In re J'Lavon T.

2018 IL App (1st) 180228

• Court: Appellate Court of Illinois
• Decided: June 29, 2018
• Docket: 1-18-0228
• Status: Unpublished

Opinion

2018 IL App (1st) 180228

SIXTH DIVISION Opinion filed: June 15, 2018

No. 1-18-0228 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

In re J’Lavon T., a Minor, ) Appeal from the

) Circuit Court of

(The People of the State of Illinois, ) Cook County

)

Petitioner-Appellee, )

v. ) No. 17 JD 363

J’Lavon T., ) Honorable

) Lana Charisse Johnson, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Connors and Delort concurred in the judgment and opinion.

OPINION

¶1 The respondent, J’Lavon T., appeals from the trial court’s judgment adjudicating him a

delinquent minor by reason of his commission of one count of armed robbery and the resulting

sentence of 2 years’ probation and 40 hours’ community service. 1 The respondent argues that

certain conditions of probation imposed by the trial court, including that he have “no gang

contact” and not post “anything related to a gang” on social media, were improper because they

1 The respondent was tried jointly with a co-respondent, Phazahn D., who is not a party to this appeal. No. 1-18-0228

lack exceptions for legitimate purposes. Additionally, he claims that the social media restriction

violates due process because it does not adequately identify what conduct constitutes a violation

of probation. For the reasons that follow, we affirm in part, vacate in part, and remand.

¶2 The State alleged in a petition for adjudication of wardship that the 15-year-old

respondent committed one count each of theft from a person (720 ILCS 5/16-1 (West 2016));

robbery (720 ILCS 5/18-1 (West 2016)); aggravated robbery (720 ILCS 5/18-1(b) (West 2016));

armed robbery (720 ILCS 5/18-2(a)(2) (West 2016)); unlawful restraint (720 ILCS 5/10-3(a)

(West 2016)); aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2016)); and battery

(720 ILCS 5/12-3(a)(2) (West 2016)).

¶3 The matter proceeded to a bench trial, where the following evidence was adduced by the

State. At approximately 10 a.m. on February 11, 2017, the victim, Jonathon Todd, met an

acquaintance at a store in Chicago. The acquaintance led Todd to the basement of an abandoned

building, where the respondent and two other individuals “grabbed” him. One of those

individuals drew a gun and took Todd’s cell phone, and the respondent “punched” Todd in the

face. Todd contacted the police, identified the respondent at the police station, and also identified

him in court. Based on this evidence, the trial court found the respondent delinquent as to the

armed robbery count. 2

¶4 The matter proceeded to a dispositional hearing, where the trial court received a social

investigation report. According to the report, the respondent had “been to” the Juvenile

Temporary Detention Center once but had not previously been subject to a warrant, arrest,

station adjustment, or probation. He attended high school and had “some friends that are in a

gang,” but denied that he belonged to a gang. The respondent’s mother stated that their family

lives in “a rough area with a lot crime and gangs,” and that he “got caught up” in the offense 2 The judge did not state findings as to the remaining counts. -2­ No. 1-18-0228

because of “hanging with the wrong people.” She added that, during the offense, the respondent

“was a follower and he should have kn[own] better,” and that “the biggest problem she [has]

with [him] is making sure he does not hang with a negative crowd.” She also stated that, during

the year following the offense, “things have been about the same but [the respondent] needs to

stay away from negative peers.”

¶5 The trial court sentenced the respondent to 2 years’ probation and 40 hours’ community

service. In setting forth the conditions of his probation, the judge stated:

“No gangs, guns or drugs; drugs includes [sic] marijuana and alcohol.

Gang[s], you can’t post anything on social media related to gangs or any money

that might have been attained. I don’t [think] this is going to be a problem but I

have [to] tell you that.

No illegally attained funds can be shown on Facebook or any social media

and anything related to a gang, you can’t do that on social media.”

The dispositional order form includes a checkmark next to the words “no gang contact or

activity,” and a handwritten addition stating “no guns, no drugs.” The probation order includes

handwritten additions stating “no social media,” “no gangs, guns, or drugs,” and “no gang

involvement.” The trial court did not ask whether these probation conditions interfered with the

respondent’s family, school, or employment relationships, although the respondent signed the

probation order, which states “[b]y signing, *** you are indicating that you have read and fully

understand all of the conditions of your Probation.” The respondent neither objected to the

probation conditions at the dispositional hearing nor filed a post-adjudication motion. This

appeal followed.

