People v. Powell

2021 IL App (4th) 200327-U

• Court: Appellate Court of Illinois
• Decided: March 8, 2021
• Docket: 4-20-0327
• Status: Unpublished

Opinion

NOTICE 2021 IL App (4th) 200327-U This Order was filed under Supreme FILED Court Rule 23 and is not precedent NO. 4-20-0327 March 8, 2021 except in the limited circumstances Carla Bender allowed under Rule 23(e)(1). IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County GEORGE L.R. POWELL, ) No. 91CF165 Defendant-Appellant. ) ) Honorable ) Thomas O’Shaughnessy, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Knecht and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed the trial court’s judgment in part and reversed in part because some, but not all, of the records that defendant sought to seal or expunge were eligible for those remedies.

¶2 In January 2020, defendant, George L.R. Powell, filed a petition to seal and

expunge multiple cases and convictions. The State objected, and the trial court denied defendant’s

petition without a hearing.

¶3 As an initial matter, we note that defendant is currently serving a 95-year prison

sentence with a projected release date in 2040. None of defendant’s meritorious requests to

expunge his records would have any impact on the sentence he is serving. Nonetheless, because

as we explain below, the law entitles defendant to expungement in some of his cases, we will honor

that entitlement.

¶4 Ultimately, defendant’s cases can be divided into the following categories: (1) defendant’s cannabis case, which is subject to a cannabis-specific portion of the sealing and

expungement statute and (2) defendant’s other cases that are either (a) eligible for expungement

or (b) ineligible for sealing or expungement.

¶5 Defendant appeals, arguing that the trial court erred when it (1) denied his petition

to seal and expunge his records for possession of more than 30 grams of cannabis, (2) denied

defendant’s petition to seal and expunge his records for the other charges listed in his petition, and

(3) failed to conduct a hearing on his petition. Because we agree that the charges against defendant

that did not result in convictions were subject to expungement but disagree with defendant’s other

arguments, we affirm in part, reverse in part, and remand for further proceedings.

¶6 I. BACKGROUND

¶7 In May 1991, the State charged defendant with one count of unlawful possession

of cannabis, a Class 4 felony. Ill. Rev. Stat. 1985, ch. 56½, ¶ 704(d). The charge alleged that in

September 1990, defendant knowingly possessed between 30 and 500 grams of cannabis.

Following a March 1992 bench trial, defendant was convicted of that offense, and the trial court

sentenced him to two years of probation.

¶8 In April 1993, while defendant was on probation, defendant was charged in

Vermilion County case No. 93-CF-119 with three counts of aggravated criminal sexual assault.

Ill. Rev. Stat. 1991, ch. 38, ¶ 12-14(b)(1). The charges generally alleged that between January 1991

and February 1992, defendant committed various sex acts with a person under the age of 13.

¶9 In November 1993, the State filed a petition to revoke defendant’s probation in the

cannabis case, and defendant’s probation was subsequently revoked. In August 1994, the trial court

conducted defendant’s resentencing hearing in the cannabis case, as well as his sentencing hearing

in case No. 93-CF-119. In defendant’s cannabis case, the trial court resentenced him to 5 years in

-2- prison. In case No. 93-CF-119, the court sentenced defendant to 30 years in prison on each count,

with all of the sentences to run consecutively for an aggregate sentence of 95 years.

¶ 10 In January 2020, defendant filed a petition to seal and expunge multiple

convictions, including the cannabis conviction in this case, pursuant to section 5.2 of the Criminal

Identification Act (20 ILCS 2630/5.2 (West Supp. 2019)). To resolve defendant’s claims, this court

utilized the public case search function on the Vermilion County Circuit Clerk website to obtain

the electronic records for the cases for which defendant sought sealing or expungement. We take

judicial notice of those records. See People v. Johnson, 2020 IL App (1st) 171638, ¶ 29 (taking

judicial notice of online docket sheets). Those electronic records revealed the following

information:

(1) case No. 91-CF-165 is the cannabis conviction described previously.

(2) case No. 89-TR-013 was a misdemeanor traffic offense that resulted in

nolle prosequi.

(3) case No. 89-TR-014 was a misdemeanor traffic offense that resulted in

(4) case No. 89-TR-015 was a misdemeanor traffic offense that resulted in

(5) case No. 89-TR-016 was a misdemeanor traffic offense that resulted in

(6) case No. 89-TR-077 was a misdemeanor traffic offense that resulted in

conviction.

(7) case No. 91-CF-099 involved two counts: (1) knowing damage to

property valued between $300 and $10,000 and (2) cutting timber without consent

-3- of the timber grower. The second count was dismissed on the State’s motion. The

first count was amended to an unspecified charge and resulted in “Special

Conditions Probation.”

(8) case No. 83-CF-56 was an offense for which no record could be found.

(9) case No. 91-CM-736 included three counts: (1) disorderly conduct,

(2) criminal damage to property, and (3) criminal trespass to land. Disorderly

conduct resulted in a conviction, but the other counts were dismissed.

(10) case No. 91-CM-737 resulted in dismissal.

