                                                                                THIRD DIVISION
                                                                                  March 12, 2008




Nos. 1-07-0873, 1-07-0874 (Cons.)



THE PEOPLE OF THE STATE OF ILLINOIS,                         )       Appeal from
                                                             )       the Circuit Court
       Plaintiff-Appellee,                                   )       of Cook County.
                                                             )
       v.                                                    )
                                                             )
BRADEN K. JONES,                                             )        Honorable
                                                             )        Shelley Sutker-Dermer,
               Defendant-Appellant.                          )        Judge Presiding.


       PRESIDING JUSTICE QUINN delivered the opinion of the court:

       Petitioner Braden Jones appeals from an order of the circuit court denying his request to

expunge certain of his arrest records. Petitioner contends that the circuit court misconstrued the

expungement statute, section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West

2004)). Petitioner contends that the restriction under subsection 5(a) of the Act limiting

eligibility to request expungement of conviction to persons “not having been previously

convicted of any criminal offense” refers to the time of the charge for which expungement is

sought rather than to the time the petition for expungement is filed. Petitioner therefore argues

that he is eligible for expungement because at the time of the arrests for which he seeks

expungement, petitioner had no previous criminal convictions and petitioner did not lose the

benefit of expungement based on his subsequent arrest and conviction. For the following
Nos. 1-07-0873, 1-07-0874 (Cons.)

reasons, we disagree with petitioner’s interpretation of subsection 5(a) of the Act, and we affirm

the circuit court.

        On January 18, 2003, petitioner was arrested for damage to property, resisting a peace

officer, battery and unlawful use of a driver’s license. On March 6, 2003, petitioner pled guilty

to battery and unlawful use of a driver’s license and received one year of supervision and four

days of public service. Supervision was successfully terminated for both counts on January 16,

2004.

        On March 1, 2004, petitioner was arrested for attempted robbery, aggravated battery in a

public place, and aggravated battery of a government employee. The State declined prosecution

and the charges were nol prossed.

        On October 2, 2004, petitioner was arrested and charged with two counts of battery. On

February 4, 2005, petitioner pled guilty to both counts and was sentenced to two years of

conditional discharge. Petitioner successfully completed his conditional discharge on July 21,

2006.

        On May 5, 2006, petitioner filed a petition to expunge the records of his January 18,

2003, and March 1, 2004, arrests. Following a hearing, on July 5, 2006, the circuit court granted

petitioner’s request for expungement of these arrest records.

        On September 21, 2006, petitioner filed a motion to compel after the Department of State

Police declined to expunge petitioner’s arrest records in compliance with the circuit court’s July

5, 2006, order. Following a hearing, on February 13, 2007, the circuit court vacated its July 5,

2006, order and entered an order denying petitioner’s request for expungement of his arrest


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records. In doing so, the circuit court relied on the Third District of the Appellate Court’s

decision in Young v. Keefe, 64 Ill. App. 3d 824, 825-26 (1978), in which the court determined

that subsection 5(a) of the Act limited expungement to persons not having previously been

convicted of a criminal offense or municipal ordinance violation and did not permit petitioners to

expunge all records of their arrests which may have occurred prior to their first conviction.

Petitioner appealed the denial of expungement of the records of his January 18, 2003, and March

1, 2004, arrests, and those appeals were consolidated by this court.

       On appeal, petitioner argues that this court should disregard the Young case as dicta, and

find that the circuit court abused its discretion when denying his petition to expunge his two

arrests, pursuant to subsection 5(a) of the Act, because he had not been convicted of a crime at

the time of those arrests.

       The pertinent parts of subsection 5(a) provide:

               “Whenever an adult or minor prosecuted as an adult, not having previously been

       convicted of any criminal offense or municipal ordinance violation, charged with a

       violation of a municipal ordinance or a felony or misdemeanor, is acquitted or released

       without being convicted, whether the acquittal or release occurred before, on, or after the

       effective date of this amendatory Act of 1991, the Chief Judge of the circuit wherein the

       charge was brought, any judge of that circuit designated by the Chief Judge, or in counties

       of less than 3,000,000 inhabitants, the presiding trial judge at the defendant’s trial may

       upon verified petition of the defendant order the record of arrest expunged from the

       official records of the arresting authority and the Department [of State Police] ***.”


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       (Emphasis added) 20 ILCS 2630/5(a) (West 2004).

It is clear under section 5 that expungement of records of the circuit court relating to an arrest

which does not result in a conviction, as in this case where a disposition of supervision was

successfully completed and other charges were nol prossed, is not automatic, but is initiated by

verified petition and may be granted in the discretion of the judge. 20 ILCS 2630/5(a) (West

2004; People v. Talach, 114 Ill. App. 3d 813, 825 (1983), citing Young, 64 Ill. App. 3d at 825.

However, in this case, the issue is a matter of statutory construction and a question of law;

therefore, our review is de novo. People v. Holland, 374 Ill. App. 3d 121, 123 (2007), appeal

allowed, 225 Ill. 2d 652 (2007).

       Petitioner argues that the circuit court misconstrued subsection 5(a) to mean that because

petitioner received a conviction prior to filing his petition for expungement, petitioner was

ineligible to have any of his arrests that occurred before his first conviction expunged. Petitioner

argues that the language “not having previously been convicted of any criminal offense or

municipal ordinance violation” in subsection 5(a) refers only to the time at which a person is

arrested. Petitioner asserts that his subsequent conviction should not bar expungement of his

prior two arrests and that such an interpretation conforms with the remedial nature of the Act to

restore offenders to useful citizenship.

