Ackerman v. People ( 2021 )

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Appellate Court Date: 2022.03.02
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Ackerman v. People, 2021 IL App (3d) 200169Appellate Court NEIL E. ACKERMAN, Petitioner-Appellant, v. THE PEOPLE OF
Caption THE STATE OF ILLINOIS, Respondent-Appellee.
District & No. Third District
No. 3-20-0169
Filed April 29, 2021
Decision Under Appeal from the Circuit Court of Will County, No. 19-MR-3256; the
Review Hon. David Martin Carlson, Judge, presiding.
Judgment Vacated and remanded.
Counsel on Neil E. Ackerman, of Galesburg, appellant pro se.
Appeal
James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino and
Thomas D. Arado, of State’s Attorneys Appellate Prosecutor’s Office,
of counsel), for the People.
Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Presiding Justice McDade and Justice Wright concurred in the
judgment and opinion.
OPINION
¶1 The trial court denied the petitioner’s petition to expunge. He appealed. We hold that a
timely written objection is required before a trial court can consider factors set forth by parties
entitled to notice of a petition to expunge. In the absence of a timely, written objection it was
error for the State to participate in a court proceeding on a petition to expunge. We vacate the
trial court’s denial of the petition to expunge and remand for further proceedings consistent
with this opinion.
¶2 BACKGROUND
¶3 Petitioner Neil E. Ackerman filed a petition to expunge portions of his criminal record on
November 20, 2019. He sought expungement of records for the following: a 1991 arrest for
possession of controlled substance, which resulted in a conviction and satisfactory completion
of qualified probation; a 1992 theft arrest, which resulted in conviction and satisfactory
completion of qualified probation; a 2001 arrest and charge for criminal trespass, which was
nol-prossed; and two charges in 2009 that originated as criminal sexual assault/force charges
that were then amended to domestic battery and later nol-prossed. At the time of the
proceedings, Ackerman was incarcerated in the Illinois Department of Corrections (IDOC) on
unrelated charges and remains in IDOC custody with a projected discharge date of 2037.
¶4 Ackerman provided notice of his petition to expunge to the arresting authorities. At the
time Ackerman’s petition to expunge came before the trial court on January 31, 2020, no
written objections had been filed by any of the parties entitled to notice. Ackerman was not
present in court. When the trial court called the case, an assistant state’s attorney answered and
asked the trial court to deny the petition, arguing that the records were not eligible for
expungement. The trial court granted the request and denied Ackerman’s petition. He timely
appealed.
¶5 ANALYSIS
¶6 On appeal, Ackerman challenges the trial court’s denial of his petition to expunge on
several grounds. First, Ackerman claims his due process rights were violated when the trial
court held a hearing on the basis of the State’s untimely objection without first notifying him
and giving him an opportunity to participate. He further argues the trial court abused its
discretion in denying his petition without first considering the factors set forth in section
5.2(d)(7)(A)-(E) of the expungement statute. See 20 ILCS 2630/5.2(d)(7)(A)-(E) (West 2018).
¶7 We begin our analysis of Ackerman’s due process claims by examining the relevant
portions of the expungement statute. The statutory framework authorizing the entry of a court
order expunging eligible criminal records is set forth in section 5.2 of the Criminal
Identification Act (id. § 5.2). The statute requires that when a person files a petition to expunge
in the circuit court, they must give notice of the petition to the state’s attorney and other
interested law enforcement agencies. Id. § 5.2(d)(4). Once a petition has been filed, the state’s
attorney and any other party entitled to notification has the right to object to the expungement
of the records outlined in the petition. Id. § 5.2(d)(5)(A).
¶8 In the matter before us, Ackerman claims his due process rights were violated when the
state’s attorney was allowed to proceed with an objection at a hearing on the petition without
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following the requirements set forth in the statute, thus depriving him of notice and an
opportunity to be heard. Since any rights Ackerman has with regard to the opportunity to seek
expungement of any portion of this criminal record were conferred by statute, a determination
of whether those rights were violated is a matter of statutory interpretation and subject to our
de novo review. Wakefield v. Department of State Police, 2013 IL App (5th) 120303, ¶ 5
(“ ‘expungement of criminal records is a creature of legislative enactment’ ” (quoting People
v. Thon, 319 Ill. App. 3d 855, 862 (2001))); Duncan v. People ex rel. Brady, 2013 IL App (3d)
120044, ¶ 12 (issues of statutory interpretation reviewed de novo).
