Opinion filed April 18, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2024

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal Nos. 3-21-0330 & 3-21-0331 v. ) cons. ) Circuit Nos. 12-CF-5 & 12-CF-627 JEVON D. LESLEY, ) ) Honorable Defendant-Appellant. ) Carmen J. Goodman, ) Judge, Presiding. ____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices Hettel and Peterson concurred in the judgment and opinion. ____________________________________________________________________________

OPINION

¶1 In this consolidated appeal, petitioner, Jevon D. Lesley, appeals from the circuit court’s

order denying his combined petition for a certificate of innocence (COI) pursuant to section 2-702

of the Code of Civil Procedure (Code) (735 ILCS 5/2-702 (West 2020)). For the following reasons,

we affirm in part, vacate in part, and remand for further proceedings.

¶2 I. BACKGROUND

¶3 We summarize the facts relevant to this appeal, turning first to the underlying criminal

cases against petitioner and then discussing the COI proceedings. ¶4 A. Criminal Proceedings

¶5 On January 19, 2012, in case No. 12-CF-5, petitioner was charged, along with a

codefendant, in a three-count indictment. Counts I and II alleged that, on January 1, 2012,

petitioner committed the offenses of aggravated unlawful use of a weapon (AUUW), Class 4

felonies, in that he knowingly carried on or about his person two uncased, loaded, and immediately

accessible firearms not on his own land or in his own abode or fixed place of business in violation

of section 24-1.6(a)(2), (a)(3)(A) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-

1.6(a)(2), (a)(3)(A) (West 2012)). Count III of the indictment, for unlawful possession of a

controlled substance, is irrelevant to our analysis as it was only against the codefendant.

¶6 On April 5, 2012 (while on bond in case No. 12-CF-5), petitioner was charged in a two-

count indictment in case No. 12-CF-627. Count I alleged that, on March 17, 2012, petitioner

committed the offense of unlawful possession of a firearm by a street gang member, a Class 2

felony, in that petitioner, a street gang member, knowingly carried on his person a firearm and

firearm ammunition not inside his own abode or fixed place of business and had not been issued a

currently valid firearm owner’s identification card in violation of section 24-1.8(a)(1) of the

Criminal Code (id. § 24-1.8(a)(1)). Count II alleged that, on March 17, 2012, petitioner committed

the offense of AUUW, a Class 4 felony, in that petitioner knowingly carried on or about his person

an uncased, loaded, and immediately accessible firearm not on his own land or in his own abode

or fixed place of business in violation of section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code (id.

§ 24-1.6(a)(1), (a)(3)(A)).

¶7 On August 9, 2012, petitioner pled guilty in a combined plea agreement for both cases

pursuant to which he pled guilty to one count of AUUW in each case and the remaining charges

were nol-prossed. Specifically, in case No. 12-CF-5, petitioner pled guilty to count I for AUUW;

2 in exchange, count II for AUUW was nol-prossed. In case No. 12-CF-627, petitioner pled guilty

to count II for AUUW; in exchange, count I for unlawful possession of a firearm by a street gang

member was nol-prossed. The circuit court sentenced petitioner to consecutive one-year sentences

with credit for time served in custody.

¶8 Subsequently, in People v. Aguilar,

, and People v. Mosley,

, our supreme court held that the subsections of the AUUW statute pursuant to which

petitioner was charged and pled guilty were unconstitutional. However, the constitutionality of the

nol-prossed charge (in case No. 12-CF-627) of unlawful possession of a firearm by a street gang

member was upheld in People v. Villareal,

.

¶9 On September 30, 2019, petitioner filed, as a self-represented litigant, a petition for relief

from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)),

requesting that his AUUW convictions in both cases be vacated as unconstitutional and void

ab initio. Following the October 11, 2019, hearing on the petition where the State agreed that the

convictions should be vacated, the circuit court entered an order vacating the convictions as

unconstitutional and void ab initio.

¶ 10 B. COI Proceedings

¶ 11 On March 19, 2021, petitioner filed, as a self-represented litigant, a combined petition for

a COI in both cases pursuant to section 2-702 of the Code. Petitioner alleged that, in each case, he

had been convicted of a felony, was sentenced to a term of imprisonment, and had served his

sentence. He further alleged that the convictions had been vacated as unconstitutional and that he

had not by his own conduct voluntarily caused or brought about the convictions. In support,

petitioner attached the portions of the indictments that included the AUUW charges to which he

3 pled guilty, the judgment and sentencing order in each case, his section 2-1401 petition, and the

docket entries reflecting the vacated convictions.

