2024 IL App (3d) 210330
Opinion filed April 18, 2024 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal Nos. 3-21-0330 & 3-21-0331 v. ) cons. ) Circuit Nos. 12-CF-5 & 12-CF-627 JEVON D. LESLEY, ) ) Honorable Defendant-Appellant. ) Carmen J. Goodman, ) Judge, Presiding. ____________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices Hettel and Peterson concurred in the judgment and opinion. ____________________________________________________________________________
OPINION
¶1 In this consolidated appeal, petitioner, Jevon D. Lesley, appeals from the circuit court’s
order denying his combined petition for a certificate of innocence (COI) pursuant to section 2-702
of the Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2020)). For the following reasons,
we affirm in part, vacate in part, and remand for further proceedings.
¶2 I. BACKGROUND
¶3 We summarize the facts relevant to this appeal, turning first to the underlying criminal
cases against petitioner and then discussing the COI proceedings. ¶4 A. Criminal Proceedings
¶5 On January 19, 2012, in case No. 12-CF-5, petitioner was charged, along with a
codefendant, in a three-count indictment. Counts I and II alleged that, on January 1, 2012,
petitioner committed the offenses of aggravated unlawful use of a weapon (AUUW), Class 4
felonies, in that he knowingly carried on or about his person two uncased, loaded, and immediately
accessible firearms not on his own land or in his own abode or fixed place of business in violation
of section 24-1.6(a)(2), (a)(3)(A) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-
1.6(a)(2), (a)(3)(A) (West 2012)). Count III of the indictment, for unlawful possession of a
controlled substance, is irrelevant to our analysis as it was only against the codefendant.
¶6 On April 5, 2012 (while on bond in case No. 12-CF-5), petitioner was charged in a two-
count indictment in case No. 12-CF-627. Count I alleged that, on March 17, 2012, petitioner
committed the offense of unlawful possession of a firearm by a street gang member, a Class 2
felony, in that petitioner, a street gang member, knowingly carried on his person a firearm and
firearm ammunition not inside his own abode or fixed place of business and had not been issued a
currently valid firearm owner’s identification card in violation of section 24-1.8(a)(1) of the
Criminal Code (id. § 24-1.8(a)(1)). Count II alleged that, on March 17, 2012, petitioner committed
the offense of AUUW, a Class 4 felony, in that petitioner knowingly carried on or about his person
an uncased, loaded, and immediately accessible firearm not on his own land or in his own abode
or fixed place of business in violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code (id.
§ 24-1.6(a)(1), (a)(3)(A)).
¶7 On August 9, 2012, petitioner pled guilty in a combined plea agreement for both cases
pursuant to which he pled guilty to one count of AUUW in each case and the remaining charges
were nol-prossed. Specifically, in case No. 12-CF-5, petitioner pled guilty to count I for AUUW;
2 in exchange, count II for AUUW was nol-prossed. In case No. 12-CF-627, petitioner pled guilty
to count II for AUUW; in exchange, count I for unlawful possession of a firearm by a street gang
member was nol-prossed. The circuit court sentenced petitioner to consecutive one-year sentences
with credit for time served in custody.
¶8 Subsequently, in People v. Aguilar, 2013 IL 112116, and People v. Mosley, 2015 IL
115872, our supreme court held that the subsections of the AUUW statute pursuant to which
petitioner was charged and pled guilty were unconstitutional. However, the constitutionality of the
nol-prossed charge (in case No. 12-CF-627) of unlawful possession of a firearm by a street gang
member was upheld in People v. Villareal, 2023 IL 127318.
¶9 On September 30, 2019, petitioner filed, as a self-represented litigant, a petition for relief
from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)),
requesting that his AUUW convictions in both cases be vacated as unconstitutional and void
ab initio. Following the October 11, 2019, hearing on the petition where the State agreed that the
convictions should be vacated, the circuit court entered an order vacating the convictions as
unconstitutional and void ab initio.
¶ 10 B. COI Proceedings
¶ 11 On March 19, 2021, petitioner filed, as a self-represented litigant, a combined petition for
a COI in both cases pursuant to section 2-702 of the Code. Petitioner alleged that, in each case, he
had been convicted of a felony, was sentenced to a term of imprisonment, and had served his
sentence. He further alleged that the convictions had been vacated as unconstitutional and that he
had not by his own conduct voluntarily caused or brought about the convictions. In support,
petitioner attached the portions of the indictments that included the AUUW charges to which he
3 pled guilty, the judgment and sentencing order in each case, his section 2-1401 petition, and the
docket entries reflecting the vacated convictions.
