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                               Appellate Court                           Date: 2017.10.10
                                                                         12:40:40 -05'00'




                  People v. Daniels, 2017 IL App (1st) 142130-B



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



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



Filed             July 21, 2017



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



Judgment          Reversed; conviction vacated; cause remanded.


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

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



Panel             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 appeals from the order of the circuit court of Cook County
     denying his petition under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS
     5/2-1401 (West 2012)) to vacate his conviction for aggravated unlawful use of a weapon. In a
     June 2016 opinion (People v. Daniels, 2016 IL App (1st) 142130), this court vacated the
     defendant’s conviction and determined that we lacked jurisdiction to grant the State’s request
     (raised for the first time on appeal) to reinstate charges that were nol-prossed at the time of
     defendant’s plea agreement. The supreme court subsequently directed us to consider the effect
     of People v. Shinaul, 2017 IL 120162, as to whether there is appellate jurisdiction to consider
     the reinstatement of the nol-prossed counts and, if so, whether those counts can be reinstated.
     We reverse the denial of defendant’s section 2-1401 petition and vacate his conviction, but we
     conclude we lack jurisdiction to determine whether the nol-prossed counts may be reinstated.

¶2                                         BACKGROUND
¶3       Defendant was arrested on a city bus after he was found in possession of a revolver and
     four rounds of ammunition. Defendant was charged with six counts of aggravated unlawful use
     of a weapon (AUUW) pursuant to various provisions of the AUUW statute (720 ILCS 5/24-1.6
     (West 2004)), as well as two counts of unlawful use of a weapon by a felon (UUWF). 720
     ILCS 5/24-1.1(a) (West 2004)).
¶4       Defendant pled guilty to one charge of AUUW under the provisions criminalizing
     possession of an unloaded firearm with ammunition immediately accessible. 720 ILCS
     5/24-1.6(a)(1), (a)(3)(B) (West 2004). As defendant had a prior felony conviction, this offense
     was a Class 2 felony under the AUUW statute’s sentencing provision. See 720 ILCS
     5/24-1.6(d) (West 2004). Defendant received a six-year sentence. Pursuant to the plea
     agreement, the State entered a nolle prosequi with respect to the remaining seven counts.
¶5       After he completed his sentence, defendant filed a petition to vacate his conviction 1
     pursuant to section 2-1401 of the Code. 735 ILCS 5/2-1401 (West 2012). The petition asserted
     that his AUUW conviction was invalid pursuant to People v. Aguilar, 2013 IL 112116, in
     which our supreme court held 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.” Id. ¶ 22. In response, the State argued that Aguilar was limited to the
     “Class 4” form of the offense and did not invalidate the statutory provision specifying a “Class
     2” felony when the offender has a prior felony conviction. 720 ILCS 5/24-1.6(d) (West 2004).


         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.” 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.

                                                     -2-
¶6          On March 11, 2014, the trial court denied defendant’s petition to vacate his conviction.
       After the trial court denied his motion to reconsider, defendant filed a timely appeal.
¶7          In its appellate brief, the State acknowledged that defendant’s conviction must be vacated
       in light of People v. Burns, 2015 IL 117387, decided pending this appeal. However, the State
       asked this court to remand this cause to the trial court to reinstate six of the seven nol-prossed
       charges against defendant.
¶8          In June 2016, this court issued an opinion which vacated defendant’s conviction but held
       that we lacked jurisdiction to consider the State’s request to reinstate the nol-prossed charges.
       People v. Daniels, 2016 IL App (1st) 142130. On March 29, 2017, our supreme court entered a
       supervisory order directing this court to vacate the June 2016 opinion and “to consider the
       effect of [the supreme court’s] opinion in People v. Shinaul, 2017 IL 120162, on the issues of
       whether (1) the appellate court has jurisdiction to consider the reinstatement of previously
       nol-prossed counts following a court vacating a conviction based on a guilty plea in exchange
       for remaining counts being nol-prossed; and (2) if there is jurisdiction, whether the nol-prossed
       counts can be reinstated.” This court subsequently vacated our June 2016 opinion.