(11) case No. 93-CF-119 included three counts of aggravated criminal

sexual assault that resulted in a conviction for each count. Defendant is currently

serving his prison sentence for these convictions.

(12) case No. 92-CM-263 resulted in dismissal.

(13) case No. 90-TR-9632 was an operating an uninsured motor vehicle

offense that resulted in conviction.

(14) case No. 90-TR-9631 was a driving on a revoked license offense that

resulted in a conviction.

(15) case No. 84-CF-176 was an offense for which no record could be

found.

¶ 11 The State objected to the petition, and the trial court did not afford defendant a

hearing on it. The court denied in the petition’s entirety defendant’s request to seal and expunge

his criminal records.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

-4- ¶ 14 Defendant appeals, arguing that the trial court erred when it (1) denied his petition

to seal and expunge his records for possession of more than 30 grams of cannabis, (2) denied

defendant’s petition to seal and expunge his records for the other charges listed in his petition, and

(3) failed to conduct a hearing on his petition. Because we agree that the charges against defendant

that did not result in convictions were subject to expungement but disagree with defendant’s other

arguments, we affirm in part, reverse in part, and remand for further proceedings.

¶ 15 A. The Trial Court Correctly Denied Defendant’s Petition

To Seal and Expunge His Cannabis Conviction

¶ 16 Defendant contends that the trial court erred by denying his petition to seal and

expunge his conviction for possession of more than 30 grams of cannabis. We disagree and affirm.

¶ 17 Section 5.2 of the Criminal Identification Act allows an individual to petition a

court to expunge and seal certain records if those records are eligible to be expunged and sealed.

20 ILCS 2630/5.2 (West Supp. 2019). That same section states that “Minor Cannabis Offense[s]”

committed prior to June 25, 2019, are subject to automatic expungement, provided certain criteria

are met. Id. § 5.2(i)(1)(A). “Minor Cannabis Offense” is defined as “a violation of Section 4 or 5

of the Cannabis Control Act concerning not more than 30 grams of any substance containing

cannabis ***.” Id. § 5.2(a)(1)(G-5). Because defendant’s conviction of possession of more than

30 grams of cannabis does not come within the definition of a “Minor Cannabis Offense,” this

provision does not apply.

¶ 18 Section 5.2(i)(3) states that an individual may move to vacate and expunge a

conviction for a misdemeanor or Class 4 felony violation of section 4 or 5 of the Cannabis Control

Act “after the completion of any non-financial sentence or non-financial condition imposed by the

conviction.” As the State notes, defendant is currently in prison due to consecutive sentences that

-5- include the sentence for which defendant now seeks expungement. For that reason, defendant has

not yet completed the nonfinancial aspect of his sentence, and this provision does not apply. We

note that defendant also argues that his conviction should be sealed pursuant to subsection (c).

However, this argument fails for similar reasons because convictions may only be sealed two years

after the completion of a petitioner’s last sentence. Because defendant is still in prison, this

¶ 19 In addition, defendant has presented no evidence that he received a pardon from the

Governor of Illinois. See id. § 5.2(i)(2)(C) (providing for automatic expungement without

objection in cases of pardons).

¶ 20 B. The Trial Court Incorrectly Denied Defendant’s Petition To Expunge

Some of His Other Records

¶ 21 Next, defendant argues that the trial court should have granted his petition to

expunge his convictions in the following Vermilion County case Nos.: 89-TR-013, 89-TR-014,

89-TR-015, 89-TR-016, 89-TR-077, 91-CF-099, 83-CF-56, 91-CM-736, 91-CM-737, 93-CF-119,

92-CM-263, 90-TR-9632, 90-TR-9631, 84-CF-176. We agree in part and disagree in part.

¶ 22 1. The Law

¶ 23 Arrests or charges that result in acquittal, dismissal, or release without charging are

immediately expungable with no waiting period. 20 ILCS 2630/5.2(b)(2)(A) (West Supp. 2019).

¶ 24 Records eligible for sealing include (1) all arrests resulting in release without

charging and (2) arrests or charges not initiated by arrest that result in acquittal, dismissal, or

“conviction when the conviction was reversed or vacated ***.” Id. § 5.2(c)(2)(A)-(B). Further,

“Records identified as eligible under subsection (c)(2)(A) and (c)(2)(B) may be sealed at any

time.” Id. § 5.2(c)(3)(A).

-6- ¶ 25 If the charge results in a conviction, the law states that although the amount of time

an individual must wait before seeking to have his or her record sealed differs based on various

factors, at minimum the defendant must have completed his or her last sentence. See id. § 5.2(c)(3).

¶ 26 The law also prohibits “the sealing or expungement of records of minor traffic

offenses (as defined in subsection (a)(1)(G)), unless the petitioner was arrested and released

without charging.” Id. § 5.2(a)(3)(B). “ ‘Minor traffic offense’ means a petty offense, business

offense, or Class C misdemeanor under the Illinois Vehicle Code or a similar provision of a

municipal or local ordinance.” Id. § 5.2(a)(1)(G).

¶ 27 2. This Case

¶ 28 We note that nowhere in the State’s brief does the State address any of the cases for

which defendant seeks sealing or expungement, other than the cannabis case previously discussed.

