People v. Morger

FILED
April 25, 2018
2018 IL App (4th) 170285 Carla Bender
4th District Appellate
NO. 4-17-0285 Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
CONRAD ALLEN MORGER, ) No. 12CF1330
Defendant-Appellant. )
) Honorable
) Scott D. Drazewski,
) Judge Presiding.
______________________________________________________________________________
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices DeArmond and Turner concurred in the judgment and opinion.
OPINION
¶1 After defendant, Conrad Allen Morger, was convicted in 2014 of criminal sexual
abuse and aggravated criminal sexual abuse, he challenged on appeal various conditions of his
probation. This court vacated defendant’s sentence and remanded for a new sentencing hearing.
The trial court again sentenced defendant to probation, and he now appeals, challenging certain
conditions of probation as (1) an improper increase in his sentence and (2) unconstitutional
because they are overly broad and unreasonable. For the reasons that follow, we affirm the trial
court’s judgment.
¶2 I. BACKGROUND
¶3 In January 2013, the State charged defendant with aggravated criminal sexual
abuse (720 ILCS 5/11-1.60(d) (West 2010)) and criminal sexual abuse (id. § 11-1.50(a)(1)).
People v. Morger, 2016 IL App (4th) 140321, ¶ 5, 59 N.E.3d 219. Each charge alleged that
defendant’s criminal acts, which were committed against his sister, K.M., who was born
September 22, 1997, occurred between August 1, 2010, and November 30, 2012. Id. ¶ 5.
¶4 In February 2014, following a bench trial, defendant was convicted of both
counts. Id. ¶ 1. In April 2014, the trial court sentenced him to 180 days in jail and probation for
48 months. Id. ¶¶ 1, 21.
¶5 In defendant’s initial appeal, he argued that the State failed to prove him guilty
beyond a reasonable doubt of either charge. Id. ¶ 2. Defendant also argued his probation
conditions were unreasonable, overly broad, and unrelated to his conviction or rehabilitation. In
addition, defendant argued that the trial court erred by delegating its judicial discretion to the
McLean County court services department to determine his sentence. Id. In August 2016, this
court agreed with only defendant’s last argument, so we affirmed defendant’s convictions,
vacated his sentence, and remanded for the trial court to use its discretion to determine his
sentence. Id. ¶ 61.
¶6 On remand, the trial court resentenced defendant to the same term of probation
and imposed various probation conditions. Defendant challenged some of those conditions in a
motion to reconsider sentence, but the court denied that motion.
¶7 This appeal followed.
¶8 II. ANALYSIS
¶9 On appeal, defendant raises two contentions. First, he argues that the trial court’s
imposition of probation conditions on remand amounts to an improper increase of his sentence.
Second, defendant argues probation condition Nos. 4, 5, 6, 8, 11, and 14 should be vacated
because they are unconstitutional, overly broad, and unreasonable. We will address these
arguments in turn.
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¶ 10 A. The Probation Conditions Imposed on Remand
¶ 11 Defendant argues that the probation conditions purportedly imposed by the
McLean County court services department previously cannot be imposed by the trial court on
remand because doing so would impermissibly increase his sentence. Accordingly, defendant
asks this court to vacate all of the probation conditions the trial court imposed on remand.
¶ 12 The State responds that (1) the trial court retained authority and discretion during
defendant’s probationary period to revoke or modify defendant’s probation and (2) the court
properly imposed probation conditions on remand. We agree with the State that the trial court’s
imposition of probation conditions on remand was proper.
¶ 13 In support of defendant’s claim that the trial court’s imposition of probation
conditions on remand amounted to an impermissible increase in his sentence, he relies upon
People v. Castleberry, 2015 IL 116916, ¶¶ 20-26, 43 N.E.3d 932, and People v. Daily, 2016 IL
App (4th) 150588, ¶ 30, 74 N.E.3d 15. We reject defendant’s Castleberry and Daily analysis
because those cases are inapposite to defendant’s situation.
¶ 14 In Daily, the circuit clerk purportedly imposed fines upon the defendant that the
trial court never imposed. Daily, 2016 IL App (4th) 150588, ¶ 30. This court vacated the fines
but declined the State’s request that we remand so that the trial court could impose the
mandatory fines. Id. In so concluding, we stated our agreement with the Third District’s decision
in People v. Wade, 2016 IL App (3d) 150417, ¶ 13, 64 N.E.3d 703, that such a remand would
result in an impermissible increase in defendant’s sentence on appeal, which would violate the
supreme court’s decision in Castleberry. Id. As the Wade court noted, the supreme court in
Castleberry held that the appellate court may not increase a sentence on appeal, even one that is
illegally low. Id.
