People v. Howard

909 N.E.2d 724, 233 Ill. 2d 213, 330 Ill. Dec. 702, 2009 Ill. LEXIS 303

• Court: Illinois Supreme Court
• Decided: March 19, 2009
• Docket: 104608, 105022
• Status: Published

Opinions

CHIEF JUSTICE FITZGERALD

delivered the judgment of the court, with opinion.

Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.

Justice Thomas dissented, with opinion, joined by Justice Kilbride.

OPINION

Petitioners, Stanley Howard and Dana Holland, each received a gubernatorial pardon which specifically authorized expungement pursuant to section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West 2004)). The central issue in this case is whether the Act confers discretion upon the court to deny a petition to expunge brought under section (c) of the Act. After the circuit court of Cook County denied their petitions, separate panels of the appellate court disagreed as to the ability of the circuit court to deny their petitions. Howard, 372 Ill. App. 3d 490; Holland, 374 Ill. App. 3d 121. We allowed both petitions for leave to appeal (210 Ill. 2d R. 315) and consolidated the causes for decision. For the following reasons, we determine that the Act vests a trial court with discretion to grant or deny the petitions.

BACKGROUND

The Act allows eligible persons to petition for the ex-pungement of criminal records in various situations. See, e.g., 20 ILCS 2630/5(a), (b), (c), (c — 6) (West 2004) (permitting expungement after an acquittal or release without a conviction; if a conviction is made in the name of a wrong person; upon a pardon; and when set aside on direct review or collateral attack). At issue is subsection (c), which provides:

“(c) Whenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he may, upon verified petition to the chief judge of the circuit where the person had been convicted, any judge of the 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 have a court order entered expunging the record of arrest from the official records ***.” (Emphases added.) 20 ILCS 2630/5(c) (West 2004).

Petitions to expunge brought pursuant to subsections (a), (b), and (c) are subject to subsection (d) of the Act. Subsection (d) provides:

“(d) Notice of the petition for subsections (a), (b), and (c) shall be served upon the State’s Attorney or prosecutor charged with the duty of prosecuting the offense, the Department of State Police, the arresting agency and the chief legal officer of the unit of local government affecting the arrest. Unless the State’s Attorney or prosecutor, the Department of State Police, the arresting agency or such chief legal officer objects to the petition within 30 days from the date of the notice, the court shall enter an order granting or denying the petition.” 20 ILCS 2630/5(d) (West 2004).

Here, both petitioners received pardons in identical language. Each stated that the petitioner received a “Pardon Based Upon Innocence With Order Permitting Expungement Under The Provisions Of 20 ILCS 2630/ 5.” Both Howard and Holland filed petitions for expungement under subsection (c) of the Act. The circuit court denied both petitions and petitioners appealed those denials.

In the Howard appeal, an appellate court majority reversed the circuit court’s denial of Howard’s petition for expungement. Howard, 372 Ill. App. 3d at 491. The appellate court struck the second “may” from the Act, ruling that the second “may” in subsection (c) was an obvious grammatical error. Howard, 372 Ill. App. 3d at 499. The court then reviewed the legislative history of the Act. Howard, 372 Ill. App. 3d at 499-505. The appellate court determined the Act provides for “automatic expungements” (Howard, 372 Ill. App. 3d at 504) and does not confer discretion upon the circuit court to deny a petition for expungement if an executive pardon authorizes it (Howard, 372 Ill. App. 3d at 507). The court remanded for entry of an order expunging the record of defendant’s arrest. Howard, 372 Ill. App. 3d at 507. Justice Fitzgerald Smith dissented. Howard, 372 Ill. App. 3d at 507 (Fitzgerald Smith, EJ., dissenting). He agreed that the second “may” in section (c) was a mistake. Howard, 372 Ill. App. 3d at 508 (Fitzgerald Smith, EJ., dissenting). He went on to reason that the permissive language of the Act “authorizes” expungement but does not mandate it. Rather, the trial court retains the discretion under subsection (d) to grant or deny the petition. Howard, 372 Ill. App. 3d at 514 (Fitzgerald Smith, RJ., dissenting).

