text:
    The PEOPLE of the State of Illinois EX REL. Robert B. BERLIN, Petitioner, v. Honorable George J. BAKALIS, Respondent.
    Docket No. 122435
    Supreme Court of Illinois.
    Opinion filed March 22, 2018. Rehearing denied May 29, 2018.
    Lisa Madigan, Attorney General, of Springfield, and Robert B. Berlin, State's Attorney, of Wheaton (David L. Franklin, Solicitor General, Michael M. Glick and Leah M. Bendik, Assistant Attorneys General, of Chicago, and Lisa Anne Hoffman and Kristin M. Schwind, Assistant State's Attorneys, of counsel), for petitioner.
    No brief filed for respondent.
    Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and April D. Kentala, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for defendant Frank P. Gilio.
   JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

¶ 1 Petitioner Robert B. Berlin, State's Attorney of Du Page County, seeks mandamus pursuant to Illinois Supreme Court Rule 381 (eff. July 1, 2017) against respondent, the Honorable George J. Bakalis, judge of the circuit court of Du Page County. Petitioner asks this court to direct the circuit court to vacate defendant's one-year term of mandatory supervised release (MSR) and impose the mandatory four-year MSR term required under section 5-8-1(d)(6) of the Unified Code of Corrections ( 730 ILCS 5/5-8-1(d)(6) (West 2014) ). For the following reasons, we award mandamus .

¶ 2 BACKGROUND

¶ 3 On September 22, 2015, defendant, Frank Gilio, entered a partially negotiated guilty plea to one count of violating an order of protection, a Class 4 felony based on his prior conviction for violation of an order of protection ( 720 ILCS 5/12-3.4(d) (West 2014) ). The parties did not agree to a sentence in exchange for the plea, but the State agreed not to prosecute two counts of aggravated battery of a peace officer and a second count of violating an order of protection.

¶ 4 Prior to entry of the plea, the trial court explained that the charged offense was a Class 4 felony carrying a sentencing range of one to six years' imprisonment. In relevant part, the court misstated that the offense required a one-year term of MSR. The court also admonished defendant on his rights to a trial and the consequences of waiving those rights and confirmed that he was pleading guilty voluntarily.

¶ 5 In presenting the factual basis for the plea, the State noted that an order of protection had been entered and served on defendant. The order of protection prohibited defendant from contacting or being on the residential property of the victim, Susan Foutch. It was effective from June 2013 through June 2015. The victim would testify that on April 26, 2015, while she was home, she observed defendant knock on her window. Defendant stipulated that the State's witnesses would testify substantially in that manner.

¶ 6 The trial court accepted the plea agreement and found defendant guilty of violation of an order of protection. The court then ordered a presentence investigation and scheduled sentencing. After the sentencing hearing, the court sentenced defendant to three years' imprisonment and one year of MSR.

¶ 7 At the State's request approximately a year later, the trial court held a hearing on defendant's MSR term. Defendant was present but not represented by counsel. At the hearing, the following colloquy, in its entirety, occurred:

"MS. KING [ (ASSISTANT STATE'S ATTORNEY) ]: * * * Judge, I writ the defendant in. IDOC sent a letter indicating that on the sentence order it had the incorrect term for MSR on the defendant's sentence. He was sentenced to one year of mandatory supervised release, but statutorily it should be four years. So it was an incorrect sentence.
THE COURT: Okay. And it's four years because of the-
MS. KING: By statute because of the violation order.
THE COURT: Okay. [Defendant], do you understand what they're telling you [that] you have?
DEFENDANT: Not really.
THE COURT: Apparently by statute I have no control over that.
DEFENDANT: A year later just give me three more years?
THE COURT: That's not jail time.
DEFENDANT: It's the same thing.
THE COURT: It's probation time.
DEFENDANT: It can be the same thing.
THE COURT: I understand.
DEFENDANT: I [sic ] can be the same thing.
THE COURT: By statute that apparently is the requirement. If you want to speak to one of the public defenders, they can talk to [you] about any other options you might have.
DEFENDANT: I will just motion the case back up when I get out. I have two months, right?
THE COURT: Okay. Give me an amended order. Indicate four years of mandatory supervised release."

¶ 8 The following day, defendant was released from prison onto MSR. Soon after, defendant filed a pro se motion seeking to "correct" the mittimus to reflect the trial court's original imposition of a one-year MSR term. The circuit court appointed an attorney from the public defender's office to represent defendant.

¶ 9 In March 2017, defendant's counsel filed an amended petition for postconviction relief. Defendant argued that he would not have entered a guilty plea if he had been properly advised that his plea would subject him to a mandatory four-year term of MSR. Citing this court's decision in People v. Castleberry , 2015 IL 116916, 398 Ill.Dec. 22, 43 N.E.3d 932, defendant asserted that the trial court did not have authority to sua sponte increase a statutorily nonconforming sentence. Defendant asked the court to either vacate his conviction and proceed to trial or reimpose the original one-year MSR term.

¶ 10 The State filed a motion to dismiss, arguing that defendant did not provide any evidence that he pleaded guilty in reliance on the incorrect MSR admonishments or that he was prejudiced. While acknowledging that Castleberry prohibited the trial court from increasing defendant's MSR term, the State maintained that defendant should not be allowed to withdraw his guilty plea.

¶ 11 The circuit court initially denied the State's motion to dismiss but later granted its oral motion to reconsider. On reconsideration, the court dismissed defendant's petition and also vacated its amended sentencing order that imposed the mandatory four-year MSR term. Citing Castleberry , the court explained that the only option for the State to correct defendant's sentence to conform to the sentencing statute was a mandamus action in this court.

¶ 12 The State moved for leave to file a complaint seeking mandamus relief. Ill. S. Ct. R. 381 (eff. July 1, 2017). We allowed the State's motion.

¶ 13 ANALYSIS

¶ 14 The State argues that it is entitled to mandamus relief because the circuit court had no discretion to impose anything other than four years of MSR on defendant's conviction for a Class 4 felony violation of an order of protection. Additionally, the State contends that this court should amend our rules to permit statutorily unauthorized sentences to be corrected at any time by motion in the circuit court. The State asserts that its proposed rule change would serve the interests of judicial economy.

¶ 15 In response, defendant agrees with the State that mandamus relief is warranted because the applicable sentencing statute requires a four-year term of MSR, but he disagrees with the nature of that relief. Defendant argues that this court should vacate the trial court's sentencing order and remand for a new sentencing hearing rather than simply direct the circuit court to impose the four-year MSR term. Defendant also disagrees with the State's request for this court to announce a new rule in this opinion.

¶ 16 The extraordinary remedy of mandamus compels a public official to perform a purely ministerial duty that does not involve an exercise of discretion. People ex rel. Glasgow v. Carlson , 2016 IL 120544, ¶ 15, 410 Ill.Dec. 954, 72 N.E.3d 340. This court has discretionary original jurisdiction to consider requests for mandamus relief under the Illinois Constitution. People ex rel. Glasgow v. Kinney , 2012 IL 113197, ¶ 7, 361 Ill.Dec. 140, 970 N.E.2d 506 (citing Ill. Const. 1970, art. VI, § 4 (a) ). We will award mandamus relief "only when 'the petitioner establishes a clear right to the relief requested, a clear duty of the public official to act, and clear authority in the public official to comply.' " Carlson , 2016 IL 120544, ¶ 15 (quoting People ex rel. Alvarez v. Skryd , 241 Ill. 2d 34, 39, 348 Ill.Dec. 384, 944 N.E.2d 337 (2011) ).

¶ 17 This case requires us to construe the applicable sentencing provisions to determine the appropriate MSR term for defendant's conviction of a Class 4 felony violation of an order of protection ( 720 ILCS 5/12-3.4(d) (West 2014) ). We review de novo that pure question of law. Carlson , 2016 IL 120544, ¶ 16.

