People v. Smith

2021 IL App (1st) 200984

216 N.E.3d 995

466 Ill.Dec. 162

The PEOPLE of the State of Illinois, Plaintiff-Appellant,

v.Zachary SMITH, Defendant-Appellee.

No. 1-20-0984

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed November 19, 2021

Kimberly M. Foxx, State's Attorney, of Chicago (Cathy McNeil Stein, T. Andrew Horvat, and Paul E. Wojcicki, Assistant State's Attorneys, of counsel), for the People.

Thomas C. Crooks, Law Office of Thomas C. Crooks, of Chicago, for the appellee.

JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 The issue before this court is whether this petitioner has met the requirements for a certificate of innocence (COI) where he was found not guilty of the crime for which he was incarcerated but guilty of another crime charged in the same indictment or information. For the reasons that follow, we find that the petitioner is not statutorily entitled to a COI under these circumstances and reverse the decision of the circuit court.

¶ 2 I. BACKGROUND

¶ 3 Following a bench trial, defendant Zachary Smith was found guilty on one count of being an armed habitual criminal (AHC) in violation of section 24-1.7(a) of the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/24-1.7(a) (West 2012)) and on three counts of unlawful use of a weapon by a felon (UUWF), in violation of section 24-1.1(a) of the Criminal Code (id. § 24-1.1(a)). On May 7, 2015, the trial court sentenced Mr. Smith on the AHC charge to a prison term of six years, followed by three years of mandatory supervised release (MSR), and a concurrent sentence of two years on a single merged count of UUWF. On appeal, this court vacated Mr. Smith's UUWF conviction under the one-act, one-crime rule, concluding that both the AHC and the UUWF charges stemmed from the same physical act of unlawfully possessing the same firearm. See People v. Smith , 2017 IL App (1st) 151643, ¶ 32, 418 Ill.Dec. 126, 89 N.E.3d 960.

¶ 4 Mr. Smith then successfully petitioned the circuit court, under section 2-1401 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1401 (West 2016) ), to vacate his AHC conviction. An AHC conviction requires that the defendant have two predicate felony convictions. 720 ILCS 5/24-1.7 (West 2012) (qualifying offenses include forcible felonies, crimes involving the illegal use or possession of firearms, and drug charges). The circuit court agreed with Mr. Smith that, following our supreme court's decision in In re N.G. , 2018 IL 121939, ¶ 33, 425 Ill.Dec. 547, 115 N.E.3d 102, one of the predicate offenses upon which Mr. Smith's AHC conviction rested could no longer constitutionally serve as a predicate offense. One of Mr. Smith's predicate offenses on his AHC charge was a conviction for aggravated unlawful use of a weapon (AUUW) under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2012)), which our supreme court found to be a facially unconstitutional provision in People v. Aguilar , 2013 IL 112116, ¶ 22, 377 Ill.Dec. 405, 2 N.E.3d 321.

¶ 5 On October 4, 2019, Mr. Smith sought a COI, pursuant to section 2-702 of the Code of Civil Procedure ( 735 ILCS 5/2-702 (West 2018) ), based on the fact that he had been incarcerated on the now-vacated AHC conviction. The State objected to the petition. The State did not dispute Mr. Smith's claim that he was "innocent," as that term is employed in the COI statute, on the AHC charge but argued that he was not entitled to a COI because he had separately been found guilty of UUWF. The circuit court granted the COI. The State now appeals.

¶ 6 II. JURISDICTION

¶ 7 The circuit court granted Mr. Smith's petition for a COI on July 16, 2020. The State filed a timely notice of appeal from that decision on August 14, 2020. We have jurisdiction under Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments in civil cases.

¶ 8 III. ANALYSIS

¶ 9 The COI statute, found at section 2-702 of the Code ( 735 ILCS 5/2-702 (West 2018) ), is lengthy and need not be set out in full. The section's title is "Petition for a certificate of innocence that the petitioner was innocent of all offenses for which he or she was incarcerated." Id. Subsection (a) states its purpose, in part, as follows:

"The General Assembly finds and declares that innocent persons who have been wrongly convicted of crimes in Illinois and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue to obtain a finding of innocence so that they may obtain relief through a petition in the Court of Claims." Id. § 2-702(a).

