2023 IL App (1st) 220843
No. 1-22-0843
Opinion filed August 29, 2023
SECOND DIVISION ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 06 CR 3618 ) JOHN HILTON, ) The Honorable ) Erica Reddick, Defendant-Appellant. ) Judge Presiding.
____________________________________________________________________________
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant-appellant John Hilton (petitioner) was found guilty of
three counts of aggravated unlawful use of a weapon (AUUW) and was sentenced to three
concurrent terms of 78 months in prison. Upon direct appeal, this court vacated two of the
three convictions pursuant to the one-act, one-crime rule. Twelve years later, petitioner filed
a petition for postjudgment relief, asserting that his remaining AUUW conviction should be
vacated as unconstitutional in light of the Illinois Supreme Court’s decision in People v.
Aguilar, 2013 IL 112116. The trial court agreed and granted petitioner the relief he sought No. 1-22-0843
pursuant to section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West
2018)). Soon thereafter, petitioner filed a petition for a certificate of innocence (COI),
pursuant to section 2-702 of the Code (735 ILCS 5/2-702 (West 2018)). The trial court
denied his petition. Petitioner appeals, contending that he has satisfied all pertinent
requirements of section 2-702 and asking that we vacate the judgment below and remand for
entry of a COI. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 The underlying facts of this appeal are not in dispute, and we summarize them here.
¶4 Petitioner was charged via indictment on seven counts: count I charged unlawful use of a
weapon by a felon (UUWF) and counts II through VII charged AUUW under different
sections of that statute. Of his six charged AUUW counts, counts II and IV were charged
pursuant to 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002), counts III and V were charged
pursuant to 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2002), count VI was charged pursuant
to 720 ILCS 5/24-1.6(a)(2), (a)(3)(A) (West 2002), and count VII was charged pursuant to
720 ILCS 5/24-1.6(a)(2), (a)(3)(C) (West 2002).
¶5 Briefly, at petitioner’s bench trial, evidence was adduced, demonstrating that in October
2005, police officers, who were searching for a female suspect in a narcotics investigation,
observed petitioner speaking to her for several minutes while leaning against and/or standing
next to a car. Officers approached them, separated them, and questioned them. During this
time, petitioner appeared nervous, remained very close to the car, and at one point reached
his hand toward the car door. An officer looked through the driver’s side window and saw a
brown paper bag with a gun sticking out of it within arm’s length of the door. Officers
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immediately handcuffed petitioner, who stated that while he had been driving the car, the car
was not his. Officers found the car’s keys in petitioner’s pocket, retrieved the gun, and
discovered it was loaded. Based on this evidence, while it found him not guilty of counts I,
II, III, and VI, the trial court found petitioner guilty of three of the charged AUUW counts:
counts IV (premised on carrying an uncased, loaded, and immediately accessible firearm in a
vehicle), V (premised on possessing a firearm without a currently valid Firearm Owner’s
Identification (FOID) card), and VII (premised on possessing a firearm on a public street
without a valid FOID card). The court concluded that the gun was immediately accessible to
petitioner and that the car in which it was found was under his exclusive control. It sentenced
him to three concurrent terms of 78 months in prison.
¶6 Petitioner appealed his convictions, contending that the evidence against him was
insufficient to support them and that his trial counsel provided ineffective assistance. This
court struck down both challenges, holding first that, despite some minor discrepancies in the
testimony presented, “the State introduced sufficient evidence to support the trial court’s
verdict” on the charges, and holding second, that his counsel performed effectively based on
the record. People v. Hilton, 388 Ill. App. 3d 1137 (table) (2009) (unpublished order under
Illinois Supreme Court Rule 23). However, upon petitioner’s urging and the State’s
concession, this court vacated two of his AUUW convictions. It noted that they were in
violation of the one-act, one-crime rule because all three of petitioner’s convictions were
based on possession of the same firearm. Accordingly, this court affirmed petitioner’s
conviction “of the first offense” (based on count IV), vacated those “based on the second and
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third offenses” (counts V and VII), and ordered the correction of his mittimus. Hilton, 388
Ill. App. 3d 1137 (table).
¶7 In 2013, the Illinois Supreme Court decided Aguilar, 2013 IL 112116, which invalidated
section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute as unconstitutional. See also People v.
Burns, 2015 IL 117387, ¶ 25 (“We now clarify that section 24-1.6(a)(1), (a)(3)(A) of the
statute is facially unconstitutional, without limitation”).
¶8 Consequently, in April 2021, petitioner filed a “Motion to Vacate Void Aguilar
Conviction pursuant to 735 ILCS 5/2-1401,” asking the trial court to vacate his remaining
AUUW conviction as unconstitutional pursuant to Aguilar. The trial court, upon receiving no
objection from the State, granted his motion and vacated his conviction and sentence, and his
case was nol-prossed by the State.
