                                                                      Digitally signed by
                                                                      Reporter of
                                                                      Decisions
                                                                      Reason: I attest to
                       Illinois Official Reports                      the accuracy and
                                                                      integrity of this
                                                                      document
                              Appellate Court                         Date: 2019.02.20
                                                                      10:55:05 -06'00'



                  People v. Coe, 2018 IL App (4th) 170359



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



District & No.    Fourth District
                  Docket No. 4-17-0359



Filed             December 6, 2018



Decision Under    Appeal from the Circuit Court of McLean County, No. 06-CF-219; the
Review            Hon. Robert L. Freitag, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        James E. Chadd, Patricia Mysza, and Darrel F. Oman, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
                  David J. Robinson, and James Ryan Williams, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE CAVANAGH delivered the judgment of the court, with
                  opinion.
                  Justices Steigmann and Knecht concurred in the judgment and
                  opinion.
                                                OPINION

¶1         Defendant, Andrew Coe, petitioned for postconviction relief. While his case awaited an
       evidentiary hearing, he completed his sentence, and consequently, the McLean County circuit
       court dismissed his petition as moot. Defendant appeals. In our de novo review (see Benz v.
       Department of Children & Family Services, 2015 IL App (1st) 130414, ¶ 31), we conclude
       that, despite his release from custody, defendant still has a personal stake in the outcome of this
       postconviction proceeding, a stake sufficient to prevent his case from being moot (see In re
       Marriage of Peters-Farrell, 216 Ill. 2d 287, 291 (2005)). Therefore, we reverse the judgment,
       and we remand this case for further proceedings.

¶2                                           I. BACKGROUND
¶3          Defendant filed his petition in January 2009. At that time, he was serving a sentence of 12
       years’ imprisonment for unlawfully delivering a controlled substance within 1000 feet of a
       school (720 ILCS 570/407(b)(1) (West 2006)). He sought postconviction relief from that
       judgment for several reasons, including his trial counsel’s alleged failure to call alibi witnesses
       in the jury trial.
¶4          After appointing postconviction counsel and hearing testimony, the trial court denied the
       petition. Defendant appealed.
¶5          For two reasons, we reversed the judgment and remanded the case for a new evidentiary
       hearing (People v. Coe, 2013 IL App (4th) 110459-U, ¶ 88): (1) the court erroneously believed
       it lacked discretion to replace the postconviction counsel with new counsel, as defendant had
       requested (id. ¶ 1), and (2) in deciding to deny the petition for postconviction relief, the court
       considered extrajudicial information, namely, the postconviction counsel’s performance in
       other cases (id.).
¶6          On remand, defendant filed motions for continuances as he attempted to obtain private
       counsel, and the trial court granted the motions. On June 25, 2014, the court granted
       defendant’s sixth motion for a continuance, rescheduling the postconviction proceeding until
       September 2, 2014.
¶7          On September 2, 2014, defendant failed to appear, and the State moved to dismiss the
       postconviction petition for want of prosecution. The trial court granted the motion.
¶8          On October 6, 2014, defendant filed a motion that the trial court (1) deny the State’s
       motion for dismissal for want of prosecution (although, actually, the court already had granted
       it) and (2) appoint postconviction counsel. The proof of service stated that defendant had
       placed his motion “in the institutional mail of Stateville Correctional Center” on September 30,
       2014.
¶9          On November 28, 2016, the trial court held a hearing “on the defendant’s motion to ***
       reinstate the first amended petition for post-conviction relief,” as the court construed the
       motion. Defendant now was represented by appointed postconviction counsel, who argued that
       defendant’s motion to reinstate his petition was timely under the mailbox rule.
¶ 10        The prosecutor disagreed but argued that, in any event, the postconviction petition was
       moot because defendant had served his prison sentence and his mandatory supervised release
       had expired.


