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                                  Supreme Court                              Date: 2018.01.16
                                                                             12:01:08 -06'00'




                          People v. Shinaul, 2017 IL 120162




Caption in Supreme   PEOPLE OF THE STATE OF                   ILLINOIS,     Appellant,        v.
Court:               CORNELIUS SHINAUL, Appellee.



Docket No.           120162



Filed                February 17, 2017



Decision Under       Appeal from the Appellate Court for the First District, heard in that
Review               court on appeal from the Circuit Court of Cook County, the Hon.
                     Thomas M. Davy, Judge, presiding.



Judgment             Appellate court judgment reversed.
                     Circuit court judgment affirmed.


Counsel on           Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal               State’s Attorney, of Chicago (Alan J. Spellberg and John E. Nowak,
                     Assistant State’s Attorneys, of counsel), for the People.

                     Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy
                     Defender, and S. Amanda Ingram, Assistant Appellate Defender, of
                     the Office of the State Appellate Defender, of Chicago, for appellee.
     Justices                   CHIEF JUSTICE KARMEIER delivered the judgment of the court,
                                with opinion.
                                Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in
                                the judgment and opinion.
                                Justice Theis dissented, with opinion.



                                                  OPINION

¶1          Defendant Cornelius Shinaul, who was 17 years old at the time, was arrested on February
       9, 2009, for various firearm possession offenses. On April 8, 2009, he was charged with nine
       felony counts—eight aggravated unlawful use of a weapon (AUUW) counts and one unlawful
       possession of a firearm count. Following a Rule 402 conference (Ill. S. Ct. R. 402 (eff. July 1,
       1997)) on June 2, 2009, defendant, as part of a negotiated plea agreement, pled guilty to count
       I of the information (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) in exchange for the State
       agreeing to a nolle prosequi on the remaining charges. The Cook County circuit court accepted
       the guilty plea and sentenced defendant to 24 months’ probation based on the Class 4 felony
       offense of AUUW. 720 ILCS 5/24-1.6(d)(2) (West 2008). Pursuant to the agreement, the
       remaining counts against defendant were nol-prossed by the State. Defendant served and
       completed the full term of his sentence.
¶2          On October 28, 2013, defendant brought a petition for relief under section 2-1401 of the
       Code of Civil Procedure (735 ILCS 5/2-1401 (West 2012)), seeking to vacate the conviction
       on the basis that it was void under this court’s decision in People v. Aguilar, 2013 IL 112116,
       ¶ 21, which held that the Class 4 form of AUUW set forth in section 24-1.6(a)(1), (a)(3)(A), (d)
       was facially unconstitutional. Conceding that defendant’s conviction should be vacated in light
       of Aguilar, the State filed a motion to reinstate certain AUUW counts that were previously
       nol-prossed.
¶3          The circuit court held a hearing on both defendant’s petition and the State’s motion. At no
       time did defendant challenge whether the State could bring its motion in this proceeding.
       Rather, defendant argued that the nol-prossed charges were time-barred. Addressing the
       parties’ arguments, the circuit court agreed that Aguilar voided defendant’s conviction and that
       defendant could withdraw his guilty plea.1 In the circuit court’s detailed analysis, the court
       also denied the State’s motion on the basis that reinstatement of the charges would violate the
       one-act, one-crime doctrine. Following the conclusion of the hearing on the parties’ motions,
       the circuit court entered a written order consistent with its oral pronouncement. The State,
       thereafter, filed a motion to reconsider in the circuit court, citing People v. Hughes, 2012 IL
       112817, and People v. McCutcheon, 68 Ill. 2d 101 (1977), for the proposition that the
       previously nol-prossed charges against defendant should be reinstated because (1) the charges
       were dismissed before jeopardy attached and (2) there were no constitutional or statutory
       limitations precluding the prosecution of defendant on those charges. The circuit court denied
       the State’s motion to reconsider, and the State timely appealed.

           1
            The circuit court’s order allowing defendant to withdraw his guilty plea was unnecessary under the
       circumstances because defendant’s conviction was vacated.