¶9 In late October 2021, petitioner filed a “Petition for a Certificate of Innocence,” along
with a “Memorandum in Support” and various attachments detailing the procedural history of
his cause. Petitioner pointed out that his conviction on count IV had been vacated and
dismissed and that the acts charged in the indictment did not constitute a felony against the
State because count IV was based on a statute later held to be unconstitutional. He also
claimed that he was innocent of all the charges in the indictment for which he was convicted.
However, he did not allege that he was innocent of all the offenses charged in the indictment.
He asked the trial court to award him a COI and to expunge his criminal record.
¶ 10 The State objected, citing People v. Smith, 2021 IL App (1st) 200984, and asserting that,
under its holding, because petitioner had been found guilty of two constitutionally valid
AUUW charges (based on counts V and VII), he was not entitled to a COI, as he could not
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show he was innocent of all the offenses charged in the indictment, as is required under
section 2-702(g) of the Code (735 ILCS 5/2-702(g) (West 2018)) to receive such relief. In a
“Supplemental Memorandum,” petitioner acknowledged his cause was factually similar to
Smith and that its reasoning “supports denial of [his] Petition,” but urged the court to adopt
the dissent in that case, which stated it would have granted a COI to that petitioner. See, e.g.,
Smith, 2021 IL App (1st) 200984, ¶¶ 37-44 (Oden Johnson, J., dissenting).
¶ 11 During the hearing on the matter, while the State again relied on Smith, petitioner again
acknowledged its majority holding—namely, that when constitutionally valid charges have
been vacated under the one-act, one-crime rule, a petitioner is not considered innocent of all
the crimes charged in the indictment, which is required to obtain a COI. As such, this holding
prohibits petitioner from relief. However, he again urged the court to disregard Smith. Also,
once again, petitioner neither presented further evidence nor argued that he was innocent of
the constitutionally valid AUUW charges, based on counts V and VII that had been charged
in his indictment.
¶ 12 After taking the matter under advisement, the trial court ultimately denied petitioner’s
COI petition. Upon considering his claims within the context of Smith, the court concluded
that “[u]nder the law *** as it currently stands, the [p]etitioner has failed to meet his burden
with respect to establishing that he is, in fact, entitled to relief under the statute.”
¶ 13 II. ANALYSIS
¶ 14 The instant cause is one of many in a trending line of cases regarding the propriety of
section 2-702 petitions and the requirements for obtaining a COI, as evidenced by a string of
recent decisions by this court and its sister districts, both published and unpublished. See,
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e.g., People v. McClinton, 2018 IL App (3d) 160648; People v. Moore, 2020 IL App (1st)
190435; Smith, 2021 IL App (1st) 200984; People v. Warner, 2022 IL App (1st) 210260;
People v. Brown, 2022 IL App (4th) 220171; People v. Pettis, 2023 IL App (1st) 200448-U.
In this appeal, petitioner contends that the trial court failed to limit its consideration of his
COI petition to whether he demonstrated that he was innocent of all offenses for which he
was incarcerated and, instead, improperly considered whether he did so as to all offenses
with which he was charged. He urges that this court’s holding in Smith needs to be revisited
at this juncture, that section 2-702 limits consideration to incarcerated offenses only, and that,
accordingly, he is entitled to a COI as he has met all the necessary requirements under the
governing statute in his particular cause. However, as our current legal precedent formidably
contradicts such an assertion, we disagree.
¶ 15 For the record, we note, as do the parties, that a de novo standard of review applies in this
matter. As they recognize, while the review of the denial of a COI generally proceeds under
an abuse of discretion standard, the issue here involves the interpretation of statutory section
2-702 of the Code, and, thus, our review is de novo. See Warner, 2022 IL App (1st) 210260,
¶ 12 (citing Moore, 2020 IL App (1st) 190435, ¶ 11); accord Brown, 2022 IL App (4th)
220171, ¶ 11.
¶ 16 As is well established (and now oft-repeated in this line of cases), our primary goal in
interpreting a statute is to ascertain and give effect to the legislature’s intent, of which its
language is the best indicator. See People v. Palmer, 2021 IL 125621, ¶ 53; accord Warner,
2022 IL App (1st) 210260, ¶ 13. Briefly, we are to consider the statute as a whole and give
the words used by the legislature therein their plain and ordinary meaning, thereby ensuring
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that no part is rendered meaningless or superfluous; refusing to depart from the plain
language by reading into it unexpressed exceptions, limitations or conditions; and presuming
that the legislature did not intend absurd, inconvenient, or unjust results. See Palmer, 2021 IL
125621, ¶ 53; accord Warner, 2022 IL App (1st) 210260, ¶¶ 13-14.
