People v. Reed , 2024 IL App (1st) 230669-U ( 2024 )

2024 IL App (1st) 230669-UNo. 1-23-0669
Order filed February 7, 2024
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 23217
)
JAMES REED, ) Honorable
) Erica L. Reddick,
Defendant-Appellant. ) Judge, presiding.
JUSTICE VAN TINE delivered the judgment of the court.
Presiding Justice Reyes and Justice Lampkin concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s denial of defendant’s petition for a certificate of
innocence because defendant did not prove that he was innocent of all charges.
¶2 Defendant James Reed was charged with four counts of aggravated unlawful use of a
weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (C); (a)(2), (a)(3)(A), (C) (West 2002)). In
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2003, he pled guilty to one count and the State nol-prossed the remaining three counts. 1
Defendant’s conviction was later vacated pursuant to People v. Aguilar, 2013 IL 112116, which
struck down as unconstitutional portions of the AUUW statute that categorically prohibited
possession of an operable firearm outside the home. Aguilar, 2013 IL 112116, ¶ 22. Defendant
then filed a petition for a certificate of innocence pursuant to section 2-702 of the Code of Civil
Procedure (735 ILCS 5/2-702 (West 2022)), which the circuit court denied because defendant
failed to prove that he was innocent of all four AUUW counts. Defendant appeals, arguing that he
only had to prove his innocence of the one count of AUUW for which he was convicted and
incarcerated. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was arrested on October 6, 2003, and charged by information with four counts
of AUUW. Count I alleged that defendant knowingly carried an uncased, loaded, and immediately
accessible firearm outside his home (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2002)). Count II
alleged that he knowingly carried a firearm without a valid Firearm Owner’s Identification (FOID)
card (id. §§ 24-1.6(a)(1), (a)(3)(C)). Count III alleged that he knowingly carried an uncased and
loaded firearm on a public street. (id. §§ 24-1.6(a)(2), (a)(3)(A)). Count IV alleged that he
knowingly carried a firearm on a public street without a valid FOID card (id. §§ 24-1.6(a)(2),
(a)(3)(C)).
1
“Nol-prossed” refers to the State dismissing charges nolle prosequi, which is “a formal notice
given by the State that a claim has been abandoned.” People v. Smith, 2021 IL App (1st) 200984, ¶ 25;
see also People v. Stafford, 325 Ill. App. 3d 1069, 1073 (2001). When a charge is nol-prossed, it is no
longer pending against the defendant and the State must file a new charging document to reinstate that
charge. Stafford, 325 Ill. App. 3d at 1073.
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¶5 On December 3, 2003, defendant pled guilty to count I and was sentenced to six months in
the Cook County Department of Corrections and two years’ probation. The State nol-prossed
counts II, III, and IV. As the factual basis for the plea, the State proffered that defendant was
involved in a shooting on the 6400 block of South Wood Street in Chicago on October 6, 2003.
When defendant was arrested that day, police recovered from his person a loaded semiautomatic
handgun. Defendant violated his probation and was resentenced to one year of incarceration.
¶6 In 2021, defendant filed pro se petitions pursuant to section 2-1401 of the Code of Civil
Procedure (735 ILCS 5/2-1401 (West 2020)) to vacate his AUUW conviction, arguing that his
conviction was unconstitutional and void pursuant to Aguilar. On June 17, 2022, the circuit court
vacated defendant’s conviction.
¶7 In 2022, defendant filed a pro se petition for a certificate of innocence pursuant to section
2-702 (735 ILCS 5/2-702 (West 2022)). Defendant argued that he met the requirements for a
certificate of innocence because he was convicted of a felony and served a term of imprisonment,
his conviction had been vacated, and he did not bring about his own conviction. Defendant noted
that he “pled guilty to a charge and statute that was unconstitutional (Aggravated Unlawful Use of
a Weapon) statute—720 [ILCS] 5/24-1.6(a)(1).”