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¶ 15 Defendant’s situation in the present case is different because, here, the trial court
sentenced defendant to probation but then delegated the imposition of specific probation
conditions to the McLean County court services department. Morger, 2016 IL App (4th) 140321,
¶¶ 1, 57. We held in the first appeal of this case that the trial court’s delegation to the court
services department was erroneous. Id. ¶ 54. “Because the imposition of probationary conditions
is part of sentencing, the trial court must impose any such conditions at the sentencing hearing
and may not delegate that authority to any third party, including the court services department.”
Id. ¶ 57. We then remanded the defendant’s case for the trial court to judicially impose the
specific probation conditions. Id. ¶ 58.
¶ 16 On remand, the trial court did just that—namely, the court resentenced defendant
and imposed probation conditions. Thus, this case differs from Daily because, here, it was the
trial court that initially imposed the erroneous sentence, not the circuit clerk. Thus, our remand
directed the trial court to sentence defendant again without engaging in any improper delegation
to the court services department to determine probation conditions. The trial court complied with
our remand, and we see no error in the court’s doing so. Because the trial court resentenced
defendant and imposed probation conditions, the trial court exercised its judicial function and
these conditions were properly imposed on remand.
¶ 17 B. Defendant’s Challenge to Specific Probation Conditions
¶ 18 Next, defendant argues that probation condition Nos. 4, 5, 6, 8, 11, and 14
imposed by the trial court should be vacated because they are unconstitutional, overly broad, and
unreasonable. These contentions on appeal appear based on two separate claims: (1) the
probation conditions are inappropriate, excessive, and unreasonable as a matter of Illinois law,
and (2) even if they might be permitted under Illinois law, they violate defendant’s constitutional
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rights. Consistent with directions from the Illinois Supreme Court regarding how lower courts
should handle cases in which both constitutional and nonconstitutional claims are raised, we will
first address defendant’s nonconstitutional claims. See People v. Chairez, 2018 IL 121417, ¶ 13
(courts should “decide constitutional questions only to the extent required by the issues in the
case” (internal quotation marks omitted)); see also In re Dustyn W., 2017 IL App (4th) 170103,
¶ 24, 81 N.E.3d 88 (“Only if we conclude that the trial court did not abuse its discretion by
imposing the probationary condition at issue should we then consider whether this condition
violated respondent’s constitutional rights.”). Nonetheless, our consideration of a defendant’s
contention that a probation condition violated his constitutional rights can help inform this
court’s analysis regarding the overall reasonableness of that condition.
¶ 19 1. Defendant’s Claim That the Probation Conditions Imposed
On Him Were Not Permitted Under Illinois Law
¶ 20 In analyzing the probation conditions, we need to “first determine whether the
court’s discretion was exercised in a reasonable manner.” Dustyn W., 2017 IL App (4th) 170103,
¶ 24. “To be reasonable, a condition of probation must not be overly broad when viewed in the
light of the desired goal or the means to that end.” In re J.W., 204 Ill. 2d 50, 78, 787 N.E.2d 747,
764 (2003).
¶ 21 Trial courts have broad discretion to impose probationary conditions to achieve
the goals of fostering rehabilitation and protecting the public. Dustyn W., 2017 IL App (4th)
170103, ¶ 24. “[T]he trial court’s discretion is limited by constitutional safeguards and must be
exercised in a reasonable manner.” Id.
¶ 22 For the reasons that follow, we conclude that probation condition Nos. 4, 5, 6, 8,
11, and 14 are reasonable.
¶ 23 a. Probation Condition No. 4
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¶ 24 Probation condition No. 4 requires that defendant
“[n]ot reside at the same address, in the same condominium unit or complex, or in
the same apartment unit or complex, with another person defendant knows or
reasonably should know is a convicted sex offender. (730 ILCS 5/5-6-3(a)(8.6))
This includes any mobile home park in which the homes are addressed by lot
number, with or without a designated street address.”
