People v. Green , 2024 IL App (2d) 220328 ( 2024 )

2024 IL App (2d) 220328No. 2-22-0328
Opinion filed July 1, 2024
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellant, )
)
v. ) No. 21-MR-2028
)
CASSIDY J. GREEN, ) Honorable
) John G. Dalton,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justice Schostok concurred in the judgment and opinion.
Justice Hutchinson dissented, with opinion.
OPINION
¶1 The State appeals from the trial court’s order granting the petition of defendant, Cassidy J.
Green, for the issuance of a certificate of innocence (COI). We affirm.
¶2 I. BACKGROUND
¶3 On March 30, 2005, the State charged defendant with six offenses: three counts of
aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(1),
(a)(3)(C); (a)(1), (a)(3)(D) (West 2004)) and one count each of mob action (id. § 25-1(a)(1)),
resisting a peace officer (id. § 31-1(a)), and unlawful possession of cannabis (720 ILCS 550/4(b)
(West 2004)). Pursuant to a fully negotiated plea agreement, defendant agreed to plead guilty to
2024 IL App (2d) 220328one count of AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2004)); in return, the State agreed
to a two-year sentence and the dismissal nolle prosequi of all other counts charged in the
indictment. The parties stipulated to the following factual basis in support of defendant’s guilty
plea:
“If this matter were to proceed to trial, the State would present witnesses who would
testify [that] on February 26 of 2005, at approximately 4:30 p.m., this [d]efendant was at
14 North River Road in Aurora, part of Kane County. Actually, he was in North Aurora.
At that time a fight had broken out. This [d]efendant was the rear passenger in a
vehicle, in the rear seat. This [d]efendant stuck a pistol out the window. When the police
arrived, the [d]efendant ran.
Later, a search of the car revealed a .22 caliber handgun that was loaded with nine
rounds of ammunition in the vehicle.
The [d]efendant admitted that he had in fact possessed the weapon in a loaded
condition.”
The court determined that the guilty plea was made knowingly and voluntarily, and it then accepted
the agreement and imposed the agreed upon two-year sentence. Pursuant to the agreement, the
State nol-prossed the remaining counts.
¶4 Sixteen years later, in February 2021, defendant petitioned to vacate his conviction of
AUUW because our supreme court had held that section 24-1.6(a)(1), (a)(3)(A) of the Criminal
Code of 1961, the provision to which defendant pleaded guilty, violated the United States
Constitution and was void ab initio. See People v. Aguilar, 2013 IL 112116, ¶ 22. The State agreed
that defendant’s conviction had to be vacated. The court granted the petition, vacating defendant’s
conviction.
-2-
2024 IL App (2d) 220328¶5 A few months later, in June 2021, defendant petitioned pro se for a COI under section 2-
702 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2-702 (West 2020)). Defendant
refiled his petition in September 2021 and, again, in December 2021. Defendant alleged that he
satisfied the four requirements in section 2-702(g)(1) through (g)(4) (id. §2-702(g)(1)-(4)) for
obtaining a COI because:
“(1) he was convicted of AUUW and served 180 days in [the Illinois Department
of Corrections] and [one] year [mandatory supervised release][;] (2) the [AUUW] statute
that he was convicted under was later held unconstitutional pursuant to Aguilar; (3) his acts
charged in the indictment of which he was convicted and for which he was incarcerated
did not constitute a felony or misdemeanor against the [S]tate because the charge was based
on a statute later held unconstitutional; and (4) he did not intentionally cause or bring about
his conviction because the statute that criminalized [his] actions is void ab initio, and
therefore, his actions for which he was charged, convicted, sentenced and incarcerated were
not criminal at the time.”
¶6 The State petitioned to intervene and attached to its petition a motion to dismiss under
section 2-619.1 of the Civil Code (id. § 2-619.1). The trial court granted the State’s petition to
intervene. In its motion to dismiss, the State argued that defendant failed to (1) attach necessary
documents to his petition, (2) serve the Illinois Attorney General, (3) notarize the petition, and
(4) establish that he was innocent of the five counts in the indictment that were nol-prossed. Citing
People v. Smith, 2021 IL App (1st) 200984, the State argued that defendant needed to prove by a
preponderance of the evidence that he was innocent of all six offenses charged in the indictment,
not just the offense he was convicted of and incarcerated for.
-3-
2024 IL App (2d) 220328¶7 Defendant filed a motion in opposition to the State’s motion to dismiss, arguing that the
indictment was vacated in its entirety when defendant agreed to plead guilty to AUUW and the
State nol-prossed the remaining five counts charged in the indictment. Defendant also contended
that, because the State had previously agreed that his AUUW conviction was void ab initio, it
could not now challenge defendant’s petition for a COI.
¶8 The trial court “granted in part and denied in part” the State’s motion to dismiss. The court
granted the motion to dismiss to the extent that it directed defendant to serve the Illinois Attorney
General—whom the court deemed a necessary party—within 30 days. The court denied the motion
to dismiss to the extent that it found that Smith supported defendant’s position that he did not need
to prove by a preponderance of the evidence that he was innocent of the five counts that the State
nol-prossed. The court ordered the State to answer the petition within 45 days.
¶9 Meanwhile, defendant served the Illinois Attorney General, who chose not to intervene.
Defendant was also granted leave to file an amended petition for a COI. He attached various
supporting documents to the petition. In requesting a COI, he reiterated the arguments from his
original petition that he satisfied the four requirements in section 2-702(g)(1) through (g)(4) for
obtaining a COI.
¶ 10 In its answer, the State partly challenged defendant’s claim that he met the requirements of
section 2-702(g). The State admitted that defendant was convicted of AUUW and sentenced to
two years’ imprisonment and 12 months’ mandatory supervised release. The State also admitted
that our supreme court in Aguilar held unconstitutional the provision of the AUUW statute under
which defendant was convicted. See 720 ILCS 5/2-702(g)(2)(B) (West 2020). However, the State
denied that defendant could meet the remaining two requirements of section 2-702(g). First, the
State reiterated its argument from its motion to dismiss that defendant had to establish that he was
-4-
2024 IL App (2d) 220328innocent of all offenses charged in the indictment (see id. § 2-702(g)(3)). Since the
constitutionality of the statutes underlying the five nol-prossed charges was not in dispute, the
State claimed that defendant had to otherwise show, by a preponderance of the evidence, that he
was innocent of those charges. Second, as to the final requirement—that defendant establish that
he did not voluntarily cause or bring about his conviction (see id. § 2-702(g)(4))—the State simply
denied that defendant could satisfy this burden of proof.