In the Holland appeal, the appellate court majority held that the entry of an expungement order is not mandatory. Holland, 374 Ill. App. 3d at 127-28. The majority noted that subsection (d) of the Act clearly references subsections (a), (b), and (c). Holland, 374 Ill. App. 3d at 127. The appellate court majority held the circuit court retains discretion to deny an expungement request, despite the Governor’s authorization of expungement. Holland, 374 Ill. App. 3d at 127. The court remanded to the circuit court to consider the petition. Holland, 374 Ill. App. 3d at 128. Justice Neville dissented. Holland, 374 Ill. App. 3d at 128 (Neville, J., dissenting). He reasoned that section 5 of the Act does not give the circuit court discretion to deny a petition for expungement when the Governor has expressly authorized expungement. Holland, 374 Ill. App. 3d at 128-29 (Neville, J., dissenting).

We allowed petitions for leave to appeal filed by Howard and Holland (210 Ill. 2d R. 315) and consolidated for decision. The issues raised are matters of statutory construction and a question of law; therefore, our review is de novo. People v. Perry, 224 Ill. 2d 312, 324 (2007).

ANALYSIS

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 may be regulated by law.” Ill. Const. 1970, art. Y, §12.

The power to grant or deny a petition for expungement is found in statutes created by the legislature. People v. Bushnell, 101 Ill. 2d 261, 268 (1984). Just as a gubernatorial pardon alone does not entitle a petitioner to expungement (People v. Glisson, 69 Ill. 2d 502, 506 (1978)), without appropriate legislation, a court is without authority to expunge a record of conviction (Bushnell, 101 Ill. 2d at 268). Therefore, as the appellate court in Holland aptly stated, “[t]he question to be resolved *** is not whether the Governor properly granted the pardon pursuant to the constitution, but the effect of the order ‘permitting expungement under the provisions of 20 ILCS 2630/5.’ ” Holland, 374 Ill. App. 3d at 125.

In construing a statute, this court’s primary objective is to ascertain and give effect to legislative intent, the surest and most rehable indicator of which is the statutory language itself, given its plain and ordinary meaning. Perry, 224 Ill. 2d at 323. In determining the plain meaning of statutory terms, this court will consider the statute in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it. Perry, 224 Ill. 2d at 323. Where the language of the statute is clear and unambiguous, this court must apply it as written, without resort to further aids of statutory construction. Perry, 224 Ill. 2d at 223.

Petitioners argue that the pardons issued by the Governors satisfy the criteria for expungement set out in section (c) such that expungement of their records should be automatic. They argue that subsection (c) is the only relevant section to be considered. A circuit court, according to petitioners, has no discretion to deny an expungement petition properly filed pursuant to a gubernatorial pardon specifically authorizing expungement. Respondent contends that the Act grants the circuit court discretion to deny petitions for expungement under subsection (c), as its language is permissive, not mandatory. Subsection (d) provides an explicit basis for the court’s discretion. Therefore, the circuit court has discretion to grant or deny a petition for expungement even when the Governor’s pardon specifically authorizes expungement.

Preliminarily, we address subsection (c)’s redundant use of the word “may.” The cardinal rule of statutory construction is to effectuate the intent of the legislature. People v. Garrison, 82 Ill. 2d 444, 455 (1980). To achieve that goal, a court may alter, supply, or modify words and correct obvious mistakes. Garrison, 82 Ill. 2d at 455. We agree with the appellate court’s statements in Howard and Holland that the second “may” must be struck from the statute as an obvious grammatical error. Holland, 374 Ill. App. 3d at 124, 127; Howard, 372 Ill. App. 3d at 499, 502. It is clear that, grammatically, subsection (c) contains a superfluous “may,” because the second “may” is not attached to a subject noun or clause. With this in mind, we consider whether the Act confers discretion upon the court to deny a petition to expunge brought under section (5)(c) of the Act.

We note that the conditional nature of the statute begins with the language directed at the Governor. The expungement of the record of the pardoned individual is permissive because the Act applies only when the Governor “specifically authorizes” an expungement. 20 ILCS 2630/5(c) (West 2004). The Governor’s authorization serves to make the pardoned citizen legally eligible for expungement. See Black’s Law Dictionary 143 (8th ed. 2004) (defining “authorize” as “[t]o give legal authority; to empower”). The notable implication of the use of the word “authorize” is the delinking of a pardon and an expungement. Thus, the statute contemplates that a Governor may choose to pardon an individual and also decline to issue authorization of an expungement.

The use of the term “may” in the statute also is permissive as to the petitioner and merely allows the petitioner to act. Whichever of the “may” terms is stricken, it is apparent that both “may” terms refer to the petitioner and not the judge to whom the petition is directed. As the appellate court in Holland stated, “the language of that section remains general and does not actively direct the trial court to enter an order upon review of a petition to expunge, but only allows the Governor to ‘authorize’ such an action.” Holland, 374 Ill. App. 3d at 127. It is therefore incorrect to read the “may” terms in subsection (c) to require the judge’s entry of an expungement. Rather, the defendant may submit a petition, from which he may get a court order.

