                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                   Duncan v. People ex rel. Brady, 2013 IL App (3d) 120044




Appellate Court            MILES DUNCAN, Petitioner-Appellee, v. THE PEOPLE OF THE
Caption                    STATE OF ILLINOIS ex rel. JERRY BRADY Respondent-Appellant.



District & No.             Third District
                           Docket Nos. 3-12-0044, 3-12-0087 cons.


Filed                      April 24, 2013


Held                       The trial court erred in sealing the records showing that petitioner had
(Note: This syllabus       registered as a sex offender following his conviction for aggravated
constitutes no part of     criminal sexual abuse as a juvenile, notwithstanding the fact that a
the opinion of the court   juvenile court terminated his registration requirement, since the sealing
but has been prepared      and expungement statute only allowed the sealing of records of arrests
by the Reporter of         and charges not initiated by arrest, and under the statute, the records of
Decisions for the          petitioner’s compliance with the registration requirement could not be
convenience of the         sealed.
reader.)


Decision Under             Appeal from the Circuit Court of Peoria County, No. 11-MR-111; the
Review                     Hon. Stephen Kouri, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Jerry Brady, State’s Attorney, of Peoria (Terry A. Mertel and Judith Z.
Appeal                     Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of
                           counsel), for appellant.

                           Michelle A. Vescogni, of Vescogni Law Office, P.C., of Peru, for
                           appellee.


Panel                      JUSTICE McDADE delivered the judgment of the court, with opinion.
                           Presiding Justice Wright and Justice Holdridge concurred in the judgment
                           and opinion.




                                             OPINION

¶1          After the trial court sealed police records generated by petitioner’s compliance with his
        obligation to register as a sex offender, the State appealed, arguing that the Criminal
        Identification Act (20 ILCS 2630/0.01 et seq. (West 2010)) does not allow for the sealing of
        records that are not arrests or charges initiated by arrest. We reverse.

¶2                                              FACTS
¶3          On April 5, 2011, petitioner Miles Duncan filed a petition seeking to have certain records
        sealed or expunged. Relevant to this appeal, counts IV through XII of his petition sought to
        have eight “non-criminal Peoria Police Reports” sealed. Petitioner had previously been
        convicted for aggravated criminal sexual abuse as a juvenile and was required to register as
        a sex offender with the Peoria police department while he was attending college. In 2008, the
        juvenile court found that petitioner posed no risk to the community and terminated his
        registration requirement. The Peoria police reports petitioner sought to seal were generated
        each time he complied with his sex offender registration requirement–these reports did not
        reflect arrests or charges against petitioner.
¶4          At the sealing and expungement hearing, petitioner testified that he graduated from
        college in 2008, obtained a certified public accountant accreditation in 2009, and that he was
        currently pursuing a master of business administration degree. He indicated that he wanted
        his records sealed because these police records were showing up on criminal background
        checks, which caused employers to reject him as a candidate.
¶5          The State objected to sealing of the reports noting petitioner’s compliance with the
        registration requirement, arguing that the sealing and expungement statute only allowed the
        sealing of records for “arrests” or “charges not initiated by arrest.” See 20 ILCS
        2630/5.2(c)(2)(A)-(F) (West 2010). Because the reports were nonincident reports and not

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       arrests or charges, the State argued the court lacked authority to seal the records.
¶6         The trial court disagreed and ordered the records sealed on August 31, 2011. Relying on
       State v. Fletcher, 974 A.2d 188 (Del. 2009), as persuasive authority, the court reasoned that
       because petitioner’s registration requirement was terminated, it could seal the police reports
       as indicia of the registration requirement. The State filed a motion to reconsider, again
       arguing that the language of the sealing statute did not allow the reports generated by
       petitioner’s registration to be sealed. The trial court denied the State’s motion on December
       13, 2011, reasoning that the State’s reading of the statute was too narrow. The State
       appealed.

¶7                                            ANALYSIS
¶8                                             Jurisdiction
¶9          We first note that the State has filed multiple notices of appeal in this case, and therefore
       we must determine whether we have jurisdiction. The State filed a notice of appeal on
       January 11, 2012, within 30 days of the trial court’s decision on the motion to reconsider, and
       filed a second notice of appeal on January 17, 2012. For the reasons that follow, we conclude
       that the State’s second notice of appeal was timely and was sufficient to grant jurisdiction.
¶ 10        A notice of appeal is timely and confers jurisdiction on the appellate court if it is filed
       within 30 days of a final order. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008). The Criminal
       Identification Act (Act) provides that orders to expunge or seal records do not become final
       until 30 days after the order is served on all parties entitled to notice. 20 ILCS
       2630/5.2(d)(11) (West 2010). See also 20 ILCS 2630/5.2(d)(8) (West 2010) (listing which
       parties are entitled to notice). Here, the sealing order was served on all parties on December
       14, 2011, and under the statute it did not become final until January 13, 2012. The State’s
       first notice of appeal, filed on January 11, 2012, was premature under the statute. A party can
       potentially lose its right to appeal if it files too early; however, if a party is genuinely
       confused about what constitutes a final order, it may protect itself by filing multiple notices
       of appeal. In re Commitment of Hernandez, 239 Ill. 2d 195, 204 (2010). The State was
       evidently confused as to when the trial court’s order sealing the records became final and
       filed two notices of appeal. Because the State’s second notice of appeal on January 17 came
       after the sealing order became final, we hold it was sufficient to grant jurisdiction in this
       case. We now turn to the merits of the State’s appeal.

