Chesler v. People
| Decision Date | 24 November 1999 |
| Docket Number | No. 1-98-1018.,1-98-1018. |
| Citation | 722 N.E.2d 668,309 Ill. App.3d 145,242 Ill.Dec. 884 |
| Parties | Jack CHESLER, Petitioner-Appellant, v. The PEOPLE of the State of Illinois, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Robert D. Shearer, Jr., Chicago, for Appellant.
Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, William Toffenetti and Kathryn M. Morrissey, of counsel), for Appellee.
Petitioner appeals the trial court's denial of his motion to expunge his arrest record. We affirm in part, reverse in part and remand.
We address the following issue: when addressing a petition to expunge an arrest record, to what extent, if at all, may a court consider the petitioner's behavior after he is released without being convicted or after he has completed supervision. We conclude that a trial judge may consider relevant postdisposition behavior. We also conclude that postdisposition behavior must be relevant to the charges for which the petitioner seeks expungement.
Petitioner's then wife, Sarah Chesler, filed a petition for dissolution of marriage in December 1987. She alleged mental and physical cruelty and sought sole custody of their twin daughters. A dissolution of marriage was entered on October 15, 1990, and Sarah was granted custody of their daughters. Sarah made allegations against petitioner in the course of the dissolution proceedings that led to the arrest records petitioner now seeks to expunge.
Petitioner was first arrested on November 27, 1987, and charged with assault. Petitioner was later charged with separate counts of simple battery on December 19, 1987, January 20, 1988, and January 26, 1988. Petitioner was charged with battery again on March 29, 1988. Sarah was the complaining witness in each case. Petitioner was found not guilty of these charges in a bench trial on June 28, 1988.
Petitioner was again arrested on March 11, 1988, and charged with battery of Sarah. Petitioner was also charged with violating an order of protection obtained by Sarah. Petitioner was found guilty of these charges and sentenced to two months' supervision. Petitioner successfully completed supervision on July 31, 1989.
In an incident unrelated to the dissolution of marriage, petitioner was charged with retail theft in Cook County on August 31, 1991. This case was dismissed after petitioner completed a theft deterrent program on November 9, 1991.
Petitioner was charged with retail theft in DuPage County on January 27, 1992. Petitioner was found guilty and given one year of supervision. Petitioner later filed a petition to expunge his DuPage County arrest record. Expungement was granted on June 8, 1998.
Petitioner filed a motion to expunge his Cook County arrest records on January 14, 1997. He alleged that he was arrested for the offenses stated, that he was released without being convicted, and that he had not been arrested or convicted of a criminal or municipal offense since 1992.
The State objected, arguing that petitioner's subsequent conduct should be considered, given the current state of his relationship with his two daughters. At a hearing on the petition, Sarah testified, over objection, about events that happened after, but were allegedly related to, petitioner's Cook County arrests. Petitioner's daughters did not testify.
Sarah testified that, in the summer of 1991, petitioner went on a cross-country trip with his daughters. Sarah said that her daughters told her that, during the trip, petitioner became angry twice, left the girls alone and drove away. The first incident was in Yellowstone Park, where petitioner left the girls alone in a closed visitor's center. In a second incident, petitioner left one of the girls at the side of a road in Arizona. Petitioner's continuing hearsay objections to this testimony were overruled.
Sarah then testified that, except for a brief visit with petitioner in 1992, the girls have not seen and do not wish to see petitioner. Sarah said that the 1991 trip with petitioner so "deeply affected" the girls that they needed counseling. Sarah mentioned two letters petitioner sent to his daughters in 1992 and 1993. The letters are described as demanding and dictatorial. Sarah testified that petitioner made certain demands of her daughters in these letters, but she did not elaborate.