¶ 18 It is undisputed that defendant's conviction for violation of an order of protection is a Class 4 felony based on his prior conviction for that same offense. 720 ILCS 5/12-3.4(d) (West 2014). It is also undisputed that section 5-8-1(d)(6) of the Unified Code of Corrections requires that defendant's sentence on that conviction include a mandatory four years of MSR. See 730 ILCS 5/5-8-1(d)(6) (West 2014) (MSR term "shall" be four years for a felony violation of an order of protection). Given the four-year MSR term was statutorily mandated, the trial court in this case had no discretion but to impose that term on defendant. See Round v. Lamb , 2017 IL 122271, ¶ 16, 418 Ill.Dec. 274, 90 N.E.3d 432 (concluding that an MSR term is included in a criminal sentence "as a matter of law" in Illinois). Consequently, as defendant correctly concedes, the State has proved a clear right to its requested relief.

¶ 19 Although agreeing that the State is entitled to mandamus relief, defendant contends that this court should vacate the trial court's sentencing order and remand for a new sentencing hearing rather than granting the State's requested relief to direct the trial court to amend its sentencing order to impose the mandatory four-year MSR term. Defendant argues that amending the existing sentencing order to reflect the correct MSR term is inadequate because the trial court may want to exercise its discretion to shorten his prison term in light of his increased MSR term.

¶ 20 We disagree with defendant that a new sentencing hearing is necessary. Defendant's guilty plea was partially negotiated-the State agreed not to prosecute three charges but did not agree to a specific sentence. In other words, defendant did not plead guilty with the expectation that he would receive a particular sentence. See People v. Whitfield , 217 Ill. 2d 177, 195-202, 298 Ill.Dec. 545, 840 N.E.2d 658 (2005) (discussing due process concerns related to a "benefit of a bargain" argument raised by a guilty-plea defendant).

¶ 21 The record does not support defendant's suggestion that the trial court would be inclined to reduce his prison term. Specifically, after the State brought the MSR error to the trial court's attention, the court observed that the four-year MSR term was "statutorily required" and offered to appoint the public defender to discuss "any other options" with defendant. Notably, though, the court made no indication that it wanted to reconsider its original decision to sentence defendant to three years' imprisonment.

¶ 22 Under these circumstances, there is no reason to remand for a new sentencing hearing. See Round , 2017 IL 122271, ¶ 26 (stating that the appropriate remedy in a mandamus action "depends on the unique facts and circumstances of each case"). Nor is there any jurisdictional bar to correcting a defendant's sentence in a mandamus action to comport with a mandatory sentencing statute. People ex rel. Alvarez v. Gaughan , 2016 IL 120110, ¶¶ 20-21, 410 Ill.Dec. 890, 72 N.E.3d 276.

¶ 23 If defendant wants to challenge his corrected sentence when the mandatory four-year MSR term is imposed by the circuit court following this mandamus action, we agree with the State's position that "defendant can decide whether to pursue a subsequent challenge to that new judgment." Of course, we express no opinion on any future challenge raised by defendant.

¶ 24 The State also requests that we announce a new rule in this opinion to "fill the void left by the now-abrogated void sentence rule" following our decision in Castleberry . Specifically, the State urges this court to create a rule to allow statutorily unauthorized sentences to be corrected at any time by motion in the circuit court.

¶ 25 Defendant opposes announcing a new rule in this opinion on the grounds that the proposed rule presents practical difficulties in implementation, could prove inequitable, and is unnecessary to resolve the controversy in this appeal. Defendant further argues that the State failed to make a compelling case for this court to suspend its normal rulemaking process.

¶ 26 Illinois Supreme Court Rule 3 (eff. July 1, 2017) governs the rulemaking procedure used by this court. Typically, a proposed rule or amendment to an existing rule is considered by our rules committee and involves a public hearing process for adversarial testing. This court, however, has expressly reserved the prerogative to depart from that process. Ill. S. Ct. R. 3(a)(2) (eff. July 1, 2017); see also In re B.C.P. , 2013 IL 113908, ¶ 17, 371 Ill.Dec. 757, 990 N.E.2d 1135 (declining to refer a proposed rule amendment to the rules committee). While we have reserved the right to suspend the ordinary rulemaking process, we have explained that "[b]ypassing the rules committee and public hearing process and amending the rule in an opinion of this court is a power that this court exercises sparingly." In re Michael D. , 2015 IL 119178, ¶ 27, 410 Ill.Dec. 277, 69 N.E.3d 822.

¶ 27 We decline the State's request to announce a rule in this opinion and circumvent the normal procedure under Rule 3. As the State acknowledged at oral argument, implementing its proposed rule involves complicated policy questions that would benefit from a deliberative rulemaking process. Indeed, the State clarified at oral argument that it would not oppose referral of its proposed rule to the committee. Ultimately, we believe that the State's proposed rule change should be addressed by the rules committee and the public hearing process. Accordingly, we refer the State's proposal to the rules committee.

¶ 28 CONCLUSION

¶ 29 We award mandamus and order the circuit court to vacate defendant's one-year term of MSR and impose the mandatory four-year MSR term required under section 5-8-1(d)(6) of the Unified Code of Corrections ( 730 ILCS 5/5-8-1(d)(6) (West 2014) ).

¶ 30 Judgment of mandamus awarded.

Chief Justice Karmeier and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.

      Defense counsel stated at oral argument that defendant filed an appeal from the circuit court's dismissal of his postconviction petition. Although not apparent from the record here, this court's record system shows a pending appeal from the circuit court's dismissal order (People v. Gilio , No. 2-17-0624).

      The State makes an almost identical request for a new rule in People v. Vara , No. 121823, a case currently pending before this court.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Appellant, v. Marc A. PEPITONE, Appellee.
    Docket No. 122034
    Supreme Court of Illinois.
    Opinion filed April 5, 2018
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick, Matthew P. Becker, and Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, of counsel), for the People.
    Katherine M. Strohl, of Ottawa, for appellee.
    Adele D. Nicholas and Mark G. Weinberg, both of Chicago, for amicus curiae Illinois Voices for Reform.
    Paul M. Dubbeling, of P.M. Dubbeling, PLLC, of Chapel Hill, North Carolina, for amicus curiae National Association for Rational Sexual Offense Laws.
   JUSTICE THEIS delivered the judgment of the court, with opinion.

¶ 1 Section 11-9.4-1(b) of the Criminal Code of 2012 provides, "It 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 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone's due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant's conviction and sentence.

¶ 2 BACKGROUND

¶ 3 In 1998, the defendant was charged with predatory criminal sexual assault of a child, criminal sexual assault, and aggravated criminal sexual abuse. He pleaded guilty to predatory criminal sexual assault of a child. The trial court sentenced him to six years' imprisonment.

¶ 4 Fourteen years later, in 2013, Village of Bolingbrook police officer Steven Alexander was patrolling a municipal park around 4:30 p.m. when he observed a van improperly parked across three spaces. Officer Alexander checked the van's plates and learned that it was registered to the defendant. While Officer Alexander was standing near the van, the defendant approached with his dog. The defendant asked Officer Alexander if there was a problem with the van. The defendant related that he was a child sex offender but that his registration requirement had expired in 2010. Officer Alexander informed the defendant that, as a child sex offender, he was forbidden to be on park property. Though the defendant was unaware of such a ban, he was arrested for violating section 11-9.4-1(b).

¶ 5 The defendant filed a motion to dismiss the charge, arguing that the statute is facially unconstitutional under the federal and state due process clauses ( U.S. Const., amend. XIV ; Ill. Const. 1970, art. I, § 2 ) and unconstitutional as applied under the federal and state ex post facto clauses (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16 ). The trial court denied that motion, and the case proceeded to a one-day jury trial. The parties stipulated that the defendant is a child sex offender under section 11-9.4-1(b). At the close of the State's evidence, the defendant made a motion for a directed verdict, again arguing that the statute was unconstitutional. The trial court denied that motion, and the jury found the defendant guilty of violating the statute. The trial court entered judgment on the jury's verdict and later sentenced the defendant to 24 months' conditional discharge and 100 hours of community service and fined him $400. The defendant filed a motion for a new trial, asserting that the trial court erred in denying his motion to dismiss. The court denied the defendant's motion for a new trial, and he appealed.

