                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           Rudy v. People, 2013 IL App (1st) 113449




Appellate Court            SHARON RUDY, Administrator with the Will Annexed of the Estate of
Caption                    Elizabeth Ehlert, Deceased, Petitioner-Appellant, v. THE PEOPLE OF
                           THE STATE OF ILLINOIS, Respondent-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-11-3449


Filed                      January 25, 2013


Held                       The petition for a certificate of innocence filed by deceased defendant’s
(Note: This syllabus       estate in order to pursue damages in the Court of Claims for defendant’s
constitutes no part of     alleged wrongful conviction and subsequent incarceration for the murder
the opinion of the court   of her newborn child was properly dismissed, since the right to a
but has been prepared      certificate of innocence is available only to the person wrongfully
by the Reporter of         convicted, not to one acting on her behalf, and, furthermore, the Illinois
Decisions for the          Supreme Court opinion affirming the reversal of defendant’s conviction
convenience of the         did not find defendant innocent but, rather, stated that the evidence of
reader.)
                           defendant’s guilt was “insufficient.”


Decision Under             Appeal from the Circuit Court of Cook County, No. 91-CR-37801; the
Review                     Hon. Dennis J. Porter, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael B. Bolan, of Chicago, for appellant.
Appeal
                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                            Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.


Panel                       JUSTICE HALL delivered the judgment of the court, with opinion.
                            Presiding Justice Lampkin and Justice Reyes concurred in the judgment
                            and opinion.



                                              OPINION

¶1           Following a jury trial, defendant Elizabeth Ehlert was convicted of first-degree murder
        of her newborn infant girl and sentenced to 58 years’ imprisonment. Defendant’s conviction
        was reversed on direct appeal. The appellate court determined that the trial court committed
        reversible error in admitting irrelevant and prejudicial evidence that defendant had two prior
        abortions. People v. Ehlert, 274 Ill. App. 3d 1026, 1034 (1995). Following a bench trial on
        remand, defendant was again convicted of first-degree murder and sentenced to 30 years’
        imprisonment.
¶2           Defendant appealed her conviction and this time the conviction was overturned on the
        ground that the evidence was insufficient to show that the infant had been born alive. People
        v. Ehlert, 335 Ill. App. 3d 467, 474 (2002). The Illinois Supreme Court subsequently granted
        the State’s petition for leave to appeal.
¶3           A divided Illinois Supreme Court affirmed the appellate court’s decision, but on grounds
        different than those relied upon by the appellate court. People v. Ehlert, 211 Ill. 2d 192
        (2004). The supreme court determined that even assuming the infant had been born alive, the
        evidence, taken in a light most favorable to the State, was insufficient to prove beyond a
        reasonable doubt an essential element of murder, that the baby’s death resulted from
        defendant’s criminal agency.1 Ehlert, 211 Ill. 2d at 209-10. The court noted, however, that
        its ruling did not imply that defendant was innocent of the crime charged, but only that the
        State’s “evidence of criminal agency resulting in death was simply insufficient.” Id. at 215.
¶4           Defendant died of cancer on June 20, 2005. Her will was filed in Winnebago County,
        where probate is currently pending. Several prospective executors of defendant’s estate were

                1
                 “The elements of murder which must be established are: The proof of death and the proof
        of a criminal agency causing death. Both of these elements must be established by evidence beyond
        a reasonable doubt. After these elements, termed in law the corpus delicti, have been proved, then
        the law requires that the evidence establish beyond a reasonable doubt that the defendant was the
        criminal agency or put in motion the criminal agency which caused the death of the victim.” People
        v. Wilson, 400 Ill. 461, 480 (1948).

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       either unable or unwilling to serve as executor. It was determined that the primary asset of
       the estate was a cause of action for wrongful incarceration. The probate court of Winnebago
       County appointed Sharon Rudy as administrator of the estate with will annexed, in an effort
       to recover funds the county had expended for defendant’s medical needs following her
       release from prison.
¶5         Sharon Rudy filed a petition in Cook County circuit court seeking to obtain a certificate
       of innocence in order for defendant’s estate to pursue a claim for damages in the Court of
       Claims for defendant’s alleged wrongful conviction and imprisonment pursuant to section
       2-702 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2008)).
¶6         The trial court denied the petition, and thereafter, denied a motion to reconsider. Sharon
       Rudy now appeals on behalf of defendant’s estate. For the reasons that follow, we affirm.