Language directing the trial court to act is found in subsection (d). Subsection (d) sets out the procedure for petitions filed pursuant to subsections (a), (b), or (c). 20 ILCS 2630/5(d) (West 2004). Subsection (d) uses mandatory language in that the trial court “shall” enter an order. A plain reading of the statute, however, requires only that an order is entered, but does not require a specific disposition. Rather, the court shall enter an order which shall “grant or deny” a petition. 20 ILCS 2630/ 5(d) (West 2004). Thus, for petitions filed under subsection (a), a trial court retains discretion to grant or deny a petition of an eligible petitioner who has been acquitted or released without conviction and has no prior convictions. People v. Wells, 294 Ill. App. 3d 405 (1998). Similarly, for petitions filed under subsection (b), a trial court retains discretion where the records show the conviction was made under a wrong name. Therefore, petitions filed under subsection (c) — which the legislature also designated for consideration by the circuit court under subsection (d) — are subject to the discretion given by subsection (d) to the judge to “grant or deny” the petition. We therefore reject petitioners’ argument because it would necessarily render the “grant or deny” language mere surplusage.

We note that had the legislature chosen to make ex-pungement mandatory, it could have done so. This is demonstrated by section (c — 6) of the Act, which concerns convictions set aside on direct review or collateral attack. It states, “If a conviction has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge, the court shall enter an expungement order as provided in subsection (b) of Section 5 — 5—4 of the Unified Code of Corrections.” (Emphasis added.) 20 ILCS 2630/5(e — 6) (West 2004). The language of section (c — 6) tracks section 5 — 5—4(b) of the Unified Code of Corrections, which states:

“If a conviction or sentence has been set aside on direct review or on collateral attack and the court determines by clear and convincing evidence that the defendant was factually innocent of the charge, the court shall enter an order expunging the record of arrest from the official records of the arresting authority and order that the records of the clerk of the circuit court and Department of State Police be sealed until further order of the court upon good cause shown or as otherwise provided herein, and the name of the defendant obliterated from the official index requested to be kept by the circuit court clerk under Section 16 of the Clerks of Courts Act in connection with the arrest and conviction for the offense but the order shall not affect any index issued by the circuit court clerk before the entry of the order.” (Emphasis added.) 730 ILCS 5/5 — 5—4(b) (West 2004).

The language of these sections lacks any reference to the ability of a trial court to “deny” such a petition. Rather, a court “shall” enter an order expunging a record if the terms of the statute are met. The legislature’s use of the phrase “the court shall enter an order” instead of “may *** have a court order entered” and “shall enter an order granting or denying” demonstrates the intent of a different approach toward pardoned persons.

Subsection (d)’s additional phrasing — allowing for the State’s Attorney and other statutorily authorized government agencies to object to the expungement of arrest records of pardoned persons — indicates the circuit court has discretion to grant or deny expungement. If the circuit court did not have discretion, there would be little purpose in allowing the prosecuting authority to object. The Act also provides that even if the State’s Attorney or other authority does not object, the court may still “grant or deny” the petition.

This outcome also dovetails with the Governors’ use of specific language in their pardons. In pardoning Howard, then-Governor Ryan said, “With Order Permitting Ex-pungement Under The Provisions Of 20 ILCS 2630/5.” (Emphasis added.) Former Governor Blagojevich used identical language in his pardon of Holland. The use of the word “permitting” implicitly acknowledges that a court has power under the Act to grant or deny a petition. It is also consistent with subsection (c)’s use of the word “authorize” in reference to the Governor’s power, which made Howard and Holland legally eligible for expungement. We therefore read the Act as allowing the trial court discretion to grant or deny a petition for expungement. We turn to petitioners’ specific cases.

