People v. Pepitone

• Decision Date: 10 February 2017
• Docket Number: Appeal No. 3-14-0627
• Citation: 2017 IL App (3d) 140627,75 N.E.3d 297
• Parties: The People of the STATE of Illinois, Plaintiff-Appellee, v. Marc A. PEPITONE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 140627

75 N.E.3d 297

The People of the STATE of Illinois, Plaintiff-Appellee,

v.Marc A. PEPITONE, Defendant-Appellant.

Appeal No. 3-14-0627

Appellate Court of Illinois, Third District.

Opinion filed February 10, 2017

Michael J. Pelletier and Katherine M. Strohl (argued), of State Appellate Defender's Office, of Ottawa, for appellant.

James Glasgow, State's Attorney, of Joliet (Mark A. Austill (argued), of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 The defendant, Marc A. Pepitone, was convicted of being a child sex offender in a public park (720 ILCS 5/11–9.4–1(b) (West 2012)) and was sentenced to 24 months of conditional discharge, 100 hours of public service, and $400 in fines and costs. On appeal, Pepitone argues that (1) section 11-9.4-1(b) is unconstitutional on its face because it bears no reasonable relationship to protecting the public and (2) section 11-9.4-1(b) violates the ex post facto clause because his prior conviction occurred before section 11-9.4-1(b) took effect. We hold that section 11-9.4-1(b) is facially unconstitutional and therefore reverse the circuit court's judgment.

¶ 2 FACTS

¶ 3 On March 8, 2013, Bolingbrook police officer Steven Alexander was on patrol in Indian Boundary Park, which was maintained by the Bolingbrook Park District. Alexander noticed a green van parked across three parking spots, so he ran the registration on the vehicle. Alexander learned that the vehicle was registered to Pepitone, who had previously been convicted of a child sex offense. While Alexander was looking in the vehicle to determine if the defendant was inside, Pepitone returned with the dog he had been walking and asked the officer if something was wrong with the vehicle. Alexander told Pepitone that he was forbidden to be on park property. Pepitone stated that he was unaware of that ban. Alexander ultimately arrested Pepitone for the criminal offense of being a sex offender in a public park (720 ILCS 5/11–9.41(b) (West 2012)). A first violation of the statute is a Class A misdemeanor; a second or subsequent violation is a Class 4 felony (720 ILCS 5/11–9.4–1(d) (West 2012)).

¶ 4 Pepitone was charged and filed a motion to dismiss alleging the statute was unconstitutional. The motion was denied.

¶ 5 At the jury trial on April 30, 2014, in addition to Alexander's testimony, the State introduced a certified copy of Pepitone's 1999 conviction for predatory criminal sexual assault of a child, for which he had been sentenced to six years of imprisonment. The jury found him guilty of being in the park, and he was sentenced to 24 months of conditional discharge, required to perform 100 hours of community service, and ordered to pay specified fines.

¶ 6 Pepitone moved for a new trial and reconsideration of the community service portion of his sentence. The circuit court denied the motion for a new trial and granted the motion to reconsider sentence. The defendant then appealed.

¶ 7 ANALYSIS

¶ 8 Pepitone's first argument on appeal is that section 11-9.4-1(b) is unconstitutional on its face because it bears no reasonable relationship to protecting the public. He has not alleged that a fundamental liberty interest is affected, and he seeks rational basis review. He states:

"the specific issue this Court must address under this argument is whether an all-out banishment, of all child sex offenders, from all public parks, including forest preserves and all conservation areas, at all times, regardless of the presence or even likely presence of persons under the age of 18, or of any person whatsoever, and for all remaining years of a child sex offender's life, is a reasonable means of achieving the legislature's stated goal of ‘protect[ing] users of public parks from child sex offenders and sexual predators.’ "

His claim is that section 11-9.4-1(b) sweeps too broadly and must, therefore, be struck down.

¶ 9 Pepitone alleges a violation of substantive due process. Our supreme court has stated:

"When confronted with a claim that a statute violates the due process guarantees of the United States and Illinois Constitutions, courts must first determine the nature of the right purportedly infringed upon by the statute. [Citation.] Where the statute does not affect a fundamental constitutional right, the test for determining whether the statute complies with substantive due process is the rational basis test. [Citation.] To satisfy this test, a statute need only bear a rational relationship to the purpose the legislature sought to accomplish in enacting the statute. [Citation.] Pursuant to this test, a statute will be upheld if it ‘bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.’ [Citation.]" In re J.W. , 204 Ill.2d 50, 66–67, 272 Ill.Dec. 561, 787 N.E.2d 747 (2003).