                                                      -2-
¶4       The appellate court determined it lacked jurisdiction to consider the State’s appeal. 2015 IL
     App (1st) 140477, ¶ 9. In dismissing the appeal, the appellate court rejected the State’s
     argument that Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013), which permits the
     State to appeal any order that has the substantive effect of dismissing a charge, confers
     appellate jurisdiction. 2015 IL App (1st) 140477, ¶ 9. Justice Pierce specially concurred in the
     judgment, writing to emphasize that, because defendant filed a section 2-1401 petition to
     vacate his conviction, the circuit court had jurisdiction to consider only whether the judgment
     of conviction was valid and that the portion of the circuit court’s order stating “[d]efendant’s
     guilty plea to count one is withdrawn” was surplusage because under the terms of Illinois
     Supreme Court Rule 605(b), the circuit court lacked jurisdiction to allow defendant to
     withdraw his plea. (Internal quotation marks omitted.) Id. ¶ 18 (Pierce, J., specially
     concurring).
¶5       The State filed a petition for rehearing, arguing that even if the appellate court lacked
     jurisdiction under Rule 604(a)(1), it had jurisdiction pursuant to Illinois Supreme Court Rule
     304(b)(3) (eff. Feb. 26, 2010), which allows appellate review of “[a] judgment or order
     granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of
     Civil Procedure.” 2015 IL App (1st) 140477, ¶ 20. Upon the denial of rehearing, the appellate
     court modified its opinion and rejected the State’s contention that it was not appealing an order
     granting or denying a section 2-1401 petition but, rather, it was appealing an order denying its
     motion to reinstate charges. Id. The appellate court reasoned that “[t]he mere fact that two
     separate orders—one appealable and one nonappealable—are contained in the same document
     does not automatically render each order independently appealable.” Id. We allowed the
     State’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015).

¶6                                            ANALYSIS
¶7       The threshold question to be resolved in this case is whether the appellate court erred in
     dismissing the State’s appeal for lack of jurisdiction. For the same reasons determined by the
     appellate court, defendant urges affirmance of the appellate court’s dismissal on the basis that
     the circuit court’s order was nonappealable. The State first argues that the order from which it
     is appealing is a final and appealable judgment as a matter of right under article VI, section 6,
     of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), because the issues between the
     parties were fully resolved when the circuit court addressed all of the pending issues in a single
     written order. Even if the circuit court’s order denying the State’s motion to reinstate the
     nol-prossed counts could not be appealed as of right, the State claims that the appellate court
     had jurisdiction to entertain the appeal under Illinois Supreme Court Rule 304(b)(3) (eff. Feb.
     26, 2010), which allows for appeals from a judgment or order granting or denying any of the
     relief requested in a section 2-1401 petition. For the following reasons, we find that the
     appellate court had jurisdiction to review the circuit court’s order.
¶8       Whether the appellate court has jurisdiction to consider an appeal presents a question of
     law, which we review de novo. People v. Salem, 2016 IL 118693, ¶ 11. A civil remedy that
     extends to criminal cases, section 2-1401 of the Code of Civil Procedure outlines a
     comprehensive, statutory procedure by which final orders and judgments may be vacated by
     the circuit court more than 30 days following their entry. 735 ILCS 5/2-1401 (West 2012);
     People v. Vincent, 226 Ill. 2d 1, 7 (2007). A section 2-1401 proceeding is a new and separate


