People v. Pettis , 2023 IL App (1st) 200448-U ( 2023 )

2023 IL App (1st) 200448-UNo. 1-20-0448
Second Division
June 27, 2023
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
____________________________________________________________________________
) Appeal from the
THE PEOPLE OF THE STATE OF ) Circuit Court of
ILLINOIS, ) Cook County.
)
Plaintiff-Appellee, )
) No. 03 CR 25466-01
v. )
) Honorable
JOSEPH PETTIS, ) Timothy Joyce
) Judge, Presiding.
Defendant-Appellant. )
____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s denial of defendant’s petition for certificate of
innocence where, although defendant was found innocent of the AUUW charge,
his unsentenced conviction for UUWF stands, and the statute does not allow for a
partial certificate of innocence. We remand for any additional relief available as a
result of the court’s vacatur of the AUUW conviction.
¶2 Following a bench trial, defendant-appellant Joseph Pettis was found guilty of two counts
of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use of a weapon by
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a felon (UUWF) and sentenced to four years’ imprisonment. Fifteen years later, defendant filed a
petition for postjudgment relief, asserting that his AUUW conviction should be vacated because
the Illinois Supreme Court found the applicable statutory provision unconstitutional in People v.
Aguilar, 2013 IL 112116. The circuit court granted defendant relief under section 2-1401 of the
Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)) and vacated his AUUW
conviction pursuant to Aguilar. Defendant subsequently filed a petition for a certificate of
innocence (COI) pursuant to section 2-702 of the Code (735 ILCS 5/2-702 (West 2018)), which
the circuit court denied. Defendant, proceeding pro se, appeals from that denial. For the reasons
that follow, we affirm and remand.
¶3 I. BACKGROUND
¶4 Defendant was charged by information with two counts of AUUW (720 ILCS 5/24-
1.6(a)(1), (a)(3)(A); 5/24-1.6(a)(2), (a)(3)(A) (West 2002)) and two counts of UUWF (720 ILCS
5/24-1.1(a) (West 2002)). As relevant here, we specifically note that the counts of AUUW were
brought under different sections of the AUUW statute. Defendant waived his right to a jury trial,
and a bench trial was held on July 14, 2004. The evidence presented at trial was as follows.
¶5 On November 2, 2003, at approximately 9:45 p.m., Chicago police officer James Shields
and two other officers were in a marked squad car, patrolling near 620 North Hamlin Avenue.
Officer Shields was in the front passenger seat of the car. As the car was traveling southbound, he
observed defendant walking alone northbound on Hamlin Avenue. From about 25 feet away, he
observed defendant reach into his waistband, pull out a “blue-steel snubbed handgun,” place the
weapon in the left inside jacket pocket, and snap the letter jacket closed. Officer Shields testified
that the streetlights on Hamlin Avenue were working that night.
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¶6 The officers stopped the car and approached defendant. Officer Shields detained defendant
immediately. As he was securing him, defendant stated to Officer Shields that “there was no reason
to search, that he had a handgun, a pistol, in his jacket pocket.” A “small, snub-nose colt detective
special 38-caliber handgun” was recovered. The handgun was loaded. Defendant was placed in the
backseat of the squad car and transported to the police station. While in the car, Officer Shields
informed defendant of his Miranda rights and defendant stated that he had purchased the gun for
$40 from a “hype,” which is a “street term for a drug user,” and he was carrying it for his personal
protection.
¶7 The parties stipulated that defendant had a prior felony conviction.
¶8 Defendant moved for a directed finding, which the circuit court denied.
¶9 Defendant testified that on November 3, 2003, at approximately 9:45 p.m., he was walking
southbound on the 600 block of Hamlin Avenue on the way to his girlfriend’s house when an
unmarked “gray Crown Victoria” police car pulled up behind him on the street and stopped directly
next to him. Two police officers in plainclothes stepped out of the police car and called him over
to them, using his first name, “Joe.” He testified that Officer Shields searched him but did not
recover anything from his person. The officers handcuffed defendant, put him in the backseat of
the police car, and took him to the police station. While in the car, the officers asked defendant for
information about homicides that had occurred in the area, and defendant responded that he did
not know anything. He denied making any statements about having a gun.
¶ 10 On August 19, 2004, the circuit court found defendant guilty of the charged offenses.