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¶6 On appeal, the respondent first contends that the probation conditions imposed by the

trial court, including that he have “no gang contact” and not post “anything related to a gang” on

social media, constitute overbroad impairments on his right to freedom of speech and association

under the first amendment of the United States Constitution (U.S. Const., amend. I). Specifically,

he argues that the restrictions lack “commonsense exceptions” for “legitimate purposes,” such as

contact with family members, classmates, or coworkers who might be gang members, and

provide “no guidance” as to what kind of social media usage would violate the no-contact order.

Because the respondent lives in an area with gang activity, he also maintains there is an

“unreasonable risk” that he could violate the “blanket” restrictions unknowingly and

unintentionally.

¶7 The State, in response, argues that the respondent forfeited his claim of error by not

raising it in the trial court. On the merits, however, the State contends that the respondent’s

argument regarding his probation conditions amounts to an as-applied constitutional challenge,

which fails because the record does not establish that his personal circumstances warrant any

exceptions to the trial court’s order. According to the State, there is no evidence establishing that

anyone in the respondent’s family or school belongs to a gang; in the trial court, he identified no

legitimate reason for having contact with gang members or posting gang-related content on

social media; and nothing in the record suggests that he was “confused” about the scope of the

probation order or has been accused of violating his probation by engaging in innocuous

conduct. Consequently, the State submits that the respondent’s as-applied constitutional

challenge relies on “hypothetical examples” and, based on the record, is not justiciable.

¶8 The respondent acknowledges that he did not object to the conditions of his probation in

the trial court, but maintains that this court should review his claim of error under the first or

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second prong of the plain-error doctrine. The first inquiry before determining whether there was

a plain error is to determine whether there was a clear and obvious error. People v. Eppinger,

2013 IL 114121, ¶ 19. Absent an error, there can be no plain error and the respondent’s forfeiture

will be honored. Id.

¶9 Turning to the merits, we begin by noting that delinquency proceedings are protective in

nature and are intended to correct and rehabilitate, not to punish. In re Jonathon C.B., 2011 IL

107750, ¶ 94. To this end, section 5-715(2)(s) of the Juvenile Court Act of 1987 (705 ILCS

405/5-715(2)(s) (West 2016)), sets forth terms that the court may impose as conditions of

juvenile probation, including that a minor “refrain from having any contact, directly or indirectly,

with certain specified persons or particular types of persons, including but not limited to

members of street gangs.” The court may also order probation conditions not enumerated in the

Act in order to “achieve the goals of fostering rehabilitation and protecting the public.” In re

J.W., 204 Ill. 2d 50, 77 (2003); 705 ILCS 405/5-715(2)(u) (West 2016).

¶ 10 Although the trial court has “wide latitude” in imposing probation conditions, its

“discretion is limited by constitutional safeguards and must be exercised in a reasonable

manner.” J.W., 204 Ill. 2d at 77. “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.” Id. at 78. Thus,

“[w]here a condition of probation requires a waiver of precious constitutional rights, the

condition must be narrowly drawn; to the extent it is overbroad it is not reasonably related to the

compelling state interest in reformation and rehabilitation and is an unconstitutional restriction

on the exercise of fundamental constitutional rights.” (Internal quotation marks omitted.) Id. at

78-79.

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¶ 11 When assessing the reasonableness of a probation condition, “it is appropriate to consider

whether the restriction is related to the nature of the offense or the rehabilitation of the

probationer.” Id. at 79. Other considerations include (1) whether the probation condition

reasonably relates to the rehabilitative purpose of the legislation, (2) whether the public value in

imposing the probation condition “manifestly outweighs the impairment to the probationer’s

constitutional rights,” and (3) “whether there are any alternative means that are less subversive to

the probationer’s constitutional rights, but still comport with the purposes of conferring the

benefit of probation.” Id. Whether a condition of probation violates a probationer’s constitutional

rights is a question of law and our review is, therefore, de novo. See People v. Burns, 209 Ill. 2d

551, 560 (2004) (“The standard of review for determining whether an individual’s constitutional

rights have been violated is de novo.”).

¶ 12 In In re Omar F., 2017 IL App (1st) 171073, this court followed the analysis set forth in

J.W. to examine the constitutionality of probation conditions that restricted a minor’s gang

contacts and social media usage after he was adjudicated delinquent for committing armed

robbery. Specifically, the trial court ordered that the minor “stay away from gangs, guns, and

drugs;” “clear” references to those topics from his social media; remove “pictures” of him with

gang members from social media; and avoid “gang contact or activity.” (Internal quotation marks

omitted.) Id. ¶ 31-32. On review, we found that “attempting to limit the minor respondent’s

contact (real or virtual) with gang members was a valid condition of probation because it was

related to his rehabilitation,” particularly where he denied being in a gang but had friends who

were gang members. Id. ¶ 62. We noted, however, that neither the “no contact” provision nor the

social media restriction allowed exceptions “for people based on familial, employment, or

educational relationships,” or included any “explanation as to what type of contact (physical or

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online), no matter how innocuous, will result in a probation violation.” Id. ¶ 63. Consequently,

we held that “the probationary conditions as articulated by the trial court were overbroad and not

narrowly tailored so as to be unreasonable.” Id.

