People v. K.E. (In re K.E.)

2018 IL App (4th) 180274-U

In re K.E., a Minor

(The People of the State of Illinois, Petitioner-Appellee, v. K.E., Respondent-Appellant).

NO. 4-18-0274

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

August 28, 2018

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Macon County

No. 14JD169

Honorable James R. Coryell, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Steigmann and DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The circuit court did not err by revoking respondent's supervision, and respondent failed to show the court erred by imposing a probation search condition that did not require reasonable suspicion of criminal activity.

¶ 2 In August 2014, the State filed a petition for an adjudication of wardship, alleging respondent, K.E. (born in 2001), was a delinquent minor because he committed one count of attempt (criminal sexual assault) (720 ILCS 5/8-4(a), 11-1.20(a)(1) (West 2014)), one count of criminal sexual abuse (720 ILCS 5/11-1.50(a)(1) (West 2014)), one count of aggravated kidnapping (720 ILCS 5/10-2(a)(2) (West 2014)), one count of unlawful restraint (720 ILCS 5/10-3(a) (West 2014)), and one count of theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)). The State later amended the petition to allege the following: one count of aggravated kidnapping (720 ILCS 5/10-2(a)(2) (West 2014)), one count of unlawful restraint (720 ILCS 5/10-3(a) (West 2014)), one count of theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)), and three counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(2)(ii) (West 2014)). In September 2015, the respondent admitted he committed one count of aggravated criminal sexual abuse, and the other counts in the amended petition were dismissed. After a February 2016 sentencing hearing, the Macon County circuit court ordered respondent be placed on continuance under supervision for 48 months.

¶ 3 In August 2017, the State filed its first petition to revoke respondent's supervision, which was denied after a December 2017 hearing. In October 2017, the State filed a second petition to revoke respondent's supervision. A third petition to revoke respondent's petition was filed in December 2017. After a January 2018 hearing, the circuit court granted the State's second and third petitions to revoke respondent's supervision. In March 2018, the court sentenced defendant to three years' probation.

¶ 4 Respondent appeals, asserting (1) the circuit court erred by revoking his supervision and (2) the court's probation condition requiring him to submit to warrantless searches without reasonable suspicion is unconstitutional. We affirm.

¶ 5 I. BACKGROUND

¶ 6 Respondent admitted that, on July 22, 2014, he committed aggravated criminal sexual abuse, in that he or one for whose conduct he was legally accountable, being under the age of 17, knowingly and using force placed his hand on the breast of B.L., who was at least 9 years of age but under 17 years of age when the act was committed. The circuit court's February 2016 order of continuance under supervision contained numerous conditions, including requiring respondent to undergo a sex-offender evaluation and counseling and to refrain from possessing a firearm or other dangerous weapon. The order also required him to "[h]ave no contact directly or indirectly with B.L. *** and/or (2) not go upon or around a property located at B.L. [sic]residence or any school she attends."

¶ 7 In August 2017, the State filed its first petition to revoke supervision, alleging respondent failed to comply with the condition of not violating any criminal statute of any jurisdiction by committing the offense of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2016)), unlawful possession of firearms (720 ILCS 5/24-3.1(a)(2) (West 2016)), and unlawful possession of firearm ammunition (720 ILCS 5/24-3.1(a)(2) (West 2016)), as alleged in Macon County case No. 17-JD-173. In December 2017, the circuit court held a hearing on the State's first petition to revoke supervision. At the close of the State's evidence, respondent made a motion for a directed verdict, which the court granted.

¶ 8 In October 2017, the State filed a second petition to revoke respondent's supervision, contending respondent failed to complete sex-offender treatment, in that he was unsuccessfully terminated from treatment on August 31, 2017. On December 4, 2017, the State filed a third petition to revoke respondent's supervision, contending respondent had contact, directly or indirectly, with B.L. on November 24, 2017, by attending an event at Stephen Decatur Middle School while B.L. was present.

¶ 9 In January 2018, the circuit court held a hearing on both the State's second and third petitions to revoke. The State presented the testimony of B.L. and Michael Warnick. Respondent presented memoranda dated January 4, 2018, and September 15, 2017, which were drafted by respondent's sex-offender treatment provider, Dave Metcalfe.