¶9                                             ANALYSIS
¶ 10       We first address defendant’s argument on appeal that the trial court erred in denying his
       section 2-1401 petition to vacate the conviction. “[S]ection 2-1401 of the Code represents a
       comprehensive statutory procedure authorizing a trial court to vacate or modify a final order or
       judgment in civil and criminal proceedings. [Citations.] A proceeding under section 2-1401
       constitutes an independent and separate action from the original action ***.” Warren County
       Soil & Water Conservation District v. Walters, 2015 IL 117783, ¶ 31. Where a section 2-1401
       petition raises a purely legal challenge to a judgment, the standard of review is de novo. Id.
       ¶ 47.
¶ 11       Defendant asserts that his conviction pursuant to subsections (a)(1) and (a)(3)(B) of the
       AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) must be vacated because the
       statute is unconstitutional. Subsection (a)(3)(B) specified that a person committed the offense
       of AUUW if he knowingly possessed a firearm that was “uncased, unloaded and the
       ammunition for the weapon was immediately accessible at the time of the offense.” 720 ILCS
       5/24-1.6(a)(3)(B) (West 2006).
¶ 12       The State concedes, and we agree, that the rationale expressed in Aguilar applies equally to
       subsection (a)(3)(B). Upholding a conviction under subsection (a)(3)(B) 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. There is nothing in Aguilar suggesting
       that whether a gun is loaded affects the second amendment “right to possess and use a firearm
       for self-defense outside the home.” 2013 IL 112116, ¶ 21. Accordingly, we find subsection
       (a)(3)(B) constitutionally invalid under Aguilar.
¶ 13       Further, the supreme court has clarified that Aguilar’s reasoning applies regardless of
       whether the offense is a Class 4 or Class 2 felony under the AUUW sentencing provision.
       Burns, 2015 IL 117387, ¶ 22 (“our reference in Aguilar to a ‘Class 4 form’ of the offense was
       inappropriate” as “[t]here is no ‘Class 4 form’ or ‘Class 2 form’ of AUUW”). Thus, the fact
       that defendant’s prior felony made his AUUW offense a Class 2 offense does not affect the
       application of Aguilar to void his conviction.


                                                   -3-
¶ 14        Under the reasoning of Aguilar, subsection (a)(3)(B) is constitutionally invalid. A
       conviction pursuant to a facially unconstitutional statute must be vacated. See People v.
       Henderson, 2013 IL App (1st) 113294, ¶ 12 (vacating conviction based on a statutory section
       invalidated under Aguilar). Accordingly, defendant’s section 2-1401 petition to vacate his
       conviction should have been granted.
¶ 15        Conceding that defendant’s conviction under the plea agreement should be vacated, the
       State asks this court to remand this case to the circuit court to permit the State to reinstate six of
       the nol-prossed counts. The State asserts those counts “remain constitutional” and that there
       are no constitutional or statutory limitations precluding a prosecution on those charges.
¶ 16        Our June 2016 opinion in this matter concluded that we lacked jurisdiction to address the
       State’s request to reinstate the nol-prossed counts, as that issue had not been raised in the trial
       court. Pursuant to the supreme court’s supervisory order, we now consider the effect of People
       v. Shinaul, 2017 IL 120162, in determining whether “the appellate court has jurisdiction to
       consider the reinstatement of previously nol-prossed counts following a court vacating a
       conviction based on a guilty plea in exchange for remaining counts being nol-prossed.” Only if
       we have jurisdiction may we proceed to decide whether the nol-prossed counts can be
       reinstated.
¶ 17        In Shinaul, defendant pled guilty to one count of AUUW, under the statutory provision
       subsequently invalidated by Aguilar. Id. ¶ 1. Pursuant to the plea agreement, the State
       nol-prossed several other charges. Id. Defendant completed the full term of his sentence. Id.
¶ 18        The Shinaul defendant subsequently filed a petition under section 2-1401 of the Code,
       seeking to vacate his conviction as void pursuant to Aguilar. Id. ¶ 2. The State, “[c]onceding
       that defendant’s conviction should be vacated in light of Aguilar, *** filed a motion to
       reinstate certain AUUW counts that were previously nol-prossed.” Id. Following a hearing, the
       trial court agreed that the conviction was void pursuant to Aguilar. Id. ¶ 3. However, the trial
       court denied the State’s motion to reinstate the nol-prossed charges. Id. The State filed a
       motion to reconsider in which it argued there were no constitutional or statutory limitations
       barring reprosecution of the nol-prossed charges. Id. The trial court denied the motion to
       reconsider, and the State appealed. Id.
¶ 19        The appellate court determined it lacked jurisdiction and denied the State’s petition for
       rehearing. Id. ¶¶ 4-5. However, the supreme court held that there was appellate jurisdiction
       under article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), because
       the trial court order constituted a final judgment. Shinaul, 2017 IL 120162, ¶¶ 10-11. The
       supreme court explained 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.” (Internal quotation marks omitted.) Id. ¶ 10. Shinaul recognized
       “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.” Id. ¶ 11. “Once the circuit judge resolved all the pending issues in its written
       order, the matter terminated *** allowing the State to seek review, as of right, of the circuit
       court’s ruling.” Id. ¶ 12.
¶ 20        Proceeding to review the trial court’s denial of the State’s motion for reinstatement, the
       supreme court determined that the criminal statute of limitations (720 ILCS 5/3-5 (West 2012))
       “serve[d] as an absolute bar to the State’s motion to reinstate the charges it nol-prossed.”