                                                 -3-
       cause of action that is subject to the usual rules of civil procedure. Price v. Philip Morris, Inc.,
       2015 IL 117687, ¶ 23 (citing Vincent, 226 Ill. 2d at 7).
¶9         It is undisputed that defendant’s section 2-1401 petition correctly asserted that his
       conviction as part of the negotiated plea should be vacated in light of this court’s decision in
       People v. Aguilar, 2013 IL 112116. Further, the State properly filed its motion to reinstate the
       prior nol-prossed charges by proceeding under this court’s alternative method of reinstating
       once nol-prossed charges.2 See People v. Hughes, 2012 IL 112817, ¶¶ 24-25 (identifying two
       mechanisms by which the State can reinstate once nol-prossed charges: the State may file a
       new information or indictment, or the State can alternatively move to vacate the nolle prosequi
       and reinstate the original charges). The question, then, is whether the circuit court’s denial of
       the State’s motion was a final and appealable order.
¶ 10       Article VI, section 6, of the Illinois Constitution confers on the appellate court jurisdiction
       to hear appeals from all final judgments entered by the circuit court. Ill. Const. 1970, art. VI,
       § 6. It is well settled 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.” Hernandez v. Pritikin, 2012 IL 113054, ¶ 47. In other words, a
       judgment or order is considered final and appealable if it determines the litigation on the merits
       such that the only thing remaining is to proceed with execution of judgment. In re Michael D.,
       2015 IL 119178, ¶ 13; Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221,
       233 (2005). Accordingly, only an order which leaves the cause still pending and undecided is
       not a final order for purposes of appeal.
¶ 11       In this case, 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 as part of that negotiated plea agreement. The State filed its motion in defendant’s
       section 2-1401 proceeding in response to defendant initiating proceedings to vacate a
       conviction bargained for in the negotiated plea agreement. See Ostendorf v. International
       Harvester Co., 89 Ill. 2d 273, 279-80 (1982) (section 2-1401 petitions are essentially
       complaints inviting responsive pleadings). Similar to a counterclaim, the State’s motion was
       conditioned upon defendant’s success in vacating his conviction. If the circuit court denied
       defendant’s section 2-1401 petition, the State would have no need to reinstate the prior
       dismissed charges. In fact, the State would have been barred from doing so because such action
       would constitute a breach of the plea agreement. Santobello v. New York, 404 U.S. 257, 262
       (1971); People v. Whitfield, 217 Ill. 2d 177, 189 (2005). Once the circuit court granted the
       relief sought in defendant’s petition, the condition on which the State’s motion was dependent
       was triggered, and the merits of the State’s motion became pertinent to the outcome of the
       judgment. When the circuit court ultimately denied the State’s motion on the basis that
       reinstatement of the nol-prossed charges would violate the one-act, one-crime doctrine, a final
       decision on the State’s motion was entered.
¶ 12       Generally, if an order merely strikes a complaint or a count of a complaint but grants leave
       to amend, or dismisses less than all the parties or issues, it is not an appealable final order.

           Although the State’s motion to have the nol-prossed charges reinstated did not contain a request to
           2

       vacate the dismissal of the charges, we find that such request is implicitly included in the State’s
       motion.

