People v. Galley

FILED
2021 IL App (4th) 180142 January 6, 2021
Carla Bender
NO. 4-18-0142 4th District Appellate
Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
JONATHAN R. GALLEY, ) No. 17CF14
Defendant-Appellant. )
) Honorable
) Thomas E. Griffith Jr.,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Presiding Justice Knecht concurred in the judgment and opinion.
Justice Turner dissented, with opinion.
OPINION
¶1 In January 2017, the State charged defendant, Jonathan R. Galley, with four counts
of predatory criminal sexual assault of a child, Class X felonies (720 ILCS 5/11-1.40(a)(1), (b)(1)
(West 2016)), and six counts of aggravated criminal sexual abuse, Class 2 felonies (720 ILCS
5/11-1.60(c)(1)(i), (g) (West 2016)). Following a bench trial, defendant was found guilty on 6 of
the 10 counts: 4 counts of predatory criminal sexual assault of a child less than 13 years old and 2
counts of aggravated criminal sexual abuse of a victim less than 13 years old. The trial court
sentenced defendant to 37 years in the Illinois Department of Corrections (DOC) followed by an
indeterminate period (3 years to life) of mandatory supervised release (MSR), and it informed
defendant he must register as a sex offender. Defendant’s MSR conditions included a total
prohibition on accessing social networking websites (730 ILCS 5/3-3-7(a)(7.12) (West 2016)).
¶2 On appeal, defendant argues the Illinois Supreme Court’s decision in People v.
Morger, 2019 IL 123643, __ N.E.3d __ , renders “the blanket statutory prohibition on use of social
media as [an MSR] condition *** unconstitutional on its face under the First Amendment.” We
agree.
¶3 I. BACKGROUND
¶4 In January 2017, the State charged defendant by way of a 10-count information
alleging he sexually abused his girlfriend’s 11-year-old granddaughter multiple times between
October 1 and December 19, 2016. The State charged defendant with four counts of predatory
criminal sexual assault of a child under the age of 13 (720 ILCS 5/11-1.40(a)(1) (West 2016)) and
six counts of aggravated criminal sexual abuse of a child under the age of 13 (720 ILCS
5/11-1.60(c)(1)(i) (West 2016)). The matter proceeded to a bench trial, where the trial court found
defendant guilty and entered judgment on the four predatory sexual assault of a child counts and
two of the aggravated criminal sexual abuse of a child counts. The court sentenced defendant to
37 years in DOC followed by MSR for an indeterminate period ranging from 3 years to life.
¶5 Defendant’s MSR terms included the following mandatory provision from
subsection (a)(7.12) of the Unified Code of Corrections:
“The conditions of parole or mandatory supervised release shall be
such as the Prisoner Review Board deems necessary to assist the
subject in leading a law-abiding life. The conditions of every parole
and mandatory supervised release are that the subject:
***
(7.12) if convicted of a sex offense as defined
in the Sex Offender Registration Act committed on
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or after January 1, 2010 (the effective date of Public
Act 96-262), refrain from accessing or using a social
networking website as defined in Section 17-0.5 of
the Criminal Code of 2012[.]” (Emphasis added.)
730 ILCS 5/3-3-7(a)(7.12) (West 2016).
Illinois law further provides:
“ ‘Social networking website’ means an 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 5/17-0.5 (West 2016).
¶6 Defendant filed a motion to reconsider, alleging two trial errors and an excessive
sentence. The trial court denied the motion following a hearing.
¶7 This appeal followed.
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¶8 II. ANALYSIS
¶9 Relying upon the Illinois Supreme Court’s decision in Morger, defendant
challenges as overbroad and facially unconstitutional one statutory MSR condition—prohibiting
accessing or using social networking websites. The State concedes the argument and echoes
defendant’s claim that subsection (a)(7.12) of the Unified Code of Corrections (730 ILCS
5/3-3-7(a)(7.12) (West 2016)) is unconstitutional on its face by overburdening first amendment
rights. Heeding the parties’ arguments and, more importantly, following guidance from our
supreme court, we agree the statute is unconstitutional.
¶ 10 A challenge to the constitutionality of a statute presents a legal question we review
de novo. People v. Minnis, 2016 IL 119563, ¶ 21, 67 N.E.3d 272. Since we presume statutes are
constitutional, the “party challenging the constitutionality of a statute [bears] the burden of
establishing its invalidity.” In re J.W., 204 Ill. 2d 50, 62, 787 N.E.2d 747, 754 (2003).