Defendant filed a motion for a new trial, which was denied. The circuit court sentenced defendant
to four years’ imprisonment on count 1 for the offense of AUUW. Defendant did not pursue a
direct appeal.
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¶ 11 In 2013, the Illinois Supreme Court decided Aguilar, 2013 IL 112116, which invalidated a
portion of the AUUW statute prohibiting the unlawful use of a weapon. See also People v. Burns,
2015 IL 117387, ¶ 25 (clarifying that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute is
facially unconstitutional “without limitation”).
¶ 12 On October 22, 2019, defendant filed a “Petition for Post-Judgement Relief,” wherein he
cited to Burns and argued that his AUUW conviction was void because the Illinois Supreme Court
found the applicable statutory provision facially unconstitutional. He thus requested “an order
vacating and expunging the judgement of conviction and sentence.”
¶ 13 On November 6, 2019, the circuit court granted defendant relief under section 2-1401 and,
and “per Aguilar,” vacated his AUUW conviction, which the court referred to as “count 1.”
¶ 14 On December 3, 2019, defendant filed a “Petition for Certificate of Innocence,” claiming
that he was entitled to a COI because the crime for which he was convicted was not a crime as the
Illinois Supreme Court had found the applicable statute for that crime unconstitutional.
¶ 15 On January 16, 2020, the circuit court orally denied defendant’s COI petition. On the
record, the court stated the following:
“On Joseph Pettis, Mr. Pettis previously had his so-called [Aguilar/Burns]
conviction in Count 1 vacated pursuant to Section 2-1401 back in November of 2019 by
this court.
The order was entered to that effect, sent to the Illinois Department of Corrections[,]
where Mr. Pettis is being held on some other unrelated matter. He has now filed under this
case number a petition for a Certificate of Innocence claiming that he’s entitled to such
certificate by virtue of the fact that Aguilar rendered one of the counts in this case, or Burns
rendered one of the counts in this case unconstitutional. He is incorrect in that regard. His
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petition for a Certificate of Innocence is otherwise insufficient to warrant him relief. His
petition is denied. The court will enter a one page written order.”
¶ 16 Defendant filed a motion for reconsideration of his petition, which the circuit court denied.
¶ 17 This timely appeal followed.
¶ 18 II. ANALYSIS
¶ 19 Defendant’s main claim on appeal is that the circuit court erred in denying his request for
a COI. To that end, he asserts that his conviction and sentence for the offense of AUUW “must be
voided” based on the Illinois Supreme Court’s holdings in Burns, 2015 IL 117387, and Aguilar,
2013 IL 112116, that the statutory provision underlying his AUUW conviction was facially
unconstitutional. For support, defendant cites to People v. McClinton, 2018 IL App (3d) 160648.
¶ 20 In response, the State argues that, despite the vacatur of defendant’s AUUW conviction,
he still remains convicted of the other charges in the information and he failed to show that he is
innocent of all of the offenses.
¶ 21 Initially, we do not disagree that defendant is innocent of count 1 of the indictment, which
was the offense of AUUW brought under subsection 24-1.6(a)(1), (a)(3)(A), where that subsection
was declared facially unconstitutional and therefore void ab initio. See In re N.G., 2018 IL 121939,
¶ 50 (stating that any conviction based on a void ab initio statute should be treated as if the law
had never been passed and never existed); see also People v. Smith, 2021 IL App (1st) 200984, ¶
24 (AUUW under the void statutory provision is “not a crime.”). However, defendant fails to
acknowledge that in this case he was charged with four offenses and the circuit court found him
guilty of all charged offenses following the bench trial. The court then appears to have merged the
counts together and sentenced defendant on count 1. Under the circumstances before us, the merger
has no effect on the findings of guilt as to the other offenses. This court has held that when a
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sentenced conviction is vacated, the merger of the unsentenced convictions “fails” and a final
judgment and sentence should be entered on one of the valid unsentenced convictions. People v.
