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    PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Conrad Allen MORGER, Defendant-Appellant.
    NO. 4-17-0285
    Appellate Court of Illinois, Fourth District.
    FILED April 25, 2018
    Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, of State Appellate Defender's Office, of Springfield, for appellant.
    Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and John M. Zimmerman, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with 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, 405 Ill.Dec. 926, 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.

¶ 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, 398 Ill.Dec. 22, 43 N.E.3d 932, and People v. Daily , 2016 IL App (4th) 150588, ¶ 30, 411 Ill.Dec. 706, 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, 411 Ill.Dec. 706, 74 N.E.3d 15. 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, 407 Ill.Dec. 904, 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.

¶ 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, 405 Ill.Dec. 926, 59 N.E.3d 219. 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 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, --- Ill.Dec. ----, --- N.E.3d ---- (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, 414 Ill.Dec. 822, 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, 414 Ill.Dec. 822, 81 N.E.3d 88. "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, 272 Ill.Dec. 561 (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, 414 Ill.Dec. 822, 81 N.E.3d 88. "[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

¶ 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, 223 Ill.Dec. 582, 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 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, 223 Ill.Dec. 582, 680 N.E.2d 315. 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, 223 Ill.Dec. 582, 680 N.E.2d 315. 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, 124 Ill.Dec. 252, 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, 124 Ill.Dec. 252, 528 N.E.2d 1360.

¶ 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, 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 5/17-0.5 (West 2012).

¶ 35 In People v. Crabtree , 2015 IL App (5th) 130155, ¶ 1, 395 Ill.Dec. 86, 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, 396 Ill.Dec. 130, 39 N.E.3d 956 ), because it is reasonably 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) )."

¶ 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, 396 Ill.Dec. 130, 39 N.E.3d 956. 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, 272 Ill.Dec. 561, 787 N.E.2d 747. Although defendant's criminal sexual offenses did not involve use of a computer, the 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 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, 396 Ill.Dec. 130, 39 N.E.3d 956 (quoting Meyer , 176 Ill. 2d at 378, 223 Ill.Dec. 582, 680 N.E.2d 315 ). 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 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, 110 Ill.Dec. 376, 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, 223 Ill.Dec. 582, 680 N.E.2d 315. 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 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 the probationer." J.W. , 204 Ill. 2d at 79, 272 Ill.Dec. 561, 787 N.E.2d 747. 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, 223 Ill.Dec. 582, 680 N.E.2d 315.

¶ 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, 414 Ill.Dec. 822, 81 N.E.3d 88. 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, 179 Ill.Dec. 560, 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, 272 Ill.Dec. 561, 787 N.E.2d 747. 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, 198 L.Ed.2d 273 (2017), in 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

"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, 122 S.Ct. 587, 151 L.Ed.2d 497 (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, 395 Ill.Dec. 86, 37 N.E.3d 922. 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 .

¶ 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 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, 122 S.Ct. 587. 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, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting Morrissey v. Brewer , 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (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 probation which impinges on fundamental constitutional rights is not automatically deemed invalid." J.W. , 204 Ill. 2d at 78, 272 Ill.Dec. 561, 787 N.E.2d 747.

¶ 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, 414 Ill.Dec. 822, 81 N.E.3d 88. 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.

¶ 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.

Justices DeArmond and Turner concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The VILLAGE OF ALGONQUIN, Plaintiff-Appellee, v. Mark E. SATO, Defendant-Appellant.
    No. 2-17-0089
    Appellate Court of Illinois, Second District.
    Opinion filed April 25, 2018
    Mark Sato, of Lakewood, appellant pro se.
    No brief filed for appellee.
   JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, the Village of Algonquin, charged defendant, Mark E. Sato, with driving over the posted speed limit (Algonquin Municipal Code § 41.01 (amended Dec. 21, 2010) (incorporating by reference 625 ILCS 5/11-601(b) (West 2016) ) ). Defendant proceeded pro se . After a bench trial, the court found him guilty and imposed $311 in fines and fees. Defendant, still proceeding pro se , appeals. He contends that (1) the judgment was erroneous because there was no proof that a valid engineering survey supported the speed limit and (2) plaintiff did not provide a proper foundation for the evidence of his speed as measured by police radar and the officer's squad-car speedometer. We affirm.

¶ 2 At trial, Algonquin police officer Josh Latina was the sole witness. On direct examination, he testified as follows. On September 27, 2016, at 7:50 a.m. he was on patrol, driving in the middle lane of southbound Randall Road and momentarily stopped at a red light at the intersection with County Line Road. The posted speed limit was 50 miles per hour. As the light turned green, he saw a silver car go through the intersection at a high speed. Latina accelerated, catching up to the car and pacing it, keeping a car length behind. His squad-car speedometer read 75 miles per hour. The squad car, including the speedometer, had been tested every three months. Had the car failed any part of the test, it would have been taken out of service until it was repaired.

¶ 3 Latina testified that he had also activated the car's radar device, a Genesis II directional model mounted on the dashboard. It also read 75 miles per hour. Latina had tested the radar device at 7 a.m. and did so again after the stop. Both times the device passed the test. Latina explained that he used two tuning forks that were set for different speeds. He testified in part, "you hit the metal tuning fork * * * on another piece of metal. * * * And then you put it in front of the radar unit and it gives you a reading and if the reading matches the speed on the tuning fork, then you know the radar is calibrated properly." Latina activated his emergency lights and pulled over the car, which defendant was driving.

¶ 4 Defendant did not object to any of the testimony about the speedometer or the tests of the radar unit.

¶ 5 On cross-examination, defendant first asked Latina whether he could present the "calibration log" for the radar device. Latina said that he could not. Defendant then asked Latina whether he could present "the traffic engineering survey as * * * required by 23 CFR 630 [sic ] and [the Manual on Uniform Traffic Control Devices (MUTCD) ] Title 23 VSA [sic ] showing that the speed survey [was] less than five years old and that the speed posted was in compliance." Plaintiff objected on grounds of foundation and relevance. Defendant asserted that without the survey the speed limit would not be enforceable. He contended that it was plaintiff's burden to introduce the survey. He had made a request under the Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2016) ) to the McHenry County State's Attorney's office for the survey report; the office responded that it had no such document, and it referred him to the county's transportation department. Defendant stated that it was not his responsibility to provide the foundation for plaintiff's evidence. The court disagreed that plaintiff had any such burden, and it sustained plaintiff's objection.

