2016 IL App (1st) 142130
FIRST DIVISION
JUNE 20, 2016
No. 1-14-2130
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County.
)
v. ) No. 05 CR 26780
)
RONALD DANIELS, ) Honorable
) Joseph G. Kazmierski,
Petitioner-Appellant. ) Judge Presiding.
PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 Defendant Ronald Daniels was arrested on a city bus after Chicago police officers
investigated a call reporting that an individual on that bus was carrying a weapon. Defendant was
charged with six counts of aggravated unlawful use of a weapon (AUUW) and two counts of
unlawful use of a weapon by a felon (UUWF). Defendant pled guilty to one charge of AUUW
(720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) in exchange for a six-year prison sentence, and
the State nolle prosequied the remaining seven counts. After he completed his sentence,
defendant filed a petition to vacate his conviction, which was denied. On appeal, defendant
contends the trial court erred in denying his petition because section 24-1.6(a)(1), (a)(3)(B) of the
Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) was found
facially unconstitutional in People v. Aguilar, 2013 IL 112116. The State agrees with defendant’s
position on that issue, and asks this court to remand this cause to the trial court to reinstate six of
1-14-2130
the seven nolle prosequied charges against defendant. For the following reasons, we vacate
defendant’s conviction and deny the State’s request.
¶2 BACKGROUND
¶3 Defendant was charged with six counts of AUUW (pursuant to various combinations of
provisions of the AUUW statute, 720 ILCS 5/24-1.6 (West 2004)) and two counts of UUWF
(720 ILCS 5/24-1.1(a) (West 2004)). On March 13, 2006, defendant pled guilty to count I:
AUUW pursuant to section 24-1.6(a)(1), (a)(3)(B) of the Code (720 ILCS 5/24-1.6(a)(1),
(a)(3)(B) (West 2004)). At that hearing, the parties stipulated that, had this case gone to trial,
evidence would have been presented establishing the following facts: at approximately 1 a.m. on
November 6, 2005, Chicago police officers received a call informing them that a passenger on a
southbound bus at 3258 South State Street was carrying a gun. A description of the passenger
was provided to the police. The officers traveled to that location, curbed the bus, and boarded it.
Defendant, who matched the description which had been provided to the officers, was sitting in
the middle of the bus. The officers conducted a pat down of defendant and recovered an
unloaded .38-caliber blue steel revolver and four live .38-caliber rounds in the weapon’s case.
Additionally, prior to these events, defendant had been convicted of the offense of delivery of a
controlled substance.
¶4 Based on the foregoing, the trial court found a factual basis for defendant’s guilty plea as
to count I and entered judgment against him pursuant to subsection (a)(3)(B). The court also
noted that because of defendant’s prior felony conviction, this offense was a Class 2 felony. For
the purposes of sentencing, the State provided evidence of defendant’s two prior convictions for
offenses classified as Class 2 felonies or greater, and defendant was sentenced as a Class X
-2-
1-14-2130
offender to six years’ imprisonment. The State nolle prosequied the remaining seven counts
against defendant.
¶5 After completing his sentence, on January 2, 2014, defendant filed a petition in the circuit
court of Cook County pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-
1401 (West 2012)) seeking to vacate his conviction. 1 In his petition, defendant claimed that
under People v. Aguilar, 2013 IL 112116, section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute
(720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is unconstitutional and void ab initio, and
therefore his conviction must be vacated. In response to defendant’s petition, the State argued
that Aguilar was limited in scope and did not hold void the AUUW provisions which prohibit the
carrying of firearms by individuals previously convicted of felony offenses. In support, the State
relied on People v. Burns, 2013 IL App (1st) 120929, rev’d, 2015 IL 117387, in which the
appellate court found only the Class 4 version of the AUUW offense to be unconstitutional under
Aguilar, while the Class 2 version of the offense remained enforceable. Burns, 2013 IL App (1st)
120929, ¶ 24. On March 11, 2014, defendant’s petition to vacate his conviction was denied and
the trial court subsequently denied his motion to reconsider its denial. This timely appeal
followed, accordingly, this court has jurisdiction to resolve this matter.