                                                    -2-
¶ 11       The trial court responded that the present hearing was merely for the purpose of deciding
       whether defendant’s motion for reinstatement was timely. (Also, defense counsel said he
       needed time to research the question of mootness.) The court decided that the motion was
       timely under the mailbox rule because defendant had placed the motion in the institutional mail
       on September 30, 2014, within 30 days after the dismissal. So, the court scheduled defendant’s
       motion for reinstatement to be heard on January 13, 2015.
¶ 12       That hearing was rescheduled to May 2, 2017, and in that hearing, the State filed a motion
       to dismiss the postconviction petition as moot. The prosecutor told the trial court he had given
       a copy of the motion to defense counsel the day before. The motion argued that because
       defendant had completely served his sentence, including the term of mandatory supervised
       release, he now lacked standing under section 122-1(a) of the Post-Conviction Hearing Act
       (Act) (725 ILCS 5/122-1(a) (West 2016) (“Any person imprisoned in the penitentiary may
       institute a proceeding under this Article ***.” (Emphasis added.)).
¶ 13       Before taking up the issue of mootness, the trial court heard testimony from defendant
       regarding his motion to reinstate his postconviction petition. He explained that on September
       26, 2014, he was scheduled to appear in another matter and that he mistakenly believed that his
       postconviction petition was to be heard on that date instead of on September 2, 2014. In other
       words, he confused the court dates. After hearing defendant’s explanation, the court found that
       defendant was negligent in missing the hearing of September 2, 2014. Because defendant,
       however, had filed a motion for reinstatement within 30 days after the dismissal and because
       the petition had enough potential merit to be in the third stage of the postconviction
       proceeding, the court decided to grant defendant’s motion to reinstate his postconviction
       petition.
¶ 14       The trial court then heard arguments on the State’s motion to dismiss the (reinstated)
       petition on lack of standing. The court took judicial notice that defendant was discharged from
       mandatory supervised release on September 4, 2015, as stated in a notification from the Illinois
       Department of Corrections (Department). Because defendant no longer was suffering any
       deprivation of liberty as a result of his conviction of unlawful delivery of a controlled
       substance within 1000 feet of a school, the court concluded, on the authority of People v.
       Henderson, 2011 IL App (1st) 090923, that his petition for postconviction relief had become
       moot. The court acknowledged the arguably contrary authority of People v. Davis, 39 Ill. 2d
       325 (1968), but because that case was “old” and because it established “less than a bright-line
       rule,” the court chose to follow Henderson. Accordingly, the court granted the State’s motion
       to dismiss the petition for postconviction relief.
¶ 15       This appeal followed.

¶ 16                                         II. ANALYSIS
¶ 17      We decide de novo whether defendant’s discharge from the Department’s custody renders
       moot a petition for postconviction relief that he filed while still in custody. See Benz, 2015 IL
       App (1st) 130414, ¶ 31 (“Whether a claim is moot is an issue we review de novo on appeal.”).
       We will begin by discussing the case law that addresses that issue.




