Case Information
*1
SIXTH DIVISION November 19, 2021 IN THE
APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of Plaintiff-Appellant, ) Cook County.
) v. ) No. 13 CR 22324
) ZACHARY SMITH, ) Honorable
) Erica L. Reddick, Defendant-Appellee. ) Judge Presiding. JUSTICE MIKVA delivered the judgment of the court, with opinion.
Justice Harris concurred in the judgment and opinion.
Justice Oden Johnson dissented, with opinion.
OPINION
¶ 1 The issue before this court is whether this petitioner has met the requirements for a certificate of innocence (COI) where he was found not guilty of the crime for which he was incarcerated but guilty of another crime charged in the same indictment or information. For the reasons that follow, we find that the petitioner is not statutorily entitled to a COI under these circumstances and reverse the decision of the circuit court.
¶ 2 I. BACKGROUND Following a bench trial, defendant Zachary Smith was found guilty on one count of being
an armed habitual criminal (AHC) in violation of section 24-1.7(a) of the Criminal Code of 2012
(Criminal Code) (720 ILCS 5/24-1.7(a) (West 2012)) and on three counts of unlawful use of a
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weapon by a felon (UUWF), in violation of section 24-1.1(a) of the Criminal Code (
id.
§ 24-1.1(a)). On May 7, 2015, the trial court sentenced Mr. Smith on the AHC charge to a prison
term of six years, followed by three years of mandatory supervised release (MSR), and a
concurrent sentence of two years on a single merged count of UUWF. On appeal, this court vacated
Mr. Smith’s UUWF conviction under the one-act, one-crime rule, concluding that both the AHC
and the UUWF charges stemmed from the same physical act of unlawfully possessing the same
firearm. See
People v. Smith
,
¶ 4 Mr. Smith then successfully petitioned the circuit court, under section 2-1401 of the Code
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2016)), to vacate his AHC conviction. An
AHC conviction requires that the defendant have two predicate felony convictions. 720 ILCS 5/24-
1.7 (West 2012) (qualifying offenses include forcible felonies, crimes involving the illegal use or
possession of firearms, and drug charges). The circuit court agreed with Mr. Smith that, following
our supreme court’s decision in
In re N.G.
,
¶ 5 On October 4, 2019, Mr. Smith sought a COI, pursuant to section 2-702 of the Criminal Code (735 ILCS 5/2-702 (West 2018)), based on the fact that he had been incarcerated on the now- vacated AHC conviction. The State objected to the petition. The State did not dispute Mr. Smith’s claim that he was “innocent,” as that term is employed in the COI statute, on the AHC charge but argued that he was not entitled to a COI because he had separately been found guilty of UUWF. *3 The circuit court granted the COI. The State now appeals.
¶ 6 II. JURISDICTION
¶ 7 The circuit court granted Mr. Smith’s petition for a COI on July 16, 2020. The State filed a timely notice of appeal from that decision on August 14, 2020. We have jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments in civil cases.
¶ 8 III. ANALYSIS The COI statute, found at section 2-702 of the Code (735 ILCS 5/2-702 (West 2018)), is
lengthy and need not be set out in full. The section’s title is “Petition for a certificate of innocence that the petitioner was innocent of all offenses for which he or she was incarcerated.” Id. Subsection (a) states its purpose, in part, as follows:
“The General Assembly finds and declares 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.” Id. § 2-702(a).
¶ 10 Subsection (g) of the statute sets out the criteria for a petitioner to obtain a COI. It provides, in full, as follows:
“(g) 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.” Id. § 2-702(g).
¶ 11 We have recognized that the purpose of a COI is to allow the wrongfully incarcerated “to
obtain a finding of innocence so that [they] may obtain relief against the State for wrongful
incarceration through the court of claims.” (Internal quotation marks omitted.)
People v.