¶ 11 “First amendment protections for speech extend fully to communications made
through the medium of the Internet,” meaning laws curtailing Internet speech must pass
constitutional muster. Minnis, 2016 IL 119563, ¶ 23. Here, we consider a statute prohibiting a
person on MSR from accessing or using social networking websites, which defendant challenges
as overbroad and facially unconstitutional. “According to [the] First Amendment overbreadth
doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech.” United
States v. Williams, 553 U.S. 285, 292 (2008). Specifically, “a law may be invalidated as overbroad
only if a substantial number of its applications to protected speech are unconstitutional, judged in
relation to the statute’s plainly legitimate sweep.” Minnis, 2016 IL 119563, ¶ 24.
¶ 12 Besides being overbroad, a statute imposing a content-neutral restriction on Internet
speech can be unconstitutional if it fails intermediate scrutiny. A restriction on speech is
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content-neutral if it limits speech regardless of what the speech is about, i.e., the ideas or views
expressed. See Minnis, 2016 IL 119563, ¶ 33. To withstand intermediate scrutiny, the statute’s
content-neutral restriction on speech must clear two hurdles:
“(1) [it] must serve or advance a substantial governmental interest
unrelated to the suppression of free speech and (2) [it] must not
burden substantially more speech than necessary to further that
interest—or in other words, it must be narrowly tailored to serve that
interest without unnecessarily interfering with first amendment
freedoms.” Minnis, 2016 IL 119563, ¶ 36.
The parties direct our attention to Morger, believing first it provides the template for our analysis
and, second, it directs the outcome of this case.
¶ 13 A. People v. Morger
¶ 14 In Morger, our supreme court recently applied these two tests, overbreadth and
intermediate scrutiny, when evaluating facial challenges to a statutory probation provision that is
nearly identical to this statutory MSR term. There, the court considered the following statute:
“The conditions of probation and of conditional discharge shall be
that the person:
***
(8.9) if convicted of a sex offense as defined
in the Sex Offender Registration Act committed on
or after January 1, 2010 (the effective date of Public
Act 96-262), refrain from accessing or using a social
networking website as defined in Section 17-0.5 of
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the Criminal Code of 2012[.]” (Emphasis added.)
730 ILCS 5/5-6-3(a)(8.9) (West 2016).
As one may note, this italicized language mirrors that of the statute at issue in this case.
¶ 15 As part of its carefully reasoned analysis, the Morger court concluded the above
statute “ ‘is part of a statutory scheme intended to prevent sex offenses against children and to
protect the public,’ ” suggesting the statute served a substantial governmental interest or had a
plainly legitimate sweep. Morger, 2019 IL 123643, ¶ 45 (quoting Minnis, 2016 IL 119563, ¶ 34).
Nevertheless, the court found the above-cited statutory probation condition “overbroad and
facially unconstitutional” because “in its current form” the statute “ ‘prohibits constitutionally
protected activity as well as activity that may be prohibited without offending constitutional
rights.’ ” Morger, 2019 IL 123643, ¶ 58 (quoting People v. Relerford, 2017 IL 121094, ¶ 50, 104
N.E.3d 341). As part of the intermediate-scrutiny analysis, the court found no narrow tailoring,
explaining the probation condition “unnecessarily sweeps within its purview those who never used
the Internet—much less social media—to commit their offenses and who show no propensity to
do so, as well as those whose Internet activities can be supervised and monitored by less restrictive
means.” Morger, 2019 IL 123643, ¶ 58. Concerning overbreadth, the court similarly concluded:
“ ‘[A] substantial number of its applications are unconstitutional, judged in relation to the statute’s
legitimate sweep’ [citation], which is protection of the public.” (Emphasis in original.) Morger,
