People v. Reed

2024 IL App (1st) 230669-U

Opinion

2024 IL App (1st) 230669-U No. 1-23-0669 Order filed February 7, 2024 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 23217 ) JAMES REED, ) Honorable ) Erica L. Reddick, Defendant-Appellant. ) Judge, presiding.

JUSTICE VAN TINE delivered the judgment of the court. Presiding Justice Reyes and Justice Lampkin concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s denial of defendant’s petition for a certificate of innocence because defendant did not prove that he was innocent of all charges.

¶2 Defendant James Reed was charged with four counts of aggravated unlawful use of a

weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (C); (a)(2), (a)(3)(A), (C) (West 2002)). In No. 1-23-0669

2003, he pled guilty to one count and the State nol-prossed the remaining three counts. 1

Defendant’s conviction was later vacated pursuant to People v. Aguilar, 2013 IL 112116, which

struck down as unconstitutional portions of the AUUW statute that categorically prohibited

possession of an operable firearm outside the home. Aguilar, 2013 IL 112116, ¶ 22. Defendant

then filed a petition for a certificate of innocence pursuant to section 2-702 of the Code of Civil

Procedure (735 ILCS 5/2-702 (West 2022)), which the circuit court denied because defendant

failed to prove that he was innocent of all four AUUW counts. Defendant appeals, arguing that he

only had to prove his innocence of the one count of AUUW for which he was convicted and

incarcerated. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Defendant was arrested on October 6, 2003, and charged by information with four counts

of AUUW. Count I alleged that defendant knowingly carried an uncased, loaded, and immediately

accessible firearm outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002)). Count II

alleged that he knowingly carried a firearm without a valid Firearm Owner’s Identification (FOID)

card (id. §§ 24-1.6(a)(1), (a)(3)(C)). Count III alleged that he knowingly carried an uncased and

loaded firearm on a public street. (id. §§ 24-1.6(a)(2), (a)(3)(A)). Count IV alleged that he

knowingly carried a firearm on a public street without a valid FOID card (id. §§ 24-1.6(a)(2),

(a)(3)(C)).

1 “Nol-prossed” refers to the State dismissing charges nolle prosequi, which is “a formal notice given by the State that a claim has been abandoned.” People v. Smith, 2021 IL App (1st) 200984, ¶ 25; see also People v. Stafford, 325 Ill. App. 3d 1069, 1073 (2001). When a charge is nol-prossed, it is no longer pending against the defendant and the State must file a new charging document to reinstate that charge. Stafford, 325 Ill. App. 3d at 1073.

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¶5 On December 3, 2003, defendant pled guilty to count I and was sentenced to six months in

the Cook County Department of Corrections and two years’ probation. The State nol-prossed

counts II, III, and IV. As the factual basis for the plea, the State proffered that defendant was

involved in a shooting on the 6400 block of South Wood Street in Chicago on October 6, 2003.

When defendant was arrested that day, police recovered from his person a loaded semiautomatic

handgun. Defendant violated his probation and was resentenced to one year of incarceration.

¶6 In 2021, defendant filed pro se petitions pursuant to section 2-1401 of the Code of Civil

Procedure (735 ILCS 5/2-1401 (West 2020)) to vacate his AUUW conviction, arguing that his

conviction was unconstitutional and void pursuant to Aguilar. On June 17, 2022, the circuit court

vacated defendant’s conviction.

¶7 In 2022, defendant filed a pro se petition for a certificate of innocence pursuant to section

2-702 (735 ILCS 5/2-702 (West 2022)). Defendant argued that he met the requirements for a

certificate of innocence because he was convicted of a felony and served a term of imprisonment,

his conviction had been vacated, and he did not bring about his own conviction. Defendant noted

that he “pled guilty to a charge and statute that was unconstitutional (Aggravated Unlawful Use of

a Weapon) statute—720 [ILCS] 5/24-1.6(a)(1).”

¶8 The State objected, arguing that defendant failed to establish that he was innocent of all

four charges; therefore, he could not fulfill the requirements of subsection 2-702(g)(3) (735 ILCS

5/2-702(g)(3) (West 2022)). The State maintained that, even if defendant was innocent of counts

I and III due to their unconstitutionality under Aguilar, he could not establish his innocence of

counts II and IV because it remained illegal to possess a firearm without a FOID card. The State

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attached to its written objection documents from the Illinois State Police indicating that defendant

had never been issued a FOID card.

