source: Caselaw Access Project

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text:
    The BANK OF NEW YORK MELLON, Appellee, v. Mark E. LASKOWSKI et al. (Pacific Realty Group, LLC, Appellant).
    Docket No. 121995
    Supreme Court of Illinois.
    Opinion filed January 19, 2018
    Carla Sherieves, of CMS Law, LLC, of Chicago, for appellant.
    Joseph D. Kern and Matthew R. Carter, of Winston & Strawn LLP, of Chicago, for appellee.
   JUSTICE THOMAS delivered the judgment of the court, with opinion.

¶ 1 The issue we must decide is whether Pacific Realty Group, LLC, timely filed its motion to quash service. We hold that it did.

¶ 2 BACKGROUND

¶ 3 On June 11, 2010, in its capacity as the trustee for certain certificate holders of an alternative loan trust, the Bank of New York Mellon (the Bank) filed a residential mortgage foreclosure complaint against Mark Laskowski, Pacific Realty Group, LLC (Pacific), and others in Will County circuit court. In July 2010, the Bank filed an affidavit for service by publication stating that, after a due diligence search, it was unable to locate or serve Pacific. The Bank's search included both directory assistance records and the Illinois Secretary of State's business registration records. After service by publication was made, Pacific failed to appear or otherwise respond to the complaint. In July 2012, the trial court entered an order of default and a judgment of foreclosure. In the judgment, the trial court made a specific finding that service of process was properly made as to Pacific. In February 2013, the subject property was sold at a sheriff's sale.

¶ 4 In April 2013, the Bank filed a motion requesting an order approving the report of the sale of the property and the proposed distribution of the proceeds, as well as an order of possession. The motion was noticed up for April 18, 2013, and on that date Pacific's attorney showed up for the first time and filed an appearance. However, because the Bank failed to appear, the trial court on its own motion dismissed the Bank's case for want of prosecution (DWP). Shortly thereafter, the Bank moved to vacate the DWP. On May 30, 2013, the trial court granted the Bank's motion and reinstated the case.

¶ 5 On July 18, 2013, Pacific filed a motion to quash service of process. The motion alleged that Pacific is a foreign LLC registered in New Mexico and that it does not have a registered agent in Illinois. According to Pacific, this means that service by publication was improper because section 1-50 of the Limited Liability Company Act ( 805 ILCS 180/1-50 (West 2010) ) does not allow an unregistered foreign LLC to be served in that manner. In May 2014, the trial court denied Pacific's motion. In doing so, the trial court first found that the motion was untimely because it was filed more than 60 days after Pacific filed its appearance in the case. See 735 ILCS 5/15-1505.6(a) (West 2012). The trial court also denied the motion on the merits, holding that service by publication was proper. The trial court subsequently entered an order approving the report of the sheriff's sale and the proposed distribution of the proceeds.

¶ 6 Pacific appealed, and a divided appellate court affirmed the trial court's decision denying Pacific's motion. 2017 IL App (3d) 140566, 410 Ill.Dec. 846, 71 N.E.3d 1125. On appeal, Pacific argued both that its motion to quash service was timely and that it should have been granted on the merits. The appellate court majority began with the timeliness question, citing section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1505.6(a) (West 2012)). In relevant part, that section states that, "unless extended by the court for good cause shown," the deadline for filing a motion to quash service in a residential foreclosure case is "60 days after * * * the date that the moving party filed an appearance." Id. § 15-1505.6(a)(i). The majority explained that, although Pacific filed its appearance on April 18, 2013, it did not file its motion to quash service until July 18, 2013, which was nearly 90 days later. 2017 IL App (3d) 140566, ¶ 16, 410 Ill.Dec. 846, 71 N.E.3d 1125. As importantly, Pacific did not seek or obtain an extension of the 60-day deadline "for good cause," as section 15-1505.6(a) allows. Id. Consequently, the majority held, Pacific's motion to quash was clearly untimely, and the trial court was correct to deny it as such. Id. As a final matter, the majority stated that, because it affirmed the trial court's finding that Pacific's motion was untimely, it "need not address * * * whether the service by publication on Pacific in this case was proper." Id. ¶ 17.