¶ 11 The court granted the petition for a COI, finding as follows:
“[(1)] [defendant] pled guilty and was sentenced to [sic] a statute later deemed
unconstitutional by the Illinois Supreme Court, [(2)] the statute of limitations has run[,]
thus preventing the State from re-filing any charges dismissed as part of that plea
agreement, [(3)] following the cases cited by the State in its motion to dismiss, [defendant]
does not have to prove he was actually innocent of the charges the State dismissed, [and
(4)] [defendant] has otherwise met his burden[,] and his petition for certificate of innocence
is granted.”
¶ 12 The State moved the trial court to reconsider, arguing that, pursuant to People v. Warner,
2022 IL App (1st) 210260-U, 1 issued five days before the court’s judgment, a defendant seeking
a COI had to prove by a preponderance of the evidence that he was innocent of all offenses charged
in the indictment. Defendant retained counsel and filed a memorandum opposing the State’s
motion to reconsider. In the memorandum, defendant argued that Warner was an outlier that
should not be followed, as it inserted into section 2-702(g)(3) a requirement for which the
1 The Illinois Supreme Court Rule 23 (eff. Jan. 1, 2021) order in Warner was withdrawn,
and an opinion (People v. Warner, 2022 IL App (1st) 210260) was filed, on July 21, 2022.
-5-
2024 IL App (2d) 220328legislature did not provide. Specifically, defendant argued that the court in Warner inserted into
section 2-702(g)(3) the term “all” so that, to obtain a COI, a petitioner needed to establish by a
preponderance of the evidence that he “is innocent of [all] the offenses charged in the indictment.”
735 ILCS 5/2-702(g)(3) (West 2020). Defendant claimed that People v. Palmer, 2021 IL 125621,
People v. McClinton, 2018 IL App (3d) 160648, and Smith conflicted with Warner and should be
followed instead. Defendant contended that awarding him a COI was proper because he
established by a preponderance of the evidence that he was innocent of the AUUW charge he was
convicted of and incarcerated for. In response, the State urged the trial court to follow Warner
because its facts were identical to this case, while the facts of McClinton, Palmer, and Smith were
not.
¶ 13 The trial court denied the State’s motion to reconsider. The court found a split of authority
among the appellate courts concerning whether a petitioner needed to establish his innocence of
all offenses charged in the indictment. The court determined that Palmer, McClinton, and the
special concurrence in Warner correctly interpreted section 2-702. Applying those cases, the court
determined that defendant did not need to establish by a preponderance of the evidence his
innocence as to the offenses charged in the indictment that were later dismissed. This appeal
followed.
¶ 14 II. ANALYSIS
¶ 15 The State contends that the trial court erred in granting a COI to defendant. Specifically,
the State continues to argue that the trial court should have followed the decision in Warner,
arguing that the decision was “well-reasoned in its analysis of the plain language of the statute and
directly on point” with this case such that “its holding should have controlled the petitioner’s
pleadings requirement and burden of proof.” According to the State, the plain language of section
-6-
2024 IL App (2d) 2203282-702 “requires a petitioner to establish his innocence as to all of the charges charged in the
indictment.”
¶ 16 “ ‘Generally, granting a [COI] is within the sound discretion of the [trial] court.’ ” People
v. Brown, 2022 IL App (4th) 220171, ¶ 11 (quoting People v. Amor, 2020 IL App (2d)
190475, ¶ 11). “However, de novo review is appropriate where the issue involves statutory
interpretation.” Id. Here, the parties’ arguments concern the interpretation of the statutory
provisions for the issuance of a COI. Accordingly, our review is de novo.
¶ 17 In interpreting these provisions governing the issuance of COIs, we are guided by the well-
settled rules of statutory construction. “The fundamental goal of statutory construction is to
ascertain and give effect to the legislature’s intent, [which is] best indicated by the plain and
ordinary meaning of the statutory language.” Palmer, 2021 IL 125621, ¶ 53. We cannot depart
from the plain language and ordinary 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). However, where the statutory language is ambiguous, we may consider external
sources in order to discern the intent of the legislature. People v. Bradford, 2016 IL 118674, ¶ 15.
“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). Further, in interpreting these provisions, we presume “that the legislature did not intend
absurd, inconvenient, or unjust results.” Palmer, 2021 IL 125621, ¶ 53.
¶ 18 With these rules of statutory construction in mind, we now examine section 2-702. The
formal title of section 2-702 of the Civil Code is “Petition 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 (West 2020). In enacting section 2-702 of the Civil Code, the legislature
-7-
2024 IL App (2d) 220328declared its findings and intent that “innocent persons who have been wrongly convicted of crimes
in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a
variety of substantive and technical obstacles in the law and that such persons should have an
available avenue to obtain a finding of innocence so that they may obtain relief through a petition
in the Court of Claims.” (Emphasis added.) Id. § 2-702(a).
¶ 19 Subsection (g), which lays out the elements needed to obtain a COI, requires a petitioner
to 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.” Id. § 2-702(g).
-8-
2024 IL App (2d) 220328Assuming that a petitioner can meet his burden, subsection (h) provides that the court “shall enter
a certificate of innocence finding that the petitioner was innocent of all offenses for which he or
she was incarcerated.” Id. § 2-702(h).
¶ 20 Our supreme court has consistently applied a broad reading to section 2-702 to further this
legislative intent. In Palmer, the court found that “the legislature plainly stated its intent to
ameliorate, not impose, technical and substantive obstacles to petitioners seeking relief from a
wrongful conviction.” (Emphasis added.) 2021 IL 125621, ¶ 68. In People v. Washington, 2023
IL 127952, the supreme court cited approvingly the decision in People v. Glenn, 2018 IL App (1st)
161331, where the appellate court “employed an expansive reading of the statute” and “interpreted
the term imprisonment to include petitioners who were sentenced to probation,” noting that the
Glenn court concluded that “its broad interpretation preserved the intent of the statute ‘to seek
relief from the State for wrongful imprisonment.’ ” Washington, 2023 IL 127952, ¶ 32 (quoting
Glenn, 2018 IL App (1st) 161331, ¶ 20). The Washington court found the appellate court’s
decision in the case before it (finding that innocent petitioners who pleaded guilty, whether or not
they voluntarily caused or brought about their convictions, were precluded from obtaining a
certificate of innocence) imposed “technical and substantive obstacles” and was a restrictive
reading of the statute that “does not align with the statutory language or legislative intent.” Id. ¶ 34.
¶ 21 The parties here agree that defendant satisfied section 2-702(g)(1) and (g)(2). However, as
to section 2-702(g)(3), the State argues that “[defendant] was required to establish that he was
actually innocent of all of the charges in the indictment.” (Emphasis added.) Thus, according to
the State, defendant had to prove that he was innocent of all six offenses charged in the indictment,
not just the AUUW count he was convicted of and incarcerated for. Defendant responds that,
because “the word ‘all’ does not appear in subsection [2-]702(g)(3),” adding the word “all”
-9-
2024 IL App (2d) 220328changes the meaning of section 2-702(g)(3), which runs afoul of a reviewing court’s authority. We
agree with defendant.