1
Defendant titled this filing “Motion to Vacate the Conviction of Aggravated Unlawful Use
of a Weapon.” All subsequent filings by both parties before the trial court and before this court
on appeal refer to it as defendant’s “motion.” Despite making no prior reference to the statutory
authority for the filing of his “motion,” defendant refers to the filing as a “section 2-1401
petition” for the first time in his reply brief. Agreeing with this characterization, we interpret
defendant’s January 2, 2014 filing to be a petition pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2012)), and we will refer to it accordingly. We
further note that at no point did the State ever challenge defendant’s ability to file this “motion,”
and the State’s response brief on appeal refers to defendant’s challenge to his conviction as a
“collateral proceeding,” which suggests that their own understanding of defendant’s “motion” is
consistent with our interpretation.
-3-
1-14-2130
¶6 ANALYSIS
¶7 The sole issue defendant raises on appeal is whether his conviction pursuant to subsection
(a)(3)(B) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) must be vacated because the statute
is unconstitutional and void ab initio. Defendant argues that subsection (a)(3)(B), like subsection
(a)(3)(A), which was found facially unconstitutional in People v. Aguilar, 2013 IL 112116,
creates a “blanket ban on possessing ready-to-use firearms outside the home” and is likewise
unconstitutional because it violates the right to keep and bear arms, as guaranteed by the second
amendment of the United States Constitution (U.S. Const., amend. II). A facially
unconstitutional statute is void ab initio, which means that it is unenforceable and inoperative as
though it had never been passed. People v. Blair, 2013 IL 114122, ¶ 28. Defendant argues that
his conviction under a facially unconstitutional statute is invalid and must be vacated. See People
v. Campbell, 2013 IL App (4th) 120635, ¶¶ 14-16.
¶8 Shortly after defendant filed his opening brief on appeal, our supreme court filed People
v. Burns, 2015 IL 117387, in which it held that section 24-1.6(d) of the Code (720 ILCS 5/24-
1.6(d) (West 2008)), the sentencing provision of the AUUW statute, did not create “separate and
distinct offenses” depending on whether the charge is classified as a Class 4 felony or a Class 2
felony. Burns, 2015 IL 117387, ¶¶ 22-24. The court stated that it had “improperly placed limiting
language” on its holding in Aguilar, and clarified that subsection (a)(3)(A) is facially
unconstitutional, without limitation. Id. ¶ 25. In accordance with our supreme court’s decision in
Burns, the State concedes that defendant’s conviction pursuant to subsection (a)(3)(B) must be
vacated.
¶9 Although Aguilar finds only subsection (a)(3)(A) to be facially unconstitutional, the
parties are in agreement that the underlying rationale extends to defendant’s conviction under
-4-
1-14-2130
subsection (a)(3)(B). Subsection (a)(3)(A) prohibits the possession of an uncased firearm that is
“loaded and immediately accessible,” whereas subsection (a)(3)(B) prohibits the possession of an
uncased firearm that is “unloaded and the ammunition for the weapon [is] immediately
accessible.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A)-(B) (West 2004). A conclusion that subsection
(a)(3)(B) is valid would illogically prohibit the possession of an unloaded gun in the same
situation where, under Aguilar, the possession of a loaded gun is constitutionally protected. We
believe the second amendment’s protection of an individual’s right to carry a loaded firearm
naturally extends to protect an individual’s right to carry an unloaded firearm with immediately
accessible ammunition. Accordingly, we find subsection (a)(3)(B) constitutionally invalid based
on Aguilar.
¶ 10 A conviction pursuant to a facially unconstitutional statute must be vacated. See People
v. Henderson, 2013 IL App (1st) 113294, ¶ 11 (vacating the defendant’s conviction based on a
statutory section invalidated under Aguilar). Accordingly, defendant’s conviction pursuant to
subsection (a)(3)(B) is vacated.
¶ 11 As defendant’s sole conviction is now vacated, the State asks this court to “remand this
case to the circuit court to permit the [State] to reinstate the nolle prosequied counts that are still
constitutional and therefore valid.” The State argues that because it nolle prosequied those
charges pursuant to the plea agreement between defendant and the State, principles of contract
law require that the State be afforded the opportunity to reinstate those charges due to the
subsequent vacatur of defendant’s conviction. It is the State’s position that reinstating the nolle
prosequied charges would not infringe upon defendant’s constitutional rights against double
jeopardy and there are no other constitutional or statutory limitations which would preclude the
prosecution of defendant on those charges.
