                                                                         Digitally signed by
                                                                         Reporter of Decisions
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                                                                         document
                               Appellate Court                           Date: 2017.09.27
                                                                         12:22:52 -05'00'




                   People v. Simon, 2017 IL App (1st) 152173



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ALSTORY SIMON, Defendant-Appellant.



District & No.    First District, First Division
                  Docket No. 1-15-2173



Filed             May 22, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 99-CR-7699; the
Review            Hon. Thomas Byrne, Judge, presiding.



Judgment          Vacated and remanded.


Counsel on        Andrew M. Hale and Amy A. Hijjawi, of Hale Law LLC, of Chicago,
Appeal            Terry A. Ekl and Tracy L. Stankler, of Ekl, Williams & Provenzale,
                  LLC, of Lisle, and James. G. Sotos, of Sotos Law Firm, PC, of Itasca,
                  for appellant.

                  No brief filed for appellee.



Panel             JUSTICE SIMON delivered the judgment of the court, with opinion.
                  Presiding Justice Connors and Justice Harris concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Alstory Simon (petitioner) appeals from a circuit court order denying his petition for a
     certificate of innocence. Petitioner argues that the circuit court erred when holding that he
     voluntarily caused his own conviction and when denying his petition based on the lack of
     State’s misconduct. For the following reasons, we vacate the order and remand the case for
     further proceedings.

¶2                                           BACKGROUND
¶3       The petition alleged the following facts. On September 7, 1999, petitioner pleaded guilty to
     the murder of Marilyn Green and the voluntary manslaughter of Jerry Hillard and was
     sentenced to concurrent terms of 37 years and 15 years, respectively. On October 14, 2014,
     petitioner’s convictions and sentences were vacated. On January 28, 2015, petitioner filed his
     verified petition for a certificate of innocence pursuant to section 2-702 of the Illinois Code of
     Civil Procedure (735 ILCS 5/2-702 (West 2012)).
¶4       Anthony Porter was previously found guilty in the murders of Marilyn Green and Jerry
     Hillard in September 1982 and sentenced to death. In late 1988, with the execution of Porter
     approaching, Northwestern Medill journalist professor David Protess, private investigator Paul
     Ciolino, and several Medill journalism students began to investigate Porter’s case in an attempt
     to free him from death row. To claim Porter’s innocence, Protess and Ciolino needed an
     alternate suspect. Although petitioner’s name was never mentioned in the police investigation,
     over the course of several weeks, Protess and Ciolino fabricated four pieces of evidence in an
     attempt to dismantle the case against Porter and frame petitioner.
¶5       In December 1998, Protess had Ciolino obtain an affidavit from eyewitness William
     Taylor. Taylor witnessed the murders of Green and Hillard in the bleachers of the pool in
     Washington Park and testified at Porter’s trial that he saw Porter shoot Hillard and Green.
     Ciolino approached Taylor and convinced him to sign an affidavit, recanting his trial testimony
     and indicating that Taylor never saw Porter the night of the crimes. The affidavit omitted the
     portion of Taylor’s statement that he did see Porter run past him that night as Porter fled the
     scene of the crime and that there was no doubt in Taylor’s mind that Porter committed the
     murders.
¶6       Next, after receiving his name from Porter, Protess made inmate Walter Jackson a number
     of promises to induce Walter to sign an affidavit claiming that petitioner had told him, 17 years
     earlier, that he shot Hillard and Green. Walter called petitioner’s estranged wife, Inez Jackson,
     to convince her to help Protess free Porter from prison and to frame petitioner.
¶7       On January 29, 1999, Protess, Ciolino, and two Medill students visited Inez Jackson in
     Milwaukee, Wisconsin, and obtained her affidavit that implicated petitioner in the 1982
     murders. In her statement, Inez falsely indicated that she was with petitioner when he shot
     Hillard and Green.
¶8       Petitioner alleged that Ciolino and one of his partners duped petitioner into filming a
     confession. Initially, in December 1998, Protess sent two of his female students to petitioner’s
     house to interview him. After the students left the house, Protess confronted petitioner and
     accused him of the murders. Then, Protess sent Ciolino to force a confession from petitioner.
     On February 3, 1999, Ciolino impersonated a police officer and entered petitioner’s home


