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Appellate Court Date: 2019.02.20
10:55:05 -06'00'
People v. Coe, 2018 IL App (4th) 170359
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANDREW COE, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-17-0359
Filed December 6, 2018
Decision Under Appeal from the Circuit Court of McLean County, No. 06-CF-219; the
Review Hon. Robert L. Freitag, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Patricia Mysza, and Darrel F. Oman, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and James Ryan Williams, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CAVANAGH delivered the judgment of the court, with
opinion.
Justices Steigmann and Knecht concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Andrew Coe, petitioned for postconviction relief. While his case awaited an
evidentiary hearing, he completed his sentence, and consequently, the McLean County circuit
court dismissed his petition as moot. Defendant appeals. In our de novo review (see Benz v.
Department of Children & Family Services, 2015 IL App (1st) 130414, ¶ 31), we conclude
that, despite his release from custody, defendant still has a personal stake in the outcome of this
postconviction proceeding, a stake sufficient to prevent his case from being moot (see In re
Marriage of Peters-Farrell, 216 Ill. 2d 287, 291 (2005)). Therefore, we reverse the judgment,
and we remand this case for further proceedings.
¶2 I. BACKGROUND
¶3 Defendant filed his petition in January 2009. At that time, he was serving a sentence of 12
years’ imprisonment for unlawfully delivering a controlled substance within 1000 feet of a
school (720 ILCS 570/407(b)(1) (West 2006)). He sought postconviction relief from that
judgment for several reasons, including his trial counsel’s alleged failure to call alibi witnesses
in the jury trial.
¶4 After appointing postconviction counsel and hearing testimony, the trial court denied the
petition. Defendant appealed.
¶5 For two reasons, we reversed the judgment and remanded the case for a new evidentiary
hearing (People v. Coe, 2013 IL App (4th) 110459-U, ¶ 88): (1) the court erroneously believed
it lacked discretion to replace the postconviction counsel with new counsel, as defendant had
requested (id. ¶ 1), and (2) in deciding to deny the petition for postconviction relief, the court
considered extrajudicial information, namely, the postconviction counsel’s performance in
other cases (id.).
¶6 On remand, defendant filed motions for continuances as he attempted to obtain private
counsel, and the trial court granted the motions. On June 25, 2014, the court granted
defendant’s sixth motion for a continuance, rescheduling the postconviction proceeding until
September 2, 2014.
¶7 On September 2, 2014, defendant failed to appear, and the State moved to dismiss the
postconviction petition for want of prosecution. The trial court granted the motion.
¶8 On October 6, 2014, defendant filed a motion that the trial court (1) deny the State’s
motion for dismissal for want of prosecution (although, actually, the court already had granted
it) and (2) appoint postconviction counsel. The proof of service stated that defendant had
placed his motion “in the institutional mail of Stateville Correctional Center” on September 30,
2014.
¶9 On November 28, 2016, the trial court held a hearing “on the defendant’s motion to ***
reinstate the first amended petition for post-conviction relief,” as the court construed the
motion. Defendant now was represented by appointed postconviction counsel, who argued that
defendant’s motion to reinstate his petition was timely under the mailbox rule.
¶ 10 The prosecutor disagreed but argued that, in any event, the postconviction petition was
moot because defendant had served his prison sentence and his mandatory supervised release
had expired.
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¶ 11 The trial court responded that the present hearing was merely for the purpose of deciding
whether defendant’s motion for reinstatement was timely. (Also, defense counsel said he
needed time to research the question of mootness.) The court decided that the motion was
timely under the mailbox rule because defendant had placed the motion in the institutional mail
on September 30, 2014, within 30 days after the dismissal. So, the court scheduled defendant’s
motion for reinstatement to be heard on January 13, 2015.
¶ 12 That hearing was rescheduled to May 2, 2017, and in that hearing, the State filed a motion
to dismiss the postconviction petition as moot. The prosecutor told the trial court he had given
a copy of the motion to defense counsel the day before. The motion argued that because
defendant had completely served his sentence, including the term of mandatory supervised
release, he now lacked standing under section 122-1(a) of the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1(a) (West 2016) (“Any person imprisoned in the penitentiary may
institute a proceeding under this Article ***.” (Emphasis added.)).
