People v. Warner

2022 IL App (1st) 210260-U

• Court: Appellate Court of Illinois
• Decided: June 9, 2022
• Docket: 1-21-0260
• Status: Unpublished

Opinion

2022 IL App (1st) 210260-U Order filed: June 9, 2022

FIRST DISTRICT FOURTH DIVISION

No. 1-21-0260

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 JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 23139 01 ) THOMAS WARNER, ) Honorable ) Alfredo Maldonado, Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Reyes concurred in the judgment. Justice Martin specially concurred.

ORDER

¶1 Held: We affirm the circuit court’s denial of petitioner’s request for a certificate of innocence where petitioner did not establish his innocence as to all of the offenses charged in the information.

¶2 Petitioner, Thomas Warner, pleaded guilty to one count of aggravated unlawful use of a

weapon (AUUW), stemming from a multi-count information, and was sentenced to one year

imprisonment. Petitioner’s AUUW conviction was based on a statute later found unconstitutional

in People v. Aguilar, 2013 IL 112116, ¶ 22. After this conviction was vacated, petitioner sought a

certificate of innocence (COI) pursuant to section 2-702 of the Code of Civil Procedure (Code) No. 1-21-0260

(735 ILCS 5/2-702 (West 2018)), which was denied. Petitioner appeals the circuit court’s denial

of his request for a COI. We affirm.

¶3 In 2012, petitioner was charged by information with one count of unlawful use of a weapon

(UUW) within 1000 feet of a school (720 ILCS 5/24.1(a)(10) (West 2012)); one count of unlawful

possession of a firearm (UPF) within 1000 feet of a school (720 ILCS 5/24-3.1); and six counts of

AUUW, including possessing a firearm without a valid firearm owner’s identification card (720

ILCS 5/24-1.6(a)(1), (3)(C) and 24-1.6(a)(2), (3)(C)), and possessing a handgun while under 21

years of age (720 ILCS 5/24-1.6(a)(1), (3)(I) and 24-1.6(a)(2), (3)(I)). The arrest report stated that

at the time of the incident, petitioner was 17 years old and was within 1000 feet of a park and a

school, during school hours.

¶4 Petitioner, represented by counsel, as part of a negotiated plea agreement, pleaded guilty

to one count of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)) in exchange for the

State’s agreement to nol-pros the seven remaining counts.

¶5 The parties stipulated to the following facts in support of petitioner’s guilty plea. On

December 5, 2012, Chicago police officer Jeffery Zwit and his partner were patrolling near Dunbar

Career Vocational Academy and Dunbar Park (collectively, Dunbar) in response to recent

robberies and gang violence in the area. At 1:14 p.m., the officers approached petitioner, who was

“loitering” on the 2700 block of South Prairie Avenue in Chicago, about a block away from

Dunbar. Petitioner backed away from the officers, keeping a hand in his jacket pocket. In the

course of being arrested, petitioner stated, “I ain’t going to lie, officer, I got a gun.” The officers

recovered a loaded .380 caliber handgun from petitioner’s right coat pocket.

-2- No. 1-21-0260

¶6 The circuit court accepted the guilty plea and sentenced petitioner to one year

imprisonment on one count of AUUW. After the sentence was imposed and pursuant to the

agreement, the State nol-prossed the remaining counts.

¶7 On October 30, 2018, during a sentencing hearing on petitioner’s subsequent convictions

on two aggravated battery charges with findings of severe bodily injuries and an aggravated

discharge of a firearm charge (subsequent convictions), petitioner successfully petitioned the court

to vacate his 2012 AUUW conviction pursuant to section 5/2-1401 of the Code (735 ILCS 5/2-

1401). The AUUW was vacated based on petitioner’s argument that the conviction was rendered

void by Aguilar, 2013 IL 112116, in which the supreme court held that 720 ILCS 5/24-1.6(a)(1),

(3)(A) was facially unconstitutional. Two of the six AUUW counts charged in the information

were based on the provision found unconstitutional in Aguilar; the other four AUUW counts, the

UUW count, and the UPF count were constitutionally valid. After the sentencing hearing on the

subsequent convictions, petitioner was sentenced to 24 years’ imprisonment. The State, in this

case, did not move to reinstate and did not refile the nol-prossed charges.

