2015 IL App (1st) 140477 FIRST DIVISION October 5, 2015
No. 14-0477
THE PEOPLE OF THE STATE OF ILLINOIS , ) Appeal from the ) Circuit Court of Plaintiff -Appell ant , ) Cook County. )
v. ) No. 09 CR 6762 ) CORNELIUS SHINAUL , ) Honorable ) Thomas M. Davy, Defendant -Appell ee . ) Judge Presiding.

PRESIDING JUSTICE LIU delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion. Justice Pierce specially concurred , with opinion.

O PINION ¶ 1 In 2009 , defendant, Cornelius Shinaul , was charged with eight counts of aggravated unlawful use of a weapon (AUUW) and one count of unlawful possession of a firearm. He subsequently pleaded guilty to the AUUW offense under count I of the information , pursuant to section 24 -1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24

- 1.6(a)(1) , (a)(3)(A) (West 2008)) , and the State nol -prossed the remai ning charges under counts
II through IX

. The trial court sentenced defendant to 24 months ' probation for committing a Class 4 felony under the AUUW statute

. In 2013, d efendant brought a petition for relief under section 2 -1401 of the Code of Civil Procedur e (Code) (735 ILCS 5/2-1401 (West 2012)), seeking to vacate the conviction on the basis that it was void under People v. Aguilar , 2013 IL 112116. In response, t he State did not challenge the petition , but, instead , moved to reinstate counts II , IV , VI , and VIII of the 2009 information

. Following a hearing , t he trial court entered an order1-14-0477

2 vacating defendant's conviction and allowing him to withdraw his plea , but den ying the State ' s motion for reinstatement

. The State appealed. W e dismiss the appeal for lack of jurisdiction. ¶ 2 BACKGROUND ¶ 3 Defendant was 16 years old in February 2009, when he was arrested for var ious firearm possession offenses. On April 8 , 2009, the State brought nine counts against him by information.
In count I, the State alleged that defendant committed an AUUW offense by knowingly carrying , on or about his person , firearm that was uncased , loaded , and immediately accessible , in violation of section 24

- 1.6(a)(1) , (a)(3)(A) of the Criminal Code. 720 ILCS 5/24 -1.6( a)(1) , (a)(3)(A) (West 2008) . Counts II through VIII involved other offenses under other subsections of the AUUW statute , e.g. , knowingly carrying a firearm without a currently valid firearm owner ' s identification (FOID) card (720 ILCS 5/24 -1.6(a)(1), (a)( 3)(C) (West 2008)). Count IX was based on the unlawful possession , by a person under the age of 18 years, of a firearm and firearm ammunition of a size which may be concealed upon the person (720 ILCS 5/24

- 3.1(a)(1) (West 2008)). ¶ 4 On June 2, 2009, as part of a negotiated plea agreement between defendant and the State following a Rule 402 conference (Ill. S. Ct. R. 402 (eff. July 1 , 1997)), defendant pleaded guilty

to count I of the information and t he State agreed to enter a nolle prosequi on the re maining charges. Defendant was convicted of the AUUW offense under count I and was sentenced to 24 months' probation based on a Class 4 offense (720 ILCS 5/24

- 1.6(a)(1) , (a)(3)(A) (West 2008) ). Defendant served and completed the full term of his sentence. ¶ 5 In September 2013, our supreme court ruled that " the Class 4 form of section 24

- 1.6(a)(1) , (a)(3)(A) , (d) violates the right to keep and bear arms , as guaranteed by the second amendment to the United States Constitution. " Aguilar , 2013 IL 112116 , ¶ 22; U.S. Con s t.1-14-0477

3 amend II

. The particular section of the AUUW statute that was found unconstitutional by the court in Aguilar is the same statutory provision under which defendant was convicted and sentenced

. ¶ 6 On October 28 , 2013, defendant filed a petition to vacate his conviction pursuant to section 2

- 1401 of the Code. 1 In response , t he State acknowledged that the conviction should be vacated because " the Illinois Supreme Court held [in Aguilar ] that section 24

- 1.6(a)(10(3)(A) was facially unconstitutional "; however, it requested reinstate ment of four of the charges (under

counts II , IV , VI , and VIII ) that were previously nol-prossed in the original 2009 criminal proceeding . These four charges involve alleged violations under the AUUW statute for possession of a firearm: ( 1 ) without a currently valid FOID card (720 ILCS 5/24 -1.6(a)(1), (a)(3)(C) (West 2008)) ; (2 ) while under the age of 21 (720 ILCS 5/24