¶ 11                                       Sealing of Records
¶ 12        The parties dispute whether the sealing and expungement provisions of the Criminal
       Identification Act authorize the sealing of the police records noting petitioner’s compliance
       with his sex offender registration requirement. The State urges us to reverse the trial court’s
       decision, arguing that the Act does not allow for the sealing of records that are neither arrests
       nor charges initiated by arrest. Petitioner argues that the statute allows the sealing of the
       records at issue and argues that the State’s proposed reading of the statute is overly narrow.
       This is an issue of statutory interpretation, which we review de novo. People v. Marshall, 242
       Ill. 2d 285, 292 (2011).

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¶ 13       The Criminal Identification Act “authorizes the sealing of criminal records of adults and
       of minors prosecuted as adults.” 20 ILCS 2630/5.2(c)(1) (West 2010). When records are
       sealed, they are physically and electronically maintained but are made unavailable without
       a court order. 20 ILCS 2630/5.2(a)(1)(K) (West 2010). The sealing provision of the Act
       identifies the records eligible to be sealed as “arrests” or “charges not initiated by arrest” that
       have resulted in various dispositions, including dismissal, acquittal, or conviction. See 20
       ILCS 2630/5.2(c)(2)(A)-(F) (West 2010). The Act also excludes certain records from
       eligibility for either sealing or expungement. 20 ILCS 2630/5.2(a)(3) (West 2010). Among
       the records which cannot be sealed are records for sex offenses as defined in article 11 of the
       Criminal Code of 1961 (720 ILCS 5/art. 11 (West 2010)). See 20 ILCS 2630/5.2(a)(3)(C)
       (West 2010).
¶ 14       The records at issue here merely recorded petitioner’s compliance with the registration
       requirement stemming from his juvenile adjudication as a sex offender. They did not reflect
       arrests or charges against petitioner. We agree with the State that the plain language of the
       statute, which only authorizes the sealing of “arrests” or “charges not initiated by arrests,”
       does not encompass these records as eligible for sealing.
¶ 15       Petitioner, however, argues that we should not construe the statute so narrowly. The
       petitioner points to the subsection of the sealing statute addressing subsequent felony
       convictions, which states:
           “A person may not have subsequent felony conviction records sealed as provided in this
           subsection (c) if he or she is convicted of any felony offense after the date of the sealing
           of prior felony convictions as provided in this subsection (c). The court may, upon
           conviction for a subsequent felony offense, order the unsealing of prior felony conviction
           records previously ordered sealed by the court.” 20 ILCS 2630/5.2(c)(4) (West 2010).
       Petitioner states that this section contemplates that records of convictions can be sealed, and
       argues that it would be “unreasonable that an actual conviction could be sealed, yet the
       incident reports generated as a result of Petitioner’s registration requirement could not be
       sealed.” We disagree. We acknowledge that the term “records”–which the statute does not
       define–could be broad enough in scope to refer to both (1) the record of the arrest or charge
       itself and (2) all subsequent proceedings relating to the arrest or charge, such as records of
       the court proceedings and conviction records. But we need not address that issue here. The
       underlying charge which resulted in petitioner’s registration requirement was for a sexual
       offense and thus it was not eligible for sealing. See 20 ILCS 2630/5.2(a)(3)(C) (West 2010).
       Nor could the underlying charge or conviction be expunged under the expungement
       provisions of the Juvenile Court Act of 1987. See 705 ILCS 405/5-915(2) (West 2010).
¶ 16       For this reason, we find the trial court’s and petitioner’s reliance on State v. Fletcher
       misplaced. In Fletcher, the Delaware Supreme Court addressed Delaware’s expungement
       statute, which allowed for expungement of “all evidence of [an] adjudication” and “all
       indicia of arrest.” (Internal quotation marks omitted.) Fletcher, 974 A.2d at 192. Under that
       statute, once records are expunged, “it is as if the adjudication never occurred.” Fletcher, 974
       A.2d at 196. Based on this statute, the Fletcher court held that the expungement of a juvenile
       sex offender’s underlying offense also removed any continued sex offender registration


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       requirement. Fletcher, 974 A.2d at 196.
¶ 17       The Fletcher court’s reasoning is not applicable in this case, however. Under the Illinois
       statute, records relating to petitioner’s sex offense would not be eligible for either sealing or
       expungement, so petitioner lacks a viable argument for sealing the “indicia” of that
       underlying offense. Furthermore, although petitioner’s obligation to register as a sex offender
       was terminated by court order, the only effect of that order was that petitioner was no longer
       required to register going forward. The termination did not authorize expungement of the
       underlying conviction or his previous registration obligations, so it is not as if his registration
       never occurred. Therefore, the termination of the petitioner’s registration obligation did not
       authorize the sealing of the past Peoria police records generated by his compliance with his
       sex offender registration.
¶ 18       We appreciate the difficulties that these police records, stemming from a juvenile
       adjudication, may cause petitioner as he seeks employment, and we sympathize with his
       frustration. But the legislature clearly did not intend for records of sexual offenses to be
       sealed, and neither the letter nor the spirit of the Act authorizes the sealing of records that are
       indicia of the underlying sex offense and are not arrests or charges not initiated by arrest.

¶ 19                                      CONCLUSION
¶ 20       For the reasons stated above, we hold the Criminal Identification Act does not authorize
       the sealing of the police reports documenting petitioner’s sex offender registration.

¶ 21       Reversed.




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