In re Dustyn W.

2017 IL App (4th) 170103, 81 N.E.3d 88

• Court: Appellate Court of Illinois
• Decided: June 16, 2017
• Docket: 4-17-0103
• Status: Unpublished

Opinion

FILED June 16, 2017 2017 IL App (4th) 170103 Carla Bender 4th District Appellate NO. 4-17-0103 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re DUSTYN W., a Minor ) Appeal from (The People of the State of Illinois, ) Circuit Court of Petitioner-Appellee, ) Champaign County v. ) No. 16JD195. Dustyn W., ) Respondent-Appellant). ) Honorable ) Heidi N. Ladd, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Harris and Appleton concurred in the judgment and opinion.

OPINION

¶1 In October 2016, the State charged respondent, Dustyn W. (born May 21, 2004),

with armed robbery (720 ILCS 5/18-2(a)(1) (West 2016)) for taking lighters from a gas station in

Urbana, Illinois, while armed with a knife. Following a November 2016 bench trial, the trial

court adjudicated respondent a delinquent minor and ordered him to serve 24 months of proba-

tion. One of respondent’s conditions of probation prohibited him from being present on the Uni-

versity of Illinois (University) campus unless granted permission by his probation officer or ac-

companied by a parent, guardian, or custodian.

¶2 Respondent appeals, arguing that the condition of probation excluding him from

the University campus was an unconstitutional infringement on his right to travel. We disagree

and affirm that condition of probation. Respondent also requests that we vacate a $50 “Court Fi-

nance Fee” and a $5 “Drug Court Program” assessment. We vacate both assessments because they constitute fines that were imposed by the circuit clerk.

¶3 I. BACKGROUND

¶4 In October 2016, respondent was taken into custody and charged with armed rob-

bery. The evidence at his November 2016 bench trial established the following undisputed facts.

¶5 At approximately 10:10 p.m. on October 24, 2016, respondent and another juve-

nile, S.B., entered a gas station store on North Cunningham Avenue in Urbana. At the time, re-

spondent was living in a nearby children’s home. Respondent and S.B. approached the clerk at

the front counter. S.B. was holding a knife and told respondent to display his knife, which re-

spondent did. S.B. told the clerk, “Give us all your cigarettes.” The clerk refused. S.B. then told

respondent to take the cigarettes from behind the counter. The clerk stopped respondent from

moving behind the counter and saw S.B. take three lighters from a display on the counter. Sur-

veillance video from inside the store showed two people, whose faces were obscured, approach

the front counter, each holding a knife in their hand. They were dressed in clothing matching the

descriptions given by gas station employees. The person matching S.B.’s description took light-

ers from the front counter before leaving. Shortly thereafter, police found respondent and S.B.

walking on an adjacent street. Police recovered six lighters from the vicinity where they found

respondent and S.B.

¶6 The trial court adjudicated respondent delinquent, rejecting his argument of com-

pulsion. After a February 2017 dispositional hearing, the court ordered respondent to serve 24

months of probation. One of the conditions of probation ordered the following:

“[R]espondent minor must not be present on the University of Illinois campus un-

less he/she is in the presence of his/her parent, guardian, or custodian or unless

provided advance permission by the probation officer.”

-2- ¶7 The circuit clerk later imposed a $50 “Court Finance Fee” and a $5 “Drug Court

Program” assessment.

¶8 This appeal followed.

¶9 II. ANALYSIS

¶ 10 A. The Condition of Probation

¶ 11 Respondent argues that the condition of prohibition excluding him from the Uni-

versity campus was unconstitutional as applied because it infringed on his fundamental right to

travel. We disagree.

¶ 12 1. Statutory Language

¶ 13 Section 5-715(2) of the Juvenile Court Act of 1987 (705 ILCS 405/5-715(2)

(West 2016)) describes the different kinds of conditions a trial court may impose on a juvenile

probationer. Section 5-715(2)(r) provides that a court may require the minor to do the following:

“[R]efrain from entering into a designated geographic area except upon terms as

the court finds appropriate. The terms may include consideration of the purpose of

the entry, the time of day, other persons accompanying the minor, and advance

approval by a probation officer, if the minor has been placed on probation, or ad-

vance approval by the court, if the minor has been placed on conditional dis-

charge[.]” 705 ILCS 405/5-715(2)(r) (West 2016).