                                                   -3-
¶ 18                                         A. The Case Law
¶ 19                                 1. Davis, as Interpreted by Carrera
¶ 20       In Davis, the defendant filed a petition for postconviction relief, and apparently he was in
       prison at the time of the filing. Davis, 39 Ill. 2d at 327. The trial court appointed counsel to
       represent him, but by the time the case was heard, almost two years later, the defendant no
       longer was in prison. Id. (The delay between the filing of the petition and the convening of the
       hearing was not the defendant’s fault. Id.) Nevertheless, the court went ahead and heard
       testimony (id. at 327-28), after which the court denied postconviction relief (id. at 326).
¶ 21       The supreme court granted the defendant leave to appeal. Id. On appeal, the State argued
       that, regardless of the evidentiary merits of the petition, it deserved to be dismissed “because
       [the defendant] was not incarcerated at the time the cause was heard.” Id. at 328. The State
       relied on the wording of section 122-1 (id. at 328-29), which, like the present version of section
       122-1(a) (725 ILCS 5/122-1(a) (West 2016)), made imprisonment a condition of “institut[ing]
       a proceeding under this Article.” Ill. Rev. Stat. 1965, ch. 38, § 122-1. The statute read: “Any
       person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his
       conviction there was a substantial denial of his [constitutional] rights *** may institute a
       proceeding under this Article.” Id. The supreme court rejected the State’s interpretation of
       section 122-1 and gave the following explanation for doing so:
               “As there are obvious advantages in purging oneself of the stigma and disabilities
               which attend a criminal conviction, we see no reason to so narrowly construe this
               remedial statute as to preclude the remedy in every case in which the petition is not
               filed and the hearing completed before imprisonment ends.” (Emphasis added.) Davis,
               39 Ill. 2d at 329.
       Because that sentence is rather vaguely hedged, we can understand why the trial court in the
       present case would regard Davis as establishing “less than a bright-line rule.” What does “not
       in every case” mean? Davis does not explain in what cases the remedy would and would not be
       precluded if imprisonment ended before the petition was filed or the hearing was held.
¶ 22       Later, however, in People v. Carrera, 239 Ill. 2d 241, 246 (2010), the supreme court
       provided definitive clarification, interpreting Davis as follows: “ ‘imprisoned in the
       penitentiary’ has been held to include defendants who have been released from incarceration
       after timely filing their petition (People v. Davis, 39 Ill. 2d 325 (1968)).” Thus, according to
       the supreme court, being imprisoned at the time one files the petition is enough to satisfy
       section 122-1(a), and section 122-1(a) remains satisfied even if, during the pendency of the
       postconviction proceeding, one is released from prison. See id. (citing Davis, 39 Ill. 2d 325).

¶ 23                                           2. Henderson
¶ 24       In Henderson, the defendant filed a postconviction petition while he was imprisoned
       (Henderson, 2011 IL App (1st) 090923, ¶ 5); the trial court summarily dismissed the petition
       (id.); he appealed (id. ¶ 1); and while his appeal was pending, he was discharged from
       mandatory supervised release (id. ¶ 8). “Because [the] defendant’s liberty [was] no longer
       encumbered by his convictions,” the First District felt obliged to “consider whether the parties’
       contentions under the Act ha[d] been rendered moot.” Id.
¶ 25       The First District concluded that the parties’ contentions had indeed become moot and that
       the defendant had “lost standing under the Act.” Id. ¶ 15. The reason was that the defendant


                                                   -4-
       “no longer need[ed] the Act’s assistance to secure his liberty.” Id. The First District cited
       Carrera, among other authorities, for the following proposition: “A remedy under the Act is
       only available to persons who are actually being deprived of their liberty, not persons who
       have completely served their sentences and merely wish to purge their criminal records of past
       convictions.” Id. ¶ 10 (citing Carrera, 239 Ill. 2d at 257).
¶ 26       The trouble with relying on Carrera for that unqualified proposition is that Carrera says
       with apparent approval: “ ‘[I]mprisoned in the penitentiary’ has been held [in Davis] to include
       defendants who have been released from incarceration after timely filing their petition ***.”
       Carrera, 239 Ill. 2d at 246. It is true that such defendants—those who filed their petition while
       incarcerated but who were released from custody while their petition was still awaiting final
       determination—no longer would be “persons who are actually being deprived of their liberty.”
       Henderson, 2011 IL App (1st) 090923, ¶ 10. Even so, according to Carrera’s interpretation of
       Davis, such defendants nevertheless would satisfy the condition in section 122-1(a) of being
       “imprisoned in the penitentiary” and, thus, could continue pursuing relief under the Act.
       (Internal quotation marks omitted.) Carrera, 239 Ill. 2d at 246.
¶ 27       Henderson appears to overlook that authoritative interpretation in Carrera when
       Henderson says:
               “We find no meaningful distinction to be drawn between instances where the
               defendant’s liberty is not encumbered when he files the petition and those instances in
               which a defendant regains his liberty after the petition is filed. The purpose of the Act
               would not be fulfilled by giving either defendant relief. He is no longer on that string
               and the State cannot affect his liberty at present.
                   Here, [the] defendant has completed his *** term [of mandatory supervised
               release] and, thus, no longer needs the Act’s assistance to secure his liberty.
               Accordingly, defendant has lost standing under the Act, a defect that cannot be cured.
               Even if we were to remand this cause for further proceedings, the trial court would be
               obligated to deny defendant relief at the second stage due to this defect. As a result, the
               parties’ arguments under the Act have become moot.” Henderson, 2011 IL App (1st)
               090923, ¶¶ 14-15.
       Davis, as interpreted by Carrera, would lead to a different conclusion.
¶ 28       Another problem with the quoted passage from Henderson is the conflation of statutory
       standing and the common-law prohibition against deciding moot issues—a misstep that we
       will discuss later in this opinion.