¶ 25 Defendant argues that probation condition No. 4 prohibits him “from living in any
mobile home parks that use lot numbers if another convicted sex offender lives there.” He further
argues that probation condition No. 4 is overly broad and unreasonable “because mobile home
parks are substantially different than apartment and condominium complexes in that they consist
of entirely separate physical dwellings, just like subdivisions of houses.” Defendant cites People
v. Meyer, 176 Ill. 2d 372, 680 N.E.2d 315 (1997), to argue that a probation condition can veer so
far in the direction of protecting the public that it unreasonably hampers the goal of
rehabilitation, which he contends probation condition No. 4 does by arbitrarily limiting his
access to some mobile homes, but not small houses. We disagree with all of these contentions.
¶ 26 Probation condition No. 4 does not prohibit defendant “from living in any mobile
home parks that use lot numbers if another convicted sex offender lives there.” Instead, that
condition prohibits defendant from residing at “any mobile home park in which the homes are
addressed by lot number, with or without a designated street address” where defendant knows or
reasonably should know another convicted sex offender resides. Thus, probation condition No. 4
restricts defendant’s housing choices only if defendant knows, or should reasonably know, that a
sex offender resides within the mobile home park, condominium, apartment unit, or complex.
¶ 27 Defendant misinterprets and misapplies Meyer, in which the Illinois Supreme
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Court had before it a probation condition requiring the defendant to erect a sign reading
“Warning! A Violent Felon lives here. Enter at your own Risk!” The supreme court deemed this
condition unreasonable because it contained a strong element of public humiliation or ridicule.
Id. at 382. The court also struck down this probation condition because the sign was likely to
have an adverse effect on innocent individuals who might have resided with, or intended to visit,
the defendant, explaining that “[c]onditions which label a defendant’s person or property have a
stigmatizing effect and are considered shaming penalties.” Id. at 383. The court added that
“[a]though a probationer may experience a certain degree of shame from a statutorily identified
condition of probation, shame is not the primary purpose of the enumerated conditions.” Id.
¶ 28 Meyer is inapposite from this case. Probation condition No. 4 does not shame or
publicly ridicule defendant, nor does it require defendant to erect a sign, display, or formally and
publicly announce that he is a sex offender. Additionally, probation condition No. 4 will not
cause an adverse effect on others who may happen to reside with or intend to visit defendant, nor
does it label defendant’s person or property.
¶ 29 In People v. Johnson, 174 Ill. App. 3d 812, 813, 528 N.E.2d 1360, 1360 (1988),
the trial court ordered the defendant to place an advertisement in the local daily newspaper,
which contained her booking picture and an apology for driving under the influence of alcohol.
This court struck down that probation condition and cautioned against allowing trial courts to
impose unconventional conditions, which may have unknown consequences. Id. at 815.
¶ 30 Nothing is unconventional about probation condition No. 4. The Illinois
legislature authorized a geographic limitation in section 5-6-3(a)(8.6) of the Unified Code of
Corrections (Unified Code) (730 ILCS 5/5-6-3(a)(8.6) (West 2012)) to prevent sex offenders
from living in close proximity to each other. The purpose of this statute is to protect the public,
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to treat and rehabilitate sex offenders, and to prevent sex offenders from influencing or enabling
each other to commit sexual offenses. Because section 5-6-3(a)(8.6) prohibits defendant from
residing “at the same address, or in the same condominium unit or apartment unit or in the same
condominium complex or apartment complex, or with another person [defendant] knows or
reasonably should know is a convicted sex offender,” the addition of mobile home parks to
probation condition No. 4 is within the scope and intent of the statute.
¶ 31 For the reasons stated, we conclude that probation condition No. 4 was properly
and reasonably imposed.
¶ 32 b. Probation Condition No. 5
¶ 33 Probation condition No. 5 requires that defendant
“[n]ot access or use a social networking website as defined in Section 17-0.5 of
the Criminal Code of 2012. (730 ILCS 5/5-6-3(a)(8.9)).”
¶ 34 Under section 17-0.5, “Social networking website” is defined as follows:
“[A]n Internet website containing profile web pages of the members of the
website that include the names or nicknames of such members, photographs
placed on the profile web pages by such members, or any other personal or
personally identifying information about such members and links to other profile
web pages on social networking websites of friends or associates of such
members that can be accessed by other members or visitors to the website. A
social networking website provides members of or visitors to such website the
ability to leave messages or comments on the profile web page that are visible to
all or some visitors to the profile web page and may also include a form of
electronic mail for members of the social networking website.” 720 ILCS 5/17­
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0.5 (West 2012).