¶ 12 The State objected to the petition on two grounds. First, the State opposed the COI on the
basis that petitioner failed to demonstrate his innocence of all charges in the indictment, including
the nol-prossed charge for the constitutionally valid offense of unlawful possession of a firearm
by a street gang member. Second, the State argued that petitioner’s guilty pleas precluded his
ability to establish that he did not voluntarily cause or bring about his conviction. According to the
State, the pleas in both cases “were taken together so should be considered as a whole,” and by
pleading guilty in exchange for the benefit of dismissal of the higher-class felony, petitioner
brought about his own conviction.
¶ 13 On July 28, 2021, following argument, the circuit court denied the petition for a COI.
Noting that, by pleading guilty to one count, petitioner received the benefit of the dismissal of the
other count, the court reasoned, “So you received a benefit. Now you want to go back because you
received this particular benefit and basically sue the State. Because a certificate is not an avenue
for the defendant who receives [a] benefit.” The court concluded that, under the particular
circumstances, petitioner failed to prove the allegations set forth in his petition by a preponderance
of the evidence and thus denied petitioner’s request for a COI.
¶ 14 Petitioner filed separate timely notices of appeal in both cases; we later granted petitioner’s
unopposed motion to consolidate the appeals. Thereafter, on April 6, 2022, we also granted
petitioner’s unopposed motion to stay the appeal pending the supreme court’s review of People v.
Washington, 2021 IL App (1st) 163024, appeal allowed, No. 127952 (Ill. Mar. 30, 2022). On July
18, 2023, the supreme court issued its decision in Washington, holding that a guilty plea does not
categorically bar the ability to obtain a COI under section 2-702. People v. Washington, 2023 IL
4 127952. We subsequently granted petitioner’s unopposed motion to vacate the stay, and briefing
and oral argument ensued.
¶ 15 II. ANALYSIS
¶ 16 On appeal, petitioner argues that the circuit court erred in denying his petition because he
established all requisite elements for issuance of a COI. See 735 ILCS 5/2-702 (West 2020). The
State disputes that petitioner satisfied subsections (g)(3) and (g)(4) of the statute, requiring,
respectively, that “the petitioner is innocent of the offenses charged in the indictment or
information” (id. § 2-702(g)(3)), and that “the petitioner did not by his or her own conduct
voluntarily cause or bring about his or her conviction” (id.§ 2-702(g)(4)). For the reasons set forth
below, we hold that petitioner met his burden under the COI statute in case No. 12-CF-5 but failed
to meet his burden in case No. 12-CF-627. Accordingly, we affirm in part, vacate in part, and
remand for issuance of a COI in case No. 12-CF-5.
¶ 17 Initially, we note the split in authority regarding the appropriate standard—abuse of
discretion or manifest weight of the evidence—to be applied in reviewing a ruling on a petition for
a COI. See Washington, 2023 IL 127952, ¶ 47 (collecting cases). Where the issue involves a
question of statutory interpretation, however, de novo review is appropriate. See People v.
McClinton, 2018 IL App (3d) 160648, ¶ 13; accord People v. Hilton, 2023 IL App (1st) 220843,
¶ 15 (collecting cases and noting that, “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”). Here, the parties’ arguments require us to
interpret the COI statute. Therefore, we apply the de novo standard of review. See People v. Brown,
2022 IL App (4th) 220171, ¶ 11. To the extent our resolution of whether petitioner satisfied
subsection (g)(4) extends beyond statutory interpretation, we note that the result would be the same
5 under any standard of review. We review the circuit court’s judgment, not its reasoning, and we
may affirm the judgment on any basis in the record. Id. ¶ 9.
¶ 18 Our primary goal in interpreting a statute is to ascertain and give effect to the legislature’s
intent, which is best indicated by the plain and ordinary meaning of the statutory language. People
v. Palmer, 2021 IL 125621, ¶ 53. We must consider the statute as a whole and cannot depart from
the plain language and meaning of the statute by reading into it exceptions, limitations, or
conditions that the legislature did not express. Hilton, 2023 IL App (1st) 220843, ¶ 16. We may
consider “the purpose of the statute, the problems to be remedied, and the consequences of
interpreting the statute one way or another.” Palmer, 2021 IL 125621, ¶ 53. We presume that the
legislature did not intend absurd, inconvenient, or unjust results. Id.
