{ "id": 4269502, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY HOWARD, Defendant-Appellant", "name_abbreviation": "People v. Howard", "decision_date": "2007-03-30", "docket_number": "No. 1\u201405\u20141662", "first_page": "490", "last_page": "515", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 490" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "219 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3598113 ], "year": 2006, "pin_cites": [ { "page": "383-84", "parenthetical": "holding that the circuit court properly considered this same speech in ascertaining the executive intent in a clemency order" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/219/0373-01" ] }, { "cite": "298 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1073545 ], "year": 1998, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/298/0672-01" ] }, { "cite": "294 Ill. App. 3d 405", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35375 ], "year": 1998, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0405-01" ] }, { "cite": "03 C 8481", "category": "reporters:state", "reporter": "Cow.", "year": 2004, "pin_cites": [ { "parenthetical": "\"In this case, Defendants seem to agree that Howard's pardon on grounds of innocence invalidated his conviction\"" } ], "opinion_index": 0 }, { "cite": "391 F. Supp. 2d 660", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 8908046 ], "year": 2005, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/391/0660-01" ] }, { "cite": "208 Ill. 2d 457", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2463105 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "474" }, { "page": "473" }, { "page": "468", "parenthetical": "taking judicial notice of Governor Ryan's speech" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/208/0457-01" ] }, { "cite": "53 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395542 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "641" }, { "page": "641", "parenthetical": "\"at least in the State of Illinois the guilt of the defendant is absolved by a pardon only where the same states that it is based upon the innocence of the defendant\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0639-01" ] }, { "cite": "82 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474695 ], "year": 1980, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0444-01" ] }, { "cite": "363 Ill. App. 3d 1091", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5766878 ], "year": 2006, "pin_cites": [ { "page": "1096" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/363/1091-01" ] }, { "cite": "204 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609702 ], "year": 2003, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0159-01" ] }, { "cite": "218 Ill. 2d 148", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735959 ], "year": 2006, "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0148-01" ] }, { "cite": "362 Ill. App. 3d 1121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260283 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "1138" }, { "page": "1138" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/1121-01" ] }, { "cite": "217 Ill. 2d 123", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875453 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "135" }, { "page": "135" }, { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0123-01" ] }, { "cite": "354 Ill. App. 3d 392", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3217913 ], "year": 2004, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0392-01" ] }, { "cite": "193 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963718 ], "year": 2000, "pin_cites": [ { "page": "466" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/193/0455-01" ] }, { "cite": "362 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260138 ], "year": 2005, "pin_cites": [ { "page": "742", "parenthetical": "all sections of statute must be read and considered together as a whole" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/362/0730-01" ] }, { "cite": "352 Ill. App. 3d 709", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5455481 ], "year": 2004, "pin_cites": [ { "page": "721" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/352/0709-01" ] }, { "cite": "294 Ill. App. 3d 405", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35375 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/ill-app-3d/294/0405-01" ] }, { "cite": "82 Ill. 2d 444", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474695 ], "year": 1980, "pin_cites": [ { "page": "455" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/82/0444-01" ] } ], "analysis": { "cardinality": 1705, "char_count": 67301, "ocr_confidence": 0.761, "pagerank": { "raw": 8.215505933961065e-08, "percentile": 0.47677026730129823 }, "sha256": "a5ecf4155755523dcd0e6698c4806f4f3cc8432de0177f594f5add2b60fe783a", "simhash": "1:a1adc4b72fdc2df6", "word_count": 11047 }, "last_updated": "2023-07-14T16:46:01.247775+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY HOWARD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOSEPH GORDON\ndelivered the opinion of the court:\nDefendant, Stanley Howard, appeals from the circuit court\u2019s denial of his petition to expunge records of his arrest for a crime for which he was pardoned by the Governor. Defendant contends that the statute providing for expungement of arrest records vests no discretion within the circuit court to deny a petition that otherwise meets the statutory requirements for expungement. Alternatively, he contends that the court would have abused any discretion it had by denying his petition. For the reasons that follow, we reverse.\nFACTUAL BACKGROUND\nOn November 1, 1984, Chicago police arrested defendant for a number of crimes. At that time, police arrested defendant for the offenses of kidnaping, armed robbery and residential burglary committed on March 13, 1983. Defendant was also arrested at that time for the attempted kidnaping, armed robbery, and murder of two off-duty police officers on March 14, 1983. Yet another set of offenses defendant was then arrested for included possession of a stolen motor vehicle, armed robbery, kidnaping, home invasion, and rape, committed on May 26, 1983. Finally, police arrested defendant that day for the attempted robbery of two victims, plus the murder of one of those victims, committed on May 20, 1984. The State elected to nol-pros the charges for the offenses committed on March 13, 1983. But, defendant was tried on the charges filed for the offenses committed on March 14, was found guilty, and sentenced to 28 years. Defendant was likewise tried for the offenses of May 26, 1983, found guilty, and sentenced to a consecutive sentence of 50 years. Finally, defendant faced trial and was found guilty on charges stemming from the attempted robbery and murder of May 20, 1984, and received a sentence of death.\nThe State introduced defendant\u2019s confession at the trial on defendant\u2019s murder charge. In a postconviction petition, defendant alleged that his confession resulted from police torture. On January 10, 2003, prior to the resolution of his postconviction claim, defendant received a full pardon from the Governor.\nIn a public speech on January 11, 2003, then-Governor Ryan explained the bases for his grant of defendant\u2019s pardon. After advising his audience that \u201c[tjhere are more innocent people on death row,\u201d Governor Ryan went on to describe defendant\u2019s death case:\n\u201cEvidence uncovered after trial similarly presents a compelling case that Stanley Howard did not commit the crime for which he faces execution.\nHe was charged with coming up to a man in a car, asking for a match, and then shooting the man in a fit of temper when the man refused the request. However, witnesses subsequently were located who heard the crime unfold and whose testimony establishes that the shooter knew the victim and his companion and that the shooter had been stalking them so that he could, in his words, \u2018catch\u2019 them.\nThere was no physical evidence of any kind against Howard. The state\u2019s case consisted entirely of two items of evidence. First, there was an alleged identification by a single eyewitness, the victim\u2019s companion. Eyewitness identifications are never very reliable, but here the identification was particularly unreliable. The witness had been drinking heavily at the time of the shooting. She also had a restricted ability and a limited opportunity to see the shooter in the dark at night.\nMore importantly, she made her identification of Howard six months after the shooting and at the time was only able to make a tentative identification that Howard looked similar to the shooter. Finally, her version of what happened was directly contradicted by ballistics evidence and the testimony of the witnesses who heard what happened that night.