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       while armed with a handgun and detained him there. Petitioner was under the influence of
       narcotics at the time. Ciolino used a variety of tactics to obtain a false confession from
       petitioner, including threats, fabricated evidence, false statements, promises, and money.
¶9         Ciolino showed petitioner a videotape of a man, who falsely claimed that he saw petitioner
       commit the murders. He threatened petitioner and mentioned that he would hate to see
       petitioner have an accident in his home. He showed petitioner the broadcast of Walter
       Jackson’s and Inez’s statements claiming that petitioner committed the murders. Ciolino told
       petitioner that he was facing the death penalty, that police were on their way to petitioner’s
       home to arrest him, and that he could only avoid the death penalty by providing a statement
       that he shot the victim in self-defense. Ciolino also told petitioner that he had to act quickly
       because Ciolino could no longer help him once the police arrived.
¶ 10       Ciolino promised petitioner that he would receive free legal representation, that Protess
       would ensure he received a short sentence, and that he would obtain large sums of money from
       books and movie deals. Petitioner rehearsed a statement with Ciolino and then provided a
       videotaped statement claiming responsibility for the 1982 murders. Protess immediately
       provided petitioner’s confession videotape to CBS-TV, who played the confession on local
       television. The next day, Porter was released from custody and petitioner was arrested.
¶ 11       Ciolino arranged for his friend, attorney Jack Rimland, to represent petitioner free of
       charge. Petitioner alleged that Rimland never truly represented petitioner’s interests. Instead,
       Rimland ensured that petitioner’s false confession, the witnesses’ statements, and all of the
       inculpatory evidence against Porter would not be scrutinized. Before petitioner’s arrest,
       Rimland stated publicly that “obviously if [petitioner] is charged, he’s looking at the death
       penalty.” Rimland represented petitioner through the proceedings in the circuit court.
¶ 12       The State brought four witnesses before the grand jury who testified they saw Porter with
       the victims at the scene of the crime. One of the witnesses specifically testified that it was
       Porter who shot the victims. The grand jury also heard testimony from Protess, Ciolino, and a
       number of Northwestern students who were involved in the investigation. The grand jury
       returned a true bill and indicted petitioner for the murder charges stemming from the 1982
       murders.
¶ 13       Subsequently, on September 7, 1999, petitioner pleaded guilty to the murder of Green and
       the voluntary manslaughter of Hillard. Petitioner alleged that Rimland, acting in concert with
       Protess and Ciolino, coerced him into pleading guilty to the murders by lying about the
       evidence in the case, by concealing the overwhelming eyewitness grand jury testimony
       implicating Porter, and by threatening petitioner with the death penalty if he did not plead
       guilty. The trial court sentenced petitioner to concurrent terms of 37 years for the murder and
       15 years for the voluntary manslaughter.
¶ 14       In 2001, petitioner filed a pro se postconviction petition claiming he was innocent and that
       he had been coerced into confessing to the murders. The circuit court denied the petition.
       However, in the following years the evidence construed to frame petitioner for the murders
       proved to be unreliable. In January 2006, Walter Jackson admitted that petitioner never told
       him that he committed the murders. Walter Jackson explained that he provided a false
       statement because Porter saved him from being “shanked” in prison and because Protess
       promised him money and that he would help him get out of prison. In November 2005, Inez
       Jackson also admitted that her statement implicating petitioner was false and that she agreed to
       give a false statement because Protess promised her money from movie and book deals and

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       help to get her nephew and son released from prison. In addition, Ciolino publicly bragged
       about coercing petitioner to confess and stated that “we bull-rushed him, and mentally he
       couldn’t recover.”
¶ 15       In October 2013, the Cook County State’s Attorney’s office launched an investigation into
       petitioner’s conviction in the light of the evidence that Protess interfered with the criminal
       justice process and severely impacted the integrity of the conviction. On October 30, 2014, the
       State’s Attorney’s office requested that the circuit court vacate the murder and voluntary
       manslaughter charges against petitioner. The circuit court vacated petitioner’s conviction and
       he was released from custody. In a press release, State’s Attorney Anita Alvarez criticized
       Protess and Ciolino for their “alarming tactics that were not only coercive but absolutely
       unacceptable by law enforcement standards.”
¶ 16       On January 28, 2015, petitioner filed the instant petition for a certificate of innocence. The
       State intervened in the proceedings but did not file a response and indicated it had no position
       on the petition. Following a hearing, on June 18, 2015, the court issued a written ruling. The
       court denied the petition holding that petitioner’s willful participation in the plan to free Porter
       precluded him from obtaining relief. The court also held that petitioner was not entitled to
       relief when his claims failed to include any allegations of misconduct on behalf of the State.
       This appeal follows.