¶ 6 A divided appellate court panel reversed, holding that section 11-9.4-1(b) is facially violative of substantive due process. 2017 IL App (3d) 140627, 412 Ill.Dec. 317, 75 N.E.3d 297. The appellate court majority noted that People v. Avila-Briones , 2015 IL App (1st) 132221, 401 Ill.Dec. 40, 49 N.E.3d 428, and People v. Pollard , 2016 IL App (5th) 130514, 403 Ill.Dec. 574, 54 N.E.3d 234, both had rejected substantive due process challenges to the Sex Offender Registration Act ( 730 ILCS 150/1 et seq. (West 2012) ), the Sex Offender Community Notification Law ( 730 ILCS 152/101 et seq. (West 2012) ), and several other sex offender statutes, including section 11-9.4-1(b). 2017 IL App (3d) 140627, ¶¶ 12-13, 412 Ill.Dec. 317, 75 N.E.3d 297. The appellate court majority was not persuaded by the analyses in those cases, which it termed "incomplete and truncated." Id. ¶ 14. Instead, the majority chose to follow cases from this court in which statutes were invalidated under due process for criminalizing innocent conduct. Id. ¶ 15. According to the majority, those cases, "while very different in their facts, are significant * * * because the statutes at issue, like section 11-9.4-1(b), contain no culpable mental state" and "reach countless types of innocent conduct." Id. ¶ 20. The appellate court majority insisted, "Mere presence in a public park building or public park, without more, is not unlawful conduct." Id.

¶ 7 Further, the majority noted that, unlike its repealed predecessor (see 720 ILCS 5/11-9.4(a) (West 2010) ), which "actually attempted to tie the child sex offender's presence to times when children were also present" ( 2017 IL App (3d) 140627, ¶ 21), 412 Ill.Dec. 317, 75 N.E.3d 297, section 11-9.4-1(b) "cannot be reasonably construed as aimed at preventing a substantial step toward the commission of a sex offense against a child or any offense that would result in an individual qualifying as a sexual predator" (emphasis in original) ( id. ¶ 20 ). The current statute was "premised on a vague notion that a child or other 'target' may be present in a public park building or on public park property," and it "makes no attempt to assess the dangerousness of a particular individual." Id. ¶ 22.

¶ 8 The appellate court majority highlighted the "overly broad sweep" of section 11-9.4-1(b) and provided an "extensive" list of activities that occur on public park property, in which persons like the defendant cannot participate. Id. ¶ 23. The majority concluded that the statute violated due process because "it is not reasonably related to its goal of protecting the public, especially children," from individuals fitting the definition of a child sex offender and because it is not "drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights" from such individuals who have already "paid the penalty" for their crimes. Id. ¶ 24.

¶ 9 Justice Carter dissented. He would have followed Avila-Briones and Pollard and held that "the means adopted in * * * section 11-9.4-1(b) are a reasonable method of accomplishing the legislature's desired objective of protecting the public from sex offenders." Id. ¶ 31 (Carter, J., dissenting). Justice Carter surmised that "[b]y keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend." Id. ¶ 32.

¶ 10 This court allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Mar. 15, 2016). We also allowed both Illinois Voices for Reform and the National Association for Rational Sexual Offense Laws to file amicus curiae briefs in support of the defendant. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 11 ANALYSIS

¶ 12 The analysis in this case is guided by familiar principles. All statutes carry a strong presumption of constitutionality. People v. Hollins , 2012 IL 112754, ¶ 13, 361 Ill.Dec. 402, 971 N.E.2d 504. Accordingly, this court will uphold statutes whenever reasonably possible, resolving all doubts in favor of their validity. People v. Boeckmann , 238 Ill. 2d 1, 6-7, 342 Ill.Dec. 537, 932 N.E.2d 998 (2010). To rebut the presumption, a party challenging a statute must establish clearly that it violates the constitution. People v. Rizzo , 2016 IL 118599, ¶ 23, 406 Ill.Dec. 488, 61 N.E.3d 92. That burden is particularly heavy where, as here, the party raises a facial challenge, asserting that there is no circumstance in which the statute is valid. Bartlow v. Costigan , 2014 IL 115152, ¶ 18, 383 Ill.Dec. 95, 13 N.E.3d 1216. On the constitutional issue before us, our review is de novo . People v. Gray , 2017 IL 120958, ¶ 57, 418 Ill.Dec. 916, 91 N.E.3d 876.

¶ 13 The defendant continues to assert that section 11-9.4-1(b) is facially violative of substantive due process. The fourteenth amendment to the United States Constitution ( U.S. Const., amend. XIV ) and article I, section 2, of the Illinois Constitution ( Ill. Const. 1970, art. I, § 2 ) both provide that no person shall be deprived of life, liberty, or property without due process of law. There are two aspects to that guarantee-procedural and substantive. Procedural due process bars governmental action that infringes upon a protected interest when such action is arbitrary because it was not preceded by procedural safeguards. Substantive due process bars governmental action that infringes upon a protected interest when such action is itself arbitrary. See People v. Cardona , 2013 IL 114076, ¶ 17, 369 Ill.Dec. 117, 986 N.E.2d 66 ("a procedural due process claim asserts that the deprivation at issue is constitutionally invalid because the process leading up to it was deficient, whereas a substantive due process claim asserts that the deprivation at issue is constitutionality invalid in and of itself, irrespective of the process leading up to it"); see also Collins v. City of Harker Heights , 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

¶ 14 Where a statute is challenged on due process grounds, the initial step of our analysis is to determine whether the statute restricts or regulates a liberty interest and whether that liberty interest is a fundamental right. In re J.W. , 204 Ill. 2d 50, 66-67, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003). Here, section 11-9.4-1(b) affects the freedom to visit public parks. The defendant acknowledges that being present in a park is not a fundamental right. Thus, the proper gauge for his substantive due process claim is the so-called rational basis test. Rizzo , 2016 IL 118599, ¶ 45, 406 Ill.Dec. 488, 61 N.E.3d 92 ("When legislation does not affect a fundamental constitutional right, this court, in a due process analysis, applies the rational basis test to determine the legislation's constitutionality."). Under that test, our inquiry is twofold: "[W]e must determine whether there is a legitimate state interest behind the legislation, and if so, whether there is a reasonable relationship between that interest and the means the legislature has chosen to pursue it." People v. Johnson , 225 Ill. 2d 573, 584, 312 Ill.Dec. 350, 870 N.E.2d 415 (2007).

¶ 15 Johnson states the most common version of the rational basis test, but there is another version of it in our case law. The defendant refers to that alternative version and insists that it presents a three-part test where the court must determine whether there is a legitimate state interest, whether there is a reasonable relationship between that interest and the statute, and whether "the means adopted are a reasonable method of accomplishing the desired objective." People v. Adams , 144 Ill. 2d 381, 390, 163 Ill.Dec. 483, 581 N.E.2d 637 (1991) ; accord Rizzo , 2016 IL 118599, ¶ 45, 406 Ill.Dec. 488, 61 N.E.3d 92 ; Boeckmann , 238 Ill. 2d at 7, 342 Ill.Dec. 537, 932 N.E.2d 998 (citing People v. Lindner , 127 Ill. 2d 174, 180, 129 Ill.Dec. 64, 535 N.E.2d 829 (1989) ) ); People v. Carpenter , 228 Ill. 2d 250, 267-68, 320 Ill.Dec. 888, 888 N.E.2d 105 (2008) (citing People v. Wright , 194 Ill. 2d 1, 24, 251 Ill.Dec. 469, 740 N.E.2d 755 (2000) ) ); J.W. , 204 Ill. 2d at 67, 272 Ill.Dec. 561, 787 N.E.2d 747 ; see also People v. Wick , 107 Ill. 2d 62, 66, 89 Ill.Dec. 833, 481 N.E.2d 676 (1985) ("[T]he question of whether a legislative exercise of the police power meets the constitutional requirement of due process involves identifying the public interest that the statute is intended to protect, examining whether the statute bears a reasonable relationship to that interest, and determining whether the method used to protect or further that interest is 'reasonable.' " (internal quotation marks omitted) ).