¶ 35 In People v. Crabtree, 2015 IL App (5th) 130155, ¶ 1, 37 N.E.3d 922, the
defendant was convicted of aggravated criminal sexual abuse of a minor who was under 13 years
old, and one of the defendant’s probation conditions prohibited him from accessing or using a
social networking website. On appeal, defendant argued that this condition was overly broad
because he did not use a computer to commit that offense. Id. ¶ 12.
¶ 36 The Fifth District concluded that the trial court did not abuse its discretion by
imposing this probation condition, explaining that “[a] condition of probation is permissible so
long as there is some connection between the condition and the underlying offense.” Id. ¶ 16.
The Fifth District further wrote that “although defendant’s crime did not include use of a
computer or a social networking website, it involved the sexual abuse of a young girl. Thus, the
conditions of probation appear reasonably related to the goals of deterrence, protection of the
public, and rehabilitation of defendant.” Id. ¶ 17. Additionally, “[g]iven the nature of the offense
of which defendant was convicted, we do not believe these mandatory conditions are
unreasonable.” Id. ¶ 18.
¶ 37 We agree with the Fifth District’s analysis and deem it pertinent to this case.
Although defendant’s criminal sexual abuse and aggravated criminal sexual abuse did not
include use of a computer or a social networking website, his offenses involved the sexual abuse
of a young girl. Probation condition No. 5 is permissible because there is a connection between
the condition and his sexual assault offenses—specifically, defendant could otherwise access
social networking sites often used by minors.
¶ 38 We further view probation condition No. 5 as imposed for “the protection of the
public” (People v. Goossens, 2015 IL 118347, ¶ 11, 39 N.E.3d 956), because it is reasonably
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related to (1) deterring defendant from sexually assaulting another minor ,and (2) protecting the
public by preventing him from (a) contacting anyone under the age of 18, and (b) accessing
social networking sites often used by minors.
¶ 39 For the reasons stated, we conclude that probation condition No. 5 was reasonably
and properly imposed.
¶ 40 c. Probation Condition Nos. 6 and 8
¶ 41 Probation condition No. 6 requires that defendant
“[n]ot knowingly use any computer scrub software on any computer that the
defendant uses. (730 ILCS 5/5-6-3(a)(11)).”
¶ 42 Probation condition No. 8 requires that defendant
“[n]ot access or use a computer or any other device with Internet capability
without the prior written approval of the probation officer; submit to periodic
unannounced examinations of defendant’s computer or any other device with
Internet capability by the probation officer, a law enforcement officer, or assigned
computer or information technology specialist, including the retrieval and copying
of all data from the computer or device and any internal or external peripherals
and removal of such information, equipment, or device to conduct a more
thorough inspection; submit to the installation on the offender’s computer or
device with Internet capability, at the offender’s expense, of one or more
hardware or software systems to monitor the Internet use; and submit to any other
appropriate restrictions concerning the defendant’s use of or access to a computer
or any other device with Internet capability imposed by the probation officer. (730
ILCS 5/5-6-3(a)(8.8) and (b)(18)).”
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¶ 43 Defendant points out that his offenses did not involve any use of computers or the
Internet and argues therefore that bans on various aspects of computer usage are not reasonable.
Defendant additionally contends that probation condition Nos. 6 and 8 (1) unreasonably bar him
from “engaging with a wide swath of protected speech” and (2) do not bear a reasonable
relationship to protecting the public and punishing and rehabilitating him.
¶ 44 Defendant also argues that sections 5-6-3(a)(8.8) and 5-6-3(b)(18) of the Unified
Code (730 ILCS 5/5-6-3(a)(8.8), (b)(18) (West 2016)), which grant a probationer Internet use
with the prior written approval of the probation officer, give the probation officer blanket
authority to deny or allow Internet use, “without providing any standards whatsoever on how to
decide what internet use is permissible.” As a result, defendant contends that a probation
officer’s unconstrained authority to deny him all Internet access without any statutory guidance
as to how the probation officer should exercise that authority is unreasonable and
unconstitutional.
