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                               Appellate Court                           Date: 2017.08.17
                                                                         12:51:40 -05'00'




                   People v. Wells, 2017 IL App (1st) 152758



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



District & No.    First District, Third Division
                  Docket No. 1-15-2758



Filed             May 24, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 07-CR-4176; the
Review            Hon. Marguerite A. Quinn, Judge, presiding.



Judgment          Reversed.


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

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                  Sarah L. Simpson, Assistant State’s Attorneys, of counsel), for the
                  People.



Panel             JUSTICE LAVIN delivered the judgment of the court, with opinion.
                  Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the
                  judgment and opinion.
                                              OPINION

¶1       Defendant Crandell (also referred to as Crandall) Wells filed a collateral petition and
     appeal from his 10-year negotiated guilty plea conviction, and this court remanded for
     withdrawal of the plea. The State reinstated certain charges, and following a jury trial,
     defendant was found guilty of aggravated battery of a senior citizen and robbery and was
     sentenced to 15 years in prison. Defendant appeals arguing, among other claims, that the trial
     court erred in denying his motion to dismiss the reinstated charges as time-barred. We reverse.

¶2                                         BACKGROUND
¶3        On January 25, 2007, defendant beat a 65-year-old woman over the head with a BB gun,
     resulting in stitches in four places on her head, and then took her purse. He fled in a black
     Volkswagen but was later stopped by police, who promptly discovered the gun and the
     victim’s purse. Defendant was arrested shortly thereafter, and on February 14, 2007, a grand
     jury indicted defendant on six counts. He was charged with armed robbery, aggravated
     robbery, robbery, aggravated battery of a senior citizen, and two counts of aggravated battery.
¶4        Following an Illinois Supreme Court Rule 402 (eff. July 1, 1997) conference, on June 12,
     2007, defendant entered a negotiated guilty plea to count I, armed robbery with a bludgeon
     (i.e., the BB gun). In exchange, the State entered a nolle prosequi of the remaining charges, and
     defendant was sentenced to the agreed term of 10 years’ imprisonment at 85% based on the
     finding of great bodily harm. A nolle prosequi is the formal record entry by the State denoting
     an unwillingness to prosecute a charge, and while not an acquittal, it leaves the matter in the
     same condition as before the prosecution commenced. People v. Hughes, 2012 IL 112817,
     ¶¶ 22, 23. Thereafter, defendant did not move to withdraw his guilty plea or file a direct appeal.
¶5        Defendant nonetheless filed a pro se postconviction petition (see 725 ILCS 5/122-1 (West
     2008)) arguing he was not admonished during guilty plea proceedings, as required by People v.
     Whitfield, 217 Ill. 2d 177 (2005), regarding the three-year period of mandatory supervised
     release (MSR) to follow his sentence. He requested modification of his sentence to 7 years,
     followed by 3 years’ MSR, to approximate the bargain struck by the parties. On January 24,
     2008, at a hearing on the petition, the trial court acknowledged it failed to admonish defendant
     of the MSR period and granted defendant’s petition. Instead of accepting defendant’s
     requested remedy, the court stated defendant could proceed to trial or accept the offer of 10
     years’ imprisonment at 85%. Defendant, while represented by stand-in counsel, withdrew his
     guilty plea and then entered the same negotiated guilty plea to armed robbery with a bludgeon
     in exchange for 10 years, only this time he was admonished of the 3 years’ MSR. Defendant
     did not move to withdraw his guilty plea or file a direct appeal.
¶6        Following his second guilty plea, on August 20, 2010, defendant filed a petition under
     section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) alleging his
     attorney at the January 2008 plea hearing was ineffective for failing to argue defendant was
     entitled to the remedy of correcting his sentence to 7 years in prison, plus 3 years’ MSR, rather
     than withdrawing his guilty plea. Defendant’s section 2-1401 petition was ultimately
     recharacterized as a postconviction petition and dismissed.
¶7        On appeal from that judgment, defendant argued for the first time that his 10-year sentence
     for armed robbery violated the proportionate penalties clause of the Illinois Constitution (Ill.


