People v. Grochocki

796 N.E.2d 153, 343 Ill. App. 3d 664, 277 Ill. Dec. 438, 2003 Ill. App. LEXIS 1237

• Court: Appellate Court of Illinois
• Decided: August 26, 2003
• Docket: 3-02-0196
• Status: Published

Opinions

JUSTICE HOLDRIDGE

delivered the opinion of the court:

David Grochocki was found guilty of sexual exploitation of a child (720 ILCS 5/11 — 9.1(a)(1) (West 2000)) and sentenced to 12 months of conditional discharge. He was also required to register under the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 2000)). He filed a motion to reconsider his sentence, which was denied. He also filed a motion to declare recent amendments to the Sex Offender and Child Murderer Community Notification Law (Notification Law) (730 ILCS 152/101 et seq. (West 2000)) unconstitutional. That motion was denied as well.

Grochocki then filed this appeal claiming: (1) the recent amendments violate his right to privacy under the Illinois Constitution; (2) the amendments violate the proportionate penalties clause of the Illinois Constitution; (3) the amendments violate his due process rights under the Illinois Constitution; and (4) his sentence of conditional discharge is excessive. We disagree with these claims and thus affirm the circuit court’s judgment.

BACKGROUND

The Registration Act requires sex offenders to register with certain specified government officials. 730 ILCS 150/3 (West 2000). Prior to July 1, 2000, the Notification Law required officials to disclose a sex-offender’s registration information to school boards, school principals, and child care facilities in the county where the offender resided. 730 ILCS 152/120(a) (West 1998). The information included the offender’s “name, address, date of birth, and offense or adjudication.” 730 ILCS 152/120(a) (West 1998). Officials could also disclose the information to any person likely to encounter the offender (730 ILCS 152/120(b) (West 1998)), and the information was available for public inspection at municipal police departments and county sheriff s offices (730 ILCS 152/120(c) (West 1998)).

On July 1, 2000, two amendments expanded the scope of disclosure under the Notification Law. The following language was added to section 115 of the law:

“The Department of State Police must make the information contained in the Statewide Sex Offender Database accessible on the Internet by means of a hyperlink labeled Sex Offender Information on the Department’s World Wide Web home page. The Department of State Police must update that information as it deems necessary.

The Department of State Police may require that a person who seeks access to the sex-offender information submit biographical information about himself or herself before permitting access to the sex offender information. *** The Department of State Police may limit access to the sex offender information to information about sex offenders who reside within a specified geographic area in proximity to the address of the person seeking that information. The Department of State Police must promulgate rules in accordance with the Illinois Administrative Procedure Act to implement this subsection (b) and those rules must include procedures to ensure that the information in the database is accurate.” 730 ILCS 152/115(b) (West 2002).

The following language was added to section 120 of the law:

“The sheriff or a municipal police department may publish the photographs of sex offenders where any victim was 13 years of age or younger and who are required to register in the municipality or county under the Sex Offender Registration Act in a newspaper or magazine of general circulation in the municipality or county or may disseminate the photographs of those sex offenders on the Internet or on television.” 730 ILCS 152/120(c) (West 2002).

In October of 2000 Grochocki and James Manski took their children to spend the night at a motel. Grochocki took two daughters and a son, and Manski took a 13-year-old daughter (Terri) and a son. The two men drank alcohol while the children played until about midnight. Then Grochocki retired to one room with the girls, and Manski retired to another room with the boys. Terri testified that she awoke around 3 a.m. and found Grochocki sitting in a chair, naked from the waist down, masturbating with his feet on her bed. He said: “Oh Terri, it feels so good — I’ve always wanted you.” Terry left the room and later told her parents about the incident.

Grochocki acknowledged sitting in a chair next to Terri’s bed and reading a book while smoking a cigarette. However, he said he drank a lot of alcohol that night and did not remember the incident. He denied any knowledge of masturbation.

At the sentencing hearing, Jeffery Martin (a licensed clinical social worker) testified that Grochocki posed a low risk of recidivism. Martin based his opinion on several factors, including: no history of paraphiliac interest; no signs of compulsiveness related to sexual behaviors; a single victim; and the hands-off nature of the offense. Martin assessed Grochocki’s prognosis as favorable given his responsiveness to treatment, a solid history of community involvement, and no other history of acting out.