McClinton
,
¶ 12 The State argues that a COI should not have been issued in this case because Mr. Smith, who was also found guilty of UUWF, was not “innocent of the offenses charged in the indictment,” as required by subsection (g)(3) of the statute. Mr. Smith’s response is that the State has waived this argument and that, if the court reaches the merits, the COI statute provides for a certificate if a petitioner is innocent of the charge or charges for which he or she was incarcerated . Mr. Smith insists that because he ultimately was incarcerated only on the AHC charge, and that conviction *5 was vacated, the COI was properly granted. We first address Mr. Smith’s forfeiture argument and then, because we find no forfeiture by the State, turn to the parties’ conflicting interpretations of the COI statute. A. Forfeiture
¶ 14 Mr. Smith maintains that in its four-and-a-half-page response to his petition the State did not argue—or at least did not present a fully developed argument—that he had to prove himself innocent of all the offenses charged in the indictment and that the State has thus “waived” this argument. Although the parties speak in terms of waiver, they are really discussing forfeiture. The concepts are distinct. Forfeiture is the failure to comply with procedural requirements, which would include a general prerequisite to an appeal that the claim was properly raised in the trial court. People v. Sophanavong , 2020 IL 124337, ¶¶ 20-21. Waiver, on the other hand, is the voluntary relinquishment of a right. Id. The State certainly did not intentionally abandon this argument. Thus, what is at issue is forfeiture.
¶ 15
As our supreme court has made clear, “[w]e require parties to preserve issues or claims
for appeal; we do not require them to limit their arguments [on appeal] to the same arguments that
were made below.”
Brunton v. Kruger
,
¶ 16 The State’s written response to Mr. Smith’s petition stated that Mr. Smith was not entitled
to a COI unless he could “show by preponderance of evidence that he was ‘innocent of the offense
charged in the indictment or information’ as required by Section (g)(3) of the COI Statute.” At oral
argument on the petition in the circuit court, the State reiterated: “[Mr. Smith] has to prove himself
innocent of all the charges in the indictment.” The State continued: “[Mr. Smith] was actually
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found guilty of all three of the UUW’s by a felon.” This was more than sufficient to preserve the
defense to the petition that the State relies on now. While this court’s recent decision in
Moore
,
¶ 17 B. Merits
¶ 18 In the circuit court, neither the parties nor the judge had the benefit of the Moore court’s excellent analysis of the COI statute. However, the parties have both addressed that case on appeal and we find it an appropriate starting point. In Moore, as in this case, one of the offenses for which the petitioner was convicted was
AHC.
Id.
¶ 1. And, as here, one of the predicate offenses for the AHC charge was a prior conviction
for the variety of AUUW that our supreme court held unconstitutional in
Aguilar
,
¶ 20 Of course, this case is different from Moore because the only charge, other than the AHC charge, on which Mr. Smith was convicted and incarcerated was the one count of UUWF that was vacated by this court on direct appeal under the one-act, one-crime rule. In contrast, the petitioner *7 in Moore was convicted of and incarcerated on three other offenses besides AHC. Emphasizing the Moore court’s observation that the petitioner in that case “was properly incarcerated for some convictions and wrongly incarcerated for another” ( id. ¶ 25), Mr. Smith insists that Moore does not support the State’s position here. While the cases are admittedly different, we are persuaded by Moore ’s reading of the plain language of the COI statute, which we find equally controlling here.
¶ 21 The Moore court recognized that its analysis must begin “with subsection (g), as that subsection states the elements to obtain a COI.” Id. ¶ 20. There is no dispute that Mr. Smith has satisfied the first, second, and fourth requirements. The question is whether he has satisfied the third requirement by showing that he is “innocent of the offenses charged in the indictment or information” or that the “acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State.” (Emphases omitted.) This requirement speaks of “offenses,” plural, and through use of the conjunctive “and,” is cumulative to the other three requirements. The court, sitting as the finder of fact in Mr. Smith’s criminal trial, in addition to finding him guilty of the AHC charge, found Mr. Smith guilty of three counts of UUWF. Mr. Smith thus clearly cannot make a showing that he was “innocent” of the offenses charged in the indictment.
