                                      2017 IL 120162



                                        IN THE
                               SUPREME COURT
                                            OF
                          THE STATE OF ILLINOIS



                                   (Docket No. 120162)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
                        CORNELIUS SHINAUL, Appellee.


                             Opinion filed February 17, 2017.



        CHIEF JUSTICE KARMEIER delivered the judgment of the court, with
     opinion.

        Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the
     judgment and opinion.

        Justice Theis dissented, with opinion.



                                        OPINION

¶1      Defendant Cornelius Shinaul, who was 17 years old at the time, was arrested on
     February 9, 2009, for various firearm possession offenses. On April 8, 2009, he was
     charged with nine felony counts—eight aggravated unlawful use of a weapon
     (AUUW) counts and one unlawful possession of a firearm count. Following a Rule
     402 conference (Ill. S. Ct. R. 402 (eff. July 1, 1997)) on June 2, 2009, defendant, as
     part of a negotiated plea agreement, pled guilty to count I of the information (720
     ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) in exchange for the State agreeing to a
     nolle prosequi on the remaining charges. The Cook County circuit court accepted
     the guilty plea and sentenced defendant to 24 months’ probation based on the Class
     4 felony offense of AUUW. 720 ILCS 5/24-1.6(d)(2) (West 2008). Pursuant to the
     agreement, the remaining counts against defendant were nol-prossed by the State.
     Defendant served and completed the full term of his sentence.

¶2       On October 28, 2013, defendant brought a petition for relief under section
     2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), seeking
     to vacate the conviction on the basis that it was void under this court’s decision in
     People v. Aguilar, 2013 IL 112116, ¶ 21, which held that the Class 4 form of
     AUUW set forth in section 24-1.6(a)(1), (a)(3)(A), (d) was facially
     unconstitutional. Conceding that defendant’s conviction should be vacated in light
     of Aguilar, the State filed a motion to reinstate certain AUUW counts that were
     previously nol-prossed.

¶3       The circuit court held a hearing on both defendant’s petition and the State’s
     motion. At no time did defendant challenge whether the State could bring its
     motion in this proceeding. Rather, defendant argued that the nol-prossed charges
     were time-barred. Addressing the parties’ arguments, the circuit court agreed that
     Aguilar voided defendant’s conviction and that defendant could withdraw his
     guilty plea. 1 In the circuit court’s detailed analysis, the court also denied the State’s
     motion on the basis that reinstatement of the charges would violate the one-act,
     one-crime doctrine. Following the conclusion of the hearing on the parties’
     motions, the circuit court entered a written order consistent with its oral
     pronouncement. The State, thereafter, filed a motion to reconsider in the circuit
     court, citing People v. Hughes, 2012 IL 112817, and People v. McCutcheon, 68 Ill.
     2d 101 (1977), for the proposition that the previously nol-prossed charges against
     defendant should be reinstated because (1) the charges were dismissed before
     jeopardy attached and (2) there were no constitutional or statutory limitations

         1
         The circuit court’s order allowing defendant to withdraw his guilty plea was
     unnecessary under the circumstances because defendant’s conviction was vacated.




                                               -2-
     precluding the prosecution of defendant on those charges. The circuit court denied
     the State’s motion to reconsider, and the State timely appealed.

¶4        The appellate court determined it lacked jurisdiction to consider the State’s
     appeal. 2015 IL App (1st) 140477, ¶ 9. In dismissing the appeal, the appellate court
     rejected the State’s argument that Illinois Supreme Court Rule 604(a)(1) (eff. Feb.
     6, 2013), which permits the State to appeal any order that has the substantive effect
     of dismissing a charge, confers appellate jurisdiction. 2015 IL App (1st) 140477,
     ¶ 9. Justice Pierce specially concurred in the judgment, writing to emphasize that,
     because defendant filed a section 2-1401 petition to vacate his conviction, the
     circuit court had jurisdiction to consider only whether the judgment of conviction
     was valid and that the portion of the circuit court’s order stating “[d]efendant’s
     guilty plea to count one is withdrawn” was surplusage because under the terms of
     Illinois Supreme Court Rule 605(b), the circuit court lacked jurisdiction to allow
     defendant to withdraw his plea. (Internal quotation marks omitted.) Id. ¶ 18 (Pierce,
     J., specially concurring).