¶9 Defendant filed a pro se reply to the State’s objections. He argued that he was relying on

the second clause of subsection 2-702(g)(3), which allows a petitioner to prove that his acts or

omissions charged in the indictment or information did not constitute a felony or misdemeanor at

all, rather than the first clause, which requires proof that the petitioner is innocent of the charges

in the indictment or information (id.). Defendant cited People v. McClinton, 2018 IL App (3d)

160648, in support of his claim that “his acts charged in the indictment *** did not constitute a

felony or misdemeanor against the State because the charge was based on a statute later held

unconstitutional.”

¶ 10 The circuit court denied defendant’s petition for a certificate of innocence, finding that

defendant “ha[d] to be able to demonstrate [his] innocence as to all the offenses charged in the

information or indictment” and that he could not establish his innocence of the AUUW counts

premised on his lack of a FOID card.

¶ 11 Defendant timely appealed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues that the circuit court erred in denying his petition because he

was not required to prove that he was innocent of all four charged counts of AUUW. Rather,

defendant contends that he only had to prove his innocence of the one count for which he was

convicted and incarcerated.

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¶ 14 This appeal concerns the interpretation of subsection 2-702(g)(3), so de novo review

applies. 2 See People v. Hilton, 2023 IL App (1st) 220843, ¶ 15. De novo review means that we

perform the same analysis as the circuit court. People v. Tyler, 2015 IL App (1st) 123470, ¶ 151.

Our primary goal in interpreting a statute is to ascertain and give effect to the legislature’s intent.

People v. Palmer, 2021 IL 125621, ¶ 53. The language of the statute is the best indication of the

legislature’s intent. Id. We 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.” People v.

Woodard, 175 Ill. 2d 435, 443 (1997). If the statute is unambiguous, we must apply it as written.

Hernandez v. Lifeline Ambulance, LLC, 2019 IL App (1st) 180696, ¶ 11. “A statute is ambiguous

when it is capable of being understood by reasonably well-informed persons in two or more

different senses.” Advincula v. United Blood Services, 176 Ill. 2d 1, 18 (1996). We presume that

the legislature did not intend absurd, inconvenient, or unjust results. Palmer, 2021 IL 125621, ¶

53.

¶ 15 Section 2-702 of the Code of Civil Procedure governs petitions for certificates of

innocence. 735 ILCS 5/2-702 (West 2022). The legislature created certificates of innocence

because “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.” Id. § 2-702(a). Accordingly, “[a]ny person

convicted and subsequently imprisoned for one or more felonies by the State of Illinois which he

2 Generally, we review a circuit court’s denial of a petition for a certificate of innocence for an abuse of discretion. People v. Hilton, 2023 IL App (1st) 220843, ¶ 15.

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or she did not commit may, under the conditions hereinafter provided, file a petition for a certificate

of innocence in the circuit court.” Id. § 2-702(b).

¶ 16 Subsection (c) requires the petitioner to present documentation demonstrating that he was

convicted of a felony and served all or part of a sentence of imprisonment and that his “conviction

was reversed or vacated, and the indictment or information dismissed,” or that “the statute, or

application thereof, on which the indictment or information was based” was unconstitutional. Id.

§ 2-702(c)(1)-(2). Subsection (d) requires the petition to “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 that “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 that the petitioner “did not by his or her own conduct voluntarily

cause or bring about his or her conviction.” Id. § 2-702(d).

¶ 17 Subsection (g) sets out the elements of a petition:

“(g) In order to obtain a certificate of innocence the petitioner must prove by a

preponderance of the evidence 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;

(2)(A) the judgment of conviction was reversed or vacated, 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;

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(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.” Id. § 2-702(g)(1)-(4).

“If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate of innocence

finding that the petitioner was innocent of all offenses for which he or she was incarcerated.” Id.

§ 2-702(h).

¶ 18 Subsection (g)(3) requires a petitioner to prove either that (1) he is innocent of the “offenses

charged in the indictment or information” or (2) “his *** acts or omissions charged in the

indictment or information did not constitute a felony or misdemeanor.” Id. §§ 2-702(g)(3). The

first approach appears to require proof of innocence of all offenses set out in the charging

document. 3 There is no indication that the first clause of subsection (g)(3) allows a petitioner to

prove his innocence of only the offense for which he was convicted and incarcerated without

proving his innocence of the other offenses in the charging document. The second approach

essentially requires proof that the petitioner’s behavior in the incident at issue did not constitute

any type of crime in Illinois.