¶ 13 The State contends that Omar F. is inapposite and relies on a “flawed constitutional

analysis” because the minor in that case essentially raised an as-applied constitutional challenge

to his gang-related probation conditions and, as here, “no evidence” showed that his family

members, classmates, or coworkers belonged to a gang. We disagree, and decline to analyze the

respondent’s argument regarding his probation conditions under the framework for an as-applied

constitutional challenge where our supreme court has explained that the relevant inquiry is

whether the conditions are reasonable. See J.W., 204 Ill. 2d at 78 (“when deciding the propriety

of a condition of probation imposed in a particular case, whether explicitly statutory or not, the

overriding concern is reasonableness”); People v. Meyer, 176 Ill. 2d 372, 373, 377-78 (1997)

(analyzing the reasonableness of an adult probation condition); In re J.G., 295 Ill. App. 3d 840,

843 (1998) (examining the reasonableness of a juvenile probation condition). The State further

argues that J.W. is distinguishable because, in that case, the trial court disregarded statutory

language that required it to identify appropriate exceptions to a condition of probation that

banished a delinquent minor from his hometown. See J.W., 204 Ill. 2d at 81. The supreme court

noted, however, that the statutory language at issue “mirror[ed] the constitutional requirement

that the condition of probation be narrowly drawn.” (Emphasis added.) Id. That same

constitutional requirement for narrow tailoring and reasonableness, as articulated in J.W. and

applied in Omar F., also applies here.

¶ 14 Turning to the present case, we find, at the outset, that the gang-related restrictions on the

minor’s contacts and social media usage constitute valid conditions of probation because they

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relate to his rehabilitation. According to the social investigation report, the respondent lives in an

area with gang activity and has friends who are gang members. He denied belonging to a gang,

but his mother believed that he participated in the offense because he was “with the wrong

people,” and stated that, approximately one year after the offense, he still “needs to stay away

from negative peers.” Given this evidence, along with the trial court’s responsibility as a parens

patriae, we conclude that the court’s attempt “to limit [the respondent’s] contact (real or virtual)

with gang members was a valid condition of probation.” Omar F., 2017 IL App (1st) 171073,

¶ 62; see also In re Presley, 47 Ill. 2d 50, 56 (1970) (recognizing that “[t]he State,

as Parens patriae, clearly has an interest in safeguarding the lives of delinquent minors, as well as

preserving an orderly society”).

¶ 15 Having found a valid connection between the respondent’s probation conditions and his

rehabilitation, we next consider whether those conditions were so overbroad as to be

unreasonable. The trial court’s order, as noted, prohibited the respondent from “gang contact”

and posting “anything related to a gang” on social media. These conditions allow no exceptions

for contact or social media postings related to a legitimate purpose, such as communication with

family, classmates, or coworkers. And, although the trial court specified that the respondent

could not post about money “attained” through gang activity, it offered no guidance as to

whether and under what circumstances a social media “posting” could constitute prohibited

“contact” for purposes of a probation violation. See, e.g., Packingham v. North Carolina, 137 S.

Ct. 1730, 1735 (2017) (recognizing that “[s]ocial media offers relatively unlimited, low-cost

capacity for communication of all kinds” (internal quotation marks omitted)). Consequently, we

find that the gang-related probation conditions imposed by the trial court in this case, like the

probation conditions in Omar F., were overbroad and, therefore, erroneous. Id. ¶ 63.

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¶ 16 In reaching this conclusion, we are not unmindful that, in In re R.H., 2017 IL App (1st)

171332, ¶¶ 2-4, a panel of this court held that a probation condition that restricted a delinquent

minor from posting about “gangs, guns, or drugs on social media” was not unconstitutional. For

several reasons, we decline the State’s invitation to follow R.H. in this case.

¶ 17 First, R.H. analyzed the gang-related probation condition as a content-based restriction on

speech, and concluded that it survived strict scrutiny because it was narrowly tailored and

advanced a compelling state interest in “preventing [the minor] from further criminal acts.” Id.

