text:
    Charles BOCOCK, Plaintiff-Appellant, v. WILL COUNTY SHERIFF, Defendant-Appellee.
    Appeal Nos. 3-17-0330 3-17-0331 3-17-0406
    Appellate Court of Illinois, Third District.
    Opinion filed March 27, 2018
    Charles Bocock, of Joliet, appellant pro se.
    James W. Glasgow, State's Attorney, of Joliet (Kevin J. Meyers, Assistant State's Attorney, of counsel), for the appellee.
   JUSTICE WRIGHT delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Charles Bocock, was a pretrial detainee at the Will County Adult Detention Facility (WCADF) during 2015 and 2016. During this time period, plaintiff requested numerous records from WCADF through the Illinois Freedom of Information Act (FOIA) ( 5 ILCS 140/1 et seq. (West 2014) ). The WCADF did not comply with plaintiff's various requests for information. Those denials resulted in three separate lawsuits filed by plaintiff against the Will County Sheriff (defendant). Plaintiff now appeals the adverse ruling in all three cases and the three separate appeals have now been consolidated for purposes of this appeal. We affirm in part, reverse in part, and remand for further proceedings.

¶ 2 FACTS

¶ 3 I. Plaintiff's First Complaint

¶ 4 On April 10, 2015, plaintiff filed a complaint, followed by an amended complaint (first amended complaint) on June 23, 2015, in Will County case No. 15-CH-976. The first amended complaint alleged defendant improperly denied five FOIA requests initiated by plaintiff. The first amended complaint contained five counts-tracking the original five FOIA requests-with each count seeking both an injunction compelling defendant to produce the requested documents and civil penalties for the alleged willful and intentional failure to comply with FOIA. Count V of plaintiff's first amended complaint is the only count relevant to this consolidated appeal. In count V, plaintiff alleged he filed a FOIA request on March 22, 2015, seeking "Documentation showing the brand, product name, ingredients, nutrition information, expiration / best by date of the milk drink served on the morning of 3/21/15." Plaintiff alleged he received the following response to his request:

"The [WCADF] Food Service personnel have advised that the milk drink served on 3/21/15 was a commodity and there was only enough for one meal. Food Service personnel have checked all of the commodities and determined that they no longer possess any of the product or any labeling or product information from the milk drink."

Plaintiff further alleged defendant failed to "search any of its garbage or trash receptacles or Dumpsters for remaining containers from the milk drink."

¶ 5 Defendant filed a motion to dismiss count V of plaintiff's first amended complaint on two grounds. First, defendant claimed that a used milk container did not qualify as a public record and could "more accurately [be] defined as refuse or garbage, as they are part of food items served to pre-trial detainees at the facility." Alternatively, even if the refuse could be considered a public record, defendant argued that "[c]ombing through days old garbage * * * would impose undue burden."

¶ 6 Plaintiff filed a reply to defendant's motion to dismiss. In his reply, plaintiff stated that the milk container was on WCADF premises at the time of his FOIA request, albeit in the garbage. In addition, plaintiff conceded that the packaging for the used milk carton was no longer in defendant's possession, mooting his request for injunctive relief.

¶ 7 Following a hearing held on February 11, 2016, the circuit court dismissed count V of plaintiff's first amended complaint, finding that the milk container was not a public record. However, the court denied defendant's motion to dismiss, in part, and ordered defendant to answer the first three counts of plaintiff's first amended complaint.

¶ 8 II. Plaintiff's Second Complaint

¶ 9 Plaintiff filed a separate 11-count complaint (second complaint) on June 23, 2015, Will County case No. 15-CH-1052, pertaining to the denial of previous FOIA requests made by plaintiff for records that were unrelated to those records relevant to the pending lawsuit in Will County case No. 15-CH-976. Once again, plaintiff sought injunctive relief compelling defendant to produce the requested documents, and assess civil penalties against defendant on each count. It is undisputed that defendant denied each of plaintiff's FOIA requests.

¶ 10 The circuit court's rulings on counts VI, X, and XI are the only rulings at issue in the present appeal. Count VI of plaintiff's second complaint pertained to plaintiff's FOIA request seeking a "List of all lockdown dates/times/durations/reasons during March 2015" (lockdown documents). In Defendant's answer to plaintiff's second complaint, defendant asserted the records requested in count VI were exempt under FOIA, in that giving an inmate information regarding lockdowns "would present a danger to security within the WCADF." See id. § 7(1)(e).

¶ 11 Count X of plaintiff's second complaint alleged plaintiff made a FOIA request seeking "All documentation (e.g. emails, grievances) regarding detainee Christopher Conway's last/stolen books, including amount paid in compensation for the loss" (Conway documents). In the answer to count X, defendant asserted the requested documents were exempt under FOIA (see id. § 7(1)(c) ) in that disclosure to plaintiff would violate Conway's privacy interest in his private personal information. See id. § 7(1)(e).

¶ 12 Count XI of plaintiff's second complaint alleged plaintiff made a FOIA request seeking a copy of the WCADF "Policies and Procedures" manual (policy manual). In the answer to count XI, defendant asserted the policy manual was exempt for security purposes.

¶ 13 Furthermore, plaintiff alleged that after his request for the policy manual was denied, plaintiff submitted the case to the Illinois Attorney General's Public Access Counselor for further review. See id. § 9.5(a) (proving that a person whose FOIA request is denied may file a request for review by the Public Access Counselor). After conducting a confidential review of the manual, the Public Access Counselor found that while certain portions of the policy manual (often regarding the location of weapons or the intake and movement of inmates) were exempt from FOIA and subject to redaction, the policy manual as a whole was not exempt from FOIA. The nonbinding determination letter prepared by the Public Access Counselor concluded defendant should provide plaintiff with the redacted policy manual, but declined to issue a binding opinion. Defendant also admitted to the existence and substance of the Public Access Counselor's letter, but answered these allegations by observing the letter was not intended to be binding.

¶ 14 In an order dated July 19, 2016, the court agreed to review in camera documents pertaining to the dates and times of lockdowns and documents pertaining to WCADF's compensation for Conway's books. Defendant also submitted a number of Bates-stamped documents for the court's in camera review.

¶ 15 On July 22, 2016, the court entered an order that began: "Cause comes on for entry of order consistent with the court's ruling in open court on July 19, 2016." The court ordered defendant to produce a list of the times and dates of lockdowns occurring in March 2015, but ruled that information relating to the reasons for or durations of the lockdowns was exempt. The court ruled the Conway documents exempt in full based on Conway's privacy interests and plaintiff's lack of legitimate interest in the documents. In an order dated July 27, 2016, with regard to the policy manual, the court wrote: "Jail operations manual is exempt in total, with exception of bates # 0-05." As none of the Bates-stamped materials appear on the appellate record, this court has no way to determine which portions of the manual were deemed exempt and which portions were not.

¶ 16 III. Trial

¶ 17 Plaintiff's first amended complaint (case No. 15-CH-976) and second complaint (case No. 15-CH-1052) were consolidated for trial. Plaintiff, in his brief, characterizes the trial as pertaining only to the issues of civil penalties raised in both complaints. Each case contains the following identical order dated February 2, 2017, apparently issued after the trial: "Matter for directed finding on all counts is granted for reasons established by court." The report of proceedings of the trial has not been included in the record on appeal.

¶ 18 Plaintiff filed a motion to vacate judgment in Will County case No. 15-CH-976, and Will County case No. 15-CH-1052. After the trial court denied the request to vacate the judgment in each case, plaintiff filed a timely appeal in both cases on May 12, 2017.

¶ 19 IV. Plaintiff's Third Complaint

¶ 20 On September 27, 2016, plaintiff filed an unrelated third complaint (third complaint). This filing was case No. 16-MR-2527. In the third complaint, plaintiff alleged that after the price of stamps had been reduced from 49 cents to 47 cents by the United States Postal Service (USPS), the WCADF continued selling stamps and books of stamps at the higher price. In relation to this claim, plaintiff filed a FOIA request seeking "Documents showing name + CIMIS of all detainees who purchased stamps/books of stamps for 49¢/$4.90 after the price was reduced to 47¢ per stamp by the USPS. Also to include the amount of stamps purchased."

¶ 21 Plaintiff alleged in the complaint that defendant responded by informing him that "a list showing names and booking numbers listing detainees whom purchased stamps does not exist." According to plaintiff, defendant further responded: "However, a report does exist to show how many stamps were purchased for $0.49 after the rate drop." Defendant informed plaintiff that 566 single stamps and 30 books were sold "after the rate drop." Plaintiff alleged in his complaint that every purchase from the commissary generates a receipt showing what each inmate purchased. He attached as an exhibit to his complaint one of his own such receipts, showing the date he had purchased stamps.

