Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County. No. 07 CR 4176 The
Honorable Marguerite A. Quinn, Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with
opinion. Presiding Justice Fitzgerald Smith and Justice Cobbs
concurred in the judgment and opinion.
1 Defendant Crandell (also referred to as Crandall) Wells
filed a collateral petition and appeal from his 10-year
negotiated guilty plea conviction, and this court remanded
for withdrawal of the plea. The State reinstated certain
charges, and following a jury trial, defendant was found
guilty of aggravated battery of a senior citizen and robbery
and was sentenced to 15 years in prison. Defendant appeals
arguing, among other claims, that the trial court erred in
denying his motion to dismiss the reinstated charges as
time-barred. We reverse.
3 On January 25, 2007, defendant beat a 65-year-old woman
over the head with a BB gun, resulting in stitches in four
places on her head, and then took her purse. He fled in a
black Volkswagen but was later stopped by police, who
promptly discovered the gun and the victim's purse.
Defendant was arrested shortly thereafter, and, on February
14, 2007, a grand jury indicted defendant on six counts. He
was charged with armed robbery, aggravated robbery, robbery,
aggravated battery of a senior citizen, and two counts of
4 Following an Illinois Supreme Court Rule 402 (eff. July 1,
1997) conference, on June 12, 2007, defendant entered a
negotiated guilty plea to count I, armed robbery with a
bludgeon (i.e., the BB gun). In exchange, the State
entered a nolle prosequi of the remaining charges,
and defendant was sentenced to the agreed term of 10
years' imprisonment at 85% based on the finding of great
bodily harm. A nolle prosequi is the formal record
entry by the State denoting an unwillingness to prosecute a
charge, and while not an acquittal, it leaves the matter in
the same condition as before the prosecution commenced.
People v. Hughes, 2012 IL 112817, ¶¶ 22,
23. Thereafter, defendant did not move to withdraw his guilty
plea or file a direct appeal.
5 Defendant nonetheless filed a pro se
postconviction petition (see 725 ILCS 5/122-1 (West 2008))
arguing he was not admonished during guilty plea proceedings,
as required by People v. Whitfield, 217 Ill.2d 177
(2005), regarding the three-year period of mandatory
supervised release (MSR) to follow his sentence. He requested
modification of his sentence to 7 years, followed by 3
years' MSR, to approximate the bargain struck by the
parties. On January 24, 2008, at a hearing on the petition,
the trial court acknowledged it failed to admonish defendant
of the MSR period and granted defendant's petition.
Instead of accepting defendant's requested remedy, the
court stated defendant could proceed to trial or accept the
offer of 10 years' imprisonment at 85 percent. Defendant,
while represented by stand-in counsel, withdrew his guilty
plea and then entered the same negotiated guilty plea to
armed robbery with a bludgeon in exchange for 10 years, only
this time he was admonished of the 3 years' MSR.
Defendant did not move to withdraw his guilty plea or file a
6 Following his second guilty plea, on August 20, 2010,
defendant filed a petition under section 2-1401 of the Code
of Civil Procedure (735 ILCS 5/2-1401 (West 2010)) alleging
his attorney at the January 2008 plea hearing was ineffective
for failing to argue defendant was entitled to the remedy of
correcting his sentence to 7 years in prison, plus 3
years' MSR, rather than withdrawing his guilty plea.
Defendant's section 2-1401 petition was ultimately
recharacterized as a postconviction petition and dismissed.
7 On appeal from that judgment, defendant argued for the
first time that his 10-year sentence for armed robbery
violated the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, art. I, § 11) because it
contained the same elements as armed violence, but carried a
stiffer sentence. This court agreed and declared his armed
robbery conviction was void. People v. Wells, 2012
IL App (1st) 103757-U, ¶¶ 12, 19; see also
People v. Taylor, 2015 IL 117267, ¶ 15 (a
sentence based on a statute that violates the proportionate
penalties clause is facially unconstitutional and thus void
ab initio). As a remedy, defendant asked that we
impose the maximum sentence for the identical armed violence
offense, which was seven years, or remand for resentencing on
that offense. Wells, 2012 IL App (1st) 103757-U,
¶ 16. The State urged upholding defendant's armed
robbery sentence absent an alternative argument as to a
remedy should we find a proportionate penalties violation.
This court found the usual remedies available in
proportionate penalties cases did not apply in part because
this case involved a negotiated guilty plea. We held
defendant's proposed remedy was inappropriate since
defendant had entered into a negotiated guilty plea to armed
robbery alone and was not charged with armed violence.
Id. ¶¶ 16, 23. We noted it is the
State's role to bring charges and plea bargain with the
defendant should it so choose, and defendant's remedy
essentially violated the contract principles involved in
negotiated pleas. Accordingly, we held defendant's guilty
plea and sentence were void and remanded the matter for
withdrawal of the plea and further proceedings.
8 Defendant's case was then redocketed. Neither party on
appeal disputes that the charges were reinstated. According
to the trial court, the counts were "alive" again.
On November 13, 2013, following a Rule 402 conference,
defendant declined an offer to receive a 10-year sentence on
a different count.
9 Facing a new trial, defendant moved to dismiss the
reinstated charges for violating the statute of limitations
(see 725 ILCS 5/114-1(a)(2) (West 2006), 720 ILCS 5/3-5(b)
(West 2006)) and asked to be released from custody. That
section of the Code states that generally "a prosecution
*** must be commenced within 3 years after the commission of
the offense if it is a felony." 720 ILCS 5/3-5(b) (West
2006). The relevant statute defined a "
'[p]rosecution' " as "all legal proceedings
by which a person's liability for an offense is
determined, commencing with the return of the indictment or
the issuance of the information, and including the final
disposition of the case upon appeal." 720 ILCS 5/2-16
(West 2006). Defendant argued that the remaining five felony
charge counts were barred by the three-year limitations
period of section 3-7 of the Code which states that
"[t]he period within which a prosecution must be
commenced does not include any period in which *** [a]
prosecution is pending against the defendant for the same
conduct, " even if the "proceedings thereon are set
aside, or are reversed on appeal." 720 ILCS 5/3-7(c)
(West 2006). Defendant argued that his collateral petition
and appeal filed after his 2008 guilty plea did not toll the
statute of limitations, in that it did not constitute a
"pending prosecution" under section 3-7. He
maintained the statute of limitations expired as of June
10 The State responded relying principally on People v.
McCutcheon, 68 Ill.2d 101 (1977), where our supreme
court held that a prosecutor can reinstate charges when a
defendant withdraws his guilty plea in the circuit court
or after a reviewing court vacates the guilty plea
on direct appeal. Contrary to the defendant's contention,
the court held reinstating charges was not barred by double
jeopardy. The court wrote:
"In short, defendant's first successful appeal of
his guilty plea placed him in the position he held prior to
the plea or in the position he would have held had he been
allowed to withdraw his plea. The appellate court's
mandate to plead anew encompassed starting the process over.
*** Fairness for the interests of the People demands that the
State not be bound by a plea agreement, once ...