¶ 13 Before taking up the issue of mootness, the trial court heard testimony from defendant
regarding his motion to reinstate his postconviction petition. He explained that on September
26, 2014, he was scheduled to appear in another matter and that he mistakenly believed that his
postconviction petition was to be heard on that date instead of on September 2, 2014. In other
words, he confused the court dates. After hearing defendant’s explanation, the court found that
defendant was negligent in missing the hearing of September 2, 2014. Because defendant,
however, had filed a motion for reinstatement within 30 days after the dismissal and because
the petition had enough potential merit to be in the third stage of the postconviction
proceeding, the court decided to grant defendant’s motion to reinstate his postconviction
petition.
¶ 14 The trial court then heard arguments on the State’s motion to dismiss the (reinstated)
petition on lack of standing. The court took judicial notice that defendant was discharged from
mandatory supervised release on September 4, 2015, as stated in a notification from the Illinois
Department of Corrections (Department). Because defendant no longer was suffering any
deprivation of liberty as a result of his conviction of unlawful delivery of a controlled
substance within 1000 feet of a school, the court concluded, on the authority of People v.
Henderson, 2011 IL App (1st) 090923, that his petition for postconviction relief had become
moot. The court acknowledged the arguably contrary authority of People v. Davis, 39 Ill. 2d
325 (1968), but because that case was “old” and because it established “less than a bright-line
rule,” the court chose to follow Henderson. Accordingly, the court granted the State’s motion
to dismiss the petition for postconviction relief.
¶ 15 This appeal followed.
¶ 16 II. ANALYSIS
¶ 17 We decide de novo whether defendant’s discharge from the Department’s custody renders
moot a petition for postconviction relief that he filed while still in custody. See Benz, 2015 IL
App (1st) 130414, ¶ 31 (“Whether a claim is moot is an issue we review de novo on appeal.”).
We will begin by discussing the case law that addresses that issue.
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¶ 18 A. The Case Law
¶ 19 1. Davis, as Interpreted by Carrera
¶ 20 In Davis, the defendant filed a petition for postconviction relief, and apparently he was in
prison at the time of the filing. Davis, 39 Ill. 2d at 327. The trial court appointed counsel to
represent him, but by the time the case was heard, almost two years later, the defendant no
longer was in prison. Id. (The delay between the filing of the petition and the convening of the
hearing was not the defendant’s fault. Id.) Nevertheless, the court went ahead and heard
testimony (id. at 327-28), after which the court denied postconviction relief (id. at 326).
¶ 21 The supreme court granted the defendant leave to appeal. Id. On appeal, the State argued
that, regardless of the evidentiary merits of the petition, it deserved to be dismissed “because
[the defendant] was not incarcerated at the time the cause was heard.” Id. at 328. The State
relied on the wording of section 122-1 (id. at 328-29), which, like the present version of section
122-1(a) (725 ILCS 5/122-1(a) (West 2016)), made imprisonment a condition of “institut[ing]
a proceeding under this Article.” Ill. Rev. Stat. 1965, ch. 38, § 122-1. The statute read: “Any
person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his
conviction there was a substantial denial of his [constitutional] rights *** may institute a
proceeding under this Article.” Id. The supreme court rejected the State’s interpretation of
section 122-1 and gave the following explanation for doing so:
“As there are obvious advantages in purging oneself of the stigma and disabilities
which attend a criminal conviction, we see no reason to so narrowly construe this
remedial statute as to preclude the remedy in every case in which the petition is not
filed and the hearing completed before imprisonment ends.” (Emphasis added.) Davis,
39 Ill. 2d at 329.
Because that sentence is rather vaguely hedged, we can understand why the trial court in the
present case would regard Davis as establishing “less than a bright-line rule.” What does “not
in every case” mean? Davis does not explain in what cases the remedy would and would not be
precluded if imprisonment ended before the petition was filed or the hearing was held.
¶ 22 Later, however, in People v. Carrera, 239 Ill. 2d 241, 246 (2010), the supreme court
provided definitive clarification, interpreting Davis as follows: “ ‘imprisoned in the
penitentiary’ has been held to include defendants who have been released from incarceration
after timely filing their petition (People v. Davis, 39 Ill. 2d 325 (1968)).” Thus, according to
the supreme court, being imprisoned at the time one files the petition is enough to satisfy
section 122-1(a), and section 122-1(a) remains satisfied even if, during the pendency of the
postconviction proceeding, one is released from prison. See id. (citing Davis, 39 Ill. 2d 325).
