THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH PETTIS, Defendant-Appellant.
No. 1-20-0448
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
June 27, 2023
2023 IL App (1st) 200448-U
JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the judgment.
Second 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).
No. 03 CR 25466-01
Honorable Timothy Joyce Judge, Presiding.
ORDER
Held: We affirm the circuit court‘s denial of defendant‘s petition for certificate of innocence where, although defendant was found innocent of the AUUW charge, his unsentenced conviction for UUWF stands, and the statute does not allow for a partial certificate of innocence. We remand for any additional relief available as a result of the court‘s vacatur of the AUUW conviction.
¶ 1 Following a bench trial, defendant-appellant Joseph Pettis was found guilty of two counts of aggravated unlawful use of a weapon (AUUW) and two counts of unlawful use of a weapon by
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged by information with two counts of AUUW (
¶ 4 On November 2, 2003, at approximately 9:45 p.m., Chicago police officer James Shields and two other officers were in a marked squad car, patrolling near 620 North Hamlin Avenue. Officer Shields was in the front passenger seat of the car. As the car was traveling southbound, he observed defendant walking alone northbound on Hamlin Avenue. From about 25 feet away, he observed defendant reach into his wаistband, pull out a “blue-steel snubbed handgun,” place the weapon in the left inside jacket pocket, and snap the letter jacket closed. Officer Shields testified that the streetlights on Hamlin Avenue were working that night.
¶ 6 The parties stipulated that defendant had a prior felony conviction.
¶ 7 Defendant moved for a directed finding, whiсh the circuit court denied.
¶ 8 Defendant testified that on November 3, 2003, at approximately 9:45 p.m., he was walking southbound on the 600 block of Hamlin Avenue on the way to his girlfriend‘s house when an unmarked “gray Crown Victoria” police car pulled up behind him on the street and stopped directly next to him. Two police officers in plainclothes stepped out of the police car and called him over to them, using his first name, “Joe.” He testified that Officer Shields searched him but did not recover anything from his person. The offiсers handcuffed defendant, put him in the backseat of the police car, and took him to the police station. While in the car, the officers asked defendant for information about homicides that had occurred in the area, and defendant responded that he did not know anything. He denied making any statements about having a gun.
¶ 9 On August 19, 2004, the circuit court found defendant guilty of the charged offenses. Defendant filed a motion for a new trial, which was denied. The circuit court sentenced defendant to four years’ imprisоnment on count 1 for the offense of AUUW. Defendant did not pursue a direct appeal.
¶ 11 On October 22, 2019, defendant filed a “Petition for Post-Judgement Relief,” wherein he cited to Burns and argued that his AUUW conviction was void because the Illinois Supreme Court found the applicable statutory provision facially unconstitutional. He thus requestеd “an order vacating and expunging the judgement of conviction and sentence.”
¶ 12 On November 6, 2019, the circuit court granted defendant relief under
¶ 13 On December 3, 2019, defendant filed a “Petition for Certificate of Innocence,” claiming that he was entitled to a COI because the crime for which he was convicted was not a crime as the Illinois Supreme Court had found the applicable statute for that crime unconstitutional.
¶ 14 On January 16, 2020, the cirсuit court orally denied defendant‘s COI petition. On the record, the court stated the following:
“On Joseph Pettis, Mr. Pettis previously had his so-called [Aguilar/Burns] conviction in Count 1 vacated pursuant to Section 2-1401 back in November of 2019 by this court.
The order was entered to that effect, sent to the Illinois Department of Corrections[,] where Mr. Pettis is being held on some other unrelated matter. He has now filed under this case number a petition for a Certificate of Innocence claiming that he‘s entitled to such certificate by virtuе of the fact that Aguilar rendered one of the counts in this case, or Burns rendered one of the counts in this case unconstitutional. He is incorrect in that regard. His
petition for a Certificate of Innocence is otherwise insufficient to warrant him relief. His petition is denied. The court will enter a one page written order.”
¶ 15 Defendant filed a motion for reconsideration of his petition, which the circuit court denied.
¶ 16 This timely appeal followed.
¶ 17 II. ANALYSIS
¶ 18 Defendant‘s main claim on appeal is that the circuit court erred in denying his request for a COI. To that end, he asserts that his conviction and sentence for the offense of AUUW “must be voided” based on the Illinois Supreme Court‘s holdings in Burns, 2015 IL 117387, and Aguilar, 2013 IL 112116, that the statutory provision underlying his AUUW conviction was facially unconstitutional. For support, defendant cites to People v. McClinton, 2018 IL App (3d) 160648.
