from the Circuit Court of McLean County No. 12CF1330
Honorable Scott D. Drazewski, Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Justices DeArmond and Turner concurred in the
judgment and opinion.
1 After defendant, Conrad Allen Morger, was convicted in 2014
of criminal sexual abuse and aggravated criminal sexual
abuse, he challenged on appeal various conditions of his
probation. This court vacated defendant's sentence and
remanded for a new sentencing hearing. The trial court again
sentenced defendant to probation, and he now appeals,
challenging certain conditions of probation as (1) an
improper increase in his sentence and (2) unconstitutional
because they are overly broad and unreasonable. For the
reasons that follow, we affirm the trial court's
2 I. BACKGROUND
3 In January 2013, the State charged defendant with
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West
2010)) and criminal sexual abuse (id. §
11-1.50(a)(1)). People v. Morger, 2016 IL App (4th)
140321, ¶ 5, 59 N.E.3d 219. Each charge alleged that
defendant's criminal acts, which were committed against
his sister, K.M., who was born September 22, 1997, occurred
between August 1, 2010, and November 30, 2012. Id.
4 In February 2014, following a bench trial, defendant was
convicted of both counts. Id. ¶ 1. In April
2014, the trial court sentenced him to 180 days in jail and
probation for 48 months. Id. ¶¶ 1, 21.
5 In defendant's initial appeal, he argued that the State
failed to prove him guilty beyond a reasonable doubt of
either charge. Id. ¶ 2. Defendant also argued
his probation conditions were unreasonable, overly broad, and
unrelated to his conviction or rehabilitation. In addition,
defendant argued that the trial court erred by delegating its
judicial discretion to the McLean County court services
department to determine his sentence. Id. In August
2016, this court agreed with only defendant's last
argument, so we affirmed defendant's convictions, vacated
his sentence, and remanded for the trial court to use its
discretion to determine his sentence. Id. ¶ 61.
6 On remand, the trial court resentenced defendant to the
same term of probation and imposed various probation
conditions. Defendant challenged some of those conditions in
a motion to reconsider sentence, but the court denied that
7 This appeal followed.
8 II. ANALYSIS
9 On appeal, defendant raises two contentions. First, he
argues that the trial court's imposition of probation
conditions on remand amounts to an improper increase of his
sentence. Second, defendant argues probation condition Nos.
4, 5, 6, 8, 11, and 14 should be vacated because they are
unconstitutional, overly broad, and unreasonable. We will
address these arguments in turn.
10 A. The Probation Conditions Imposed on Remand
11 Defendant argues that the probation conditions purportedly
imposed by the McLean County court services department
previously cannot be imposed by the trial court on remand
because doing so would impermissibly increase his sentence.
Accordingly, defendant asks this court to vacate all of the
probation conditions the trial court imposed on remand.
12 The State responds that (1) the trial court retained
authority and discretion during defendant's probationary
period to revoke or modify defendant's probation and (2)
the court properly imposed probation conditions on remand. We
agree with the State that the trial court's imposition of
probation conditions on remand was proper.
13 In support of defendant's claim that the trial
court's imposition of probation conditions on remand
amounted to an impermissible increase in his sentence, he
relies upon People v. Castleberry, 2015 IL 116916,
¶¶ 20-26, 43 N.E.3d 932, and People v.
Daily, 2016 IL App (4th) 150588, ¶ 30, 74 N.E.3d
15. We reject defendant's Castleberry and
Daily analysis because those cases are inapposite to
14 In Daily, the circuit clerk purportedly imposed
fines upon the defendant that the trial court never imposed.
Daily, 2016 IL App (4th) 150588, ¶ 30. This
court vacated the fines but declined the State's request
that we remand so that the trial court could impose the
mandatory fines. Id. In so concluding, we stated our
agreement with the Third District's decision in
People v. Wade, 2016 IL App (3d) 150417, ¶ 13,
64 N.E.3d 703, that such a remand would result in an
impermissible increase in defendant's sentence on appeal,
which would violate the supreme court's decision in
Castleberry. Id. As the Wade court
noted, the supreme court in Castleberry held that
the appellate court may not increase a sentence on appeal,
even one that is illegally low. Id.