¶ 6 Noting that Latina had testified that he had used tuning forks to test the radar device, defendant asked Latina to "present for the purpose of foundation as to [sic ] the evidence and to the required documents [sic ] certifying that the tuning forks themselves [were] accurate, [had] been tested and certified within the last six months." The State objected. The court told defendant that he could not use cross-examination to make Latina produce records but could ask the officer about documents that he might have. Defendant then asked Latina whether he had "the accompanying documentation for the tuning fork accuracy." Latina said that he did not have the documentation with him and did not personally know of it, as testing records were maintained by a supervisor. Asked how he knew that the tuning forks were accurate on the day of the stop, Latina said that he had no way of testing the tuning forks; that was "above [his] pay grade."

¶ 7 Defendant asked Latina whether he had documentation from "an approved speedometer shop certifying the accuracy" of the speedometer that he had used on the day of the stop. Latina responded that he had no such documentation with him and that it would be kept in a file by a supervisor. Latina reiterated that the speedometer was checked every three months as part of preventive maintenance, but he did not personally know about the maintenance procedure.

¶ 8 Defendant tendered the court authorities that, he claimed, were pertinent to the radar and speedometer readings. The court stated that there were two separate potential issues: the admissibility of the evidence, based on the sufficiency of the foundation, and the weight to be accorded to the evidence were it admitted. The court ruled that there was a sufficient foundation for Latina's testimony about the radar and speedometer readings. Latina then testified that, when he first saw defendant pulling away from the intersection, he believed that defendant was speeding. He based his belief on his experience as a traffic officer and on the fact that defendant was driving faster than everyone else on the road.

¶ 9 In its closing argument, plaintiff contended that Latina's observations of defendant, along with the radar and speedometer readings, proved that he had been driving 75 miles per hour in a 50-mile-per-hour zone. Defendant contended that plaintiff had failed to show that an engineering survey had been performed no more than five years before the stop, as needed to make the speed limit valid under federal law. He also argued that plaintiff had failed to introduce evidence that the radar and speedometer had been properly tested and certified as accurate. In reply, plaintiff asserted that, because defendant had not objected when the evidence relating to the radar and speedometer readings was introduced, his arguments on this point went, at the most, to the weight of this evidence, not its admissibility.

¶ 10 The trial court issued a written judgment stating as follows. Based on the evidence, the radar and the speedometer had been accurate and reliable. Although plaintiff had not produced test results for the instruments, there was no evidence that they had not been working properly. Further, plaintiff had not had the burden to produce a traffic-engineering study to validate the speed limit. As Latina's testimony about the radar reading and his personal observation of defendant's driving was unrebutted, plaintiff had proved that defendant had driven 25 miles per hour over the posted speed limit. The court later imposed $311 in fines and fees against defendant. He timely appealed.

¶ 11 Plaintiff has not filed a brief. Nonetheless, we may decide the appeal on its merits. See First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133, 345 N.E.2d 493 (1976).

¶ 12 Defendant contends first that the judgment must be reversed because plaintiff never introduced an engineering survey of the part of Randall Road at issue. Defendant argues that, because the State and McHenry County have adopted the MUTCD, which sets the legal prerequisites for posted speed limits-one of which is the completion of an engineering survey-plaintiff's failure to prove that the required survey had been performed was fatal to its case.

¶ 13 The first district of the appellate court has recently decided this issue. In Village of Mount Prospect v. Kurtev , 2017 IL App (1st) 170493, 418 Ill.Dec. 831, 91 N.E.3d 532, the defendant was found guilty of speeding and disobeying a traffic-control device. On appeal, he contended that the plaintiff never showed that the speed-limit signs, traffic-control devices, and road markings complied with the MUTCD or that the speed limit was based on an engineering study. Id. ¶ 1.

¶ 14 The appellate court held that there had been no error. It noted first that the plaintiff's code had adopted by reference the full Illinois Vehicle Code (Code) ( 625 ILCS 5/1-100 et seq. (West 2016) ), including section 11-301(a), by which the MUTCD governs local traffic-control devices. Kurtev , 2017 IL App (1st) 170493, ¶ 9, 418 Ill.Dec. 831, 91 N.E.3d 532 ; see 625 ILCS 5/11-301(a) (West 2016). Further, adopting section 11-305(a) of the Code, the ordinance stated that an official traffic-control device shall be presumed to comply with the requirements of the Code unless competent evidence establishes otherwise. Kurtev , 2017 IL App (1st) 170493, ¶ 10, 418 Ill.Dec. 831, 91 N.E.3d 532 ; see 625 ILCS 5/11-305(a) (West 2016). The arresting officer's testimony proved that the defendant had violated the speed limit and failed to stop at a red light. Kurtev , 2017 IL App (1st) 170493, ¶ 11, 418 Ill.Dec. 831, 91 N.E.3d 532. Thus, to raise his defense, the defendant had the burden to introduce evidence that the traffic-control signs and devices had failed to comply with the applicable regulations, including the MUTCD's requirements, as the plaintiff had introduced no such evidence. Id. ¶¶ 12-13 (citing People v. Powers , 89 Ill. App. 2d 120, 121-22, 233 N.E.2d 93 (1967) (alleged violation of statute by placing radar device no more than 500 feet from speed-limit sign was affirmative defense as to which defendant had burden to introduce evidence) ). As he had not met his burden, the plaintiff's prima facie case had been unrebutted, and the judgment had to be affirmed. Id. ¶ 17. The court noted that various foreign authorities on which the defendant relied also placed this burden on the defendants. Id. ¶ 16.

¶ 15 We agree with the reasoning of Kurtev , which applies to the similar facts here. Here, plaintiff had adopted the Code in full (see Algonquin Municipal Code, § 41.01(A) (amended Dec. 21, 2010) (incorporating by reference 625 ILCS 5/1-100 et seq. (West 2016) ). Thus, to raise his defense, defendant had to introduce competent evidence that plaintiff had failed to comply with the Code's requirement of an engineering survey. Defendant did not do so. He questioned Latina about the existence of a survey, but he had the burden to raise his defense; plaintiff did not have the burden to refute it. Thus, we reject defendant's first claim of error.

¶ 16 Defendant contends second that the judgment must be reversed because plaintiff did not lay a sufficient foundation for Latina's testimony that his radar and speedometer clocked defendant's vehicle at 75 miles per hour. Defendant asserts that (1) although Latina used tuning forks to test the radar before and after the stop, plaintiff introduced no evidence that the tuning forks themselves had been tested and certified for accuracy and (2) plaintiff introduced no evidence that the squad car's speedometer had been tested and certified for accuracy.

