Schlosser v. State ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Schlosser v. State, 2012 IL App (3d) 110115Appellate Court KIRK W. SCHLOSSER, Plaintiff-Appellant, v. THE STATE OF
Caption ILLINOIS, Defendant-Appellee.
District & No. Third District
Docket No. 3-11-0115
Filed January 18, 2012
Held Plaintiff’s application for a firearm owner’s identification card was
(Note: This syllabus properly denied due to his prior conviction for indecent solicitation of a
constitutes no part of child, notwithstanding plaintiff’s contention that the offense was not a
the opinion of the court forcible felony, since the conduct giving rise to defendant’s conviction
but has been prepared involved conversing about sexual matters in an Internet chat room with
by the Reporter of a person he thought was a 14-year-old girl, arranging to meet her at a bus
Decisions for the stop, going to the bus stop but not stopping, then being stopped by the
convenience of the police who informed him that the girl claimed he was her uncle and then
reader.)
indicating that he was her uncle, and that conduct exhibited the
“contemplation” and “implied willingness” to commit an act of violence
against a child and forcible felonies encompass any “felony which
involves the use of threat of physical force or violence.”
Decision Under Appeal from the Circuit Court of Will County, No. 10-MR-279; the Hon.
Review Bobbi N. Petrungaro, Judge, presiding.
Judgment Affirmed.
Counsel on Robert J. Welz, of Rouskey & Baldacci, of Joliet, for appellant.
Appeal
James Glasgow, State’s Attorney, of Joliet (Philip A. Mock, Assistant
State’s Attorney, of counsel), for appellee.
Panel PRESIDING JUSTICE SCHMIDT delivered the judgment of the court,
with opinion.
Justice O’Brien concurred in the judgment and opinion.
Justice Wright concurred in part and dissented in part, with opinion.
OPINION
¶1 On September 19, 2007, the Illinois State Police denied plaintiff’s application for a
firearm owner’s identification (FOID) card due to plaintiff’s prior conviction for the offense
of indecent solicitation of a child. Plaintiff filed a petition for hearing in the circuit court of
Will County following the denial of his application. The trial court denied plaintiff’s request
for relief based upon the court’s finding that plaintiff’s prior conviction constituted a forcible
felony. Plaintiff appeals, claiming the trial court erred in finding indecent solicitation of a
child is a forcible felony. We affirm.
¶2 FACTS
¶3 On March 17, 2010, plaintiff filed a petition for hearing following the denial of his
application for a FOID card. In the petition, plaintiff claimed that on September 19, 2007,
the Illinois State Police denied his application for a FOID card due to his prior conviction for
the Class 2 felony offense of indecent solicitation of a child (720 ILCS 5/11-6 (West 2002))
on December 30, 2002.
¶4 The petition alleges that plaintiff owns a farm, is a productive member of society, and
wishes to resume hunting with a firearm. Plaintiff further alleged that the 2002 solicitation
case is his only criminal conviction, that he previously held a valid FOID card for many
years, and that his history and reputation established he would not be likely to act in a
dangerous manner if he received a FOID card. He argued that granting his petition would not
be contrary to public interest.
¶5 At a hearing on November 17, 2010, the trial court asked if there was a record of “what
was done at the ISP level.” The prosecutor advised the court that there was no record
“because this isn’t, I don’t think, an administrative review.”
¶6 Plaintiff testified that on December 30, 2002, he pled guilty to the Class 2 felony offense
of solicitation of a child in Cook County, Illinois. Plaintiff explained the circumstances that
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resulted in this conviction. He testified that he was on the Internet in a chat room, conversing
with a person that he thought was a 14-year-old girl from Hillside, Illinois. Communications
involved talk of a sexual nature. Plaintiff stated, “oral sex was discussed, doggy style sex,
people on top; that type of stuff was discussed.” During this conversation, he made
arrangements to meet with the teenage girl at a bus stop. Plaintiff drove to the bus stop, saw
a girl but never stopped. He was then pulled over by the police, who informed him that a girl
who stole a soda claimed he was her uncle. Plaintiff indicated to the police that he was the
girl’s uncle and offered to pay for the soda that the girl stole.
¶7 After his arrest, he learned that he was communicating with a police officer online, rather
than a teenage girl. He admitted that portions of the online conversation involved a
discussion of various sexual positions, and because of that conversation, he pled guilty. He
denied threatening the person online or forcing the person to meet him. He admitted having
ammunition in his vehicle at the bus stop, but denied possessing a weapon in his vehicle.