15 Defendant's situation in the present case is different
because, here, the trial court sentenced defendant
to probation but then delegated the imposition of specific
probation conditions to the McLean County court services
department. Morger, 2016 IL App (4th) 140321,
¶¶ 1, 57. We held in the first appeal of this case
that the trial court's delegation to the court services
department was erroneous. Id. ¶ 54.
"Because the imposition of probationary conditions is
part of sentencing, the trial court must impose any such
conditions at the sentencing hearing and may not delegate
that authority to any third party, including the court
services department." Id. ¶ 57. We then
remanded the defendant's case for the trial court to
judicially impose the specific probation conditions.
Id. ¶ 58.
16 On remand, the trial court did just that-namely, the court
resentenced defendant and imposed probation conditions. Thus,
this case differs from Daily because, here, it was
the trial court that initially imposed the erroneous
sentence, not the circuit clerk. Thus, our remand directed
the trial court to sentence defendant again without engaging
in any improper delegation to the court services department
to determine probation conditions. The trial court complied
with our remand, and we see no error in the court's doing
so. Because the trial court resentenced defendant and imposed
probation conditions, the trial court exercised its judicial
function and these conditions were properly imposed on
17 B. Defendant's Challenge to Specific Probation
18 Next, defendant argues that probation condition Nos. 4, 5,
6, 8, 11, and 14 imposed by the trial court should be vacated
because they are unconstitutional, overly broad, and
unreasonable. These contentions on appeal appear based on two
separate claims: (1) the probation conditions are
inappropriate, excessive, and unreasonable as a matter of
Illinois law, and (2) even if they might be permitted under
Illinois law, they violate defendant's constitutional
rights. Consistent with directions from the Illinois Supreme
Court regarding how lower courts should handle cases in which
both constitutional and nonconstitutional claims are raised,
we will first address defendant's nonconstitutional
claims. See People v. Chairez, 2018 IL 121417,
¶ 13 (courts should "decide constitutional
questions only to the extent required by the issues in the
case" (internal quotation marks omitted)); see also
In re Dustyn W., 2017 IL App (4th) 170103, ¶
24, 81 N.E.3d 88 ("Only if we conclude that the trial
court did not abuse its discretion by imposing the
probationary condition at issue should we then consider
whether this condition violated respondent's
constitutional rights."). Nonetheless, our consideration
of a defendant's contention that a probation condition
violated his constitutional rights can help inform this
court's analysis regarding the overall reasonableness of
19 1. Defendant's Claim That the Probation Conditions
Imposed On Him Were Not Permitted Under Illinois Law
20 In analyzing the probation conditions, we need to
"first determine whether the court's discretion was
exercised in a reasonable manner." Dustyn W.,
2017 IL App (4th) 170103, ¶ 24. "To be reasonable,
a condition of probation must not be overly broad when viewed
in the light of the desired goal or the means to that
end." In re J.W., 204 Ill.2d 50, 78, 787 N.E.2d
747, 764 (2003).
21 Trial courts have broad discretion to impose probationary
conditions to achieve the goals of fostering rehabilitation
and protecting the public. Dustyn W., 2017 IL App
(4th) 170103, ¶ 24. "[T]he trial court's
discretion is limited by constitutional safeguards and must
be exercised in a reasonable manner." Id.
22 For the reasons that follow, we conclude that probation
condition Nos. 4, 5, 6, 8, 11, and 14 are reasonable.
23 a. Probation Condition No. 4
24 Probation condition No. 4 requires that defendant
"[n]ot reside at the same address, in the same
condominium unit or complex, or in the same apartment unit or
complex, with another person defendant knows or reasonably
should know is a convicted sex offender. (730 ILCS
5/5-6-3(a)(8.6)) This includes any mobile home park in which
the homes are addressed by lot number, with or without a
designated street address."
25 Defendant argues that probation condition No. 4 prohibits
him "from living in any mobile home parks that use lot
numbers if another convicted sex offender lives there."
He further argues that probation condition No. 4 is overly
broad and unreasonable "because mobile home parks are
substantially different than apartment and condominium
complexes in that they consist of entirely separate physical
dwellings, just like subdivisions of houses." Defendant
cites People v. Meyer, 176 Ill.2d 372, 680 N.E.2d
315 (1997), to argue that a probation condition can veer so
far in the direction of protecting the public that it
unreasonably hampers the goal of rehabilitation, which ...