¶ 17 We note first that, as plaintiff argued in closing, defendant did not object to the admission of Latina's testimony about the radar and speedometer readings but waited until cross-examination to question Latina about whether the devices had been tested and certified for accuracy. Thus, we agree with plaintiff that defendant forfeited any argument that the testimony at issue was inadmissible, and his arguments went (and now go) only to the weight to be accorded to it. See People v. Hopson , 2012 IL App (2d) 110471, ¶ 18, 364 Ill.Dec. 373, 976 N.E.2d 651. We note, however, that the trial court did consider the foundation issue and held for plaintiff. In any event, though, we do not agree with defendant's claim of error.

¶ 18 Defendant argues in part that the admission of the radar reading required evidence that the tuning forks used to test the radar device had themselves been tested and certified as accurate. As defendant acknowledges, Illinois case law does not support his contention. In People v. Abdallah , 82 Ill. App. 2d 312, 226 N.E.2d 408 (1967), a speeding case, the arresting officer tested the radar with a single tuning fork immediately before he stopped the defendant's car and several times later that day. He testified that there had been no outside interference that could have influenced the radar reading. The appellate court deemed this sufficient to admit the radar evidence. Id. at 316-17, 226 N.E.2d 408. Relying partly on People v. Dusing , 5 N.Y.2d 126, 181 N.Y.S.2d 493, 155 N.E.2d 393 (N.Y. 1959), the court held that, if the accuracy of a radar device is unproven, the results will be admissible but will be insufficient to convict; but if there is "reasonable and sufficient proof of the accuracy of the radar instrument," the reading in itself can be sufficient to convict. Abdallah , 82 Ill. App. 2d at 316, 226 N.E.2d 408.

¶ 19 Later Illinois opinions have upheld the admission of radar results under similar circumstances. In People v. Barbic , 105 Ill. App. 2d 360, 244 N.E.2d 626 (1969), the radar device was tested with a single tuning fork once shortly before the defendant's vehicle was stopped and four times at short intervals afterward. According to the officer who ran the tests, the "possible percentage of error" was less than one percent. Id. at 362-63, 244 N.E.2d 626. The appellate court held that the radar evidence was sufficient to prove guilt beyond a reasonable doubt. Id. at 369, 244 N.E.2d 626. In People v. Stankovich , 119 Ill. App. 2d 187, 190-92, 255 N.E.2d 461 (1970), the court held that the State had laid an adequate foundation by introducing testimony that the radar unit had been sufficiently warmed up and had been tested by a single tuning fork twice before the defendant was stopped. In People v. Burch , 19 Ill. App. 3d 360, 363, 311 N.E.2d 410 (1974), the court found sufficient the officer's testimony that he tested his radar apparatus with an "electronic plug-in device" before and after he stopped the defendant. Finally, in People v. Davenport , 133 Ill. App. 3d 553, 88 Ill.Dec. 680, 479 N.E.2d 15 (1985), the court deemed the radar evidence admissible and sufficient to convict, although the officer testified only (as far as the opinion discloses) that he conducted "both an internal and an external test for the calibration of the device" about 20 minutes before he stopped the defendant and again about 20 minutes afterward. Id. at 564-65, 88 Ill.Dec. 680, 479 N.E.2d 15.

¶ 20 Defendant contends that these opinions are outdated because they overestimate the reliability of tuning-fork tests for radar devices. Defendant cites various foreign opinions that, he asserts, require prosecutors to introduce proof that the tuning forks have been tested and certified for accuracy. See, e.g. , State v. Tomanelli , 153 Conn. 365, 216 A.2d 625, 630 (1966) ; City of Kansas City v. Tennill , 630 S.W.2d 173, 174 (Mo. Ct. App. 1982) ; State v. Carman , 10 Neb.App. 373, 631 N.W.2d 531, 535-37 (2001) ; see also City of St. Louis v. Boecker , 370 S.W.2d 731, 734 (Mo. Ct. App. 1963). He contends that, because there was no evidence that the tuning forks that Latina used had been independently tested for accuracy, the results of the radar were insufficiently reliable to be admitted.

¶ 21 We do not find the foregoing case law compelling ground for a departure from longstanding Illinois precedent. Whatever foreign authority supports defendant, ample foreign authority calls for upholding the radar evidence under the circumstances of this case. The key consideration is that Latina used two tuning forks, set for different speeds, to test the radar device. We agree with those authorities that, even if testing a radar device with one tuning fork is insufficient, testing it with two or more tuning forks set to different speeds is sufficient, because the tests corroborate each other and thus minimize the likelihood of unreliable results.

¶ 22 Several courts that have rejected reliance on a test with a single uncalibrated tuning fork have endorsed testing with two or more tuning forks, even without independent evidence of their accuracy. People v. Walker , 199 Colo. 475, 610 P.2d 496, 500 (1980) ; State v. Ahern , 122 N.H. 744, 449 A.2d 1224, 1226 (1982) ; People v. Readding , 160 N.J.Super. 238, 389 A.2d 512, 514-15 (Law Div. 1978) ;

State v. Bechtel , 24 Ohio App.3d 72, 493 N.E.2d 318, 320 (1985). The reasoning of these opinions was well set out by the New Hampshire Supreme Court: "[T]he use of two tuning forks provided sufficient assurance that the tuning forks themselves were accurate, because each tuning fork corroborated the accuracy of the other, and it was highly unlikely that the radar unit and both tuning forks would have been inaccurate to the same degree." Ahern , 449 A.2d at 1226 ; see also Kramer , 299 N.W.2d at 885 (although endorsing Abdallah , court also noted that arresting officer's use of two tuning forks to test radar device "minimized" risk of tuning-fork inaccuracy).

¶ 23 We find the foregoing authority ample and, more important, highly persuasive. We need not revisit Abdallah 's endorsement of a single-tuning-fork test. Here, before and after he stopped defendant, Latina tested the radar device with two tuning forks that were set to different speeds. Even were we to depart from Illinois authority, we would uphold the admission of the radar evidence and conclude that it was sufficient in itself to prove speeding.

¶ 24 Defendant also contends that plaintiff did not lay a sufficient foundation for Latina's testimony that his speedometer measured defendant's speed at 75 miles per hour. We need not address this contention, as any error was harmless. The radar evidence and Latina's personal observation of defendant's car amply supported the judgment. This is especially so because plaintiff had to prove only that defendant had exceeded 50 miles per hour-and the radar clocked him at 75 miles per hour. To hold this evidence insufficient, the court would have had to conclude that the radar was not merely off but wildly inaccurate and that Latina was a very poor judge of vehicular speed. See Commonwealth v. Whynaught , 377 Mass. 14, 384 N.E.2d 1212, 1216 (1979) (minimal foundation for radar evidence did not prevent affirming conviction of speeding, as reading was 20 miles per hour over speed limit and officer's observations corroborated it).