¶ 12 The State objected to the petition on two grounds. First, the State opposed the COI on the

basis that petitioner failed to demonstrate his innocence of all charges in the indictment, including

the nol-prossed charge for the constitutionally valid offense of unlawful possession of a firearm

by a street gang member. Second, the State argued that petitioner’s guilty pleas precluded his

ability to establish that he did not voluntarily cause or bring about his conviction. According to the

State, the pleas in both cases “were taken together so should be considered as a whole,” and by

pleading guilty in exchange for the benefit of dismissal of the higher-class felony, petitioner

brought about his own conviction.

¶ 13 On July 28, 2021, following argument, the circuit court denied the petition for a COI.

Noting that, by pleading guilty to one count, petitioner received the benefit of the dismissal of the

other count, the court reasoned, “So you received a benefit. Now you want to go back because you

received this particular benefit and basically sue the State. Because a certificate is not an avenue

for the defendant who receives [a] benefit.” The court concluded that, under the particular

circumstances, petitioner failed to prove the allegations set forth in his petition by a preponderance

of the evidence and thus denied petitioner’s request for a COI.

¶ 14 Petitioner filed separate timely notices of appeal in both cases; we later granted petitioner’s

unopposed motion to consolidate the appeals. Thereafter, on April 6, 2022, we also granted

petitioner’s unopposed motion to stay the appeal pending the supreme court’s review of People v.

Washington,

, appeal allowed, No. 127952 (Ill. Mar. 30, 2022). On July

18, 2023, the supreme court issued its decision in Washington, holding that a guilty plea does not

categorically bar the ability to obtain a COI under section 2-702. People v. Washington, 2023 IL

4 127952. We subsequently granted petitioner’s unopposed motion to vacate the stay, and briefing

and oral argument ensued.

¶ 15 II. ANALYSIS

¶ 16 On appeal, petitioner argues that the circuit court erred in denying his petition because he

established all requisite elements for issuance of a COI. See 735 ILCS 5/2-702 (West 2020). The

State disputes that petitioner satisfied subsections (g)(3) and (g)(4) of the statute, requiring,

respectively, that “the petitioner is innocent of the offenses charged in the indictment or

information” (id. § 2-702(g)(3)), and that “the petitioner did not by his or her own conduct

voluntarily cause or bring about his or her conviction” (id.§ 2-702(g)(4)). For the reasons set forth

below, we hold that petitioner met his burden under the COI statute in case No. 12-CF-5 but failed

to meet his burden in case No. 12-CF-627. Accordingly, we affirm in part, vacate in part, and

remand for issuance of a COI in case No. 12-CF-5.

¶ 17 Initially, we note the split in authority regarding the appropriate standard—abuse of

discretion or manifest weight of the evidence—to be applied in reviewing a ruling on a petition for

a COI. See Washington,

(collecting cases). Where the issue involves a

question of statutory interpretation, however, de novo review is appropriate. See People v.

McClinton,

; accord People v. Hilton,

(collecting cases and noting that, “while the review of the denial of a COI generally proceeds

under an abuse of discretion standard, the issue here involves the interpretation of statutory section

2-702 of the Code, and, thus, our review is de novo”). Here, the parties’ arguments require us to

interpret the COI statute. Therefore, we apply the de novo standard of review. See People v. Brown,

, ¶ 11. To the extent our resolution of whether petitioner satisfied

subsection (g)(4) extends beyond statutory interpretation, we note that the result would be the same

5 under any standard of review. We review the circuit court’s judgment, not its reasoning, and we

may affirm the judgment on any basis in the record. Id. ¶ 9.

¶ 18 Our primary goal in interpreting a statute is to ascertain and give effect to the legislature’s

intent, which is best indicated by the plain and ordinary meaning of the statutory language. People

v. Palmer,

. We must consider the statute as a whole and cannot depart from

the plain language and meaning of the statute by reading into it exceptions, limitations, or

conditions that the legislature did not express. Hilton,

. We may

consider “the purpose of the statute, the problems to be remedied, and the consequences of

interpreting the statute one way or another.” Palmer,

. We presume that the

legislature did not intend absurd, inconvenient, or unjust results.