¶ 17                                              ANALYSIS
¶ 18       To obtain a certificate of innocence under section 2-702 of the Code of Civil Procedure
       (Act), a petitioner must prove by a preponderance of the evidence that:
                    “(1) [he] 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 [he] was found not guilty at
                the new trial or [he] was not retried and the indictment or information dismissed; ***
                    (3) [he] is innocent of the offenses charged in the indictment or information ***;
                and
                    (4) [he] did not by his *** own conduct voluntarily cause or bring about his ***
                conviction.” 735 ILCS 5/2-702(g) (West 2012).
¶ 19       The petitioner must attach documentation to the petition that demonstrates (1) that he has
       been convicted of a felony by the State of Illinois, was sentenced to prison, and served all or
       any part of the sentence; (2)(a) that the conviction was reversed or vacated and the charging
       instrument was dismissed or, if a new trial was ordered, that he either was found not guilty on
       retrial or was not retried and the charging instrument was dismissed or (2)(b) that the statute
       underlying the charging instrument or its application was unconstitutional; and (3) that the
       claim is not time-barred under section 2-702(i) (735 ILCS 5/2-702(i) (West 2012)). 735 ILCS
       5/2-702(c) (West 2012). The petition must also allege facts in sufficient detail to allow the
       court to find that the petitioner is likely to succeed at trial in proving that he is innocent or that
       his acts and omissions did not constitute a felony or a misdemeanor against the State of Illinois.
       735 ILCS 5/2-702(c) (West 2012). The defendant must also verify the petition. 735 ILCS
       5/2-702(d) (West 2012).


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¶ 20        Whether or not a petitioner is entitled to a certificate of innocence is generally committed
       to the sound discretion of the court. People v. Dumas, 2013 IL App (2d) 120561, ¶ 17 (citing
       Rudy v. People, 2013 IL App (1st) 113449, ¶ 11). However, “[t]he interpretation of a statute is
       a question of law that is reviewed de novo.” People v. Fields, 2011 IL App (1st) 100169, ¶ 18.
¶ 21        In the instant case, although the State intervened in the proceedings, it elected not to object
       to the proceedings, did not introduce any evidence to refute the facts in the petition, and did not
       oppose the petition. The court held that petitioner met the first three requirements under of the
       Act. Petitioner was convicted, served time in the Illinois Department of Correction, and the
       indictment against him was dismissed. The court held that petitioner met his burden of
       establishing his innocence by a preponderance of the evidence and it was more likely true than
       not that he was actually innocent in the murders of Hillard and Green. Notwithstanding its
       finding of actual innocence, the court denied the petition on the ground that petitioner did not
       establish that he did not voluntarily cause his conviction and because petitioner’s claim did not
       involve any allegations of misconduct on behalf of the State.
¶ 22        The court held that the circumstances surrounding petitioner’s guilty plea indicated that he
       was a willing participant in Protess’s corrupt scheme to free Porter, a convicted murderer, and
       to frame petitioner, an innocent man. The court relied on three pieces of evidence for its
       determination that petitioner willfully participated in Protess’s well developed plan to overturn
       Porter’s conviction: petitioner’s statements made in allocution at the conclusion of his guilty
       plea hearing, some excerpts from petitioner’s pro se petition for postconviction relief, and a
       newspaper article containing petitioner’s statements made to a news reporter. The court
       indicated that these documents were submitted by petitioner.
¶ 23        On appeal, petitioner argues that the trial court erred when it determined that he voluntarily
       caused or brought about his conviction. Petitioner claims that the court erroneously relied on
       inadmissible evidence, outside the evidentiary record, in an attempt to rebut the well-pleaded
       facts in his petition to find support for the conclusion that petitioner voluntarily caused his
       conviction. Petitioner maintains that, even assuming that the court properly relied on
       admissible evidence, he had no notice of the evidence used by the trial court and no
       opportunity to counter or argue that it was not probative of the issue that he voluntarily caused
       his own conviction. We agree.
¶ 24        We are mindful that the Act does not contain well-defined procedural instructions on how
       to proceed in a case where the State, although it intervenes, does not object to the proceedings
       and does not present any evidence to rebut a petitioner’s claim for a certificate of innocence.
       The Act indicates that the proceedings are adversarial in nature, and just as in any adversarial
       proceedings, the petitioner has the right to fully present his case. Nowak v. St. Rita High
       School, 197 Ill. 2d 381, 391 (2001). The Act states that the court has wide discretion regarding
       the “weight and admissibility of the evidence submitted.” (Emphasis added.) 735 ILCS
       5/2-702(a) (West 2012).
¶ 25        Petitioner attached eight exhibits consisting mostly of excerpts from trial or grand jury
       testimony, and none contained the three pieces of evidence upon which the trial court relied
       when concluding that petitioner voluntarily caused his conviction. The evidence used by the
       trial court to determine that petitioner caused his conviction was not “submitted” by petitioner
       or by the State. Unlike a typical innocence proceeding, where the State submits a response to
       the petition and the court conducts a hearing and makes credibility and factual findings
       regarding the evidence after that hearing, here, the State did not present any evidence or