¶ 23 2. Henderson
¶ 24 In Henderson, the defendant filed a postconviction petition while he was imprisoned
(Henderson, 2011 IL App (1st) 090923, ¶ 5); the trial court summarily dismissed the petition
(id.); he appealed (id. ¶ 1); and while his appeal was pending, he was discharged from
mandatory supervised release (id. ¶ 8). “Because [the] defendant’s liberty [was] no longer
encumbered by his convictions,” the First District felt obliged to “consider whether the parties’
contentions under the Act ha[d] been rendered moot.” Id.
¶ 25 The First District concluded that the parties’ contentions had indeed become moot and that
the defendant had “lost standing under the Act.” Id. ¶ 15. The reason was that the defendant
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“no longer need[ed] the Act’s assistance to secure his liberty.” Id. The First District cited
Carrera, among other authorities, for the following proposition: “A remedy under the Act is
only available to persons who are actually being deprived of their liberty, not persons who
have completely served their sentences and merely wish to purge their criminal records of past
convictions.” Id. ¶ 10 (citing Carrera, 239 Ill. 2d at 257).
¶ 26 The trouble with relying on Carrera for that unqualified proposition is that Carrera says
with apparent approval: “ ‘[I]mprisoned in the penitentiary’ has been held [in Davis] to include
defendants who have been released from incarceration after timely filing their petition ***.”
Carrera, 239 Ill. 2d at 246. It is true that such defendants—those who filed their petition while
incarcerated but who were released from custody while their petition was still awaiting final
determination—no longer would be “persons who are actually being deprived of their liberty.”
Henderson, 2011 IL App (1st) 090923, ¶ 10. Even so, according to Carrera’s interpretation of
Davis, such defendants nevertheless would satisfy the condition in section 122-1(a) of being
“imprisoned in the penitentiary” and, thus, could continue pursuing relief under the Act.
(Internal quotation marks omitted.) Carrera, 239 Ill. 2d at 246.
¶ 27 Henderson appears to overlook that authoritative interpretation in Carrera when
Henderson says:
“We find no meaningful distinction to be drawn between instances where the
defendant’s liberty is not encumbered when he files the petition and those instances in
which a defendant regains his liberty after the petition is filed. The purpose of the Act
would not be fulfilled by giving either defendant relief. He is no longer on that string
and the State cannot affect his liberty at present.
Here, [the] defendant has completed his *** term [of mandatory supervised
release] and, thus, no longer needs the Act’s assistance to secure his liberty.
Accordingly, defendant has lost standing under the Act, a defect that cannot be cured.
Even if we were to remand this cause for further proceedings, the trial court would be
obligated to deny defendant relief at the second stage due to this defect. As a result, the
parties’ arguments under the Act have become moot.” Henderson, 2011 IL App (1st)
090923, ¶¶ 14-15.
Davis, as interpreted by Carrera, would lead to a different conclusion.
¶ 28 Another problem with the quoted passage from Henderson is the conflation of statutory
standing and the common-law prohibition against deciding moot issues—a misstep that we
will discuss later in this opinion.
¶ 29 3. Jones
¶ 30 In People v. Jones, 2012 IL App (1st) 093180, ¶¶ 3-4, a different division of the First
District disagreed with Henderson that a defendant lost standing and that the postconviction
petition became moot if the Department released the defendant from custody while the
postconviction proceeding was pending or was on appeal.
¶ 31 Jones gave three reasons for disagreeing with Henderson. First, before deciding that a
postconviction petition had become moot, the appellate court should give the defendant an
opportunity to be heard on that question. Id. ¶ 7. Second, postconviction petitions were
frequently subject to “delays not found in other categories of cases before they receive[d] final
review.” Id. ¶ 8. Third, in Davis and Carrera, the supreme court “made clear that all that [was]
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required [was] that a [defendant] *** still [had to] be serving any sentence imposed, including
any period of mandatory supervised release, at the time of the initial timely filing of his
petition.” Id. ¶ 10.
