## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Rudy v. People , 2013 IL App (1st) 113449

Appellate Court Caption SHARON RUDY, Administrator with the Wil l Annexed of the Estate of E l i z abeth Ehlert, Dec ease d, Petitioner-Appellant, v. THE PEOPL E OF THE STATE OF I L L I

NOI S, Respondent-Appellee

.

District & N o. First District, Six th Division Docke t No. 1-11-3449

Filed J anuar y 25, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The petition f or a cer tificate of innocenc e filed by dece ased defe ndant’s estate in order to pursue damag es in the Court of Claims for defe ndant’s alleg ed wrong ful conviction and subsequent incar cer ation for the murder of her newbor

n child was properly dismiss ed, since the ri gh t to a
cer t i fi ca t e of innocenc e is available only to the person wrong fully convicted, not to one ac ting on he r beha lf, and, further more, the I llinois Supreme Court opinion aff irming the reve rsal of defe ndant’s conviction did n o t find defe ndant innocent but, rathe r, stated that the evidenc e of defe ndant’s guilt was “insufficie nt.”

Dec ision Under Review Appea l from the Circuit Court of Cook C o u n ty , No. 91-CR-37801; the Hon. Dennis J. P orter, Judge , presiding

.

J udgment Affir med.Counsel on

Appea l Michae l B. B olan, of Chicag o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Peter D. Fische r, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE HAL Ldelivere d the judgment of the c ourt, with opinion. Presiding J ustice L ampkin and J ustice Reyes concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant Eliz abeth Ehlert was convicted of first-degreemurder of her newbor

n infant g irl and sentenc ed to 58 year s’ imprisonment. Def endant’ s conviction

was reve rsed on direc t appea l. The appellate court deter mined that the trial court committed

reve rsible err or in admitting irrele vant and prejudicia l evidenc e that defe ndant had two prior abortions. People v. Ehlert
, 274 I ll. App. 3d 1026, 1034 (1995). Following a bench trial on
rema nd, defe ndant was ag ain convicted of first -d egre e murder and sentenc ed to 30 year s’ imprisonment. ¶ 2 Def

endant appea led her conviction and this time the conviction was overturned on the ground that the evidenc e was insufficient to show that the infant had been born alive. People

v. Ehlert
, 335 I ll. App. 3d 467, 474 (2002). The I llinois Supreme Court subsequently grante d the State’s petition for lea ve to appe al. ¶ 3 A divided I llinois Supreme Court aff irmed the appellate court’s decision, but on grounds differ ent than those relied upon by the appellate court. People v. Eh l er t , 211 I ll. 2d 192 (2004). The supreme court deter mined that even assuming the infant had been born alive, the evidenc e, taken in a light mo s t favor able to the State, was insufficient to prove beyond a
rea sonable doubt an essential element of murder, that the baby ’s d ea t h resulted from defe ndant’s criminal ag ency

. Ehlert , 211 I ll. 2d at 209-10. The c ourt noted, howe ver, that 1 its ruling did not imply that defe ndant was innoc ent of the c rime cha rg ed, but only that the State’s “evide nce of criminal ag ency resulting in death was simply insufficient.” Id. at 215. ¶ 4 Def

endant died of canc er on J une 20, 2005. Her will was filed in Winne b ago C o u n t y , wher e probate is currently pending

. Severa l prospec tive executors of defe ndant’s estate wer e

“T he el ements of m

urd er whic h m

ust be est abl is hed ar e: T he pro of of dea th and the pro of 1 of a cr iminal agency cau si ng dea th. Both of the se el ements m ust be est abl is hed by eviden ce beyond

a reas onable doub t. Aft erth ese el ements, te rmed in law the cor pus del ic ti , hav e been pro ved, the n the la w re qui re s tha t the eviden ce est abl is h b e yond a re aso nab le doub t tha t the def end ant was the

cr iminal agency or put in m oti on the cr iminal agency whic h cau sed the dea th of the victi m .” Peop le v. Wils on , 400 I ll . 461 , 480 (1 948)

.
-2-either una ble or unwillingto serve as executor. It was dete rmined that the primar y asset of the estate was a cause of action for wrong ful incar ceration. The probate court of Winnebag o County appointed Sharon Rudy as administrator of the estate with will annexed, in an eff ort to rec over funds the county had expended for defe ndant’s medical needs following her rele ase f rom prison. ¶ 5 Sharon Rudy filed a petition in Cook County circ uit court seeking to obtain a ce rtificate of innocenc e in order for defe ndant’s estate to pursue a claim for damag es in the Court of Claims for defe ndant’s alleg ed wrong ful conviction and imprisonment pursuant to s ection 2-702 of the I llinois Code of Civil P roce dure ( Code) (735 IL CS 5/ 2-702 (West 2008)). ¶ 6 The trial court denied the petition, and there afte r, denied a motion to rec onsider. Sharon Rudy now appe als on beha lf of def endant’ s estate. F or the re asons that follow, we aff irm.

