Archive for the ‘Expungement’ category

What is the Difference Between Sealing and Expunging Records

August 26, 2010

Generally speaking, expunging a record erases all traces of it and sealing it simply removes it from public record.   More specifically, expungement removes the record of an individual’s arrest and charging.  This can be done in cases where a judgment of conviction was not entered by the court, with because the person was granted court supervision, was found not guilty or the case was dismissed either voluntarily or involuntarily by the state.  Voluntary dismissal usually comes through negotiated deals (such as diversion programs).  Involuntary dismissal generally happens when the defense wins a motion to suppress or witness problems force the state to concede.  Sealing happens when judgment is entered by the court.  A conviction can be sealed in certain situations where the legislature has approved it.  These situations include most misdemeanors (with the notable exceptions of Domestic Battery and DUI, among others) and certain class four felonies including prostitution and simple possession of drugs.  Expungement acts to make the case seem as if it never existed.  Defendants are allowed to assert they have never been arrested if their case is expunged.  Sealing simply makes the records available only to governmental agencies, and generally speaking the records cannot be found by employers.  The exceptions to that are if a person is applying to work for most government agencies.

Advertisements

January Update

January 28, 2009

People v. Alfaro, No. 2-06-1146 (October 2, 2008)

Defendant enter plea to second degree murder, reduced from first degree, in exchange for testimony against other defendants.

Because defendant breached plea agreement, which allowed defendant to plead guilty to second degree murder and obstructing justice, in exchange with defendant’s cooperation with prosecutors in their prosecution of other defendants, by giving inconsistent and untrue statement, he was not prejudiced by ineffective and unprofessional representation by his counsel. However, trial court erred when it refused to suppress video taped statement given to police, after three hour interrogation; because defendant was in custody, and State deliberately engaged in “ask and then warn” tactic. After first hour, defendant was confronted by accusatory interrogation; defendant was interrogated after getting off from midnight shift; and a reasonable person in defendant’s position would not have believed himself free to leave.

People v. Russell, No. 3-06-0264 (October 2, 2008)

Admission of affidavits and records certifying results and accuracy of breathalyzer machine do not violate right of confrontation as described in Crawford.

People v. Poe, No. 3-06-0461 (October 7, 2008)
Although the Supreme Court has held that theft can qualify as lesser included offense of burglary for purposes of jury instruction, defendant is not entitled to vacate conviction for theft under one act one crime analysis where he was convicted of breaking into a lumber yard with intent to commit a theft, and also of committing theft upon entry.

People v. Petrenko, No. 3-06-0508 (October 2, 2008)

Trial court did not err when it summarily dismissed post conviction petition filed by defendant alleging ineffective assistance of trial and appellate counsel for failure to file motion challenging search warrant of defendant’s home after defendant’s fingerprints were found in murder and robbery victim’s home. Further, defendant’s assertion on appeal of first stage dismissal of his post conviction petition that his consecutive sentences of natural life and 10 years, respectively for murder and robbery, is procedurally defaulted.

People v. Paige, No. 3-07-0869 (October 6, 2008)
Trial court erred when it granted motion to rescind a statutory summary suspension based on evidence that defendant was stopped at a roadblock, where officer smelled cannabis odor coming from defendant’s vehicle and defendant admitted that he had been smoking marijuana. In order to rescind summary suspension, defendant was required to present some evidence that roadblock was unreasonable; which he did not.

People v. Lucas, No. 104558 (October 17, 2008)
Trial and Appellate courts erred when they allowed defendant to be convicted of armed violence based on predicate offense of driving while license revoked, subsequent offense. Although driving while license revoked can be elevated to felony at sentencing, Section 111-3(c) of Procedure Code prohibits prior record from being presented to jury. Therefore, driving while license revoked cannot be predicate offense for armed violence.

People v. Bannister, No. 100983 (October 17, 2008)

In defendant’s trial for single murder, resulting in jury sentencing verdict of death, trial court adequately advised defendant of his right to choose bench trial for guilt phase of trial and jury trial for sentencing phase. In addition, trial court did not err when it denied counsel’s motion for bench trial at sentencing phase; because counsel may not overrule defendant’s selection of jury. In addition, although defense nonpattern jury instruction on verdict form under amended death penalty statute is preferable, trial court did not abuse its discretion when it gave instruction tendered by State. Further, prosecutor’s closing argument in sentencing phase highlighting defendant’s lack of remorse did not undermine defendant’s right to remain silent.

9/25/08 Updates

September 25, 2008

People v. Johnson, No. 1-06-0833 (September 8, 2008)

Defendant was convicted of murder and aggravated battery with a firearm to separate individuals  in one drive by shooting, and given consecutive sentences of 45 and 6 years on those charges.

Defendant made many claims of error but the most interesting were:

 

1.       At the Defendant’s motion to suppress his confession the State presented evidence that defendant waived his Miranda rights by submitting testimony of the lead detective and the assistant State’s Attorney who were present when he did so.  Defendant asserted that prior to the videotaped confession he had asserted his right to counsel under the Edwards rule (In Edwards v. Arizona, 451 U.S. 477 the Supreme Court held that someone who invokes the right to counsel could not be subject to further questioning, unless an attorney was made available or the suspect initiated the conversation.  The Edwards rule is not of the fifth amendment itself but by common law is part of Miranda’s “prophylactic purpose.” Davis, 512 U.S. 458). 