-5-
1-14-2130
¶ 12 A nolle prosequi is the “formal entry of record by the prosecuting attorney by which he
declares that he is unwilling to prosecute a case” and serves to terminate the charge against the
defendant. People v. DeBlieck, 181 Ill. App. 3d 600, 603 (1989). It operates “like a nonsuit or
discontinuance in a civil suit, and leaves the matter in the same condition in which it was before
the commencement of the prosecution.” People v. Watson, 394 Ill. 177, 179 (1946). As it is not a
final disposition of a case, a nolle prosequi will not bar another prosecution for the same offense.
Id. Subject to relevant statutory or constitutional defenses, the State may reprosecute the
defendant on a previously nolle prosequied charge absent a showing of harassment, bad faith, or
fundamental unfairness. People v. Hughes, 2012 IL 112817, ¶ 23 (citing Ferguson v. City of
Chicago, 213 Ill. 2d 94, 102 (2004), and People v. Norris, 214 Ill. 2d 92, 104 (2005)).
¶ 13 However, where the prosecuting attorney “ ‘causes the entrance of an unconditional nolle
prosequi ***, the proceeding is terminated, and the same indictment cannot be reinstated at a
subsequent term and prosecution thereon resumed.’ ” (Emphasis added.) DeBlieck, 181 Ill. App.
3d at 605 (quoting Watson, 394 Ill. at 182). Instead, the State may reinstate a nolle prosequied
charge by moving the trial court to vacate the nolle prosequi order, or it may file a new charging
instrument to initiate a separate proceeding against the defendant. See Hughes, 2012 IL 112817,
¶¶ 23-25; DeBlieck, 181 Ill. App. 3d at 604-05. The DeBlieck court explained and distinguished
these two methods of recharging a defendant with a charge previously nolle prosequied, noting
that where the nolle prosequi order is not vacated, the charge cannot simply be “reinstated”
because there is no charge to reinstate. DeBlieck, 181 Ill. App. 3d at 605-06. Similarly, Hughes
confirmed the validity of both methods so long as the State moves to vacate the nolle prosequi
order or files a new charging instrument before jeopardy attaches. Hughes, 2012 IL 112817,
¶¶ 23-25. The record here shows the State did not follow either of the procedures as explained in
-6-
1-14-2130
those cases: the State did not move for the trial court to vacate the nolle prosequi order, nor did
the State file a new charging instrument to initiate a separate proceeding against defendant. The
State having taken no such action at the trial court level, there is no decision by the trial court for
us to review, and we decline to offer an advisory opinion on the matter.
¶ 14 We find guidance in People v. Dunmore, 2013 IL App (1st) 121170. That case presented
a similar situation in which the defendant pled guilty and was convicted of one count of AUUW,
and the State nolle prosequied the remaining counts against him. Dunmore, 2013 IL App (1st)
121170, ¶ 3. During the pendency of the defendant’s appeal of his sentence, our supreme court
issued its ruling in Aguilar, which invalidated the section of the AUUW statute under which the
defendant had been convicted. Id. ¶ 7. In their supplemental briefs, the defendant and the State
both agreed that the defendant’s conviction should be vacated; the State further asked the court
to remand the case to the trial court for the reinstatement of the nolle prosequied charges. Id. The
Dunmore court vacated the conviction but declined to address whether the State was entitled to
reinstate the nolle prosequied charges. Id. ¶¶ 12-13. It found that because the State had “not yet
had the opportunity to take action on the nol-prossed charges,” addressing them would
essentially amount to “decid[ing] abstract questions or render[ing] advisory opinions” because
the procedural matter of reinstating the charges against the defendant was, at that point, only
hypothetical. Id. We find the reasoning used in Dunmore to be instructive and persuasive. We
note, however, that there is a procedural difference between the two cases. Dunmore addressed
the issue on direct appeal, whereas the present case involves the appeal of a denial of defendant’s
section 2-1401 petition. This difference only provides further support for our conclusion that this
court lacks the power to grant the State the relief it seeks, specifically the reinstatement of the
-7-
1-14-2130
previously nolle prosequied counts against defendant. Those charges are part of an altogether
separate proceeding from the matter before us.
¶ 15 The present case is solely related to defendant’s section 2-1401 petition seeking relief
from a void judgment. Contrary to the State’s assertion, this appeal does not signify that
“prosecution is still pending.” It is well established that a section 2-1401 proceeding is “not a
continuation of the case that resulted in the judgment that it challenges” but is an altogether new
proceeding. People v. Kane, 2013 IL App (2d) 110594, ¶ 13. In this case, the original criminal
proceeding terminated after defendant entered his guilty plea and was convicted of count I, the
State nolle prosequied the remaining charges and the parties did not appeal. See People v.