¶ 22 The State and the dissent rely on Warner to support their arguments. 2 In Warner, the
petitioner was charged with multiple firearms offenses, including six counts of AUUW. Warner,
2022 IL App (1st) 210260, ¶ 2. The petitioner pleaded guilty to one count of AUUW, and in return,
the State nol-prossed the remaining counts charged in the petitioner’s information. Id. ¶ 3. The
petitioner was subsequently convicted of and incarcerated for AUUW. Id. ¶ 5. Thereafter, the
petitioner successfully petitioned to vacate his conviction of AUUW, based on the fact that his
conviction was rendered void by Aguilar. Id. ¶ 6. The petitioner then petitioned for a COI, arguing
that he had been convicted and incarcerated under a statute that was later declared unconstitutional.
Id. ¶ 7. The trial court denied the petition for a COI, and the petitioner appealed. Id. ¶¶ 9-10.
¶ 23 On appeal, the appellate court examined various subsections of section 2-702, including
subsection (g), and noted that some subsections of section 2-702 refer to “ ‘offenses charged in the
indictment or information’ ” while other subsections refer to only those “ ‘offenses for which [the
petitioner] was incarcerated.’ ” Id. ¶ 24 (quoting 735 ILCS 5/2-702(b), (d), (g)(3), (h) (West
2018)). With particular attention paid to subsections (d) and (g), which set forth the pleading and
burden requirements a petitioner must satisfy to obtain a COI, the court reached the following
decision:
2 The State moved to cite as additional authority two recent cases from the Third District:
People v. Lesley, 2024 IL App (3d) 210330, and People v. Jones, 2024 IL App (3d) 210414, both
of which follow Warner. Neither cites the legislation seeking to amend section 2-702 that is
pending in our legislature (see our discussion at infra ¶¶ 48-49).
- 10 -
2024 IL App (2d) 220328“We find the language of the statute to be clear. To obtain a [COI], 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
[other subsections]. 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.” (Emphasis added.) Id.
¶ 28.
¶ 24 In so concluding, the court observed that, “[w]hen 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 purposely in the inclusion or exclusion
[citations], and that the legislature intended different meanings and results.” (Internal quotation
marks omitted.) Id. ¶ 25.
¶ 25 Contrary to the State’s assertion, we do not find Warner “well-reasoned in its analysis of
the plain language of the statute.” Warner violated the well-settled rules of statutory construction
cited above. The clear intent of the legislature is to provide an available avenue for “innocent
persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned” 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) (West 2020). Our supreme court found that “the legislature plainly
stated its intent to ameliorate, not impose, technical and substantive obstacles to petitioners
- 11 -
2024 IL App (2d) 220328seeking relief from a wrongful conviction.” (Emphasis added.) Palmer, 2021 IL 125621, ¶ 68. Yet
the Warner court clearly imposed a major obstacle to such relief by requiring a petitioner to prove
himself innocent of charges that the State never attempted to prove, because it had dismissed the
charges. 3
¶ 26 Further, Warner imposed this obstacle by violating other well-established canons of
statutory construction. When a statute is clear and unambiguous, we cannot depart from the plain
language and ordinary meaning of the statute by reading into it exceptions, limitations, or
conditions that the legislature did not express. Woodard, 175 Ill. 2d at 443. If a statute is
unambiguous (clear), we will apply its terms as written and not consider extrinsic aids. Hernandez
v. Lifeline Ambulance, LLC, 2019 IL App (1st) 180696, ¶ 11. A court should not insert words into
a legislative enactment when the statute otherwise presents a cogent and justifiable legislative
scheme. Auto Owners Insurance v. Berkshire, 225 Ill. App. 3d 695, 698 (1992). Specific to this
theory of recovery for improper conviction and imprisonment, a “petitioner’s ability to obtain a
certificate of innocence is created solely by statute, [and] we are not at liberty to engraft conditions
not within the purview of the statute.” (Emphasis added.) People v. Terrell, 2022 IL App (1st)
192184, ¶ 40.
3 We note that, while Lesley followed Warner’s error of imposing the impediment of
requiring a petitioner to prove himself innocent of charges that the State never attempted to prove,
it declined to impose an additional impediment that a petitioner had to disprove all charges from
separate indictments resolved in a combined plea agreement in order to obtain a COI. See Lesley,
2024 IL App (3d) 210330, ¶¶ 42-44.
- 12 -
2024 IL App (2d) 220328¶ 27 Warner found the language of the statute “to be clear,” demonstrating the legislature’s
“clear intent that a petitioner must allege and prove that they are innocent of all of the offenses
charged in the information.” (Emphases added.) Warner, 2022 IL App (1st) 210260, ¶ 28.
However, the word “all” is not included in the relevant statutory language. In order for a court to
insert language into a statute, the statute must be deemed ambiguous, i.e., capable of at least two
reasonable interpretations. See Hernandez, 2019 IL App (1st) 180696, ¶ 11. Warner found the
statutory language to be clear, yet it inserted additional language in section 2-702(g)(3) to reach
its conclusion. Warner impermissibly inserted language into what it described as “clear” legislative
language. Warner created a counterfactual conditional by substituting “clear” for “ambiguous.”
¶ 28 The insertion of the word “all,” while improper, is also irrelevant. The statutory language
at issue here is that, to obtain a certificate of innocence, the petitioner must prove that he is
“innocent of the offenses charged in the indictment or information.” 735 ILCS 5/2-702(g)(3) (West
2018). Warner presumptively concluded that this means “all of the offenses originally charged in
the indictment.” However, such an assumption disregards the meaning and effect of the dismissal
of charges nolle prosequi. Warner and the dissent impliedly add “originally” to the statute, again
to make the “clear” statutory language clearer. This, despite the fact that the defendant was neither
convicted of nor incarcerated on any of the dismissed charges.
¶ 29 “A motion to nol-pros is comparable to a motion to dismiss.” People v. Daniels, 187 Ill.
2d 301, 312 (1999). “[T]he ordinary effect of a nolle prosequi is to terminate the charge to which
it is entered and to permit the defendant to go wherever he pleases, without entering into a
recognizance to appear at any other time.” (Emphasis added.) People v. Watson, 394 Ill. 177, 179
(1946). “The nolle pros terminates the charge and requires the institution of a new and separate
- 13 -
2024 IL App (2d) 220328proceeding to prosecute a defendant for that offense.” (Emphasis added.) People v. Sanders, 86
Ill. App. 3d 457, 469 (1980). This court has held:
“The dismissal of charges through nolle prosequi reverts the matter to the same condition
that existed before the commencement of the prosecution. [Citation.] Hence, no criminal
charges remain pending against the defendant.” (Emphases added.) People v. Totzke, 2012
IL App (2d) 110823, ¶ 23.