Sarah then testified about mail she and her neighbors received in New York. Sarah said that packages containing newspaper clippings about the charges against petitioner and a letter addressed to a New York newspaper were mailed to or dropped off with friends and Sarah's business associates in 1988 and 1989. Sarah identified the handwriting on one of the envelopes and newspaper clippings as that of petitioner. None of the packages are part of the record on appeal. On cross-examination, Sarah admitted that she did not cooperate with petitioner's visitation rights, causing him to file emergency petitions to enforce his rights. Sarah said that her children were fearful of petitioner and she intervened to protect them. But Sarah admitted that the judge in the dissolution proceeding did not find the children were fearful of petitioner. Sarah also admitted that, after the incidents on the 1991 trip, she did not file a police report or charges with the Illinois Department of Children and Family Services. She did file a report with a New York agency one year later, but after an investigation that agency found the charges unfounded. Sarah also said that the judge who found petitioner not guilty of five of the battery charges had "made a mistake."
Petitioner testified that after Sarah filed for divorce in December 1987, she filed criminal charges against him in 1988. Petitioner denied mailing the packages to Sarah or anyone else in New York. Petitioner said that he was not in New York in 1988 or 1989, when the packages were sent. Petitioner admitted writing the two letters to his daughters. Petitioner explained that the letters were "harsh" because Sarah continuously blocked his repeated attempts to see his children. Petitioner said that his children do not want to see him because they are afraid of their mother, not him.
Petitioner denied abandoning his daughters during the 1991 trip. He said that the girls were scared because the trip was physically demanding, involving off-trail backpacking, canoeing and hiking. Petitioner said that his relationship with his daughters was very close.
The court then addressed the retail theft charge, noting that no evidence was presented on that charge. The State said it had no objection to expungement of that charge. The court then expunged the retail theft charge. The court later vacated this order of expungement on June 25, 1997, sua sponte. Final argument on petitioner's petition was heard on November 18, 1997.
The court entered an order on February 13, 1998, denying in its entirety his petition to expunge. The court found that petitioner had not shown good cause to have his record expunged, citing to People v. Hansen, 198 Ill.App.3d 160, 144 Ill.Dec. 438,555 N.E.2d 797 (1990).
Petitioner raises five issues on appeal: (1) the court created a new standard for "good cause shown" by misapplying People v. Hansen; (2) the evidence he presented at the hearing was enough to allow expungement; (3) the court abused its discretion in denying expungement of the retail theft charge where no evidence was presented and the State did not object to expungement of that charge; (4) the State missed the 30-day deadline to object to his petition; and (5) the trial judge was biased against petitioner.
Petitioner contends that postarrest and postdisposition behavior is irrelevant in the expungement context. Petitioner focuses on section 5(a) of the Criminal Identification Act, which permits expungement "upon good cause shown." 20 ILCS 2630/5(a) (West 1996). Petitioner contends that the "good cause shown" element requires only that a petitioner meet the statutory criteria for expungement.
Section 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. 20 ILCS 2630/5(a) (West 1996). Cases resolved by supervision require a two-year waiting period before expungement may be sought. Supervision for other offenses not relevant here require a five-year waiting period. 20 ILCS 2630/5(a) (West 1996).
Petitioner reasons that, since he met the statutory requirements, he met the "good cause shown" criterion and is entitled to expungement. Petitioner claims that the court changed the "good cause shown" standard and abused its discretion by interpreting People v. Hansen, 198 Ill. App.3d 160, 144 Ill.Dec. 438, 555 N.E.2d 797 (1990), as authority to consider postarrest and postdisposition behavior.
Petitioner's argument assumes that satisfaction of the statutory criteria entitles him to expungement as of right. We believe the plain language of the statute contradicts this argument. Section 5(d) of the Criminal Identification Act gives the court the discretion to grant or deny an expungement petition. 20 ILCS 2630/5(d) (West 1996). This permissive language shows that the statutory criteria establish eligibility for, rather than entitlement to, expungement.
We read section 5(a) as creating two categories of expungeable charges— where the petitioner is found not guilty and where the petitioner is placed on supervision. We believe the statute's two-year (and sometimes five-year) waiting period for expungement of charges disposed of by supervision is a legislative recognition that postdisposition behavior is a relevant, if not mandatory, consideration. There would be no point to a waiting period if this were not so. This leaves us with the question of the relevance of postdisposition behavior in deciding whether to expunge a...
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