¶8 On October 27, 2020, petitioner filed a pro se petition for a COI under section 5/2-702 of

the Code (735 ILCS 5/2-702) (petition). Petitioner alleged that he had been convicted and

incarcerated under a statute that was later declared unconstitutional. The petition contained no

allegations to establish petitioner’s innocence as to the other valid offenses charged in the

information. The court set a hearing on the petition for December 4, 2020.

¶9 At the December 4 hearing, the State argued that, under section 2-702, petitioner was not

entitled to a COI unless he established his innocence as to all of the offenses charged in the

information. The court took the matter under advisement and set a status date for January 7, 2021.

-3- No. 1-21-0260

¶ 10 On January 7, the State brought to the circuit court’s attention the recent decision in People

v. Moore, 2020 IL App (1st) 190435, where this court interpreted section 2-702 to provide that a

petitioner must prove their innocence as to all of the offenses charged in an indictment or

information in order to obtain a COI. The circuit court orally found that the petition failed to meet

the requirements of section 2-702 and entered a written order, denying the petition.

¶ 11 Petitioner appealed.

¶ 12 On appeal, petitioner argues that the circuit court erred in denying the petition where

section 2-702 required only that he prove his innocence as to the charge upon which he was

incarcerated and not as to the charges in the information that the State nol-prossed and did not

move to reinstate and did not refile. In response, the State argues that, based on the plain language

of section 2-702, petitioner must establish his innocence as to all of the offenses charged in the

information.

¶ 13 The parties’ arguments regarding the denial of the COI present an issue of statutory

interpretation, which we review de novo. Moore, 2020 IL App (1st) 190435, ¶ 11.

¶ 14 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 best indicator of the intent is the language of

the statute. People v. Fields, 2011 IL App (1st) 100169, ¶ 18 (citing People v. Smith, 236 Ill.2d

162, 166-67 (2010)). We consider the statute as a whole and give the words used by the legislature

their plain and ordinary meaning. Palmer, 2021 IL 125621, ¶ 53. In interpreting a statute, no part

should be rendered meaningless or superfluous. Hernandez v. Lifeline Ambulance, LLC, 2019 IL

App (1st) 180696, ¶ 10. 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).

-4- No. 1-21-0260

¶ 15 If a statute is unambiguous, we will apply its terms as written and not consider extrinsic

aids. Hernandez, 2019 IL App (1st) 180696, ¶ 11. If the statutory language is ambiguous, we may

consider extrinsic aids to determine the legislature’s intent. Id. “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 must not presume that the

legislature intended absurd, inconvenient, or unjust results. Palmer, 2021 IL 125621, ¶ 53.

¶ 16 We now examine section 2-702 under these principles of interpretation.

¶ 17 Section 2-702 is titled “[p]etition 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. However, a title cannot override the plain language of the statute. Moore, 2020 IL App (1st)

190435, ¶ 18 (citing Home Star Bank & Financial Services v. Emergency Care & Health

Organization, Ltd., 2014 IL 115526, ¶ 40). We must go on and look at the body of the statute.

¶ 18 Subsection (a) explains that section 2-702 provides “innocent persons who have been

wrongly convicted of crimes in Illinois and subsequently imprisoned” with an “avenue to obtain a

finding of innocence so that they may obtain relief through a petition in the Court of Claims.” 735

ILCS 5/2-702(a).

¶ 19 Subsection (b) sets forth who may petition for a COI and what a petitioner may request

(Moore, 2020 IL App (1st) 190435, ¶ 19):

“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

-5- No. 1-21-0260

petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphasis

added.) 735 ILCS 5/2-702(b).

¶ 20 Subsections (c) and (d) set forth the requirements as to the contents of the petition. Moore,

2020 IL App (1st) 190435, ¶ 19. Subsection (c) requires the petitioner to demonstrate that:

“(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 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).

And of particular significance to the issue here, 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 her

conviction.” (Emphasis added.) 735 ILCS 5/2-702(d).

¶ 21 Subsection (g) provides that a petitioner must prove four elements by a preponderance of

the evidence to obtain a COI (Moore, 2020 IL App (1st) 190435,¶ 21):

-6- No. 1-21-0260

“(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.” (Emphasis added.) 735 ILCS 5/2-702(g).

¶ 22 If the court finds that a petitioner is entitled to a judgment, subsection (h) provides that: “it

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. § (h).