¶¶ 13, 19, 25. This analysis, however, overlooks our supreme court’s directive that the

“overriding concern” in evaluating a condition of probation is whether it is reasonable. See J.W.,

204 Ill. 2d at 78. Second, although the trial court in R.H. also prohibited the minor from gang

contact, the minor did not challenge the no-contact order on appeal. Id. ¶ 43. Therefore, the R.H.

panel distinguished Omar F., where the minor challenged both a no-contact order and social

media restrictions, and our opinion analyzed the two conditions together. Id. ¶ 44. The

respondent in this case, as in Omar F., challenges probation conditions restricting both his in-

person contacts and his social media usage and, as explained supra, both conditions were

overbroad. Third, R.H. is factually distinct from the case at bar. In R.H., the evidence showed

that the respondent “was affiliated” with a gang, “used his social media accounts to taunt rival

gang members,” and “posted a number of pictures of himself displaying gang signs, posing with

guns, and smoking what appears to be cannabis.” Id. ¶ 18. Here, the respondent lived in a

neighborhood where there was a gang presence and had friends who were in a gang, but no

evidence established that he belonged to a gang or had posted gang-related material on social

media at the time of his dispositional hearing. Consequently, R.H. is inapposite and does not

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change our determination that, in accordance with J.W. and Omar F., the probation conditions

imposed in this case were overbroad and unreasonable.

¶ 18 Because we find error, we must determine whether the error rose to the level of plain

error so as to permit our review. People v. Fort, 2017 IL 118966, ¶ 18. The plain-error doctrine

is a narrow and limited exception to the general forfeiture rule allowing a reviewing court to

consider a forfeited issue that affects substantial rights. People v. Herron, 215 Ill. 2d 167, 177-79

(2005). In the sentencing context, we will review an error that is not properly preserved as plain

error where (1) the evidence is closely balanced, or (2) the error is so fundamental that it may

have deprived the respondent of a fair sentencing hearing. People v. Thomas, 178 Ill. 2d 215, 251

(1997).

¶ 19 The respondent contends that this court should review his sentencing challenge under

either the first or second prong of the plain-error doctrine. As to the first prong, he argues that

evidence of his gang involvement was closely balanced because his offense was not gang-

related, no evidence showed that his social media included gang content, and, according to the

social investigation report, he denied being in a gang and stated that only “some” of his friends

are gang members. Based on the same facts, he maintains that the trial court’s imposition of

“blanket” probation conditions was “arbitrary,” and therefore, also constituted second-prong

plain error.

¶ 20 We elect to review the probation conditions under the second prong of the plain-error

doctrine, as the gang-related restrictions imposed by the trial court, while valid, were so vague as

to affect the integrity of the respondent’s dispositional hearing. Indeed, “[t]he judicial process of

permitting social rehabilitation as a condition of probation depends on evidence of the need for

such social rehabilitation but also clear parameters in setting out how the rehabilitation is to

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proceed.” Omar F., 2017 IL App (1st) 171073, ¶ 68. As this court has recognized, the prevalence

of gangs in certain areas of Chicago renders “a blanket prohibition against contact with gangs

*** too general and overbroad to provide a juvenile with clear parameters about how to comply

with the conditions of his probation.” Id. When, as here, “the parameters are so vague,

overbroad, or general that a juvenile could be inadvertently caught violating probation in a

number of scenarios, including when conducting himself in a constitutionally protected manner,

then the judicial process is not functioning as intended” and “[t]his breakdown in the judicial

process constitutes second-prong plain error.” Id. In this case, although the respondent signed his

probation order, the trial court made no inquiry as to whether the probation conditions would

unreasonably impinge on his contact and communication with family, classmates, and

coworkers. Therefore, based on the same considerations set forth in Omar F., we find that the

trial court failed to provide a fair process for determining what gang-related restrictions on

contact and social media usage were reasonable. But see R.H., 2017 IL App (1st) 171332, ¶ 38

(finding no second-prong plain error where the respondent was not “deprived of an opportunity

to question the probation condition”).

¶ 21 In summary, we conclude that the imposition of gang-related probation conditions in this

case was valid but overbroad and, therefore, unreasonable so as to constitute plain error.

Accordingly, we excuse the respondent’s forfeiture of this issue and vacate that part of the trial

court’s order requiring him to have “no gang contact” and not post “anything related to a gang”

on social media. We remand the cause so that the trial court may consider whether such

restrictions are still warranted, and, if so, what appropriate exceptions for contacts and social

media postings related to family, school, and employment should be applied. The judgment of

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the trial court is affirmed in all other respects. Based on the foregoing, we need not reach the

respondent’s additional contention that the social media prohibition violates due process.

¶ 22 Affirmed in part; vacated in part; and remanded.

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