¶ 19 With these principles in mind, we turn to the parties’ arguments.
¶ 20 A. Subsection (g)(3)
¶ 21 With respect to whether petitioner met his burden under subsection (g)(3), the central issue
is whether petitioner was required to establish his innocence of the nol-prossed charges in addition
to his innocence of the offenses for which he was incarcerated. According to petitioner, he was
only required to show his innocence of the offenses for which he was incarcerated (the
unconstitutional AUUW offenses), not the charges nol-prossed pursuant to the plea agreement (the
unconstitutional AUUW charge and the valid unlawful possession of a firearm by a street gang
member charge).
¶ 22 The State counters that the plain language of subsection (g)(3) required petitioner to prove
his innocence of all offenses charged in the indictment. And, according to the State, because this
was a combined plea agreement, failure to show innocence of the valid, nol-prossed charge for
unlawful possession of a firearm by a street gang member in case No. 12-CF-627 precluded a COI
6 in both cases. Petitioner maintains that the State forfeited the latter portion of the argument by
failing to raise it in the circuit court. However, the record belies this contention. In objecting to the
COI petition and arguing that petitioner was required to demonstrate his innocence of the nol-
prossed charges, the State argued that “these pleas were taken together so should be considered as
a whole.” We thus address the merits of the argument.
¶ 23 To place the parties’ positions in context, we outline the relevant portions of the COI
statute. The title of the COI statute is “Petition for a certificate of innocence that the petitioner was
innocent of all offenses for which he or she was incarcerated” (emphasis added) (735 ILCS 5/2-
702 (West 2020)), and its purpose—to provide the wrongly incarcerated with an avenue to obtain
relief in the Court of Claims—is detailed as follows:
“The General Assembly finds and declares that innocent persons who have been wrongly
convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking
legal redress due to a variety of substantive and technical obstacles in the law and that such
persons should have an available avenue to obtain a finding of innocence so that they may
obtain relief through a petition in the Court of Claims. The General Assembly further finds
misleading the current legal nomenclature which compels an innocent person to seek a
pardon for being wrongfully incarcerated. It is the intent of the General Assembly that the
court, in exercising its discretion as permitted by law regarding the weight and
admissibility of evidence submitted pursuant to this Section, shall, in the interest of justice,
give due consideration to difficulties of proof caused by the passage of time, the death or
unavailability of witnesses, the destruction of evidence or other factors not caused by such
persons or those acting on their behalf.” Id. § 2-702(a).
¶ 24 The statute identifies who may petition for a COI:
7 “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 certificate of innocence 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 offenses for which he or she was incarcerated.” (Emphasis
added.) Id. § 2-702(b).
¶ 25 The supporting material that must be attached to the COI petition includes documentation
demonstrating that the petitioner’s
“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.” Id. § 2-702(c)(2).
In addition, the petition
“shall 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.) Id. § 2-702(d).
In any hearing on a request for a COI, “the court may take judicial notice of prior sworn testimony
or evidence admitted in the criminal proceedings related to the convictions which resulted in the
8 alleged wrongful incarceration, if the petitioner was either represented by counsel at such prior
proceedings or the right to counsel was knowingly waived.” Id. § 2-702(f).
¶ 26 Subsection (g) sets forth four elements that a petitioner must prove by a preponderance of
the evidence to obtain a COI:
“(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;[ 1] and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about
his or her conviction.” (Emphasis added.) Id. § 2-702(g).
¶ 27 If the court finds that a petitioner is entitled to judgment, the court “shall enter a certificate
of innocence finding that the petitioner was innocent of all offenses for which he or she was
incarcerated.” (Emphasis added.) Id. § 2-702(h). Finally, subsection (i) states that the petition
1 Petitioner does not rely upon the second part of subsection (g)(3)—that the “acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State.” 735 ILCS 5/2-702(g)(3) (West 2020). Thus, we frame our discussion around the first part of subsection (g)(3)— that the petitioner is “innocent of the offenses charged in the indictment or information.” Id. 9 must be filed within two years after “the dismissal of an indictment or information or acquittal.”
(Emphasis added.) Id. § 2-702(i).