¶ 16 Both versions of the rational basis test are essentially the same. If a statute is reasonably related to a legitimate state interest, the means or method that the legislature has chosen to serve that interest will also be reasonable. See Jacobson v. Department of Public Aid , 171 Ill. 2d 314, 323, 216 Ill.Dec. 96, 664 N.E.2d 1024 (1996) (stating that the rational basis test asks "whether the method or means employed in the statute to achieve the stated goal or purpose of the legislation is rationally related to that goal"); DeGrazio v. Civil Service Comm'n of the City of Chicago , 31 Ill. 2d 482, 485, 202 N.E.2d 522 (1964) ("A further test of the validity of a law or regulation is whether it is a reasonable method to accomplish a certain objective."); Schuringa v. City of Chicago , 30 Ill. 2d 504, 509, 198 N.E.2d 326 (1964) ("Equally settled and certain is the concept that a police [power] measure, to be beyond the pale of constitutional infirmity, must bear a reasonable relation to public health or other purpose sought to be served, the means being reasonably necessary and suitable to the accomplishment of such purpose * * *."); see also People v. Reed , 148 Ill. 2d 1, 11, 169 Ill.Dec. 282, 591 N.E.2d 455 (1992) (stating that due process analysis examines " 'whether the statute is reasonably designed to remedy the evils which the legislature has determined to be a threat to the public health, safety and general welfare' " (internal quotation marks omitted) (quoting People v. Bradley , 79 Ill. 2d 410, 417, 38 Ill.Dec. 575, 403 N.E.2d 1029 (1980) ) ) ).

¶ 17 While the rational basis test is not " 'toothless' " ( People v. Jones , 223 Ill. 2d 569, 596, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006) (quoting Mathews v. De Castro , 429 U.S. 181, 185, 97 S.Ct. 431, 50 L.Ed.2d 389 (1976) ) ) ), it remains highly deferential to the findings of the legislature ( Rizzo , 2016 IL 118599, ¶ 45, 406 Ill.Dec. 488, 61 N.E.3d 92 (citing Johnson , 225 Ill. 2d at 585, 312 Ill.Dec. 350, 870 N.E.2d 415 ) ). "The legislature's judgments in drafting a statute are not subject to judicial fact finding and 'may be based on rational speculation unsupported by evidence or empirical data.' " Boeckmann , 238 Ill. 2d at 7, 342 Ill.Dec. 537, 932 N.E.2d 998 (quoting Arangold Corp. v. Zehnder , 204 Ill. 2d 142, 147, 272 Ill.Dec. 600, 787 N.E.2d 786 (2003) ) ). If there is any conceivable set of facts to justify the statute, it must be upheld. Rizzo , 2016 IL 118599, ¶ 45, 406 Ill.Dec. 488, 61 N.E.3d 92 ; J.W. , 204 Ill. 2d at 72, 272 Ill.Dec. 561, 787 N.E.2d 747 ("If there is any conceivable basis for finding a rational relationship, the statute will be upheld."). This court will not second-guess the wisdom of legislative enactments or dictate alternative means to achieve the desired result. M.A. , 2015 IL 118049, ¶ 55, 397 Ill.Dec. 759, 43 N.E.3d 86. We turn to the statute at issue.

¶ 18 To review, section 11-9.4-1(b) provides, "It 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 2016). Section 11-9.4-1(a) adopts the definition of "child sex offender" in section 11-9.3(d) of the Criminal Code (id. § 11-9.4-1(a) ), which includes a person charged and convicted under Illinois law with predatory criminal sexual assault of a child and various other sex offenses against minors (id. § 11-9.3(d)(1), (d)(2)(i) ). The statute further adopts the definition of "sexual predator" in the Sex Offender Registration Act ( 730 ILCS 150/2(E) (West 2016) ), which includes a person convicted of various sex offenses against minors. A "public park" is "a park, forest preserve, bikeway, trail, or conservation area under the jurisdiction of the State or a unit of local government." 720 ILCS 5/11-9.4-1(a) (West 2016). The statute, then, completely bars sex offenders who have targeted children from public parks. A violation of section 11-9.4-1(b) is a Class A misdemeanor. Id. § 11-9.4-1(d).

¶ 19 The defendant concedes that the legislature has a legitimate interest in protecting patrons of public parks from child sex offenders and sexual predators. See People v. Minnis , 2016 IL 119563, ¶ 37, 409 Ill.Dec. 60, 67 N.E.3d 272 (" 'The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance.' " (quoting New York v. Ferber , 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ) ). Thus, the only dispute between the parties is whether there is the requisite constitutional nexus-a rational relation-between the statute's aim and its means.

¶ 20 The State argues that there is a rational relation between protecting the public and barring certain sex offenders from public parks. The State offers two links. First, the State asserts that "it is not mere conjecture that child sex offenders might seek victims in public parks" and quotes a federal appeals court opinion that noted "children, some of the most vulnerable members of society, are susceptible to abuse in parks." Doe , 377 F.3d at 773. In support, the State refers to cases where parks in Illinois have previously been locations for sexual assaults against minors (see, e.g. , People v. Garner , 347 Ill. App. 3d 578, 283 Ill.Dec. 460, 808 N.E.2d 10 (2004) ; People v. Westbrook , 262 Ill. App. 3d 836, 200 Ill.Dec. 59, 635 N.E.2d 398 (1992) ; People v. Israel , 181 Ill. App. 3d 851, 130 Ill.Dec. 795, 537 N.E.2d 1124 (1989) ; People v. Maxwell , 89 Ill. App. 3d 1101, 45 Ill.Dec. 762, 413 N.E.2d 95 (1980) ) ) and adults (see, e.g. , People v. Foggy , 121 Ill. 2d 337, 118 Ill.Dec. 18, 521 N.E.2d 86 (1988) ; People v. Rodriguez , 364 Ill. App. 3d 304, 301 Ill.Dec. 258, 846 N.E.2d 220 (2006) ; People v. Kinney , 294 Ill. App. 3d 903, 229 Ill.Dec. 394, 691 N.E.2d 867 (1998) ; People v. Westfield , 207 Ill. App. 3d 772, 152 Ill.Dec. 705, 566 N.E.2d 392 (1990) ; People v. Cox , 197 Ill. App. 3d 1028, 145 Ill.Dec. 518, 557 N.E.2d 288 (1990) ; People v. Leonhardt , 173 Ill. App. 3d 314, 123 Ill.Dec. 99, 527 N.E.2d 562 (1988) ; People v. Bell , 132 Ill. App. 3d 354, 87 Ill.Dec. 247, 476 N.E.2d 1239 (1985) ; People v. Buckner , 121 Ill. App. 3d 391, 77 Ill.Dec. 6, 459 N.E.2d 1102 (1984) ) ).

¶ 21 The State also refers to statements by Senator Althoff, one of the sponsors of the bill that became section 11-9.4-1(b), who declared, "This legislation is necessary to protect users of public parks from child sex offenders and sexual predators who use the attributes of a park to their advantage to have access to potential victims." 96th Ill. Gen. Assem., Senate Proceedings, Mar. 16, 2010, at 55 (statements of Senator Althoff). Senator Althoff explained:

"Public parks offer many opportunities for sexual predators and child sex offenders to have easy access to potential victims. Children and lone adults frequently use parks for recreational activities. By their nature, parks have many obscured views and other distractions * * * that offer opportunities for sex offenders to access potential victims." Id.

¶ 22 Second, the State asserts that sex offenders have high rates of recidivism. Those rates have been widely accepted by courts across the country, including the United States Supreme Court, which has mentioned "a frightening and high risk of recidivism" for convicted sex offenders. McKune v. Lile , 536 U.S. 24, 34, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) (plurality opinion); see also Smith v. Doe , 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (highlighting a state legislature's "grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class"). This court has made similar statements. See Minnis , 2016 IL 119563, ¶ 41, 409 Ill.Dec. 60, 67 N.E.3d 272 ("the legislature is entitled to 'conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism' " (quoting Smith , 538 U.S. at 103, 123 S.Ct. 1140 ) ); People v. Huddleston , 212 Ill. 2d 107, 138, 287 Ill.Dec. 560, 816 N.E.2d 322 (2004) ("our legislature has responded again and again to the propensity of sex offenders to repeat their crimes"); see also People v. Diestelhorst , 344 Ill. App. 3d 1172, 1184, 280 Ill.Dec. 201, 801 N.E.2d 1146 (2003) (stating that sex offenders have "a notoriously high recidivism rate"); People v. Stork , 305 Ill. App. 3d 714, 721, 238 Ill.Dec. 941, 713 N.E.2d 187 (1999) (quoting a legislative declaration regarding the high recidivism rate of child sex offenders). Thus, according to the State, the legislature reasonably could have concluded that barring certain sex offenders from public parks would protect the public.