We then distinguished the effect of a nolle prosequi from that of striking a charge with leave to
reinstate (SOL), pursuant to which “the defendant is still charged with the crime.” (Emphasis
added.) Id. ¶ 24.
¶ 30 The only offense charged in the indictment in this case is the AUUW charge to which
defendant pleaded guilty; all the other offenses with which he was charged were dismissed and did
not remain pending. Even inserting the improper “all” into the statutory language really makes no
difference here; “all” of the offenses is the one AUUW offense. It is innocence of this charge, the
one charge for which defendant was incarcerated, that defendant must prove.
¶ 31 This is not a novel theory. See Smith, 2021 IL App (1st) 200984, ¶ 25:
“Another broad assertion that we reject is the State’s suggestion, when questioned
by the panel, that to be eligible for a COI, a petitioner might have the burden of
affirmatively demonstrating his innocence even on charges that were nol-prossed by the
State. *** We certainly do not read the COI statute to suggest that a petitioner would have
to demonstrate his innocence of nol-prossed charges.”
Warner declined to follow this reasoning, as it found that this aspect of the Smith judgment “had
not been affirmatively raised by the State and *** had no bearing on the ultimate resolution of that
case” such that it constituted obiter dicta and was not binding. Warner, 2022 IL App (1st)
- 14 -
2024 IL App (2d) 220328210260, ¶ 36. This is a mischaracterization. Obiter dicta are remarks or opinions that are uttered
by a court as an aside. LeBron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 236 (2010). As a
general rule, it is not binding as authority or precedent within the stare decisis rule. Cates v. Cates,
156 Ill. 2d 76, 80 (1993). On the other hand, judicial dicta (remarks or opinions upon a point in a
case argued by counsel and deliberately passed upon by the court) is entitled to much weight and
should be followed unless found to be erroneous. Id. Clearly, the conclusion in Smith was judicial,
not obiter, dicta. The court had questioned the State on the issue at oral argument and provided
analysis of the meaning of nol-prossing a charge. Smith, 2021 IL App (1st) 200984, ¶ 25. This was
no off-hand remark by the court and was not obiter dicta.
¶ 32 The meaning and effect of the dismissal of charges nolle prosequi also affects the
application of contract law principles to a fully negotiated guilty plea. See People v. Absher, 242
Ill. 2d 77, 87 (2011) (“[W]e have repeatedly held that fully negotiated guilty pleas such as the one
at bar are governed by principles of contract law.”). The existence of a sentencing concession on
the part of the State triggers the application of contract principles. Id. Here, the plea agreement
involved a plea of guilty to the one charge of AUUW, a two-year term of incarceration, and the
dismissal of all other charges. Thus, contract principles apply.
¶ 33 A substantial part of defendant’s benefit from the deal was the dismissal of all other
charges. By entering the plea agreement, defendant had the right to the benefit of the matter
reverting “to the same condition that existed before the commencement of the prosecution” such
that “no criminal charges remain pending against” him. Totzke, 2012 IL App (2d) 110823, ¶ 23.
However, under the application of Warner’s analysis, defendant here would discover that, years
after serving his term of imprisonment, the matter has not reverted to the preprosecution condition;
the ghost of the dismissed charges would, in reality, remain pending against him, preventing him
- 15 -
2024 IL App (2d) 220328from being compensated for being incarcerated pursuant to an unconstitutional charge. He would
still be required to contend with and prove himself innocent of criminal charges that not only were
never proven but were dismissed almost 20 years ago and neither prosecuted nor reinstated. The
fact that they were dismissed and have not been reinstated is cited by the dissent as the appropriate
benefit: “The only benefit defendant reasonably could have expected to receive from his bargain
was that certain charges would be nol-prossed, meaning that ‘no criminal charges remain pending
against the defendant.’ ” Infra ¶ 72 (quoting Totzke, 2012 IL App (2d) 110823, ¶ 23). The dissent’s
position is paradoxical; no criminal charges remain pending against a defendant after a nolle
prosequi yet the defendant must prove his innocence of such no-longer-pending charges in order
to be compensated for his improper incarceration by the State.
¶ 34 In the film “The Princess Bride,” Miracle Max’s comments on Westley’s health fit the
dissent’s characterization of these charges: “There’s a big difference between mostly dead and all
dead. Mostly dead is slightly alive.” The Princess Bride (20th Century Fox 1987). Clearly, under
Warner, defendant would not receive the full benefit of his bargain from his guilty plea, whereas
the State would receive a windfall, that the charges were slightly alive. Based upon contract
principles and the other charges being “all dead,” Smith’s judicial dicta is well reasoned and
persuasive.
¶ 35 The nature of section 2-702 is a civil remedy that facilitates the award of compensatory
damages for wrongful imprisonment based upon innocence. Interestingly, we can analyze it as in
the nature of a tort. As such, recovery would be based upon three elements of proof: (1) a duty,
(2) a breach thereof, and (3) damages proximately caused. See Milevski v. Ingalls Memorial
Hospital, 2018 IL App (1st) 172898, ¶ 28.
- 16 -
2024 IL App (2d) 220328¶ 36 In this case, there was only one crime for which defendant was imprisoned. Ergo, there is
only one instance of damages proximately caused and only one crime that requires proof of
innocence thereof. It is counterintuitive to suggest that “all” the crimes listed in the original
indictment are relevant and material when defendant cannot prove a scintilla of damages
proximately caused arising from “all” those other unrefiled, unprosecuted, unconvicted, and
unsentenced crimes in the indictment. The Warner analysis requires a defendant to present
evidence not germane to his right to recover in basic tort law and creates substantial obstacles to
recover under all charges for which there are, in reality, no damages. There was no prison time
imposed on those other charges and, therefore, there could be no possible recovery for damages.
¶ 37 The placing of Warner’s requirements upon a wrongly convicted defendant imposes, rather
than ameliorates, technical and substantive obstacles to relief from a wrongful conviction, in
contravention of our supreme court’s Palmer decision. In Palmer, the petitioner was charged with
five counts of first degree murder (all related to the same victim) and one count of residential
burglary of the victim’s apartment that had occurred the day before the murder. Palmer, 2021 IL
125621, ¶ 5. After a jury trial, the petitioner was found not guilty of the residential burglary charge
but guilty of first degree murder and was sentenced to life in prison on one count thereof. Id. ¶ 28.
Eventually, DNA testing of certain evidence led, as the State explained, to the conclusion that the
petitioner was “excluded as a contributor to the DNA recovered under the victim’s fingernails and
that ‘the victim’s cause of death was a violent bludgeoning by a hammer, resulting in defensive
wounds to the victim, which is indicative of a physical struggle with the perpetrator.’ ” Id. ¶ 34.
The State moved to dismiss the charges against the petitioner without prejudice, and the trial court
vacated and dismissed all charges against the petitioner and ordered the petitioner’s immediate
release from custody. Id. ¶ 35.