                                                      -4-
       Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 25; Doner v. Phoenix Joint Stock Land
       Bank of Kansas City, 381 Ill. 106, 110 (1942). That is not the case here. To the contrary, there
       is no dispute that the circuit court’s order leaves no cause pending or undecided, nor does the
       order merely strike the State’s motion but grant leave to amend, nor does the order dismiss less
       than all the parties or issues. Rather, the order granted defendant’s motion to vacate his
       conviction and denied the motion to reinstate the nol-prossed charges on the merits. Once the
       circuit judge resolved all the pending issues in its written order, the matter terminated—on the
       merits—between the parties, thereby allowing the State to seek review, as of right, of the
       circuit court’s ruling.
¶ 13        Because this court has determined that the appellate court had jurisdiction under article VI,
       section 6, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 6), this court does not need to
       determine whether Rule 304(b)(3) likewise confers appellate jurisdiction. Since the record and
       the briefs fully address the issue not reached by the appellate court, in the interest of judicial
       economy, we have elected to proceed to the merits of this appeal. See Krasnow v. Bender, 78
       Ill. 2d 42, 47 (1979) (finding it appropriate to consider the merits of an issue not addressed by
       the appellate court because the parties fully briefed the issue). That issue is whether, following
       a successful collateral attack on a conviction, the State is entitled to reinstatement of the
       charges that were nol-prossed as part of the plea agreement entered into with defendant.
¶ 14        In this case, defendant attacked his conviction under the plea agreement because the
       offense to which he pled guilty was declared unconstitutional and void ab initio by this court in
       Aguilar. In light of Aguilar’s holding, defendant correctly notes that he essentially pled guilty
       to something that was never a crime. See People v. Mosley, 2015 IL 115872, ¶ 55 (holding that
       subsection (a)(3)(A) of the AUUW statute was void from its beginning). To receive relief from
       his void conviction, defendant properly understood that the only way to vacate a conviction
       after a judgment has been entered on a guilty plea is to hold that the plea was defective and that
       his conviction should be vacated through the filing of a section 2-1401 petition. People v.
       McFadden, 2016 IL 117424, ¶¶ 20, 31-32. When a circuit court vacates and sets aside a
       judgment, as it has done here, the prior judgment is eliminated, and the case thereby returns to
       its status before the judgment was made. People v. Evans, 174 Ill. 2d 320, 332 (1996). In many
       circumstances, this will leave a case in a procedural posture such that it requires further
       proceedings. For the reasons stated below, however, the facts of this case prevent
       reinstatement of the nol-prossed charges.
¶ 15        This court has held that absent “any applicable constitutional or statutory limitations which
       a defendant may raise,” the State may request the court to reinstate once nol-prossed charges.
       Hughes, 2012 IL 112817, ¶ 25. Here, defendant repeats his circuit court argument that even if
       the plea agreement is no longer enforceable, the criminal statute of limitations (720 ILCS 5/3-5
       (West 2012)) constitutes an absolute bar against reinstating the nol-prossed charges since the
       State’s motion was filed beyond the three-year statute of limitations period.
¶ 16        Although the criminal statute of limitations is subject to tolling (see People v. Coleman,
       206 Ill. 2d 261, 290 (2002) (fraudulent concealment may toll the statute of limitations if certain
       elements are met)), the State cites no authority, and we find none, for the proposition that the
       Criminal Code of 2012 (Code) (720 ILCS 5/1-1 et seq. (West 2012)) permits the tolling of the
       statute of limitations, when, as here, a defendant successfully has his conviction vacated after
       the period of limitations has expired on the original charges that were dismissed in accordance