¶ 19 With these principles in mind, we turn to the parties’ arguments.

¶ 20 A. Subsection (g)(3)

¶ 21 With respect to whether petitioner met his burden under subsection (g)(3), the central issue

is whether petitioner was required to establish his innocence of the nol-prossed charges in addition

to his innocence of the offenses for which he was incarcerated. According to petitioner, he was

only required to show his innocence of the offenses for which he was incarcerated (the

unconstitutional AUUW offenses), not the charges nol-prossed pursuant to the plea agreement (the

unconstitutional AUUW charge and the valid unlawful possession of a firearm by a street gang

member charge).

¶ 22 The State counters that the plain language of subsection (g)(3) required petitioner to prove

his innocence of all offenses charged in the indictment. And, according to the State, because this

was a combined plea agreement, failure to show innocence of the valid, nol-prossed charge for

unlawful possession of a firearm by a street gang member in case No. 12-CF-627 precluded a COI

6 in both cases. Petitioner maintains that the State forfeited the latter portion of the argument by

failing to raise it in the circuit court. However, the record belies this contention. In objecting to the

COI petition and arguing that petitioner was required to demonstrate his innocence of the nol-

prossed charges, the State argued that “these pleas were taken together so should be considered as

a whole.” We thus address the merits of the argument.

¶ 23 To place the parties’ positions in context, we outline the relevant portions of the COI

statute. The title of the COI statute is “Petition for a certificate of innocence that the petitioner was

innocent of all offenses for which he or she was incarcerated” (emphasis added) (735 ILCS 5/2-

702 (West 2020)), and its purpose—to provide the wrongly incarcerated with an avenue to obtain

relief in the Court of Claims—is detailed 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. The General Assembly further finds

misleading the current legal nomenclature which compels an innocent person to seek a

pardon for being wrongfully incarcerated. It is the intent of the General Assembly that the

court, in exercising its discretion as permitted by law regarding the weight and

admissibility of evidence submitted pursuant to this Section, shall, in the interest of justice,

give due consideration to difficulties of proof caused by the passage of time, the death or

unavailability of witnesses, the destruction of evidence or other factors not caused by such

persons or those acting on their behalf.”

§ 2-702(a).

¶ 24 The statute identifies who may petition for a COI:

7 “Any person convicted and subsequently imprisoned for one or more felonies by the State

of Illinois which he or she did not commit may, under the conditions hereinafter provided,

file a petition for certificate of innocence in the circuit court of the county in which the

person was convicted. The petition shall request a certificate of innocence finding that the

petitioner was innocent of all offenses for which he or she was incarcerated.” (Emphasis

added.) Id. § 2-702(b).

¶ 25 The supporting material that must be attached to the COI petition includes documentation

demonstrating that the petitioner’s

“judgment of conviction was reversed or vacated, and the indictment or information

dismissed or, if a new trial was ordered, either he or she was found not guilty at the new

trial or he or she was not retried and the indictment or information dismissed; or 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.” Id. § 2-702(c)(2).

In addition, the petition

“shall state facts in sufficient detail to permit the court to find that the petitioner is likely

to succeed at trial in proving that 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 of Illinois, and

the petitioner did not by his or her own conduct voluntarily cause or bring about his or her

conviction.” (Emphasis added.) Id. § 2-702(d).

In any hearing on a request for a COI, “the court may take judicial notice of prior sworn testimony

or evidence admitted in the criminal proceedings related to the convictions which resulted in the

8 alleged wrongful incarceration, if the petitioner was either represented by counsel at such prior

proceedings or the right to counsel was knowingly waived.” Id. § 2-702(f).

¶ 26 Subsection (g) sets forth four elements that a petitioner must prove by a preponderance of

the evidence to obtain a COI:

“(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;[ 1] and

(4) the petitioner did not by his or her own conduct voluntarily cause or bring about

his or her conviction.” (Emphasis added.) Id. § 2-702(g).