2019 IL 123643, ¶ 58 (quoting People v. Clark, 2014 IL 115776, ¶ 11, 6 N.E.3d 154).
¶ 16 Defendant argues: “Morger direct[s] the result in this case: a ban on accessing
social media for the duration of MSR—which can last as long as natural life—is just as
unconstitutional as a ban for the duration of a sex offender registration or probation.” The State
likewise maintains: “Our supreme court’s holding in People v. Morger, reviewing the same
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condition in an analogous constitutional context, directly answers the question of whether the MSR
condition banning defendant from accessing ‘social media websites’ is unconstitutionally
overbroad and not narrowly tailored.” We certainly appreciate the supreme court’s comprehensive
analysis, and of course, we are bound by its decision when it controls a case under our review. See
Doyle v. Hood, 2018 IL App (2d) 171041, ¶ 35, 112 N.E.3d 1040. But the Morger court made
clear its opinion applied to only the specific probation provision found at “subsection (a)(8.9) of
section 5-6-3 of the Code of Corrections.” Morger, 2019 IL 123643, ¶ 59. The court declined to
speak in broad or sweeping terms. So even though Morger and this case consider nearly identical
statutory provisions—each mandating a person, “if convicted of a sex offense as defined in the
Sex Offender Registration Act committed on or after January 1, 2010 ***, refrain from accessing
or using 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), 3-3-7(a)(7.12) (West 2016))—we cannot mechanically apply Morger’s
holding to this MSR provision. Instead, we must plumb Morger’s rationale for signs of whether
these two statutory bans on social media should meet the same fate.
¶ 17 B. Morger and Packingham Emphasize the Importance of Internet Speech
¶ 18 Digging deeper into Morger, we find a heavy emphasis on the reformative and
rehabilitative potential for a probationer using social networking websites. In arriving at its
holding, our supreme court parsed the United States Supreme Court’s opinion in Packingham v.
North Carolina, 582 U.S. ___, 137 S. Ct. 1730 (2017), observing “the Supreme Court repeatedly
emphasized the importance of social media in modern life.” Morger, 2019 IL 123643, ¶ 28.
¶ 19 In Packingham, the Supreme Court considered a law “mak[ing] it a felony for a
registered sex offender ‘to access a commercial social networking Web site where the sex offender
knows that the site permits minor children to become members or to create or maintain personal
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Web pages.’ ” Packingham, 582 U.S. at ___, 137 S. Ct. at 1733 (quoting N.C. Gen. Stat. Ann.
§ 14-202.5(a), (e) (2015)). The Court noted the Internet, and social media specifically, represents
a twenty-first century quintessential public forum where people “engage in a wide array of
protected First Amendment activity on topics ‘as diverse as human thought.’ ” Packingham, 582
U.S. at ___, 137 S. Ct. at 1735-36. The Packingham Court concluded the challenged law failed
intermediate scrutiny because it was not narrowly tailored, even describing the content-neutral
statute as “a prohibition unprecedented in the scope of First Amendment speech it burdens.”
Packingham, 582 U.S. at ___, 137 S. Ct. at 1737-38. The Court explained: “to foreclose access to
social media altogether is to prevent the user from engaging in the legitimate exercise of First
Amendment rights.” Packingham, 582 U.S. at ___, 137 S. Ct. at 1737.
¶ 20 Although Packingham did not address the exact issue here—it considered social
media restrictions for sex offenders who completed their sentences, not social media restrictions
for sex offenders still serving sentences on probation—our supreme court relied heavily upon it in
Morger. For example, our supreme court twice quoted the following paragraph from Packingham:
“ ‘In sum, to foreclose access to social media altogether is to
prevent the user from engaging in the legitimate exercise of First
Amendment 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.’ ”
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(Emphasis added.) Morger, 2019 IL 123643, ¶¶ 33, (quoting
Packingham, 582 U.S. at ___, 137 S. Ct. at 1737).
Our supreme court not only judged this passage “relevant in this context” of probation (Morger,
2019 IL 123643, ¶ 51) but said it “carrie[d] momentous weight in our resolution of this case.”
(Emphasis added.) Morger, 2019 IL 123643, ¶ 34. Signaling its importance, our supreme court
used this passage to distinguish Morger from other cases that had either considered this issue or
applied Packingham. For example, some federal circuit courts of appeal tried limiting the reach of
Packingham to those no longer on probation or parole by emphasizing the phrase “even by persons
who have completed their sentences” (Packingham, 582 U.S. at ___, 137 S. Ct. at 1737), but the
Morger court did not follow that path. Rather, believing the federal courts unduly ignored part of
the above passage, Morger went the opposite direction and extended Packingham’s reach to
probationers. The supreme court determined the reasoning in the above passage, especially the
italicized portion, applied to the facts and issue before it. Specifically, the court believed
probationers, like Morger, “who are still serving their sentences are also ‘convicted criminals’
[and] ‘might receive legitimate benefits’ from social media as ‘they seek to reform and to pursue
lawful and rewarding lives.’ ” Morger, 2019 IL 123643, ¶ 53 (quoting Packingham, 582 U.S. at
___, 137 S. Ct. at 1737). Since probationers could use social media for a wide variety of legitimate
purposes like communicating with employers or family or the community at large as part of
reformation and rehabilitation, the supreme court held the statute overbroad and facially
unconstitutional because the blanket ban on accessing or using social networking websites went
too far by prohibiting a substantial amount of constitutionally protected speech as well as
prohibiting these probationers from using social media for ill. Morger, 2019 IL 123643, ¶ 58.