- 1.6(a)(1) , (a)(3)(I) (West 2008)); (3 ) upon a public street without a valid FOID card (720 ILCS 5/24 -1.6(a )(2) , (a)(3)(C) (West 2008)) ; and ( 4 ) upon a public street while under 21 years of age (720 ILCS 5/24 -1.6(a)(2), (a)(3)(I) (West 2008)). ¶ 7 On December 16 , 2013, t he trial court granted defendant ' s section 2 -1401 petition and ordered that his conviction be vacated , and allowed defendant to withdraw his guilty plea. The court also denied the State ' s motion for reinstatement of the charges . During the hearing , t he trial court explained that " no matter how many different theories the State may ha ve had as far as aggravated unlawful use of weapons , we are talking about one singular gun ," and because judgment had already been entered as to " the one gun involved in [defendant ' s] case ," reinstatement of the charges that were nol

- prossed by the State i n 2009 would violate the one- act ,

one- crime rule. The State filed a motion to reconsider. C iting People v. Hughes , 2012 IL 112817,

1 Defendant' s request , styled as a " Motion to Vacate Conviction and Withdraw Guilty Plea ," seeks relief from a void conviction under section 2

- 1401 of the Code , and we will treat it as a petition for relief from judgment.1-14-0477

4 and People v. McCutcheon , 68 Ill. 2d 101 (1977) , the State argued that the previously nolprossed char ges against defendant should be reinstated because : (1) the charges were dismissed before jeopardy attach ed ; and (2) there was no constitutional or statutory limitations preclud ing the prosecution of defendant on th ose charges. The court denied the State ' s motion to reconsider on January 17, 2014. This appeal followed. ¶ 8 ANALYSIS ¶ 9 Before we can address the State ' s arguments , we must determine whether we have jurisdiction to review this appeal. The State asserts that our jurisdict ion is conferred under Illinois Supreme Court Rule 604(a)( 1) (eff. Feb. 6 , 2013). Defendant argues that jurisdiction does not exist because the trial court ' s order denying the motion to reinstate charges was not a ruling that had the substantive effect of a dismissal of the charges. Absent statutory exceptions , appellate courts lack jurisdiction to review orders , judgments and decrees that are not final. People v. Schram , 283 Ill. App. 3d 1056, 1060 (1996). ¶ 10 Rule 604(a) , which sets forth the only grounds on which appeals may be brought by the
State , provides as follows:

" In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114

- 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment , information or complain t; quashing an arrest or search warrant ; or suppressing evidence. " Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6, 2013). Defendant first argues that the trial court' s denial of the State ' s motion to reinstate the charges previously brought in the 2009 information is not a valid basis for appeal under Rule 604(a)(1)1-14-0477

5 because the denial does not result in a dismissal of th e charges . Second, he argue s that section
114- 1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114

- 1 (West 2012)) does not apply because the statute requires th at the dismissal result from a defendant's motion to dismiss. Finally , Defendant also argues that dismissal of this appeal is required because " there is no case pending from which the State can appeal " because there were no active criminal charges remaining after the other counts were nol-prossed.
¶ 11 In response , the State argues that the trial court erred in denying reinstatement of the charges because no jeopardy attached to the previously nol

- prossed charges . Quoting People v.
Norris , 214 Ill. 2d 92 , 104 (2005) , the State asserts that "when a nolle prosequi is entered before jeopardy attaches , the State is entitled to refile the charges against the defendant. " The State also relies on People v. McCutcheon , 68 Ill. 2d 101 (1977) , for its contention that it is entitled to reinstate the nol -prossed counts when " th ere [was] no finding on the nolle'd counts." ¶ 12 Pursuant to Rule 604(a)(1) , our jurisdictional authority exists in an appeal brought by the State only if the order or judgment at issue has the " substantive effect " of dismissing a charge on one of the "grounds enumerated in section 114

- 1 of the Code of Criminal Procedure. " Ill. S. Ct. R. 604(a)(1) (eff. Feb. 6 , 2013); see also 725 ILCS 5/114

- 1 (West 2012). Section 114

- 1 sets forth specific grounds for dismissal of a charge , none of which are present in the case before us. Perhaps conceding this point , the State nonetheless contends that our supreme court has held that Rule 604(a)(1) " was not intended to reduce the State ' s right of appeal to only those grounds enumerated in section 114 -1." People v. Boyt , 109 Il l. 2d 403 , 411 (1985) (citing People v.
Lawson , 67 Ill. 2d 449, 455 (1977)). " Rather , the State has the right to appeal from ' any judgment the substantive effect of which resulted in the dismissal of an indictment , information or complaint. ' " Boyt , 109 Ill. 2d at 411 (quoting People v. Love , 39 Ill. 2d 436, 439 (1968)).1-14-0477