Simon, 101 Ill. App. 3d 89, 101 (1981) (citing People v. Zazzetti, 69 Ill. App. 3d 588, 593 (1979));
see also People v. Akins, 2014 IL App (1st) 093418-B, ¶ 16 (finding that the merger of unsentenced
convictions is “no longer in effect” when the sentenced conviction is vacated). In fact, in Aguilar,
our supreme court reversed the defendant’s AUUW conviction, remanded the action to the circuit
court “for imposition of sentence” on the unsentenced unlawful possession of a firearm conviction,
and instructed that “[t]he sentence imposed [for that conviction] shall not exceed the sentence
imposed on the AUUW conviction.” 2013 IL 112116, ¶ 30. 1 Given the court’s mandate in Aguilar,
we are inclined to agree with the panel in Smith, which stated that “[n]either the merger of counts
nor the vacating of a conviction under the one-act, one-crime doctrine negates a guilty finding.”
2021 IL App (1st) 200984, ¶ 28. As such, despite count 1 being vacated, there remain three
offenses for which defendant was found guilty, namely AUUW brought under section 24-1.6(a)(2),
(a)(3)(A), and two counts of UUWF. However, because AUUW under section 24-1.6(a)(2),
(a)(3)(A), was expressly found facially unconstitutional in People v. Mosley, 2015 IL 115872, ¶
25, based on the reasoning of Aguilar, going forward we confine our analysis to the two counts of
UUWF.
1
A petition for a certificate of innocence is collateral to criminal proceedings and is civil in
nature. See People v. Terrell, 2022 IL App (1st) 192184, ¶ 40; see also 735 ILCS 5/2-702(j) (“The
decision to grant or deny a certificate of innocence shall be binding only with respect to claims filed in the
Court of Claims and shall not have a res judicata effect on any other proceedings.”). We note that, when
the circuit court vacated defendant’s conviction for AUUW pursuant to Aguilar, no final judgment and
sentence was then entered on the outstanding UUWF charge. See People v. Calvillo, 2022 IL App (1st)
200886, ¶ 21 (stating that when an AUUW conviction is vacated, “leaving in its stead an unsentenced
constitutionally valid finding of guilt on a different charge, the proper course is to remand for sentencing
on the constitutionally valid count”). Given that the matter before us is a collateral civil proceeding, we
believe remand to be the proper course of action.
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¶ 22 The singular question before this court then is whether the COI statute allows for a
petitioner to obtain a COI where only one of the offenses with which he was charged and of which
he was found guilty has been vacated pursuant to Aguilar. The answer may be found in this court’s
recent decision in People v. Moore, 2020 IL App. (1st) 190435, which we discuss in greater detail
later in this disposition. First, as did the court on Moore, we set out the guiding principles which
govern our review.
¶ 23 Generally, we review the grant or denial of a COI for an abuse of discretion (see Rudy v.
People, 2013 IL App (1st) 113449, ¶ 11); however, where, as here, the issue involves the
interpretation of a statute, our review is de novo (see People v. Simon, 2017 IL App (1st) 152173,
¶ 20).
¶ 24 A reviewing court’s primary goal in construing 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
legislature’s intent is the language of the statutory provision. People v. Fields, 2011 IL App (1st)
100169, ¶ 18. The statute should be considered as a whole and the words used should be given
their plain and ordinary meaning. Palmer, 2021 IL 125621, ¶ 53. In interpreting a statute, no part
should be disregarded or rendered superfluous (People v. Warner, 2022 IL App (1st) 210260, ¶
13), and we must presume that “the legislature did not intend absurd, inconvenient, or unjust
results” (Palmer, 2021 IL 125621, ¶ 53).
¶ 25 With these principles of interpretation in mind, we turn to the statutory framework for the
issuance of COIs.
¶ 26 Clearly set out in the statute’s statement of legislative intent, the purpose of obtaining a
COI is to provide the wrongly incarcerated with an avenue to obtain monetary relief in the Court
of Claims against the State. 735 ILCS 5/2-702(a) (West 2018); see also Warner, 2022 IL App (1st)
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210260, ¶ 32 (stating that the statute’s aim is to “benefit men and women that have been falsely
incarcerated through no fault of their own”). Subsection (b) defines who may petition for a COI.
See 735 ILCS 5/2-702(b) (West 2018). Subsection (c) and (d) specify the necessary contents of
the COI petition. See id. § 2-702(c), (d).