¶ 27 If the court finds that a petitioner is entitled to judgment, the court “shall enter a certificate

of innocence finding that the petitioner was innocent of all offenses for which he or she was

incarcerated.” (Emphasis added.) Id. § 2-702(h). Finally, subsection (i) states that the petition

1 Petitioner does not rely upon the second part of subsection (g)(3)—that the “acts or omissions charged in the indictment or information did not constitute a felony or misdemeanor against the State.” 735 ILCS 5/2-702(g)(3) (West 2020). Thus, we frame our discussion around the first part of subsection (g)(3)— that the petitioner is “innocent of the offenses charged in the indictment or information.” Id. 9 must be filed within two years after “the dismissal of an indictment or information or acquittal.”

(Emphasis added.) Id. § 2-702(i).

¶ 28 Relying on the title of the statute and the subsections that reference “all offenses for which

[the petitioner] was incarcerated,” petitioner argues that he was not required to demonstrate his

innocence of the nol-prossed charges. In response, relying on the statutory subsections that

reference “the offenses charged in the indictment,” the State argues that the legislature intended

that a petitioner must establish his innocence of all charged offenses, even charges nol-prossed

pursuant to a plea agreement. In reviewing the plain language of section 2-702 and applying

principles of statutory construction, we agree with the State, as have other courts squarely

presented with the issue. See Brown,

, ¶ 29; People v. Warner,

.

¶ 29 By including certain language in one section of a statute but omitting the language in

another section of the same statute, the legislature is presumed to have acted purposely and

intended different meanings and results. Warner,

. While the

statutory title and subsections (b) and (h) use the phrase “offenses for which [the petitioner] was

incarcerated,” the title of a statutory section is not controlling (see Brown,

, ¶ 15), and subsections (b) and (h) relate to who may petition for a COI and the remedies

in the event a COI is awarded (see Warner,

). In contrast,

subsections (d) and (g), using the phrase “offenses charged in the indictment,” set forth the specific

pleading and burden requirements that must be met to obtain a COI. Id. ¶ 27; Brown,

, ¶ 24. Namely, a petitioner must plead specific facts in the petition demonstrating

innocence of the “offenses charged in the indictment” (735 ILCS 5/2-702(d) (West 2020)), and

10 meet the burden of proving, by a preponderance of the evidence, innocence of the “offenses

charged in the indictment” (id. § 2-702(g)(3)). Warner,

.

¶ 30 In discerning the legislative intent underlying this distinct language, the court in Warner

explained, “If the legislature had intended that a petitioner was required to allege and show only

that they were innocent of the ‘offenses for which he or she was incarcerated,’ subsections (d) and

(g)(3) would contain the same language as found in subsections (b) and (h).”

Instead, the

legislature included the phrase “offenses charged in the indictment,” reflecting its intent that a

petitioner must allege and prove innocence of all offenses charged in the indictment.

The court

in Brown agreed.

“The plain meaning of that language [in subsections (d) and (g)(3)] is that petitioners must

demonstrate their innocence of all charged offenses, not just the ones for which they were

convicted and incarcerated. Although other subsections of the statute use different

language, such subsections do not specify the pleading and burden requirements for

obtaining a certificate of innocence.” Brown,

, ¶ 24.

Noting that this interpretation is consistent with the legislative intent—to provide the wrongly

incarcerated with an avenue to obtain relief in the Court of Claims—and avoids absurd results, the

court in Brown further observed that “[w]e doubt the legislature envisioned compensating people

who could have been lawfully imprisoned for more serious offenses but who happened to plead

guilty to a lesser offense that was later recognized to be void ab initio.” Id. ¶ 25.

¶ 31 Accordingly, in both Brown and Warner, where the petitioners pled guilty to later vacated

AUUW offenses in exchange for the dismissal of other charges, the courts held that the petitioners

were not entitled to a COI given their failure to prove their innocence of valid dismissed charges.

See Brown,

, ¶¶ 3-6, 29; Warner,

;

11 see also Hilton,

(reaffirming the foregoing principles after an

extensive review of the relevant jurisprudence and holding that the petitioner was required to prove

his innocence of all charges in the indictment, including two constitutionally valid charges of

AUUW that the State nol-prossed after his AUUW conviction was vacated pursuant to Aguilar).