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       Const. 1970, art. I, § 11) because it contained the same elements as armed violence, but carried
       a stiffer sentence. This court agreed and declared his armed robbery conviction was void.
       People v. Wells, 2012 IL App (1st) 103757-U, ¶¶ 12, 19; see also People v. Taylor, 2015 IL
       117267, ¶ 15 (a sentence based on a statute that violates the proportionate penalties clause is
       facially unconstitutional and thus void ab initio). As a remedy, defendant asked that we impose
       the maximum sentence for the identical armed violence offense, which was seven years, or
       remand for resentencing on that offense. Wells, 2012 IL App (1st) 103757-U, ¶ 16. The State
       urged upholding defendant’s armed robbery sentence absent an alternative argument as to a
       remedy should we find a proportionate penalties violation. This court found the usual remedies
       available in proportionate penalties cases did not apply in part because this case involved a
       negotiated guilty plea. We held defendant’s proposed remedy was inappropriate since
       defendant had entered into a negotiated guilty plea to armed robbery alone and was not charged
       with armed violence. Id. ¶¶ 16, 23. We noted it is the State’s role to bring charges and plea
       bargain with the defendant should it so choose, and defendant’s remedy essentially violated the
       contract principles involved in negotiated pleas. Accordingly, we held defendant’s guilty plea
       and sentence were void and remanded the matter for withdrawal of the plea and further
       proceedings.
¶8         Defendant’s case was then redocketed. Neither party on appeal disputes that the charges
       were reinstated. According to the trial court, the counts were “alive” again. On November 13,
       2013, following a Rule 402 conference, defendant declined an offer to receive a 10-year
       sentence on a different count.
¶9         Facing a new trial, defendant moved to dismiss the reinstated charges for violating the
       statute of limitations (see 725 ILCS 5/114-1(a)(2) (West 2006); 720 ILCS 5/3-5(b) (West
       2006)) and asked to be released from custody. That section of the Code states that generally “a
       prosecution *** must be commenced within 3 years after the commission of the offense if it is
       a felony.” 720 ILCS 5/3-5(b) (West 2006). The relevant statute defined a “ ‘[p]rosecution’ ” as
       “all legal proceedings by which a person’s liability for an offense is determined, commencing
       with the return of the indictment or the issuance of the information, and including the final
       disposition of the case upon appeal.” 720 ILCS 5/2-16 (West 2006). Defendant argued that the
       remaining five felony charge counts were barred by the three-year limitations period of section
       3-7 of the Code which states that “[t]he period within which a prosecution must be commenced
       does not include any period in which *** [a] prosecution is pending against the defendant for
       the same conduct,” even if the “proceedings thereon are set aside, or are reversed on appeal.”
       720 ILCS 5/3-7(c) (West 2006). Defendant argued that his collateral petition and appeal filed
       after his 2008 guilty plea did not toll the statute of limitations, in that it did not constitute a
       “pending prosecution” under section 3-7. He maintained the statute of limitations expired as of
       June 2010.
¶ 10       The State responded relying principally on People v. McCutcheon, 68 Ill. 2d 101 (1977),
       where our supreme court held that a prosecutor can reinstate charges when a defendant
       withdraws his guilty plea in the circuit court or after a reviewing court vacates the guilty plea
       on direct appeal. Contrary to the defendant’s contention, the court held reinstating charges was
       not barred by double jeopardy. The court wrote:
                   “In short, defendant’s first successful appeal of his guilty plea placed him in the
               position he held prior to the plea or in the position he would have held had he been
               allowed to withdraw his plea. The appellate court’s mandate to plead anew

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               encompassed starting the process over. *** Fairness 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 106-07.
¶ 11       In other words, the nol-prossed charge, which was conditioned on the guilty plea, could be
       revived once that plea was vacated. Id. at 106-08, 112.
¶ 12       Drawing on McCutcheon, the State argued that once an agreement is vacated, even if as a
       result of collateral proceedings, the defendant was in the same position as prior to the guilty
       plea, and the prosecution should be allowed to reinstate previously dismissed charges. In
       addition, citing section 3-7, the State essentially argued that defendant’s second guilty plea was
       “set aside” after a successful collateral attack, and as such, “the prosecution is still pending
       thereby tolling the statute of limitations.” The State argued that as a result, it was permitted to
       reinstate the previously nol-prossed charges.
¶ 13       Following a hearing and argument, defendant’s motion to dismiss was denied. The matter
       then proceeded to a jury trial, where the victim, police, and witnesses at the scene testified for
       the State. The victim, a neighbor, and another individual near the scene all separately identified
       defendant from a lineup as the robber running with a purse. At the police station, defendant
       confessed to the crime, stating he did not mean to hurt the victim, but she should have given
       him the purse, and that he did it to buy drugs. Defendant testified on his own behalf, denying
       the crime and blaming it on his relative. The jury found defendant guilty, and he was sentenced
       to 15 years in prison with credit for time served. This appeal followed.

