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)
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(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.
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¶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.
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¶ 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).
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¶ 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
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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):
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“(1) the petitioner was convicted of one or more felonies by the State of Illinois and
subsequently sentenced to a term of imprisonment, and has served all or any part of the
sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or
information dismissed or, if a new trial was ordered, either the petitioner was found not
guilty at the new trial or the petitioner was not retried and the indictment or information
dismissed; or (B) the statute, or application thereof, on which the indictment or information
was based violated the Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or information or his
or her acts or omissions charged in the indictment or information did not constitute a felony
or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or
her conviction.” (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
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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).
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¶ 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
information.
¶ 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)).
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¶ 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,”
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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
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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
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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.
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¶ 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
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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.)).
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¶ 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
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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.
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¶ 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
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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.
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¶ 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.
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People v. Warner
Court: Appellate Court of Illinois
Date filed: 2022-06-09
Citations: 2022 IL App (1st) 210260-U
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