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In re J.W.

February 21, 2003

IN RE J.W., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
J.W., APPELLANT).



The opinion of the court was delivered by: Justice Thomas

Docket No. 92116-Agenda 7-May 2002.

Respondent, J.W., a 12-year-old boy, was adjudicated delinquent following his admission to two counts of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 1998)), and was sentenced to a term of five years' probation. Among the conditions of his probation, J.W. was ordered to register as a sex offender. In addition, J.W. was prohibited from residing in or going to the Village of South Elgin, Illinois, the community where J.W. lived and where the aggravated criminal sexual assaults took place.

J.W. appealed two of the conditions of his probation contending that: (1) requiring a 12-year-old child to register as a sex offender is unconstitutional; and (2) prohibiting J.W. from residing in or visiting South Elgin as a condition of probation is overly broad and void. The appellate court affirmed the trial court's order. Nos. 2-00-0360, 2-00-0432 cons. (unpublished order under Supreme Court Rule 23). This court granted J.W.'s petition for leave to appeal (177 Ill. 2d R. 315). We also granted the motion of the Bluhm Legal Clinic of Northwestern University Law School and the Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School for leave to file a brief as amicus curiae.

BACKGROUND

The State filed its petition for adjudication on November 10, 1999, alleging that J.W. had committed aggravated criminal sexual assaults against two seven-year-old boys, R.We. and J.P. On February 14, 2000, J.W. pled guilty to two counts of aggravated criminal sexual assault in exchange for the State's agreement to withdraw two other counts of aggravated criminal sexual assault. There was no agreement among the parties as to sentencing. Consequently, a sentencing hearing was held in February 2000.

At J.W.'s sentencing hearing, Dr. Kevin Breen, a psychiatrist, testified that he met with J.W. and his parents one time in December 1999, for approximately one hour, to determine whether J.W. was a danger to anyone else. Dr. Breen's report of this examination was entered into evidence. The report indicated that J.W. had admitted to five episodes where he convinced R.We. and J.P. to have oral-genital contact with one another and with him. J.W. denied that the boys were physically coerced, but admitted he used verbal coercion. J.W.'s parents revealed to Dr. Breen that J.W. also had exposed himself on one occasion to a five- year-old boy. J.W. denied having been physically, sexually or emotionally abused, but admitted that he had seen his father's sexually explicit magazines.

Dr. Breen concluded in his report that J.W. was minimizing his sexual encounters with young boys, noting that J.W. had not mentioned the incident with the five-year-old boy. According to the report, Dr. Breen's diagnosis of J.W. was paraphilia, not otherwise specified. Paraphilia is where a person engages in sexual activity or sexual acts that are not sanctioned by society. The diagnosis would have been pedophilia with a sexual attraction to males, except that J.W. was not 16 years old, as required by the standard criteria.

Dr. Breen testified at J.W.'s sentencing hearing that he was not aware of any incidents of anal sex or anal penetration between J.W. and his victims, nor was he aware of allegations that J.W. had introduced a dog into his sexual acts. Dr. Breen's recommendations for the treatment of J.W. included medication, cognitive behavioral therapy, and residential treatment. Dr. Breen recommended residential treatment given the frequency of relapse among individuals with sexual disorders. Dr. Breen testified that, given the frequency of relapse, J.W. would present a risk to the community if he was not placed in residential treatment.

David Berg, an investigator with the Child Advocacy Center of the Kane County State's Attorney's office, testified at the sentencing hearing that he investigated the case concerning J.W. Berg became involved in the case after the family of R.We. made a police report alleging that J.W. had put his mouth on R.We.'s penis and had R.We. put his mouth on J.W.'s penis. These incidents took place under the deck of a neighbor's house and in J.W.'s home. R.We. said the sexual contact occurred between 5 and 10 times. R.We. did not tell anyone about the incidents because he feared retribution from J.W.