¶ 29                                             3. Jones
¶ 30       In People v. Jones, 2012 IL App (1st) 093180, ¶¶ 3-4, a different division of the First
       District disagreed with Henderson that a defendant lost standing and that the postconviction
       petition became moot if the Department released the defendant from custody while the
       postconviction proceeding was pending or was on appeal.
¶ 31       Jones gave three reasons for disagreeing with Henderson. First, before deciding that a
       postconviction petition had become moot, the appellate court should give the defendant an
       opportunity to be heard on that question. Id. ¶ 7. Second, postconviction petitions were
       frequently subject to “delays not found in other categories of cases before they receive[d] final
       review.” Id. ¶ 8. Third, in Davis and Carrera, the supreme court “made clear that all that [was]


                                                    -5-
       required [was] that a [defendant] *** still [had to] be serving any sentence imposed, including
       any period of mandatory supervised release, at the time of the initial timely filing of his
       petition.” Id. ¶ 10.

¶ 32                                            4. McDonald
¶ 33       In People v. McDonald, 2018 IL App (3d) 150507, ¶ 5, the defendant complained, in his
       postconviction petition, that before he entered negotiated guilty pleas, no one informed him
       that, as a convicted sex offender who was indigent, he would have to serve his term of
       mandatory supervised release in prison. After hearing evidence, the trial court denied the
       petition. Id. ¶ 11. The defendant appealed. Id. ¶ 1.
¶ 34       The Third District noted that during the pendency of the appeal, the Department released
       the defendant from custody and his term of mandatory supervised release ended. Id. ¶ 14.
       Consequently, it was necessary to “consider whether defendant would have standing to
       continue to pursue his constitutional claims” if his case were remanded for a new evidentiary
       hearing, as he requested. Id. ¶¶ 14, 16. The Third District framed the issue as one of statutory
       construction: whether the phrase “imprisoned in the penitentiary” in section 122-1(a) (725
       ILCS 5/122-1(a) (West 2014)) was “a limitation only upon the filing of a postconviction
       petition or a limitation upon the receipt of relief under the Act.” (Emphases in original.)
       McDonald, 2018 IL App (3d) 150507, ¶ 18. In other words, did a defendant have to “be in
       custody at the time relief would be granted in order to be eligible for that relief”? Id.
       Reasonable arguments could be made on both sides of that question.
¶ 35       On the one hand, the supreme court repeatedly had used language “casting the custody
       requirement in terms of relief” (id. ¶ 20), even though the cases in which the supreme court had
       used such language were not factually on point: that is, they were not cases like Davis, in
       which the defendant filed a postconviction petition while in custody and was released from
       custody while the petition still was pending. But the relief under discussion in these cases was
       always the restoration of liberty. In People v. Dale, 406 Ill. 238, 246 (1950), for example, the
       supreme court stated that the legislature intended “ ‘to make the remedy available only to
       persons actually being deprived of their liberty and not to persons who had served their
       sentences and who might wish to purge their records of past convictions.’ ” (Emphasis in
       original.) McDonald, 2018 IL App (3d) 150507, ¶ 20 (quoting Dale, 406 Ill. at 246). Or to take
       another example, the supreme court stated in People v. Martin-Trigona, 111 Ill. 2d 295, 301
       (1986): “ ‘Relief is available under the Act all persons whose liberty is constrained by virtue of
       a criminal conviction ***.’ ” (Emphases in original.) McDonald, 2018 IL App (3d) 150507,
       ¶ 21 (quoting Martin-Trigona, 111 Ill. 2d at 301). Or for yet another example, the supreme
       court stated in People v. Pack, 224 Ill. 2d 144, 150 (2007): “ ‘A review of the history of the Act
       and our construction of the term “imprisoned” reveals that courts in this state have always held
       a defendant’s liberty interest to be paramount when construing the Act.’ ” McDonald, 2018 IL
       App (3d) 150507, ¶ 21 (quoting Pack, 224 Ill. 2d at 150).
¶ 36       Given that liberty was the paramount interest in the Act, the Third District in McDonald
       had reservations whether forging ahead with the postconviction proceeding would be
       consistent with the legislative intent. After all, “should [the] defendant ultimately prevail on
       his petition and be allowed to withdraw his plea, the State would be free to retry him. Rather
       than secure his release from custody, [the] defendant may be utilizing the Act to return to
       custody.” Id. ¶ 21 n.2. It seemed to the Third District that this legislative concern with liberty