- 17 -
2024 IL App (2d) 220328¶ 38 The petitioner subsequently filed a petition seeking a COI. The State, while conceding that
the new evidence established that the petitioner was not the primary assailant who killed the victim,
argued, inter alia, “that the evidence ‘does nothing to refute the argument that petitioner may be
guilty of the victim’s murder as an accessory or as a participant in a felony murder.’ ” Id. ¶ 44.
The petitioner argued that the State “could not change its theory of petitioner’s guilt for the first
time in those proceedings without violating his due process rights” and that the State’s attempt to
raise a new theory of his guilt was barred by the doctrine of judicial estoppel. Id. ¶ 46.
¶ 39 The trial court denied the petitioner’s petition, stating that it could not “ ‘find that
[petitioner] has proven by the preponderance of the evidence that [petitioner] has established that
he is innocent of the charge of murder.’ ” Id. ¶ 47. The court rejected the petitioner’s contention
that “the State was limited to arguing that petitioner was guilty of first degree murder as charged
in his criminal trial.” Id. The appellate court affirmed, concluding that “the trial court did not abuse
its discretion when it found that petitioner failed to establish that he did not commit first degree
murder on a theory of accountability or felony murder.” Id. ¶ 48.
¶ 40 The supreme court described the petitioner’s position on appeal as follows:
“Petitioner argues that subsection (g)(3) should be construed to require proof only
of his innocence of the specific factual offense charged in his criminal case. Petitioner
urges this court to reject the State’s argument, accepted by the appellate court, that
subsection (g)(3) requires him to prove that he is innocent of every conceivable theory of
criminal liability for the offense. Because petitioner was charged with first degree murder
on the basis that he personally beat the victim to death and the State now concedes that
petitioner was not the principal attacker, petitioner argues that he is entitled to a certificate
of innocence.” Id. ¶ 59.
- 18 -
2024 IL App (2d) 220328¶ 41 The supreme court agreed with the petitioner, finding that “the legislature intended that a
petitioner establish his or her innocence of the offense on the factual basis charged in the
indictment or information. This construction is also consistent with the legislature’s express goal
of providing those individuals who are wrongfully convicted with ‘an available avenue to obtain
a finding of innocence so that they may obtain relief through a petition in the Court of Claims.’ ”
(Emphasis omitted.) Id. ¶ 64 (quoting 735 ILCS 5/2-702(g)(3) (West 2018)). The court found that
it was “undisputed” that the State’s theory of the petitioner’s guilt “was never charged or presented
to the trier of fact in the underlying criminal proceedings.” (Emphasis added.) Id. ¶ 66. Because
of the State’s trial strategy,
“there is no evidence or argument from either party on whether petitioner acted as an
accomplice when the victim was murdered. In other words, the record is devoid of any
meaningful evidence or argument to assist a reviewing court in deciding whether first
degree murder as an accomplice has been disproven by petitioner in this case. *** As
petitioner argues, he cannot be expected to have access to the evidence necessary to
disprove a theory of guilt that was never charged or presented during the original criminal
proceedings.
Put simply, it is unreasonable to conclude that the legislature intended subsection
(g)(3) to require a petitioner to prove his innocence of a novel theory of guilt that was never
charged or presented to the trier of fact. In fact, the legislature plainly stated its intent to
ameliorate, not impose, technical and substantive obstacles to petitioners seeking relief
from a wrongful conviction. [Citation.] The legislature also instructed a court reviewing a
petition for a certificate of innocence to give ‘due consideration to difficulties of proof’
- 19 -
2024 IL App (2d) 220328caused by the passage of time, unavailability of witnesses, the destruction of evidence, or
other factors not caused by the petitioner.” (Emphases added.) Id. ¶¶ 67-68.
The court reversed “the judgments of the circuit court and the appellate court reaching the opposite
conclusion, and [remanded] to the circuit court with directions to enter an order granting [the
petitioner’s] petition for certificate of innocence.” Id. ¶ 80.
¶ 42 Following Warner in the case before us would require defendant to prove his innocence of
charges that were never presented to the trier of fact, based upon a record that is axiomatically
devoid of meaningful evidence. Further, any such evidence that could exist arose approximately
19 years ago. The fact that Palmer involved a theory of guilt not presented to the trier of fact, while
this case involves charges never presented to the trier of fact, does not lessen the application and
import of the supreme court’s holding here.
¶ 43 If Warner’s conclusion that a defendant must prove his innocence of all charges leveled in
the indictment or information in order to be granted a COI were correct, that would logically mean
that a defendant would be required to prove his innocence of charges for which he was found not
guilty after trial. A not guilty finding is not the same as a finding of innocence, even after a retrial
on the charge a defendant was originally convicted of and incarcerated for. See People v. Dumas,
2013 IL App (2d) 120561, ¶ 18 (“The First District has stated that ‘the plain language of section
2-702 shows the legislature’s intent to distinguish between a finding of not guilty at retrial and
actual innocence of the charged offenses.’ [Citation.] This means that the defendant must prove by
a preponderance of the evidence that he is ‘actually innocent,’ as opposed to circumstances in
which the State presented insufficient evidence to convict.”). However, our supreme court has not
made that a requirement. In that respect, what Palmer did not say is as important as what it did
say.
- 20 -
2024 IL App (2d) 220328¶ 44 The main issue in both the appellate court (People v. Palmer, 2019 IL App (4th) 190148)
and the supreme court Palmer opinions was the petitioner’s argument that section 2-702(g)(3) of
the Civil Code “should be construed to require that he must ‘prove his innocence of the particular
factual offense with which he was actually charged and that led to his wrongful conviction.’ ”
Palmer, 2021 IL 125621, ¶ 51. However, the petitioner had also been found not guilty of the
residential burglary charge after trial. Nowhere in either the appellate court or supreme court
opinion is there any mention, let alone analysis, of evidence of innocence of the charge of
residential burglary that had been filed against the petitioner in the same indictment. 4 Pursuant to
the Warner theory, the petitioner in Palmer would have been required to prove his innocence of
that charge, too. The fact that the petitioner had been found not guilty of that offence after trial
would not negate that requirement.
¶ 45 While the question raised on appeal to the supreme court was specific to the first degree
murder charge, the supreme court ordered the trial court to enter an order granting the petitioner’s
petition for a COI. Neither the appellate court nor the supreme court ever addressed or considered
the petitioner’s innocence of “all” of the charges in the petitioner’s indictment or information.
Innocence of the residential burglary charge was irrelevant to the question of whether the petitioner
should have been granted the COI, because the petitioner was incarcerated only on the first degree
murder charge; that is why neither court considered innocence as to the residential burglary charge.
4 The appellate court addressed burglary only as it related to one of the first degree murder
charges brought under a theory of “felony murder.” See Palmer, 2019 IL App (4th)
190148, ¶¶ 163-64. It did not address residential burglary in the context of innocence of “all” of
the charges.
