People v. Holland

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People v. Holland

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-4014 Rel

Case Date: 06/21/2007

Preview:FOURTH DIVISION FILED: June 21, 2007

No. 1-05-4014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANA HOLLAND, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County, Illinois.

No. 93 CR 8675

Honorable Paul P. Biebel, Jr., Judge Presiding.

JUSTICE MURPHY delivered the opinion of the court: In 1993, petitioner, Dana Holland, was indicted and convicted of several crimes, hereinafter referred to as "1993 convictions." Under indictment No. 93 CR 5981, petitioner was convicted of three counts of aggravated criminal sexual assault and sentenced to three consecutive terms of 30 years' imprisonment. Petitioner was also convicted of attempted murder and armed robbery under indictment No. 93 CR 8675 and sentenced to 28 years' imprisonment to run consecutive to his aggregate 90 years' imprisonment for the aggravated criminal sexual assault convictions. On direct appeal, this court affirmed all of petitioner's convictions. On January 30, 2003, the circuit court vacated the convictions of aggravated criminal sexual assault based upon DNA tests. On February 11, 2003, the convictions for attempted

1-05-4014 murder and armed robbery were also vacated based upon DNA testing. On January 6, 2005, Illinois Governor Rod R. Blagojevich granted petitioner an executive pardon for the 1993 convictions. Based upon the executive pardon, petitioner filed expungement petitions for the 1993 convictions on February 10, 2005. On October 23, 2005, the circuit court of Cook County denied the petition to expunge. Petitioner's appeal followed. I. BACKGROUND In 1986, petitioner was convicted of armed robbery and sentenced to eight years' imprisonment under indictment No. 86 CR 1649, hereinafter referred to as "1986 conviction." Petitioner filed a direct appeal of the 1986 conviction under People v. Holland, No. 1-86-3338, March 24, 1988 (unpublished order under Supreme Court Rule 23). Petitioner's appellate counsel concluded that there were no meritorious issues and filed a motion to withdraw and brief pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). This court granted counsel's motion to withdraw and affirmed petitioner's conviction and sentence. As noted above, the 1993 convictions are the subject of the instant expungement petition and appeal. Petitioner filed direct appeals of the 1993 convictions, and this court affirmed the lower court's rulings in each appeal. However, in 2003, the 1993 convictions for aggravated criminal sexual assault, attempted murder and armed robbery were dismissed based on DNA testing. The 1993 attempted murder and armed robbery charges were retried. Following the bench retrial, the trial court found petitioner not guilty of these charges. On January 6, 2005, Governor Blagojevich issued petitioner an executive pardon for the 1993 convictions, stating in part: "[W]hereas, DANA HOLLAND, was convicted of the crime of

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1-05-4014 Attempted Murder, Armed Robbery, Aggravated Criminal Sexual Assault, Case #93CR8675, #93CR0598101 *** Grant Pardon Based Upon Innocence With Order Permitting Expungement Under The Provisions Of 20 ILCS 2630/5." On February 10, 2005, petitioner filed petitions to expunge the 1993 convictions based upon the executive pardon received from Governor Blagojevich. The State raised no objection and there was no hearing conducted on either petition. On October 23, 2005, the lower court entered an order denying petitioner's expungement petitions. The court checked the preprinted section of the order that states "Defendant/Petitioner is not eligible for expungement relief because he/she was previously convicted of a criminal offense or municipal ordinance violation other than the arrest noted above." A handwritten note was added to the order, stating: "Def's conviction on 86CR-1649 was affirmed and not pardoned - sentence of 8 yrs IDOC stands ineligible." Petitioner appeals the trial court's denial of his petitions for expungement. Petitioner and the State filed their briefs in this matter. In addition, on behalf of the Illinois Prison Review Board (IPRB), the Attorney General of Illinois was granted leave to file a statement of position. II. ANALYSIS A. Discretion of the Court if Petitioner Has a Prior Conviction Under petitioner's first claim, he argues that the Governor's pardon granted him leave to expunge his record and the trial court erroneously denied his petitions as barred based on his prior criminal history. From a review of the record, this first issue has merit. This issue is a matter of statutory construction and a question of law; therefore, our review is de novo. People v.