¶ 27 The statute then sets forth the requirements to obtain a certificate of innocence under
section 2-702(g) of the Code. See id. § 2-702(g). A 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, if a new trial was ordered, either the petitioner was found not
guilty at the new trial or the petitioner was not retried and the indictment or information
dismissed; or (B) the statute, or application thereof, on which the indictment or information
was based violated the Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or
information or his or her acts or omissions charged in the indictment or information did not
constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about
his or her conviction.” 735 ILCS 5/2-702(g)(1)-(4) (West 2018).
¶ 28 Finally, subsection (h) provides: “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.” 735 ILCS 5/2-702(h) (West 2018).
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¶ 29 We now turn our attention to Moore, the reasoning and analysis with which we concur. In
Moore, following a bench trial, the petitioner was convicted of four offenses: being an armed
habitual criminal (AHC), robbery, UUWF, and aggravated fleeing of a peace officer. 2020 IL App
(1st) 190435, ¶ 6. Because one of the predicate felonies for the offense of AHC was a 2004
conviction for AUUW, the petitioner’s conviction for AHC was later vacated pursuant to Aguilar,
2013 IL 112116. Id. ¶¶ 6, 8. The petitioner sought a COI as to the AHC count. Id. ¶ 9. The circuit
court granted a “partial” COI as to the vacated AHC conviction only. Id. The State appealed and
the circuit court stayed its order pending disposition of the appeal. Id.
¶ 30 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. In so concluding, the court examined the
pertinent parts of the COI statute which we include here.
¶ 31 Looking at subsection (g), the court stated that the second element “strongly suggests that
a petitioner must be innocent of all offenses charged in the indictment, not just some.” (Emphasis
in original.) Id. ¶ 24. The court found that paragraphs (2)(A) and (2)(B) did not apply to the
defendant, and we come to the same conclusion here.
¶ 32 Paragraph (2)(A), which provides “the judgment of conviction was reversed or vacated,
and the indictment or information dismissed[,]” does not apply because the charges for UUWF
have not been vacated and thus, the indictment has not been dismissed. The Moore court also
pointed out that the inclusion of the phrase, “and the indictment or information dismissed[,]”
suggests that the legislature intended the statute to apply “only to situations where all the charges
leading to *** incarceration were legally invalid[.]” (Emphases original.) Id. ¶ 26.
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¶ 33 Paragraph (2)(B), which provides “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[,]” does not apply because the indictment here was based on multiple statutes, including a
different statute for the two counts of UUWF. This is in contrast to the language of paragraph
(2)(B), which “speaks of a singular ‘statute *** on which the indictment or information was based.’
” Id. ¶ 28 (quoting 735 ILCS 5/2-702(g)(2)(B) (West 2018)). Thus, the second element of
subsection (g) cannot be satisfied by only one of the counts of the indictment against defendant
being vacated. See id.
¶ 34 The third element requires 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[.]” (Emphases added.) 735 ILCS 5/2-
702(g)(3) (West 2018). The Moore court found that the legislature’s use of the plural, as opposed
to the singular, indicates that a partial COI cannot be obtained. See Moore, 2020 IL App (1st)
190435, ¶¶ 29-30.
¶ 35 The Moore court then stated that subsection (h) plainly does not provide authority for a
judge to issue a COI where the petitioner has been found innocent of only some of the offenses
that led to imprisonment. Id. ¶ 31. The subsection clearly provides that the court should issue a
COI where it finds that “the petitioner was innocent of all offenses for which he or she was
incarcerated.” (Emphases added.) 735 ILCS 5/2-702(h) (West 2018). This same language is also
included in subsection (b), stating that the requisite petition should request a COI “finding that the
petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphases added.)
Id. § 2-702(b). The court concluded that the effect of these subsections is that there is no statutory
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authority for a petitioner to request, or for a court to issue, “a finding of innocence on some, but
not all, offenses that led to incarceration.” Moore, 2020 IL App (1st) 190435, ¶¶ 31-33.
¶ 36 Based on its interpretation of the COI statute, the Moore court held that section 2-702 does
not authorize a COI where the petitioner was correctly incarcerated based on at least one
conviction, regardless of the petitioner’s improper incarceration based on another vacated
conviction.