¶ 28 Relying on the title of the statute and the subsections that reference “all offenses for which
[the petitioner] was incarcerated,” petitioner argues that he was not required to demonstrate his
innocence of the nol-prossed charges. In response, relying on the statutory subsections that
reference “the offenses charged in the indictment,” the State argues that the legislature intended
that a petitioner must establish his innocence of all charged offenses, even charges nol-prossed
pursuant to a plea agreement. In reviewing the plain language of section 2-702 and applying
principles of statutory construction, we agree with the State, as have other courts squarely
presented with the issue. See Brown, 2022 IL App (4th) 220171, ¶ 29; People v. Warner, 2022 IL
App (1st) 210260, ¶ 42.
¶ 29 By including certain language in one section of a statute but omitting the language in
another section of the same statute, the legislature is presumed to have acted purposely and
intended different meanings and results. Warner, 2022 IL App (1st) 210260, ¶ 25. While the
statutory title and subsections (b) and (h) use the phrase “offenses for which [the petitioner] was
incarcerated,” the title of a statutory section is not controlling (see Brown, 2022 IL App (4th)
220171, ¶ 15), and subsections (b) and (h) relate to who may petition for a COI and the remedies
in the event a COI is awarded (see Warner, 2022 IL App (1st) 210260, ¶ 26). In contrast,
subsections (d) and (g), using the phrase “offenses charged in the indictment,” set forth the specific
pleading and burden requirements that must be met to obtain a COI. Id. ¶ 27; Brown, 2022 IL App
(4th) 220171, ¶ 24. Namely, a petitioner must plead specific facts in the petition demonstrating
innocence of the “offenses charged in the indictment” (735 ILCS 5/2-702(d) (West 2020)), and
10 meet the burden of proving, by a preponderance of the evidence, innocence of the “offenses
charged in the indictment” (id. § 2-702(g)(3)). Warner, 2022 IL App (1st) 210260, ¶ 28.
¶ 30 In discerning the legislative intent underlying this distinct language, the court in Warner
explained, “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 subsections (b) and (h).” Id. Instead, the
legislature included the phrase “offenses charged in the indictment,” reflecting its intent that a
petitioner must allege and prove innocence of all offenses charged in the indictment. Id. The court
in Brown agreed.
“The plain meaning of that language [in subsections (d) and (g)(3)] is that petitioners must
demonstrate their innocence of all charged offenses, not just the ones for which they were
convicted and incarcerated. Although other subsections of the statute use different
language, such subsections do not specify the pleading and burden requirements for
obtaining a certificate of innocence.” Brown, 2022 IL App (4th) 220171, ¶ 24.
Noting that this interpretation is consistent with the legislative intent—to provide the wrongly
incarcerated with an avenue to obtain relief in the Court of Claims—and avoids absurd results, the
court in Brown further observed that “[w]e doubt the legislature envisioned compensating people
who could have been lawfully imprisoned for more serious offenses but who happened to plead
guilty to a lesser offense that was later recognized to be void ab initio.” Id. ¶ 25.
¶ 31 Accordingly, in both Brown and Warner, where the petitioners pled guilty to later vacated
AUUW offenses in exchange for the dismissal of other charges, the courts held that the petitioners
were not entitled to a COI given their failure to prove their innocence of valid dismissed charges.
See Brown, 2022 IL App (4th) 220171, ¶¶ 3-6, 29; Warner, 2022 IL App (1st) 210260, ¶¶ 2-6, 28;
11 see also Hilton, 2023 IL App (1st) 220843, ¶¶ 45-46 (reaffirming the foregoing principles after an
extensive review of the relevant jurisprudence and holding that the petitioner was required to prove
his innocence of all charges in the indictment, including two constitutionally valid charges of
AUUW that the State nol-prossed after his AUUW conviction was vacated pursuant to Aguilar).
¶ 32 Moreover, as noted in Warner, the holding that a petitioner must establish innocence of all
charged offenses is consistent with our supreme court’s decision in Palmer and with prior appellate
decisions interpreting subsection (g)(3) in different procedural contexts. Warner, 2022 IL App
(1st) 210260, ¶ 29 (citing Palmer, 2021 IL 125621; People v. Smith, 2021 IL App (1st) 200984;
People v. Moore, 2020 IL App (1st) 190435). In Palmer, the petitioner sought a COI after his first
degree murder conviction was vacated based upon newly discovered forensic evidence. Palmer,
2021 IL 125621, ¶¶ 34, 37. The supreme court rejected the State’s argument that the petitioner was
required to prove himself innocent of being an accomplice to the murder—a theory that was never
charged. Id. ¶ 68. Considering the plain language of the statute, the court reasoned that, because
the word “offenses” in subsection (g)(3) is modified by the phrase “charged in the indictment or
information” (735 ILCS 5/2-702(g)(3)(West 2018)), the legislature intended that “a petitioner
establish his or her innocence of the offense on the factual basis charged in the indictment or
information.” (Emphasis in original.) Id. ¶ 64.