¶ 25 For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed.

¶ 26 Affirmed.

Justices Hutchinson and Birkett concurred in the judgment and opinion.

      Defendant notes that, despite his FOIA request, he was not provided with a copy of the traffic-engineering survey at any time before or during trial. The significance of this fact is unclear to us, as defendant's claim of error is premised on the theory that it was plaintiff 's burden to introduce the survey (or evidence thereof).

      We also note that several jurisdictions hold consistently with Abdallah that independent proof of the accuracy of the tuning forks is not required. See State v. Tailo , 70 Haw. 580, 779 P.2d 11, 14 (1989) ; Shears v. State , 648 P.2d 841, 841-42 (Okla. Crim. App. 1982) ; State v. Sprague , 113 R.I. 351, 322 A.2d 36, 39-40 (1974) ; State v. Kramer , 99 Wis.2d 700, 299 N.W.2d 882, 885-86 (1981).


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard C. YOUNG, Defendant-Appellant.
    Appeal No. 3-16-0003
    Appellate Court of Illinois, Third District.
    Opinion filed April 25, 2018
    Michael J. Pelletier, Peter A. Carusona, and Jay Wiegman, of State Appellate Defender's Office, of Ottawa, for appellant.
    Karen Donnelly, State's Attorney, of Ottawa (Patrick Delfino, Lawrence M. Bauer, and Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Richard C. Young, appeals his convictions and sentences, contending that he should receive a new sentencing hearing because the record fails to demonstrate that he was eligible for extended-term sentencing. We vacate and remand.

¶ 2 FACTS

¶ 3 A jury found defendant guilty of two counts of burglary ( 720 ILCS 5/19-1(a) (West 2014) ). The circuit court ordered the preparation of a presentence investigation report (PSI) and continued the matter for sentencing.

¶ 4 The PSI was filed prior to the sentencing hearing. The PSI showed that on December 23, 2004, defendant was convicted of a Class 1 felony and sentenced to six years' imprisonment. The PSI did not include the dates defendant was taken into or released from the custody of the Department of Corrections (DOC) for this sentence. The PSI also showed that in 2008 defendant was convicted of two Class 3 felonies and sentenced to 6½ years' imprisonment. The PSI also did not include the dates defendant was taken into or released from the custody of the DOC for this sentence.

¶ 5 By agreement, the parties added a certified copy of defendant's 2008 Class 3 felony convictions to the PSI. The certified copy showed that defendant spent 150 days in pretrial custody before he was sentenced, but the document did not include the time defendant spent in custody after being sentenced.

¶ 6 On August 6, 2015, the circuit court held a sentencing hearing. The circuit court inquired as to whether defendant was eligible for extended-term sentencing based on defendant's Class 1 felony conviction in 2004. Specifically, the court wanted to know if, excluding the time defendant spent in custody, defendant's 2004 conviction fell within 10 years of defendant's convictions in this case. The State told the court,

"I wasn't able to ascertain an exact date, judge, but based on my calculation, and I did look in to this, we are within the ten years based on all his pretrial incarceration and the time he spent in custody. Also when he was incarcerated on the Class 3 he received six and a half years on that, and we're within the ten years based on the statute and the case law."

The court asked defense counsel if he agreed, and counsel replied, "Judge, I have no knowledge. I've tried to calculate it myself. I think it's very, very close. It would be within days I believe." The court responded,

"[the] only reason I'm asking is I'm looking for a date. He was sentenced on that particular matter in December of 2004, and he received six years in the [DOC].
* * *
* * * Giving him day for day good time and cutting it in half three or two and half, that would put him somewhere in the area of 2006, maybe 2007, and we're still within 2015 so it's within ten. I didn't know if they had a parole date. It just wasn't in the PSI."

The State then told the court that it was unable to obtain an exact date of defendant's custody time from the DOC.

¶ 7 After hearing the parties' arguments in aggravation and mitigation and defendant's statement in allocation, the circuit court sentenced defendant to an extended-term sentence of 12 years' imprisonment.

¶ 8 ANALYSIS

¶ 9 At the outset, defendant acknowledges that he did not preserve his claim that the circuit court erred in imposing an extended-term sentence, but he argues that it should be considered under the plain error doctrine. The State concedes that appellate panels have found extended-term sentencing errors to constitute second prong plain error. See People v. Hurley , 277 Ill. App. 3d 684, 686, 214 Ill.Dec. 606, 661 N.E.2d 460 (1996). The State argues, however, that no error occurred. We therefore begin our analysis by addressing the merits of defendant's challenge to his extended-term sentence.

¶ 10 Defendant contends that he is entitled to a new sentencing hearing because the record does not show that he was eligible for extended-term sentencing. Specifically, he contends that the record failed to demonstrate that he had been previously convicted of a similar or greater class felony within 10 years of the sentencing hearing in this case. Because the record does not contain any evidence of the time defendant spent in custody for his prior convictions, we find that the circuit court erred in finding defendant to be eligible for extended-term sentencing.

¶ 11 A court may impose an extended-term sentence "[w]hen a defendant is convicted of any felony, after having been previously convicted * * * of the same or similar class felony or greater class felony, when such conviction has occurred within 10 years after the previous conviction, excluding time spent in custody." 730 ILCS 5/5-5-3.2(b)(1) (West 2014). The sentencing dates for the prior and present offenses are the relevant dates for determining the 10-year period for the extended-term sentencing statute. People v. Lemons , 191 Ill. 2d 155, 159-60, 246 Ill.Dec. 116, 729 N.E.2d 489 (2000).

¶ 12 In this case, defendant was sentenced on August 6, 2015. The only documentation considered by the court at sentencing was the PSI. The PSI indicates that defendant was previously convicted of only one same or greater class felony on December 23, 2004. Because the only prior conviction that could be the basis of an extended term occurred 10 years, 7 months, and 14 days before the current conviction, defendant, in order to qualify for an extended-term sentence, must have spent 7 months and 14 days in custody between December 23, 2004, and August 6, 2015. The PSI, however, does not contain a complete record of the time defendant actually spent in custody, and does not establish that defendant spent 7 months and 14 days in custody. This is insufficient to place defendant's prior conviction within the 10-year period. Therefore, we find that the PSI report does not affirmatively demonstrate that defendant's 2004 conviction occurred within 10 years of the present conviction, excluding time spent in custody. Consequently, we vacate defendant's sentence and remand the cause for a new sentencing hearing. See People v. Wilkins , 343 Ill. App. 3d 147, 151-52, 277 Ill.Dec. 884, 797 N.E.2d 231 (2003).