¶ 32 Moreover, as noted in Warner, the holding that a petitioner must establish innocence of all

charged offenses is consistent with our supreme court’s decision in Palmer and with prior appellate

decisions interpreting subsection (g)(3) in different procedural contexts. Warner,

(citing Palmer,

; People v. Smith,

;

People v. Moore,

). In Palmer, the petitioner sought a COI after his first

degree murder conviction was vacated based upon newly discovered forensic evidence. Palmer,

. The supreme court rejected the State’s argument that the petitioner was

required to prove himself innocent of being an accomplice to the murder—a theory that was never

charged. Id. ¶ 68. Considering the plain language of the statute, the court reasoned that, because

the word “offenses” in subsection (g)(3) is modified by the phrase “charged in the indictment or

information” (735 ILCS 5/2-702(g)(3)(West 2018)), the legislature intended that “a petitioner

establish his or her innocence of the offense on the factual basis charged in the indictment or

information.” (Emphasis in original.) Id. ¶ 64.

¶ 33 Both Smith and Moore likewise relied upon the plain language of the COI statute in holding

that subsection (g)(3) requires a petitioner to show innocence of the offenses charged in the

indictment. In Smith, the petitioner’s merged unlawful use of a weapon by a felon (UUWF)

conviction was vacated on appeal under the one-act, one-crime doctrine, where the UUWF

conviction and the petitioner’s armed habitual criminal (AHC) conviction stemmed from the same

physical act of unlawfully possessing the same firearm. Smith,

.

12 Subsequently, however, the AHC conviction was also vacated after one of the felonies predicating

the AHC conviction (an AUUW conviction) was deemed unconstitutional pursuant to Aguilar. Id.

¶ 4. The appellate court, with one justice dissenting, reversed the COI award on grounds that the

petitioner had been found guilty of the constitutionally valid UUWF charges, in addition to the

vacated AHC conviction, and therefore failed to show that he was innocent of the offenses charged

in the indictment, as required by subsection (g)(3). Id. ¶¶ 21-23. In doing so, the court rejected the

petitioner’s reliance upon subsections (b) and (h) for the proposition that a petitioner must only

show innocence of the offenses for which a petitioner was incarcerated. Id. ¶¶ 22-23. While

recognizing that the petitioner served more time than he would have had he been sentenced only

on the valid charges, the court noted its inability to rewrite the statute to warrant an award of a

COI. Id. ¶ 29.

¶ 34 Similar reasoning was employed in Moore, where the court held that the plain language of

section 2-702 does not authorize a COI when the petitioner was properly incarcerated for one

conviction though improperly incarcerated for another conviction. Moore,

. Following trial in Moore, the petitioner was convicted of four offenses, including

AHC; however, the AHC conviction was later vacated after one of the predicate felonies (an

AUUW conviction) was deemed unconstitutional pursuant to Aguilar. Id. ¶ 1. In reversing the

award of a COI for the AHC conviction, the court held that the plain language of section 2-702

“does not permit the issuance of a COI unless the petitioner is deemed innocent of all charges in

the indictment for which the petitioner was convicted.” (Emphasis in original.) Id. ¶ 3. The court

recognized that the petitioner spent more time in prison than he should have given the lengthier

sentence for AHC but noted that, while the petitioner may have remedies beyond section 2-702,

13 the plain language of the statute precluded a COI, and the court could not “drastically rewrite the

language to find a result we prefer.” Id. ¶¶ 41-42.

¶ 35 Notwithstanding the body of case law discussed above, petitioner urges that we instead be

guided by dicta set forth by the court in Smith and this court’s decision in McClinton. Regarding

Smith, following the holding discussed above—that the guilty finding at the criminal trial as to

certain charges precluded the petitioner’s ability to demonstrate his innocence of the offenses

charged in the indictment as required by subsection (g)(3)—the court proceeded to reject “the

State’s suggestion, when questioned by the panel, that to be eligible for a COI, a petitioner might

have the burden of affirmatively demonstrating his innocence even on charges that were nol-

prossed by the State.” Smith,

. Petitioner relies upon this language

in Smith to the exclusion of the court’s holding.

¶ 36 Indeed, this obiter dicta in Smith has been expressly disavowed on several grounds. See

Warner,

; accord Hilton,

.