¶ 14 2. The Constitutionality of Conditions of Probation

¶ 15 “[C]ourts have broad discretion to impose probation conditions, whether express-

ly allowed by statute or not, to achieve the goals of fostering rehabilitation and protecting the

public.” In re J.W., 204 Ill. 2d 50, 77, 787 N.E.2d 747, 763 (2003). However, the “court’s discre-

tion is limited by constitutional safeguards and must be exercised in a reasonable manner.” Id.

-3- ¶ 16 In J.W. the supreme court vacated as unconstitutional a condition of juvenile pro-

bation limiting a minor’s freedom of movement. Id. at 81-82, 787 N.E.2d at 765. The 12-year-

old respondent in that case had been placed on probation for committing two counts of aggravat-

ed criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1998)) in the Village of South Elgin

(Village), where the respondent lived. J.W., 204 Ill. 2d at 54-55, 787 N.E.2d at 750. As a condi-

tion of probation, the trial court prohibited the respondent from residing in or entering the Vil-

lage under any circumstances during the term of his probation. Id.

¶ 17 The J.W. court explained that “probation conditions which impose geographic re-

strictions on travel implicate liberty interests” because citizens have a constitutional right to in-

trastate travel. Id. at 77-78, 787 N.E.2d at 763 (citing People v. Beach, 195 Cal. Rptr. 381, 386-

87 (1983)). In addition, other “fundamental” constitutional rights—such as the rights to free

speech, free assembly, and free association—are “tied in” with the right to travel. J.W., 204 Ill.

2d at 78, 787 N.E.2d at 763 (quoting Beach, 195 Cal. Rptr. at 386-87). However, “[e]ven funda-

mental constitutional rights are not absolute and may be reasonably restricted in the public inter-

est.” J.W., 204 Ill. 2d at 78, 787 N.E.2d at 763. Specifically, the court held that a restriction on a

probationer’s travel to a particular geographic area is reasonable only if “(1) there is a valid pur-

pose for the restriction, and (2) there is a means by which the probationer may obtain exemption

from the restriction for legitimate purposes.” Id. at 81, 787 N.E.2d at 765. The touchstone of this

evaluation is reasonableness. See id. at 80, 787 N.E.2d at 765 (“[A] condition of probation is

constitutionally valid if it is reasonable.”).

¶ 18 The J.W. court concluded that respondent’s condition of probation, banishing him

from the Village, was unconstitutional because it was overbroad. The court began its analysis by

determining that the restriction on respondent’s geographic movement was related to his offense

-4- and served a valid purpose. Id. at 80, 787 N.E.2d at 764-65. In support of that conclusion, the

court noted that the victims of respondent’s offenses lived in the Village, so prohibiting him from

that area would protect those victims. Id. In addition, removing J.W. from the hostility of the

community was in his own best interest and would benefit his rehabilitation. Id. at 80, 787

N.E.2d at 765. Further, the ban on living in the Village was “tempered” by the willingness of

J.W.’s family to move from the Village to another town. Id. “For all of these reasons, barring

J.W. from residing in South Elgin is a constitutionally valid condition of probation and not un-

reasonable.” Id.

¶ 19 Despite characterizing the purpose of the condition as “valid” and “reasonable”

(id.), the court nonetheless concluded that the condition was unconstitutional because it was not

narrowly tailored. The court reasoned that the ban was not narrowly drawn because it prohibited

the respondent from entering the community “for any purpose.” (Emphasis in original.) Id. The

condition was therefore “an unconstitutionally overbroad restriction of J.W.’s exercise of his

fundamental rights.” Id.

¶ 20 The court quoted favorably the following passage from People v. Pickens, 186 Ill.

