People v. Chiovari

2023 IL App (5th) 220383-U

• Court: Appellate Court of Illinois
• Decided: March 1, 2023
• Docket: 5-22-0383
• Status: Unpublished

Opinion

2023 IL App (5th) 220383-U NOTICE NOTICE Decision filed 03/01/23. The This order was filed under text of this decision may be NO. 5-22-0383 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Shelby County. ) v. ) No. 19-CF-145 ) CHRISTOPHER J. CHIOVARI, ) Honorable ) Martin W. Siemer, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.

ORDER

¶1 Held: We vacate the condition of defendant’s mandatory supervised release that prohibits him from using or accessing social networking websites where the statutory provision setting forth the condition is overbroad and facially unconstitutional.

¶2 Defendant, Christopher J. Chiovari, pled guilty to two counts of aggravated criminal sexual

abuse of a child (720 ILCS 5/11-1.60(c)(1)(i) (West 2018)). The circuit court of Shelby County

sentenced defendant to four years on each count to run concurrently followed by two years of

mandatory supervised release (MSR). Defendant filed a motion to withdraw guilty plea and vacate

sentence, which the court denied. Defendant appeals, arguing that the MSR condition set forth in

subsection (a)(7.12) of section 3-3-7 of the Unified Code of Corrections (Code of Corrections)

(730 ILCS 5/3-3-7(a)(7.12) (West 2018)), which prohibits persons convicted of certain sex

offenses from using or accessing social networking websites, is unconstitutional. We agree.

1 ¶3 I. Background

¶4 On November 14, 2019, the State charged defendant by information with two counts of

aggravated criminal sexual abuse of a child, a Class 2 felony (720 ILCS 5/11-1.60(g) (West 2018)),

against D.P. and I.P., respectively. In support, the State alleged that defendant, who was over the

age of 17, committed two separate acts of sexual conduct with D.P. and I.P., who were under the

age of 13.

¶5 On March 22, 2021, defendant entered an open guilty plea at a scheduled videoconference

hearing. At the hearing, the State explained that defendant agreed to plead guilty to both counts in

exchange for the State’s recommendation of a sentencing cap of four years for each count. The

State explained that the sentencing range was “probation to 3 to 7 years in prison; and both counts

would, by statute, be concurrent.” The State also explained that there was “a two-year period of

mandatory supervised release if there was a prison sentence,” and that there was a requirement of

lifetime registration as a sex offender. The circuit court also advised defendant that his sentences

for both offenses would run concurrently and would be followed by two years of MSR. Defendant

confirmed that he understood, and the State presented a factual basis for defendant’s plea.

Following admonishments, the court accepted defendant’s guilty plea.

¶6 On February 24, 2022, following several continuances, the circuit court held a sentencing

hearing. After considering the evidence presented in aggravation and mitigation, the court

sentenced defendant to four years in the Illinois Department of Corrections on each count to run

concurrently followed by two years of MSR. 1

1 Neither the circuit court nor the State advised defendant of the MSR term at the sentencing hearing, and the sentencing order makes no reference to the two-year MSR term required by law. See 730 ILCS 5/5- 8-1(d)(2) (West 2018). However, a docket entry from the sentencing hearing indicates that defendant was “sentenced to 4 yrs. DOC, credit for 3 days served, 2 yr. MSR, minimum fine plus assessments.” We note that, effective July 1, 2021, after defendant’s guilty plea but before his sentencing, the MSR term for a Class 2 ¶7 Relevant to defendant’s MSR term, section 3-3-7 of the Code of Corrections provided, in

pertinent part:

“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:

***

(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[.]” 730 ILCS 5/3-3-7(a)(7.12) (West 2018).

¶8 March 24, 2022, defendant filed a motion to withdraw guilty plea and vacate sentence.

Defendant alleged that his guilty plea was not made knowingly and voluntarily because he was

under a significant amount of personal stress at the time of the plea, he did not fully understand

the consequences of his plea or the sentence he was facing, and he believed there was doubt as to

his guilt. Following a hearing, the circuit court denied the motion. This appeal followed.

¶9 II. Analysis

¶ 10 On appeal, defendant argues that subsection (a)(7.12) of section 3-3-7 of the Code of

Corrections, which prohibits persons convicted of certain sex offenses from accessing social

networking websites, is unconstitutional. Defendant urges this court to follow the Illinois Supreme

Court’s decision in People v. Morger, 2019 IL 123643, and the Fourth District’s decision in People

v. Galley, 2021 IL App (4th) 180142, and vacate his MSR condition because it is unconstitutional.

