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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