Berg also interviewed the other victim, J.P. J.P. lived next door to J.W. J.P. told Berg that J.W. had put his mouth on J.P.'s penis and that J.W. had put his penis in J.P.'s mouth. J.W. also touched the penises of both victims.

In addition to the two victims, a five-year-old boy saw J.W. expose himself, and R.We.'s six-year-old sister witnessed an incident of oral sex between J.W. and R.We.

Berg initially spoke with J.P.'s stepmother on November 5, 1999. In a follow-up conversation several days later, J.P.'s stepmother told Berg that J.P. had forgotten to tell him something, and indicated that J.W. had placed his penis in J.P.'s anus. Subsequently, both J.P. and R.We. told Berg there were several occasions where J.W. placed his penis in their anuses. J.P. told Berg that he did not tell anyone about these incidents because J.W. told him not to tell.

Berg testified that approximately one week prior to the sentencing hearing, he again met with R.We., who told Berg that J.W. had his dog lick the penises of both boys. J.W. also told the two victims to try to penetrate the dog's anus with their penises, but they were unable to do so. The boys did observe J.W. penetrate the dog's anus. The incidents with the dog took place in J.W.'s home. In addition, both boys related that J.W. had directed them to penetrate one another, but they were unable to do so. These events took place under the deck of the neighbor's home and at J.W.'s home.

Therese Wrona, a therapist, testified that she had been involved in the treatment of sexually abusive juveniles for 10 years. Wrona first saw J.W. on December 7, 1999, and in January 2000 began seeing him at least once a week. Wrona testified that J.W. was a danger to the community "to a certain degree." Wrona recommended probation for J.W., stating that "the longer the legal system hangs on to individuals such as [J.W.], the better." In addition, Wrona recommended a course of treatment specialized for individuals that have problems with sexual aggression. Wrona also stated that J.W. required 24-hour monitoring and supervision by a person that understood the nature and seriousness of J.W.'s problem. J.W.'s school should be informed concerning J.W.'s history of sexually aggressive behavior so that the school could monitor J.W. and protect other students. Wrona further said that J.W. should not be around younger children, or even children his own age, unless an adult who is aware of J.W.'s problems is present. Wrona's opinion was that J.W. should be allowed to remain in the community and should not be placed in residential treatment. With regard to the protection of the community, Wrona believed that J.W. could return to his home in South Elgin, although given the publicity concerning the case, Wrona believed it might not be in J.W.'s best interest to return to his home.

Wrona testified that J.W. "groomed" his victims, meaning that he approached the victims to assess his likelihood of committing the sexual abuse. J.W. sought out his victims and selected his victims based upon their youth and their trust in him. Wrona said that J.W. initially did not feel any guilt, but she believed J.W. was beginning to appreciate the seriousness of his acts.

J.W.'s parents testified at the sentencing hearing and indicated their willingness to engage in intensive supervision and monitoring of J.W. if he was allowed to return home. J.W.'s parents also indicated that if J.W. was allowed to return home, they intended to sell their home in South Elgin and move to a different neighborhood.

J.W.'s aunt, Monica Grant, testified on behalf of J.W. that she resides with her husband in Elgin, Illinois. Grant stated that she and her husband were willing to let J.W. live with them and would take responsibility for his supervision.

At the conclusion of the sentencing hearing, J.W. made a statement on his own behalf apologizing to the victims. The trial court then noted that, because J.W. was under the age of 13, he could not be committed to the juvenile division of the Department of Corrections. See 705 ILCS 405/5-750(3) (West 2000). The trial court also noted that, even though the State had recommended residential treatment for J.W., the State had not determined whether there was a treatment center willing and/or able to take J.W. Accordingly, the trial court placed J.W. on five years' probation and directed the probation officer to determine whether placement was available for J.W. J.W. was to be placed in residential treatment if such placement was available. If placement was not available, J.W. was prohibited from going back to South Elgin and was ordered to reside with his aunt, Monica Grant, until his parents moved out of South Elgin. J.W. also was ordered to register as a sex offender and to comply with AIDS/HIV testing pursuant to section 5-710 of the Juvenile Court Act of 1987 (705 ILCS 405/5-710 (West 2000)).

