                                    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-Appellant,                                 )               Cook County.
                                                            )
v.                                                          )               No. 09 CR 6762
                                                            )
CORNELIUS SHINAUL,                                          )               Honorable
                                                            )               Thomas M. Davy,
       Defendant-Appellee.                                  )               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.


                                           OPINION
¶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 remaining 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, defendant brought a petition for relief under

section 2-1401 of the Code of Civil Procedure (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, the State did not challenge the petition, but, instead, moved to reinstate counts II, IV,

VI, and VIII of the 2009 information. Following a hearing, the trial court entered an order
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vacating defendant's conviction and allowing him to withdraw his plea, but denying the State's

motion for reinstatement. The State appealed. We dismiss the appeal for lack of jurisdiction.

¶2                                      BACKGROUND

¶3        Defendant was 16 years old in February 2009, when he was arrested for various 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 the State agreed to enter a nolle prosequi on the remaining

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. Const.



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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, the 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 reinstatement 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, the 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, the trial

court explained that "no matter how many different theories the State may have 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 in 2009 would violate the one-act,

one-crime rule. The State filed a motion to reconsider. Citing 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.
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and People v. McCutcheon, 68 Ill. 2d 101 (1977), the State argued that the previously nol-

prossed charges against defendant should be reinstated because: (1) the charges were dismissed

before jeopardy attached; and (2) there was no constitutional or statutory limitations precluding

the prosecution of defendant on those 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 jurisdiction 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 complaint; 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)



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because the denial does not result in a dismissal of the charges. Second, he argues 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 that 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 "there [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 Ill. 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)).



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¶ 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 trial 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 prosequi

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 recognizance to appear at

               any other time." ' [Citation.] A nolle prosequi is not an acquittal of



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               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.]" (Emphases added.)

               People v. Hughes, 2012 IL 112817, ¶ 23.

¶ 14   We find that the trial court entered no order or judgment on either December 16, 2013 or

January 17, 2014 that had the substantive effect of dismissing any charges 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 these 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 jurisdiction 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 Illinois



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Supreme Court Rule 605(b) (eff. Oct. 1, 2001) and Rule 606(b) (eff. Mar. 20, 2009). To avoid

any confusion or misunderstanding, 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" (see supra ¶

7) is surplusage and of no force or effect, because under the clear terms of Illinois Supreme

Court 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.




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