¶ 7 Justice Holdridge dissented. His position was that, under the principles announced by this court in Case v. Galesburg Cottage Hospital , 227 Ill. 2d 207, 316 Ill.Dec. 693, 880 N.E.2d 171 (2007), "the 60-day deadline for contesting service could not have applied" while the case was DWP. 2017 IL App (3d) 140566, ¶ 23, 410 Ill.Dec. 846, 71 N.E.3d 1125 (Holdridge, J., dissenting). Rather, that deadline began to run only when the case was reinstated, which occurred on May 30, 2013. Id. Pacific's motion to quash therefore was timely, as it was filed 49 days later, on July 18, 2013. Id.

¶ 8 We granted Pacific's petition for leave to appeal ( Ill. S. Ct. R. 315 (eff. Mar. 15, 2016)).

¶ 9 DISCUSSION

¶ 10 In this court, Pacific raises the same two arguments that it raised in the appellate court below. First, Pacific argues that its motion to quash service was timely. Second, Pacific argues that its motion to quash service should have been granted because service by publication was improper in this case. We will begin with the timeliness question.

¶ 11 Timeliness

¶ 12 Pacific's timeliness argument raises a question of statutory interpretation, and the principles governing such inquiries are familiar and well settled. The cardinal rule of statutory construction is to ascertain and give effect to the legislature's intent. People v. Johnson , 2017 IL 120310, ¶ 15, 413 Ill.Dec. 10, 77 N.E.3d 615. The most reliable indicator of legislative intent is the language of the statute, given its plain and ordinary meaning. Id. That said, a court also will presume that the legislature did not intend absurd, inconvenient, or unjust results. Id. Consequently, where a plain or literal reading of a statute renders such results, the literal reading should yield. Id. The construction of a statute is a question of law that we review de novo . Id.

¶ 13 The statute at issue is section 15-1505.6(a) of the Illinois Mortgage Foreclosure Law ( 735 ILCS 5/15-1505.6(a) (West 2012)). In relevant part, that section provides that:

"In any residential foreclosure action, the deadline for filing a motion to * * * quash service of process * * * unless extended by the court for good cause shown, is 60 days after the earlier of these events: (i) the date that the moving party filed an appearance; or (ii) the date that the moving party participated in a hearing without filing an appearance." Id.

Here, it is undisputed that Pacific filed its motion to quash service on July 18, 2013, which was approximately 90 days after it filed its appearance. The question for us is whether the 60-day statutory clock continued to run while the Bank's case was DWP. Pacific insists that it did not because, as long as the case was DWP, there was neither reason nor opportunity for Pacific to file a motion to quash service. In support, and like the dissent below, Pacific relies principally upon this court's decision in Case . The Bank, by contrast, argues that section 15-1505.6(a) is "clear and unambiguous" in stating that, unless extended by the court for good cause, the deadline for filing a motion to quash service in a residential foreclosure action is 60 days after the moving party files its appearance. Here, the court did not extend the 60-day deadline, and Pacific filed its motion approximately 90 days after filing its appearance. Thus, the Bank argues, there is no question that Pacific's motion was untimely, and this court does not have to look any further than the plain language of the statute to reach this obvious conclusion.

¶ 14 For two reasons, we agree with Pacific. To begin with, the plain language of section 15-1505.6(a) supports the conclusion that the 60-day clock is tolled while the underlying case is DWP. In relevant part, section 15-1505.6(a) states that, "[i]n any residential foreclosure action," the deadline for filing a motion to quash service of process is 60 days after the moving party files its appearance. Id. The key phrase here is "[i]n any residential foreclosure action," because that phrase expressly defines the setting in which the passage of time will be measured. Needless to say, 60 days cannot pass in a residential foreclosure action if no such action is pending. Nor can a party comply with the statutory filing deadline in the absence of an active case, even if it wanted to. Thus, to suggest that Pacific was still on the clock even when the Bank's case was DWP is to suggest the impossible, both conceptually and practically. The legislature's use of the phrase "[i]n any residential foreclosure action" clearly reflects this reality, and we therefore reject the Bank's contention that the 60-day deadline was unaffected by the dismissal of the Bank's case.