On March 1, 2000, the parties returned to court and informed the trial court that residential treatment had been found for J.W. Accordingly, an order was entered placing J.W. at the treatment center. Thereafter, in anticipation of J.W.'s imminent release from the treatment center, the trial court entered an order on August 22, 2000, providing that J.W. was to reside with Monica Grant upon release, and would be allowed to reside with his parents once they moved out of South Elgin.

J.W. then appealed the conditions of his probation requiring him to register as a sex offender and prohibiting him from entering or residing in South Elgin. The appellate court stated that J.W. was required to register as a sex offender for the rest of his natural life because he was considered a sexual predator under the Sex Offender Registration Act (Registration Act) (730 ILCS 150/1 et seq. (West 2000)). The appellate court then rejected J.W.'s claim that imposing a lifetime registration requirement on a 12-year-old offender violates substantive due process. The appellate court also held that the trial court did not abuse its discretion when it prohibited J.W. from entering or residing in South Elgin, noting that J.W.'s parents had concurred in the restriction. In this court, J.W. again challenges the conditions of his probation requiring him to register as a sex offender and banishing him from the Village of South Elgin.

ISSUES

As a preliminary matter, we must address the State's claim that this Court does not have jurisdiction over this appeal because J.W. did not comply with Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)). Supreme Court Rule 604(d) (188 Ill. 2d R. 604(d)), provides, in pertinent part:

"No appeal from a judgment entered upon a plea of guilty shall be taken unless the defendant, within 30 days of the date on which sentence is imposed, files in the trial court a motion to reconsider the sentence, if only the sentence is being challenged, or, if the plea is being challenged, a motion to withdraw the plea of guilty and vacate the judgment." 188 Ill. 2d R. 604(d).

Recently, this court held that Rule 604(d) applies to juvenile proceedings. In re A.G., 195 Ill. 2d 313 (2001). This court left open, however, the issue of whether a juvenile's failure to file a post-admission motion pursuant to Rule 604(d) serves as a jurisdictional bar to an appeal. A.G., 195 Ill. 2d at 322. The State contends that this question must be answered in the affirmative, maintaining that, if Rule 604(d) applies to juvenile proceedings, its jurisdictional component also must apply to juvenile proceedings.

With regard to this case, the State notes that J.W. entered admissions to the two counts of aggravated sexual abuse for which he was adjudicated delinquent, and that an admission in juvenile court is the equivalent of a guilty plea. See In re A.G., 195 Ill. 2d 313, 316 (2001). J.W., however, did not file a motion to withdraw his admissions or to reconsider his sentence prior to filing his appeal. Because J.W. did not comply with Rule 604(d) prior to filing his appeal, the State contends that this court has no jurisdiction over J.W.'s appeal.

In response, J.W. states that, even if the filing of a motion pursuant to Rule 604(d) is a prerequisite to taking a delinquency appeal, Rule 604(d) does not bar his appeal because he is not seeking to challenge his plea or to reconsider his term of probation. Rather, he is contesting the constitutionality of two of the conditions of probation imposed by the trial court, namely, the condition that he register as a sex offender for the rest of his life and the condition barring him from entering the Village of South Elgin. J.W. claims that because these conditions are unconstitutional, they are void. J.W. maintains that a void sentence may be attacked at any time, even following a guilty plea and in the absence of a motion to vacate that plea.

We need not decide here the issue left open in In re A.G. We agree with J.W. that his challenge is to the constitutionality of two of the conditions of his probation, not to the imposition of probation itself. J.W. is not challenging his plea or his sentence of probation. Consequently, Rule 604(d) does not bar J.W.'s appeal.

The State then argues that, even if this court has jurisdiction over this appeal, J.W. has waived any challenge to the conditions of probation because he did not raise these issues in the trial court. J.W., however, maintains that a constitutional challenge to a statute may be made at any time.