¶8 The State objected, arguing that defendant failed to establish that he was innocent of all
four charges; therefore, he could not fulfill the requirements of subsection 2-702(g)(3) (735 ILCS
5/2-702(g)(3) (West 2022)). The State maintained that, even if defendant was innocent of counts
I and III due to their unconstitutionality under Aguilar, he could not establish his innocence of
counts II and IV because it remained illegal to possess a firearm without a FOID card. The State
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attached to its written objection documents from the Illinois State Police indicating that defendant
had never been issued a FOID card.
¶9 Defendant filed a pro se reply to the State’s objections. He argued that he was relying on
the second clause of subsection 2-702(g)(3), which allows a petitioner to prove that his acts or
omissions charged in the indictment or information did not constitute a felony or misdemeanor at
all, rather than the first clause, which requires proof that the petitioner is innocent of the charges
in the indictment or information (id.). Defendant cited People v. McClinton, 2018 IL App (3d)
160648, in support of his claim that “his acts charged in the indictment *** did not constitute a
felony or misdemeanor against the State because the charge was based on a statute later held
unconstitutional.”
¶ 10 The circuit court denied defendant’s petition for a certificate of innocence, finding that
defendant “ha[d] to be able to demonstrate [his] innocence as to all the offenses charged in the
information or indictment” and that he could not establish his innocence of the AUUW counts
premised on his lack of a FOID card.
¶ 11 Defendant timely appealed.
¶ 12 II. ANALYSIS
¶ 13 On appeal, defendant argues that the circuit court erred in denying his petition because he
was not required to prove that he was innocent of all four charged counts of AUUW. Rather,
defendant contends that he only had to prove his innocence of the one count for which he was
convicted and incarcerated.
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¶ 14 This appeal concerns the interpretation of subsection 2-702(g)(3), so de novo review
applies. 2 See People v. Hilton, 2023 IL App (1st) 220843, ¶ 15. De novo review means that we
perform the same analysis as the circuit court. People v. Tyler, 2015 IL App (1st) 123470, ¶ 151.
Our primary goal in interpreting a statute is to ascertain and give effect to the legislature’s intent.
People v. Palmer, 2021 IL 125621, ¶ 53. The language of the statute is the best indication of the
legislature’s intent. Id. We cannot “depart from the plain language and meaning of the statute by
reading into it exceptions, limitations, or conditions that the legislature did not express.” People v.
Woodard, 175 Ill. 2d 435, 443 (1997). If the statute is unambiguous, we must apply it as written.
Hernandez v. Lifeline Ambulance, LLC, 2019 IL App (1st) 180696, ¶ 11. “A statute is ambiguous
when it is capable of being understood by reasonably well-informed persons in two or more
different senses.” Advincula v. United Blood Services, 176 Ill. 2d 1, 18 (1996). We presume that
the legislature did not intend absurd, inconvenient, or unjust results. Palmer, 2021 IL 125621, ¶
53.
¶ 15 Section 2-702 of the Code of Civil Procedure governs petitions for certificates of
innocence. 735 ILCS 5/2-702 (West 2022). The legislature created certificates of innocence
because “innocent persons who have been wrongly convicted of crimes in Illinois and
subsequently imprisoned have been frustrated in seeking legal redress due to a variety of
substantive and technical obstacles in the law.” Id. § 2-702(a). Accordingly, “[a]ny person
convicted and subsequently imprisoned for one or more felonies by the State of Illinois which he
2
Generally, we review a circuit court’s denial of a petition for a certificate of innocence for an
abuse of discretion. People v. Hilton, 2023 IL App (1st) 220843, ¶ 15.
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or she did not commit may, under the conditions hereinafter provided, file a petition for a certificate
of innocence in the circuit court.” Id. § 2-702(b).
¶ 16 Subsection (c) requires the petitioner to present documentation demonstrating that he was
convicted of a felony and served all or part of a sentence of imprisonment and that his “conviction
was reversed or vacated, and the indictment or information dismissed,” or that “the statute, or
application thereof, on which the indictment or information was based” was unconstitutional. Id.