¶ 14                                            ANALYSIS
¶ 15       Defendant first contends the trial court erred in denying his pretrial motion to dismiss
       where the State reinstated the previously nol-prossed charges against him even though it was
       patently outside the statute of limitations. The State responds that the criminal charges were
       originally filed within a month of the 2007 offense, thus providing no basis for a statute of
       limitations violation. The State relies once again on McCutcheon in arguing that after remand
       in 2012, the parties were returned to the status quo ante, as before the guilty plea proceedings,
       and this permitted reinstatement of the nol-prossed charges.
¶ 16       After the parties filed their briefs with this court, the supreme court issued People v.
       Shinaul, 2017 IL 120162, which we find controlling. In Shinaul, the defendant was charged on
       April 8, 2009, within months after his February arrest.1 On June 2, 2009, the defendant entered
       a negotiated guilty plea to one count of aggravated unlawful use of a weapon (AUUW). In
       exchange, the State nol-prossed the eight remaining charges, and the defendant was sentenced
       to 24 months’ probation. The defendant served and completed the full term of his sentence. Id.
       ¶ 1. The limitations period expired in April 2012.
¶ 17       Some four years after his guilty plea conviction, in 2013, the defendant filed a section
       2-1401 petition seeking to vacate his conviction as void under People v. Aguilar, 2013 IL
       112116, which held that the class of AUUW to which the defendant was sentenced was facially
       unconstitutional and void ab initio. The State conceded the conviction should be vacated under

           1
            Section 3-5 of the Code requires the prosecution to be commenced within three years after the
       “commission of the offense” if it is a felony. 720 ILCS 5/3-5(b) (West 2006). We presume by
       identifying defendant’s arrest date, the court in Shinaul was also identifying the date he committed the
       offense.

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       Aguilar, given that defendant essentially pled guilty to something that was never a crime, but
       the State then sought to reinstate certain previously nol-prossed AUUW counts. The defendant
       argued the nol-prossed charges were time-barred. Shinaul, 2017 IL 120162, ¶¶ 2-3.
¶ 18        The issue before the supreme court was “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.” Id. ¶ 13. The court noted that typically
       when a circuit court vacates and sets aside a judgment, the prior judgment is eliminated and the
       case thereby returns to its status before the judgment was made. Citing its earlier decision in
       People v. Hughes, 2012 IL 112817, ¶ 25, the court noted the State may request reinstatement of
       nol-prossed charges unless a defendant raises applicable constitutional or statutory limitations.
       Shinaul, 2017 IL 120162, ¶ 15. The court held the defendant in Shinaul had done just that, and
       under those unique circumstances, the State was precluded from reinstating the nol-prossed
       charges because they were time-barred under section 3-5. The court wrote, “the State cites no
       authority, and we find none, for the proposition that the Criminal Code of 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 with a plea agreement.” Id. ¶ 16.
¶ 19        In Shinaul, the State similarly argued that the “prosecution” was still “pending” and hence
       the limitations period had not expired because the defendant’s case had never reached a final
       disposition on appeal. Id. The Shinaul court essentially found this position to be contrary to the
       plain language of section 3-5 and the intent of a limitations period, which is to avoid the use of
       stale evidence while providing incentive for swift governmental action. Id. ¶ 17. Accordingly,
       the Shinaul court held section 3-5 served as an absolute bar to the State’s motion to reinstate
       charges. Id. ¶ 18.
¶ 20        Here, as in Shinaul, the State sought to reinstate charges that were previously nol-prossed
       pursuant to a negotiated guilty plea, which was later held void, but by the time the State sought
       reinstatement, the limitations period on the only live count underlying the guilty plea had
       expired. The following elucidates these facts. In this case, the State charged defendant about a
       month later on February 23, 2007, within the three-year limitations period as required under
       section 3-5 of the statute. See 720 ILCS 5/3-5 (West 2006); see also People v. Herndon, 105
       Ill. App. 3d 167, 169 (1982) (noting the date the indictment is filed marks the commencement
       of the felony prosecution and stops the running of the statute of limitations). The prosecution
       of defendant thus commenced on February 23, 2007, and remained pending until June 12,
       2007, when defendant entered into the negotiated guilty plea whereby the State agreed to
       nol-pros the remaining charges. Defendant neither withdrew his guilty plea nor filed a direct
       appeal, and 30 days thereafter, the three-year statute of limitations clock began to run again
       (having already run for about a month between when defendant committed the crime and was
       then indicted). Following his guilty plea conviction, there was no “pending prosecution” to toll
       the running of the limitations period. See 720 ILCS 5/3-7(c) (West 2006) (“[t]he period within
       which a prosecution must be commenced does not include any period in which *** [a]
       prosecution is pending against the defendant for the same conduct”). In other words, at that
       time, there were no legal proceedings by which defendant’s liability for his offense was being
       determined. See 720 ILCS 5/2-16 (West 2006) (a “ ‘[p]rosecution’ ” is “all legal proceedings
       by which a person’s liability for an offense is determined, commencing with the return of the



