her room like in dressers.” According to
petitioner, he slept on the couch in the house, not in the room where the contraband was found. He
claimed that even though police officers said they found his duffel bag in a bedroom, he had left
his bag by the front door.
¶ 27 On redirect examination, petitioner’s counsel asked petitioner if he had any
-8- knowledge of whether somebody had moved his bag. Petitioner responded:
“I don’t have no knowledge, but it was multiple people coming in up in that
house. Like, I had a key, she had a key, and the landlord had a key. In the report
she testified that she shared a car with her landlord. That was rented to her to the
house. So, it was like multiple people running in and out of the house. So, to my
knowledge, I don’t have no knowledge if it had been moved, but I know I left it by
the front door on the coat rack.”
¶ 28 The trial court asked additional questions of petitioner. When asked who was at this
house, besides him and Harper, in the three days when he had a key, petitioner responded, “I don’t
know her friends.” However, petitioner saw other people staying in the basement “[d]uring the
whole time [he] was coming and visiting frequently.” Petitioner clarified that before he had a key
to this house, he had not been “going over there” long, as he was released from jail a little more
than a month before the search warrant was executed. Petitioner denied that he had been going to
this house for about a month. Rather, he explained that he ran into Harper, who had previously
been his friend, at Walmart three weeks after he was released from jail. He told Harper his situation
about getting “into it with [his] parent,” and they swapped phone numbers. He did not see Harper
again until she told him he could spend the night at her house.
¶ 29 In his written closing argument, petitioner contended that the trial court should
accept as true his unrebutted testimony, as it was neither contradicted, inherently improbable, nor
impeached. Petitioner maintained that the circumstances pointed to Harper as the person who most
likely possessed the contraband, and she could have faced charges under a constructive possession
theory.
¶ 30 The State responded that although it did not meet its burden of proof in the criminal
-9- trial, petitioner did not meet his burden of proof in the current proceedings to show that he was
innocent of the charges. The State relied on the circumstantial evidence elicited at trial to connect
petitioner to the contraband. The State seemed to suggest that the trial court had taken judicial
notice of the entire underlying criminal record at the evidentiary hearing.
¶ 31 In his reply brief, petitioner indicated that he did not recall the trial court saying it
was taking judicial notice of petitioner’s “criminal convictions.” Petitioner also questioned how
he could be expected to prove his innocence, other than by offering his own unimpeached
testimony that the contraband did not belong to him. He wondered why the “suspicious
circumstances” that the State emphasized in its closing argument mattered if he was telling the
truth and was not impeached.
¶ 32 2. The Trial Court’s Ruling
¶ 33 On September 24, 2024, the trial court issued a written order denying the petition
for a certificate of innocence. The court indicated that it had “considered the entirety of the record
herein, including the pleadings, testimony, case law, written closing arguments,” and the decision
in petitioner’s direct appeal. The court identified the sole disputed issue as whether petitioner
proved by a preponderance of the evidence that he was innocent of the offenses charged in the
indictment.
¶ 34 The trial court recognized that the law-of-the-case doctrine established there was a
reasonable doubt as to petitioner’s guilt. The court also acknowledged that petitioner “made a
credible argument as to his innocence” of the charges. Nevertheless, the court determined that
petitioner had not met his burden on his petition because the proof and evidence was “equivocal”
as to his innocence, “for one or more of the following non-exclusive reasons.”
¶ 35 The trial court found that “all of the circumstances surrounding this fact situation
- 10 - described in the appellate court opinion, Petitioner’s testimony at hearing, and thoroughly
discussed by the parties herein lead to a conclusion that [petitioner] may be guilty or innocent.” In
the court’s view, the parties both had “a good argument” in support of their respective positions,
“from a preponderance of the evidence standard.” Petitioner had not “prevailed in proving more
probably than not that he is innocent.”
¶ 36 According to the trial court, the “entirety of the facts set out in the appellate opinion
certainly paint a picture of circumstantial evidence that more than suggests the drugs and gun
found at the scene were placed there by” petitioner. The court explained that due to petitioner’s
“interest in the case” and the court’s “evaluation of his credibility,” the fact that petitioner’s
testimony at the evidentiary hearing was unrebutted did not ipso facto mean he met his burden of
proof. The court wrote that when all the evidence was considered, there was “still a question as to
Petitioner’s innocence” and this was a “50/50 case.”