- 21 -
2024 IL App (2d) 220328The supreme court ordered the issuance of the COI in the absence of any proof of innocence of the
residential burglary charge because that charge was irrelevant to the issuance of the COI. While
Palmer preceded Warner, we do not believe that the supreme court would have ignored the absence
of evidence of innocence regarding residential burglary and ordered the issuance of a COI if the
language of section 2-702(g)(3) clearly and plainly required proof of innocence of “all” offenses.
¶ 46 Similarly, the petitioner in Washington was charged with armed robbery and murder; after
a trial resulted in a hung jury, the petitioner pleaded guilty to first degree murder. Washington,
2023 IL 127952, ¶¶ 1, 3. The disposition of the armed robbery charge is unclear. The trial court
asserted that “petitioner entered a plea of guilty to first degree murder” and was sentenced “to
serve a term of 25 years’ imprisonment.” People v. Washington, No. 93-CR-14676, slip order at
*1 (Cir. Ct. Cook County, Oct. 31, 2016). The appellate court said that the petitioner and his
codefendant “were convicted of the May 1993 armed robbery and murder.” People v. Washington,
2020 IL App (1st) 163024, ¶ 3. The supreme court merely stated that “petitioner accepted the
State’s offer of a 25-year sentence in exchange for a guilty plea.” Washington, 2023 IL 127952,
¶ 4. After the petitioner served his sentence, his conviction was reversed and the charges against
him were dismissed, due to allegations that police officers coerced and tortured him into signing a
prewritten statement falsely confessing to the murder. Id. ¶¶ 1, 5. Petitioner sought a COI, which
the trial court denied. The appellate court affirmed the denial, finding in part that the petitioner
caused or brought about his conviction by pleading guilty and was not entitled to a COI. Id. ¶ 22.
¶ 47 The question before our supreme court involved the effect of a guilty plea on a petition for
a COI and whether the petitioner “voluntarily caused or brought about his conviction with his
guilty plea.” Id. ¶ 25. The court ultimately reversed the judgment of the appellate court, concluding
that “the plain language of the statute does not categorically bar an innocent petitioner who pleaded
- 22 -
2024 IL App (2d) 220328guilty from obtaining a certificate of innocence” (id. ¶ 62), and remanded the cause to the trial
court “with directions to enter an order granting petitioner a certificate of innocence.” Id. ¶ 64.
¶ 48 Again, as in Palmer, none of the Washington courts made any mention of the armed
robbery charge in the analyses of whether the petitioner had met the necessary statutory
requirements to obtain a COI by a preponderance of the evidence. As noted above, the courts did
not even agree as to the charge’s disposition. Yet the supreme court directed the trial court to grant
the petitioner a COI. We note that the supreme court issued its opinion in Washington a year after
the First District issued its opinion in Warner. The fact that the supreme court paid no attention to
the proof of innocence of the armed robbery charge in its analysis before directing the trial court
to issue a COI is strong evidence that the supreme court does not find Warner’s analysis to be
compelling, let alone controlling or precedential.
¶ 49 We also note that the legislature has been active in an attempt to amend section 2-702. A
reviewing court may take judicial notice of pending legislation. See Karbin v. Karbin, 2012 IL
112815, ¶ 46 n.2. House Bill 1015 of the 103rd Illinois General Assembly, 2023 Session, which
was passed by the House on March 23, 2023, amends section 2-702(d) as follows:
“(d) The petition shall 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
alleged offenses for which he or she was convicted charged in the indictment or
information or his or her acts or omissions for which he or she was convicted 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 his or her conviction. The petition shall be verified by the petitioner.” (Additions
shown in italics, deletions in strikethrough). 103d Ill. Gen. Assem., House Bill 1015, 2023
- 23 -
2024 IL App (2d) 220328Sess.
The Illinois Senate is currently considering an amended version of House Bill 1015, which would
amend section 2-702(d) as follows:
“(d) The petition shall 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 alleged offenses for which he or she was convicted or adjudicated a delinquent
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 his or her conviction or juvenile delinquency adjudication. The petition shall be
verified by the petitioner.” (Additions shown in italics, deletions in strikethrough). 103d
Ill. Gen Assem., House Bill 1015, Senate Amend. 1, 2023 Sess.
¶ 50 The proposed amendments to section 2-702(d) are not now exactly the same; however,
both versions would remove the “charged in the indictment or information” language that Warner
grasped at for its interpretation and holding. Where the legislature chooses not to amend the terms
of a statute after a judicial construction, “it will be presumed that it has acquiesced in the court’s
statement of legislative intent.” Board of Education of City of Chicago v. Moore, 2021 IL 125785,
¶ 30. While the proposed amendments to section 2-702(d) are not dispositive of the issue here on
appeal, the lack of the legislature’s acquiescence to the Warner reasoning and decision is manifest.
It makes no sense to adopt case law reasoning regarding legislative intent when the legislature is
actively demonstrating that it disagrees with that very rationale.
¶ 51 Based upon the foregoing, we conclude that Warner, instead of ameliorating technical and
substantive obstacles to petitioners seeking relief from a wrongful conviction, imposed the
- 24 -
2024 IL App (2d) 220328following impediments that Palmer, Washington, and established case law have proscribed:
(1) requiring the negation of proof of charges that are patently not proven but are implicitly
presumed by Warner to be proven; (2) changing the legal and contractual effect of a dismissal
nolle prosequi; (3) subverting contract law as it is applied to negotiated guilty pleas; (5) subverting
tort law and the necessary proofs required to entitle a plaintiff to recover damages; (6) raising straw
men by requiring refutation of charges for which there are no damages proximately caused;
(6) requiring proof of innocence of charges based upon a record in which witnesses were not
called, evidence was not admitted, findings of controverted fact were not made, and no damages
were proximately caused; and (7) failing to broadly interpret the statute as our supreme court has
directed us to do in Palmer and Washington. 5 Instead of removing impediments, Warner raised
substantial impediments that Lesley and Jones have reinforced, contrary to the legislature’s intent
to compensate wrongly incarcerated defendants and to the strictures of Palmer and Washington.
The Warner rationale disregards the legislature’s intent and makes the “available avenue to obtain
a finding of innocence” little more than an illusion.
¶ 52 The dissent fails to understand that, by finding that Warner’s reasoning is “sound”
(infra ¶ 66), it has adopted Warner’s counterfactual conditional that the statutory language here is
5 While acknowledging our supreme court’s directive to broadly interpret the statute, the
dissent finds that the directive “does not allow us to circumvent the statute’s plain language, which
requires an individual seeking a certificate of innocence to establish his innocence as to all offenses
charged in the indictment. 735 ILCS 5/2-702(g)(3) (West 2020).” (Emphases added and in
original.) Infra ¶ 70. We reiterate that the plain language of section 2-702(g)(3) does not contain
the word “all.” See 735 ILCS 5/2-702(g)(3) (West 2020).