Pursuant to the Notification Law, Grochocki’s photograph was published on the Internet along with biographical information including his full name, date of birth, height, weight, and address.

CONSTITUTIONAL CLAIMS

Standard of Review

We conduct a de novo review of decisions regarding the constitutionality of statutes. People v. Fisher, 184 Ill. 2d 441 (1998).

Right to Privacy

Grochocki argues that the amendments permit his registration information to be “disseminated broadly and without any restriction.” Such unbridled scope, he claims, violates his state constitutional right to privacy. In his view, the dissemination should be more “carefully tailored to the risk of re-offense and to specific individuals or groups likely to come into contact with [him].”

Article I, section 6, of the Illinois Constitution reads: “The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable *** invasions of privacy.” Ill. Const. 1970, art. I, § 6. According to this language, invasions of privacy are not prohibited if they are reasonable. See Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 52 (2001) (Noting that “the right to privacy is not absolute. Only unreasonable invasions of privacy are constitutionally forbidden”). Statutes carry a presumption of constitutionality, and a challenger bears the burden of clearly proving that a statute is invalid. People v. Inghram, 118 Ill. 2d 140 (1987). “[I]t is our duty to construe acts of the legislature so as to uphold their constitutionality and validity if it can reasonably be done, and *** if their construction is doubtful, the doubt will be resolved in favor of the validity of the law attacked.” Illinois Crime Investigating Comm’n v. Buccieri, 36 Ill. 2d 556, 561 (1967).

Criminal proceedings are open to the public. This fact was well-established even before the founding of our nation. In a 1774 letter to the inhabitants of the Province of Quebec, the Continental Congress observed:

“[N]either life, liberty nor property, can be taken from the possessor, until twelve of his unexceptionable countrymen and peers of his vicinage, *** upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to attend, shall pass their sentence upon oath against him ***.” (Emphasis added.) 1 Journals of the Continental Congress, 1774-1789, at 107 (1904).

The United States Supreme Court later declared: “A trial is a public event. What transpires in the courtroom is public property. *** Those who see and hear what transpired can report it with impunity.” (Emphasis added.) Craig v. Harney, 331 U.S. 367, 374, 91 L. Ed. 1546, 1551, 67 S. Ct. 1249, 1254 (1947). Cf. In re Oliver, 333 U.S. 257, 92 L. Ed. 682, 68 S. Ct. 499 (1948) (noting the Court’s inability to find even one historical instance where a federal, state, or municipal court conducted a criminal trial in camera).

The openness of criminal proceedings is not limited to persons who physically attend them; any person can review a court’s file from a particular case after the adjudication is concluded. This fact is reflected in section 16 of the Clerks of Courts Act:

“All records, dockets and books required by law to be kept by [circuit court] clerks shall be deemed public records, and shall at all times be open to inspection without fee or reward, and all persons shall have free access for inspection and examination to such records, docket and books, and also to all papers on file in the different clerks’ offices and shall have the right to take memoranda and abstracts thereto.” 705 ILCS 105/16(6) (West 2000).

This provision encompasses a circuit court’s judgment docket — an instrument “intended to afford full and complete information to all the world.” Day v. Graham, 6 Ill. 435, 440-41 (1844).

Personal information about Grochocki (including the nature of his offense) is obviously contained in the circuit court’s file from his prosecution. Accordingly, that information is available to anyone in the world. The Emir of Kuwait could review Grochocki’s file because it is public property. Such access exists regardless of whether seekers might come in contact with Grochocki and regardless of whether he poses a low risk of recidivism. Under these circumstances, we conclude that Grochocki does not have a cognizable privacy interest in his registration information. Before the recent amendments to the Notification Law, the Appellate Court, Second District, observed: “The defendant cannot argue that the compilation and dissemination of truthful information that is already, albeit less conveniently, a matter of public record constitutes a legitimate privacy interest.” People v. Logan, 302 Ill. App. 3d 319, 334 (1998). This observation remains true.

The instant case is quite distinguishable from other cases where claimants successfully invoked their state constitutional right to privacy. For example, Kunkel v. Walton, 179 Ill. 2d 519 (1997), involved a statute providing that persons who filed claims for injury or disease automatically waived their privilege of confidentiality with their health care providers. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381 (1992), involved efforts by a grand jury to subpoena physical evidence from a witness without a showing of individualized suspicion. In these cases, there was no showing that the claimants engaged in conduct that lowered the privacy bar. Grochocki, however, did engage in such conduct. His acts spawned a criminal prosecution culminating in a public record that contains the challenged information. We simply disagree with the dissent’s assertion that wide dissemination of public information somehow invokes a privacy interest. The key concepts (“public” and “private”) are clearly dissimilar.