¶ 33 Both Smith and Moore likewise relied upon the plain language of the COI statute in holding
that subsection (g)(3) requires a petitioner to show innocence of the offenses charged in the
indictment. In Smith, the petitioner’s merged unlawful use of a weapon by a felon (UUWF)
conviction was vacated on appeal under the one-act, one-crime doctrine, where the UUWF
conviction and the petitioner’s armed habitual criminal (AHC) conviction stemmed from the same
physical act of unlawfully possessing the same firearm. Smith, 2021 IL App (1st) 200984, ¶ 3.
12 Subsequently, however, the AHC conviction was also vacated after one of the felonies predicating
the AHC conviction (an AUUW conviction) was deemed unconstitutional pursuant to Aguilar. Id.
¶ 4. The appellate court, with one justice dissenting, reversed the COI award on grounds that the
petitioner had been found guilty of the constitutionally valid UUWF charges, in addition to the
vacated AHC conviction, and therefore failed to show that he was innocent of the offenses charged
in the indictment, as required by subsection (g)(3). Id. ¶¶ 21-23. In doing so, the court rejected the
petitioner’s reliance upon subsections (b) and (h) for the proposition that a petitioner must only
show innocence of the offenses for which a petitioner was incarcerated. Id. ¶¶ 22-23. While
recognizing that the petitioner served more time than he would have had he been sentenced only
on the valid charges, the court noted its inability to rewrite the statute to warrant an award of a
COI. Id. ¶ 29.
¶ 34 Similar reasoning was employed in Moore, where the court held that the plain language of
section 2-702 does not authorize a COI when the petitioner was properly incarcerated for one
conviction though improperly incarcerated for another conviction. Moore, 2020 IL App (1st)
190435, ¶ 35. Following trial in Moore, the petitioner was convicted of four offenses, including
AHC; however, the AHC conviction was later vacated after one of the predicate felonies (an
AUUW conviction) was deemed unconstitutional pursuant to Aguilar. Id. ¶ 1. In reversing the
award of a COI for the AHC conviction, the court held that the plain language of section 2-702
“does not permit the issuance of a COI unless the petitioner is deemed innocent of all charges in
the indictment for which the petitioner was convicted.” (Emphasis in original.) Id. ¶ 3. The court
recognized that the petitioner spent more time in prison than he should have given the lengthier
sentence for AHC but noted that, while the petitioner may have remedies beyond section 2-702,
13 the plain language of the statute precluded a COI, and the court could not “drastically rewrite the
language to find a result we prefer.” Id. ¶¶ 41-42.
¶ 35 Notwithstanding the body of case law discussed above, petitioner urges that we instead be
guided by dicta set forth by the court in Smith and this court’s decision in McClinton. Regarding
Smith, following the holding discussed above—that the guilty finding at the criminal trial as to
certain charges precluded the petitioner’s ability to demonstrate his innocence of the offenses
charged in the indictment as required by subsection (g)(3)—the court proceeded to reject “the
State’s suggestion, when questioned by the panel, that to be eligible for a COI, a 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. Petitioner relies upon this language
in Smith to the exclusion of the court’s holding.
¶ 36 Indeed, this obiter dicta in Smith has been expressly disavowed on several grounds. See
Warner, 2022 IL App (1st) 210260, ¶¶ 36-38; accord Hilton, 2023 IL App (1st) 220843, ¶¶ 36-44.
First, section 2-702 “does not contain any language or any indication that the petitioner’s burden
of pleading and proving innocence applies only to the charges in the indictment or information on
which the State has an ability to obtain a finding of guilty.” Warner, 2022 IL App (1st) 210260,
¶ 37. Second, the Smith dicta conflicts with prior holdings that, where a guilty finding had been
reversed on direct appeal for insufficiency of the evidence, the COI petitioner was still required to
establish innocence as to the charged offense. Id. (citing People v. Terrell, 2022 IL App (1st)
192184, ¶ 40; People v. Dumas, 2013 IL App (2d) 120561, ¶ 18). And third, since subsections (d)
and (g)(3) do not state that a petitioner is relieved of the burden to plead and establish innocence
of any nol-prossed charges, to hold otherwise would be akin to improperly reading into the statute
an unexpressed limitation. Id. ¶ 38. We agree, as the plain language of the COI statute is that
14 petitioners must demonstrate their innocence of the charged offenses; there is no exception in the
statute for nol-prossed charges. Accordingly, we too disagree with the dicta in Smith.
¶ 37 With respect to this court’s decision in McClinton, petitioner’s reliance on the case is
misplaced. In McClinton, the petitioner was found guilty of AUUW following trial, but her
conviction was subsequently vacated pursuant to Aguilar. McClinton, 2018 IL App (3d) 160648,
¶¶ 5-6. Although the petitioner was charged with other offenses (bringing a firearm into a penal
institution and bringing cannabis into a penal institution), the State nol-prossed these charges. Id.
¶ 6. The trial court denied the petition for a COI on the basis that a declaration as to the statute’s
unconstitutionality did not mean that the petitioner was innocent. Id. ¶ 7.
¶ 38 The appellate court reversed, rejecting the State’s argument that the petitioner failed to
prove that she did not voluntarily cause or bring about her conviction. Id. ¶¶ 18-19. The court held
that the petitioner met the requirements of the COI statute, including that “her acts charged in the
indictment of which she was convicted and for which she was incarcerated did not constitute a
felony or misdemeanor against the state because the charge was based on a statute later held
unconstitutional,” and that the petitioner did not “intentionally cause or bring about her conviction”
because the statute that criminalized her actions was void ab initio. Id. ¶¶ 20-22. The court did not
consider the nol-prossed charges in the analysis and noted, in its discussion of section 2-702, that
subsection (b) “states the limits of which offenses we consider in evaluating whether McClinton
is entitled to a certificate of innocence” and thus, “[t]he only crime at issue in the instant case is
the unconstitutional AUUW conviction.” Id. ¶ 15.
¶ 39 McClinton is not determinative here, as the disputed issue as framed in McClinton only
involved subsection (g)(4)—whether the petitioner voluntarily caused or brought about her
conviction, not subsection (g)(3). Nothing in McClinton purported to resolve whether a petitioner
15 must prove innocence of charges that were nol-prossed as part of a plea agreement. See Brown,
2022 IL App (4th) 220171, ¶ 26 (“[T]he disputed issue on appeal in McClinton concerned statutory
element four: whether McClinton brought about her own conviction. [Citation.] That issue is
distinct from our analysis of element three. Thus, we do not find McClinton instructive as to
whether defendants here must prove their innocence of charges that were nol-prossed as part of
their plea agreements.”); accord Hilton, 2023 IL App (1st) 220843, ¶ 45 (McClinton was
“completely distinguishable” because it focused on subsection (g)(4), not subsection (g)(3)).
¶ 40 Finally, petitioner argues that it would be inconsistent with basic tort law to require a
petitioner to establish innocence of dismissed charges for which he was not incarcerated and for
which he does not seek relief. However, as the State observes, a valid dismissed charge is relevant
to the issue of whether the petitioner was injured. Regardless, as indicated earlier, we simply are
not free to read an exception for dismissed charges into the statutory requirement that a petitioner
must demonstrate his innocence of the offenses charged in the indictment. See Terrell, 2022 IL
App (1st) 192184, ¶ 40 (COI statutory scheme did not permit court to engraft a petitioner’s
“presumption of innocence” in determining whether statutory prerequisites satisfied).
¶ 41 Accordingly, the plain language of section 2-702 requires a petitioner to demonstrate his
innocence of the offenses charged in the indictment, including charges nol-prossed pursuant to a
plea agreement, and not just the offenses for which the petitioner was incarcerated. Thus, in case
No. 12-CF-5, where both charged offenses against petitioner were for violations of a portion of
the AUUW statute later held unconstitutional, petitioner met his burden of demonstrating
innocence of the offenses charged in the indictment (and that the acts charged did not constitute a
felony or misdemeanor against the State (see McClinton, 2018 IL App (3d) 160648, ¶ 21)), as
required by subsection (g)(3). However, in case No. 12-CF-627, while one of the charged offenses
16 was for violation of a portion of the AUUW statute later held unconstitutional, the other charged
offense was for unlawful possession of a firearm by a street gang member—the constitutionality
of which was later upheld. Petitioner never attempted to meet his burden of demonstrating
innocence of this valid nol-prossed charge. Where petitioner did not allege anything with respect
to his innocence of this charge, petitioner did not meet his burden under subsection (g)(3) in case
No. 12-CF-627. See Brown, 2022 IL App (4th) 220171, ¶ 29 (“Because defendants made no
attempt to demonstrate their innocence of all charged offenses, the trial court properly denied their
petitions for [COI].”); Warner, 2022 IL App (1st) 210260, ¶ 44 (“[P]etitioner provided allegations
to support his innocence only as to the two [unconstitutional] AUUW counts ***. He did not
provide the circuit court with any pleading, evidence, or even argument as to his innocence as to
the other six charges in the information.”).
¶ 42 Contrary to the State’s position, however, failure to show innocence of the valid, nol-
prossed charge for unlawful possession of a firearm by a street gang member in case No. 12-CF-
627 did not preclude a COI in case No. 12-CF-5. The State maintains that the plea agreement was
a “package agreement” whereby petitioner’s combined plea to the two void offenses secured a
lower total sentence than the mandatory minimum for the valid charge of unlawful possession of
a firearm by a street gang member. As such, the State contends that “offenses charged in the
indictment” as used in subsections (d) and (g)(3) necessarily refers to the offenses charged in both
cases. However, the State’s argument finds no support in the plain language of section 2-702.
¶ 43 As petitioner observes, subsection (g)(3) refers to “the indictment,” not any indictment.
Since “the” is a restrictive term (see Sibenaller v. Milschewski, 379 Ill. App. 3d 717, 722 (2008)),
its use in subsection (g)(3) reflects that the only indictment to be considered is the indictment that
charged the now-vacated conviction. Moreover, a combined plea agreement does not, and cannot,
17 have the effect of creating a combined indictment for separate offenses. See 725 ILCS 5/111-4(a)
(West 2022) (“Two or more offenses may be charged in the same indictment, information or
complaint in a separate count for each offense if the offenses charged, whether felonies or
misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same
comprehensive transaction.”).
¶ 44 We further observe that requiring a petitioner to demonstrate his innocence of nol-prossed
charges stemming from separate indictments resolved in a combined plea agreement would lead
to scenarios that the legislature could not have intended. Indeed, nothing in section 2-702 supports
expanding the innocence proof to combined pleas that might take place before different judges, in
separate courtrooms, on different days, or even in different counties. We thus decline to read the
statute in the manner suggested by the State.
¶ 45 In sum, petitioner failed to meet his burden under subsection (g)(3) of demonstrating
innocence of the nol-prossed offense charged in the indictment in case No. 12-CF-627 (unlawful
possession of a firearm by a street gang member) and therefore was not entitled to a COI in that
case. However, petitioner met this burden in case No. 12-CF-5. Accordingly, with respect to
whether petitioner was entitled to a COI in that case No. 12-CF-5, we must turn to the second issue
on appeal—whether petitioner met his burden under subsection (g)(4) of the COI statute.
¶ 46 B. Subsection (g)(4)
¶ 47 Petitioner also was required to establish that he did not voluntarily cause or bring about his
conviction under subsection (g)(4). Petitioner argues that, given our supreme court’s holding in
Washington, the circuit court’s decision should be reversed outright since it relied upon the fact
that petitioner pled guilty in denying the COI. The State responds that the particular circumstances
of this case—where petitioner pled guilty to the AUUW Class 2 felonies in exchange for the
18 dismissal of another AUUW charge and the valid Class 2 felony of unlawful possession of a
firearm by a street gang member—which carried a higher sentence—demonstrate that petitioner
voluntarily caused or brought about his conviction. We disagree.
¶ 48 Initially, we have already rejected the State’s argument that we must consider both cases
in determining whether petitioner satisfied subsection (g)(3). The only case at issue for purposes
of determining whether petitioner satisfied subsection (g)(4) is case No. 12-CF-5, where both
charges against petitioner were unconstitutional AUUW offenses. Moreover, the State’s argument
is not persuasive under the rationale set forth in Washington and this court’s decision in McClinton.