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       testimony to rebut petitioner’s claim. Had the State done so, petitioner could have countered
       the evidence, objected to it being admitted, and cross-examined the State’s potential witnesses.
¶ 26       Here, similarly, petitioner should not be deprived of his right to respond to the evidence
       used as the basis for finding that he caused his own conviction. The court, on its own, pointed
       to certain evidence and used it to deny petitioner’s request without giving him a meaningful
       opportunity to object to it. Just as in any other adversarial proceedings, petitioner must have
       opportunity to object to the admissibility and the probative value of the evidence used to deny
       his claim. See People v. Hawkins, 181 Ill. 2d 41, 50 (1998). A contrary position would place
       the State at a strategic advantage by simply not taking any position in the proceedings and lead
       to unfair surprise for the petitioner. Therefore, given the unique posture of the case, we remand
       the matter to the trial court for an evidentiary hearing where petitioner would be able to object
       to the admissibility, the probative value of the evidence, and for an opportunity to present
       evidence in support of his claim that he did not voluntarily cause his own conviction.
¶ 27       Notably, we are not making any determination regarding the merits of petitioner’s petition,
       and our ruling does not mean that, after conducting the hearing, the court cannot deny the
       certificate of innocence for the reason that petitioner failed to establish that he caused his own
       conviction based on admissible, probative evidence. People v. Dumas, 2013 IL App (2d)
       120561, ¶ 17 (“[w]hether or not a petitioner is entitled to a certificate of innocence is generally
       committed to the sound discretion of the court”).
¶ 28       Finally, we disagree with the trial court’s determination that petitioner cannot obtain relief
       in the court of claims because the State was not involved in the wrongdoing that generated
       petitioner’s wrongful incarceration. The court held that, although not in the statute, a common
       sense interpretation of the Act requires the State’s wrongdoing in order for petitioner to be able
       to obtain monetary damages in the court of claims. But, whether the State engaged in any
       misconduct that resulted in a petitioner’s wrongful conviction has no bearing on petitioner’s
       request for a certificate of innocence. The Act specifically identifies the four elements that a
       petitioner must prove by a preponderance of the evidence in order to obtain a certificate of
       innocence, and none of those require a petitioner to prove that he or she was convicted as a
       result of misconduct committed by the State. 735 ILCS 5/2-702(g) (West 2012).
¶ 29       Moreover, the court’s narrow interpretation of the Act in the absence of any such language
       denies remedy to numerous meritorious wrongful convictions claims that do not arise from any
       misconduct on the part of the government. See, e.g., Cynthia E. Jones, The Right Remedy for
       the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence, 77 Fordham L.
       Rev. 2893, 2928 (2009) (citing eyewitness identifications and testimony of jailhouse
       informants as two of the leading causes of wrongful conviction).
¶ 30       Furthermore, the only matter before the circuit court was whether to grant or deny the
       petition for a certificate of innocence. Whether the court of claims has jurisdiction over a case
       brought in the court of claims for monetary relief is for the court of claims, not the circuit court
       to decide. Therefore, the court erroneously held that petitioner cannot obtain his certificate of
       innocence because he did not establish that the State caused his wrongful incarceration.
¶ 31       Under the Act the only issue for the circuit court’s consideration was whether or not
       petitioner proved the four elements articulated in subsection (g) by a preponderance of the
       evidence. 735 ILCS 5/2-702(g) (West 2012). The court determined that petitioner met the first
       three elements. We are remanding the case for a hearing where petitioner has an opportunity to


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       prove that he did not voluntarily cause his own conviction.

¶ 32                                       CONCLUSION
¶ 33      Based on the foregoing, we vacate the trial court’s order denying petitioner’s certificate of
       innocence and remand the case for further proceedings consistent with this opinion.

¶ 34      Vacated and remanded.




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