                                                     -5-
       with a plea agreement. The State argues, however, that under the corresponding section of the
       Code that sets forth periods excluded from the statute of limitations (720 ILCS 5/3-7 (West
       2012)), the “prosecution” against defendant was still pending and has yet to expire for the
       purpose of the limitations period because defendant’s case never had a final disposition on
       appeal. Under the State’s theory, fairness demands that the statute of limitations be tolled in
       perpetuity when charges are dismissed pursuant to a plea agreement. The State’s argument is
       based on this court’s application of contract principles when considering the enforceability of
       plea agreements. See People v. Donelson, 2013 IL 113603, ¶ 18 (recognizing an analogy
       between the principles of contract law and the interpretation of plea agreements); In re Derrico
       G., 2014 IL 114463, ¶ 99 (“[T]he enforceability of plea agreements is not a one-sided affair as
       the other half of the contractual equation is the benefit of the bargain accruing to the State.”
       (Internal quotation marks omitted.)); People v. Whitfield, 217 Ill. 2d 177, 190 (2005) (where a
       defendant enters a negotiated plea of guilty in exchange for specified benefits, “both the State
       and the defendant must be bound by the terms of the agreement” (emphasis in original)).
       Indeed, defendant’s successful section 2-1401 petition has upset what the State reasonably
       understood to be a final disposition of a criminal matter, eliminating any reason to suspect that
       it still had to protect the societal interest in prosecuting defendant. However, we are not
       persuaded by the State’s tolling argument.
¶ 17       The criminal statute of limitations serves two primary purposes: to avoid the use of stale
       evidence and to provide an incentive for swift governmental action in criminal cases. United
       States v. Ewell, 383 U.S. 116, 122 (1966); People v. Strait, 72 Ill. 2d 503, 506 (1978).
       Limitations are “designed to protect individuals from having to defend themselves against
       charges when the basic facts may have become obscured by the passage of time and to
       minimize the danger of official punishment because of acts in the far-distant past.” Toussie v.
       United States, 397 U.S. 112, 114-15 (1970). Such statutes “represent legislative assessments of
       relative interests of the State and the defendant in administering and receiving justice.” United
       States v. Marion, 404 U.S. 307, 322 (1971). Since protection of the defendant is a primary
       purpose of the statute of limitations in criminal cases, the statute must be liberally construed to
       protect the interests of the defendant. People v. Ross, 325 Ill. 417, 421 (1927). Absent express
       language in the statute providing an exception, we will not depart from the plain language and
       read into the statute exceptions, limitations, or conditions that the legislature did not express.
       Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 15. As stated, there is no provision
       in the Code that permits the tolling of the statute of limitations in the circumstances before this
       court. While the statute of limitations may benefit some wrongdoers (Ross, 325 Ill. at 421-22),
       we decline to create a prophylactic rule or read into the statute of limitations a nonexistent
       exception in order to benefit the State. To do so would be precisely contrary to the central
       purpose of the statute of limitations and inconsistent with this court’s general principles of
       statutory interpretation.
¶ 18       The State, in effect, argues that denying reinstatement of the nol-prossed charges after the
       statute of limitations has expired could have a chilling effect on the plea bargaining process, in
       that the State may be fearful of nol-prossing charges in light of the possibility that the
       conviction under a statute later declared unconstitutional may be vacated. Notwithstanding that
       concern, we recognize that prosecutors in other jurisdictions have contracted with defendants
       to avoid the statute of limitations defense. See United States v. Levine, 658 F.2d 113, 120-21
       (3d Cir. 1981) (citing cases for the proposition that a defendant can knowingly and intelligently

                                                    -6-
       waive the statute of limitations, thus sanctioning a later indictment that, absent such a waiver,
       would be untimely); United States v. Meeker, 701 F.2d 685, 688 (7th Cir. 1983) (“The
       purposes of a time bar are not offended by a knowing and voluntary waiver of the defense by
       the defendant.”); see also United States v. Podde, 105 F.3d 813, 821 (2d Cir. 1997). Without
       expressing a view on whether such waivers would be valid, we note that the State does not
       advance a waiver claim before this court. Accordingly, we find that the statute of limitations
       serves as an absolute bar to the State’s motion to reinstate the charges it nol-prossed.

¶ 19                                          CONCLUSION
¶ 20      For the reasons given, we reverse the judgment of the appellate court and affirm the
       judgment of the circuit court, albeit for different reasons.

¶ 21      Appellate court judgment reversed.
¶ 22      Circuit court judgment affirmed.

¶ 23       JUSTICE THEIS, dissenting:
¶ 24       I disagree with the majority’s holding that the statute of limitations serves as an absolute
       bar to the State’s motion to reinstate the charges it nol-prossed as part of a negotiated plea
       agreement. Today’s holding allows defendants to circumvent negotiated plea agreements
       without any consequences to their voluntary choices and without ensuring the protection of the
       public. The result reached is not compelled by law and is contrary to the contract principles that
       guide our analysis. For these reasons, I respectfully dissent.

