People v. Shinaul, Docket No. 120162

• Court: Supreme Court of Illinois
• Writing for the Court: CHIEF JUSTICE KARMEIER delivered the judgment of the court, with opinion.
• Citation: 2017 IL 120162,88 N.E.3d 760
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Cornelius SHINAUL, Appellee.
• Docket Number: Docket No. 120162
• Decision Date: 17 February 2017

2017 IL 120162
88 N.E.3d 760

The PEOPLE of the State of Illinois, Appellant,
v.
Cornelius SHINAUL, Appellee.

Docket No. 120162

Supreme Court of Illinois.

Opinion filed February 17, 2017.

88 N.E.3d 762

Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy Defender, and S. Amanda Ingram, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.

CHIEF JUSTICE KARMEIER delivered the judgment of the court, with opinion.

¶ 1 Defendant Cornelius Shinaul, who was 17 years old at the time, was arrested on February 9, 2009, for various firearm possession offenses. On April 8, 2009, he was charged with nine felony counts—eight aggravated unlawful use of a weapon (AUUW) counts and one unlawful possession of a firearm count. Following a Rule 402 conference ( Ill. S. Ct. R. 402 (eff. July 1, 1997)) on June 2, 2009, defendant, as part of a negotiated plea agreement, pled guilty to count I of the information ( 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008)) in exchange for the State agreeing to a nolle prosequi on the remaining charges. The Cook County circuit court accepted the guilty plea and sentenced defendant to 24 months' probation based on the Class 4 felony offense of AUUW. 720 ILCS 5/24-1.6(d)(2) (West 2008). Pursuant to the agreement, the remaining counts against defendant were nol-prossed by the State. Defendant served and completed the full term of his sentence.

¶ 2 On October 28, 2013, defendant brought a petition for relief under section 2-1401 of the Code of Civil Procedure ( 735 ILCS 5/2-1401 (West 2012) ), seeking to vacate the conviction on the basis that it was void under this court's decision in People v. Aguilar, 2013 IL 112116, ¶ 21, 377 Ill.Dec. 405, 2 N.E.3d 321, which held that the Class 4 form of AUUW set forth in section 24-1.6(a)(1), (a)(3)(A), (d) was facially unconstitutional. Conceding that defendant's conviction should be vacated in light of Aguilar, the State filed a motion to reinstate certain AUUW counts that were previously nol-prossed.

¶ 3 The circuit court held a hearing on both defendant's petition and the State's motion. At no time did defendant challenge whether the State could bring its motion in this proceeding. Rather, defendant argued that the nol-prossed charges were time-barred. Addressing the parties' arguments, the circuit court agreed that Aguilar voided defendant's conviction and that defendant

88 N.E.3d 763

could withdraw his guilty plea.¹ In the circuit court's detailed analysis, the court also denied the State's motion on the basis that reinstatement of the charges would violate the one-act, one-crime doctrine. Following the conclusion of the hearing on the parties' motions, the circuit court entered a written order consistent with its oral pronouncement. The State, thereafter, filed a motion to reconsider in the circuit court, citing People v. Hughes, 2012 IL 112817, 368 Ill.Dec. 26, 983 N.E.2d 439, and People v. McCutcheon, 68 Ill.2d 101, 11 Ill.Dec. 278, 368 N.E.2d 886 (1977), for the proposition that the previously nol-prossed charges against defendant should be reinstated because (1) the charges were dismissed before jeopardy attached and (2) there were no constitutional or statutory limitations precluding the prosecution of defendant on those charges. The circuit court denied the State's motion to reconsider, and the State timely appealed.

¶ 4 The appellate court determined it lacked jurisdiction to consider the State's appeal. 2015 IL App (1st) 140477, ¶ 9, 398 Ill.Dec. 154, 43 N.E.3d 1064. In dismissing the appeal, the appellate court rejected the State's argument that Illinois Supreme Court Rule 604(a)(1) (eff. Feb. 6, 2013), which permits the State to appeal any order that has the substantive effect of dismissing a charge, confers appellate jurisdiction. 2015 IL App (1st) 140477, ¶ 9, 398 Ill.Dec. 154, 43 N.E.3d 1064. Justice Pierce specially concurred in the judgment, writing to emphasize that, because defendant filed a section 2-1401 petition to vacate his conviction, the circuit court had jurisdiction to consider only whether the judgment of conviction was valid and that the portion of the circuit court's order stating "[d]efendant's guilty plea to count one is withdrawn" was surplusage because under the terms of Illinois Supreme Court Rule 605(b), the circuit court lacked jurisdiction to allow defendant to withdraw his plea. (Internal quotation marks omitted.) Id.¶ 18 (Pierce, J., specially concurring).