¶ 37 Responding to petitioner’s rhetorical question in his closing argument about how
someone could prove innocence other than through one’s own testimony, the trial court imagined
potential scenarios. This included eyewitnesses recanting their testimony, newly discovered alibi
or DNA evidence, or “later admissions by a party that are supported by additional evidence.” The
court noted that it was “simply concluding that the burden of proof was not met in this case.”
¶ 38 The trial court further explained that it did “not read the appellate opinion as
establishing innocence was proven,” even in “conjunction with” petitioner’s testimony. The court
also wrote:
“The indictment in Petitioner’s criminal case (2019 CF 66) established
probable cause (or reasonable grounds) for filing the charges therein. This court’s
ruling herein is consistent with a finding that [petitioner’s] innocence (or guilt) of
- 11 - these charges, after all is said and done in this case, is impossible to conclude to a
standard or [sic] more likely than not—either way.”
¶ 39 The trial court included some “[a]dditional notes” toward the end of its order. The
court clarified that it did not consider petitioner’s criminal record in ruling on this petition. The
court also reiterated that it rejected petitioner’s argument that it must accept his testimony as “true
and determinative.” On that point, the court stated:
“[A]s laid out in comparison with the other facts of this case, this court cannot
conclude that his testimony is inherently probable. Rather, when all is considered
it is just one component of the circumstances in this case leading to this court’s
conclusion that he cannot show he is innocent more probably than not.” (Emphasis
in original.)
Finally, the court recognized that Harper “could also have been charged in this case.” Nevertheless,
“a fact finder could also reasonably conclude she was not a drug ‘dealer,’ but was an addict who
obtained her drugs from Petitioner[,] whose movement between houses with contraband would not
be out of the realm of possibilities.”
¶ 40 Petitioner filed a timely notice of appeal from this order.
¶ 41 II. ANALYSIS
¶ 42 On appeal, petitioner argues that he proved his innocence by a preponderance of
the evidence, so he is entitled to a certificate of innocence. According to petitioner, some of the
statements the trial court made in its written order were “legally and factually incorrect.” Petitioner
also argues that the court erred by reopening the evidence and questioning him.
¶ 43 In response, the State argues that petitioner failed to establish his innocence by a
preponderance of the evidence. The State asserts that petitioner’s evidence consisted merely of
- 12 - denying that he knew about or possessed the contraband. The State maintains that such testimony
must be evaluated within the context of the circumstantial evidence adduced at trial. The State
further argues that the trial court acted within its discretion by questioning petitioner at the
evidentiary hearing.
¶ 44 Section 2-702 of the Code provides a mechanism for petitioners to be declared
innocent of crimes so they may seek relief from the State through the court of claims for wrongful
incarceration. 735 ILCS 5/2-702 (West 2022); People v. Pursley, 2022 IL App (2d) 210558, ¶ 63.
To obtain a certificate of innocence, a petitioner must prove by a preponderance of the evidence
that (1) he or she was convicted of a felony and served at least part of a prison sentence, (2) the
conviction was reversed or vacated and the indictment dismissed, (3) the petitioner is innocent of
the charged offenses, and (4) the petitioner’s voluntary conduct did not bring about the conviction.
People v. Washington, 2023 IL 127952, ¶ 50; 735 ILCS 5/2-702(g)(1)-(4) (West 2022). A
preponderance of the evidence means that a proposition is “more probably true than not true.”
(Internal quotation marks omitted.) People v. Terrell, 2022 IL App (1st) 192184, ¶ 46.
¶ 45 Here, the sole disputed element is whether petitioner proved his innocence of the
charged offenses by a preponderance of the evidence. The fact that the Third District reversed the
convictions on direct appeal due to the State’s failure to prove guilt beyond a reasonable doubt is
not dispositive of this issue. See People v. Pollock, 2014 IL App (3d) 120773, ¶ 37 (explaining
that “the Code contemplates the differences between actual innocence and a finding by a court of
review that no rational jury could find beyond a reasonable doubt that the State proved all elements
of the crimes charged”); see also Terrell, 2022 IL App (1st) 192184, ¶¶ 21, 67 (affirming a trial
court’s finding that a petitioner failed to prove his innocence, even though the convictions had
been overturned on direct appeal based on insufficient evidence that he constructively possessed
- 13 - drugs and weapons).