¶ 22 Defendant filed a combined motion to dismiss under sections 2-615 and 2-619 of the Code of Civil Procedure (Code). See 735 ILCS 5/2-615, 2-619 (West 2016). In the motion, defendant asserted plaintiff "was essentially seeking an answer to the question of which inmates were overcharged for stamps purchased through the commissary." Further, defendant asserted it had never sold stamps purchased for 47 cents to inmates for 49 cents, and "[t]herefore no such documents exist, and it would be impossible to tender non-existent documents."

¶ 23 Defendant attached to its motion an affidavit from Ken Wright, vice president of sales for the Keefe Group (Keefe), the parent company of WCADF's commissary provider (Keefe affidavit). In the affidavit, Wright swore that all the stamps sold through the WCADF commissary through June 9, 2016, had been purchased by Keefe from the USPS for 49 cents each. He averred that all stamps resold to inmates for 49 cents had been purchased originally for 49 cents. The price at which the stamps were resold to inmates was reduced to 47 cents on June 10, 2016, following complaints from inmates.

¶ 24 On June 9, 2017, the circuit court held a hearing on defendant's motion to dismiss Will County case No. 16-MR-2527. At the hearing, defendant insisted that all of its stamps had been purchased in bulk prior to the price reduction and provided an affidavit stating the same. Defendant argued this fact proved it had not violated FOIA, as no documents showing which inmates had been overcharged existed. Defendant reiterated it did not have to answer plaintiff's question of who had been overcharged.

¶ 25 Plaintiff argued he had not asked a question, but requested documents. He argued that defendant's partial response, detailing the number of stamps sold following the price reduction, indicated defendant understood his request, including the relevant time period. Plaintiff insisted that commissary receipts were in each inmates's file, and therefore accessible by defendant. Though plaintiff maintained the actual overcharging of inmates was irrelevant to his FOIA request, he pointed out that if the commissary had purchased stamps in bulk at a higher price, "[t]hat's on them."

¶ 26 The circuit court granted defendant's motion to dismiss. It agreed with the defendant's argument that a stamp purchased at 49 cents could be resold for 49 cents. The court also pointed out that plaintiff had not requested the commissary receipts of any particular inmate, nor had he specified the date of the price change. Plaintiff interjected, arguing defendant demonstrated awareness of that date by disclosing the number of stamps sold. The court responded: "Okay. Nonetheless I am granting the [defendant's] motion."

¶ 27 Plaintiff timely appealed the ruling in Will county case No. 16-MR-2527. This court consolidated that appeal with the appeals stemming from plaintiff's first amended complaint and second complaint for purposes of this appeal.

¶ 28 ANALYSIS

¶ 29 On appeal, plaintiff argues the circuit court erred by denying injunctive relief and failing to order defendant to turn over the following documents to plaintiff: (1) the discarded container of milk sought in the first amended complaint (case No. 15-CH-976), (2) the full lockdown documents sought in the second complaint (case No. 15-CH-1052), (3) the Conway documents sought in the second complaint (case No. 15-CH-1052), and (4) the full policy manual sought in the second complaint (case No. 15-CH-1052). Plaintiff also argues (5) the circuit court erred by dismissing his third complaint (case No. 16-MR-2527) relating to the sale of stamps.

¶ 30 In this appeal, plaintiff contends the circuit court erred by denying his requests for civil penalties in his first amended and second complaints. The circuit court denied that relief by granting a directed verdict during the trial conducted on February 2, 2017. The report of proceedings does not appear as part of the record on appeal.

¶ 31 Without a report of proceedings and in the absence of any evidence to the contrary, it must be "presumed that the court heard adequate evidence to support the decision that was rendered." Foutch v. O'Bryant , 99 Ill. 2d 389, 394, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984) ; see also People v. Fernandez , 344 Ill. App. 3d 152, 160, 279 Ill.Dec. 141, 799 N.E.2d 944 (2003) ("[A]ny doubts arising from the incompleteness of the record will be construed against defendant, whose responsibility it was as appellant to present a complete record on review."). Accordingly, we affirm the circuit court's ruling denying the award of civil penalties in case Nos. 15-CH-976 and 15-CH-1052.

¶ 32 I. Milk Container

¶ 33 Plaintiff argues "the trial court erred in determining records in the garbage are not public records." Plaintiff does not state explicitly what relief he is seeking, only concluding by "pray[ing] this Court to declare that records stored in the garbage by a public body * * * are public records under the meaning of the FOIA." On January 13, 2016, in plaintiff's response to defendant's motion to dismiss, plaintiff wrote that he "concedes that the packaging is now no longer in the possession or control of the SHERIFF therefore mooting his request for injunctive relief."

¶ 34 We cannot ignore plaintiff's concession on this issue. A question is moot when it presents no actual controversy or where the issues involved have ceased to exist. People v. Blaylock , 202 Ill. 2d 319, 325, 269 Ill.Dec. 490, 781 N.E.2d 287 (2002). "Courts of review will generally not consider moot or abstract questions because our jurisdiction is restricted to cases which present an actual controversy." Id. The issue of injunctive relief relating to the milk container is moot because the used milk container is outside the control of defendant at this point. It would be impossible for defendant to produce the milk container, even if ordered to do so.

¶ 35 As a corollary to the mootness doctrine described above, an appellate court generally will not issue advisory opinions. In re Alfred H.H. , 233 Ill. 2d 345, 351, 331 Ill.Dec. 1, 910 N.E.2d 74 (2009). While reviewing courts will occasionally consider a moot issue under an exception to the doctrine, plaintiff has failed to raise or argue in favor of any such exception in the present case. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2017). Accordingly, because the issue relating to the milk container is moot, this court need not address plaintiff's argument that the container should be considered a public record.

¶ 36 II. Lockdown Documents and Conway Documents

¶ 37 Plaintiff next argues the circuit court erred by failing to grant in full his request for injunctive relief regarding the lockdown documents and the Conway documents. Regarding the lockdown documents, the court ordered defendant to disclose the dates and times of the lockdowns, but allowed defendant to withhold the durations and reasons for the lockdowns, citing security purposes. Regarding the Conway documents, the court denied plaintiff's request for injunctive relief, citing Conway's personal privacy and plaintiff's lack of a legitimate interest in that information.

¶ 38 Section 1.2 of FOIA provides that "[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt." 5 ILCS 140/1.2 (West 2014). The exemptions provided by FOIA include "[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," (id. § 7(1)(c) ) and "[r]ecords that relate to or affect the security of correctional institutions and detention facilities" (id. § 7(1)(e) ). Thus, defendant bore the burden to show, by clear and convincing evidence, that the Conway documents and the lockdown documents, respectively, qualified for the exemptions the trial court relied on.

¶ 39 The report of proceedings in case Nos. 15-CH-976 and 15-CH-1052 has not been included in the record on appeal. We have no record of what transpired in open court on July 19, 2016 and are unable to determine if defendant presented any witnesses or other evidence. We must once again construe this uncertainty, arising from an incomplete record, against plaintiff as appellant, and presume "that the court heard adequate evidence to support the decision that was rendered." Foutch , 99 Ill. 2d at 394, 76 Ill.Dec. 823, 459 N.E.2d 958. Accordingly, we affirm the circuit court's ruling granting in part and denying in part plaintiff's request for injunctive relief with respect to the lockdown documents. We also affirm the circuit court's ruling denying in full plaintiff's request for injunctive relief with respect to the Conway documents.

¶ 40 III. Policy Manual

¶ 41 Plaintiff next contends the circuit court erred when the court found the policy manual "exempt in total." He argues the policy manual must cover a wide range of topics, many of which would not relate to the security of the facility, and defendant failed to prove by clear and convincing evidence that those portions of the manual should not be exempt from FOIA.

¶ 42 The policy manual, which the circuit court reviewed in camera , is not included in the record. Obvious difficulties are presented when reviewing whether the policy manual should be exempt from FOIA, without access to the manual itself. As stated above, an insufficient record on appeal is generally construed against appellant. Id. This remains the case here. Even when plaintiff is not privy to the materials in question, plaintiff could have requested the circuit court submit the materials under seal. See People v. Deleon , 227 Ill. 2d 322, 342, 317 Ill.Dec. 843, 882 N.E.2d 999 (2008).