\nThe only other evidence against Howard was his so-called confession, which he has maintained from the beginning was obtained by brutal torture. Like Madison Hobley, Stanley Howard was suffocated with a plastic bag until he confessed. There is strong evidence that corroborates his account. His confession was obtained by Area 2 detectives. In Howard\u2019s case, medical evidence uncovered after trial directly establishes that Howard was physically harmed while in the custody of the Area 2 detectives.\nHe called his father and said these \u2018detectives are killing me.\u2019 His father immediately called OPS and the FBI.\nIn addition, witnesses have come forward after trial who corroborate that Howard was in a battered condition during his Area 2 interrogation. Having looked at all of the evidence of torture, even an investigator for the Chicago Police Department\u2019s own Office of Professional Standards has concluded that Howard indeed was abused by Area 2 detectives before he gave his so-called confession.\u201d\nAfter relating the legal histories of other persons he intended to pardon along with defendant, Governor Ryan went on to state:\n\u201cWhat I can\u2019t understand is why the courts can\u2019t find a way to act in the interest of justice. Here we have four more men who were wrongfully convicted and sentenced to die by the state for crimes the courts should have seen they did not commit. ***\n*** Today I am pardoning them of the crimes for which they were wrongfully prosecuted and sentenced to die.\nI have reviewed these cases and I believe a manifest injustice has occurred. I have reviewed these cases and I believe these men are innocent.\u201d\nThe pardon itself stated, in part, as follows:\n\u201cNow, Know, Ye, that I, GEORGE H. RYAN, Governor of the State of Illinois, by virtue of the authority vested in me by the Constitution of this State, do by these presents:\nCOMMUTE THE SENTENCE OF AND PARDON BASED ON INNOCENCE STANLEY HOWARD\nGrant commutation of sentence to time served on the crime of Murder, Attempt Armed Robbery, Grant Pardon Based on Innocence on the Crime of Murder, Attempt Armed Robbery *** With Order Permitting Expungement Under the Provisions of 20 ILCS 2630/5.\u201d\nAt some point, defendant apparently filed a petition to expunge the record of his arrest for his murder conviction under subsection 5(c) of the Criminal Identification Act (Act) (20 ILCS 2630/5(c) (West 2004)). The initial petition is not included in the record. On July 19, 2004, defendant filed an amended petition to expunge that alleged, substantively, in its entirety:\n\u201c1. The Defendant was granted a pardon by the Governor.\n2. The pardon specifically authorizes expungement.\n3. Under penalties provided by law pursuant to Subsection 1\u2014109 of the Code of Civil Procedure, the undersigned Defendant certifies that the statements set forth in this instrument are true and correct, except to matters therein stated to be on information and belief and as to such matters the undersigned Defendant certifies as aforesaid that he believes the same to be true.\nWHEREFORE, the Defendant asks the Court to expunge his arrest records and return the same to Defendant at the address shown above.\u201d\nSubsection 5(c) of the Act, at that time, stated:\n\u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes ex-pungement, 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\u2019s 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, 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 for which he had been pardoned but the order shall not affect any index issued by the circuit court clerk before the entry of the order. All records sealed by the Department may be disseminated by the Department only as required by law or to the arresting authority, the State\u2019s Attorney, and the court upon a later arrest for the same or similar offense or for the purpose of sentencing for any subsequent felony. 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 ex-pungement, the clerk of the circuit court shall promptly mail a copy of the order to the person who was pardoned.\u201d 20 ILCS 2630/5(c) (West 2004).\nPut on notice of defendant\u2019s petition, as required under subsection 5(d) of the Act, the Cook County State\u2019s Attorney objected, also pursuant to subsection 5(d). See 20 ILCS 2630/5(d) (West 2004) (\u201cNotice of the petition for subsections (a), (b), and (c) shall be served upon the State\u2019s 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\u2019s 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\u201d). In its initial objection, filed in the circuit court on July 21, 2004, the State contended that the Criminal Identification Act did not permit expungement of arrest records when the defendant had other convictions. In his reply to the State\u2019s objection, defendant contended that the State was attempting to improperly import the condition that the defendant have no other convictions in order to receive an expungement found under subsection 5(a) of the Act, applicable to persons \u201cacquitted or released without being convicted\u201d (20 ILCS 2630/5(a) (West 2004)) into subsection 5(c), which applied to pardoned persons, such as himself. Defendant contended that the only condition he was required to meet for an expungement under subsection 5(c) was that he was to have received a pardon that permitted expungement and that, as he had done so, the circuit court was obligated to order the expungement of his arrest record. In a response to defendant\u2019s reply and a supplemental objection, the State countered that the fact that subsection 5(d) allowed for an objection to a petition for expungement undercut the notion that expungement under subsection 5(c) was automatic upon the grant of a pardon permitting expungement. The State further argued that under a sound exercise of discretion the circuit court should deny defendant\u2019s petition because, as a career criminal, the expungement of defendant\u2019s arrest would have marginal benefit to him, while expungement would undermine legitimate public safety concerns.\nThe circuit court denied defendant\u2019s motion for expungement in a written order on April 11, 2005. In attempting to interpret the ex-pungement statute, the circuit court observed the legislative history of its enactment. Specifically, the circuit court noted that then-Governor Edgar made an amendatory veto to the original proposed text of the statute, presented as House Bill 4188, that would have appeared to make expungement automatic with the grant of a pardon. The circuit court further discerned that, in the debates following the amendatory veto, the sponsoring representative, Representative Lang, construed the underlying purpose for expungement to be to assist a citizen in gaining employment and credit and to thereby allow the pardoned citizen to get his life back on track. Finally, the court observed the statement of another representative, Representative Black, to the effect that he understood the Governor\u2019s amendatory veto to imply that expungement should not be granted with every pardon and that he believed that the majority of the General Assembly would concur with that position. The circuit court then turned to the statute\u2019s language itself.\nThe court observed that subsection 5(c) used the permissive term \u201cmay\u201d twice. In the first instance, where the statute states that a pardoned person \u201cmay, upon verified petition,\u201d seek expungement of arrest records, the court recognized that the statute places discretion in the pardoned person as to whether to seek that relief. In the second instance, where the statute provides \u201cmay have a court order entered expunging the record of arrest\u201d (20 ILCS 2630/5(c) (West 2004)) the court found itself \u201cconfronted] with *** whether this language means the defendant may get an order or the court may grant an order.\u201d (Emphasis in original.) In either event, the circuit court perceived that the phrase could imply discretion within the court as to whether to allow expungement since \u201cjust because a petition is sought does not mean that it will be granted.\u201d\nIn attempting to solve the interpretive problem the circuit court detected in the language of subsection 5(c), the court looked to the statutory section as a whole and, in particular, to subsection 5(d). The court observed that cases analyzing the effect on subsection 5(d) on expungement sought through the other subsections of section 5, on bases other than a pardon, concluded that meeting statutory criteria for expungement only created eligibility for expungement, not entitlement thereto. The court expressed its agreement with the reasoning of these cases and its application to petitions for expungement brought under subsection 5(c) by pardoned persons.