¶ 13 In reaching this conclusion, we acknowledge that, during the relevant period, defendant was sentenced to a term of six years' imprisonment for lower class felony convictions. It is true that the time defendant spent in custody for the 2008 convictions would be excluded when calculating whether defendant's 2004 conviction fell within the 10-year period for extended-term sentencing. In other words, any time defendant spent in custody for his 2008 convictions would act to toll the running of the 10-year window. However, similar to the evidence of defendant's 2004 conviction, the PSI does not contain a complete record of the actual time defendant spent in custody for his 2008 convictions. In fact, the PSI only shows that defendant was awarded 150 days in presentencing custody for his 2008 convictions. Therefore, the only evidence we have of the time defendant spent in custody with regard to both the 2004 and 2008 convictions is 150 days.

¶ 14 Finally, we reject the State's argument that defendant's 2008 convictions alone are sufficient to find defendant eligible for extended-term sentencing because they occurred within 10 years of the sentencing hearing in this case. In other words, the State contends that this court need not calculate the time defendant actually spent in custody because his 2008 convictions occurred within 10 years' of sentencing in this case. Specifically, defendant's sentencing in this case occurred before 2018 (2008-2018). Defendant's 2008 convictions are Class 3 felonies, and they do not qualify as convictions "of the same or similar class felony or greater class felony" for extended-term sentencing under the statute. 730 ILCS 5/5-5-3.2(b)(1) (West 2014).

¶ 15 CONCLUSION

¶ 16 We vacate the sentence imposed by the circuit court of La Salle County and remand the cause for a new sentencing hearing.

¶ 17 Vacated and remanded.

Justice Wright concurred in the judgment and opinion.

Justice Schmidt dissented, with opinion.

¶ 18 JUSTICE SCHMIDT, dissenting.

¶ 19 I respectfully dissent. The majority finds second prong plain error by virtue of the record failing to clearly establish that defendant previously served at least 7 months and 14 days on his 2004 burglary conviction. The trial court sentenced defendant to six years on that conviction.

¶ 20 The fact is, we do not know whether defendant was extended-term eligible. The best guess is that he was, since it is relatively unlikely that he served less than 7½ months of his 6year sentence. More importantly, defendant does not argue that he was not extended-term eligible, he simply argues that the record does not clearly establish that he was. This, says defendant and majority, constitutes second prong plain error. The majority finds support for its position in Wilkins , 343 Ill. App. 3d at 151-52, 277 Ill.Dec. 884, 797 N.E.2d 231.

¶ 21 Both the Wilkins court and the majority find that the possibility the trial court made an error constitutes plain error. That is, the error is that the trial court record did not clearly establish that defendant served at least 7½ months of a 6-year sentence for his 2004 conviction. If that is plain error, then the majority and Wilkins are correct.

¶ 22 I submit that the better view is that it is second prong plain error to sentence a defendant to an extended term when the defendant is not eligible for that extended term under the law. As pointed out, the record does not establish that happened. Defendant does not even allege that he was not extended-term eligible. That is, defendant failed to establish any error in his quest to establish plain error. People v. Herron , 215 Ill. 2d 167, 178, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005).

¶ 23 It seems that the better approach would be to deal with this in a postconviction petition. If defendant is not extended-term eligible, he and his attorneys can obtain DOC records establishing defendant's custody and parole date on the 2004 conviction. That information is not readily available on the DOC's website, but certainly it is available. If defendant indeed served less than 7½ months on his 2004 conviction, then he has a ready-made ineffective assistance of trial counsel argument coupled with prejudice that will no doubt succeed in a postconviction setting.

¶ 24 In a nutshell, the notion "that there might have been an error" equals second prong plain error flies in the face of plain error jurisprudence. See, e.g. , id. ; People v. Keene , 169 Ill. 2d 1, 16-17, 214 Ill.Dec. 194, 660 N.E.2d 901 (1995).

¶ 25 I would affirm.


text:
    IN RE MARRIAGE OF DEE J., Petitioner-Appellant, AND ASHLIE J., Respondent-Appellee.
    No. 2-17-0532
    Appellate Court of Illinois, Second District.
    Opinion filed April 27, 2018
    Zachary Townsend, of Pro Legal Care LLC, of Rockford, for appellant.
    Lambda Legal Defense & Education Fund, Inc. (Camilla B. Taylor and Kara N. Ingelhart, of Chicago, Karen L. Loewy, of New York, New York, and Natalie N. Nardecchia, of Los Angeles, California, of counsel), and Dentons US LLP, of Chicago (Steven L. Merouse, of counsel), for appellee.
   JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 This case presents a challenge to the trial court's determination that the nonbiological parent in a same-sex marriage was legally the parent of a child conceived through artificial insemination. We affirm the judgment of the trial court.

¶ 2 The parties, Dee J. and Ashlie J., are a same-sex couple who were married in Iowa in 2009. They were living in Illinois in 2014 when Dee gave birth to a baby girl, A.M.J., who was conceived through artificial insemination. Seven months after A.M.J. was born, the parties separated, and Dee petitioned to dissolve her marriage to Ashlie. Dee's initial dissolution petition stated that A.M.J. was born of the marriage; however, Dee ultimately filed an amended petition, alleging that A.M.J. was not a child of the marriage, and filed a petition seeking a declaration of the nonexistence of a parent-child relationship between A.M.J. and Ashlie. See generally 750 ILCS 46/205 (West Supp. 2015). Conversely, Ashlie sought a declaration of her parent-child relationship with A.M.J., as well as a judgment allocating decision-making responsibilities and parenting time between the parties. Specifically, Ashlie asserted that her parental and visitation rights were based on the common-law theories of marital contract and promissory estoppel.

¶ 3 The trial court held a hearing on the issue of A.M.J.'s parentage. After the hearing, the court declared that there was a parent-child relationship between Ashlie and A.M.J. and issued a four-page, single-spaced memorandum opinion setting forth its findings. Dee attempted to directly appeal the trial court's parentage order; however, we dismissed her appeal, as a parentage determination is not a final and appealable order in its own right. Department of Public Aid ex rel. K.W. v. Lekberg , 295 Ill. App. 3d 1067, 1071, 230 Ill.Dec. 416, 693 N.E.2d 894 (1998) ; Baldassone v. Gorzelanczyk , 282 Ill. App. 3d 330, 334, 217 Ill.Dec. 550, 667 N.E.2d 639 (1996). Afterward, the parties returned to the trial court, and the court entered a judgment dissolving the parties' marriage and a separate judgment allocating parental responsibilities between the parties. Dee has timely appealed from the allocation judgment, which is a final and appealable order. See Lekberg , 295 Ill. App. 3d at 1071, 230 Ill.Dec. 416, 693 N.E.2d 894 ; Baldassone , 282 Ill. App. 3d at 334, 217 Ill.Dec. 550, 667 N.E.2d 639 ; see also Ill. S.Ct. R. 304(b)(5) (eff. Mar. 8, 2016). We therefore turn to the merits.