¶ 23 The defendant responds that "empirical studies" rebut the State's argument on both counts. Regarding recidivism rates, the defendant insists that the McKune plurality's "frightening and high" comment has been debunked. See Does v. Snyder , 834 F.3d 696, 704 (6th Cir. 2016) (mentioning "the significant doubt cast by recent empirical studies" on statements in Smith and McKune that the risk of recidivism is frightening and high); Ira M. Ellman & Tara Ellman, "Frightening and High": The Supreme Court's Crucial Mistake About Sex Crime Statistics , 30 Const. Comment. 495 (2015). The defendant points to a Human Rights Watch article, finding that only 25% of former sex offenders reoffend (see No Easy Answers: Sex Offender Laws in the US , Human Rights Watch, https://www.hrw.org/report/2007/09/11/no-easy-answers/sex-offender-laws-us (last visited Feb. 26, 2018) ) and to a federal Bureau of Justice Statistics publication that puts the recidivism rate much lower at 5.3% (see Patrick A. Langan, Erica L. Schmitt, & Matthew R. Durose, Bureau of Justice Statistics, Recidivism of Sex Offenders Released From Prison in 1994 , at 1 (Nov. 2003), https://www.bjs.gov/content/pub/pdf/rsorp94.pdf). Regarding parks as locations for sexual assaults, the defendant refers to another Bureau of Justice Statistics publication that indicates only a small percentage of sexual assaults occur in parks. See Lawrence A. Greenfeld, Bureau of Justice Statistics, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997), https://perma.cc/ZG4B-D9ZP.

¶ 24 The problem for the defendant is that, regardless of how convincing that social science may be, "the legislature is in a better position than the judiciary to gather and evaluate data bearing on complex problems." Minnis , 2016 IL 119563, ¶ 41, 409 Ill.Dec. 60, 67 N.E.3d 272. Simply put, we are not a superlegislature. M.A. , 2015 IL 118049, ¶ 70, 397 Ill.Dec. 759, 43 N.E.3d 86.

¶ 25 The defendant then shifts his argument to overbreadth. Typically, overbreadth is an issue that appears in a first amendment context. See Minnis , 2016 IL 119563, ¶ 14, 409 Ill.Dec. 60, 67 N.E.3d 272. The defendant, however, raises a due process claim, not a free speech claim. Nevertheless, borrowing from the appellate court majority, the defendant asserts that section 11-9.4-1(b) is overbroad and, thus, irrational because it reaches "an amazingly vast array of innocent activities." The defendant relies upon People v. Madrigal , 241 Ill. 2d 463, 350 Ill.Dec. 311, 948 N.E.2d 591 (2011). There, this court addressed the constitutionality of an identity theft statute that criminalized the knowing use of another person's identification information without permission to gain access to any of that person's actions, communications, or transactions. In invalidating the statute, we held that punishing a significant amount of "wholly innocent conduct not related to the statute's purpose" is not "a rational way of addressing" a problem identified by the legislature. Id. at 473, 350 Ill.Dec. 311, 948 N.E.2d 591. The defendant cites other cases consistent with Madrigal . See Carpenter , 228 Ill. 2d at 269, 320 Ill.Dec. 888, 888 N.E.2d 105 (holding that a statute that "potentially criminalizes innocent conduct" is not "a reasonable means of preventing the targeted conduct," in violation of due process); Wright , 194 Ill. 2d at 25, 251 Ill.Dec. 469, 740 N.E.2d 755 ("criminal statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes"); People v. Zaremba , 158 Ill. 2d 36, 42, 196 Ill.Dec. 632, 630 N.E.2d 797 (1994) (invalidating a statute that "potentially subjects wholly innocent conduct to punishment"); Wick , 107 Ill. 2d at 66, 89 Ill.Dec. 833, 481 N.E.2d 676 (invalidating a statute that "does not require an unlawful purpose"). According to the defendant, section 11-9.4-1(b) punishes innocent conduct-not only dog walking in Bolingbrook but also visiting museums in Chicago, attending a sporting event at Soldier Field or a cultural event at Grant Park in Chicago, visiting Lincoln Park Zoo in Chicago, playing in adult sports leagues or taking adult classes sponsored by the Chicago Park District, going to public beaches in Chicago, or visiting any Illinois State Park.

¶ 26 The defendant misapprehends the statute. Section 11-9.4-1(b) does not criminalize dog walking or punish any other innocent conduct. It punishes conduct by sex offenders. As the State cogently observes, "the conduct being criminalized is a convicted child sex offender's knowing presence in a public park-that defendant was walking a dog was merely incidental to that conduct." Like the statute outlawing possession of any firearm or any firearm ammunition by a convicted felon ( 720 ILCS 5/24-1.1(a) (West 2016) ), the statute here makes the status of the defendant an element of the offense. Consequently, conduct that is innocent for most people is not innocent for those who have been convicted of certain offenses. Madrigal and its "innocent conduct" predecessors are inapposite.

¶ 27 The defendant also relies upon the repealed predecessor statute to section 11-9.4-1(b) as support for his constitutional claim. That statute, formerly section 11-9.4(a) of the Criminal Code, provided:

"It is unlawful for a child sex offender to knowingly be present in any public park building or on real property comprising any public park when persons under the age of 18 are present in the building or on the grounds and to approach, contact, or communicate with a child under 18 years of age, unless the offender is a parent or guardian of a person under 18 years of age present in the building or on the grounds." 720 ILCS 5/11-9.4(a) (2010) (repealed by Pub. Act 96-1551 (eff. July 1, 2011) ).

Section 11-9.3(a-10) of the Criminal Code now contains an almost identical prohibition. See 720 ILCS 5/11-9.3(a-10) (West 2016). A violation of the former section 11-9.4(a) was a Class 4 felony. 720 ILCS 5/11-9.4(e) (West 2010). Similarly, a violation of the current section 11-9.3(a-10) is a Class 4 felony. 720 ILCS 5/11-9.3(f) (West 2016).

¶ 28 Section 11-9.4(a) did not criminalize sex offenders' mere presence in public parks but rather specific conduct by sex offenders-approaching, contacting, or communicating with minors. The defendant insists that those "narrowing parameters" led the appellate court to uphold that statute against a substantive due process challenge. See Diestelhorst , 344 Ill. App. 3d at 1185, 280 Ill.Dec. 201, 801 N.E.2d 1146 ("prohibiting known child sex offenders from approaching, contacting, or communicating with a child within a public park zone bears a reasonable relationship to protecting children from known sex offenders"). The former section 11-9.4(a) and the current section 11-9.3(a-10), thus, purportedly reflect reasonable attempts by the legislature to tailor a prohibition regarding sex offenders in public parks to the goal of protecting the public by preventing sexual assaults.

¶ 29 Contrary to the defendant's contention, the legislature clearly attempted to limit the application of section 11-9.4-1(b) and its penalty. Section 11-9.4-1(b) does not include in its definition of "child sex offender" persons convicted of "Romeo and Juliet" criminal sexual abuse under sections 11-1.50(b) and (c). See 720 ILCS 5/11-9.4-1(a) (West 2016); 96th Ill. Gen. Assem., Senate Proceedings, Mar. 16, 2010, at 55 (statements of Senator Althoff) (stating that the bill that became section 11-9.4-1 "excludes those convicted of criminal sexual abuse involving consensual sex when the accused is under seventeen and the victim is between nine and sixteen years of age and when the victim is thirteen to sixteen years of age and [the] accused is less than five years older"). And a violation of section 11-9.4-1(b) is a Class A misdemeanor, while a violation of section 11-9.3(a-10) is a Class 4 felony.