                                                   -6-
       was a weighty consideration against holding that the defendant had continued “standing”
       under the Act. See id. ¶ 21.
¶ 37       On the other hand, though, the Third District had to reckon with Davis, the lone binding
       precedent that was, in its facts and its framing of the issue, directly on point. The supreme court
       had “directly addressed the present issue *** on a single occasion,” in Davis—a case that stood
       “in stark contrast to the cases listed above,” e.g., Dale, Martin-Trigona, and Pack. Id. ¶ 22. In
       Davis, the supreme court “found standing based upon the advantages of purging a conviction
       from one’s record, seemingly in direct conflict with the language in Dale.” Id.
¶ 38       Because Davis had “never been explicitly overruled and remain[ed] good law” and
       because “the rule of lenity dictate[d] that criminal statutes generally be construed in favor of a
       defendant,” the Third District held: “[A] defendant who timely files his postconviction petition
       while in custody is eligible for relief under the Act, regardless of whether he is released from
       custody in the intervening time.” Id. ¶ 23.

¶ 39                          B. The Difference Between Statutory Standing
                                     and the Doctrine of Moot Issues
¶ 40      It is crucial to draw a distinction between (1) standing and (2) mootness. We respectfully
       suggest that Henderson makes a mistake by conflating those two concepts. See Henderson,
       2011 IL App (1st) 090923, ¶ 15 (because the defendant has served his term of mandatory
       supervised release, he “has lost standing under the Act,” and “the parties’ arguments under the
       Act have become moot”).

¶ 41                                               1. Standing
¶ 42        In a civil case, when the defendant pleads the affirmative defense that the plaintiff lacks
       standing (see Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010)), i.e., an injury
       in fact to a legally recognized interest (In re Estate of Burgeson, 125 Ill. 2d 477, 486 (1988)),
       the relevant question is whether the plaintiff had standing as of the time when the plaintiff filed
       suit (U.S. Bank Trust National Ass’n v. Lopez, 2018 IL App (2d) 160967, ¶ 18; 23-25 Building
       Partnership v. Testa Produce, Inc., 381 Ill. App. 3d 751, 755 (2008)). (Although this
       postconviction proceeding is like a civil case (see People v. Bailey, 2017 IL 121450, ¶ 29), the
       titles of the parties are switched around because, in the underlying criminal case, defendant
       was the defendant and the State was the plaintiff. In this postconviction proceeding, defendant
       actually is analogous to the plaintiff in a civil case since he is the one who filed the action, and
       the State is analogous to the defendant.) Thus, to hold, as the First District held in Henderson,
       2011 IL App (1st) 090923, ¶¶ 15, 18, that the defendant “has lost standing” would be a
       contradiction in terms because standing, by definition, is standing to bring the suit, not to
       maintain the suit. See Bank Trust National, 2018 IL App (2d) 160967, ¶ 18; 23-25 Building
       Partnership, 381 Ill. App. 3d at 755. The doctrine of standing cares only about the date when
       the plaintiff filed the action, not the day after. See Unifund CCR Partners v. Shah, 407 Ill. App.
       3d 737, 740 (2011) (“Standing is the requirement that a lawsuit cannot commence unless a
       plaintiff has some injury in fact to a legally recognized interest.” (Emphasis added and internal
       quotation marks omitted.)).
¶ 43        There is common-law standing, which requires an injury in fact to a legally recognized
       interest (Burgeson, 125 Ill. 2d at 486), and there is statutory standing, which requires the
       fulfillment of statutory conditions in order to sue for legislatively created relief (see Wilson v.