¶ 10 Subsection (g) of the statute sets out the criteria for a petitioner to obtain a COI. It provides, in full, as follows:

"(g) In order to obtain a certificate of innocence the petitioner must prove by a preponderance of evidence that:

(1) the petitioner was convicted of one or more felonies by the State of Illinois and subsequently sentenced to a term of imprisonment, and has served all or any part of the sentence;

(2)(A) the judgment of conviction was reversed or vacated, and the indictment or information dismissed or, if a new trial was ordered, either the petitioner was found not guilty at the new trial or the petitioner was not retried and the indictment or information dismissed; or (B) the statute, or application thereof, on which the indictment or information was based violated the Constitution of the United States or the State of Illinois;

(3) the petitioner is innocent of the offenses charged in the indictment or information or his or her acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State; and

(4) the petitioner did not by his or her own conduct voluntarily cause or bring about his or her conviction." Id. § 2-702(g).

¶ 11 We have recognized that the purpose of a COI is to allow the wrongfully incarcerated "to obtain a finding of innocence so that [they] may obtain relief against the State for wrongful incarceration through the court of claims." (Internal quotation marks omitted.) People v. McClinton , 2018 IL App (3d) 160648, ¶ 14, 424 Ill.Dec. 918, 110 N.E.3d 268. "A successful petitioner, armed with a COI, walks into the court of claims with conclusive evidence of his or her innocence, making it all but certain that the petitioner can obtain a money judgment against the State for wrongful incarceration." People v. Moore , 2020 IL App (1st) 190435, ¶ 37, 453 Ill.Dec. 847, 188 N.E.3d 816.

¶ 12 The State argues that a COI should not have been issued in this case because Mr. Smith, who was also found guilty of UUWF, was not "innocent of the offenses charged in the indictment," as required by subsection (g)(3) of the statute. Mr. Smith's response is that the State has waived this argument and that, if the court reaches the merits, the COI statute provides for a certificate if a petitioner is innocent of the charge or charges for which he or she was incarcerated. Mr. Smith insists that because he ultimately was incarcerated only on the AHC charge, and that conviction was vacated, the COI was properly granted. We first address Mr. Smith's forfeiture argument and then, because we find no forfeiture by the State, turn to the parties’ conflicting interpretations of the COI statute.

¶ 13 A. Forfeiture

¶ 14 Mr. Smith maintains that in its four-and-a-half-page response to his petition the State did not argue—or at least did not present a fully developed argument—that he had to prove himself innocent of all the offenses charged in the indictment and that the State has thus "waived" this argument. Although the parties speak in terms of waiver, they are really discussing forfeiture. The concepts are distinct. Forfeiture is the failure to comply with procedural requirements, which would include a general prerequisite to an appeal that the claim was properly raised in the trial court. People v. Sophanavong , 2020 IL 124337, ¶¶ 20-21, 450 Ill.Dec. 154, 181 N.E.3d 154. Waiver, on the other hand, is the voluntary relinquishment of a right. Id. The State certainly did not intentionally abandon this argument. Thus, what is at issue is forfeiture.

¶ 15 As our supreme court has made clear, "[w]e require parties to preserve issues or claims for appeal; we do not require them to limit their arguments [on appeal] to the same arguments that were made below." Brunton v. Kruger , 2015 IL 117663, ¶ 76, 392 Ill.Dec. 259, 32 N.E.3d 567. Thus, the only question is whether the State presented the same claim that it makes on appeal to the circuit court, such that the circuit court had an opportunity to consider it. It is clear to us that it did.

¶ 16 The State's written response to Mr. Smith's petition stated that Mr. Smith was not entitled to a COI unless he could "show by preponderance of evidence that he was ‘innocent of the offense charged in the indictment or information’ as required by Section (g)(3) of the COI Statute." At oral argument on the petition in the circuit court, the State reiterated: "[Mr. Smith] has to prove himself innocent of all the charges in the indictment." The State continued: "[Mr. Smith] was actually found guilty of all three of the UUWs by a felon." This was more than sufficient to preserve the defense to the petition that the State relies on now. While this court's recent decision in Moore , 2020 IL App (1st) 190435, 453 Ill.Dec. 847, 188 N.E.3d 816, which the State relies on heavily in this appeal, was yet to be decided when Mr. Smith's petition was pending, the State not only raised the same issue but made essentially the same arguments there that it makes here. There has been no forfeiture by the State in this case.

¶ 17 B. Merits

¶ 18 In the circuit court, neither the parties nor the judge had the benefit of the Moore court's excellent analysis of the COI statute. However, the parties have both addressed...