2016 IL App (1st) 142130
Ill. App. Ct.2016Background
- In Nov. 2005 police boarded a Chicago bus after a tip; a pat-down of Ronald Daniels recovered an unloaded .38 revolver and four live rounds; Daniels had a prior felony drug conviction.
- Daniels was charged with multiple counts: six counts of aggravated unlawful use of a weapon (AUUW) under various subsections and two counts of unlawful use of a weapon by a felon (UUWF).
- In March 2006 Daniels pled guilty to one count under 720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (Class 2 as a felon) pursuant to a plea agreement; the State nol-prossed the remaining seven counts; Daniels was sentenced to six years.
- After serving his sentence, Daniels filed a section 2-1401 petition (Jan. 2, 2014) to vacate the conviction, arguing the AUUW subsection was unconstitutional under People v. Aguilar.
- The trial court denied relief; on appeal the State conceded Aguilar and subsequent People v. Burns required vacatur of the conviction, but asked to remand to allow reinstatement of the nol-prossed counts.
- The appellate court vacated Daniels’ conviction under subsection (a)(1),(a)(3)(B) and refused the State’s request to remand for reinstatement because the State had taken no trial-court action to vacate the nolle prosequi or refile charges and the section 2-1401 proceeding did not preserve those counts for review.
Issues
| Issue | State's Argument | Daniels' Argument | Held |
|---|---|---|---|
| Whether conviction under 720 ILCS 5/24-1.6(a)(1),(a)(3)(B) must be vacated as facially unconstitutional under Aguilar/Burns | Subsection (a)(1),(a)(3)(B) remains valid and distinct from the provision invalidated in Aguilar; if vacated, State asked remand to reinstate other charges | Subsection (a)(1),(a)(3)(B) is unconstitutional like the (a)(3)(A) provision in Aguilar because criminalizing possession of an unloaded gun with immediately accessible ammo likewise infringes Second Amendment rights | Vacated the conviction: applied Aguilar and Burns to conclude (a)(1),(a)(3)(B) is invalid and defendant’s conviction must be vacated |
| Whether court should remand to permit the State to reinstate nol-prossed counts | State: plea agreement nol-pros cannot bar reinstatement after vacatur; principles of contract law and authority allow reprosecution so long as no harassment or double jeopardy | Daniels: section 2-1401 proceeding challenges only the void judgment; nol-prossed counts were terminated and not properly before the court | Denied: appellate court declined to remand because the State had not moved in trial court to vacate the nolle prosequi or filed a new charging instrument; issues about recharging were not before the court and would be advisory |
Key Cases Cited
- People v. Aguilar, 2013 IL 112116 (Illinois Supreme Court decision invalidating part of the AUUW statute under the Second Amendment)
- People v. Burns, 2015 IL 117387 (Illinois Supreme Court clarifying Aguilar applies without limiting language and affects related AUUW provisions)
- People v. Hughes, 2012 IL 112817 (State may reprosecute nol-prossed charges absent harassment/bad faith; explains procedures for revival)
- People v. Norris, 214 Ill. 2d 92 (discusses reprosecution after nolle prosequi in context of constitutional limits)
- People v. McCutcheon, 68 Ill. 2d 101 (relevantly addresses nolle prosequi and reprosecution principles)
- People v. DeBlieck, 181 Ill. App. 3d 600 (explains that an unconditional nolle prosequi terminates proceedings and the indictment cannot be reinstated without court action)
- People v. Watson, 394 Ill. 177 (describes nolle prosequi effect as leaving parties in pre-prosecution condition)