¶ 43 The incompleteness of the record requires us to affirm the circuit court's ruling where that incompleteness hinders our review. E.g. , Bezanis v. Fox Waterway Agency , 2012 IL App (2d) 100948, ¶ 11, 359 Ill.Dec. 663, 967 N.E.2d 393 ; People v. Appelgren , 377 Ill. App. 3d 137, 141, 316 Ill.Dec. 276, 879 N.E.2d 343 (2007). Here, our ability to review the issue is plainly hindered by the lack of the policy manual, as we are unable to parse the individual policies within the manual to determine which policies should be exempt. Accordingly, we must affirm the circuit court's ruling.

¶ 44 IV. Stamps

¶ 45 Finally, plaintiff argues the circuit court erred as a matter of law when it granted defendant's motion to dismiss the third complaint (case No. 16-MR-2527), seeking the production of records relating to WCADF's sale of stamps. In response, defendant reiterates the arguments it made before the circuit court, that plaintiff's request did not reasonably describe the records sought and, alternatively, no such records exist.

¶ 46 We note that defendant's motion to dismiss plaintiff's third complaint was brought under both sections 2-615 and 2-619 of the Code, and properly divided its arguments into the corresponding sections. See 735 ILCS 5/2-619.1 (West 2016). Because those sections contemplate dismissals on different grounds, we will address each in turn. We review the circuit court's granting of any motion to dismiss de novo . Bouton v. Bailie , 2014 IL App (3d) 130406, ¶ 7, 386 Ill.Dec. 371, 20 N.E.3d 533.

¶ 47 When ruling on a motion to dismiss brought under section 2-615 of the Code, "[a]ll well-pleaded facts alleged in the complaint and all reasonable inferences from them are to be taken as true (citation), and the allegations are to be viewed in the light most favorable to the plaintiff." Oldendorf v. General Motors Corp. , 322 Ill. App. 3d 825, 828, 256 Ill.Dec. 161, 751 N.E.2d 214 (2001). "[A] cause of action should not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be proved that would entitle the plaintiff to recovery." Marshall v. Burger King Corp. , 222 Ill. 2d 422, 429, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006).

¶ 48 Our supreme court has held that "when a public body receives a proper request for information, it must comply with that request unless one of the narrow statutory exemptions * * * applies." Illinois Education Ass'n v. Illinois State Bd. of Educ. , 204 Ill. 2d 456, 463, 274 Ill.Dec. 430, 791 N.E.2d 522 (2003). No distinction has been made, either in case law or in FOIA itself, between a "proper" and an improper request. Defendant argues, however, that a proper FOIA request must provide a reasonable description of the documents sought, so that the public body is able to retrieve those documents. Defendant also cites Chicago Tribune Co. v. Department of Financial & Professional Regulation , 2014 IL App (4th) 130427, ¶ 33, 380 Ill.Dec. 80, 8 N.E.3d 11, for the proposition that "[a] request to inspect or copy must reasonably identify a public record and not general data, information, or statistics."

¶ 49 Initially, we are not persuaded by defendant's argument that our supreme court-in the excerpt from Illinois Education Ass'n quoted above-intended to create a line of demarcation between proper and improper FOIA requests. Such a distinction would lie completely outside of FOIA itself. Rejection of such a position perhaps explains the relative dearth of case law in which a FOIA suit has been resolved on a section 2-615 motion.

¶ 50 Even if we were to accept that argument, plaintiff's FOIA request in the present case was proper. Plaintiff merely requested documents showing which WCADF detainees had purchased stamps in a certain time period. Plaintiff's FOIA request cannot be construed as a general inquiry or a request for data. It is, explicitly, a request for documents. Plaintiff identified the documents sought based upon a description of their contents. To require a citizen seeking public records to identify those records with any greater specificity would be in complete contravention of the public policy underlying FOIA. Indeed, plaintiff's request surely must not have been irreparably vague, given that defendant was able to conduct a "thorough search" of its files and records and conclude the documents sought did not exist.

¶ 51 We further reject the argument that plaintiff's FOIA request was improper because it did not include a time frame for the records requested. In his FOIA request, plaintiff sought records relating to the sale of stamps after the time the USPS

lowered the price of stamps from 49 cents to 47 cents. While the third complaint identified the exact date of the price drop, this information was not conveyed in the FOIA request itself. In its response to the FOIA request, however, defendant wrote: "[A] report does exist to show how many stamps were purchased for $0.49 after the rate drop." Thus, defendant plainly demonstrated awareness of the time frame in question, and may not now claim otherwise.

¶ 52 Section 2-619(a)(9) permits involuntary dismissal where the claim asserted against defendant "is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2016). In reviewing the grant of a motion to dismiss under section 2-619, a reviewing court considers the pleading and any supporting documents found on the record, interpreting everything in the light most favorable to the nonmoving party. Van Meter v. Darien Park District , 207 Ill. 2d 359, 368, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). The nonexistence of requested documents is a cognizable affirmative defense to a complaint grounded in FOIA. E.g. , Hites v. Waubonsee Community College , 2016 IL App (2d) 150836, 404 Ill.Dec. 636, 56 N.E.3d 1049.

¶ 53 Defendant asserts that plaintiff's FOIA request was "interpreted as a request for the names and inmate identification numbers of those who were overcharged for the stamps purchased through commissary." Next, defendant points out that the Keefe affidavit demonstrates that all stamps sold at WCADF for 49 cents were originally purchased for 49 cents. "Therefore," defendant writes, "the WCADF commissary did not overcharge any inmates $0.02 per stamp," and, in turn, no records of such overcharging could possibly exist.

¶ 54 Defendant's argument, both before this court and before the circuit court, rests on a fundamental mischaracterization of plaintiff's FOIA request. Plaintiff asked for records of stamps being sold to inmates for 49 cents after the USPS lowered the price to 47 cents. This is an objective request for documents. Whether or not inmates were "overcharged" for stamps is a legal conclusion read into plaintiff's request entirely by defendant. Plaintiff did not request that information, nor did his request require the production of compiled information.

¶ 55 Based on this record, the pleadings and supporting documents do not support defendant's contention that the documents plaintiff requested did not exist concerning the sale of stamps to inmates. Here, the supporting document provided by plaintiff is a copy of his own commissary receipt showing the purchase of stamps by plaintiff. This receipt demonstrates that defendant prepares records of the stamps purchased by individual inmates. It appears to this court that WCADF prepares receipts for stamp sales and the production of such existing records would be responsive to plaintiff's FOIA request. Consequently, we reject a dismissal premised upon section 2-619 of the Code for lack of records would be improper.

¶ 56 Construing the pleadings and supporting documents in the light most favorable to plaintiff, his original FOIA request was not fatally unclear. In summary, neither section 2-615 nor section 2-619 of the Code supports dismissal of the third complaint (case No. 16-MR-2527).

¶ 57 We affirm the trial court's rulings denying plaintiff's complaint seeking injunction relief and civil remedies with respect to the complaint in case No. 15-CH-976 and the complaint filed in case No. 15-CH-1052. We reverse the circuit court's ruling dismissing plaintiff's third complaint in case No. 16-MR-2527 and remand for further proceedings.

¶ 58 CONCLUSION

¶ 59 The judgment of the circuit court of Will County is affirmed in part, reversed in part, and remanded for further proceedings.

¶ 60 Affirmed in part and reversed in part.

¶ 61 Cause remanded.

Justices Holdridge and Lytton concurred in the judgment and opinion.

      While defendant might argue that querying each inmates' commissary records from the given time period might be unduly burdensome, it does not make such an argument before this court, and did not do so in the circuit court. More importantly, FOIA sets out specific steps to be undertaken where a public body deems a request unduly burdensome, including allowing the requesting party to amend their request. 5 ILCS 140/3(g) (West 2014). Defendant did not follow any of those steps.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellant, v. Samuel B. BURCHELL, Defendant-Appellee.
    NO. 5-17-0079
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: April 6, 2018
    John Hudspeth, State's Attorney, of Carlyle (Patrick Delfino, David J. Robinson, and Patrick D. Daly, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
    Michael J. Pelletier, Ellen J. Curry, and Eun Sun Nam, of State Appellate Defender's Office, of Mt. Vernon, for appellee.
   JUSTICE MOORE delivered the judgment of the court, with opinion.

¶ 1 The State appeals the order of the circuit court of Clinton County that granted the motion to dismiss of the defendant, Samuel B. Burchell. For the following reasons, we affirm.