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¶ 21 Morger’s extension of Packingham to probationers is telling. Unlike those federal
courts that focused on the defendant’s status, our supreme court focused more on the benefits of
social media to convicted criminals—including those still serving their sentences. We interpret
this as the Illinois Supreme Court emphasizing the reformative and rehabilitative aspects of social
media over a defendant’s status. We see no reason why that emphasis would not carry over to
persons on MSR, who (like probationers) are also trying to reintegrate back into society with
conditional liberty. See Round v. Lamb, 2017 IL 122271, ¶ 21, 90 N.E.3d 432.
¶ 22 Another important feature in Morger’s rationale comes from its review of federal
cases. On the road to finding the statutory probation condition unconstitutional, our supreme court
analyzed several federal cases that found conditions of supervised release regulating defendants’
Internet use violated the first amendment. Morger, 2019 IL 123643, ¶¶ 36-38, 40-42 (discussing
federal court of appeals decisions). The court acknowledged the federal cases differed from the
Morger case because they considered supervised release, not probation; however, the court opined
those federal cases “deal with the same concerns that we consider relevant” here. Morger, 2019 IL
123643, ¶ 36. As we read it, we do not see anywhere in the discussion where the supreme court
noted if or how the context of supervised release, as opposed to probation, affected its analysis or
outcome. At one point, the court referenced “supervised release or probation” when discussing the
potential reach of Packingham and other cases. Morger, 2019 IL 123643, ¶ 39. The upshot for our
discussion is that, even though the Morger court limited its holding to the one statutory probation
condition (subsection (a)(8.9) of section 5-6-3 of the Unified Code of Corrections), its analysis
and reasoning drew heavily from cases considering supervised release provisions. Although that
approach resonates here, we are obligated to look closely at MSR and probation to ascertain
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whether the two punishments differ enough to allow the State to impose blanket social networking
website bans on persons on MSR without offending the first amendment.
¶ 23 C. Probation and MSR
¶ 24 Probation and MSR represent two different points on “the ‘continuum’ of
state-imposed punishments,” with MSR sitting closer to imprisonment on that scale. People v.
Wilson, 228 Ill. 2d 35, 43-44, 885 N.E.2d 1033, 1039 (2008) (quoting Samson v. California, 547
U.S. 843, 850 (2006)). For instance, Illinois’s Unified Code of Corrections provides that felony
sentences of imprisonment in DOC must include an MSR term (730 ILCS 5/5-8-1(d) (West 2016))
and, furthermore, “a prisoner on [MSR] remains in” DOC’s custody during that term (Newsome v.
Hughes, 131 Ill. App. 3d 872, 875, 476 N.E.2d 478, 481 (1985)). Probation, by contrast, represents
a discretionary “ ‘mild and ambulatory’ punishment” for offenders who “do[ ] not present a threat
to the safety and security of a community.” People v. Moss, 217 Ill. 2d 511, 522, 842 N.E.2d 699,
707 (2005). Given that Illinois law requires MSR but not probation, it is plain “[o]ur sentencing
scheme thus contemplates that an offender on MSR presents a greater threat to the public than a
probationer.” Moss, 217 Ill. 2d at 522.
¶ 25 Although probation and MSR occupy two different points on the punishment
spectrum, “[p]robationers and persons on MSR are similarly situated in the broad sense that both
enjoy conditional liberty.” Moss, 217 Ill. 2d at 522. They are granted conditional liberty for
purposes of rehabilitating past criminal behavior while reintegrating into society as law-abiding
citizens. See United States v. Knights, 534 U.S. 112, 120-21 (2001) (stating a defendant who
“successfully complete[s] probation [can] be integrated back into the community”); Lamb, 2017
IL 122271, ¶ 21 (“Mandatory supervised release is designed to facilitate reintegration back into
society ***.”). Whether it is this shared purpose or some other reason, their conditional liberty
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often results in probationers and persons on MSR having similar or even equal status vis-à-vis
constitutional protections. For example, our supreme court “has stated generally that probationers
and parolees share the same status for fourth amendment purposes.” Moss, 217 Ill. 2d at 521-22.