¶ 25                                        BACKGROUND
¶ 26       On April 8, 2009, defendant was charged with eight counts of aggravated unlawful use of a
       weapon (AUUW) and one count of unlawful possession of a firearm. Specifically, he was
       charged with knowingly carrying a firearm on his person or alternatively possessing the
       firearm on a public street, when the firearm was uncased, loaded, and immediately accessible
       (counts I and V) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(2), (a)(3)(A) (West 2008));
       knowingly carrying a firearm on his person or alternatively possessing the firearm on a public
       street, without having been issued a currently valid Firearm Owners Identification Card
       (FOID) (counts II and VI) (720 ILCS 5/24-1.6(a)(1), (a)(3)(C); (a)(2), (a)(3)(C) (West 2008));
       knowingly carrying a firearm on his person or alternatively possessing the firearm on a public
       street and being a member of a street gang or engaged in street gang related activity (counts III
       and VII) (720 ILCS 5/24-1.6(a)(1), (a)(3)(F); (a)(2), (a)(3)(F) (West 2008)); knowingly
       carrying a handgun on his person or alternatively possessing a handgun on a public street and
       being under 21 years of age (counts IV and VIII) (720 ILCS 5/24-1.6(a)(1), (a)(3)(I); (a)(2),
       (a)(3)(I) (West 2008)); and being under 18 years of age and having in his possession a firearm
       of a size which may be concealed upon the person (count IX) (720 ILCS 5/24-3.1(a)(1) (West
       2008)). As the majority notes, at the time of his arrest, defendant was 17 years old.
¶ 27       In June 2009, pursuant to a fully negotiated plea agreement, defendant was convicted on
       count I of the information for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)), a
       Class 4 felony. In exchange for his plea, the State agreed to enter a nolle prosequi on the
       remaining eight counts, and defendant was placed on probation for a period of two years. At

                                                   -7-
       that time, defendant was admonished of his appeal rights pursuant to Illinois Supreme Court
       Rule 605 (eff. Oct. 1, 2001). The court explained that defendant had the right to challenge his
       conviction and sentence on appeal but that in order to do so he would need to timely file a
       motion to withdraw his plea. He was admonished that if the motion to withdraw was allowed,
       the case would be set for trial and the State could reinstate the other counts that were dismissed.
¶ 28       In October 2013, after having completed his probation, defendant filed a petition for relief
       from judgment under section 2-1401, seeking to vacate his conviction and withdraw his guilty
       plea on the basis that the statute under which he was convicted was facially unconstitutional
       and void under this court’s decision in People v. Aguilar, 2013 IL 112116. In response to the
       petition, the State conceded that defendant had the constitutional right to have his conviction
       vacated but moved to reinstate the other eight felony charges that had been previously
       nol-prossed as part of the negotiated plea agreement. In support, it relied in part on People v.
       McCutcheon, 68 Ill. 2d 101 (1977), where this court held that “[f]airness for the interests of the
       People demands that the State not be bound by a plea agreement, once a condition of that
       agreement (the guilty plea) is no longer valid.” Id. at 107.
¶ 29       At the hearing, in addressing whether the State could reinstate the nol-prossed charges,
       defendant argued, without articulating any basis or citing any authority, that the nol-prossed
       charges should be time-barred and were also unconstitutional under the second amendment.
       Without considering either of these arguments, the circuit court instead found that allowing the
       State to reinstate the nol-prossed charges would violate the one-act, one-crime doctrine. The
       appellate court dismissed the appeal, finding that it lacked appellate jurisdiction. Thus, at no
       point in the lower court proceedings has the issue of whether the statute of limitations bars the
       State’s reinstatement of the nol-prossed charges ever been considered.

¶ 30                                             ANALYSIS
¶ 31       In considering the issue for the first time in this court, the majority holds that the statute of
       limitations prevents the State from prosecuting the charges it dismissed as part of a negotiated
       plea agreement. In support of its holding, it relies on the fact that the State cited no authority,
       and the court found none, that would permit the tolling of the statute of limitations under these
       facts. Supra ¶ 16.
¶ 32       I disagree with the analytical approach taken by the majority because it entirely fails to
       consider the effect of defendant’s actions on the continued viability of the plea agreement. By
       skipping over an important step in the analysis, the majority arrives at an erroneous conclusion.
       The issue in this case is whether, after a defendant exercises his right to vacate his
       bargained-for conviction because the offense to which he pleaded was void from its inception,
       the State may then reinstate charges that were dismissed pursuant to that negotiated plea
       agreement. More specifically, we must determine whether the State’s obligation to dismiss
       certain charges under the negotiated plea agreement was discharged when defendant prevailed
       in vacating his conviction.
¶ 33       The State argues that, under these circumstances, requiring it to keep its part of the bargain
       flies in the face of principles of contract law where defendant’s actions essentially frustrated
       the purpose of the agreement, leading to an “unexpected windfall to defendant.” Accordingly,
       it maintains that once defendant’s conviction was vacated and he no longer had a felony



