2016 IL App (1st) 142130

                                                                                   FIRST DIVISION
                                                                                      JUNE 20, 2016

No. 1-14-2130

THE PEOPLE OF THE STATE OF ILLINOIS,                           )       Appeal from the
                                                               )       Circuit Court of
       Respondent-Appellee,                                    )       Cook County.
                                                               )
v.                                                             )       No. 05 CR 26780
                                                               )
RONALD DANIELS,                                                )       Honorable
                                                               )       Joseph G. Kazmierski,
       Petitioner-Appellant.                                   )       Judge Presiding.

       PRESIDING JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
       Justices Connors and Harris concurred in the judgment and opinion.


                                              OPINION

¶1     Defendant Ronald Daniels was arrested on a city bus after Chicago police officers

investigated a call reporting that an individual on that bus was carrying a weapon. Defendant was

charged with six counts of aggravated unlawful use of a weapon (AUUW) and two counts of

unlawful use of a weapon by a felon (UUWF). Defendant pled guilty to one charge of AUUW

(720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) in exchange for a six-year prison sentence, and

the State nolle prosequied the remaining seven counts. After he completed his sentence,

defendant filed a petition to vacate his conviction, which was denied. On appeal, defendant

contends the trial court erred in denying his petition because section 24-1.6(a)(1), (a)(3)(B) of the

Criminal Code of 1961 (Code) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) was found

facially unconstitutional in People v. Aguilar, 2013 IL 112116. The State agrees with defendant’s

position on that issue, and asks this court to remand this cause to the trial court to reinstate six of
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the seven nolle prosequied charges against defendant. For the following reasons, we vacate

defendant’s conviction and deny the State’s request.

¶2                                     BACKGROUND

¶3     Defendant was charged with six counts of AUUW (pursuant to various combinations of

provisions of the AUUW statute, 720 ILCS 5/24-1.6 (West 2004)) and two counts of UUWF

(720 ILCS 5/24-1.1(a) (West 2004)). On March 13, 2006, defendant pled guilty to count I:

AUUW pursuant to section 24-1.6(a)(1), (a)(3)(B) of the Code (720 ILCS 5/24-1.6(a)(1),

(a)(3)(B) (West 2004)). At that hearing, the parties stipulated that, had this case gone to trial,

evidence would have been presented establishing the following facts: at approximately 1 a.m. on

November 6, 2005, Chicago police officers received a call informing them that a passenger on a

southbound bus at 3258 South State Street was carrying a gun. A description of the passenger

was provided to the police. The officers traveled to that location, curbed the bus, and boarded it.

Defendant, who matched the description which had been provided to the officers, was sitting in

the middle of the bus. The officers conducted a pat down of defendant and recovered an

unloaded .38-caliber blue steel revolver and four live .38-caliber rounds in the weapon’s case.

Additionally, prior to these events, defendant had been convicted of the offense of delivery of a

controlled substance.

¶4     Based on the foregoing, the trial court found a factual basis for defendant’s guilty plea as

to count I and entered judgment against him pursuant to subsection (a)(3)(B). The court also

noted that because of defendant’s prior felony conviction, this offense was a Class 2 felony. For

the purposes of sentencing, the State provided evidence of defendant’s two prior convictions for

offenses classified as Class 2 felonies or greater, and defendant was sentenced as a Class X




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offender to six years’ imprisonment. The State nolle prosequied the remaining seven counts

against defendant.

¶5       After completing his sentence, on January 2, 2014, defendant filed a petition in the circuit

court of Cook County pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-

1401 (West 2012)) seeking to vacate his conviction. 1 In his petition, defendant claimed that

under People v. Aguilar, 2013 IL 112116, section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute

(720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) is unconstitutional and void ab initio, and

therefore his conviction must be vacated. In response to defendant’s petition, the State argued

that Aguilar was limited in scope and did not hold void the AUUW provisions which prohibit the

carrying of firearms by individuals previously convicted of felony offenses. In support, the State

relied on People v. Burns, 2013 IL App (1st) 120929, rev’d, 2015 IL 117387, in which the

appellate court found only the Class 4 version of the AUUW offense to be unconstitutional under

Aguilar, while the Class 2 version of the offense remained enforceable. Burns, 2013 IL App (1st)
120929, ¶ 24. On March 11, 2014, defendant’s petition to vacate his conviction was denied and

the trial court subsequently denied his motion to reconsider its denial. This timely appeal

followed, accordingly, this court has jurisdiction to resolve this matter.




