People v. Morger

2018 IL App (4th) 170285

103 N.E.3d 602

PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Conrad Allen MORGER, Defendant–Appellant.

NO. 4–17–0285

Appellate Court of Illinois, Fourth District.

FILED April 25, 2018

Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, of State Appellate Defender’s Office, of Springfield, for appellant.

Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and John M. Zimmerman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

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

¶ 1 After defendant, Conrad Allen Morger, was convicted in 2014 of criminal sexual abuse and aggravated criminal sexual abuse, he challenged on appeal various conditions of his probation. This court vacated defendant's sentence and remanded for a new sentencing hearing. The trial court again sentenced defendant to probation, and he now appeals, challenging certain conditions of probation as (1) an improper increase in his sentence and (2) unconstitutional because they are overly broad and unreasonable. For the reasons that follow, we affirm the trial court's judgment.

¶ 2 I. BACKGROUND

¶ 3 In January 2013, the State charged defendant with aggravated criminal sexual abuse ( 720 ILCS 5/11–1.60(d) (West 2010) ) and criminal sexual abuse (id. § 11–1.50(a)(1) ). People v. Morger , 2016 IL App (4th) 140321, ¶ 5, 405 Ill.Dec. 926, 59 N.E.3d 219. Each charge alleged that defendant's criminal acts, which were committed against his sister, K.M., who was born September 22, 1997, occurred between August 1, 2010, and November 30, 2012. Id. ¶ 5.

¶ 4 In February 2014, following a bench trial, defendant was convicted of both counts. Id. ¶ 1. In April 2014, the trial court sentenced him to 180 days in jail and probation for 48 months. Id. ¶¶ 1, 21.

¶ 5 In defendant's initial appeal, he argued that the State failed to prove him guilty beyond a reasonable doubt of either charge. Id. ¶ 2. Defendant also argued his probation conditions were unreasonable, overly broad, and unrelated to his conviction or rehabilitation. In addition, defendant argued that the trial court erred by delegating its judicial discretion to the McLean County court services department to determine his sentence. Id. In August 2016, this court agreed with only defendant's last argument, so we affirmed defendant's convictions, vacated his sentence, and remanded for the trial court to use its discretion to determine his sentence. Id. ¶ 61.

¶ 6 On remand, the trial court resentenced defendant to the same term of probation and imposed various probation conditions. Defendant challenged some of those conditions in a motion to reconsider sentence, but the court denied that motion.

¶ 7 This appeal followed.

¶ 8 II. ANALYSIS

¶ 9 On appeal, defendant raises two contentions. First, he argues that the trial court's imposition of probation conditions on remand amounts to an improper increase of his sentence. Second, defendant argues probation condition Nos. 4, 5, 6, 8, 11, and 14 should be vacated because they are unconstitutional, overly broad, and unreasonable. We will address these arguments in turn.

¶ 10 A. The Probation Conditions Imposed on Remand

¶ 11 Defendant argues that the probation conditions purportedly imposed by the McLean County court services department previously cannot be imposed by the trial court on remand because doing so would impermissibly increase his sentence. Accordingly, defendant asks this court to vacate all of the probation conditions the trial court imposed on remand.

¶ 12 The State responds that (1) the trial court retained authority and discretion during defendant's probationary period to revoke or modify defendant's probation and (2) the court properly imposed probation conditions on remand. We agree with the State that the trial court's imposition of probation conditions on remand was proper.

¶ 13 In support of defendant's claim that the trial court's imposition of probation conditions on remand amounted to an impermissible increase in his sentence, he relies upon People v. Castleberry , 2015 IL 116916, ¶¶ 20–26, 398 Ill.Dec. 22, 43 N.E.3d 932, and People v. Daily , 2016 IL App (4th) 150588, ¶ 30, 411 Ill.Dec. 706, 74 N.E.3d 15. We reject defendant's Castleberry and Daily analysis because those cases are inapposite to defendant's situation.

¶ 14 In Daily , the circuit clerk purportedly imposed fines upon the defendant that the trial court never imposed. Daily , 2016 IL App (4th) 150588, ¶ 30, 411 Ill.Dec. 706, 74 N.E.3d 15. This court vacated the fines but declined the State's request that we remand so that the trial court could impose the mandatory fines. Id. In so concluding, we stated our agreement with the Third District's decision in People v. Wade , 2016 IL App (3d) 150417, ¶ 13, 407 Ill.Dec. 904, 64 N.E.3d 703, that such a remand would result in an impermissible increase in defendant's sentence on appeal, which would violate the supreme court's decision in Castleberry . Id. As the Wade court noted, the supreme court in Castleberry held that the appellate court may not increase a sentence on appeal, even one that is illegally low. Id.