¶ 15 As Pacific correctly points out, this conclusion finds solid support in our decision in Case . In Case , the plaintiffs filed a negligence complaint on April 25, 2003. Case , 227 Ill. 2d at 209, 316 Ill.Dec. 693, 880 N.E.2d 171. A month later, on May 20, 2003, the plaintiffs voluntarily dismissed that complaint pursuant to section 2-1009 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-1009 (West 2006) ). Case , 227 Ill. 2d at 210, 316 Ill.Dec. 693, 880 N.E.2d 171. Almost one year later, on April 12, 2004, the plaintiffs refiled their complaint pursuant to section 13-217 of the Code ( 735 ILCS 5/13-217 (West 2006) ). Case , 227 Ill. 2d at 210, 316 Ill.Dec. 693, 880 N.E.2d 171. Section 13-217 provides that, where a plaintiff voluntarily dismisses a timely filed complaint, that plaintiff has either one year or the remaining limitations period, whichever is greater, to refile the action. By April 26, 2004, the plaintiffs had obtained service of process on all of the defendants. Id. The defendants later filed a motion to dismiss under Illinois Supreme Court Rule 103(b) (eff. July 1, 1997), arguing that the plaintiffs had failed to exercise reasonable diligence in obtaining service of process. Case , 227 Ill. 2d at 211, 316 Ill.Dec. 693, 880 N.E.2d 171. After a hearing, the trial court held that the plaintiffs had violated Rule 103(b), in that it took the plaintiffs almost one year after the initial filing to obtain service on the defendants, despite the fact the defendants were all local health care providers with readily ascertained locations. Id. Accordingly, the trial court dismissed the plaintiffs' case with prejudice. Id.

¶ 16 In reversing the trial court's decision, this court explained that "the pendency of an action that a defendant argues is delayed is central to any determination of whether a passage of time should be considered for purposes of Rule 103(b)." Id. at 217, 316 Ill.Dec. 693, 880 N.E.2d 171. Further, the court explained that

"[t]he requirement of a pending action against which to measure diligence is rooted in simple logic. If an action is dismissed, and not pending, there is no reason to serve a defendant with process. As such, there is nothing to delay, and nothing to be diligent about." Id.

Accordingly, the court concluded by holding that "the time that elapses between the dismissal of a plaintiff's complaint and its refiling pursuant to section 13-217 is not to be considered by a court when ruling on a motion to dismiss for violation of Rule 103(b)." Id. at 222, 316 Ill.Dec. 693, 880 N.E.2d 171.

¶ 17 The same logic that controlled Case controls here. Again, before 60 days can pass "[i]n any residential foreclosure action," such an action necessarily must be pending. And unless such an action is pending, there is neither cause nor occasion to file a motion contesting the plaintiff's service of process. Accordingly, we hold that the time that elapses between the DWP of a residential mortgage foreclosure action and its subsequent reinstatement is not to be counted in determining whether a motion to quash service is timely under section 15-1505.6(a).

¶ 18 Our second reason for agreeing with Pacific is rooted in the principle that, in construing the language of a statute, courts will presume that the legislature did not intend absurd, inconvenient, or unjust results. Pacific's reading of section 15-1505.6(a) yields no such results. On the contrary, Pacific's reading yields an entirely sensible and workable result, by which the statutory time period for filing a motion to quash service in a residential foreclosure action runs as long as the case is pending and ceases to run as long as the case is not pending. By contrast, the Bank's reading of section 15-1505.6(a) yields results that are at once absurd, inconvenient, and unjust. The absurdity lies in the prospect of section 15-1505.6(a)'s 60-day filing period not only running but also expiring while the underlying case is DWP, which is what would have happened here had the order vacating the DWP come just two weeks later than it did. The inconvenience comes in mandating the noticing up and filing of a motion to quash service in a case that's been dismissed, a procedural maneuver so unprecedented that the Bank's own counsel concedes "there's no way to definitively know" how it could be done. Finally, the injustice would come in holding that a residential foreclosure defendant is bound by a statutory filing deadline with which it is legally impossible to comply, which is exactly what we would be saying if we endorsed the Bank's reading of section 15-1505.6(a) and held that the 60-day clock continues to run even while the action is dismissed. For all of these reasons, we emphatically reject the Bank's reading of section 15-1505.6(a) in favor of that advocated by Pacific and compelled by the clear statutory language, given its plain and ordinary meaning.

¶ 19 The only question that remains on this point is whether Pacific's motion to quash service was in fact timely. We hold that it was. Again, section 15-1505.6(a) provides that, in any residential foreclosure action, the deadline for filing a motion to quash service of process is "60 days after * * * the date that the moving party filed an appearance." 735 ILCS 5/15-1505.6(a)(i) (West 2012). And under our holding above, the time that elapses between the DWP of a residential mortgage foreclosure action and its subsequent reinstatement is not to be counted in calculating the statutory deadline. Here, Pacific filed its appearance on April 18, 2013, which was the same date that the trial court dismissed the Bank's case for want of prosecution. This means that, once the DWP was vacated and the Bank's case reinstated, Pacific had 60 days to file its motion to quash service. The trial court's order vacating the DWP and reinstating the Bank's case was entered on May 30, 2013, and Pacific filed its motion 49 days later, on July 18, 2013. This was well within the statutory deadline, and we therefore hold that Pacific's motion to quash service was timely.

¶ 20 Service by Publication

¶ 21 Pacific's other argument is that the trial court should have granted its motion to quash service because service by publication was legally improper in this case. As discussed above, because it agreed with the trial court's conclusion that Pacific's motion to quash service was untimely, the appellate court below did not reach the question of whether service by publication was proper. We therefore remand this case to the appellate court for the consideration of that question in the first instance.

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we reverse the appellate court's judgment affirming the trial court's decision finding that Pacific's motion to quash service was untimely, and we remand this cause to the appellate court for consideration of whether service by publication was proper in this case.

¶ 24 Appellate court judgment reversed.

¶ 25 Cause remanded.

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Appellant, v. Robert CAREY, Appellee.
    Docket No. 121371
    Supreme Court of Illinois.
    Opinion filed January 19, 2018
    Lisa Madigan, Attorney General, of Springfield, and Anita M. Alvarez, State's Attorney, of Chicago (David L. Franklin, Solicitor General, and Michael M. Glick and Michael L. Cebula, Assistant Attorneys General, of counsel), for the People.
    Michael J. Pelletier, State Appellate Defender, Patricia Mysza, Deputy Defender, and Manuel S. Serritos, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
   JUSTICE FREEMAN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial in the circuit court of Cook County, defendant, Robert Carey, was convicted of first degree felony murder predicated on attempted armed robbery while armed with a firearm ( 720 ILCS 5/9-1(a)(3) (West 2010)). The appellate court reversed defendant's conviction, holding that the indictment failed to specify the predicate offense to the prejudice of defendant. 2016 IL App (1st) 131944, 407 Ill.Dec. 96, 62 N.E.3d 341. This court allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). We now reverse the judgment of the appellate court and remand the cause to that court for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 On January 28, 2011, defendant and his brother, Jimmy Townsend, ambushed two armored truck guards employed by Garda Cash Logistics (Garda). Defendant was shot twice in the head during the attack, and Townsend died as a result of multiple gunshot wounds to his chest. Defendant was charged by indictment with first degree felony murder based on attempted armed robbery (count I) ( 720 ILCS 5/9-1(a)(3) (West 2010)). He was also charged with attempted armed robbery while armed with a firearm (count II) (id. §§ 8-4, 18-2(a)(2)) and with unlawful use or possession of a weapon by a felon based on his possession of a firearm (counts III and IV) (id. § 24-1.1(a)). On March 18, 2011, defendant was arraigned on all four counts.

¶ 4 Prior to trial, defendant underwent multiple examinations to determine his fitness to stand trial in light of his head injuries. Based on the results of those examinations, the circuit court found defendant fit to stand trial even though his ability to recollect and relate the events surrounding the shooting incident was impaired.

¶ 5 The State filed a motion in limine requesting that defendant be precluded from arguing that the handgun found in defendant's possession at the scene must be in "operable" condition in order to qualify as a "firearm" under the Firearm Owners Identification Card Act (FOID Act) ( 430 ILCS 65/1.1 (West 2010) ). During the hearing on the motion, the prosecutor advised the court and defense counsel that possession of a firearm was an element of the predicate offense charged in count I, which was attempted armed robbery under section 18-2(a)(2) of the Criminal Code of 1961 (Criminal Code) ( 720 ILCS 5/18-2(a)(2) (West 2010)). The prosecutor further indicated that the State intended to prove that defendant was armed with an automatic handgun that qualified as a "firearm" under the FOID Act despite defendant's contention that the gun was inoperable. The court granted the State's motion but also indicated that defendant could argue that the handgun fell within an exception to the statutory definition of a "firearm" if the evidence supported such an argument.

¶ 6 On January 29, 2013, immediately before jury selection, the State moved for entry of a nolle prosequi on the charges of attempted armed robbery and unlawful use or possession of a weapon by a felon alleged in counts II, III, and IV. The trial court granted the State's motion, and defendant was tried before a jury on the charge of felony murder alleged in count I.

¶ 7 At trial, which commenced the following day, the State presented eyewitness testimony from the two armored truck guards, Julio Rodriguez and Derrick Beckwith, and from three other witnesses who were in the vicinity and either saw or heard the attack. The State also introduced testimony from the responding police officer, a medical examiner who reviewed Townsend's autopsy report, a forensic investigator, a firearm identification expert, and the detective assigned to investigate the incident.

¶ 8 The State's evidence reflected the following relevant facts. On the morning of January 28, 2011, the two armored truck guards, Rodriguez and Beckwith, were assigned to collect cash receipts from a Family Dollar store located at the corner of Chicago and Homan Avenues in Chicago. Rodriguez went into the store while Beckwith remained in the truck. When Rodriguez came outside, he was holding a deposit bag containing the store's cash receipts. Defendant and Townsend simultaneously approached him from separate positions. As Townsend advanced toward Rodriguez, he was aiming an object that appeared to be a sawed-off shotgun. Defendant, who had a handgun in his possession, approached Rodriguez from a different direction. After Townsend yelled for defendant to shoot, Rodriguez shot Townsend four times with his service revolver. Townsend collapsed on the pavement and threw the object he was holding to defendant, who put Rodriguez in a choke hold. Townsend ultimately died from the gunshot wounds to his chest.

¶ 9 During the struggle, Rodriguez dropped the money bag, broke free from defendant, and ran toward the truck. Beckwith then fired four shots at defendant through the open passenger-side door of the truck. Two bullets struck defendant in the head, one of which hit him directly in his right eye. Defendant fell to the ground and remained there until the police and paramedics arrived. As a result of the head injuries he suffered from the shooting, defendant was in a coma for a period of time. When he regained consciousness, defendant stated that he had no memory of the shooting or of anything that had happened during the week preceding the incident.

¶ 10 Upon examination, the item that Townsend had aimed at Rodriguez was found to be a homemade object fashioned to resemble a sawed-off shotgun. The object consisted of two metal pipes fastened to a piece of wood with duct tape, with a brown rag wrapped across one of the ends to serve as a handle.

¶ 11 The handgun found with defendant was subjected to forensic testing, which revealed that it was an unloaded double-barreled .22-caliber derringer designed to fire live ammunition. An obstruction in the upper barrel prevented placement of a round in that chamber, but the lower barrel was not obstructed. Multiple attempts to test-fire the derringer demonstrated that its firing pin did not strike with enough force to cause a cartridge in the lower barrel to discharge. The State's expert in firearm identification concluded that the handgun was inoperable in its current state.

¶ 12 In defense, defendant testified that he had no memory of the incident, but he could recall some of the circumstances that preceded it. Defendant recalled that, sometime in November or December 2010, Townsend said that he wanted to "end his life" and desired to "go out in a hail of bullets." Defendant also recalled that the topic of suicide often came up during conversations with his brother. In addition, defendant admitted that he had seen and held the derringer handgun multiple times prior to the incident, and he remembered seeing the makeshift "shotgun" because it was usually kept in the van that he and Townsend often drove. Finally, defendant acknowledged that it was possible that he and Townsend were trying to rob the armored truck on the day of the shooting. However, because he had no memory of the incident, defendant could not say with certainty whether that was the case.

¶ 13 During the jury instruction conference, the prosecutor advised that the State was seeking imposition of the firearm sentencing enhancement and tendered a corresponding instruction. Defense counsel objected, arguing that the State had not provided notice of its intent to seek an enhanced sentence. The circuit court issued the instruction and sentence-enhancement verdict form over defendant's objection.

¶ 14 The jury found defendant guilty of first degree murder. The jury separately found that defendant committed the offense while armed with a firearm. The trial court denied defendant's motion for a new trial, sentenced him to 25 years' imprisonment, and also imposed an additional 15-year term based on his possession of a firearm.

¶ 15 On appeal, defendant asserted that he was not proven guilty beyond a reasonable doubt because the evidence of the predicate offense of attempted armed robbery with a firearm was insufficient. In particular, he claimed that the State failed to prove his intent to rob the armored truck guards and also failed to prove that the inoperable derringer qualified as a "firearm." Defendant further argued that the trial court erred in ruling that he was fit to stand trial and in ruling that the State was entitled to seek the 15-year firearm sentencing enhancement. In addition, defendant contended that he was prejudiced in the preparation of his defense where the indictment failed to specify the offense that formed the predicate offense for the charge of felony murder.

¶ 16 The appellate court reversed defendant's conviction for felony murder on the ground that the indictment failed to specify the predicate offense to the prejudice of defendant. 2016 IL App (1st) 131944, ¶¶ 22-37, 407 Ill.Dec. 96, 62 N.E.3d 341. The appellate court reasoned that count I of the indictment was defective because it did not identify which of the two attempted armed robbery offenses served as the predicate for the felony murder charge. Id. ¶ 22. Based on that defect, the appellate court concluded that the indictment failed to adequately inform defendant of the charges against him with sufficient detail to allow preparation of an adequate defense. Id. ¶¶ 22, 24, 28, 33-34. In addition, the appellate court held that the defect in count I was not cured by reference to the other charges alleged in counts II, III, and IV or to the assertions in the State's motion in limine . Id. ¶¶ 30-31. Because the appellate court found the insufficiency of the indictment issue to be dispositive, it did not address defendant's remaining arguments. Id. ¶¶ 18, 37.

¶ 17 The State appeals to this court. Additional pertinent background will be discussed in the context of our analysis of the issues.

¶ 18 II. ANALYSIS

¶ 19 The State assigns error to the appellate court's reversal of defendant's conviction of first degree felony murder. The State disagrees with the appellate court's holding that the indictment failed to specify the predicate offense of attempted armed robbery to the prejudice of defendant. The State contends that the indictment sufficiently informed defendant of the charges brought against him. The sufficiency of a charging instrument is a question of law subject to de novo review. See People v. Rowell , 229 Ill. 2d 82, 92, 321 Ill.Dec. 765, 890 N.E.2d 487 (2008).

¶ 20 A criminal defendant has a fundamental right to be informed of the nature and cause of criminal accusations made against him. People v. Nash , 173 Ill. 2d 423, 428, 220 Ill.Dec. 154, 672 N.E.2d 1166 (1996) (citing U.S. Const., amend. VI ; Ill. Const. 1970, art. I, § 8 ); People v. Meyers , 158 Ill. 2d 46, 51, 196 Ill.Dec. 646, 630 N.E.2d 811 (1994) (same). In Illinois, this constitutional right is implemented by section 111-3 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/111-3 (West 2010) ). Section 111-3(a) imposes specific pleading requirements for criminal charges. Nash , 173 Ill. 2d at 428-29, 220 Ill.Dec. 154, 672 N.E.2d 1166 ; Meyers , 158 Ill. 2d at 51, 196 Ill.Dec. 646, 630 N.E.2d 811. These principles also apply to the predicate or underlying offense of a charged crime. This rule "protects the defendant against being forced to speculate as to the nature or elements of the underlying offense, thus spreading his resources thin, attempting to rebut all of the possibilities, while the prosecutor merely focuses on the most promising alternative and builds his case around that." People v. Hall , 96 Ill. 2d 315, 320, 70 Ill.Dec. 836, 450 N.E.2d 309 (1982).

¶ 21 The timing of a challenge to a charging instrument is significant in determining whether a defendant is entitled to reversal of his or her conviction based on charging instrument error. Rowell , 229 Ill. 2d at 93, 321 Ill.Dec. 765, 890 N.E.2d 487 ; People v. Benitez , 169 Ill. 2d 245, 257, 214 Ill.Dec. 490, 661 N.E.2d 344 (1996). If an indictment or information is challenged before trial in a pretrial motion, the charging instrument must strictly comply with the requirements in section 111-3(a). Rowell , 229 Ill. 2d at 93, 321 Ill.Dec. 765, 890 N.E.2d 487 (and cases cited therein); People v. Thingvold , 145 Ill. 2d 441, 448, 164 Ill.Dec. 877, 584 N.E.2d 89 (1991).

¶ 22 In contrast, while we do not approve of any failure to strictly comply with the clear requirements of section 111-3(a), the sufficiency of a charging instrument attacked for the first time on appeal is not determined by strict compliance with the statute but rather "by a different standard." People v. Pujoue , 61 Ill. 2d 335, 339, 335 N.E.2d 437 (1975) ; see People v. Gilmore , 63 Ill. 2d 23, 29, 344 N.E.2d 456 (1976). When attacked for the first time on appeal, a charging instrument is sufficient if it notified the defendant of the precise offense charged with enough specificity to allow the defendant to (1) prepare his or her defense and (2) plead a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. DiLorenzo , 169 Ill. 2d 318, 322, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996) (collecting cases). "In other words, the appellate court should consider whether the defect in the information or indictment prejudiced the defendant in preparing his defense." Thingvold , 145 Ill. 2d at 448, 164 Ill.Dec. 877, 584 N.E.2d 89 ; accord Rowell , 229 Ill. 2d at 93, 321 Ill.Dec. 765, 890 N.E.2d 487 ; People v. Phillips , 215 Ill. 2d 554, 562, 294 Ill.Dec. 624, 831 N.E.2d 574 (2005). In making this determination, the reviewing court may resort to the record. DiLorenzo , 169 Ill. 2d at 324, 214 Ill.Dec. 846, 662 N.E.2d 412. "Thus, the question is whether, in light of the facts of record, the indictment was so imprecise as to prejudice defendant's ability to prepare a defense." Phillips , 215 Ill. 2d at 562, 294 Ill.Dec. 624, 831 N.E.2d 574. If the reviewing court cannot say that the charging instrument error inhibited the defendant in the preparation of his or her defense, then the court cannot conclude that the defendant suffered any prejudice. See People v. Cuadrado , 214 Ill. 2d 79, 88, 291 Ill.Dec. 638, 824 N.E.2d 214 (2005).