\nAfter appearing to determine that it had the power to grant a partial expungement, deleting the arrest for the offense for which a defendant was pardoned, without deleting the arrests executed at the same time for other offenses, the court nevertheless determined that the statute did not allow for expungement where a defendant, like defendant, had other convictions. The circuit court discerned that subsection 5(c)\u2019s use of \u201can\u201d in its opening statement, \u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement\u201d (20 ILCS 2630/5(c) (West 2004)), necessarily limited the subsection\u2019s application to cases where the pardoned person had no other convictions.\nFinally, the circuit court balanced the State\u2019s interest in maintaining defendant\u2019s record of arrest against defendant\u2019s interest in obtaining an expungement of the arrest. Without significant elaboration, the circuit court concluded that the State\u2019s legitimate interests outweighed those of defendant. The court therefore denied defendant\u2019s petition for expungement.\nDefendant appeals.\nANALYSIS\nOn appeal, defendant contends that the circuit court erred in interpreting the expungement statute. Defendant repeats his contention from below that subsection 5(c) creates a statutory criterion for the granting of an expungement, namely, the receipt of a pardon permitting expungement. Defendant argues that, in the event this statutory criterion is met, the circuit court has no discretion to deny a petition for expungement. Defendant further contends that his other convictions have no bearing on his ability to have the arrest reports expunged for the offense for which he was pardoned. Notably, in the event we find that the circuit court did have discretion to deny defendant\u2019s petition, defendant states in his brief that he \u201cis not arguing on appeal that the circuit court abused its exercise of discretion.\u201d The State, on the other hand, concurs with the circuit court\u2019s judgment and reasoning, except where the circuit court perceived there to be an ambiguity surrounding the use of \u201cmay\u201d in subsection 5(c). The State contends that there is no ambiguity and that the plain language of that subsection invests the circuit court with discretion to deny a petition for expungement by a pardoned person. These are questions of first impression; the parties do not direct us to any precedents addressing subsection 5(c), and we find no such precedents in our own research.\nIn construing a statute, our primary purpose is to discern and give effect to the intent of the legislature. See, e.g., People v. Muniz, 354 Ill. App. 3d 392, 394 (2004). The best indicator of the legislature\u2019s intent is the plain language of the statute, read with its ordinary and popular meaning. See, e.g., In re Detention of Powell, 217 Ill. 2d 123, 135 (2005); People v. Norwood, 362 Ill. App. 3d 1121, 1138 (2005). In the event of ambiguity in the language of a statute, however, we may look to the statute\u2019s legislative history. See, e.g., Powell, 217 Ill. 2d at 135. We may also consider the purpose and necessity for the law, the evils sought to be remedied, and the goals to be achieved by the legislation. See, e.g., People v. Palmer, 218 Ill. 2d 148, 156 (2006). A statute is ambiguous when it is susceptible to two or more reasonable interpretations. People v. Donoho, 204 Ill. 2d 159, 172 (2003). In construing a statute, we will presume that the legislature did not intend to enact absurdity, inconvenience, or injustice. See, e.g., Powell, 217 Ill. 2d at 135. We review the circuit court\u2019s interpretation of a statute de novo. In re Marriage of Diaz, 363 Ill. App. 3d 1091, 1096 (2006).\nWe begin by observing that subsection 5(c) of the Act contains an obvious grammatical mistake. As noted that subsection provides:\n\u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes ex-pungement, 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\u2019s trial, may have a court order entered expunging the record of arrest *'**.\u201d (Emphasis added.) 20 ILCS 2630/5(c) (West 2004).\nDefendant correctly observes that there is no subject noun for the second \u201cmay\u201d to attach to; the second \u201cmay,\u201d grammatically, would appear wholly superfluous. Thus, we cannot concur with the circuit court that the second \u201cmay\u201d is ambiguous in that it could reasonably refer to the court\u2019s discretion in evaluating an expungement petition. The second use of \u201cmay\u201d merely follows a series of clauses containing nouns, specifically in its reference to judges, explaining where the defendant should bring his petition; but, as none of the judges mentioned are subject nouns, the following \u201cmay\u201d cannot attach to them.\nFurther, an interpretation of \u201cmay\u201d attaching to the judges referred to, and, thereby, suggesting that they have significant discretion over the grant or denial of the petition, is undercut by the subsequent language \u201chave an order entered.\u201d Courts \u201center\u201d orders; they are the actors; they do not \u201chave\u201d another actor enter an order for them. The General Assembly appeared to recognize that distinction in subsection 5(a) of the Act, where it explicitly granted courts discretion over whether to expunge the arrest records of persons acquitted after trial or who were released without being convicted, when it stated that specified judges \u201cmay upon verified petition of the defendant order the record of arrest expunged.\u201d 20 ILCS 2630/5(a) (West 2004). The General Assembly has further recognized this fact through its choice of language in multiple, other statutes. See, e.g., 720 ILCS 5/37 4 (West 2004) (\u201cUpon being satisfied by affidavits or other sworn evidence that an alleged public nuisance exists, the court may without notice or bond enter a temporary restraining order or preliminary injunction to enjoin any defendant from maintaining such nuisance and may enter an order restraining any defendant from removing or interfering with all property used in connection with the public nuisance\u201d (emphasis added)); 725 ILCS 5/110\u20146(e) (West 2004) (\u201cAt the conclusion of the hearing based on a violation of the conditions of Section 110\u201410 of this Code or any special conditions of bail as ordered by the court the court may enter an order increasing the amount of bail or alter the conditions of bail as deemed appropriate\u201d (emphasis added)); 730 ILCS 5/5\u20145\u20145(e) (West 2004) (\u201cUpon a person\u2019s discharge from incarceration or parole, or upon a person\u2019s discharge from probation or at any time thereafter, the committing court may enter an order certifying that the sentence has been satisfactorily completed when the court believes it would assist in the rehabilitation of the person and be consistent with the public welfare. Such order may be entered upon the motion of the defendant or the State or upon the court\u2019s own motion\u201d (emphasis added)).\nIn light of our analysis of the plain language of the statute, considering that the plain language of a statute is the best indicator of the legislature\u2019s intent (Powell, 217 Ill. 2d at 135; Norwood, 362 Ill. App. 3d at 1138), and recognizing our authority to \u201calter, supply or modify words and correct obvious mistakes\u201d in statutes so as to honor the legislature\u2019s intent (People v. Garrison, 82 Ill. 2d 444, 455 (1980)), we think the second \u201cmay\u201d must be stricken. With that correction made, so that the statute would now read \u201cWhenever 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\u2019s trial, have a court order entered expunging the record of arrest,\u201d defendant\u2019s contention that the circuit court is without discretion to deny a petition if the defendant meets the requirement of having received a pardon authorizing expungement appears correct.\nThe State, however, would argue that by modifying the statute in this manner we would, in fact, operate in opposition to, not in furtherance of, the legislature\u2019s intent, as exemplified by the statute\u2019s legislative history. But, our review of that history leads us in the opposite direction, and we find that history to be consistent with our conclusion.\nHouse Bill 4188, which proposed the addition of subsection 5(c) to the statute, in its first draft stated:\n\u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor, he may, upon verified petition to the chief judge of the circuit where the person had been convicted, have a court order entered by the chief judge expunging the arrest and conviction record and all official records of the arresting authority and trial court and may have his name removed from all court records in connection with the arrest and conviction for the offense for which he has been pardoned. 