¶ 7 ANALYSI S ¶ 8 Secti o n 2 -702(b) of the Code provides that “[a]ny person convicted and subseque ntly imprisoned for one or more felonies by the State of I llinois which he or she did not commit may , under the conditions here inafter provided, file a petition for cer tificate of innocenc e in the circ uit court of the county in which the person was convicted. The petition shall reque st

a ce rtificate of innoce nce f inding that the pe titioner was innocent of all offenses for which he or she was inca

rce rate d.” 735 I L CS 5/ 2-702(b) (West 2008). ¶ 9 In order to obtain a cer tificate of innocenc e under section 2-702 of the Code, a petitioner must prove by

a prepondera

nce of the evidenc e that: “(1) the petitioner was convicted of one or more felonies by the State of I llinois and subsequently sentenc ed to a term of imprisonment, and has serve d all or any part of the sentenc e; (2)( A) the judgme nt of conviction was reve rsed or vacated, and the indictme nt or information dismiss ed or, if a new trial was order ed, either the petitioner was found not guilty at the new trial or the petitioner was not retrie d and the indictment or information dismiss ed; ***; (3) the petitioner is innocent of the offe nses charg ed in the indictment or information ***; and (4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her c onviction.” 735 IL CS 5/ 2-702(g ) (West 2008). See also People v . Fields , 2011 I LApp (1st) 100169, ¶ 13. ¶ 10 “I f the court finds that the petitioner is e ntitled to a judgme nt, it shall enter a ce rtificate of innocenc e finding that the petitioner was innocent of all offe nses for which he or she was incar cer ated.” 735 I L CS 5/2-702(h) (West 2008). A person wh o s ec u res a cer tificate of innocenc e may file a petition in the state’s Court of Claims seeking compensa tion. Rodriguez

v. Cook County, Illinois
, 664 F.3d 627, 630 (7th Cir. 2011) (citin g 735 I L CS 5/2-702(a) (West 2008 )) ; s ee also Betts v. United States
, 10 F.3d 1278, 1283 (7th Cir. 1993) (“[a]

cer tificate of innocenc e serve s no purpose other than to permit its bear er to sue the g overnme nt for dama g es”)

.

-3-¶ 11 Whether or not a petitioner is entitled to a cer tificate of innocenc e is g ener ally committed to the sound discretion of the court. See Betts , 10 F.3d at 1283. Her e, howeve r, our inquiry cente rs on the leg al question of whether a dece ased defe ndant’s estate is entitled to a
cer tificate of innocenc e under section 2-702 of the Code. Acc ording ly
, our revie w is de novo

. Moreove r, the interpre tation and application of a statute is a matter of law also subject to de

novo revie w. Unzicke r v. Kraft Food Ingredients Corp. , 203 I ll. 2d 64, 74 (2002). ¶ 12 The fundam en t al ru l e o f s t at u t o ry i n t er pretation is to asce rtain and eff ectuate the leg islature’s intent. Brucke r v. Mercola
, 227 I ll. 2 d 5 0 2
, 5 1 3 (2007). The best indicator of leg islative intent is the statutory languag e itself, and if that langu age i s clear and unambiguous, it must be g iven eff ect. Bee lman Trucking v. Illinois W orkers’ Compensation Comm’n , 233 I ll. 2d 364, 370 (2009). ¶ 13 Our review of the pl ain l anguag e of section 2-702(g ) of the C o d e l ea ds us to conclude the leg islature intended the reme dies set forth in this section, allowing a petitioner to obtain

a cer tificate of innocenc e, should be persona l to the individual who was wrong ly convicted rathe r than to one s u i n g o n his or her behalf

. See, e.g. , Diamen v. United States
, 604 F.3d 653, 656-57 (D

. C

. Cir. 2010) (dec ease d defe ndant’s innocenc e was never adjudicate d in habeas proce eding
, and there fore his estate was no t en t i t led to obtain a cer tificate of i n n ocenc e in order to pursue a damag es claim, notwithstanding that defe ndant might we l l have obtained such a cer

tificate himself if he wer e still living). Acc ording ly
, we find that defe ndant’s estate was not entitled to obtain a cer tificate of innocenc e to pursue a claim for damag es, notwithstanding that defe ndant might well have obtained such a cer tificate herse lf

wer e she still living. ¶ 14 Finally
, we find that the estate’ s petition for a cer tificate of innocenc e was also properly denied whe re it wa s based upon languag e the I llinois Supreme Court used in aff irming the judgme nt of the appellate court reve rsing defe ndant’s conviction for murder. In its opinion, the supreme court noted that its ruling did not imply that defe ndant was innocent of the crime charg ed, but only that the State’s “evide nce of criminal ag ency resulting in death was simply insufficient.” Ehlert , 211 I ll. 2d at 215. ¶ 15 These are not the statements of a court finding someone “ac tually innocent.” O ur court has deter mined that the “plain languag e of section 2-702 shows the leg i s l ature ’s intent to distingui s h b et wee n a finding of not guilty at retria l and actua l innocenc e of the charg ed offe nses.” Fields , 2011 IL App (1st) 100169, ¶ 19. In sum, we find the trial cour t properly dismiss ed the de cea sed def endant’ s estate’ s petition for a c ertificate of innoce nce. ¶ 16 For

the fore g oing reasons, weaff irm the judg ment of the c ircuit court.

¶ 17 Affir

med.

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