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Chesler v. People

November 24, 1999


Appeal from the Circuit Court of Cook County No.87 MC6 11325 87 MC6 12162 88 MC6 619 88 MC6 841 88 MC6 3013 89 MC6 2745 91 MC6 11717 Honorable Sheila M. Murphy, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Cahill

Petitioner appeals the trial court's denial of his motion to expunge his arrest record. We affirm in part, reverse in part and remand.

We address the following issue: when addressing a petition to expunge an arrest record, to what extent, if at all, may a court consider the petitioner's behavior after he is released without being convicted or after he has completed supervision. We conclude that a trial Judge may consider relevant post-Disposition behavior. We also conclude that post-Disposition behavior must be relevant to the charges for which the petitioner seeks expungement.

Petitioner's then wife, Sarah Chesler, filed a petition for dissolution of marriage in December 1987. She alleged mental and physical cruelty and sought sole custody of their twin daughters. A dissolution of marriage was entered on October 15, 1990, and Sarah was granted custody of their daughters. Sarah made allegations against petitioner in the course of the dissolution proceedings that led to the arrest records petitioner now seeks to expunge.

Petitioner was first arrested on November 27, 1987, and charged with assault. Petitioner was later charged with separate counts of simple battery on December 19, 1987, January 20, 1988, and January 26, 1988. Petitioner was charged with battery again on March 29, 1988. Sarah was the complaining witness in each case. Petitioner was found not guilty of these charges in a bench trial on June 28, 1988.

Petitioner was again arrested on March 11, 1988, and charged with battery of Sarah. Petitioner was also charged with violating an order of protection obtained by Sarah. Petitioner was found guilty of these charges and sentenced to two months' supervision. Petitioner successfully completed supervision on July 31, 1989.

In an incident unrelated to the dissolution of marriage, petitioner was charged with retail theft in Cook County on August 31, 1991. This case was dismissed after petitioner completed a theft deterrent program on November 9, 1991.

Petitioner was charged with retail theft in DuPage County on January 27, 1992. Petitioner was found guilty and given one year of supervision. Petitioner later filed a petition to expunge his DuPage County arrest record. Expungement was granted on June 8, 1998.

Petitioner filed a motion to expunge his Cook County arrest records on January 14, 1997. He alleged that he was arrested for the offenses stated, that he was released without being convicted, and that he had not been arrested or convicted of a criminal or municipal offense since 1992.

The State objected, arguing that petitioner's subsequent conduct should be considered, given the current state of his relationship with his two daughters. At a hearing on the petition, Sarah testified, over objection, about events that happened after, but were allegedly related to, petitioner's Cook County arrests. Petitioner's daughters did not testify.

Sarah testified that, in the summer of 1991, petitioner went on a cross-country trip with his daughters. Sarah said that her daughters told her that, during the trip, petitioner became angry twice, left the girls alone and drove away. The first incident was in Yellowstone Park, where petitioner left the girls alone in a closed visitor's center. In a second incident, petitioner left one of the girls at the side of a road in Arizona. Petitioner's continuing hearsay objections to this testimony were overruled.

Sarah then testified that, except for a brief visit with petitioner in 1992, the girls have not seen and do not wish to see petitioner. Sarah said that the 1991 trip with petitioner so "deeply affected" the girls that they needed counseling. Sarah mentioned two letters petitioner sent to his daughters in 1992 and 1993. The letters are described as demanding and dictatorial. Sarah testified that petitioner made certain demands of her daughters in these letters, but she did not elaborate.

Sarah then testified about mail she and her neighbors received in New York. Sarah said that packages containing newspaper clippings about the charges against petitioner and a letter addressed to a New York newspaper were mailed to or dropped off with friends and Sarah's business associates in 1988 and 1989. Sarah identified the handwriting on one of the envelopes and newspaper clippings as that of petitioner. None of the packages are part of the record on appeal. On cross-examination, Sarah admitted that she did not cooperate with petitioner's visitation rights, causing him to file emergency petitions to enforce his rights. Sarah said that her children were fearful of petitioner and she intervened to protect them. But Sarah admitted that the Judge in the dissolution proceeding did not find the children were fearful of petitioner. Sarah also admitted that, after the incidents on the 1991 trip, she did not file a police report or charges with the Illinois Department of Children and Family Services. She did file a report with a New York agency one year later, but after an investigation that agency found the charges unfounded. Sarah also said that the Judge who found petitioner not guilty of five of the battery charges had "made a mistake."

Petitioner testified that after Sarah filed for divorce in December 1987, she filed criminal charges against him in 1988. Petitioner denied mailing the packages to Sarah or anyone else in New York. Petitioner said that he was not in New York in 1988 or 1989, when the packages were sent. Petitioner admitted writing the two letters to his daughters. Petitioner explained that the letters were "harsh" because Sarah continuously blocked his repeated attempts to see ...

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