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.\u201d 87th Ill. Gen. Assem., May 19, 1992, at 1714-15.\nThen-Governor Edgar, however, responded to the bill with an amendatory veto. In part, the Governor advised the General Assembly:\n\u201cHouse Bill 4188 permits persons who have received a gubernatorial pardon to have their records expunged. Pardons have been granted in the past for specific limited purposes, such as to allow an individual to obtain a particular license, with the express understanding that there would be no expungement. It would be unfair and possibly dangerous to allow someone who received a pardon for such a limited purpose to now be allowed to expunge his record. The bill should be changed to allow expungement only when specifically authorized by the Governor in the pardon itself. In addition, the Illinois Department of Corrections should be permitted access to the sealed information if the pardoned person is subsequently convicted and incarcerated for another offense, as is now allowed for sealed records of special first offender probationers.\u201d 87th Ill. Gen. Assem., November 5, 1992, at 9105-08.\nThus, the Governor demanded two revisions in the proposed law from the legislature. First, he insisted that the law permit expungement only where the Governor believed that the pardoned person was a deserving individual, which was to be demonstrated by the inclusion of language permitting expungement in the pardon itself. Second, the Governor insisted that the law allow for the unsealing of the expunged records should the pardoned person recidivate after receiving his/her pardon. That the legislature understood these to be the Governor\u2019s two demands is exemplified by its addition to the final draft of the phrase \u201cwhich specifically authorizes expungement\u201d in describing the pardons covered under subsection 5(c), as well as its addition of the sentence \u201cUpon conviction for any subsequent offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.\u201d This understanding by the legislature is further supported by the postamendatory veto comments of Representatives Lang and Black, and by Senator Dart, the only legislators to speak on the record on the subject of House Bill 4188.\nIn proposing a legislative override of the Governor\u2019s veto, Representative Lang stated:\n\u201cI have a constituent, in my district who many years ago received a pardon by Governor Thompson, he has not been able to get his criminal record expunged, because there\u2019s no provision for it. *** The Governor\u2019s Veto would have required that anyone who has received a pardon in the past would have to go back before the necessary boards and committees to renew his pardon request and then get that board to recommend to the Governor that the records then be expunged. I indicated to the Governor, and the Governor\u2019s Office that I was not in favor of this approach, because I\u2019ve filed this Bill to help a constituent. My constituent is a young man who was convicted wrongly of a crime and that\u2019s why he was given the pardon by Governor Thompson, and it would be an undue burden and unfair to this young man to go through life with this criminal stigma, and it would further be unfair to this young man to have to go back before the Parole and Pardon Board and the Prison Review Board and start all over on a pardon he already received many years ago. What . . . what my . . . the original Bill will do is to enable him to go right into court and get his records expunged so that he can remove this stigma from his life and get on with his life and get a job and get credit in all the things that good standing citizens need to do.\u201d 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 64-65 (statements of Representative Lang).\nSpeaking in opposition to a legislative override, Representative Black stated:\n\u201cIf we override the Governor\u2019s Amendatory Veto, then it\u2019s my understanding that anyone, any person, not just perhaps this deserving individual that the Representative is familiar with but that any individual who gets a pardon would have his records expunged, and the Governor is simply saying, those records should not be expunged in every case. There may be some very extenuating circumstances that should remain in that file before any such pardon is granted and the record wiped clean. *** [T]his Bill may go far beyond what his [Representative Lang\u2019s] intent is, and I don\u2019t think that the intent of the majority of the Members of this Body would be just to give sort of a [carte] blanc[he] action to pardons.\u201d 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 65-66 (statements of Representative Black).\nThe motion for override failed and Representative Lang then moved for adoption of the Governor\u2019s proposed changes, which reflect the current statutory language, including that language that requires that the \u201cpardon by the Governor *** specifically authorize[ ] expungement.\u201d\nIn discussing the Governor\u2019s changes, adopted by the House, Senator Dart explained to his fellow senators:\n\u201cBy this amendatory veto of September 25th, 1992, the Governor has recommended a change that would limit an expungement only to a pardon which specifically authorizes expungement. A narrow interpretation of this might preclude expungement for all prior pardons. This was not the Governor\u2019s intention. He was concerned because some pardons have been granted in the past for specific limited purposes, such as to allow an individual to obtain a particular license with the express understanding there would be no expungement. In order to make expungements available for appropriate pardons, the intent of both the Governor and the Legislature has been clarified in the legislative record during the veto session of November 1992, by statements of the sponsor and those who \u2014 and that those who have been pardoned previous to this legislation may apply to the Governor for amendment to their pardon explicitly granting or limiting the right to an expungement.\u201d 87th Ill. Gen. Assem., Senate Proceedings, December 1, 1992, at 26-27 (statements of Senator Dart).\nWhat we find particularly telling among these exchanges between the legislature and the executive is that there is never any discussion surrounding modification of the first sentence of the proposed legislation beyond the necessity of language specifying that the pardon itself must authorize expungement. In particular, there is never any gubernatorial criticism or assembly comment surrounding the phrase in the first draft which stated that \u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor, he may, upon verified petition to the chief judge of the circuit where the person had been convicted, have a court order entered,\u201d which is what we have perceived to be a correct reading of the enacted subsection 5(c), and which is clearly mandatory in nature with respect to the circuit court. In our view, this lack of comment lends credence to our determination that the new, second \u201cmay\u201d in the final draft was nothing more than a typographical error.\nThe State, however, maintains its argument from below, which the circuit court appeared to accept, that Representative Lang\u2019s comment that he sought to assist a constituent in being able to get a job and, otherwise, \u201cget on with, his life,\u201d as well as Representative Black\u2019s statement to the effect that the Governor did not intend all pardoners to receive expungements, meant that the legislature did not intend subsection 5(c) to encompass defendant, who had also been convicted of and was serving sentence for other offenses. We think, however, that this argument loses sight of the forest for the trees in its analysis of the legislative history.\nRepresentative Lang\u2019s constituent, like defendant, received a full, rather than a general pardon. The difference between the two kinds of pardon is that a general pardon, while relieving the pardoned person of punishment, does not pass on his guilt; as one court put it, the general pardon forgives but does not forget. People v. Chiappa, 53 Ill. App. 3d 639, 641 (1977). A full pardon, on the other hand, both relieves the pardoned person from further punishment and also cleanses him of guilt for the pardoned offense. See People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 474 (2004) (\u201cthere are several different types of pardons: \u2018[A] pardon may be full or partial, absolute or conditional. A pardon is full when it freely and unconditionally absolves the person from all the legal consequences of a crime and of the person\u2019s conviction, direct and collateral, including the punishment, whether of imprisonment, pecuniary penalty, or whatever else the law has provided; it is partial where it remits only a portion of the punishment or absolves from only a portion of the legal consequences of the crime. A pardon is absolute where it frees the criminal without any condition whatsoever; and it is conditional where it does not become operative until the grantee has performed some specified act, or where it becomes void when some specified event transpires.