¶ 37 Applying Moore’s interpretation to the instant case, we must conclude that the invalid, and
subsequently vacated, conviction for AUUW does not entitle defendant to a COI where he was
charged and found guilty of two other offenses. Certainly, defendant’s sentence of four years’
imprisonment was pursuant to the now-vacated AUUW conviction; however, as stated, the vacatur
of the sentenced conviction negates the merger and the unsentenced convictions, and their
accompanying findings of guilt, stand. As such, defendant would need to prove his innocence for
those remaining unsentenced convictions to be eligible for a COI.
¶ 38 Before the circuit court and before this court, defendant solely contends that he is innocent
as to count 1 of AUUW because the statutory provision was rendered unconstitutional pursuant to
Aguilar. He does not set forth any allegations showing that he is innocent of the other counts for
which he was charged and of which he was found guilty. Because he did not provide the court with
any pleading, evidence, or argument as to his innocence as to the other offenses, we must find that
defendant has not shown his innocence as to all of his offenses for which he was properly
incarcerated and is not entitled to a COI. See Smith, 2021 IL App (1st) 200984, ¶ 33 (finding that
the defendant, whose AHC conviction was vacated because it was predicated on a prior AUUW
conviction, was not entitled to a COI because he was found guilty of three other offenses).
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¶ 39 We also find People v. McClinton, 2018 IL App (3d) 160648, upon which defendant relies,
inapposite here. There, the defendant was found guilty of AUUW under the now-void statutory
provision. Id. ¶ 5. On direct appeal, this court reversed her conviction for AUUW based on Aguilar.
Id. ¶ 6. Although she was charged with other offenses, the State nol-prossed the remaining charges
following her direct appeal. Id. She was later denied a COI because she “was, and is not, innocent
of this offense on its facts” regardless of the statute being declared unconstitutional and the State
moving to nol-pross her other charges. Id. ¶ 7. The Third District of this court vacated the circuit
court’s order and remanded for entry of an order awarding the defendant a COI. Id. ¶ 22. In so
ruling, the court recognized that the petitioner did not “intentionally cause or bring about her
conviction” where the statute that criminalized her actions was void ab initio. Id. ¶ 21. Although
the defendant in McClinton was charged with other offenses, those were nol-prossed by the State
and were not considered by the court in determining that the defendant was entitled to a COI.2 In
contrast, defendant here was found guilty of multiple other offenses, in addition to the one count
of AUUW that was later vacated under Aguilar.
¶ 40 Accordingly, we conclude that the circuit court properly denied petitioner’s request for a
COI.
¶ 41 Defendant also claims that he was denied due process because the circuit court did not
issue a written order with factual findings when it denied his request for a certificate of innocence.
2
We note that there appears to be some debate within the First District of the appellate court as to
whether a petitioner must prove their innocence as to nol-prossed charges to obtain a COI under section
2-702. Compare Smith, 2021 IL App (1st) 200984, ¶ 31 (stating that the nol-prossed charges in McClinton
were “irrelevant” to the defendant’s right to a COI because there were no findings of guilt as to any of
those charges), with Warner, 2022 IL App (1st) 210260, ¶ 42 (“[T]o 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.”). That issue is not before us in this case and, thus, we express
no opinion on the matter.
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He further asserts that “the circuit court’s failure to issue a written finding of fact and/or addressing
the relevant authority of [McClinton] raises serious concerns of the appearance of bias” by the
circuit court judge.
¶ 42 Here, the circuit court orally issued its ruling on the record, stating the following:
“He has now filed under this case number a petition for a Certificate of Innocence
claiming that he’s entitled to such certificate by virtue of the fact that Aguilar rendered one
of the counts in this case, or Burns rendered one of the counts in this case unconstitutional.
He is incorrect in that regard. His petition for a Certificate of Innocence is otherwise
insufficient to warrant him relief. His petition is denied. The court will enter a one page
written order.”
A written order was also in the record stating that the petition was denied.
¶ 43 We reject defendant’s argument where there is nothing in the COI statute requiring the
circuit court to enter a written order containing findings of fact and conclusions of law. Defendant
does not direct this court to any particular rule or statutory provision mandating a written order
with findings of fact and he does not cite to any cases to support his argument. Moreover, our
review was de novo and defendant cannot show that prejudice resulted from the circuit court’s lack
of written factual findings. See also In re Rita P., 2014 IL 115798, ¶ 51 (“[A]lthough factual
findings may provide an explanation or reason for the trial court’s decision, it is the correctness of
the court’s ruling, and not the correctness of its reasoning, that is under review.”).