                                                     -8-
       conviction on his record, the State was no longer bound to the plea agreement and was entitled
       to reinstate the other eight constitutionally valid charges it had originally brought.
¶ 34       Although this court has not had prior occasion to answer the question squarely presented in
       this appeal, we have consistently recognized that when interpreting negotiated plea
       agreements, we apply contract analysis. People v. Donelson, 2013 IL 113603; In re Derrico
       G., 2014 IL 114463. This court has discussed the fact that when a defendant enters a negotiated
       plea in exchange for specific benefits, both the State and the defendant must be bound by the
       terms of the agreement. People v. Evans, 174 Ill. 2d 320, 327 (1996). Neither side should be
       able to unilaterally renege or seek modification “ ‘simply because of uninduced mistake or
       change of mind.’ ” Id. (quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)).
       Thus, we have held that it would be inconsistent with constitutional concerns of fundamental
       fairness to allow a defendant to hold the State to its part of the bargain while unilaterally
       modifying a part of the agreement. Id. We have further recognized that “the State is much less
       likely to enter into plea negotiations if it realizes its decision to dismiss [charges under a plea
       agreement] is irrevocable while the defendant’s decision to plead is revocable.” McCutcheon,
       68 Ill. 2d at 107.
¶ 35       We have not considered, however, what, if any, remedy applies under contract principles
       when, through no fault of either party, an unforeseeable intervening event destroys the basis of
       the contract and creates a situation where performance by one party no longer gives the other
       party what induced it to enter into the contract. Under a similar scenario, the Tenth Circuit in
       United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998), applied the frustration of purpose
       doctrine.
¶ 36       The frustration of purpose doctrine provides as follows:
                    “Where, after a contract is made, a party’s principal purpose is substantially
                frustrated without his fault by the occurrence of an event the non-occurrence of which
                was a basic assumption on which the contract was made, his remaining duties to render
                performance are discharged, unless the language or the circumstances indicate the
                contrary.” Restatement (Second) of Contracts § 265 (1981).
       The doctrine requires that the frustrated purpose “be so completely the basis of the contract
       that, as both parties understand, without it the transaction would make little sense.”
       Restatement (Second) of Contracts § 265 cmt. a (1981). Additionally, the frustration “must be
       so severe that it is not fairly to be regarded as within the risks that [the party seeking rescission]
       assumed under the contract.” Id. Lastly, “the non-occurrence of the frustrating event must have
       been a basic assumption on which the contract was made.” Id.
¶ 37       Applying these principles here, a basic assumption underlying the plea agreement was that
       defendant would have a constitutionally valid felony conviction on his record to protect the
       public. Otherwise, the transaction would make no sense. Secondly, an intervening change in
       the law several years later, which rendered the conviction void, completely undermined the
       basis for the plea agreement and was a risk neither party could have foreseen. Any benefit the
       parties thought they were getting was illusory because the bargain was illegal. Indeed, the
       circuit court could not have entered judgment on the plea because it was an unenforceable plea
       agreement. Although defendant did not technically violate any explicit term of the plea
       agreement, by choosing to vacate his conviction, he in essence unilaterally modified the
       agreement and destroyed the basis of the State’s bargain.