\u2019 [Citation.]\u201d); Chiappa, 53 Ill. App. 3d at 641 (\u201cat least in the State of Illinois the guilt of the defendant is absolved by a pardon only where the same states that it is based upon the innocence of the defendant\u201d); Walden v. City of Chicago, 391 F. Supp. 2d 660, 671 (N.D. Ill. 2005) (\u201cSince at least 1977 Illinois has adhered to the view that \u2018two forms of pardon are presently used by the Governor of this state, one based upon the innocence of the defendant and the other merely pardoning the defendant without reference to his innocence.\u2019 [Citation.] Consequently, \u2018the guilt of the defendant is absolved by a pardon only where the same [pardon] states that it is based upon the innocence of the defendant.\u2019 [Citation.]\u201d); 29 Ill. L. & Prac. Pardon & Parole \u00a73, at 186 (2000) (\u201cthe guilt of a defendant is absolved by a pardon only where the pardon states that it is based upon the innocence of defendant\u201d); see also Howard v. City of Chicago, No. 03 C 8481 (N.D. Ill. October 25, 2004) (\u201cIn this case, Defendants seem to agree that Howard\u2019s pardon on grounds of innocence invalidated his conviction\u201d). No one disputes, nor can they, that the Governor has the power to grant full pardons. See People ex rel. Madigan v. Snyder, 208 Ill. 2d at 473 (\u201cThe pardon power given the Governor in article V, section 12, [of the Illinois Constitution] is extremely broad. The Governor may grant reprieves, pardons, and commutations \u2018on such terms as he thinks proper.\u2019 Even before the \u2018on such terms as he thinks proper\u2019 language was added to the constitution, this court had recognized that the Governor\u2019s clemency powers granted by the constitution \u2018cannot be controlled by either the courts or the legislature. His acts in the exercise of the power can be controlled only by his conscience and his sense of public duty.\u2019 [Citation.]\u201d). While the legislators commenting on the record expressed concern about expungements for persons who had received less than full pardons, there never appeared to be any debate that someone wrongfully convicted, as Governor Ryan determined defendant to be of one offense, who, therefore, received a full pardon, should receive an expungement without delay.\nThat our legislature intends for the wrongfully convicted to receive automatic expungements is further exemplified by its enactment of subsection 5\u20145\u20144(b) of the Unified Code of Corrections. 730 ILCS 5/5\u20145\u20144(b) (West 2004). Therein, the General Assembly provided:\n\u201cIf 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.\u201d 730 ILCS 5/5\u20145\u20144(b) (West 2004).\nThe State attempts to argue that the Unified Code of Corrections\u2019 inclusion of the phrase \u201cthe court shall enter an order\u201d demonstrates that the legislature understands how to employ mandatory language and that the Act\u2019s use of different language, namely, \u201cmay *** have a court order entered,\u201d demonstrates the intent of a different approach toward expungements for pardoned persons. While we find the distinctive language between the two laws interesting, we, nevertheless, perceive it is a distinction without a difference. In our view, the basic gist of both subsections, comporting with the most basic principles of justice, is that persons later found to be factually innocent of crimes for which they were wrongfully convicted, through legal procedures employed by either the executive or the judiciary, should not continue to be treated for purposes of State record keeping as though they were ever validly arrested for that offense.\nIn summation from our review of the legislative history, it seems clear that the legislature and the Governor merely sought to preclude automatic expungement of arrest records for those pardoned for a limited purpose and whose pardons were granted without contemplation of expungement. Therefore, the Governor demanded and the legislature acquiesced in passing a law that would permit expungement where the Governor believed that the pardoned person was a deserving individual which was to be demonstrated by the inclusion of language permitting expungement in the pardon itself. Hence, as Governor Ryan determined defendant to be eligible for expungement, the circuit court should have entered an order expunging the record of his arrest for the pardoned offense.\nThe State would attempt to dissuade us from our conclusion, however, by pointing to the interplay of subsection 5(d) with subsection 5(c). As previously noted, subsection 5(d) of the Act provides:\n\u201cNotice of the petition for subsections (a), (b), and (c) shall be served upon the State\u2019s 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\u2019s 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. The clerk of the court shall promptly mail a copy of the order to the person, the arresting agency, the prosecutor, the Department of State Police and such other criminal justice agencies as may be ordered by the judge.\u201d 20 ILCS 2630/5(d) (West 2004).\nThe State would argue, as did the circuit court in its decision, that, since the State\u2019s Attorney and other statutorily authorized government agencies can object to the expungement of arrest records of pardoned persons, the circuit court must have some discretion to exercise over the grant or denial of an expungement petition. According to the State, if this were not the case, there would be no purpose in having an opportunity to object to the circuit court. But, the pertinent question remains on what grounds may the State object and also what factors may the court consider in passing on a petition? The State would contend that the court may consider the same factors applicable to petitions brought by the acquitted under subsection 5(a) to petitions brought by pardoned persons under subsection 5(c). The factors applicable to subsection 5(a) petitions include: \u201cthe strength of the State\u2019s case against the defendant, the State\u2019s reasons for wishing to retain the records, the defendant\u2019s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the defendant may endure should expungement be denied.\u201d People v. Wells, 294 Ill. App. 3d 405, 409 (1998). In keeping with his position that subsection 5(c) establishes a statutory criterion for pardoned persons which, once met, create an absolute entitlement to an expungement, defendant urges that, with respect to subsection 5(c), the State may merely object on the grounds that the defendant has not fulfilled the requirement of that subsection, and that the circuit court may only consider whether that statutory requirement has been met. We agree with defendant.\nIt is entirely logical that the grounds for objection, ceded to the prosecutor under subsection 5(d), be different for those who seek ex-pungement under subsection 5(c) than for those who seek expungement under subsection 5(a) considering the markedly different language employed in the two subsections respecting the discretion of the circuit court. As we have already noted, the language of subsection 5(a) explicitly makes expungement subject to the circuit court\u2019s discretion (see 20 ILCS 2630/5(a) (West 2004) (\u201c[the specified judges] may upon verified petition of the defendant order the record of arrest expunged\u201d)), whereas the language of subsection 5(c), as previously determined, is mandatory. Moreover, this dichotomy may well reflect a legislative recognition that an acquittal upon trial simply establishes the presence of reasonable doubt. See Moore v. Owens, 298 Ill. App. 3d 672, 675 (1998) (\u201cWe do not believe that even if a criminal defendant is acquitted on retrial, that alone will suffice as proof of innocence ***. *** [W]e believe that the plaintiff must also prove independently in the civil [legal malpractice] trial that he was actually innocent and \u2018not just lucky\u2019 [Citation.]\u201d). Consequently, in the case of an acquittal, an expungement may well depend upon the factors enumerated above in Wells which permit the court to inquire into circumstances underlying the acquittal. However, in yielding the power to permit expungement pursuant to his power to pardon, no such penetration behind the pardon would be permitted once the executive has determined that individual to be deserving of the right to expunge, a determination which is largely, and more specifically in this case is, preceded by a determination of innocence. Once that determination by the executive is recognized, the provisions of subsection 5(c) empower the Governor not only to pardon but to determine that any stigma from arrest or conviction should be purged as well. For these same reasons, we must also reject the circuit court\u2019s conclusion that subsection 5(a)\u2019s requirement that the defendant have no other convictions applies under subsection 5(c). Hence, defendant\u2019s interpretation of the interplay of subsection 5(d) with subsection 5(c) is entirely more logical and serves as a plausible alternative to the State\u2019s interpretation.