¶ 17 The crux of petitioner’s appeal is that this court’s prior decision in Smith—a critical case
involving COI petitions, their contents, and the statutory requirements that must be met in
order to receive one—needs to be revisited and, in his view, reversed. We begin there.
¶ 18 In Smith, the petitioner was convicted of three counts of UUWF, which were merged, and
one count of armed habitual criminal (AHC). See Smith, 2021 IL App (1st) 200984, ¶ 3. On
appeal, his AHC conviction was affirmed, but his (merged) UUWF conviction was vacated
under the one-act, one-crime rule. See Smith, 2021 IL App (1st) 200984, ¶ 3. Later, because a
felony predicating his AHC conviction was deemed unconstitutional under Aguilar, that
conviction was also vacated. See Smith, 2021 IL App (1st) 200984, ¶ 4. Like petitioner here,
he filed for a COI, and the trial court granted his petition. See Smith, 2021 IL App (1st)
200984, ¶ 5.
¶ 19 Upon review, however, our court reversed. Our analysis began immediately with
subsection (g) of section 2-702, since we recognized that it is this portion of the statute that
“ ‘states the elements to obtain a COI.’ ” Smith, 2021 IL App (1st) 200984, ¶ 21 (quoting
Moore, 2020 IL App (1st) 190435, ¶ 20). Noting that petitioners are thus obligated to satisfy
each of these—namely, subsection (g)(1) through (g)(4)—we concluded that the petitioner in
Smith did not meet subsection (g)(3) because he did not show, as that subsection requires,
that he was “ ‘innocent of the offenses charged in the indictment or information’ or that the
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‘acts or omissions charged in the indictment or information did not constitute a felony or
misdemeanor against the State.’ ” Smith, 2021 IL App (1st) 200984, ¶ 21. This was because,
since the trial court had found him guilty of the three UUWF counts in addition to the AHC
charge, he could not make a showing that he was innocent of all the offenses charged in the
indictment. See Smith, 2021 IL App (1st) 200984, ¶ 21. The Smith petitioner strenuously
directed the court to other portions of section 2-702, specifically, subsections (b) and (h), that
refer to the ability to request a COI finding that a petitioner is innocent “ ‘of all offenses for
which he or she was incarcerated’ ” and that a court may enter a COI finding him or her
innocent “ ‘of all offenses for which he or she was incarcerated.’ ” (Emphases omitted.) See
Smith, 2021 IL App (1st) 200984, ¶ 22 (quoting 735 ILCS 5/2-702(b), (h) (West 2018)).
However, while we acknowledged his argument, we found it to be meritless. Instead, we
held, as the plain language of section 2-702(g)(3) made undeniably clear, that, in order to
obtain a COI, a petitioner must prove he is “ ‘innocent of the offenses charged in the
indictment or information,’ ” and a finding at a criminal trial that he is guilty of one or more
charges precludes the award of a COI. Smith, 2021 IL App (1st) 200984, ¶ 23 (quoting 735
ILCS 5/2-702(g)(3) (West 2018)).
¶ 20 In the instant matter, petitioner insists there is “good cause for th[is c]ourt to revisit” its
decision in Smith. He claims that Smith stands in violation of subsections (b) and (h) of
section 2-702, since those subsections refer only to offenses for which one is incarcerated, as
opposed to all offenses charged in an indictment; that Smith conflicts with our prior decisions
in McClinton and Moore; and that the dissent in Smith should be adopted instead, since its
reasoning is more indicative of the legislature’s intent.
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¶ 21 We disagree with petitioner. However, it is not because we do not welcome challenges to
case precedent. To the contrary, the establishment of legally sound, black-letter law
inherently depends on repeated challenges, for it is only when concepts are tested that what is
tried and true finally solidifies.
¶ 22 Rather, we disagree with petitioner because our reviewing courts already have revisited
Smith, several times. Significantly, this very court did so just one year ago, in Warner, 2022
IL App (1st) 210260. And, Warner, which decisively reaffirmed Smith, is directly on point
here and dispositive of petitioner’s contentions. Accordingly, we turn to that case now, as our
colleagues therein provided nothing short of an exemplary, thorough, and well-reasoned
analysis of the requirements a petitioner must meet to obtain a COI.
¶ 23 Before we even examined the facts presented in Warner, we looked at section 2-702 in
light of the same principles of statutory interpretation we outlined at the outset of our
decision herein. As we observed in Warner, section 2-702 is entitled, “[p]etition for a
certificate of innocence that the petitioner was innocent of all offenses for which he or she
was incarcerated.” 735 ILCS 5/2-702 (West 2018). Noting, however, that the phrase “ ‘for
which he or she was incarcerated’ ” was not used consistently throughout the statute, we
knew that more was required to sustain our review. (Emphasis omitted.) See Warner, 2022
IL App (1st) 210260, ¶ 16. In other words, we, in Warner, turned to an examination of the
body of the section, specifically detailing the meaning and purpose of its subsections. See
Warner, 2022 IL App (1st) 210260, ¶ 16.