¶ 19 In response, the State argues that, despite the vacatur of defendant‘s AUUW conviction, he still remains convicted of the other charges in the information and he failed to show that he is innocent of all of the offenses.
¶ 20 Initially, we do not disagree that defendant is innocent of count 1 of the indictment, which was the offense оf AUUW brought under subsection 24-1.6(a)(1), (a)(3)(A), where that subsection was declared facially unconstitutional and therefore void ab initio. See In re N.G., 2018 IL 121939, ¶ 50 (stating that any conviction based on a void ab initio statute should be treated as if the law had never been passed and never existed); see also People v. Smith, 2021 IL App (1st) 200984, ¶ 24 (AUUW under the void statutory provision is “not a crime.“). However, defendant fails to acknowledge that in this case he was charged with four offenses and the circuit court found him guilty of all charged offenses following the bench trial. The court then appears to have merged the counts together and sentenced defendant on count 1. Under the circumstances before us, the merger has no effect on the findings of guilt as to the other offenses. This court has held that when a
¶ 22 Generally, we review the grant or denial of a COI for an abuse of discretion (see Rudy v. People, 2013 IL App (1st) 113449, ¶ 11); however, where, as here, the issue involves the interpretation of a statute, our review is de novo (see People v. Simon, 2017 IL App (1st) 152173, ¶ 20).
¶ 23 A reviewing court‘s primary goal in construing a statute is to ascertain and give effect to the legislature‘s intent. People v. Palmer, 2021 IL 125621, ¶ 53. The best indicator of the legislature‘s intent is the language of the statutory provision. People v. Fields, 2011 IL App (1st) 100169, ¶ 18. The stаtute should be considered as a whole and the words used should be given their plain and ordinary meaning. Palmer, 2021 IL 125621, ¶ 53. In interpreting a statute, no part should be disregarded or rendered superfluous (People v. Warner, 2022 IL App (1st) 210260, ¶ 13), and we must presume that “the legislature did not intend absurd, inconvenient, or unjust results” (Palmer, 2021 IL 125621, ¶ 53).
¶ 24 With these principles of interpretation in mind, we turn to the statutory framework for the issuance of COIs.
¶ 25 Clearly set out in the statute‘s statement of legislative intent, the purpose of obtaining a COI is to provide the wrongly incarcerated with an avenue to obtain monetary relief in the Court of Claims against the State.
¶ 26 The statute then sets forth the requirements to obtain a certificate of innocence under
“(1) the petitioner was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;
(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the indictment or information dismissed; or (B) the statute, or application thereof, on which the indictment or information was based violated the Constitution of the United States or the State of Illinois;
(3) the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State; and
(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction.”
735 ILCS 5/2-702(g)(1) -(4) (West 2018).
¶ 27 Finally, subsection (h) provides: “If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate of innocence finding that the petitionеr was innocent of all offenses for which he or she was incarcerated.”
¶ 29 On appeal, this court reversed and held that “[s]ection 2-702 does not permit the issuance of a COI unless the petitioner is deemed innocent of all charges in the indictment for which the petitioner was convicted.” (Emphasis in original.) Id. ¶ 3. In so concluding, the court examined the pertinent parts of the COI statute which we include here.
¶ 30 Looking at subsection (g), the court stated that the second element “strongly suggests that a petitioner must be innocent of all offenses charged in the indictment, not just some.” (Emphasis in original.) Id. ¶ 24. The court found that paragraphs (2)(A) and (2)(B) did not apply to the defendant, and we come to the same conclusion here.
¶ 31 Paragraph (2)(A), which provides “the judgment of conviction was reversed or vacated, and the indictment or information dismissed[,]” does not apply because the charges for UUWF have not been vacated and thus, the indictment has not been dismissed. The Moore court also pointed out that the inclusion of the phrase, “and the indictment or information dismissed[,]” suggests that the legislature intended the statute to apply ”only to situations where all the charges leading to *** incarceration were legally invalid[.]” (Emphases original.) Id. ¶ 26.
¶ 33 The third element requires that “the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State[.]” (Emphases added.)
¶ 34 The Moore court then stated that subsection (h) plainly does not provide authority for a judge to issue a COI where the petitioner has been found innocent of only some of the offenses that led to imprisonment. Id. ¶ 31. The subsection clearly provides that the court should issue a COI where it finds that “the petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphases added.)