¶5       The State filed a petition for rehearing, arguing that even if the appellate court
     lacked jurisdiction under Rule 604(a)(1), it had jurisdiction pursuant to Illinois
     Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which allows appellate review
     of “[a] judgment or order granting or denying any of the relief prayed in a petition
     under section 2-1401 of the Code of Civil Procedure.” 2015 IL App (1st) 140477,
     ¶ 20. Upon the denial of rehearing, the appellate court modified its opinion and
     rejected the State’s contention that it was not appealing an order granting or
     denying a section 2-1401 petition but, rather, it was appealing an order denying its
     motion to reinstate charges. Id. The appellate court reasoned that “[t]he mere fact
     that two separate orders—one appealable and one nonappealable—are contained in
     the same document does not automatically render each order independently
     appealable.” Id. We allowed the State’s petition for leave to appeal. Ill. S. Ct. R.
     315(a) (eff. Jan. 1, 2015).


¶6                                       ANALYSIS

¶7       The threshold question to be resolved in this case is whether the appellate court
     erred in dismissing the State’s appeal for lack of jurisdiction. For the same reasons
     determined by the appellate court, defendant urges affirmance of the appellate



                                             -3-
     court’s dismissal on the basis that the circuit court’s order was nonappealable. The
     State first argues that the order from which it is appealing is a final and appealable
     judgment as a matter of right under article VI, section 6, of the Illinois Constitution
     (Ill. Const. 1970, art. VI, § 6), because the issues between the parties were fully
     resolved when the circuit court addressed all of the pending issues in a single
     written order. Even if the circuit court’s order denying the State’s motion to
     reinstate the nol-prossed counts could not be appealed as of right, the State claims
     that the appellate court had jurisdiction to entertain the appeal under Illinois
     Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which allows for appeals from
     a judgment or order granting or denying any of the relief requested in a section
     2-1401 petition. For the following reasons, we find that the appellate court had
     jurisdiction to review the circuit court’s order.

¶8        Whether the appellate court has jurisdiction to consider an appeal presents a
     question of law, which we review de novo. People v. Salem, 2016 IL 118693, ¶ 11.
     A civil remedy that extends to criminal cases, section 2-1401 of the Code of Civil
     Procedure outlines a comprehensive, statutory procedure by which final orders and
     judgments may be vacated by the circuit court more than 30 days following their
     entry. 735 ILCS 5/2-1401 (West 2012); People v. Vincent, 226 Ill. 2d 1, 7 (2007). A
     section 2-1401 proceeding is a new and separate cause of action that is subject to
     the usual rules of civil procedure. Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 23
     (citing Vincent, 226 Ill. 2d at 7).

¶9       It is undisputed that defendant’s section 2-1401 petition correctly asserted that
     his conviction as part of the negotiated plea should be vacated in light of this court’s
     decision in People v. Aguilar, 2013 IL 112116. Further, the State properly filed its
     motion to reinstate the prior nol-prossed charges by proceeding under this court’s
     alternative method of reinstating once nol-prossed charges. 2 See People v. Hughes,
     2012 IL 112817, ¶¶ 24-25 (identifying two mechanisms by which the State can
     reinstate once nol-prossed charges: the State may file a new information or
     indictment, or the State can alternatively move to vacate the nolle prosequi and


         2
          Although the State’s motion to have the nol-prossed charges reinstated did not contain
     a request to vacate the dismissal of the charges, we find that such request is implicitly
     included in the State’s motion.




                                                -4-
       reinstate the original charges). The question, then, is whether the circuit court’s
       denial of the State’s motion was a final and appealable order.