       In Young, the court noted that “the adoption of that part of section 5 was an attempt to

balance competing concerns. On the one hand there is the legitimate desire on the part of law

enforcement agencies to keep such records for use as tools in effective investigation and crime

prevention. Alternatively, there are the legitimate concerns for the privacy rights of persons


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falsely accused of crime and the potential problems that an arrest, alone, can cause an

individual.” Young, 64 Ill. App. 3d at 825-26, citing People v. Valentine, 50 Ill. App. 3d 447,

450 (1977). The court went on to explain that, “[i]n accommodating those conflicting interests,

the legislature has limited the class of persons who may petition for an expunction of their arrest

records to those who have not been convicted previously. Obviously, that is the meaning of the

rather grammatically imprecise second sentence of section 5, which we have quoted.” Young, 64

Ill. App. 3d at 826. The court then cited our supreme court’s determination in People v. Glisson,

69 Ill. 2d 502, 506 (1978), that “[t]he statute authorizes the expunction of records of arrest only

for persons ' not having previously been convicted of any criminal offense or municipal

ordinance violation.' ” The court found that “[t]he language of the Act was clearly meant to refer

to the time of filing the petition to expunge, and to grant persons not convicted prior to such

filing, the right to expunction of arrest records.” Young, 64 Ill. App. 3d at 826. After examining

the statute, the court concluded that “[a]s a consequence, we affirm the action of the trial court in

denying expunction in this case.” Young, 64 Ill. App. 3d at 826. We find petitioner’s claim that

we should disregard the court’s determination, in Young, regarding the expungement statute as

dicta unconvincing.

       In Talach, the Second District of this court addressed whether the defendant was eligible

to have his record of six dispositions of supervision expunged where the defendant had a

misdemeanor offense for which he received a sentence of one year of conditional discharge and

one day in the House of Corrections prior to five of the supervision dispositions. Talach, 114 Ill.

App. 3d at 825. Following Young, the Talach court held that because section 5 “refers to


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convictions previous to a petition to expunge,” the petitioner was ineligible to have any of his

records expunged after his first conviction. Talach, 114 Ill. App. 3d at 825.

       In Chesler v. Illinois, 309 Ill. App. 3d 145, 149 (1999), this court found that the circuit

court’s refusal to expunge the petitioner’s arrest record for assault and five counts of battery,

involving his former wife, was not an abuse of discretion. This court noted that while defendant

was found not guilty of those charges, there were facts suggesting that the petitioner’s alleged

domestic behavior with his former wife continued after the marriage was dissolved and was

reflected in his allegedly abusive behavior toward his daughters. Chesler, 309 Ill. App. 3d at

151-52. However, this court found that the circuit court abused its discretion in arbitrarily

refusing to expunge the petitioner’s arrest for retail theft, for which supervision was successfully

completed. Chesler, 309 Ill. App. 3d at 153. This court noted that the petitioner met statutory

eligibility requirements, the State had no objection to expungement of that particular charge, the

court set forth no explanation for its refusal, and the petitioner’s allegedly disqualifying

postdisposition behavior relevant to petitioner’s other arrests for assault and battery was not

relevant to the retail theft charge. Chesler, 309 Ill. App. 3d at 153. In explaining the statutory

requirements for expungement, this court stated that “[s]ection 5(a) allows a petitioner to petition

for expungement if there are no current or earlier convictions and petitioner was released without

being convicted or completed supervision.” Chesler, 309 Ill. App. 3d at 149.

       Further, in People v. Carroccia, 352 Ill. App. 3d 1114, 1122 (2004), the Second District

of this court considered whether the defendant, who was arrested and charged with first-degree

murder but acquitted on that charge after a jury trial, was eligible to have his arrest records


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expunged. The court noted that in Illinois, “expungement is a creature of legislative enactment”

and “[s]ection 5(a) does not even make all defendants eligible to seek expungement of arrest

records in cases that resulted in acquittals.” (Emphasis in original.) Carroccia, 352 Ill. App. 3d at

1122. The court explained that subsection 5(a) “limits the right [to expungement] to defendants

who have never been convicted of any criminal offense or municipal ordinance violation.”

Carroccia, 352 Ill. App. 3d at 1122.

       More recently, in Holland, this court considered the petitioner’s eligibility for

expungement after the petitioner was granted a pardon by the Governor on convictions for

aggravated criminal sexual assault and other crimes but who still had an outstanding prior

conviction for armed robbery. While the petitioner argued that subsection 5(c) provided him

with a separate basis to petition for expungement, this court determined, and the petitioner

conceded, that petitioner would not be eligible for expungement under subsection 5(a) because

“[s]ubsection (a) restricts eligibility to petitioners that have been acquitted of charges and do not

have prior convictions of record.” Holland, 374 Ill. App. 3d at 124-25.

       We find no reason to depart from the reasoning in these previous cases and conclude that

subsection 5(a) limits the right to expungement to a petitioner who has never been convicted of

any criminal offense or municipal ordinance violation. In addition, while petitioner contends that

he should be eligible for expungement of his arrests that occurred prior to his conviction based

on the remedial nature of the Act, petitioner has not demonstrated why he is more deserving of

the right to expungement than a petitioner who received a conviction then seeks to expunge

records of a later arrest. Thus, we conclude that, pursuant to subsection 5(a), petitioner was


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barred from seeking the expungement of arrest records based on his 2005 battery convictions.

       For the above reasons, we affirm the order of the circuit court of Cook County denying

expungement of petitioner’s arrest records.

       Affirmed.

       THEIS and CUNNINGHAM, JJ., concur.




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