¶ 24 Subsection (a) states that section 2-702 provides “innocent persons who have been
wrongly convicted of crimes in Illinois and subsequently imprisoned” with an “avenue to
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obtain a finding of innocence,” so that they may later attempt to obtain relief in our courts.
735 ILCS 5/2-702(a) (West 2018). This subsection, we noted, provides an explanation of the
statutory section and the purpose of COIs in general. See Warner, 2022 IL App (1st) 210260,
¶ 17.
¶ 25 Subsection (b) states:
“Any person convicted and subsequently imprisoned for one or more felonies by the
State of Illinois which he or she did not commit may, under the conditions hereinafter
provided, file a petition for [COI] in the circuit court of the county in which the
person was convicted. The petition shall request a certificate of innocence finding that
the petitioner was innocent of all the offenses for which he or she was incarcerated.”
(Emphasis added.) 735 ILCS 5/2-702(b) (West 2018).
This subsection sets forth who is qualified to petition for a COI and what he may request in
terms of applicable relief under the statute. See Warner, 2022 IL App (1st) 210260, ¶ 18
(citing Moore, 2020 IL App (1st) 190435, ¶ 19 (“[s]ubsection (b) of the statute explains who
may petition for a COI and what the petitioner may request”)).
¶ 26 Subsections (c) and (d), meanwhile, describe what is required to be in the contents of a
COI petition in order for the petition to be considered. See Warner, 2022 IL App (1st)
210260, ¶ 19 (citing Moore, 2020 IL App (1st) 190435, ¶ 19). This is the meat of the
petition—what the petitioner must plead in order to even obtain consideration for relief.
Subsection (c) requires that the petitioner demonstrate:
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“(1) he or she has been convicted of one or more felonies by the State of Illinois
and subsequently sentenced to a term of imprisonment, and has served all or any part
of the sentence; and
(2) his or her judgment of conviction was reversed or vacated, and the indictment
or information dismissed or, if a new trial was ordered, either he or she was found not
guilty at the new trial or he or she was not retried and the indictment or information
dismissed; or the statute, or application thereof, on which the indictment or
information was based violated the Constitution of the United States or the State of
Illinois; and
(3) his or her claim is not time barred by the provisions of subsection (i) of this
Section.” 735 ILCS 5/2-702(c) (West 2018).
And, critically, subsection (d) requires that the petition
“state facts in sufficient detail to permit the court to find that the petitioner is likely to
succeed at trial in proving that the petitioner is innocent of the offenses charged in the
indictment or information or his or her acts or omissions charged in the indictment or
information did not constitute a felony or misdemeanor against the State of Illinois,
and the petitioner did not by his or her own conduct voluntarily cause or bring about
his or her conviction.” (Emphasis added.) 735 ILCS 5/2-702(d) (West 2018).
¶ 27 Subsection (g) then provides the four elements for a successful COI petition, i.e., the
burdens petitioner must satisfy and prove, by a preponderance of the evidence, to obtain
relief under the statute. See Warner, 2022 IL App (1st) 210260, ¶ 20 (citing Moore, 2020 IL
App (1st) 190435, ¶ 21). These are:
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“(1) the petitioner was convicted of one or more felonies by the State of Illinois
and subsequently sentenced to a term of imprisonment, and has served all or any part
of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or
information dismissed or, if a new trial was ordered, either the petitioner was found
not guilty at the new trial or the petitioner was not retried and the indictment or
information dismissed; or (B) the statute, or application thereof, on which the
indictment or information was based violated the Constitution of the United States or
the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or
information or his or her acts or omissions charged in the indictment or information
did not constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring
about his or her conviction.” (Emphases added.) 735 ILCS 5/2-702(g) (West 2018).
¶ 28 Finally, subsection (h) provides the remedy and details the duties of the court. See
Warner, 2022 IL App (1st) 210260, ¶ 21. If the court finds that the petitioner has met the
pleading requirements and satisfied the appropriate burden, thereby concluding that he is
entitled to judgment, this subsection provides that the court “shall enter a [COI] finding that
the petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphasis
added.) 735 ILCS 5/2-702(h) (West 2018).