¶ 23 Here, the parties agree that petitioner has met three of the four elements required to obtain

a COI under section 2-702(g). The parties dispute whether petitioner met the third element—

whether petitioner has proven by a preponderance of the evidence that he is “innocent of the

offenses charged in the *** information.” Id. § (g)(3).

¶ 24 The State argues that pursuant to subsections (d) and (g)(3) petitioner was required to plead

and prove his innocence as to all of the offenses charged in the information, including those that it

nol-prossed pursuant to a negotiated guilty plea. Petitioner argues that he was entitled to a COI

-7- No. 1-21-0260

because he proved his innocence as to the AUUW charge for which he was convicted and

incarcerated and was not required to prove his innocence as to the charges in the information that

were nol-prossed by the State and not reinstated or refiled.

¶ 25 To resolve the parties’ disagreement, we must consider two similar, but distinct phrases

used by the legislature in section 2-702: “offenses for which he or she was incarcerated” found in

subsections (b) and (h) and “offenses charged in the indictment or information” found in

subsections (d) and (g)(3). The distinction in language is that subsections (d) and (g)(3) expressly

refer to those offenses for which a petitioner was charged while subsections (b) and (h) refer to

those offenses for which a petitioner was eventually convicted and incarcerated.

¶ 26 “ ‘When the legislature includes particular language in one section of a statute but omits it

in another section of the same statute, courts presume that the legislature acted intentionally and

purposefully in the inclusion or exclusion [citations], and that the legislature intended different

meanings and results [citations].’ ” People v. Clark, 2019 IL 122891, ¶ 23 (quoting Chicago

Teachers Union, Local No. 1 v. Board of Education of the City of Chicago, 2012 IL 112566, ¶ 24).

¶ 27 Subsections (b) and (h), using the phrase “offenses for which he or she was incarcerated,”

relate to who may petition for a COI and the remedies if the petition is successful. See Moore,

2020 IL App (1st) 190435, ¶ 19 (subsection (b) explains who may petition for a COI and what a

petitioner may request, and subsection (h) explains the duties of the court if it determines that a

petitioner is entitled to a COI).

¶ 28 Subsections (d) and (g), using the phrase “offenses charged in the indictment or

information,” set forth the pleading and burden requirements for a petitioner to be successful. See

id. (subsection (d) mandates the contents of a petition and subsection (g) contains the elements of

a successful petition).

-8- No. 1-21-0260

¶ 29 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 subsections (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

¶ 30 This interpretation is consistent with our supreme court’s interpretation of subsection (g)(3)

in Palmer, 2021 IL 125621, ¶ 64. In that case, our supreme court recognized 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.). Our interpretation is

further consistent with the holdings in Moore and Smith, that the language in subsections (d) and

(g)(3) requires sufficient pleading and proof to establish that petitioners are innocent of all of the

charges in the indictment or information. Id. ¶ 30 (“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.)); People v. Smith, 2021 IL App (1st) 200984, ¶ 23 (finding that petitioner

who was found guilty at a trial of a charge, that was later vacated based on the one-act, one-crime

doctrine, “clearly [could not] make a showing that he was ‘innocent’ of the offenses charged in the

indictment” (emphasis in original)).

-9- No. 1-21-0260

¶ 31 In Moore, the petitioner, after a bench trial, was convicted on four offenses including being

an armed habitual criminal (AHC) and sentenced to imprisonment. Moore, 2020 IL App (1st)

190435, ¶ 6. One of the predicate felonies for the AHC count was a 2004 conviction for AUUW,

which was rendered void pursuant to Aguilar, 2013 IL 112116. Id. ¶¶ 6, 8. Thereafter the

petitioner’s conviction for AHC was vacated. Id. ¶ 8. The petitioner sought a COI as to the AHC

count only, not as to the additional counts for which he had been found guilty and sentenced.

Id. ¶ 9. The circuit court granted a “partial” COI as to the vacated AHC conviction. Id. On appeal,

this court reversed and held that “[s]ection 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.

