Appeal from the Circuit Court of Peoria County; the Hon.
Calvin R. Stone, Judge, presiding.
PRESIDING JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
The defendant-appellant, Robert L. Hightower, was found guilty by a jury of the offenses of driving under the influence of intoxicating liquor and driving with a blood-alcohol content over .10. (Ill. Rev. Stat. 1983, ch. 95 1/2, pars. 11-501(a)(2), (a)(1), respectively.) The court entered judgment on the latter finding of guilt and sentenced the defendant to 364 days' imprisonment in the Peoria County jail, a $1,000 fine, and costs. The defendant appeals from his sentence.
The evidence at the defendant's trial established that at approximately 10:30 p.m. on July 14, 1984, the car the defendant was driving struck and injured the pedestrian victim, Sharon Ford. At the trial, the defendant testified that he had been drinking alcohol prior to the accident. The breath analysis test to which the defendant submitted shortly after the accident showed his blood-alcohol concentration at .27.
At the sentencing hearing, Ford testified in aggravation as to the extent of her injuries and expenses related to the accident. Additionally, the court granted, over the defendant's objection, the State's request that the court take judicial notice of its file showing the defendant's prior plea of guilty to the offense of driving under the influence of intoxicating liquor. In granting the State's request, the court observed these facts: that following his December 28, 1982, plea of guilty, the defendant was placed on supervision and in the Dri-Roads program; that the defendant successfully completed Dri-Roads; and that the case was dismissed without entry of a conviction.
The defendant testified in mitigation. His testimony addressed his post-accident participation in Alcoholics Anonymous and his extreme remorse over Ford's injuries. The defendant also testified to his current and previous state of employment.
The court sentenced the defendant to the maximum jail time and fine for his Class A misdemeanor conviction. The defendant argues on appeal that his sentence was excessive and erroneously influenced by the court's reliance on two improper factors in aggravation.
The first factor which the defendant addresses is his 1982 disposition of supervision. The defendant relies on People v. Wunnenberg (1981), 85 Ill.2d 188, 421 N.E.2d 905, and People v. Calvert (1981), 100 Ill. App.3d 510, 426 N.E.2d 1218, in arguing that the court erroneously considered the 1982 disposition.
In Wunnenberg, the supreme court held it was improper for the sentencing court to consider the defendant's prior conviction which had been set aside under section 5021(b) of the Federal Youth Corrections Act. (18 U.S.C. § 5021(b) (1964).) The Wunnenberg court considered the legislative purpose of the Federal Youth Corrections Act and concluded that the conviction set aside under that Act should not later burden the offender with either criminal or non-criminal consequences. Accordingly, the court held the conviction should not be considered even remotely as an aggravating factor in sentencing.
In Calvert, the Fourth District addressed the question of whether the trial court properly considered in sentencing that the defendant previously was found guilty of battery when the defendant subsequently had successfully completed a corresponding term of supervision under subsections 5-6-3.1(e) and (f) of the Unified Code of Corrections (the Act) (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-6-3.1(e), (f)). The Calvert court found a direct analogy between section 5-6-3.1(f) of the Act and section 5021(b) of the Federal Youth Corrections Act. It held, on the strength of Wunnenberg, that during sentencing, the trial court improperly considered the battery charge which was followed by successful completion of supervision.
The State argues that the sentencing court in the instant cause properly considered the defendant's prior disposition of supervision. The State relies primarily on People v. Talach (1983), 114 Ill. App.3d 813, 448 N.E.2d 638. In Talach, the Second District rejected the Calvert court's finding that Illinois' law on supervision found in section 5-6-3.1(f) is analogous to section 5021(b) of the Federal Youth Corrections Act. It reasoned that unlike the Federal act, the Illinois supervision provision is not an expungement provision or its equivalent. The Talach court went on to conclude that a disposition of supervision successfully completed, but not expunged, is a relevant and proper consideration for a sentencing hearing.
Under section 5-6-1(c) of the Act, a court may enter an order for supervision of a misdemeanant pleading guilty or stipulating to facts supporting a charge or finding of guilt against him. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-1(c).) Under section 5-6-3.1(e) of the Act, at the conclusion of the period of supervision, if the court determines that the defendant has successfully complied with all the conditions of supervision, it shall discharge the defendant and dismiss the charges. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-3.1(e).) Subsection 5-6-3.1(f) of the Act then provides that "[d]ischarge and dismissal upon a successful conclusion of a disposition of supervision shall be deemed without adjudication of guilt and shall not be termed a conviction for purposes of disqualification or disabilities imposed by law upon conviction of a crime." (Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-3.1(f).) Subsection (f) goes on to set out a post-discharge waiting period after which a defendant may move for expungement of his arrest. Ill. Rev. Stat. 1983, ch. 38, par. 1005-6-3.1(f).
We agree that section 5-6-3.1(f) is not analogous to section 5021(b) of the Federal Youth Correction Act. Section 5021(b) has been interpreted by some courts to require automatic expungement of the offender's entire record. (See, e.g., 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.) Illinois' section 5-6-3.1(f), on the contrary, specifically sets out a period during which a defendant must wait before seeking expungement.
• 1 Under the legislative design before us, upon a defendant's successful completion of his term of supervision, the defendant is discharged; the relevant charges are dismissed; the defendant no longer risks conviction or attendant disabilities on the dismissed charge; and the defendant may look forward to possible expungement of his record. Ill. Rev. Stat. 1983, ch. 38, pars. 1005-6-3.1(e), (f).
We believe that the Talach case was properly decided. There, the court concluded that the "disqualifications and disabilities imposed by law upon conviction of a crime" described in section 6-3.1(f) did not include the right to be completely free of the consequences of one's past criminal conduct. It interpreted this phrase to include only those rights and privileges ...