§ 2-702(c)(1)-(2). Subsection (d) requires the petition to “state facts in sufficient detail to permit
the court to find that the petitioner is likely to succeed at trial in proving that the petitioner is
innocent of the offenses charged in the indictment or information,” or that “his or her acts or
omissions charged in the indictment or information did not constitute a felony or misdemeanor
against the State of Illinois,” and that the petitioner “did not by his or her own conduct voluntarily
cause or bring about his or her conviction.” Id. § 2-702(d).
¶ 17 Subsection (g) sets out the elements of a petition:
“(g) In order to obtain a certificate of innocence the petitioner must prove by a
preponderance of the evidence that:
(1) the petitioner was convicted of one or more felonies by the State of Illinois and
subsequently sentenced to a term of imprisonment, and has served all or any part of the
sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or
information dismissed ***; or (B) the statute, or application thereof, on which the
indictment or information was based violated the Constitution of the United States or the
State of Illinois;
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(3) the petitioner is innocent of the offenses charged in the indictment or
information or his or her acts or omissions charged in the indictment or information did not
constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about
his or her conviction.” Id. § 2-702(g)(1)-(4).
“If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate of innocence
finding that the petitioner was innocent of all offenses for which he or she was incarcerated.” Id.
§ 2-702(h).
¶ 18 Subsection (g)(3) requires a petitioner to prove either that (1) he is innocent of the “offenses
charged in the indictment or information” or (2) “his *** acts or omissions charged in the
indictment or information did not constitute a felony or misdemeanor.” Id. §§ 2-702(g)(3). The
first approach appears to require proof of innocence of all offenses set out in the charging
document. 3 There is no indication that the first clause of subsection (g)(3) allows a petitioner to
prove his innocence of only the offense for which he was convicted and incarcerated without
proving his innocence of the other offenses in the charging document. The second approach
essentially requires proof that the petitioner’s behavior in the incident at issue did not constitute
any type of crime in Illinois.
¶ 19 In this case, the information charged four counts of AUUW, two of which were premised
solely on defendant’s possession of a firearm, and two of which were premised on his possession
of a firearm without a FOID card. To fulfill subsection (g)(3), defendant had to prove either that
3
By saying “appears,” we do not imply that the statute is ambiguous. We simply note that the
statute does not use “all” to modify “offenses charged in the indictment or information.”
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he was innocent of all four charges or that his actions on October 6, 2003, were not illegal under
any circumstances. See id. Defendant did not establish his innocence under either approach. As to
the first approach, defendant did not prove that he was innocent of counts II and IV. Those charges
were premised on defendant’s possession of a firearm without a valid FOID card on October 6,
2003. Defendant has never claimed that he did not possess a firearm on October 6, 2003, and the
record confirms that defendant has never been issued a FOID card. Post-Aguilar, it remains illegal
to possess a firearm without a FOID card. People v. Mosley, 2015 IL 115872, ¶ 44 (upholding
section 24-1.6(a)(3)(C) of the AUUW statute as constitutional). Therefore, defendant is not
innocent of AUUW as charged in counts II and IV. As to the second approach, defendant has
abandoned, on appeal, his petition’s argument that his actions on October 6, 2003, did not
constitute a crime at all. Defendant did not meet the requirements of subsection (g)(3), so the
circuit court correctly denied his petition for a certificate of innocence.
¶ 20 People v. Warner, 2022 IL App (1st) 210260, supports this conclusion. In that case, the
defendant was charged with six counts of AUUW including possession of a firearm without a valid
FOID card. Id. ¶ 2. He pled guilty to one count of AUUW and was sentenced to one year in prison;
the State nol-prossed the remaining counts. Id. ¶¶ 3-5. The defendant’s conviction was later
vacated pursuant to Aguilar. Id. ¶ 6. The defendant filed a petition for a certificate of innocence,
arguing that he had been convicted and incarcerated under an unconstitutional statute. Id. ¶ 7.