¶ 32 Following Moore, this court, in Smith, under different facts, again answered the question

whether a petitioner must establish their innocence as to all offenses in an indictment or

information. After a bench trial, the petitioner in Smith was convicted on one charge of AHC and

three charges of unlawful use of a weapon by a felon (UUWF). Smith, 2021 IL App (1st) 200984,

¶ 3. The circuit court merged the three counts of UUWF and sentenced defendant to imprisonment

on one charge of AHC and one charge of UUWF. Id. On a direct appeal, this court vacated the

UUWF charge based on the one-act, one-crime doctrine. Id. Later, the petitioner successfully

petitioned the court to vacate his AHC conviction in that one of the predicate offenses for AUUW

was found unconstitutional pursuant to Aguilar, 2013 IL 112116. Id. ¶ 4. The petitioner filed a

petition for a COI, which was granted by the circuit court. Id. ¶ 5. The State appealed. Id. This

court stated that the plain language of section 2-702(g)(3) “ ‘speaks of offenses,’ plural, and

through the use of the conjunctive ‘and,’ is cumulative to the other three requirements” and that

the petitioner could not show that “he was ‘innocent’ of the offenses charged in the indictment,”

- 10 - No. 1-21-0260

in that he was found guilty of one or more constitutionally valid charges. (Emphasis added.)

Id. ¶ 21. The Smith court in rejecting the notion that a petitioner need only show that they were

innocent of the charge upon which they were incarcerated noted that the phrase “offenses for which

he or she was incarcerated” were in places relating to “the contents of the COI, not to the

requirements for obtaining one, which are found exclusively in subsection (g).” (Emphasis in

original). Id. ¶ 22.

¶ 33 Our interpretation is also consistent with the purpose of section 2-702. The legislative

history demonstrates that section 2-702 was intended to “benefit ‘men and women that have been

falsely incarcerated through no fault of their own.’ ” People v. Dumas, 2013 IL App (2d) 120561,

¶ 19 (citing 95th Ill. Gen. Assem., House Proceedings, May 18, 2007, at 12 (statements of

Representative Flowers)); see also Moore, 2020 IL App (1st) 190435, ¶ 37 (“[a] successful

petitioner, armed with a COI, walks into the court of claims with conclusive evidence of his or her

innocence, making it all but certain that the petitioner can obtain a money judgment against the

State for wrongful incarceration.”). By using the language it did, the legislature recognized that a

COI and the advantages it provides toward obtaining a money judgment against the State should

be granted only where a petitioner has demonstrated their innocence of all charges.

¶ 34 Petitioner, citing People v. Daniels, 2016 IL App (1st) 142130, vacated, 414 Ill. Dec. 271

(2017), People v. DeBlieck, 181 Ill. App. 3d 600, and People v. Hughes, 2012 IL 112817, argues

that even if he is required to prove his innocence as to all of the offenses charged in the information,

the nol-prossed charges did not constitute “offenses charged in the *** information,” as the State

failed to reinstate or refile the charges.

¶ 35 In response, the State argues that a nolle prosequi does not constitute an acquittal or

indication of innocence, but a decision not to prosecute and does not bar another prosecution for

- 11 - No. 1-21-0260

the same offenses. Further, the State argues that it nol-prossed the charges pursuant to a plea

agreement and was “done solely for practical reasons and as a matter of convenience; it was not

done because there was any doubt that petitioner’s acts or omissions charged in the ***

information constituted a felony or misdemeanor against the State.”

¶ 36 The Smith court, in dicta, rejected a similar assertion made by the State, in answering

questions during oral argument in that case, that to be eligible for a COI, a petitioner would have

to plead and prove their innocence on charges that were nol-prossed. Id. ¶ 25. The Smith court

defined nolle prosequi as a formal notice given by the State that a claim has been abandoned. Id.

(citing Black’s Law Dictionary (11th ed. 2019)). The court cited Hughes, 2012 IL 112817, ¶¶ 24-

25, as does petitioner here, and explained that “[a]bsent the refiling of the abandoned claim or a

motion to vacate the nolle prosequi *** the State cannot pursue and thus has no ability to obtain a

finding of guilt on an abandoned claim.” (Emphasis in original.) Smith, 2021 IL App (1st) 200984,

¶ 25. The Smith court stated “[w]e certainly do not read the COI statute to suggest that a petitioner

would have to demonstrate his innocence of nol-prossed charges.” Id.