¶ 19 In this case, the information charged four counts of AUUW, two of which were premised

solely on defendant’s possession of a firearm, and two of which were premised on his possession

of a firearm without a FOID card. To fulfill subsection (g)(3), defendant had to prove either that

3 By saying “appears,” we do not imply that the statute is ambiguous. We simply note that the statute does not use “all” to modify “offenses charged in the indictment or information.”

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he was innocent of all four charges or that his actions on October 6, 2003, were not illegal under

any circumstances. See id. Defendant did not establish his innocence under either approach. As to

the first approach, defendant did not prove that he was innocent of counts II and IV. Those charges

were premised on defendant’s possession of a firearm without a valid FOID card on October 6,

2003. Defendant has never claimed that he did not possess a firearm on October 6, 2003, and the

record confirms that defendant has never been issued a FOID card. Post-Aguilar, it remains illegal

to possess a firearm without a FOID card. People v. Mosley, 2015 IL 115872, ¶ 44 (upholding

section 24-1.6(a)(3)(C) of the AUUW statute as constitutional). Therefore, defendant is not

innocent of AUUW as charged in counts II and IV. As to the second approach, defendant has

abandoned, on appeal, his petition’s argument that his actions on October 6, 2003, did not

constitute a crime at all. Defendant did not meet the requirements of subsection (g)(3), so the

circuit court correctly denied his petition for a certificate of innocence.

¶ 20 People v. Warner, 2022 IL App (1st) 210260, supports this conclusion. In that case, the

defendant was charged with six counts of AUUW including possession of a firearm without a valid

FOID card. Id. ¶ 2. He pled guilty to one count of AUUW and was sentenced to one year in prison;

the State nol-prossed the remaining counts. Id. ¶¶ 3-5. The defendant’s conviction was later

vacated pursuant to Aguilar. Id. ¶ 6. The defendant filed a petition for a certificate of innocence,

arguing that he had been convicted and incarcerated under an unconstitutional statute. Id. ¶ 7.

However, his petition “contained no allegations to establish [his] innocence as to the other valid

offenses charged in the information.” Id. The circuit court denied the petition and this court

affirmed. Id. ¶¶ 1, 9. We held that subsections (d) and (g)(3) unambiguously require a petitioner

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to allege and prove that he is innocent of all charged offenses, not just the offense for which he

was incarcerated. Id. ¶ 28.

¶ 21 People v. Brown, 2022 IL App (4th) 220171, is similar. The defendant was charged with

AUUW, armed violence, unlawful possession of a weapon by a felon, and unlawful possession of

a controlled substance. Id. ¶ 3. He pled guilty to AUUW and was sentenced to eight years in prison;

the other charges were dismissed. Id. ¶ 4. The defendant’s conviction was later vacated pursuant

to Aguilar, and he filed a petition for a certificate of innocence. Id. ¶¶ 5-6. The circuit court denied

the petition, finding that the defendant could not establish his innocence of all charged offenses

and, therefore, could not meet the requirements of subsection (g)(3). Id. ¶ 6. The court affirmed.

Id. ¶¶ 36-37. Citing Warner, the court found that the “plain meaning of [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.” Id. ¶ 24.

¶ 22 We see no meaningful difference between Warner, Brown, and this case. All three cases

involve defendants who pled guilty to one count of AUUW in exchange for the dismissal of the

other counts, AUUW convictions that were later vacated pursuant to Aguilar, and defendants who

failed to prove their innocence of all charged offenses. Like the defendants in Warner and Brown,

defendant is not entitled to a certificate of innocence because he does not meet the requirements

of subsection (g)(3).

¶ 23 Defendant argues that a certificate, if granted, only declares a petitioner innocent of

“offenses for which he or she was incarcerated” (702 ILCS 5/2-702(b), (h) (West 2022)), so the

circuit court can only consider whether the petitioner is innocent of the charge for which he was

convicted and incarcerated. That is, defendant reads subsections (b) and (h) to limit all of section

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2-702 to the offense for which the petitioner was incarcerated; no other charges are relevant. We

disagree. Section 2-702 differentiates between what a petitioner must prove, which is his innocence

of all charges (id. §§ 2-702(d), (g)(3)), and the relief he obtains if he makes such a showing, which

is a certification that he is innocent of the charges for which he was incarcerated (id. §§ 2-702(b),

(h)). This case illustrates why the legislature created this difference. Defendant can establish that

he is innocent of the charge for which he was convicted because that charge is unconstitutional.