¶ 2 FACTS

¶ 3 On February 14, 2017, the defendant was charged, in a one-count information, with "Unlawful Failure of Sex Offender to Report Absence From Address of Registration." On February 17, 2017, the defendant's court-appointed counsel filed a "Motion to Dismiss Pursuant to 725 ILCS 5/114-1" wherein the defendant contended, inter alia , that the information failed to specify the address of registration from which the defendant was allegedly temporarily absent. On March 1, 2017, the State filed an amended information, which is the charging instrument at issue in this appeal. In the amended information, the State included the previously-missing address and alleged the defendant was a person required to register in accordance with the Sex Offender Registration Act (SORA) ( 730 ILCS 150/1 et seq. (West 2016) ). The State further alleged that the defendant committed the offense of "Unlawful Failure of Sex Offender to Report Absence From Address of Registration" during the time frame of "on, about or between the 12th day of November, 2016, through the 12th day of February, 2017" in Clinton County when the defendant "knowingly failed to report within 3 days, in person, to the * * * agency of jurisdiction of his last known address, that he was temporarily absent from his current address of registration * * * for 3 or more days."

¶ 4 Also on March 1, 2017, a hearing was held on the defendant's motion to dismiss, at which the State brought to the court's attention the filing of the amended information. The trial judge, the Honorable Stanley Brandmeyer, noted that another trial judge, Judge Middendorff, had ruled in a different, but factually similar, case. The defendant adopted the argument put forward by Judge Middendorff in his ruling, arguing that although it was not binding precedent, he believed it was well-reasoned. Judge Brandmeyer agreed and granted the defendant's motion to dismiss. This timely appeal followed. Additional facts will be provided as necessary below.

¶ 5 ANALYSIS

¶ 6 The parties agree on the general principles of law involved with the dismissal of an information in a criminal case. As the Illinois Supreme Court has recognized, an individual accused of a crime "has a fundamental right, under both the Federal Constitution ( U.S. Const., amend. VI ) and the Illinois Constitution of 1970 ( Ill. Const. 1970, art. I, § 8 ), to be informed of the 'nature and cause' of criminal accusations made against" that individual. People v. DiLorenzo , 169 Ill. 2d 318, 321, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996). The failure to charge an offense "implicates due process concerns." Id. Section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/114-1(a)(8) (West 2016) ) provides that, "[u]pon the written motion of the defendant made prior to trial before or after a plea has been entered," the trial court may dismiss an information if "[t]he charge does not state an offense." This court has noted that, pursuant to the Code, to sufficiently allege the commission of an offense, the charging instrument must state the name of the offense, cite the statutory provision alleged to have been violated, set forth the nature and elements of the offense charged, state the date and county of the offense, and state the name of the accused. See, e.g. , People v. Terry , 342 Ill. App. 3d 863, 867, 277 Ill.Dec. 360, 795 N.E.2d 1028 (2003) ; see also 725 ILCS 5/111-3(a) (West 2016). The purpose of the Code's requirements "is to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct." Terry , 342 Ill. App. 3d at 867, 277 Ill.Dec. 360, 795 N.E.2d 1028. When the State appeals from the dismissal of a charge, we review de novo whether the charging instrument meets the requirements of the Code. Id. at 868, 277 Ill.Dec. 360, 795 N.E.2d 1028. In so doing, we will consider the plain and ordinary meaning of the language of the charging instrument, "as read and interpreted by a reasonable person." Id. We note, however, that "[w]hen the sufficiency of the charging instrument is attacked in a pretrial motion," our de novo standard of review requires us "to determine whether the instrument strictly complies with" the Code. (Emphasis in original.) DiLorenzo , 169 Ill. 2d at 321-22, 214 Ill.Dec. 846, 662 N.E.2d 412.

¶ 7 As we undertake our review, we are mindful that "[t]he precise allegations necessary to accomplish [the purpose of the Code's requirements] may vary depending upon the statutory provision alleged to have been violated and the nature of the offense." People v. Gerdes , 173 Ill. App. 3d 1024, 1029, 123 Ill.Dec. 535, 527 N.E.2d 1310 (1988). If "the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the [charging instrument] may simply set out the offense in the language of the statute." Id. However, if "the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient," and instead "[t]he facts which constitute the crime must be specifically set forth." Id. When conducting a review, the reviewing court should not look beyond the face of the charging instrument and therefore should not prospectively consider the sufficiency of the evidence against the accused. Id. at 1031, 123 Ill.Dec. 535, 527 N.E.2d 1310. That is because "[t]he merits of a case are not meant to be decided in the vacuum of a motion to dismiss." Id. Of paramount importance to us is the fact that the requirement "that a person be properly informed of 'the nature and cause' of criminal accusations made against him is no mere technicality." Id. at 1033, 123 Ill.Dec. 535, 527 N.E.2d 1310. The Illinois Supreme Court has held that the pivotal question when evaluating the sufficiency of a charging instrument is "whether there was sufficient particularity to allow the accused to prepare a defense." People v. Klepper , 234 Ill. 2d 337, 351, 334 Ill.Dec. 555, 917 N.E.2d 381 (2009).

¶ 8 With regard to the statute under which the individual is charged, a reviewing court's primary objective when construing a statute "is to ascertain and give effect to the intent of the legislature." People v. Molnar , 222 Ill. 2d 495, 518, 306 Ill.Dec. 116, 857 N.E.2d 209 (2006). We begin with the language of the statute, which must be given its plain and ordinary meaning, and if we conclude that the language of the statute is clear and unambiguous, we "apply the statute without resort to further aids of statutory construction." Id. at 518-19, 306 Ill.Dec. 116, 857 N.E.2d 209. Thus, it is only when language within a penal statute is ambiguous that we resort to rules of statutory construction such as the rule of lenity, which requires that in such situations the penal statute "be strictly construed to afford lenity to the accused." In re Detention of Powell , 217 Ill. 2d 123, 142, 298 Ill.Dec. 361, 839 N.E.2d 1008 (2005). However, the rule of lenity has limits and does not allow a court to construe a penal statute " 'so rigidly * * * as to defeat the intent of the legislature.' " Id. (quoting People v. Washington , 343 Ill. App. 3d 889, 903, 279 Ill.Dec. 368, 800 N.E.2d 436 (2003) ). Moreover, we are mindful that "[a]ll the provisions of an enactment should be viewed as a whole" and that "[w]ords and phrases should not be construed in isolation, but must be interpreted in light of other relevant statutory provisions." Molnar , 222 Ill. 2d at 519, 306 Ill.Dec. 116, 857 N.E.2d 209. We are also mindful of the longstanding rule that a statute should be construed so as to avoid an absurd result. See, e.g. , People v. Dunlap , 110 Ill. App. 3d 738, 743, 66 Ill.Dec. 466, 442 N.E.2d 1379 (1982).

¶ 9 In addition, we presume that a statute is constitutional, and if "reasonably possible," we will construe a statute "so as to affirm its constitutionality." People v. Howard , 2017 IL 120443, ¶ 24, 417 Ill.Dec. 660, 89 N.E.3d 308. Nevertheless, to avoid due process concerns, a penal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that the person may act accordingly. Id. ¶ 25. "[T]he statute must provide standards that are sufficiently clear to avoid arbitrary and discriminatory enforcement and application by police officers, judges, and juries." Id. If the statute's terms are so ill-defined that the ultimate decision as to the meaning of the statute rests not on objective criteria or facts, but instead on the opinions and whims of the trier of fact, the statute will be deemed to violate due process on the basis of vagueness. Id. To determine this, the reviewing court must decide if the statute is vague "as applied to the conduct for which [the] defendant" was charged. Id. Our review of questions of statutory interpretation is a de novo review. Molnar , 222 Ill. 2d at 519, 306 Ill.Dec. 116, 857 N.E.2d 209. We may affirm the ruling of the trial court on any basis supported by the record. See, e.g. , Evans v. Lima Lima Flight Team, Inc. , 373 Ill. App. 3d 407, 418, 311 Ill.Dec. 521, 869 N.E.2d 195 (2007) ; see also, e.g. , People v. Johnson , 208 Ill. 2d 118, 134, 281 Ill.Dec. 38, 803 N.E.2d 442 (2003). We may do so because the question before us on appeal is the correctness of the result reached below, rather than the correctness of the reasoning upon which that result was reached. See, e.g. , Johnson , 208 Ill. 2d at 128, 281 Ill.Dec. 38, 803 N.E.2d 442.