                                                    -7-
       Tromly, 404 Ill. 307, 310 (1949)). The “legislature, having conferred a right of action *** may
       determine who shall sue, and the conditions under which the suit may be brought.” Id. In the
       Act (725 ILCS 5/122-1 et seq. (West 2016)), the legislature created a right of action for
       postconviction relief. In section 122-1(a) of the Act, the legislature prescribed a condition for
       petitioning for such relief: “[a]ny person imprisoned in the penitentiary may institute a
       proceeding under this Article.” Id. § 122-1(a). Because section 122-1(a) is concerned only
       with standing to bring suit, it stipulates that current imprisonment is a condition for
       “institut[ing]” a postconviction proceeding, not for continuing to litigate it. (Emphasis added.)
       Id. “[C]ourts should not, under the guise of statutory construction, add requirements or impose
       limitations that are inconsistent with the plain meaning of the enactment.” Nottage v. Jeka, 172
       Ill. 2d 386, 392 (1996). We will not, in the guise of statutory construction, effectively amend
       section 122-1(a) by adding to it a requirement of continued imprisonment as a condition of
       maintaining, as opposed to instituting, a postconviction proceeding. See id. Section 122-1(a)
       states, in plain, unambiguous English, that imprisonment is a condition only for “institut[ing]”
       a postconviction proceeding, not for maintaining it, and any change to that section should be
       made by the legislature, not by us. 725 ILCS 5/122-1(a) (West 2016).
¶ 44        The legislature has, in fact, repeatedly amended section 122-1(a) since 1968, when the
       supreme court decided Davis. Indeed, the legislature also has amended section 122-1(a) since
       2010, when, in Carrera, the supreme court made clear what Davis stood for. See Carrera, 239
       Ill. 2d at 246 (“ ‘imprisoned in the penitentiary’ has been held to include defendants who have
       been released from incarceration after timely filing their petition” (citing Davis, 39 Ill. 2d
       325)). Yet in none of those numerous amendments did the legislature ever see fit to supersede
       Davis and Carrera. “We assume not only that the General Assembly acts with full knowledge
       of previous judicial decisions but also that its silence on an issue in the face of those decisions
       indicates its acquiescence to them.” People v. Way, 2017 IL 120023, ¶ 27.
¶ 45        Therefore, we interpret section 122-1(a), in accordance with its plain terms (Moon v.
       Rhode, 2016 IL 119572, ¶ 22), as meaning merely that when “institut[ing] a [postconviction]
       proceeding,” the defendant must be “imprisoned in the penitentiary” (emphasis added) (725
       ILCS 5/122-1(a) (West 2016)). (The supreme court has interpreted imprisonment as including
       any form of custody, including mandatory supervised release (Carrera, 239 Ill. 2d at 246).)
       Section 122-1(a) has nothing to say about release from imprisonment after the institution of the
       postconviction proceeding, and we decline to judicially amend section 122-1(a) so as to
       address that change of circumstance. See Moon, 2016 IL 119572, ¶ 22 (“Where statutory
       provisions are clear and unambiguous, the plain language as written must be given effect
       without reading into it exceptions, limitations, or conditions that the legislature did not
       express.”).