However, his petition “contained no allegations to establish [his] innocence as to the other valid
offenses charged in the information.” Id. The circuit court denied the petition and this court
affirmed. Id. ¶¶ 1, 9. We held that subsections (d) and (g)(3) unambiguously require a petitioner
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to allege and prove that he is innocent of all charged offenses, not just the offense for which he
was incarcerated. Id. ¶ 28.
¶ 21 People v. Brown, 2022 IL App (4th) 220171, is similar. The defendant was charged with
AUUW, armed violence, unlawful possession of a weapon by a felon, and unlawful possession of
a controlled substance. Id. ¶ 3. He pled guilty to AUUW and was sentenced to eight years in prison;
the other charges were dismissed. Id. ¶ 4. The defendant’s conviction was later vacated pursuant
to Aguilar, and he filed a petition for a certificate of innocence. Id. ¶¶ 5-6. The circuit court denied
the petition, finding that the defendant could not establish his innocence of all charged offenses
and, therefore, could not meet the requirements of subsection (g)(3). Id. ¶ 6. The court affirmed.
Id. ¶¶ 36-37. Citing Warner, the court found that the “plain meaning of [subsections (d) and (g)(3)]
is that petitioners must demonstrate their innocence of all charged offenses, not just the ones for
which they were convicted and incarcerated.” Id. ¶ 24.
¶ 22 We see no meaningful difference between Warner, Brown, and this case. All three cases
involve defendants who pled guilty to one count of AUUW in exchange for the dismissal of the
other counts, AUUW convictions that were later vacated pursuant to Aguilar, and defendants who
failed to prove their innocence of all charged offenses. Like the defendants in Warner and Brown,
defendant is not entitled to a certificate of innocence because he does not meet the requirements
of subsection (g)(3).
¶ 23 Defendant argues that a certificate, if granted, only declares a petitioner innocent of
“offenses for which he or she was incarcerated” (702 ILCS 5/2-702(b), (h) (West 2022)), so the
circuit court can only consider whether the petitioner is innocent of the charge for which he was
convicted and incarcerated. That is, defendant reads subsections (b) and (h) to limit all of section
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2-702 to the offense for which the petitioner was incarcerated; no other charges are relevant. We
disagree. Section 2-702 differentiates between what a petitioner must prove, which is his innocence
of all charges (id. §§ 2-702(d), (g)(3)), and the relief he obtains if he makes such a showing, which
is a certification that he is innocent of the charges for which he was incarcerated (id. §§ 2-702(b),
(h)). This case illustrates why the legislature created this difference. Defendant can establish that
he is innocent of the charge for which he was convicted because that charge is unconstitutional.
However, defendant did not establish that he is innocent of AUUW as the State alleged in counts
II and IV. Accepting defendant’s argument would allow a person who may have committed
AUUW to, nevertheless, obtain a judicial finding that he is innocent of AUUW. Moreover, if, as
defendant argues, the only charge the circuit court can consider is the charge for which the
petitioner was convicted and incarcerated, then subsections (d) and (g)(3)’s requirement that a
petitioner prove his innocence of the charges in the indictment or information becomes
superfluous. We cannot accept such a reading of section 2-702. See People v. Kidd, 2022 IL
127904, ¶ 29.
¶ 24 Defendant is not the first to claim that certificate of innocence proceedings concern only
charges resulting in conviction and incarceration. This court has already rejected the exact
argument that defendant makes regarding subsections (b) and (h). Smith, 2021 IL App (1st)
200984, ¶¶ 22-23. Similarly, in Warner, this court explained that “[i]f the legislature had intended
that a petitioner was required to allege and show only that they were innocent of the ‘offenses for
which he or she was incarcerated,’ subsections (d) and (g)(3) would contain the same language as
found in subsections (b) and (h).” Warner, 2022 IL App (1st) 210260, ¶ 28. “Instead, the legislature
chose the phrase ‘offenses charged in the *** information,’ demonstrating its clear intent that a
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petitioner must allege and prove that they are innocent of all the offenses charged in the
information.” Id.; see also Hilton, 2023 IL App (1st) 220843, ¶ 30.