¶ 45 We disagree with defendant. The Illinois legislature enacted sections 5-6-3(a)(8.8)
and 5-6-3(b)(18) (id.) to limit a sex offender’s access to a computer, the Internet, and computer
scrub software for the protection of the public. Goossens, 2015 IL 118347, ¶ 11. Probation
condition Nos. 6 and 8 protect the public, in particular minors, by (1) limiting defendant’s
computer and Internet access so that he cannot attempt to contact a minor, (2) preventing him
from using computer scrub software to hide any of his attempts to contact a minor, and (3)
preventing him from attempting to sexually abuse a minor.
¶ 46 “[W]hen deciding the propriety of a condition of probation imposed in a particular
case, whether explicitly statutory or not, the overriding concern is reasonableness.” J.W., 204 Ill.
2d at 78. Although defendant’s criminal sexual offenses did not involve use of a computer, the
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Internet, or computer scrub software, his offenses involved the sexual abuse of a minor.
Probation condition Nos. 6 and 8 are reasonable and permissible because a connection exists
between those conditions and his sexual assault offenses, given that the question is whether
defendant should have access to the Internet and social networking sites that minors often use.
¶ 47 Probation condition No. 6 places no restriction on defendant’s ability to engage in
protected speech. The purpose of probation condition No. 6 is to prevent defendant from using
computer scrub software to “delete information from the computer unit, the hard drive, or other
software, which would eliminate and prevent discovery of browser activity” and “which would
over-write files in a way so as to make previous computer activity, including but not limited to
website access, more difficult to discover.” 730 ILCS 5/3-1-2(c-5) (West 2010).
¶ 48 Probation condition No. 8 does not unreasonably restrict defendant’s ability to
communicate or engage in protected speech. Under probation condition No. 8, defendant may
still access or use a computer or any other device with Internet capability as long as he first
obtains the prior written approval of the probation officer.
¶ 49 We strongly disagree with defendant’s contention that a probation officer’s
unconstrained and guidance-less authority to deny or allow defendant Internet use is somehow
improper. One of the duties of a probation officer is
“[t]o take charge of and watch over all persons placed on probation under such
regulations and for such terms as may be prescribed by the court, and giving to each
probationer full instructions as to the terms of his release upon probation and requiring
from him such periodical reports as shall keep the officer informed as to his conduct.”
730 ILCS 110/12(5) (West 2016).
Probation officers are the eyes and ears of the court, and to make probation a meaningful
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sentence, they must have—and must exercise—vast discretion in their dealings with
probationers. Determining whether a probationer may have Internet access (and, if so, under
what circumstances and restrictions) is but merely one of the many judgments the courts expect
their probation officers to make when supervising the life and behavior of probationers.
¶ 50 For the reasons stated, we conclude that probation condition Nos. 6 and 8 were
reasonably and properly imposed.
¶ 51 d. Probation Condition No. 11
¶ 52 Probation condition No. 11 requires that defendant
“[n]ot have contact with, or attempt to have contact with, any person under the
age of 18, regardless of familial relationship, either in person, by third party, by
phone, by mail, in writing or electronically, or by internet communication in any
form, unless approved by the probation officer and treatment provider.”
¶ 53 Defendant argues that this probation condition is unreasonable and overly broad,
contending that (1) it is not related to his offenses (which occurred at home and did not involve
any communication), (2) it is not related to his rehabilitation, and (3) it exposes him to strict
liability for nonintentional communications. We disagree.
¶ 54 The Illinois Supreme Court has consistently held that “any additional condition
[of probation] not expressly authorized by statute ‘may be imposed as long as it is (1) reasonable
and (2) relates to (a) the nature of the offense or (b) the rehabilitation of the defendant as
determined by the trial court.’ ” Goossens, 2015 IL 118347, ¶ 13 (quoting Meyer, 176 Ill. 2d at
378). Because defendant’s offenses involved the sexual abuse of his younger sister, who was a
minor, probation condition No. 11 is reasonable to prohibit defendant from having contact with a
minor, unless first approved by the probation officer and treatment provider. The value to the
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public in imposing probation condition No. 11 is to prevent defendant from committing sexual
abuse against a minor and to protect minors, which is achieved by prohibiting defendant from
having contact or attempting to have contact with minors.
