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                                Appellate Court                             Date: 2016.08.29
                                                                            12:09:09 -05'00'




                   People v. Daniels, 2016 IL App (1st) 142130



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-
Caption            Appellee, v. RONALD DANIELS, Petitioner-Appellant.



District & No.     First District, First Division
                   Docket No. 1-14-2130



Filed              June 20, 2016
Rehearing denied   July 20, 2016


Decision Under     Appeal from the Circuit Court of Cook County, No. 05-CR-26780; the
Review             Hon. Joseph G. Kazmierski, Judge, presiding.



Judgment           Vacated.



Counsel on         Michael J. Pelletier, Patricia Mysza, and Brian W. Carroll, all of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan Spellberg, John
                   Nowak, and Sari London, Assistant State’s Attorneys, of counsel), for
                   the People.



Panel              PRESIDING JUSTICE CUNNINGHAM delivered the judgment of
                   the court, with opinion.
                   Justices Connors and Harris concurred in the judgment and opinion.
                                                 OPINION

¶1        Defendant Ronald Daniels was arrested on a city bus after Chicago police officers
     investigated a call reporting that an individual on that bus was carrying a weapon. Defendant
     was charged with six counts of aggravated unlawful use of a weapon (AUUW) and two counts
     of unlawful use of a weapon by a felon (UUWF). Defendant pled guilty to one charge of
     AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) in exchange for a six-year prison
     sentence, and the State nol-prossed the remaining seven counts. After he completed his
     sentence, defendant filed a petition to vacate his conviction, which was denied. On appeal,
     defendant contends the trial court erred in denying his petition because section 24-1.6(a)(1),
     (a)(3)(B) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West
     2004)) was found facially unconstitutional in People v. Aguilar, 2013 IL 112116. The State
     agrees with defendant’s position on that issue and asks this court to remand this cause to the
     trial court to reinstate six of the seven nol-prossed charges against defendant. For the following
     reasons, we vacate defendant’s conviction and deny the State’s request.

¶2                                          BACKGROUND
¶3        Defendant was charged with six counts of AUUW (pursuant to various combinations of
     provisions of the AUUW statute, 720 ILCS 5/24-1.6 (West 2004)) and two counts of UUWF
     (720 ILCS 5/24-1.1(a) (West 2004)). On March 13, 2006, defendant pled guilty to count I:
     AUUW pursuant to section 24-1.6(a)(1), (a)(3)(B) of the Code (720 ILCS 5/24-1.6(a)(1),
     (a)(3)(B) (West 2004)). At that hearing, the parties stipulated that, had this case gone to trial,
     evidence would have been presented establishing the following facts: at approximately 1 a.m.
     on November 6, 2005, Chicago police officers received a call informing them that a passenger
     on a southbound bus at 3258 South State Street was carrying a gun. A description of the
     passenger was provided to the police. The officers traveled to that location, curbed the bus, and
     boarded it. Defendant, who matched the description that had been provided to the officers, was
     sitting in the middle of the bus. The officers conducted a pat down of defendant and recovered
     an unloaded .38-caliber blue steel revolver and four live .38-caliber rounds in the weapon’s
     case. Additionally, prior to these events, defendant had been convicted of the offense of
     delivery of a controlled substance.
¶4        Based on the foregoing, the trial court found a factual basis for defendant’s guilty plea as to
     count I and entered judgment against him pursuant to subsection (a)(1), (a)(3)(B). The court
     also noted that because of defendant’s prior felony conviction, this offense was a Class 2
     felony. For the purposes of sentencing, the State provided evidence of defendant’s two prior
     convictions for offenses classified as Class 2 felonies or greater, and defendant was sentenced
     as a Class X offender to six years’ imprisonment. The State nol-prossed the remaining seven
     counts against defendant.
¶5        After completing his sentence, on January 2, 2014, defendant filed a petition in the circuit
     court of Cook County pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS
     5/2-1401 (West 2012)) seeking to vacate his conviction.1 In his petition, defendant claimed

         1
          Defendant titled this filing “Motion to Vacate the Conviction of Aggravated Unlawful Use of a
     Weapon.” All subsequent filings by both parties before the trial court and before this court on appeal
     refer to it as defendant’s “motion.” Despite making no prior reference to the statutory authority for the

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     that under People v. Aguilar, 2013 IL 112116, section 24-1.6(a)(1), (a)(3)(A) of the AUUW
     statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is unconstitutional and void ab initio,
     and therefore his conviction must be vacated. In response to defendant’s petition, the State
     argued that Aguilar was limited in scope and did not hold void the AUUW provisions that
     prohibit the carrying of firearms by individuals previously convicted of felony offenses. In
     support, the State relied on People v. Burns, 2013 IL App (1st) 120929, rev’d, 2015 IL 117387,
     in which the appellate court found only the Class 4 version of the AUUW offense to be
     unconstitutional under Aguilar, while the Class 2 version of the offense remained enforceable.
     Burns, 2013 IL App (1st) 120929, ¶ 24. On March 11, 2014, defendant’s petition to vacate his
     conviction was denied, and the trial court subsequently denied his motion to reconsider its
     denial. This timely appeal followed; accordingly, this court has jurisdiction to resolve this
     matter.