¶ 10       Article VI, section 6, of the Illinois Constitution confers on the appellate court
       jurisdiction to hear appeals from all final judgments entered by the circuit court. Ill.
       Const. 1970, art. VI, § 6. It is well settled that a “final judgment” is a determination
       by the circuit court on the issues presented by the pleadings “which ascertains and
       fixes absolutely and finally the rights of the parties in the lawsuit.” Hernandez v.
       Pritikin, 2012 IL 113054, ¶ 47. In other words, a judgment or order is considered
       final and appealable if it determines the litigation on the merits such that the only
       thing remaining is to proceed with execution of judgment. In re Michael D., 2015
       IL 119178, ¶ 13; Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d
       221, 233 (2005). Accordingly, only an order which leaves the cause still pending
       and undecided is not a final order for purposes of appeal.

¶ 11       In this case, the issues before the circuit court were limited to whether the
       AUUW count to which defendant had pled guilty should be vacated, whether he
       should be allowed to withdraw his negotiated guilty plea, and whether the State
       should be allowed to reinstate the counts it had nol-prossed as part of that
       negotiated plea agreement. The State filed its motion in defendant’s section 2-1401
       proceeding in response to defendant initiating proceedings to vacate a conviction
       bargained for in the negotiated plea agreement. See Ostendorf v. International
       Harvester Co., 89 Ill. 2d 273, 279-80 (1982) (section 2-1401 petitions are
       essentially complaints inviting responsive pleadings). Similar to a counterclaim,
       the State’s motion was conditioned upon defendant’s success in vacating his
       conviction. If the circuit court denied defendant’s section 2-1401 petition, the State
       would have no need to reinstate the prior dismissed charges. In fact, the State would
       have been barred from doing so because such action would constitute a breach of
       the plea agreement. Santobello v. New York, 404 U.S. 257, 262 (1971); People v.
       Whitfield, 217 Ill. 2d 177, 189 (2005). Once the circuit court granted the relief
       sought in defendant’s petition, the condition on which the State’s motion was
       dependent was triggered, and the merits of the State’s motion became pertinent to
       the outcome of the judgment. When the circuit court ultimately denied the State’s
       motion on the basis that reinstatement of the nol-prossed charges would violate the
       one-act, one-crime doctrine, a final decision on the State’s motion was entered.




                                                -5-
¶ 12       Generally, if an order merely strikes a complaint or a count of a complaint but
       grants leave to amend, or dismisses less than all the parties or issues, it is not an
       appealable final order. Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 25;
       Doner v. Phoenix Joint Stock Land Bank of Kansas City, 381 Ill. 106, 110 (1942).
       That is not the case here. To the contrary, there is no dispute that the circuit court’s
       order leaves no cause pending or undecided, nor does the order merely strike the
       State’s motion but grant leave to amend, nor does the order dismiss less than all the
       parties or issues. Rather, the order granted defendant’s motion to vacate his
       conviction and denied the motion to reinstate the nol-prossed charges on the merits.
       Once the circuit judge resolved all the pending issues in its written order, the matter
       terminated—on the merits—between the parties, thereby allowing the State to seek
       review, as of right, of the circuit court’s ruling.

¶ 13       Because this court has determined that the appellate court had jurisdiction
       under article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. IV,
       § 6), this court does not need to determine whether Rule 304(b)(3) likewise confers
       appellate jurisdiction. Since the record and the briefs fully address the issue not
       reached by the appellate court, in the interest of judicial economy, we have elected
       to proceed to the merits of this appeal. See Krasnow v. Bender, 78 Ill. 2d 42, 47
       (1979) (finding it appropriate to consider the merits of an issue not addressed by the
       appellate court because the parties fully briefed the issue). That issue is whether,
       following a successful collateral attack on a conviction, the State is entitled to
       reinstatement of the charges that were nol-prossed as part of the plea agreement
       entered into with defendant.