First, section 2-702 “does not contain any language or any indication that the petitioner’s burden

of pleading and proving innocence applies only to the charges in the indictment or information on

which the State has an ability to obtain a finding of guilty.” Warner,

. Second, the Smith dicta conflicts with prior holdings that, where a guilty finding had been

reversed on direct appeal for insufficiency of the evidence, the COI petitioner was still required to

establish innocence as to the charged offense.

(citing People v. Terrell,

; People v. Dumas,

, ¶ 18). And third, since subsections (d)

and (g)(3) do not state that a petitioner is relieved of the burden to plead and establish innocence

of any nol-prossed charges, to hold otherwise would be akin to improperly reading into the statute

an unexpressed limitation. Id. ¶ 38. We agree, as the plain language of the COI statute is that

14 petitioners must demonstrate their innocence of the charged offenses; there is no exception in the

statute for nol-prossed charges. Accordingly, we too disagree with the dicta in Smith.

¶ 37 With respect to this court’s decision in McClinton, petitioner’s reliance on the case is

misplaced. In McClinton, the petitioner was found guilty of AUUW following trial, but her

conviction was subsequently vacated pursuant to Aguilar. McClinton,

. Although the petitioner was charged with other offenses (bringing a firearm into a penal

institution and bringing cannabis into a penal institution), the State nol-prossed these charges. Id.

¶ 6. The trial court denied the petition for a COI on the basis that a declaration as to the statute’s

unconstitutionality did not mean that the petitioner was innocent. Id. ¶ 7.

¶ 38 The appellate court reversed, rejecting the State’s argument that the petitioner failed to

prove that she did not voluntarily cause or bring about her conviction. Id. ¶¶ 18-19. The court held

that the petitioner met the requirements of the COI statute, including that “her acts charged in the

indictment of which she was convicted and for which she was incarcerated did not constitute a

felony or misdemeanor against the state because the charge was based on a statute later held

unconstitutional,” and that the petitioner did not “intentionally cause or bring about her conviction”

because the statute that criminalized her actions was void ab initio. Id. ¶¶ 20-22. The court did not

consider the nol-prossed charges in the analysis and noted, in its discussion of section 2-702, that

subsection (b) “states the limits of which offenses we consider in evaluating whether McClinton

is entitled to a certificate of innocence” and thus, “[t]he only crime at issue in the instant case is

the unconstitutional AUUW conviction.” Id. ¶ 15.

¶ 39 McClinton is not determinative here, as the disputed issue as framed in McClinton only

involved subsection (g)(4)—whether the petitioner voluntarily caused or brought about her

conviction, not subsection (g)(3). Nothing in McClinton purported to resolve whether a petitioner

15 must prove innocence of charges that were nol-prossed as part of a plea agreement. See Brown,

, ¶ 26 (“[T]he disputed issue on appeal in McClinton concerned statutory

element four: whether McClinton brought about her own conviction. [Citation.] That issue is

distinct from our analysis of element three. Thus, we do not find McClinton instructive as to

whether defendants here must prove their innocence of charges that were nol-prossed as part of

their plea agreements.”); accord Hilton,

(McClinton was

“completely distinguishable” because it focused on subsection (g)(4), not subsection (g)(3)).

¶ 40 Finally, petitioner argues that it would be inconsistent with basic tort law to require a

petitioner to establish innocence of dismissed charges for which he was not incarcerated and for

which he does not seek relief. However, as the State observes, a valid dismissed charge is relevant

to the issue of whether the petitioner was injured. Regardless, as indicated earlier, we simply are

not free to read an exception for dismissed charges into the statutory requirement that a petitioner

must demonstrate his innocence of the offenses charged in the indictment. See Terrell,

(COI statutory scheme did not permit court to engraft a petitioner’s

“presumption of innocence” in determining whether statutory prerequisites satisfied).