2 felony was reduced to 12 months. See Pub. Act 101-652, §§ 10-281, 99-999 (eff. July 1, 2021); 730 ILCS 5/5-8-1(d)(2) (West Supp. 2021). 3 ¶ 11 The State does not refute defendant’s argument that the MSR condition is unconstitutional

but argues that defendant has failed to present a justiciable issue for this court to review. We begin

by addressing the State’s argument that defendant’s claim lacks justiciability.

¶ 12 A. Justiciability

¶ 13 The State maintains that this appeal lacks justiciability because the issue raised by

defendant is not ripe for review. Specifically, the State asserts that defendant has not begun to

serve his MSR term and, thus, is not currently prohibited from using or accessing social networking

websites. The State also asserts that, to the extent defendant anticipates future harm, the prisoner

review board (PRB) has already modified the MSR condition at issue and, thus, the condition is

unlikely to be enforced against defendant.

¶ 14 Whether a cause of action should be dismissed based on a lack of justiciability is a question

of law, which this court reviews de novo. Ferguson v. Patton, 2013 IL 112488, ¶ 22 (citing Morr-

Fitz, Inc. v. Blagojevich, 231 Ill. 2d 474, 488 (2008)). Our supreme court has determined that the

doctrine of justiciability requires

“ ‘a showing that the underlying facts and issues of the case are not moot or premature, so

as to require the court to pass judgment on mere abstract propositions of law, render an

advisory opinion, or give legal advice as to future events. [Citations.] The case must,

therefore, present a concrete dispute admitting of an immediate and definitive

determination of the parties’ rights, the resolution of which will aid in the termination of

the controversy or some part thereof. [Citations.]’ (Internal quotation marks omitted.)” Id.

¶ 23 (quoting National Marine, Inc. v. Illinois Environmental Protection Agency, 159 Ill.

2d 381, 390 (1994)).

4 ¶ 15 Here, defendant pled guilty to two counts of aggravated criminal sexual abuse of a child.

When defendant committed the offense of aggravated criminal sexual abuse of a child, a Class 2

felony (720 ILCS 5/11-1.60(g) (West 2018)), section 5-8-1(d)(2) of the Code of Corrections (730

ILCS 5/5-8-1(d)(2) (West 2018)) required a two-year term of MSR. Our supreme court has

recognized that “MSR terms are statutorily required and that ‘the State has no right to offer the

withholding of such a period as a part of the plea negotiations and *** the court has no power to

withhold such period in imposing sentence.’ ” People v. Whitfield, 217 Ill. 2d 177, 200-01 (2005)

(quoting People v. Brown, 296 Ill. App. 3d 1041, 1043 (1998)). In other words, “the MSR term is

not a negotiated release or a privilege but, rather, a mandatory part of defendant’s sentence.”

People v. Hunter, 2011 IL App (1st) 093023, ¶ 23; see also People v. McChriston, 2014 IL 115310,

¶ 23 (concluding that the plain language of section 5-8-1(d) of the Code of Corrections “was

unambiguous and provided that the MSR term be automatically included as part of defendant’s

sentence”).

¶ 16 As a condition of his statutorily required MSR term, defendant is subject to the provision

set forth in subsection (a)(7.12) of section 3-3-7 of the Code of Corrections prohibiting him from

using or accessing social networking websites. Section 3-3-7 of the Code of Corrections provides

the PRB discretion in imposing conditions of probation and MSR but lists various “conditions of

every parole and mandatory supervised release” (emphasis added) (730 ILCS 5/3-3-7(a) (West

2018)), including the condition set forth in subsection (a)(7.12) that applies to persons, such as

defendant, who are convicted of certain sex offenses. Accordingly, the application of the condition

is mandatory and is not an “abstract” possibility simply because defendant is not yet serving his

MSR term.

5 ¶ 17 Moreover, as the State correctly notes, defendant’s two-year MSR term is set to begin in

one year. Illinois courts have considered similar MSR conditions on direct appeal years before the

defendants served their MSR terms. See, e.g., People v. Rinehart, 2012 IL 111719 (considering

the propriety of an indeterminate MSR term for certain sex offenses 5 years into the defendant’s

28-year sentence); McChriston, 2014 IL 115310, ¶¶ 1, 23 (considering challenge to MSR term

approximately 10 years into the defendant’s 25-year sentence); Galley, 2021 IL App (4th) 180142

(considering the constitutionality of the MSR condition prohibiting the defendant from accessing

social networking websites when the defendant had 25 years left on his prison sentence). Thus, we

reject the State’s argument that defendant’s claim is not ripe for review because he is not yet

serving his MSR term.

