People v. Pepitone

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Appellate Court Date: 2020.11.17
10:21:56 -06'00'

People v. Pepitone, 2020 IL App (3d) 140627-B

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption MARC A. PEPITONE, Defendant-Appellant.

District & No. Third District
No. 3-14-0627

Filed June 26, 2020

Decision Under Appeal from the Circuit Court of Will County, No. 13-CM-844; the
Review Hon. Carmen Goodman, Judge, presiding.

Judgment Affirmed.

Counsel on Katherine M. Strohl, of Ottawa, for appellant.
Appeal
James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, David
J. Robinson, and Mark A. Austill, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Carter and Holdridge concurred in the judgment and opinion.
 OPINION

¶1 The defendant, Marc A. Pepitone, was convicted under the Criminal Code of 2012 (Code)
of being a child sex offender in a public park (720 ILCS 5/11-9.4-1(b) (West 2012)) and was
sentenced to 24 months of conditional discharge, 100 hours of public service, and $400 in fines
and costs. In his direct appeal, this court ruled that section 11-9.4-1(b) was facially
unconstitutional. People v. Pepitone, 2017 IL App (3d) 140627, ¶ 24 (Pepitone I). Our supreme
court reversed that decision and remanded for consideration of Pepitone’s argument that
section 11-9.4-1(b) violates the ex post facto clauses of the United States and Illinois
Constitutions because his prior conviction occurred before section 11-9.4-1(b) took effect,
which we did not address in Pepitone I. People v. Pepitone, 2018 IL 122034, ¶¶ 31-32
(Pepitone II). We hold that section 11-9.4-1(b) does not violate the ex post facto clauses.

¶2 FACTS
¶3 The facts of this case have been set out in Pepitone I and Pepitone II. We repeat only those
facts necessary for disposition of Pepitone’s ex post facto argument.
¶4 In 2013, a Bolingbrook police officer spotted a van parked across three parking spots in
Indian Boundary Park. The van belonged to Pepitone, who had been convicted of predatory
criminal sexual assault of a child in 1999. Pepitone, who had been walking his dog in the park,
was arrested for being a child sex offender in a public park (720 ILCS 5/11-9.4-1(b) (West
2012)). He was later convicted and sentenced, inter alia, to 24 months of conditional discharge
and 100 hours of community service.
¶5 In Pepitone I, we held that section 11-9.4-1(b) was facially unconstitutional because it was
not reasonably related to protecting the public, especially children, from child sex offenders
and sexual predators. Pepitone I, 2017 IL App (3d) 140627, ¶ 24. We did not address
Pepitone’s argument that section 11-9.4-1(b) violated the ex post facto clauses. Id. ¶ 25.
¶6 In Pepitone II, our supreme court ruled that section 11-9.4-1(b) was in fact rationally
related to a legitimate government interest, thereby reversing our decision. Pepitone II, 2018
IL 122034, ¶ 31. The supreme court remanded the case for us to consider Pepitone’s
ex post facto argument. Id. ¶ 32. We ordered the parties to compile supplemental briefs on the
issue, and we now address that issue pursuant to the supreme court’s directive.

¶7 ANALYSIS
¶8 Pepitone argues that section 11-9.4-1(b) violates the ex post facto clauses of the United
States and Illinois Constitutions because the offense he committed that resulted in him being
characterized as a child sex offender took place long before the date section 11-9.4-1(b) took
effect.
¶9 Initially, we note that Pepitone’s argument is an as-applied constitutional challenge to
section 11-9.4-1, which “requires a showing that the statute violates the constitution as it
applies to the facts and circumstances of the challenging party” (People v. Thompson, 2015 IL
118151, ¶ 36). We review the constitutionality of a statute under the de novo standard. People
v. Dinelli, 217 Ill. 2d 387, 397 (2005).
¶ 10 “The ex post facto clauses of the United States Constitution prohibit retroactive application
of a law inflicting greater punishment than the law in effect when a crime was committed.”