¶ 30 More fundamentally, the rational basis test does not require narrow tailoring; it only requires rationality. That is, the means chosen by the legislature need not be the best; they need only to be reasonable. See J.W. , 204 Ill. 2d at 72, 272 Ill.Dec. 561, 787 N.E.2d 747 ("Whether there are better means to achieve this result * * * is a matter better left to the legislature."); Moline School District No. 40 Board of Education v. Quinn , 2016 IL 119704, ¶ 28, 403 Ill.Dec. 684, 54 N.E.3d 825 ("the fact that a law might be ill-conceived does not, in itself, create a constitutional problem for us to fix, for whether a statute is wise and whether it is the best means to achieve the desired result are matters for the legislature, not the courts").

¶ 31 We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state. Avila-Briones and Pollard correctly identified a constitutional nexus. In Avila-Briones , 2015 IL App (1st) 132221, ¶ 84, 401 Ill.Dec. 40, 49 N.E.3d 428, the appellate court stated: "[B]y keeping sex offenders who have committed offenses against children away from areas where children are present * * *, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend." The Avila-Briones court added that whether the statutory scheme covering sex offenders is "a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature." Id. And in Pollard , 2016 IL App (5th) 130514, ¶ 41, 403 Ill.Dec. 574, 54 N.E.3d 234, the appellate court concluded, "There is also a direct relationship between the * * * presence restrictions of sex offenders and the protection of children." See Standley v. Town of Woodfin , 362 N.C. 328, 661 S.E.2d 728, 731 (2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town "has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts-persons previously convicted of such conduct-from entering the town's parks is a rational method of furthering that goal"). Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson , 2017 IL App (3d) 150154, 418 Ill.Dec. 1, 89 N.E.3d 835, which followed the appellate court's decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.

¶ 32 In the conclusion of his response brief, the defendant requests that, if this court rejects his facial substantive due process claim, we remand to the appellate court for consideration of his as-applied ex post facto clause claim, which that court declined to address. See 2017 IL App (3d) 140627, ¶ 25, 412 Ill.Dec. 317, 75 N.E.3d 297 (declining to address defendant's contention brought under U.S. Const., art. I, § 10 and Ill. Const. 1970, art. I, § 16 ). We agree with the defendant and so remand.

¶ 33 CONCLUSION

¶ 34 For the reasons that we have stated, the judgment of the appellate court is reversed, and the cause is remanded for consideration of defendant's claim under the ex post facto clause.

¶ 35 Appellate court judgment reversed and remanded.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.

      Section 11-1.40(a)(1) of the Criminal Code sets out the basic offense of predatory criminal sexual assault of a child:
      "(a) A person commits predatory criminal sexual assault of a child if that person is 17 years of age or older, and commits an act of contact, however slight, between the sex organ or anus of one person and the part of the body of another for the purpose of sexual gratification or arousal of the victim or the accused, or an act of sexual penetration, and:
      (1) the victim is under 13 years of age[.]" 720 ILCS 5/11-1.40(a)(1) (West 2016). Predatory criminal sexual assault of a child is a Class X felony, and the sentencing range for that offense is 6 to 60 years. 720 ILCS 5/11-1.40(b)(1) (West 2016).

      The State in its opening brief offers yet another formulation of the rational basis test. According to the State, a statute will be upheld "as long as it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor unreasonable." In re M.A. , 2015 IL 118049, ¶ 55, 397 Ill.Dec. 759, 43 N.E.3d 86 ; accord Hollins , 2012 IL 112754, ¶ 15, 361 Ill.Dec. 402, 971 N.E.2d 504 (citing People v. Dabbs , 239 Ill. 2d 277, 292, 346 Ill.Dec. 484, 940 N.E.2d 1088 (2010) ) ); see also Hayashi v. Illinois Department of Financial & Professional Regulation , 2014 IL 116023, ¶ 28, 388 Ill.Dec. 878, 25 N.E.3d 570 (stating that the rational basis test "requires a court to uphold a statute if it bears a rational relationship to a legitimate legislative purpose and is neither arbitrary nor discriminatory"). The State's formulation contains two phrasings of the same standard. See Doe v. City of Lafayette , 377 F.3d 757, 773 (7th Cir. 2004). If a statute is arbitrary, it would obviously bear no rational relation to any government interest, except by chance.

      One of the amicus briefs reminds us that it is "perhaps subjective" whether recidivism rates are low or high. Further, as the State observes, "[n]obody knows the true re-offense rate for child sex offenders" because only a small percentage of sex offenses are reported and only a small percentage of reported offenses result in arrests. However, "researchers widely agree that observed recidivism rates are underestimates of the true reoffense rates of sex offenders." (Emphasis omitted.) Sex Offender Management Assessment and Planning Initiative , Chris Lobanov-Rostovsky & Roger Przybylski, eds., Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, & Tracking 91 (2014), https://smart.gov/SOMAPI/pdfs/SOMAPI_Full% 20Report.pdf.


text:
    The PEOPLE of the State of Illinois, Appellant, v. John PLANK, Appellee.
    Docket No. 122202
    Supreme Court of Illinois.
    Opinion filed May 24, 2018.
    Lisa Madigan, Attorney General, of Springfield (David L. Franklin, Solicitor General, and Michael M. Glick and Eric M. Levin, Assistant Attorneys General, of Chicago, of counsel), for the People.
    J. Steven Beckett and Audrey C. Thompson, of Beckett & Webber, P.C., of Urbana, and Francis L. Thomas, of Tolono, for appellee.
   JUSTICE GARMAN delivered the judgment of the court, with opinion.

¶ 1 The Illinois Vehicle Code prohibits anyone with a revoked driver's license from driving a "motor vehicle." 625 ILCS 5/6-303(a) (West 2012). However, someone with a revoked license may still drive a "low-speed gas bicycle" without violating this statute. Id. § 1-146. The Vehicle Code defines "low-speed gas bicycle" as a "2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour." Id. § 1-140.15.

¶ 2 When the State charged defendant John Plank with driving a motor vehicle with a revoked license, he claimed that the statute did not clearly tell him which vehicles he could and could not drive. Specifically he argued that the Vehicle Code's definition of "low-speed gas bicycle" was unconstitutionally vague in violation of the due process clauses of the United States and Illinois Constitutions. The circuit court agreed with defendant, dismissed the charge against him, and declared section 1-140.15 unconstitutional on its face. The State appealed directly to this court. We find that the Vehicle Code's definition of "low-speed gas bicycle" satisfies the requirements of due process of law, and we reverse the circuit court's decision and remand for further proceedings.

¶ 3 BACKGROUND

¶ 4 Officer Judson Wienke saw defendant John Plank riding a motorized bicycle down a Douglas County road at a speed of 26 miles per hour. Officer Wienke would later testify that he believed that "with motorized bikes they are allowed to go up to 19 miles per hour. Once they hit 20, they have to have a valid driver's license, insurance, and registration." He signaled to defendant to stop, and defendant pulled over. Defendant admitted to Officer Wienke that his license was revoked.

¶ 5 The State charged defendant with violating section 6-303(a) of the Vehicle Code. Generally, driving a motor vehicle on state highways with a revoked license is a Class A misdemeanor. However, the State alleged that defendant's license had been revoked previously following a conviction for driving under the influence of drugs or alcohol (DUI). After that DUI conviction, defendant was convicted for driving without a valid license in 2011, 2012, and 2013. This background led the State to increase the new charge to a Class 4 felony, requiring at least 180 days' incarceration. Id. § 6-303(d-3).

¶ 6 The circuit court did not conduct any evidentiary hearings, so Officer Wienke's testimony at the preliminary hearing provides the only factual record. He described defendant's bicycle as powered by "a weed-eater motor" and noted that it was not registered in Illinois. Although the bicycle had pedals in addition to its gasoline motor, Officer Wienke testified that he did not see defendant pedaling.