¶ 29 After quoting the language of each subsection and highlighting the two distinct phrases
used by the legislature in section 2-702—namely, “offenses for which he or she was
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incarcerated” in subsections (b) and (h) and “offenses charged in the indictment or
information” in subsections (d) and (g)(3)—our court tackled the same question presented by
petitioner here. The petitioner in Warner was charged by information with one count of
unlawful use of a weapon, one count of unlawful possession of a firearm, and six counts of
AUUW. Following a negotiated plea agreement, he pled guilty and was convicted on one
count of AUUW, with the State nol-prossing the remaining counts. After Aguilar, his AUUW
conviction was vacated. He filed a COI petition, which the trial court denied. Just as
petitioner here (and the petitioner in Smith), the Warner petitioner appealed, arguing that, in
order to successfully obtain a COI, he simply needed to prove his innocence only as to the
charges for which he was incarcerated, and not as to all the charges in the information. See
Warner, 2022 IL App (1st) 210260, ¶¶ 6-11.
¶ 30 We flatly disagreed, for various reasons. First, pursuant to our rules of statutory
interpretation, it was beyond clear that the legislature chose to include particular language in
some sections of the statute and to omit it in others. See Warner, 2022 IL App (1st) 210260,
¶ 25. This proved telling. Specifically, that it used the phrase “ ‘offenses for which he or she
was incarcerated’ ” only in subsections (b) and (h), which deal only with administrative
matters like who may petition for a COI and the remedies if the petition is successful, but
used the phrase “ ‘offenses charged in the indictment or information’ ” in subsections (d) and
(g), which deal with the substantive matters of necessary pleadings and burden requirements
for a petitioner to be successful in his relief sought, underscored a bright distinction on the
part of the legislature in formulating this statute. See Warner, 2022 IL App (1st) 210260,
¶¶ 26-27. From this, our holding was unmistakable:
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“We find the language of the statute to be clear. To obtain a certificate of
innocence, a petitioner must allege specific facts in the petition demonstrating that
they are innocent of the ‘offenses charged in the *** information’ (subsection (d)),
and prove, by a preponderance of the evidence, that they were innocent of the
‘offenses charged in the *** information’ (subsection (g)(3)). If the legislature had
intended that a petitioner was required to allege and show only that they were
innocent of the ‘offenses for which he or she was incarcerated,’ subsections (d) and
(g)(3) would contain the same language as found in subsection (b) and (h). Instead,
the legislature chose the phrase ‘offenses charged in the *** information,’
demonstrating its clear intent that a petitioner must allege and prove that they are
innocent of all of the offenses charged in the information.” Warner, 2022 IL App
(1st) 210260, ¶ 28.
Our court went on to find that this holding was consistent with Moore and Smith, both of
which likewise concluded that section 2-702 does not permit the issuance of a COI unless the
petitioner is deemed innocent of all charges in the indictment or information. See Warner,
2022 IL App (1st) 210260, ¶¶ 29-31 (citing Moore, 2020 IL App (1st) 190435, ¶ 30, and
Smith, 2021 IL App (1st) 200984, ¶ 21). Moreover, we analyzed the purpose of section 2-
702, further concluding that our interpretation was supported by a legislative intent that
affirmatively showed that the advantages a COI may bring should only be granted to a
petitioner who has demonstrated his innocence of all charges. See Warner, 2022 IL App (1st)
210260, ¶ 32. Finally, we discussed that our interpretation of section 2-702 coincided directly
with our supreme court’s holding in Palmer, 2021 IL 125621, ¶ 64. The supreme court
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focused specifically on subsection (g)(3) and highlighted that the word “offenses” in that
subsection was modified by the phrase “charged in the indictment or information,” as
opposed to the phrase “offenses for which he or she was incarcerated,” to recognize, just as
we had, that the legislature’s intent with section 2-702 was proof of the former and not
simply the latter. (Quotation marks omitted.) See Warner, 2022 IL App (1st) 210260, ¶ 29.
¶ 31 Accordingly, in Warner, we dispositively reaffirmed our prior decision in Smith. We did
so again most recently in Pettis, 2023 IL App (1st) 200448-U, and our sister districts also
adopted it in People v. Hatch, 2022 IL App (2d) 210590-U, and Brown, 2022 IL App (4th)
220171, ¶¶ 24-25 (declaring Warner, which reaffirmed Smith, to be “persuasive,” “consistent
with the purposes of the statute and avoids absurd results”).
¶ 32 We now return to the facts of the instant cause. Petitioner here was convicted of three
AUUW offenses. On direct appeal, our court rejected his insufficiency of the evidence
argument and, instead, specifically found that there was sufficient evidence to support his
finding of guilt on all the counts (IV, V, and VII). However, because only one firearm was
involved, two of convictions (counts V and VII) had to be vacated. Later, his remaining
AUUW conviction (count IV) was vacated under Aguilar. Pursuant to Smith, as reaffirmed in
Warner, to obtain a COI, he is required to prove the elements of section 2-702(g) by a
preponderance of the evidence, including subsection (g)(3), which plainly states that he must
demonstrate his innocence of all the “offenses charged in the indictment or information.”
