People v. Galley

2021 IL App (4th) 180142

172 N.E.3d 600

447 Ill.Dec. 77

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jonathan R. GALLEY, Defendant-Appellant.

NO. 4-18-0142

Appellate Court of Illinois, Fourth District.

FILED January 6, 2021

James E. Chadd, Patricia Mysza, and Jonathan Yeasting, of State Appellate Defender's Office, of Chicago, for appellant.

Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and James Ryan Williams, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In January 2017, the State charged defendant, Jonathan R. Galley, with four counts of predatory criminal sexual assault of a child, Class X felonies ( 720 ILCS 5/11-1.40(a)(1), (b)(1) (West 2016)), and six counts of aggravated criminal sexual abuse, Class 2 felonies ( 720 ILCS 5/11-1.60(c)(1)(i), (g) (West 2016)). Following a bench trial, defendant was found guilty on 6 of the 10 counts: 4 counts of predatory criminal sexual assault of a child less than 13 years old and 2 counts of aggravated criminal sexual abuse of a victim less than 13 years old. The trial court sentenced defendant to 37 years in the Illinois Department of Corrections (DOC) followed by an indeterminate period (3 years to life) of mandatory supervised release (MSR), and it informed defendant he must register as a sex offender. Defendant's MSR conditions included a total prohibition on accessing social networking websites ( 730 ILCS 5/3-3-7(a)(7.12) (West 2016)).

¶ 2 On appeal, defendant argues the Illinois Supreme Court's decision in People v. Morger , 2019 IL 123643, 442 Ill.Dec. 480, 160 N.E.3d 53, renders "the blanket statutory prohibition on use of social media as [an MSR] condition *** unconstitutional on its face under the First Amendment." We agree.

¶ 3 I. BACKGROUND

¶ 4 In January 2017, the State charged defendant by way of a 10-count information alleging he sexually abused his girlfriend's 11-year-old granddaughter multiple times between October 1 and December 19, 2016. The State charged defendant with four counts of predatory criminal sexual assault of a child under the age of 13 ( 720 ILCS 5/11-1.40(a)(1) (West 2016)) and six counts of aggravated criminal sexual abuse of a child under the age of 13 ( 720 ILCS 5/11-1.60(c)(1)(i) (West 2016)). The matter proceeded to a bench trial, where the trial court found defendant guilty and entered judgment on the four predatory sexual assault of a child counts and two of the aggravated criminal sexual abuse of a child counts. The court sentenced defendant to 37 years in DOC followed by MSR for an indeterminate period ranging from 3 years to life.

¶ 5 Defendant's MSR terms included the following mandatory provision from subsection (a)(7.12) of the Unified Code of Corrections:

"The conditions of parole or mandatory supervised release shall be such as the Prisoner Review Board deems necessary to assist the subject in leading a law-abiding life. The conditions of every parole and mandatory supervised release are that the subject:

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(7.12) if convicted of a sex offense as defined in the Sex Offender Registration Act committed on or after January 1, 2010 (the effective date of Public Act 96-262), refrain from accessing or using a social networking website as defined in Section 17-0.5 of the Criminal Code of 2012 [.]" (Emphasis added.) 730 ILCS 5/3-3-7(a)(7.12) (West 2016).

Illinois law further provides:

" ‘Social networking website’ means an 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 2016).

¶ 6 Defendant filed a motion to reconsider, alleging two trial errors and an excessive sentence. The trial court denied the motion following a hearing.

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 Relying upon the Illinois Supreme Court's decision in Morger , defendant challenges as overbroad and facially unconstitutional one statutory MSR condition—prohibiting accessing or using social networking websites. The State concedes the argument and echoes defendant's claim that subsection (a)(7.12) of the Unified Code of Corrections ( 730 ILCS 5/3-3-7(a)(7.12) (West 2016)) is unconstitutional on its face by overburdening first amendment rights. Heeding the parties' arguments and, more importantly, following guidance from our supreme court, we agree the statute is unconstitutional.

¶ 10 A challenge to the constitutionality of a statute presents a legal question we review de novo . People v. Minnis , 2016 IL 119563, ¶ 21, 409 Ill.Dec. 60, 67 N.E.3d 272. Since we presume statutes are constitutional, the "party challenging the constitutionality of a statute [bears] the burden of establishing its invalidity." In re J.W. , 204 Ill. 2d 50, 62, 272 Ill.Dec. 561, 787 N.E.2d 747, 754(2003).