¶ 46 A. The Appellate Record
¶ 47 At the outset, we deem it necessary to make a few remarks about the appellate
record. The only materials we have from the underlying criminal proceedings are (1) the
indictment, (2) a September 17, 2019, trial court order reflecting that a jury found petitioner guilty
of three counts of the indictment, and (3) a copy of the Rule 23 order from the Third District
(Gladney, 2022 IL App (3d) 200066-U).
¶ 48 Before the appellate record was filed, petitioner filed a motion in this court to
include the entire record from his direct appeal as part of the record in this appeal. In his motion,
petitioner asserted that the direct appeal record included the trial transcripts, “which were available
to the circuit court before it rendered its decision in this case denying the petition for certificate of
innocence.” The State did not file a response to that motion. This court denied petitioner’s motion
without prejudice. We explained that a record on appeal “may only be supplemented with evidence
that was actually before the trial court.” We noted that the record had not yet been filed in the
present appeal, so it was unknown whether the court either took judicial notice of the record from
the direct appeal or whether that record was admitted into evidence. See 735 ILCS 5/2-702(f)
(West 2022) (authorizing a court adjudicating a petition for a certificate of innocence to “take
judicial notice of prior sworn testimony or evidence admitted in the criminal proceedings related
to the convictions which resulted in the alleged wrongful incarceration,” so long as the petitioner
was either represented by counsel in such prior proceedings or knowingly waived the right to
counsel). We invited petitioner to refile his motion to supplement the record after the record
attendant to the certificate-of-innocence appeal was filed.
¶ 49 Neither party renewed the motion to supplement the record. In a footnote in his
- 14 - appellant’s brief, petitioner asserts that he will “renew that motion” if we determine the record is
incomplete. In a footnote in its brief, the State asserts that “the trial court took judicial notice of
the evidence [in] Petitioner’s criminal case, *** even though the relevant adjudicative facts, sworn
testimony, and evidence was recounted on the face of the [petition] and in the Gladney opinion
attached thereto.”
¶ 50 After reviewing the record in connection with the certificate-of-innocence
proceedings, it is not clear whether the trial court considered any portion of the underlying criminal
record that is not already included in the present record on appeal. The court made some comments
during the hearing on the petition indicating it understood it had the authority to take judicial notice
of materials from the underlying criminal case. However, neither party directly requested the court
to take judicial notice of anything specific, nor did the court expressly say it was doing so. The
court’s written order did not reflect that the court took judicial notice of anything or reviewed the
trial transcripts from the underlying criminal case.
¶ 51 Although it would have been helpful to the litigants and this court for the trial court
to have been clearer about whether it took judicial notice of the prior trial testimony—as opposed
to merely relying on the Third District’s summary of the trial evidence—neither party identifies
this as an impediment to our review. We presume that the Third District included an accurate and
complete recitation of the trial evidence in its Rule 23 order. Absent a pending motion or an express
indication that the court reviewed portions of the underlying criminal record that we do not have,
we will not consider the record filed in connection with petitioner’s direct appeal.
¶ 52 B. The Standard of Review
¶ 53 The parties debate the proper standard of review. Petitioner maintains that we
should review the trial court’s “factual decision” pursuant to the manifest-weight-of-the-evidence
- 15 - standard, whereas we should review de novo the court’s “legal conclusions and its factual findings
based upon documentary evidence.” The State contends that we should review the order for an
abuse of discretion.
¶ 54 We reject petitioner’s argument that de novo review is appropriate. De novo review
is warranted in a certificate-of-innocence appeal where the case presents a purely legal issue, such
as a dispute regarding the proper interpretation of a statute. See People v. Brown, 2022 IL App
(4th) 220171, ¶ 11. The present appeal does not require us to address any purely legal issue, as the
sole disputed matter is whether petitioner proved his innocence. Although petitioner identifies
what he calls “legal errors” in the trial court’s written order, his point is merely that the court’s
reasons for finding that he failed to prove his innocence were incorrect and unpersuasive.
Moreover, petitioner’s request for de novo review of “factual findings based upon documentary
evidence” is inapt, as the court heard testimony at the hearing on the petition for a certificate of
innocence. Under the circumstances, de novo review is unwarranted.