¶ 22 As Mr. Smith points out, the COI statute elsewhere refers to the ability to “request a certificate of innocence finding that the petitioner was innocent of all offenses for which he or she was incarcerated ” (emphasis added) (735 ILCS 5/2-702(b) (West 2018)) and instructs the court, if it “finds that the petitioner is entitled to a judgment,” to “enter a certificate of innocence finding that the petitioner was innocent of all offenses for which he or she was incarcerated ” (emphasis added) ( id. § 2-702(h)). The title of the section as a whole also repeats this language. The titles of *8 statutory sections are of course not controlling. See Illinois Bell Telephone Co. v. Illinois Commerce Comm’n , 362 Ill. App. 3d 652, 661 (2005) (observing, as a matter of statutory construction, that “[h]eadings cannot limit the plain meaning of the text” (Internal quotation marks omitted.)). We observe, moreover, that in the places where this language is employed, the drafters of the statute refer to the contents of a COI, not to the requirements for obtaining one, which are found exclusively in subsection (g). Imprisonment, addressed in subsection (g)(1), is plainly one requirement—although this
court has construed imprisonment broadly in this context to include a sentence of probation. See
People v. Glenn
,
¶ 24 Our holding should not be viewed as an acceptance by this court of some of the State’s
overly broad assertions regarding what it means to be, in the State’s words, “wholly innocent” for
purposes of the COI statute. The State suggested at oral argument that Mr. Smith was not in fact
“wholly innocent” on the AHC charge brought against him in this case because that charge was
“valid when brought” and no court had found the AHC statute itself to be unconstitutional. Mr.
Smith was unquestionably innocent of AHC as that offense was charged in this case. One of the
two predicate offenses on which the charge rested was an AUUW charge later deemed by our
supreme court to be “facially unconstitutional,” “void
ab initio
,” “infirm from the moment of [its]
enactment,” and “unenforceable,” “as if the law had never been passed.” (Internal quotation marks
omitted.)
In re N.G.
,
¶ 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. A
nolle prosequi
is a formal notice given by the State that a claim has been abandoned. Black’s Law Dictionary
(11th ed. 2019). Translated from Latin, the phrase literally means “not wish to prosecute.”
Id.
Absent the refiling of the abandoned claim or a motion to vacate the
nolle prosequi
(
People v.
Hughes
,
¶ 26 To be clear, the COI was inappropriate in this case only because there was a finding that Mr. Smith was guilty on a constitutionally valid charge of UUWF. The finding that Mr. Smith was guilty on the UUWF charge, in contrast to the finding that he was guilty of the AHC charge, did not rest on a predicate offense that our supreme court has found to be unconstitutional. Rather, the only reason that the UUWF conviction was vacated by this court was that, at the time the case first came before us, Mr. Smith was also convicted of AHC based on the same underlying action of gun possession, and a defendant can only be punished once for a single act.
¶ 27 The dissent cites
People v. Wunnenberg
,
sentenced on all of the charges for which he or she was found guilty. Some charges may be merged
into others, as two of the counts of UUWF were in this case. Or, as also occurred in this case, one
of the charges may be based on the same act as another charge, and a conviction on the less serious
offense will be vacated for that reason.
People v. Artis
,
¶ 30 Mr. Smith argues that
McClinton
,
¶ 31 Mr. Smith points out that the McClinton court noted in passing that the petitioner in that case was also charged with bringing a firearm and cannabis into a penal institution. Id. ¶ 3. However, the court made no mention of this when it held that petitioner was entitled to a COI. Mr. Smith argues that those charges were “irrelevant due to the fact that they had not resulted in [the petitioner’s] ‘incarceration.’ ” However, in our view, those charges were irrelevant to the *12 petitioner’s right to a COI in McClinton because there were no findings that the petitioner in that case was guilty of any of those other charges. Again, it is a finding of guilt by the factfinder that stands in the way here of Mr. Smith obtaining a COI.
¶ 32 Mr. Smith also directs our attention to our supreme court’s recent decision in People v. Palmer , 2021 IL 125621, ¶¶ 64-66, in which the court held that a defendant whose murder conviction was vacated on a postconviction petition based on newly discovered forensic evidence and whom the State declined to prosecute further was entitled to a COI. The supreme court rejected the State’s argument that the petitioner also had to prove himself innocent of being an accomplice to the murder, a theory that was never put forward to the jury. Our supreme court held that the only burden on a COI petitioner is to establish innocence of the offense “as it was charged and prosecuted in his criminal trial.” Id. ¶ 78. The Palmer court focused its analysis, as we do here , on what happened at the petitioner’s trial and on the specific requirements of subsection (g) of the COI statute. There is no conflict between our holding in this case and our supreme court’s holding in Palmer.
¶ 33 Mr. Smith also argues that accepting the State’s interpretation of the COI statute “would dramatically increase the burden on a claimant.” He speculates that this would “lead to trials on irrelevant charges” and frustrate the streamlined process envisioned by the COI statute. To be clear, our holding here is based on the fact that Mr. Smith was found guilty of three courts of UUWF—offenses that were charged in the indictment. Thus, he could not show that he was “innocent” of all charges in the indictment. Had he been found not guilty on all remaining charges—or had those charges or some predicate for those charges been deemed unconstitutional, as the AHC charge was—we have no doubt that Mr. Smith would be entitled to a certificate of innocence. Those are not the facts presented here.