     1
     Defendant titled this filing “Motion to Vacate the Conviction of Aggravated Unlawful Use
of a Weapon.” All subsequent filings by both parties before the trial court and before this court
on appeal refer to it as defendant’s “motion.” Despite making no prior reference to the statutory
authority for the filing of his “motion,” defendant refers to the filing as a “section 2-1401
petition” for the first time in his reply brief. Agreeing with this characterization, we interpret
defendant’s January 2, 2014 filing to be a petition pursuant to section 2-1401 of the Code of
Civil Procedure (735 ILCS 5/2-1401 (West 2012)), and we will refer to it accordingly. We
further note that at no point did the State ever challenge defendant’s ability to file this “motion,”
and the State’s response brief on appeal refers to defendant’s challenge to his conviction as a
“collateral proceeding,” which suggests that their own understanding of defendant’s “motion” is
consistent with our interpretation.
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¶6                                        ANALYSIS

¶7     The sole issue defendant raises on appeal is whether his conviction pursuant to subsection

(a)(3)(B) (720 ILCS 5/24-1.6(a)(1), (a)(3)(B) (West 2004)) must be vacated because the statute

is unconstitutional and void ab initio. Defendant argues that subsection (a)(3)(B), like subsection

(a)(3)(A), which was found facially unconstitutional in People v. Aguilar, 2013 IL 112116,

creates a “blanket ban on possessing ready-to-use firearms outside the home” and is likewise

unconstitutional because it violates the right to keep and bear arms, as guaranteed by the second

amendment of the United States Constitution (U.S. Const., amend. II). A facially

unconstitutional statute is void ab initio, which means that it is unenforceable and inoperative as

though it had never been passed. People v. Blair, 2013 IL 114122, ¶ 28. Defendant argues that

his conviction under a facially unconstitutional statute is invalid and must be vacated. See People

v. Campbell, 2013 IL App (4th) 120635, ¶¶ 14-16.

¶8     Shortly after defendant filed his opening brief on appeal, our supreme court filed People

v. Burns, 2015 IL 117387, in which it held that section 24-1.6(d) of the Code (720 ILCS 5/24-

1.6(d) (West 2008)), the sentencing provision of the AUUW statute, did not create “separate and

distinct offenses” depending on whether the charge is classified as a Class 4 felony or a Class 2

felony. Burns, 2015 IL 117387, ¶¶ 22-24. The court stated that it had “improperly placed limiting

language” on its holding in Aguilar, and clarified that subsection (a)(3)(A) is facially

unconstitutional, without limitation. Id. ¶ 25. In accordance with our supreme court’s decision in

Burns, the State concedes that defendant’s conviction pursuant to subsection (a)(3)(B) must be

vacated.

¶9     Although Aguilar finds only subsection (a)(3)(A) to be facially unconstitutional, the

parties are in agreement that the underlying rationale extends to defendant’s conviction under



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subsection (a)(3)(B). Subsection (a)(3)(A) prohibits the possession of an uncased firearm that is

“loaded and immediately accessible,” whereas subsection (a)(3)(B) prohibits the possession of an

uncased firearm that is “unloaded and the ammunition for the weapon [is] immediately

accessible.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A)-(B) (West 2004). A conclusion that subsection

(a)(3)(B) is valid would illogically prohibit the possession of an unloaded gun in the same

situation where, under Aguilar, the possession of a loaded gun is constitutionally protected. We

believe the second amendment’s protection of an individual’s right to carry a loaded firearm

naturally extends to protect an individual’s right to carry an unloaded firearm with immediately

accessible ammunition. Accordingly, we find subsection (a)(3)(B) constitutionally invalid based

on Aguilar.

¶ 10   A conviction pursuant to a facially unconstitutional statute must be vacated. See People

v. Henderson, 2013 IL App (1st) 113294, ¶ 11 (vacating the defendant’s conviction based on a

statutory section invalidated under Aguilar). Accordingly, defendant’s conviction pursuant to

subsection (a)(3)(B) is vacated.

¶ 11   As defendant’s sole conviction is now vacated, the State asks this court to “remand this

case to the circuit court to permit the [State] to reinstate the nolle prosequied counts that are still

constitutional and therefore valid.” The State argues that because it nolle prosequied those

charges pursuant to the plea agreement between defendant and the State, principles of contract

law require that the State be afforded the opportunity to reinstate those charges due to the

subsequent vacatur of defendant’s conviction. It is the State’s position that reinstating the nolle

prosequied charges would not infringe upon defendant’s constitutional rights against double

jeopardy and there are no other constitutional or statutory limitations which would preclude the

prosecution of defendant on those charges.