¶ 25 Defendant contends that we should follow People v. McClinton, 2018 IL App (3d) 160648,
and find that charges of which a defendant was not convicted play no role in certificate of
innocence proceedings. 4 In that case, the defendant was charged with AUUW, bringing a firearm
into a penal institution, and bringing cannabis into a penal institution. Id. ¶ 3. Following a bench
trial, she was convicted of AUUW but her conviction was later vacated pursuant to Aguilar. Id. ¶¶
3-6. The defendant filed a petition for a certificate of innocence, which the circuit court denied,
explaining that the trial evidence established that she possessed a firearm inside a prison, so she
was not innocent of AUUW. Id. ¶ 7. The defendant appealed and the Third District ordered
issuance of a certificate of innocence. Id. ¶ 1. The Third District reasoned that the AUUW statute
“that criminalized [the defendant’s] actions is void ab initio” due to Aguilar, so the “actions for
which she was charged, convicted, sentenced and incarcerated were not criminal at the time.”5 Id.
¶ 21.
¶ 26 We find McClinton unpersuasive. McClinton did not involve a guilty plea or charges that
the State nol-prossed as part of that plea. It also did not involve AUUW charges premised on
possessing a firearm without a valid FOID card. Defendant has not proved that he is innocent of
possessing a firearm without a FOID card and McClinton does not change that conclusion.
4
Oddly, defendant argues that we should follow the Third District’s decision in McClinton but
should not follow the First District, Fourth Division’s decision in Warner or the Second District’s
decision in Hilton because the decisions of other appellate divisions and districts are not binding upon us.
5
To the extent McClinton suggests that a defendant whose AUUW conviction was vacated
pursuant to Aguilar cannot possibly have committed any criminal offenses in the incident that led to the
AUUW conviction, we disagree. Aguilar finds one subsection of the AUUW statute unconstitutional
(Aguilar, 2013 IL 112116, ¶ 22); it does not retroactively wipe out all potentially illegal conduct.
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Moreover, McClinton’s analysis focused on whether the defendant brought about her own
conviction under subsection (g)(4), not whether she proved her innocence of all charges under
subsection (g)(3). Id. ¶¶ 18-20. The Third District did not discuss whether subsection (g)(3)
required the defendant to prove that she was innocent of the charges of bringing a firearm and
cannabis into a penal institution, so McClinton offers little guidance in this case. Nevertheless,
defendant claims that McClinton supports his attempt to use subsections (b) and (h) to limit
subsections (d) and (g)(3), citing the Third District’s statement that “[t]he only crime at issue in
the instant case is the unconstitutional AUUW conviction.” Id. ¶ 15. That quotation is a single line
without further analysis or explanation, not the holding of McClinton. Id.
¶ 27 Defendant also argues that Palmer supports his position because it holds that “the proper
focus of subsection (g)(3)” is on the allegations “charged and prosecuted in [the] petitioner’s
criminal trial.” Palmer, 2021 IL 125621, ¶ 72. In that case, the defendant was charged with five
counts of first-degree murder arising out of the victim’s beating death. Id. ¶ 5. Each count alleged
a different theory of culpability for murder. Id. At trial, the State presented evidence that the
defendant and another man burgled the victim’s apartment and, the following night, the defendant
returned alone and killed the victim. Id. ¶ 7. The defendant was found guilty of first degree murder
on the count alleging that he intentionally killed the victim. Id. ¶¶ 5, 28. Years later, his conviction
was vacated based on testing that excluded him as a contributor of DNA profiles found under the
victim’s fingernails. Id. ¶¶ 31-34. The defendant filed a petition for a certificate of innocence,
which the State opposed, arguing that, while the DNA evidence established that he was not the
primary assailant, he could still be guilty of murder as an accessory at the scene during the murder.