¶ 41 Accordingly, the plain language of section 2-702 requires a petitioner to demonstrate his

innocence of the offenses charged in the indictment, including charges nol-prossed pursuant to a

plea agreement, and not just the offenses for which the petitioner was incarcerated. Thus, in case

No. 12-CF-5, where both charged offenses against petitioner were for violations of a portion of

the AUUW statute later held unconstitutional, petitioner met his burden of demonstrating

innocence of the offenses charged in the indictment (and that the acts charged did not constitute a

felony or misdemeanor against the State (see McClinton,

)), as

required by subsection (g)(3). However, in case No. 12-CF-627, while one of the charged offenses

16 was for violation of a portion of the AUUW statute later held unconstitutional, the other charged

offense was for unlawful possession of a firearm by a street gang member—the constitutionality

of which was later upheld. Petitioner never attempted to meet his burden of demonstrating

innocence of this valid nol-prossed charge. Where petitioner did not allege anything with respect

to his innocence of this charge, petitioner did not meet his burden under subsection (g)(3) in case

No. 12-CF-627. See Brown,

, ¶ 29 (“Because defendants made no

attempt to demonstrate their innocence of all charged offenses, the trial court properly denied their

petitions for [COI].”); Warner,

(“[P]etitioner provided allegations

to support his innocence only as to the two [unconstitutional] AUUW counts ***. He did not

provide the circuit court with any pleading, evidence, or even argument as to his innocence as to

the other six charges in the information.”).

¶ 42 Contrary to the State’s position, however, failure to show innocence of the valid, nol-

prossed charge for unlawful possession of a firearm by a street gang member in case No. 12-CF-

627 did not preclude a COI in case No. 12-CF-5. The State maintains that the plea agreement was

a “package agreement” whereby petitioner’s combined plea to the two void offenses secured a

lower total sentence than the mandatory minimum for the valid charge of unlawful possession of

a firearm by a street gang member. As such, the State contends that “offenses charged in the

indictment” as used in subsections (d) and (g)(3) necessarily refers to the offenses charged in both

cases. However, the State’s argument finds no support in the plain language of section 2-702.

¶ 43 As petitioner observes, subsection (g)(3) refers to “the indictment,” not any indictment.

Since “the” is a restrictive term (see Sibenaller v. Milschewski,

(2008)),

its use in subsection (g)(3) reflects that the only indictment to be considered is the indictment that

charged the now-vacated conviction. Moreover, a combined plea agreement does not, and cannot,

17 have the effect of creating a combined indictment for separate offenses. See 725 ILCS 5/111-4(a)

(West 2022) (“Two or more offenses may be charged in the same indictment, information or

complaint in a separate count for each offense if the offenses charged, whether felonies or

misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same

comprehensive transaction.”).

¶ 44 We further observe that requiring a petitioner to demonstrate his innocence of nol-prossed

charges stemming from separate indictments resolved in a combined plea agreement would lead

to scenarios that the legislature could not have intended. Indeed, nothing in section 2-702 supports

expanding the innocence proof to combined pleas that might take place before different judges, in

separate courtrooms, on different days, or even in different counties. We thus decline to read the

statute in the manner suggested by the State.

¶ 45 In sum, petitioner failed to meet his burden under subsection (g)(3) of demonstrating

innocence of the nol-prossed offense charged in the indictment in case No. 12-CF-627 (unlawful

possession of a firearm by a street gang member) and therefore was not entitled to a COI in that

case. However, petitioner met this burden in case No. 12-CF-5. Accordingly, with respect to

whether petitioner was entitled to a COI in that case No. 12-CF-5, we must turn to the second issue

on appeal—whether petitioner met his burden under subsection (g)(4) of the COI statute.

¶ 46 B. Subsection (g)(4)

¶ 47 Petitioner also was required to establish that he did not voluntarily cause or bring about his

conviction under subsection (g)(4). Petitioner argues that, given our supreme court’s holding in

Washington, the circuit court’s decision should be reversed outright since it relied upon the fact

that petitioner pled guilty in denying the COI. The State responds that the particular circumstances

of this case—where petitioner pled guilty to the AUUW Class 2 felonies in exchange for the

18 dismissal of another AUUW charge and the valid Class 2 felony of unlawful possession of a

firearm by a street gang member—which carried a higher sentence—demonstrate that petitioner

voluntarily caused or brought about his conviction. We disagree.

¶ 48 Initially, we have already rejected the State’s argument that we must consider both cases

in determining whether petitioner satisfied subsection (g)(3). The only case at issue for purposes

of determining whether petitioner satisfied subsection (g)(4) is case No. 12-CF-5, where both

charges against petitioner were unconstitutional AUUW offenses. Moreover, the State’s argument

is not persuasive under the rationale set forth in Washington and this court’s decision in McClinton.