¶ 10 Section 11-9.4-1(b) of the Criminal Code of 2012 provides that "[i]t is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park." 720 ILCS 5/11–9.4–1(b) (West 2012). "Public park" is defined as including "a park, forest preserve, bikeway, trail, or conservation area under the jurisdiction of the State or a unit of local government." 720 ILCS 5/11–9.4–1(a) (West 2012). "Sexual predator" includes individuals who have been convicted of certain sex offenses, including predatory criminal sexual assault of a child (720 ILCS 5/11–9.4–1(a) (West 2012); 730 ILCS 150/2(E) (West 2012)), which is Pepitone's prior conviction.

¶ 11 It is clear that section 11-9.4-1(b) is meant to protect the public—especially children—from sexual predators and child sex offenders,¹ and the defendant does not dispute the existence of a legitimate government interest in this statute. The question we must answer is whether the legislature's total ban of persons previously convicted of a sex offense against a minor from all public park buildings and all public parks, as defined in the statute, at all times, without limitation, is a reasonable method of protecting the public.

¶ 12 The constitutionality of section 11-9.4-1(b) has been addressed twice before by other districts of the appellate court.² In People v. Avila–Briones , 2015 IL App (1st) 132221, 401 Ill.Dec. 40, 49 N.E.3d 428, the First District considered, in relevant part, a defendant's more encompassing substantive due process constitutional challenge to the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2012)), the Sex Offender Community Notification Law (730 ILCS 152/101 et seq . (West 2012)), and several other statutes applicable to sex offenders, which included section 11-9.4-1(b). Avila–Briones , 2015 IL App (1st) 132221, ¶¶ 1, 22, 401 Ill.Dec. 40, 49 N.E.3d 428. The majority of the substantive due process analysis in Avila–Briones concerned whether fundamental rights were involved (id. ¶¶ 71–80 ) and only included the following statement with regard to whether statutes like section 11-9.4-1(b) were rationally related to a legitimate state interest: "by keeping sex offenders who have committed offenses against children away from areas where children are present (e.g. , school property and parks) * * * the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend" (id. ¶ 84 ).

¶ 13 In People v. Pollard , 2016 IL App (5th) 130514, 403 Ill.Dec. 574, 54 N.E.3d 234, the Fifth District considered the same substantive due process constitutional challenge reviewed by the Avila–Briones court. Id. ¶¶ 1, 19. When deciding whether statutes like section 11-9.4-1(b) were rationally related to a legitimate state interest, the Pollard court simply adopted the above-quoted rationale from Avila–Briones . Id. ¶ 42.

¶ 14 We are not persuaded by the rationale used in Avila–Briones and Pollard , which we perceive to be incomplete and truncated analyses of the issue. While we acknowledge that under the rational basis test, "[a] statute need not be the best means of accomplishing the stated objective" and "[i]f there is any conceivable set of facts that show a rational basis for the statute, the statute will be upheld" (In re M.A. , 2015 IL 118049, ¶ 55, 397 Ill.Dec. 759, 43 N.E.3d 86 ), we also recognize that "[a]lthough this standard of review is quite deferential, it is not ‘toothless' " (People v. Jones , 223 Ill.2d 569, 596, 308 Ill.Dec. 402, 861 N.E.2d 967 (2006) ). As our supreme court stated in M.A. , to pass constitutional muster under rational basis review, a statute must not be arbitrary or unreasonable. M.A. , 2015 IL 118049, ¶ 55, 397 Ill.Dec. 759, 43 N.E.3d 86.

¶ 15 Of particular significance in the disposition of this case is a line of cases from our supreme court in which statutes were stuck down on substantive due process grounds because they were found to sweep too broadly in that they criminalized innocent conduct. In People v. Wick , 107 Ill.2d 62, 89 Ill.Dec. 833, 481 N.E.2d 676 (1985), an aggravated arson statute that did not require an unlawful purpose in setting a fire was invalidated by the supreme court. Id. at 66, 89 Ill.Dec. 833, 481 N.E.2d 676. The Wick court held that the statute swept too broadly because it criminalized innocent conduct; under the statute, a farmer could be prosecuted for demolishing a deteriorated barn by fire if a firefighter was standing nearby and was injured by the fire. Id.

¶ 16 In People v. Zaremba , 158 Ill.2d 36, 196 Ill.Dec. 632, 630 N.E.2d 797 (1994), the supreme court struck down a theft provision that criminalized obtaining or controlling property in law enforcement custody when law enforcement represents that the property was stolen. Id. at 39–40, 196 Ill.Dec. 632, 630 N.E.2d 797. The Zaremba court held that the provision did not require a culpable mental state and therefore criminalized innocent conduct (id . at 42, 196...