¶ 18 We also reject the State’s argument that defendant’s claim is not justiciable because he is

“unlikely” to ever be subject to the MSR provision he challenges. The State notes that the PRB

has modified its own MSR and parole condition definitions in light of our supreme court’s decision

in Morger, 2019 IL 123643. While we agree the PRB could choose not to impose the MSR

condition in the present case, we note that section 3-3-7(a)(7.12), as currently written, prohibits

defendant from accessing or using social networking websites. As defendant correctly notes, the

PRB has wide discretion in setting the conditions of MSR and could revert back to an

unconstitutional interpretation of the MSR condition at any time absent action from the legislature

or a decision from this court.

¶ 19 We acknowledge that the State’s arguments mirror the dissent in the Fourth District’s

decision in Galley (2021 IL App (4th) 180142, ¶¶ 32-38 (Turner, J., dissenting)). We also

acknowledge that the Second District, similar to the dissent in Galley, concluded that the defendant

did not present a justiciable challenge to the MSR condition prohibiting access or use of social

6 networking websites under similar circumstances in People v. Kreger, 2023 IL App (2d) 220034-

U. However, we do not find the reasoning of the Galley dissent or Kreger persuasive.

¶ 20 Therefore, we reject the State’s contention that defendant’s appeal is neither justiciable nor

ripe. Accordingly, we will consider defendant’s argument that subsection (a)(7.12) of section 3-3-

7 of the Code of Corrections, which prohibits persons convicted of certain sex offenses from using

or accessing social networking websites, is unconstitutional.

¶ 21 B. Constitutionality of Section 3-3-7(a)(7.12)

¶ 22 Defendant, relying on the Illinois Supreme Court’s decision in Morger, 2019 IL 123643,

and the Fourth District’s decision in Galley, 2021 IL App (4th) 180142, argues that the MSR

condition which prohibits persons convicted of sex offenses from using or accessing social

networking websites violates the first amendment. As noted, the State does not refute defendant’s

argument in this regard.

¶ 23 A challenge to the constitutionality of a statute presents a legal question this court reviews

de novo. People v. Minnis, 2016 IL 119563, ¶ 21. However, as defendant correctly notes, the

Illinois Supreme Court considered the constitutionality of a similar statutory provision in Morger,

2019 IL 123643, and the Fourth District considered the constitutionality of the same statutory

provision at issue in the present case in Galley, 2021 IL App (4th) 180142. We agree that Morger

and Galley direct the outcome of the instant case.

¶ 24 In Morger, 2019 IL 123643, our supreme court considered whether the statutory probation

condition set forth in subsection (a)(8.9) of section 5-6-3 of the Code of Corrections (730 ILCS

5/5-6-3(a)(8.9) (West 2016)), which prohibited a person convicted of a sex offense from accessing

or using a social networking website, was constitutional. The court, despite noting the statute

served a substantial governmental interest, found the probation condition “overbroad and facially

7 unconstitutional” because it prohibited “ ‘constitutionally protected activity as well as activity that

may be prohibited without offending constitutional rights.’ ” Morger, 2019 IL 123643, ¶¶ 45-58

(quoting People v. Relerford, 2017 IL 121094, ¶ 50). Thus, the court found the probationary

condition “unconstitutionally overbroad” and vacated “the probationary condition banning access

to, or use of, social media.” Id. ¶ 59.

¶ 25 In Galley, 2021 IL App (4th) 180142, the Fourth District considered whether the MSR

condition set forth in section 3-3-7(a)(7.12) of the Code of Corrections (730 ILCS 5/3-3-7(a)(7.12)

(West 2016)), which prohibited persons convicted of certain sex offenses from accessing social

networking websites, was constitutional. The Fourth District, relying on Morger, 2019 IL 123643,

found that the MSR condition, similar to the probation condition considered in Morger, was

overbroad and facially unconstitutional. Galley, 2021 IL App (4th) 180142, ¶ 27. As a result, the

Fourth District vacated the condition of the defendant’s MSR. Id. ¶ 30.

¶ 26 We agree with the Fourth District’s decision in Galley, which followed the reasoning of

the Illinois Supreme Court’s decision in Morger. We note, as did our supreme court in Morger,

that there is nothing in the record to show defendant used social networking websites to seek out

victims. Also, as in Morger and Galley, we find that by imposing a blanket ban on the use and

access of social media websites, the challenged MSR 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.’ ” Galley, 2021 IL App (4th) 180142, ¶ 28 (quoting

Morger, 2019 IL 123643, ¶ 58). Thus, in accordance with Morger and Galley, we find the MSR

condition set forth in subsection (a)(7.12) of section 3-3-7 of the Code of Corrections overbroad

and facially unconstitutional.

8 ¶ 27 III. Conclusion

¶ 28 For the reasons stated, we vacate the condition prohibiting defendant from using or

accessing social networking websites while on MSR but affirm his sentence in all other respects.

¶ 29 Affirmed in part and vacated in part.