¶ 7 Defendant moved to dismiss the charge, arguing that the Vehicle Code's definition of "low-speed gas bicycle" was unconstitutionally vague. He claimed both that the definition fails to provide persons of ordinary intelligence with a reasonable opportunity to understand what is prohibited and that the definition encourages arbitrary and discriminatory enforcement. The circuit court agreed and dismissed the charge. The court noted that the definition refers to a "paved level surface" but no surface is perfectly level. The definition also relies on the vehicle's maximum speed with a driver who weighs 170 pounds. The circuit court criticized this aspect of the statute, repeating defendant's claim that a police officer "would have to have a scale in their squad car in order to weigh the individual as soon as they pulled them over."

¶ 8 The State filed a motion to reconsider, which the circuit court denied. At the State's request, the court also made explicit findings under Illinois Supreme Court Rule 18 (eff. Sept. 1, 2006). However, the court neglected to specify whether it found the statute unconstitutional as applied or on its face. The State appealed, and this court remanded to the circuit court so that it could clarify its ruling. The circuit court made its findings explicit, and it found section 1-140.15 unconstitutional on its face. This appeal followed.

¶ 9 ANALYSIS

¶ 10 When an Illinois circuit court finds a statute unconstitutional, Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) gives this court jurisdiction over the appeal. Whether a statute violates the United States or Illinois Constitution is a question of law, which this court reviews de novo . People v. Madrigal , 241 Ill. 2d 463, 466, 350 Ill.Dec. 311, 948 N.E.2d 591 (2011). Statutes are presumed to be constitutional, and "[t]o overcome this presumption, the party challenging the statute must clearly establish that it violates the constitution." (Internal quotation marks omitted.) People v. Rizzo , 2016 IL 118599, ¶ 23, 406 Ill.Dec. 488, 61 N.E.3d 92.

¶ 11 The State alleged that defendant violated section 6-303(a) of the Vehicle Code, which states that "any person who drives or is in actual physical control of a motor vehicle on any highway of this State at a time when such person's driver's license, permit or privilege to do so or the privilege to obtain a driver's license or permit is revoked *** shall be guilty of a Class A misdemeanor." 625 ILCS 5/6-303(a) (West 2012). The term "motor vehicle" includes "[e]very vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles ." (Emphasis added.) Id. § 1-146. Finally, "low-speed gas bicycle" is defined as a "2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour." Id. § 1-140.15.

¶ 12 The circuit court agreed with defendant that this definition of "low-speed gas bicycle" was unconstitutionally vague and, thus, violated the due process clauses of the United States and Illinois Constitutions. U.S. Const., amend. XIV ; Ill. Const. 1970, art. I, § 2. A statutory provision can be too vague to satisfy the requirements of due process of law in two ways: first, the statute does not provide individuals of ordinary intelligence a reasonable opportunity to understand what conduct the law prohibits, or second, the statute does not provide law enforcement with reasonable standards to avoid arbitrary or discriminatory enforcement. City of Chicago v. Morales , 527 U.S. 41, 56, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) ; Bartlow v. Costigan , 2014 IL 115152, ¶ 40, 383 Ill.Dec. 95, 13 N.E.3d 1216. By allowing government actors to enforce only those statutes with definite content, the vagueness doctrine protects the rule of law from potential abuses of discretion. John C. Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes , 71 Va. L. Rev. 189, 212-19 (1985). However, "[i]f the plain language of the statute sets forth clearly perceived boundaries, the vagueness challenge fails, and our inquiry ends." Bartlow , 2014 IL 115152, ¶ 42, 383 Ill.Dec. 95, 13 N.E.3d 1216.

¶ 13 We find that the circuit court erred when it found the definition unconstitutional. The statute both provides sufficient notice of what it prohibits to individuals of ordinary intelligence and supplies law enforcement officers with reasonable standards to prevent arbitrary enforcement.

¶ 14 A. The Driver's Weight

¶ 15 Initially the parties dispute whether a vehicle only qualifies as a "low-speed gas bicycle" when it is driven by someone who weighs 170 pounds. To reiterate, a "low-speed gas bicycle" is a "2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour." 625 ILCS 5/1-140.15 (West 2012).

¶ 16 Defendant argues that the definition only applies when the driver weighs exactly 170 pounds and that the statute is vague when drivers have different weights. He cites the statutory canon that courts must give effect to every provision of the statute and should not render any part of it superfluous. Corley v. United States , 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009). Because the Vehicle Code limits the definition of "low-speed gas bicycle" to a vehicle "ridden by an operator who weighs 170 pounds," defendant argues that the court would violate this statutory canon if it read the definition to apply to all drivers, not solely those drivers who weigh 170 pounds. He refers to this as the "weight component" of the statute, and he notes that 40 other states have similar provisions in their vehicle codes that do not reference the driver's weight.

¶ 17 The State responds that the definition refers to the weight of a driver only to clarify how powerful a vehicle's engine must be for the vehicle to qualify as a "motor vehicle" and that an engine's capability is the same regardless of any particular driver's weight. To designate the relevant engine capability, the definition relies on the bicycle's maximum speed on a paved, level surface. The State cites the National Highway Traffic Safety Administration's (NHTSA) explanation that "the speed of a low-powered, two-wheeled vehicle may vary considerably depending on the weight of the driver." NHTSA, Notice of Draft Interpretation, 70 Fed. Reg. 34810, 34812 (June 15, 2005). According to the State, this explains why the relevant metric is the vehicle's "maximum speed on a paved level surface *** while ridden by an operator who weighs 170 pounds ." (Emphasis added.) 625 ILCS 5/1-140.15 (West 2012).

¶ 18 The State's reading is more persuasive. Defendant would be correct if the Vehicle Code defined "low-speed gas bicycle" as a "2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, while ridden by an operator who weighs 170 pounds." However, the definition includes other phrases. The statute actually defines "low-speed gas bicycle" as a "2 or 3-wheeled device with fully operable pedals and a gasoline motor of less than one horsepower, whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 miles per hour ." (Emphases added.) Id. As defendant suggests, the court must give effect to every phrase in the statute and should not render any part of it superfluous. These phrases mean that a defining characteristic of a low-speed gas bicycle is an engine that is incapable of transporting 170 pounds at 20 miles per hour without help from gravity or pedaling. A bicycle's motor will either have this capability or not, regardless of the weight of any particular driver.

¶ 19 B. Difficulty Understanding the Statute

¶ 20 Even though a vehicle's status as a "motor vehicle" or a "low-speed gas bicycle" is the same regardless of any particular driver's weight, defendant still insists that the Vehicle Code's definition of "low-speed gas bicycle" is vague because people of ordinary intelligence cannot determine which vehicles they can legally drive. Defendant states in his brief that "the sole reason [he] purchased the vehicle at issue in this case is because, as someone whose license was revoked, he knows he may not operate motor vehicles. [Defendant] bought his motorized bicycle to comply with the law by operating a vehicle that fell under one of the prescribed exceptions to a 'motor vehicle.' " His brief also references two newspaper articles that express similar frustrations. He contends that even when people want to comply with the law, they cannot easily determine how to do so.

¶ 21 The circuit court neither conducted an evidentiary hearing nor heard defendant testify, so none of this information is part of the record. Regardless, these allegations do not change this court's analysis. Even before he drove his new bicycle, defendant had an obligation to determine whether it fit the definition of "low-speed gas bicycle." The Vehicle Code specifies that each "motor vehicle *** when driven or moved upon a highway shall be subject to the registration and certificate of title provisions of this" statute. Id. § 3-402. It also requires that "[e]very owner of a vehicle subject to registration under this Code shall make application to the Secretary of State for the registration of such vehicle upon the appropriate form or forms furnished by the Secretary." Id. § 3-405. An application for vehicle registration must accompany an application for a certificate of title. Id. § 3-115(a). According to Officer Wienke's uncontested testimony, defendant did not register his vehicle. Instead of assuming his vehicle was exempt, defendant needed to diligently determine how to satisfy the Vehicle Code's requirements.