However, defendant did not establish that he is innocent of AUUW as the State alleged in counts

II and IV. Accepting defendant’s argument would allow a person who may have committed

AUUW to, nevertheless, obtain a judicial finding that he is innocent of AUUW. Moreover, if, as

defendant argues, the only charge the circuit court can consider is the charge for which the

petitioner was convicted and incarcerated, then subsections (d) and (g)(3)’s requirement that a

petitioner prove his innocence of the charges in the indictment or information becomes

superfluous. We cannot accept such a reading of section 2-702. See People v. Kidd, 2022 IL

127904, ¶ 29.

¶ 24 Defendant is not the first to claim that certificate of innocence proceedings concern only

charges resulting in conviction and incarceration. This court has already rejected the exact

argument that defendant makes regarding subsections (b) and (h). Smith, 2021 IL App (1st)

200984, ¶¶ 22-23. Similarly, in Warner, this court explained that “[i]f 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).” Warner, 2022 IL App (1st) 210260, ¶ 28. “Instead, the legislature

chose the phrase ‘offenses charged in the *** information,’ demonstrating its clear intent that a

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petitioner must allege and prove that they are innocent of all the offenses charged in the

information.” Id.; see also Hilton, 2023 IL App (1st) 220843, ¶ 30.

¶ 25 Defendant contends that we should follow People v. McClinton, 2018 IL App (3d) 160648,

and find that charges of which a defendant was not convicted play no role in certificate of

innocence proceedings. 4 In that case, the defendant was charged with AUUW, bringing a firearm

into a penal institution, and bringing cannabis into a penal institution. Id. ¶ 3. Following a bench

trial, she was convicted of AUUW but her conviction was later vacated pursuant to Aguilar. Id. ¶¶

3-6. The defendant filed a petition for a certificate of innocence, which the circuit court denied,

explaining that the trial evidence established that she possessed a firearm inside a prison, so she

was not innocent of AUUW. Id. ¶ 7. The defendant appealed and the Third District ordered

issuance of a certificate of innocence. Id. ¶ 1. The Third District reasoned that the AUUW statute

“that criminalized [the defendant’s] actions is void ab initio” due to Aguilar, so the “actions for

which she was charged, convicted, sentenced and incarcerated were not criminal at the time.”5 Id.

¶ 21.

¶ 26 We find McClinton unpersuasive. McClinton did not involve a guilty plea or charges that

the State nol-prossed as part of that plea. It also did not involve AUUW charges premised on

possessing a firearm without a valid FOID card. Defendant has not proved that he is innocent of

possessing a firearm without a FOID card and McClinton does not change that conclusion.

4 Oddly, defendant argues that we should follow the Third District’s decision in McClinton but should not follow the First District, Fourth Division’s decision in Warner or the Second District’s decision in Hilton because the decisions of other appellate divisions and districts are not binding upon us. 5 To the extent McClinton suggests that a defendant whose AUUW conviction was vacated pursuant to Aguilar cannot possibly have committed any criminal offenses in the incident that led to the AUUW conviction, we disagree. Aguilar finds one subsection of the AUUW statute unconstitutional (Aguilar, 2013 IL 112116, ¶ 22); it does not retroactively wipe out all potentially illegal conduct.

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Moreover, McClinton’s analysis focused on whether the defendant brought about her own

conviction under subsection (g)(4), not whether she proved her innocence of all charges under

subsection (g)(3). Id. ¶¶ 18-20. The Third District did not discuss whether subsection (g)(3)

required the defendant to prove that she was innocent of the charges of bringing a firearm and

cannabis into a penal institution, so McClinton offers little guidance in this case. Nevertheless,

defendant claims that McClinton supports his attempt to use subsections (b) and (h) to limit

subsections (d) and (g)(3), citing the Third District’s statement that “[t]he only crime at issue in

the instant case is the unconstitutional AUUW conviction.” Id. ¶ 15. That quotation is a single line

without further analysis or explanation, not the holding of McClinton. Id.