¶ 32 4. McDonald
¶ 33 In People v. McDonald, 2018 IL App (3d) 150507, ¶ 5, the defendant complained, in his
postconviction petition, that before he entered negotiated guilty pleas, no one informed him
that, as a convicted sex offender who was indigent, he would have to serve his term of
mandatory supervised release in prison. After hearing evidence, the trial court denied the
petition. Id. ¶ 11. The defendant appealed. Id. ¶ 1.
¶ 34 The Third District noted that during the pendency of the appeal, the Department released
the defendant from custody and his term of mandatory supervised release ended. Id. ¶ 14.
Consequently, it was necessary to “consider whether defendant would have standing to
continue to pursue his constitutional claims” if his case were remanded for a new evidentiary
hearing, as he requested. Id. ¶¶ 14, 16. The Third District framed the issue as one of statutory
construction: whether the phrase “imprisoned in the penitentiary” in section 122-1(a) (725
ILCS 5/122-1(a) (West 2014)) was “a limitation only upon the filing of a postconviction
petition or a limitation upon the receipt of relief under the Act.” (Emphases in original.)
McDonald, 2018 IL App (3d) 150507, ¶ 18. In other words, did a defendant have to “be in
custody at the time relief would be granted in order to be eligible for that relief”? Id.
Reasonable arguments could be made on both sides of that question.
¶ 35 On the one hand, the supreme court repeatedly had used language “casting the custody
requirement in terms of relief” (id. ¶ 20), even though the cases in which the supreme court had
used such language were not factually on point: that is, they were not cases like Davis, in
which the defendant filed a postconviction petition while in custody and was released from
custody while the petition still was pending. But the relief under discussion in these cases was
always the restoration of liberty. In People v. Dale, 406 Ill. 238, 246 (1950), for example, the
supreme court stated that the legislature intended “ ‘to make the remedy available only to
persons actually being deprived of their liberty and not to persons who had served their
sentences and who might wish to purge their records of past convictions.’ ” (Emphasis in
original.) McDonald, 2018 IL App (3d) 150507, ¶ 20 (quoting Dale, 406 Ill. at 246). Or to take
another example, the supreme court stated in People v. Martin-Trigona, 111 Ill. 2d 295, 301
(1986): “ ‘Relief is available under the Act all persons whose liberty is constrained by virtue of
a criminal conviction ***.’ ” (Emphases in original.) McDonald, 2018 IL App (3d) 150507,
¶ 21 (quoting Martin-Trigona, 111 Ill. 2d at 301). Or for yet another example, the supreme
court stated in People v. Pack, 224 Ill. 2d 144, 150 (2007): “ ‘A review of the history of the Act
and our construction of the term “imprisoned” reveals that courts in this state have always held
a defendant’s liberty interest to be paramount when construing the Act.’ ” McDonald, 2018 IL
App (3d) 150507, ¶ 21 (quoting Pack, 224 Ill. 2d at 150).
¶ 36 Given that liberty was the paramount interest in the Act, the Third District in McDonald
had reservations whether forging ahead with the postconviction proceeding would be
consistent with the legislative intent. After all, “should [the] defendant ultimately prevail on
his petition and be allowed to withdraw his plea, the State would be free to retry him. Rather
than secure his release from custody, [the] defendant may be utilizing the Act to return to
custody.” Id. ¶ 21 n.2. It seemed to the Third District that this legislative concern with liberty
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was a weighty consideration against holding that the defendant had continued “standing”
under the Act. See id. ¶ 21.
¶ 37 On the other hand, though, the Third District had to reckon with Davis, the lone binding
precedent that was, in its facts and its framing of the issue, directly on point. The supreme court
had “directly addressed the present issue *** on a single occasion,” in Davis—a case that stood
“in stark contrast to the cases listed above,” e.g., Dale, Martin-Trigona, and Pack. Id. ¶ 22. In
Davis, the supreme court “found standing based upon the advantages of purging a conviction
from one’s record, seemingly in direct conflict with the language in Dale.” Id.
¶ 38 Because Davis had “never been explicitly overruled and remain[ed] good law” and
because “the rule of lenity dictate[d] that criminal statutes generally be construed in favor of a
defendant,” the Third District held: “[A] defendant who timely files his postconviction petition
while in custody is eligible for relief under the Act, regardless of whether he is released from
custody in the intervening time.” Id. ¶ 23.