¶ 49 In Washington, our supreme court held that a guilty plea does not categorically preclude a

COI. Washington,

. Rather, voluntariness, for purposes of establishing the

statutory requirement that a petitioner did not by his own conduct voluntarily cause or bring about

his conviction, is “to be determined on a case-by-case basis considering the totality of the

circumstances.”

In Washington, the unrebutted evidence established that detectives coerced the

petitioner’s confession through abusive conduct. Id. ¶ 57. After the petitioner’s codefendant was

sentenced to 75 years’ imprisonment, the petitioner chose to accept a plea offer with a 25-year

sentence to have a life to salvage after his release. Id. ¶ 59. Under those facts, the court held that

the petitioner could not be found to have voluntarily caused or brought about his conviction. Id.

¶¶ 60-62.

¶ 50 While the alleged facts in the case sub judice are entirely distinct from Washington, the

circumstances here lead to the same holding. That is, petitioner was convicted under a statute later

held unconstitutional. His conduct in pleading guilty to charges based on an unconstitutional

statute cannot be said to have voluntarily caused or brought about this conviction. Indeed, in

McClinton, this court considered similar circumstances in rejecting the argument that the petitioner

19 voluntarily caused or brought about her conviction under the unconstitutional AUUW statute. See

McClinton,

.

“When a statute is held to be facially unconstitutional, as is the situation in this case, the

statute is said to be void ab initio or void from the beginning. [Citation.] If the AUUW

statute is void from the beginning, McClinton’s conduct *** would not have voluntarily

brought about a conviction under a statute that was ‘constitutionally infirm from the

moment of its enactment.’ ”

¶ 20 (quoting People v. Blair,

).

See also Washington,

(citing this portion of McClinton as support for the

legislative intent to broadly construe the COI statute for petitioners who did not voluntarily cause

or bring about their convictions so as to provide an available avenue to obtain a finding of

innocence). The fact that petitioner pled guilty to the offense later held unconstitutional, rather

than being found guilty at trial as in McClinton, does not change the analysis. The point is that, in

either case, the statute that criminalized the conduct was void and so the conduct was not criminal

at the time. See McClinton,

. Accordingly, here, petitioner cannot

be held to have caused or brought about his conviction by pleading guilty to an unconstitutional

offense.

¶ 51 The State maintains that the rationale in McClinton does not apply here because the facts

to which petitioner stipulated when he pled guilty demonstrate that he could have been convicted

of different, valid AUUW offenses. The argument amounts to speculation about offenses that were

never charged. Uncharged theories of culpability were at the heart of the argument rejected by our

supreme court in Palmer, where it was held that the petitioner was not required to prove himself

innocent of the uncharged accomplice theory. Palmer,

. Here, petitioner was

charged and pled guilty to a portion of the AUUW statute later held unconstitutional. Under these

20 circumstances, he cannot be said to have voluntarily caused or brought about his conviction. See

McClinton,

. Accordingly, petitioner met his burden under

subsection (g)(4) in case No. 12-CF-5 and is entitled to a COI in that case.

¶ 52 III. CONCLUSION

¶ 53 In sum, we hold that petitioner met his burden under the COI statute in case No. 12-CF-5

but failed to meet his burden in case No. 12-CF-627. Thus, the circuit court erred in denying the

COI petition in case No. 12-CF-5 but did not err in denying the petition in case No. 12-CF-627.

Accordingly, the judgment of the circuit court of Will County is affirmed in part and vacated in

part, and the cause is remanded for issuance of a COI in case No. 12-CF-5.

¶ 54 Affirmed in part, vacated in part, and remanded.

21 People v. Lesley,

Decision Under Review: Appeal from the Circuit Court of Will County, Nos. 12-CF-5, 12- CF-627; the Hon. Carmen J. Goodman, Judge, presiding.

Attorneys Joel A. Flaxman and Kenneth N. Flaxman, of Law Offices of for Kenneth N. Flaxman, PC, of Chicago, for appellant. Appellant:

Attorneys Patrick Delfino, Thomas D. Arado, and Laura Bialon, of State’s for Attorneys Appellate Prosecutor’s Office, of Ottawa, for the Appellee: People.

22