¶ 10 We begin our review in this case with the language of the statute from which the charge in the amended information was crafted. Found within section 3(a) of SORA is a paragraph that states, in its entirety:

"A sex offender or sexual predator who is temporarily absent from his or her current address of registration for 3 or more days shall notify the law enforcement agency having jurisdiction of his or her current registration, including the itinerary for travel, in the manner provided in Section 6 of this Act for notification to the law enforcement agency having jurisdiction of change of address." 730 ILCS 150/3(a) (West 2016).

As the State aptly notes, section 6 explains how to notify a law enforcement agency having jurisdiction of a change of address but does not specify a time frame for so doing, instead stating that the, inter alia , change of address notification must be made "within the time period specified in Section 3" (id. § 6).

¶ 11 On appeal, the State, which has supplemented the record in this case with the order of Judge Middendorff that Judge Brandmeyer relied upon to make his ruling, contends Judge Brandmeyer erred in granting the defendant's motion to dismiss. The crux of Judge Middendorff's ruling, relied upon by Judge Brandmeyer, is that the SORA statutory scheme does not explicitly provide a time period during which a defendant is required to report his or her temporary absence from his or her registered address, and that accordingly there is no offense that can be charged as a result of a failure to report a temporary absence. The argument advanced by the State on appeal is that when the relevant sections of SORA are "read in conjunction," they "lead[ ] to a logical conclusion that there is, in fact, a 3-day period in which [a] defendant is to report a temporary absence, because [a] defendant will be in violation of the law upon his third day of temporary absence if he never provided any statutory notification." The State contends that the trial court's interpretation of the statutory scheme "would violate the purpose of the statute as identified by the [Illinois] Supreme Court in People v. Pearse , 2017 IL 121072, 417 Ill.Dec. 674, 89 N.E.3d 322, and could render the statute unconstitutionally vague." The defendant responds on appeal by arguing that the trial court's concerns are valid ones and that, inter alia , the position put forward by the State on appeal runs afoul of due process and the rule of lenity because the plain and ordinary meaning of the language of the statute simply does not support the State's position that an offense has been charged in this case.

¶ 12 As stated above, for support for its position in this case, the State points to People v. Pearse , 2017 IL 121072, 417 Ill.Dec. 674, 89 N.E.3d 322. In Pearse , the Illinois Supreme Court noted that when applied to some situations involving the registering, reregistering, and/or changing of one's address, the SORA statutory scheme "leaves something to be desired, in terms of clarity and consistency." Id. ¶ 39. The court reiterated its previous pronouncement, in other cases, that the purpose of SORA and its statutory scheme "is to aid law enforcement by facilitating ready access to information about sex offenders and, therefore, to protect the public." Id. ¶ 41. The court then endeavored to set forth an analysis of the relevant sections of SORA that would "fully promote[ ] the purpose of" SORA and also would be "in accord with the legislature's intent." Id. In so doing, the court examined the relevant statutory text and then laid out the steps the defendant in that case was required to undertake to be in compliance with the statute. Id. ¶ 44. Although the court did not discuss or analyze the parameters of the "ready access to information about sex offenders" that SORA is designed to provide, the court did, inter alia , note that "the statutory mechanism for more precisely tracking the present whereabouts of an offender" includes the language in section 3(a) that "requires an offender 'temporarily absent from his * * * current address of registration for 3 or more days' to 'notify the law enforcement agency having jurisdiction of his * * * current registration' of, inter alia , his 'itinerary for travel.' " Id. ¶ 46 (quoting 730 ILCS 150/3(a) (West 2012) ). Near the end of its opinion, the court noted that it appeared the defendant in Pearse had attempted to comply with the law, and the court encouraged the legislature "to review this statutory scheme and revise it for purposes of clarity" because offenders subject to SORA must "have fair notice of what is required." Id. ¶ 48.

¶ 13 In this case, the crux of the State's argument for reversal is that SORA requires that a "registrant who is temporarily absent for three or more days in a calendar year must report in person the new address to the law enforcement authority which holds jurisdiction over the registrant's current registration." The State contends there are no due process or rule of lenity concerns in this case "because the time frame for such notification under Section 3(a) is embedded in the very character of what constitutes a 'temporary absence.' " According to the State, the "notification mandate" of section 3(a) "does not materialize until the defendant is absent at least three days." Therefore, the State posits, because a violation comes into existence on the third day, a registrant must "provide notification of absence at some point prior to the third day," notwithstanding the fact that the statute does not expressly so state. The State repeatedly asserts that it would make no sense for the legislature to create a notification requirement for temporary absences of three or more days but fail to provide a mechanism-such as the criminal charge filed in this case-to enforce that requirement.

¶ 14 We agree with the State that the only logical construction of the temporary absence notification requirement of section 3(a), as written, is one that requires the notification to be made on, or prior to, the third day of temporary absence. Elsewhere in SORA, where a "grace period" for compliance with a provision of the statute exists, the legislature makes this clear. See, e.g. , 730 ILCS 150/3(b) (West 2016) (person required to register under SORA, "regardless of any initial, prior, or other registration, shall, within 3 days of beginning school, or establishing a residence, place of employment, or temporary domicile in any county, register in person"); id. § 3(c)(2.5) (if person required to register under SORA has not been notified of person's requirement to register, then when person is notified, person "must then register within 3 days of notification"); id. § 4 (person required to register under SORA has duty to register "within 3 days of release" from facility or institution of confinement); id. § 5-5 (hospital or treatment facility that has received information about where a registrant plans to reside, work, and/or attend school upon release "shall report the information to the Department of State Police within 3 days"); id. § 6 ("law enforcement agency shall, within 3 days of the reporting in person by the person required to register under this Article, notify the Department of State Police of the new place of residence"). Therefore, we agree with the State that the absence of such language in the temporary absence paragraph of section 3(a) demonstrates that the legislature intended for there to be no grace period under this provision and for notification to be required on, or prior to, the third day of temporary absence. Our interpretation is consistent with the plain language of the paragraph, in which the legislature states that a registrant "who is temporarily absent" must comply with the notification requirement. (Emphasis added.) Id. § 3(a). If the legislature had stated that a registrant who "was" or who "has been" temporarily absent must comply, that would support the existence of some kind of grace period for compliance, notwithstanding the legislature's failure to specify such a grace period. Likewise, if the legislature had stated that a registrant who "will be" temporarily absent must comply, that would support a strictly prospective notification requirement.

¶ 15 This, however, does not end our inquiry. As the defendant points out, section 3(a) does not explicitly state whether to qualify thereunder the temporary absence in question may consist of three aggregate days of temporary absence in a calendar year (which the State, on appeal, seems to suggest is the case) or must consist of three consecutive days of temporary absence. We believe this distinction to be significant to those registered under SORA, who must understand the restrictions imposed by section 3(a) if they are to be held criminally liable for alleged violations of the section. See, e.g. , Howard , 2017 IL 120443, ¶ 25, 417 Ill.Dec. 660, 89 N.E.3d 308 (penal statute must give person of ordinary intelligence a reasonable opportunity to know what is prohibited so that person may act accordingly). If a registrant is not required to make a notification unless there is a three-consecutive-day temporary absence, that registrant clearly has much more latitude when planning a temporary absence (or taking a spontaneous temporary absence) from the registered address than if a temporary absence of three aggregate days in a calendar year triggers the notification requirement. For example, under a three-consecutive-day scenario, a registrant could be temporarily absent from the registered address for a two-consecutive-day period each week without ever triggering the notification requirement. Obviously, that would not be the case under a three-aggregate-day scenario. Thus, a three-aggregate-day construction of section 3(a) would impose a greater burden, and/or restriction, on registrants.