¶ 44 In regards to defendant’s claim of judicial bias, we find nothing in the record to support his
allegations. It is presumed that trial judges are impartial, and only the most extreme circumstances
warrant disqualifying a judge due to judicial bias. People v. Jackson, 205 Ill. 2d 247, 276 (2001).
For a defendant to demonstrate bias or prejudice on the part of the circuit court, “the record must
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show that there was active personal animosity, hostility, ill will or distrust toward the defendant
and, absent such a showing, a court will not conclude that there was actual prejudice which
prevented or interfered with a fair hearing.” People v. Johnson, 199 Ill. App. 3d 798, 806 (1990).
¶ 45 Defendant’s only allegation of judicial bias is that the judge should have entered a written
order with “factual or legal reasoning” for the denial and addressed the case he cited to in his
petition. For support, he cites to Gacho v. Wills, 986 F.3d 1067, 1068 (7th Cir. 2021), which
involved a Cook County trial court judge who was sent to federal prison for “soliciting cash for
acquittals” for years and there was evidence that the judge had been bribed in relation to a
codefendant. A comparison can hardly be made to the case before us. Merely because the court
did not explain its reasoning for denying the petition does not give rise to any suggestion of judicial
bias. See also Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002) (“A judge’s rulings alone almost
never constitute a valid basis for a claim of judicial bias or partiality.”).
¶ 46 He next argues that he was denied due process when the Office of the State Appellate
Defender (OSAD) refused to represent him on appeal. We outright reject this contention as OSAD
is not statutorily authorized to represent defendants in civil matters. According to the State
Appellate Defender Act, “[t]he State Appellate Defender shall represent indigent persons on appeal
in criminal and delinquent minor proceedings, when appointed to do so by a court under a Supreme
Court Rule or law of this State” (725 ILCS 105/10(a) (West 2018)), and proceedings under the
certificate of innocence statute are civil in nature. People v. Terrell, 2022 IL App (1st) 192184, ¶
40. Additionally, nothing in the COI statute extends the powers of OSAD to represent indigent
petitioners in these proceedings. For that reason, defendant’s argument is meritless.
¶ 47 In sum, the circuit court properly denied defendant’s petition for a COI and there was no
violation of defendant’s due process rights.
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¶ 48 Before concluding, we briefly return to Moore to determine the appropriate action going
forward. There, the court recognized that where a defendant is convicted of two offenses, one
validly and one wrongly, a defendant could serve more time in prison than he otherwise would
“either because he received a greater sentence for the invalid conviction or because the sentences
ran consecutively, not concurrently.” Moore, 2020 IL App (1st) 190435, ¶ 39. In Moore, the
petitioner was sentenced to 15 years for the later-vacated AHC, 10 years for robbery, and 6 years
for aggravated fleeing, with the sentences running concurrently. Id. ¶ 40. The court acknowledged
that the petitioner spent more time in prison than he should have but nonetheless concluded that
section 2-702 did not provide a remedy in that particular circumstance. Id. ¶¶ 41-42. Nonetheless,
the court stated that the petitioner was not foreclosed from seeking redress in the Court of Claims
for his time spent wrongly incarcerated or to receive an expungement of his conviction, despite
the lack of a COI, and thus, the court reversed and remanded “in the event petitioner may seek any
such additional remedy or relief.” Id. ¶¶ 43-45.
¶ 49 Here, defendant was sentenced to four years’ imprisonment for the now-vacated offense of
AUUW, which was a class 2 felony with a sentencing range of three to seven years. He was also
found guilty of UUWF, which was class 3 felony with a sentencing range of two to ten years. (720
ILCS 5/24-1.1(e) (West 2002)). As such, it is not clear that defendant wrongfully spent additional
time in prison based on the now-vacated AUUW. Nonetheless, we follow Moore’s lead and, in
addition to our remand for purposes of entry of final judgment and sentence on defendant’s UUWF
charge, we remand in the event defendant wishes either to seek expungement of the now-vacated
AUUW conviction or, if available, other redress related to that charge in particular.
¶ 50 III. CONCLUSION
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¶ 51 For the reasons stated, we affirm the judgment of the circuit court, and, consistent with our
findings, the cause is remanded for additional proceedings.
¶ 52 Affirmed and remanded.
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