Plaintiff testified he had no other convictions for felony or misdemeanor offenses. Plaintiff
stated that his sentence included two years’ probation, “sexual rehabilitation, and 10 years
registry.” He told the court that he was at the end of his eighth year of registration and was
in compliance with the registration requirements.
¶8 Scott Siebert testified that he had known plaintiff since 1974 and frequently hunted with
plaintiff. Siebert said that he was aware of plaintiff’s conviction and the circumstances
surrounding the conviction. Siebert advised the court that plaintiff would not be a danger to
the public if he was granted a FOID card because Siebert did not believe that plaintiff would
commit a similar criminal offense.
¶9 Wyatt Haws testified that he had known plaintiff all of his life. Haws stated that he was
an ordained minister and worked with Light of Fire Ministries. Haws said that since
plaintiff’s conviction, they spoke at least twice a week. He did not believe that plaintiff
would commit another criminal offense, and he did not believe that plaintiff would be a
danger to the public if granted a FOID card.
¶ 10 Gary Twardowski testified that he was a retired Illinois State Police trooper and
detective. He stated that he became the “overall sex offender registration coordinator for
La Salle, Bureau and Putnam Counties.” In his opinion, there were “a lot of different types
of crimes that would fall under the Sex Offender Registration Act.” He said that “[n]ot all
people convicted should be denied” a weapon. Twardowski said that he knew plaintiff’s
parents and had known plaintiff since 1996. He learned of plaintiff’s conviction and spoke
to plaintiff about the incident. He did not believe that plaintiff would be a danger to the
public if granted a FOID card.
¶ 11 Following Twardowski’s testimony, plaintiff rested. The State did not offer any evidence.
¶ 12 Plaintiff’s attorney argued to the court that plaintiff was improperly denied a FOID card
by the Illinois State Police due to a previous felony conviction, which should not be
considered a forcible felony. Plaintiff’s attorney also argued that plaintiff did not pose a
danger to public safety and that granting the relief would not be contrary to public interest.
¶ 13 The prosecutor argued that plaintiff’s conviction constituted a forcible felony, as “[w]ith
a victim 14 and him [plaintiff] in his 40’s, aggravated criminal sexual assault would have
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occurred, even if it was consensual activity, because of the age difference.” He further argued
that plaintiff pled guilty to a specific intent crime, “which shows a specific intent to commit
a forcible felony.” The prosecutor stated that the term “threat” should be interpreted in this
case to mean any type of communication that could cause or ultimately result in force or
violence against an individual.
¶ 14 In addition, the prosecutor argued that plaintiff had not established the other factors set
forth in the statute, specifically that plaintiff would not be a danger to the public and that
granting plaintiff relief was not against public interest. After hearing arguments from
counsel, the trial court took the matter under advisement.
¶ 15 On January 18, 2011, the trial court issued a written order finding that the offense of
indecent solicitation of a child fell within the definition of “ ‘any other felony which involves
the use or threat of physical force or violence against any individual’ as the threat of such
physical force involving the child.” The court denied plaintiff’s petition. This timely appeal
followed.
¶ 16 ANALYSIS
¶ 17 On appeal, plaintiff argues that indecent solicitation of a child does not constitute a
forcible felony. The State argues, in response, that if indecent solicitation of a child is not a
forcible felony, plaintiff could not appeal the denial of his FOID card directly to the circuit
court. Instead, the State claims plaintiff should have appealed to the Director of the Illinois
State Police. Alternatively, assuming we find indecent solicitation of a child is a forcible
felony, the State argues the trial court properly denied plaintiff’s petition as he is a registered
sex offender and felon convicted of a forcible felony.
¶ 18 We begin by addressing the State’s argument that the trial court lacked subject matter
jurisdiction to hear plaintiff’s petition because plaintiff should have appealed the denial of
his FOID card to the Director of the Illinois State Police rather than directly to the circuit
court. Plaintiff responds that the State waived any objection to the trial court’s subject matter
jurisdiction in this case by arguing the merits in the circuit court. We review de novo whether
the circuit court properly exercised jurisdiction. In re John C.M., 382 Ill. App. 3d 553, 558
(2008); In re Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004).