¶7                                            ANALYSIS
¶8         Section 2-702(b) of the Code provides that “[a]ny person convicted and subsequently
       imprisoned for one or more felonies by the State of Illinois which he or she did not commit
       may, under the conditions hereinafter provided, file a petition for certificate of innocence in
       the circuit court of the county in which the person was convicted. The petition shall request
       a certificate of innocence finding that the petitioner was innocent of all offenses for which
       he or she was incarcerated.” 735 ILCS 5/2-702(b) (West 2008).
¶9         In order to obtain a certificate of innocence under section 2-702 of the Code, a petitioner
       must prove by a preponderance of the evidence that:
                “(1) the petitioner 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 the petitioner was found not
           guilty at the new trial or the petitioner was not retried and the indictment or information
           dismissed; ***;
                (3) the petitioner is innocent of the offenses charged in the indictment or information
           ***; and
                (4) the petitioner did not by his or her own conduct voluntarily cause or bring about
           his or her conviction.” 735 ILCS 5/2-702(g) (West 2008).
       See also People v. Fields, 2011 IL App (1st) 100169, ¶ 13.
¶ 10       “If the court finds that the petitioner is entitled to a judgment, it shall enter a certificate
       of innocence finding that the petitioner was innocent of all offenses for which he or she was
       incarcerated.” 735 ILCS 5/2-702(h) (West 2008). A person who secures a certificate of
       innocence may file a petition in the state’s Court of Claims seeking compensation. Rodriguez
       v. Cook County, Illinois, 664 F.3d 627, 630 (7th Cir. 2011) (citing 735 ILCS 5/2-702(a)
       (West 2008)); see also Betts v. United States, 10 F.3d 1278, 1283 (7th Cir. 1993) (“[a]
       certificate of innocence serves no purpose other than to permit its bearer to sue the
       government for damages”).

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¶ 11       Whether or not a petitioner is entitled to a certificate of innocence is generally committed
       to the sound discretion of the court. See Betts, 10 F.3d at 1283. Here, however, our inquiry
       centers on the legal question of whether a deceased defendant’s estate is entitled to a
       certificate of innocence under section 2-702 of the Code. Accordingly, our review is de novo.
       Moreover, the interpretation and application of a statute is a matter of law also subject to de
       novo review. Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 74 (2002).
¶ 12       The fundamental rule of statutory interpretation is to ascertain and effectuate the
       legislature’s intent. Brucker v. Mercola, 227 Ill. 2d 502, 513 (2007). The best indicator of
       legislative intent is the statutory language itself, and if that language is clear and
       unambiguous, it must be given effect. Beelman Trucking v. Illinois Workers’ Compensation
       Comm’n, 233 Ill. 2d 364, 370 (2009).
¶ 13       Our review of the plain language of section 2-702(g) of the Code leads us to conclude
       the legislature intended the remedies set forth in this section, allowing a petitioner to obtain
       a certificate of innocence, should be personal to the individual who was wrongly convicted
       rather than to one suing on his or her behalf. See, e.g., Diamen v. United States, 604 F.3d
       653, 656-57 (D.C. Cir. 2010) (deceased defendant’s innocence was never adjudicated in
       habeas proceeding, and therefore his estate was not entitled to obtain a certificate of
       innocence in order to pursue a damages claim, notwithstanding that defendant might well
       have obtained such a certificate himself if he were still living). Accordingly, we find that
       defendant’s estate was not entitled to obtain a certificate of innocence to pursue a claim for
       damages, notwithstanding that defendant might well have obtained such a certificate herself
       were she still living.
¶ 14       Finally, we find that the estate’s petition for a certificate of innocence was also properly
       denied where it was based upon language the Illinois Supreme Court used in affirming the
       judgment of the appellate court reversing defendant’s conviction for murder. In its opinion,
       the supreme court noted that its ruling did not imply that defendant was innocent of the crime
       charged, but only that the State’s “evidence of criminal agency resulting in death was simply
       insufficient.” Ehlert, 211 Ill. 2d at 215.
¶ 15       These are not the statements of a court finding someone “actually innocent.” Our court
       has determined that the “plain language of section 2-702 shows the legislature’s intent to
       distinguish between a finding of not guilty at retrial and actual innocence of the charged
       offenses.” Fields, 2011 IL App (1st) 100169, ¶ 19. In sum, we find the trial court properly
       dismissed the deceased defendant’s estate’s petition for a certificate of innocence.
¶ 16       For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 17      Affirmed.




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