¶ 35 Based on its interpretation of the COI statute, the Moore court held that
¶ 36 Applying Moore‘s interpretation to the instant case, we must conclude that the invalid, and subsequently vacated, conviction for AUUW does not entitle defendant to a COI where he was charged and found guilty of two other offenses. Certainly, defendant‘s sentence of four years’ imprisonment was pursuant to the now-vacated AUUW conviction; however, as stated, the vacatur of the sentenced conviction negates the merger and the unsentenced convictions, and their accompanying findings of guilt, stand. As such, defendant would need to prove his innocenсe for those remaining unsentenced convictions to be eligible for a COI.
¶ 37 Before the circuit court and before this court, defendant solely contends that he is innocent as to count 1 of AUUW because the statutory provision was rendered unconstitutional pursuant to Aguilar. He does not set forth any allegations showing that he is innocent of the other counts for which he was charged and of which he was found guilty. Because he did not provide the court with any pleading, evidence, or argument as to his innocence as to the other offenses, we must find that defendant has not shown his innocence as to all of his offenses for which he was properly incarcerated and is not entitled to a COI. See Smith, 2021 IL App (1st) 200984, ¶ 33 (finding that the defendant, whose AHC conviction was vacated because it was predicated on a prior AUUW conviction, was not entitled to a COI because he was found guilty of three other offenses).
¶ 39 Accordingly, we conclude that the circuit сourt properly denied petitioner‘s request for a COI.
¶ 40 Defendant also claims that he was denied due process because the circuit court did not issue a written order with factual findings when it denied his request for a certificate of innocence.
¶ 41 Here, the circuit court orally issued its ruling on the recоrd, stating the following:
“He has now filed under this case number a petition for a Certificate of Innocence claiming that he‘s entitled to such certificate by virtue of the fact that Aguilar rendered one of the counts in this case, or Burns rendered one of the counts in this case unconstitutional. He is incorrect in that regard. His petition for a Certificate of Innocence is otherwise insufficient to warrant him relief. His petition is denied. The court will enter a one page written order.”
A written order was also in the record stating that the petition was denied.
¶ 42 We rejeсt defendant‘s argument where there is nothing in the COI statute requiring the circuit court to enter a written order containing findings of fact and conclusions of law. Defendant does not direct this court to any particular rule or statutory provision mandating a written order with findings of fact and he does not cite to any cases to support his argument. Moreover, our review was de novo and defendant cannot show that prejudice resulted from the circuit court‘s lack of written factual findings. See also In re Rita P., 2014 IL 115798, ¶ 51 (“[A]lthough factual findings may provide an explanation or reason for the trial court‘s decision, it is the correctness of the court‘s ruling, and not the correctness of its reasoning, that is under review.“).
¶ 43 In regards to defendant‘s claim of judicial bias, we find nothing in the record to support his allegations. It is presumed that trial judges are impartial, and only the most extreme circumstances warrant disqualifying a judge due to judicial bias. People v. Jackson, 205 Ill. 2d 247, 276 (2001). For a defendant to demonstrate bias or prejudice on the part of the circuit court, “the record must
¶ 44 Defendant‘s only allegation of judicial bias is that the judge should have entered a written order with “factual or legal reasoning” for the denial and addressed the case he cited to in his petition. For support, he cites to Gacho v. Wills, 986 F.3d 1067, 1068 (7th Cir. 2021), which involved a Cook County trial court judge who was sent to federal prison for “soliciting cash fоr acquittals” for years and there was evidence that the judge had been bribed in relation to a codefendant. A comparison can hardly be made to the case before us. Merely because the court did not explain its reasoning for denying the petition does not give rise to any suggestion of judicial bias. See also Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002) (“A judge‘s rulings alone almost never constitute a valid basis for a claim of judicial bias or partiality.“).
¶ 45 He next argues that he was denied due process when the Office of the State Appellate Defender (OSAD) refused to represent him on appeal. We outright reject this contention as OSAD is not statutorily authorized to represent defendants in civil matters. According to the
¶ 46 In sum, the circuit court properly denied defendant‘s petition for a COI and there was no violation of defendant‘s due process rights.
¶ 48 Here, defendant was sentenced to four years’ imprisonment for the now-vacated offense of AUUW, which was a class 2 felony with a sentencing range of three to seven years. He was also found guilty of UUWF, which was class 3 felony with a sentencing range of two to ten years. (
¶ 49 III. CONCLUSION
¶ 51 Affirmed and remanded.
Notes
A petition for a certificate of innocence is collateral to criminal proceedings and is civil in nature. See People v. Terrell, 2022 IL App (1st) 192184, ¶ 40; see also
We note thаt there appears to be some debate within the First District of the appellate court as to whether a petitioner must prove their innocence as to nol-prossed charges to obtain a COI under