\nFinally, the State argues that expungement was properly denied because it preserved the State\u2019s right to present a defense against defendant\u2019s federal civil rights lawsuit. However, there is no factual development of this argument below, or on appeal, to allow us to make a reasoned judgment. The State never attempts to explicitly explain how expungement of his arrest records would hamper the defense in the civil rights litigation. Further, defendant concedes that if such records were needed for the defense of the civil case, there would be good cause for them to be unsealed. With respect to the records of the circuit court and Department of Corrections, we note that subsection 5(c) allows for the unsealing of those records \u201cupon good cause shown.\u201d 20 ILCS 2630/5(c) (West 2004). Hence, we are unpersuaded by the State\u2019s argument.\nTo conclude, the circuit court should not have denied defendant\u2019s petition under subsection 5(c) of the Act. We therefore reverse the circuit court\u2019s judgment and remand for the entry of an order expunging the record of defendant\u2019s arrest for the offense for which he was pardoned on grounds of innocence, with permission from the Governor to seek expungement.\nReversed and remanded with instructions.\nMcNULTY, J., concurs.\nSee People v. Morris, 219 Ill. 2d 373, 383-84 (2006) (holding that the circuit court properly considered this same speech in ascertaining the executive intent in a clemency order); People ex rel. Madigan v. Snyder, 208 Ill. 2d 457, 468 (2004) (taking judicial notice of Governor Ryan\u2019s speech).\nPrior to the addition of this subsection, there was no provision specifically providing for the expungement of a pardoned person\u2019s arrest records.\nWhile the circuit court indicated its awareness of the discussion in the Senate in its order, the court did not specifically discuss or analyze the Senate statements.", "type": "majority", "author": "JUSTICE JOSEPH GORDON" }, { "text": "PRESIDING JUSTICE FITZGERALD SMITH,\ndissenting:\nI respectfully dissent from the majority\u2019s opinion in this matter. While I do not inherently agree with the trial court\u2019s reasoning below that defendant here was not entitled to expungement principally because he had prior (or other) convictions of record, and while I partially agree with the majority regarding some basic ideas, I cannot agree with the outcome proposed by the majority which effectively declares that expungement is automatic to any defendant who has received a gubernatorial pardon upon that defendant\u2019s filing of a petition in the trial court. Rather, after having read section 5 of the Criminal Identification Act (Act) (20 ILCS 2630/5 (West 2004)) and examining the language and legislative debates of subsection (c) in particular, it is my view, in simple contradiction to that of the majority, that some discretion in the trial court does play a role in this context and cannot be ignored.\nLet me first begin by citing those portions of the majority\u2019s opinion with which I do agree. The majority admirably reprints a good portion of Governor Ryan\u2019s 2003 public speech. It cannot be denied, nor should it ever be forgotten, that several of our very own citizens were unjustifiably made to face prosecution for certain crimes they did not commit; the value of the innocence-projects that have arisen from this unfortunate reality is immeasurable. In this day and age, I would like to think that it should truly mesmerize us all that some courts have not found a way to act in the interest of justice.\nFurther, and on a more practical level, I agree with the majority\u2019s discussion of the language quirk found in subsection 5(c), namely, the appearance of \u201cmay\u201d twice therein. The majority notes that the trial court below found that these clauses created an ambiguity, since, while the first \u201cmay\u201d (appearing in the clause \u201cmay, upon verified petition\u201d) clearly gives discretion to the defendant whether to seek an order to expunge, the second \u201cmay\u201d (appearing in the clause \u201cmay have a court order entered\u201d) was more troublesome as it could be interpreted to mean that the defendant may get an order or the court may grant an order to expunge. However, upon review, the majority ultimately discredits this reasoning to declare that the appearance of \u201cmay\u201d twice in subsection 5(c) was nothing more than an obvious grammatical mistake. And I wholeheartedly agree. Having two \u201cmay\u201ds here presents no problem other than that they are superfluous; both attach to the singular acting subject in the language of this subsection, namely, the person who has been convicted. The references to various judges (\u201cchief judge,\u201d \u201cany judge,\u201d and \u201cpresiding trial judge\u201d), upon examination, clearly belong to a series of clauses and are not actors of any sort. Moreover, as the majority aptly points out, the lengthy sentence goes on to use the phrase \u201chave an order entered;\u201d courts do not have orders entered, but they enter orders. Therefore, I, along with the majority, disagree with the trial court that the use of the second \u201cmay\u201d is ambiguous. Again, this \u201cmay\u201d is only superfluous and should, as the majority recommends, be stricken from subsection 5(c) pursuant to our authority to modify obvious mistakes in statutes (see Garrison, 82 Ill. 2d at 455).\nHowever, this is where my agreement with the majority ends, as I just do not see how having reasoned that the second \u201cmay\u201d is superfluous directly leads, without more, to the conclusion that defendant\u2019s contention \u201cappears correct\u201d that the trial court is without discretion to deny a petition if the defendant has received a pardon authorizing expungement from the Governor, i.e., under subsection 5(c). This is not how I read the statute.\nFor the majority\u2019s considerable discussion of subsection 5(c), the fact remains that the language used therein is \u201cmay,\u201d not \u201cshall\u201d; the defendant may have a court order entered upon his petition to expunge based on a pardon by the Governor which authorizes expungement. The majority focuses on the latter portion of this concept: the Governor\u2019s pardon authorizing expungement. Yet, it is the first portion upon which I feel the focus should be: that the defendant may have a court order entered. Subsection 5(c) does not state that he \u201cshall\u201d have an order entered, which would clearly indicate the mandate the majority wants to impose here. Instead, that sense is simply not present. We are not dealing here with legislation originating from a more archaic time where the interchange between \u201cmay\u201d and \u201cshall\u201d was commonplace, where it was often open to viable debate what the true intent behind the use of one of these words in a law actually was. This is a modern statute and, in the face of all our case law that has developed into the rule regarding our exercise of the plain and ordinary meaning of the words of a statute, I must conclude that there is a sense of permission in subsection 5(c), not one of automatic directive. \u201cMay\u201d connotes \u201cpossibility, probability or contingency,\u201d while \u201cshall\u201d \u201cis a word of command\u201d and is \u201cimperative or mandatory,\u201d having a \u201ccompulsory meaning\u201d and \u201cdenoting obligation.\u201d Black\u2019s Law Dictionary 883, 1233 (5th ed. 1979). The difference is undeniable. Accordingly, I believe that had the intent behind this subsection been, as the majority concludes, a general automatic grant of a petition to expunge based on a gubernatorial pardon, the language chosen would have reflected a. more obligatory sentiment; i.e., that such a defendant shall have an order entered expunging his record.