¶ 19 The parties agree that the relevant statutory provision is set forth at section 10 of the
Firearm Owners Identification Card Act (430 ILCS 65/0.01 et seq. (West 2010)). The statute
provides:
“(a) Whenever an application for a Firearm Owner’s Identification Card is denied,
*** the aggrieved party may appeal to the Director of the Department of State Police for
a hearing upon such denial, revocation or seizure, unless the denial, revocation, or seizure
was based upon a forcible felony, stalking, aggravated stalking, domestic battery, any
violation of the Illinois Controlled Substances Act, the Methamphetamine Control and
Community Protection Act, or the Cannabis Control Act that is classified as a Class 2 or
greater felony, any felony violation of Article 24 of the Criminal Code of 1961, or any
adjudication as a delinquent minor for the commission of an offense that if committed
by an adult would be a felony, in which case the aggrieved party may petition the circuit
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court in writing in the county of his or her residence for a hearing upon such denial,
revocation, or seizure.” (Emphasis added.) 430 ILCS 65/10(a) (West 2010).
¶ 20 Contrary to the State’s position, the plain language of the statute states that an applicant
“may appeal to the Director of the Department of State Police for a hearing upon such denial,
revocation or seizure, unless the denial, revocation, or seizure was based upon a forcible
felony.” When the denial by the State Police is based on a determination that the applicant
has a conviction for a forcible felony, then the applicant must seek relief in the trial court.
¶ 21 Based upon the facts presented in this record, we conclude that the denial of the FOID
card application in this case was based on a determination that plaintiff had a prior forcible
felony conviction. Therefore, the trial court had jurisdiction to hear plaintiff’s application,
and plaintiff’s appeal is properly before this court.
¶ 22 We turn now to the issue of whether the trial court properly found that plaintiff’s
conviction for indecent solicitation of a child constituted a forcible felony. We review this
question of law de novo. People v. Belk, 203 Ill. 2d 187, 192 (2003) (citing People v.
Richardson, 196 Ill. 2d 225, 228 (2001)).
¶ 23 Section 2-8 of the Criminal Code of 1961 defines “forcible felony” as follows:
“[T]reason, first degree murder, second degree murder, predatory criminal sexual assault
of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary,
residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping,
aggravated battery resulting in great bodily harm or permanent disability or disfigurement
and any other felony which involves the use or threat of physical force or violence
against any individual.” 720 ILCS 5/2-8 (West 2010).
¶ 24 Indecent solicitation of a child is not one of the enumerated offenses. As such, we must
determine whether this offense involves the use or threat of physical force or violence against
any individual in order to qualify as a forcible felony. 720 ILCS 5/2-8 (West 2010). “It is the
contemplation that force or violence against an individual might be involved combined with
the implied willingness to use force or violence against an individual that makes a felony a
forcible felony under the residual category of section 2-8.” People v. Belk, 203 Ill. 2d at 196.
¶ 25 Here, the charged offense was indecent solicitation of a child which occurs when
“[T]he person, with the intent that the offense of aggravated criminal sexual assault,
criminal sexual assault, predatory criminal sexual assault of a child, or aggravated
criminal sexual abuse be committed, knowingly solicits a child or one whom he or she
believes to be a child to perform an act of sexual penetration or sexual conduct as defined
in Section 12-12 of this Code.” 720 ILCS 5/11-6(a) (West 2002).
¶ 26 The record reveals that plaintiff pled guilty to soliciting sex from someone he believed
to be a 14-year-old. He drove to a bus station to meet her, claimed to be her uncle, and paid
for property she allegedly stole to secure her release from custody. Plaintiff was
approximately 40 years of age at the time.
¶ 27 Our system of jurisprudence adopted the concept that a person must attain a certain age
to be able to give consent to sexual activities from the English common law, which codified
the principle in 1275. People v. Lloyd, 2011 IL App (4th) 100094, ¶ 31. The reasoning
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behind the age of consent is that young people lack maturity in judgment and the ability to
comprehend the consequences of such activity. Id. The age of consent fixed by a state
represents a legislative judgment about the maturity of minors in matters of sexual activity.
Id.; see also Beul v. ASSE International, Inc., 233 F.3d 441, 450 (7th Cir. 2000). Our
legislature has enacted several age-based criminal statutes addressing an offender’s age, the
victim’s age, and types of conduct which show the age of consent in Illinois is generally 17
(720 ILCS 5/12-15(c) (West 2010)) but, in a few instances, it is 18. 720 ILCS 5/12-13(a)(3)
(West 2010).