¶ 55 There are two standards of review that might potentially apply here: the abuse-of-
discretion standard and the manifest-weight-of-the-evidence standard. When reviewing for an
abuse of discretion, a court considers “whether the trial court’s decision is arbitrary, fanciful, or
unreasonable to the degree that no reasonable person would agree with it.” (Internal quotation
marks omitted.) People v. Morgan, 2025 IL 130626, ¶ 23. When applying the manifest-weight-of-
the-evidence standard, a court considers whether “the opposite conclusion is clearly evident or if
the finding itself is unreasonable, arbitrary, or not based on the evidence presented.” (Internal
quotation marks omitted.) Morgan, 2025 IL 130626, ¶ 21. As can be seen, both standards are
deferential (Terrell, 2022 IL App (1st) 192184, ¶ 51) and there is substantial semantic overlap in
how the standards are articulated.
- 16 - ¶ 56 This court has said that unless an appeal presents an issue of law warranting de novo
review, “ ‘[g]enerally, granting a certificate of innocence is within the sound discretion of the
[trial] court.’ ” Brown, 2022 IL App (4th) 220171, ¶ 11 (quoting People v. Amor, 2020 IL App
(2d) 190475, ¶ 11). Other districts of the appellate court likewise have typically applied the abuse-
of-discretion standard. See e.g., People v. Rodriguez, 2021 IL App (1st) 200173, ¶ 44 (“It is well
settled that the determination of whether a petitioner is entitled to a certificate of innocence is
committed to the discretion of the circuit court.”); Pollock, 2014 IL App (3d) 120773, ¶ 26 (same).
However, one division of the First District has held that the manifest-weight-of-the-evidence
standard is appropriate. People v. McIntosh, 2021 IL App (1st) 171708, ¶ 41.
¶ 57 In Washington, 2023 IL 127952, ¶ 47, a four-member majority of our supreme court
expressly declined to resolve the split within the appellate court about which of the two deferential
standards of review applies. In a special concurrence, three justices opined that the proper standard
of review is whether the judgment is against the manifest weight of the evidence. Washington,
2023 IL 127952, ¶ 70 (Rochford, J., specially concurring, joined by Theis and Overstreet, JJ.).
¶ 58 Here, the result of the appeal would be the same regardless of whether we applied
the abuse-of-discretion standard or the manifest-weight-of-the-evidence standard. As we will
explain, the trial court reasonably concluded that petitioner failed to prove his innocence of the
charged offenses by a preponderance of the evidence. Accordingly, we need not decide which of
the two deferential standards of review applies, and we will await further guidance from our
supreme court on that issue. See Pursley, 2022 IL App (2d) 210558, ¶ 60 (declining to address
whether abuse-of-discretion or manifest-weight-of-the-evidence review applied because that issue
would not affect the outcome of the appeal); Terrell, 2022 IL App (1st) 192184, ¶ 51 (same).
Notably, neither party argues that the result of this appeal would be different under one standard
- 17 - or the other.
¶ 59 C. The Trial Court Reasonably Determined That Petitioner
Failed to Prove His Innocence
¶ 60 We hold that the trial court reasonably determined petitioner failed to prove his
innocence of the charged offenses by a preponderance of the evidence. Although petitioner denied
possessing contraband or knowing of its presence inside the residence at 2121 West Kellogg
Avenue, the totality of the circumstantial evidence could lead a reasonable person to doubt
petitioner’s testimony. Petitioner admittedly had a key to this residence and stayed there overnight
shortly before the police executed the search warrant. Harper, who was the tenant of this residence,
testified that she purchased heroin from petitioner the night before the search. Petitioner never
denied that claim, and Harper never recanted any of her testimony. Harper also testified that she
told petitioner he could use the dresser under which the police later found the contraband and that
petitioner put his duffel bag in that bedroom. The police ultimately found petitioner’s bag, along
with some male clothing, in the bedroom near the contraband. When the police arrested petitioner,
he had $476 on his person. Harper denied owning the gun that the police found in the bedroom.
These collectively suspicious circumstances justified the court in finding that petitioner failed to
prove his innocence by a preponderance of the evidence, notwithstanding his protestations of
innocence. It is apparent that the court did not credit all of petitioner’s testimony by a
preponderance of the evidence. Under the circumstances, we have no basis to reverse that
credibility assessment.