Inherently, and as charged in his indictment, this includes counts V and VII, which have
always remained constitutionally valid AUUW offenses. Yet, he does not argue this before
us. Accordingly, because he has made no attempt to satisfy section 2-702(g)(3)—by proving
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that he was innocent of those constitutionally valid AUUW offenses with which he was
charged (and for which he was convicted with evidence sufficient beyond a reasonable
doubt), 1 as required by the statute—he is not entitled to a COI.
¶ 33 From all this, it would seem our review of the instant cause is now over, but it is not—not
quite yet. Part of petitioner’s argument that we should “revisit” Smith turns on one factual
difference he notes between his situation and that of the petitioner there: the fact that,
following the vacation of his AUUW conviction (based on count IV) under Aguilar, the State
chose to nol-pros his constitutionally valid convictions (based on counts V and VII), which
had previously been vacated under the one-act, one-crime rule on appeal. Consequently,
beyond initially urging us to find that COI petitioners must prove their innocence only as to
offenses for which they were incarcerated, contrary to Smith, petitioner further claims that,
even were we to uphold Smith, that rule does not apply to nol-prossed offenses. For support,
he insists there is a conflict between the holdings of Smith and Warner when it comes to
situations involving COI petitions and nol-prossed charges.
¶ 34 Interestingly, a panel of this very division of this district of our court noted the existence
of this distinction. We did so, however, only in a footnote of an unpublished, otherwise
distinguishable decision wherein we briefly alluded to what some, like petitioner here, could
characterize as a “debate” between Smith and Warner with respect to COIs and nol-prossed
charges. Pettis, 2023 IL App (1st) 200448-U, ¶ 39 n.2 (directing a comparison between
Smith and Warner and how each addressed nol-prossed charges). However, since that issue
Nor does he attempt to show that his acts underlying those convictions did not constitute a felony 1
or misdemeanor, as alternatively provided by the statute. 16 No. 1-22-0843
was not before us in Pettis, we rightfully chose not to express an opinion on the matter. See
Pettis, 2023 IL App (1st) 200448-U, ¶ 39 n.2.
¶ 35 With the instant cause, that time has arrived.
¶ 36 Admittedly, petitioner is correct that his case is different than Smith. The record there was
unclear as to whether the State chose to nol-pros the constitutionally valid (merged) UUWF
conviction that had been vacated for that petitioner under the one-act, one-crime rule.
However, that consideration did not matter to the Smith court, as it was not the basis for its
ultimate holding that COI petitioners must, under section 2-702, prove their innocence as to
all offenses charged in their indictments. See Smith, 2021 IL App (1st) 200984, ¶ 26 (stating
that, “[t]o be clear, the COI was inappropriate *** only because there was a finding that [the
petitioner] was guilty on a constitutionally valid charge of UUWF”). Yet, during oral
argument in that case, we asked the parties whether, hypothetically, a COI petitioner “might
have the burden of affirmatively demonstrating his innocence even on charges that were nol-
prossed by the State.” Smith, 2021 IL App (1st) 200984, ¶ 25. After input from both sides,
the Smith court chose to express its unsolicited opinion. It averred that, since it believed nol-
prossing is an abandonment of charges by the State, while petitioners must prove their
innocence as to all crimes charged, they would not have that same burden with respect to
charges that were nol-prossed since the State would not have the ability to obtain a finding of
guilt on such abandoned claims. See Smith, 2021 IL App (1st) 200984, ¶ 25 (suggesting its
belief that section 2-702 does not indicate a petitioner would have to demonstrate his
innocence of nol-prossed charges).
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¶ 37 Petitioner here has obviously picked up on that portion of Smith and clings to it as the
lifeblood of his argument, as his situation is what the Smith court was describing when it
made this comment: after his conviction on count IV was vacated under Aguilar, the State
specifically chose to nol-pros his constitutionally valid convictions on counts V and VII that
had been vacated under the one-act, one-crime rule. However, his reliance on Smith is not
helpful to him. This is because this exact question was subsequently decided in Warner. That
is, our court in Smith, somewhat regrettably, jumped the gun per se and hypothesized with
respect to the burden a petitioner has regarding nol-prossed charges while seeking a COI
under section 2-702. But the topic was only brought up at oral argument; that court was not
presented with that issue at that time in that cause, and the record has remained unclear as to
whether nol-prossing ever occurred in that case. Yes, we anticipated the question, but that is
all we did; we did not examine the effects of nol-prossing charges with respect to COIs or the
mandates of section 2-702 in any detail—factually or legally—whatsoever in Smith.
¶ 38 However, we did tackle the question of nol-prossed charges and section 2-702’s
requirements, explicitly and in detail, in Warner. Thus, any conflict that some, like petitioner,
may insist exists between our two decisions is a mischaracterization. In Smith, we alluded to
a belief we had in anticipation of a question that was not at issue, not raised, and not briefed
by any of the parties before us. In Warner, we issued a holding on that very question, as we
were finally called upon to do by the parties and only after analyzing statutory, legal, and
factual arguments properly before us.