¶ 39 B. The Difference Between Statutory Standing
and the Doctrine of Moot Issues
¶ 40 It is crucial to draw a distinction between (1) standing and (2) mootness. We respectfully
suggest that Henderson makes a mistake by conflating those two concepts. See Henderson,
2011 IL App (1st) 090923, ¶ 15 (because the defendant has served his term of mandatory
supervised release, he “has lost standing under the Act,” and “the parties’ arguments under the
Act have become moot”).
¶ 41 1. Standing
¶ 42 In a civil case, when the defendant pleads the affirmative defense that the plaintiff lacks
standing (see Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 252 (2010)), i.e., an injury
in fact to a legally recognized interest (In re Estate of Burgeson, 125 Ill. 2d 477, 486 (1988)),
the relevant question is whether the plaintiff had standing as of the time when the plaintiff filed
suit (U.S. Bank Trust National Ass’n v. Lopez, 2018 IL App (2d) 160967, ¶ 18; 23-25 Building
Partnership v. Testa Produce, Inc., 381 Ill. App. 3d 751, 755 (2008)). (Although this
postconviction proceeding is like a civil case (see People v. Bailey, 2017 IL 121450, ¶ 29), the
titles of the parties are switched around because, in the underlying criminal case, defendant
was the defendant and the State was the plaintiff. In this postconviction proceeding, defendant
actually is analogous to the plaintiff in a civil case since he is the one who filed the action, and
the State is analogous to the defendant.) Thus, to hold, as the First District held in Henderson,
2011 IL App (1st) 090923, ¶¶ 15, 18, that the defendant “has lost standing” would be a
contradiction in terms because standing, by definition, is standing to bring the suit, not to
maintain the suit. See Bank Trust National, 2018 IL App (2d) 160967, ¶ 18; 23-25 Building
Partnership, 381 Ill. App. 3d at 755. The doctrine of standing cares only about the date when
the plaintiff filed the action, not the day after. See Unifund CCR Partners v. Shah, 407 Ill. App.
3d 737, 740 (2011) (“Standing is the requirement that a lawsuit cannot commence unless a
plaintiff has some injury in fact to a legally recognized interest.” (Emphasis added and internal
quotation marks omitted.)).
¶ 43 There is common-law standing, which requires an injury in fact to a legally recognized
interest (Burgeson, 125 Ill. 2d at 486), and there is statutory standing, which requires the
fulfillment of statutory conditions in order to sue for legislatively created relief (see Wilson v.
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Tromly, 404 Ill. 307, 310 (1949)). The “legislature, having conferred a right of action *** may
determine who shall sue, and the conditions under which the suit may be brought.” Id. In the
Act (725 ILCS 5/122-1 et seq. (West 2016)), the legislature created a right of action for
postconviction relief. In section 122-1(a) of the Act, the legislature prescribed a condition for
petitioning for such relief: “[a]ny person imprisoned in the penitentiary may institute a
proceeding under this Article.” Id. § 122-1(a). Because section 122-1(a) is concerned only
with standing to bring suit, it stipulates that current imprisonment is a condition for
“institut[ing]” a postconviction proceeding, not for continuing to litigate it. (Emphasis added.)
Id. “[C]ourts should not, under the guise of statutory construction, add requirements or impose
limitations that are inconsistent with the plain meaning of the enactment.” Nottage v. Jeka, 172
Ill. 2d 386, 392 (1996). We will not, in the guise of statutory construction, effectively amend
section 122-1(a) by adding to it a requirement of continued imprisonment as a condition of
maintaining, as opposed to instituting, a postconviction proceeding. See id. Section 122-1(a)
states, in plain, unambiguous English, that imprisonment is a condition only for “institut[ing]”
a postconviction proceeding, not for maintaining it, and any change to that section should be
made by the legislature, not by us. 725 ILCS 5/122-1(a) (West 2016).
¶ 44 The legislature has, in fact, repeatedly amended section 122-1(a) since 1968, when the
supreme court decided Davis. Indeed, the legislature also has amended section 122-1(a) since
2010, when, in Carrera, the supreme court made clear what Davis stood for. See Carrera, 239
Ill. 2d at 246 (“ ‘imprisoned in the penitentiary’ has been held to include defendants who have
been released from incarceration after timely filing their petition” (citing Davis, 39 Ill. 2d
325)). Yet in none of those numerous amendments did the legislature ever see fit to supersede
Davis and Carrera. “We assume not only that the General Assembly acts with full knowledge
of previous judicial decisions but also that its silence on an issue in the face of those decisions
indicates its acquiescence to them.” People v. Way, 2017 IL 120023, ¶ 27.