¶ 10 B.L. testified she attended Eisenhower High School and was a cheerleader. On November 27, 2017, she attended a basketball game during the Turkey Tournament at Stephen Decatur Middle School. A lot of people attended the basketball game. While she was cheerleading during the game, she noticed respondent walk in. She did not say anything andcontinued cheering. B.L. stated she did not tell anyone because she was scared. B.L. later looked to her left and saw respondent standing around 15 feet away with a group of people. It made her feel really uncomfortable. Respondent did not talk to her and did not attempt to approach her. That night she told her mother and her cheer coach about respondent being at the game. The next day, she attended another basketball game at the tournament. Respondent attended that game as well. As soon as B.L. saw respondent, she told her cheer coach. Respondent was sitting at the top of the bleachers with a group of friends. When B.L. attempted to point respondent out to a police officer, respondent tried to hide from view. B.L. saw a police officer escort respondent out of the gym. Respondent did not attempt to talk to her. She had not seen respondent since the second basketball game.

¶ 11 Warnick testified he was the adult and juvenile sex-offender officer for Macon County probation. He was involved in the supervision of respondent. One of the conditions of respondent's supervision was to obtain sex-offender treatment. Warnick testified respondent had not completed treatment. According to Warnick, respondent was terminated on August 31, 2018, by Metcalfe based on respondent's (1) denial of his offense and refusal to take accountability for his actions as required in the treatment contract, (2) continuation of illegal behavior, (3) refusal to use trick concepts learned in treatment, and (4) attendance at only one of four treatment groups between July 27, 2017, and August 17, 2017. Additionally, it was anticipated respondent would be incarcerated for a lengthy period of time due to pending charges. However, those charges were resolved, and respondent was discharged from the juvenile detention center. At the time of the hearing on the petitions to revoke, respondent was back in treatment but had not yet completed it. When respondent missed the three classes during the initial treatment, he had charges pending against him. Before the three missed classes,respondent had attended a majority of the sessions.

¶ 12 After hearing the parties' arguments, the circuit court found the State had proved both the second and third petitions to revoke by a preponderance of the evidence.

¶ 13 On March 29, 2018, the circuit court held a sentencing hearing. The State presented the testimony of (1) Jeremy Mclean, Macon County sheriff's deputy; (2) Doug Allen, detective with the Decatur police department's juvenile investigations unit; (3) Courtney Settles, assistant principal at Eisenhower High School; (4) Lil Mantay, Macon County probation officer; and (5) J.R., B.L.'s mother. Respondent made a statement in allocution and presented the testimony of Robert Crawford, athletic coordinator at the Boys and Girls Club, and respondent's mother. He also presented stipulated testimony from "Officer Lawary." After hearing all of the evidence and the parties' arguments, the court sentenced respondent to three years' probation.

¶ 14 That same day, respondent and his mother signed a certificate of conditions for his probation term. One of the conditions stated the following: "Permit the Probation Officer to visit your home, school, or elsewhere to the extent necessary as determined by the Probation Office and further, submit to searches of your person, residence, automobile, and/or effects at any time such requests are made by the Probation Officer and consent to the use of anything seized as evidence in a court proceeding."

¶ 15 On April 13, 2018, respondent filed a timely notice of appeal under Illinois Supreme Court Rule 606 (eff. July 1, 2017). See Ill. S. Ct. R. 660(a) (eff. Oct. 1, 2001) (providing the rules applicable to criminal cases govern appeals from final judgments in delinquent-minor proceedings, unless specifically provided otherwise). A sentencing order in a juvenile-delinquency proceeding is a final order. See In re Justin L.V., 377 Ill. App. 3d 1073,1079, 882 N.E.2d 621, 626 (2007)). Thus, we have jurisdiction over this appeal under Illinois Supreme Court Rule 660(a) (eff. Oct. 1, 2001).

¶ 16 II. ANALYSIS

¶ 17 A. Revocation of Supervision

¶ 18 K.E. first argues the circuit court erred by revoking his supervision because the State failed to prove by a preponderance of the evidence he (1) had contact with B.L. and (2) did not complete sex-offender treatment.

¶ 19 In In re Terry H., 2011 IL App (2d) 090909, ¶ 14, 952 N.E.2d 159, the reviewing court explained review of a circuit court's revocation...