                                                     -9-
¶ 38       As the Bunner court explained, once the underlying purpose of the agreement was
       frustrated and the basis of the State’s bargain destroyed, the State’s remedy was to either
       (1) “perform according to the letter of the plea agreement” or (2) “seek discharge of its duties”
       and return the parties to the positions they occupied before defendant entered his negotiated
       guilty plea. Bunner, 134 F.3d at 1005. In this case, the State is seeking the latter remedy.
       Accordingly, I would hold that under the frustration of purpose doctrine, when defendant
       chose to vacate his conviction, the State was then discharged of its obligation under the plea
       agreement to dismiss the other eight charges, restoring the parties to the positions they held
       prior to the entry of the plea and prior to the dismissal of the nol-prossed charges.
¶ 39       Under this construct, upon restoration of the status quo ante, the statute of limitations does
       not bar the State from prosecuting the charges that had been nol-prossed under the plea
       agreement. The majority’s reliance on Hughes, 2012 IL 112817, to conclude otherwise is
       misplaced. Supra ¶ 9. In Hughes, the defendant was charged with numerous sexual offenses.
       Prior to trial, the circuit court granted the State leave to enter a nolle prosequi on several counts
       of the indictment. The State’s decision to nolle those counts was not part of a plea bargain.
       Based on the remaining pending charges, the State instituted civil commitment proceedings,
       and after a trial, defendant was declared a sexually dangerous person. Upon a reversal on
       appeal, the State sought to proceed again with the criminal prosecution and entered into a plea
       agreement with defendant on one of the charges that the State had nol-prossed. Hughes, 2012
       IL 112817, ¶¶ 5-7. We explained that when the State nol-prosses a charge, it leaves the matter
       “in the same condition as before the prosecution commenced” and, therefore, does not toll the
       statute of limitations. Id. ¶ 23. Thus, generally, based on Hughes, the State cannot refile or
       reinstate a nol-prossed charge after the statute of limitations has run where the defendant has
       asserted a challenge on that basis.
¶ 40       Nevertheless, as distinct from the State’s unilateral nolle in Hughes, in this case, the State’s
       obligation to nolle was a condition of a negotiated plea agreement, which was discharged. See
       McCutcheon, 68 Ill. 2d at 112 (recognizing the distinction between a dismissal that was
       conditioned on a plea agreement and a dismissal that is unconditional). When the State
       unilaterally dismisses a charge, it leaves the matter in the same position as before the
       prosecution commenced, where the statute of limitations was running. Here, when the State’s
       obligation to dismiss under the plea agreement is discharged, the parties are restored to the
       position they held after the charges were filed but prior to the entry of the plea agreement. At
       that point in time, the statute of limitations had not expired. Consequently, defendant cannot
       now claim that the statute of limitations has run.
¶ 41       Restoring the parties to the same position they held after the charges were filed and before
       the plea agreement was entered does not frustrate the purpose of the limitations period under
       these circumstances. To hold otherwise would allow defendant to escape the consequences of a
       felony conviction and circumvent the underlying purpose of the bargain without allowing the
       State to rescind its part of the bargain. Rather, when defendant successfully challenged his
       conviction, the bargain became defective. The parties should be treated no differently than had
       defendant been allowed to withdraw his plea. In that case, we would have held defendant was
       on notice that if the plea was withdrawn or challenged on appeal, the State was entitled to
       reinstate the charges. See Ill. S. Ct. R. 605 (eff. Oct. 1, 2001). Here, merely because defendant
       had the right to challenge his bargained-for conviction by a collateral attack, he should not


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       receive more than the “benefit of his bargain,” and the State should not be prevented from
       receiving all that it bargained for.
¶ 42       I would further reject defendant’s assumption that restoring him to the status quo ante is
       impossible because he has served his two-year probation under the agreement. Defendant’s
       argument is premature and unwarranted where he would be entitled to full credit for time
       served on his vacated conviction. Additionally, defendant’s claim of prosecutorial
       vindictiveness lacks merit. This is not a case where the State is seeking to add charges or file
       more serious charges after a defendant has successfully challenged his conviction. “There is no
       appearance of retaliation when a defendant is placed in the same position as he was in before
       he accepted the plea bargain.” United States v. Anderson, 514 F.2d 583, 588 (7th Cir. 1975).

¶ 43                                          CONCLUSION
¶ 44      I would hold that under contract principles the State was entitled to reinstate the eight
       charges that had been nol-prossed under the negotiated plea agreement after defendant
       prevailed on his petition to vacate his conviction. Accordingly, I respectfully dissent.




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