Proportionate Penalty

Grochocki also claims the recent amendments violate the proportionate penalties clause of the Illinois Constitution. The clause reads: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. According to Grochocki, wide dissemination of his sex offender status “constituted] punishment far in excess of the act for which [he] was convicted.”

Contrary to Grochocki’s claim, the proportionate penalties clause is inapplicable because dissemination of his sex-offender status is not “punishment” or a “penalty.” The punishment for his crime was 12 months of conditional discharge. The procedure outlined in the Notification Law is not additional punishment; it is an effort to protect the public (especially children). The Illinois Supreme Court reached this conclusion prior to the recent amendments. See People v. Malchow, 193 Ill. 2d 413 (2000). The broader dissemination prescribed in the amendments does not change the result — the current notification procedure simply is not a penalty.

The standard for making this determination is twofold. First, we must examine the legislative intent behind the Notification Law to assure that a penalty was not intended. Malchow, 193 Ill. 2d 413. Second, even if the legislative intent was not punitive, we must determine whether the law has a punitive effect despite its nonpunitive purpose. The following factors are relevant when applying this second prong: (1) whether the “sanction” involves an affirmative disability or restraint; (2) whether the sanction has been historically regarded as punishment; (3) whether the sanction comes into play only on a finding of scienter; (4) whether operation of the sanction will promote retribution and deterrence; (5) whether the behavior to which the sanction applies is already a crime; (6) whether an alternative purpose to which the sanction may rationally be connected is assignable for it; and (7) whether the sanction appears excessive in relation to the alternative purpose assigned. Malchow, 193 Ill. 2d 413.

Regarding the first prong, the Notification Law creates a system where sex-offender information is logged in an accessible manner. The intended purpose of this system is to inform and protect persons who may otherwise unwittingly come in contact with such offenders. In People v. Adams, 144 Ill. 2d 381 (1991), the Illinois Supreme Court held that the legislative intent behind the Registration Act was to create added protection for children against sexual assault and child abuse. In Malchow the court reached a similar holding regarding the Notification Law. We see no reason to depart from these holdings in the instant case. Although the recent amendments expand the accessibility of sex-offender information, the law’s underlying purpose is unchanged.

Regarding the second prong, the United States Supreme Court recently held that an Alaska statute authorizing publication of sex-offender information on the Internet did not have a punitive effect. Smith v. Doe, 538 U.S. 84, 155 L. Ed. 2d 164, 123 S. Ct. 1140 (2003). Since Smith involved the United States Constitution, it does not control our determination of Grochocki’s state constitutional claim. Nevertheless, we believe the Supreme Court’s reasoning is correct. Our analysis of the seven relevant factors is as follows.

(1) The Notification Law clearly does not place an affirmative disability or restraint on sex offenders. The law is informative rather than restrictive; it does not curtail an offender’s freedom to act.

(2) Publishing sex-offender information on the Internet is not comparable to branding, pillory, banishment, or similar measures historically regarded as punishment. Such measures either spotlighted an offender to garner face-to-face ridicule or completely ostracized him from the community. By contrast, the Notification Law merely disseminates truthful, public information to advance a legitimate government interest. “An individual seeking the information must take the initial step of going to the [Department of State Police] Web site, proceed to the sex offender registry, and then look up the desired information. The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality” Smith, 538 U.S. at 99, 155 L. Ed. 2d at 181, 123 S. Ct. at 1151.

(3) The Notification Law clearly does not have a scienter requirement. The Illinois Supreme Court signaled this fact in Malchow, 193 Ill. 2d at 422: “The only requirement for the notification provisions to become effective is that the offender is released into the community.” The law’s recent amendments did not change this decisive fact.

(4) Publication of sex-offender information may lead to retribution, but the value of this fact is questionable because such information is open to the public regardless of the Notification Law. The clearest cause of any retribution is the fact that criminal files are public property in the first place — not the fact that information from such files is placed on the Internet. As noted above, using the Internet to locate the information resembles a personal visit to a criminal archive.