¶ 55 In People v. Cozad, 158 Ill. App. 3d 664, 670, 511 N.E.2d 211, 216 (1987), this
court wrote that one of the primary purposes of probation is “to protect the public from the type
of conduct that led to the placement of the defendant on probation.” In Meyer, the supreme court
cited our opinion in Cozad approvingly and wrote the following: “Protection of the public from
the type of conduct that led to a defendant’s conviction is one of the goals of probation.” Meyer,
176 Ill. 2d at 379. Protection of the public, in particular minors, by preventing defendant from
having contact with minors is one of the goals of defendant’s probation and is reasonable.
¶ 56 Further, we view probation condition No. 11 as relating to the nature of
defendant’s offenses, which involved the sexual abuse of his younger sister, who was a minor.
Thus, it is appropriate to prohibit defendant from having contact with a minor unless approved
by a probation officer and treatment provider. Probation condition 11 also relates to defendant’s
rehabilitation, in that his compliance with it will make difficult his committing further sexual
abuses against a minor.
¶ 57 For the reasons stated, we conclude that probation condition No. 11 was
reasonable and properly imposed.
¶ 58 e. Probation Condition No. 14
¶ 59 Probation condition No. 14 requires that defendant
“[n]ot purchase, view, or possess any pornographic material including but not
limited to magazines, videos, DVD’s, photographs, digital media, or any other
material depicting or describing persons in a state of undress or engaging in
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sexual activities; not access any such material through the Internet; not solicit a
prostitute or access any telephone numbers providing sexually stimulating
services; and not enter any adult bookstores, strip clubs, gentlemen’s clubs, or any
other establishment which provides sexually stimulating services or sells sexual
materials.”
¶ 60 Defendant argues that probation condition No. 14 is unreasonable and overly
broad because it is plainly unconstitutional under the first amendment and bans him from
“engaging with many of the creations of popular-culture entertainment and works of art that
humanity has ever produced.” Defendant also contends that probation condition No. 14 bans him
from watching many television shows and movies, reading many novels, or attending art
museums, among other things. We disagree.
¶ 61 We deem probation condition No. 14 to be a reasonable restriction to punish and
rehabilitate defendant due to his criminal sexual abuse and aggravated criminal sexual abuse
convictions. Defendant may still purchase, view, or possess any creations of popular-culture
entertainment and works of art as long as they are not pornographic and do not depict or describe
persons in a state of undress or engaging in sexual activities.
¶ 62 We reject defendant’s claim that the phrase “state of undress” in probation
condition 14 includes “a person wearing a swim suit, or pajamas, or just underwear, or no
shoes.” That claim is a gross misreading and misinterpretation of probation condition No. 14,
which prohibits defendant from viewing any pornographic material “depicting or describing
persons in a state of undress or engaging in sexual activities.”
¶ 63 “When assessing the reasonableness of a condition of probation it is appropriate
to consider whether the restriction is related to the nature of the offense or the rehabilitation of
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the probationer.” J.W., 204 Ill. 2d at 79. Because the nature of defendant’s sexual assault
offenses is sexual, restricting defendant’s access to pornographic material, which is sexually
stimulating, is reasonable. Probation condition No. 14 serves the purpose of probation, which is
to benefit society by restoring defendant “to useful citizenship, rather than allowing a defendant
to become a burden as an habitual offender.” Meyer, 176 Ill. 2d at 379.
¶ 64 For the reasons stated, we conclude that probation condition No. 14 was
reasonably and properly imposed.
¶ 65 2. Defendant’s Claim that the Probation Conditions
Imposed Upon Him Were Unconstitutional
¶ 66 As we noted earlier, this court should consider defendant’s claim that probation
conditions violated his constitutional rights only if we first conclude that the trial court did not
abuse its discretion by imposing the probation conditions at issue. Dustyn W., 2017 IL App (4th)
170103, ¶ 24. Because we have now so concluded, we will now address whether any of those
conditions violated defendant’s constitutional rights.
¶ 67 a. Defendant’s Constitutional Arguments
¶ 68 Defendant contends that although a trial court is generally given wide discretion
in determining the conditions of probation (People v. Harris, 238 Ill. App. 3d 575, 579, 606
N.E.2d 392, 395 (1992)), probationers still possess basic constitutional rights, with the result that
a court’s discretion is limited by constitutional safeguards and must be exercised in a reasonable
manner. J.W., 204 Ill. 2d at 77. Defendant further cites United States v. Lara, 815 F.3d 605, 609
(9th Cir. 2016), for the proposition that “there is a limit on the price the government may exact in
return for granting probation.”