                                                     -4-
       Shinaul, 2017 IL 120162, ¶¶ 15-18 (holding that the limitations period was not tolled by
       section 2-1401 proceedings). Thus, the supreme court affirmed the judgment of the circuit
       court. Id. ¶ 20.
¶ 21       In assessing our jurisdiction to consider the State’s request to reinstate nol-prossed counts
       in this appeal, we recognize that Shinaul also involved a section 2-1401 petition seeking to
       vacate a conviction under a plea agreement. However, Shinaul’s procedural posture differs: in
       Shinaul, the State moved the trial court to reinstate nol-prossed charges, and the trial court
       decided that motion in the same final judgment that granted the section 2-1401 petition. In this
       case, the State raised the issue of reinstatement for the first time on appeal.
¶ 22       This procedural distinction is significant in deciding our jurisdiction to review the
       reinstatement issue. In Shinaul, there was jurisdiction to review that issue because it was
       decided as part of a final judgment. Shinaul recognized that “a ‘final judgment’ is a
       determination by the circuit court on the issues presented by the pleadings” and the trial
       court’s order was final because it decided all “the issues before the circuit court,” including the
       motion for reinstatement. (Emphases added.) Id. ¶¶ 10-11 (“When the circuit court ultimately
       denied the State’s motion ***, a final decision on the State’s motion was entered.”).
¶ 23       Shinaul thus confirms appellate jurisdiction to review the reinstatement of nol-prossed
       charges where the State has made a motion for reinstatement in the trial court presiding over
       the section 2-1401 proceeding and the motion is decided in a final order. Shinaul does not
       address the situation presented here, where the issue of reinstatement is raised for the first time
       on appeal from the trial court order deciding the section 2-1401 petition.
¶ 24       As Shinaul recognized that article VI confers appellate jurisdiction to review final
       judgments by the circuit court and that a final judgment is a determination “on the issues
       presented by the pleadings” (id. ¶ 10), we conclude that we lack appellate jurisdiction to
       consider an issue not considered by the circuit court in the underlying section 2-1401
       proceeding. Although the trial court entered a final judgment in this case, that judgment was
       limited to defendant’s petition to vacate his conviction under a single count of AUUW. The
       potential reinstatement of other counts was simply not part of the final judgment from which
       the defendant appealed. Thus, we conclude we do not have jurisdiction to review the State’s
       request for reinstatement of nol-prossed counts.
¶ 25       We recognize that article VI elsewhere provides that “[t]he Appellate Court may exercise
       original jurisdiction when necessary to the complete determination of any case on review.” Ill.
       Const. 1970, art. VI, § 6. However, the “case on review” in this appeal is not the original
       prosecution that resulted in the plea agreement but rather the separate section 2-1401
       proceeding. See Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 23 (a section 2-1401 petition
       “is not a continuation of the original action” but “is an initial pleading that commences a new
       and separate cause of action”). The possible reinstatement of nol-prossed charges is not
       necessary to the determination of the case on review, which is limited to whether the AUUW
       conviction should be vacated under Aguilar. Thus, we do not find that we have original
       jurisdiction to consider the reinstatement issue.
¶ 26       Pursuant to the supreme court’s supervisory order, we determine that, notwithstanding
       Shinaul, this court lacks jurisdiction to consider the reinstatement of previously nol-prossed




                                                    -5-
       counts following the vacatur of defendant’s conviction.2 In turn, we do not address the merits
       of the State’s request for reinstatement.
¶ 27       For the foregoing reasons, we reverse the trial court’s denial of the section 2-1401 petition,
       vacate defendant’s conviction, and remand for proceedings consistent with this opinion.

¶ 28       Reversed; conviction vacated; cause remanded.




           2
            Our decision does not preclude the State from filing a new indictment or moving in the circuit
       court to vacate the nolle prosequi, subject to any statutory or constitutional defenses. People v. Hughes,
       2012 IL 112817, ¶¶ 24-25.

                                                       -6-