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¶ 12   A nolle prosequi is the “formal entry of record by the prosecuting attorney by which he

declares that he is unwilling to prosecute a case” and serves to terminate the charge against the

defendant. People v. DeBlieck, 181 Ill. App. 3d 600, 603 (1989). It operates “like a nonsuit or

discontinuance in a civil suit, and leaves the matter in the same condition in which it was before

the commencement of the prosecution.” People v. Watson, 394 Ill. 177, 179 (1946). As it is not a

final disposition of a case, a nolle prosequi will not bar another prosecution for the same offense.

Id. Subject to relevant statutory or constitutional defenses, the State may reprosecute the

defendant on a previously nolle prosequied charge absent a showing of harassment, bad faith, or

fundamental unfairness. People v. Hughes, 2012 IL 112817, ¶ 23 (citing Ferguson v. City of

Chicago, 213 Ill. 2d 94, 102 (2004), and People v. Norris, 214 Ill. 2d 92, 104 (2005)).

¶ 13   However, where the prosecuting attorney “ ‘causes the entrance of an unconditional nolle

prosequi ***, the proceeding is terminated, and the same indictment cannot be reinstated at a

subsequent term and prosecution thereon resumed.’ ” (Emphasis added.) DeBlieck, 181 Ill. App.
3d at 605 (quoting Watson, 394 Ill. at 182). Instead, the State may reinstate a nolle prosequied

charge by moving the trial court to vacate the nolle prosequi order, or it may file a new charging

instrument to initiate a separate proceeding against the defendant. See Hughes, 2012 IL 112817,

¶¶ 23-25; DeBlieck, 181 Ill. App. 3d at 604-05. The DeBlieck court explained and distinguished

these two methods of recharging a defendant with a charge previously nolle prosequied, noting

that where the nolle prosequi order is not vacated, the charge cannot simply be “reinstated”

because there is no charge to reinstate. DeBlieck, 181 Ill. App. 3d at 605-06. Similarly, Hughes

confirmed the validity of both methods so long as the State moves to vacate the nolle prosequi

order or files a new charging instrument before jeopardy attaches. Hughes, 2012 IL 112817,

¶¶ 23-25. The record here shows the State did not follow either of the procedures as explained in



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those cases: the State did not move for the trial court to vacate the nolle prosequi order, nor did

the State file a new charging instrument to initiate a separate proceeding against defendant. The

State having taken no such action at the trial court level, there is no decision by the trial court for

us to review, and we decline to offer an advisory opinion on the matter.

¶ 14   We find guidance in People v. Dunmore, 2013 IL App (1st) 121170. That case presented

a similar situation in which the defendant pled guilty and was convicted of one count of AUUW,

and the State nolle prosequied the remaining counts against him. Dunmore, 2013 IL App (1st)
121170, ¶ 3. During the pendency of the defendant’s appeal of his sentence, our supreme court

issued its ruling in Aguilar, which invalidated the section of the AUUW statute under which the

defendant had been convicted. Id. ¶ 7. In their supplemental briefs, the defendant and the State

both agreed that the defendant’s conviction should be vacated; the State further asked the court

to remand the case to the trial court for the reinstatement of the nolle prosequied charges. Id. The

Dunmore court vacated the conviction but declined to address whether the State was entitled to

reinstate the nolle prosequied charges. Id. ¶¶ 12-13. It found that because the State had “not yet

had the opportunity to take action on the nol-prossed charges,” addressing them would

essentially amount to “decid[ing] abstract questions or render[ing] advisory opinions” because

the procedural matter of reinstating the charges against the defendant was, at that point, only

hypothetical. Id. We find the reasoning used in Dunmore to be instructive and persuasive. We

note, however, that there is a procedural difference between the two cases. Dunmore addressed

the issue on direct appeal, whereas the present case involves the appeal of a denial of defendant’s

section 2-1401 petition. This difference only provides further support for our conclusion that this

court lacks the power to grant the State the relief it seeks, specifically the reinstatement of the




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previously nolle prosequied counts against defendant. Those charges are part of an altogether

separate proceeding from the matter before us.

¶ 15   The present case is solely related to defendant’s section 2-1401 petition seeking relief

from a void judgment. Contrary to the State’s assertion, this appeal does not signify that

“prosecution is still pending.” It is well established that a section 2-1401 proceeding is “not a

continuation of the case that resulted in the judgment that it challenges” but is an altogether new

proceeding. People v. Kane, 2013 IL App (2d) 110594, ¶ 13. In this case, the original criminal

proceeding terminated after defendant entered his guilty plea and was convicted of count I, the

State nolle prosequied the remaining charges and the parties did not appeal. See People v.