Further, in the State’s objection filed in the trial court, the State argued that the court should not

expunge defendant’s cases only because (1) defendant had a long and violent criminal history and

(2) given that defendant was currently in prison, “none of [d]efendant’s records are eligible to be

expunged and/or sealed as he has not completed his last sentence.”

¶ 29 We also note that in the trial court’s order denying defendant’s request to seal and

expunge, the court checked four boxes on a form order and offered no further explanation. The

checked boxes stated that defendant’s request is denied for all cases sought to be expunged because

“Your records are not legally eligible to be expunged.” The checked boxes also stated that

defendant’s request is denied for all cases sought to be sealed because “Your records are not legally

eligible to be sealed.” This is simply incorrect; several of defendant’s listed cases were legally

eligible for expungement.

¶ 30 The State provided no good reason, either in the trial court or on appeal, why

-7- defendant’s records that are eligible for expungement should not be so treated. We conclude that

in the following cases as indicated, defendant is entitled by law to expungement of those records.

¶ 31 Because both Vermilion County case Nos. 91-CM-737 and 92-CM-263 were

dismissed by the State, defendant is eligible for immediate expungement for these cases.

¶ 32 Because the electronic records for Vermilion County case Nos. 89-TR-013,

89-TR-014, 89-TR-015, 89-TR-016 show that all of these cases resulted in nolle prosequi, they

are eligible for immediate expungement.

¶ 33 Vermilion County case No. 91-CM-736 included three counts: (1) disorderly

conduct, (2) criminal damage to property, and (3) criminal trespass to land. Because the electronic

record shows that defendant pled guilty to disorderly conduct, but the other two counts were

dismissed on the State’s motion, the records related to criminal damage to property and criminal

trespass to land are eligible for immediate expungement. The records related to disorderly conduct

are not eligible for expungement or sealing.

¶ 34 Vermilion County case No. 91-CF-099 involved two counts: (1) knowing damage

to property valued between $300 and $10,000 and (2) cutting timber without consent of the timber

grower. The second count was dismissed on the State’s motion. The first count was amended to

an unspecified charge and resulted in “Special Conditions Probation.” The electronic record is

inadequate for this court to determine whether this probation resulted in a conviction or whether

the “special conditions” resulted in no conviction. For those reasons, the records related to count

two are eligible for immediate expungement, but we will not disturb the trial court’s decision

denying sealing or expungement for count one.

¶ 35 According to the electronic record, Vermilion County case Nos. 89-TR-077,

90-TR-9631, 90-TR-9632, and 93-CF-119 are offenses for which defendant was found guilty and

-8- convicted. Because defendant, at a minimum, would need to have completed his last sentence and

defendant is currently in prison, defendant is not yet eligible for sealing for these offenses. Nothing

in the electronic record indicates that defendant is eligible for expungement for these offenses.

¶ 36 Further, because this court could find no Vermilion County case with a

corresponding number 83-CF-56 or 84-CF-176 in the online records, this court lacks sufficient

information to conclude that the trial court erred when it denied defendant’s request to seal or

expunge in relation to these charges. For that reason, we will not disturb the trial court’s decision

denying sealing or expungement for those charges.

¶ 37 C. The Trial Court Did Not Commit Reversible Error Regarding

Its Failure to Provide Defendant a Hearing

¶ 38 Last, defendant argues that the trial court committed reversible error because it did

not bring defendant to court for a hearing on his petition to expunge and seal his records. The State

responds that although it was error for the court to not hold such a hearing, that error was harmless.

¶ 39 Section 5.2(d)(7) requires a trial court to hold a hearing if the State objects to a

petition to seal or expunge. In People v. Stoecker, 2020 IL 124807, ¶ 7, a defendant filed a section

2-1401 petition, and the State filed a response. The trial court dismissed the petition without

allowing the defendant to file the response that he was entitled to file. The Illinois Supreme Court

ultimately concluded that the error was “harmless because petitioner’s claims were procedurally

defaulted and patently incurable as a matter of law and because no additional proceedings would

have enabled him to prevail on his claim for relief.” Id. ¶ 26.

¶ 40 In this case, the trial court erred by not holding the hearing. However, we divide

defendant’s claims into the categories described previously. See supra ¶ 4. First is the cannabis

case for which defendant sought sealing and expungement. For this case, the principle in Stoecker

-9- applies. The error is harmless because defendant’s claim is “patently incurable as a matter of law

and because no additional proceedings would have enabled him to prevail on his claim for relief.”

Stoecker, 2020 IL 124807, ¶ 26.

¶ 41 The second category of cases consists of the ones we discussed earlier. See supra

¶¶ 33-39. Failure to conduct a hearing on defendant’s petition regarding those cases was not

harmless error. However, in the interest of judicial economy, we have evaluated defendant’s claims

and have determined which ones have merit.

¶ 42 III. CONCLUSION

¶ 43 For the reasons stated, we reverse the trial court’s judgment and remand with

instructions that the trial court enter a new order consistent with this decision.

¶ 44 Affirmed in part, reversed in part, and remanded with directions.

- 10 -