In 1984, Stanley Howard was convicted of murder and attempted armed robbery. The trial court sentenced Howard to 15 years’ imprisonment for the armed robbery. Howard was sentenced to death for the murder conviction. The conviction and sentences were affirmed on appeal. People v. Howard, 147 Ill. 2d 103 (1991). In 2003, Governor George H. Ryan commuted Howard’s death sentence and pardoned him “Based On Innocence *** With Order Permitting Expungement Under The Provisions of 20 ILCS 2630/5.” After receiving the pardon, Howard filed a petition for expungement in the circuit court of Cook County. The State objected, arguing Howard was not a good candidate for expungement because he has two other convictions. The circuit court determined it had discretion to deny expungement even though the executive pardon permitted expungement. The court denied the petition for expungement, concluding that “the interest of the Petitioner in obtaining ex-pungement is outweighed by the State’s legitimate interest in maintaining Petitioner’s records of arrest.” Howard appealed. The appellate court reversed the circuit court’s denial of Howard’s petition for expungement. Howard, 372 Ill. App. 3d 490.

Here, having ruled that the court had discretion, we note that petitioner Howard is not arguing that the circuit court abused its discretion in denying the petition. We therefore reverse the judgment of the appellate court in Howard.

Prior to addressing the merits of Holland’s appeal, we consider Holland’s motion, ordered taken with the case, seeking to strike portions of the State’s brief. The record reveals that in 1993, Dana Holland was convicted of three counts of aggravated criminal sexual assault and sentenced to three consecutive terms of 30 years’ imprisonment. Holland was also convicted of attempted murder and armed robbery and sentenced to 28 years’ imprisonment to run consecutively to his aggregate 90 years’ imprisonment for the aggravated criminal sexual assault convictions. All convictions were affirmed on appeal. Ten years later, in 2003, the circuit court vacated Holland’s convictions of aggravated criminal sexual assault when DNA test results exonerated Holland of the crimes. Holland was granted a new trial and ultimately acquitted of attempted murder and armed robbery. On January 6, 2005, Holland received a gubernatorial pardon from Governor Rod Blagojevich in both cases “Based Upon Innocence With Order Permitting Expungement Under The Provisions Of 20 ILCS 2630/5.” Holland then filed petitions for expungement. The State raised no objection. The circuit court denied the petitions to expunge, without hearing, holding Holland ineligible because of a prior 1986 conviction. Holland appealed.

The State’s brief contends that even though Holland was declared innocent by the Governor, he is still a menace to society and expungement will jeopardize public safety. In the alternative, Holland asks that we grant him leave to file an affidavit showing he is not a menace to society. Holland does not cite to any violations of our supreme court rules as the basis for striking a portion of the State’s brief. Rather, Holland merely complains that statements made in the State’s brief are not in the record or based in fact and are “unfairly insulting to Mr. Holland.”

The State objects to striking the statement because it is argument supported by Holland’s prior conviction of armed robbery, a violent felony. The State refers to statements in Holland’s affidavit to support its argument, but makes no argument on whether we should allow Holland leave to file the affidavit.

This court has recognized that striking a portion of an appellate brief “ ‘is a harsh sanction,’ ” appropriate only if a violation of our procedural rules interferes with or precludes our review. In re Detention of Powell, 217 Ill. 2d 123, 132 (2005), quoting Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031, 1035 (2000). Here, the statement was included to support the State’s argument that public safety reasons require judges to exercise discretion in denying petitions for expungement. The statement neither hinders nor precludes our review. Further, Holland’s prior conviction for armed robbery is in the record in a certified statement of conviction. The State’s argument is, therefore, supported by the record. Holland’s motion to strike is therefore denied. We also deny Holland’s alternative motion to file an affidavit claiming he is not a menace to society.

Turning to Holland’s petition, the appellate court majority determined the circuit court erroneously denied Holland’s petitions for expungement based solely on a belief that it had no discretion to grant the petitions because of Holland’s prior 1986 conviction. Holland, 374 Ill. App. 3d 121. The circuit court erroneously denied the petition under subsection (a) of the Act, which permits expungements after acquittal or release without conviction where petitioner does not have a prior conviction. The majority then acknowledged that remand for further proceedings was necessary because of the circuit court’s erroneous denial of the petitions under the wrong section of the Act. Holland, 374 Ill. App. 3d at 125. We agree with the appellate court that Holland’s case should be remanded for the circuit court to exercise its discretion. The record does not demonstrate that the State made an objection below. Therefore, we agree with the appellate court that the “State has waived any objection and the trial court must grant or deny the petition based on the petition and record of this case.” Petitioner and the State make no argument otherwise to this court.

CONCLUSION

In Howard, we reverse the judgment of the appellate court. In Holland, we affirm the judgment of the appellate court and remand to the circuit court to determine if expungement should be granted.

No. 104608 — Reversed.

No. 105022 — Affirmed and remanded.