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People v. Pepitone

Supreme Court of Illinois

April 5, 2018


          JUSTICE THEIS delivered the judgment of the court, with opinion.Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and Burke concurred in the judgment and opinion.



         ¶ 1 Section 11-9.4-1(b) of the Criminal Code of 2012 provides, "It 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 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone's due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant's conviction and sentence.

         ¶ 2 BACKGROUND

         ¶ 3 In 1998, the defendant was charged with predatory criminal sexual assault of a child, criminal sexual assault, and aggravated criminal sexual abuse. He pleaded guilty to predatory criminal sexual assault of a child.[1] The trial court sentenced him to six years' imprisonment.

         ¶ 4 Fourteen years later, in 2013, Village of Bolingbrook police officer Steven Alexander was patrolling a municipal park around 4:30 p.m. when he observed a van improperly parked across three spaces. Officer Alexander checked the van's plates and learned that it was registered to the defendant. While Officer Alexander was standing near the van, the defendant approached with his dog. The defendant asked Officer Alexander if there was a problem with the van. The defendant related that he was a child sex offender but that his registration requirement had expired in 2010. Officer Alexander informed the defendant that, as a child sex offender, he was forbidden to be on park property. Though the defendant was unaware of such a ban, he was arrested for violating section 11-9.4-1(b).

         ¶ 5 The defendant filed a motion to dismiss the charge, arguing that the statute is facially unconstitutional under the federal and state due process clauses (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2) and unconstitutional as applied under the federal and state ex post facto clauses (U.S. Const., art. I, § 10; Ill. Const. 1970, art. I, § 16). The trial court denied that motion, and the case proceeded to a one-day jury trial. The parties stipulated that the defendant is a child sex offender under section 11-9.4-1(b). At the close of the State's evidence, the defendant made a motion for a directed verdict, again arguing that the statute was unconstitutional. The trial court denied that motion, and the jury found the defendant guilty of violating the statute. The trial court entered judgment on the jury's verdict and later sentenced the defendant to 24 months' conditional discharge and 100 hours of community service and fined him $400. The defendant filed a motion for a new trial, asserting that the trial court erred in denying his motion to dismiss. The court denied the defendant's motion for a new trial, and he appealed.

         ¶ 6 A divided appellate court panel reversed, holding that section 11-9.4-1(b) is facially violative of substantive due process. 2017 IL App (3d) 140627. The appellate court majority noted that People v. Avila-Briones, 2015 IL App (1st) 132221, and People v. Pollard, 2016 IL App (5th) 130514, both had rejected substantive due process challenges 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 sex offender statutes, including section 11-9.4-1(b). 2017 IL App (3d) 140627, ¶¶ 12-13. The appellate court majority was not persuaded by the analyses in those cases, which it termed "incomplete and truncated." Id. ¶ 14. Instead, the majority chose to follow cases from this court in which statutes were invalidated under due process for criminalizing innocent conduct. Id. ¶ 15. According to the majority, those cases, "while very different in their facts, are significant *** because the statutes at issue, like section 11-9.4-1(b), contain no culpable mental state" and "reach countless types of innocent conduct." Id. ¶ 20. The appellate court majority insisted, "Mere presence in a public park building or public park, without more, is not unlawful conduct." Id.

         ¶ 7 Further, the majority noted that, unlike its repealed predecessor (see 720 ILCS 5/11-9.4(a) (West 2010)), which "actually attempted to tie the child sex offender's presence to times when children were also present" (2017 IL App (3d) 140627, ¶ 21), section 11-9.4-1(b) "cannot be reasonably construed as aimed at preventing a substantial step toward the commission of a sex offense against a child or any offense that would result in an individual qualifying as a sexual predator" (emphasis in original) (id. ¶ 20). The current statute was "premised on a vague notion that a child or other 'target' may be present in a public park building or on public park property, " and it "makes no attempt to assess the dangerousness of a particular individual." Id. ¶ 22.

         ¶ 8 The appellate court majority highlighted the "overly broad sweep" of section 11-9.4-1(b) and provided an "extensive" list of activities that occur on public park property, in which persons like the defendant cannot participate. Id. ¶ 23. The majority concluded that the statute violated due process because "it is not reasonably related to its goal of protecting the public, especially children, " from individuals fitting the definition of a child sex offender and because it is not "drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights" from such individuals who have already "paid the penalty" for their crimes. Id. ¶ 24.

         ¶ 9 Justice Carter dissented. He would have followed Avila-Briones and Pollard and held that "the means adopted in *** section 11-9.4-1(b) are a reasonable method of accomplishing the legislature's desired objective of protecting the public from sex offenders." Id. ¶ 31 (Carter, J., dissenting). Justice Carter surmised that "[b]y keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend." Id. ¶ 32.

         ¶ 10 This court allowed the State's petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff. Mar. 15, 2016). We also allowed both Illinois Voices for Reform and the National Association for Rational Sexual Offense Laws to file amicus curiae briefs in support of the defendant. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 11 ANALYSIS

         ¶ 12 The analysis in this case is guided by familiar principles. All statutes carry a strong presumption of constitutionality. People v. Hollins, 2012 IL 112754, ¶ 13. Accordingly, this court will uphold statutes whenever reasonably possible, resolving all doubts in favor of their validity. People v. Boeckmann, 238 Ill.2d 1, 6-7 (2010). To rebut the presumption, a party challenging a statute must establish clearly that it violates the constitution. People v. Rizzo, 2016 IL 118599, ΒΆ 23. That burden is particularly heavy where, as here, the party raises a facial challenge, asserting that there is no circumstance in which the ...

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