¶ 14       In this case, defendant attacked his conviction under the plea agreement
       because the offense to which he pled guilty was declared unconstitutional and void
       ab initio by this court in Aguilar. In light of Aguilar’s holding, defendant correctly
       notes that he essentially pled guilty to something that was never a crime. See
       People v. Mosley, 2015 IL 115872, ¶ 55 (holding that subsection (a)(3)(A) of the
       AUUW statute was void from its beginning). To receive relief from his void
       conviction, defendant properly understood that the only way to vacate a conviction
       after a judgment has been entered on a guilty plea is to hold that the plea was
       defective and that his conviction should be vacated through the filing of a section
       2-1401 petition. People v. McFadden, 2016 IL 117424, ¶¶ 20, 31-32. When a
       circuit court vacates and sets aside a judgment, as it has done here, the prior




                                                -6-
       judgment is eliminated, and the case thereby returns to its status before the
       judgment was made. People v. Evans, 174 Ill. 2d 320, 332 (1996). In many
       circumstances, this will leave a case in a procedural posture such that it requires
       further proceedings. For the reasons stated below, however, the facts of this case
       prevent reinstatement of the nol-prossed charges.

¶ 15       This court has held that absent “any applicable constitutional or statutory
       limitations which a defendant may raise,” the State may request the court to
       reinstate once nol-prossed charges. Hughes, 2012 IL 112817, ¶ 25. Here, defendant
       repeats his circuit court argument that even if the plea agreement is no longer
       enforceable, the criminal statute of limitations (720 ILCS 5/3-5 (West 2012))
       constitutes an absolute bar against reinstating the nol-prossed charges since the
       State’s motion was filed beyond the three-year statute of limitations period.

¶ 16        Although the criminal statute of limitations is subject to tolling (see People v.
       Coleman, 206 Ill. 2d 261, 290 (2002) (fraudulent concealment may toll the statute
       of limitations if certain elements are met)), the State cites no authority, and we find
       none, for the proposition that the Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et
       seq. (West 2012)) permits the tolling of the statute of limitations, when, as here, a
       defendant successfully has his conviction vacated after the period of limitations has
       expired on the original charges that were dismissed in accordance with a plea
       agreement. The State argues, however, that under the corresponding section of the
       Code that sets forth periods excluded from the statute of limitations (720 ILCS
       5/3-7 (West 2012)), the “prosecution” against defendant was still pending and has
       yet to expire for the purpose of the limitations period because defendant’s case
       never had a final disposition on appeal. Under the State’s theory, fairness demands
       that the statute of limitations be tolled in perpetuity when charges are dismissed
       pursuant to a plea agreement. The State’s argument is based on this court’s
       application of contract principles when considering the enforceability of plea
       agreements. See People v. Donelson, 2013 IL 113603, ¶ 18 (recognizing an
       analogy between the principles of contract law and the interpretation of plea
       agreements); In re Derrico G., 2014 IL 114463, ¶ 99 (“[T]he enforceability of plea
       agreements is not a one-sided affair as the other half of the contractual equation is
       the benefit of the bargain accruing to the State.” (Internal quotation marks
       omitted.)); People v. Whitfield, 217 Ill. 2d 177, 190 (2005) (where a defendant
       enters a negotiated plea of guilty in exchange for specified benefits, “both the State




                                                -7-
       and the defendant must be bound by the terms of the agreement” (emphasis in
       original)). Indeed, defendant’s successful section 2-1401 petition has upset what
       the State reasonably understood to be a final disposition of a criminal matter,
       eliminating any reason to suspect that it still had to protect the societal interest in
       prosecuting defendant. However, we are not persuaded by the State’s tolling
       argument.