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 People ex rel. Birkett v. Konetski, 233 Ill. 2d 185, 208 (2009). The ex post facto clause of the
Illinois Constitution provides the same protection as the United States Constitution. Id. at 209.
“A law is considered ex post facto if it is both retroactive and disadvantageous to the
defendant.” People v. Cornelius, 213 Ill. 2d 178, 207 (2004).
¶ 11 Section 11-9.4-1 of the Code provides that “[i]t is unlawful for a sexual predator or a child
sex offender to knowingly be present in any public park building or on real property comprising
any public park.” 720 ILCS 5/11-9.4-1(b) (West 2012). Section 11-9.4-1 was enacted in 2011
(Pub. Act 96-1099 (eff. Jan. 1, 2011)) and was amended in 2013 (Pub. Act 97-698 (eff. Jan. 1,
2013); Pub. Act 97-1109 (eff. Jan. 1, 2013)). There is no dispute in this case that Pepitone
qualified as a child sex offender under the Code. See 720 ILCS 5/11-9.3(d)(1)(i)(A), (d)(2)(i)
(West 2012).
¶ 12 We note that Pepitone raised the exact same ex post facto argument in an unrelated case in
which he was convicted of being a child sex offender in a public park in Du Page County.
People v. Pepitone, 2019 IL App (2d) 151161 (Pepitone—Du Page County). We find the
Second District’s decision to be instructive. In that case, the Second District summarized
Pepitone’s argument as follows:
“Defendant contends that the issue we must determine with respect to retroactivity
is whether defendant’s status as a child sex offender was attributable solely to conduct
that predated the enactment of section 11-9.4-1 of the Code. He argues that, because he
was convicted of predatory criminal sexual assault of a child in 1999, 12 years before
the statute took effect, the statute is retroactive. Defendant also argues that the statute
is punitive as applied to him, and he focuses the vast majority of his arguments on
discussing the Mendoza-Martinez [(Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963))] factors.” 1 Id. ¶ 20.
This is an apt description of the argument that Pepitone has raised before this court.
¶ 13 In addressing the question of retroactivity, the Second District stated that “ ‘[t]he critical
question is whether the law changes the legal consequences of acts completed before its
effective date.’ ” Id. ¶ 21 (quoting Weaver v. Graham, 450 U.S. 24, 31 (1981)). Of paramount
importance to answering this question was determining what action was at issue. The Second
District noted that the action at issue was Pepitone’s presence in a public park and that his
status as a child sex offender was merely an element of the crime:
“[N]o additional legal consequences were attached to defendant based solely on his
1999 conviction of predatory criminal sexual assault of a child. Rather, defendant’s
status as a child sex offender was an element of an entirely separate crime, which
required that defendant commit an additional act. In this case, defendant’s conduct,
being present in a park, occurred after the enactment of section 11-9.4-1 of the Code.
Thus, defendant’s present conviction cannot be retroactive.” (Emphases in original.)
Id. ¶ 22.
¶ 14 We agree with and adopt the Second District’s analysis in Pepitone—Du Page County for
purposes of deciding this appeal. Pepitone’s claim that his conviction under section 11-9.4-
1(b) was predicated on his conduct from 1999 is misplaced. His conduct from 1999 imposed a
status upon him that served as an element of the crime of being a sex offender knowingly
1
The Mendoza-Martinez factors are used to identify whether a statute is punitive. Mendoza-
Martinez, 372 U.S. at 168-69.

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 present in a public park. Id. ¶¶ 24, 26; see Pepitone II, 2018 IL 122034, ¶ 26 (stating that under
section 11-9.4-1(b), status as a child sex offender is an element of the offense that criminalizes
the conduct of being present in a public park); see also People v. Owens, 2018 IL App (4th)
170506, ¶ 22; Vasquez v. Foxx, 895 F.3d 515 (7th Cir. 2018). Accordingly, we hold that section
11-9.4-1(b), as applied to Pepitone, does not violate the ex post facto clauses of the United
States and Illinois Constitutions.
¶ 15 Our ruling on the retroactive application of section 11-9.4-1 obviates the need to address
Pepitone’s remaining argument that the law was disadvantageous to him.

¶ 16 CONCLUSION
¶ 17 The judgment of the circuit court of Will County is affirmed.

¶ 18 Affirmed.

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