¶ 34 IV. CONCLUSION
¶ 35 For the reasons stated, the circuit court’s order awarding Mr. Smith a COI is reversed. ¶ 36 Reversed.
¶ 37 JUSTICE ODEN JOHNSON, dissenting: I must respectfully dissent from the majority’s decision in this case. As the majority has
set forth, defendant was convicted and sentenced on one count of AHC and one merged count of
UUWF stemming from a 2013 arrest. Additionally, as further noted in a prior appeal, we vacated
defendant’s UUWF conviction as violative of the one-act, one-crime doctrine.
People v. Smith
,
¶ 39 A person commits the offense of being an armed habitual criminal if he “receives, sells,
possesses, or transfers any firearm” after having been convicted of at least two triggering offenses,
such as a forcible felony, UUW, AUUW, aggravated discharge of a firearm, or vehicular hijacking.
See 720 ILCS 5/24-1.7(a)(1), (2) (West 2012). Here, defendant’s AHC conviction was based on
two prior convictions—UUWF under case No. 07 CR 1257601 and AUUW under case No. 09 CR
1652401. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010); 720 ILCS 5/24-3.1(a)(1) (West
2010). The offense of AUUW was found to be facially unconstitutional in
People v. Aguilar
, 2013
IL 112116, ¶ 22. When a statute is found to be facially unconstitutional in Illinois, it is said to be
void
ab initio
, and any conviction based on that statute, should be treated as if the law had never
been passed and never existed.
In re N.G.
one-crime doctrine. The one-act, one-crime rule prohibits convictions for multiple offenses that
are based on precisely the same physical act.
People v. Smith
,
¶ 41 The unconstitutionality of the AUUW conviction, which was void ab initio , left only one prior triggering offense, the 2007 UUWF. Thus, the circuit court properly vacated defendant’s AHC conviction as it was impossible for defendant to have been guilty or not innocent of the AHC where he did not meet the statutorily mandated two triggering offenses.
¶ 42 The majority ignores the fact that the three merged UUWF counts were vacated, instead contending that the initial guilty finding still serves as proof that defendant was not innocent for purposes of pursuing a Certificate of Innocence (COI). As noted above, once a prior conviction is vacated, it no longer has the legal character or effect of a guilty finding or conviction. As such, the vacated UUWF conviction (consisting of the merged counts) should not be considered as evidence of noninnocence for purposes of a COI. Further, a guilty finding that has been vacated and held for naught, for whatever reason, should not ipso facto negate innocence.
¶ 43 The statute requires that the circuit court conduct a hearing or make findings of innocence.
In this case, the circuit court reviewed the trial evidence when making the decision to grant the
COI, the court specifically found that defendant was innocent of the AHC charge, and the State
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agreed on record. In fact, as the majority points out, the State did not dispute his claim of innocence
but only argued he was not entitled to a COI because he had been guilty of UUWF. However, as
articulated above, once the 2013 UUWF was vacated, the only remaining guilty finding was the
2007 UUWF which was not of this indictment as required by section 2-702 g (3) of the Code. (735
ILCS 5/2-702 (West 2018)). Further, it is well settled that the determination of whether a petitioner
is entitled to a certificate of innocence is committed to the discretion of the circuit court.
People v.
Rodriguez
,
¶ 44 The overwhelming foundation of our criminal justice system is based on the premise that a defendant is innocent until proven guilty, but according to the majority’s ruling here, the exception is when a defendant is seeking a redress for wrongful conviction, at which point the defendant is presumed guilty until he proves that he is innocent. Here the circuit court correctly applied the law and found by a preponderance of the evidence that defendant was innocent. Accordingly, I respectfully dissent as I would affirm the circuit court’s grant of the COI to defendant.
No. 1-20-0984
Cite as:
People v. Smith
,
22324; the Hon. Erica L. Reddick, Judge presiding. Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil for Stein and T. Andrew Horvat, Assistant State’s Attorneys, of Appellant: counsel), for the People.
Attorneys Thomas C. Crooks, Law Office of Thomas C. Crooks, of for Chicago, for the appellee.
Appellee: