                               Illinois Official Reports

                                       Appellate Court



                          People v. Laguna, 2014 IL App (2d) 131145



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   MIROSLAW LAGUNA, Defendant-Appellant.–THE PEOPLE OF
                          THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIROSLAW
                          LAGUNA, Defendant-Appellant.



District & No.            Second District
                          Docket Nos. 2-13-1145, 2-13-1149 cons.



Filed                     August 22, 2014



Held                       The trial court did not abuse its discretion in denying defendant’s
(Note: This syllabus petition to expunge his convictions for unlawful possession of a stolen
constitutes no part of the motor vehicle, aggravated fleeing or attempting to elude a police
opinion of the court but officer, and aggravated driving under the influence, notwithstanding
has been prepared by the the fact that he was granted a gubernatorial pardon “With Order
Reporter of Decisions Permitting Expungement,” since the record showed that the trial court
for the convenience of considered the relevant factors, and those factors weighed in favor of
the reader.)               the denial of expungement due to the seriousness of his offenses and
                           the fact that the transferable nature of defendant’s job skills reduced
                           the negative consequences of any possible deportation.



Decision Under            Appeal from the Circuit Court of Du Page County, Nos. 00-CF-3166,
Review                    00-CF-3167; the Hon. Kathryn E. Creswell, Judge, presiding.



Judgment                  Affirmed.
     Counsel on              Alexander Z. Fiedotjew, of Law Office of A.Z. Fiedotjew, of Chicago,
     Appeal                  for appellant.

                             Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
                             and James P. French, Assistant State’s Attorneys, of counsel), for the
                             People.



     Panel                   JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                             Justices Schostok and Hudson concurred in the judgment and opinion.




                                              OPINION


¶1         Defendant, Miroslaw Laguna, appeals the trial court’s denial of his petition to expunge
       his convictions of unlawful possession of a stolen motor vehicle (625 ILCS 5/4-103(a)(1)
       (West 2000)) and aggravated fleeing or attempting to elude a police officer (625 ILCS
       5/11-204.1(a) (West 2000)) in case No. 00-CF-3166, and aggravated driving under the
       influence (625 ILCS 5/11-501(a)(1), (a)(2), (d)(1)(A), (d)(1)(C) (West 2000)) in case No.
       00-CF-3167. He was pardoned in 2013, and he contends that the trial court abused its
       discretion in its balancing of various factors when it denied the petition to expunge. We
       affirm.

¶2                                         I. BACKGROUND
¶3         Defendant, who is Polish, was arrested in November 2000 and later pleaded guilty. He
       was eligible for probation but instead was sentenced to six years’ incarceration. In March
       2013, defendant was granted a gubernatorial pardon “With Order Permitting Expungement.”
       He then petitioned for expungement of the convictions so that he could avoid deportation.
       The State objected to the petition and, on September 30, 2013, a hearing was held.
¶4         At the hearing, defendant provided documents showing that, while incarcerated, he
       participated in spiritual development, stress and anger management, and substance abuse
       treatment. There was evidence that he had been sober since his release from prison in 2004
       but had attended substance abuse treatment in 2008. Defendant also provided letters from
       neighbors and friends concerning his sobriety, good demeanor, willingness to help others,
       and efforts to care for his elderly mother. The letters showed that he had skills as an auto
       mechanic. He also presented a letter from Les Kuczynski, the executive director of the Polish
       American Congress, detailing difficulties defendant would face if deported, including that
       defendant does not speak the Polish language and that there is a high unemployment rate in
       Poland. Kuczynski wrote that defendant had no transferable employment skills, as his work
       experience was limited to working on a machine in an envelope company, and that defendant


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       would not be able to survive if deported. There was evidence that defendant was not
       admonished at the time of his guilty pleas that he could be deported.
¶5         Mark Dobrzycki, an employee of the Polish National Alliance, testified about defendant’s
       family life and immigration status. Defendant came to the United States as a child. He was
       the caregiver for his elderly mother. Because of his convictions, he was under an order of
       deportation, and expungement of those convictions would prevent deportation. On
       cross-examination, Dobrzycki stated that defendant had multiple siblings in the Chicago area
       who assisted in caring for defendant’s mother, although they did not live with her. One of the
       letters presented by defendant showed that his sister lived with her daughter in the apartment
       below defendant and his mother.
¶6         Defendant presented six additional witnesses, who identified themselves to the court.
       With the agreement of the State, defendant’s attorney proffered that they would testify about
       his good character, good citizenship, and sobriety. Defendant argued that expungement
       should be granted because of his good character, employment history, substance abuse
       treatment, and immigration consequences. He also argued that he would be unable to care for
       his mother if he were deported.
¶7         The State presented evidence about the convictions that defendant sought to expunge.
       Defendant drank and abused drugs at a party. He then left the party in a stolen vehicle. When
       officers attempted to stop the vehicle, defendant briefly pulled over, but then drove off at a
       high rate of speed when the officers exited their squad car. After a high-speed chase,
       defendant crashed the vehicle, which then caught on fire. Defendant and a passenger were
       taken to the hospital. The events created a “huge emergency response” during which
       defendant’s actions placed other motorists at risk of injury or death.
¶8         The State also presented a certified copy of defendant’s driving abstract and transcripts
       from the criminal cases. Those documents showed that, before 2001, defendant was charged
       multiple times with driving under the influence of alcohol. He also was previously charged
       with criminal trespass to a motor vehicle, assault, and unlawful possession of a controlled
       substance. In 2010, he spent 18 months in federal custody for failure to make a timely
       application in good faith for travel documents.
¶9         The State noted that defendant’s pardon was not based on actual innocence and that his
       crimes were very serious. The State argued that expungement would lessen the message of
       deterrence. It further argued that there was an interest in retaining the records, both for
       deterrence and because law enforcement, prosecutors, and future employers might have a
       need to be aware of the offenses.
¶ 10       The trial court noted the facts of the underlying offenses, stating that defendant’s actions
       were dangerous to himself, his passenger, and everyone on the roadway. The court observed
       the “recurring theme” that defendant’s mother needed his care. However, the court also noted
       that defendant’s sister lived in the same apartment building. The court discounted arguments
       about defendant’s employment skills should he be deported, because there was evidence that
       he had considerable skills as a mechanic. It further noted that, although defendant was not
       admonished about deportation when he pleaded guilty, the evidence against him was
       overwhelming. The court ultimately stated that it considered the mitigating evidence but
       found that it was outweighed by the seriousness of the offenses and the public’s compelling
       interest in maintaining the records. Thus, the court denied the petition to expunge. Defendant
       appeals.

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¶ 11                                           II. ANALYSIS
¶ 12       Defendant contends that the trial court erred when it denied his petition to expunge.
¶ 13       The power of the Governor to grant a pardon is found in the Illinois Constitution. Ill.
       Const. 1970, art. V, § 12. Article V provides that “[t]he Governor may grant reprieves,
       commutations and pardons, after conviction, for all offenses on such terms as he thinks
       proper. The manner of applying therefore [sic] may be regulated by law.” Id. “The power to
       grant or deny a petition for expungement is found in statutes created by the legislature.”
       People v. Howard, 233 Ill. 2d 213, 217 (2009). Under section 5.2(e) of the Criminal
       Identification Act (Act) (20 ILCS 2630/5.2(e) (West 2012)), a person who has been pardoned
       may file a petition for expungement. However, “a gubernatorial pardon alone does not entitle
       a petitioner to expungement.” Howard, 233 Ill. 2d at 218. The use of the word “permitting”
       in a pardon implicitly acknowledges that a court has the power to grant or deny a petition to
       expunge. Id. at 222.
¶ 14       We review the denial of a petition to expunge for an abuse of discretion. See People v.
       Carroccia, 352 Ill. App. 3d 1114, 1122 (2004). “An abuse of discretion exists only in cases
       where the trial court’s decision is arbitrary, fanciful, or unreasonable, or where no reasonable
       person would take the view adopted by the trial court.” People v. Leon, 306 Ill. App. 3d 707,
       713 (1999).
¶ 15       At the time of the hearing, Illinois cases involving expungement in other contexts set out
       a list of factors to be considered by the trial court when deciding the matter. “The factors
       include: the strength of the State’s case against the petitioner; the State’s reasons for wishing
       to retain the records; the petitioner’s age, criminal record and employment history; the length
       of time between the arrest and the expungement petition; and the adverse consequences the
       petitioner may suffer if expungement is not granted.” Chesler v. People, 309 Ill. App. 3d 145,
       151 (1999).
¶ 16       The test is a balancing of the factors. See Carroccia, 352 Ill. App. 3d at 1120. The list is
       also not exhaustive, and each case should be decided on its own merits. Chesler, 309 Ill.
       App. 3d at 151. For example, in People v. Wells, 294 Ill. App. 3d 405 (1998), the trial court
       did not abuse its discretion in determining that protecting the public against the defendant,
       who had killed one person and tried to kill another, outweighed the defendant’s good
       behavior after the arrest, his advanced age, and his high level of education. Id. at 409-10. The
       Wells court further found that the State’s interest in maintaining records outweighed the
       evidence in favor of expungement. Id. at 410.
¶ 17       The factors have been applied to expungement when the petitioner has been acquitted
       (Carroccia, 352 Ill. App. 3d at 1122-23), has been found not guilty by reason of insanity
       (Wells, 294 Ill. App. 3d at 409), and has completed supervision (Chesler, 309 Ill. App. 3d at
       150-51). Here, the parties agree that the same factors should apply to a petitioner who seeks
       expungement after a gubernatorial pardon. We agree and further note that, shortly after the
       hearing on defendant’s case, the legislature specifically incorporated the factors into the Act,
       thus making clear that they apply to all cases involving expungement. 20 ILCS
       2630/5.2(d)(7) (West Supp. 2013). Accordingly, we review the trial court’s application of the
       factors to defendant’s case.



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¶ 18       Defendant contends that reversal is required because the trial court failed to consider the
       factors, but the record shows otherwise. The trial court specifically discussed the strength of
       the case against defendant, finding that the evidence was overwhelming and that defendant’s
       actions were particularly serious. The events included a high-speed chase that caused a large
       emergency response, put others at risk of serious injury or death, and caused injuries to
       defendant and his passenger. Defendant has not disputed those facts, nor has he disputed that
       he had a criminal history, much of which involved alcohol-related offenses that could put the
       public in danger.
¶ 19       The trial court also found that the State had a strong interest in retaining the records. As
       the State argued, expungement would lessen the message of deterrence. Further, there is an
       interest in keeping such records available to law enforcement and potential future employers.
       This is particularly true in light of the serious nature of the crimes.
¶ 20       As to factors such as defendant’s age, his employment, and the length of time between
       his arrest and the expungement petition, evidence on those factors was presented and argued
       to the trial court, and the court stated that it considered all of the mitigating evidence.
       Defendant suggests that the court should have relied on his age and good citizenship to
       expunge the convictions and that it placed too much weight on the seriousness of his crimes
       and the public interest in retaining the records. But those factors were particularly strong
       reasons to deny expungement. Thus, as in Wells, the court was within its discretion to find
       that the serious nature of the crimes and the public interest in retaining records of them
       outweighed defendant’s age and his good record after his release from incarceration.
¶ 21       Finally, the court considered and discounted defendant’s argument that his mother needed
       his care. While certainly his role as a caregiver was an important factor, defendant had
       siblings available who could assist with his mother’s care, including his sister who lived in
       the same building. Likewise, it was within the court’s discretion to discount other
       immigration consequences, given the evidence that he had transferable job skills.
¶ 22       On this record, we cannot say that the trial court’s ruling was arbitrary, fanciful, or
       unreasonable, or that no reasonable person would take the view that it adopted. Accordingly,
       the court did not abuse its discretion.

¶ 23                                     III. CONCLUSION
¶ 24      The trial court did not abuse its discretion when it denied the petition to expunge.
       Accordingly, the judgment of the circuit court of Du Page County is affirmed.

¶ 25      Affirmed.




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