¶ 46                         2. An Intervening Event That Makes an Issue Moot
¶ 47       The legislature can prescribe conditions for instituting a proceeding for statutory relief, and
       anyone who meets those conditions has statutory standing to bring suit. Wilson, 404 Ill. at 310.
       Even though the plaintiff had standing to bring the suit in the first place, a question that the
       plaintiff raises in the suit can become moot if events subsequent to the institution of the suit
       make it impossible for the court to grant effectual relief to the plaintiff. Wheatley v. Board of
       Education of Township High School District 205, 99 Ill. 2d 481, 484-85 (1984). To put it
       differently, “[a] moot question is one that existed but because of the happening of certain

                                                    -8-
       events has ceased to exist and no longer presents an actual controversy over the interest or
       rights of the party; an abstract question is one in existence but for which no effectual relief can
       be granted.” (Internal quotation marks omitted.) Ahmad v. Board of Election Commissioners,
       2016 IL App (1st) 162811, ¶ 9.
¶ 48       Thus, standing scrutinizes the status of the plaintiff at the time the plaintiff files suit,
       whereas mootness scrutinizes the genuineness of an issue after the filing of the suit. Section
       122-1(a) addresses the petitioner’s standing at the time the petitioner institutes the
       postconviction proceeding; it has nothing to say about events occurring after the institution of
       the proceeding. If we want to determine whether an issue in the postconviction proceeding has
       become moot, the answer is not to be found in section 122-1(a); that section concerns only
       standing to bring suit. Instead, we have to turn to the common-law doctrine of moot issues.
¶ 49       It is a mistake to blur together statutory standing and common-law mootness. As a
       commentator explains:
                    “Mootness cases involving secondary or ‘collateral’ injuries provide another
                example of the difference between standing and mootness analysis. When a plaintiff
                alleges some present injury in addition to the ‘past’ harm sustaining standing, the
                secondary injury may overcome mootness even if it would not have sufficed
                independently to support standing. In lawsuits challenging criminal convictions after
                the challenger’s sentence had been served, the evident injury supporting federal
                standing, the Court has ‘acknowledged the obvious fact of life that most criminal
                convictions do in fact entail adverse *** consequences. The mere “possibility” that this
                will be the case is enough to preserve a criminal case from ending “ignominiously in
                the limbo of mootness.” ’ ” (Emphasis added.) Richard H. Fallon, Jr., Of Justiciability,
                Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U.
                L. Rev. 1, 27-28 (1984) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968), quoting
                Parker v. Ellis, 362 U.S. 574, 577 (1960) (Warren, C.J., dissenting)).
¶ 50       Defendant’s interest “in purging [himself] of the stigma and disabilities which attend a
       criminal conviction” would not have given him standing under section 121-1(a), but after his
       release from custody, that interest prevents his case from being moot. Davis, 39 Ill. 2d at 329.
       The reason is that one of the forms of relief a court may grant in a postconviction proceeding is
       a retrial. 725 ILCS 5/122-6 (West 2016). Despite his release from custody, a retrial still would
       have value for defendant because it would be a way of potentially purging his criminal
       conviction. In that regard, he still has “a sufficient personal stake in the outcome to assure the
       adversarial relationship that sharpens the presentation of issues upon which the court so largely
       depends for illumination of difficult *** questions.” (Internal quotation marks omitted.)
       Peters-Farrell, 216 Ill. 2d at 291. Therefore, we agree with Jones and McDonald and disagree
       with Henderson.

