                                  Illinois Official Reports

                                          Appellate Court



                             People v. Dunmore, 2013 IL App (1st) 121170




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

District & No.               First District, Third Division
                             Docket No. 1-12-1170

Filed                        December 24, 2013


Held                         Where defendant initially was sentenced to probation on his guilty
(Note: This syllabus         plea to aggravated unlawful use of a weapon and fines and fees were
constitutes no part of the   assessed, but his probation was revoked and he was sentenced to two
opinion of the court but     years in prison, and while his appeal was pending, the Illinois
has been prepared by the     Supreme Court issued Aguilar, which held that the statute defendant
Reporter of Decisions        violated was unconstitutional, defendant’s original conviction, the
for the convenience of       order of probation, the subsequent revocation, and the fines and fees
the reader.)                 were all vacated, since courts have an independent duty to vacate void
                             orders such as those entered in defendant’s case.


Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-5825; the
Review                       Hon. Charles P. Burns, Judge, presiding.


Judgment                     Vacated.


Counsel on                   Michael J. Pelletier and Jean Park, both of State Appellate Defender’s
Appeal                       Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Mary P. Needham
                             and Mari Hatzenbuehler, Assistant State’s Attorneys, of counsel), for
                             the People.
     Panel                    PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                              with opinion.
                              Justices Pucinski and Mason concurred in the judgment and opinion.


                                              OPINION

¶1          Defendant pled guilty and was convicted of one count of aggravated unlawful use of a
       weapon, sentenced to 18 months’ probation, and assessed $680 in fees and fines. On a later
       finding that he violated the terms of his probation by possessing a controlled substance, the
       trial court revoked his probation and sentenced defendant to two years in prison, which he has
       now served. Defendant appealed only the revocation of his probation and the assessment of the
       fees and fines. But, while his appeal was pending, the Illinois Supreme Court issued People v.
       Aguilar, 2013 IL 112116, which held that the exact statute defendant pled guilty to violating
       was unconstitutional on its face. Nevertheless, defendant asks us to leave the void conviction
       and sentence of probation in place and limit our consideration solely to the subsequent
       revocation of his probation and the fees and fines. We conclude that we cannot ignore Aguilar,
       which put the parties in the same position as if no conviction had ever existed. Accordingly, we
       vacate defendant’s conviction, the order of probation, the subsequent probation revocation,
       and the assessed fees and fines.

¶2                                            Background
¶3         Defendant Edward Dunmore was charged by information with one count of unlawful use
       of a weapon and six counts of aggravated unlawful use of a weapon. On June 9, 2010,
       Dunmore entered a negotiated guilty plea in which he would plead guilty to one count of
       aggravated unlawful use of a weapon in exchange for 18 months’ probation. The State
       nol-prossed the remaining counts. The count to which Dunmore pled guilty stated that on or
       about February 6, 2010, Dunmore:
               “knowingly carried in a vehicle, a firearm, at a time when he was not on his own land or
               in his own abode or fixed place of business and the firearm possessed was uncased,
               loaded and immediately accessible at the time of the offense, in violation of Chapter
               720 Act 5 Section 24-1.6(A)(1)/(3)(A) of the Illinois Compiled Statutes 1992 as
               amended.”
¶4         The State presented the factual basis for the plea. If the matter had proceeded to trial,
       Officer Owsianiak would have testified that on February 6, 2010, he conducted a traffic stop of
       a vehicle driven by Dunmore at 8258 South Stewart Avenue, Chicago. During the course of the
       stop, the officer observed and recovered a .38-caliber revolver from the center console. The
       revolver was in plain view and loaded with four live rounds. The court accepted Dunmore’s
       plea of guilty to aggravated unlawful use of a weapon, sentenced Dunmore to 18 months’
       probation, and imposed $680 in fees and fines.


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¶5         On September 13, 2011, the State sought leave to file a petition to revoke Dunmore’s
       probation, alleging that Dunmore possessed cocaine on September 12, 2011. On February 29,
       2012, the court heard the State’s petition, which consisted of testimony that police had found
       cocaine in a shoebox in Dunmore’s bedroom. The court revoked Dunmore’s probation and
       sentenced Dunmore to two years in prison on the underlying offense of aggravated unlawful
       use of a weapon.
¶6         Dunmore then filed a timely notice of appeal and contested the revocation of his probation
       and three fees and fines.
¶7         While Dunmore’s appeal was pending, the Illinois Supreme Court issued People v.
       Aguilar, 2013 IL 112116, which held that the same statute Dunmore pled guilty to violating
       was unconstitutional on its face. Aguilar, 2013 IL 112116, ¶ 22. We asked the parties to file
       supplemental briefs addressing how Aguilar affects Dunmore’s appeal. See People v. Gersch,
       135 Ill. 2d 384, 397 (1990) (judicial decisions that declare statute unconstitutional apply to
       cases pending on direct review). In his supplemental brief, Dunmore contended that his
       conviction and subsequent probation revocation should be vacated. The State agreed, but
       requested the case be remanded so that it could reinstate the charges that had been nol-prossed
       as part of Dunmore’s guilty plea. At oral argument, likely in response to the State’s contention
       that it could reinstate the nol-prossed charges, Dunmore asserted that it was not necessary to
       reach the issue of whether Aguilar affects his appeal, as he only appealed his probation
       revocation and the fees imposed, and not his underlying conviction for aggravated unlawful
       use of a weapon.