¶ 61 Petitioner emphasizes that he was the only witness to testify at the hearing on the
certificate of innocence. Quoting People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85 (1981), petitioner
argues that a factfinder may disregard unrebutted testimony only if it is “ ‘contradicted,’ ”
- 18 - “ ‘inherently improbable,’ ” or “ ‘impeached.’ ” According to petitioner, the trial court did not find
that his testimony was contradicted, inherently improbable, or impeached. Rather, petitioner
submits that the court turned the “Brown v. Baker rule on its head” by requiring petitioner to show
that his unrebutted testimony was “ ‘inherently probable.’ ”
¶ 62 We determine that this argument does not justify disturbing the trial court’s
decision. Although the State did not introduce new evidence at the hearing on the petition to
counter petitioner’s testimony, the State was under no obligation to do so. See Terrell, 2022 IL
App (1st) 192184, ¶¶ 44, 46 (rejecting a petitioner’s argument that the burden shifted to the State
to prove his guilt once he presented “ ‘some evidence’ ” of his innocence). Significantly, a
factfinder is free to reject unrebutted testimony that is contradicted “by circumstances.” Brown, 88
Ill. 2d at 85. As explained above, the circumstances shown by the trial evidence provided a
reasonable basis not to accept at face value petitioner’s protestations of innocence at the hearing
on the petition.
¶ 63 In further support of his point that the trial court improperly rejected his unrebutted
testimony, petitioner cites Washington. In Washington, the petitioner submitted substantial
evidence in support of his petition for a certificate of innocence, which showed that the
investigating police officers—who were “subordinates of infamous Chicago police detective Jon
Burge”—tortured the petitioner into confessing to a murder in the early 1990s that he did not
commit and coerced witnesses to implicate him. Washington, 2023 IL 127952, ¶ 3. The evidence
showed that these police officers committed similar abusive conduct “in more than 20 other cases.”
Washington, 2023 IL 127952, ¶ 58. “The State did not participate in the certificate of innocence
proceedings,” and there was no dispute that the petitioner was innocent of murder. Washington,
2023 IL 127952, ¶¶ 54, 56. Nevertheless, to evaluate whether the petitioner had voluntarily
- 19 - brought about his own conviction by pleading guilty to murder—which would defeat his request
for a certificate of innocence—over the petitioner’s objection, the trial court considered
“extrarecord materials,” including transcripts of a motion to suppress hearing and a codefendant’s
trial. Washington, 2023 IL 127952, ¶ 21. The court then relied on those materials when denying
the petition, refusing to credit the petitioner’s claim that police officers coerced his confession.
Washington, 2023 IL 127952, ¶ 51.
¶ 64 Our supreme court reversed the judgment denying the petition for a certificate of
innocence. The court explained that it was improper for the trial court to make credibility findings
based on judicially noticed records in what amounted to an independent investigation. Washington,
2023 IL 127952, ¶¶ 52-54. The court emphasized that the petitioner’s evidence of police coercion
was “unrebutted and compelling.” Washington, 2023 IL 127952, ¶ 56. Considering that the State
did not establish itself as the petitioner’s “adversary” in the certificate-of-innocence proceedings,
the court reasoned that there was nothing in the record impeaching the petitioner’s claim,
contradicting it, or rendering it inherently improbable. Washington, 2023 IL 127952, ¶ 56. Thus,
the trial court was “not free to reject the petitioner’s evidence,” and the petitioner was entitled to
a certificate of innocence. Washington, 2023 IL 127952, ¶¶ 56, 61.
¶ 65 Washington does not support petitioner’s argument that the trial court here was
required to believe his unrebutted testimony at the certificate-of-innocence hearing. Unlike in
Washington, the State opposed petitioner’s request for a certificate of innocence. Additionally, the
court did not make credibility determinations based on an independent investigation conducted
over petitioner’s objection. We also consider that petitioner’s general protestations of innocence
were not nearly as compelling as the independent, corroborative evidence of pervasive police
misconduct that the petitioner presented in Washington.
- 20 - ¶ 66 Petitioner criticizes several other comments in the trial court’s written order. For
example, the court found there was “still a question as to Petitioner’s innocence” and it was “a 50-
50 case.” Petitioner argues that “there was no reason to conclude that this ‘question’ defeated the
proof of his innocence by a preponderance of the evidence.” He emphasizes that he was not
required “to prove his innocence with proof beyond a reasonable doubt or even by clear and
convincing evidence.” He concludes, “To require a [certificate-of-innocence] petitioner to resolve
any and all ‘questions’ about his innocence would defeat the remedial purpose of the statute and
make it virtually impossible for any [certificate-of-innocence] petitioner to succeed.”