¶ 4 On appeal, Dee challenges the trial court's determination that Ashlie, too, is A.M.J.'s parent. Prior to a number of legislative changes (about which, more below), Illinois's statutory authority did not recognize parental rights where a child was conceived by an unmarried couple through artificial insemination. Illinois courts, however, have accepted common-law claims in such cases, particularly because one's participation in artificial insemination is not some whimsical or trivial act. For example, in In re Parentage of M.J. , 203 Ill. 2d 526, 272 Ill.Dec. 329, 787 N.E.2d 144 (2003), our supreme court held that parental responsibility may be imposed on an unmarried adult whose "conduct evince[d] actual consent to the artificial insemination [procedure]." Id. at 540, 272 Ill.Dec. 329, 787 N.E.2d 144. As the court explained, "if an unmarried man who biologically causes conception through sexual relations without the premeditated intent of birth is legally obligated to support a child, then the equivalent resulting birth of a child caused by the deliberate conduct of artificial insemination should receive the same treatment." Id. at 541, 272 Ill.Dec. 329, 787 N.E.2d 144. This holding was later extended to situations in which an unmarried same-sex couple had conceived a child through artificial insemination. In In re T.P.S. , 2012 IL App (5th) 120176, 365 Ill.Dec. 567, 978 N.E.2d 1070, the court explained that parental responsibility may be imposed or parental rights may be asserted "based on conduct evincing actual consent to the artificial insemination procedure by an unmarried [same-sex] couple along with active participation by the nonbiological partner as a coparent." Id. ¶ 41."To hold otherwise," the court stated, "[would] deny a child his or her right to the physical, mental, and emotional support of two parents merely because his or her parentage falls outside the terms of the Illinois Parentage Act." Id. We review a trial court's parentage finding under the manifest-weight standard. See Milligan v. Cange , 200 Ill. App. 3d 284, 294, 146 Ill.Dec. 667, 558 N.E.2d 630 (1990).

¶ 5 As the trial court determined, under the standards set forth in In re Parentage of M.J. and In re T.P.S. , the evidence in this case was not close. Indeed, the facts were largely undisputed. Both Dee and Ashlie are Illinois residents and work for a local nonprofit organization in the Rockford area. Dee and Ashlie were, as noted, wed in Iowa in October 2009 (Illinois did not recognize the validity of same-sex marriages until June 1, 2014). After the parties were married, Dee took Ashlie's last name, and the two lived as spouses. They also purchased a home together and agreed to conceive a child through assisted reproduction, or artificial insemination.

¶ 6 The parties agreed that Dee would carry their first child and that, if there were a second child, it would be carried by Ashlie. In March 2012, Dee and Ashlie, as a couple, enrolled in an artificial-insemination program, and Dee began receiving fertility treatments at a clinic. (Throughout the treatment, Ashlie also administered hormone shots to Dee at home.) Together, Dee and Ashlie selected a sperm donor through the clinic's program. They specifically chose a donor whose physical characteristics-e.g. , height, mannerisms, and ethnicity-were similar to Ashlie's. In addition, the parties jointly paid for Dee's medical and fertility treatment.

¶ 7 In the fall of 2013, the parties learned that Dee was carrying a little girl. The parties together selected the baby's first name and decided that her middle name would be the same as Ashlie's middle name. Both Dee and Ashlie held a joint baby shower.

¶ 8 A.M.J. was born in a Rockford-area hospital in February 2014. Ashlie was present for A.M.J.'s birth; Dee and Ashlie jointly completed the paperwork for A.M.J.'s birth certificate, and both are identified as "Co-Parent[s]" on A.M.J.'s birth certificate. After A.M.J. was born, Dee and Ashlie sent out a joint birth announcement in their employer's newsletter.

¶ 9 Seven months after A.M.J. was born, the parties separated. However, while the parties were together, there was considerable evidence that Ashlie was actively coparenting A.M.J. After A.M.J. was born, Ashlie took time off work to spend time with the baby and fed, bathed, changed, and bonded with her. After Dee's maternity leave ended, the parties began working alternating shifts and thus took care of A.M.J. in alternating shifts. During this time, Ashlie was A.M.J.'s primary caregiver most nights and weekends. Ashlie also put A.M.J. on her health insurance. Ashlie testified that A.M.J. (nearly three at the time of the hearing) refers to both Dee and Ashlie as "Mom."

¶ 10 Dee testified that she and Ashlie never agreed to conceive a child through artificial insemination; that after A.M.J. was born, Dee and Ashlie never discussed "how happy [they] were to both have this new baby"; and that, because she had been under the influence of medication, Dee did not recall jointly filling out A.M.J.'s birth certificate, which listed Ashlie as a coparent. The trial court found Dee not credible on each point.

¶ 11 On appeal, Dee argues that there was "negligible" evidence of a parent-child bond-or evidence of only a "negligible" parent-child bond-between Ashlie and A.M.J. As the trial court noted, however, even if Dee were correct, in view of A.M.J.'s young age when the parties separated and at the time of the hearing, that point was hardly dispositive. More importantly, as the trial court stated in its memorandum order:

"A nonbiological parent still retains both her parental responsibilities and rights. A child still retains the right to the physical, mental, emotional and financial support [from] both of her parents. [A.M.J.] was brought into this world because of the decision of both Dee and Ashlie to conceive a child through artificial insemination. She was nurtured for the first seven months of her life by both Dee and Ashlie. These are months when attachments and bonds are formed between an infant and both parents. The evidence shows that both parents were actively involved with [A.M.J] during these months. This was sufficient time for Ashlie to demonstrate the kind of co-parent connection with [A.M.J.] to satisfy the requirements set forth in [ In re Parentage of M.J. and In re T.P.S. ] Ashlie did not merely consent to an insemination procedure and then abandon the child who was conceived through that process. She remained involved with [A.M.J.] like a loving parent until marital discord led to the separation of the parties seven months [after A.M.J. was born]."

