People v. Coe

FILED
December 6, 2018
2018 IL App (4th) 170359 Carla Bender
4th District Appellate
NO. 4-17-0359 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
ANDREW COE, ) No. 06CF219
Defendant-Appellant. )
) Honorable
) Robert L. Freitag,
) Judge Presiding.

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.

-2­
¶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.

¶ 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

-3­
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.

-4­
¶ 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.

-5­
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 “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

-6­
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

-7­
 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]

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

-8­
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,

-9­
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 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.

- 10 ­
¶ 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,

- 11 ­
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.

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

- 12 ­
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.”).

- 13 ­
¶ 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 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

- 14 ­
 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.

- 15 ­
¶ 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 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

- 16 ­
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.

- 17 ­