¶ 11 "First amendment protections for speech extend fully to communications made through the medium of the Internet," meaning laws curtailing Internet speech must pass constitutional muster. Minnis , 2016 IL 119563, ¶ 23, 409 Ill.Dec. 60, 67 N.E.3d 272. Here, we consider a statute prohibiting a person on MSR from accessing or using social networking websites, which defendant challenges as overbroad and facially unconstitutional. "According to [the] First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech." United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). Specifically, "a law may be invalidated as overbroad only if a substantial number of its applications to protected speech are unconstitutional, judged in relation to the statute's plainly legitimate sweep." Minnis , 2016 IL 119563, ¶ 24, 409 Ill.Dec. 60, 67 N.E.3d 272.

¶ 12 Besides being overbroad, a statute imposing a content-neutral restriction on Internet speech can be unconstitutional if it fails intermediate scrutiny. A restriction on speech is content-neutral if it limits speech regardless of what the speech is about, i.e. , the ideas or views expressed. See Minnis , 2016 IL 119563, ¶ 33, 409 Ill.Dec. 60, 67 N.E.3d 272. To withstand intermediate scrutiny, the statute's content-neutral restriction on speech must clear two hurdles:

"(1) [it] must serve or advance a substantial governmental interest unrelated to the suppression of free speech and (2) [it] must not burden substantially more speech than necessary to further that interest—or in other words, it must be narrowly tailored to serve that interest without unnecessarily interfering with first amendment freedoms." Minnis , 2016 IL 119563, ¶ 36, 409 Ill.Dec. 60, 67 N.E.3d 272.

The parties direct our attention to Morger , believing first it provides the template for our analysis and, second, it directs the outcome of this case.

¶ 13 A. People v. Morger

¶ 14 In Morger , our supreme court recently applied these two tests, overbreadth and intermediate scrutiny, when evaluating facial challenges to a statutory probation provision that is nearly identical to this statutory MSR term. There, the court considered the following statute:

"The conditions of probation and of conditional discharge shall be that the person:

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(8.9) if convicted of a sex offense as defined in the Sex Offender Registration Act committed on or after January 1, 2010 (the effective date of Public Act 96-262), refrain from accessing or using a social networking website as defined in Section 17-0.5 ofthe Criminal Code of 2012 [.]" (Emphasis added.) 730 ILCS 5/5-6-3(a)(8.9) (West 2016).

As one may note, this italicized language mirrors that of the statute at issue in this case.

¶ 15 As part of its carefully reasoned analysis, the Morger court concluded the above statute " ‘is part of a statutory scheme intended to prevent sex offenses against children and to protect the public,’ " suggesting the statute served a substantial governmental interest or had a plainly legitimate sweep. Morger , 2019 IL 123643, ¶ 45, 442 Ill.Dec. 480, 160 N.E.3d 53 (quoting Minnis , 2016 IL 119563, ¶ 34, 409 Ill.Dec. 60, 67 N.E.3d 272 ). Nevertheless, the court found the above-cited statutory probation condition "overbroad and facially unconstitutional" because "in its current form" the statute " ‘prohibits constitutionally protected activity as well as activity that may be prohibited without offending constitutional rights.’ " Morger , 2019 IL 123643, ¶ 58, 442 Ill.Dec. 480, 160 N.E.3d 53 (quoting People v. Relerford , 2017 IL 121094, ¶ 50, 422 Ill.Dec. 774, 104 N.E.3d 341 ). As part of the intermediate-scrutiny analysis, the court found no narrow tailoring, explaining the probation condition "unnecessarily sweeps within its purview those who never used the Internet—much less social media—to commit their offenses and who show no propensity to do so, as well as those whose Internet activities can be supervised and monitored by less restrictive means." Morger , 2019 IL 123643, ¶ 58, 442 Ill.Dec. 480, 160 N.E.3d 53. Concerning overbreadth, the court similarly concluded: " ‘[A] substantial number of its applications are unconstitutional, judged in relation to the statute's legitimate sweep’ [citation], which is protection of the public." (Emphasis in original.) Morger , 2019 IL 123643, ¶ 58, 442 Ill.Dec. 480, 160 N.E.3d 53 (quoting People v. Clark , 2014 IL 115776, ¶ 11, 379 Ill.Dec. 77, 6...