¶6                                            ANALYSIS
¶7       The sole issue defendant raises on appeal is whether his conviction pursuant to subsection
     (a)(1), (a)(3)(B) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) must be vacated because the
     statute is unconstitutional and void ab initio. Defendant argues that subsection (a)(1),
     (a)(3)(B), like subsection (a)(1), (a)(3)(A), which was found facially unconstitutional in
     People v. Aguilar, 2013 IL 112116, creates a “blanket ban on possessing ready-to-use firearms
     outside the home” and is likewise unconstitutional because it violates the right to keep and bear
     arms, as guaranteed by the second amendment of the United States Constitution (U.S. Const.,
     amend. II). A facially unconstitutional statute is void ab initio, which means that it is
     unenforceable and inoperative as though it had never been passed. People v. Blair, 2013 IL
     114122, ¶ 28. Defendant argues that his conviction under a facially unconstitutional statute is
     invalid and must be vacated. See People v. Campbell, 2013 IL App (4th) 120635, ¶¶ 14-16.
¶8       Shortly after defendant filed his opening brief on appeal, our supreme court filed People v.
     Burns, 2015 IL 117387, in which it held that section 24-1.6(d) of the Code (720 ILCS
     5/24-1.6(d) (West 2008)), the sentencing provision of the AUUW statute, did not create
     “separate and distinct offenses” depending on whether the charge is classified as a Class 4
     felony or a Class 2 felony. Burns, 2015 IL 117387, ¶¶ 22-24. The court stated that it had
     “improperly placed limiting language” on its holding in Aguilar, and clarified that subsection
     (a)(1), (a)(3)(A) is facially unconstitutional, without limitation. Id. ¶ 25. In accordance with
     our supreme court’s decision in Burns, the State concedes that defendant’s conviction pursuant
     to subsection (a)(1), (a)(3)(B) must be vacated.
¶9       Although Aguilar finds only subsection (a)(1), (a)(3)(A) to be facially unconstitutional, the
     parties are in agreement that the underlying rationale extends to defendant’s conviction under
     subsection (a)(1), (a)(3)(B). Subsection (a)(1), (a)(3)(A) prohibits the possession of an uncased


     filing of his “motion,” defendant refers to the filing as a “section 2-1401 petition” for the first time in
     his reply brief. Agreeing with this characterization, we interpret defendant’s January 2, 2014, filing to
     be a petition pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West
     2012)), and we will refer to it accordingly. We further note that at no point did the State ever challenge
     defendant’s ability to file this “motion,” and the State’s response brief on appeal refers to defendant’s
     challenge to his conviction as a “collateral proceeding,” which suggests that their own understanding of
     defendant’s “motion” is consistent with our interpretation.