¶ 16 Because the paragraph of section 3(a) that gives rise to the criminal charge in this case is silent on this point, to determine if the legislature intended a three-aggregate-day scenario or a three-consecutive-day scenario for purposes of the temporary absence notification requirement in that paragraph, we turn, as the Pearse court did as it attempted to ascertain the legislative intent of the statute, to the rest of the statute. See also, e.g. , Molnar , 222 Ill. 2d at 519, 306 Ill.Dec. 116, 857 N.E.2d 209 (all provisions of enactment should be viewed as a whole; words and phrases should not be construed in isolation but must be interpreted in light of other relevant statutory provisions). As the Pearse court noted, in SORA, the legislature sometimes explicitly states that the days in question are aggregate ones. See 2017 IL 121072, ¶ 42, 417 Ill.Dec. 674, 89 N.E.3d 322 (" 'fixed residence' " means " 'any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year' " (quoting 730 ILCS 150/2(I) (West 2012) ), and " 'place of residence or temporary domicile' " is defined as " 'any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year' " (quoting 730 ILCS 150/3(a) (West 2012) ) ). In addition, we note that when, in SORA, the legislature does not include the language "an aggregate period of time of" prior to its listing of a number of days, and language referring to a "calendar year" after the listing, the legislature appears to intend to refer to consecutive days, especially when used in the same sentence in which explicit aggregate-day language appears. For example, section 2(G) defines an out-of-state employee as a registrant who works in Illinois "for a period of time of 10 or more days or for an aggregate period of time of 30 or more days during any calendar year." 730 ILCS 150/2(G) (West 2016). In this section, if the legislature did not intend the "10 or more days" to refer to consecutive days, the provision would make no sense and, indeed, would contradict itself. See also, e.g. , id. § 3(a-5) (out-of-state student or employee registrant to register in municipality in which he or she attends school or is employed "for a period of time of 5 or more days or for an aggregate period of time of more than 30 days during any calendar year"). Moreover, in a number of other sections of SORA in which the legislature uses only the number of days, without aggregate-day language, it would defy logic and make no sense to graft aggregate-day language onto the statute. See, e.g. , id. § 4 (person required to register under SORA must be informed of "duty to register in person within 3 days of release" from facility or institution of confinement); id. § 5-5 (hospital or treatment facility that has received information about where a registrant plans to reside, work, and/or attend school upon release "shall report the information to the Department of State Police within 3 days"); id. § 6 ("law enforcement agency shall, within 3 days of the reporting in person by the person required to register under this Article, notify the Department of State Police of the new place of residence"). Thus, we conclude that unless the legislature explicitly uses aggregate-day language in a particular provision of SORA, it intends to refer to consecutive days in that provision.

¶ 17 We are mindful of the Pearse court's quest to interpret SORA so as to "fully promote[ ]" its purpose, while remaining "in accord with the legislature's intent." 2017 IL 121072, ¶ 41, 417 Ill.Dec. 674, 89 N.E.3d 322. We recognize as well that such a quest is not always an easy one. On the one hand, it would appear to be arguable whether, if the legislature intended the notification requirement to be triggered by a three-consecutive-day temporary absence, the requirement would serve to advance the underlying purpose of SORA (see id. (purpose of SORA and its statutory scheme "is to aid law enforcement by facilitating ready access to information about sex offenders and, therefore, to protect the public") ), because, as noted above, it would allow a registrant to be temporarily absent for multiple two-consecutive-day periods of time, presumably ad infinitum , without ever triggering the notification requirement, which would appear to undermine the idea of authorities possessing "ready access to information" about the whereabouts of such a registrant, particularly if the registrant's temporary wanderings were orchestrated in a manner that did not lead to the establishment of a new residence or temporary domicile (see infra ¶ 16 n.1). On the other hand, it is equally arguable whether, if the legislature intended the temporary absence notification requirement to apply to three aggregate days in a calendar year, that requirement would serve to advance the underlying purpose of SORA either because if there were no notification requirement until the third day under an aggregate-day scenario, there would be no "ready access to information" about the whereabouts of the registrant on the first and second days, which, in the three-aggregate-day scenario, could be weeks or even months apart from one another and from the third day.

¶ 18 In any event, as noted above, the parameters of the "ready access to information" that SORA is intended to provide are not clear. Although the State, in its reply brief, posits that SORA "at least has the salient purpose of providing current, reliable information to the police and the public all the time " (emphasis in original), and although the defendant contends (perhaps with tongue in cheek) that "[i]f 24/7 surveillance were required, the legislature should have created statutes to place a GPS system on every registrant," we note that statutory mechanisms beyond SORA already exist that allow, after appropriate due process measures have been complied with, far more significant restrictions on individual liberty, should law enforcement authorities believe they can prove those restrictions are warranted in a particular case. See, e.g. , the Sexually Dangerous Persons Act ( 725 ILCS 205/0.01 et seq. (West 2016) ) and the Sexually Violent Persons Commitment Act ( 725 ILCS 207/1 et seq. (West 2016) ). See also People v. Tetter , 2018 IL App (3d) 150243, --- Ill.Dec. ----, --- N.E.3d ---- (concluding that SORA and its statutory scheme now constitute punishment and implicate great individual liberty concerns that could result in successful as-applied challenges to them).

¶ 19 These points notwithstanding, we conclude based upon our reading of the statute as a whole that it was the intent of the legislature to require that the temporary absence at issue in this case be one of three or more consecutive days. Moreover, we conclude that were we not to find that the legislature intended a three-consecutive-day scenario but were to find instead that the plain language of section 3(a) gives rise, as equally plausible and reasonable interpretations, to both an aggregate-day and a consecutive-day scenario for triggering the temporary absence notification requirement, we would find the statute to be ambiguous on this point. As explained above, when language within a penal statute is ambiguous, we must resort to rules of statutory construction such as the rule of lenity, which requires that in such situations the penal statute "be strictly construed to afford lenity to the accused." In re Detention of Powell , 217 Ill. 2d at 142, 298 Ill.Dec. 361, 839 N.E.2d 1008. In this case, the rule of lenity would require us to construe section 3(a) to contain the requirement of a three-consecutive-day temporary absence as the trigger for the notification requirement because, as we have explained, that is a less-harsh result than would be a three-aggregrate-day temporary absence trigger. As noted above, we believe this is what the legislature intended anyway. However, even if the legislature did not so intend, we do not believe that applying the rule of lenity in this manner, in this case, would mean we were construing the provision " 'so rigidly * * * as to defeat the intent of the legislature' " ( id. (quoting Washington , 343 Ill. App. 3d at 903, 279 Ill.Dec. 368, 800 N.E.2d 436 ) ).

¶ 20 Having concluded that section 3(a) requires a three-consecutive-day temporary absence as the trigger for the notification requirement-whether because that was the intent of the legislature or because the rule of lenity compels such a result-we return to the charging instrument in this case to determine if it strictly complies with the requirements of the Code. See DiLorenzo , 169 Ill. 2d at 321-22, 214 Ill.Dec. 846, 662 N.E.2d 412 ("[w]hen the sufficiency of the charging instrument is attacked in a pretrial motion," de novo standard of review requires reviewing court "to determine whether the instrument strictly complies with" the Code (emphasis in original) ). As explained above, "[t]he precise allegations necessary to accomplish [the purpose of the Code's requirements] may vary depending upon the statutory provision alleged to have been violated and the nature of the offense." Gerdes , 173 Ill. App. 3d at 1029, 123 Ill.Dec. 535, 527 N.E.2d 1310. If "the statute defining an offense specifies the type of conduct prohibited, the particular act at issue need not be alleged, and the [charging instrument] may simply set out the offense in the language of the statute." Id. However, if "the statute defines the offense only in general terms, a charge couched in the language of the statute is insufficient" and instead "[t]he facts which constitute the crime must be specifically set forth." Id. In this case, as explained above, section 3(a) does not explicitly specify the type of conduct that is prohibited by the statute-a temporary absence of three or more consecutive days-but instead defines the offense only in the more general terms of a temporary absence of three or more days. Accordingly, we conclude that a charge under section 3(a) that is couched in the language of section 3(a) is insufficient and instead the facts that constitute the alleged crime are required to be specifically set forth. See id.

¶ 21 The amended information in this case does not allege that the defendant was temporarily absent from his registered address for three or more consecutive days. Thus, it omits one of the elements of the offense the defendant was alleged to have committed. It does not adequately apprise the defendant "of the nature of the offense with which he is charged so that he may prepare a defense" and does not "assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct." Terry , 342 Ill. App. 3d at 867, 277 Ill.Dec. 360, 795 N.E.2d 1028. As explained above, the Illinois Supreme Court has held that the pivotal question when evaluating the sufficiency of a charging instrument is "whether there was sufficient particularity to allow the accused to prepare a defense." Klepper , 234 Ill. 2d at 351, 334 Ill.Dec. 555, 917 N.E.2d 381. In light of the fact that the offense in question here required the State to prove, as one of the elements of the offense, a temporary absence of three or more consecutive days over the course of the broad three-month time period of the "12th day of November, 2016, through the 12th day of February, 2017" alleged by the State in the charging instrument it drafted, we do not believe that the instrument's less-specific allegation that the defendant was temporarily absent for "3 or more days" during that time period contained sufficient particularity to allow the defendant to prepare a defense. Therefore, the charging instrument in this case fails to strictly comply with the requirements of the Code and does not sufficiently charge an offense in this case. See DiLorenzo , 169 Ill. 2d at 321-22, 214 Ill.Dec. 846, 662 N.E.2d 412 ("[w]hen the sufficiency of the charging instrument is attacked in a pretrial motion," de novo standard of review requires reviewing court "to determine whether the instrument strictly complies with" the Code (emphasis in original) ).