¶8                                               Analysis
¶9          We find that Dunmore’s conviction must be vacated because it is void. Courts have an
       independent duty to vacate void orders. People v. Thompson, 209 Ill. 2d 19, 27 (2004). Aguilar
       held that section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 was facially
       unconstitutional. Aguilar, 2013 IL 112116, ¶ 22. This was the exact offense to which
       defendant pled guilty. When a statute is held facially unconstitutional, it is void ab initio,
       meaning that it is as if the law never existed. See People v. Tellez-Valencia, 188 Ill. 2d 523,
       526 (1999). A trial court is without jurisdiction to enter a conviction against a defendant based
       on actions that do not constitute a criminal offense. People v. Kayer, 2013 IL App (4th)
       120028, ¶ 9. As a result, Dunmore’s conviction for aggravated unlawful use of a weapon is
       void. See People v. Davis, 156 Ill. 2d 149, 155 (1993) (where jurisdiction is lacking, any
       resulting judgment entered is void). Further, because Dunmore’s underlying conviction is
       void, the order of probation based on that conviction was void and the two-year prison
       sentence imposed after the revocation of his probation is also void. See People v. McCarty, 94
       Ill. 2d 28, 40 (1983) (because defendant could not have been convicted of underlying offense,
       order of probation based on that conviction was void and prison sentence based on revocation
       of this probation was also of no effect).
¶ 10        We are not persuaded by Dunmore’s reliance on People v. Turner, 325 Ill. App. 3d 185
       (2001), to argue that we should not address his underlying conviction for aggravated unlawful
       use of a weapon. There, the defendant pled guilty to an offense. While he was in prison, the
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       supreme court struck down the offense. Turner, 325 Ill. App. 3d at 186-87. On its own accord,
       the State considered the defendant’s convictions invalid and brought new charges, which was
       held to violate the defendant’s guarantee against double jeopardy. Id. at 187, 191. Unlike the
       defendant in Turner, who had done nothing to challenge his convictions, Dunmore initiated an
       appeal, which was pending when Aguilar was announced. As noted above, judicial decisions
       that declare a statute unconstitutional apply to cases pending on direct review. See Gersch, 135
       Ill. 2d at 397. Because courts have an independent duty to vacate void orders and may even
       vacate a void order sua sponte (Thompson, 209 Ill. 2d at 27), once Dunmore’s appeal came
       before us, we became bound to apply Aguilar and must vacate Dunmore’s void conviction.
¶ 11        Acknowledging that Dunmore’s conviction must be vacated, the State asks us to remand
       this cause to the trial court to allow the State to reinstate certain nol-prossed charges. It also
       asserts without argument that whichever charges it reinstates will likely pass constitutional
       muster.
¶ 12        We decline the State’s invitation to review the constitutionality of charges that have not yet
       been reinstated. We do not review cases merely to guide future litigation or set precedent. In re
       Appointment of Special Prosecutor, 253 Ill. App. 3d 218, 224 (1993). Further, we will not
       decide abstract questions or render advisory opinions (People v. Campa, 217 Ill. 2d 243, 269
       (2005)), which essentially is what the State asks this court to do. The State’s authority in
       support of its position that it may reinstate charges is not relevant to the circumstances here. In
       three of these cases, the State had already recharged the defendant or the defendant had already
       been tried on the charges that were reinstated, and the defendant challenged the State’s action
       on double jeopardy grounds. People v. McCutcheon, 68 Ill. 2d 101, 104-05 (1977); People v.
       Cabrera, 402 Ill. App. 3d 440, 443-44 (2010); People v. Gorka, 374 Ill. App. 3d 85, 87-88
       (2007). In People v. Norris, 214 Ill. 2d 92 (2005), the court stated as a general rule that the
       State could refile nol-prossed charges in certain circumstances, but ultimately remanded the
       cause to develop a more complete record of whether the State had properly recharged the
       defendants in the context of proceedings for traffic offenses. Norris, 214 Ill. 2d at 95, 104-05.
       Unlike those cases, the State has not yet had the opportunity to take action on the nol-prossed
       charges.
¶ 13        Lastly, in People v. Zeisler, 125 Ill. 2d 42 (1988), the supreme court held the State could
       proceed with an action for arson after the offense of aggravated arson had been declared
       invalid. Zeisler, 125 Ill. 2d at 49. There, however, there was no question as to the
       constitutionality of the arson statute. Regardless of whether the State is entitled to reinstate
       charges as a procedural matter, at this point, reinstatement of the charges is hypothetical and so
       we decline to address the question of the charges passing constitutional muster in light of
       Aguilar.
¶ 14        For the foregoing reasons, we vacate Dunmore’s conviction, order of probation, the
       subsequent probation revocation, and the assessed $680 in fees and fines.

¶ 15      Vacated.


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