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       firearm that is “loaded and immediately accessible,” whereas subsection (a)(1), (a)(3)(B)
       prohibits the possession of an uncased firearm that is “unloaded and the ammunition for the
       weapon [is] immediately accessible.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(1), (a)(3)(B)
       (West 2004). A conclusion that subsection (a)(1), (a)(3)(B) is valid would illogically prohibit
       the possession of an unloaded gun in the same situation where, under Aguilar, the possession
       of a loaded gun is constitutionally protected. We believe the second amendment’s protection
       of an individual’s right to carry a loaded firearm naturally extends to protect an individual’s
       right to carry an unloaded firearm with immediately accessible ammunition. Accordingly, we
       find subsection (a)(1), (a)(3)(B) constitutionally invalid based on Aguilar.
¶ 10        A conviction pursuant to a facially unconstitutional statute must be vacated. See People v.
       Henderson, 2013 IL App (1st) 113294, ¶ 11 (vacating the defendant’s conviction based on a
       statutory section invalidated under Aguilar). Accordingly, defendant’s conviction pursuant to
       subsection (a)(1), (a)(3)(B) is vacated.
¶ 11        As defendant’s sole conviction is now vacated, the State asks this court to “remand this
       case to the circuit court to permit the [State] to reinstate the nolle prosequied counts that are
       still constitutional and therefore valid.” The State argues that because it nol-prossed those
       charges pursuant to the plea agreement between defendant and the State, principles of contract
       law require that the State be afforded the opportunity to reinstate those charges due to the
       subsequent vacatur of defendant’s conviction. It is the State’s position that reinstating the
       nol-prossed charges would not infringe upon defendant’s constitutional rights against double
       jeopardy and there are no other constitutional or statutory limitations which would preclude the
       prosecution of defendant on those charges.
¶ 12        A nolle prosequi is the “formal entry of record by the prosecuting attorney by which he
       declares that he is unwilling to prosecute a case” and serves to terminate the charge against the
       defendant. People v. DeBlieck, 181 Ill. App. 3d 600, 603 (1989). It operates “like a nonsuit or
       discontinuance in a civil suit, and leaves the matter in the same condition in which it was
       before the commencement of the prosecution.” People v. Watson, 394 Ill. 177, 179 (1946). As
       it is not a final disposition of a case, a nolle prosequi will not bar another prosecution for the
       same offense. Id. Subject to relevant statutory or constitutional defenses, the State may
       reprosecute the defendant on a previously nol-prossed charge absent a showing of harassment,
       bad faith, or fundamental unfairness. People v. Hughes, 2012 IL 112817, ¶ 23 (citing Ferguson
       v. City of Chicago, 213 Ill. 2d 94, 102 (2004), and People v. Norris, 214 Ill. 2d 92, 104 (2005)).
¶ 13        However, where the prosecuting attorney “ ‘causes the entrance of an unconditional nolle
       prosequi ***, the proceeding is terminated, and the same indictment cannot be reinstated at a
       subsequent term and prosecution thereon resumed.’ ” (Emphasis added.) DeBlieck, 181 Ill.
       App. 3d at 605 (quoting Watson, 394 Ill. at 182). Instead, the State may reinstate a nol-prossed
       charge by moving the trial court to vacate the nolle prosequi order, or it may file a new
       charging instrument to initiate a separate proceeding against the defendant. See Hughes, 2012
       IL 112817, ¶¶ 23-25; DeBlieck, 181 Ill. App. 3d at 604-05. The DeBlieck court explained and
       distinguished these two methods of recharging a defendant with a charge previously
       nol-prossed, noting that where the nolle prosequi order is not vacated, the charge cannot
       simply be “reinstated” because there is no charge to reinstate. DeBlieck, 181 Ill. App. 3d at
       605-06. Similarly, Hughes confirmed the validity of both methods so long as the State moves
       to vacate the nolle prosequi order or files a new charging instrument before jeopardy attaches.
       Hughes, 2012 IL 112817, ¶¶ 23-25. The record here shows the State did not follow either of the

                                                   -4-
       procedures as explained in those cases: the State did not move for the trial court to vacate the
       nolle prosequi order, nor did the State file a new charging instrument to initiate a separate
       proceeding against defendant. The State having taken no such action at the trial court level,
       there is no decision by the trial court for us to review, and we decline to offer an advisory
       opinion on the matter.
¶ 14       We find guidance in People v. Dunmore, 2013 IL App (1st) 121170. That case presented a
       similar situation in which the defendant pled guilty and was convicted of one count of AUUW,
       and the State nol-prossed the remaining counts against him. Dunmore, 2013 IL App (1st)
       121170, ¶ 3. During the pendency of the defendant’s appeal of his sentence, our supreme court
       issued its ruling in Aguilar, which invalidated the section of the AUUW statute under which
       the defendant had been convicted. Id. ¶ 7. In their supplemental briefs, the defendant and the
       State both agreed that the defendant’s conviction should be vacated; the State further asked the
       court to remand the case to the trial court for the reinstatement of the nol-prossed charges. Id.
       The Dunmore court vacated the conviction but declined to address whether the State was
       entitled to reinstate the nol-prossed charges. Id. ¶¶ 12-13. It found that because the State had
       “not yet had the opportunity to take action on the nol-prossed charges,” addressing them would
       essentially amount to “decid[ing] abstract questions or render[ing] advisory opinions” because
       the procedural matter of reinstating the charges against the defendant was, at that point, only
       hypothetical. Id. We find the reasoning used in Dunmore to be instructive and persuasive. We
       note, however, that there is a procedural difference between the two cases. Dunmore addressed
       the issue on direct appeal, whereas the present case involves the appeal of a denial of
       defendant’s section 2-1401 petition. This difference only provides further support for our
       conclusion that this court lacks the power to grant the State the relief it seeks, specifically the
       reinstatement of the previously nol-prossed counts against defendant. Those charges are part of
       an altogether separate proceeding from the matter before us.
¶ 15       The present case is solely related to defendant’s section 2-1401 petition seeking relief from
       a void judgment. Contrary to the State’s assertion, this appeal does not signify that
       “prosecution is still pending.” It is well established that a section 2-1401 proceeding is “not a
       continuation of the case that resulted in the judgment that it challenges” but is an altogether
       new proceeding. People v. Kane, 2013 IL App (2d) 110594, ¶ 13. In this case, the original
       criminal proceeding terminated after defendant entered his guilty plea and was convicted of
       count I, the State nol-prossed the remaining charges and the parties did not appeal. See People
       v. Shinaul, 2015 IL App (1st) 140477, ¶ 13, appeal allowed, No. 120162 (Ill. Jan. 20, 2016).
       This present appeal that is before us concerns only the trial court’s March 11, 2014, denial of
       defendant’s section 2-1401 petition (and subsequent denial of defendant’s motion to
       reconsider). That section 2-1401 petition was directed only at defendant’s conviction under
       count I, while the remaining counts with which he was originally charged were nol-prossed. It
       is count I that we now vacate. Therefore, any issues related to the nol-prossed counts are not
       properly before us. Accordingly, this court does not have jurisdiction to grant the State’s
       request or address the substantive issues it implicates.
¶ 16       Another case recently decided in this district, People v. Shinaul, 2015 IL App (1st) 140477,
       appeal allowed, No. 120162 (Ill. Jan. 20, 2016), also supports our finding that this court lacks
       the power to provide the State with its requested relief. As in Dunmore and the present case,
       the defendant in Shinaul pled guilty to one count of AUUW pursuant to a negotiated plea
       agreement whereby the State nol-prossed the remaining counts. Shinaul, 2015 IL App (1st)