\nWhat is more, I cannot help but note that in the very subsection at issue, \u201cshall\u201d is used in the sentences following the first, as in an order of expungement \u201cshall not affect\u201d any index in the circuit court, the Department of Corrections \u201cshall have access\u201d to records, and the clerk of the court \u201cshall promptly\u201d mail a copy of the expungement order to the pardoned person. This makes it further apparent to me that the authors of this statute knew the difference between \u201cmay\u201d and \u201cshall\u201d and that, by the use of \u201cmay\u201d in the first critical sentence, did not mean to indicate that orders expunging records would automatically be granted upon a defendant\u2019s petition without some sort of discretion being exercised by the \u201cchief judge,\u201d \u201cany judge\u201d or \u201cpresiding trial judge\u201d to whom the petition is presented. The use of these words and their placement are, to me, clearly deliberate.\nThe first sentence of subsection 5(c) could be examined in another manner, and perhaps this is the way the majority is viewing it. The first sentence, the one in which the \u201cmay\u201d is present, has but one actor: the defendant. The sentence, then, addresses only his actions: that he, who has received \u201ca pardon by the Governor which specifically authorizes expungement,\u201d may, upon a verified petition to the appropriate presider, have a court order entered expunging his record. It could be said, then, that all the permissive language applies only to the defendant, giving him alone the choice whether to file a petition seeking expungement. But this is just it: this sentence uses the word \u201cmay\u201d because it is a defendant\u2019s choice to become a defendant under this subsection and begin a process which may lead to the expungement of his record, via a petition based on a gubernatorial pardon. By choosing to do so, he may have an order entered expunging it \u2014 if he is successful. He very well may not choose to file the petition, and/or he very well may not succeed with it. Again, the use of the word \u201cmay\u201d indicates contingency. And the process here remains that of filing a petition, which is merely a supplication requesting, not ordering, that something be done. Petitions are denied in our courts every day. There is absolutely no reference in this sentence to the notion that whoever is presiding over the petition must grant it. Had this been the intent, I find it hard to believe that language would not have been included directing presiders to mandatorily grant these petitions, or that a wholly different process rather than the common filing of \u201ca petition\u201d should be used.\nI find further support for my conclusion in another portion of section 5, namely, subsection (d). As is the cardinal rule, a statute should be construed as whole, with each section read in conjunction with every other section. See USX Corp. v. White, 352 Ill. App. 3d 709, 721 (2004); accord Mashni Corp. v. Board of Election Commissioners, 362 Ill. App. 3d 730, 742 (2005) (all sections of statute must be read and considered together as a whole); see also Lulay v. Lulay, 193 Ill. 2d 455, 466 (2000). In section 5, which generally deals with different defendants seeking expungement, subsection 5(a) addresses those not having previously been convicted of any criminal offense who are acquitted or released without being convicted; subsection 5(b) addresses those whose identity was stolen by one who is then convicted of a crime in that name; and subsection 5(c), of course, addresses those who have been convicted but granted a pardon by the Governor which \u201cauthorizes\u201d expungement. See 20 ILCS 2630/5 (West 2004). Subsection 5(d) then states:\n\u201c(d) Notice of the petition for subsection (a), (b), and (c) shall be served upon the State\u2019s 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\u2019s 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.\u201d 20 ILCS 2630/5 (West 2004).\nSeveral concepts can be gleaned from this. Subsection 5(d) makes no distinction among subsections 5(a), (b) and (c) regarding its application; rather, all three are deliberately referenced equally and all three are, therefore, incorporated therein. In addition, subsection 5(d) provides for a process regarding these subsections: it orders that notice is to be given to the State\u2019s Attorney/prosecutor, the State Police, the arresting agency and the chief officer; any one of these then has 30 days in which to object to the defendant\u2019s petition for expungement made under subsection 5(a), (b) or (c); and regardless of whether an objection is filed, a court will enter an order \u201cgranting or denying\u201d the expungement petition. Why would such a process be described and make reference to all the subsections, including 5(c), if it were not to be followed? More significantly, why would an objection be possible and the words \u201cthe court shall enter an order granting or denying the petition\u201d be included in this subsection if, as the majority would have, a petition for expungement filed pursuant to subsection 5(c) were meant to be automatically granted and, thus, treated differently from petitions filed under subsections 5(a) and (b) of the very same statutory section? It is clear to me that subsection 5(d) says nothing special about subsection 5(c) in comparison to the other subsections and there is no indication that petitions filed under subsection (c) are exempt from objection and, potentially, denial while petitions filed under subsection (a) and (b) are not so exempt.\nIn light of this point, the majority notes that factors applicable to a discretionary determination of expungement for a petition filed under subsection 5(a) have been laid out in People v. Wells, 294 Ill. App. 3d 405 (1998), and include considerations such as the defendant\u2019s age, criminal record, and employment history, the strength of the State\u2019s case against him, and the State\u2019s reasons for wishing to retain the records. The majority asks, if expungement under subsection 5(c) is not automatic, then \u201con what grounds may the State object and also what factors may the court consider in passing on a petition\u201d under that subsection? 372 Ill. App. 3d at 505. The majority asks this because it insists that, since the grounds for filing petitions for ex-pungement under subsections 5(a) and 5(c) differ as one involves acquittal and the other gubernatorial pardon, the same considerations in evaluating the petitions should not apply. I ask, why can\u2019t they? In the end, petitions for expungement all seek the same objective; while they may be based on different grounds, they are all addressed together under the same section of our statute (20 ILCS 2630/5 (West 2004)). Why, then, must there inherently be different considerations when they all ultimately seek the same result simply because the petitions are slightly different in their underlying facts?\nEven lending credence to the majority in this respect and distinguishing petitions under subsections 5(a) and (c), I can think of several grounds outside of the realm of factors in Wells on which the State may object to a petition under subsection 5(c) and several factors that a court may consider in passing on such a petition. The most immediate that come to mind are public interest and public safety concerns. And, while the majority may quickly counterbalance the consequences of these to a pardoned defendant and his rights under our laws, my point is only that this very discussion should not automatically be dispensed with, but should take place on a case-by-case basis before the trial court where the petition is presented. Every indication of subsection 5(d)\u2019s language stating that objections may be raised to petitions filed under \u201csubsections (a), (b), and (c)\u201d of section 5 for expungement and that the court shall then \u201center an order granting or denying the petition\u201d (emphasis added) supports this. See 20 ILCS 2630/5(d) (West 2004).\nThe majority also finds the legislative debates on subsection 5(c) illuminating regarding the mandatory approach it takes here. I, however, do not view them the same way and do not find them supportive of the conclusion that a defendant who has received a gubernatorial pardon authorizing expungement should automatically be given that expungement without the employ of any trial court discretion.\nWhen House Bill 4188 was first proposed in the Senate, Senator Dart admitted that the portion providing for expungement in the case of pardons \u201chad been technically flawed\u201d; the bill passed. The Governor proposed an amendatory veto seeking to change the bill by allowing expungement only when specifically authorized by the Governor in the pardon itself; this opened up more debate in the House. The majority mentions that Representative Lang proposed an override to the Governor\u2019s amendatory veto while discussing a constituent that he had in his district whom he wanted to help \u201cgo right into court and get his records expunged.