¶ 22 Although defendant rightly observes that every statute must "provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits" (internal quotation marks omitted) ( Bartlow , 2014 IL 115152, ¶ 40, 383 Ill.Dec. 95, 13 N.E.3d 1216 ), the vagueness doctrine does not invalidate every statute with a complicated standard of conduct. Instead, a statutory provision is unconstitutionally vague if it "provides no standard of conduct at all" ( People v. Fabing , 143 Ill. 2d 48, 55, 155 Ill.Dec. 816, 570 N.E.2d 329 (1991) (finding a provision of the Illinois Dangerous Animals Act ( Ill. Rev. Stat. 1987, ch. 8, ¶ 240 et seq. ) that prohibited possessing a "life-threatening reptile" sufficiently clear to affirm the defendant's conviction for possessing two Burmese pythons and an alligator) ). A statute is not proven vague when someone misunderstands its terms. Rather, courts fairly "require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines, Inc. v. United States , 342 U.S. 337, 340, 72 S.Ct. 329, 96 L.Ed. 367 (1952). The vagueness doctrine also does not require that a statute's application to a particular set of facts be readily apparent. The General Assembly may constitutionally require people to seek additional information before they engage in legally questionable behavior. Bartlow , 2014 IL 115152, ¶¶ 45-49, 383 Ill.Dec. 95, 13 N.E.3d 1216.

¶ 23 When courts have struck down statutes under the vagueness doctrine, they have done so because the statutes depended on "wholly subjective judgments." (Internal quotation marks omitted.) Holder v. Humanitarian Law Project , 561 U.S. 1, 20, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). For example, the United States Supreme Court found that a statute that prohibited grocery stores from charging "unjust or unreasonable rate[s]" was unconstitutionally vague. United States v. L. Cohen Grocery Co. , 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921) ; Johnson v. United States , 576 U.S. ----, ----, 135 S.Ct. 2551, 2561, 192 L.Ed.2d 569 (2015). Similarly, a criminal statute that punished "annoying" loitering denied the defendants due process of law. Coates v. City of Cincinnati , 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). As the United States Supreme Court explained in United States v. Williams , "[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is." United States v. Williams , 553 U.S. 285, 306, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

¶ 24 In contrast to statutes with subjective terms, statutes that define criminal conduct with mathematical precision routinely survive vagueness challenges before state supreme courts. In People v. Falbe , 189 Ill. 2d 635, 244 Ill.Dec. 901, 727 N.E.2d 200 (2000), this court upheld an enhanced penalty for selling cocaine within 1000 feet of a church. Whether the prohibited conduct occurred within this area was "merely a matter of measurement," so the statute was not vague. Id. at 641, 244 Ill.Dec. 901, 727 N.E.2d 200. The Washington Supreme Court reached the same conclusion when it found that an increased penalty for selling drugs near school bus stops was constitutional. State v. Coria , 120 Wash.2d 156, 839 P.2d 890 (1992). Even if the defendant could not easily know whether he was within 1000 feet of a school bus stop, the standard of conduct was clear. Id. at 897. In Burg v. Municipal Court , 35 Cal.3d 257, 198 Cal.Rptr. 145, 673 P.2d 732 (1983), the Supreme Court of California upheld a statute that prohibited anyone with a blood-alcohol content over 0.10% from driving a motor vehicle. The defendant had argued that the statute was unconstitutionally vague because typical drivers have no way to test their own blood-alcohol level. The California court rejected this, finding that the statute was sufficiently clear to convey what it prohibited. Although this California decision does not bind Illinois courts, Illinois has a similar statute, and this court has not struck it down for vagueness. See, e.g. , 625 ILCS 5/11-501(a)(1) (West 2012).

¶ 25 The Vehicle Code's definition of "low-speed gas bicycle" resembles the statutes in Falbe and Burg more than those in L. Cohen Grocery Co. and Coates . Unlike the unconstitutionally vague statutes in L. Cohen Grocery Co . and Coates , the Vehicle Code does not treat the same conduct differently based on each person's subjective evaluation of what is "annoying" or "unreasonable." Instead, a particular vehicle either is a "low-speed gas bicycle" for everyone or it is not for everyone, just as a driver's blood-alcohol content either is or is not over 0.10%. See Burg , 198 Cal.Rptr. 145, 673 P.2d at 740-43. This is all that the vagueness doctrine requires.

¶ 26 Defendant also argues that the statute is unconstitutionally vague because police officers cannot enforce it without resorting to arbitrary considerations. To determine whether a particular bicycle is a "motor vehicle," an officer would need to estimate the strength of the bicycle's motor by considering the driver's weight, the vehicle's speed on a paved, level surface, and whether the pedals function properly. However, defendant objects that officers cannot accurately make such determinations during a traffic stop. Although officers can estimate the driver's speed using a radar gun, they cannot determine to what extent that speed resulted from the gasoline engine, the driver's pedaling, or an inclined path.

¶ 27 In support of this argument, defendant points to Officer Wienke's testimony at the preliminary hearing. Officer Wienke testified that "with motorized bikes [drivers] are allowed to go up to 19 miles per hour. Once they hit 20, they have to have a valid driver's license, insurance, and registration." Defendant suggests that Officer Wienke confused the Vehicle Code's definition of "low-speed gas bicycle" with section 11-1516(b), which prohibits driving a low-speed gas bicycle over 20 miles per hour.

625 ILCS 5/11-1516(b) (West 2012). According to defendant's interpretation, Officer Wienke also failed to consider the driver's weight or pedaling. This echoes the circuit court's concern that the statute refers to the vehicle's speed on a paved, level surface but no surface is perfectly level. Defendant argues that the statute asks officers to make assessments that they cannot possibly make and that this authorizes arbitrary enforcement.

¶ 28 Even if defendant is correct that an officer might have difficulty estimating engine power, the vagueness doctrine does not require officers to precisely gather sufficient data to prove all the elements of a crime at the moment of citation or arrest. An officer need only have probable cause to believe the suspect has committed a crime. People v. Grant , 2013 IL 112734, ¶ 11, 368 Ill.Dec. 205, 983 N.E.2d 1009. For example, if a driver swerves erratically, stumbles and sways when exiting the vehicle, and smells of alcohol, an officer has probable cause to suspect the driver of being intoxicated. People v. Wear , 229 Ill. 2d 545, 565, 323 Ill.Dec. 359, 893 N.E.2d 631 (2008). Looking for such behavior is a sensible way for the officer to evaluate the driver's mental state. If the officer cannot test the driver's blood-alcohol content, this inability to immediately gather precise data about the driver's state does not render the statute prohibiting driving while intoxicated unconstitutionally vague. Similarly, if an officer sees someone driving a motorized bicycle at a speed well over 20 miles per hour down a level road, those facts support the officer's initial conclusions that this vehicle's motor is powerful enough to move someone who weighs 170 pounds over a paved, level surface at a speed over 20 miles per hour and that the driver needs a valid license to operate this vehicle.

¶ 29 The vagueness doctrine is not implicated every time officers cannot conclusively determine at a glance whether someone has violated a particular statutory provision. Once the State has charged someone with violating section 6-303(a) of the Vehicle Code, the prosecutor still has the burden of proving the elements of the crime beyond a reasonable doubt-including that the bicycle that the defendant drove had a strong enough motor to qualify it as a "motor vehicle." People v. Grandadam , 2015 IL App (3d) 150111, ¶ 17, 398 Ill.Dec. 582, 44 N.E.3d 611. As far as the vagueness doctrine is concerned, the Vehicle Code's definition of "low-speed gas bicycle" provides both law enforcement and other law-abiding Illinoisans with definite criteria to determine if a certain vehicle is a "motor vehicle." It is not so ineffective that it "provides no standard of conduct at all." Fabing , 143 Ill. 2d at 55, 155 Ill.Dec. 816, 570 N.E.2d 329.

¶ 30 CONCLUSION

¶ 31 The Vehicle Code's definition of "low-speed gas bicycle" satisfies the requirements of due process of law. We reverse the circuit court's dismissal of the charge and remand for further proceedings.

¶ 32 Reversed and remanded.

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Burke, and Theis concurred in the judgment and opinion.