¶ 15 Defendant's situation in the present case is different because, here, the trial court sentenced defendant to probation but then delegated the imposition of specific probation conditions to the McLean County court services department. Morger , 2016 IL App (4th) 140321, ¶¶ 1, 57, 405 Ill.Dec. 926, 59 N.E.3d 219. We held in the first appeal of this case that the trial court's delegation to the court services department was erroneous. Id. ¶ 54. "Because the imposition of probationary conditions is part of sentencing, the trial court must impose any such conditions at the sentencing hearing and may not delegate that authority to any third party, including the court services department." Id. ¶ 57. We then remanded the defendant's case for the trial court to judicially impose the specific probation conditions. Id. ¶ 58.

¶ 16 On remand, the trial court did just that—namely, the court resentenced defendant and imposed probation conditions. Thus, this case differs from Daily because, here, it was the trial court that initially imposed the erroneous sentence, not the circuit clerk. Thus, our remand directed the trial court to sentence defendant again without engaging in any improper delegation to the court services department to determine probation conditions. The trial court complied with our remand, and we see no error in the court's doing so. Because the trial court resentenced defendant and imposed probation conditions, the trial court exercised its judicial function and these conditions were properly imposed on remand.

¶ 17 B. Defendant's Challenge to Specific Probation Conditions

¶ 18 Next, defendant argues that probation condition Nos. 4, 5, 6, 8, 11, and 14 imposed by the trial court should be vacated because they are unconstitutional, overly broad, and unreasonable. These contentions on appeal appear based on two separate claims: (1) the probation conditions are inappropriate, excessive, and unreasonable as a matter of Illinois law, and (2) even if they might be permitted under Illinois law, they violate defendant's constitutional rights. Consistent with directions from the Illinois Supreme Court regarding how lower courts should handle cases in which both constitutional and nonconstitutional claims are raised, we will first address defendant's nonconstitutional claims. See People v. Chairez , 2018 IL 121417, ¶ 13, ––– Ill.Dec. ––––, ––– N.E.3d –––– (courts should "decide constitutional questions only to the extent required by the issues in the case" (internal quotation marks omitted) ); see also In re Dustyn W. , 2017 IL App (4th) 170103, ¶ 24, 414 Ill.Dec. 822, 81 N.E.3d 88 ("Only if we conclude that the trial court did not abuse its discretion by imposing the probationary condition at issue should we then consider whether this condition violated respondent's constitutional rights.").

Nonetheless, our consideration of a defendant's contention that a probation condition violated his constitutional rights can help inform this court's analysis regarding the overall reasonableness of that condition.

¶ 19 1. Defendant's Claim That the Probation Conditions Imposed On Him Were Not Permitted Under Illinois Law

¶ 20 In analyzing the probation conditions, we need to "first determine whether the court's discretion was exercised in a reasonable manner." Dustyn W. , 2017 IL App (4th) 170103, ¶ 24, 414 Ill.Dec. 822, 81 N.E.3d 88. "To be reasonable, a condition of probation must not be overly broad when viewed in the light of the desired goal or the means to that end." In re J.W. , 204 Ill. 2d 50, 78, 787 N.E.2d 747, 764, 272 Ill.Dec. 561 (2003).

¶ 21 Trial courts have broad discretion to impose probationary conditions to achieve the goals of fostering rehabilitation and protecting the public. Dustyn W. , 2017 IL App (4th) 170103, ¶ 24, 414 Ill.Dec. 822, 81 N.E.3d 88. "[T]he trial court's discretion is limited by constitutional safeguards and must be exercised in a reasonable manner." Id.

¶ 22 For the reasons that follow, we conclude that probation condition Nos. 4, 5, 6, 8, 11, and 14 are reasonable.

¶ 23 a. Probation Condition No. 4

¶ 24 Probation condition No. 4 requires that defendant

"[n]ot reside at the same address, in the same condominium unit or complex, or in the same apartment unit or complex, with another person defendant knows or reasonably should know is a convicted sex offender. ( 730 ILCS 5/5–6–3(a)(8.6) ) This includes any mobile home park in which the homes are addressed by lot number, with or without a designated street address."

¶ 25 Defendant argues that probation condition No. 4 prohibits him "from living in any mobile home parks that use lot numbers if another convicted sex offender lives there." He further argues that probation condition No. 4 is overly broad and unreasonable "because mobile home parks are...