 

The only witness who testified to this alleged assertion was defendant’s prior attorney who stated he arrived at the police station, walked straight upstairs to the detective division without first stopping in the downstairs lobby and that a detective copied his ARDC card and sheriff’s id.  He further testified that he told a detective that the defendant was invoking his right to counsel.

 

The police said this never happened and that no Edward assertion was made either by the defendant or anyone else.  The police produced the sign in book from the station which lacked information about the attorney.

 

2.      The trial attorney never put forth the IPI 3.06-3.07 about the jury determining the weight to be given to a confession.  The court found that while failure to use appropriate instructions can be reversible for ineffectiveness, the use in this case of instruction 3.11 (general instruction regarding the weight to be given to any prior statement) was curative.  It should be noted that there is only one word difference between 3.06 and 3.11.

 

3.       The prosecutor in this case argued in closing that a certain witness who had given different testimony in court than he did before the grand jury may have come under outside influences was not reversible because it did not specifically state that the defendant was that outside influence.

 

 

People v. Ortiz
Defendant filed his third successive post conviction petition attacking his conviction for murder.  This one was based on actual innocence.  He satisfied the cause and prejudice test by:

          Filing an affidavit of a “newly” discovered eyewitness who stated he saw two  other men shooting the victim; and,

          Explained late discovery of the witness through testimony of that witness stating he was afraid to come forward earlier because of fear of gang recrimination; and,

          Testimony (offer of proof for the record) showed that the witness’ testimony would not be cumulative.

 

Trial court erred in dismissing the post-conviction petition at this stage without proper hearing on the merits.

People v. Santiago

Trial court suppressed statement of the defendant made directly to State after abuse/neglect petition was filed but before any criminal charges were filed based on no contact rule in SCRPR 4.2.

Appellate Court declared this ruling an error because although the Defendant had the PD in juvenile court, any criminal case of child endangerment (even though the alleged facts were the same ) was a different matter for no contact rule.


People v. Leggions, 4th Dist. No. 4-07-0187

The court found that getting out of one vehicle and in another close to it in a “high crime” area is not sufficient for reasonable suspicion justifying a “Terry” stop 

Giles v. California, US Supreme Court June 08

Supreme Court recognized two exceptions to Crawford V Washington based on tradition of common law:

1.      Dying declaration, and

2.      Statements by declarant unavailable due to actions by the defendant if the defendant intended to prevent the witness from testifying (“forfeiture by wrongdoing”).  Unless action is specifically for the purpose of preventing witness testimony this does not apply.

          

In a murder case the “forfeiture by wrongdoing” doctrine does not apply under the theory that by murdering the witness the defendant prevented his testimony.

 

People v. Givens, Illinois 1st District

Where an overnight guest sleeps in a bedroom the guest maintains a 4th Amendment right (expectation of privacy) when he: was using the bedroom at the lessee’s invitation; (2) had even a temporary possessory interest in it, (3) “had the ability to control or exclude others from the use of the bedroom while she was using it (because the lessee allowed defendant to close the bedroom door while sleeping and to lock the apartment door after the lessee left the premises)”, and (4) had a subjective expectation of privacy because she was allowed to use the bedroom, close the bedroom door, and lock the apartment door.

The leaseholder constented to a search by the police who appeared after receiving an anonymous tip about drug sales.  The court held that the extent of the consent was only to the locations in the apartment where the defendant wasn’t sleeping.

 

Clemency Petitions in Illinois

April 27, 2008

For most people with a felony in their background, Clemency is the best option to clear that mark.  With few exceptions (certain drug cases and prostitution) this is the only option.  That is also true for some misdemeanor offenses which are excluded from the expungement process.

The process of seeking executive clemency involves a written petition and a hearing before the Illinois Prisoner Review Board.   The Board then makes a reccomendation to the Governor’s office who makes the ultimate decision.

Clemency is essentially seeking forgiveness for your action or putting forth additional or new defenses to your previous case.  The petition and the hearing are governed by administrative rules that dictate with great specificity what the contents are to be, what documentation must be attached and what must be done at the hearing.

It is both a judicial and political proceeding.  It manages to mix many rules for the petitioner with few if any on the Governor.  In Illinois there is a tremendous backlog.  In fact, a lawsuit has been filed against Illinois Governor Rod Blagojevich in an attmep to get some decision made on the cases that are piling up on his desk.

A lawyer can help a lot in the process.  The writing, production and tone of the hearing are difficult to deal with if you haven’t seen them.

Brucar & Yetter has done many of these petitions and are a good source of information.

 

Expunging Uncharged Juvenile Cases

April 23, 2008

If you were ever picked up as a minor in Illinois (under the age of seventeen) but were not charged formally you may still have a police record.

With minors the police have lots of options.  Peer jury, station adjustment, drive home to parents or work through the school police officer.  All of these are possibilities, but the contact still goes into the LEADS system (what is commonly referred to as your “record”)

These contacts usually do not interfere in a persons life, but those wishing to get governemtn clearances or join law enforcement should seriously consider expungement.

This is referred to as a catagory one expungement petition and works if any of the following are true:

 

1. You were arrested detained) but not charged?

2. You were Charged but found not guilty?

3. You were placed on court supervision and successfully terminated it?

4. You were found guilty for an offense that if you had been an adult would have been a Class B or C misdemeanor or less (disorderly conduct, possession of minimal amounts of cannabis, etc.)

If you fall into this group a category one petition can be done quickly by professionals.  For more details see our website or the government site.

We’ll be happy to help you get this straightened out so that you can get on with your life.  We excel at Illinois Expungement.