¶ 39 The record in Warner showed that the State there had specifically nol-prossed that
petitioner’s seven remaining criminal counts upon his acceptance of a negotiated guilty plea,
18 No. 1-22-0843
under which he pled guilty to only one count of AUUW (later vacated under Aguilar). See
Warner, 2022 IL App (1st) 210260, ¶¶ 3, 6. After failing in his attempt to get us to disavow
our holding in Smith that section 2-702 required him to prove his innocence as to all offenses
charged, the Warner petitioner alternatively argued that, regardless of Smith, he should not
have that same burden with respect to charged offenses that were eventually nol-prossed.
¶ 40 We wholly disagreed. In Warner, we specifically declined to follow that portion of Smith
that hypothesized COI petitioners would not be required to prove their innocence of nol-
prossed charges. See Warner, 2022 IL App (1st) 210260, ¶ 36. We found this to be obiter
dicta—completely unnecessary to the disposition of Smith, since the issue had not been
presented in that case and, thus, not binding as authority or precedent. See Warner, 2022 IL
App (1st) 210260, ¶ 36. Moreover, we noted that this dicta turned on an unsupported leap in
logic, without more, that since the State has no ability to obtain a finding of guilt on charges
it nol-prosses, a COI petitioner should not have to prove his innocence of them. See Warner,
2022 IL App (1st) 210260, ¶ 37. Regardless of whether this might be a valid consideration,
we held in Warner that looking at the ramifications of generally nol-prossing charges was not
the proper lens with which to examine the issue.
¶ 41 Rather, because we recognized that our whole decision in Warner—again, a decision
that, unlike Smith, actually involved nol-prossed charges within the context of a section 2-
702 COI petition—was, at its crux, a matter of statutory interpretation, we found that the best
solution was to turn back to the statute itself. Consequently, we scoured the statute and noted
that section 2-702 “does not contain any language or any indication that [a COI] petitioner’s
burden of pleading and proving innocence applies only to the charges in the indictment or
19 No. 1-22-0843
information on which the State has an ability to obtain a finding of guilty.” Warner, 2022 IL
App (1st) 210260, ¶ 37. Accordingly, the dicta in Smith could not be reconciled with the
statute.
¶ 42 We further found that it also could not be reconciled with prior decisions of this court that
have already held that, even when a finding of guilt has been reversed outright on direct
appeal and the State thus cannot seek a finding of guilt, a petitioner seeking to obtain a COI
under section 2-702 must still establish his or her innocence as to all the offenses as charged
in the indictment or information by a preponderance of the evidence. See Warner, 2022 IL
App (1st) 210260, ¶ 37 (citing, e.g., People v. Terrell, 2022 IL App (1st) 192184, and People
v. Dumas, 2013 IL App (2d) 120561, ¶ 18). And, what is more, we also found that the Smith
dicta failed to recognize that subsections (d) and (g) of section 2-702, again, those sections
that specify the pleading and burden requirements of COI petitions, “do not state that a
petitioner is relieved of their burden to plead and establish their innocence of any charges in
an indictment or information that have been nol-prossed.” Warner, 2022 IL App (1st)
210260, ¶ 38. As we observed, had the legislature intended that to be the result of section 2-
702, it would have included such language; as it did not, we cannot read such an exception
into that statute. See Warner, 2022 IL App (1st) 210260, ¶ 38 (“in that a ‘petitioner’s ability
to obtain a [COI] is created solely by statute, we are not at liberty to engraft conditions not
within the purview of the statute’ ” (quoting Terrell, 2022 IL App (1st) 192184, ¶ 40)); see
also Palmer, 2021 IL 125621, ¶ 53 (we cannot read into any statute exceptions, limitations,
or conditions the legislature did not express); People v. Woodard, 175 Ill. 2d 435, 443 (1997)
(same).
20 No. 1-22-0843
¶ 43 Accordingly, after a thorough discussion, we held that, to obtain a COI under section 2-
702, a petitioner is required to allege and prove that he is innocent of all charges in his
information or indictment, including those charges that were nol-prossed. See Warner, 2022
IL App (1st) 210260, ¶¶ 39, 44. Significantly, this same issue arose soon after in our sister
district, and that court reaffirmed not only that section 2-702 mandates that a petitioner prove
his innocence as to all offenses charged in his information or indictment (our holding in
Smith), but also that its “all offenses charged” statutory language included offenses charged
that were later nol-prossed (our holding in Warner). See Brown, 2022 IL App (4th) 220171,
¶¶ 14, 29 (stating, after citing Warner at length, “we reach the same conclusion as the court
in Warner” that the “defendants here were required to demonstrate their innocence of all
charged offenses, including the ones the State nol-prossed”).