App. 3d 456, 461, 542 N.E.2d 1253,1257 (1989):

“ ‘A court may, as a condition of probation or other sentence short of incarcera-

tion, bar a defendant from certain areas if the penalty is reasonably related to the

offense, provided that, if the defendant has a legitimate and compelling reason to

go to that area or place, he may apply to a specified authority for specific permis-

sion, as here to the probation officer.’ ” (Emphasis in original.) J.W., 204 Ill. 2d at

81, 787 N.E.2d at 765.

The restriction in J.W. was unconstitutional because it “fail[ed] to make any provision for J.W. to

-5- enter the area for legitimate purposes.” Id.

¶ 21 Similarly, in People v. Rizzo, 362 Ill. App. 3d 444, 458, 842 N.E.2d 727, 740

(2005), the Second District declared unconstitutional an adult probationer’s condition that pro-

hibited the defendant “from entering any school, park, or forest preserve, at any time of day, for

any purpose.” (Emphases in original.) Although the condition served a valid purpose of prevent-

ing the defendant—who was convicted of a child sex offense—from visiting areas where chil-

dren were likely to be present, the condition was nonetheless unconstitutional for being over-

broad. Id. The condition was not narrowly tailored because it made “no provision for legitimate

access.” Id.

¶ 22 3. This Case

¶ 23 Respondent argues that the condition limiting his access to the University is un-

constitutional because it both lacks a valid purpose and is not narrowly tailored. We disagree.

¶ 24 We first note that, as the supreme court explained in J.W., the trial court in this

case had broad discretion to impose probationary conditions to achieve the goals of fostering re-

habilitation and protecting the public. J.W., 204 Ill. 2d at 77, 787 N.E.2d at 763. The supreme

court further explained that the trial court’s discretion is limited by constitutional safeguards and

must be exercised in a reasonable manner. Id. Thus, in response to respondent’s contention, this

court must first determine whether the court’s discretion was exercised in a reasonable manner.

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 constitu-

tional rights.

¶ 25 We conclude that the trial court did not abuse its discretion by imposing this geo-

graphic limitation upon respondent as a probationary condition. Respondent, who has just turned

-6- 13, was found guilty of armed robbery with a knife. We deem the probationary condition that the

respondent minor “must not be present on the University of Illinois campus unless he/she is in

the presence of his/her parent, guardian, custodian or unless provided advance permission by the

probation officer” to be entirely reasonable and consistent with the goals of fostering rehabilita-

tion and protecting the public. See Id. The University campus is the crown jewel of the Cham-

paign-Urbana community, and efforts should be made by local law enforcement agencies, as

well as the local trial courts, to do all they can to ensure that the campus will be a sanctuary from

crime, particularly violent crime, as in this case. The University is a world-class institution, at-

tracting tens of thousands of students and faculty from around the world. Efforts to provide extra

protection for such persons is entirely understandable and commendable. Such efforts include

barring 13-year-old armed robbers from the campus. Indeed, one would expect no less.

¶ 26 In respondent’s argument to this court that this probationary condition was im-

proper, he argues that it does not further his rehabilitation, contending, in part, as follows:

“[T]his geographic restriction hinders [respondent’s] rehabilitation. Universities

are special places in our society where diversity of opinion is encouraged, where

critical thinking is expected, and where children hope and aspire to attend. The

University of Illinois, in particular, also encourages members of the general pub-

lic to use its facilities. For example, the general public has access to the Universi-

ty’s many libraries[ ] and can browse books and use the wireless Internet availa-

ble to all public visitors. *** Prohibiting [respondent] from entering a college

campus discourages aspirations for a higher education and may even cause [re-

spondent] to develop negative associations with institutes of higher learning.”

¶ 27 We view these contentions as wildly overblown. Given respondent’s difficult

-7- background, of which the trial court was fully aware, the notion that this probationary condition

would somehow restrict respondent from seeking valuable educational pursuits on the University

campus is hyperbole of the first order. Frankly, given his conviction for armed robbery, he has

no business being there at all.