Shinaul, 2015 IL App (1st) 140477, ¶ 13, appeal allowed, No. 120162 (Ill. Jan. 20, 2016). This
present appeal that is before us concerns only the trial court’s March 11, 2014 denial of
defendant’s section 2-1401 petition (and subsequent denial of defendant’s motion to reconsider).
That section 2-1401 petition was directed only at defendant’s conviction under count I, while the
remaining counts with which he was originally charged were nolle prosequied. It is count I
which we now vacate. Therefore, any issues related to the nolle prosequied counts are not
properly before us. Accordingly, this court does not have jurisdiction to grant the State’s request
or address the substantive issues it implicates.
¶ 16 Another case recently decided in this district, People v. Shinaul, 2015 IL App (1st)
140477, appeal allowed, No. 120162 (Ill. Jan. 20, 2016), also supports our finding that this court
lacks the power to provide the State with its requested relief. As in Dunmore and the present
case, the defendant in Shinaul pled guilty to one count of AUUW pursuant to a negotiated plea
agreement whereby the State nolle prosequied the remaining counts. Shinaul, 2015 IL App (1st)
140477, ¶ 4. After the Aguilar decision was issued, the defendant in Shinaul filed a section 2-
-8-
1-14-2130
1401 petition to vacate his conviction, and his petition was granted by the trial court. Id. ¶ 7. The
trial court then denied the State’s motion for reinstatement of the nolle prosequied charges and,
in contrast to the present case, it was the denial of that motion (and the subsequent motion to
reconsider) that the State appealed. Id. The Shinaul court found that it lacked jurisdiction to hear
the State’s appeal or determine whether the State could commence a new proceeding or refile the
same charges against the defendant. Id. ¶¶ 14-15. As “there was no pending criminal proceeding
before the trial court in [that] case,” the court found that the trial court’s dispositive orders in the
section 2-1401 proceeding did not have the “substantive effect of dismissing any charges against
defendant.” Id. ¶¶ 13-14. “[T]he sole matter before the [trial] court was defendant’s section 2-
1401 petition for relief from a void judgment.” Id. ¶ 13; Shinaul, 2015 IL App (1st) 140477, ¶ 18
(Pierce, J., specially concurring) (finding that because the original proceeding had previously
terminated and the defendant filed a section 2-1401 petition, “the trial court had jurisdiction to
consider only whether the judgment of conviction was valid”). Similarly, the present case is not a
continuation of defendant’s criminal proceeding in which the State chose to nolle prosequi all
charges against defendant except count I. We reiterate that this appeal concerns solely his section
2-1401 petition to vacate his conviction pursuant to a facially unconstitutional statute. Thus, even
if the State had asked the trial court to reinstate the nolle prosequied charges, as it did in Shinaul,
that would not vest this court with the authority to grant the State’s request that we reinstate the
previously nolle prosequied counts.
¶ 17 The decisions cited by the State are unpersuasive because they involve defendants who
had already been tried on charges that were originally nolle prosequied but later reinstated during
the criminal proceedings. See, e.g., People v. Hughes, 2012 IL 112817; People v. Norris, 214 Ill.
2d 92 (2005); People v. McCutcheon, 68 Ill. 2d 101 (1977); People v. Cabrera, 402 Ill. App. 3d
-9-
1-14-2130
440 (2010); see also People v. Gorka, 374 Ill. App. 3d 85 (2007) (after a successful procedure-
related appeal, defendant withdrawing his guilty plea and his subsequent jury trial on the same
charges did not violate the double jeopardy clause). In this case, by contrast, no action by the
State regarding the reinstatement of the previously nolle prosequied counts has been ruled on by
the trial court. Accordingly, a review of the trial court’s decision on any such action by the State
is not before us. “The function of a reviewing court is limited to review of issues decided by the
trial court and cannot be extended to issues not passed upon at trial.” In re Estate of Devey, 239
Ill. App. 3d 630, 633 (1993). “We do not review cases merely to guide future litigation or to set
precedent.” In re Appointment of Special Prosecutor, 253 Ill. App. 3d 218, 224 (1993).
¶ 18 Accordingly, we deny the State’s request to remand this cause to the trial court for the
expressed purpose of reinstatement of the nolle prosequied charges.
¶ 19 For the foregoing reasons, we vacate defendant’s conviction.
¶ 20 Vacated.
- 10 -