¶ 67 Petitioner’s arguments with respect to these comments do not persuade us that the
judgment was erroneous. The trial court plainly understood and applied the statutory burden of
proof. In context, the court was explaining that, notwithstanding petitioner’s testimony that he was
innocent, the court could not conclude from the record that this proposition was more probably
true than not, so petitioner did not meet his burden. We discern no error with respect to this remark.
¶ 68 Petitioner also mentions the trial court’s comment that it “would not be out of the
realm of possibilities” for a factfinder to believe that Harper was a drug addict who obtained drugs
from petitioner and that petitioner moved between houses with contraband. Petitioner asserts that
this point “may have established a reasonable doubt that he could be guilty but hardly defeated the
strong evidence that he was innocent.” We see no error in the court’s comment, which was
prompted by petitioner’s point in his closing argument that Harper could have been charged with
possessing the subject contraband. The record justifies a strong suspicion that Harper was an addict
who bought drugs from petitioner, who stored contraband at her home temporarily.
¶ 69 Petitioner also criticizes the trial court’s remark that the “entirety of the facts set
out” in the decision in his direct appeal “certainly paint a picture of circumstantial evidence that
- 21 - more than suggests the drugs and gun found at the scene were placed there by the Petitioner.”
Petitioner contends that this sentiment was “rebutted by the appellate court opinion itself.” See
Gladney, 2022 IL App (3d) 200066-U, ¶¶ 30-31 (explaining the weakness of the State’s
circumstantial evidence). We recognize that the Third District said that “there was little, if any,
circumstantial evidence to support a reasonable inference that [petitioner] intended to exercise
control over the contraband.” Gladney, 2022 IL App (3d) 200066-U, ¶ 30. The court also wrote
that “[a]bsent [petitioner’s] presence at 2121 West Kellogg on the morning of January 26, 2019,
there is no evidence linking [petitioner] to the controlled substances or the firearm.” Gladney, 2022
IL App (3d) 200066-U, ¶ 31. However, the court made these remarks in the context of addressing
whether the State met its burden to prove the charges beyond a reasonable doubt, not whether
petitioner met his burden to show by a preponderance of the evidence that he was innocent of the
charges. See Pollock, 2014 IL App (3d) 120773, ¶ 37 (explaining that the certificate-of-innocence
statute differentiates between actual innocence and a reviewing court’s finding that the State failed
to prove the charges beyond a reasonable doubt). Plainly, there was circumstantial evidence of
petitioner’s connection to the contraband, which we identified above. The appellate court on direct
appeal determined that this circumstantial evidence was insufficient for the State to meet its burden
beyond a reasonable doubt under the legal framework for evaluating a constructive possession
theory. Given that the issues were different, we discern no incongruence in the way that the
appellate court assessed the facts of the case on direct appeal versus how the trial court viewed
those same facts when petitioner later sought a certificate of innocence.
¶ 70 Finally, petitioner criticizes the following comment the trial court made:
“The indictment in Petitioner’s criminal case (2019 CF 66) established
probable cause (or reasonable grounds) for filing the charges therein. This court’s
- 22 - ruling herein is consistent with a finding that [petitioner’s] innocence (or guilt) of
these charges, after all is said and done in this case, is impossible to conclude to a
Petitioner argues that this comment underlined the court’s “misunderstanding of the standard of
proof,” given that probable cause is something less than a preponderance of the evidence. See
People v. Burks, 355 Ill. App. 3d 750, 757 (2004) (“Determinations of probable cause are naturally
based on probabilities, and a finding of probable cause does not require evidence sufficient to
support a conviction, nor even evidence demonstrating that it is more likely than not that the
suspect committed a crime.”). Petitioner proposes that if a pretrial showing of probable cause could
defeat a petition for a certificate of innocence, nobody could ever obtain one. Petitioner also
contends that the court’s reasoning here was a non sequitur.
¶ 71 We agree that the trial court’s reference to probable cause was ill-advised and a bit
of a non sequitur, but we do not conclude it shows the court misunderstood the standard of proof.
