THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. LEE MOORE, Defendant-Appellee.
No. 1-19-0435
APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
December 23, 2020
2020 IL App (1st) 190435
JUSTICE ELLIS delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice McBride concurred in the judgment and opinion.
THIRD DIVISION; 07 CR 1663; Appeal from the Circuit Court of Cook County; Honorable Leroy Martin, Judge Presiding
¶ 1 Petitioner was convicted of four offenses stemming from a multi-count indictment. One of the offenses, armed habitual criminal (AHC), was predicated in part on a prior conviction for aggravated unlawful use of a weapon (AUUW), based on a statute later held unconstitutional by the Illinois Supreme Court. As such, in 2016, the circuit court vacated petitioner’s conviction for AHC.
¶ 2 After that vacatur, petitioner sought a Certificate of Innocence (COI) on the AHC count under
¶ 4 BACKGROUND
¶ 5 In September 2006, petitioner forced a man into petitioner’s sports utility vehicle, drove him around, and robbed him at knifepoint. See People v. Moore, 407 Ill. App. 3d 1188 (table), No. 1-09-0665, 2011 WL 9685019, at *1 (Ill. App. Ct. Mar. 18, 2011). Two months later, when the police sought to curb petitioner’s vehicle, petitioner “led police on a high-speed chase on the interstate and through residential areas,” ultimately crashing the vehicle, whereupon he was arrested and found with a loaded firearm. Id.
¶ 6 After a bench trial in 2009, petitioner was convicted of four offenses: AHC (count 1), robbery (Count 3), unlawful use of a weapon by a felon (Count 7), and aggravated fleeing of a peace officer (Count 12). One of the predicate felonies for the AHC count was a 2004 conviction for AUUW.
¶ 7 In 2011, on direct appeal, this court affirmed the convictions but vacated count 7, as it merged into count 1 as a lesser-included offense. Id. at * 5.
¶ 8 About two years later, in People v. Aguilar, 2013 IL 112116, ¶ 22, our supreme court invalidated portions of the unlawful use of a weapon (UUW) statute. That decision rendered petitioner’s 2004 conviction for AAUW void. And because that 2004 AUUW conviction served as a predicate felony conviction for the 2009 AHC conviction in count 1, the trial vacated count 1 in May 2016.
¶ 9 Following that vacatur, in 2018, petitioner filed the petition for a COI as to count 1 that is currently at issue. The State intervened and objected, claiming
¶ 10 ANALYSIS
¶ 11 While we normally review the grant or denial of a COI for an abuse of discretion, when the issue is an interpretation of
¶ 12 Our primary goal in construing laws is to determine and give effect to the legislature’s intent. In re Detention of Lieberman, 201 Ill. 2d 300, 307 (2002). “All other canons of statutory construction are subordinate to this cardinal principle.” People v. Clark, 2019 IL 122891, ¶ 18.
¶ 13 We begin with the plain language of
¶ 14 We may consider “the reason for the law, the problems sought to be remedied, the purposes to be achieved, and the consequences of construing the statute one way or another.” Id. We presume that the General Assembly “did not intend absurdity, inconvenience, or injustice in enacting legislation.” Id. But as a reviewing court, we “are not at liberty to depart from the plain language and meaning of the statute by reading into it exceptions, limitations or conditions that the legislature did not express.” Petersen v. Wallach, 198 Ill. 2d 439, 446 (2002).
¶ 15 I
¶ 16 Our legislature enacted
¶ 17 Our question is whether
¶ 18 As the State is quick to note, the formal title of
¶ 19 Subsection (b) of the statute explains who may petition for a COI and what the petitioner may request. See
¶ 21 Unfortunately for petitioner, while we agree with him that we must first look to that subsection, we disagree that its language supports his position. Subsection (g) provides four elements for a successful COI petition, each of which must be satisfied (as evidenced by the “and” following paragraph (g)(3)). We quote subsection (g) in full here:
“In order to obtain a certificate of innocence the petitioner must prove by a preponderance of evidence that:
(1) the petitioner was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the indictment or information dismissed; or (B) the statute, or application thereof, on which the indictment or information was based violated the Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction.”
735 ILCS 5/2-702(g) (West 2018) .
¶ 22 Petitioner argues that the first element, subsection (g)(1), referencing a petitioner “convicted of one or more felonies” (
¶ 23 The fourth element, that “the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction” (
¶ 24 Subsection (g)(2) strongly suggests that a petitioner must be innocent of all offenses charged in the indictment, not just some. We reprint just that subsection here:
“(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.”
Id. § 2-702(g)(2) .
¶ 26 In fact, we can think of no reason why that second clause regarding the indictment’s or information’s dismissal would be there at all, if the intent of the General Assembly was that even a single conviction among many could be the subject of a COI, as petitioner claims. If the legislature intended this law to apply to someone like petitioner, properly incarcerated on two convictions but improperly so on a third conviction, it would be enough to say that “the judgment of conviction was reversed or vacated.” Id. The only reason to add the clause “and the indictment or information dismissed” (id.) was to make sure the law applied only to situations where all the charges leading to the petitioner’s incarceration were legally invalid; it would only be in that instance that an indictment or information would be subject to dismissal.