¶ 28 In Clay v. Kuhl, 189 Ill. 2d 603 (2000), our supreme court made it clear that “Illinois law
presumes an intent to harm and resulting injury” from sexual abuse of a minor. Id. at 611;
see also Softcheck v. Imesch, 367 Ill. App. 3d 148, 156 (2006). We find that since sexual
abuse of a minor involves an act of violence against a child, that inherent in the act of
soliciting a child for sex is the threat of violence against that child. We submit that the
dissent ignores the fact that physical force or violence against the child was not necessary;
forcible felonies encompass any “felony which involves the use of threat of physical force
or violence.” (Emphasis added.) 720 ILCS 5/2-8 (West 2010). Defendant, through his actions
both on the computer and in driving to meet someone he thought was a 14-year-old girl, and
then telling police he was the girl’s uncle, clearly exhibited the “contemplation” and “implied
willingness” to commit an act of violence against a child. See Belk, 203 Ill. 2d at 196. We
hold the trial court did not err in denying plaintiff’s petition based on a finding that
solicitation of a child for a sex act is a forcible felony.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.
¶ 31 Affirmed.
¶ 32 JUSTICE WRIGHT, concurring in part and dissenting in part:
¶ 33 I agree with the majority’s conclusion that the plain language of the Firearm Owners
Identification Card Act required Schlosser to seek relief in the trial court from the Illinois
State Police’s denial of his FOID application. I further agree with the majority’s conclusion
that the trial court had jurisdiction to hear Schlosser’s application. Therefore, I agree that
Schlosser’s appeal is properly before this court. However, I do not agree with the majority’s
conclusion that Schlosser’s conviction for indecent solicitation of a child constituted a
forcible felony for the reasons discussed below.
¶ 34 First, a felony offense, not specifically enumerated by statute, is determined to be a
forcible felony by examining whether the felony involved the use or threat of physical force
or violence against an individual. 720 ILCS 5/2-8 (West 2010). This determination is entirely
dependent on the facts of each particular case and the nature of the impermissible interaction
initiated by the offender. See People v. Belk, 203 Ill. 2d 187 (2003); People v. Golson, 32 Ill.
2d 398 (1965).
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¶ 35 Here, the specific facts surrounding Schlosser’s prior felony conviction for indecent
solicitation of a child will determine whether Schlosser contemplated the use of force or
violence against another when committing the prior criminal act. People v. Belk, 203 Ill. 2d
at 195. The criminal statute defines “solicit” as “to command, authorize, urge, incite, request,
or advise another to perform an act by any means including, but not limited to, in person,
over the phone, in writing, by computer, or by advertisement of any kind.” 720 ILCS 5/11-
6(b) (West 2002). Thus, the act of solicitation can be based on a polite request and does not
necessarily require a threatening directive toward another person.
¶ 36 Based upon the undisputed facts resulting in his prior conviction, Schlosser’s actions
included undeniably salacious, but, nonetheless, long-distance, Internet conversations with
another person. These Internet conversations did not incorporate or involve either an implicit
or an explicit threat of force or violence toward that person. In addition, Schlosser’s
expressed desires to have physical contact with another person were abandoned by Schlosser
before he could meet with the intended victim and inflict any physical act of force or
violence upon her.
¶ 37 In this case, Schlosser did not actually use threats, force, or violence when committing
the specific crime of indecent solicitation of a child as charged. Due to these circumstances,
I respectfully submit that Schlosser’s prior conviction for indecent solicitation of a child does
not fit the statutory definition of a forcible felony.
¶ 38 The majority notes that Illinois law presumes an intent to harm resulting from an act of
sexual abuse against a minor. However, this presumption applies to actual physical and
sexual contact between an adult and a child. See Softcheck v. Imesch, 367 Ill. App. 3d at 156
(citing Clay v. Kuhl, 189 Ill. 2d at 611). In this case, Schlossler’s criminal act was completed
once he communicated, by computer, his desire to have an inappropriate rendevous with the
purported 14-year-old girl. See 720 ILCS 5/11-6(a) (West 2002). Therefore, I conclude that
presumed harm or violence did not attach to Schlosser’s inappropriate act of communication
alone.
¶ 39 Even though I do not believe that Schlosser’s prior felony conviction qualifies as a
forcible felony, this conclusion does not automatically entitle Schlosser to the requested
relief. I would remand the matter for the trial court to make a factual determination whether
(1) it is likely that Schlosser would act in a manner dangerous to the public; and (2) whether
the requested relief is contrary to the public interest as required by the statute. See 430 ILCS
65/10(c) (West 2010). Either one of these determinations would support the trial court’s
conclusion.
¶ 40 For these reasons, I concur in part and dissent in part.
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