The First District, without deciding whether the statutes passed constitutional muster, previously
recognized probationers and persons on MSR share a similar status for second amendment
purposes. People v. Garvin, 2013 IL App (1st) 113095, ¶¶ 20-21, 994 N.E.2d 1076. Both
probationers and persons on MSR are subject to many of the same restrictions on possessing
firearms and ammunition. See 730 ILCS 5/5-6-3(a)(3) (West 2016) (mandating that probationers
“refrain from possessing a firearm or other dangerous weapon where the offense is a felony or, if
a misdemeanor, the offense involved the intentional or knowing infliction of bodily harm or threat
of bodily harm”); 730 ILCS 5/5-6-3(a)(3) (West 2016) (mandating that parolees or persons on
MSR “refrain from possessing a firearm or other dangerous weapon”). What’s more, both
probationers and persons on MSR have similar (if not coextensive) due process rights when
charged with violating terms of their release or probation. See People v. Crawford, 85 Ill. App. 3d
366, 367, 406 N.E.2d 861, 862 (1980). Coupling this analysis with that of the supreme court in
Morger, we come to the inescapable conclusion probationers and persons on MSR share the same
status for purposes of this particular first amendment issue.
¶ 26 D. Overbreadth and Intermediate Scrutiny
¶ 27 Finding the statutory probation condition overbroad and facially unconstitutional,
the Morger court held a blanket restriction on accessing or using social networking websites
violated a probationer’s first amendment rights. Since we are faced with a nearly identical rendition
of the probation provision considered in Morger, we follow the Illinois Supreme Court’s reasoning
and come to the same conclusion—subsection (a)(7.12) of section 3-3-7 of the Unified Code of
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Corrections is overbroad and facially unconstitutional. Concerning overbreadth: by completely
prohibiting access or use of social networking websites, twenty-first century quintessential fora,
the statute “ ‘prohibits constitutionally protected activity as well as activity that may be prohibited
without offending constitutional rights.’ ” Morger, 2019 IL 123643, ¶ 58 (quoting Relerford, 2017
IL 121094, ¶ 50). The statutory prohibition applies to a sex offender on MSR, even if he or she did
not use a social networking website in committing the underlying offense. It prevents a person on
MSR from accessing or using social media, which “offers ‘relatively unlimited, low-cost capacity
for communication of all kinds.’ ” Packingham, 582 U.S. at ___, 137 S. Ct. at 1732. Consequently,
we deem the statutory MSR provision overbroad because “ ‘[a] substantial number of [the
statute’s] applications are unconstitutional, judged in relation to [its] legitimate sweep.’ ” Morger,
2019 IL 123643, ¶ 58 (quoting Clark, 2014 IL 115776, ¶ 11).
¶ 28 For similar reasons, the statutory MSR provision fails intermediate scrutiny as well.
The statute undoubtedly serves a substantial governmental interest—namely, foreclosing sex
offenders on MSR from identifying or contacting victims through social networking websites. But
the statutory MSR condition is not narrowly tailored. By imposing a blanket ban on all access and
use of social media, now probably the most commonly used forum for gathering information and
communicating ideas, even when social media played no part in the crime, this statute
“unnecessarily sweeps within its purview those who never used the Internet—much less social
media—to commit their offenses and who show no propensity to do so, as well as those whose
Internet activities can be supervised and monitored by less restrictive means.” Morger, 2019 IL
123643, ¶ 58. Just as the supreme court noted in Morger for probationers, persons on MSR may
still be subject to more specific limitations placed on their Internet access or use, like preliminary
approval from the parole officer, unannounced examinations of Internet use, or installing hardware
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to monitor Internet use, all of which would serve a legitimate public interest without violating a
person’s first amendment rights.
¶ 29 III. CONCLUSION
¶ 30 For the reasons stated, we find subsection (a)(7.12) of section 3-3-7 of the Unified
Code of Corrections (730 ILCS 5/3-3-7(a)(7.12) (West 2016)) overbroad and facially
unconstitutional. Consequently, we reverse, in part, the trial court’s judgment and vacate the MSR
provision prohibiting defendant from accessing or using social networking websites. We otherwise
affirm the trial court’s judgment as to issues not before us.