J.W. is correct that, in general, a constitutional challenge to a criminal statute can be raised at any time. People v. Bryant, 128 Ill. 2d 448, 454 (1989). Accordingly, J.W. has not waived his constitutional challenges to the Registration Act even though he first raised those challenges in the appellate court.

J.W. first argues that the trial court's order requiring him to register as a sex offender for the rest of his natural life violates substantive due process and the proscription against double jeopardy, and constitutes cruel and unusual punishment in violation of the eighth amendment to the United States Constitution (U.S. Const., amend. VIII).

It is well settled that statutes are presumed constitutional and that a party challenging the constitutionality of a statute has the burden of establishing its invalidity. People v. Wright, 194 Ill. 2d 1, 24 (2000). This court reviews de novo the constitutionality of a statute. People v. Malchow, 193 Ill. 2d 413, 418 (2000).

At the outset, we must address the appellate court's finding that J.W. shall register as a sex offender for the rest of his natural life. In ordering J.W. to register as a sex offender, the trial court did not specify the duration of registration. The appellate court found that, given the nature of the charges for which J.W. was adjudicated delinquent, J.W. is a "sexual predator" as defined by the Registration Act, so that the duration of registration is for the rest of J.W.'s natural life.

In construing a statute, this court must ascertain and give effect to the legislature's intent in enacting that statute. Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 110 (1993). To determine the intention of the legislature, we first examine the language of the statute, which is the most reliable indicator of the legislature's intent. In re C.W., 199 Ill. 2d 198, 211 (2002). Where the statutory language is clear and unambiguous, a court must give effect to the statute as written without reading into the statute exceptions, limitations or conditions that the legislature did not express. In re C.W., 199 Ill. 2d at 211-12. In addition, a statute must be read as a whole, and no word or paragraph should be interpreted so as to be rendered meaningless. Collins, 155 Ill. 2d at 111.

With the foregoing principles in mind, we must examine the definitions of "sexual predator" and "juvenile sex offender" as set forth in the Registration Act. Section 2 contains the definitions for purposes of that Act. Section 2(A) defines a "sex offender." 730 ILCS 150/2(A) (West 2000). Effective July 1, 1999, the Registration Act was amended to add, inter alia, the definition of a "juvenile sex offender." Section 2(A-5) of the Registration Act now provides that:

" `Juvenile sex offender' means any person who is adjudicated a juvenile delinquent as the result of the commission of or attempt to commit a violation set forth in item (B), (C), or (C-5) of this Section or a violation of any substantially similar federal, sister state, or foreign country law. For purposes of this Section, `convicted' shall have the same meaning as `adjudicated.' " 730 ILCS 150/2 (A-5) (West 2000).

J.W. falls within the definition of a juvenile sex offender because he was adjudicated delinquent as the result of the commission of a violation of item (B) of section 2, namely, aggravated criminal sexual assault. See 730 ILCS 150/2(B)(1) (West 2000). *fn1

Also included within the definitions in section 2 is the more specific category of sexual predators. A "sexual predator" includes:

"any person who, after the effective date of this amendatory Act of the 91st General Assembly is:

(1) Convicted of a violation of any of the following Sections of the Criminal Code of 1961 and the conviction occurred after the effective date of this amendatory Act of the 91st General Assembly:

12-14 (aggravated criminal sexual assault)[.]" 730 ILCS 150/2(E)(1) (West 2000).

Reading section 2(A-5) together with section 2(E) so that no word or paragraph is rendered meaningless, we conclude that J.W. clearly qualifies as a sexual predator under the Registration Act. Section 2 (A-5) provides that "convicted" has the same meaning as "adjudicated," for purposes of section 2. Section 2 defines a sexual predator as a person who has been "convicted" of aggravated criminal sexual assault. This statutory language is clear and unambiguous, so we give effect to the statute as written. J.W. has been adjudicated delinquent, or ...


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