¶ 45 Therefore, we interpret section 122-1(a), in accordance with its plain terms (Moon v.
Rhode, 2016 IL 119572, ¶ 22), as meaning merely that when “institut[ing] a [postconviction]
proceeding,” the defendant must be “imprisoned in the penitentiary” (emphasis added) (725
ILCS 5/122-1(a) (West 2016)). (The supreme court has interpreted imprisonment as including
any form of custody, including mandatory supervised release (Carrera, 239 Ill. 2d at 246).)
Section 122-1(a) has nothing to say about release from imprisonment after the institution of the
postconviction proceeding, and we decline to judicially amend section 122-1(a) so as to
address that change of circumstance. See Moon, 2016 IL 119572, ¶ 22 (“Where statutory
provisions are clear and unambiguous, the plain language as written must be given effect
without reading into it exceptions, limitations, or conditions that the legislature did not
express.”).
¶ 46 2. An Intervening Event That Makes an Issue Moot
¶ 47 The legislature can prescribe conditions for instituting a proceeding for statutory relief, and
anyone who meets those conditions has statutory standing to bring suit. Wilson, 404 Ill. at 310.
Even though the plaintiff had standing to bring the suit in the first place, a question that the
plaintiff raises in the suit can become moot if events subsequent to the institution of the suit
make it impossible for the court to grant effectual relief to the plaintiff. Wheatley v. Board of
Education of Township High School District 205, 99 Ill. 2d 481, 484-85 (1984). To put it
differently, “[a] moot question is one that existed but because of the happening of certain
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events has ceased to exist and no longer presents an actual controversy over the interest or
rights of the party; an abstract question is one in existence but for which no effectual relief can
be granted.” (Internal quotation marks omitted.) Ahmad v. Board of Election Commissioners,
2016 IL App (1st) 162811, ¶ 9.
¶ 48 Thus, standing scrutinizes the status of the plaintiff at the time the plaintiff files suit,
whereas mootness scrutinizes the genuineness of an issue after the filing of the suit. Section
122-1(a) addresses the petitioner’s standing at the time the petitioner institutes the
postconviction proceeding; it has nothing to say about events occurring after the institution of
the proceeding. If we want to determine whether an issue in the postconviction proceeding has
become moot, the answer is not to be found in section 122-1(a); that section concerns only
standing to bring suit. Instead, we have to turn to the common-law doctrine of moot issues.
¶ 49 It is a mistake to blur together statutory standing and common-law mootness. As a
commentator explains:
“Mootness cases involving secondary or ‘collateral’ injuries provide another
example of the difference between standing and mootness analysis. When a plaintiff
alleges some present injury in addition to the ‘past’ harm sustaining standing, the
secondary injury may overcome mootness even if it would not have sufficed
independently to support standing. In lawsuits challenging criminal convictions after
the challenger’s sentence had been served, the evident injury supporting federal
standing, the Court has ‘acknowledged the obvious fact of life that most criminal
convictions do in fact entail adverse *** consequences. The mere “possibility” that this
will be the case is enough to preserve a criminal case from ending “ignominiously in
the limbo of mootness.” ’ ” (Emphasis added.) Richard H. Fallon, Jr., Of Justiciability,
Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U.
L. Rev. 1, 27-28 (1984) (quoting Sibron v. New York, 392 U.S. 40, 55 (1968), quoting
Parker v. Ellis, 362 U.S. 574, 577 (1960) (Warren, C.J., dissenting)).
¶ 50 Defendant’s interest “in purging [himself] of the stigma and disabilities which attend a
criminal conviction” would not have given him standing under section 121-1(a), but after his
release from custody, that interest prevents his case from being moot. Davis, 39 Ill. 2d at 329.
The reason is that one of the forms of relief a court may grant in a postconviction proceeding is
a retrial. 725 ILCS 5/122-6 (West 2016). Despite his release from custody, a retrial still would
have value for defendant because it would be a way of potentially purging his criminal
conviction. In that regard, he still has “a sufficient personal stake in the outcome to assure the
adversarial relationship that sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult *** questions.” (Internal quotation marks omitted.)