¶9 The expungement statute sets forth specific requirements for the filing of objections to
petitions for expungement. The relevant portion of the statute provides as follows. Where a
petitioner seeking expungement has been convicted of a criminal offense, “the State’s Attorney
may object to the expungement on the grounds that the records contain specific relevant
information aside from the mere fact of arrest.” 20 ILCS 2630/5.2(b)(1.5) (West 2018). Parties
entitled to notice of a petition to expunge may file an objection, which “shall be in writing”
and state specifically the basis of the objection, within 60 days after the date of service of the
petition. Id. § 5.2(d)(5)(A), (B). Unless an objection is filed by the state’s attorney or other
interested law enforcement agencies within 60 days, the court shall grant or deny the petition.
Id. § 5.2(d)(6)(B). If an objection is filed, the court “shall set a date for a hearing and notify
the petitioner and all parties entitled to notice of the petition of the hearing date at least 30 days
prior to the hearing.” Id. § 5.2(d)(7).
¶ 10 There is no dispute that none of the parties entitled to notice filed a timely, written objection
to the petition to expunge. Ackerman filed his petition to expunge on November 20, 2019. The
parties were served notice of the petition on or before November 25, 2019. No interested parties
filed written objections by January 25, 2020. On January 31, 2020, the State called Ackerman’s
case and the following dialogue took place.
“ASSISTANT STATE’S ATTORNEY: His cases are up for expungement.
However, he received probation and a Department of Corrections prison sentence, so
they wouldn’t be eligible for expungement. In addition to that, he is currently in the
Illinois Department of Corrections with a projected paroled date or projected discharge
date of 2037. So I am asking you to deny his request.
THE COURT: Okay. So ordered.”
¶ 11 Ackerman argues the statute prohibits the trial court from entertaining the objection and
argument made by the assistant state’s attorney because it was not submitted in writing within
60 days of the filing of the petition. Ackerman further argues the trial court could not hold a
hearing on the objection without first giving him notice and an opportunity to be heard. In light
of the clear statutory language, we agree, in part, with Ackerman. We find the State’s
participation in the hearing in the trial court was improper as the state’s attorney did not file a
written objection and the deadline for the filing of objections had passed. Therefore, the trial
court could not entertain the arguments of any objector, and likewise, Ackerman was not
entitled to notice or the opportunity to participate in a hearing. In this circumstance, the trial
court is required to rule solely on the basis of the petition.
¶ 12 The statutory requirement for the trial court to only grant or deny the petition without a
hearing when no timely objection has been filed is similar to the one employed at the first stage
of proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2018)). At the first stage, the court reviews a postconviction petition on its own, without
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participation by any of the interested parties. See People v. Kane, 2013 IL App (2d) 110594,
¶ 26 (court independently reviews first-stage petition). Input from the State and further
pleadings from the defendant are not permitted at the initial stage of postconviction
proceedings. See People v. Rish, 344 Ill. App. 3d 1105, 1109-10 (2003) (first-stage petition
reviewed without feedback from the parties); People v. Tyler, 2015 IL App (1st) 123470, ¶ 144
(trial court reviews first-stage petition unaided by the parties).
¶ 13 Although argument made by the assistant state’s attorney was not lengthy or formal, it did
contain substantive arguments about the viability of Ackerman’s petition and a
recommendation that the petition be denied. Because the state’s attorney did not file a written
objection in a timely manner or provide notice to Ackerman of the hearing on the objection, it
was error for the trial court to consider those remarks. Therefore, we vacate the order denying
the petition to expunge and remand this matter to the trial court so that the trial court can rule
on the petition to expunge without any further input as prescribed in the statute. Because our
ruling on this issue is dispositive, we need not address Ackerman’s additional arguments.
¶ 14 CONCLUSION
¶ 15 For the foregoing reasons, the judgment of the circuit court of Will County is vacated, and
the cause is remanded.
¶ 16 Vacated and remanded.
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