¶ 28 Respondent also argues that this geographic restriction “is overly broad and not

narrowly drawn because it never specifies what University of Illinois campus [respondent] is

barred from entering.” We note that respondent never raised these concerns in the trial court, nor

did he seek any further clarification. We assume his failure to do so is because persons who live

in the Champaign-Urbana community, like respondent, have an understanding of what the term

“the University of Illinois campus” encompasses. We are disinclined to find error in this geo-

graphic restriction on the grounds that it “is overly broad and not narrowly drawn” when re-

spondent failed to seek any clarification in the trial court.

¶ 29 Having determined that the trial court did not abuse its discretion by imposing this

geographic restriction as a condition of probation, we next address whether it is constitutional.

Applying the guidance from J.W., we conclude that it is. The condition is narrowly drawn be-

cause it contains exemptions for legitimate access to the University campus and does not cate-

gorically ban respondent. The ban does not apply when either (1) respondent is in the presence of

his parent, guardian, or custodian or (2) respondent has received advance permission from his

probation officer. Those two exceptions distinguish the present case from J.W., where the prohi-

bition on the respondent’s travel to the Village was absolute. In this case, the condition complies

with the tenet taken from Pickens and quoted with approval in J.W.:

“ ‘A court may, as a condition of probation *** bar a defendant from certain areas

*** provided that, if the defendant has a legitimate and compelling reason to go to

-8- that area or place, he may apply to a specified authority for specific permission, as

here to the probation officer.’ ” (Emphasis in original.) J.W., 204 Ill. 2d at 81, 787

N.E.2d at 765 (quoting Pickens, 186 Ill. App. 3d at 461, 542 N.E.2d at 1257).

Here, respondent may do precisely that—namely, request permission from his probation officer

to enter the University campus. The condition in this case is actually more permissive than the

standard quoted in J.W. The condition here includes the additional exception of allowing re-

spondent to access the University when accompanied by a parent, guardian, or custodian. If re-

spondent wishes to visit the campus for legitimate reasons, he maintains the ability to do so. Be-

cause the condition limiting respondent’s access includes reasonable exceptions, the infringe-

ment on respondent’s rights is not overbroad, and the condition is constitutional.

¶ 30 B. Fines and Fees

¶ 31 Respondent argues that his $50 “Court Finance Fee” and $5 “Drug Court Pro-

gram” assessment are void and must be vacated because they are fines imposed by the circuit

clerk without authority.

¶ 32 The State concedes that the $5 drug court assessment (55 ILCS 5/5-1101(f) (West

2016)) was a fine in this case because respondent did not participate in drug court. See People v.

Warren, 2016 IL App (4th) 120721-B, ¶ 138, 55 N.E.3d 117 (when the defendant does not par-

ticipate in drug court, the drug court assessment constitutes a fine). We accept the State’s con-

cession. We therefore order the trial court to vacate the $5 drug court assessment because a fine

imposed by the circuit clerk is void. People v. Hible, 2016 IL App (4th) 131096, ¶¶ 11-12, 53

N.E.3d 319.

¶ 33 Likewise, the $50 court finance “fee” (55 ILCS 5/5-1101(c) (West 2016)) was

actually a fine, which the circuit clerk lacked authority to impose. People v. Smith, 2014 IL App

-9- (4th) 121118, ¶¶ 47-54, 18 N.E.3d 912. Although we described the court finance assessment as a

fee in Warren, 2016 IL App (4th) 120721-B, ¶¶ 108-09, 55 N.E.3d 117, the issue in that case

was whether a separate court finance assessment could be imposed for each offense for which

defendant was found guilty. We did not address whether the court finance assessment constituted

a fine or a fee. Id. As a result, our reference in Warren to the court finance “fee” should not be

construed as holding that the court finance assessment is a fee instead of a fine. As explained in

Smith, 2014 IL App (4th) 121118, ¶¶ 47-54, 18 N.E.3d 912, the court finance assessment

amounts to a fine. We therefore vacate the $50 court finance assessment because it was imposed

by the circuit clerk.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we affirm the conditions of respondent’s probation and

vacate his $50 court finance assessment and $5 drug court assessment.

¶ 36 As part of our judgment, we award the State its $75 statutory assessment against

defendant as costs of this appeal. 55 ILCS 5/4-2002 (a) (West 2016).

¶ 37 Affirmed in part and vacated in part.

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