¶ 5 The State filed a petition for rehearing, arguing that even if the appellate court lacked jurisdiction under Rule 604(a)(1), it had jurisdiction pursuant to Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which allows appellate review of "[a] judgment or order granting or denying any of the relief prayed in a petition under section 2-1401 of the Code of Civil Procedure." 2015 IL App (1st) 140477, ¶ 20, 398 Ill.Dec. 154, 43 N.E.3d 1064. Upon the denial of rehearing, the appellate court modified its opinion and rejected the State's contention that it was not appealing an order granting or denying a section 2-1401 petition but, rather, it was appealing an order denying its motion to reinstate charges. Id. The appellate court reasoned that "[t]he mere fact that two separate orders—one appealable and one nonappealable—are contained in the same document does not automatically render each order independently appealable." Id. We allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Jan. 1, 2015).

¶ 6 ANALYSIS

¶ 7 The threshold question to be resolved in this case is whether the appellate court erred in dismissing the State's appeal for lack of jurisdiction. For the same reasons determined by the appellate court, defendant urges affirmance of the appellate court's dismissal on the basis that the circuit court's order was nonappealable. The State first argues that the order from which it is appealing is a final and appealable judgment as a matter of

88 N.E.3d 764

right under article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ), because the issues between the parties were fully resolved when the circuit court addressed all of the pending issues in a single written order. Even if the circuit court's order denying the State's motion to reinstate the nol-prossed counts could not be appealed as of right, the State claims that the appellate court had jurisdiction to entertain the appeal under Illinois Supreme Court Rule 304(b)(3) (eff. Feb. 26, 2010), which allows for appeals from a judgment or order granting or denying any of the relief requested in a section 2-1401 petition. For the following reasons, we find that the appellate court had jurisdiction to review the circuit court's order.

¶ 8 Whether the appellate court has jurisdiction to consider an appeal presents a question of law, which we review de novo. People v. Salem, 2016 IL 118693, ¶ 11, 400 Ill.Dec. 32, 47 N.E.3d 997. A civil remedy that extends to criminal cases, section 2-1401 of the Code of Civil Procedure outlines a comprehensive, statutory procedure by which final orders and judgments may be vacated by the circuit court more than 30 days following their entry. 735 ILCS 5/2-1401 (West 2012) ; People v. Vincent, 226 Ill.2d 1, 7, 312 Ill.Dec. 617, 871 N.E.2d 17 (2007). A section 2-1401 proceeding is a new and separate cause of action that is subject to the usual rules of civil procedure. Price v. Philip Morris, Inc., 2015 IL 117687, ¶ 23, 397 Ill.Dec. 726, 43 N.E.3d 53 (citing Vincent, 226 Ill.2d at 7, 312 Ill.Dec. 617, 871 N.E.2d 17 ).

¶ 9 It is undisputed that defendant's section 2-1401 petition correctly asserted that his conviction as part of the negotiated plea should be vacated in light of this court's decision in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321. Further, the State properly filed its motion to reinstate the prior nol-prossed charges by proceeding under this court's alternative method of reinstating once nol-prossed charges.² See People v. Hughes, 2012 IL 112817, ¶¶ 24-25, 368 Ill.Dec. 26, 983 N.E.2d 439 (identifying two mechanisms by which the State can reinstate once nol-prossed charges: the State may file a new information or indictment, or the State can alternatively move to vacate the nolle prosequi and reinstate the original charges). The question, then, is whether the circuit court's denial of the State's motion was a final and appealable order.

¶ 10 Article VI, section 6, of the Illinois Constitution confers on the appellate court jurisdiction to hear appeals from all final judgments entered by the circuit court. Ill. Const. 1970, art. VI, § 6. It is well settled that a "final judgment" is a determination by the circuit court on the issues presented by the pleadings "which ascertains and fixes absolutely and finally the rights of the parties in the lawsuit." Hernandez v. Pritikin, 2012 IL 113054, ¶ 47, 367 Ill.Dec. 253, 981 N.E.2d 981. In other words, a judgment or order is considered final and appealable if it determines the litigation on the merits such that the only thing remaining is to proceed with execution of judgment. In re Michael D., 2015 IL 119178, ¶ 13, 410 Ill.Dec. 277, 69 N.E.3d 822 ; Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill.2d 221, 233, 298 Ill.Dec. 739, 840 N.E.2d 1174 (2005). Accordingly, only an order which leaves the cause still pending and undecided is not a final order for purposes of appeal.

88 N.E.3d 765

¶ 11 In this case, the issues before the circuit court were limited to whether the AUUW count to which defendant had pled guilty should be vacated, whether he should be allowed to withdraw his negotiated guilty plea, and whether the State should be allowed to reinstate the counts it had nol-prossed as...