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1-05-4014 Perry, 224 Ill. 2d 312, 324 (2007). Petitioner argues that the trial court misread the expungement statute, section 5 of the Criminal Identification Act (20 ILCS 2630/5 (West 2004)). Petitioner explains that subsection (a) restricts eligibility to request expungement of a conviction to persons that have not previously been convicted of any criminal offense after an acquittal or dismissal of charges. 20 ILCS 2630/5(a) (West 2004). Although petitioner concedes he would not be eligible for expungement under this subsection, he argues that subsection (c) provides a separate basis that clearly allows him to petition for expungement. Subsection (c) reads, in pertinent part: "(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 of the arresting authority and order that the records of the clerk of the circuit court and the Department be sealed until further order of the court upon good cause shown or as otherwise provided herein ***. Upon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual. Upon entry of the order of expungement, the clerk of the circuit court shall promptly mail a copy of the order to the person who was pardoned." 20 ILCS 2630/5(c) (West 2004).

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1-05-4014 Petitioner argues that subsection (c) is less restrictive than subsection (a) because it is for situations, such as his, where the individual has received an executive pardon and not merely an acquittal or dismissal of his charges. Both petitioner and the IPRB argue in their briefs that the language of the statute clearly grants discretion to a petitioner, who "may" seek expungement. Subsequent to the briefing in this matter, this court entered an opinion in People v. Howard,372 Ill. App. 3d 490 (2007), which petitioner moved to cite as additional authority and the parties capably discussed at oral argument. We note that this case was not published prior to IPRB's submission of its statement of position. Howard involved a similar situation as this case, where the petitioner had been pardoned for one crime, but had a separate conviction on his record. Howard, 372 Ill. App. 3d at 491-92. Following a review of the effect of the language in subsection (c), the Howard court struck the second "may" from the statute as a grammatical error. Therefore, the sole explicit conditional act in that subsection is whether the petitioner files a petition. Howard, No. 1-05-1662, 372 Ill. App. 3d at 499-502. This grammatical correction by the Howard court does not affect the conclusions of the parties. The State maintains that this correction simply solidifies the statute's grant of discretion to a petitioner to file a petition. The State argues that the trial court must be affirmed for properly exercising its discretion in denying the petition based on petitioner's criminal history. This argument, addressed fully below, ignores the language utilized by the trial court and the threshold issue of whether petitioner's prior convictions bar him from expunging the pardoned convictions.

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1-05-4014 Petitioner and the IPRB assert that the trial court erroneously determined that petitioner was ineligible for expungement based on the 1986 conviction. The IPRB concludes that this matter must therefore be remanded for further proceedings. We agree. Subsection (a) restricts eligibility to petitioners that have been acquitted of charges and do not have prior convictions of record. Subsection (c), which stands alone from subsection (a), does not place such a restriction on a petitioner who has received an executive pardon. If the petitioner had brought his request under subsection (a), he would be ineligible based on his 1986 conviction; however, his petition was brought pursuant to subsection (c) and he is not restricted by the provisions of subsection (a). A fair reading of the record reveals that Judge Biebel erroneously denied the petition based solely on a belief that he had no discretion to grant the petitions because of petitioner's 1986 conviction. B. Discretion to Grant or Deny an Expungement Petition Brought Under Subsection (c) Although this case could have ended with a remand for further proceedings based on the erroneous denial of the petitions, a second issue arises from the one connection between subsections (a) and (c). Subsections (a) and (c) stand alone, but both fall under the provisions of subsection (d). Despite the language of subsection (d), the Howard court found that the trial court has no discretion to grant or deny an expungement petition when a petitioner has received an executive pardon and expungement is authorized pursuant to subsection (c). Petitioner argues that this requires remand for entry of an order granting his petitions. The Illinois Constitution provides that "[t]he Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper.

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1-05-4014 The manner of applying therefore may be regulated by law." Ill. Const. 1970, art. V,

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