¶ 17       The criminal statute of limitations serves two primary purposes: to avoid the
       use of stale evidence and to provide an incentive for swift governmental action in
       criminal cases. United States v. Ewell, 383 U.S. 116, 122 (1966); People v. Strait,
       72 Ill. 2d 503, 506 (1978). Limitations are “designed to protect individuals from
       having to defend themselves against charges when the basic facts may have
       become obscured by the passage of time and to minimize the danger of official
       punishment because of acts in the far-distant past.” Toussie v. United States, 397
       U.S. 112, 114-15 (1970). Such statutes “represent legislative assessments of
       relative interests of the State and the defendant in administering and receiving
       justice.” United States v. Marion, 404 U.S. 307, 322 (1971). Since protection of the
       defendant is a primary purpose of the statute of limitations in criminal cases, the
       statute must be liberally construed to protect the interests of the defendant. People
       v. Ross, 325 Ill. 417, 421 (1927). Absent express language in the statute providing
       an exception, we will not depart from the plain language and read into the statute
       exceptions, limitations, or conditions that the legislature did not express. Evanston
       Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 15. As stated, there is no
       provision in the Code that permits the tolling of the statute of limitations in the
       circumstances before this court. While the statute of limitations may benefit some
       wrongdoers (Ross, 325 Ill. at 421-22), we decline to create a prophylactic rule or
       read into the statute of limitations a nonexistent exception in order to benefit the
       State. To do so would be precisely contrary to the central purpose of the statute of
       limitations and inconsistent with this court’s general principles of statutory
       interpretation.

¶ 18       The State, in effect, argues that denying reinstatement of the nol-prossed
       charges after the statute of limitations has expired could have a chilling effect on
       the plea bargaining process, in that the State may be fearful of nol-prossing charges
       in light of the possibility that the conviction under a statute later declared
       unconstitutional may be vacated. Notwithstanding that concern, we recognize that




                                                -8-
       prosecutors in other jurisdictions have contracted with defendants to avoid the
       statute of limitations defense. See United States v. Levine, 658 F.2d 113, 120-21
       (3d Cir. 1981) (citing cases for the proposition that a defendant can knowingly and
       intelligently waive the statute of limitations, thus sanctioning a later indictment
       that, absent such a waiver, would be untimely); United States v. Meeker, 701 F.2d
       685, 688 (7th Cir. 1983) (“The purposes of a time bar are not offended by a
       knowing and voluntary waiver of the defense by the defendant.”); see also United
       States v. Podde, 105 F.3d 813, 821 (2d Cir. 1997). Without expressing a view on
       whether such waivers would be valid, we note that the State does not advance a
       waiver claim before this court. Accordingly, we find that the statute of limitations
       serves as an absolute bar to the State’s motion to reinstate the charges it
       nol-prossed.


¶ 19                                      CONCLUSION

¶ 20       For the reasons given, we reverse the judgment of the appellate court and affirm
       the judgment of the circuit court, albeit for different reasons.


¶ 21      Appellate court judgment reversed.

¶ 22      Circuit court judgment affirmed.


¶ 23      JUSTICE THEIS, dissenting:

¶ 24      I disagree with the majority’s holding that the statute of limitations serves as an
       absolute bar to the State’s motion to reinstate the charges it nol-prossed as part of a
       negotiated plea agreement. Today’s holding allows defendants to circumvent
       negotiated plea agreements without any consequences to their voluntary choices
       and without ensuring the protection of the public. The result reached is not
       compelled by law and is contrary to the contract principles that guide our analysis.
       For these reasons, I respectfully dissent.


¶ 25                                     BACKGROUND




                                                -9-
¶ 26       On April 8, 2009, defendant was charged with eight counts of aggravated
       unlawful use of a weapon (AUUW) and one count of unlawful possession of a
       firearm. Specifically, he was charged with: knowingly carrying a firearm on his
       person or alternatively possessing the firearm on a public street, when the firearm
       was uncased, loaded, and immediately accessible (counts I and V) (720 ILCS
       5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2008)); knowingly carrying a
       firearm on his person or alternatively possessing the firearm on a public street,
       without having been issued a currently valid Firearm Owners Identification Card
       (FOID) (counts II and VI) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C)
       (West 2008)); knowingly carrying a firearm on his person or alternatively
       possessing the firearm on a public street and being a member of a street gang or
       engaged in street gang related activity (counts III and VII) (720 ILCS
       5/24-1.6(a)(1), (a)(3)(F); (a)(2), (a)(3)(F) (West 2008)); knowingly carrying a
       handgun on his person or alternatively possessing a handgun on a public street and
       being under 21 years of age (counts IV and VIII) (720 ILCS 5/24-1.6(a)(1),
       (a)(3)(I); (a)(2), (a)(3)(I) (West 2008)); and being under 18 years of age and having
       in his possession a firearm of a size which may be concealed upon the person (count
       IX) (720 ILCS 5/24-3.1(a)(1) (West 2008)). As the majority notes, at the time of his
       arrest, defendant was 17 years old.