¶ 49 In Washington, our supreme court held that a guilty plea does not categorically preclude a
COI. Washington, 2023 IL 127952, ¶ 62. Rather, voluntariness, for purposes of establishing the
statutory requirement that a petitioner did not by his own conduct voluntarily cause or bring about
his conviction, is “to be determined on a case-by-case basis considering the totality of the
circumstances.” Id. In Washington, the unrebutted evidence established that detectives coerced the
petitioner’s confession through abusive conduct. Id. ¶ 57. After the petitioner’s codefendant was
sentenced to 75 years’ imprisonment, the petitioner chose to accept a plea offer with a 25-year
sentence to have a life to salvage after his release. Id. ¶ 59. Under those facts, the court held that
the petitioner could not be found to have voluntarily caused or brought about his conviction. Id.
¶¶ 60-62.
¶ 50 While the alleged facts in the case sub judice are entirely distinct from Washington, the
circumstances here lead to the same holding. That is, petitioner was convicted under a statute later
held unconstitutional. His conduct in pleading guilty to charges based on an unconstitutional
statute cannot be said to have voluntarily caused or brought about this conviction. Indeed, in
McClinton, this court considered similar circumstances in rejecting the argument that the petitioner
19 voluntarily caused or brought about her conviction under the unconstitutional AUUW statute. See
McClinton, 2018 IL App (3d) 160648, ¶¶ 20-22.
“When a statute is held to be facially unconstitutional, as is the situation in this case, the
statute is said to be void ab initio or void from the beginning. [Citation.] If the AUUW
statute is void from the beginning, McClinton’s conduct *** would not have voluntarily
brought about a conviction under a statute that was ‘constitutionally infirm from the
moment of its enactment.’ ” Id. ¶ 20 (quoting People v. Blair, 2013 IL 114122, ¶ 30).
See also Washington, 2023 IL 127952, ¶ 44 (citing this portion of McClinton as support for the
legislative intent to broadly construe the COI statute for petitioners who did not voluntarily cause
or bring about their convictions so as to provide an available avenue to obtain a finding of
innocence). The fact that petitioner pled guilty to the offense later held unconstitutional, rather
than being found guilty at trial as in McClinton, does not change the analysis. The point is that, in
either case, the statute that criminalized the conduct was void and so the conduct was not criminal
at the time. See McClinton, 2018 IL App (3d) 160648, ¶ 21. Accordingly, here, petitioner cannot
be held to have caused or brought about his conviction by pleading guilty to an unconstitutional
offense.
¶ 51 The State maintains that the rationale in McClinton does not apply here because the facts
to which petitioner stipulated when he pled guilty demonstrate that he could have been convicted
of different, valid AUUW offenses. The argument amounts to speculation about offenses that were
never charged. Uncharged theories of culpability were at the heart of the argument rejected by our
supreme court in Palmer, where it was held that the petitioner was not required to prove himself
innocent of the uncharged accomplice theory. Palmer, 2021 IL 125621, ¶ 68. Here, petitioner was
charged and pled guilty to a portion of the AUUW statute later held unconstitutional. Under these
20 circumstances, he cannot be said to have voluntarily caused or brought about his conviction. See
McClinton, 2018 IL App (3d) 160648, ¶¶ 20-22. Accordingly, petitioner met his burden under
subsection (g)(4) in case No. 12-CF-5 and is entitled to a COI in that case.
¶ 52 III. CONCLUSION
¶ 53 In sum, we hold that petitioner met his burden under the COI statute in case No. 12-CF-5
but failed to meet his burden in case No. 12-CF-627. Thus, the circuit court erred in denying the
COI petition in case No. 12-CF-5 but did not err in denying the petition in case No. 12-CF-627.
Accordingly, the judgment of the circuit court of Will County is affirmed in part and vacated in
part, and the cause is remanded for issuance of a COI in case No. 12-CF-5.
¶ 54 Affirmed in part, vacated in part, and remanded.
21 People v. Lesley, 2024 IL App (3d) 210330
Decision Under Review: Appeal from the Circuit Court of Will County, Nos. 12-CF-5, 12- CF-627; the Hon. Carmen J. Goodman, Judge, presiding.
Attorneys Joel A. Flaxman and Kenneth N. Flaxman, of Law Offices of for Kenneth N. Flaxman, PC, of Chicago, for appellant. Appellant:
Attorneys Patrick Delfino, Thomas D. Arado, and Laura Bialon, of State’s for Attorneys Appellate Prosecutor’s Office, of Ottawa, for the Appellee: People.