\u201d 87th Ill. Gen. Assem., House Proceedings, November 19, 1992, at 64-65 (statements of Representative Lang); see 372 Ill. App. 3d at 501. The majority then quotes comments from Representative Black in opposition to Lang, which we find pertinent enough to reprint here:\n\u201cIf we override the Governor\u2019s Amendatory Veto, then it\u2019s my understanding that anyone, any person, not just perhaps this deserving individual that [Representative Lang] is familiar with but that any individual who gets a pardon would have his records expunged, and the Governor is simply saying, those records should not be expunged in every case. There may be some very extenuating circumstances that should remain in that file before any such pardon is granted and the record wiped clean. So, *** there does seem to be certainly on the point *** some questions that this Bill may go far beyond what [the Governor\u2019s] particular intent is, and I dop\u2019t think that the intent of the majority of the Members of this Body would be just to give sort of a court blanc [sic] action to pardons.\u201d 87th Ill. Gen. Assem., November 19, 1992, at 64-65 (statements of Representative Black).\nThe motion for override was defeated and the Governor\u2019s proposed change of allowing expungement only when the Governor specifically authorized it in the pardon was included in the law, hence the inclusion of that portion of subsection 5(c) referring to defendants \u201cgranted a pardon by the Governor which specifically authorizes expungement.\u201d In light of Representative Black\u2019s comments, as well as, again, the precise language used in the statute, I do not think, as does the majority, that subsection 5(c) was written to make expungement automatic upon the simple filing of a petition based on a pardon from the Governor. Representative Black echoed all my concerns. While some people, even perhaps defendant in the instant case, may be deserving of the expungement of their records, there could very well be, upon further review, circumstances in other cases where it would be far better, for viable reasons, that expungement should not occur. From the legislative debates, I do not think it was the intent that the statute be written to grant to everyone and anyone automatic expungement upon the filing of a petition. Rather, as Representative Black plainly put it, it seems to me that even the Governor believed that records should not be expunged in every case. The Governor\u2019s amendatory veto sought to add the concept that a defendant who had been pardoned by the Governor could seek expungement of his record if that pardon \u201cspecifically authorizes expungement.\u201d Had the Governor meant, as Representative Lang proposed, that expungement was to be automatic simply because the defendant had received such a pardon, he would not have used the language \u201cauthorizes\u201d but, rather, something like \u201cmandates\u201d or \u201cdirects\u201d expungement and Representative Lang\u2019s proposal would not have been defeated. The Governor\u2019s pardon \u201cauthorizing\u201d expungement is just a criterion, then, that the defendant must have before he is even qualified to proceed with his petition under subsection 5(c); it simply prevents those who have been pardoned but not offered expungement by the Governor from filing a petition under this subsection. The petition with the potential for ex-pungement is then left to the discretion of the court which, as per subsection 5(d), may grant or deny it.\nOn a final note, the majority proposes that section 5\u20145\u20144(b) of the Unified Code of Corrections (Code) (730 ILCS 5/5\u20145\u20144(b) (West 2004)) \u201cfurther exemplifie[s]\u201d (372 Ill. App. 3d at 504) that the legislature intended for the wrongly convicted to receive automatic ex-pungement under subsection 5(c) of the Act. Yet, section 5\u20145\u20144(b) states that, if a conviction has been set aside and a court determines that the defendant was factually innocent, \u201cthe court shalt enter an order expunging the record of arrest.\u201d (Emphasis added.) 730 ILCS 5/5\u20145\u20144(b) (West 2004). I find it interesting that the majority, who was so quick to distinguish between a section 5 petition for expungement under subsection 5(a) and one under subsection 5(c) on the mere basis that one involves pardoned defendants and the other does not, is now citing a completely different statute in support of its contentions. In addition, I again fail to see how the language is comparable; contrary to the majority\u2019s opinion, this is not a distinction without difference. Section 5\u20145\u20144(b) of the Code clearly employs mandatory language ordering expungement, while subsection 5(c) of the Act uses permissive language along with subsection 5(d) alluding to the fact that a court has the ability to deny a petition to expunge under that subsection. The difference between section 5\u20145\u20144(b) of the Code and subsection 5(c) of the Act is huge.\nIn conclusion, while I find the majority\u2019s opinion to be well written, I simply cannot agree with the ultimate result it proposes. Again, this is not to say, of course, that I agree with the reasoning presented by the trial court below; but, while that is the case, I find the outcome it reached more reasonable than that of the majority here. In my practical view, I feel that there is something more, or there should be something more, to the operation of subsection 5(c) than just automatically granting expungement to defendants who file petitions based on a gubernatorial pardon that merely authorizes it. Based on the language of subsection 5(c), as well as other portions of that very statute and all the other factors I have considered, I believe our trial courts are vested with some discretion in these matters which opens the issue of expungement to debate on a case-by-case basis. And, as defendant in the instant case specifically states that he \u201cis not arguing on appeal that the circuit court abused its exercise of discretion\u201d in denying his petition, I, contrary to the majority, would affirm this particular matter for the reasons I have discussed herein.\nIn all honesty, I believe either one of the \u201cmay\u201ds can he stricken; it does not necessarily have to be the second one. Say the first \u201cmay\u201d is deleted and the second is left (rather than the majority\u2019s insistence that the second \u201cmay\u201d should be stricken and the first left), the subsection would then read, \u201cWhenever a person who has been convicted of an offense is granted a pardon by the Governor which specifically authorizes expungement, he, upon verified petition ***, may have a court order entered expunging ***.\u201d It is just as clear in this instance, for the same reasons discussed above, that \u201cmay\u201d can (and does) only refer to the defendant and does not create ambiguity. In fact, the striking of the first \u201cmay\u201d may be preferred, as the striking of the second, at the urgence of the majority, actually separates the auxiliary verb \u201cmay\u201d from the principal verb \u201chave\u201d and allows the lengthy clauses mentioned above to interrupt this verb structure, which can only lend to confusion (\u201che may, upon verified petition *** have a court ***,\u201d as opposed to \u201che, upon verified petition *** may have a court ***\u201d). Therefore, to me, which \u201cmay\u201d is stricken is pure semantics.\nThe majority further notes that Senator Dart also discussed the Governor\u2019s changes, as adopted by the House. The majority finds the lack of discussion surrounding modification of the first sentence of the proposed legislation beyond the addition that the pardon itself must authorize expungement to be \u201cparticularly telling.\u201d 372 Ill. App. 3d at 502. I disagree. Senator Dart was commenting on a potentially narrow interpretation of the bill that could arise which would \u201cpreclude expungement for all prior pardons.\u201d This may, in some way, be tied to the trial court\u2019s misconstrued decision here that because defendant had prior convictions his record could not.be expunged. Regardless, reading Senator Dart\u2019s comments, in my view, further supports my conclusion.", "type": "dissent", "author": "PRESIDING JUSTICE FITZGERALD SMITH," } ], "attorneys": [ "Arthur Loevy, Jon Loevy, Michael Kanovitz, and Russell Ainsworth, all of Loevy & Loevy, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Marie Quinlivan Czech, Assistant State\u2019s Attorneys, of counsel), for the Feople." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STANLEY HOWARD, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201405\u20141662\nOpinion filed March 30, 2007.\nArthur Loevy, Jon Loevy, Michael Kanovitz, and Russell Ainsworth, all of Loevy & Loevy, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald and Marie Quinlivan Czech, Assistant State\u2019s Attorneys, of counsel), for the Feople." }, "file_name": "0490-01", "first_page_order": 506, "last_page_order": 531 }