After carefully examining the record, we agree with the trial court's foregoing statements in all respects. Accordingly, the trial court's determination that a parent-child relationship existed between Ashlie and A.M.J. was not against the manifest weight of the evidence.

¶ 12 Dee's remaining arguments assail the judgment for failing to meet two "require[ments]" but, in fact, neither requirement was applicable. First, Dee contends that the trial court erred by not making "specific findings of best interests"-i.e. , findings that a parent-child relationship with Ashlie was specifically in A.M.J.'s best interests. We reject the premise, as such findings were not required. Although cited by neither party, our supreme court has twice explained that best-interests findings are a prerequisite to the exercise of parental rights, not a prerequisite to declaring the existence of parental rights. See J.S.A. v. M.H. , 224 Ill. 2d 182, 212, 309 Ill.Dec. 6, 863 N.E.2d 236 (2007) ; In re Parentage of John M. , 212 Ill. 2d 253, 269-73, 288 Ill.Dec. 142, 817 N.E.2d 500 (2004). In other words, the exercise of parental rights " 'such as the right to have custody of, or visitation with, the child, shall not be granted unless it is in the child's best interest' " ( J.S.A. , 224 Ill. 2d at 212, 309 Ill.Dec. 6, 863 N.E.2d 236 (quoting In re Parentage of John M. , 212 Ill. 2d at 265, 288 Ill.Dec. 142, 817 N.E.2d 500 ) ); parentage, however, may be established merely by commencing a legal action to determine that fact.

¶ 13 Dee's remaining point is that, pursuant to the Gestational Surrogacy Act ( 750 ILCS 47/1 et seq. (West 2014) ), Ashlie's parentage depended on whether there was "written consent" between the parties to conceive a child through artificial insemination. Because such a document-also known as a "gestational surrogacy contract"-was not in evidence, Dee asserts that the trial court "misapplied the law" and overlooked the "plain language" of the Gestational Surrogacy Act. This argument, too, is misguided. In a traditional surrogacy, a woman uses her own egg (her female gamete) and is artificially inseminated with the intended father's or a donor's sperm (a male gamete). The surrogate mother carries and delivers the child(ren), which is (or are) then given to the intended parent(s) to raise. Thus, a traditional surrogate is genetically linked to the child because it is her egg that created the child. As the statute explains, in a gestational surrogacy, "a woman attempts to carry and give birth to a child created through in vitro fertilization using the gamete or gametes of at least one of the intended parents and to which the gestational surrogate has made no genetic contribution ." (Emphasis added.) 750 ILCS 47/10 (West 2014). Because there is a biological connection between Dee and A.M.J., Dee was not a gestational surrogate for A.M.J. In fact, Dee was not any kind of surrogate for A.M.J. at all, as A.M.J. was conceived for Dee and Ashlie to be A.M.J.'s parents . Consequently, the contractual requirements that govern gestational-surrogacy arrangements have absolutely no bearing here.

¶ 14 One final point remains. In her appellee's brief, Ashlie argues that we should affirm on an alternative basis. According to Ashlie, in light of the United States Supreme Court's decision that the fundamental right to marry is guaranteed to same-sex couples (see Obergefell v. Hodges , 576 U.S. ----, 135 S.Ct. 2071, 191 L.Ed.2d 953 (2015) ), we must "interpret the 1984 Parentage Act in a gender neutral fashion" and apply to her a spousal presumption of parentage for a child conceived during a marriage. See generally Michael H. v. Gerald D. , 491 U.S. 110, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989) ; see also Pavan v. Smith , 582 U.S. ----, 137 S.Ct. 2075, 198 L.Ed.2d 636 (2017). We need not consider Ashlie's argument, because in 2014 the legislature repealed the Illinois Parentage Act of 1984 and replaced it with the Illinois Parentage Act of 2015 (see Pub. Act 99-85 (eff. Jan. 1, 2016) (repealing 750 ILCS 45/1 et seq. and adding 750 ILCS 46/101 et seq. ) ), and more recently the legislature made a number of technical corrections to the 2015 enactment. See Pub. Act 99-769, § 5 (eff. Jan. 1, 2017) (amending 750 ILCS 46/101 et seq. ). These legislative alterations obviate the need for us to consider Ashlie's argument, as we cannot grant her any effective relief from a statute that is no longer in effect. See Bartlow v. Costigan , 2014 IL 115152, ¶ 35, 383 Ill.Dec. 95, 13 N.E.3d 1216 ; see also Massachusetts v. Oakes , 491 U.S. 576, 584, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989).

¶ 15 In sum, we affirm the judgment of the circuit court of Winnebago County declaring a parent-child relationship between Ashlie and A.M.J.

¶ 16 Affirmed.

Presiding Justice Hudson and Justice Zenoff concurred in the judgment and opinion.


text:
    In the MATTER OF: Kelly J. SMITH, Respondent
    Supreme Court Case No. 18S-DI-5
    Supreme Court of Indiana.
    FILED August 10, 2018
    Published Order Approving Statement of Circumstances and Conditional Agreement for Discipline
    Pursuant to Indiana Admission and Discipline Rule 23 (12.1)(b), the Indiana Supreme Court Disciplinary Commission and Respondent have submitted for approval a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating agreed facts and proposed discipline as summarized below.
    Stipulated Facts: In August 2017, pursuant to a guilty plea, Respondent was convicted in Johnson County of felony and misdemeanor counts of operating a vehicle while intoxicated ("OWI"). Respondent has a prior conviction for OWI in Marion County and was on probation at the time of her arrest in Johnson County.
    As a result of her probation violation, Respondent received among other things a sentence of 45 days' house arrest and was required to submit to daily alcohol monitoring. As a result of her second conviction, Respondent received a 730-day sentence, the bulk of which was suspended to probation.
    Respondent has no prior discipline and has been cooperative with the disciplinary process. Respondent voluntarily sought out treatment and therapy following her first arrest in September 2016 and has been fully compliant with all medical recommendations. Unbeknownst to Respondent, her initial diagnosis was not fully accurate, which rendered her treatment plan less effective. Respondent obtained a more accurate diagnosis following her second arrest, and her current treatment plan has proven very successful.
    Violation: The parties agree that Respondent violated Indiana Professional Conduct Rule 8.4(b), which prohibits committing a criminal act that reflects adversely on Respondent's trustworthiness or fitness as a lawyer.
    Discipline: The parties propose the appropriate discipline is a suspension of 90 days, all stayed subject to completion of at least one year of probation with JLAP monitoring. The Court, having considered the submission of the parties and the unique circumstances of this case, now approves the agreed discipline.
    For Respondent's professional misconduct, the Court suspends Respondent from the practice of law for a period of 90 days, beginning on the date of this order, all stayed subject to completion of at least one year of probation under a JLAP monitoring agreement . The Court incorporates by reference the terms and conditions of probation set forth in the parties' Conditional Agreement, which include among other things:
    (1) Respondent shall maintain complete sobriety for the duration of her probation.
   (2) Respondent shall commit no violations of the Rules of Professional Conduct or commit any criminal act during her probation.
(3) Respondent shall comply with her existing course of treatment and with her criminal probation in Johnson County.
(4) At the conclusion of her probationary period, Respondent shall submit an affidavit of compliance to this Court.
(5) If Respondent violates the terms of her probation, the stay of her suspension shall be vacated and the balance of the stayed suspension shall be actively served without automatic reinstatement.