¶ 69 Defendant places major reliance upon the recent decision of the United States
Supreme Court in Packingham v. North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017), in
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which the defendant, who was a registered sex offender, was convicted of accessing a
commercial social networking website. The defendant in that case had pleaded guilty to taking
indecent liberties with a child because, when he was 21 years old, he had sex with a 13-year-old
girl. He was required to register as a sex offender—“a status that can endure for 30 years or
more.” Id. at ___, 137 S. Ct. at 1734. As a registered sex offender, defendant was barred from
gaining access to commercial social networking websites. Nonetheless, after a traffic ticket
against him was dismissed, he logged onto Facebook and posted a statement pertaining to that
dismissal on his personal profile. Id. at ___, 137 S. Ct. at 1734.
¶ 70 The defendant appealed his conviction for accessing a commercial social website,
and the Supreme Court reversed, concluding that the statute in question “enacts a prohibition
unprecedented in the scope of [f]irst [a]mendment speech it burdens.” Id. at ___, 137 S. Ct. at
1737. The Supreme Court concluded as follows:
“In sum, to foreclose access to social media altogether is to prevent the
user from engaging in the legitimate exercise of [f]irst [a]mendment rights. It is
unsettling to suggest that only a limited set of websites can be used even by
persons who have completed their sentences. Even convicted criminals—and in
some instances especially convicted criminals—might receive legitimate benefits
from these means for access to the world of ideas, in particular if they seek to
reform and to pursue lawful and rewarding lives.” (Emphases added.) Id. at ___,
137 S. Ct. at 1737.
¶ 71 Justice Alito, with whom Chief Justice Roberts and Justice Thomas joined, wrote
a special concurrence in which he noted that the statute at issue
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“has a staggering reach. It makes it a felony for a registered sex offender simply
to visit a vast array of websites, including many that appear to provide no realistic
opportunity for communications that could facilitate the abuse of children.
Because of the law’s extraordinary breadth, I agree with the Court that it violates
the Free Speech Clause of the First Amendment.” Id. at ___, 137 S. Ct. at 1738
(Alito, J., specially concurring, joined by Roberts, C.J. and Thomas, J.).
¶ 72 Defendant appropriately concedes that the difference between his case and
Packingham is that he is a probationer, while Packingham dealt with a person who had the status
of a registered sex offender. However, defendant argues that this is a distinction without a
difference, and that this court should hold some of the probation conditions imposed upon
defendant unconstitutional under the first amendment. Defendant acknowledges that he has not
yet completed his sentence of probation and that probationers “retain somewhat diminished
constitutional rights,” in that “a court granting probation may impose reasonable conditions that
deprive the offender of some freedoms enjoyed by law-abiding citizens.” United States v.
Knights, 534 U.S. 112, 119 (2001).
¶ 73 Defendant also concedes that the Fifth District in Crabtree has held that probation
conditions limiting a probationer’s use of the Internet was not improper, writing that
“[d]efendant fails to identify and we fail to find any protected constitutional right of a person to
use a computer, the Internet, or a social networking website.” Crabtree, 2015 IL App (5th)
130155, ¶ 17. However, defendant asserts that this “position is untenable following
Packingham,” and this court should now reach a result different than that reached by the Fifth
District in Crabtree.
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¶ 74 In support of this argument, defendant cites decisions of federal courts of appeal
that deemed restrictions imposed upon convicted defendants that barred them from Internet
usage improper, and defendant contends these decisions should guide this court’s analysis in the
present case. For instance, in United States v. Goodwin, 717 F.3d 511, 513-14 (7th Cir. 2013),
the court found it was improper to require the defendant, who was convicted of failing to register
as a sex offender and received a life term of supervised release, to install software and to permit
his computer to be examined because the computer played no role either in the original offense
or in the defendant’s failure to register as a sex offender. In United States v. Riley, 576 F.3d
1046, 1048-49 (9th Cir. 2009), the court found that a special condition of the defendant’s
supervised release (he had been convicted of possessing child pornography) that he not use a
computer to access any information relating to minors was overly broad and imposed a far
greater deprivation of liberty than reasonably necessary to achieve legitimate goals of supervised
release. Similarly, in United States v. Perazza-Mercado, 553 F.3d 65 (1st Cir. 2009), the
defendant pleaded guilty to a sex offense involving a young girl in his care and challenged a
special condition of his supervised release that banned him from accessing the Internet in his
home. The appellate court concluded that the ban would not protect the public or deter crime
because he had never used the internet improperly and it would hinder his chance at
rehabilitation.