¶ 27       In June 2009, pursuant to a fully negotiated plea agreement, defendant was
       convicted on count I of the information for AUUW (720 ILCS 5/24-1.6(a)(1),
       (a)(3)(A) (West 2008)), a Class 4 felony. In exchange for his plea, the State agreed
       to enter a nolle prosequi on the remaining eight counts, and defendant was placed
       on probation for a period of two years. At that time, defendant was admonished of
       his appeal rights pursuant to Illinois Supreme Court Rule 605 (eff. Oct. 1, 2001).
       The court explained that defendant had the right to challenge his conviction and
       sentence on appeal but that in order to do so he would need to timely file a motion
       to withdraw his plea. He was admonished that if the motion to withdraw was
       allowed, the case would be set for trial and the State could reinstate the other counts
       that were dismissed.

¶ 28       In October 2013, after having completed his probation, defendant filed a
       petition for relief from judgment under section 2-1401, seeking to vacate his
       conviction and withdraw his guilty plea on the basis that the statute under which he
       was convicted was facially unconstitutional and void under this court’s decision in




                                               - 10 -
       People v. Aguilar, 2013 IL 112116. In response to the petition, the State conceded
       that defendant had the constitutional right to have his conviction vacated but moved
       to reinstate the other eight felony charges that had been previously nol-prossed as
       part of the negotiated plea agreement. In support, it relied in part on People v.
       McCutcheon, 68 Ill. 2d 101 (1977), where this court held that “[f]airness for the
       interests of the People demands that the State not be bound by a plea agreement,
       once a condition of that agreement (the guilty plea) is no longer valid.” Id. at 107.

¶ 29       At the hearing, in addressing whether the State could reinstate the nol-prossed
       charges, defendant argued, without articulating any basis or citing any authority,
       that the nol-prossed charges should be time-barred and were also unconstitutional
       under the second amendment. Without considering either of these arguments, the
       circuit court instead found that allowing the State to reinstate the nol-prossed
       charges would violate the one-act, one-crime doctrine. The appellate court
       dismissed the appeal, finding that it lacked appellate jurisdiction. Thus, at no point
       in the lower court proceedings has the issue of whether the statute of limitations
       bars the State’s reinstatement of the nol-prossed charges ever been considered.


¶ 30                                       ANALYSIS

¶ 31       In considering the issue for the first time in this court, the majority holds that
       the statute of limitations prevents the State from prosecuting the charges it
       dismissed as part of a negotiated plea agreement. In support of its holding, it relies
       on the fact that the State cited no authority, and the court found none, that would
       permit the tolling of the statute of limitations under these facts. Supra ¶ 16.

¶ 32       I disagree with the analytical approach taken by the majority because it entirely
       fails to consider the effect of defendant’s actions on the continued viability of the
       plea agreement. By skipping over an important step in the analysis, the majority
       arrives at an erroneous conclusion. The issue in this case is whether, after a
       defendant exercises his right to vacate his bargained-for conviction because the
       offense to which he pleaded was void from its inception, the State may then
       reinstate charges that were dismissed pursuant to that negotiated plea agreement.
       More specifically, we must determine whether the State’s obligation to dismiss
       certain charges under the negotiated plea agreement was discharged when
       defendant prevailed in vacating his conviction.



