NOTICE 2025 IL App (5th) 231282-U NOTICE Decision filed 09/18/25. The This order was filed under text of this decision may be NO. 5-23-1282 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Macon County. ) v. ) No. 06-CF-730 ) DAVID McGOWAN, ) Honorable ) Thomas E. Griffith Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in denying the defendant’s petition for a certificate of innocence. The record on appeal contains none of the circuit court’s reasoning and is insufficient to allow for review of the alleged error. We therefore must presume that the circuit court’s decision was in accordance with the relevant legal authority and had sufficient legal and factual bases.
¶2 Defendant, David McGowan, appeals from the denial of his petition for a certificate of
innocence, arguing that the circuit court erred in not granting the petition because the statute
underpinning his conviction was declared unconstitutional and void ab initio. For the reasons
explained below, we affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 On July 27, 2006, McGowan pled guilty to aggravated unlawful use of a weapon (AUUW)
pursuant to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1),
1 (a)(3)(A) (West 2006)), and in exchange, the remaining two counts—possession of a firearm and
firearm ammunition without a requisite firearm owner’s identification card (FOID)—were
dismissed. On November 12, 2019, McGowan filed a petition for relief from judgment attacking
his conviction of AUUW based on the Illinois Supreme Court’s ruling in People v. Aguilar, 2013
IL 112116, ¶ 22, which held that section 24-1.6(a)(1) was unconstitutional. On December 7, 2020,
the circuit court granted his petition and vacated his conviction.
¶5 On April 4, 2022, McGowan filed a petition for a certificate of innocence based on the
vacated AUUW conviction. The State subsequently filed an answer and a supplemental answer.
The State’s initial answer was not in the record on appeal.
¶6 The State’s supplemental answer acknowledged the Illinois Supreme Court, in People v.
Washington, 2023 IL 127952, ¶ 36, held that a guilty plea was not a categorical bar to a certificate
of innocence. However, the State maintained its opposition to McGowan’s motion, arguing that
Washington did not address whether a defendant could be denied a certificate of innocence where
the defendant voluntarily brought about his own conviction by voluntarily pleading guilty. See id.
¶¶ 41-42, 59-62 (finding that petitioner sufficiently showed that he did not voluntarily bring about
his conviction, based on evidence that his guilty plea was procured through police abuse and
coercion). The State asserted that defendant was not innocent of all charged offenses pursuant to
People v. Warner, 2022 IL App (1st) 210260, and, relying on People v. Amor, 2020 IL App (2d)
190475, that he voluntarily brought about his own conviction. It further argued that the valid
charges which the State agreed to dismiss as a term of the plea agreement were not “struck and
expunged,” as defendant claimed.
¶7 On November 16, 2023, McGowan filed his response to the State’s supplemental answer.
Therein, he argued that the State could not make a legal claim regarding the counts it voluntarily
2 dismissed and therefore had no legal standing to seek judicial enforcement of the dismissed
charges. He contended that subsections 2-702(g)(3) and (4) of the Code of Civil Procedure (735
ILCS 5/2-702(g)(3), (4) (West 2022)) were insufficient to deny him a certificate of innocence.
¶8 The circuit court held a hearing on the petition on November 21, 2023. The court’s docket
entry on that date stated that after considering the contents of the case file, all of the relevant
pleadings, and the statements of both parties, the court denied McGowan’s petition for a certificate
of innocence. This appeal followed.
¶9 ANALYSIS
¶ 10 The decision whether to grant or deny a petition for a certificate of innocence is at the
discretion of the circuit court. See id. § 2-702(a). There is a split in authority on whether the
appropriate standard of review is “abuse of discretion” or “manifest weight of the evidence.” See
Washington, 2023 IL 127952, ¶ 47 (recognizing split); see also People v. Terrell, 2022 IL App
(1st) 192184, ¶ 51 (discussing recent disagreement within the First District whether the “manifest
weight of the evidence” or “abuse of discretion” standard is more applicable but noting that both
are deferential standards of review). We need not decide which standard of review applies, because
under either standard, we find McGowan was not entitled to a certificate of innocence. See
Washington, 2023 IL 127952, ¶ 47.
¶ 11 The petitioner bears the burden of proving by a preponderance of the evidence that he is
entitled to a certificate of innocence. People v. Rodriguez, 2021 IL App (1st) 200173, ¶ 44. Section
2-702(g) of the Code of Civil Procedure lists the requirements the petitioner must show that:
“(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;
3 (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.” 735 ILCS 5/2-702(g) (West 2022).