- 25 -
2024 IL App (2d) 220328“clear” but in need of clarity. See supra ¶ 27. Thus, the dissent’s analysis is on a predetermined
incorrect path that fails to heed both the legislature’s findings and intent and our supreme court’s
findings in Palmer. Every one of the dissent’s determinations sustains and supports, rather than
ameliorates, impediments to relief from a wrongful conviction. The adoption of the counterfactual
conditional also blinds the dissent to the meaning of the legislature’s ongoing attempt to amend
the statute to remove the language that Warner misinterpreted and the dissent relies on here.
¶ 53 Occam’s razor, or the law of parsimony, posits that, when faced with competing
explanations for the same phenomenon, the simplest is likely the correct one. See Occam’s Razor,
Conceptually, https://conceptually.org/concepts/occams-razor (last visited May 28, 2024)
[https://perma.cc/4HZ6-5ZG5]. The simplest answer here is to redact the terms inserted by the
Warner court based upon a counterfactual conditional. Defendant should neither be burdened with
having to adjudicate his innocence of charges that the State failed or refused to convict him of the
first time around, nor be required to prove his innocence about matters that have no relation to the
amount of his damages for his wrongful incarceration.
¶ 54 The State also contends that defendant failed to meet his burden under section 2-702(g)(4)
of the Civil Code, which requires a defendant seeking a COI to prove by a preponderance of the
evidence that he “did not by his *** own conduct voluntarily cause or bring about his ***
conviction.” 735 ILCS 5/2-702(g) (West 2020). According to the State, defendant “actively
participated in his prosecution” by pleading guilty to an offense. The State relies on Washington,
2020 IL App (1st) 163024, ¶ 25, in which the First District held that “[a] defendant who has pled
guilty ‘cause[d] or [brought] about his or her conviction’ (735 ILCS 5/2-702(g)(4) (West 2016))
and is not entitled to a certificate of innocence.”
- 26 -
2024 IL App (2d) 220328¶ 55 Defendant argues that the State has raised this issue for the first time on appeal and has,
therefore, forfeited the issue on appeal. See People v. Pursley, 2022 IL App (2d) 210558, ¶ 68
(“Arguments not raised before the trial court are generally forfeited on appeal.”). Our review of
the record leads us to conclude that the State has, indeed, forfeited this issue.
¶ 56 In its initial brief, the State provides no citations to the record indicating that this issue was
raised in the trial court. In its reply brief, the State cites its combined motion to dismiss defendant’s
petition, dated February 22, 2022, in which it listed the section 2-702(g) requirement that a
petitioner did not by his own conduct voluntarily cause or bring about his conviction. However,
its only argument regarding that requirement was that, if the Smith court’s “reasoning is correct,
then there would be no need for paragraph (4) as a requirement for the defendant to have to prove
in order to obtain a certificate of innocence.” The State also cited its answer to defendant’s
amended petition, dated April 26, 2022; however, this merely contains the conclusory statement
that the State “denies that [defendant] can satisfy his burden of proof pursuant to 735 ILCS 5/2-
702(g)(4).” The bystander’s reports of the arguments made before the trial court contain no
mention of any argument regarding section 2-702(g)(4).
¶ 57 Clearly, the State did nothing more than mention the existence of the section 2-702(g)(4)
requirement and deny that defendant would be able to fulfill it. This does not rise to the level of
raising the issue below. With its failure to raise this issue in the trial court, we find that the State
forfeited the issue on appeal.
¶ 58 Even if we had not found forfeiture, we would not find any error in the trial court. The sole
basis for the State’s argument on appeal is the conclusion of the appellate court in Washington that
“[a] defendant who has pled guilty ‘cause[d] or [brought] about his or her conviction’ (735 ILCS
5/2-702(g)(4) (West 2016)) and is not entitled to a certificate of innocence.” 2020 IL App (1st)
- 27 -
2024 IL App (2d) 220328163024, ¶ 25. However, our supreme court reversed the appellate court in Washington, holding
that “petitioners who pleaded guilty are not categorically barred from seeking certificates and the
appellate court erred in so finding.” Washington, 2023 IL 127952, ¶ 36. Thus, the State’s
contention here would have been unavailing.
¶ 59 III. CONCLUSION
¶ 60 For these reasons, the judgment of the circuit court of Kane County is affirmed.
¶ 61 Affirmed.
¶ 62 JUSTICE HUTCHINSON, dissenting:
¶ 63 The majority’s opinion misinterprets subsection (g)(3) of section 2-702 of the Civil Code,
and therefore, I respectfully dissent.
¶ 64 As the majority’s opinion provides, subsection (g) lays out the elements needed to obtain
a COI. 735 ILCS 5/2-702(g) (West 2020). Specifically, 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;
- 28 -
2024 IL App (2d) 220328(3) the petitioner is innocent of the offenses charged in the indictment or
information or his or her acts or omissions charged in the indictment or information
did not constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or
bring about his or her conviction.” 735 ILCS 5/2-702(g) (West 2020).
¶ 65 Section 2-702(g)(3) indicates that a petitioner must prove by a preponderance of the
evidence that he was innocent of the “offenses charged in the indictment.” (Emphasis added.) Id.§ 2-702(g)(3). Giving this language its plain and ordinary meaning, it is clear the legislature
intended that a petitioner prove by a preponderance of the evidence his innocence of all offenses
charged in the indictment, not just those offenses he was convicted of and incarcerated for.
¶ 66 This interpretation fits squarely within the First District’s recent holding in Warner, 2022
IL App (1st) 210260. Unlike the majority, I find Warner’s reasoning to be sound. In Warner, the
petitioner was charged with multiple offenses. Id. ¶ 2. One of those offenses was AUUW. Id. The
petitioner pleaded guilty to that offense, and in return, the State nol-prossed the remaining counts
charged in the information. Id. ¶ 3. The petitioner was subsequently convicted of and incarcerated
for AUUW. Id. ¶ 5. Thereafter, the petitioner successfully petitioned to vacate his conviction of
AUUW, pursuant to Aguilar. Id. ¶ 6. The petitioner then filed for a COI, arguing that he had been
convicted of and incarcerated for an unconstitutional offense, i.e., AUUW. Id. ¶ 7. The petitioner
failed to allege that he was innocent of any other offense charged in the information. Id. The trial
court denied the petition for a COI, and the petitioner appealed. Id. ¶¶ 9-10.