                                               - 11 -
¶ 33       The State argues that, under these circumstances, requiring it to keep its part of
       the bargain flies in the face of principles of contract law where defendant’s actions
       essentially frustrated the purpose of the agreement, leading to an “unexpected
       windfall to defendant.” Accordingly, it maintains that once defendant’s conviction
       was vacated and he no longer had a felony conviction on his record, the State was
       no longer bound to the plea agreement and was entitled to reinstate the other eight
       constitutionally valid charges it had originally brought.

¶ 34       Although this court has not had prior occasion to answer the question squarely
       presented in this appeal, we have consistently recognized that when interpreting
       negotiated plea agreements, we apply contract analysis. People v. Donelson, 2013
       IL 113603; In re Derrico G., 2014 IL 114463. This court has discussed the fact that
       when a defendant enters a negotiated plea in exchange for specific benefits, both
       the State and the defendant must be bound by the terms of the agreement. People v.
       Evans, 174 Ill. 2d 320, 327 (1996). Neither side should be able to unilaterally
       renege or seek modification “ ‘simply because of uninduced mistake or change of
       mind.’ ” Id. (quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)).
       Thus, we have held that it would be inconsistent with constitutional concerns of
       fundamental fairness to allow a defendant to hold the State to its part of the bargain
       while unilaterally modifying a part of the agreement. Id. We have further
       recognized that “the State is much less likely to enter into plea negotiations if it
       realizes its decision to dismiss [charges under a plea agreement] is irrevocable
       while the defendant’s decision to plead is revocable.” McCutcheon, 68 Ill. 2d at
       107.

¶ 35       We have not considered, however, what, if any, remedy applies under contract
       principles when, through no fault of either party, an unforeseeable intervening
       event destroys the basis of the contract and creates a situation where performance
       by one party no longer gives the other party what induced it to enter into the
       contract. Under a similar scenario, the Tenth Circuit in United States v. Bunner, 134
       F.3d 1000 (10th Cir. 1998), applied the frustration of purpose doctrine.

¶ 36      The frustration of purpose doctrine provides as follows:

              “Where, after a contract is made, a party’s principal purpose is substantially
          frustrated without his fault by the occurrence of an event the non-occurrence of
          which was a basic assumption on which the contract was made, his remaining



                                               - 12 -
          duties to render performance are discharged, unless the language or the
          circumstances indicate the contrary.” Restatement (Second) of Contracts § 265
          (1981).

       The doctrine requires that the frustrated purpose “be so completely the basis of the
       contract that, as both parties understand, without it the transaction would make
       little sense.” Restatement (Second) of Contracts § 265 cmt. a (1981). Additionally,
       the frustration “must be so severe that it is not fairly to be regarded as within the
       risks that [the party seeking rescission] assumed under the contract.” Id. Lastly,
       “the non-occurrence of the frustrating event must have been a basic assumption on
       which the contract was made.” Id.

¶ 37       Applying these principles here, a basic assumption underlying the plea
       agreement was that defendant would have a constitutionally valid felony conviction
       on his record to protect the public. Otherwise, the transaction would make no sense.
       Secondly, an intervening change in the law several years later, which rendered the
       conviction void, completely undermined the basis for the plea agreement and was a
       risk neither party could have foreseen. Any benefit the parties thought they were
       getting was illusory because the bargain was illegal. Indeed, the circuit court could
       not have entered judgment on the plea because it was an unenforceable plea
       agreement. Although defendant did not technically violate any explicit term of the
       plea agreement, by choosing to vacate his conviction, he in essence unilaterally
       modified the agreement and destroyed the basis of the State’s bargain.

¶ 38       As the Bunner court explained, once the underlying purpose of the agreement
       was frustrated and the basis of the State’s bargain destroyed, the State’s remedy
       was to either (1) “perform according to the letter of the plea agreement” or
       (2) “seek discharge of its duties” and return the parties to the positions they
       occupied before defendant entered his negotiated guilty plea. Bunner, 134 F.3d at
       1005. In this case, the State is seeking the latter remedy. Accordingly, I would hold
       that under the frustration of purpose doctrine, when defendant chose to vacate his
       conviction, the State was then discharged of its obligation under the plea agreement
       to dismiss the other eight charges, restoring the parties to the positions they held
       prior to the entry of the plea and prior to the dismissal of the nol-prossed charges.