¶ 37 We respectfully decline to follow this reasoning here. There are two types of dicta. Obiter

dicta are comments in a judicial opinion that are unnecessary to the disposition of the case and are

not binding as authority or precedent. See People v. Guillermo, 2016 IL App (1st) 151799, ¶ 22

(citing People v. Williams, 204 Ill. 2d 191, 206 (2003)). Judicial dictum is “an expression of

opinion upon a point in a case argued by counsel and deliberately passed upon by the court, though

not essential to the disposition of the cause.” Cates v. Cates, 156 Ill. 2d 76, 80 (1993). Judicial

dictum is “entitled to much weight, and should be followed unless found to be erroneous.” Id. In

Smith, the court declined to “accept” the “suggestion” made by the State in responding to its

questions during oral argument that a petitioner was required to establish their innocence even as

- 12 - No. 1-21-0260

to nol-prossed charges. The rejection of this suggestion which had not been affirmatively raised

by the State and which had no bearing on the ultimate resolution of that case constitutes obiter

dicta and is not binding. Even if the court’s analysis was judicial dictum, we find reasons to depart

from it in this case.

¶ 38 The Smith court’s dicta turned on the observation that the State had no ability to obtain a

finding of guilty on the nol-prossed charges. Section 2-702, however, 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. The Smith dicta is inconsistent with our holding that where a finding of guilty

has been reversed outright on direct appeal and the State cannot seek a finding of guilty, to obtain

a COI, a petitioner must still establish their innocence as to the offense as charged in the indictment

or information by a preponderance of the evidence. People v. Terrell, 2022 IL App (1st) 192184;

Dumas, 2013 IL App (2d) 120561, ¶ 18 (quoting Fields, 2011 IL App (1st) 100169, ¶ 18 (section

2-702 “distinguish[es] between a finding of not guilty at retrial and actual innocence of the charged

offenses”)).

¶ 39 The dicta in Smith conflicts with the plain language of section 2-702 in one other way.

Subsections (d) and (g)(3) 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 which have been nol-

prossed. As discussed, in interpreting a statute we may not “read[] into it exceptions, limitations,

or conditions that the legislature did not express.” Woodard, 175 Ill. 2d at 443. Further, 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.” Terrell, 2022 IL App (1st) 192184, ¶ 40.

- 13 - No. 1-21-0260

¶ 40 The holding in People v. Rodriguez, 2021 IL App (1st) 200173, is supportive of a

conclusion that to obtain a COI, petitioner was required to allege and prove that he is innocent of

the charges in the information, including those charges that were nol-prossed pursuant to the

negotiated plea agreement.

¶ 41 In Rodriguez, the petitioner was convicted of first degree murder and attempted murder,

which were affirmed on direct appeal. Id. Petitioner later filed a postconviction petition alleging

that he was actually innocent and attaching affidavits with newly discovered evidence. Id. ¶ 31.

Pursuant to an agreed order, the circuit court vacated the convictions and granted the State’s motion

to nol-pros the charges. Id. ¶ 32. Thereafter petitioner filed a petition for a COI under section 2-

702, which was denied by the circuit court. Id. ¶¶ 34, 39. The petitioner appealed. Id. ¶¶ 40, 57.

On appeal, this court affirmed the denial of the COI after finding that the petitioner failed to prove

himself innocent of the offenses charged in the indictment, all of which were nol-prossed pursuant

to the agreed order, as required by subsection (g)(3). Id. ¶ 56.

¶ 42 In the alternative, the petitioner argued that he was entitled to a COI pursuant to section 5-

5-4(c) of the Unified Code of Corrections (730 ILCS 5-5-4(c) (West 2018)), because “his

innocence was established in postconviction proceedings.” Rodriguez, 2021 IL App (1st) 200173,

¶ 57. This court explained that under section 5-5-4(c), “[i]f a conviction has been vacated as a

result of a claim of actual innocence *** and the provisions of paragraphs (1) and (2) of subsection

(g) of Section 2-702 of the [Code] *** are otherwise satisfied, the court shall enter an order for a

[COI].” Rodriguez, 2021 IL App (1st) 200173, ¶ 57. This court held that the petitioner had forfeited

this claim, but found that, forfeiture aside, the petitioner was not entitled to a COI under this

provision as the agreed order vacating petitioner’s conviction was not based upon his evidence of

actual innocence. Id. ¶ 59. This court further explained that the State’s decision to nol-pros the

- 14 - No. 1-21-0260

charges was a litigation decision and not a concession of innocence. Id. (citing Hughes, 2012 IL

112817, ¶ 23 (“A nolle prosequi is not an acquittal of the underlying conduct that served as the

basis for the original charge ***.”); Fields, 2011 IL App (1st) 100169, ¶ 19).