Publication of sex-offender information may also have some deterrent effect. However, “it is unlikely that those not already deterred from committing sex offenses by the additional possibility of a lengthy prison term will be deterred by the additional possibility of community notification. Moreover, even an obvious deterrent purpose does not necessarily make a law punitive.” Malchow, 193 Ill. 2d at 423. Given the dubious nature of any deterrent effect from the Notification Law, such effect hardly negates the legislature’s intent to establish a non-punitive system.

(5) The Notification Law applies only to sex offenders and child murderers. Since sex offenses and murder are criminal acts, the behavior to which the law applies is already a crime. This factor, unlike any of the others, clearly weighs in Grochocki’s favor.

(6) As noted above, a purpose other than punishment can rationally be associated with the Notification Law. The purpose of the law is to protect the public (especially children).

(7) The Notification Law is not excessive in relation to its purpose of protecting the public from sex offenders. Grochocki complains that the law authorizes vast dissemination of sex-offender information without considering an offender’s likelihood of recidivism. What he fails to recognize, however, is how little the law really changed the status quo. Even without the law, his criminal information would be open to the world regardless of his recidivist potential. The only real change stemming from , the law is the procedure for conducting a search (use of an electronic archive). The legislature has decided to eliminate a trip to the courthouse — and the process of garnering desired information from a court file — for persons who desire sex-offender information. Since such persons are entitled to the information anyway (regardless of their motives), we cannot say that the electronic archive negates the legislature’s nonpunitive intent.

Only one of the seven factors clearly weighs in Grochocki’s favor. Any weight he gets from other factors is truly questionable. Accordingly, the proportionate penalties clause is inapplicable because the recent amendments to the Notification Law do not impose a penalty.

Due Process

Article I, section 2, of the Illinois Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” Ill. Const. 1970, art. I, § 2. Grochocki claims the recent amendments violate this provision because “[h]is inclusion in the registry implies that he is currently dangerous and poses a risk to reoffend [without giving him] an opportunity to prove otherwise.”

The Notification Law clearly does not deprive Grochocki of his life. Thus, to trigger the due process clause, he must show that the law deprives him of a protected liberty or property interest. Logan, 302 Ill. App. 3d 319. He has failed in this regard. Under the federal due process clause, damage to a person’s reputation does not constitute a deprivation of liberty or property. See Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976). In the context of the Notification Law, we see no reason to find otherwise under our state due process clause. The primary reason for this view has been repeatedly articulated by Illinois courts: any stigma suffered by a sex offender stems from his own criminal acts, not from truthful and accurate compilation of public information. See, e.g., Malchow, 193 Ill. 2d 413; Adams, 144 Ill. 2d 381; Logan, 302 Ill. App. 3d 319; People v. Fuller, 324 Ill. App. 3d 728 (2001).

The instant facts do not entail an interest that invokes the due process clause.

SENTENCING CLAIM

Finally, Grochocki claims we should reverse his sentence because “[a] sentence of supervision [rather than conditional discharge] would have been more appropriate in light of the circumstances.”

The prerogative of fashioning an appropriate sentence is within a trial judge’s discretion. People v. Thomas, 171 Ill. 2d 207 (1996). Accordingly, we will not reverse a sentence unless it constitutes an abuse of discretion. People v. Franks, 292 Ill. App. 3d 776 (1997). We also will not reweigh sentencing factors or substitute our judgment for that of the trial court. People v. Hunzicker, 308 Ill. App. 3d 961 (1999). When a sentence falls within the statutory range, it does not constitute an abuse of discretion unless it is manifestly disproportionate to the nature of the offense. Franks, 292 Ill. App. 3d 776.

Grochocki’s sentence of 12 months of conditional discharge falls well within the statutory range. Under the applicable statutes, the judge could have sentenced him to prison for any period less than a year. 720 ILCS 5/11 — 9.1(a)(1) (West 2000); 730 ILCS 5/5 — 8—3(a)(1) (West 2000). We appreciate the mitigating factors Grochocki highlights in his brief. However, rather than signaling an abuse of discretion, those factors ostensibly explain why the judge spared Grochocki from imprisonment. A term of conditional discharge reasonably accounts for the mitigating factors while also avoiding deprecation of the seriousness of the offense. The judge did not commit reversible error.

CONCLUSION

For the foregoing reasons, the judgment of the Will County circuit court is affirmed.

Affirmed.

SLATER, J., concurs.