Id. ¶¶ 37, 43-44. The circuit court denied the petition for a certificate of innocence, finding that
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the defendant had not established by a preponderance of the evidence that he was “innocent of the
charge of murder,” and the appellate court affirmed. Id. ¶¶ 47-48.
¶ 28 The supreme court reversed. Id. ¶ 80. The court framed the issue as whether subsection
(g)(3) required the defendant to prove that he “was innocent of the offense only as it was originally
charged or innocent of every conceivable theory of criminal liability for that offense.” Id. ¶ 1. The
court held that “because the word ‘offenses’ is modified by the phrase ‘charged in the indictment
or information,’ the legislature intended that a petitioner establish his or her innocence of the
offense on the factual basis charged in the indictment or information.” (Emphasis in original.) Id.
¶ 64. The court reasoned that, at trial, the State argued that the defendant alone beat the victim to
death and did not advance the theory that he was an “accomplice or unidentified third party” until
certificate of innocence proceedings. Id. ¶¶ 65-66. Because the State did not charge or argue the
defendant’s guilt based on a theory of accountability, he was not required to disprove that theory
to obtain a certificate of innocence. Id. ¶ 67. That is, subsection (g)(3) does not “require a petitioner
to prove his innocence of a novel theory of guilt that was never charged.” Id. ¶ 68.
¶ 29 Palmer does not mean that a petitioner can fulfill subsection (g)(3) by proving his
innocence of the charge for which he was convicted and incarcerated, but not the other charges
against him. Rather, Palmer holds that a petitioner does not have to prove his innocence of
uncharged theories of culpability. Id. In this case, the State does not claim that defendant must
prove his innocence of a theory of culpability for AUUW that it never charged. For example, the
State does not contend that defendant must prove that he is innocent of AUUW premised on
possessing a firearm while committing a misdemeanor involving the use or threat of violence (720
ILCS 5/24-1.6(a)(1), (a)(3)(H) (West 2002)). Rather, the State’s position is that defendant is not
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innocent of AUUW because he was charged with possessing a firearm without a valid FOID card,
which is still illegal and which defendant has not disproved. The defendant in Palmer used DNA
evidence to prove that he did not kill the victim, the act giving rise to all the charges against him.
By contrast, in this case, defendant has not proved that he did not possess a firearm on October 6,
2003.
¶ 30 Defendant also relies on Smith’s discussion that a petitioner does not have “the burden of
affirmatively demonstrating his innocence *** on charges that were nol-prossed by the State”
because “the State cannot pursue and thus has no ability to obtain a finding of guilt on” a charge
the State abandoned by nol-prossing it. (Emphasis in original.) Smith, 2021 IL App (1st) 200984,
¶ 25. However, Warner rejected that conclusion, explaining that “[s]ection 2-702 does not contain
any language or any indication that the petitioner’s burden of pleading and proving innocence
applies only to the charges in the indictment or information on which the State has an ability to
obtain a finding of guilty.” Warner, 2022 IL App (1st) 210260, ¶¶ 36-37. We agree with Warner.
Subsection (g)(3) requires proof of innocence of charges in the indictment or information and says
nothing about charges that are later nol-prossed. The State’s decision to dismiss a charge nolle
prosequi does not mean that the offense was never charged, and it certainly does not mean that the
State conceded the defendant’s innocence of that charge. People v. Rodriguez, 2021 IL App (1st)
200173, ¶ 59. Subsection (g)(3) applies to nol-prossed charges.
¶ 31 This case has reached an accurate and fair result. Defendant is not guilty of the AUUW
charge for which he was convicted and incarcerated because that charge was unconstitutional
under Aguilar. Defendant’s conviction has been properly vacated. However, that does not mean
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defendant is innocent of all charges of AUUW. Accordingly, we find that the circuit court correctly
denied defendant’s petition for a certificate of innocence.
¶ 32 III. CONCLUSION
¶ 33 For the foregoing reasons, we affirm the circuit court’s denial of defendant’s petition for a
certificate of innocence.
¶ 34 Affirmed.
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