Shinaul, 2015 IL App (1st) 140477, ¶ 13, appeal allowed, No. 120162 (Ill. Jan. 20, 2016). This

present appeal that is before us concerns only the trial court’s March 11, 2014 denial of

defendant’s section 2-1401 petition (and subsequent denial of defendant’s motion to reconsider).

That section 2-1401 petition was directed only at defendant’s conviction under count I, while the

remaining counts with which he was originally charged were nolle prosequied. It is count I

which we now vacate. Therefore, any issues related to the nolle prosequied counts are not

properly before us. Accordingly, this court does not have jurisdiction to grant the State’s request

or address the substantive issues it implicates.

¶ 16   Another case recently decided in this district, People v. Shinaul, 2015 IL App (1st)
140477, appeal allowed, No. 120162 (Ill. Jan. 20, 2016), also supports our finding that this court

lacks the power to provide the State with its requested relief. As in Dunmore and the present

case, the defendant in Shinaul pled guilty to one count of AUUW pursuant to a negotiated plea

agreement whereby the State nolle prosequied the remaining counts. Shinaul, 2015 IL App (1st)
140477, ¶ 4. After the Aguilar decision was issued, the defendant in Shinaul filed a section 2-



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1401 petition to vacate his conviction, and his petition was granted by the trial court. Id. ¶ 7. The

trial court then denied the State’s motion for reinstatement of the nolle prosequied charges and,

in contrast to the present case, it was the denial of that motion (and the subsequent motion to

reconsider) that the State appealed. Id. The Shinaul court found that it lacked jurisdiction to hear

the State’s appeal or determine whether the State could commence a new proceeding or refile the

same charges against the defendant. Id. ¶¶ 14-15. As “there was no pending criminal proceeding

before the trial court in [that] case,” the court found that the trial court’s dispositive orders in the

section 2-1401 proceeding did not have the “substantive effect of dismissing any charges against

defendant.” Id. ¶¶ 13-14. “[T]he sole matter before the [trial] court was defendant’s section 2-

1401 petition for relief from a void judgment.” Id. ¶ 13; Shinaul, 2015 IL App (1st) 140477, ¶ 18

(Pierce, J., specially concurring) (finding that because the original proceeding had previously

terminated and the defendant filed a section 2-1401 petition, “the trial court had jurisdiction to

consider only whether the judgment of conviction was valid”). Similarly, the present case is not a

continuation of defendant’s criminal proceeding in which the State chose to nolle prosequi all

charges against defendant except count I. We reiterate that this appeal concerns solely his section

2-1401 petition to vacate his conviction pursuant to a facially unconstitutional statute. Thus, even

if the State had asked the trial court to reinstate the nolle prosequied charges, as it did in Shinaul,

that would not vest this court with the authority to grant the State’s request that we reinstate the

previously nolle prosequied counts.

¶ 17    The decisions cited by the State are unpersuasive because they involve defendants who

had already been tried on charges that were originally nolle prosequied but later reinstated during

the criminal proceedings. See, e.g., People v. Hughes, 2012 IL 112817; People v. Norris, 214 Ill.
2d 92 (2005); People v. McCutcheon, 68 Ill. 2d 101 (1977); People v. Cabrera, 402 Ill. App. 3d



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440 (2010); see also People v. Gorka, 374 Ill. App. 3d 85 (2007) (after a successful procedure-

related appeal, defendant withdrawing his guilty plea and his subsequent jury trial on the same

charges did not violate the double jeopardy clause). In this case, by contrast, no action by the

State regarding the reinstatement of the previously nolle prosequied counts has been ruled on by

the trial court. Accordingly, a review of the trial court’s decision on any such action by the State

is not before us. “The function of a reviewing court is limited to review of issues decided by the

trial court and cannot be extended to issues not passed upon at trial.” In re Estate of Devey, 239
Ill. App. 3d 630, 633 (1993). “We do not review cases merely to guide future litigation or to set

precedent.” In re Appointment of Special Prosecutor, 253 Ill. App. 3d 218, 224 (1993).

¶ 18   Accordingly, we deny the State’s request to remand this cause to the trial court for the

expressed purpose of reinstatement of the nolle prosequied charges.

¶ 19   For the foregoing reasons, we vacate defendant’s conviction.

¶ 20   Vacated.




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