¶ 23 The State contests the appellate court's conclusion that the indictment did not sufficiently inform defendant of the felony murder charge "for two independent reasons: (1) Count I fully informed defendant of the murder charge; and (2) even if Count I were deficient, read as a whole the indictment fully informed defendant of the murder charge." We initially consider the State's second argument.

¶ 24 Count I alleged that on or about January 28, 2011, within Cook County, defendant "committed the offense of first degree murder in that he, without lawful justification, committed the offense of attempt armed robbery, and during the commission of the offense, he set in motion a chain of events that caused the death of Jimmy Townsend" in violation of section 9-1(a)(3) of the Criminal Code. As the appellate court noted, armed robbery can refer to either of two crimes: armed robbery "with a dangerous weapon other than a firearm" ( 720 ILCS 5/18-2(a)(1) (West 2010)) or armed robbery "with a firearm" (id. § 18-2(a)(2) ). These two types of armed robbery are "substantively distinct offenses" ( People v. Washington , 2012 IL 107993, ¶ 6, 360 Ill.Dec. 539, 969 N.E.2d 349 ) and "are mutually exclusive of each other" ( People v. Barnett , 2011 IL App (3d) 090721, ¶ 38, 351 Ill.Dec. 877, 952 N.E.2d 669 ). The appellate court observed that count I did not provide either a statutory citation or factual allegations to indicate which type of armed robbery the State sought to prove at trial. Focusing exclusively on count I, the appellate court concluded that this deficiency rendered the indictment fatally insufficient. 2016 IL App (1st) 131944, ¶ 22, 407 Ill.Dec. 96, 62 N.E.3d 341.

¶ 25 "It is a well-established rule in Illinois that all counts of a multiple-count indictment should be read as a whole and that elements missing from one count of an indictment may be supplied by another count." People v. Morris , 135 Ill. 2d 540, 544, 143 Ill.Dec. 215, 554 N.E.2d 150 (1990). Accordingly, when one count of a multiple-count indictment states the alleged predicate offense for another count with specificity, the latter count should not be held void unless the indictment itself, or the prosecutor, affirmatively indicates that some other offense is the predicate or there remains a realistic possibility of prejudicial uncertainty as to the predicate offense in light of the facts. Hall , 96 Ill. 2d at 321, 70 Ill.Dec. 836, 450 N.E.2d 309.

¶ 26 In the case at bar, count II charged defendant with attempted armed robbery, specifically alleging that defendant used "a firearm" and citing section 18-2(a)(2) of the Criminal Code. 720 ILCS 5/18-2(a)(2) (West 2010). Counts III and IV each charged defendant with unlawful use or possession of a weapon by a felon (id. § 24-1.1(a)), specifically alleging that defendant possessed "a firearm." Therefore, the indictment, read as a whole, clearly informed defendant that the State intended to prove that he possessed a firearm at the time of the shooting.

¶ 27 However, without citation to authority, the appellate court refused to read the indictment as a whole. The court observed that the prosecutor entered a nolle prosequi on counts II, III, and IV and proceeded to trial only on count I. The court reasoned that the State's abandonment of those counts prior to trial effectively informed defendant that it was not willing to prosecute defendant for the charges pled therein. Thus, the court concluded that the State cannot refer to their contents to supplement the allegations in count I. 2016 IL App (1st) 131944, ¶ 30, 407 Ill.Dec. 96, 62 N.E.3d 341.

