APPEAL from the Circuit Court of Henderson County; the Hon.
STEPHEN G. EVANS, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, Gary Wunnenberg, pleaded guilty to three charges of unlawful delivery of a controlled substance, each being a Class 2 felony. The circuit court of Henderson County sentenced the defendant to three concurrent terms of imprisonment of 3 1/2 years each. The only issue raised on this appeal is whether the trial court properly considered the defendant's prior conviction under the Federal Youth Corrections Act (hereinafter referred to as the Act) (18 U.S.C. § 5005 et seq. (1976)) as one of the aggravating factors in imposing sentence.
At the defendant's sentencing hearing, the defense offered an exhibit pertaining to a prior Federal conviction of the defendant in Missouri. The conviction, entered in the United States District Court for the Western District of Missouri in 1969, resulted from the defendant's possession of counterfeit money. Following his conviction, the defendant was sentenced to probation under the Act. The judgment and conviction were later vacated because the defendant was discharged from probation early.
At the defendant's sentencing hearing in the present case, the defense counsel argued that the Missouri offense should not be treated as a prior conviction because of the ultimate disposition of the case. The State argued that the conviction should be considered and offered certified copies of the sentence order and the indictment. Both of these exhibits were admitted by the trial court.
In sentencing the defendant the court, in mitigation, found that imprisonment would be a hardship on the defendant's dependents, the defendant was likely to comply with the terms of probation, others facilitated the commission of the offenses and the Missouri case was remote in time. In aggravation, the court cited the defendant's record from Missouri, deterrence, the classification of cocaine, the dollar value of the three deliveries and the fact the defendant received compensation for the deliveries.
By appropriate motion the defendant sought a reduction in the sentence arguing the trial court had improperly considered the Missouri proceeding as an aggravating factor in determining sentence.
The defendant seeks a new sentencing hearing, contending the trial judge, in imposing sentence, improperly considered the prior Federal conviction, which was set aside under the Act, as an aggravating factor. The State contends that the Act does not require expungement of a defendant's record, and, for that reason, the record of conviction may be considered as one of the aggravating factors.
The Federal Youth Corrections Act is designed to permit Federal judges to exercise their sentencing discretion to provide sentences which treat youthful offenders in line with modern trends in penology toward corrective rehabilitation rather than retribution. (United States v. Dunn (10th Cir. 1976), 545 F.2d 1281.) One of the benefits available to an offender sentenced under the Act is that, upon successful completion of the treatment program, he may have his conviction set aside. Section 5021(b) of the Act provides as follows:
"Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect." 18 U.S.C. § 5021 (b) (1976).
The parties have argued to a significant extent about whether the Missouri proceeding should or should not be expunged. The defendant's argument includes the contention the proceeding should be expunged, and the People argue to the contrary. United States v. Doe (6th Cir. 1977), 556 F.2d 391, is a case directly dealing with the expungement issue, and it holds that in the absence of congressional directive the Act does not require or authorize expungement of the proceeding.
Were the issue raised on this appeal to depend on whether or not this proceeding was subject to expungement, we would conclude that it was not and the trial court acted properly. However, the fact remains there is no presently existing conviction in the Missouri proceeding, it having been vacated by a proper order of the court which had jurisdiction of the proceeding and which entered the judgment of conviction. Thus a significant question presented by this appeal is the effect on sentencing of a conviction which has been properly vacated.
1 In Illinois a prior conviction which has been overturned on appeal or in collateral proceedings should not be considered by a court subsequently sentencing the defendant for another offense. (People v. Chellew (1974), 20 Ill. App.3d 963, 313 N.E.2d 284; People v. Marselle (1974), 20 Ill. App.3d 1012, 314 N.E.2d 21.) The major thrust of the rule as exemplified by the foregoing decisions is that a conviction once properly vacated no longer has the legal character of a conviction. To hold otherwise would mean that a conviction which has been vacated or set aside for whatever reason would have the same legal effect as an unvacated conviction, a conclusion warranted neither by justice, reason or logic.
In reviewing Federal cases which have been called to our attention, some mentioning expungement and others not, the courts> have uniformly held that the status of a defendant whose conviction has been vacated and set aside under the Act is not that of a convicted felon. (See, e.g., People v. Garcia (1978), 93 Misc.2d 667, 402 N.Y.S.2d 164; United States v. Fryer (N.D. Ohio 1975), 402 F. Supp. 831, aff'd (6th Cir. 1976), 545 F.2d 11, 14; United States v. Glasgow (D.C. Cir. 1975), 389 F. Supp. 217; Mestre Morera v. United States Immigration & Naturalization Service (1st Cir. 1972), 462 F.2d 1030; Tatum v. United States (D.C. Cir. 1962), 310 F.2d 854.) Illustrative of the holdings in these cases is the conclusion that a defendant whose conviction has been vacated may not be deported for having been convicted of a criminal offense (Mestre Morera v. United States Immigration & Naturalization Service), and that such a defendant does not have a felony conviction prohibiting the purchase of firearms (United States v. Fryer). These cases are consistent with the purpose of the Act to free defendants from any taint of a conviction under the Act.
2 In summary, a conviction which has been legally vacated and set aside should not be given the same effect or, for that matter, any effect as an unvacated conviction. Any contrary holding as applied to the facts of this case would be contrary to the avowed purpose of the Act, which is to give a youthful offender an opportunity for rehabilitation. Accordingly, the trial court erred in considering the Missouri proceeding as an aggravating factor in determining the sentence to be imposed.
For the foregoing reasons the judgments of conviction entered by the circuit court of Henderson Courty are affirmed, but the sentences are vacated and these causes are remanded for reconsideration of the sentence to be ...