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we affirm the order of the circuit court of Clinton County that granted the defendant's motion to dismiss the one-count information that charged him with "Unlawful Failure of Sex Offender to Report Absence From Address of Registration."

¶ 24 Affirmed.

Justices Welch and Overstreet concurred in the judgment and opinion.

      For purposes of clarity, we note that under this definition, one could be temporarily absent from one's registered address for three or more days (be they consecutive days or aggregate ones) without necessarily establishing a new residence or temporary domicile, if one stayed at multiple places, each for less than three aggregate days in one calendar year, during the temporary absence(s) from the registered address.

      Based upon the foregoing analysis of the language of the entire statute, we do not believe it would be reasonable to conclude that the plain language of section 3(a) gives rise only to an aggregate-day scenario as the trigger for the temporary absence notification requirement. We believe only a revision of the language of the statute could support such an interpretation.

      We take no position with regard to whether a challenge to this charging instrument, if raised for the first time on appeal, would be successful, as that question is not before us. We are aware that a less-stringent standard-one that requires only prejudice to the defendant, not strict compliance with the Code-applies when the issue is raised for the first time on appeal rather than in a pretrial motion. See, e.g. , People v. Carey , 2018 IL 121371, ¶ 22, --- Ill.Dec. ----, --- N.E.3d ----.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jasmin STONE, Defendant-Appellant.
    Appeal Nos. 3-16-0171 3-16-0172
    Appellate Court of Illinois, Third District.
    Opinion filed April 9, 2018
    Michael J. Pelletier, Peter A. Carusona, and Amber Hopkins-Reed, of State Appellate Defender's Office, of Ottawa, for appellant.
    Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, David J. Robinson, and Luke McNeill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE O'BRIEN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Jasmin Stone, appeals from the denial of her motion to withdraw her guilty plea. Defendant raises three issues: (1) the court failed to comply with Illinois Supreme Court Rule 402 (eff. July 1, 2012) when it did not admonish her of the elements of the charged offenses and her right to persist in a plea of not guilty, (2) the court prejudged the case before she pled guilty, and (3) the fines imposed by the circuit clerk are subject to vacatur. We affirm in part and vacate in part.

¶ 2 FACTS

¶ 3 In case No. 13-CF-838, the State charged defendant with one count of felony theft ( 720 ILCS 5/16-1(a)(4)(A) (West 2012) ) and one count of misdemeanor theft (id. ).

¶ 4 While defendant was on pretrial release, the State charged defendant, in case No. 14-C-20, with one count of felony theft ( 720 ILCS 5/16-1(a)(4) (West 2014) ). The court appointed counsel to represent defendant. At a status hearing, the following exchange between the court and defendant occurred:

"THE COURT: You worry me, [defendant].
THE DEFENDANT: I don't want to worry you. That I don't want to do.
THE COURT: Why would I not be worried? Why wouldn't I? Why wouldn't I be worried that you are not taking anybody seriously? And that you have-that if these charges are true, that you would burglarized [sic ] a place or hook up with people who have, and then fence their property for money. Because from what [the State] says, it looks like it happened and then you were finally caught up with, you were arrested, you bonded out and then repeated it all over again, in addition to having this other case. And you posted $3300 and you have the public defender. It seems to me that the public has done everything but serve your jail sentence. That seems weird to me. Why shouldn't you go get your own lawyer? Why should the tax payers pay for your attorney? If you coughed up to $3,300 but don't have a job, that tells me that you have access to money."

The court revoked its prior appointment of the public defender, noting "you may not have been working but you're working somebody. And it ain't going to be me." Thereafter, defendant obtained private counsel.

¶ 5 On June 19, 2014, defendant signed written guilty pleas in case Nos. 13-CF-838 and 14-CF-20. In each case, defendant pled guilty to one charge of felony theft. The written pleas included the following statements: "I understand I have the right to plead not Guilty or to persist in that plea if it has already been made," and "I understand the minimum and maximum penalty to which I may be subjected including any penalty because of prior convictions or consecutive sentences." In exchange for her plea, the State moved to dismiss a probation violation in case No. 11-CF-300, which is not part of this appeal, and cap its sentencing request to a total of 16 years' imprisonment. Defendant indicated that she had read and understood the plea. The court admonished defendant of the sentencing range for the two charges, including the potential for an extended-term sentence and the requirement that the sentences be served consecutively. The court also admonished defendant of her rights to a jury trial, to confront witnesses, and to have her guilt proven beyond a reasonable doubt. Defendant acknowledged that she was giving up these rights by pleading guilty. The State provided a factual basis for the plea. Defendant said that she was entering the plea voluntarily and without threat or promise. The court accepted the plea and set the case for a sentencing hearing.

¶ 6 On August 21, 2014, the court conducted a sentencing hearing. As evidence in mitigation, defendant called Reverend AJ Guyton to testify regarding her character and rehabilitative potential. Reverend Guyton suggested a disposition of probation with the requirement that defendant report to him, as well as her probation officer.

¶ 7 Following the parties' arguments on the sentencing alternatives, the court noted:

"Reverend Guyton describes you in a favorable light, [defendant], and you would have done yourself well. And he knows what I mean by this. He has helped a lot of losers before because losers need some help. They need a third chance, a fourth chance, a fifth chance. And if everybody gives up on them, we all lose. You would have done yourself very well to have reached out to him, but, instead, it seems like you did not. That's too bad. He is a tolerant, patient, giving person. It's too bad that you didn't make use of that."

While discussing the facts of the case, the court observed that defendant was "not being sentenced for these burglaries, but [she was] a part of the milk line there, the chain of events." The court sentenced defendant to consecutive terms of 6 years' imprisonment on each of the theft charges for a total sentence of 12 years' imprisonment. The written sentencing order imposed a judgment for costs. Thereafter, the circuit clerk entered into the record a transaction summary sheet that showed defendant owed a total of $2518.

¶ 8 Defendant filed, in both cases, pro se motions to reconsider her sentence and withdraw her guilty plea. The court denied defendant's motions to reconsider her sentence and appointed counsel to represent defendant on her motions to withdraw her guilty plea. Appointed counsel filed an amended motion to withdraw the guilty plea that alleged defendant's plea was neither knowing nor voluntary because plea counsel (1) misled defendant to believe the court would impose a sentence of probation and (2) failed to advise defendant that any prison sentences would be served consecutively and defendant was potentially subject to extended-term sentences.

¶ 9 At the hearing on defendant's motion to withdraw the guilty plea, defendant testified that private counsel told her on three occasions that the court would impose a sentence of probation if she pled guilty. As a result of counsel's repeated assurances, defendant became convinced that she would receive a sentence of probation if she pled guilty. If not for counsel's repeated suggestions, defendant would have gone to trial. Counsel never advised defendant that she was subject to an extended-term sentence or consecutive sentencing. On cross-examination, defendant acknowledged that the court had admonished her of the full sentencing range including the requirement for consecutive sentencing. Defendant said that, although she indicated to the court that she understood the sentencing alternatives, she was not "paying attention because [she] was just ready to get probation and just get it over with."

¶ 10 Plea counsel testified that he had several discussions with defendant before she entered her guilty plea and he discussed with defendant the possibility of the court imposing a sentence of probation. Counsel did not guarantee this disposition. Counsel also explained to defendant the maximum sentences for both charges and the requirement that the sentences be served consecutively. Defendant indicated to counsel that she understood the sentencing range. Counsel discussed the strengths and weaknesses of the cases with defendant and opined that she did not have a good chance of a favorable outcome if she went to trial.

¶ 11 After hearing arguments on the motion, the court said, "I suppose the analogy is that it's appropriate that you stole from farmers because that's what this petition smells like." The court rejected defendant's argument that she did not understand the sentencing range, noting that it had admonished defendant of the range before it accepted her guilty plea. The court observed that defendant was "more acquainted with the court system when [she] pled guilty than most people." The court stated "I'm almost inclined to grant your petition because I did not give you the 16 years. I gave you 12." The court denied defendant's motion. Defendant appeals.