¶ 39       Under this construct, upon restoration of the status quo ante, the statute of
       limitations does not bar the State from prosecuting the charges that had been



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       nol-prossed under the plea agreement. The majority’s reliance on Hughes, 2012 IL
       112817, to conclude otherwise is misplaced. Supra ¶ 9. In Hughes, the defendant
       was charged with numerous sexual offenses. Prior to trial, the circuit court granted
       the State leave to enter a nolle prosequi on several counts of the indictment. The
       State’s decision to nolle those counts was not part of a plea bargain. Based on the
       remaining pending charges, the State instituted civil commitment proceedings, and
       after a trial, defendant was declared a sexually dangerous person. Upon a reversal
       on appeal, the State sought to proceed again with the criminal prosecution and
       entered into a plea agreement with defendant on one of the charges that the State
       had nol-prossed. Hughes, 2012 IL 112817, ¶¶ 5-7. We explained that when the
       State nol-prosses a charge, it leaves the matter “in the same condition as before the
       prosecution commenced” and, therefore, does not toll the statute of limitations. Id.
       ¶ 23. Thus, generally, based on Hughes, the State cannot refile or reinstate a
       nol-prossed charge after the statute of limitations has run where the defendant has
       asserted a challenge on that basis.

¶ 40       Nevertheless, as distinct from the State’s unilateral nolle in Hughes, in this
       case, the State’s obligation to nolle was a condition of a negotiated plea agreement,
       which was discharged. See McCutcheon, 68 Ill. 2d at 112 (recognizing the
       distinction between a dismissal that was conditioned on a plea agreement and a
       dismissal that is unconditional). When the State unilaterally dismisses a charge, it
       leaves the matter in the same position as before the prosecution commenced, where
       the statute of limitations was running. Here, when the State’s obligation to dismiss
       under the plea agreement is discharged, the parties are restored to the position they
       held after the charges were filed but prior to the entry of the plea agreement. At that
       point in time, the statute of limitations had not expired. Consequently, defendant
       cannot now claim that the statute of limitations has run.

¶ 41       Restoring the parties to the same position they held after the charges were filed
       and before the plea agreement was entered does not frustrate the purpose of the
       limitations period under these circumstances. To hold otherwise would allow
       defendant to escape the consequences of a felony conviction and circumvent the
       underlying purpose of the bargain without allowing the State to rescind its part of
       the bargain. Rather, when defendant successfully challenged his conviction, the
       bargain became defective. The parties should be treated no differently than had
       defendant been allowed to withdraw his plea. In that case, we would have held




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       defendant was on notice that if the plea was withdrawn or challenged on appeal, the
       State was entitled to reinstate the charges. See Ill. S. Ct. R. 605 (eff. Oct. 1, 2001).
       Here, merely because defendant had the right to challenge his bargained-for
       conviction by a collateral attack, he should not receive more than the “benefit of his
       bargain,” and the State should not be prevented from receiving all that it bargained
       for.

¶ 42       I would further reject defendant’s assumption that restoring him to the status
       quo ante is impossible because he has served his two-year probation under the
       agreement. Defendant’s argument is premature and unwarranted where he would
       be entitled to full credit for time served on his vacated conviction. Additionally,
       defendant’s claim of prosecutorial vindictiveness lacks merit. This is not a case
       where the State is seeking to add charges or file more serious charges after a
       defendant has successfully challenged his conviction. “There is no appearance of
       retaliation when a defendant is placed in the same position as he was in before he
       accepted the plea bargain.” United States v. Anderson, 514 F.2d 583, 588 (7th Cir.
       1975).


¶ 43                                      CONCLUSION

¶ 44       I would hold that under contract principles the State was entitled to reinstate the
       eight charges that had been nol-prossed under the negotiated plea agreement after
       defendant prevailed on his petition to vacate his conviction. Accordingly, I
       respectfully dissent.




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