¶ 31 Affirmed in part and vacated in part.
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JUSTICE TURNER, dissenting.:
¶ 33 I respectfully dissent. The appeal in this case should be dismissed because the sole
issue raised on appeal is not justiciable.
¶ 34 A basic tenet of justiciability provides the following:
“ ‘[r]eviewing courts will not decide moot or abstract questions or
render advisory opinions. Courts of review ordinarily will not
consider issues where they are not essential to the disposition of the
cause or where the result will not be affected regardless of how the
issues are decided.’ ” People ex rel. Sklodowski v. State, 162 Ill. 2d
117, 130, 642 N.E.2d 1180, 1185 (1994) (quoting Barth v. Reagan,
139 Ill. 2d 399, 419, 564 N.E.2d 1196, 1205 (1990)).
¶ 35 On appeal, defendant only challenges the constitutionality of section 3-3-7(a)(7.12)
of the Unified Code of Corrections (730 ILCS 5/3-3-7(a)(7.12) (West 2016)).
¶ 36 Section 3-3-7 is contained in chapter three of article three of the Unified Code of
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Corrections (730 ILCS 5/ch. III, art. III (West 2016)). Article 3 of the Unified Code of Corrections
(730 ILCS 5/art. III (West 2016)) establishes the prisoner review board and grants it broad
authority over the administration of MSR. People v. McCurry, 2011 IL App (1st) 093411, ¶ 18,
961 N.E.2d 900. Specifically, for those serving indeterminate supervised release terms pursuant to
section 5-8-1(d)(4) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)(4) (West 2016)), the
prisoner review board has the authority to decide the conditions of MSR and the time of discharge
from MSR. McCurry, 2011 IL App (1st) 093411, ¶ 18. The actual imposition of the MSR term is
a separate matter that is addressed in chapter five of the Unified Code of Corrections, which
pertains to sentencing. MSR terms are mandated by the legislature, and the circuit courts are
required to impose them. McCurry, 2011 IL App (1st) 093411, ¶ 26. Accordingly, section 3-3-7 is
directed at the prisoner review board and not the circuit court or its sentencing judgment. Section
3-3-7 directs the prisoner review board to impose certain conditions on a defendant when he or she
is released onto MSR, including the one at issue in this appeal. 730 ILCS 5/3-3-7(a)(7.12) (West
2016).
¶ 37 I do not dispute the prisoner review board would have to impose the MSR condition
contained in section 3-3-7(a)(7.12) on defendant if he was released from prison on MSR in the
near future. However, section 3-3-7(a)(7.12) is not a current condition imposed on defendant while
he is in DOC, and defendant is not expected to be released on MSR until September 11, 2046,
more than 25 years from now (see Inmate Search, Illinois Department of Corrections,
http://www2.illinois.gov/idoc/Offender/Pages/InmateSearch.aspx (last visited Dec. 31, 2020)
[https://perma.cc/CJU6-WP5B]). As such, defendant is not close to receiving his MSR conditions.
See 730 ILCS 5/3-3-7(c) (West 2016) (requiring defendants to receive in writing the conditions
under which the MSR terms must be served prior to his or her release onto MSR). The chance of
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section 3-3-7(a)(7.12) being in existence in its current form when defendant is released onto MSR
in more than 25 years is basically zero. I take judicial notice of the fact the prisoner review board
has already modified its own mandatory supervised release/parole condition definitions in light of
Morger. See Country Companies v. Universal Underwriters Insurance Co., 343 Ill. App. 3d 224,
229, 796 N.E.2d 639, 643 (2003) (noting the reviewing court can take judicial notice of public
records regardless of whether such records were before the trial court).
¶ 38 Given the virtual impossibility the prisoner review board will ever impose the MSR
condition contained in section 3-3-7(a)(7.12) of the Unified Code of Corrections on defendant,
finding the statute unconstitutional does not have any effect on defendant and is an abstract
question in this case. As such, defendant’s sole argument lacks justiciability, and the appeal should
be dismissed.
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No. 4-18-0142
Cite as: People v. Galley, 2020 IL App (4th) 180142Decision Under Review: Appeal from the Circuit Court of Macon County, No. 17-CF-14;
the Hon. Thomas E. Griffith Jr., Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David
for J. Robinson, and James Ryan Williams, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
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