6 ¶ 13 Even if we construe Rule 604(a)(1) broadly , as Boyt instructs , so as to include orders that result in the dismissal of a charge for any reason , we cannot reasonably interpret the tr ial court's denial of the State ' s motion for reinstatement of the charges as a disposition that bears the substantive effect of a " dismissal of an indictment , information or complaint. " Here , the trial court denied the State ' s request to reinstate charges that were previously dismissed by a nolle prosequi

. The State ' s comparison of this case to McCutcheon is unavailing. Unlike the situation
in McCutcheon , where the reinstatement of nolle ' d charges was permitted contemporaneous to a pending criminal proceeding on remand to the trial court , there was no pending proceeding here. The criminal prosecution against defendant based on the 2009 information ended when defendant was convicted on a single count in exchange for the State ' s entry of a nolle prose qui on the remaining charges and no appeal was taken by defendant

. In contrast to the procedural posture of McCutcheon , there was no pending criminal proceeding before the trial court in this

case ; the sole matter before the court was defendant ' s section 2- 1401 petition for relief from a void judgment. The denial of the reinstatement cannot be recast as a " dismissal of an indictment , information or complaint " because , simply put , there was no indictment , information or complaint pending before the court. See People v. Aldama , 366 Ill. App. 3d 724 , 725 (2006) (dismissing appeal for lack of jurisdiction on the basis that Rule 604(a)(1) , which is " the only source of any right of the State to appeal in a criminal case , does not provide for an appeal when the court allows the defendant to withdraw a guilty plea" ). As our supreme court has explained:

" Once a charge is nol -prossed, the proceedings are terminated with respect to the particular charge , and the defendant is free to go ' " without entering into a rec ognizance to appear at any other time. " ' [Citation.] A nolle prosequi is not an acquittal of1-14-0477

7 the underlying conduct that served as the basis for the original charge but , rather , it leaves the matter in the same condition as before the prosecution commenced. [Citation.] " (Emphase s added.) People v. Hughes , 2012 IL 112817, ¶ 23. ¶ 14 We find that the trial court entered no order or judgm ent on either December 16 , 2013 or January 17 , 2014 that had the substantive effect of dismissing a ny charge s against defendant. Therefore , the State is not entitled to an appeal pursuant to Rule 604(a)(1). ¶ 15 Defendant has also presented an argument that reinstatement should not be permitted because (1) the statute of limitations has expired and (2) the State ' s motivation for reinstating the charges is grounded in vindictiveness and bad faith. The State has responded to each of these arguments. Because we lack jurisdiction to review this appeal , we do not reach the se issues

. In addition, we make no finding in this decision as to whether the State may commence a new proceeding or bring the subject charges in a new indictment or information " in the absence of any applicable constitutional or statutory limitations which a defendant may raise. " Hughes , 2012 IL 112817, ¶ 25. ¶ 16 Appeal dismissed. ¶ 17 JUSTICE PIERCE , specially concurring. ¶ 18 I write separately to emphasize that because defendant filed a section 2

- 1401 (735 ILCS 5/2- 1401 (West 2012)) petition to vacate his conviction , the trial court had jurisdicti on to consider only whether the judgment of conviction was valid. The filing of the section 2 -1401 petition was not a continuation of the original proceeding initiated by the State at the time of filing the nine

- count criminal information in 2009. Rather , this criminal proceeding terminated 30 days after the acceptance of defendant ' s guilty plea on June 2 , 2009, pursuant to Illinois1-14-0477

8 Supreme Court Rule 605(b) (eff. Oct. 1 , 2001) and Rule 606(b) (eff. Mar. 20 , 2009). To avoid any confusion or misunderstandi ng , I emphasize that the portion of the trial court ' s order of December 16 , 2013 stating "and [d]efendant's guilty plea to count one is withdrawn" (s ee supra ¶ 7) is surplusage and of no force or effect , because under the clear terms of Illinois Supreme
Co urt Rule 605(b) (eff. Oct. 1 , 2001) (a written motion to reconsider or vacate a guilty plea must be filed within 30 days from date of sentence) , the trial court had no jurisdiction to allow the defendant to withdraw his guilty plea. In all other respects , the order vacating defendant ' s conviction in light of People v. Aguilar , 2013 IL 112116, as the State concedes , was proper.