¶ 12 McGowan contends that the circuit court erred in denying his petition because section 2-
702 required it to grant his petition where the AUUW statute under which he was charged was
held to be unconstitutional and void ab initio. He further argues that the court acted in
contravention to the clear and unambiguous language of section 2-702 by determining that a
certificate of innocence could only be granted upon the petitioner’s showing of “actual factual
innocence” of the underlying offense.
¶ 13 The State argues in response that McGowan failed to provide a sufficient basis in the record
that would allow us to find error on the part of the circuit court. We agree.
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE 2025 IL App (5th) 231282-U NOTICE Decision filed 09/18/25. The This order was filed under text of this decision may be NO. 5-23-1282 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Macon County. ) v. ) No. 06-CF-730 ) DAVID McGOWAN, ) Honorable ) Thomas E. Griffith Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in denying the defendant’s petition for a certificate of innocence. The record on appeal contains none of the circuit court’s reasoning and is insufficient to allow for review of the alleged error. We therefore must presume that the circuit court’s decision was in accordance with the relevant legal authority and had sufficient legal and factual bases.
¶2 Defendant, David McGowan, appeals from the denial of his petition for a certificate of
innocence, arguing that the circuit court erred in not granting the petition because the statute
underpinning his conviction was declared unconstitutional and void ab initio. For the reasons
explained below, we affirm the judgment of the circuit court.
¶3 BACKGROUND
¶4 On July 27, 2006, McGowan pled guilty to aggravated unlawful use of a weapon (AUUW)
pursuant to section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1),
1 (a)(3)(A) (West 2006)), and in exchange, the remaining two counts—possession of a firearm and
firearm ammunition without a requisite firearm owner’s identification card (FOID)—were
dismissed. On November 12, 2019, McGowan filed a petition for relief from judgment attacking
his conviction of AUUW based on the Illinois Supreme Court’s ruling in People v. Aguilar, 2013
IL 112116, ¶ 22, which held that section 24-1.6(a)(1) was unconstitutional. On December 7, 2020,
the circuit court granted his petition and vacated his conviction.
¶5 On April 4, 2022, McGowan filed a petition for a certificate of innocence based on the
vacated AUUW conviction. The State subsequently filed an answer and a supplemental answer.
The State’s initial answer was not in the record on appeal.
¶6 The State’s supplemental answer acknowledged the Illinois Supreme Court, in People v.
Washington, 2023 IL 127952, ¶ 36, held that a guilty plea was not a categorical bar to a certificate
of innocence. However, the State maintained its opposition to McGowan’s motion, arguing that
Washington did not address whether a defendant could be denied a certificate of innocence where
the defendant voluntarily brought about his own conviction by voluntarily pleading guilty. See id.
¶¶ 41-42, 59-62 (finding that petitioner sufficiently showed that he did not voluntarily bring about
his conviction, based on evidence that his guilty plea was procured through police abuse and
coercion). The State asserted that defendant was not innocent of all charged offenses pursuant to
People v. Warner, 2022 IL App (1st) 210260, and, relying on People v. Amor, 2020 IL App (2d)
190475, that he voluntarily brought about his own conviction. It further argued that the valid
charges which the State agreed to dismiss as a term of the plea agreement were not “struck and
expunged,” as defendant claimed.
¶7 On November 16, 2023, McGowan filed his response to the State’s supplemental answer.
Therein, he argued that the State could not make a legal claim regarding the counts it voluntarily
2 dismissed and therefore had no legal standing to seek judicial enforcement of the dismissed
charges. He contended that subsections 2-702(g)(3) and (4) of the Code of Civil Procedure (735
ILCS 5/2-702(g)(3), (4) (West 2022)) were insufficient to deny him a certificate of innocence.
¶8 The circuit court held a hearing on the petition on November 21, 2023. The court’s docket
entry on that date stated that after considering the contents of the case file, all of the relevant
pleadings, and the statements of both parties, the court denied McGowan’s petition for a certificate
of innocence. This appeal followed.
¶9 ANALYSIS
¶ 10 The decision whether to grant or deny a petition for a certificate of innocence is at the
discretion of the circuit court. See id. § 2-702(a). There is a split in authority on whether the
appropriate standard of review is “abuse of discretion” or “manifest weight of the evidence.” See
Washington, 2023 IL 127952, ¶ 47 (recognizing split); see also People v. Terrell, 2022 IL App
(1st) 192184, ¶ 51 (discussing recent disagreement within the First District whether the “manifest
weight of the evidence” or “abuse of discretion” standard is more applicable but noting that both
are deferential standards of review). We need not decide which standard of review applies, because
under either standard, we find McGowan was not entitled to a certificate of innocence. See
Washington, 2023 IL 127952, ¶ 47.
¶ 11 The petitioner bears the burden of proving by a preponderance of the evidence that he is
entitled to a certificate of innocence. People v. Rodriguez, 2021 IL App (1st) 200173, ¶ 44. Section
2-702(g) of the Code of Civil Procedure lists the requirements the petitioner must show that:
“(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;
3 (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.” 735 ILCS 5/2-702(g) (West 2022).
¶ 12 McGowan contends that the circuit court erred in denying his petition because section 2-
702 required it to grant his petition where the AUUW statute under which he was charged was
held to be unconstitutional and void ab initio. He further argues that the court acted in
contravention to the clear and unambiguous language of section 2-702 by determining that a
certificate of innocence could only be granted upon the petitioner’s showing of “actual factual
innocence” of the underlying offense.
¶ 13 The State argues in response that McGowan failed to provide a sufficient basis in the record
that would allow us to find error on the part of the circuit court. We agree.
¶ 14 While the fact that the statute “on which the indictment or information was based” violated
the constitution meets one of the requirements to obtain a certificate of innocence (id. § 2-
702(g)(2)(B)), McGowan also had to meet three other requirements (see id. § 2-702(g)(1), (3),
(4)). For example, subsection 2-702(g)(4) also requires that a petitioner prove that he “did not by
4 his or her own conduct voluntarily cause or bring about his or her conviction.” Id. § 2-702(g)(4).
The State’s argument in opposition to the petition shows that the parties disputed whether
McGowan met his burden of proof on this point. However, the record here does not show the
court’s determination of this dispute or its reasoning for denying McGowan’s petition.
¶ 15 It is the appellant’s duty to provide a sufficiently complete record of the lower court
proceedings to support his claims on appeal. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d
314, 318-19 (2003). If the relevant proceedings were not recorded and no transcript exists, the
appellant is obligated to file a bystander’s report or an agreed statement of facts. Id.; Ill. S. Ct. R.
323(c), (d) (eff. July 1, 2017). In the absence of a sufficiently complete record on appeal, “the
reviewing court will presume that the order entered by the trial court was in conformity with the
law and had a sufficient factual basis. [Citations.] The court will resolve any doubts arising from
the incompleteness of the record against the appellant.” Rogers, 204 Ill. 2d at 319; see also Foutch
v. O’Bryant, 99 Ill. 2d 389, 392 (1984). Furthermore, McGowan is not entitled to a more lenient
standard due to his pro se status and must abide by the same rules as an appellant who is
represented by counsel. Holzrichter v. Yorath, 2013 IL App (1st) 110287, ¶ 78.
¶ 16 In the present matter, the record on appeal fails to include a transcript, bystander’s report,
or agreed statement of facts for the November 21, 2023, hearing on McGowan’s petition. Further,
the court’s docket entry order provided no rationale for its denial of McGowan’s petition. The
docket entry order only commented that it considered the parties’ statements, the case file, and the
pleadings.
¶ 17 Without an explanation in a written order, a transcript of the hearing, or a bystander’s report
or agreed statement of facts, we cannot determine whether the circuit court erred in determining
that McGowan did not show by a preponderance of the evidence that he was entitled to a certificate
5 of innocence based on all of the necessary statutory factors. See King v. Find-a-Way Shipping,
LLC, 2020 IL App (1st) 191307, ¶ 31 (where record did not contain any evidence to support
appellant’s claim that the trial court applied an incorrect standard, reviewing court presumes that
the challenged decision was fully supported by evidence presented to the trial court). We therefore
presume that the circuit court’s decision to deny McGowan’s petition was properly supported by
legal authority and the evidence before the court.
¶ 18 CONCLUSION
¶ 19 For the reasons stated above, the circuit court did not err in denying McGowan’s petition
for a certificate of innocence. The judgment of the circuit court is affirmed.
¶ 20 Affirmed.