¶ 43 Here, similar to Rodriguez, the State nol-prossed the charges based on a litigation decision

and not on a concession of innocence. Specifically, pursuant to the terms of the negotiated

agreement, petitioner pleaded guilty to one count of AUUW and upon acceptance of petitioner’s

plea and sentencing on that one count, the State nol-prossed the remaining counts. See People v.

Whitfield, 217 Ill.2d 177, 190 (2005) (where a defendant enters a negotiated plea of guilty in

exchange for specified benefits, “both the State and the defendant must be bound by the terms of

the agreement” (emphasis in original)). Therefore, to obtain a COI, petitioner was required to show

his innocence as to the offenses charged in the information including those that were nol-prossed

pursuant to the negotiated plea agreement.

¶ 44 This conclusion avoids absurd results under the specific circumstances here. There was no

explanation as to why the plea was taken on the one AUUW count which was later rendered void

by Aguilar. If petitioner had pleaded guilty to any of the other constitutional charges for which

there was apparent factual support, petitioner would not be entitled to a COI solely on the ground

that the information included two AUUW charges which were later determined to be

constitutionally invalid. Granting petitioner’s request for COI without showing his innocence as

to the valid offenses charged in the information that were based on the same set of facts to which

he stipulated when he pleaded guilty would lead to an absurd result. See Moore, 2020 IL App (1st)

190435, ¶ 30 (“A petitioner who is ‘innocent of the offense charged in the indictment or

information’ [citation omitted] is one who is innocent of all charges.” (Emphasis in original.)).

- 15 - No. 1-21-0260

¶ 45 Having found that petitioner was obligated to plead and prove his innocence as to all of the

offenses charged in the information including those offenses which were nol-prossed pursuant to

the negotiated plea, we must determine whether petitioner has met this burden. Subsection (a) of

section 2-702 provides the trier of fact with discretion to “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. 735 ILCS 5/2-

702(a). Here, however, petitioner provided allegations to support his innocence only as to the two

AUUW counts based on the statutory provision found unconstitutional in Aguilar. 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.

¶ 46 Based on the foregoing, we find that petitioner has failed to satisfy his burden of pleading

and proving that he was innocent of all the charges in his information as required under section 2-

702 and the trial court did not err in denying petitioner’s request for a COI.

¶ 47 We affirm the judgment of the circuit court denying petitioner’s request for a COI.

¶ 48 Affirmed.

¶ 49 JUSTICE MARTIN, specially concurring:

¶ 50 I agree with my colleagues that the circuit court properly denied the petitioner’s request for

a certificate of innocence (COI) in this case. I write separately, however, to express my concerns

that requiring a petitioner to prove themselves innocent of all offenses charged in the indictment

or information, including charges nol-prossed by the state, may, in other instances, be unduly

cumbersome upon the petitioner, contrary to the legislature’s intent, and unjust.

¶ 51 Certain rules of statutory construction, including some cited in this order, could lead us to

read the element that the petitioner prove they are innocent of “the offenses charged in the

- 16 - No. 1-21-0260

indictment or information” in a strict, absolute manner. 735 ILCS 5/2-702(g)(3) (West 2020);

supra ¶¶ 14, 17, 26. Under that strict reading, a petitioner must prove their innocence of not only

the offense or offenses for which they were wrongfully convicted, but every other offense the state

included in the charging instrument, even those nol-prossed by the state, in all circumstances.

Supra ¶ 29. In some instances, that requirement is reasonable and consistent with the legislative

intent to relieve wrongly convicted innocent persons of obstacles to obtain relief through a petition

in the Court of Claims. Id. § 2-702(a).

¶ 52 People v. Rodriguez, 2021 IL App (1st) 200173, discussed in this order (supra ¶¶ 40-43),

is such an example where requiring the petitioner to prove his innocence of nol-prossed charges

was consistent with legislative intent. But in Rodriguez, the nol-prossed charges were the same

charges the petitioner was previously convicted of and for which he was incarcerated, not charges

dismissed prior to his conviction. The nolle prosequi occurred after his conviction was vacated.