                                                   -5-
       indictment or the issuance of the information, and including the final disposition of the case
       upon appeal”).
¶ 21        Nonetheless, on January 24, 2008, defendant’s postconviction petition was granted, and he
       withdrew his guilty plea only to plead again in the same manner. We read the running
       limitations period as having been suspended or tolled on this date because there was a
       prosecution pending against defendant for the same conduct. See 720 ILCS 5/3-7(c) (West
       2006). That is, the State was once again determining defendant’s liability because his petition
       had resulted in the first guilty plea being “set aside.” See id. (the tolling period applies where
       “[a] prosecution is pending against the defendant for the same conduct,” even if the
       “proceedings thereon are set aside, or are reversed on appeal” (emphasis added)); see also
       Swalley v. People, 116 Ill. 247, 250 (1886) (“To ‘set aside’ is very broad in scope,—‘to defeat
       the effect or operation of ;’ and we think it may well be held to embrace here every other mode
       of defeat of the proceedings on an indictment, than quashing it and reversal on error.”).
       Defendant again did not move to withdraw the January 24, 2008, guilty plea or appeal
       therefrom, and the prosecution ceased 30 days thereafter.
¶ 22        At that time, the three-year statute of limitations clock started again, and several years later
       in June 2010, the limitations period expired. In short, starting in June 2007, the three-year
       limitations period began to run, and in June 2010, it expired. The State has not provided any
       detailed or reasoned factual analysis contradicting the June 2010 expiration date. See People v.
       Gray, 396 Ill. App. 3d 216, 227 (2009) (finding, when a defendant challenges the statute of
       limitations in a pretrial motion, the State must prove tolling of the limitations period).
¶ 23        Defendant filed his collateral petition in September 2010 and thereafter appealed it. We
       ordered his plea to be vacated in 2012. As stated, by that time, the statute of limitations period
       had already expired. The State rather generally argues that after our 2012 decision, the parties
       were returned to the status quo ante, as before the plea proceedings. While this is normally the
       case, as in Shinaul, “the State cites no authority, and we find none, for the proposition” that
       statute of limitations begins to run again and is thus revived when “a defendant successfully
       has his conviction vacated after the period of limitations has expired on the original charges
       that were dismissed in accordance with a plea agreement.” Shinaul, 2017 IL 120162, ¶ 16.
¶ 24        We finally note that the application of the limitations statute is an affirmative defense that
       can be waived. People v. Williams, 79 Ill. App. 3d 806, 808 (1979); see also People v. Lutter,
       2015 IL App (2d) 140139, ¶ 19 (noting, the expiration of the statute of limitations is a defense
       that may or may not be raised by a defendant). Here, defendant filed a written motion to
       dismiss the charges for violating the statute of limitations after they were reinstated and before
       trial. See 725 ILCS 5/114-1(a)(2) (West 2006). Defendant thus did not waive the limitations
       defense, and he identified a statutory ground precluding reinstatement of the charges in this
       case. See Hughes, 2012 IL 112817, ¶ 23 (“if a nolle prosequi is entered before jeopardy
       attaches, the State may reprosecute the defendant subject to other relevant statutory or
       constitutional defenses” (emphasis added)).
¶ 25        Based on the foregoing, we need not consider defendant’s remaining arguments.

¶ 26                                       CONCLUSION
¶ 27      Defendant’s motion to dismiss is granted, and the judgment of the circuit court is reversed.
       Defendant is released from the physical and legal custody of the Department of Corrections.
       Notwithstanding the result reached in this case, we note that defendant has served the prison

                                                     -6-
       time contemplated in his January 24, 2008, guilty plea of 10 years at 85%.

¶ 28      Reversed.




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