¶ 28 We disagree. The ultimate question remains whether, in light of the facts of record, the charging instrument was so imprecise as to prejudice defendant's ability to prepare a defense, which, if successful, would bar further prosecution arising out of the same conduct. See Phillips , 215 Ill. 2d at 562, 294 Ill.Dec. 624, 831 N.E.2d 574 (and cases cited therein). Here, the entry of the nolle prosequi on counts II, III, and IV did not occur until just prior to jury selection and one day before the trial commenced. Consequently, all four counts of the indictment, read as a whole ( Morris , 135 Ill. 2d at 544, 143 Ill.Dec. 215, 554 N.E.2d 150 ), were available to inform defendant of the charges against him while he prepared for trial from the date of his arraignment in March 2011 until the commencement of trial in January 2013. See, e.g. , People v. McDavid , 3 Ill. App. 3d 169, 171-72, 278 N.E.2d 182 (1971) (quoting People v. Kamsler , 67 Ill. App. 2d 33, 41, 214 N.E.2d 562 (1966) ).

¶ 29 In addition, the fact that defendant possessed a "firearm" at the time of the attack was addressed on multiple occasions prior to and during trial. At two pretrial status hearings, the prosecutor and defense counsel advised the court that "the firearm" recovered from defendant at the scene was being tested to determine its capability of being fired. At the hearing on the motion in limine , the prosecutor specifically stated that "we will be proving that the [d]efendant was armed with a firearm from a legal sense. * * * The attempt armed robbery section that is the predicate for the felony murder is [ section] 18-2(a)(2), which requires proof of a firearm * * *. It requires us to prove [a] firearm." During trial, defense counsel conducted extensive cross-examination of the occurrence witnesses, including questioning as to whether defendant was seen holding the gun. Defense counsel also cross-examined the State's firearm expert regarding the conclusion that the derringer was inoperable. In her closing argument, defense counsel emphasized the fact that the derringer could not be fired and highlighted the conflicting testimony on whether defendant was holding the gun at the time of the attack on the armored truck guards.

¶ 30 Therefore, the record before us affirmatively demonstrates that defendant was aware that the charge of felony murder was predicated on attempted armed robbery with a firearm and his attorney presented a defense to that charge. Also, given the jury's specific finding that defendant had possessed a firearm, the record establishes that defendant was convicted of committing the offense charged in count I while armed with a firearm. Neither defendant nor the appellate court has identified what other actions he could have taken if the allegations in count I had particularly referenced the use or possession of a firearm.

See People v. Davis , 217 Ill. 2d 472, 479, 299 Ill.Dec. 152, 841 N.E.2d 884 (2005). In light of these circumstances, we cannot say that the lack of specificity in the felony murder charge prejudiced defendant in preparing a defense, nor do we believe the lack of specificity would hamper defendant's ability to plead his murder conviction as a bar to future prosecution arising out of the same conduct.

¶ 31 As a final matter, we note defendant argues that he was not proven guilty beyond a reasonable doubt because the evidence as to the predicate offense of attempted armed robbery with a firearm was insufficient. In support, defendant contends that the State failed to prove that the inoperable and unloaded .22-caliber derringer qualified as a "firearm." We observe, however, that the appellate court did not rule on the sufficiency of the evidence, or on either of the other two issues argued below, because it determined that the indictment issue was dispositive. 2016 IL App (1st) 131944, ¶¶ 18, 37, 407 Ill.Dec. 96, 62 N.E.3d 341. In light of our holding that defendant was not prejudiced by the lack of specificity in the indictment, we remand the cause to the appellate court for consideration of defendant's arguments challenging the sufficiency of the evidence against him, the ruling that he was fit to stand trial, and the determination that the State was entitled to seek the 15-year firearm sentencing enhancement. See, e.g. , People v. Givens , 237 Ill. 2d 311, 339, 343 Ill.Dec. 146, 934 N.E.2d 470 (2010).

¶ 32 III. CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the appellate court is reversed, and the cause is remanded to the appellate court for further proceedings.

¶ 34 Reversed and remanded.

Chief Justice Karmeier and Justices Thomas, Kilbride, Garman, Burke, and Theis concurred in the judgment and opinion.

      This argument was presented in a petition for rehearing after the appellate court issued an unpublished decision affirming defendant's conviction, which was later withdrawn.

      Based on our disposition, we need not address the State's alternative argument that the appellate court erred in failing to affirm defendant's conviction by reducing the degree of the predicate felony to the lesser-included offense of attempted robbery. See, e.g. , In re M.M. , 2016 IL 119932, ¶ 31, 410 Ill.Dec. 874, 72 N.E.3d 260.