¶ 27 Nor does paragraph (2)(B) apply. Petitioner argues that, because the AHC count was invalidated in light of Aguilar, the “statute *** on which the indictment or information was based violated the Constitution.”
¶ 28 But even if we put that detail aside, the bigger point is that the indictment in this case was based on multiple statutes, not just one, including statutes outlawing the offenses of robbery and aggravated fleeing. Paragraph (2)(B) speaks of a singular “statute *** on which the indictment or information was based.”
¶ 29 Subsection (g)(3), requiring that “the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State” (emphases added) (
¶ 30 A petitioner who is “innocent of the offenses charged in the indictment or information” (id.) is one who is innocent of all charges. Were it otherwise, the legislature easily could have written something like “innocent of one or more of the offenses charged” or, focusing more specifically, “innocent of the offense that is the subject of the COI petition.” And again, why mention the indictment at all, if a single improper conviction could be separated from the rest of the valid convictions? It would be clumsy language, indeed, to use the collective phrase “offenses charged in the indictment” if the legislature wanted to allow individual wrongful convictions to be parsed out from legally valid ones.
¶ 31 Other provisions of
¶ 32 Likewise, subsection (b) provides:
“Any person convicted and subsequently imprisoned for one or more felonies by the State of Illinois which he or she did not commit may, under the conditions hereinafter provided, file a petition for certificate of innocence in the circuit court of the county in which the person was convicted. The petition shall request a certificate of innocence finding that the petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphases added.)
Id. § 2-702(b) .
¶ 33 This language mirrors the remedy provided in subsection (h) and, likewise, unequivocally contemplates a petitioner who is innocent of all offenses. The petitioner may only request a COI that finds him innocent of “all offenses for which he or she was incarcerated.” Id. A petitioner has no statutory authority to request a finding of innocence on some, but not all, offenses that led to incarceration.
¶ 34 Finally, we would return to subsection (h), which in detail discusses the consequences of a successful COI petition. Among other things, the trial court “shall enter an order expunging the record of arrest from the official records of the arresting authority and order that the records of the clerk of the circuit court and Department of State Police be sealed” and ordering that “the name of the defendant [be] obliterated from the official index” of the circuit court clerk.
¶ 35 The plain language of the statute can lead to only one conclusion:
¶ 36 II
¶ 37 It may seem harsh that someone who was wrongly convicted of an offense would not be permitted to obtain a COI. But when one considers the purpose of
¶ 39 But the caveat is the inverse example: a defendant is convicted of two offenses, one validly and one wrongly, but the invalid conviction results in a defendant serving more time in prison than he otherwise would, either because he received a greater sentence for the invalid conviction or because the sentences ran consecutively, not concurrently. That, in essence, was the example the trial court posited—a defendant convicted of UUW along with a very minor drug possession conviction that yielded a concurrent sentence that was far less than the UUW conviction. In that event, some of the time the defendant spends in prison can be attributed to the valid conviction for drug possession, but what about the additional time the defendant was incarcerated, over and above the sentence on his valid drug conviction, based only on the invalid UUW conviction?
¶ 40 And that, of course, is the example present here, as well. Petitioner was sentenced to 15 years for AHC, 10 years for robbery, and 6 years for aggravated fleeing, the sentences to run
¶ 41 All of which is to say that petitioner spent more time in prison than he should have. How much more, precisely, we do not know from the record. But the question is, does
¶ 42 The answer, unfortunately, is no. For the reasons we have given above,
¶ 43 But we do not take this to mean that petitioner is necessarily without any remedy whatsoever. Obtaining a COI is certainly advantageous, as the finding of innocence is binding on the court of claims. See
¶ 45 We express no opinion on whether petitioner would have a viable claim before the court of claims or alternative avenues for expungement, as those questions are not before us. We note only that COIs are relatively new to the law, and other avenues and remedies that previously existed may still exist. Unless and until the General Assembly amends
¶ 46 Rather than reverse outright, we reverse and remand this matter to the circuit court in the event petitioner may seek any such additional remedy or relief.
¶ 47 CONCLUSION
¶ 48 The judgment of the circuit court is reversed, and the cause is remanded for any additional proceedings.
¶ 49 Reversed and remanded.
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07-CR-1663; the Hon. Leroy K. Martin Jr., Judge, presiding.
Attorneys for Appellant: Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein, Paul A. Castiglione, and Ryan Gillespie, Assistant State’s Attorneys, of counsel), for the People.
Attorneys for Appellee: Joel A. Flaxman and Kenneth N. Flaxman, of Kenneth N. Flaxman P.C., of Chicago, for appellee.