                                                    -5-
       140477, ¶ 4. After the Aguilar decision was issued, the defendant in Shinaul filed a section
       2-1401 petition to vacate his conviction, and his petition was granted by the trial court. Id. ¶ 7.
       The trial court then denied the State’s motion for reinstatement of the nol-prossed charges, and,
       in contrast to the present case, it was the denial of that motion (and the subsequent motion to
       reconsider) that the State appealed. Id. The Shinaul court found that it lacked jurisdiction to
       hear the State’s appeal or determine whether the State could commence a new proceeding or
       refile the same charges against the defendant. Id. ¶¶ 14-15. As “there was no pending criminal
       proceeding before the trial court in [that] case,” the court found that the trial court’s dispositive
       orders in the section 2-1401 proceeding did not have the “substantive effect of dismissing any
       charges against defendant.” Id. ¶¶ 13-14. “[T]he sole matter before the [trial] court was
       defendant’s section 2-1401 petition for relief from a void judgment.” Id. ¶ 13; Shinaul, 2015 IL
       App (1st) 140477, ¶ 18 (Pierce, J., specially concurring) (finding that because the original
       proceeding had previously terminated and the defendant filed a section 2-1401 petition, “the
       trial court had jurisdiction to consider only whether the judgment of conviction was valid”).
       Similarly, the present case is not a continuation of defendant’s criminal proceeding in which
       the State chose to nolle prosequi all charges against defendant except count I. We reiterate that
       this appeal concerns solely his section 2-1401 petition to vacate his conviction pursuant to a
       facially unconstitutional statute. Thus, even if the State had asked the trial court to reinstate the
       nol-prossed charges, as it did in Shinaul, that would not vest this court with the authority to
       grant the State’s request that we reinstate the previously nol-prossed counts.
¶ 17        The decisions cited by the State are unpersuasive because they involve defendants who had
       already been tried on charges that were originally nol-prossed but later reinstated during the
       criminal proceedings. See, e.g., People v. Hughes, 2012 IL 112817; People v. Norris, 214 Ill.
       2d 92 (2005); People v. McCutcheon, 68 Ill. 2d 101 (1977); People v. Cabrera, 402 Ill. App. 3d
       440 (2010); see also People v. Gorka, 374 Ill. App. 3d 85 (2007) (after a successful
       procedure-related appeal, defendant withdrawing his guilty plea and his subsequent jury trial
       on the same charges did not violate the double jeopardy clause). In this case, by contrast, no
       action by the State regarding the reinstatement of the previously nol-prossed counts has been
       ruled on by the trial court. Accordingly, a review of the trial court’s decision on any such
       action by the State is not before us. “The function of a reviewing court is limited to review of
       issues decided by the trial court and cannot be extended to issues not passed upon at trial.” In re
       Estate of Devey, 239 Ill. App. 3d 630, 633 (1993). “We do not review cases merely to guide
       future litigation or to set precedent.” In re Appointment of Special Prosecutor, 253 Ill. App. 3d
       218, 224 (1993).
¶ 18        Accordingly, we deny the State’s request to remand this cause to the trial court for the
       expressed purpose of reinstatement of the nol-prossed charges.
¶ 19        For the foregoing reasons, we vacate defendant’s conviction.

¶ 20       Vacated.




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