Peters-Farrell, 216 Ill. 2d at 291. Therefore, we agree with Jones and McDonald and disagree
with Henderson.
¶ 51 C. The Reinstatement of the Petition After Its Dismissal
for Lack of Prosecution
¶ 52 Quoting People v. Pace, 386 Ill. App. 3d 1056, 1060-61 (2008) (quoting 725 ILCS 5/122-5
(West 2006)), the State argues that “asking the court to reinstate the action ‘is the same as
asking the court to allow “pleading over.” ’ ” The State seems to understand the term “pleading
over” as meaning, in the context of this case, filing a new petition in a new postconviction
proceeding. But see Black’s Law Dictionary (10th ed. 2014) (defining “plead over” as “[t]o
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fail to notice a defective allegation in an opponent’s pleading before responding to the
pleading”). The State concludes that “if a court allows reinstatement, a new action
commences.” In further support of that conclusion, the State cites People v. English, 381 Ill.
App. 3d 906, 910 (2008), which observed that, under section 13-217 of the Code of Civil
Procedure (735 ILCS 5/13-217 (West 1994)), the plaintiff “ ‘may commence a new action
within one year’ ” after a voluntary dismissal—a right the plaintiff likewise would use after a
dismissal for want of prosecution. (Emphasis added.) Thus, by the State’s reasoning, the
reinstatement of defendant’s postconviction proceeding commenced a new postconviction
proceeding, and under section 122-1(a) (725 ILCS 5/122-1(a) (West 2016)), he lacked
standing because he was no longer in the Department’s custody when the new proceeding
commenced.
¶ 53 One problem with the State’s reasoning is that defendant never commenced a new action
under section 13-217. Instead, he obtained a reinstatement of his postconviction petition. See
Progressive Universal Insurance Co. v. Hallman, 331 Ill. App. 3d 64, 67 (2002) (“Although
[the] plaintiff simply could have refiled its complaint, moving to vacate the [dismissal without
prejudice] was a viable option.”). He never filed a new postconviction petition; he obtained a
reinstatement of his petition—which is another way of saying he obtained a vacatur of the
dismissal for want of prosecution. As long as the statutory one-year period for refiling (see 735
ILCS 5/13-217 (West 2016)) was unexpired, the dismissal for want of prosecution was a
nonfinal order, and the trial court had jurisdiction to vacate it. See Jackson v. Hooker, 397 Ill.
App. 3d 614, 618 (2010); Hallman, 331 Ill. App. 3d at 68.
¶ 54 Granted, we said in Pace: “Asking the court to reinstate a voluntarily dismissed or
withdrawn petition is the same as asking the court to allow ‘pleading over’ or to permit the
‘filing [of] further pleadings.’ ” Pace, 386 Ill. App. 3d at 1060-61 (quoting 725 ILCS 5/122-5
(West 2006)). Actually, asking the trial court to reinstate a petition that the court dismissed for
want of prosecution is the same as asking the court to vacate the dismissal for want of
prosecution. See Wilson v. Evanston Hospital, 276 Ill. App. 3d 885, 886 (1995); Storcz v.
O’Donnell, 256 Ill. App. 3d 1064, 1068 (1993). “It is well-settled that vacatur of an order in
due time leaves the pleadings the same as if the order had never been entered.” Zanzig v.
H.P.M. Corp., 134 Ill. App. 3d 617, 625 (1985); see also Doe v. Doe, 282 Ill. App. 3d 1078,
1082 (1996) (“When an order is set aside, it leaves pleadings as if no order had ever been
entered.”). A return to the status quo ante meant that there was no new postconviction
proceeding and, hence, no need to reestablish standing.
¶ 55 In sum, defendant had standing under section 122-1(a) because he was in prison when he
filed his petition for postconviction relief. Any date subsequent to the filing of his petition is
irrelevant to his standing. His release from custody during the pendency of his petition did not
make his petition moot. See Carrera, 239 Ill. 2d at 246; Davis, 39 Ill. 2d at 329.
¶ 56 III. CONCLUSION
¶ 57 For the foregoing reasons, we reverse the trial court’s judgment, and we remand this case
for further proceedings consistent with this opinion.
¶ 58 Reversed and remanded.
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