In context, we do not interpret the court’s comment as suggesting that a pretrial finding of probable
cause forecloses a petition for a certificate of innocence. Rather, it seems the court was just
reiterating that it could not determine by a preponderance of the evidence whether petitioner was
innocent of the charged offenses. Earlier in its order, the court noted that the proof and evidence
was equivocal “for one or more of the following non-exclusive reasons.” Notwithstanding the
passing reference to probable cause, the court’s other reasoning justified its conclusion that
petitioner failed to prove his innocence by a preponderance of the evidence.
¶ 72 D. Questioning by the Trial Court
¶ 73 Petitioner also argues that the trial court abused its discretion and committed
second-prong plain error by “reopening the evidence to extensively cross-examine” him and
- 23 - “undermine his credibility.” Petitioner proposes that the court’s questioning “indicated
prejudgment” and “placed the circuit court in the role of an advocate for a respondent who had
chosen to ask no questions and present no evidence.” According to petitioner, the court’s
questioning was “hostile,” sarcastic, and included a question violating the attorney-client privilege.
Petitioner requests that we reverse the judgment and remand for a new hearing before a different
judge.
¶ 74 The State responds that the trial court acted within its discretion by questioning
petitioner about factual issues that were relevant to the proceedings. The State maintains that the
court never asked any question that implicated the attorney-client privilege.
¶ 75 Petitioner forfeited this issue by failing to raise it below. See Terrell, 2022 IL App
(1st) 192184, ¶ 36 (“Generally, issues not raised in the circuit court are forfeited).
“The purpose of the forfeiture rule is to encourage parties to raise issues in the
circuit court, thus ensuring both that the circuit court is given an opportunity to
correct any errors prior to appeal and that a party does not obtain a reversal through
his or her own inaction.” Terrell, 2022 IL App (1st) 192184, ¶ 36.
Petitioner invokes the second prong of the plain-error doctrine, which is a method of addressing
forfeiture in criminal cases where a clear or obvious error occurred that was “so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.”
People v. Moon, 2022 IL 125959, ¶ 20. However, a certificate-of-innocence proceeding is civil in
nature (Terrell, 2022 IL App (1st) 192184, ¶ 40), and petitioner presents no argument as to why
the plain-error doctrine should apply. Our own research has revealed that something akin to the
plain-error doctrine has been applied exceedingly rarely in civil cases and “ ‘only where the act
complained of was a prejudicial error so egregious that it deprived the complaining party of a fair
- 24 - trial and substantially impaired the integrity of the judicial process.’ ” Wilbourn v. Cavalenes, 398
Ill. App. 3d 837, 856 (2010) (quoting In re Marriage of Saheb, 377 Ill. App. 3d 615, 627 (2007)).
¶ 76 Nothing approaching that standard happened here. The record confirms that the trial
court questioned petitioner in a nonconfrontational and neutral way that was designed to elicit
relevant information for the court’s consideration. See People v. Holland, 2023 IL App (4th)
220384, ¶ 40 (explaining that courts have discretion to question witnesses in a fair and impartial
way to elicit the truth or clarify the issues). We discern no hint of bias, hostility, or sarcasm in any
of the court’s questions that might indicate the court prejudged the case. See Holland, 2023 IL
App (4th) 220384, ¶ 41 (noting that a litigant is prejudiced by a court’s questioning of witnesses
in a bench proceeding where “ ‘the tenor of the court’s questioning indicates the court has
prejudged the outcome before hearing all of the evidence’ ”) (quoting People v. Smith, 299 Ill.
App. 3d 1056, 1063 (1998)). Petitioner emphasizes that the court asked him numerous questions
following a brief direct examination by his own counsel and after the State declined the opportunity
for cross-examination. However, petitioner cites no authority indicating that these factors suggest
an abuse of discretion, let alone a compelling reason for overlooking the forfeiture, where the
court’s questions were fair and neutral. Moreover, petitioner is mistaken that the court asked him
a question implicating the attorney-client privilege. The court merely referenced petitioner’s
testimony from his direct examination (“And didn’t you tell your attorney you stayed there one or
two times?”).
¶ 77 Under these circumstances, there is no merit to petitioner’s claim that the trial court
acted improperly by reopening the evidence and questioning him.
¶ 78 III. CONCLUSION
¶ 79 For the reasons stated, we affirm the trial court’s judgment denying petitioner a
- 25 - certificate of innocence.
¶ 80 Affirmed.
- 26 -