Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Henderson
County, the Hon. Stephen G. Evans, Judge, presiding.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
In the circuit court of Henderson County, defendant, Gary Wunnenberg, pleaded guilty to three charges of unlawful delivery of a controlled substance. On March 12, 1979, the court sentenced defendant to a 3 1/2-year imprisonment term for each felony, to be served concurrently. By majority decision, the appellate court vacated the sentences and remanded for resentencing. 87 Ill. App.3d 32.
This case presents one narrow issue: Did the trial court properly consider defendant's prior conviction under the Federal Youth Corrections Act (Act) (18 U.S.C. § 5005 et seq. (1964)) as an aggravating factor in sentencing when that prior conviction had been set aside?
Here, the facts are uncontroverted. The presentence investigation report, submitted at the sentencing hearing, contained a 1969 guilty plea by defendant in the United States District Court for the Western District of Missouri to three counts of possession of counterfeit money. The district court sentenced defendant to three years' probation under the Federal Youth Corrections Act (18 U.S.C. § 5010(a) (1964)). The same report also contained a February 10, 1971, order by the Missouri district court setting aside defendant's 1969 conviction, pursuant to 18 U.S.C. § 5021(b) (1964), and discharging him from probation. The trial court, over defendant's objections, considered the Federal conviction as a factor in aggravation in sentencing. Among the factors in mitigation the trial court considered the remoteness in time of the Missouri proceeding. The appellate court held that the trial court erred in considering the Missouri proceeding as an aggravating factor in sentencing.
18 U.S.C. § 5010(a) (1964) provides:
"If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation."
18 U.S.C. § 5021(b) (1964) provides:
"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."
As both the State and defendant point out, Federal courts> have taken differing views in interpreting the meaning of a "set-aside" conviction under section 5021. Several courts> have refused to treat section 5021(b) as an expungement provision. (See United States v. Doe (6th Cir. 1977), 556 F.2d 391, 393; United States v. McMains (8th Cir. 1976), 540 F.2d 387, 389; United States v. Hall (S.D.N Y 1977), 452 F. Supp. 1008, 1012; United States v. Heller (N.D. Ohio 1976), 435 F. Supp. 955, 956; Fite v. Retail Credit Co. (D. Mont. 1975), 386 F. Supp. 1045, 1047, aff'd (9th Cir. 1976), 537 F.2d 384.) On the other hand, several decisions, in dicta, have suggested that section 5021 should be read as an expungement statute. (See United States v. Wallulatum (9th Cir. 1979), 600 F.2d 1261, 1262; United States v. Fryer (6th Cir. 1976), 545 F.2d 11, 13 (although the Sixth Circuit later ruled in United States v. Doe that section 5021 does not authorize expunction because the Act does not provide for obliteration of the records); United States v. Dancy (D.C. Cir. 1975); 510 F.2d 779, 782 n. 11; Tatum v. United States (D.C. Cir. 1962), 310 F.2d 854, 856 n. 2; United States v. Glasgow (D.D.C. 1975), 389 F. Supp. 217, 224 n. 17.) Most recently, three Federal courts> directly confronted with the question held that section 5021 mandates expungement. See Doe v. Webster (D.C. Cir. 1979), 606 F.2d 1226, 1244 (interpreting the section to require expungement of the conviction record); United States v. Doe (D.R.I. 1980), 496 F. Supp. 650, 653, and United States v. Henderson (D.N.J. 1979), 482 F. Supp. 234, 244 (the latter two cases interpreting the section to require expungement of entire record, including arrest).
Although disagreement exists as to the propriety of equating a set-aside conviction with expungement, there is a clear consensus of opinion in the cited cases that a set-aside conviction under the Youth Corrections Act should not burden the youth offender later in life. For example, the District of Columbia Circuit Court of Appeals stated in Doe v. Webster:
"It is clear that if [the] purposes of the Act are to be effectuated, the set-aside provision must be accorded a liberal construction which allows the rehabilitated youthful offender a meaningful fresh start by protecting him from those `stigma' consequences of his conviction which impede his reintegration into society, as distinguished from an interpretation which grudgingly focuses only on the removal of `legal' disabilities which are of more limited value to the youthful ex-offender seeking to re-establish a useful, productive, and law-abiding life." 606 F.2d 1226, 1238.
Similarly, in Tatum v. United States, the same court stated that "a person sentenced under the Youth Corrections Act can, by virtue of his own good conduct, be spared the lifelong burden of a criminal record." 310 F.2d 854, 856.
In Mestre Morera v. United States Immigration & Naturalization Service (1st Cir. 1972), 462 F.2d 1030, the court held that an alien could not be deported on the basis of a narcotics conviction that had been set aside under section 5021. The court stated:
"The clear purpose for the automatic setting aside of a youthful offender's conviction if he responds satisfactorily to treatment under the Youth Correction Act is to relieve him not only of the usual disabilities of a criminal conviction, but also to give him a second chance free of a record tainted by such a conviction * * *. We are unable to presume that Congress, without any reference to such an intent, meant in section ...