¶ 27 Defendant also argues that Palmer supports his position because it holds that “the proper

focus of subsection (g)(3)” is on the allegations “charged and prosecuted in [the] petitioner’s

criminal trial.” Palmer, 2021 IL 125621, ¶ 72. In that case, the defendant was charged with five

counts of first-degree murder arising out of the victim’s beating death. Id. ¶ 5. Each count alleged

a different theory of culpability for murder. Id. At trial, the State presented evidence that the

defendant and another man burgled the victim’s apartment and, the following night, the defendant

returned alone and killed the victim. Id. ¶ 7. The defendant was found guilty of first degree murder

on the count alleging that he intentionally killed the victim. Id. ¶¶ 5, 28. Years later, his conviction

was vacated based on testing that excluded him as a contributor of DNA profiles found under the

victim’s fingernails. Id. ¶¶ 31-34. The defendant filed a petition for a certificate of innocence,

which the State opposed, arguing that, while the DNA evidence established that he was not the

primary assailant, he could still be guilty of murder as an accessory at the scene during the murder.

Id. ¶¶ 37, 43-44. The circuit court denied the petition for a certificate of innocence, finding that

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the defendant had not established by a preponderance of the evidence that he was “innocent of the

charge of murder,” and the appellate court affirmed. Id. ¶¶ 47-48.

¶ 28 The supreme court reversed. Id. ¶ 80. The court framed the issue as whether subsection

(g)(3) required the defendant to prove that he “was innocent of the offense only as it was originally

charged or innocent of every conceivable theory of criminal liability for that offense.” Id. ¶ 1. The

court held that “because the word ‘offenses’ is modified by the phrase ‘charged in the indictment

or information,’ 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. The court reasoned that, at trial, the State argued that the defendant alone beat the victim to

death and did not advance the theory that he was an “accomplice or unidentified third party” until

certificate of innocence proceedings. Id. ¶¶ 65-66. Because the State did not charge or argue the

defendant’s guilt based on a theory of accountability, he was not required to disprove that theory

to obtain a certificate of innocence. Id. ¶ 67. That is, subsection (g)(3) does not “require a petitioner

to prove his innocence of a novel theory of guilt that was never charged.” Id. ¶ 68.

¶ 29 Palmer does not mean that a petitioner can fulfill subsection (g)(3) by proving his

innocence of the charge for which he was convicted and incarcerated, but not the other charges

against him. Rather, Palmer holds that a petitioner does not have to prove his innocence of

uncharged theories of culpability. Id. In this case, the State does not claim that defendant must

prove his innocence of a theory of culpability for AUUW that it never charged. For example, the

State does not contend that defendant must prove that he is innocent of AUUW premised on

possessing a firearm while committing a misdemeanor involving the use or threat of violence (720

ILCS 5/24-1.6(a)(1), (a)(3)(H) (West 2002)). Rather, the State’s position is that defendant is not

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innocent of AUUW because he was charged with possessing a firearm without a valid FOID card,

which is still illegal and which defendant has not disproved. The defendant in Palmer used DNA

evidence to prove that he did not kill the victim, the act giving rise to all the charges against him.

By contrast, in this case, defendant has not proved that he did not possess a firearm on October 6,

2003.

¶ 30 Defendant also relies on Smith’s discussion that a petitioner does not have “the burden of

affirmatively demonstrating his innocence *** on charges that were nol-prossed by the State”

because “the State cannot pursue and thus has no ability to obtain a finding of guilt on” a charge

the State abandoned by nol-prossing it. (Emphasis in original.) Smith, 2021 IL App (1st) 200984,

¶ 25. However, Warner rejected that conclusion, explaining that “[s]ection 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, ¶¶ 36-37. We agree with Warner.

Subsection (g)(3) requires proof of innocence of charges in the indictment or information and says

nothing about charges that are later nol-prossed. The State’s decision to dismiss a charge nolle

prosequi does not mean that the offense was never charged, and it certainly does not mean that the

State conceded the defendant’s innocence of that charge. People v. Rodriguez, 2021 IL App (1st)

200173, ¶ 59. Subsection (g)(3) applies to nol-prossed charges.

¶ 31 This case has reached an accurate and fair result. Defendant is not guilty of the AUUW

charge for which he was convicted and incarcerated because that charge was unconstitutional

under Aguilar. Defendant’s conviction has been properly vacated. However, that does not mean

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defendant is innocent of all charges of AUUW. Accordingly, we find that the circuit court correctly

denied defendant’s petition for a certificate of innocence.

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, we affirm the circuit court’s denial of defendant’s petition for a

certificate of innocence.

¶ 34 Affirmed.

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