Notwithstanding the expiration of the minimum term of probation set forth above, Respondent's probation shall remain in effect until it is terminated pursuant to a petition to terminate probation filed under Admission and Discipline Rule 23(16).

The costs of this proceeding are assessed against Respondent. With the acceptance of this agreement, the hearing officer appointed in this case is discharged.

All Justices concur, except Rush, C.J., who would reject the conditional agreement, believing that a period of active suspension and a longer term of probation are warranted given the endangerment involved in both criminal cases.


author: Per Curiam Opinion

text:
    In the MATTER OF the Honorable Ryan D. JOHANNINGSMEIER, Judge of the Knox Superior Court 2, Respondent.
    Supreme Court Case No. 18S-JD-351
    Supreme Court of Indiana.
    FILED August 10, 2018
    ATTORNEY FOR RESPONDENT: Patrick J. Olmstead, Greenwood, Indiana
    ATTORNEYS FOR INDIANA COMMISSION ON JUDICIAL QUALIFICATIONS: Adrienne L. Meiring, Counsel to the Commission, Marcus McGhee, Staff Attorney to the Commission, Indianapolis, Indiana
   Per Curiam Opinion

Judicial Discipline Action

Per Curiam.

We find that Respondent, the Honorable Ryan D. Johanningsmeier, Judge of the Knox Superior Court 2, engaged in judicial misconduct by his actions in, and failure to recuse from, a close friend's traffic-infraction case.

The matter is before us on the Indiana Commission on Judicial Qualifications' ("Commission's") "Notice of the Institution of Formal Proceedings and Statement of Charges" against Judge Johanningsmeier. Together with the filing of formal charges, the parties jointly tendered a "Statement of Circumstances and Conditional Agreement for Discipline" stipulating to the following facts.

Stipulated Facts

Judge Johanningsmeier has been judge of Knox Superior Court 2 since January 2015. He is close friends with B.K., who received a speeding ticket in April 2015.

On June 18, 2015-shortly after vacationing with Judge Johanningsmeier -B.K. failed to appear in Bicknell City Court on the ticket, so default judgment was entered and his license was suspended for failure to appear. On June 30, 2015, B.K. filed a petition for a trial de novo in Judge Johanningsmeier's court. Judge Johanningsmeier granted the motion the same day and reinstated B.K.'s license, without giving the prosecutor opportunity to respond (thus violating Trial De Novo Rule 2(E) ) or disclosing the conflict.

The situation came to the Commission's attention and resulted in a March 9, 2016 private caution letter advising Judge Johanningsmeier that his close friendship with B.K. would cause a reasonable person to question his impartiality under Indiana Judicial Conduct Rule 2.11(A). Despite the caution, Judge Johanningsmeier did not recuse and did not set the matter for hearing. The case remained in limbo until early 2017.

Meanwhile, shortly before Christmas 2016 and while the case was still pending, Judge Johanningsmeier posted on Facebook a photo of himself, his sister, and B.K. at a party in the Judge's home. The photo, which B.K. "liked," was visible to the public and showed that Judge Johanningsmeier and B.K. were close friends.

On March 6, 2017-almost a year after Judge Johanningsmeier's private caution letter-the prosecutor moved for bench trial in B.K.'s case. Instead of recusing, Judge Johanningsmeier set the motion for hearing on March 20, 2017. At the hearing, he stated on the record that the case involved "a friend of mine" and "I was hoping we could just get the State to dismiss it." The prosecutor immediately orally moved to dismiss the case, and Judge Johanningsmeier granted the motion.

Discussion

The Commission charges, and Judge Johanningsmeier agrees, that his conduct violated six provisions of the Code of Judicial Conduct:

• Rule 1.1, requiring judges to comply with the law;
• Rule 1.2, requiring judges to avoid impropriety and act at all times in a manner promoting public confidence in the judiciary's integrity;
• Rule 1.3, prohibiting judges (as relevant here) from abusing the prestige of judicial office to advance others' personal or economic interests;
• Rule 2.2, requiring judges to uphold and apply the law and to perform all judicial duties fairly and impartially;
• Rule 2.4(B), prohibiting judges from allowing (as relevant here) social relationships to influence the judge's judicial conduct or judgment; and
• Rule 2.11(A), requiring judges to disqualify themselves in any proceeding in which their impartiality might reasonably be questioned.

The parties' agreement cites no aggravators. As mitigators, the parties agree that Judge Johanningsmeier cooperated with the Commission's investigation and is remorseful. And they agree that the appropriate sanction under the circumstances is a public reprimand plus assessing costs of this proceeding against Judge Johanningsmeier.

We agree with the parties. "A public reprimand is a significant blemish on a sitting judge's reputation, adversely affecting the public's evaluation of the judge's performance in office." In re Newman , 858 N.E.2d 632, 635-36 (Ind. 2006). And we have publicly reprimanded a judge under comparable circumstances.

In In re Van Rider , a judge failed to recuse from his son's criminal case and instead ordered him immediately released from jail on his own recognizance. 715 N.E.2d 402, 404 (Ind. 1999). Similarly here, Judge Johanningsmeier failed to recuse and instead acted to secure favorable treatment for his friend. Such actions are obvious violations of a judge's most basic ethical duty-impartiality. And they "diminish[ ] public confidence in the judiciary" and "erode the public's perception of the courts as dispensers of impartial justice." Id. We found a public reprimand appropriate in Van Rider and find it appropriate here as well.

Conclusion

Accordingly, Ryan D. Johanningsmeier, Judge of the Knox Superior Court 2, is hereby reprimanded. This discipline terminates the disciplinary proceedings relating to the circumstances giving rise to this case. The costs of this proceeding are assessed against Respondent.

All Justices concur.