¶ 12 ANALYSIS

¶ 13 I. Plea Admonishments

¶ 14 Defendant argues her "guilty plea must be vacated where the circuit court failed to comply with Supreme Court Rule 402 in entering the plea by failing to admonish [her] about the nature and elements of the charges against her and her right to persist in a plea of not guilty." Defendant's argument challenges two aspects of the circuit court's preplea admonishments, the court's omission of (1) the elements of the charge and (2) defendant's right to persist in her plea of not guilty. Defendant's arguments are subject to de novo review. People v. Dismuke , 355 Ill. App. 3d 606, 608, 291 Ill.Dec. 545, 823 N.E.2d 1131 (2005).

¶ 15 A. Elements of the Charge Admonishment

¶ 16 Defendant frames her first argument, that the court did not admonish her of the elements of the offense, as a violation of Illinois Supreme Court Rule 402 (eff. July 1, 2012). However, Rule 402, does not require the circuit court to admonish a defendant of the elements of the offense. Rule 402 only requires the following preplea admonishments:

"(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences;
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he or she pleads guilty there will not be a trial of any kind, so that by pleading guilty he or she waives the right to a trial by jury and the right to be confronted with the witnesses against him or her * * *." Ill. S. Ct. R. 402(a) (eff. July 1, 2012).

The court was bound to follow this rule as written and did not have the power to modify it. In re B.C.P. , 2013 IL 113908, ¶ 8, 371 Ill.Dec. 757, 990 N.E.2d 1135. The circuit court need only provide the admonishments stated in the rule, and it "is not required to apprise a defendant of the elements of the crimes with which [defendant] is charged before accepting a guilty plea." People v. Jackson , 199 Ill. 2d 286, 296-97, 263 Ill.Dec. 819, 769 N.E.2d 21 (2002). Therefore, the court did not have an obligation under Rule 402 to admonish defendant of the elements of the charged offense.

¶ 17 In coming to this conclusion, we reject defendant's argument that the above holding (supra ¶ 16) conflicts with the United States Supreme Court's decision in Bradshaw v. Stumpf , 545 U.S. 175, 125 S.Ct. 2398, 162 L.Ed.2d 143 (2005). In Stumpf , the Court said, consistent with Illinois law, that it has "never held that the judge must himself explain the elements of each charge to the defendant on the record." Id. at 183, 125 S.Ct. 2398 ; see Jackson , 199 Ill. 2d at 296, 263 Ill.Dec. 819, 769 N.E.2d 21. Instead, the Court suggested that "the constitutional prerequisites of a valid plea may be satisfied where the record accurately reflects that the nature of the charge and the elements of the crime were explained to the defendant by his own, competent counsel." (Emphasis added.) Stumpf , 545 U.S. at 183, 125 S.Ct. 2398. Stumpf , therefore, rejects defendant's assertion that the court must explain the elements of each charge before accepting a guilty plea. Instead, Stumpf indicates that this obligation is best left to defense counsel.

¶ 18 B. Right to Plead Not Guilty Admonishment

¶ 19 Defendant also argues the court did not admonish her of her right to persist in a plea of not guilty. As we noted above, Rule 402 requires a circuit court to provide several admonishments before it accepts defendant's guilty plea. Supra ¶ 16. The admonishments include that "the defendant has the right to plead not guilty." Ill. S. Ct. R. 402(a)(3) (eff. July 1, 2012). However, the court need not recite the admonishments verbatim, as "substantial compliance with the rule is sufficient to satisfy due process." People v. Burt , 168 Ill. 2d 49, 64, 212 Ill.Dec. 893, 658 N.E.2d 375 (1995). In the absence of an exact recitation of the rule, the record must affirmatively and specifically show that defendant understood all of the components of the rule. People v. Walker , 109 Ill. 2d 484, 498-99, 94 Ill.Dec. 530, 488 N.E.2d 529 (1985).

¶ 20 In this case, the court did not admonish defendant of her right to persist in her plea of not guilty. However, the record establishes substantial compliance with Rule 402. On the date that defendant entered her guilty plea, defendant signed a written plea of guilty form. The form includes the warning "I understand I have the right to plead not Guilty or to persist in that plea if it has already been made." This warning is nearly a verbatim written recitation of Rule 402(a)(3). Defendant's signature on the guilty plea form indicates that she was aware of this right. Therefore, we find the record establishes substantial compliance with Rule 402. Additionally, the absence of error nullifies any ineffective assistance of counsel argument because counsel's performance is not deficient for failing to raise a meritless issue. See People v. West , 187 Ill. 2d 418, 435, 241 Ill.Dec. 535, 719 N.E.2d 664 (1999).

¶ 21 II. Court's Comments

¶ 22 Defendant asks this court to "reverse" her guilty plea and "remand for new proceedings before a different judge because Judge Lyons prejudged this case long before [defendant's] guilty plea, a plain error so serious that it affected the fairness of [defendant's] court proceedings and challenged the integrity of the judicial process." Defendant acknowledges that she forfeited review of this issue but contends that it is reversible plain error. Defendant specifically contends "when 'a judge displays signs of bias against the defendant, the system ceases to function as it properly should, resulting in plain error and requiring reversal' " (quoting People v. Phuong , 287 Ill. App. 3d 988, 993, 223 Ill.Dec. 240, 679 N.E.2d 425 (1997) ). We take no position on the propriety of Judge Lyons's comments. Instead, we conclude that defendant cannot establish that she suffered prejudice as a result of the comments.

¶ 23 Defendant is entitled to a trial that is free from improper and prejudicial comments on the part of the judge. People v. Tatum , 389 Ill. App. 3d 656, 662, 329 Ill.Dec. 497, 906 N.E.2d 695 (2009). The judge must not display unnecessary antagonism or favor toward any party. People v. Johnson , 2012 IL App (1st) 091730, ¶ 76, 373 Ill.Dec. 1, 993 N.E.2d 1. Where the judge makes improper comments, reversal is only warranted where defendant has suffered prejudice and is harmed by the comments. Id. Defendant bears the burden of proof to show prejudice. Id.

¶ 24 Defendant makes the general argument that Judge Lyons's improper comments show that he "prejudged this case." However, Judge Lyons never judged defendant's innocence or guilt because defendant pled guilty. Cf. Phuong , 287 Ill. App. 3d 988, 223 Ill.Dec. 240, 679 N.E.2d 425 (defendant's conviction, which was entered after a bench trial , was reversed where the court's improper comments exhibited bias). Therefore, defendant cannot satisfy her burden of proof to show that she suffered prejudice.

¶ 25 Defendant makes a more direct argument that Judge Lyons's comments illustrate bias which led to the denial of her motion to withdraw guilty plea. We disagree. Again, we take no position on the propriety of Judge Lyons's comments. Instead, we find that the denial of defendant's motion was justified in light of plea counsel's testimony that he had discussed the possibility of probation with defendant but did not guarantee this disposition. Moreover, defendant was aware of the full sentencing range because the court admonished her of the potential for extended-term and consecutive sentences before it accepted her plea. Defendant confirmed her knowledge of the full sentencing range when she signed the guilty plea form, which stated "I understand the minimum and maximum penalty to which I may be subjected including any penalty because of prior convictions or consecutive sentences." Therefore, defendant cannot show that Judge Lyons's decision to deny her motion to withdraw the guilty plea was the result of prejudice or bias.

¶ 26 III. Fines

¶ 27 Defendant asks this court to vacate several fines that the circuit clerk imposed without authority. These fines include $10 "Police Services Fund," $31.85 "Lump Sum Surcharge," $50 "Court Usage Fee," $30 "Criminal Child Advocacy Center," $10 "Criminal Probation Operation Fees," $1.28 "Circuit Court Oper/Adm Fund," $4.75 "Drug Court Fund," $10 "Drug Court Operation," $15 "State Police Operation Assistance Fund," $10 "State's Attorney Juvenile Expenses," $100 "Violent Crime Victim's Relief Fine," $10 "Medical Costs Fund," and $14.62 "State Police Merit Board." These fines were imposed in both of the underlying cases and totaled $595. The State concedes that the financial assessments cited by defendant were imposed by the clerk without authority and must be vacated. We accept the State's concession on its face and vacate the conceded assessments.

¶ 28 CONCLUSION

¶ 29 The judgment of the circuit court of Peoria County is affirmed in part and vacated in part.

¶ 30 Affirmed in part and vacated in part.

Justices Holdridge and Schmidt concurred in the judgment and opinion.

      From the record, it appears that count II in case No. 13-CF-838, the misdemeanor theft charge, was dismissed at some point between the plea and sentencing hearings.