¶ 67 On appeal, the appellate court examined various subsections of section 2-702, including
subsection (g), and noted that some subsections of section 2-702 refer to “ ‘offenses charged in the
indictment or information’ ” while other subsections refer to only those “ ‘offenses for which [the
- 29 -
2024 IL App (2d) 220328petitioner] was incarcerated.’ ” Id. ¶ 24 (quoting 735 ILCS 5/2-702(b), (d), (g)(3), (h) (West
2018)). With particular attention paid to subsections (d) and (g), which set forth the pleading and
burden requirements a petitioner must satisfy to obtain a COI, the court reached the following
decision:
“We find the language of the statute to be clear. To obtain a [COI], a petitioner
must allege specific facts in the petition demonstrating that they [sic] 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
[other subsections]. 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.” Id. ¶ 28.
¶ 68 The Warner court noted that, “[w]hen 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 purposely in the inclusion or exclusion [citations], and that the
legislature intended different meanings and results [citations].” (Internal quotation marks omitted.)
Id. ¶ 25. The majority’s analysis ignores this presumption. Here, the legislature used the phrase
“offenses charged in the indictment” in subsection (g)(3), but used the phrase “all offenses for
which he or she was incarcerated” in subsections (b) and (h). When the legislature used that
different language elsewhere throughout section 2-702, that use was for a different purpose. See
Brown, 2022 IL App (4th) 220171, ¶ 24 (after noting that the plain language of section 2-702(d)
- 30 -
2024 IL App (2d) 220328and (g)(3) requires a petitioner to establish his innocence of all charged offenses, the court
observed that, “[a]lthough other subsections of the statute use different language, such subsections
do not specify the pleading and burden requirements for obtaining a [COI]”).
¶ 69 Additionally, the Warner rationale was recently adopted by the third district in People v.
Lesley, 2024 IL App (3d) 210330, and People v. Jones, 2024 IL App (3d) 210414. In both cases,
the third district appropriately found the statutory language to be clear, and held that subsection
(g)(3) required a petitioner to prove his or her innocence of all offenses charged in the indictment.
Lesley, 2024 IL App (3d) 210330, ¶ 41; Jones, 2024 IL App (3d) 210414, ¶ 17. In so holding, the
court in Lesley noted that “this interpretation is consistent with the legislative intent—to provide
the wrongfully incarcerated with an avenue to obtain relief in the Court of Claims—and avoids
absurd results,” and it stated that “ ‘[w]e doubt the legislature envisioned compensating people
who could have been lawfully imprisoned for more serious offenses but who happened to plead
guilty to a lesser offense that was later recognized to be void ab initio.’ ” Lesley, 2024 IL App (3d)
210330, ¶ 6 (quoting Brown, 2022 IL App (4th) 220171, ¶ 25).
¶ 70 This interpretation of subsection (g)(3) also does not run afoul of our supreme court’s
holding in Palmer. As the majority notes, our supreme court has directed us to broadly interpret
the statute. See Palmer, 2021 IL 125621, ¶ 64. However, that direction does not allow us to
circumvent the statute’s plain language, which requires an individual seeking a certificate of
innocence to establish his innocence as to all offenses charged in the indictment. 735 ILCS 5/2-
702(g)(3) (West 2020). Moreover, the court in Palmer held that the trial court erred in denying the
petitioner a COI as to first degree murder where the court required the petitioner to prove his
innocence of murder on a theory of liability—namely, accomplice liability—that the State did not
- 31 -
2024 IL App (2d) 220328present at trial. Palmer, 2021 IL 125621, ¶¶ 47-48, 71-73. That aspect of Palmer’s holding is
inapplicable here, where there is no issue of shifting theories of liability.
¶ 71 The majority also argues that “what Palmer did not say is as important as what it did say,”
in that the petitioner in Palmer was found not guilty of residential burglary after trial, yet the
supreme court did not require him to prove his innocence of that charge. Supra ¶ 43. However, as
the majority also notes, the question raised on appeal to the supreme court was specific to the first
degree murder charge. It is inappropriate to depart from the plain language of Palmer’s holding.
As our supreme court plainly stated: “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.) Palmer, 2023 IL 125621, ¶ 64.
¶ 72 The majority also argues that my interpretation of section 2-702(g)(3) will deprive
defendant of receiving the full benefit of his bargain from the guilty plea, as “the matter has not
reverted to the preprosecution condition” and “the ghost of the dismissed charges ***, in reality,
remain pending against him.” Supra ¶ 33. I respectfully disagree. The only benefit defendant
reasonably could have expected to receive from his bargain was that certain charges would be nol-
prossed, meaning that “no criminal charges remain pending against the defendant.” People v.
Totzke, 2012 IL App (2d) 110823, ¶ 23. Black’s Law Dictionary defines “criminal charge” as “[a]
formal accusation of an offense as a preliminary step to prosecution.” Black’s Law Dictionary
(10th ed. 2014). Currently, no formal accusation of an offense is pending against defendant. The
State lacks the power to prosecute him on these offenses. Because of this, he has received the
benefit of his bargain.
- 32 -
2024 IL App (2d) 220328¶ 73 I do acknowledge the proposed legislation that was passed by the House on March 23,
2023. See 103d Ill. Gen. Assem., House Bill 1015, 2023 Sess. Although this proposed legislation
would tidily resolve what is required under section 2-702(g)(3), it has not yet passed the Senate.
Accordingly, we are obligated to interpret the law as it is rather than how it might be in the future.
¶ 74 As a final note, the majority references the concept of Occam’s razor, which proposes that
the simplest answer is most often the correct one. See Occam’s Razor, Conceptually,
https://conceptually.org/concepts/occams-razor (last visited May 28, 2024)
[https://perma.cc/4HZ6-5ZG5]. Ironically, after a lengthy and involved rationalization, the
majority avers that the simplest answer is that the legislature intended for a petitioner to prove his
innocence for only the offense or offenses he was convicted of and incarcerated for in order to
obtain a certificate of innocence. However, contrary to the majority’s position, the simplest answer
here is that, by stating that a petitioner must prove by a preponderance of the evidence that he was
innocent of the “offenses charged in the indictment,” the legislature did in fact intend for a
petitioner to prove his innocence of the offenses charged in the indictment. Not the offense or
offenses a petitioner was convicted of and incarcerated for. Although the majority may find my
interpretation of subsection (g)(3) restrictive, it is the interpretation that I believe is true to the
statutory language, which is the best indicator of legislative intent. See Palmer, 2021 IL 125621,
¶ 53.
¶ 75 For these reasons, I respectfully dissent.
- 33 -
2024 IL App (2d) 220328People v. Green, 2024 IL App (2d) 220328Decision Under Review: Appeal from the Circuit Court of Kane County, No. 21-MR-2028;
the Hon. John G. Dalton, Judge, presiding.
Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino,
for Edward R. Psenicka, and Victoria E. Jozef, of State’s Attorneys
Appellant: Appellate Prosecutor’s Office, of counsel), for the People.
Attorneys Joel A. Flaxman and Kenneth N. Flaxman, of Kenneth N. Flaxman
for P.C., of Chicago, for appellee.
Appellee:
- 34 -