¶ 75 Although defendant cites these three federal court of appeal cases in support of
his claim that the probation conditions in question are unconstitutional because they were so
overly broad they denied him due process, we note that none of the decisions in those cases was
based on a finding that the conditions the federal trial courts imposed were unconstitutional.
Instead, the appellate courts concluded that the conditions in question were not reasonably
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imposed. See Goodwin, 717 F.3d at 524; Riley, 576 F.3d at 1049; Perazza-Mercado, 553 F.3d at
78.
¶ 76 b. The State’s Response to Defendant’s Constitutional Claims
¶ 77 In response to defendant’s constitutional claims, the State points out that the
Supreme Court in Packingham struck down a North Carolina statute that banned registered sex
offenders from accessing commercial social networking cites, but that is completely silent
regarding whether its holding applies to probationers. The State asserts this is significant because
“a court granting probation may impose reasonable conditions that deprive the offender of some
freedoms enjoyed by law-abiding citizens.” Knights, 534 U.S. at 119. Further, “[I]t is always true
of probationers *** that they do not enjoy ‘the absolute liberty to which every citizen is entitled,
but only *** conditional liberty properly dependent on observance of special [probation]
restrictions.’ ” Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (quoting Morrissey v. Brewer, 408
U.S. 471, 480 (1972)).
¶ 78 Based upon this authority, the State asserts the following: “Clearly, as a result of a
probationers’ conditional liberty—unlike individuals who have completed their sentence—
Packingham is distinguishable from this case.” The State further maintains that the conditional
liberty that probationers are granted is exactly what allows probationers to be barred from those
same websites. “Notably, unlike the convicted sex offenders in Packingham[,] who had served
their sentences, here, defendant’s probationary period was not yet completed and was only for a
predetermined[,] definite period of time.”
¶ 79 In support of its position, the State cites the Illinois Supreme Court’s decision in
J.W., in which that court wrote that “[e]ven fundamental constitutional rights are not absolute
and may be reasonably restricted in the public interest,” further noting that “a condition of
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probation which impinges on fundamental constitutional rights is not automatically deemed
invalid.” J.W., 204 Ill. 2d at 78.
¶ 80 c. This Court Concludes the Probation Conditions Are Constitutional
¶ 81 Without repeating the State’s arguments, we agree that the probation conditions in
question are constitutional for essentially the reasons the State provides. In so concluding, we
note that this court in In re Dustyn W. recently addressed a challenge based on constitutional
grounds to a probation condition brought by a juvenile who had been found delinquent and
sentenced to probation. The respondent in that case argued on appeal that a geographical
limitation the trial court imposed as a probationary condition was constitutionally overbroad, and
this court rejected that challenge. Dustyn W., 2017 IL App (4th) 170103, ¶ 29. We explained our
conclusion, as follows:
“The condition is narrowly drawn because it contains exemptions for legitimate
access to the University campus and does not categorically ban respondent. The
ban does not apply when either (1) respondent is in the presence of his parent,
guardian, or custodian or (2) respondent has received advance permission from
his probation officer. Those two exceptions distinguish the present case from
J.W., where the prohibition on the respondent’s travel *** was absolute.” Id.
¶ 82 Similarly, the probation conditions in this case also contain provisions whereby
the defendant’s probation officer temporarily could lift or modify a condition if the probation
officer believed doing so would be appropriate, given both defendant’s need to have that
condition temporarily lifted or modified, as well as the need to protect the public, particularly
children.
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¶ 83 Thus, this case is different from Packingham in two important respects: (1)
defendant’s access to social media is not foreclosed altogether, as was the case in Packingham,
and (2) defendant has not yet completed his sentence and his probation conditions cannot
“endure for 30 years or more.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1734.
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the trial court’s judgment. The trial court’s
imposition of additional probation conditions on remand was proper and imposition of probation
condition Nos. 4, 5, 6, 8, 11, and 14 was reasonable and proper.
¶ 86 Affirmed.
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