Whether he was innocent and wrongly convicted necessarily related to the later nol-prossed

charges.

¶ 53 This case is different. Here, the charges at issue were nol-prossed pursuant to a negotiated

plea agreement. The petitioner was never found guilty or incarcerated based on those charges.

However, this petitioner failed to establish his innocence within the meaning the legislature

intended. The facts he stipulated to when he pled guilty establish unequivocally that he committed

the other valid offenses that were nol-prossed. Supra ¶ 44. The same operative facts proved other

charged offenses. Thus, it was reasonable and consistent with legislative intent for the trial court

to include consideration of the nol-prossed charges in determining whether he was entitled to a

COI under these circumstances.

- 17 - No. 1-21-0260

¶ 54 But the same will not always be true of charges nol-prossed pursuant to a plea agreement

or before a trial. We could easily conceive of circumstances that differ qualitatively from this case.

A petitioner not proven guilty of nol-prossed charges through stipulated facts or evidence adduced

at trial may face great difficulty in proving their innocence of those charges, especially if such

charges were not closely connected to the offense of conviction. Requiring persons who were

wrongly imprisoned to prove themselves innocent of every offense charged could result in

deserving petitioners having to litigate matters far removed from the reason they were incarcerated.

And their task may be hindered 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.” 735 ILCS 5/2-702(a) (West 2020). The legislature expressly intended to reduce these

burdens. Id.

¶ 55 Or there could be circumstances where a minor offense was included in a charging

instrument along with a much more serious offense for which the petitioner was wrongly convicted

and imprisoned. To give a stark example, consider a defendant charged with first degree murder

who was found to possess unlawful drugs when arrested. If such a defendant were wrongly

convicted and could prove himself innocent of the murder after languishing in prison for many

years, he could not obtain a COI, under a strict, literal reading of subsection (g)(3), if the drug

charge were included in the charging instrument. I believe that the legislature intended for such a

defendant to be considered innocent of first degree murder and, thus, eligible to obtain a COI. He

was wrongly imprisoned due to the murder for which he was innocent, not the drug offense. It

would be unjust to deny a petition for COI due to a relatively minor offense or a nol-prossed count

for which the petitioner cannot reasonably obtain evidence to prove his innocence. That outcome

- 18 - No. 1-21-0260

would also defeat the legislature’s intent to afford such situated petitioners “due consideration” for

the difficulties of proving their innocence. Id.

¶ 56 All other rules of statutory construction are subordinate to our primary objective to

ascertain and give effect to the legislature’s intent. Evans v. Cook County State’s Attorney, 2021

IL 125513, ¶ 27. We must view a statute as a whole and construe words and phrases in light of

other relevant provisions, not in isolation. Id. We should consider the reason for the law, the

problem sought to be remedied, the purpose to be achieved, and the consequences of construing

the statute one way or another. Id. “When a plain or literal reading of a statute leads to absurd

results or results that the legislature could not have intended, courts are not bound to that

construction, and the literal reading should yield.” Id.

¶ 57 In enacting the COI statute, our legislature found that innocent persons who were

imprisoned after being wrongly convicted in Illinois faced undue obstacles in seeking legal redress.

735 ILCS 5/2-702(a) (West 2020). The legislature expressed that courts should exercise discretion,

in the interest of justice, to afford such persons “due consideration” for the difficulties they face in

proving their innocence. Id.

¶ 58 Further, we should be mindful of the realities of how our criminal justice system functions.

Common experience reveals that the state often charges defendants with far more offenses than it

will ultimately seek convictions for. Many plea agreements result in dropped charges and the state

typically nol-prosses charges, often the majority, before trial. More significant, the state has

tremendous power to pile on any conceivable charge. Requiring a petitioner to prove themselves

innocent of all charged offenses, in every case, perpetuates the disparity between the state and the

individual.

- 19 - No. 1-21-0260

¶ 59 For these reasons, I believe the COI statue should be interpreted and applied in accordance

with its purpose of reducing the obstacles that innocent, wrongly convicted persons face.

Accordingly, due consideration in some cases may mean that a petitioner may not have to prove

their innocence of nol-prossed counts when that requirement would lead to unjust results. The COI

statute is concerned with those who were imprisoned while innocent. It should not be limited to

the immaculate.

- 20 -