¶ 44 Contrary to being at odds, then, Smith and Warner work together to dispose of the instant
cause. Under section 2-702(g)(3), as interpreted by our court in those two cases, petitioner
here, in order to obtain a COI, was required to allege and prove by a preponderance of the
evidence that he is innocent of all charges in his indictment, including the two
constitutionally valid charges of AUUW based on counts V and VII that the State nol-
prossed following the vacation of his AUUW conviction under Aguilar that had been based
on count IV. To this day, not only has he made no such showing, he has not even attempted
to allege his innocence with respect to those charges within the context of his COI petition.
In fact, we note again that he was found guilty of all three AUUW charges at trial. On appeal,
he challenged the sufficiency of the evidence used to convict him on those charges, and this
court struck down his challenge, holding that the evidence used to convict him on all three
21 No. 1-22-0843
was, indeed, sufficient and, thus, affirming his guilt on all three of those charges that were in
his indictment. Without alleging anything with respect to his innocence of counts V and
VII—these indicted, constitutionally-valid, nol-prossed charges—in the current context,
petitioner cannot meet the requirements of section 2-702(g)(3) to obtain a COI. See Warner,
2022 IL App (1st) 210260, ¶¶ 39, 44; Brown, 2022 IL App (4th) 220171, ¶¶ 14, 29; see also
People v. Rodriguez, 2021 IL App (1st) 200173, ¶ 59 (affirming denial of COI after finding
that the petitioner failed to prove himself innocent of the offenses charged, all of which had
been nol-prossed by agreed order).
¶ 45 With this holding now solidified, we find no merit to the remaining claims petitioner
asserts on appeal as a basis for overturning Smith. As we have clearly shown, and in direct
contradistinction to his main argument, section 2-702 does not award COIs to petitioners who
merely show their innocence only as to the offenses for which they were incarcerated. Smith
and its progeny, specifically Warner, explicitly denounce such an interpretation and hold
instead that the statute requires a showing of innocence as to all offenses charged. Those
cases remain good law. Nor do we find his claim that Smith conflicts with our prior decisions
in McClinton and Moore to be viable. Those cases are completely distinguishable from the
instant one. Briefly, McClinton focused on a different statutory element of section 2-
702(g)—namely, subsection (g)(4)—and whether a petitioner brought about her own
conviction under that portion of the statute. See McClinton, 2018 IL App (3d) 160648, ¶ 18.
There is no dispute here that petitioner satisfied this element; rather, as he himself admits in
his brief, the issue before us is whether he satisfied the element found in subsection (g)(3)
regarding a showing of innocence as to all offenses charged, and not what is required in
22 No. 1-22-0843
subsection (g)(4). Additionally, Moore did discuss, as petitioner notes, proving innocence as
to offenses for which one was incarcerated. However, that decision was addressing a
situation where a petitioner was wrongly incarcerated for one offense and properly
incarcerated for another. Moore examined the language of section 2-702(h) (not section 2-
702(g), as here), which refers to offenses for which one is incarcerated to determine whether
it would permit the grant of a partial COI; it held that section did not. See Moore, 2020 IL
App (1st) 190435, ¶ 35. 2 Regardless, Smith does not conflict with McClinton or Moore. They
involved different issues and different subsections of the statute—issues and subsections that
were not relevant in Smith and are not relevant to petitioner’s cause. Moreover, it is Warner
that ultimately governs here.
¶ 46 Accordingly, to obtain a COI under section 2-702, petitioner was required to prove his
innocence by a preponderance of the evidence of all offenses charged in his indictment,
including those charges that were later nol-prossed by the State. He did not satisfy this
statutory burden. Therefore, he is not entitled to a COI.
¶ 47 III. CONCLUSION
¶ 48 For all the foregoing reasons, the judgment of the trial court is affirmed.
¶ 49 Affirmed.
2 Interestingly, our court even in Moore commented specifically with respect to section 2- 702(g)(3) as follows: “A petitioner who is ‘innocent of the offenses charged in the indictment or information’ [citation] is one who is innocent of all charges.” (Emphasis in original.) Moore, 2020 IL App (1st) 190435, ¶ 30 (quoting 735 ILCS 5/2-702(g)(3) (West 2018)). 23 No. 1-22-0843
People v. Hilton, 2023 IL App (1st) 220843
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 06-CR- 3618; the Hon. Erica Reddick, Judge, presiding.
Attorneys Joel A. Flaxman and Kenneth N. Flaxman, of Kenneth N. for Flaxman P.C., of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Amy McGowan, and Paul E. Wojcicki, Assistant Appellee: State’s Attorneys, of counsel), for the People.