¶ 51                     C. The Reinstatement of the Petition After Its Dismissal
                                         for Lack of Prosecution
¶ 52       Quoting People v. Pace, 386 Ill. App. 3d 1056, 1060-61 (2008) (quoting 725 ILCS 5/122-5
       (West 2006)), the State argues that “asking the court to reinstate the action ‘is the same as
       asking the court to allow “pleading over.” ’ ” The State seems to understand the term “pleading
       over” as meaning, in the context of this case, filing a new petition in a new postconviction
       proceeding. But see Black’s Law Dictionary (10th ed. 2014) (defining “plead over” as “[t]o

                                                    -9-
       fail to notice a defective allegation in an opponent’s pleading before responding to the
       pleading”). The State concludes that “if a court allows reinstatement, a new action
       commences.” In further support of that conclusion, the State cites People v. English, 381 Ill.
       App. 3d 906, 910 (2008), which observed that, under section 13-217 of the Code of Civil
       Procedure (735 ILCS 5/13-217 (West 1994)), the plaintiff “ ‘may commence a new action
       within one year’ ” after a voluntary dismissal—a right the plaintiff likewise would use after a
       dismissal for want of prosecution. (Emphasis added.) Thus, by the State’s reasoning, the
       reinstatement of defendant’s postconviction proceeding commenced a new postconviction
       proceeding, and under section 122-1(a) (725 ILCS 5/122-1(a) (West 2016)), he lacked
       standing because he was no longer in the Department’s custody when the new proceeding
       commenced.
¶ 53        One problem with the State’s reasoning is that defendant never commenced a new action
       under section 13-217. Instead, he obtained a reinstatement of his postconviction petition. See
       Progressive Universal Insurance Co. v. Hallman, 331 Ill. App. 3d 64, 67 (2002) (“Although
       [the] plaintiff simply could have refiled its complaint, moving to vacate the [dismissal without
       prejudice] was a viable option.”). He never filed a new postconviction petition; he obtained a
       reinstatement of his petition—which is another way of saying he obtained a vacatur of the
       dismissal for want of prosecution. As long as the statutory one-year period for refiling (see 735
       ILCS 5/13-217 (West 2016)) was unexpired, the dismissal for want of prosecution was a
       nonfinal order, and the trial court had jurisdiction to vacate it. See Jackson v. Hooker, 397 Ill.
       App. 3d 614, 618 (2010); Hallman, 331 Ill. App. 3d at 68.
¶ 54        Granted, we said in Pace: “Asking the court to reinstate a voluntarily dismissed or
       withdrawn petition is the same as asking the court to allow ‘pleading over’ or to permit the
       ‘filing [of] further pleadings.’ ” Pace, 386 Ill. App. 3d at 1060-61 (quoting 725 ILCS 5/122-5
       (West 2006)). Actually, asking the trial court to reinstate a petition that the court dismissed for
       want of prosecution is the same as asking the court to vacate the dismissal for want of
       prosecution. See Wilson v. Evanston Hospital, 276 Ill. App. 3d 885, 886 (1995); Storcz v.
       O’Donnell, 256 Ill. App. 3d 1064, 1068 (1993). “It is well-settled that vacatur of an order in
       due time leaves the pleadings the same as if the order had never been entered.” Zanzig v.
       H.P.M. Corp., 134 Ill. App. 3d 617, 625 (1985); see also Doe v. Doe, 282 Ill. App. 3d 1078,
       1082 (1996) (“When an order is set aside, it leaves pleadings as if no order had ever been
       entered.”). A return to the status quo ante meant that there was no new postconviction
       proceeding and, hence, no need to reestablish standing.
¶ 55        In sum, defendant had standing under section 122-1(a) because he was in prison when he
       filed his petition for postconviction relief. Any date subsequent to the filing of his petition is
       irrelevant to his standing. His release from custody during the pendency of his petition did not
       make his petition moot. See Carrera, 239 Ill. 2d at 246; Davis, 39 Ill. 2d at 329.

¶ 56                                      III. CONCLUSION
¶ 57       For the foregoing reasons, we reverse the trial court’s judgment, and we remand this case
       for further proceedings consistent with this opinion.

¶ 58      Reversed and remanded.



                                                   - 10 -
